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Settlement Agreement Justification October 31, 1996 Page 2 The proposed civil penalty was as follows: • History • Seriousness • Fault • Good Faith HISTORY $ 0.00 $ 1,250.00 $ 750.00 $ 0.00 A civil penalty for history would not be appropriate as there have been no NOVs issued to this mine during the past year. A $0.00 civil penalty is appropriate. SERIOUSNESS The Mountain Coal Company permitting documents require that topsoil and subsoil must be properly salvaged and stockpiled for use in final reclamation. There were at ]east 18 inches of subsoil on the bench in the area contaminated during ramping activities which, for the most part, could have been salvaged prior to ramping. The permit only permitted two stockpiles on the top of the active Lower Refuse Pile, not three. The permit requires that subsoil and topsoil be salvaged while in a dry state to protect the physical characteristics of the growth medium. The climatological data provided during the conference indicates that the subsoil and topsoil were dry during salvage operations, with the exception of the ditch area and that the surface that [he dozer operator crossed may have been dry at the time, as indicated by the operator's representatives. The dozer operator probably made an operational error in attempting to cross the ditch without first inspecting the ditch for potential subsurface, high moisture conditions. Contamination or loss of subsoil due to the operator's failure to salvage the material prior to constructing the refuse ramp, and commencing construction of a third stockpile prior to approval are serious issues. However, it appears that only a small amount of subsoil material (less than 1% of the material needed for reclamation) was actually lost as a result of these activities. Regarding the issue of operating during wet conditions, the operator is given the benefit of the doubt, since an insignificant amount of subsoil loss occurred when the machinery became stuck in the wet substrate. A penalty of $500.00 for Seriousness is proposed. FAULT A high level of negligence was exhibited, based upon the permit requirements and the actions which resulted in this NOV. It does not appear that the actions were in any way willful on the company's part. A civil penalty of $750.00 is appropriate.