DRC-2011-007514 - 0901a0688027ebb4

State ofUtah
GARY R. HERBERT
• Governor
GREG BELL
Lieutenant Governor
Department of
Environmental Quality
Amanda Smith
Executive Director
DIVISION OF RADIATION GONTROL
Rusty Lundberg
Director
MEMORANDUM
TO: File
THROUGH: Phil Goble, Compliance Section Manager p|Z^^
FROM: TomRushmg, F.G.
DATE: October 13,2011
SUBJECT: Notice of Violation and Order Docket No. UGWl 1-04, Review of Denison Mines
(USA) Corp. (DUSA) September 19, 2011 response to the NOV, Utah Division of
Radiation Conlrol (DRC) Findings and Proposed Civil Penalty for Standing Violations
This memo is to provide; 1. The DRC review findings regarding DUSA's September 19, 2011 letter
response (Response) lo Notice of Violalion and Order Docket No. UGWl 1-04 (NOV), and 2. A civil
penalty calculation for standing violations related to the NOV.
1. DRC Review of the Response
Per review of the Response, DUSA did not reserve their right to request a hearing before the Waler
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 laken to prevent re-occurrence of the noncompliance,
c) Date when compliance was or will be achieved.
Table 1 below summarizes the violations cited in the Order, the violations requested to be rescinded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, iiiiv
Printed on lOO'/c recycled p;iper
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Table 1 - Sunnmary of Violations NOV and Order Docket UGWl 1-04, DUSA Responses and PRC Findings
Violation Summary DUSA September 19, 2011 Response DRC Findings
Violation 1 - NOV cites
violation of Parts I.E. 1(b)(2)
and I.G.l(b)l of the
Groundwater Permit for
failing to accelerate samples
for TDS in wells MW-26 and
MW-31 and Uranium in well
MW-25 during December
2010.
Failure to Accelerate
Violation
DUSA does not contest the violation. DRC notes that this Violation type has
been cited in 3 previous NOVs,
UGW07-04, UGW08-01 and UGW08-
02.
A penalty has been calculated for the
violation.
1 Violation Stands
Violation 2 - NOV cites
violation of Part I.e. 1(a) of
the Groundwater Permit and
Section 8.2 and Table 1 of the
DUSA QAP for failing to
perform analysis for mercury
in 10 wells and one blind
duplicate within the
recommended holding time
(28 days).
Sample Holding Time
Violation
DUSA requests retraction of the
violation and believes that
affirmative defense per Part I.G.3.(c)
of the Groundwater Permit is
applicable. Specifically, per the
September 19, 2011 DUSA response
(and Appendix B - January 26, 2011
DUSA Notice) it is argued that:
1. DUSA provided oral and
written notification per
requirements of UACR317-
6-6.13,
2. The holding time
exceedances were not
intentional or caused by
negligence but were caused
by a "misinterpretation" of
the required holding time by
the contract laboratory,
3. DUSA has taken adequate
measures to meet permit
conditions by notifying the
contract laboratory of the
holding time discrepancy.
4. Provisionsof UCA 19-5-107
have not been violated since
the violation did not result in
a pollutant discharge into
waters ofthe State.
DRC notes that this violation type has
been cited previously in an April 1,
2008 NOV (UGW08-02, Violation #3).
The violation is related to "Ground
Water Compliance" Monitoring and
does not fall under monitoring types for
DMT or BAT (See Parts I.E.? and I.E.8
of the Groundwater Permit for
specifics). Therefore, DUSA's proposal
for DRC to retract the violation based
on Part I.G.3.(c) of the Groundwater
Permit 'Affirmative Defense'' is not
applicable.
However, in consideration of the
affirmative defense arguments made by
DUSA, DRC will allow full credit in
the penalty calculation for: 1. Degree of
Willfulness and/or Negligence, and, 2.
Good faith efforts to comply.
1 Violation Stands
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Violation 3 - NOV cites
violation of Part I.E. 1(a) of
the Groundwater Permit and
Section 7.1 and Attachment 1
ofthe DUSA QAP for failing
to use the currently approved
Field Data Worksheet for
Groundwater for the 4'^
Quarter 2010 monitoring
events.
