DRC-2011-007287 - 0901a0688026731d

'.y
State of Utah
GARY R. HERBERT
Govemor
GREG BELL
Lieutenant Governor
Department of
Environmental Quality
Amanda Smith
Executive Director
DIVISION OF RADIATION CONTROL
Rusty Lundberg
Director
MEMORANDUM
TO: File
THROUGH: Phil Goble, Compliance Section Manager
FROM: Tom Rushing, P.G. ^/Z 7/u
August 23, 2011 DATE:
SUBJECT: Notice of Violation and Order Docket No. UGWll-02, Review of Denison Mines
(USA) Corp. (DUSA) June, 13, 2011 response to the NOV, Utah Division of Radiation
Control (DRC) Findings and Proposed Civil Penalty for Standing Violations
This memo is tb provide; 1. The DRC review findings regarding DUSA's June 13, 2011 letter
response (Response) to Notice of Violation and Order Docket No. UGWl 1-02 (Order) and 2. A civil
penalty calculation for standing violations related to the Order.
1. DRC Review of the Response
Per review of the Response, DUSA did not reserve their right to request a hearing before the Water
Quality Board.
The Order requires-DUSA 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 comphance was or will be achieved.
DUSA also requested that certain monitoring well violations be rescinded based on arguments
included in the Response. DRC first reviewed the response to determine which monitoring well
violations were requested to be rescinded and determined whether those violations would stand or x
whether to retract the violation based on the DUSA argumentation.
Table 1 below summarizes the violations cited in the Order, the violations requested to be rescinded
by DUSA per the Response, and the DRC findings.
195 North 1950 West • Salt Lake City, UT
Mailing Address: P.O. Box 144850 • Salt Lake City, UT 84114-4850
Telephone [phone] • Fax [phone] • T.D.D. [phone]
www.deq.utah.gov
Printed on 100% recycled paper
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Table 1 - Summary of Violations NOV and Order Docket UGWri-02, DUSA Responses and DRC Findings
Violation Summary DUSA June 13, 2011 Response DRC Findings
Violation 1 - NOV listed 4
monitoring wells for failure
to achieve stable turbidity
readings prior to
groundwater sampling
during the l""^ Quarter 2010
DUSA disagrees with 1 of the 4
monitoring well violations and
requests that it be rescinded. DUSA
contests the violation for well MW-
20 based on the well having been
pumped dry prior to extraction of 2
well volumes.
DRC concurs that well MW-20 was pumped
dry and per the approved facility QAP, was
not required to conform to the turbidity
stabihzation criteria, thus the violation for
monitoring well MW-20 is retracted.
1 monitoring well violation retracted
3 monitoring well violations stand
Violation 2 - NOV lists 1
monitoring well violation
for failure to achieve stable
turbidity readings prior to
groundwater sampling
during to the June, 2010
accelerated monitoring
event
DUSA disagrees with the violation
and requests that it be rescinded.
DUSA contests the violation based
on monitoring well MW-26 being a
continuously pumping well
(chloroform pumping well) and not
subject to the turbidity stabilization
criteria.
DRC notes that although well MW-26 was
not required to achieve stabilization for
turbidity prior to sampling, the field
parameters which were measured and
recorded on the field sheets showed that the
turbidity was outside of the stabilization
criteria. DRC agrees that since the well is
continuously pumping additional purging is
not necessary. DRC will retract Violation
No. 2 since the turbidity stabilization criteria
were not required at the pumping well.
Order Violation 2 Retracted
Violation 3 - NOV lists 3
monitoring well violations
for failure to achieve stable
turbidity readings prior to
groundwater sampling
during the July, 2010
accelerated monitoring
event
DUSA disagrees with 1 of the 3
monitoring well violations and
requests that it be rescinded. DUSA
contests the violation for monitoring
well MW-26 since it is a
continuously pumping well
(chloroform pumping well) and not
subject to the turbidity stabilization
criteria.
Based on the same criteria as the DRC
findings for Violation 2 DRC will retract the
monitoring well violation for well MW-26
since the turbidity stabilization criteria was
not required at the pumping well.
