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December 13, 2013 <br />To: Dan Hernandez <br />From: Leigh Simmons <br />Re: New Elk Mine (C- 1981 -012) <br />Notice of Violation (NOV) No. CV- 2013 -009 <br />Request for Assessment of Civil Penalty <br />On November 25, 2013, 1 issued a Notice of Violation to New Elk Coal Company LLC (NECC), for a <br />violation at the New Elk mine: CV- 2013 -009. <br />The violation was identified during a review of a survey which had been completed by NECC as part of <br />the abatement of an earlier violation (CV- 2013 -008); it is not directly linked to a particular inspection. <br />NOV CV- 2013 -009 was issued from the office on November 25, 2013. NECC received the notice on <br />December 2, 2013. The notice of violation was issued for failure to construct and maintain the RDA <br />upland diversion ditch in compliance with the approved design, in violation of Rules 4.09.2(7) and <br />4.10.3(2). <br />Pursuant to Rule 5.04.3(2), 1 am requesting that you determine the amount of the proposed civil penalty <br />for the violation. The notice of civil penalty is due on or before December 25, 2013. To assist you in your <br />research for determination of the civil penalty I offer the following comments in addition to copies of <br />the NOV and the Division's review of NECC's survey results: <br />• Pertaining to History <br />o Two Notices of Violation have been issued to NECC in the last 12 months, both of which <br />have been terminated <br />• Pertaining to Seriousness <br />• There was no evidence of an off -site impact <br />• There was no additional disturbance <br />• Pertaining to Fault <br />o Questions about the RDA diversion ditch had been raised at multiple inspections <br />throughout 2012 and 2013, however the Division only formally requested that the ditch <br />be surveyed following the inspection of July 2013 which caused NOV CV- 2013 -008 to be <br />issued. That NOV detailed 12 distinct issues (a -1). Issue (i) was described as follows: <br />The upland diversion ditch above the RDA had large puddles in two places, the <br />eastern -most of which had breached - 4.05.3(1), 4.09.2(7), 4.10.3(2) <br />The actions and due dates required to abate that issue were: <br />