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FAULT The regulations indicate that civil penalty assessments where a greater degree of fault than negligence is encountered shall consider whether the violation results from actions which aze reckless, knowing, or intentional (Rule 5.04.5(3)(c)(iii). In this case, the operator had submitted a permit revision with proposed plans for relocating and modifying the submain which was being developed at the time of the Division inspection resulting in this NOV. Afrer operating under a SMCRA permit for fifreen yeazs and, as evidenced by submittal of this permit revision, it is obvious that the operator was aware that mining plans may not be legally implemented prior to approval by the Division. The scope of work required to begin development of a submain is significant. This work could not have begun without the knowledge of the operator. For the purpose of this penalty assessment, it is appazent that the conditions which resulted in the violation were created with the full kowledge of the operator. The operator has appazently indicated that they believed the approved permit authorized the submain development work which was undertaken. However, the Division has maintained that devlopment of the submain was done prior to approval of plans and, in conflict with the approved plans in the mine permit.. Because this work was undertaken with the knowledge of the operator, a greater degree of fault than negligence is appazent. $1250 is assessed because thus violation was the result of knowing conduct on the part of the operator. NUMBER OF DAYS PENALTY ASSESSED Development bf a mining section prior to review and approval of plans by the Division and other interested parties is viewed as a serious violation, as discussed above. While the operator's intent with regazd to this violation is unknown, it is appazent that the operator had the potential to gain significant economic benefit from proceeding with their mining plans at their own pace, regardless of whether those plans had been approved by the Division. The regulations (at Rule 5.04.6(1) indicate that the Division may take into account, "the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply" when deciding whether to assess a civil penalty for more than one day. Due to the nature of this violation and, the potential economic gain for the operator, I am assessing the penalty discussed above for each day from the date of issuance of the NOV to the date of abatement. The NOV was issued on August 8, 1997. Two options for abatement of the NOV were presented to the operator. Option A would have abated the NOV immediately. The operator declined this option. By pursuing option B, the NOV was abated and terminated on August 11, 1997 upon submittal of a complete technical revision with plans for the submain, as it was being developed.