DRC-2013-005785 - 0901a06880825b99

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Department of
Environmental Quality
Amanda Smith
Execative Director
DIVISION OF RADIATION CONTROL
Rusty Lundberg
Director
State of Utah
GARY R. HERBERT
Governor
GREG BELL
Lieutenant Goverdor
FROM:
DATE:
MEMORANDUM
TO:File
THROUGH: Phil Goble, Compliance Section Manager FE o t/'/""2
rom Rushing, P.G. /( 1/ il /,s
September ll,2013
SUBJECT: July 23,2013 Notice of Violation and Order Docket No. UGW13-05 (NOV) Energy
Fuels Resources August 27 ,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 August 27,2013letter
response (Response) to Notice of Violation and Order Docket No. UGW13-05 (NOV), and 2) A civil
penalty calculation for the NOV cited violations.
1. DRC Review of the Response
The NOV Order 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-occuffence of the noncompliance,c) Date when compliance was or will be achieved.d) A plan and time schedule for assessment of THF out-of-compliance status at monitoring
well MW-l in compliance with the Permit Part I.G.4.c.
Per the response, EFR accepts all violations in the NOV (2 violations total). Table I below
summarizes the violation cited in the NOV.
195 North I 950 west . Salt l-ake City, UT
Mailing Address: P.O. Box 144850 . Salt hke City, UT 841144850
Telephone [phone]. Fax [phone] . T.D.D. (801) 5364414
w.deq.utah.gov
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Notice of Violation Docket No. UGWI3-05
Page2
I'able I - Summary of Vtolations, NOV and Order Docket UGW13-05, EFR Responses and DRC Fi
Violation Summarv EFR Auzust 27 . 2013 Resoonse DRC Findines
Violation I - Permit Part I.G.4.c
of the Permit for failing to
provide a plan and a time
schedule for assessment of the
source(s), extent, and potential
dispersion of the monitoring well
MW-l TIIF contamination to the
Director.
EFR responds that the issue is being
resolved through DRC agreement
(DRC letter dated April 25, 2013)
that ground water protection levels
may be removed from the Permit for
monitoring well MW-I, pursuant to a
modification request made by EFR.
Violation Stands
2 Violations Cited Violation Stands
Each EFR response to the NOV violation is listed below, followed by DRC findings.
EFR RESPONSE
1. Based on the Findings of Fact noted in the July 23,2013 DRC letter, EFRI is in violation of Part
1.G.4(c) of the Permitforfailing to provide a plan and schedulefor assessment of the sources,
extent and potential dispersion of the monitoring well Mllt-0l THF contamination to the Director.
a) Root Cause of the Noncompliance
EFfuI submitted a Source Assessment Report ("SAR") in October 2012 which requested, among other
things, the removal of the Groundwater Compliance Limits ("GWCLs") from thefar-upgradient wells
MW-}1, MW-|8, and MW-[9. EFM noted that these wells arefar-upgradient and are not likely to be
impacted by Mill activities. DRC has noted that lcrigedwater level maps indicate that the elevations
at monitoring wells MW-01 , MW-|8 and MW-l9 are higher than the water elevations in the Burro
Canyon Aqufer beneath all of the Mill Tailings Cells. Additionally, MW-01, tuIw-]8, and MW-L9 are
located north and northeast of the Mill Tailings Cells while local groundwaterflow is to the south-
southwest. By letter dated April 25, 2013, DRC recommended that the GWCLs be removedfrom the
for-upgradient wells. The DRC letter indicated that all accepted changes would be incorporated into
the next revision of the Permit.
EFfuI mistakenly interpreted the April 25, 2013 letter to mean that the 30 day requirement for a plan
and time schedulefor assessment of sources and extent and potential dispersion of the contamination
would not be required in MW-01, in light of the recommendationfor removal of the GWCLs from the
far upgradient wells. EFfuI operated under the incorrect assumption that the recommendationfor
removal effectively removed the requirement immediately upon receipt of the april 25, 2013 letter,
rather than at the as yet undetermined datefor an approved Permit renewal.
b) Steps That Have Been Taken to Conect the Violation
Thefollowing steps have been taken to correct the violation:
A Plan and Time Schedulefor THF in MW-01 is attached.
