DRC-2011-007513 - 0901a0688027ebb2

State of Utah
GARY R. HERBERT
Govemor
GREG BELL
Lieutenant Governor
n n
Department of
Environmental Quality
Amanda Smith
Executive Director
DIVISION OF RADIATION CONTROL
Rusty Lundberg
Director
October 12, 2011
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Jo Ann Tischler, Director, Compliance and Permitting
Denison Mines (USA) Corp.
1050 17'*^ Street
Suite 950
Denver, CO 80265
ru
LH
cr
•
•
a
o
O
O
r-
U.S. Postal Service™
GERTIFIED MAIL. RECEIPT
\{Dt>inestic Maitdtily; No Insurance^ Coverage Provided)
For delivery iriformation visit our website at .vww.usps.c^
<-'^ p 1 r 1 a 1 u ^
%„# ill %5# i mm ^ Postage $
Certified Fee
D^etm Ctrl'-
RE: findings & settlement agreement/ TR
Jo Ann Tischler
Denison Mines (USA) Corp
1050 Seventeenth ST, STE 950
Denver, Co 80265
PS Form 3800. August 2006 See Reverso for Insti uctions
Subject: July 6, 2011 Denison Mines (USA) Corp. (DUSA) Response to DRC Notice of
Violation UGWl 1-05: DRC Findings and Proposed Settlement Agreement
Dear Ms. Tischler:
The Utah Division of Radiation Control (DRC) has reviewed DUSA's July 6, 2011 response to the
DRC June 2, 2011 Notice of Violation and Compliance Order, Docket No. UGWl 1-05 (NOV). The
table below summarizes the violations cited in the NOV, DUSA responses, and DRC Findings:
Violation Summary -DUSA July 6, 2011 Response DRC Findings
Violation 1 - NOV lists 1 violation
of the White Mesa U-Mill
Groundwater Discharge Permit
UGW370004 (Permit) for failure to
provide at least a 14 calendar day
written notice for the installation of
monitoring wells MW-36 and MW-
37 [Violation of the Permit Part
l.H.4(c)]
DUSA states that the drilling program
start date was unspecified at the time the
project schedule dates were "diarized"
and that as a result, the Permit notice
requirement was "inadvertently
overlooked." DUSA does not contest
the violation.
Violation Stands
Violation 2 - NOV lists 1 violation
ofthe Permit for failure to provide at
least a 14 calendar day written
notice for the installation of wells
for the Southwest Investigation
[Violation of the Permit Part
I.H.6(g)]
DUSA states that the root cause of the
violation was the same as violation 1.
DUSA does not contest the violation
Violation Stands
2 violations cited 2 violations stand
195 North 1950 West • Salt Lake City. UT
Mailing Address: P.O. Box 144850 • Salt Uke City. UT 84114-4850
Telephone [phone] • Fax [phone] • T.D.D. [phone]
www.Heq.Utah. HOY
Printed on lOO'J'f recycled paf)er
Page 2
Based on the above, DRC has calculated a proposed civil penalty for the 2 violations, the calculation
and justification is attached (DRC Review Memo).
Also, 2 copies of a Settlement Agreement (SA) contract, based on the proposed civil penalty are
attached. If you wish to resolve the May 9, 2011 Order based on the enclosed calculations, please
review the SA and sign both copies (do not date them), and then retum them both to this office
within ten (10) calendar days of receipt of this letter.
Thereafter, the Co-Executive Secretary will sign and date the SA's and retum one original to you.
Payment of the penalty will then be due within 30 calendar days of the date the final SA document is
signed by the Co-Executive Secretary.
If you would like to discuss the proposed monetary penalty or the content of the SA further, please
contact Tom Rushing at [phone] to arrange a settlement meeting or conference call.
Sincerely,
UTAH WATER QUALITY BOARD
Rusty Lundberg
Co-Executive Secretary
Enclosures: 1. DRC Review Memo (including the proposed penalty calculation), 2. Settlement Agreement Contract
UGWl 1-05SA (2 copies)
RL:TR:tr
F:\DUSA\UGW11-05\UGW] 1-05 DRC Violations Findings Resp Ltr.doc
Denison Mines (USA) Corp.
White Mesa Mill
Settlement Agreement, Docket No. UGWl 1-05SA
UTAH WATER QUALITY BOARD
IN THE MATTER OF
DENISON MINES (USA) CORP.
