2007-05-10_ENFORCEMENT - C1981013

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IBLA 96-90R, 96-91R did not identify damage to the Tatum hcoe as a violation, even though a reference to 2 Colo. Code Regs. 4.20 was included in the TEN. 0341 does admit, however, that "much of the subsequent review in response to the Tatums' December 1994 request for informal review of OSM's initial decision focused on the question of whether or not the Tatums' home had been damaged by subsidence." (Petition at 6, n.5.) But OEM asserts "that issue was never part of the TEN for which DKUls response is being judged in this decision." Id. Although the TEN did not specifically allege damage to the Tatum' homme as a violation, the TEN did include a citation to 2 Colo. Code Regs. 4.20, which is entitled "Subsidence Control," and includes a subsection, 4.20.3, entitled "Surface Owner Protection." Moreover, the OEM Deputy Director in his January 18, 1995, "interim response" informed the Tatums that LM had cxmmitted to undertake a thorough technical investigation to determine whether BRI's mining operation had caused subsidence damage, that OEM would carefully, monitor EMG's investigation efforts, and that OEM would provide technical assistance to EM. Finally, he stated that following completion of the technical investigation, "we will review subsequent actions taken by the EMG and will promptly notify you of our decision in response to each ofithe violations alleged in the TEN." If, as OSM now asserts, the issue of damage to the Tatums' house "was never a part of the TEN," the question is why would EM and OEM, as explained by the OSM Deputy Director, seek to undertake an extensive investigation of that very issue? We believe the answer is that subsumed in the TEN was the issue of subsidence damage to the residence, which was understood by all parties to be at issue and was being investigated by all parties. In his September 18, 1995, decision, the Regional Director, Western Regional Coordinating Center, OEM, stated that "the State has concluded that the Tatum residence is not within an area where mine subsidence is occurring or has occurred. This is the same conclusion reached by each of three OSM experts reviewing the site conditions and modeling analysis. I concur with their determination." He further stated that "I find that the AEU Director properly detezmined that EMG's response to the alleged violation 1 of 3 relating to damage to Your residence cue to s??bsLderze contained in the ten-day notice constituted appropriate action." (EaT)hasis added.) l/ l/ In this case, there was no enforcement or other action by DM to cause the violation to be 'corrected. The reason is that EMG found no violation. Accordingly, OEM should have concluded that EMG's response constituted "good cause" for failure to take action because, in accordance with 30 C.F.R. § 842.11(b)(i)(B)(4)(i), under the State program the violation did not exist. See Betty L. & Moses Tennant, 135 IBLA 217, 227-28 (1996); Patricia A. Marsh, 133 IBLA 372, 376-77 (1995). i 3