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Notice of Violation Docket No. UGWI3-05
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c) Date When Compliance Was or Will be Regained
Compliance has been regained with the submission of the Plan and Time Schedule, which is attached.
d) Steps Taken to Prevent Reoccurrence of the Noncompliance
EFM now understands that the provisions of Part 1.G.4.(c) apply to all situations when the
concentration of a constituent in two consecative samples exceed the GWCL until such time as the
Permit is updated to reflect the changes in the October 2012 SAR and the recommendations in the
April25, 2013 DRC letter.
Additionally, DRC and EFN are culTently developing an interim revision to the Permit including,
among other changes, the removal of the GWCLs for the upgradient wells.
DRC FINDINGS _ VIOLATION 1
Findings related to the August 27,2013 Plan and Time Schedule Under Part I.G.4(d):
The August27,2013 Plan and Time Schedule discusses the current out of compliance ("OOC') status
for Tetrahydrofuran ("TIIF") at point of compliance monitoring well number MW-01.
EFR states that"given the recent analyses in the Background Reports and other recent information
relating to the Chloroform and Nitrate/Chloride investigations at the site, EFkl believes there is no
plausible scenario that would accountfor THF in MW-11 resultingfrom the Mill operations, because
it is approximately 2,200feet (over 0.4 miles) upgradient of Mill operations. EFM maintains that,
even given the presence of THF in tailings solutions, the most plausible explanationfor the THF
detection in MW-01 is that it results from something intrinsic to the well or the well sampling. As
identified in our letters of October 17, 2003 and December 18, 2003, EFRI maintains that one source
for THF detected in MW-01 is more likely to be the solvents and adhesives used in well construction."
Monitoring well MW-01 is located upgradient of the White Mesa Facility and is unlikely to have been
impacted by mill activities. EFR notes that although THF is present in tailings solution due to
additives in kerosene, the position of monitoring well MW-01 makes the Mill source highly unlikely
and EFR maintains that"the most plausible explanationfor the THF detection in MW-01 is that it
results from something intrinsic to the well or the well sampling."
In terms of action items related to the THF study, EFR proposes to:
l. Provide documentation from published studies and papers that indicate that TIIF is persistent
over many years in monitoring wells due to solvents and adhesives used for well construction,
and,
2. Continue to monitor TIIF in monitoring well MW-01 on an accelerated quarterly schedule.
EFR proposes to submit the report to the Director within 90 days after approval of this Plan. THF
concentrations will be tracked by EFR for four quarters and a discussion of the results will be
Notice of Violation Docket No. UGW13-05
Page 4
included in the 2"d quarter 2014 qnrterly groundwater report due to DRC on or before September 1,
20t4.
DRC staff recommends that the Director provide approval of the August 27 , 2013 Plan and Time
Schedule for evaluation of TIIF in monitoring well MW-01 with the correspondence letter for the
proposed settlement agreement.
2. Civil Penaltv Calculation
WATER OUALITY PENALTY CRITERIA
According to R317-l-8 (Penalty Criteria for Civil Settlement Negotiations), the penalty calculation
methodology consists of the following formula:
CIVIL PENALTY = PENALTY + ADJUSTMENTS - ECONOMIC AND LEGAL
CONSIDERATIONS
L Category Selection (R317-1-8.3)
The table below describes the Water Quality penalty categories.
Water OualiW Penaltv Catesories ruAC R|17-1-8.3)
Categorv 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 warant a penalty
assessment under catesorv A.
Catesory 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 hazardto public health or the environment.
Category B.3 - Illegal discharges containing significant quantities of concentrations of toxic or
hazardous materials.
