DRC-2010-003917 - 0901a068801a52a7

State of Utah
GARY R. HERBERT
Govemor
GREG BELL
Lieutenant Governor
Department of
Environmental Quality
Amanda Smith
Executive Director
DIVISION OF RADIATION CONTROL
Dane L. Finerfrock
Director
DRC-2010-003910
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Loren Morton
Phil Goble
June 23,2010
DUSA's May 24, 2010 response to NOV (Docket Number UGWlO-03)
Proposed Civil Penalty
Groundwater Discharge Permit (Permit) UG370004
Denison Mines (USA) Corporation (DUSA)
White Mesa Mill, Blanding, Utah
This is a review of DUSA's May 24, 2010 submitted response to the NOV, Docket Number UGWlO-03.
DUSA received the NOV on April 23, 2010 and responded to the DRC on May 24, 2010. No request of a
hearing before the BOARD was mentioned within the submittal. This review is based on the criteria
outlined under the Order:
a) The root cause of the noncompliance,
b) Steps that have been or will be taken to correct the violations,
c) Date when compliance was or will be regained, and
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance.
Each DUSA response to these 8 items is in italics below, followed by a DRC finding.
VIOLATIONS
1. Violation of Part I.F.I of the Permit for failing to report all well monitoring and samples
collected, including a result for TDS in wells MW-31 and MW-32 in the 4"" Quarter 2009 Report,
for the October 2009 monitoring event.
a) The root cause of the noncompliance:
TDS was sampled and analyzed in MW-31 and MW-32 for the 4th quarter of2009, but the samples'
for TDS in those wells were received at the laboratory beyond their holding times. TDS was re-
sampled in those wells during the 4th quarter 2009 and the sample results were the subject of a
separate analytical report. Denver Environmental Staff was not aware of this re-sampling and did
not notice the omission of these TDS results when preparing the 4th Quarter 2009 Report, because
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Denison had not at the time instituted computer checks for completeness on its analytical results.
b) Steps that have been or will be taken to correct the violations:
The following steps have been taken to correct the violation:
(i) When informed by Division of Radiation Control ("DRC) staff of this omission during the
week of March 29, 2010, Denison submitted to the Executive Secretary the analytical
results for TDS in MW-31 and MW-32 under cover of an email dated April 2. 2010; and
(ii) Denison has instituted computer checks for analytical data completeness, commencing with
the 1st Quarter 2010 Groundwater Monitoring Report.
c) Date when compliance was or will be regained:
Compliance was regained on April 2, 2010 with the submission of the analytical results to the
Executive Secretary.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
Denison has instituted computer checks for analytical data completeness, commencing with the 1st
Quarter of 2010.
DRC Findings:
Violation No. 1 still stands, in that the 4* Quarter, 2009 Report failed to include the laboratory results
for the compliance sample in question. After considering the Executive Secretary's possible
enforcement options, DRC staff believes it is necessary to pursue a penahy for this violation because
this is a repeat violation. This same type of reporting problem has occurred multiple times in the last
two years, as follows:
A. After review of the 1" Quarter, 2008 DUSA Groundwater Monitoring Report, the DRC brought
this problem to the company's attention in a July 25, 2008 Notice of Enforcement Discretion
(NOED). This episode involved failure to report laboratory results for two monthly sampling
events (January and February, 2008) for tetrahydrofiiran in well MW-26.
B. Later, this same type of reporting problem was identified after review ofthe 4* Quarter, 2008
Report, and the DRC issued an April 21, 2009 NOV (Docket No. UGW09-04, Violation No. 1),
where DUSA was cited:
"... for failing to report all well monitoring and sample collected, including a result
for TDS in well MW-25 in the 4*^ Quarter, 2008 Report, for the November 2008
monitoring event."
Because this problem was a repeat violation, the DRC decided to pursue a Civil Penalty against
DUSA. On October 7, 2009 the DRC proposed penalty of $4,815, as part of a Settlement
Agreement (SA). The SA was later signed by both parties on November 16, 2009. Payment ofthe
$4,815 penalty was received by DRC in a DUSA letter dated October 30, 2009. DUSA responded
to the April 21, 2009 NOV in a May 22, 2009 letter, in which they clamed corrective action would
start with the 2"'' Quarter, 2009 Groundwater Report. The October 7, 2009 SA was not open-
ended, but was instead focused only on Violation No. 1 of the April 21, 2009 NOV.
C. This same problem was also identified after review ofthe T' Quarter, 2009 Report, in which
DUSA failed to report a result for Thallium in well MW-23 for the February, 2009 monitoring
event. The DRC brought this problem to the DUSA's attention in a November 17, 2009 NOED.
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The Executive Secretary chose to use enforcement discretion in this matter, in that, the well MW-
23 Febmary 11, 2009 sample was collected prior to the May 22, 2009 DUSA comiriitment that this
issue would be resolved commencing with the 2"** Quarter, 2009 Groundwater Monitoring Report.
Because this same problem continues in the 4* Quarter, 2009 Report, in that DUSA failed to report a
TDS result in 3 samples (MW-31, MW-32, and MW-65), the DRC staff propose that a new civil
penalty be levied against DUSA. This penalty amount has been calculated by DRC staff, which is
included later in this memo (see pps. 10 - 20). The DUSA steps to correct the violation (initiation of
computer checks for analytical completeness) and to regain compliance (T' Quarter, 2010 report)
found in the May 24, 2010 DUSA letter are acceptable. h\ the future, DRC staff will examine the 1"
Quarter, 2010 report to verify these DUSA commitments.