Fieldsheet Violation
DUSA requests retraction of the
violation. DUSA states that the field
sheet used for the 4^^ Quarter 2010
monitoring contained the same
information as the field sheet in the
DUSA QAP Revision 6 and was only
different in appearance. DUSA
states that these cosmetic changes
were required for the electronic data
capture system which was
implemented in 2010. DUSA also
provides an Appendix A with the
September 19, 2011 letter which
compares the two forms side by side
to show that the information tabs are
the same.
Based on DRG review ofthe Field Data
Sheets provided as Appendix A of the
DUSA September 19, 2011 response to
NOV Docket UGWl 1-04 it appears that
all information required on Attachment
1 of the DUSA QAP, Revision 6 was
included on the altemate form.
Therefore, DRC agrees with DUSA's
response that the forms are functionally
equivalent. ,
1 Violation Retracted
3 violations cited 2 violations stand
Each DUSA response lo the 3 NOV violations is listed below, followed by DRC findings.
VIOLATION 1
DUSA RESPONSE - VIOLATION 1
1. Parts I.E.l(b)(2) and I.G.l(b)(l) of the Permit for failing to accelerate samples for TDS in
wells MW-26 and MW-31 and Uranium in well MW-2S during December 2010. This is also a
continuing violation previously cited in three DRC NOVs dated January 11, 2008 (UGW07-04),
February 28, 2008 (UGW08-01), and April 1, 2008 (UGW08-02).
a) Root Cause of the Non compliance
The Denison Corporate Quality Assurance Manager noted the exceedances ofthe Groundwater :
Compliance Limits ("GWCLs") for Q3 2010 and appropriately reported the exceedances in the
November 15, 2010 Exceedance Notice. The Quality Assurance Manager failed to notify Mill
Personnel ofthe additional accelerated sampling requirements. The Denison Corporate Quality
Assurance Manager noted this oversight during the 4t quarter 2010 data review, and accelerated
monitoring was started in January 2011.
b) Steps That Have Been Taken to Correct the Violation
Denison recently purchased a commercial database system for management of the Mill groundwater
data. After all data are entered and have undergone quality control review, the database/data
management capabilities ofthe software system will allow the Corporate Quality Assurance Manager
to provide the exceedance results to the Mill Personnel in a more timely fashion. In addition, after
completion of training, data reports will be accessible to the Mill Personnel directly which would
allow them to detennine what analytes require accelerated monitoring in addition to the notification
from the Corporate Quality Assurance Manager.
c) Date When Compliance Was or WiU be Regained
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Monitoring for TDS in MW-26 and MW-31 and uranium in MW-25 was accelerated in January 2011
as required.
d) Steps Taken to Prevent Reoccurrence of the Noncompliance
See item (b) above.
DRC FINDINGS - VIOLATION 1
DRC notes that this violation type (acceleration of sampling) has been cited previously in three DRC
NOVs dated January 11, 2008 (UGW07-04), February 28, 2008 (UGW08-01), and April 1, 2008
(UGW08-02). DRC will calculate a monetary penalty for the reoccurring violation.
DRC accepts that the violation was the result of failure to provide the proper notification of the need
for accelerated moniloring lo the White Mesa Mill personnel. Additionally, DRC notes that DUSA
has provided a mechanism to avoid this communication failure in the future.
VIOLATION 2
DUSA RESPONSE - VIOLATION 2
2. Part I.EJ(a) of the Permit and Section 8.2 and Table 1 ofthe DUSA QAP for failing to
perform analysis for mercury in 10 wells (MW-1, MW-3, MW-3A, MW-12, MW-18, MW-19,
MW-20, MW-23, MW-26, and MW-34) and one blind duplicate (MW-70) within the
recommended holding time (28 days). This is also a continuing violation previously cited in the
April 1, 2008 NOV (UGW08-02, Violation #3).
Denison submitted a notice on January 26,2011, under Part I.G.3, which asserted an affirmative
defense under l.G:3.(c) of the Permit and UAC R-317-6-6.16C.3 in association with this violation.
This Notice of Violation did not indicate that the Executive Secretary had considered thai submittal. A
copy ofthe January 26, 2011 notice is attached as Appendix B to this letter, for your convenience.
