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04/26/2007 15:35 7198460159 JIM TATIJM <br />damage related compensation, and not the unattainable option of repair, as <br />the means to abate the NOV. <br />The preamble to the I995 Federal Regulations clearly lays out the rationale <br />why a perraittee can promptly repair (if he chooses that option) the daiaxaged <br />structure. Namely, "th? pernaittee must fully rehabilitatq xestorc or replace <br />the damaged structure." The structure must be restored "to its premining <br />capacity, features, value, and utility." By not immediately repairing the <br />structure {outside of a limited time extension which maybe granted based on <br />tertiary settlement or adjacent mining, none of which are applicable w this <br />case) the damaged structure is left open to deterioration to the point where it <br />becomes impossible for any party to repair that Structure to the fit11 extant <br />required by the regulation. This is where w~ fmd ourselves today. <br />The damage to our home occurred in the late 1980's and again prior to <br />March, 2001. Basua/Westr~loreland refused to repair our home at that time. <br />In fact, even with the final Colorado Supreme Court ruling of August 30, <br />2006, they refused to address the damage to our home under any scenario, <br />until MLRD issued the NOV. Over the last 5 years our home has continued <br />to deteriurate to the extent that the diminution of value is now well over <br />$879,000.00. In other words it is a "total loss". We believe that at this late <br />date neither Basin/Westmorelaud, nor anyone else, could possibly repair our <br />home to the extent envisioned by the regulation. As such, <br />BasinlWestmoreland through its recalcitrance has forfeited the repair option <br />found within the regulation anal is only left with the requirement to <br />compensate us for the diminution of value. 'that value has been set by the <br />District Court, Colorado Court of Appeals, and the Colorado Supreme Court. <br />Basin/Westmoreland has used the State and Federal raining laws and <br />regulations and the full judicial process to stall and delay compliance with <br />the law and the rule of law. <br />4. MLRB was placed on notice by the United States Department of the <br />Interior, Office of Surface Mining in .Tune, 1996 and again in February 2007 <br />that the Colorado regulatory program must implement 30 CFR § 817,121 (c) <br />(5) which was required as a result of 1995 Federal regulations prozzaulgated <br />pursuant to Section 720 of SMCRA. 30 CPR § 817.121 (c) (5) requires the <br />pertnittee to post an additional performance bond within 90 days of the date <br />the subsidence damage occurred or, in no case, later than one year from that <br />date. MLRD has responded to OSM that Rule 3.02.2(4) iricorporates Clime <br />requirements of 30 CFR 817.121(c)(5). ~ <br />05 <br />4 <br />