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Proposed Civil Penalty Assessment Bowie Resources LLC /The Bowie No. 2 Mine DMG Permit No. C-96-083 / NOV CV-2005-002 February 24, 2005 Reviewed: DMG NOV (2/1/05); Jim Stover Letter (2/8/05) re NOV abatement extension; DMG NOV Modification and Extension Forms (2111lOS); Memo (2(22/OS) from Joe Dudash containing 1119/05 aerial photo and Certified Coal Mine Waste Bank Insp Report - 4t° Q 2004 (dated 2/14/05) from Jim Stover. History [Rule 5.04.5(3)(a)]: No NOVs have been issued at this mine during the 12 months preceding the issuance of this NOV. 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 one of administrative requirements. This NOV was written for a violation of performance requirements. Tn the case of a violation of performance requvements, 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) The event (failure to appropriately and in a timely mawer demonstrate that construction of a coal mine waste pile utilizing waste both in the pile and as-yet to be generated would achieve a 1.5 factor of safety) that Permit Stipulation No. 16 was intended to prevent did in fact occur. (2) Based upon comments by Division staff and a consulting registered professional engineer, it appears that no potential or actual damage to the public or environment was created. 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 $150. Assessments for violations that resulted from "intentional conduct" may range from $750 to $1500. It appears that this violation occurred as a result of a moderate degree of negligence. While a geotechnical report was submitted addressing the engineering requirements of Stipulation No. 16, it was submitted after a portion of the waste pile exceeded the established height ]imitation. The Fault component is therefore proposed to be set at $500. Good Faith in Achieving Compliance [Rule 5.04.5(3)(d)]: This NOV has not yet been abated. Good faith credit is therefore not proposed at this time. The Total Proposed Civil Penalty Assessment for this NOV is therefore set at $750.