Laserfiche WebLink
n\• Ill v. V. vJ. llr-<t/~ II .1. _I,I'\I ~ .111;1 _:1y :~: 111;y, <br />U. G. &~. : N a <br />IBLA 96-90A, 96-9IA <br />did not identify damage to the Tattsn home as a violation, even though a <br />reference to 2 Colo. Code Regs. 4.20 was included in the TIN. 0.41 does <br />acbnit, hrxever, that 'touch of the subsequent review In response *.n the <br />Tatu~S' Decenber 1999 request for informal review of COI's initial decision <br />focased on the question of whether or cot the TatumS' hone had been damaged <br />by subsidence." (Petition at 6, n.5.) Hut CsNi asserts "that issue was <br />never part of the TTN for which ISZ;'s response is being judged in this <br />decisirn." Id. <br />Althourh the TLN did net specifically allege damage to the Tatutrs' <br />home as a violation, the TIN did include a citation to 2 Cola. Code Rags. <br />9.20, whidi is entitled "Subsidence CUntivl," at~d inCl-odes a suLtisection, <br />4.20.3, entitled "9urface Owner Protection." Moreover, the Cad Deputy <br />Director in his Jarvary 18, 1995, "interim response" informed the Tatums <br />that >~ had crmaitted to ia~dertaxe a ttnrouc>h rectu,ical investiaati.ca~ to <br />deYa.~nina y,}y~~p„r $R=~g ~ininrt operation had caused subsidence damage, that <br />C3S would carefully monitor ZHG's i~estigatian efforts, arri that G33 r•CUld <br />provide teciuLtCal assistance to RdG. finally, he stated that following <br />oc~pletlon of the ter~ulical investigation, "we will review subsequent <br />actions taken by the D`9G airl will pm~ptly notify you of our decision in <br />response to each of the iroiations alleged in the TiN." If, as CSS~1 now <br />asserts, the issue of damage to the Tatum' house "~ never a part of the <br />TIIS, " the question 15 why rrnild IZ~ and CH•L as explained by the CLSh1 <br />Director, seek to undertake an extensive im~estigation of that ~rY issue? <br />We believe the answer is that sukutm~ed in the 4TrI was the issue of <br />subsidence damage to the residence, which was iulderstood by all parties to <br />be at issue and was being investigated by all parties. <br />In his September 18, 1995, decision, the Regional Director, Western <br />Regional Coordinating Center, o5try stated that "the state has wncluded <br />that the Tatum residence is not within an area where mine subsidence is <br />occurring or has ooa:rred. This is the same conclusion readied by each of <br />three Chi experts reviewing the site conditions and moclelinq analysis. I <br />oo¢ux~r with their determination." He further stated .that "I find that the <br />AFp Direc!'.oz prvpez'ly de*e^"1~ that u~'s response to the alleged <br />violation 1 of 3 relating tG daaage to Szxx:r residence ch~e to s~ibsida~ <br />contained in the ten-day entice c~nsti.tuted appropriate action." (F~upbasis <br />added.) 1/ <br />1/ Ea this case, theme was m enforcaoent er other action by II~ to cave <br />the vi.olatiori to be corrected. The reason is that rte found no violation. <br />~*+~' ~lY, ~I should have cvrucltxied that Bb's response constituted <br />"good cause" for failure to take action because, in aco~rdance with 30 <br />C.F.R. § 842.11 (b) (ii) (8) t4} (i), under the State S.uogrdra the violation did <br />not exist. See Bett L. d Moses Tennant, 135 7ffiA 217, 227-28 {1996)s <br />Patricia A. 133 L3IA 372, 376-77 (!995). <br />3 <br />