Violation of Part I.F.I of the Permit and Section 4.3.3 of the DUSA QAP for failing to report all
well monitoring and samples collected, including a result for TDS in field duplicate MW-65 in
the 4"" Quarter 2009 Report, for the October 2009 monitoring event.
a) The root cause of the noncompliance:
TDS was sampled and analyzed in field duplicate MW-65 for the 4th quarter of2009. but the
sample for TDS was received at the laboratory beyond its holding time. TDS was re-sampled in
that well during the 4th quarter 2009 and the results were the subject of a separate analytical
report. Denver Environmental Staff was not aware of this re-sampling and did not notice the
omission of these TDS results when preparing the 4th Quarter 2009 Report, because Denison had
not at the time instituted computer checks for completeness on its analytical results.
b) Steps that have been or will be taken to correct the violations:
The following steps have been taken to correct the violation:
(i) When informed by Division of Radiation Control ("DRC) staff of this omission during the
week of March 29, 2010, Denison submitted to the Executive Secretary the analytical
resuhs for TDS in MW-65 under cover of an email dated April 2, 2010; and
(ii) Denison has instituted computer checks for analytical data completeness, commencing with
the 1st Quarter 2010 Groundwater Monitoring Report.
c) Date when compliance was or will be regained:
Compliance was regained on April 2, 2010 with the submission of the analytical results to the
Executive Secretary.
I
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
Denison has instituted computer checks for analytical data completeness, commencing with the 1st
Quarter of 2010.
DRC Findings;
Violation No. 2 still stands, in that the 4"" Quarter, 2009 Report failed to include the laboratory results
for the compliance sample in question. 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, in that it has occurred multiple times in the last two years, as described below:
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A. This reporting problem is similar to Violation No. 1, above, in that after DRC review of the 1 ^'
Quarter, 2008 DUSA Groundwater Monitoring Report it was found that DUSA failed to report
laboratory results for two monthly sampling events (January and February, 2008) for
tetrahydrofiiran (THF) in well MW-26. In that instance, the problem was brought to the
company's attention in a July 25, 2008 NOED.
B. This same type of reporting problem was identified after review of the 4* Quarter, 2008 Report,
whereafter, the DRC issued an April 21, 2009 NOV (Docket No. UGW09-04, Violation No. 1),
where DUSA was cited:
"... for failing to report all well monitoring and sample collected, including a result
for TDS in well MW-25 in the 4^^ Quarter, 2008 Report, for the November 2008
monitoring event."
Again, because this type of problem was a repeat violation, the DRC decided to pursue a Civil
Penahy against DUSA of $4,815, as a part of an October 7, 2009 SA. Both parties signed this SA
on November 16, 2009. Payment of the $4,815 penalty was received by DRC in a DUSA letter
dated October 30, 2009. Further, DUSA responded to the April 21, 2009 NOV in a May 22, 2009
letter, in which they clamed corrective action would start with the 2"'' Quarter, 2009 Groundwater
Report.
C. This same problem was also identified after review of the 1^' Quarter, 2009 Report, in which
DUSA failed to report a result for Thallium in well MW-23 for the February, 2009 monitoring
event. The DRC brought this problem to the DUSA's attention in a November 17, 2009 NOED.
The Executive Secretary chose to use enforcement discretion in this matter, in that, the well MW-
23 February 11, 2009 sample was collected prior to the May 22, 2009 DUSA commitment that this
issue would be resolved commencing with the 2"'' Quarter, 2009 Groundwater Monitoring Report.
Because same problem continues in the 4* Quarter, 2009 Report, the DRC staff have proposed a civil
penalty be levied against DUSA. Said penalty has been calculated by DRC staff, which is included
later in this memo (see pps. 10 - 20). The DUSA steps to correct the violation (initiation of computer
checks for analytical completeness) and to regain compliance (T' Quarter, 2010 report) found in the
May 24, 2010 DUSA letter are acceptable, hi the ftiture, DRC staff will examine the l" Quarter, 2010
report to verify these DUSA commitments.
Violation of Part LE.l(a) ofthe Permit and Section 6.2.7(d)(v) ofthe DUSA QAP for failing to
achieve stable turbidity conditions before collecting groundwater samples in 12 wells during the
October, November, and December, 2009 monitoring events.
a) The root cause of the noncompliance:
Data indicate that it may not be feasible to achieve both a turbidity level less than 5 NTU and a
stabilized turbidity between any tnv measurements within 10% RPD in every well. Discussions are
underway with DRC to address the issue that it may not be appropriate or feasible to achieve
consistent turbidity levels 3 of 5 NTU in the Mill's groundwater program wells under the current
evacuation scheme, and that other well purging approaches, such as micro-purging, may be more
appropriate.
b) Steps that have been or will be taken to correct the violations:
A letter report addressing modification of monitoring methods relative to turbidity issues,
submitted by DUSA to DRC is currently under review.
c) Date when compliance was or will be regained:
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Compliance will be achieved when monitoring methods relative to turbidity are modified to
address Mill site conditions.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
See paragraph c) above.
DRC Findings:
Violation No. 3 still stands, in that the 4* Quarter, 2009 Report failed to achieve stable turbidity
conditions before collecting groundwater samples in 12 wells during the October, November, and
December, 2009 monitoring events. 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 ofthe DUSA T' 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). hi 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."