1 monitoring well violation retracted
2 monitoring well violations stand
Violation 4 - NOV cites 8
monitoring well violations
for exceeding groundwater
GWCL's (8 individual
contaminants) listed in
Table 2 of the Groundwater
Permit for two consecutive
sampling events at specific
monitoring wells
DUSA disagrees with 3 of the 8
monitoring well violations and
requests that they be rescinded.
DUSA contests the violations at
wells MW-18 and MW-27 since they
"were non-required samples
collected in Ql 2010." DUSA also
contests the monitoring well
violation at well MW-30 since an
additional sample for Selenium was
reported between the two
exceedences which had a
concentration below the GWCL.
DRC disagrees with the DUSA explanation
for monitoring wells MW-18 and MW-27.
Accelerated monitoring was instituted by
DUSA and the sample results reported show
two consecutive exceedences of the
respective GWPL's. These 2 violations
stand.
DRC concurs that for well MW-30 an
additional Selenium sample was reported
below the GWPL during July, 2011 and 2
consecutive exceedences did not occur.
DRC will retract this monitoring well
violation.
1 monitoring well violation retracted
7 monitoring well violations stand
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Violation 5 - 1 violation for
failure to provide QA
evaluation and data
validation in the quarterly
report.
DUSA does not contest the violation 1 violation stands
17 monitoring well
violations cited
13 monitoring well violations stand
Each DUSA response to the 5 Order violations is hsted below, followed by DRC findings.
VIOLATIONS
1. Part LE. 1 (a) of the Permit and Section 6.2.7(d)(v) of theDUSA QAP for failing to achieve
stable turbidity conditions before collecting groundwater samples in 4 wells during the 2nd
Quarter, 2010 monitoring event.
a) Root Cause of the Noncompliance
The root cause of the violation with respect to MW-17, 'MW-25 and MW-29 is as follows. At the time
of sampling, the turbidity sensor on the field Hydrolab multi-meter was not functioning properly.
Simultaneously the Mill sampling personnel were under the mistaken understanding that a variance
had been issued by DRC such that purging was complete after the removal of two casing volumes,
regardless of stability of parameters. As a result, the field personnel purged to two casing volumes
when they were unable to collect dependable turbidity readings. ^
DUSA realizes that Notices of Violation have been issued in the past for non-compliance with Section
6.2.7(d)(v) of the QAP, and that DUSA has instructed its field personnel in the past on the proper
interpretation of that Section of the QAP. However, DUSA had already initiated discussions with the
Executive Secretary including a phone call on April 5, 2010 in which it argued that it was not
practicable to obtain stable turbidity conditions in the Mill 's monitoring wells, and proposed that the
QAP be modified to permit low flow sampling instead. These discussions resulted in a formal letter
request of April 2, 2010, and proposed revision to the QAP dated June 4, 2010. This request led to
subsequent correspondence between DRC staff and DUSA and the implementation of a well re-
development program at the Mill, which is currently under way. Mill field sampling personnel were
under the understanding that, in light of these submissions by DUSA and the steps that were being
taken to address the problems that were being encountered with turbidity at the Mill, that DRC had
waived strict compliance with the stable turbidity requirements of the QAP pending resolution of the
issues. ' i
b) Steps That Have Been Taken to Correct the Violation
Mill sampling personnel have been re-instructed that Section 6.2.7(d)(v) of the QAP requires that for
wells that are not purged to dryness, purging is completed after two casing volumes have been
removed AND field parameters have stabilized to within lOpercent over at least two consecutive
measurements. Further, Mill sampling personnel have been reminded that existing provisions of the
QAP must be followed unless and until a formal written variance or modification has been approved
by the Executive Secretary.
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c) Date When Compliance Was or Will be Regained
Compliance was regained in the first quarter of 2011 when all wells that were not purged to dryness
were purged to two casing volumes and achieved stable parameters. Compliance was technically
achieved in the fourth quarter of 2010 when all wells that were not purged to dryness were purged to
two casing volumes and achieved stable parameters (except one well for which the turbidity values
were so low that it is mathematically impossible to generate a percent difference less than 10
percent).