1050 17™ STREET, SUITE 950
DENVER, CO 80265
SETTLEMENT AGREEMENT
DOCKET NUMBER UGW11-05SA
This SETTLEMENT AGREEMENT (hereinafter "AGREEMENT") is between DENISON
MINES (USA) CORP. (hereinafter OPERATOR") and the UTAH WATER QUALITY
BOARD (hereinafter the "BOARD"), conceming violations of the Utah Water Quality Act (the
Act), Utah Code Annotated ("UCA") §§19-5-101 to -124, andthe Utah Administrative Code
("UAC")R3I7-1 to-560.
1. The BOARD has authority to administer the Utah Water Quality Act, and the Utah
Administrative Code. UCA §§19-5-106, -115.
2 The CO-EXECUTIVE SECRETARY of the BOARD (hereinafter the EXECUTIVE
SECRETARY") will administer the terms and provisions ofthis AGREEMENT.^ UCA
§§19-5-106 and 115.
3. This AGREEMENT resolves the 2 violations cited in the NOTICE OF VIOLATION and
ORDER, Docket Number UGW 11-05 (hereinafter the "NOTICE") issued to the
OPERATOR on June 2, 2011, by the BOARD. It does not in any way relieve the
OPERATOR from any other obligation imposed under the Act or any other State or
Federal laws.
4. The parties now desire to resolve this matter fully without further administrative
proceedings except to the extent provided herein by entering into this AGREEMENT.
Entering into this AGREEMENT is not an admission of liabihty or factual allegation set
out in the NOTICE, nor is it an admission of or an agreement to any disputed facts or
disputed legal theories, nor is it an admission of any violation of any law, rule, regulation or
permit by the OPERATOR.
5. In resolution of violations of the NOTICE referenced in Paragraph 3 of this
AGREEMENT, the OPERATOR agrees to pay a total penalty amount of $7348 within
30 calendar days of the effective date of this AGREEMENT by check. The check will be
made payable to the State ofUtah, delivered or mailed to the Division ofRadiation Control,
Department of Environmental Quality, 195 North 1950 West, P.O. Box 144850, Salt Lake
City, Utah 84114-4850. The penalty has been determined using the Penalty Criteria for
Civil Settlement Negotiations, Utah Administrative Code ("UAC") R317-1-8 which
Page 1 of 2
Denison Mines (USA) Corp.
White Mesa Mill
Settlement Agreement, Docket No. UGW 11 -058A
considers such factors as the nature, severity and extent of the violations, history of
noncompliance, degree of willfulness and/or negligence, good faith efforts to comply, and
economic benefit.
5. The deadline stipulated in item 5 above may be amended by prior written mutual agreement
of the parties. The party requesting the amendment must write to the other party 14 days
before the documented deadline and request an amendment of the deadline. The other party
will either agree to or deny the amendment in writing within 10 days of receipt of the
request.
6. Nothing contained in this AGREEMENT shall preclude the BOARD from taking additional
actions to include additional penalties against the OPERATOR for permit violations not
resolved by this AGREEMENT.
7. If an agreement between the OPERATOR and the EXECUTIVE SECRETARY cannot be
reached in a dispute arising under any provision of this AGREEMENT, then the
OPERATOR or the EXECUTIVE SECRETARY may commence a proceeding with the
BOARD under the Utah Administrative Procedures Act, Utah Code Annotated §§63G-4-I01
to -601 to resolve the dispute. A final decision in any adjudicative proceeding shall be subject
to judicial review under applicable, state law.
8. Nothing in this AGREEMENT shall constitute a waiver by the OPERATOR to raise in
defense any legal or factual contention for future allegations of noncompliance.
9. Nothing in this AGREEMENT shall constitute or be considered as a release from any claims,
to include natural resource damage claims, cause of action, or demand in law or equity which
the STATE may have against the OPERATOR, or any other person, firm, partnership or
corporation for any liability arising out of or relating in any way to the release of pollutants to
waters of the State.
AGREED to this day of , 2011.
DENISON MINES (USA) CORP UTAH WATER QUALITY BOARD
By By„
David Frydenlund Rusty Lundberg
DUSA Vice President and Counsel Co-Executive Secretary
Page 2 of 2
Denison Mines (USA) Corp.