DUSA responded to that NOV with a December 23, 2009 leUer in which they, in part explained that
corrective actions included retraining of their sampling staff regarding current QAP requirements for
stable field parameters, including turbidity, before sample collection. In addition, 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. " Apparently, this commitment by
DUSA was not lasting; therefore, a proposed civil penalty has been calculated by DRC staff, which is
included later in this memo (see pps. 10 - 20), The DUSA steps to correct the violation (submittal of
April 2, 2010 request for waiver) and to regain compliance (when monitoring methods relative to
turbidity are modified to address Mill site conditions) found in the May 24, 2010 DUSA letter are
unacceptable. The April 2, 2010 request for waiver does not constitute an acceptable corrective action,
nor does it provide prevention steps that DUSA was ordered to provide in the April 20, 2010 NOV.
Therefore, Violation No. 3 remains unresolved, and DUSA has yet to re-gain compliance with respect
to this violation.
Violation of Part I.E.l(a) ofthe Permit and Section 6.2.7(d)(v) ofthe DUSA QAP for failing to
achieve stable redox potential (Eh) conditions before collecting groundwater samples in 5 wells
during the October and November, 2009 monitoring events.
a) The root cause of the noncompliance:
The calculations used by Denver Environmental Staff were incorrect, and, as a result the failures
to achieve stable redox potential conditions were not apparent when preparing the 4th Quarter
2009 Groundwater Monitoring Report. The calculation has been computer automated, verified and
corrected as of the 1st Quarter 2010 Groundwater Monitoring Report.
With respect to the actual failure to achieve stable redox potential in the wells, data indicate that it
may not be feasible to achieve stabilized parameters, including redox, between any two
measurements within 10% RPD in every well. Discussions are underway with DRC to address the
issue that it may not be appropriate or feasible to achieve stabilization of every parameter in every
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well under the current evacuation scheme, and that other well purging approaches, such as micro-
purging, may be more appropriate.
b) Steps that have been or will be taken to correct the violations:
A letter report addressing modification of monitoring methods relative to parameter stability
issues, submitted by DUSA to DRC is currently under review.
c) Date when compliance was or will be regained:
Compliance will be achieved when monitoring methods relative to turbidity are modified to
address Mill site conditions.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
See paragraphs a) and c) above.
DRC Findings:
Violation No. 4 still stands, in that the 4* Quarter, 2009 Report failed to achieve stable redox potential
(Eh) conditions before collecting groundwater samples in 5 wells during the October and November,
2009 monitoring events. After considering the Executive Secretary's possible enforcement options,
DRC staff believes it is necessary to pursue a penalty for this violation because it is a field parameter
that must be stable before sample collection, and is therefore related to Violation No. 3, above. For
this reason. Violations 3 and 4 have been combined into one civil penalty amount, see proposed civil
penalty calculated by DRC staff, which is included later in this memo (see pps. 10 - 20). The DUSA
steps to correct the violation (submittal of April 2, 2010 request for waiver) and to regain compliance
(when monitoring methods are modified to address Mill site conditions) found in the May 24, 2010
DUSA letter are unacceptable. The April 2, 2010 request for waiver does not constitute an acceptable
corrective action, nor does it provide prevention steps that DUSA was ordered to provide in the April
20, 2010 NOV. Therefore, Violation No. 4 remains unresolved, and DUSA has yet to re-gain
compliance with respect to this violation.
Violation of Part I.E. 1(a) of the Permit and Section 6.2.7(d)(v) of the DUSA QAP for failing to
excavate two casing volumes before collecting groundwater samples in 17 wells during the 4""
Quarter (October) 2009 monitoring event.
a) The root cause of the noncompliance:
As stated in the 4th Quarter 2009 Groundwater Monitoring Report, prior to November 17, 2009,
sampling personnel believed that they had the option either to pump each well to two casing
volumes or to pump the well until field parameters were stabilized. Further, they believed they had
the verbal approval of the DRC representative who has witnessed the field sampling program, to
determine how long each well would require to be pumped to two casing volumes, and to pump
only to 120 minutes on any well that would require longer than this interval of time. DUSA
received a Notice of Violation dated November 17, 2009 in which DRC identified that Mill staff
were not following the QAP requirement to evacuate two casing volumes and to achieve stable
parameters.
b) Steps that have been or will be taken to correct the violations:
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As stated in the 4th Quarter 2009 Groundwater Monitoring Report, on receipt of the November 17,
2009 NOV, sampling personnel were instructed to evacuate two casing volumes and determine
well parameter stabilization. They were also instructed that a perceived verbal approval from
DRC personnel will not replace the written requirements of the Permit and/or the QAP.
c) Date when compliance was or will be regained:
As stated in the 4th Quarter 2009 Groundwater Monitoring Report, the first two months of the 4th
Quarter 2009 sampling program were already under way at the time sampling personnel received
these instructions. As a result the October and November 2009 samples were collected under an
incorrect understanding of the procedure.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
See paragraph b) above.
DRC Findings:
Violation No. 5 still stands, in that the 4* Quarter, 2009 Report failed to evacuate two casing volumes
before collecting groundwater samples in 17 wells during the 4* Quarter (October) 2009 monitoring
event. 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. Previously, in a
November 17, 2009 NOV (Violation No. 3), DUSA was cited:
"... for failing to excavate (sic) two casing volumes before collecting groundwater
samples in 13 wells during the January, February, and March 2009 monitoring events."