DRC FINDINGS - VIOLATION 1
All the items in Violation No. 1 still stand with one exemption. The DRC agrees that monitoring well
MW-20 was purged dry in the 2"^ Quarter, 2011 samphng event before DUSA collected the sample;
therefore, the DRC Staff agrees that the MW-20 problem can be retracted from Violation No.l. After
considering the Executive Secretary's possible enforcement options, DRC staff believes it is
necessary to pursue a penalty for this violation because this is a repeat violation, as follows:
• After DRC review of the DUSA 1'^ Quarter, 2009 Ground Water Monitoring Report, DUSA
was cited for several groundwater sampling / monitoring problems in a November 17, 2009
NOV (Docket No. UGW09-06). In Violation No. 2 of this NOV, DUSA was cited: .. for
failing to achieve stable turbidity conditions before collecting groundwater samples in 17
wells during the February and March, 2009 monitoring events." In response to the NOV,
DUSA stated that compliance had been regained, in that ''Samples were collected in
accordance with Sections 6.2.7(d)(v) and 6.2.7(d)(vi) of the QAP during the 4^^^ Quarter, 2009
event.''
• During review of the 4^*" Quarter, 2009 Ground Water Monitoring Report, it was observed that
DUSA had the failed to achieve stable parameters in 12 wells during the October, November,
and December, 2009 monitoring events; therefore, the Executive Secretary fined DUSA a
$2,997 Civil Penalty for this problem identified in the 4'^ Quarter, 2009 Report. DUSA paid
the Civil Penalty on August 23, 2010.
2. Part LE.l(a) of the Permit and Section 6.2.7(d)(v) of the DUSA QAP for failing to achieve
stable turbidity conditions before collecting groundwater samples in 1 well during the June,
2010 accelerated monitoring event.
DRC FINDINGS- VIOLATION 2
The DRC agrees with DUSA's argument that stabilization requirements do not apply to pumping
wells; therefore, DRC Staff agrees that Violation No. 2 can be retracted. Although, DUSA sampling
staff collected 4 sets of field parameters for monitoring well MW-26, which showed the groundwater
had not achieved stable parameters before sample collection, DUSA is only required to collect one set
of field parameters before samples collection in pumping wells, per Section 5 of Appendix A of the
DUSA QAP.
3. Part LE.l(a) of the Permit and Section 6.2.7(d)(v) of the DUSA QAP for failing to achieve
stable turbidity conditions before collecting groundwater samples in 3 wells during the July,
2010 accelerated monitoring event.
a) Root Cause of the Noncompliance
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With respect to MW-14 and MW-31, the root cause of the violation is the same as the root cause of
the violations relating to MW-17, MW-25 and MW-29 described in item 1 above.
b) Steps That Have Been Taken to Correct the Violation
Mill sampling personnel have been re-instructed that the Section 6. 2.7(d)(v) of the QAP requires that
for wells that are not purged to dryness, purging is completed after two casing volumes have been
removed AND field parameters have stabilized to within 10 percent over at least two consecutive
measurements.
c) Date When Comphance Was or Will be Regained
Compliance was regained in the first quarter of 2011 when all wells that were not purged to dryness
were purged to two casing volumes and achieved stable parameters. Compliance was technically
achieved in the fourth quarter of 2010 when all wells that were not purged to dryness were purged to
two casing volumes and achieved stable parameters (except one well for which the turbidity values
were so low that it is mathematically impossible to generate a percent difference less than 10
percent).
DRC FINDINGS - VIOLATION 3
All the items in Violation No. 3 still stand with one exemption. The DRC agrees with DUSA's
argument that stabihzation requirements do not apply to pumping wells; therefore, the DRC Staff
agrees that MW-26 can be retracted from Violation No.3. Although, DUSA sampling staff collected
4 sets of field parameters for monitoring well MW-26, which showed the groundwater had not
achieved stable parameters before sample collection, DUSA is only required to collect one set of field
parameters before samples collection in pumping wells, per Section 5 of Appendix A of the DUSA
QAP.
