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  "id": 4115201,
  "name": "RUFUS STARK AND BETTY STARK, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, HARRISON CONSTRUCTION, DIVISION OF APAC ATLANTIC, INC., AND THE NORTH CAROLINA MINING COMMISSION, Respondents",
  "name_abbreviation": "Stark v. N.C. Department of Environment & Natural Resources",
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    "judges": [
      "Judges HUNTER, JR. (Robert N.) and ERVIN concur."
    ],
    "parties": [
      "RUFUS STARK AND BETTY STARK, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, HARRISON CONSTRUCTION, DIVISION OF APAC ATLANTIC, INC., AND THE NORTH CAROLINA MINING COMMISSION, Respondents"
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nRufus Stark and Betty Stark (\u201cpetitioners\u201d) appeal from an order of the trial court affirming the Final Agency Decision of the North Carolina Mining Commission (the \u201cMining Commission\u201d). We affirm.\nI. Background\nRespondent Harrison Construction, Division of APAC Atlantic, Inc. (\u201cHarrison\u201d), holds Mining Permit No. 22-06, authorizing operation of a crushed stone quarry known as the Hayesville Quarry in Clay County, North Carolina. The Hayesville Quarry is located in the vicinity of Shewbird Mountain. Harrison\u2019s permit was issued by respondent North Carolina Department of Environment and Natural Resources (\u201cDENR\u201d), Division of Land Resources (\u201cDLR\u201d), in 1989 and renewed by DLR in 1999. On 5 January 2007, Harrison applied for a major modification to its permit, seeking to add 37 acres to its previously permitted acreage and, within the proposed permit boundary, to increase the area disturbed by its mining operations by 22.1 acres.\nUpon receipt of Harrison\u2019s application for modification, DLR routed the application to multiple state and federal agencies for review and comment, including the Asheville Regional Office of DENR\u2019s Divisions of Air Quality and Water Quality, the North Carolina Wildlife Resources Commission, the United States Fish and Wildlife Service, DENR\u2019s Division of Parks and Recreation, the State Historic Preservation Office\u2019s Division of Historical Resources, and DLR\u2019s North Carolina Geological Survey Section, as specified in N.C. Gen. Stat. \u00a7 74-50(b3) (2011). Upon receipt of written comments from those agencies, any concerns expressed were investigated by DLR and, where appropriate, additional information was requested from Harrison.\nOn 17 January 2007, Harrison sent notice of its application for modification to adjoining landowners of record. On 14 March 2007, James Simons, Director of DLR (\u201cSimons\u201d), determined that significant public interest concerning Harrison\u2019s permit modification application warranted a public hearing in the matter. Petitioners attended the public hearing conducted on 2 April 2007 and both submitted written comments and made an oral presentation at the public hearing. Petitioners subsequently forwarded additional written comments to DLR following the hearing.\nPetitioners reside on a 32-acre tract of land located on the south face of Shewbird Mountain. Their property adjoins that of Harrison, with a common property line of approximately 1500 feet. Petitioners\u2019 home is approximately 300 feet from that line.\nAt the public hearing, petitioners described cracks in the foundation of their home and the worsening of cracks in the tile floor of their home. They also indicated a window in their home had been displaced in its frame and they had replaced four large windows whose vacuum seal had been \u201ccompromised.\u201d Petitioners also stated the following concerns in their written comments expressing opposition to modification of the permit: the operation would have an adverse impact on water supply wells in the area and decrease the flow and quality of surface waters; it would destroy plants and animal habitats in the area of the proposed expansion; it would present a physical hazard to petitioners\u2019 home; it would have an adverse impact on publicly owned parks and recreation areas, as Shewbird Mountain is visible from various points in the area; and blasting would threaten the stability of rock outcroppings above their home. Prior to the 2 April 2007 public hearing concerning the subject permit modification application, petitioners had not made any complaints to DLR about Harrison\u2019s mining operation.\nAfter hearing and considering the concerns of petitioners and various other attendees at the public hearing, on 27 April 2007, DLR sent Harrison a letter in which it requested the applicant submit additional information and studies. Specifically, Harrison was asked, inter alia, 1) to address screening of the mining operation from public view; 2) to obtain a groundwater study evaluating possible impacts of the proposed quarry expansion on water supply wells on the north, east, and south sides of Shewbird Mountain; and 3) to obtain a blasting study to determine if expansion of the quarry could occur as proposed with blasting levels remaining below the permit limits at the closest occupied dwelling and without mobilizing existing old debris slides on the east side of the mountain. In response to DLR\u2019s 27 April 2007 request for additional information, Harrison submitted a letter addressing the information requested along with a groundwater evaluation completed by Geological Resources, Inc. and a blasting evaluation completed by GeoSonics Inc. (\u201cGeoSonics\u201d).\nIn determining whether to approve the proposed permit modification, Simons considered the application and all relevant materials in light of the denial criteria set forth under N.C. Gen. Stat. \u00a7 74-51(d) (2011). Following that review, on 18 January 2008, DLR approved the requested modification to Harrison\u2019s mining permit.\nOn 21 February 2008, petitioners initiated a contested case in the North Carolina Office of Administrative Hearings (\u201cOAH\u201d) to challenge DLR\u2019s 18 January 2008 decision to approve Harrison\u2019s permit modification. A hearing was held before an Administrative Law Judge (\u201cALJ\u201d) on 12-14 October 2009. At the contested case hearing, petitioners presented evidence to the effect that as of January 2008, their home had sustained some cracks in the foundation and in the tile floor. The cracks in the tile floor were present when petitioners moved into the home in 2001 but had lengthened recently. Petitioner Rufus Stark painted the foundation of the home in 2001 and did not notice any cracks at that time.