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Proposed Civil Penalty Assessment Seneca Coal Company/The Seneca II-W Mine NOV CV-2003-014 December 22, 2003 Materials reviewed: DMG Inspection Reports (7/31/03; 8/21/03); DMG NOV Form (11/21/03); Permitee's Letter dated 12/04103. History [Rule 5.04.5(3)(a)]: Two NOVs (CV-2003-006 and CV 2003-007} have been issued to this mine within the 12 month period preceding the issuance date (11!21/03) of this NOV. Appeal periods have passed 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 standazd is designed to prevent, and (2) the duration and extent of the potential or actual damage in terms of area and impact on the public or envvonment. (1) The event (excessive erosion) the permit requirement (implement rill and gully plan by 7/01/03 or as soon as Bound conditions permit) is designed to prevent was noted on 7/31/03. (2) The extent (size and number) of the gullies documented in the 7/31/03 inspection report appeazs extensive. Duration appeazs to be from 7/31/03 (date of DMG Complete Insection) - 10/31/03 (date of "major snowstorm"cited by permittee). Actual impact upon the environment appears significant; however, actual impact upon the public appeazs to be zero. 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 "unavoidabie" violations may range from $0 to $ZSO. 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. Permit required rill and gully plan implemented by 7/01/03 or as soon thereafter as ground conditions permit. DMG reports document good weather on 7/31/03 and 8/21/03, indicating permittee had lots of time before 10/31/03 to have completed plan. Fault thus appears intentional. The Fault component is therefore proposed to be set at $1000. Good Faith in Achieving Compliance [Rule 5.04.5(3){d)]: This NOV has not yet been fully abated. Good faith credit is therefore ant proposed at this time. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $1850.