After considering the Executive Secretary's possible enforcement options regarding the other items in
Violation No.3, DRC staff beheves it is necessary to pursue a penalty for this violation because this is
a repeat violation, which is described in detail for Violation No. 1, above.
4. Utah Water Quality Act (UC 19-5-107) and Parts I.C.IO of the Permit for failing to protect
the waters of the State in that 6 contaminants have exceeded their respective GWCL in Table 2
of the Permit for two consecutive sampling events.
a) Root Cause of the Noncompliance
DUSA submits that the violations cited for the following constituents and wells are in error and
should be rescinded:
• successive exceedances in thallium in MW-18 in January and March 2010; and
• successive exceedances in TDS in MW-27 in Ql and Q2, 2010. :
In each of these cases one or both of the samples used in determining two sequential exceedances was
a non-required sample collected in error in Ql 2010. The samples in question were taken as
accelerated samples based on the old Groundwater Compliance Limits (''GWCLs ") and not the
current GWCLs that were set in January 2010. Hence, they were not required to be accelerated under
the new GWCLs and were therefore taken in error. Agreement on handling of results front non-
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required accelerated samples collected in Ql 2010 has already been established in correspondence
between DRC and DUSA dated February 16 and February 17, 2011. Per the February 16, 2011
email from David Frydenlund, approved by Philip Goble on February 17, 2011:
''Accelerated monitoring for subsequent quarters will depend on the application of Part I.G.I of the
permit to results from groundwater samples required to be taken in the first quarter of 2010 and from
any subsequent sample results. The notice requirements of Part I.G.I.a) of the Permit will apply to
any exceedances observed in groundwater samples required to be taken in the first quarter of 2010
and from any subsequent sample results [emphasis added].
The analytical results for any accelerated monitoring that may have taken place in
January 2010 will be kept on file at the Mill but will not be included in the 1st quarter 2010
Groundwater Monitoring Report for the Mill."
Mr. Goble concurred with the determination in this portion of the February 16, 2011 email from
David Frydenlund, in his response on February 17, 2011, stating that
"We agree with everything in your e-mail except the last paragraph"
and adding that:
"If DUSA collected accelerated groundwater samples in January'before the revised Permit was
modified (January 20, 2010) you need to include these results with the 1st Quarter, 2010 GW Report
(due March J, 2010), in order to comply with Part II.F of the Permit."
DUSA believes it was understood at the time that no samples inadvertently taken in Ql 2010 would be
used to determine compliance with Part I.G.I of the Permit, regardless of whether or not they were
taken before or after January 20, 2010. DUSA advised DRC in February 2010 that the fact that the
new GWCLs created a "clean slate" and that no constituents were in accelerated status as of January
20, 2010 was not fully implemented by Mill field sampling personnel until sometime after that date,
and that, as a result, some non-required samples were taken after January 20, 2010. DUSA also
submits that Violation 4, with respect to selenium in MW-30 is in error and should be rescinded.
There were not two successive exceedances of the GWCL for selenium in MW-30 in Ql, Q2 or Q3
2010. The data cited in Table 2 for MW-30 indicates selenium exceedances in Q2 2010 and August
2010. However, there was an intervening monitoring period, July 2010, in which selenium in MW-
30 was 33.5 ug/L compared to a GWCL of 35 ug/L, that is, it was not an exceedance.
With respect to the remaining constituents and wells, namely:
Cadmium MW24
Manganese MWl 1
Selenium MWl2
Thallium MWl 8, MW24
Uranium MW26
TDSMW27
DUSA will submit a Work Plan and Schedule (the "Plan") by June 13, 2011, for Executive Secretary
approval, to evaluate the root cause and response action (if necessary) for the consecutive
exceedances of GWCLs for those constituents in those wells. The Plan will also address any
additional consecutive exceedances identified in Q4 2010 and Ql 2011.
