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<br />- the discharge was unpermitted. <br />Willfiilnecs <br />The penalty guidelines allow for the assessment of up to 25% of the Basic Penalty for <br />willfulness. There are three ranges to which violations may be assigned within the willfulness <br />penalty category. The ranges are: 1) Recklessness - 100% of the 25% allowed; 2) Preventable/ <br />Negligence - 80% of the 25% allowed; and 3) Unintentional - 5% of the 25% allowed. <br />The willfulness penalty is assigned to the range for preventable/negligence resulting in a <br />willfulness component of the total penalty of $700 per day of violation or 20% of the basic <br />penalty. <br />The violations have been assigned to the preventable/negligence range because: <br />- the penalty guidance indicates that preventable/negligence "(a)pplies when the violator <br />should have been aware that his activities carried a degree of risk and did not act in a <br />responsible manner that would have been expected under such circumstances..." While <br />the Division recognizes that precipitation events are beyond the control of Trinidad Basin, <br />it is the opinion of the Division that such precipitation events should reasonably be <br />expected. In addition, the Division maintains that with proper maintenance of the ponds <br />the need for a permit could have been anticipated or abated; <br />- Trinidad Basin has had access difficulties to the mine due to changes in ownership of the <br />property; <br />- the events leading to the violations were not indicative of blatant disregard by the <br />permittee to obvious risks, nor were they events that could not have been prevented. <br />Under the violation history category, up to 10% of the Basic Penalty can be assessed for <br />three types of violation history. The ranges are: 1) Previous incidents at the same sit - 100% of <br />the 10% allowed; 2) Previous incidents at other sites controlled by the discharger - 75% of the <br />10% allowed; and 3) No previous incidents - no assessment. <br />No assessment was made for violation history for the following reasons: <br />- the Division's files contain no documentation indicating that incidents of this nature have <br />occurred in the past from this or any other site under Trinidad Basin control; <br />- the Division has not taken enforcement action against Trinidad Basin in the past. <br />5 <br />