Laserfiche WebLink
occurred is sufficient to support a finding of a violation of the <br />State program. In fact, the correct standard is not whether <br />subsidence-related damage has occurred but whether the person who <br />has been subjected to subsidence-related damage has been <br />compensated for the damage. As noted by the Board in its <br />decision at 151 IBLA 286, 303, the applicable Colorado State <br />regulation is found at § 4.20.3(2)(c):. <br />(c) Each person who conducts underground <br />mining activities will compensate the owner <br />of any surface structure in full amount of <br />the diminution in value resulting from <br />subsidence. . <br />As provided in the State regulations, a coal mine operator <br />in Colorado is obligated to take all measures that are <br />technologically and economically feasible to prevent subsidence <br />from causing damage to surface features and structures. See <br />State regulations at § 4.20.3(1). The regulations take into <br />account, however, that it is possible that subsidence damage will <br />occur despite preventive measures. Because of this, the <br />regulations also provide that, should subsidence-related damage <br />occur, the operator is obligated to repair or compensate the <br />owner of the surface feature or structure. It is not a violation <br />of the State regulations for subsidence damage to occur, so long <br />as adequate preventive measures have been taken beforehand. It <br />is a violation of the State program to fail to repair or <br />compensate the owner for subsidence-related damage. <br />The board correctly noted that Colorado State court Judge <br />Jesse Man2anares found that "subsidence caused by BRI's mining <br />operation did, in fact, damage appellant's residence." 151 IBLA <br />286, 308. The Board erred, however, when it stated that "[s]uch <br />a finding establishes a violation of the Colorado State program <br />under 2 Colo. Code Regs. 4.20 as cited in the TDN." As noted <br />above, causing damage by subsidence is not necessarily a <br />violation of the Colorado State program. In fact, damage to the <br />Tatum home was not identified as a possible violation in the TDN. <br />See administrative record at volume III, tab 28. Neither the <br />Federal nor the State statutes and rules identified in the <br />Board's decision (see pages 298-300) include causing damage by <br />subsidence as a violation.' It is the failure to repair or <br />' As noted above, § 4.20.1 of the Colorado regulations does <br />require mine operations to be planned and conducted to prevent <br />subsidence from causing material damage to the extent technically <br />and economically feasible. That rule, however, was not cited by <br />the Board as being at issue in this case and the record indicates <br />3 <br />