DRC-2013-005782 - 0901a06880825a45

Department of
Environmental Quality
Amanda Smith
Executive Director
DTVISION OF RADIATION CONTROL
Rusty Lundberg
Director
State of Utah
GARY R. HERBERT
Governor
GREG BELL
Lieulenant Governor
TO:
FROM:
DATE:
SUBJECT:
MEMORANDUM
File
THROUGH: Phil Goble, Compliance Section Manager
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rom Rush ing,v.c. 1( I /t I / t3
Ittly 16,2013
May 30, 2013 Notice of Violation and Order Docket No. UGWI3-03 (NOV), Energy
Fuels Resources (USA) Inc. ("EFR") June 28,2013 response to the NOV, Utah
Division of Radiation Control (DRC) Findings and Proposed Civil Penalty for Cited
Violations
This memo is to provide 1. The DRC review findings regarding EFR's June 28, 2013letter response
(Response) to Notice of Violation and Order Docket No. UGW13-03 (NOV), and 2. A civil penalty
calculation for the NOV cited violations.
1. DRC Review of the Response
The NOV requires EFR to prepare a response with the following items:
a) The root cause of the noncompliance,b) Corrective steps taken or to be taken to prevent re-occurrence of the noncompliance,c) Date when compliance was or will be achieved.
Per the Response, EFR does not contest the violation cited (Violation 1) in the NOV. Table I below
summarizes Violation 1 and the EFR response.
I 95 North 1950 West . Salt Lake City, UT
Mailing Address: P.O. Box 144850 . Salt Lake Ciry, UT 84114-4850
Telephone [phone]. Fax [phone] . T.D.D. [phone]
www.deq.utah.gov
Printed on l00olo recycled paper
Table I - Summarv of Violations NOV and Order Docket UGWI3-U3, EIR Responses a
Violation Summarv EFR June 28.2013 Response Summary DRC Findines
Violation 1 - Violation of Utah
Groundwater Discharge Permit
No. UGW370004 Part I.G.1 for
failing to collect monthly
accelerated samples for selenium
at monitoring well MW-31 during
December 2072 and January
20t3.
Missed accelerated monitoring quarters
were identified in time and included in
the 3'd Quarter Exceedance Notice but
were not communicated to the Mill
Field Personnel in time to be included
in the monthly sampling events due to
an oversight by the QA Manager.
Violation Stands
1 violation cited I violation stands
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Penalty Calculation Memo
Notice of Violation Docket No. UGW13-03
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V
nd DRC Findi
Each EFR response to the NOV Violation 1 is listed below, followed by DRC findings:
VIOLATION I
EFRI violated Part 1.G.1 of the Permitforfailing to collect a monthly accelerated samplefor
selenium at monitoring weU MIY-31 during the December 2012 und January 2013 accelerated
sampling events.
EFR RESPONSE _ VIOLATION 1
a) Root Cause of the Noncompliance
The accelerated monitoring conducted in the December 20..2 and January 20..3 monthly sampling
events did not include the collection of the analyte identified during the third quarter 2012 (selenium
in MW-31) in the accelerated monthly sampling.
It is important to note that although two required data points were missed, there was no delay in
implementation of compliance actions. Selenium in MW-31 exceeded the GWCL in two successive
sampling periods Ahird andfourth quarter 2012) and a 30 day plan and time schedule was submitted
as required by the GWDP. The missed data points did not delay that submission or the schedule in
any way, and there is no adverse ffict on the compliance actions required by EFN.
The root cause of the violation was that,. although the additional monitoring requirements were
identified in time and included in the 3'o Quarter Exceedance Notice, due to an oversight by the
Quality Assurance Manager, the additional monitoring requirements were not communicated to the
Mill Field Personnel by the Quality Assurance Manager in time to be included in the monthly
accelerated sampling events for December 2012 and January 2013.
b) Steps That Have Been Taken to Correct the Violation
Thefollowing steps have been taken to correct the violation:
The omission of the analytesfrom the December 2012 and January 2013 monthly events has
prompted the QA Manager to revise the exceedance tracking procedures and procedures for review of
Penalty Calculation Memo
Notice of Violation Docket No. UGWI3-03
Page 3
the analyticgl data receivedfrom the laboratory. Additional review using database reports will be
implemented immediately upon receipt of the data at the time the analytical data are uploaded to the
database by the QA Manager. Specifically, the QA Manager reviews all analytical data prior to
loading it into the electronic database. Aft"r loading each analytical data set, the QA Manager will
query the databasefor exceedances. Any exceedances identified n that analytical data set will be
forwarded to the Mill Field Personnel with the new acceleratedfrequency as soon as the exceedances
are identified. Mill Personnel will not schedule accelerated monthly sampling until the review of
exceedances has been completed.
c) Date Wen Compliance Was or Wilt be Regained
Compliance was regained in February 2013. Beginningwith the February 2013 sampling event, the
accelerated monitoring included selenium in MW-31. Additionally, the new procedurefor tracking
excee danc es w as impl em ent ed.
d) Steps Taken to Prevent Reoccutence of the Noncompliance
See item 1.(b) above.