Denison believes that the affirmative defense in Part I.G.3.(c) of the Pennit is applicable to this
incident and that this violation should be retracted.
a) Root Cause of the Noncompliance
1. Facts and Background Information
a) Denison performed its routine review of laboratory data from Energy Laboratories (UEL") and
Americ'a West Analytical Laboratories for compliance with requirements ofthe QAP during the
week of January 17, 2011.
b) The currently approved Denison White Mesa Mill QAP, Table 1, requires the use of Method
E200.8for the analysis of mercury. This table also requires a 28 day holding time for mercury;
that is, that samples be analyzed for mercury within 28 days of the date ofsample collection.
c) EL has performed all the metals analyses for the Mill's groundwater program, since prior to
1995. EL performed the mercury analysis for the Mill's fourth quarter 2010 groundwater r
samples. EL has consistently been able to meet a 28 day holding time for mercury samples;
that is, they have consistently performed mercury analysis within 28 days ofthe sample
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collection.
d) During the week of January 17, 2011, Denison identified that 10 groundwater samples and one
duplicate sample analyzed by EL for mercury were analyzed after the 28 day holding time had
expired. Denison contacted EL regarding the lab's failure to meet the holding time required in
the QAP.
e) EL is currently Utah State certified for, and uses for Denison's groundwater analyses, Method
200.8 Determination of Trace Elements in Water and Wastes by Inductively Coupled PlasmaMass
Spectrometry, Revision 5.4 dated 1994. This method, which is required by the QAP, lists
the holding time for mercury as 6 months. This method is the currently promulgated method
per 40 CFR 141 and 143 (September 1998). A proposed update. Draft Revision 5.5, has not
been approved by EPA.
f) Denison collected all the samples for groundwater mercury during the period from November
15 to November 29, 2010. EL received all of Denison's fourth quarter groundwater mercury
samples during the period from November 19, 2010 through November 24, 2010. Due to the
laboratory staff schedules during the holidays, EL did not have enough available staff to
analyze the mercury samples within the 28 day hold time, which expired on December 13, 2010
for the earliest, and December 28, 2010for the latest of the mercury samples.
g) Denison received the initial data reports containing two ofthe mercury results on December 30,
2010, too late to perfonn re-sampling within the fourth quarter. Denison received the remainder
ofthe needed data reports required for the quality assurance review, afterthe close ofthe
fourth quarter, on January 6, 2011.
h) Following Denison's review of the data, during phone conversations and emails with EL, the lab
advised Denison that:
a. there was room for confusion in interpreting the discrepancy between the. 6-month hold,
time identified in Method 200.8 Revision 5.4 and the 28-day hold time identified in 40
CFR 141 and 143. This is particularly so given footnote 3 in the table in 40 CFR
141.23(k)(2), which states that:
"In all cases, samples should be analyzed as soon after collection as possible.
Follow additional (if any) information on preservation, containers or holding
times that is specified in the method."
, This could be interpreted to mean that the more specific, 6-month holding time
requirement in the method should prevail over the holding time specified in the table,
and
b. EL assumed the 6-month hold time in approved Method 200.8 Revision 5.4 was
applicable. Based on EL's interpretation, EL assumed that the 6-month hold time was
applicable and the samples were not out of hold.
i) Denison concluded that regardless ofthe holding time stated in EL's certified Method, the 28-
day hold time stated in the QAP should be considered correct and should be adhered to for the
following reasons:
a. The Mill's QAP requires a 28-day holding time.
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b. The September 1998 publication of 40 CFR 141 and 143 states a 28-day holding time
(notwithstanding footnote 3 referred to above).
c. Industry standards and practice appear to require a 28-day holding time for mercury.
d. In the draft revision 5.5. of Method E200.8, the holding time for mercury has been
changed to 28 days, presumably to be consistent with industry practices and
standards.
The root cause analysis is as follows.
a) There exists a discrepancy between the holding time stated in the approved Method 200.8
Revision 5.4, for which EL is certified, and other statements of holding time for this method, as
appear in the 1998 40 CFR 141 and 143, and the proposed update to Method 200.8.
b) There was some confusion on the part ofthe lab in determining the applicable holding time.
