2 Colo. Code Regs. § 407-2-8
This rule provides the detailed specifications for carrying out the Colorado Mine Subsidence Protection Program (the Program).
This rule includes the Colorado Mine Subsidence Protection Trust Agreement. Additional matters, such as: the eligibility of structures and property for coverage and exclusions from coverage under the Program; benefit limits for participating homeowners; costs of participation in the program; and, procedures for resolving disputes which may arise are also addressed in this rule.
The Colorado Mine Subsidence Protection Trust Agreement, Appendix A to this rule, provides the overall framework and basis for funding the Program.
Participation shall be limited to privately owned residential structures of one to ten units which have been constructed on eligible lands pursuant to an approved building permit dated on or before February 22, 1989. Eligible lands means lands that are eligible for reclamation funding under Section 404 of the Federal Surface Mining Control and Reclamation Act of 1977 (30 USC § 1234). Where a developer or landowner has, in good faith, constructed a home(s) after February 22, 1989 in an area shown on available maps as being free of mining, but which has subsequently been found to be undermined, this home(s) could be considered eligible for the Program.
Applicants for participation shall have their residential structures and surrounding property inspected and photographed by a company designated by the Plan Administrator. The cost of the inspection shall be paid by the applicant.
The applicant must submit a signed statement certifying the applicant's agreement with the inspection report as stated. The statement shall also certify that the applicant understands that pre-existing conditions are not eligible for benefits. Finally, the statement shall warrant that the homeowner applicant knows of no pre-existing damage, other than that contained in the report.
If the inspection report contains recommendations for repairing pre-existing damage, the Plan Administrator may require compliance with those recommendations and a subsequent reinspection before the applicant is granted participation status. In the event of extensive preexisting damage, the Plan Administrator may deny the applicant participation status.
The participant will receive a Notice of Participation from the Plan Administrator, after having signed the warranty and paid the invoice for the first annual administrative fee. The administrative fee shall be $35.00 per year. Upon receiving the administrative fee of $35.00 per year for three consecutive years, the participant shall not be required to pay any further annual administrative fees as long as the original participant owns the eligible property.
Nothing in this rule shall be construed to prohibit the Board of Trustees from using Trust Funds for such expenditures that will ensure the financial viability of the Trust and are in the best interest of the Trust, including defraying the cost of inspection for the homeowner.
An applicant shall be considered a participant in good standing once all requirements in 8.02.2 are fulfilled. Delinquency of more than 30 days in payment of the annual administrative fee shall result in suspension of participation status. Subsidence events that occur during a period of suspension will not be covered by the Program. Delinquency of more than 90 days in payment of the annual administrative fee shall result in expulsion from the Program. Re- admittance upon expulsion will require a reinspection of the homeowner's residential structure and property at the expense of the homeowner. The expelled participant may petition the Board for a waiver of the reinspection requirement. The Board reserves the right to accept or deny such petitioners.
Sale or transfer of the property shall dissolve the participation agreement unless a Notice of Transfer is filed with the Plan Administrator. If Notice of Transfer is filed within 90 days of such transfer or sale, coverage under the program shall continue without interruption. A fee of $35.00 shall be included with such Notice of Transfer.
Participation in the Program shall permit the participant to petition the Program for benefits from the Mine Subsidence Trust Fund through the Plan Administrator in the event of an eligible mine subsidence event.
Benefits under this rule are subject to the terms of the Colorado Coal Mine Subsidence Trust Fund, Appendix A, and to the sufficiency of the fund.
Beneficiaries may receive a maximum of $100,000 per occurrence subject to a $1,000 per occurrence deductible, or a maximum cumulative benefit due to subsequent subsidence events equivalent to the fair market value of the eligible property prior to subsidence. Maximum benefit and deductible amounts in effect from time to time shall be subject to modification and approval by the Board following formal public hearings and official revision of this rule. Benefits shall be used to repair the structure and shall be determined pursuant to Rule 8.04.3
The term "mine subsidence" as used in the Program means lateral or vertical ground movement resulting from the collapse of man made underground coal mines, which directly damages any dwelling, building or fixture permanently affixed to realty. Collapse of any other kind of mine is not "mine subsidence." Ground movement resulting from any other cause is not "mine subsidence." Benefits from the trust shall not supersede or duplicate any collectible insurance. Participants shall pursue any collectible insurance before benefits are determined. The amount of the benefit paid under the Trust shall be reduced by the amount of recovery on any other such insurance. Damage to residential structures resulting from perils similar to subsidence, such as swelling or collapsing soils or damage primarily due to inappropriate structural design or construction shall not be covered by the program.
The Program, funded through the Trust, shall provide benefits to participants in Colorado against damage to their structures caused by mine subsidence as described above. The term "structure" in this rule means any dwelling, residential building, appurtenant structure, including detached garages, breezeways, and carports, or fixture permanently affixed to realty, including its basements, footings, foundations, septic systems and underground pipes directly servicing the dwelling or building. The term structure does not include such items as landscaping or earth retaining structures, driveways, walkways or outdoor pools.
Payments for subsidence damages caused by all active mining, mines abandoned or inadequately reclaimed after August 3, 1977, and non-coal mining are specifically excluded under the Program.
A participant aggrieved by a determination of the Division or the Plan Administrator concerning the proximate cause of damage, the amount of benefit appropriate to particular subsidence damages, or related issues, may petition the Board for review of the determination, pursuant to Rule 8.04.2 . Decisions of the Board shall be subject to judicial review pursuant to § 24-4-106, C.R.S. (1984).
A participant in the Program shall notify the Plan Administrator of an event giving rise to a claim within 90 days of the subsidence event. Except for good cause, no payments shall be made if such notice is not given.
The Plan Administrator shall determine whether an event is eligible for benefits. The participant may dispute the determination by submitting a written notice of dispute with any evidence in support of the dispute to the Board within 30 days of the determination. Appeals will be considered as soon as practicable by the Board.
The Plan Administrator shall communicate to the participant the amount of the benefit. The Plan Administrator shall provide the participant with an estimate of the cost of repairs. Payment of the benefit shall be made to the participant upon completion of necessary repairs in a good and workmanlike fashion. The amount of benefits shall not exceed the actual cost of repairs minus the $1,000.00 deductible.
In the event that subsidence is on-going, final repairs may be delayed until the event has ceased. Any necessary work to minimize such on-going subsidence shall also be covered.
This section shall be subject to amendment by the Board. This section shall not apply to any subsidence event that occurs after such amendment.
2 CCR 407-2-8