DRC FINDINGS - VIOLATION 1
Per DRC review of the EFR Response, it is noted that the violation resulted due to lack of
communication from the EFR QA Manager (Lakewood, CO) and the White Mesa Mill Staff. The
violation occurred over a sixty day period (60 days of violation) and did not result in additional
violations of the Permit related to submission of a 60 day plan and time schedule for source
assessment activities. EFR has implemented additional measures to ensure that exceedances are
communicated to the Mill staff in a timely manner via immediate review and upload to the electronic
database when the laboratory reports are received by the QA Manger and submission of results the
White Mesa Mill staff. The EFR submission states that"the new procedurefor tracking exceedances
was implementet'prior to the February 2013 sampling event.
DRC notes that the failure to collect accelerated samples has been cited on five previous NOV's. It is
noted that the EFR corrective actions for these previous violations does not appear to have been
effective and were the same as the current NOV response. Credits for the penalty calculation will be
reduced considering that this is a re-occurring violation.
2. Civil Penaltv Calculation
WATER OUALITY PENALTY CRITERIA
According to R317-1-8 (Penalty Criteria for Civil Settlement Negotiations), the penalty calculation
methodology consists of the following formula:
CIVIL PENALTY: PENALTY + ADJUSTMENTS _ ECONOMIC AND LEGAL
CONSIDERATIONS
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Penalty Calculation Memo
Notice of Violation Docket No. UGW13-03
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v
I. CategorySelection(R317-1-8.3)
The table below describes the Water Quality penalty categories.
Violation I -- Penalty Categorv and Dates of Noncompliance
Penalty Category: Penalties for Violation 1 will be calculated as Category D.3 Minor Violations of
Reporting Requiremenls with penalties up to $500 per day. DRC staff considers Category D to be
conservative. EFR failed to accelerate samples for selenium during two months, the failure did not
result in additional violations of schedule requirements.
Water Qualiff Penalty Catesories (UAC Rl17-1-8.3)
Cateeorv A - $7,000 to $10,000 per day. Violations with high impact on public health and the
environment to include:
Category A.1 - Discharges which result in documented public health effects and/or significant
environmental damage.
Category A.2 - Any type of violation not mentioned above severe enough to warrant a penalty
assessment under category A.
Catesorv B - $2,000 to $7,000 per day. Major violations of the Utah Water Pollution Control Act,
associated regulations, permits or orders to include:
Category 8.1 - Discharges which likely caused or would potentially cause (undocumented) public
health effects or significant environmental damage.
Category 8.2 - Creation of a serious hazard to public health or the environment.
Category B.3 - Illegal discharges containing significant quantities of concentrations of toxic or
hazardous materials.
Category 8.4 - Any tlpe of violation not mentioned previously which warrants a penalty
assessment under category B.
Catesory C - $500 to $2,000 per day. Violations of the Utah Water Pollution Control Act,
associated regulations, permits or orders to include:
Category C.l - Significant excursion ofpermit effluent limits.
Category C.2 - Substantial non-compliance with the requirements of a compliance schedule.
Category C.3 - Substantial non-compliance with monitoring and reporting requirements.
Category C.4 - Illegal discharge containing significant or concentrations of non-toxic or non-
hazardous materials.
Category C.5 - Any type of violation not mentioned previously which warrants a penalty
assessment under category C.
Catesory D - up to $500 per day. Minor violations of the Utah Water Pollution Control Act,
associated regulations, permits or orders to include:
Category D.l - Minor excursion of permit effluent limits.
Category D.2 - Minor violations of compliance schedule requirements.
Category D.3 - Minor violations of reporting requirements.
Category D.4 - Illegal discharges not covered in Categories A, B and C.
Category D.5 - Any type of violations not mentioned previouslywhich warrants a penalty
assessment under category D.
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Penalty Calculation Memo
Notice of Violation Docket No. UGW13-03
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Calculation of violation days: EFR failed to collect data for I parameter for two accelerated
monthly periods. The months of December and January have 3l days each; therefore, EFR was out of
compliance for the I parameter not sampled for the accelerated period (62 days). This equals 1
parameter x 62 days for a total number of violation days of 62.
VIOLATION 1 STATUTORY MAXIMUM PENALTY CALCULATION
The statutory maximum penalty for Violation l, Category D.3 would be calculated for I violation for
62 days at $500 per day is $31,000.
ASSIGNED PENALTY AMOUNT WITHIN CATEGORY D.3
DRC consideration of credit as detailed in the Administrative Penalty Policy follows:
A. History of compliance or non-compliance:
Under UAC R3l7-1-8.3(A), two factors need to be considered, including previous violations
and degree of recidivism.
