DRC-2010-006447 - 0901a068801eaaec

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State of Utah
GARY R. HERBERT
Governor
GREG BELL
Lieulenani Governor
Department of
Environmental Quality
Ajnanda Smith
Execulive Direclor
OrVISlON OF RADIATION CONTROL
Rusty Lundberg
Director
C- 2010-0064>y
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Explanation
Loren Morton
Phil Goble
December 20, 2010
DUSA's June 22, 2010 response to NOV (Docket Number UGWlO-04)
Proposed Civil Penalty
Groundwater Discharge Permit (Permit) UG370004
Denison Mines (USA) Corporation (DUSA)
White Mesa Mill, Blanding, Utah
This memorandum updates and revises the DRC July 8, 2010 New Decontamination Pad
Proposed Civil Penalty Memorandum. This revision is in responce to DUSA's October 19, 2010
Letter, where they asked that the five violations listed in the May 13, 2010 be rescinded or
reconsidered. As a result, and after consultation with Melissa Hubbell of the Utah Attorney
Generals Office, it is necessary to revise July 8, 2010 DRC penalty calculation memorandum, and
replace it with this memorandum. Changes made to the July 8, 2010 memorandum are shown
below in italics.
DUSA received the May 13, 2010 NOV and Order via Certified Mail (return receipt requested).
The May 13, 2010 NOV and Order mandated that in accordance with the Utah
Administrative Procedures Act and Utah Admin. Code R.317-9-2(2) and -3(1)(3) DUSA reply in
writing within 30-days. The 30 day deadline had expired when DRC received ti^e June 22, 2010
DUSA Letter. Additionally, in theletter DUSA did not request any agency action to contest the
initial notice of violation or order (May 13, 2010 NOV and Order) nor did DUSA request that any
ofthe five violations be rescinded or reconsidered
Because DUSA did not contest the May 13, 2010 NOV and Order, nor ask that any of the
violations be rescinded or reconsidered on or before the 30-day deadline, the May 13, 2010 NOV
and Order is final and fully enforceable.
168 North 1950 West • Salt Lake City, UT
Mailing Address: P.O. Box 144850 • Sail Lake City, UT 84114-4850
Telephone [phone] • Fax [phone] • T.D.D. [phone]
www.deq.utah.gov
Printed on 100% recycled paper
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This is a review of DUSA's June 22, 2010 submitted response to the NOV, Docket Number
UGWl0-04. DUSA received the NOV on May 21, 2010 and responded to the DRC on June 22,
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 violafions,
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 5 items is in italics below, followed by a DRC finding.
VIOLATIONS
1. Violation of Part I.D.4 of the Permit for construction, and operation of a new wastewater
treatment or storage facility without submittal of engineering design plans and
specifications, and prior Executive Secretary review and approval.
DUSA Response (quotes below in italics):
a) The root cause of the noncompliance:
In a letter dated October 13, 2008 to the Executive Secretary, in response to an October 7,
2008 email from DRC staff, Denison stated that.in its view the new decontamination pad is
a part ofthe Mill process circuit and should not be considered to be a "new waste or
wastewater disposal, treatment, or storage facility" as contemplated by Part I.D.4 ofthe
Permit, and explained in detail why Denison believes that Part I.D.4 of the Permit does
not apply to construction ofthe new decontamination pad.
The October 13, 2008 letter was followed by a conference call on November 24, 2008
between Denison, the Executive Secretary and DRC staff. By an email dated December 2,
2008, DRC staff advised Denison that DRC would agree that no authorization is required
for the design, construction, or operation of the new decontamination pad so long as wash
water in the settling tanks does not exceed the State groundwater quality standard.
In an effort to resolve this issue, and because it would not be realistic to expect that the
wash water in the settling tanks would meet the State groundwater quality standard, over
the next several months Denison and DRC discussed possible options for engineering
design and retrofit (sic) construction that could result in an Executive Secretary approval
of the new decontamination pad. This resulted in a letter from Denison to DRC staff dated
June 5, 2010 in-which Denison proposed several conditions to be included in the then
upcoming Permit amendments, which would address this issue. A similar, but not identical
set of conditions were included in the draft Permit that was sent for public comment on
September 2, 2009. The Permit was tinally (sic) amended to include those conditions on
January 20, 2010.