\nPetitioners also presented the testimony of two expert witnesses: Stephen Blevins (\u201cBlevins\u201d), who testified as an expert in the fields of blasting, geology, and professional engineering regarding soils and materials; and Bernard Feinberg (\u201cFeinberg\u201d), who testified as an expert in the fields of structural engineering and blasting. Blevins was retained by petitioners to review the GeoSonics blasting evaluation and comment upon it. Feinberg was retained by petitioners to visit their home and observe various defects at the residence. In addition, the ALJ heard testimony by Simons as to DLR\u2019s review of each of the statutory denial criteria set forth under N.C. Gen. Stat. \u00a7 74-51(d), as well as testimony by Jeffrey Straw (\u201cStraw\u201d), who testified as an expert in the field of ground vibration and acoustics analysis and its effect on structures; Straw also had prepared the GeoSonics blasting evaluation. On 28 January 2010, the ALJ entered a decision affirming DLR\u2019s decision to approve the permit modification.\nThe matter was then heard before the Mining Commission on 15 June 2010. Prior to the hearing, the parties were allowed to submit exceptions to the AU\u2019s decision and written arguments for consideration. At the hearing, the parties were also allowed to present oral arguments. Following deliberations, the Mining Commission voted to adopt the decision of the AU. The Final Agency Decision was signed on 8 July 2010 and served upon the parties.\nOn 6 August 2010, petitioners commenced an action in superior court seeking judicial review of the Mining Commission\u2019s Final Agency Decision. The matter was heard by the trial court on 28 December 2010, and on 28 September 2011, the trial court entered an order affirming the Mining Commission\u2019s Final Agency Decision in its entirety. Petitioners now appeal from the trial court\u2019s order affirming the Mining Commission\u2019s Final Agency Decision.\nII. Standards of Review\nPursuant to N.C. Gen. Stat. \u00a7 74-61 (2011):\nAn applicant, permittee, or affected person may contest a decision of [DENR] to deny, suspend, modify, or revoke a permit or a reclamation plan ... by filing a petition for a contested case under G.S. 150B-23 within 30 days after [DENR] makes the decision. Article 4 of Chapter 150B of the General Statutes governs judicial review of a decision of the Commission.\nId. N.C. Gen. Stat. \u00a7 150B-5I(b) (2011) provides:\nThe court reviewing a final decision may affirm the decision or remand the case for further proceedings. It may also reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency or administrative law judge;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary, capricious, or an abuse of discretion.\nId. \u201cOn judicial review of an administrative agency\u2019s final decision, the substantive nature of each [asserted error] dictates the standard of review.\u201d N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004); see also N.C. Gen. Stat. \u00a7 150B-51(c); Utilities Comm. v. Bird Oil Co., 302 N.C. 14, 21, 273 S.E.2d 232, 236 (1981) (\u201cThe nature of the contended error dictates the applicable scope of review.\u201d). \u201c[E]rrors of law are reviewed de novo, while the whole record test is applied to allegations that the administrative agency decision was not supported by the evidence, or was arbitrary and capricious.\u201d Sack v. N.C. State Univ., 155 N.C. App. 484, 491, 574 S.E.2d 120, 126 (2002).\n\u201cDe novo review requires a court to consider the question anew, as if the agency has not addressed it.\u201d Blalock v. N.C. Dep\u2019t of Health and Human Servs., 143 N.C. App. 470, 475-76, 546 S.E.2d 177, 182 (2001).\nThe whole record test requires the trial court to examine all of the evidence before the agency in order to determine whether the decision has a rational basis in the evidence. If the trial court concludes there is substantial competent evidence in the record to support the findings, the agency decision must stand. The trial court may not weigh the evidence presented to the agency or substitute its own judgment for that of the agency.\nClark Stone Co. v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 164 N.C. App. 24, 31-32, 594 S.E.2d 832, 837 (2004) (citations omitted). \u201cRather, a court must examine all the record evidence \u2014 that which detracts from the agency\u2019s findings and conclusions as well as that which tends to support them \u2014 to determine whether there is substantial evidence to justify the agency\u2019s decision.\u201d Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (internal quotation marks and citations omitted). \u201cSubstantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion.\u201d Id. (internal quotation marks and citations omitted).\nITT. Admission of Expert Testimony\nIn their first argument on appeal, petitioners argue that the superior court erred in rejecting their arguments challenging the admissibility of Straw\u2019s expert testimony. Petitioners also presented arguments challenging the admissibility of the GeoSonics blasting evaluation prepared by Straw. However, it appears from the record that the GeoSonics blasting evaluation was both introduced and admitted at the hearing as a joint exhibit of the parties without objection by petitioners. Thus, any error in admitting the GeoSonics blasting evaluation was invited error, about which petitioners cannot now complain on appeal. Frugard v. Pritchard, 338 N.C. 508, 512, 450 S.E.2d 744, 746 (1994) (\u201cA party may not complain of an action which he induced.\u201d). Thus, we will review petitioners\u2019 argument only as it pertains to Straw\u2019s expert testimony presented at the hearing. The appropriate standard of review for evidentiary issues on appeal from a final agency decision is de novo. Sack, 155 N.C. App. at 493, 574 S.E.2d at 127.\nAt the contested case hearing, Straw testified that he was asked by Harrison to visit the Hayesville Quarry and prepare a blasting evaluation to determine the effects of ground vibration and air blast on structures and on the stability of slopes in the area. Straw testified that he visited the Hayesville Quarry on 10 September 2007, during which time he toured the entire operation, viewed the areas where the operator had blasted, traveled to the site where Harrison proposed to blast, toured the neighboring community, and visited petitioners\u2019 residence. Straw testified he was provided with seismograph recording information for the period January 2005 through 21 June 2007, wave form recordings, velocity levels and air overpressure information, and individual blast logs.\nBased upon the individual blast logs produced by Harrison\u2019s independent blasting contractor, Straw developed a table that detailed generally the blasting procedures used by Harrison at the Hayesville Quarry. Straw also input the data provided into a spreadsheet for use in conjunction with a program developed from regression evaluation formulas of the United States Bureau of Mines designed to evaluate ground vibration levels generated by blasting. Straw then completed a regression analysis using this software. The regression analysis produced a range within which ground vibration was expected to fall. After completing the regression analysis, Straw concluded that the blasting limits established in the permit modification approved by DLR for the Hayesville Quarry were sufficient to prevent damage to the nearest structure adjacent to it.