DUSA responded to that NOV with a December 23, 2009 letter, in which they in part explained that
corrective actions included re-training of their sampling staff regarding current QAP requirements for
stable field parameters, including Eh, before sample collection. In addition, DUSA stated that
compliance had been regained in that the "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. " Apparently, this
commitment by DUSA was not lasting; therefore, a proposed civil penalty has been calculated by DRC
staff, which is included later in this memo (see pps. 10 - 20). The DUSA steps to correct the violation
(sampling personnel instructed to purge for two casing volumes) and to regain compliance (T' Quarter,
2010 report) found in the May 24, 2010 DUSA letter are acceptable, hi the ftiture, DRC staff will
examine the T' Quarter, 2010 report to verify these DUSA commitments.
Violation of Part I.E. 1(a) ofthe Permit and Section 3.1 ofthe DUSA QAP for failing to use the
correct formula in 39 instances to determine RPD for the duplicates of the October, November,
and December, 2009 monitoring events.
a) The root cause of the noncompliance:
The RPD calculation results in the 4th Quarter 2009 and previous groundwater and chloroform
reports have been in error, as brought to the attention of DUSA by DRC in their letter of February
17, 2010 and close out telephone call of April 5, 2010.
b) Steps that have been or will be taken to correct the violations:
The RPD calculation has been computer automated, verified and corrected as of the 1st Quarter
2010 Groundwater Monitoring Report.
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c) Date when compliance was or will be regained:
Compliance has been achieved as of May 19, 2010, the date offiling the 1st Quarter 2010
Groundwater Monitoring Report.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
See paragraph b) above.
DRC Findings;
Violation No. 6 still stands, because DUSA failed to use the correct formula in 39 instances to
determine Relative Percent Difference (RPD) for the duplicate samples collected during the October,
November, and December, 2009 monitoring events. After considering the Executive Secretary's
possible enforcement options, the DRC staff recommends no penalty at this time on the basis that this
was the first time this problem has been cited. However, should these violations be repeated in the
fiiture a penalty may be assessed. The DUSA steps to correct the violation (computer automation of
the RPD formula) and to regain compliance (T' Quarter, 2010 report) are acceptable. In the future,
DRC staff will examine the T' Quarter, 2010 report to verify these DUSA commitments.
7. Violation of Part I.F.l(e) of the Permit and Section 9.1.4(a) of the DUSA QAP for failure to fully
and completely disclose all non-conformance with the approved QAP for the October, 2009
sampling event with respect to a RPD in excess of 20"/o for ammonia (as nitrogen) in well MW-22
and blind duplicate sample MW-70.
a) The root cause of the noncompliance:
As a result of DUSA using the incorrect manner of calculating RPD referred to in Violation 6
above, the RPD in excess of 20%) for ammonia (as nitrogen) in well MW-22 and blind duplicate
sample MW- 70 was not apparent, and therefore not disclosed.
b) Steps that have been or will be taken to correct the violations:
The RPD calculation has been computer automated, verified and corrected as of the 1st Quarter
2010 Groundwater Monitoring Report, so that this type of violation will not occur in. the future^.
c) Date when compliance was or will be regained:
Compliance has been achieved as of May 19, 2010, the date offiling the 1st Quarter 2010
Groundwater Monitoring Report.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
See paragraph b) above.
DRC Findings;
Violation No. 7 still stands, because DUSA failed to fully and completely disclose non-conformance in
well MW-22 and blind duplicate sample MW-70 for the October, 2009 sampling event, where the RPD
for ammonia (as nitrogen) was greater than 20%. After considering the Executive Secretary's possible
enforcement options, the DRC staff recommends no penalty at this time on the basis that this was the
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first time this problem has been cited. However, should these violations be repeated in the fiiture a
penalty may be assessed. The DUSA steps to correct the violation (computer automation ofthe RPD
formula) and to regain compliance (1^' Quarter, 2010 report) are acceptable. In the future, DRC staff
will examine the 1^' Quarter, 2010 report to verify these DUSA commitments.
8. Violation of Part I.E. 1(a) of the Permit and Section 11 of the DUSA QAP for failing to list in a
summary table analytes wells that were subject to accelerated monitoring pursuant to Parts
I.G.I and 2 ofthe Permit, including uranium (MW-14, MW-15, and MW-17) and thallium (MW-
18).
a) The root cause of the noncompliance:
Denver Environmental Staff inadvertently omitted these analytes from the summary table of
analytes that are subject to accelerated monitoring. When preparing the 4th Quarter 2009 Report,
Denison had not at the time instituted computer checks for determining accelerated monitoring
status.
b) Steps that have been or will be taken to correct the violations:
Denison has instituted computer checks for determining accelerated monitoring status for
analytes, commencing with the 1st Quarter 2010 Groundwater Monitoring Report.
c) Date when compliance was or will be regained:
Compliance was regained on May 19, 2010 with the filing of the 1st Quarter 2010 Groundwater
Monitoring Report.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
Denison has instituted computer checks for determining accelerated monitoring status, commencing
with the 1st Quarter of 2010.
DRC Findings;
Violation No. 8 still stands, because DUSA failed to list all monitoring wells and analytes subject to
accelerated groundwater monitoring under Parts I.G.I or I.G.2 of the Permit, including GWCL
exceedances from the October, 2009 sampling event for uranium in three wells (MW-14, MW-15, and
MW-17) and thallium in well MW-18. After considering the Executive Secretary's possible
enforcement options, the DRC staff recommends no penalty at this time on the basis that this was the
first time this problem has been cited. However, should these violations be repeated in the future a
penalty may be assessed. The DUSA steps to correct the violation (computer automation for checks
on accelerated monitoring status) and to regain compliance (T' Quarter, 2010 report) are acceptable. In
the ftiture, DRC staff will examine the T' Quarter, 2010 report to verify these DUSA commitments.