White Mesa Mill
Settlement Agreement, Docket No. UGWl 1-05SA
UTAH WATER QUALITY BOARD
IN THE MATTER OF
DENISON MINES (USA) CORP.
1050 17™ STREET, SUITE 950
DENVER, CO 80265
SETTLEMENT AGREEMENT
DOCKET NUMBER UGW11-05SA
This SETTLEMENT AGREEMENT (hereinafter "AGREEMENT") is between DENISON
MINES (USA) CORP. (hereinafter "OPERATOR") and the UTAH WATER QUALITY
BOARD (hereinafter the "BOARD"), conceming violations of the Utah Water Quality Act (the
Act), Utah Code Annotated ("UCA") §§19-5-101 to -124, and the Utah Administrative Code
("UAC")R317-1 to-560.
1. The BOARD has authority to administer the Utah Water Quality Act, and the Utah
Administrative Code. UCA §§19-5-106,-115.
2. The CO-EXECUTIVE SECRETARY of the BOARD (hereinafter the "EXECUTIVE
SECRETARY") will administer the terms and provisions of this AGREEMENT. UCA
§§19-5-106 and 115.^
3. This AGREEMENT resolves the 2 violations cited in the NOTICE OF VIOLATION and
ORDER, Docket Number UGWl 1-05 (hereinafter the "NOTICE") issued to the
OPERATOR on June 2, 2011, by the BOARD. It does not in any way relieve the
OPERATOR from any other obligation imposed under the Act or any other State or
Federal laws.
5.
The parties now desire to resolve this matter fully without further administrative
proceedings except to the extent provided herein by entering into this AGREEMENT.
Entering into this AGREEMENT is not an admission of liability or factual allegation set
out in the NOTICE, nor is it an admission of or an agreement to any disputed facts or
disputed legal theories, nor is it an admission of any violation of any law, rule, regulation or
permit by the OPERATOR.
In resolution of violations of the NOTICE referenced in Paragraph 3 of this
AGREEMENT, the OPERATOR agrees to pay a total penalty amount of $7,348 within
30 calendar days of the effective date ofthis AGREEMENT by check. The check will be
made payable to the State ofUtah, delivered or mailed to the Division of Radiation Control,
Department of Environmental Quality, 195North 1950 West, P.O. Box 144850, SaltLake
City, Utah 84114-4850. The penalty has been determined using the Penalty Criteria for
Civil Settlement Negotiations, Utah Admimstrative Code ("UAC") R317-1-8 which
Page 1 of 2
Denison Mines (USA) Corp.
White Mesa Mill
Settlement Agreement, Docket No. UGWl 1-05SA
considers such factors as the nature, severity and extent of the violations, history of
noncompliance, degree of willfulness and/or negligence, good faith efforts to comply, and
economic benefit.
5. The deadline stipulated in item 5 above may be amended by prior written mutual agreement
of the parties. The party requesting the amendment must write to the other party 14 days
before the documented deadline and request an amendment of the deadline. The other party
will either agree to or deny the amendment in writing within 10 days of receipt of the
request.
6. Nothing contained in this AGREEMENT shall preclude the BOARD from taking additional
actions to include additional penalties against the OPERATOR for permit violations not
resolved by this AGREEMENT.
7. If an agreement between the OPERATOR and the EXECUTIVE SECRETARY cannot be
reached in a dispute arising under any provision of this AGREEMENT, then the
OPERATOR or the EXECUTIVE SECRETARY may commence a proceeding with the
BOARD underthe Utah Administrative Procedures Act, Utah Code Annotated §§63G-4-101
to -601 to resolve the dispute. A final decision in any adjudicative proceeding shall be subject
to judicial review under applicable state law.
8. Nothing in this AGREEMENT shall constitute a waiver by the OPERATOR to raise in
defense any legal or factual contention for future allegations of noncompliance,
9. Nothing in this AGREEMENT shall constitute or be considered as a release from any claims,
to include natural resource damage claims, cause of action, or demand in law or equity which
the STATE may have against the OPERATOR, or any other person, firm, partnership or
corporation for any liability arising out of or relating in any way to the release of pollutants to
waters of the State.
AGREED to this day of , 2011.