\nStraw further testified that he evaluated offsite slope stability as related to ground vibration levels. Straw testified that he reviewed technical literature addressing this issue, which indicated that ground vibration levels of between one and four inches per second would be required to cause movement of loose slope areas. Straw testified he also looked for evidence of past slide activity on the quarry property and on petitioners\u2019 property, but his observations of petitioners\u2019 property and on his drive around the mountain did not indicate any active unstable areas. Based upon his research and site visit, and comparing the projections made with the levels necessary to cause slope slides, Straw concluded that the ground vibration would be considerably less than that required to cause a slide to occur.\nPetitioners argue on appeal that Straw\u2019s expert testimony was inadmissible because practice in his field of expertise requires either an engineering license or a license to practice geology. Accordingly, petitioners contend Straw\u2019s testimony was \u201cillegal\u201d and his credentials were therefore inadequate, requiring exclusion of his testimony.\n\u201cThe trial court has broad discretion in the determination and admission of expert testimony.\u201d State v. East, 345 N.C. 535, 550, 481 S.E.2d 652, 662 (1997). \u201cThe decision to qualify a witness as an expert is ordinarily within the exclusive province of the trial judge or hearing officer.\u201d State ex rel. Comr. of Insurance v. N.C. Rate Bureau, 75 N.C. App. 201, 230, 331 S.E.2d 124, 144 (1985); see also Maloney v. Hospital Systems, 45 N.C. App. 172, 179, 262 S.E.2d 680, 684 (1980) (noting \u201cthe trial court\u2019s decision concerning whether or not a witness has qualified as an expert is ordinarily within the court\u2019s sound discretion\u201d). \u201cA finding by the trial court that the witness is qualified will not be reversed unless there was no competent evidence to support it or the court abused its discretion.\u201d State v. Love, 100 N.C. App. 226, 232, 395 S.E.2d 429, 433 (1990).\nThe admissibility of expert testimony is governed by Rule 702 of the North Carolina Rules of Evidence, which provides:\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion[.]\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (2011). In Maloney v. Hospital Systems, 45 N.C. App. 172, 262 S.E.2d 680 (1980), this Court \u201caccept [ed] the principle that the giving of expert testimony should not be limited to those witnesses who are licensed in some particular field of endeavor, nor limited by whether such witnesses employ their skills professionally or commercially^]\u201d Id. at 178, 262 S.E.2d at 684. Subsequently, our Supreme Court noted:\n\u201c \u2018It is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession.\u2019 State v. Evangelista, 319 N.C. 152, 164, 353 S.E.2d 375, 384 (1987). \u2018It is enough that the expert witness \u201cbecause of his expertise is in a better position to have an opinion on the subject than is the trier of fact.\u201d \u2019 Id. at 164, 353 S.E.2d at 384 (quoting State v. Wilkerson, 295 N.C. 559, 569, 247 S.E.2d 905, 911 (1978)).\u201d\nEast, 345 N.C. at 550, 481 S.E.2d at 662 (quoting State v. Goode, 341 N.C. 513, 529, 461 S.E.2d 631, 640-41 (1995)). Other cases from both this Court and our Supreme Court have continued to reiterate that \u201c[t]o qualify as an expert, one need not be a specialist or have a license from an examining board or be engaged in any particular profession. As long as study, experience, or both makes the witness better qualified than the jury to draw appropriate inferences from the facts, he may be qualified as an expert.\u201d Love, 100 N.C. App. at 232, 395 S.E.2d at 433; see also Williams v. CSX Transp., Inc., 176 N.C. App. 330, 340, 626 S.E.2d 716, 725 (2006) (\u201cExpert testimony is not \u2018limited to those witnesses who are licensed in some particular field of endeavor, nor limited by whether such witnesses employ their skills professionally or commercially.\u2019 \u201d (quoting Maloney, 45 N.C. App. at 178, 262 S.E.2d at 684)).\nPrior to giving the challenged testimony, Straw testified that he held a Bachelor of Science Degree in environmental science and that he has completed professional training and course work in the areas of vibration and acoustics, airport noise modeling, and explosives. Straw testified that he was currently serving as vice president and area manager of the Florida Office for GeoSonics, and he had worked for GeoSonics and its predecessor company for 31 years. Straw testified that GeoSonics operates to determine the effects on structures from blasting activities in the construction and mining industries, to complete traffic vibration studies, and to evaluate the effects of implosion upon structures. Straw stated that in working for GeoSonics, he had monitored ground vibration and air overpressure produced by blasting activities at quarries, completed noise evaluations for quarries, completed preconstruction or preblast inspections for mining operations, and performed projections of future blasts based upon existing data. Straw testified that he, like the other individuals employed by GeoSonics, is an \u201capplied seismologist\u201d who studies either manmade or natural ground vibration and air overpressure levels caused by blasting activities and other sources. Specifically, Straw stated that he takes measurements and relates the information collected to determine the effects of those parameters upon adjacent structures. Straw further stated that he maintained responsibilities for GeoSonics\u2019 Raleigh, North Carolina, office and that he had previously testified in North Carolina as an expert on the effects of ground vibration caused by blasting.\nGiven these credentials, we discern no abuse of discretion by the ALJ in admitting Straw\u2019s expert testimony. We are not persuaded by petitioners\u2019 argument that Straw, in preparing the report for Harrison and in testifying as to his conclusions in the report, was illegally engaged in the practice of engineering or geology. Numerous statutes regulate the practice of various professions in this State. See, e.g., N.C. Gen. Stat. Ch. 87 (Contractors), Ch. 88B (Cosmetic Art), Ch. 89C (Engineering and Land Surveying), Ch. 89E (Geologists), Ch. 90 (Medicine and Allied Occupations), Ch. 90B (Social Workers). The overarching purpose of these statutes is to protect the public from incompetent persons purporting to practice a given profession. See, e.g., Ron Medlin Constr. v. Harris, 364 N.C. 577, 586, 704 S.E.2d 486, 492 (2010) (\u201cThe purpose of the licensing statutes is to protect consumers from incompetent contractors.\u201d); Bryan Builders Supply v. Midyette, 274 N.C. 264, 270, 162 S.E.2d 507, 510-11 (1968) (\u201cThe purpose of Article 1 of Chapter 87 of the General Statutes, which prohibits any contractor who has not passed an examination and secured a license as therein provided from undertaking to construct a building costing $20,000.00 or more, is to protect the public from incompetent builders.