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1151 Interior Dec. 286
<br />(Cite as: 151 Interior Dec. 286, *303, 2000 WL 1740340, **13 (D.O.I.))
<br />Page 14
<br />their State equivalents. Section 720 (a) of SMCRA provides, in relevant part,
<br />(that
<br />Underground coal mining operations conducted after October 24, 1992, shall
<br />comply with * * * the following requirements:
<br />**14 (1) Promptly repair, or compensate for, material damage resulting from
<br />subsidence caused to any occupied residential dwelling and structures related
<br />thereto * * * due to underground coal mining operations. Repair of damage shall
<br />(include rehabilitation, restoration, or replacement of the damaged occupied
<br />residential dwelling and structures related thereto * * *. Compensation shall be
<br />rovided to the owner of the damaged occupied residential dwelling and
<br />structures related thereto * * * and shall be in the full amount of the
<br />•diminution in value resulting from the subsidence.
<br />30 U.S.C. § 1309a(a)(1) (1994). To the same effect is 30 C.F.R. § 817.121(c)(2).
<br />~ "Material damage" is defined, in relevant part, as "(a]ny significant change
<br />din the condition, appearance or utility of any structure * * * from its pre-
<br />subsidence condition." 30 C.F.R. § 701.5. The applicable State regulation, 2
<br />~olo. Code Regs. § 4.20.3(2) (1991), specifically provides, in pertinent part,
<br />hat:
<br />Each person who conducts underground mining activities which result in
<br />subsidence that causes material damage * * * shall, with respect to each surface
<br />area affected by subsidence:
<br />(a) Restore, rehabilitate, or remove and replace each damaged structure
<br />* promptly after damage is suffered, to the condition it would be as if no
<br />subsidence had occurred * * *;
<br />(b) Purchase the damaged structure * * * for its fair market, presubsidence
<br />value * * *; or
<br />(c) Each person who conducts underground mining activities will compensate
<br />he owner of any surface structure in full amount of the diminution in value
<br />resulting from subsidence * * *.
<br />DMG concluded, with the concurrence of OSM, that BRI's First North Main
<br />snderground workings had not caused any damage to appellants' house as a result
<br />of mine subsidence. (Letter to OSM, dated Feb. 23, 1995, at 1; Letter to OSM,
<br />dated Aug. 23, 1995, at 1; Decision, dated Sept. 18, 1995, at 1-2.) DMG based
<br />~ts conclusion on the opinion of its expert, *304 James Pendleton, an
<br />engineering geologist, as well as of OSM's experts, Michael F. Rosenthal, Dr.
<br />Jesse L. Craft, and Dr. Kewal K. Kohli, all of whom inspected appellants' house
<br />on one or more occasions.
<br />Pendleton relied on the fact that there was no damage anywhere along the
<br />foundation of the house, either in the concrete walls and cement plaster coating
<br />bn the walls of the basement or in the rubble stone foundation, and that such
<br />~3amage was necessary to establish that the house had been subjected to mine
<br />subsidence. This was substantiated by Kohli. (Kohli Report at 1.) Likewise,
<br />Rosenthal stated that he had "never observed actual subsidence damage to a
<br />tructure where there has been no foundation involvement," thus ruling out mine
<br />subsidence as the cause of the damage to appellants' house. (Memorandum to File,
<br />gated Feb. 16, 1995.)
<br />In addition, Rosenthal noted that the "worst case subsidence [computer]
<br />modeling" he had done also indicated that mine subsidence was not the cause of
<br />Copr. ® West 2001 No Claim to Orig. U.S. Govt. Works
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