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The Plan will set out a pian and time schedule for assessment of the sources, extent and potential
dispersion of the contamination, and an evaluation of potential remedial action to restore and
maintain groundwater quality to ensure that Permit limits will not be in exceedance at the compliance
monitoring point, as required under Part I. G.4 of the Permit dnd Section EA of the Notice. DUSA is
in the process of determining the root cause through the development and implementation ofthePlan,
once approved.
b) Steps That Have Been Taken to Correct the Violation
Accelerated monitoring of the constituents in the wells identified above is continuing, as required by
Part I.G.4(b) of the Permit. DUSA will siibmit the Plan on or before June 13, 2011, and will
implement the Plan once approved by the Executive Secretary.
c) Date When Compliance Was or Will be Regained
Compliance will be regained in the manner and in accordance with the schedule set out in the Plan,
as approved by the Executive Secretary.
DRC FINDINGS - VIOLATION 4
All the items in Violation No. 4 still stand with one exemption. DRC Staff agrees with DUSA that
there was a selenium sample collected in the July 2010 accelerated monitoring event with a result of ^
33 pg/L, which is less than the Groundwater Compliance Limit (GWCL) of 35 pg/L for selenium in
MW-30; therefore, DUSA is in POOC status for selenium in MW-30, not OOC status. Apparently,
DRC staff inadvertently missed the result during review of the 3'^ Quarter, 2010 Report. /
DUSA also claims that "//i^ violations cited for the following constituents and wells are in error and
should be rescinded:
• successive exceedances in thallium in MW-18 in January and March 2010; and
• successive exceedances in TDS in MW-27 in Ql and Q2, 2010."
The DRC disagrees with DUSA that the above violations are in error and should be rescinded. On
April 5, 2010, the DRC in a conference call regarding the a 4^^ Quarter, 2009 Groundwater Report
told DUSA that any samples collected after the January 20, 2010 Permit Modification would have to
be submitted with the other samples collected during the period and any result would be enforceable
under the Permit. The DRC agreed with DUSA, that any samples collected in the 1^^'Quarter of 2010
before January 20 2010, would not be compared to the new Groundwater Compliance Limits
(GWCLs).
However, since this is the first time that DUSA has been cited for this problem, DRC Staff
recommends that no civil penalty be issued for this problem at this time.
Corrective actions for these violations are tied to violation 5 below. DUSA submitted a plan and
schedule for assessment of the consecutive exceedences on June 13, 2011 as required by the Qrder.
The plan and schedule is currently under DRC review.
Pages
5. Part I.G.4(c) of the Permit for failing to provide a plan and schedule for assessment of the
sources, extent and potential dispersion of the contamination, and an evaluation of potential
remedial action to restore and maintain groundwater quality to insure that Permit limits will
not be exceeded at the compliance monitoring point and that DMT or BAT will be
reestablished.
a) Root Cause of the Noncompliance
DUSA mistakenly believed that it would have a chance to consult with the Executive Secretary in any
circumstance when the concentration of a constituent in two consecutive samples from a compliance
monitoring well exceeds a GWCL, before implementation of the requirements of Part I.G.4 of the
Permit. DUSA assumed that identification of the successive exceedances would result in an
opportunity for joint evaluation with the Executive Secretary for the following reasons:
(i) five of the constituents identified as being OOC (manganese in MW-ll, selenium in MW-
3, and selenium in MW-12, thallium in MW-18, uranium in Mw-26) have already been
identified in DUSA's groundwater background reports of June and October 2007 (the
"Background Reports") as constituents with rising trends in intra-well background
concentrations, for which eventual exceedance of the GWCLs is not unexpected. It was
further acknowledged that the rising trendswere due to natural background influences
and were not caused by Mill operations. The decision flow diagram in the Background
Groundwater Reports contemplated that special consideration would be given to such
constituents when setting GWCLs in the Permit. However, a solution to this problem was
not identified at the time the GWCLs were set in the Permit in January 2010, and the
GWCLs were therefore set as if the rising trends did not exist. DUSA expected that,
because the GWCLs set in the Permit did not recognize these rising trends it would have
a chance to discuss the circumstances with the Executive Secretary at the time any of
these constituents exceeded their GWCLs, especially in light of paragraphs (iii) and (iv)
below;
(ii) one of the constituents (uranium in MW-26) is in a pumping well, which was identified in
the September, 2009 Statement of Basis as follows: "It should be noted that, because
MW-26 is a pumping well for chloroform removal, concentrations of all constituents in that
well are subject to potential variation overtime as a result of the pumping activity. This
will be taken into consideration by the Executive Secretary on determining compliance for
this well." Again, the GWCLs that were set did not properly take into account, the nature
of this well. DUSA expected that it would have a chance to discuss the circumstances
with the Executive Secretary at the time of an exceedance ofany constituent in this well,
especially in light of paragraphs (iii) and (iv) below;
(iii) the questions of rising trends and the influences of pumping were analyzed in detail in the
Background Reports. It is not clear what new or additional analysis could be performed
in a plan and schedule to be submitted under Part I.G.4, in light of this previous analysis.