\u201d); McArver v. Gerukos, 265 N.C. 413, 416, 144 S.E.2d 277, 280 (1965) (purpose of statute requiring licensure of real estate brokers and real estate salesmen is to \u201cprotect sellers, purchasers, lessors and lessees of real property from fraudulent or incompetent brokers and salesmen\u201d). The fact that a professional is or is not \u201cpracticing a given profession\u201d does not hinder his ability to testify as an expert in most instances. Indeed, the Legislature has undertaken to specify when testimony by a licensed professional is required. See, e.g., N.C. Gen. Stat. \u00a7 8C-1, Rule 702(b) (licensed physician required to testify as to the appropriate standard of health care in medical malpractice actions).\nRather, our Courts have upheld a trial court\u2019s or administrative law judge\u2019s decision to qualify an expert on a particular subject, despite that the expert is not \u201clicensed\u201d pursuant to statute. In Kenney v. Medlin Construction & Realty, 68 N.C. App. 339, 315 S.E.2d 311 (1984), this Court found no abuse of discretion in the trial court\u2019s determination that a contractor\nwho had been involved in building more than 200 residences, including eight to twelve in plaintiff\u2019s subdivision, was an expert, better qualified than the jury to form an opinion as to the quality of workmanship and damage resulting from the construction of plaintiff\u2019s house. That [the contractor] was not a licensed contractor does not render his opinion testimony inadmissible.\nId. at 342-43, 315 S.E.2d at 314 (emphasis added); see also Rutherford v. Air Conditioning Co., 38 N.C. App. 630, 641-42, 248 S.E.2d 887, 895 (1978) (upholding expert opinion testimony by electrical engineering professor). In State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995), our Supreme Court likewise held that \u201c[n]urses are qualified to render expert opinions as to the cause of a physical injury even though they are not licensed to diagnose illnesses or prescribe treatment, and there is no basis for any preference of licensed physicians for such medical testimony.\u201d Id. at 294, 457 S.E.2d at 858.\nAccordingly, we agree with this Court\u2019s reasoning in Maloney, 45 N.C. App. 172, 262 S.E.2d 680:\nThe common law . . . does not require that the expert witness on a medical subject shall be a person duly licensed to practice medicine .... Except as an indirect stimulus to obtain a license, such a rule is ill-advised, first, because the line between chemistry, biology, and medicine is too indefinite to admit of a practicable separation of topics and witnesses, and, secondly, because some of the most capable investigators have probably not needed or cared to obtain a license to practice medicine.\nId. at 178, 262 S.E.2d at 683-84 (ellipses in original) (citation omitted). In accordance with this rationale, the law in this state does not require a testifying scientific expert to be a person duly licensed to practice in a particular field. Indeed, petitioners\u2019 own expert, Blevins, a licensed professional engineer in North Carolina, testified that he was unaware of any requirement that a blasting analysis be performed by, certified by, or completed under the direction of a licensed engineer.\nWe conclude likewise and hold that the fact that Straw was neither a licensed engineer nor a licensed geologist did not render his expert testimony either \u201cillegal\u201d or inadmissible, and, in light of Straw\u2019s demonstrated expertise in the study of ground vibration and its effect on structures, Straw\u2019s expert testimony was properly admitted. Petitioners\u2019 argument on this issue, therefore, is without merit. Although petitioners also attempt to argue that Straw\u2019s testimony must be excluded on the basis that his methodology was unreliable, this argument is not properly before this Court and was abandoned by petitioners, as they did not present such an argument to the court below and appear to have actually conceded this issue at the contested case hearing.\nIV. Exclusion of Evidence\nIn their second argument on appeal, petitioners argue the trial court erred in rejecting their arguments regarding certain evidentiary rulings made by the ALL Evidentiary issues are reviewed de novo on appeal from a final agency decision. Sack, 155 N.C. App. at 493, 574 S.E.2d at 127-28.\nFirst, petitioners contend they should have been allowed to present evidence of alleged communications between representatives of Harrison and the county manager in 1989 and between representatives of Harrison and petitioners in 1999. Petitioners assert that in both instances, representatives of Harrison made assurances that the mining operation would not expand beyond the limits established in prior permitting proceedings. Petitioners argue such evidence was relevant to DLR\u2019s consideration of the permitting denial criteria set forth under N.C. Gen. Stat. \u00a7 74-51(d).\nHowever, none of the seven denial criteria address the existence, enforcement, or consideration of private agreements between a permittee and adjacent landowners or other private individuals concerning the permittee\u2019s plans for expansion of its mining operation. To the extent petitioners contend such assurances or misrepresentations violate N.C. Gen. Stat. \u00a7 74-64(b) (2011), thereby implicating denial criterion seven, their arguments are misguided. Denial criterion seven allows DLR to deny a permit modification if the applicant has not been in substantial compliance with the Mining Act or any rules adopted thereunder, and such noncompliance resulted in, inter alia, \u201c[cjonviction of a misdemeanor under G.S. 74-64.\u201d N.C. Gen. Stat. \u00a7 74-51(d)(7)(c). N.C. Gen. Stat. \u00a7 74-64(b) imposes a criminal penalty upon \u201cany operator who engages in mining in willful violation of the provisions of [the Mining Act] or of any rules promulgated hereunder or who willfully misrepresents any fact in any action taken pursuant to this Article or willfully gives false information in any application or report required by this Article[.] Id. (emphasis added). Harrison\u2019s alleged misrepresentations to petitioners and to the county manager are not equivalent to a misrepresentation to DLR in its actions to seek, modify, or renew its permit under the Mining Act. Moreover, denial criterion seven requires a \u201c[c]onviction\u201d under this statute. Petitioners\u2019 evidence does not demonstrate a criminal violation of the Mining Act, nor a conviction therefor. Accordingly, petitioners\u2019 evidence regarding these alleged misrepresentations by Harrison representatives was not relevant to DLR\u2019s consideration of the denial criteria and was properly excluded.\nSecond, petitioners argue they should have been allowed to introduce evidence concerning Harrison\u2019s history of Mining Act violations, which petitioners argue likewise implicates review criterion seven.