MarforK Coal Co. v. Callaghan
| Decision Date | 15 March 2004 |
| Docket Number | No. 31551.,31551. |
| Parties | MARFORK COAL COMPANY, Petitioner Below, Appellee v. Michael O. CALLAGHAN, Secretary, West Virginia Department of Environmental Protection, and Matthew B. Crum, Director, West Virginia Department of Environmental Protection's Division of Mining and Reclamation, Respondents Below, and Janice Nease and Freda Williams, Intervenors Below, Appellees. Stephanie R. Timmermeyer, Acting Secretary, West Virginia Department of Environmental Protection, Appellant. |
| Court | West Virginia Supreme Court |
Concurring Opinion of Justice Starcher July 14, 2004.
Robert G. McLusky, Gale R. Lea, John Charles (Max) Wilkinson, Jr., Jackson & Kelly, Charleston, West Virginia, Attorneys for the Appellee, Marfork Coal Company.
Thomas L. Clarke, West Virginia Department of Environmental Protection, Charleston, West Virginia, Attorney for the Appellant.
Freda Williams, Pro Se.
The West Virginia Department of Environmental Protection ("DEP"), through its Secretary, Stephanie R. Timmermeyer,1 appeals from the December 23, 2002, order of the Circuit Court of Raleigh County through which an order of the West Virginia Surface Mine Board ("SMB") was reversed and the underlying matter remanded to DEP for a second show cause hearing on the issue of whether Marfork Coal Company ("Marfork") should be subject to a permit revocation or suspension based on an alleged pattern of violating state surface mining regulations. Rather than addressing the substance of the appeal, the circuit court resolved the appeal primarily on procedural grounds that relate to the original show cause proceeding before the DEP. Having thoroughly reviewed this matter, we find that the lower court committed error by focusing its appellate review almost exclusively on the DEP show cause proceeding rather than on the SMB proceeding and ruling which were the proper subject of its review as set forth by statute.2 Accordingly, we reverse and remand this matter to permit the circuit court to address the substantive issues Marfork raised in its appeal from the DEP ruling upon which the lower court has not yet ruled.
On June 7, 2001, DEP issued an order requiring Marfork to show cause as to why its permit number O-3010-95,3 which governs the operations of a surface mine in Raleigh County and a coal refuse disposal facility known as Brushy Fork, should not be suspended or revoked based on an alleged pattern of violations of state surface mining regulations.4 Prior to the show cause hearing, DEP announced in a press release issued on August 31, 2001, that three Massey subsidiaries, of which Marfork was one, faced show cause hearings in connection with "patterns of water pollution discharges." In the press release, DEP Director Mathew B. Crum ("Director Crum") is quoted as saying that the violations committed at the Brushy Fork impoundment were "serious" and that the show cause "method of enforcement has a much greater potential for getting an operator's attention and compelling compliance."
On October 25, 2001, the show cause hearing was conducted with Director Crum serving as the hearing examiner. Three citizen intervenors5 made statements in support of DEP's action against Marfork. The parties, including the intervenors, were allowed to introduce witness testimony; fully cross examine the witnesses; and proffer demonstrative evidence bearing on the issues presented. By order dated January 14, 2002, Director Crum ruled that Marfork had failed to meet its burden of showing why the permit at issue should not be suspended based on the pattern of statutory violations at issue. Accordingly, the DEP Director found that a fourteen day suspension of the permit was warranted for Marfork's pattern of violating surface mining laws. Marfork appealed the DEP ruling to the SMB and obtained a stay of the order issued by the DEP.
A de novo evidentiary hearing6 took place before the SMB on March 13, 2002, during which the SMB considered the same evidence previously presented to the DEP on the issue of the pattern of violations, as well as additional evidence presented by Marfork in support of its allegation that Director Crum was biased against it and had prejudged the case. By order dated June 27, 2002, the SMB upheld the DEP's decision that the evidence warranted a suspension of the subject surface mining permit, but modified the penalty by reducing the fourteen-day suspension period ordered by DEP to a nine-day suspension period. In addition, after concluding that the mining operations had not contributed to the pattern of violations at issue, the SMB eliminated the surface mine operations from the effect of the suspension.7 With regard to the newly raised issues of bias and prejudgment, the SMB essentially dismissed these concerns based on its de novo hearing of the issues presented.8 Marfork appealed the decision of the SMB to the circuit court.
After hearing oral argument on the appeal and considering the entire administrative record, the circuit court determined that Marfork's procedural due process rights were violated by virtue of Director Crum serving as the hearing examiner in the show cause hearing.9 Rejecting the DEP's position that the de novo nature of the SMB proceeding "cured" any procedural irregularities at the show cause hearing, the circuit court reversed the SMB ruling and remanded the matter to DEP for "a full show cause hearing on the merits before an impartial hearing examiner."
Arguing that the circuit court violated established administrative review procedures in focusing its review on the DEP ruling rather than on the SMB ruling, DEP seeks a reversal of the lower court's ruling.
Our review of the circuit court's decision in an administrative appeal is de novo. See Tennant v. Callaghan, 200 W.Va. 756, 761, 490 S.E.2d 845, 850 (1997)
. In conducting that review, however, we are subject to the same governing standards of review that controlled the circuit court's actions. West Virginia DEP v. Kingwood Coal Co., 200 W.Va. 734, 736, 490 S.E.2d 823, 825 (1997). Those standards, which are set forth in West Virginia Code § 29A-5-4(g) (1998) (Repl.Vol.2002), provide for reversal, vacation, or modification of an administrative decision when the petitioner's rights have been substantially prejudiced as a result of a ruling that is:
Id. With these standards in mind, we proceed to examine this matter to determine whether the lower court committed error in its reversal of the SMB ruling.
DEP argues that the circuit court exceeded the scope of its statutory authority of review by relying on procedural errors that took place at the DEP proceeding as the basis for its reversal of the SMB ruling. In its December 23, 2002, order, the circuit court focused almost exclusively on what had taken place in the show cause hearing before Director Crum. In summary fashion, the lower court concluded that the press release "strongly indicates that Director Crum prejudged Marfork." Without identifying any specific statements attributed to Director Crum that demonstrated such prejudgment, however, the lower court simply referenced the press release as the entirety of the evidence upon which it relied to conclude that Director Crum was biased against Marfork. The only finding which the trial court made in relation to the SMB proceeding pertained to the burden of proof borne by Marfork. After syllogizing that if Director Crum had not been the DEP hearing examiner, then an impartial hearing would have taken place and Marfork would not have had reason to appeal the penalty,10 the trial court concluded that Marfork was wrongly required to bear the burden of production and proof before the SMB. Upon analysis, neither one of the bases relied upon by the circuit court withstands scrutiny.
We first examine whether the fact that Director Crum was the hearing examiner impermissibly tainted the show cause proceeding simply by virtue of the dual position he held as both DEP Director and administrative fact finder. After acknowledging that it could "find no West Virginia authority directly on point as to the constitutional implications of a biased or prejudiced administrative hearing officer," the trial court proceeded to look to non-administrative law precedent as support for its position that a violation of the constitutional right of due process occurred here solely as a result of Director Crum's dual role as DEP Director and hearing examiner combined with his statements in the DEP press release.
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