Of the eight violations described above, DRC staff believes it is appropriate to seek a civil penalty
for five of the eight violations, this is described in detail below:
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WATER OUALITY PENALTY CRITERIA
According to R3I7-1-8 (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)
Table 1 below describes the Water Quality penalty categories.
TABLE 1
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.l - 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 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.S - 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 ofthe Utah Water Pollution Control Act,
associated regulafions, 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 concentrafions of non toxic or non
hazardous materials.
Category C.5 - Any type of violafion not menfioned 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, pennits or orders to include:
Category D.l - Minor excursion of permit effluent limits.
Category D.2 - Minor violafions 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.
After reviewing the 4"" Quarter, 2009 Groundwater Monitoring Report, the DRC cited DUSA for
eight violations, five of which deserve monetary penalties; however, none of the violafions caused
Page 11
direct or potential harm to human health and the environment (Category A and B); nor were there
violations relevant to Category C. Therefore, the following penalty categories do not apply:
Categories A, B, C and D. 1,2, and 4.
Some ofthe eight violations that qualify for monetary penaUies fall under the penalty Category
D.3 (Violations 1 - 2) and the others fall under Category D.5 (Violations 3 - 5). For details see
Table 1 above.
The violations described above that are similar in nature were combined into three (3) separate
civil penalties. This is summarized in the table below:
Violations Penalties Why Combined
1 - Failure to submit TDS results
for well MW-31 and MW-32 Penalty I DUSA failed to submit TDS
results for both violations 2 - Failure to submit a TDS result
for sample MW-65
Penalty I DUSA failed to submit TDS
results for both violations
3- Failure to achieve stable
parameters (turbidity) before
sample collection Penalty 2
DUSA failed to achieve stable
parameters before sample
collections for both violations,
turbidity and redox potential
(EH) are both field parameters
4- Failure to achieve stable
parameters [redox potential (EH)]
before sample collection
Penalty 2
DUSA failed to achieve stable
parameters before sample
collections for both violations,
turbidity and redox potential
(EH) are both field parameters
5- Failure to purge for 2 casing
volumes before sample collection Penalty 3 NA
1. Penalty 1: Violations 1 and 2 - including failure to report all well monitoring and
samples collected, including a result for TDS in wells MW-31, MW-32 (Violation 1) and
sample MW-65 (Violation 2) in the 4"' Quarter 2009 Report, for the October 2009
monitoring event.
STATUTORY MAXIMUM PENALTY
The number of days that DUSA is considered to be out of compliance was calculated from the
date the 4"^ Quarter, 2009 Groundwater Monitoring Report was due (March 1, 2010) to the day
DUSA submitted the analytical report (by e-mail) for TDS in wells MW-31, MW-32, and field
duplicate MW-65 (April 2, 2010) for a total of 33 days. This approach to the number of days of
violation is consistent with that taken by the DRC in resolution of the April 21, 2009 NOV (see
DRC memorandum dated September 29, 2009).
The proposed maximum penalty, therefore, would be calculated for 33 days at $500 per day is
$16,500.
ASSIGNED PENALTY AMOUNT WITHIN A CATEGORY
History of compliance or non-compliance:
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Under UAC R317-1-8.3(A), two factors need to be considered, including previous
violations and degree of recidivism.
DRC Findings: According to DRC records, DUSA has been out of compliance with the
reporting requirements of Part I.F.I of the Permit in two different quarterly monitoring
reports in 2008 (l" Qtr, 2008 and 4"" Qtr, 2008) and two different quarteriy monitoring
reports in 2009 (1'' Qtr, 2009 and 4* Qtr, 2009) for a total of four times. The original
Ground Water Discharge Permit was issued to DUSA in March, 2005, and submission of
quarterly groundwater quality reports began in June, 2005 (1^' Quarter, 2005). Since that
time, DUSA has submitted 20 quarterly groundwater quality reports up thru 4* Quarter,
2009. As a result, 4 of 20 reports were found to have the same type of problem cited, or
20% of the total. In contrast, 80% of the reports submitted have not been found with this
problem.
However, the DRC staff recommends that only a 50% credit be given for history of
compliance due to the following factors:
1. Incomplete reports have been a continuing problem as shown by the multiple
formal enforcement actions taken to date (2 NOEDs and 1 NOV), see Items 1 and 2
above,
2. A monetary penalty for this same problem, was pursued for the 4^^ Quarter, 2008
DUSA Report via an October 7, 2009 ($4,815) Settiement Agreement. DUSA paid
this penalty amount on October 30, 2009),
3. In May 22, 2009 response to the April 21, 2009 NOV, DUSA made a commitment
to correct the reporting problem starting with the 2"^* Quarter, 2009 report. DUSA
then failed to follow thru on said commitment.
4. During resolution ofthe April 21, 2009 NOV, the DRC provided 87% credit for
history of non-compliance (see DRC memorandum dated September 29, 2009).
5. Today, this history has degraded, and a smaller degree of credit is warranted.
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:
• DUSA had control over the events constituting the violation, i.e., report
preparation. Further, DUSA is ultimately responsible for submitting all analytical
results for the groundwater samples required by the Permit.