DENISON MINES (USA) CORP UTAH WATER QUALITY BOARD
By By_
David Frydenlund RustyLundberg
DUSA Vice President and Counsel Co-Executive Secretary
Page 2 of 2
State of Utah
GARY R. HERBERT
Governor
GREG BELL
Lieulenant Governor
Department of
Environmental Quality
Amanda Smith
Executive Director
DIVISION OFRADIATION CONTROL
Rusty Lundberg
Director
MEMORANDUM
TO: File '7^ i(
THROUGH: Phil Goble, Compliance Section Manager
FROM: Tom Rushing, P.G. lO/^/ll
DATE: October3,2011 >
SUBJECT: May 9, 2011 Notice of Violation and Order Docket No. UGWll-05 (NOV), Denison
Mines (USA) Corp. (DUSA) July 6, 2011 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 DUSA's July 6, 2011 letter response
(Response) to Notice of Violation and Order Docket No. UGWl 1-05 (NOV), and 2. A civil penalty
calculation for the NOV cited violations.
1. DRC Review of the Response
Per review ofthe Response, DUSA did not reserve their right to request a hearing before the Water
Quahty Board.
The NOV Order requires DUSA to prepare a response with the following items:
a) The root cause of the noncompliance,
b) CoiTective 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, DUSA accepts all violations in the NOV (2 violations total). Table 1 below
summarizes the 2 violations cited in the NOV.
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
Page 2
Table 1 - Summary of Violations NOV and Order Docket UGWl 1-05, DUSA Responses and DRC Findings
Violation Summary DUSA July 6, 2011 Response DRC Findings
Violation 1 - NOV lists 1
violation of the White Mesa U-
Mill Groundwater Discharge
Permit UGW370004 (Permit) for
failure to provide at least a 14
calendar day written notice for the
installation of monitoring wells
MW-36 and MW-37 [Violation of
the Permit Part I.H.4(c)]
DUSA states that the drilling
program start date was unspecified at
the time the project schedule dates
were "diarized" and that as a result,
the Permit notice requirement was
"inadvertently overlooked." DUSA
does not contest the violation.
Violation Stands
Violation 2 - NOV lists 1
violation of the Permit for failure
to provide at least a 14 calendar
day written notice for the
installation of wells for the
Southwest Investigation
[Violation of the Permit Part
I.H.6(g)]
DUSA states that the root cause of
the violation was the same as
violation 1." DUSA does not contest
the violation
Violation Stands
2 violations cited 2 violations stand
Each DUSA response to the 2 NOV violations is listed below, followed by DRC findings.
VIOLATION 1
DUSA RESPONSE - VIOLATION 1
1. Part LH.4(c) of the Permit for failing to provide at least a 14 calendar written notice to allow the
Executive Secretary to observe all drilling and well installation activities for the Southwest
Investigation.
[The part of the Permit cited refers to the installation of MW36 and MW37, not the Southwest
Investigation. DUSA assumed the violation was intended to refer to the MW36 and MW37
installation^ and has answered accordingly.]
a) Root Cause ofthe Noncompliance
Part I.H.4(c) of the Permit required written notice 14 days prior to drilling to allow DEQ personnel
to observe the activities. Unlike the other requirements of this Part of the Permit which had fixed
dates for performance, the drilling program start date was unspecified. All other fixed dates and
requirements in this Part were diarized immediately upon DEQ approval ofthe Permit revision
containing the requirementfor the monitor well drilling. The single requirement, drilling startup,
without a specified date was not electronically diarized while contracting and planning for drilling
was underway. The intention was to provide the 14-day notice one the drilling date had heen
established. However, given the number of other simultaneous regulatory requirements and activities
underway during April and May 2011, this nondiarized requirement was inadvertently overlooked.
b) Steps That Have Been Taken to Correct the Violation
Page 3
Thefollowing steps have been taken to correct the violation:
See item c, below.
c) Date When Compliance Was or Will be Regained
DEQ personnel reviewed the locations of the installed wells and piezometers during a site visit during
the week of May 17, 2011. Subsequently, DUSA provided DEQ written documentation (a grid map) of
the locations of the new monitoring wells and all piezometers in an email on May 26, 2011, in which
DUSA sought DEQ approval or further input on the locations.
d) Steps Taken to Prevent Reoccurrence of the Noncompliance
Denver corporate en vironmental personnel review all permit revisions, notices, requests for
additional infonnation letter responses, and other written commitments upon receipt or submittal, in
order to electronically diarize specific dates for required actions or reporting. To date, actions with
unspecified dates, such as drilling or construction, have not been consistently added to the electronic
notification system. This process has now been modified such that upon receipt or submittal,
corporate personnel will also consistently diarize interim dates by which drilling or construction
schedule windows need to be established so that notification can be submitted timely to DEQ. DUSA
also recommends that the Pennit be modified, in Parts which state a requirementfor a 14-day written
notice, to state a requirement for "a written notice 14 days in advance or such lesser tiine as the
Executive Secretary may approve in advance."
