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<br />The penalty assessment in this matter was prepared in accordance with the Division's <br />Guidance for Assessing Civil Penalties which was effective at the time of issuance of the NOV <br />and the penalty calculation. A copy of the Guidance is attached hereto as Exhibit B. <br />The severity classification contains three penalty ranges: 1) Severe - $7,500-$10,000 per <br />day of violation; 2) Moderate - $3,500-$7,500 per day of violation; 3) Minor - $1,000-$3,500 per <br />day of violation. Classification of the violation within these ranges is according to the magnitude <br />of the violation or its effects. <br />The incidents cited in the NOV are assigned to the minor range because the discharge was <br />of conventional pollutants in small volumes. <br />Within the minor range, the assigned severity penalty is $3,500. Factors that led to the <br />violations being classified at the high end of the minor range are: <br />- the discharges were of unknown volumes of water with extremely high concentrations <br />of conventional pollutants, in this case total suspended solids and iron. <br />The penalty guidelines allow for the assessment of up to 65 % of the Basic Penalty for <br />potential damage. There are four ranges to which violations may be assigned within the potential <br />damage category. They are: 1) Extraordinary - 75-100% of the 65% allowed; 2) High - 50-75% <br />of the 65% allowed; 3) Moderate - 25-50% of the 65% allowed; and 4) Low - up to 25% of the <br />65% allowed. <br />The violations have been assigned to the moderate range because there was a potentially <br />moderate impact on the stream. <br />Within this category, the penalty assigned to these violations is $700 per day or 20% of <br />the basic penalty. Factors which led to the violations being assigned to the low end (31 %) of the <br />moderate range are: <br />- the discharges were influenced by storm events. However, at least one sample violated <br />the settleable solids alternative level for storm related discharges from coal mines; <br />- the discharge was to the Del Agua Arroyo which is classified for recreational, aquatic <br />life and agricultural uses; <br />