Category B.4 - Any type of violation not mentioned previously which warrants a penalty
assessment under catesorv B.
Catesorv 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.
Category D - up to $500 per day. Minor violations of the Utah Water Pollution Control Act,
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Notice of Violation Docket No. UGW13-05
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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 previously which warrants a penalty
assessment under category D.
Violation - Penaltv Catesory an4 Dates of Noncomoliance
Penalty Category: Penalties for the Violation will be calculated as Category D.2. Minor violations
of compliance schedule requirements withpenalties up to $500 per day. DRC considers Category D
to be conservative.
Calculation of violation days: Per the Groundwater Permit Part I.G.4(c)"the Permittee shall prepare
and submit within 30 calendar days to the Director a plan and a time schedulefor assessment of the
sources, extent and potential dispersion of the contamination..."
Per the EFR I't Qtr. 2013 Groundwater Monitoring Report the laboratory report for the groundwater
sample resulting in out of compliance status for TIIF at MW-01 was dated March 26,2013
(exceedances for the Novemb er 27 ,2012 and March 12,2013 samples). Per the Permit, the'Plan and
Time Schedule should have been submitted by April 26,2013. The received Plan and Time Schedule
was dated August 27,2013. Therefore, the period EFR will be considered in violation will be from
the date they should of submitted the plan and schedule for THF (April26,2013) to the date they
actually submitted the time and schedule for THF (August 27 ,2013) for a total of 122 violation days.
The proposed maximum penalty, therefore, would be calculated for 122 days at $500 per day is
$61.000.
ASSIGNED PENALTY AMOUNT WITHIN CATEGORY D.5
DRC consideration of credit as detailed in the Administrative Penalty Policy follows:
A. Historv 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 Finding: According to DRC records, EFR has failed to provide a Plan and Time
Schedule by the due date on one previous occasion"
o Notice of Violation and Order Docket No. UGW1 l-02 (May 9,2011)
Based on this history of this particular violation type, EFR will be given 95Yo credrt for the
history of compliance or non-compliance category.
Notice of Violation Docket No. UGW13-05
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B. Desree of willfulness and/or neslisence:
Four factors need to be considered under the requirements of UAC R317-1-8.3(8), including:
1. 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.
DRC finds that:
EFR states in the Order response that the violation was the result of an oversight in the
re,porting process. EFR was under the impression that the out of compliance requirements
were not applicable to the upgradient monitoring wells since the Director had provided
concrurence that the GWCL'S were recommended for removal on a future Permit renewal.
DRC agrees that the condition that the GWCL removal would not be active until a future
formal process (including public notice requirements) could have been confusing. Based on
this it is recommended that a95Yo credit for this category be granted.
C. Good faith efforts to complv:
Under UAC R3l7-1-8.3(C), this includes the Permittee's openness in dealing with the
violations, promptness in correction of problems, and degree of cooperation with the State.
Based on the NOV Response, it is recommended that 100% credit be granted for this category.
Penalty Calculation
Category D, which is a maximum of $500 per day penalty : $500
Credits:1/3 (max $166) History of Compliance: (95% credit) : $ 158
ll3 (max $166) Degree of Willtulness and./or Negligence: (95% credit) : $ 158
1/3 (ma"x $166) Good Faith Efforts to Comply: (100% credit) : $ 166
Totalcredit - 5482
Penalty per day violation: : $ 18
Number of violation days: X 122
Total Category Penalty (Gravity Component)
ADJUSTMENTS
: $2.196
According to R317-l-8.3, the civil penalty shall be calculated by adding the following adjustments to
the penalty amount:
a. Economic benefit - These include costs which were delayed or avoided due to the non-
compliance. No economic benefit was gained by not providing the required plan and time
schedule.
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Notice of Violation Docket No. UGWI3-05
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b. Investigative costs - No investigative costs are included for these violations. The
violations were the result of inspection findings by DRC.
Proposed Total Civil Penalty for Docket No. UGW13-05: $ 2.196