The lab misinterpreted the discrepancy. Operating uiider the assumption that the 6-month
holding time was applicable, the lab did not analyze the samples in time or notify Denison in
time to recollect samples to meet a 28-day holding time.
h) Steps That Have Been Taken to Correct the Violation
The following actions will have already been taken to prevent a reoccurrence ofthis incident:
a) As stated above, Denison re-contacted EL by email and informed the lab that:
a. The 2B-day mercury hold time in the QAP is applicable and mandatory regardless of
EL's interpretation of a longer hold time as stated in their certified method.
b. EI is required for all future samples to meet the 2B-day hold time for mercury.
c) Date When Compliance Was or Will be Regained
All mercury analyses conducted since this occurrence in 4th Quarter 2010 have been cornpleted
within the
2B-day holding time as required.
d) Steps Taken to Prevent Reoccurrence of the Noncompliance
As previously stated, Denison has purchased a commercial database system. The datcibase/data
management software will automatically note any holding time deviations at the time the data are
loaded by the laboratory. This would allow resampling efforts to be conducted immediately. As
mentioned above, Denison believes that the affirmative defense in Permit I.G.3.(c) ofthe Permit is
applicable to this incident and that this violation should be retracted.
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DRC FINDINGS- VIOLATION 2
DRC notes that this violation lype (sample not analyzed within recommended holding time) has been
cited previously in an April 1, 2008 NOV (UGW08-02, Violation #3. DRC will calculate a monetary
penalty for the reoccurring violation.
The violation is related to "Ground Water Compliance Monitoring" and does not fall under
monitoring types for DMT or BAT. Therefore, DUSA's request for DRC lo retract the violation
based on Part I.G.3.(c) of the Groundwater Permii 'Affirmative Defense" is not applicable.
However, in consideration of the affirmative defense arguments made by DUSA, DRC will allow full
credit in the penalty calculation for: 1. Degree of Willfulness and/or Negligence, and, 2. Good faith
efforts to comply.
VIOLATION 3
DUSA RESPONSE - VIOLATION 3
3. Part LE.I (a) of the Permit and Section 7.1 and Attachment 1 of the DUSA QAP for failing to
use the currently approved Field Data Worksheet for Groundwater for the 4th Quarter
(November) and December, 2010 monitoring events, as found in Attachment 1 of the currently
approved DUSA QAP, Revision 6.0.
a) Root Cause of the Noncompliance
DUSA respectfully submits that Violation Number 3 is in error and should be retracted.
The field data sheet used for the 4th Quarter and December 2010 monitoring events is the same field
sheet contained in the approved QAP, with cosmetic changes only, to facilitate electronic data
capture. Denison began implementing an electronic data capture system in 2010. The system required
cleaner, darker formatting ofthe printed pages, specific fonts, marked cells for handwritten data, and
use of shaded electronic watermarked paper. Only these improvements were rriade to the field form.
All content and data contained in the Attachment 1 ofthe approved QAP have been retained in
approximately the same location on the page. Use of manually filled, handwritten, hand signed hard-
copy sheets in waterproof ink has been retained.
It is also important to note that the approved QAP, Section 7.1 requires the use ofa field data sheet,
and notes that "An example ofa Field Data Worksheet that incorporates .... is included as Attachment
1." The QAP does not state that the form included in Attachment 1 will be used, but is an example ofa
form that incorporates the required information. Based on the wording of the currently approved
QAP, any form that incorporates the required information is allowable. Nonetheless, Denison has
coritinued to use the same form as provided in Attachment 1 ofthe QAP, with no data added or
removed, or relocated on the pages. The Field Data Worksheet simply has been cosmetically changed
for ease of digital transfer. The wording in the approved QAP does not preclude the use of a re- .
fonnatted Field Data Worksheet provided the required infonnation is collected.
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To assist with confirmation that the data sheets are the same, short of the cosmetic changes, DUSA
has attached copies of both the form included in Attachment 1 of the currently approved QAP
("Attachment 1") and the re-fonnatted data sheet. Each data input location on Attachment 1 has been
numbered. The same number has been recorded in the corresponding data input location on the re-
formatted field data sheet. Both sheets with the numbered data input locations are included as
Appendix A to this response letter. It is important to note that all data input locations noted on
Attachment 1 (numbers 1 through 60) are represented on the re-formatted field data sheet; that is, the
data collection requirements are identical. A second set ofthe same Attachment 1 and refonnatted
Attachment 1 have also been included showing each ofthe pages withnumbered content side-by-side.
b) Steps That Have Been Taken to Correct the Violation
The following steps have been taken to correct the violation:
DUSA believes it is already in compliance with the requirements ofthe QAP for field data collection
and no violation has occurred.
c) Date When Compliance Was or Will be Regained
DUSA believes it is already in compliance with the requirements of the QAP for field data collection
and no violation has occurred.
d) Steps Taken to Prevent Reoccurrence of the Noncompliance
DUSA believes it is already in cornpliance with the requirements of the QAP for field data collection
and no non-compliance situation has occurred.