DRC Findings: According to DRC records, EFR has been cited for failing to meet sample
holding times on four previous NOV's (Docket No.'s UGW07-04, UGW08-01, UGW08-02,
and UGW1 l-04).
The last settlement agreement with a calculated penalty for failure to collect accelerated
samples was Docket Number UGWI l-04 which applied a credit of 50Yo in the history of
compliance or non-compliance category. It is noted that the last violation calculation
(UGWI l-04) was done two years ago and that the previous three violation calculations were
five years or more previous to the current calculation. Based on the violations being spaced
far between, and not continuous violations, DRC staff considers application of 50o/o credit in
the history of compliance or non-compliance to be appropriate for the current violation.
B. Degree of willfulness and/or negligence:
Four factors need to be considered under the requirements of UAC R3l7-l-8.3(B), including:
l. How much control the violator had over and the foreseeability of the events constituting
the violation;
2. Whether the violator made or could have made reasonable efforts to prevent the violation;3. Whether the violator knew of the legal requirements which were violated;4. Degree of recalcitrance.
NOV Docket No.Well/Parameter Cited Comments
uGw07-04 MW-32/Gross Aloha
ucw08-01 MW-32/Gross Alpha
uGw08-02 MW-32/Gross Alpha
ucwl l-04 MW-26, MW-3I/TDS
MW-25Uranium
50%o Credit for History of
Compliance Category Applied
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Notice of Violation Docket No. UGW13-03
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DRC Findings:
EFR states in the Response that the violation was the result of an oversight bV the Quality
Assurance ("QA") Manger to report the needed accelerated monitoring requirements to the
Mill groundwater samplers.
e EFR had control over the events constituting the violation and is ultimately responsible
for recognizing exceedances of the GWCLs and collecting the accelerated samples as
required.o The violations were self-reported in the facility ground water monitoring reports and
the cause was identified as an oversight by the current EFA QA manager.o EFR has identified and committed to implement a new system (earlier review) of data
review to avoid this tlpe of violation in the future.o EFR has been cited for this problem previously and corrective actions have not been
effective, however, DRC notes that the violations are staggered over a long period of
time (6 years) and that the violations are not continuously re-occurring.
The previous calculation for this tlpe of violation, NOV Docket UGWI l-04 applied a credit
of 25o/o for the willfulness or negligence category.
DRC notes that in the current case (UGWI3-03) the violations were self-reported in the
facility groundwater monitoring reports and that the corrective actions which were
implemented in the past were done by previous Energy Fuels Resources QA staff which has
since been replaced. With consideration of these facts as well as the nature of the violations, a
credit of 50o/o will be applied for the willfulness or negligence category.
C. Good faith efforts to complv:
Under UAC R3l7-l-8.3(C), this includes the permittee's openness in dealing with the
violations, promphress in correction of problems, and degree of cooperation with the State.
DRC Findings:
The current violations were self-reported by EFR in the quarterly groundwater monitoring
reports sent to DRC. DRC staff notes that corrective actions to prevent the violation tlpe in
the future were also provided in the quarterly groundwater reports. EFR was grarfied,7|Yo
credit for "good faith efforts to comply" category per the previous (UGWI l-04) settlement
agreement calculation. DRC staff considers this same credit amount to be appropriate for the
current (UGWI 3-03) calculation.
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Notice of Violation Docket No. UGW13-03
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Penaltv Calculation
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Category D, which is a maximum of $500 per day penalty : $500
Credits: ll3 (max $166) History of Compliance: (50% credit) : $ 83
ll3 (max $166) Degree of Willfulness and/or Negligence: (50% credit) : $ 83
1/3 (max $166) Good Faith Efforts to Comply: (75%o credit\ : $ 125
Totalcredit -$291
Penalty per day violation: : : $ 209
Number of violation davs: X 62
Total Category Penalty (Gravity Component)
ADJUSTMENTS
: $12,958
According to R317-l-8.3, the civil penalty shall be calculated by adding the following adjustments to
the penalty amount:
a. Economic benefit - DRC notes that monitoring well MW-31 was required to be
developed and sampled for other monthly accelerated sampling parameter, therefore, labor
and capital costs were not avoided for sample collection. EFR did avoid analyical costs,
including shipping costs, for two selenium samples. DRC estimates these costs, per
tlpical selenium analysis costs to be as follows:
Analytical costs for selenium analysis: : $15 X 2 : $30
Estimated shipping costs: : $30
Total Economic Benefit of Avoided Costs : $60
No additional economic benefit for re-occurring or capital costs is noted.
b. Investigative costs - No investigative costs are included for these violations. The
violations were the result of document inspection findings by DRC.
Penalty Calculation ($12,958 + Economic Benefit ($60): $13.018)
Proposed Total Civil Penalty for Docket No. UGW13-03:: $ 13.018