It was Denison's understanding that this disagreement on the interpretation of Part I.D.4
arising in 2008 was resolved in 2009 through the addition of these conditions to the
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Permit. However, Denison acknowledges that it would have been more appropriate to
have consulted with the Executive Secretary prior to construction of the new
decontamination pad, which involves below grade water settling tanks, in order to obtain
the Executive Secretary's interpretation of the applicability of Part I.D.4 ofthe Permit to
this type of activity.
b) Steps that have been or will be taken to correct the violations:
Conditions were included in Part I.H.4 of the Permit on January 20, 2010, to address this
issue.
c) Date when compliance was or will be regained:
Compliance will be regained upon satisfaction of the conditions in Part I.H.4 ofthe
Permit.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
This is a one-off circumstance that is not subject to re-occurrence.
DRC Findings;
We agree that in 2008 DUSA held a different opinion about the definition of wastewater as it
relates to water stored below grade and re-cycled at the NDP. However, when Part I.H.4 was
added to the Permit (January 20, 2010), this difference was settled in that DUSA was required
to secure approval for design, construction, and operational practices for the NDP.
As a result. Violation No. 1 stands as cited. Specifically, DUSA constructed, and operated the
New Decontamination Pad (NDP) without submittal and prior Executive Secretary approval of
1) a revised Discharge Minimizafion Technology (DMT) plan [Part I.H.4(a)], 2) of
engineering design plans and specifications of a liner and leak detection system [Part I.H.4(b)]
and 3) of an As-Built Report for the facility.[Part I.H.4(d)]. By way of completeness,
Violafion No. 1 also consfitutes violafion of the Utah Water Quality Act at UCA 19-5-107.
This conclusion is supported by the following chronology and findings (for details, see May
12, 2010 DRC memorandum):
During a DRC inspecfion on November 17, 2008, it was discovered that DUSA had
constructed the New Decontamination Pad (hereafter NDP), without prior Executive Secretary
approval. Contrary to the views held by DUSA in their October 13, 2008 letter, DRC staff
concluded that the solids and water held in the NDP sedimentafion tanks (partially below
grade) constitute a potential source of pollution to "waters of the state" (including
groundwater), for the following reasons:
1. The discharge or potential discharge of pollutants into "waters of the state" is unlawfial
without prior receipt of a discharge permit, as provided in the Utah Water Quality Act
(UCA 19-5-107), as follows (emphasis added):
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''19-5-107. Discharge of pollutants unlawful — Discharge permit required.
(l)(a) Except as provided in this chapter or rules made under it, it is unlawful for any
person to discharge a pollutant into waters of the state or to cause pollution which
constitutes a menace to public health and welfare, or is harmful to wildlife, fish or
aquatic life, or impairs domestic, agricultural, industrial, recreational, or other
beneficial uses of water, or to place or cause to be placed any wastes in a location
where there is probable cause to believe it will cause pollution.
(3) It is unlawful for any person, without first securing a permit from the executive
secretary as authorized by the board, to:
(a) make any discharge or manage sewage sludge not authorized under an existing
valid discharge permit; or
(b) construct, install, modify, or operate any treatment works or part of any treatment
works or any extension or addition to any treatment works, or construct, install, or
operate any establishment or extension or modification of or addition to any treatment
works, the operation of which would probably result in a discharge. " '
Because the NDP tanks are located partially below grade, there is a potential that
joints, cracks or other defects in the tank walls could release contact wastewater to the
subsurface without the ability for ready detection and repair; thus leading to possible
groundwater pollufion.
2. The DUSA NDP sedimentafion tanks include baffles to cause sedimentafion and a
pumping station to lift contact water back up to the wash pad for re-use in
decontamination. As a result, the tanks provide a treatment (sedimentation /
clarification) ofthe contact water that allows water re-use on the wash pad. Therefore,
DRC staff concludes that this system meets the definifion of "Treatment Works" as
found in UAC R317-1-1.29, as follows:
"7.2P "Treatment works" means any plant, disposal field, lagoon, dam, pumping
station, incinerator, or other works used for the purpose of treating, stabilizing or
holding wastes. (Section 19-5-102)."
3. Solids held in the NDP tanks meet the definifion of "waste" in UAC R317-1-1.32, as
follows (emphasis added):
1.32 "Wastes" means dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar
dirt, and industrial, municipal, and agricultural waste discharged into water.
(Section 19-5-102)."