DRC FINDINGS - VIOLATION 3
Based on DRC review of the Field Data Sheets provided as Appendix A of the DUSA Seplember 19,
2011 response to NOV Docket UGWl 1-04, it appears that all information required on Attachment 1
of the DUSA QAP, Revision 6 was included on the altemate form. Therefore, DRC agrees with
DUSA's response that the forms are functionally equivalent and retracts the violation.
2. Civil Penaltv Calculation
WATER OUALITY PENALTY CRITERIA
According to R317-1-8 (Penally Crileria for Civil Settlement Negotiations), the penalty calculation
methodology consists of the following formula:
CIVIL PENALTY = PENALTY + ADJUSTMENTS - ECONOMIC AND LEGAL
CONSIDERATIONS
I. Category Selection (R317 18.3)
The table below describes the Water Quality penalty categories.
Water Quality Penalty Categories (UAC R317-1-8.3)
Categorv A - $7,000 lo $10,000 per day. Violations with high impact on public heakh and the
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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. ' ^
Categorv 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 likely 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. •.
Categorv 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 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.S - Any type of violation not mentioned previously which wan ants a penalty
assessment under category C.
Categorv 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 effluenl limits.
Category D.2 - Minor violations of compliance schedule requirements.
Category D.3 - Minor violations of reporting requirements.
Category D.4 - Illegal discharges nol covered in Categories A, B and C.
Category D.S - Any type of violations not mentioned previously which warrants a penalty
assessment under category D. .
Violation 1 - Parts I.E.l(b)(2) and I.G.l(b)(l) of the Permit for failing to accelerate samples for
TDS in wells MW-26 and MW-31 and Uranium in well MW-2S during December 2010. This is
also a continuing violation previously cited in three DRC NOVs dated January 11, 2008
(UGW07-04), February 28, 2008 (UGW08-01), and April 1, 2008 (UGW08-02).
Violation 1 - Penaltv Categorv and Dates of Noncompliance -
Penalty Category: Penalties for Violation 1 will be calculated as Category D.3 Minor Violations of
Reporting Requirements with penalties up to $500 per day. DRC considers Category D to be
appropriate and consistent with previous penalty calculations for this violation type. The DUSA
failure to accelerate monitoring for TDS in wells MW-26 and MW-31 and Uranium in well MW-25
during December 2010 resulted in the loss of 1 monthly sample (December 2010) for two parameters
in three wells.
Calculation of violation days: DUSA exceeded the TDS GWCL in wells MW-26 and MW-31 and
the Uranium GWCL in well MW-26 in the 3^^ Quarter, 2010 sampling event. The accelerated sampling
for these parameters should have begun with the December 2010 accelerated monitoring event. Per the
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DUSA September 19, 2011 response to the NOV, DUSA accelerated monitoring for TDS in
moniloring wells MW-26 and MW-31 and uranium in monitoring well MW-25 in January 2011.
Since the monitoring should have been accelerated in December 2011, the effective period of non-
compliance is 1 month (30 days).
The proposed maximum penalty, therefore, would be calculated for 30 days at $500 per day is
$15,000.
Violation 2 - Part I.E.I(a) of the Permit and Section 8.2 and Table 1 of the DUSA QAP for
failing to perform analysis for mercury in 10 wells (MW-1, MW-3, MW-3A, MW-12, M\V-18,
MW-19, MW-20, MW-23, MW-26, and MW-34) and one blind duplicate (MW-70) within the
recommended holding time (28 days). This is also a continuing violation previously cited in the
April 1, 2008 NOV (UGW08-02, Violation #3).
Violation 2 - Penaltv Categorv and Dates of Noncompliance
Penalty Category: Category D.3 is also considered applicable for the holding time violation. Failure
to analyze within the holding time for the applicable parameters/monitoring wells resulted in a loss of
the data for the 4"'quarter of 2010.