\nHowever, petitioners have not demonstrated that the list of violations they sought to introduce into evidence are pertinent to review criterion seven. In order for review criterion seven to be implicated, the evidence must show:\nThat the applicant or any parent, subsidiary, or other affiliate of the applicant or parent has not been in substantial compliance with this Article, rules adopted under this Article, or other laws or rules of this State for the protection of the environment or has not corrected all violations that the applicant or any parent, subsidiary, or other affiliate of the applicant or parent may have committed under this Article or rules adopted under this Article and that resulted in [revocation of a permit; forfeiture of part or all of a bond or other security; or monetary fines, conviction of a misdemeanor, or any other court ordered action under N.C. Gen. Stat. \u00a7 74-64],\nN.C. Gen. Stat. \u00a7 74-51(d)(7). The evidence offered by petitioners does not demonstrate a lack of \u201csubstantial compliance\u201d over the lifetime of Harrison\u2019s mining operation, nor does the evidence show that Harrison failed to correct any of the violations alleged. Notably, the record demonstrates Harrison\u2019s mining operation has not suffered any of the penalties specified in review criterion seven as a result of petitioners\u2019 alleged violations. We also note that certain evidence of Harrison\u2019s violations, including sedimentation in a nearby lake and a complaint regarding Harrison\u2019s blasting was received into the record and considered by the ALJ. Thus, we conclude petitioners\u2019 argument is without merit.\nThird, petitioners argue they were not allowed to present seismograph readings recorded at their residence following DLR\u2019s approval of Harrison\u2019s permit modification in January 2008. However, we conclude such evidence was properly excluded, as it neither was relevant to a review of the correctness of DLR\u2019s decision to approve the permit modification nor demonstrated a violation of the blasting limits established in the permit. In addition, the evidence was cumulative of other evidence presented by petitioners.\nHere, Harrison placed a seismograph on petitioners\u2019 property for the purpose of recording and monitoring the vibration levels resulting from its mining operations. Petitioner Rufus Stark testified at the hearing that the seismograph produced a reading after every blast. All readings recorded by the seismograph prior to' DLR\u2019s approval of Harrison\u2019s permit modification were admitted into evidence. However, those readings taken after DLR\u2019s approval of Harrison\u2019s permit modification were excluded on the basis that such evidence was not relevant to a review of the propriety of DLR\u2019s decision to approve the permit modification. We agree.\nPetitioners initiated the contested case hearing below pursuant to N.C. Gen. Stat. \u00a7 74-61, which allows an \u201caffected person\u201d to contest DLR\u2019s decision to \u201cdeny, suspend, modify, or revoke a permit[.]\u201d Id. We fail to see how evidence that came into existence after DLR had made its contested decision is relevant to a review of the propriety of DLR\u2019s actions in approving the permit modification.\nIn support of their argument that such evidence was properly admissible at the contested case hearing, petitioners rely on this Court\u2019s opinion in Robinson v. DHHS, __ N.C. App. _, 715 S.E.2d 569 (2011). In Robinson, the petitioner, Robinson, a mentally and physically disabled man, was denied the level of Medicaid coverage requested by his case manager by the respondent Department of Health and Human Services (\u201cDHHS\u201d). Id. at _, 715 S.E.2d at 569-70. Accordingly, Robinson appealed the agency\u2019s decision to the OAH and a contested case hearing was held. Id. at_, 715 S.E.2d at 570. At the hearing, Robinson presented testimony by his treating physician and an evaluating psychologist, both of whom supported the level of Medicaid coverage requested in Robinson\u2019s case plan. Id. However, such evidence had not been presented to or considered by the agency before making its initial decision to modify and reduce Robinson\u2019s services. Id.\nOn appeal, this Court held that the administrative law judge could properly admit Robinson\u2019s evidence, having found \u201cno . . . regulation in the Medicaid context which would prohibit the AU from considering additional evidence regarding a petitioner\u2019s medical needs.\u201d Id. at _, 715 S.E.2d at 572. Indeed, the Court in Robinson recognized that the General Assembly had recently enacted a provision expressly allowing for the consideration of additional evidence in contested Medicaid cases, although we note that this provision did not apply in the Robinson decision. Id. at_n.3, 715 S.E.2d at 572 n.3. In addition, this Court supported its decision in Robinson with the policy rationale that, in contested Medicaid cases, disallowing a petitioner to present additional evidence at a contested case hearing would \u201cdeny Medicaid recipients meaningful input at any stage of the processf.]\u201d Id. at_, 715 S.E.2d at 572 (internal quotation marks omitted). This Court reasoned:\nPrior to its initial decision, the agency only requests documents from a Medicaid recipient\u2019s case manager. Therefore, any failure to submit the relevant medical evidence necessary to support the case plan would be on the part of the case manager, who is also an agent of the State. Thus, if a recipient is barred from presenting additional evidence to the ALJ during a contested hearing, there is no way to remedy any deficiencies in the presentation of his case plan and to have a meaningful opportunity to be heard.\nId.\nWe conclude the Robinson decision is readily distinguishable on its facts, and its holding is therefore inapplicable to the facts of the present case. Robinson was decided in the context of contested Medicaid cases in which a petitioner is afforded no input during the process until initiating a contested case hearing. Here, however, prior to DLR\u2019s decision to approve Harrison\u2019s permit modification under the Mining Act, petitioners had ample opportunity to participate, and did in fact participate, in DLR\u2019s permitting review process. Petitioners attended the public hearing in this matter at which they presented their concerns regarding the damage to their home resulting from Harrison\u2019s blasting at the Hayesville Quarry, and petitioners likewise presented written comments concerning the same to DLR following the public hearing. In addition, petitioners had the opportunity to present evidence addressing the correctness of DLR\u2019s decision to issue the permit modification based on circumstances existing before or at the time of the agency decision. Petitioners therefore had a meaningful opportunity to participate in the agency\u2019s decision-making process and to present evidence on their own behalf prior to the agency\u2019s determination to approve the permit modification. Thus, petitioners\u2019 reliance on Robinson in support of their argument in the present case is misplaced.