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Proposed Civil Penally Assessment Mountain Coal Company/ The West Elk Mine NOV CV-99-005 History [Rule 5.04.5(3)(a)] No non-vacated NOVs have been issued to this permittee within the twelve months preceding the issuance date of this NOV (May 19, 1999). The History component is therefore set at $0. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component of a proposed civil penalty assessment may range from $0 to $1750. Based upon information provided by Mountain Coal Company (MCC) and DMG staff, I understand that this violation was written no[ for any actual off-site environmental impacts, but rather for MCC's failure to comply with its permit in regard to the use of approved sediment control measures (hay bales, silt fences, and a soil binder) at the Shaft #3 site. I further understand that MCC, in constructing the site, created a disturbance smaller than approved, that the actual disturbance was 1.3 acres in area, and that MCC had installed most of its approved sediment control measures at the time of the inspection. I[ therefore appears that if [he rainfall event that the Shaft #3 sediment convol system was designed for had actually occurted, impacts to the environment would have been relatively minor. I therefore believe [ha[ $250 is an appropriate amount for the Seriousness component. Fault [Rule 5.04.5(3)(c)]: The Fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments for "unavoidable" violations may range From $0 to $250. Assessments for violations that were the result of "negligence" may range from $250 to $750. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. It is my understanding that MCC had not used a soil binder on cu[ soil slopes at the Shaft #? site. While MCC contends in their comments that they are not required to do this, MCC's currently- approved SEDCAD demonstration refers to [he use of a soil binder. While MCC, via TR-86, has submitted changes to the sediment control system at the Shaft #3 site, its commitment [o use a soil binder has not been requested for removal from the approved SEDCAD demonstration; as such, the use of a soil binder would still have been required had TR-86 been approved by the inspection. it is also my understanding that MCC, as a part of TR-86, has submitted a revised Shaft #3 site map [o re(lecl the revised construction. i[ is my understanding, however, that this map did not, at the time of the inspection, reflect the actual on-the-ground conditions. Had TR-86 been approved by the inspection, the map would still have been not cortectly reflected the on-site conditions. [t would appear, therefore, that this violation resulted from "negligence" (a lack of diligence) on the part of the permittee in ensuring that its on-the-ground sediment control measures were correctly relected in its permit at the time of the inspection. I therefore believe that $500 is an appropriate amount for the Fault component of this assessment. Good Faith in Achieving Compliance [Rule 5.045(3)(4)]: As this NOV has not been abated, no reduction of this assessment is proposed a[ this time. The Total Proposed Civil Penalty Assessment for [his NOV is therefore recommended a[ $750.