Calculation of violation days: Per the DUSA September 19, 2011 response to the NOV, DUSA
notes that the 4'*^ Quarter 2010 samples were not analyzed/reanalyzed within holding times and that
the 4"^ quarter sarnple dala was therefore lost. Therefore, the violation occurred over a period of a
sampling quarter (90 days).
The proposed maximum penalty, therefore, would be calculaled for 90 days at $500 per day is
$45,000.
VIOLATIONS 1 AND 2 STATUTORY MAXIMUM PENALTY CALCULATION
The statutory maximum penalty for Violations 1 and 2, Category D.3 would be calculated for 120
days at $500 per day is $60,000.
ASSIGNED PENALTY AMOUNT WITHIN CATEGORY D.S
DRC consideration of credit as detailed in the Administrative Penalty Policy follows:
VIOLATION 1
A. Historv of compiiance or non-compliance:
Under UAC R317-1-8.3(A), two factors need lo be considered, including previous violations
and degree of recidivism.
DRC Finding: According lo DRC records, DUSA has failed to accelerate monitoring
previously and has been cited for the violation type 3 limes since 2007, as follows:
• NOV Docket No. UGW07-04 (November 2007) - Failure to accelerate groundwater
monitoring from quarteriy to monthly for gross alpha in monitoring well MW-32.
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• NOV Docket No. UGW08-01 (February 2008) - Failure to accelerate groundwater
monitoring from quarterly to monthly for gross alpha in monitoring well MW-32.
• NOV Docket No. UGW08-02 (April 2008) - Failure to accelerate groundwater
monitoring from quarterly to monthly for gross alpha in monitoring well MW-32.
Per these past violations, DUSA was given a 100% credit for history of compliance or non-
compliance. For this calculation DRC is reducing the credit and will apply 50% credit for the
History of Compliance category.
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 violation; :
3. Whether the violator knew of the legal requirements which were violated;
4. Degree of recalcitrance.
DRC finds that:
j .
• DUSA had control over the events constituting the violation and is ultimately responsible for
recognizing exceedances of the GWCLs collecting the accelerated samples it is required to
take.
• DUSA could have made a reasonable effort to prevent the violation by properiy accelerating
sampling for TDS in MW-26 and MW-31 and Uranium in MW-26 quarterly to monthly.
• DUSA knew of the legal/Permit requirements which were violated which are specifically listed
in Part I.E. 1(c)(2) and Part I.G.l(b)(r) of the Permit, signed by the Executive Secretary on
March 8, 2005.
• To DRC knowledge, there is no indication of recalcitrance. However, DUSA has been cited
for this problem in four separate violations.
Therefore, a credit of 25% was given for willfulness or negligence.
C. Good faith efforts to comply:
Under UAC R317-1-8.3(C), this includes the Permittee's openness in dealing with the
violalions, promptness in correction of problems, and degree of cooperation with the Stale.
Per the DUSA Seplember 19, 2011 response lo the NOV, the violation was caused by a failure
to provide timely communication from corporate headquarters lo the mill. DUSA has
implemented a new process to avoid this type of violation in the future. Considering that this
is a first time violation, and that DUSA has provided corrective action, DUSA was given 75%
credit for "good failh efforts to comply" category.
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Penalty Calculation
Violalion 1
Category D, which is a maximum of $500 per day penalty
Credits: 1/3 (max $166) History of Compliance:
1/3 (max $166) Degree of Willfulness and/or Negligence:
1/3 (max $166) Good Failh Efforts lo Comply:
Penalty per day violation: =
Number of violation days:
Total Category Penalty (Gravity Component)
ADJUSTMENTS
(50% credit)
(25% credit)
(75% credit)
Total credit
= $ 500
= $ 83
= $ 42
= $ 125
= $ 250
$250
X 30
= $ 7,500
According to R317-1-8.3, the civil penally shall be calculated by adding the following adjustments to
the penalty amount:
a. Economic benefit (Cost Avoided) gained as a result of non-compliance. Part I.G. 1(b) of
the Permit mandates that when a pollutant in a compliance monitoring sample exceeds a
GWCL in Table 2 of the Permii, DUSA shall immediately initiate accelerated sampling Of
the pollutant as required in Part I.E. 1(c)(2) and Part I.G. 1(b)(1) of the Permii. DUSA
saved money by failing to accelerate sampling for TDS in wells MW-26 and MW-31
Gross Alpha in MW-32 from quarterly to monthly, as shown below:
2 day of sampling (8 HiVday)
to sample (3 Samples)
2 Employees @ $30/hr each $960
Ship samples to lab (1 cooler) Around $75 to ship $75 ^
Laboratory Analysis 3
samples (2 TDS, 1 Total U)
Approx $35 each sample $105
Total Amount Saved by not accelerating TDS sampling in
wells MW-26 and MW-31 and Uranium in well MW-26.