\nPetitioners also rely on this Court\u2019s decision in Clark Stone Co. v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 164 N.C. App. 24, 594 S.E.2d 832 (2004), in support of their argument that post-permit evidence is admissible in a contested case hearing under the Mining Act. Again, however, petitioners\u2019 reliance on the decision in Clark Stone is misguided, as the decision in Clark Stone is distinguishable on its facts. In Clark Stone, DENR had issued a mining permit to the petitioner, Clark Stone Co., to conduct mining operations on land in Avery County, North Carolina. Id. at 27, 594 S.E.2d at 834. However, following the issuance of the permit, DENR became aware that the mining operation was within visual and audible range of the Appalachian Trail. Id. After learning of the mining operation\u2019s proximity to the Appalachian Trail, DENR initiated an investigation into the matter. Id. As a result of its post-permit investigation, DENR decided to revoke the petitioner\u2019s permit on the grounds that the mining operation had a significantly adverse effect on the Appalachian Trail in violation of the Mining Act. Id. at 29-30, 594 S.E.2d at 836. Accordingly, Clark Stone Co. filed a petition for a contested case hearing to review DENR\u2019s decision. Id. at 26, 594 S.E.2d at 834.\nWe first note that no issue concerning the reception of post-permit evidence was raised on appeal in Clark Stone, and therefore, the opinion contains no holding directly on point. In \u00e1ddition, to the extent petitioners rely on Clark Stone because post-permit evidence was received at the contested case hearing in that case, the decision being reviewed in Clark Stone was markedly different from the decision being reviewed in the present case. The issue in Clark Stone was whether DENR improperly revoked the mining permit at issue. The revocation necessarily was based on evidence discovered after the initial issuance of the permit, during DENR\u2019s post-permit investigation, and was therefore relevant to review of the agency decision at issue. Such is not the case here. Here, the issue concerns the correctness of the issuance of the permit in the first instance. Thus, unlike Clark Stone, evidence collected after the permit modification was issued is not relevant to a review of the agency\u2019s decision.\nFurther, the record indicates petitioners\u2019 excluded evidence was cumulative of other evidence admitted at the contested case hearing. Petitioners\u2019 evidence concerning the seismograph readings in the present case appear to have been introduced to rebut and/or discredit Straw\u2019s projections concerning the range of expected ground vibration levels. Specifically, based on his regression analysis, Straw concluded that for 95% of blasts with an explosives weight of 327 pounds, ground vibration would be less than .303 inches per second. Petitioners\u2019 seismograph readings, taken after DLR\u2019s approval of Harrison\u2019s permit modification, tended to show occasions where Straw\u2019s projections had been exceeded. Nonetheless, Blevins testified that on two occasions, prior to the issuance of the permit modification, he found Straw\u2019s predictions had been exceeded. Thus, the seismograph readings showing more occurrences of what Blevins had already testified to were merely cumulative and would not have significantly strengthened petitioners\u2019 contentions.\nFinally, petitioners have presented no argument that the seismograph readings demonstrate the blasting limits established in the permit modification approved by DLR, which petitioners have not challenged on appeal, were exceeded by Harrison, thereby demonstrating a violation of the Mining Act. We note that the provisions of the Mining Act in no way \u201crestrict or impair the right of any private or public person ... to bring any legal or equitable action for redress against nuisances or hazards.\u201d N.C. Gen. Stat. \u00a7 74-66 (2011). Although petitioners\u2019 post-permit seismographic evidence is not relevant to a review of the correctness of the agency decision at issue in the present case, such evidence may be more appropriately introduced in a private action for relief. Thus, we hold petitioners\u2019 proffered evidence was properly excluded from the contested case hearing.\nV. Review of Agency Decision\nFinally, petitioners argue that \u201cunrebutted\u201d evidence presented at the hearing establishes that Harrison\u2019s application for modification should have been denied based on multiple review criteria. Accordingly, petitioners contend the agency\u2019s decision is unsupported by substantial evidence in the record and is arbitrary and capricious. We review petitioners\u2019 final argument challenging the agency\u2019s decision under the whole record test. N.C. Gen. Stat. \u00a7 150B-51(c).\nPursuant to the terms of the Mining Act, \u201c[a]n operating permit may be modified from time to time to include land neighboring the affected land, in accordance with procedures set forth in G.S. 74-52.\u201d N.C. Gen. Stat. \u00a7 74-50(a) (2011). Under N.C. Gen. Stat. \u00a7 74-52 (2011), the terms and conditions of a permit may be modified \u201conly where the Department determines that the permit as modified would meet all requirements of G.S. 74-50 and [G.S.] 74-51.\u201d Id. \u00a7 74-52(c) (alteration in original).\nUpon review of a permit application or application for permit modification, DLR considers the seven denial criteria enumerated under N.C. Gen. Stat. \u00a7 74-51(d):\n(d) The Department may deny the permit upon finding:\n(1) That any requirement of this Article or any rule promulgated hereunder will be violated by the proposed operation;\n(2) That the operation will have unduly adverse effects on potable groundwater supplies, wildlife, or fresh water, estuarine, or marine fisheries;\n(3) That the operation will violate standards of air quality, surface water quality, or groundwater quality that have been promulgated by the Department;\n(4) That the operation will constitute a direct and substantial physical hazard to public health and safety or to a neighboring dwelling house, school, church, hospital, commercial or industrial building, public road or other public property, excluding matters relating to use of a public road;\n(5) That the operation will have a significantly adverse effect on the purposes of a publicly owned park, forest or recreation area;\n(6) That previous experience with similar operations indicates a substantial possibility that the operation will result in substantial deposits of sediment in stream beds or lakes, landslides, or acid water pollution; or\n(7) That the applicant or any parent, subsidiary, or other affiliate of the applicant or parent has not been in substantial compliance with this Article, rules adopted under this Article, or other laws or rules of this State for the protection of the environment or has not corrected all violations that the applicant or any parent, subsidiary, or other affiliate of the applicant or parent may have committed under this Article or rules adopted under this Article and that resulted in:\na. Revocation of a permit,\nb. Forfeiture of part or all of a bond or other security,\nc. Conviction of a misdemeanor under G.S. 74-64,\nd. Any other court order issued under G.S. 74-64, or\ne. Final assessment of a civil penalty under G.S. 74-64.