4. In addition, the contact water held in the NDP storage tanks meets the definition of
"wastewater" in UAC R317-1-1.33 (emphasis added):
"7.33 " Wastewater" means sewage, industrial waste or other liquid
substances which might cause pollution of waters of the state. Intercepted
ground water which is uncontaminated by wastes is not included."
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As discussed above, subsurface storage of the water creates a potential for undetected
release of wastes and wastewater to groundwater, i.e., pollufion. Further, the
decontamination activity conducted at the DUSA NDP is an industrial process.
5. Further, "pollufion" in UCA 19-5-102 (9) is defined as (emphasis added):
"... any man-made or man-induced alteration of the chemical, physical, biological,
or radiological integrity of any waters of the state, unless the alteration is
necessary for the public health and safety."
As a result of these findings, it is clear that the DUSA NDP facility has a potenfial to
contaminate groundwater and is therefore regulated under the Water Quality Act. As a
result, DRC review and approval of its engineering design and construcfion was
required before DUSA put the facility into use.
Therefore, DRC staff proposes that a civil penalty be levied against DUSA because
multiple opportunities were provide to DUSA to secure the required prior approval
before use of the facility, to no avail. These multiple opportunities are documented in
the 5/12/10 DRC Memorandum, attached to this memo.
This penalty amount has been calculated by DRC staff, which is included later in this
memo (see pp. 9 - 15). In DUSA's root cause analysis, described above, DUSA states
it was their understanding that this disagreement on the interpretation of Part I.D.4
arising in 2008 was resolved in 2009 through the addifion of these condifions (Part
I.H.4) to the Pennit. This statement is true, only if DUSA had complied with all the
requirements of Part I.H.4 ofthe Permit before using the NDP. Unfortunately, this was
not achieved before DUSA put the NDP into service, as outlined above.
Violation of Part I.H.4(a) of the Permit for failure to submit an updated DMT
Monitoring Plan within 30 days of Permit issuance, or by February 19, 2010.
DUSA Response (quotes below in italics):
a) The root cause of the noncompliance:
Part I.H.4 of the Permit requires that within 30 days of issuance of the revised Permit on
January 20, 2010, Denison will submit an updated Discharge Minimization Technology
Plan ("DMT Plan") and Contingency Plan that reflect the requirements of Part I.H.4 of
the Permit. A revised DMT Plan and Contingency Plan were included as Attachments A
and B to a letter to the Executive Secretary dated March 12, 2010 in response to a
February 4, 2010 Request for Information.
Similarly, Part I.H.4 of the Permit requires that within 30 days of issuance ofthe revised
Permit on January 20, 2010, Denison will submit an updated DMT Plan that reflects the
requirements of Part I.H.5 of the Permit, as well as as-built drawings ofthe existing
decontamination pad. A revised DMT Plan was included as Attachment A to the March 12,
2010 letter. The as-built drawings of the existing decontamination pad were included as
Attachment E to the March 12, 2010 letter.
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As stated in the March 12, 2010 letter, proposed revisions to the DMT Plan to address the
new decontamination pad were submitted to DRC on June 29, 2009 and November 16,
2009 and had been under discussion with DRC, culminating in DRC's February 4, 2010
Request for Information which Denison received on February 12, 2010. Denison had
therefore submitted an updated DMT Plan, as contemplated by Denison's June 5, 2009
letter and as subsequently required by the Permit, prior to issuance ofthe Permit. Further,
as the resolution of the revisions to the DMT Plan for the new decontamination pad were
relevant to the revisions to the Contingency Plan for the new decontamination pad and to
the revisions to the DMT Plan for the existing decontamination pad, the submittals
required under Parts I.H.4 and I.H.5 were submitted together with the other materials in
response to and within 30 days of receipt of the_February 4, 2010 Request for Information.
Denison interpreted the February 4, 2010 Request for Information as extending the 30-day
time period specified in the Permit for the items not previously submitted to the Executive
Secretary. Otherwise, Denison would have had only 7 days to incorporate its responses to
the Request for Information into the revised DMT Plan and Contingency Plan required
under Parts I.H.4 and I.H.5 of the Permit.
b) Steps that have been or will be taken to correct the violations:
As stated above, Denison submitted an updated DMT Plan prior to issuance ofthe Permit.
However, further updated DMT Plan was submitted to the Executive Secretary on March
12, 2010 in response to the February 4, 2010 Request for Information.
c) Date when compliance was or will be regained:
Compliance was achieved on or before March 12, 2010.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
The March 12, 2010 letter was in response to a specific set of circumstances that is not
expected to re-occur.
