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\ 'z Proposed Civil Penalty Assessment Seneca Coal Company/The Seneca II-W Mine NOV CV-2003-015 December 22, 2003 Materials reviewed: DMG NOV (11/21/03), with "Attachment A"; Pemritee's Letter dated 12/04/03. History [Rule 5.04.5(3)(a)]: Three NOVs (CV-2003-006; 007; 014) have been issued to this mine within the 12 month period preceding the issuance date (1 I/21/03) of this NOV. Appeal periods have passed for 006 and 007. The History component is therefore proposed to be set at $100. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component of a proposed assessment may range from $0 to $1750. The amount proposed depends upon whether the violation was one of performance requirements or of administrative requirements. This NOV was written for a violation of performance requirements. In the case of a violation of performance requirements, the amount to be assessed for Seriousness depends upon (1) the probability of the occurrence of the event which a violated standard is designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of azea and impact on the public or environment. (1) The event (unsuccessful revegetation of aspen transplants) the permit requirements [dig and ba114-ft (or taller) aspens from Seneca property in October 2003; hold in mulched beds over winter 2003-2004] were designed to prevent appears now to have a high potential to occur. (2) Actual impact upon the public or environment does not appeaz to have occurred. The extent of the potential impact upon the environment appears extensive. Duration of this potential impact is unknown. The Seriousness component of this assessment is therefore proposed to be set at $750. Fault [Rule 5.04.5(3)(c)]: The fault component of a proposed civil penalty assessment may range from $0 to $1500. Assessments of"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. The June 2003 Permit Revision set out specific timelines for the aspen transplanting. When DMG, on 8/20/03, became of aware of the permittee's appazent contractor problems, DMG informed the pemuttee on 9/08/03 and 9/30/03 that the plan could have been modified. It was not, and the October 2003 transplanting deadline was missed. This appears highly negligent. The Fault component is therefore proposed to be set at $750. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: This NOV has not yet been fully abated. Good faith credit is therefore not proposed at this time. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1600.