ENFORCE21661

• Permit No: C1981013
• IBM Index Class Name: Enforcement
• Doc Name: WRIGHT WATER ENGINEERS EXHIBIT A-U
• Violation No.: CV2000009
• Media Type: D
• Archive: No

1BLr1 96-90R, 96-91R
We reject OSM's position in its petition that damage to the Tatums'
house was not an i55ue i11 the I'ZG.
jTnrLar the regulations at 43 C.E.R. § 4.21(c), reconsideration of a
decision may be granted only in extraoz[linaxy dreumstances where, in the
judgement of the Director of the office of Hearings and P{~peal or an
Appeals Hoard, sufficient reason appears therefor. Wre will pvam~nea Cfl~f's
petition in light of this standard.
In the petition, 0.Qi states its 2~elief *_hat the Boazrt's decision
~yfainc significant errors of .law, the first of which it asserts relates
to the fpllowing language from the decision:
Yie believe, however, that the present record establishes by
a p*PpoTM+n*arx.e of the evidence that a violation did exist.
At~ellants have presented a decision issued by a Colorado State
wort (James {Jim) Tatum and An•~ Tatum v. Basin Resources, Inc.,
No. 92 CV 127 (L~c. 1, 1997)) in a case involving than and H.RZ.
Although neither *~ nor os<•1 Norse parties to that prooeedis:g, tha
~Ylge detetm:ira:d that subsidence caused by BRI's m;^in; operation
dial, in fact, damage appellants' residenca. Suc1i a fluding
establishes a violation of the Colorado State program under 2
Colo. Code Begs. 4.20, as dted ir. the TfN.
151 IBIA at 308. oSM alleges tt+at the Board's statement iaplieS that a
mpse finding that stiiosidence-related damage has occurred is sufficient to
a _*inriin~ of violation of the state pxvgram. C83 ornztes:ds that the
proper standard is rot whether damage has occurred but whether the person
who has been subjected to subsidence-related damage has been ~uated
!br the damage. 2/ It states that bPrause Judge M~~~a*~res' determined the
amount of g~pr~ation due anti Basin paid it, na violation exists.
2/ The appla.cable State regulation, 2 Colo. Code Begs. § 4.20.3(2) (7991),
specifically provides, in pertinent part, that:
Eat: parson s'~:a av~.:d_s u~-rlr'ound mi*it*~g activities whidl
result in 5uk~sidence that causes material damage * * * sha11,
with respect to each ~~.rface area affected by subsidence:
{a) Restore, rehabilitate, or move and replace each
damage3 stzuctl;re ~ * * prmptly after damage is suffered, to the
amdition it Mould be as if ro subside~e had ocxuzzed * *:
(b) Purck:ase the damaged stn:cture * * + for its fair
market, presubsidence value ~ * *; or
(c) Each parson who o~uC'ts urderg'btmd mining activities
will ~Ipensake the owner of any surface structus~e in full amount
of the disir:tticn in value resulting frCm subsidence * • *.