Page 13
• DUSA could have made a reasonable effort to carefiilly review the analytical data,
and identify the missing information in the analytical report thus preventing the
violation.
• DUSA knew of the legal/Permit/QAP requirements which were specifically listed
in two different sections of the Permit, including: Part I.E. 1(d)(2) that requires
analysis of all GWPL parameters in Table 2 of the Pennit, and Part I.F.I ofthe
Permit, that requires reporting of all sample and analytical results required under
the Permit. Further, both of these requirements have existed in the Permit since the
original March, 2005 Permit.
• To DRC knowledge, there is no indication of any recalcitrance. The DRC doesn't
believe DUSA intentionally withheld TDS results for wells MW-31 and MW-32
and sample MW-65 for the 4"^ Quarter (October) 2008 monitoring event, but it
does appear they were negligent in report preparation.
At a minimum, it appears that DUSA negligence was present in report preparation, in that
this is the 4"^ time since the 1^' Quarter of 2008 that DUSA has been cited for this problem.
During resolution of the April 21, 2009 NOV, the DRC provided 50% credit for
willfulness / negligence (see DRC memorandum dated September 29, 2009). Today, the
record shows an increased degree of negligence. Hence, a smaller degree of credit is
warranted. Accordingly, the DRC will assign a 25% credit 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 cooperation with the State.
DUSA was prompt and cooperative, in that after being verbally notified of the missing
TDS results in a phone call of March 29, 2010, DUSA emailed the missing laboratory
results to DRC staff on April 2, 2010. However during-resolution of the April 21, 2009
NOV, the DRC provided 100% credit for good faith efforts to comply (see DRC
memorandum dated September 29, 2009). Today, the record shows a decreased degree of
good faith, in that problems were not corrected, but instead repeated; despite DUSA
commitments to the contrary. Hence, a smaller degree of credit is warranted today.
Therefore, a credit of 50% was given for good faith efforts to comply in a timely manner.
Penalty Calculation
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 Willftilness and/or Negligence: (25% credit) = $42
1 /3 (max $ 166) Good Faith Efforts to Comply: " (50% credit) = $83
Total credit = $208
Penalty per day violation: = $292
Number of days of violation: = 33
Total Category Penalty (Gravity Component) = $9,636
ADJUSTMENTS
Page 14
According to R317-1-8.3, the civil penalty shall be calculated by adding the following
adjustments to the penalty amount determined above:
a. Economic benefit (Cost Avoided) gained as a result of non-compliance. DUSA did
not gain any economic benefit by not the submitting the TDS results for wells MW-31
and MW-32 and sample MW-65 for the 4"^ Quarter (October) 2009 monitoring event.
DUSA had paid for the analysis to be done; however, the results were not submitted
with the 4* Quarter, 2009 Groundwater Monitoring Report. Therefore, no economic
benefit will be considered with this proposed civil penalty.
b. Investigatiye costs incurred by the DRC and/or other govemmental levels: Based on
the degree of the violation (Category D.3), investigative costs incurred by
governmental agencies are not included.
Proposed Civil Penalty for Docket No. UGWl0-03 (Violations 1-2): $ 9,636
2. Penalty 2: Violations 3 and 4 - including failure to achieve stable turbidity conditions
before collecting groundwater samples in 12 wells (Violation 3) and stable redox
potential (Eh) conditions (Violation 4) before collecting groundwater samples in 5 wells
for a total of 14 wells (aggregate) during in the 4"' Quarter 2009 Report, for the October,
November, and December 2009 monitoring events.
STATUTORY MAXIMUM PENALTY
The number of days that DUSA is considered to be in out of compliance was based on each day of
sampling for each sampling in the 4"^ Quarter, 2009, where field parameters did not stabilize
within 10% over at least two consecutive measurements: October (7 days)', November (1 day)^,
and December (1 day)^ for a total of 9 days. This approach to the number of days of violation is
consistent with that taken by the DRC in resolution ofthe April 21, 2009 NOV (see DRC
memorandum dated September 29, 2009).
The proposed maximum penalty, therefore, would be calculated for 9 days at $500 per day is
$4,500.
ASSIGNED PENALTY AMOUNT WITHIN A CATEGORY
A. History 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.
' DUSA 4* Quarter, 2009 Report, dated March 1, 2010 (Tab B) to the November 17, 2009 NOV, shows: 1) the
DUSA "quarterly" sampling event was conducted during the month of October, and 2) the November and December,
2009 DUSA monitoring events were related to accelerated sampling. Further, in the December 23, 2009 DUSA
response letter (p. 3), the company claims that compliance has been regained, in that sampling conformed with the
applicable Ground Water Quality Assurance Plan requirements "... during the 4"" Quarter, 2009 event." The DUSA
October, 2009 sampling event was conducted October 12 - 28, 2009.
^ The DUSA November and December sampling events were conducted on November 1-3, 2009 and December 1 -
3, 2009 (see 3/1/10 DUSA Report, Tab C and Tab D).
Page 15
DRC Finding: According to DRC records, DUSA has been out of compliance with the
purging requirements of Part I.E. 1 (a) of the Permit and Section 6.2.7(d)(v) of the DUSA
QAP in every quarter since routine groundwater monitoring began. However, DUSA was
not cited for these problems until after review of the 1^' Quarter, 2009 GW Report
(November 17, 2009 DRC NOV) because they hadn't been identified by DRC staff until
then. Therefore, 50% credit was given for history of compliance after consideration that
the previous purging problems were not cited.
