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~f aJ inspector they would have forwarded it to her. Ms. Johns~in was not involved with the West Elk Mine prior to 1992, and specialists who were, were not present at the conference. Although the lack of any documentation in the three Division files and the MCC files does not prove that such submittals were never made, I believe it is unlikely that each of the three submittals was made and that none of the three ended up in the specialist's file, the public file, or Jim Pendleton's file. Civil Penalty Assessment At this point there was discussion of the amount of civil penalty, along with MCC's contention that the NOV should be modified to exclude the reporting requirement which exceed those originally required by the permit. Ms. John~n and Mr. Berry agreed with MCC that it would be appropriate to modify the NOV, which would in effect result in the NOV being abated by the report submitted January 19, 1993. I concur with the proposed NOV modification, but it is important to recognize that although an acceptable report is now recognized to have been submitted prior to issuance of the NOV, the NOV was appropriately issued regardless. The fact that an acceptable report was submitted in January, 1993 does not make up for the apparent failure to submit two reports in 1991 and one report in 1992. With respect to seriousness and fault components of the penalty assessment, I indicated my concurrence with the proposed assessment which was $250.00 for each, reflecting a low amount of seriousness and a low degree of negligence, in that the required survey data was collected and available for review at the mine office, but was not submitted to the Division for review as required by the permit and regulations. The data obviously could have been obtained by the Division if needed, but not as promptly as if the reports were on file at the Division office. I was prepared to recommend a good faith reduction of $250.00, since the final 1992 report was actually submitted prior to issuance of the NOV and would be recognized as adequate under the amended NOV. This would have resulted in a Settlement Agreement Penalty Proposal of $250.00. However, at this point, the MCC representatives indicated that they intended to appeal the NOV to the Mined Land Reclamation Board and would not sign the Settlement Agreement as proposed. I therefore concluded that the issues could not be resolved at the assessment conference, and terminated the conference, pursuant to Rule 5.04.3(3)(d). Since the issues were not resolved at the assessment conference, I have advised Ms. Johnson to issue a Notice of Fixed Civil Penalty pursuant to Rule 5.04.3(5)(a).