DRC FINDINGS - VIOLATION 1
DRC accepts that the violation was caused by an oversight of data entry on the part of DUSA andihat
DUSA is correcting the process by insuring that the logging process will include the entry of "interim
dates." Per the DUSA response this modification should ensure compliance with the 14-day notice
requirements (or Other notice requirements as the Executive Secretary may approve in advance).
DUSA has previously been cited Tor failing to provide prior written notice of drilling activities. On
December 14, 2009, DUSA was issued a 30 Day Payment Demand for failing to provide written
notice of two drilling activities and three monitoring events associated with the Nitrate Contamination
Investigation (CIR). DUSA was issued a $5,000 Civil Penalty for the problem, v/hich was paid on
January 21, 2010. Therefore, Violation 1 stands and a penalty has been calculated as detailed in the
"Civil Penalty Calculation" section of this memo below.
VIOLATION 2
DUSA RESPONSE- VIOLATION 2
2. Part ].H.6(g) of the Permit, DUSA failed to provide at least a 14 calendar written notice to allow
the Executive Secretary to observe all drilling and well installation activities for the Southwest
Investigation.
a) Root Cause of the Noncompliance
Page 4
Please see item 1 a, above. The same circumstances apply to this violation as to the violation
discussed above.
b) Steps That Have Been Taken to Correct the Violation
The following steps have been taken to correct the violation:
Please see item 1 b, above.
c) Date When Compliance Was or Will be Regained
Please see item 1 c, above.
d) Steps Taken to Prevent Reoccurrence ofthe Noncompliance
Please see item I d, above.
DRC FINDINGS-VIOLATION 2
The DUSA report states that the cause of the noncompliance and corrective actions are the same as
those in Violation 1 above. As above, DRC accepts the stated cause.and planned actions to resolve
the violation. DUSA has preciously been cited forfaiting to provide prior written notice of drilling
activities. On December 14, 2009, DUSA was issued a 30 Day Payment Demand for failing to
provide written notice of two drilling activities and three monitoring events associaled with the
Nitrate Contamination Investigation (CIR). DUSA was issued a $5,000 Civil Penalty for the problem,
which was paid on January 21, 2010. Therefore, Violation 2 stands anda penalty has been calculated
as detailed in the Civil Penalty Calculation section below.
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
I. Category Selection (R317-1-8.3)
The table below describes the Water Quality penalty categories.
Water Quality Penalty Categories (UAC R317-1-8.3)
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 warrant a penalty
Page 5
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 pubhc 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 cate.^ory 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 warrants 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 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.S - Any type of violalions not mentioned previously which warrants a penalty
assessment under category D. ' '
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
conservative. DUSA failed to provide the 14 day notice of the drilling activities resulting in DRC
being unable to observe the installation of wells MW-36 and MW-37.
Calculation of violation days: Per a DUSA letter dated June 29, 2010 and titled State of Utah
Ground Water Discharge Pennit ("the Permit" )No. UGW370004 White Mesa Uranium Mill-
Installation Report Pursuant to Part I.F.6 and 1.H.4 of the Pennit, Monitoring Wells MW-36 and
MW-37 were installed on April 27, 2011 and April 26, 2011 respectively, therefore the 14 day notice
should have been provided to the DRC by April 12, 2011.
Per the DUSA July 6, 2011 response to the Order, complianee was achieved on the date that DUSA
provided DEQ wrillen documeniation of the new monitoring wells (May 26, 2011); therefore, the
number of days that DUSA is considered to be out of comphance is from the date that written
notification should have been provided (April 12, 2011) to the date DUSA provided written documeni
lhal moniloring wells MW-36 and MW-37 were installed, for a total of 44 days.
Page 6
The proposed maximum penalty, therefore, would be calculaled for 44 days at $500 per day is
$22,000.
Violation 2 - Penalty Categorv and Dates of Noncompliance
Penalty Category: This is the same violation type as violation 1 above, therefore category D.3 will
also be used for this violation.