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:
• DUSA had control over the events constituting the violation, 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
consecutive measurements prior to sarhple collection.
• DUSA could have made a reasonable effort to follow Part I.E. 1(a) of the Permit
and Section 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 listed
in the DUSA QAP and Pennit, including: Section 6.2.7(d)(v) ofthe DUSA QAP,
that requires field parameters to stabilize within 10% over at least two consecutive
measurements prior to sample collection, and Part I.E. 1(a) of the Permit, that
requires all groundwater monitoring and analysis performed under the Permit shall
be conducted in accordance with the DUSA QAP. These requirements have
existed in the Permit since the November 28, 2006, Permit (Mod.4) and since the
original November 17, 2006 DUSA QAP, approved by the DRC on December I,
2006.
• To the best of DRC knowledge, there is no indication of any recalcitrance and
DUSA wasn't aware of this problem until it was first cited after end of the first
quarter in 2009, see November 17, 2009 NOV and Order 09-06 (4'*' Quarter, 2008
Monitoring Report).
Therefore, a 25% credit should be 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 conection of problems, and degree of cooperation with the
State.
Page 16
This problem of unstable field parameters at the time of sample collection was also
found in the I^' Quarter, 2009 DUSA groundwater monitoring report (see November
17, 2009 NOV, Violation No. 2). DUSA responded to that action with a December 23,
2009 letter, in which they stated that compliance had already been achieved because ,
the "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. "
The 4"^ Quarter, 2009 Report showed that this problem was not corrected, but instead
repeated (despite DUSA commitments to comply during the 4* Quarter, 2009
sampling event). The DRC notified DUSA of this problem on March 29, 2010 in a
closeout meeting. DUSA submitted a Request for Variance for Turbidity on April 2,
2010. The DUSA proposed steps to correct the problem (submittal of April 2, 2010
letter in the May 24, 2010 letter were found to be unacceptable. The April 2, 2010
request for waiver does not constitute an acceptable conective action, nor did it
provide prevention steps that DUSA was ordered to provide in the April 20, 2010
NOV. Compliance can not be based on what the DRC might or might not do in the
fiiture. It appears that DUSA is not accepting responsibility for the turbidity problem;
therefore, a 25% credit should be given for this category.
Penalty Calculation
Category D, which is a maximum of $500 per day penalty = $500
Credits: 1/3 (max $166) History of Compliance: (50% credit) =$83
1/3 (max $166) Degree of Willftilness and/or Negligence: (25% credit) = $42
1/3 (max $166) Good Faith Efforts to Comply: (25% credit) = $42
Total credit = $167
Penalty per day violation: = $333
Number of days of violation: = 9
Total Category Penalty (Gravity Component) = $2,997
ADJUSTMENTS
According to R317-1-8.3, the civil penalty shall be calculated by adding the following
adjustments to the penalty amount determined above:
a. Economic benefit (Cost Avoided) gained as a result of non-compliance: Section
6.2.7(d)(v) of the DUSA QAP states: "Purging is completed after two casing volumes
have been removed and the field parameters pH, temperature, specific conductance,
redox potential (Eh) and turbidity have stabilized to within 10% over at least two
consecutive measurements. " DUSA failed to allow field parameters to stabilize prior
to sample collection in 14 wells (aggregate) prior to sample collection in the 4*
Quarter (October), 2009 monitoring event. DUSA should have continued purging until
stable parameters had been established. DRC Staff believes that DUSA saved money
by failing to purge until stable parameters had been reached. However, it is difficult to
quantify because there is no set time when stable parameters will be reached. DUSA
purged for two casing volumes in all wells for the November and December, 2009
Page 17
monitoring events and still didn't obtain stable parameters; therefore, because of this
difficulty, no economic benefit will be considered with this proposed civil penalty.
b. Investigative costs incurred by the DRC and/or other govemmental levels: Based on
the degree of the violation (Category D.5), investigative costs incurred by
govemmental agencies are not included.
Proposed Civil Penalty for Docket No. UGWlO-03 (Violations 3-4): $ 2,997
3. Penalty 3: Violation 5 - for failure to excavate two casing volumes before collecting
groundwater samples in 17 wells during the 4"" Quarter 2009 Report, for the October
2009 monitoring event.
STATUTORY MAXIMUM PENALTY
The number of days that DUSA is considered to be in out of compliance was based on each day of
sampling where DUSA failed to purge two casing volumes before sample collection in the 4"^
Quarter (October), 2009 monitoring event, including October 12 - 14, 19-21, and 26 - 27, for a
total of 8 days. This is consistent with the basis for the maximum number of days determined
before for this same problem during resolution of the November 17, 2009 NOV (1^' Quarter, 2009
Report).
The proposed maximum penalty, therefore, would be calculated for 8 days at $500 per day is
$4,000
ASSIGNED PENALTY AMOUNT WITHIN A CATEGORY
A. History 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 been out of compliance with the
purging requirements of Part I.E.I (a) of the Permit and Section 6.2.7(d)(v) of the DUSA
QAP in every quarter since routine groundwater monitoring began. However, DUSA was
not cited for these problems until the l" Quarter, 2009 GW Report (November 17, 2009
NOV, Violation No. 3), because they hadn't been identified by DRC staff until then.
Because this problem was cited previously, DRC staff believes a 50% credit is appropriate
for history of compliance after consideration that the previous purging problems were not
cited.