\nId. Notably, N.C. Gen. Stat. \u00a7 74-51(e) provides: \u201cIn the absence of any finding set out in subsection (d) of this section, or if adverse effects are mitigated by the applicant as determined necessary by the Department, a permit shall be granted.\u201d Id. (emphasis added).\nPetitioners premise their arguments on a construction of the statute that where \u201cunrebutted evidence\u201d implicates any of the seven denial criteria, such evidence \u201crequire[s] denial of a permit.\u201d Petitioners\u2019 construction of the statute is entirely inconsistent with its literal language. Rather, the statute plainly states that DLR \u201cmay\u201d deny a permit upon a finding that any of the seven criteria are met. However, DLR is required to issue the permit if it makes no finding that any of the seven criteria are implicated or if DLR finds that any such implicated criteria can and will be mitigated by the applicant. Here, DLR found none of the seven criteria are implicated, and that, to the extent any of the criteria are implicated, any adverse effects will be mitigated by Harrison as required under the terms of the permit modification.\nNonetheless, petitioners argue their evidence unequivocally indicates that criteria one, two, four, five, six, and seven were violated, and therefore, the permit modification should not have been granted.\nRegarding criterion one, petitioners argue removing the mountain top and destabilizing mountain slopes violate the Mining Act\u2019s stated purposes. The Mining Act provides that its purposes are to provide:\n(1) That the usefulness, productivity, and scenic values of all lands and waters involved in mining within the State will receive the greatest practical degree of protection and restoration.\n(2) That from June 11, 1971, no mining shall be carried on in the State unless plans for such mining include reasonable provisions for protection of the surrounding environment and for reclamation of the area of land affected by mining.\nN.C. Gen. Stat. \u00a7 74-48 (2011). Petitioners have not shown that an adequate reclamation plan is not in place to restore the land in compliance with the Act, and there is no evidence in the record indicating that an adequate reclamation plan was not considered by DLR. Thus, petitioners\u2019 argument as to this criterion is without merit.\nRegarding criterion two, petitioners argue the lay testimony of petitioner Rufus Stark established that there is decreased wildlife in the area as a result of Harrison\u2019s mining operation. However, petitioners ignore that both the U.S. Fish and Wildlife Service and the N.C. Wildlife Resources Commission had no objections to the permit modification based upon any threats to wildlife. Specifically, the U.S. Fish and Wildlife Service informed DLR of its opinion that the proposed permit modification would not have any adverse effect on federally listed species. The only concerns raised by the U.S. Fish and Wildlife Service, as well as the N.C. Wildlife Resources Commission, addressed the parameters of the reclamation plan. The record evidence shows these concerns were addressed through revisions to the reclamation plan. Thus, petitioners\u2019 argument as to this criterion is without merit.\nRegarding criterion four, petitioners argue that their expert, Feinberg, provided the only competent evidence concerning the damaging effects of Harrison\u2019s blasting to their home and that Feinberg\u2019s testimony established that Harrison\u2019s blasting is causing structural damage to their home. Specifically, Feinberg testified that he had visited petitioners\u2019 home and had observed various defects at the residence. Feinberg testified that, in his opinion, cracks he observed in the tile floor of petitioners\u2019 home were \u201cdue to movement\u201d and that it was \u201cpossible that [the cracks were] caused by the effects of blasting.\u201d Feinberg also testified that he observed separation of the windows on petitioners\u2019 home and opined that such separation was \u201ccaused by blasting damage\u201d because he \u201ccouldn\u2019t explain the separation in any other way.\u201d Feinberg stated that he felt \u201cvery strongly\u201d that the cracks in the tile floor had been caused by Harrison\u2019s blasting and that other cracks observed around the home could have been \u201caggravated\u201d by the blasting. However, Feinberg later testified that it was \u201cpossible\u201d that the damage observed could have been the result of causes other than blasting. Moreover, Feinberg testified that none of the damage he observed at petitioners\u2019 residence currently posed a threat to the structural integrity of the home. Notably, criterion four requires evidence of a \u201cdirect and substantial physical hazard\u201d to the home. Further, petitioners\u2019 other expert, Blevins, as well as Straw, testified that the blasting limits established in the permit modification were conservative limits consistent with the standards adopted by the U.S. Bureau of Mines and are generally considered to be protective of adjacent structures. Simons testified that DLR included the most stringent limits within the permit modification so as to protect the nearest structure, petitioners\u2019 home, from damage. Furthermore, the record shows DLR incorporated certain operating conditions into the permit modification to minimize any potential structural damage that might result from blasting. In light of the evidence as a whole, petitioners\u2019 argument as to this criterion must fail.\nRegarding criterion five, petitioners argue Simons\u2019 testimony established that Harrison\u2019s mining operation diminished the scenic value of the public parks in the area. However, there is no evidence in the record demonstrating that the \u201cpurposes\u201d of these public parks or their use and enjoyment are affected by Harrison\u2019s blasting. In addition, the record evidence indicates that Harrison proposed, and DLR accepted Harrison\u2019s proposal as sufficient, to establish a tree line in order to minimize any scenic effects resulting from the mining operation. Further, the record discloses there is no audible noise resulting from the blasting that can be heard at the public parks in question. These facts are readily distinguishable from those in Clark Stone, on which petitioners\u2019 rely, where the purpose of the Appalachian Trail, the public park area at issue in that case, was to provide a pristine wilderness experience and the mining operation at issue was within both visual and audible proximity to the Trail. Clark Stone, 164 N.C. App. at 27, 32-33, 594 S.E.2d at 834, 837-38. Thus, petitioners\u2019 argument as to this criterion is without merit.