Laserfiche WebLink
RCS BY: 1). G. &S., _ 4 -26- 7 • 3:03PNI 719S4601.59 -+ D. G. &S. :t/ 5 <br />• <br />damage related compensation., and .not the unattainable option of repair, as <br />the means to abate the NOV. <br />The preamble to the 1995 Federal Regulations clearly lays out the rationale <br />why a permittee can promptly repair (if he chooses that option) the d;E a6.aged <br />si'ettcture. Namely, "the permittee must fully 7rchabilitate, restore or replace <br />the damaged structure." The structure must be restored "to its premising <br />capacity, features, value, and utility," By not immediately repairing the <br />structure (outside of a limited time extension which may be granted based on <br />tertiary settlement or adjacent mining, none of which are applicable to this <br />case) the damaged structure is left open to c eterioration to the point where it <br />becomes impossible for any party to repair that structure to the full extent <br />required by the regulation. This is where wd find ourselves today. <br />The damage to our home occurred in the late 1980's and again prior to <br />Marct:, 2001. Basin/Westmoreland refused to repair our home at that time. <br />In fact, even with the final Colorado Supreme Court ruling of August 30, <br />2006, they refused to address the damage to our home under any scenario, <br />until MZ.,RD issued the NOV. Over the last 5 years our home has continued <br />• to deteriorate to the extent that the diminutioa of value is now well over <br />$879,000.00. In other words it is a "total ,loss ". We believe that at this late <br />date neither Basin/Westmoreland, nor anyone else, could possibly repair our <br />home to the extent envisioned by the regulation. As such, <br />Basin/Westmoreland through its recalcitrance has forfeited tlae repair option <br />found within the regulation and is only. left with the requirement to <br />compensate us for the diminution of value.. That value has been set by the <br />District Court, Colorado Court of Appeals, and the Colorado Supreme Court. <br />Basin/Westmoreland has used the State and Federal mining laws and <br />regulations and the full judicial process to stall and delay compliance with <br />the laNy and the rule of law, <br />4. MLRB was placed on notice by the United States Department of the <br />Interior, Office of Surface Mining in June, 1996 and agaki in February 2007 <br />that the Colorado regulatory program must implement 30 CFR § 817.121 (c) <br />(5) which was required as a result of 1995 Federal regulations promulgated <br />pursuant to Section 720 of SMCRA, 30 CFR § 817.121 (c) (5) requires the <br />permittee to post an additional performance bond within 90 days of the date <br />the subsidence damage occurred or, in no case, later than one year from that <br />date. MI L RD has m3ponded to OSM[ that Rule 3.02,2(4) incorporates the <br />requirements of 30 CFR 817.121(c)(5). i <br />4 <br />