DUSA therefore assumed that some dialogue would take place before it would be
required to submit a new plan and schedule under Part LG.4 to redo an analysis that had
just recently been extensively analyzed in the Background Reports; and
(iv)from the initial date of issuance of the Permit up until the date of the Notice, there had
been numerous multiple consecutive exceedances of GWCLs, for which the Executive
Secretary did not enforce the requirements of Part I.G.4 of the Permit. Those GWCLs
were set in 2005 as a fraction of the Ground Water Quality Standards for drinking water
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or the equivalent and were not tied to background. We understood this to mean that by
setting GWCLs the Executive Secretary had the ability to enforce against the Permit
holder, but that the Executive Secretary would exercise discretion in enforcing in
circumstances where the GWCLs may not appropriately reflect background. It was this
understanding that led DUSA to believe that any consecutive exceedances of GWCLs
after January 20, 2010, especially in the circumstances described above where the
GWCLs do not take into account rising trends in background or the influences of
pumping, DUSA would have a chance to consult with the Executive Secretary on the
proper course to follow (which could involve changing the GWCLs) prior to initiation of the
provisions of Part I.G.4 of the Permit.
b) Steps That Have Been Taken to Correct the Violation
The Plan will be submitted to the Executive Secretary on or before June 13, 2011. See item 4(b)
above.
c) Date When Compliance Was or Will be Regained
Compliance will be regained on June 13, 2011 upon submission of the Plan.
d) Steps Taken to Prevent Reoccurrence of the Noncompliance
DUSA now understands that the provisions of Part I.G.4 apply to all situations when the
concentration of a constituent in two consecutive samples from a compliance monitoring point
exceeds a GWCL in Table 2 of the Permit, and will act accordingly.
DRC FINDINGS - VIOLATION 5
Since this is the first time DUSA has been cited for this violation, a civil monetary penalty will not be
assessed.
DRC received the DUSA document titled "White Mesa Mill Plan and Time Schedule under for
Violations of Part I.G.2 for Constituents in the First, Second, Third and Fourth Quarters of 2010 and
First Quarter of 2011," via e-mail on June 13, 2011 and a hard copy on June 14, 2011. The document
and transmittal letter are dated June 13, 2011.
The DUSA plan and schedule is currently under DRC review.
2. Civil Penalty 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
L Category Selection (R317-1-8 3)
The table below describes the Water Quality penalty categories.
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Water Quality Penalty Categories (UAC R317-1-8.3)
Category A - $7,000 to $10,000 per day. Violations with high impact on public health and the
environment to include:
Category A.I - 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.
Category 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 B.l - Discharges which hkely caused or would potentially cause (undocumented) public
health effects or significant environmental damage.
Category B.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 B.4 - Any type of violation not mentioned previously which warrants a penalty
assessment under category B.
Category 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 of permit effluent hmits.
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 G.4 - Illegal discharge containing significant or concentrations of non toxic or non
hazardous materials.
Category C.S - 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,
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.
Per discussion above, DRC will only seek penalties for violations for failure by DUSA to achieve
stable parameters prior to collecting groundwater samples. DUSA has been cited for this violation
previously in a November 17, 2009 NOV (Docket No. UGW09-06) and April 20, 2010 NOV (Docket
No. UGWlO-03. DUSA was fined $2,997 for the problem, which they paid on August 23, 2010.