Calculalion of violation days: The same period of non-compliance will apply to the Southwest
Invesligalion wells. DUSA has nol provided the exact dates of installation of the monitoring wells
associated with the Southwest Investigation; therefore, the dates of non-compliance will also be
calculated from April 12, 2011 until May 26, 2011, for a total of 44 days
The proposed maximum penalty, therefore, would be calculaled for 44 days at $500 per day is
$22,000.
VIOLATIONS 1 AND 2 STATUTORY MAXIMUM PENALTY CALCULATION
The statutory maximum penalty for Violations 1 and 1, Category D.3 would be calculated for 2
violations for 44 days at $500 per day is $44,000.
ASSIGNED PENALTY AMOUNT WITHIN CATEGORY D.S
DRC consideration of credit as detailed in the Administrative Penalty Policy follows:
A. Historv of compliance or non-compliance:
Under UAC R317-1-8.3(A), two factors need to be considered, including previous violations
and degree of recidivism.
DRC Finding: According to DRC records, DUSA has failed to provide proper written
notificaiion to the DRC, as required by the Permii or a Stipulated Consent Agreemenl at least
in nine different instances since 2007, as follows:
• In the 1'^ and 4^^ Quarter, 2007 Groundwater Reports DUSA failed to provide written
notification in accordance with Part I.G. 1(a) of the Permit.
• In the December 14, 2009, DUSA was issued a 30 Day Payment Demand for failing to
provide written notice of two drilling aclivilies and three moniloring events associated
with the Nitrate Contamination Invesiigation (CIR), which was in violation ofthe
January 28, 2009 Nitrate Stipulated Consent Agreement.
• On May 9, 2011 DUSA was issued a NOV (Violation 1) where DUSA failed to
provide 14 calendar day written notice to allow the Executive Secretary to observe all
drilling and well installation activities for moniloring wells MW-36 and MW-37,
which was in violation of Part I.H.4(c) of the Permit.
Page 7
• On May 9, 2011 DUSA was issued a NOV (Violation 1) where DUSA failed to
provide 14 calendar day written notice to allow the Executive Secretary to observe all
drilling and well installation activities for the Southwest Investigation, which was in
violation of Part I.H.6(g) of the Permit.
Therefore, a credit of 50% was given in regard to providing written notification as required by
the Permit or other signed agreement between the DRC and DUSA.
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 contro] the violator had over and the foreseeability oflhe events constituting
the violadon;
2. Whether the violator made or could have made reasonable efforts lo prevent the violation;
3. Whether the violator knew of the legal requirements which were violated;
4. Degree of recalcitrance. \
DRC finds that:
DUSA states in the Order response lhal the violation was the resull of an oversight in the
reporting process. DUSA was aware of the legal (permit) reqiiirements, however, DRC does
nol see any company recalcitrance in taking responsibility for the violalions. DUSA has
reporled the cause of the violalion and has proposed a corrective action. Therefore, 75%
credit was given for the "degree of willfulness or negligence" category to recognize the good
faith efforts to initiate a process to avoid future violations of this type.
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 State.
Per the DUSA July 6, 2011 response to the Order, the violations were caused by an oversight
in the reporting process. DUSA has implemented a new process to avoid this type of violalion
in the future. Considering that this is a first time violation, and that DUSA has provided
correclive action, DUSA was given 75% credit for "good faith efforts lo comply" category.
Penalty Calculation
Because Violations 1 and 2 are similar in nature they have been combined into one single civil
penalty, as follows: -
Category D, which is a maximum of $500 per day penalty = $ 500
Credits: 1/3 (max $166) History of Compliance: (50% credit) = $83
1/3 (max $166) Degree of Willfulness and/or Negligence: (75% credit) =s $ 125
1/3 (max $166) Good Faith Efforts to Comply: (75% credit) = $ 125-
Total credit ; = $ 333
PageS
Penalty per day violalion: = $ 167
Number of violation days: X 44
Total Category Penalty (Gravity Component) = $ 7,348
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 non-
compliance. No economic benefit was gained by not providing the required 14 day notice;
therefore, no economic benefit calculation will be included in the penalty calculation.
b. Investigative costs - No investigative costs are included for these violations. The
violalions were the result of inspection findings by DRC.
Proposed Total Civil Penalty for Docket No. UGWl 1 -05 (2 Violations): $ 7,348