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i <br />i <br />IBLA 96-90R, 96-91R <br />We reject OEM's position in its petition that damage to the Tatum' <br />house was not an issue in the TDN. <br />Under the regulations at 43 C.F.R. § 4.21(c), reconsideration of a <br />decision may be granted only in extraordinary circumstances where, in the <br />judgement of the Director of the Office of Hearings and Appeal or an <br />Appeals Board, sufficient reason appears therefor. We will examine OEM's <br />petition in light of this standard. <br />In the petition, OEM states its belief that the Board's decision <br />contains significant errors of law, the first of which it asserts relates <br />to the following language from. the decision: <br />We believe, however, that the present record establishes by <br />a preponderance of the evidence that a violation did exist. <br />Appellants have presented a decision issued by a Colorado State <br />court [James (Jim) Tatum and Ann Tatum v. Basin Resources, Inc., <br />No. 92 CV 127 (Dec. 1, 1997)] in a case involving then and BRI. <br />Although neither E1 U nor OEM were parties to that proceeding, the <br />Judge determined that subsidence caused by BRI's mining operation <br />did, in fact,.damage appellants' residence. Such a finding <br />establishes a violation of the Colorado State program under 2 <br />Colo. Code Regs. 4.20, as cited in the TEN. <br />151 IBLA at 308. 06M alleges that the Board's statement implies that a <br />mere finding that subsidence-related damage has occurred is sufficient to <br />support a finding of violation of the State program. OEM contends that the <br />proper standard is not whether damage has occurred but whether the person <br />who has been subjected to subsidence-related damage has been compensated <br />for the damage. 2/ 'It states that because Judge Manzanares' determined the <br />amount of ccmmpensat on due and Basin paid it, no violation exists. <br />2/ The applicable state regulation, 2 Colo. Code Regs. § 4.20.3 (2) (1991), <br />specifically provides, in pertinent part, that: <br />Each, person who conducts u_TMiderground miming activities which <br />result in subsidence that causes material damage * * * shall, <br />with respect to; each surface area affected by subsidence: <br />(a) Restore, rehabilitate, or remove and replace each <br />damaged structure * * * proaptly after damage is suffered, to the <br />condition it would be as if no subsidence had occurred * * *; <br />(b) Purchase the damaged structure * * * for its fair <br />market, presubsidence value * * *; or <br />(c) Each person who conducts underground mining activities <br />will compensate the owner of any surface structure in full amount <br />of the diminution in value resulting fram subsidence * * *. <br />4