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;
Page 18
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 constituting the violation, i.e., DUSA sampling
staff conducts groundwater sampling and should have purged for two casing
volumes before sample collection.
• DUSA could have made a reasonable effort to follow Part I.E.I (a) of the Permit
and Section 6.2.7(d)(v) of the DUSA QAP by purging for two casing volumes
before sample collection.
• DUSA knew of the legal/Permif QAP requirements which were specifically listed
in the DUSA QAP and Pennit, including: Section 6.2.7(d)(v) ofthe DUSA QAP,
that requires purging be performed until two casing are removed prior to sample
collection, and Part I.E.1(a) of the Permit, that requires all groundwater monitoring
and analysis performed under the Pennit shall be conducted in accordance with the
DUSA QAP. These requirements have existed in the Pennit since the November
28, 2006, Pennit (Mod.4) and since the original November 17, 2006 DUSA QAP.
Further, this requirement was brought to DUSA's attention in the November 17,
2009 DRC NOV (Violation 3).
• To the best of DRC knowledge, there is no indication of any recalcitrance and
DUSA wasn't aware of this problem until it was first cited in the April 21, 2009
NOV and Order 09-06 (l" Quarter, 2009 Monitoring Report).
Therefore, a 25% credit should be 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 cooperation with the State.
DRC Finding: This problem was also found in the 1'* Quarter, 2009 DUSA groundwater
monitoring report, and brought to the company's attention in a November 17, 2009 NOV
(Violation No. 3). DUSA responded to that action with a December 23, 2009 letter, in
which they claimed that compliance had already been regained, in that the "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. "
The 4^*^ Quarter, 2009 Report showed that this problem was not conected, but instead
repeated (despite the December 23, 2009 DUSA statements that compliance had already
been regained). Also, it is clear that the previous DUSA commitment was not lasting;
therefore, a 50% credit should be given for this category.
Penalty Calculation
Category D, which is a maximum of $500 per day penalty = $500
Credits: 1/3 (max $166) History of Compliance: (50% credit) =$83
1/3 (max $166) Degree of Willfiilness and/or Negligence: (25% credit) = $42
1 /3 (max $ 166) Good Faith Efforts to Comply: (50% credit) = $83
Total credit = $208
Page 19
Penalty per day violation:
Number of days of violation:
Total Category Penalty (Gravity Component)
= $292
= 8
= $2,336
ADJUSTMENTS
According to R317-1-8.3, the civil penalty shall be calculated by adding the following
adjustments to the penalty amount determined above:
a. Economic benefit (Cost Avoided) gained as a result of non-compliance. Section
6.2.7(d)(v) of the DUSA QAP states: "Purging is completed after two casing volumes
have been removed... " As shown on the table below, DUSA failed to purge for two
casing volumes in 17 wells prior to sample collection in the 4"' Quarter (October),
2009 monitoring event.
Well Date
DUSA Calculated
Time to Purge Two
Casing Volumes
(Minutes)
Reported
Time Well
Actually
Purged
(Minutes)
Difference
(Minutes)
MW-1 19-Oct-09 175 120 55
MW-5 12-Oct-09 217 120 97
MW-11 19-Oct-09 240 120 120
MW-12 13-Oct-09 148 120 28
MW-14'" 20-Oct-09 157 120 37
MW-15 "* 20-Oct-09 192 120 72
MW-17*" 21-Oct-09 221 120 101
MW-18'" 21-Oct-09 396 120 276
MW-19'" 19-Oct-09 616 120 496
MW-22'" 27-Oct-09 282 120 162
MW-25 '" 13-Oct-09 255 120 135
MW-27'" 12-Oct-09 173 120 53
MW-28'" 12-Oct-09 202 120 82
MW-29'" 26-Oct-09 151 120 31
MW-30'" 14-Oct-09 212 120 92
MW-31 '" 14-Oct-09 378 120 258
MW-32'" 14-Oct-09 333 120 213
Total 4,348 2,040 2,308
Footnotes:
1) Data for time of well purging (2 casing volumes) and actual purging time was obtained from DUSA records found under
Tab B of the 4* Quarter 2009 Groundwater Monitoring Report
DUSA should have purged for an additional 39 hours (2308 minutes /60) total in the
17 wells prior to sample collection. DUSA saved money by failing to purge for the
fiill two casing volumes, as shown below:
• /
Page 20
Purge for 39 hours more to
completely remove the
required two casing volumes
in 17 wells prior to sample
collection for the 4* Quarter
(October), 2009 monitoring
event.
2 Employees @ $30/hr each $2,340
Total Amount Saved by not purging for the fiiU two casing
volumes prior to sample collection
$2,340
b. Investigative costs incurred by the DRC and/or other govemmental levels: Based on
the degree of the violation (Category D.5), investigative costs incurred by
govemmental agencies are not included.
As a result, the total penalty assessed for Penalty 3 is as follows:
Penalty Calculation ($2,336) + Economic Benefit ($2,340) = $4,676.
Proposed Civil Penalty for Docket No. UGWlO-03 (Violations 5): $ 4,676
Proposed Overall Total Civil Penalty for Docket No. UGWl0-03, Violations 1 - 5:
Docket No. UGWl 0-03, Violations 1-2 $ 9,636.
Docket No. UGWlO-03, Violations 3 - 4 $ 2,997.
Docket No. UGWlO-03, Violation 5 $ 4,676.
TOTAL $ 17,309