Previous penalty calculafions for the same violafion have been calculated as Category D.5. Therefore,
for consistency the current standing violafions (violations 1 and 3 of the Order) will be calculated in
the same category as in the past.
STATUTORY MAXIMUM PENALTY CALCULATION
Each well that was sampled without stable turbidity is considered to be a single violafion/day.
Therefore a total of 5 violafion days is calculated per the standing violafions as detailed above.
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The statutory maximum penalty for Category D - 5 days X $500 per day = $2,500.
ASSIGNED PENALTY AMOUNT WITHIN CATEGORY D.5
DRC consideration of credit as detailed in the Administrative Penalty Policy follows:
A History of compliance or non-compliance:
Under UAC R317-1-8.3(A), two factors need to be considered, including previous violatioTis
and degree of recidivism.
DRC Finding: DUSA was cited for the same violafion in a past Nofice of Violafion and
Orders,UGW09-06 and UGWlO-03. Per the UGWlO-03 penalty calculafion for this
violation, 50% credit was given. Since this is a re-occurrence and a potential pattern of non-
compliance is evident, the credit will be reduced to 25%.
B. Degree of willfulness and/or negligence:
Four factors need to be considered under the requirements of UAC R317-1-8.3(B), 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 violafion;
3. Whether the violator knew of the legal requirements which were violated;
4. Degree of recalcitrance.
DRC finds that:
• DUSA had control over the events consfitufing the violafion, i.e-, DUSA sampling staff
conducts groundwater sampling and should have followed existing QAP requirements
and allowed field parameters to stabilize within 10% over at least two consecufive
measurements prior to sample collecfion. -
• DUSA could have made a reasonable effort to follow Part I.E. 1(a) of the Permit and
Secfion 6.2.7(d)(v) of the DUSA QAP by allowing field parameters to stabilize within
10% over at least two consecutive measurements prior to sample collection.
• DUSA knew of the legal/Permit/QAP requirements which were specifically hsted in
the DUSA QAP and Permit and also this is a re-occurring violation. DUSA was
previously cited for this same type of violafion during 2009 and 2010.
• To the best of DRC knowledge, there is no recalcitrance regarding the violations,
however, since this is a re-occurrence of this violafion no credit is recommended.
DRC notes that per the previous penalty calculafion for the same violafion (UGW 10-03)
DUSA was given 25% credit. The past calculafion gave some credit for the "degree of
recalcitrance" considerafions. Since this is a re-occurring violation, 0% credit will he given
for this category.
C. Good faith efforts to comply:
Under UAC R317-1-8.3(C), this includes the Permittee's openness in dealing with the
violations, promptness in correction of problems, and degree of cooperafion with the State.
This same violafion has been cited in a past Notice of Violafion and Order (UGWl0-03).
It was noted that the previous penalty calculafion for this same violafion allowed for a 25%
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credit in considerafion of good faith efforts. This will be reduced to no credit based on the
re-occurrence of the same violafion.
Penalty Calculation
Category D, which is a maximum of $500 per day penalty
Credits: 1/3 (max $166) History of Compliance: (25% credit)
i/3 (max $166) Degree of Willfulness and/or Negligence: (0% credit)
1/3 (max $166) Good Faith Efforts to Comply: (0% credit)
Total credit
Penalty per day violafion:
Number of violafion days = 5
Total Category Penalty (Gravity Component)
ADJUSTMENTS
= $500
= $42.00
= $ 0.00
= $ 0.00
= $42.00
= $458.00
= $2,290.00
According to R317-1-8.3, 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. A small economic benefit may have been gained by DUSA since the relevant
well purging did not continue unfil turbidity measurements stabilized (avoided costs),
however, this benefit would be very small and is not possible to quanfify since it is unclear
how much longer the pumping would need to have occurred. Therefore no economic
benefit calculafion will be included in the penalty calculafion.
b. Investigative costs No invesfigafive costs are included for these violations. The violafions
were the result of plan reviews by DRC.
Proposed Total Civil Penalty for Docket No. UGWll-02 (5 Violations): $2,290.00