$1,140
b. Investigative costs - No investigative costs are included for these violations. The
violalions were the result of routine inspection findings by DRC.
Grand Total: Penalty Calculation ($7,500 -\- Economic Benefit ($1,140) = $8,640
VIOLATION 2
A. Historv of compliance or non-compliance:
Under UAC R317-1-8.3(A), two factors need to be considered, including previous violations
and decree of recidivism.
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DRC Finding: According to DRC records, DUSA has failed to meet sample holding times
previously and was cited for the violation type in 2008 as follows:
• NOV Docket No. UGW08-02 (April 2008)-Failure to analyze carbonate and
bicarbonate in October 30, 2007 sample from well MW-19 within 14 day maximum
holding time.
DRC notes that a penalty has nol been calculated for this penalty lype in the past. DRC will
provide a 75% credit for this category.
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 ofthe 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:
100% credit will be given for this category based on the statements of "affirmative defense" in
the DUSA January 26, 2011 notice to DRC. The letter was included as Appendix B of the
Seplember 19, 2011 response to the NOV.
C. Good faith efforts to comply:
Under UAC R317-1-8.3(C), this includes the Permittee's openness in deahng wilh the
violations, promptness in correction of problems, and degree of cooperation with the State.
DRC finds that:
100% credit will be given for this category based on the statements of "affirmative defense" in
the DUSA January 26, 2011 notice lo DRC. The letter was included as Appendix B of the
September 19, 2011 response lo the NOV.
Penalty Calculation
Violation 2
Category D, which is a maximum of $500 per day penally =$500
Credits: 1/3 (max $166) History of Compliance: (75% credit) =$ 125
1/3 (max $166) Degree of Willfulness and/or Negligence: (100% credit) = $ 166
1/3 (max $166) Good Faith Efforts to Comply: (100% credit) = $ 166
Total credit = $457
Penalty per day violation: = $ 43
Number of violation days: X 90
Page 14
Total Category Penalty (Gravity Component) = $ 3,870
ADJUSTMENTS
According to R317-1-8.3, the civil penalty shall be calculated by adding the following adjustments to
the penalty amount determined above:
1. Economic benefit gained as a result of non-compliance;
2. Investigative costs incurted by the State and/or other governmental levels; and
3. Documented monetary costs associated with environmental damage.
There was no economic benefit gained by DUSA since the laboratory analysis was completed
regardless of the holding time violation. Based on the degree of the violation (Category D.3),
investigative costs incurted by govemmental agencies are not included.
ADJUSTMENTS
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 nouT-
compliance.
Economic benefit was gained for violation 1, failure to accelerate. Specifically, DUSA
avoided the costs of Mercury sample collection and analysis for December 2010, for the
affected monitoring wells. The table below summarizes DRC calculation of the avoided
cost:
1 day of sampling (8 Hr/day)
to sample (3 Samples)
2 Employees @ $30/hr each $480
Ship samples to lab (1 cooler) Around $75 to ship $75
Laboratory Analysis 3
samples (2 TDS, 1 Total U)
Approx $35 each sample $105
Tolal Amouni Saved by not accelerating Mercury sampling $660
DUSA did not gain economic benefit for violalion 2 since the laboratory analysis was
completed regardless of the holding time violation. Therefore, no economic benefit
calculation will be included in the penalty calculation.
b. Investigative costs - No investigative costs are included for these violations. The
violations were the result of routine inspeclion findings by DRC.
Proposed Civil Penalty for Docket Nos UGWl 1-04
Violation 1 - $ 8,640.
Violation 2 - $ 3,870.
TOTAL $ 12,510.