\nRegarding criterion six, petitioners argue Simons\u2019 testimony likewise established that the groundwater flow will be affected by Harrison\u2019s blasting activities and that no examination of the effect on groundwater resulting from Harrison\u2019s mining operation was presented by Harrison or DLR at the contested case hearing. To the contrary, however, DLR incorporated operating conditions into the permit modification requiring efforts by Harrison to mitigate any groundwater concerns, consistent with the Mining Act. In addition, a groundwater evaluation provided by Geological Resources, Inc. indicated no significant adverse impact on groundwater resulting from Harrison\u2019s mining operation. Thus, petitioners\u2019 argument as to this criterion is without merit. Petitioners\u2019 remaining argument as to criterion seven is likewise without merit, as the record clearly discloses no prior mining violations by Harrison that resulted in any of the measures detailed under that criterion.\nAccordingly, based on our review of the entire record in this case, we conclude the agency\u2019s decision was supported by substantial, competent evidence and was not arbitrary or capricious. Rather, as the AU properly concluded:\nA preponderance of the evidence presented in this matter indicates that [DLR]\u2019s decision to issue the subject permit modification was made after due consideration of the statutory factors set forth in N.C. Gen. Stat. \u00a7 74-51 and was correct and proper. The respondent did not act outside its authority, act erroneously, act arbitrarily or capriciously, use improper procedure, or fail to act as required by law or rule in approving [Harrison]\u2019s application for modification of the mining permit.\nThus, we affirm the trial court\u2019s order affirming the agency\u2019s decision upholding DLR\u2019s decision to approve Harrison\u2019s permit modification.\nFinally, we note that, although petitioners attempt to \u201cincorporate by reference\u201d a multitude of arguments and challenges to findings of fact made in their petition for judicial review below, we dismiss any such arguments. Our scope of review on appeal is limited only to those issues for which argument and authority are presented within the appellate brief. N.C. R. App. P 28(a) (2012); see Fortner v. J.K. Holding Co., 319 N.C. 640, 641-42, 357 S.E.2d 167, 167-68 (1987); S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 615-16, 659 S.E.2d 442, 453 (2008).\nVI. Conclusion\nWe hold Straw\u2019s expert testimony was properly admissible in the present case, as Rule 702 does not require a testifying scientific expert to hold a license to practice a given profession in order for his expert testimony to be admissible. In light of Straw\u2019s demonstrated expertise in the study of ground vibration and its effect on structures, Straw\u2019s expert testimony was properly admitted under Rule 702 at the contested case hearing. In addition, we hold petitioners\u2019 excluded evidence concerning Harrison\u2019s alleged misrepresentations and Mining Act violations, as well as the seismograph readings taken after DLR approved Harrison\u2019s permit modification, were not relevant to a review of the propriety of the agency\u2019s decision and were properly excluded. We further hold that the record demonstrates that the agency\u2019s decision was supported by substantial, competent evidence and was not arbitrary or capricious. Accordingly, we affirm the trial court\u2019s order affirming the Final Agency Decision of the Mining Commission in the present case.\nAffirmed.\nJudges HUNTER, JR. (Robert N.) and ERVIN concur.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "Stark Law Group, PLLC, by Thomas H. Stark, for petitioner appellants.",
      "Attorney General Roy Cooper, by Assistant Attorneys General Sueanna P. Sumpter, Rufus Allen, and Special Deputy Attorney General Kathryn Jones Cooper, for the North Carolina Department of Environment and Natural Resources, Division of Land Resources, and the North Carolina Mining Commission respondent appellees.",
      "Roberts & Stevens, PA, by William Clarke; and Deborah Murphey, for Harrison Construction, Division of APAC Atlantic, Inc., respondent appellee."
    ],
    "corrections": "",
    "head_matter": "RUFUS STARK AND BETTY STARK, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, HARRISON CONSTRUCTION, DIVISION OF APAC ATLANTIC, INC., AND THE NORTH CAROLINA MINING COMMISSION, Respondents\nNo. COA12-449\nFiled 18 December 2012\n1. Witnesses \u2014 expert\u2014not licensed\nThe fact that a witness (Straw) at an administrative hearing concerning a mining dispute was neither a licensed engineer nor a licensed geologist did not render his expert testimony either \u201cillegal\u201d or inadmissible. In light of Straw\u2019s demonstrated expertise in the study of ground vibration and its effect on structures, his expert testimony was properly admitted.\n2. Administrative Law \u2014 contested case hearing \u2014 mining permit \u2014 misrepresentation\u2014not relevant\nEvidence regarding alleged misrepresentations by defendant Harrison Construction to petitioners and a county manager during a prior mining permit action was not relevant to the Division of Land Resources\u2019 (DLR\u2019s) consideration of the permit denial criteria in this case and was properly excluded.\n3. Administrative Law \u2014 mining permit \u2014 findings\u2014supported by evidence \u2014 not arbitrary\nA Division of Land Resources (DLR) decision to issue a permit for the expansion of a quarry was supported by substantial, competent evidence and was not arbitrary or capricious. DLR found none of the seven statutory criteria for denial, found that any adverse effects would be mitigated by defendant Harrison Construction, and was required by statute to issue the permit.\n4. Appeal and Error \u2014 preservation of issues \u2014 brief\u2014incorporation of arguments by reference \u2014 dismissed\nPetitioners\u2019 attempt to \u201cincorporate by reference\u201d a multitude of arguments and challenges to findings was dismissed. The Court of Appeals\u2019 scope of review is limited to those issues for which argument and authority are presented within the appellate brief.\nAppeal by petitioners from order entered 28 September 2011 by Judge James U. Downs in Clay County Superior Court. Heard in the Court of Appeals 27 September 2012.\nStark Law Group, PLLC, by Thomas H. Stark, for petitioner appellants.\nAttorney General Roy Cooper, by Assistant Attorneys General Sueanna P. Sumpter, Rufus Allen, and Special Deputy Attorney General Kathryn Jones Cooper, for the North Carolina Department of Environment and Natural Resources, Division of Land Resources, and the North Carolina Mining Commission respondent appellees.\nRoberts & Stevens, PA, by William Clarke; and Deborah Murphey, for Harrison Construction, Division of APAC Atlantic, Inc., respondent appellee."
  },
  "file_name": "0491-01",
  "first_page_order": 501,
  "last_page_order": 523
}