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Proposed Civil Penalty Assessment Seneca Coal Company/The Seneca H-W Mine NOV CV-2003-003 May 14, 2003 Materials reviewed: DMG Inspection Form (3/19/03-4/17/03); DMG NOV Form (4/17/03). Comments from the pernuttee were not submitted. History [Rule 5.04.5(3)(a)]: One NOV (CV-2003-002) has been issued to this permittee within the 12 month period preceding the issuance date (4/17/03) of this NOV. However, that NOV is within its appeal timeframes. The History component is therefore proposed to be set at $0. 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 even[ which a violated standard 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 environment. (1) Events that cited performance standards aze designed to prevent did in fact occur. Improper spoil grading caused surface water runoff from the spoil azea to flow into two haul road ditches, causing significant erosion of the ditches and relief drains. The dischazge from the pond capturing this runoff was, however, in compliance at the time of the inspection. (2) While the duration of the events associated with this NOV appears to have been high, the extent of actual environmental damage and impact upon the public appeazs low. The Seriousness component of this assessment is therefore proposed to be set at $500. 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. By not following the approved spoil grading plan, the pemuttee caused surface water runoff from the spoil area to improperly flow onto the haul road and significantly erode the road ditches and relief drains. This NOV thus appeazs to be the result of a high degree of negligence. 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 $1250.