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Proposed Civil Penalty Assessment Seneca Coal Company/The Yoast Mine CO-2003-011 November 20, 2003 Materials reviewed: DMG Folder for NOV CV-2003-006; DMG Folder for CO-2003-011. Written comments from the permittee pertaining to this Cessation Order (CO) were not submitted; however, the permittee provided four digital photographs of its progress (reportedly taken on 10/27/03) and four uncertified surveys of Pond 011 (two dated 11/03/03 and two dated 11/12/03). History [Rule 5.04.5(3)(a)]: Three NOVs have been issued to this mine within the 12-month period preceding the issuance date (10/22/03) of this CO. CV-2003-006 was last modified on 10/09/03, and CV-2003-008 was terminated on 10/22/03. These two NOV s aze thus within their respective 90.day administrative appeal periods, and aze excluded from the History component. CV-2003-007 has been neither modified, extended, nor terminated since its issuance date of 7/21/03. It has thus gone beyond its 90.day administrative appeal period, and is included in the History component. The History component is therefore proposed to be set at $50. Seriousness [Rule 5.04.5(3)(b)]: The Seriousness component may range from $0 to $1750. The amount proposed depends upon whether the violation was one of performance requirements or of administrative requirements. This CO 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 azea and impact on the public or environment. (1) Failing to have completely riprapped drainage channels YPM-9 and YPM-10 created the potential for soil erosion. Failing to have completely cleaned out Sediment Pond 011 created the potential for anon-compliant pond discharge. As this CO was issued in the fall, when precipitation events aze usually of low intensity and duration, it seems that the probability of these events occurring is moderately low. {2) There appears to have been no actual impact upon the public or environment from the violations cited in this CO. The duration and extent of any potenflal impact upon the public that might have occurred from any soil erosion or non-compliant pond dischazge associated with failing to complete the riprapping and pond cleaning seems small. The Seriousness component of this assessment is therefore proposed to be set at $250. 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. Failure to have complied with the abatement steps set out in NOV CV-2003-006 by the required abatement deadlines appears at this time to have been intentional. The Fault component is therefore proposed to be set at $1500.