DRC Findings:
Violafion No. 2 sfill stands, in that DUSA failed to submit a revised DMT Plan within 30 days
of Permit issuance, or by February 19, 2010. DUSA submitted a complete revision ofthe
DMT Plan regarding the NDP on March 12, 2010. The DRC acknowledges that DUSA did
submit letters regarding NDP, dated" June 29, 2009 and November 16, 2009 that included
excerpts of proposed language to the DMT Plan, but these submittals did not include a
complete or "stand-alone" version of the revised DMT Plan unfil the March 12, 2010
submittal.
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After considering the Execufive Secretary's possible enforcement options, DRC staff believes
it is necessary to pursue a penalty for this violation because a complete or "stand-alone"
version of the revised DMT Plan was submitted after the February 19, 2010 deadline. A
penalty amount has been calculated by DRC staff, which is included later in this memo (see
pps. 9 - 15). The DUSA steps to correct the violation and to regain compliance were achieved
with the DUSA submittal of a revised DMT Plan on March 12, 2010.
3. Violation of Part I.H.4(b) of the Permit for failure to submit engineering drawings for
the steel liner and leak detection system and receive Executive Secretary approval before
liner construction.
DUSA Response (quotes below in italics):
a) The root cause of the noncompliance:
Mill operations staff were not aware of a commitment to submit engineering drawings for
the steel liner and leak detection system and receive Executive Secretary approval before
liner construction, because those conditions had not yet been adopted in an amended
Permit. It appears that Mill operations personnel were not aware of the status of
discussions between Denison and DRC relating to these matters, and mistakenly based
their operational decisions on the then approved Permit and not on draft Permit
conditions that were not yet in force.
However, Denison acknowledges that, even though the draft Permit conditions were not
then in force, it was implicitly agreed between Denison and DRC that Denison would <
follow the draft conditions. In most circumstance. Mill operations staff fi)llow approved
and not draft Permit and License conditions, and, apparently. Mill operations staff were
not aware of any information that would cause them to vary from this approach in these
circumstances. This reflects a breakdown in communication between Denver and Mill
operations personnel, contributed in part by the long period of time during which these
matters were under discussion between Denison and DRC.
b) Steps that have been or will be taken to correct the violations:
As-built drawings ofthe steel liner and leak detection system have been provided to the
Executive Secretary for review, and Denison is prepared to make any changes to the
actual installation ofthe liner and leak detection system as may be required by the
Executive Secretary after review ofthe as-built drawings.
c) Date when compliance was or will be regained:
Compliance will be achieved upon Executive Secretary approval of the use of the new
decontamination pad.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
This is a one-off circumstance that is not expected to re-occur. With respect to
communications between Denver staff and Mill operations personnel, steps continue to be
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taken to improve communications in order to minimize the chance of re-occurrence of this
type of miscommunication.
DRC Findings:
Violation No. 3 sfill stands, in that:
1) TheMay 12, 2010 DRC Memorandum, shows that DUSA provided its initial .
engineering design for the NDP steel liner and leak detection system (LDS) in a May
29, 2009 email, followed by two other submittals dated November 19, 2009 and March
12, 2010. Corresponding DRC Requests for Information letters were sent to DUSA
datedAugust6, 2009, February 4, 2010, and May 10, 2010. '
2) The draft Permit requirement in Part l.H.4(b) for engineering drawings and prior DRC
approval of the steel liner and leak detection system (LDS) was proposed in the Prmit
and exposed to public comment on September 2, 2009,
3) During an October 8, 2009 inspection, DRC staff observed that DUSA had already
constructed the NDP steel liner and the access pipes to the leak detection system before
receiving design approval from the Executive Secretary,
4) The final Permit (with the new Part I.H.4(b) requirement) was executed on January 20,
2010,
5) After review of the November 16, 2009 submittal, the DRC asked for additional
information in a February 4, 2010 Request for Information (RFI) letter,
6) DUSA responded to this RFI in a submittal of March 12, 2010,
7) After review, the DRC asked for additional information in a May 10, 2010 RFI letter,
and
8) To date (August 24, 2010), DUSA has failed to respond to this RFI.
After considering the Executive Secretary's possible enforcement options, DRC staff believes
it is necessary to pursue a penalty for this violation because multiple opportunities were
provided DUSA to secure prior steel liner and LDS approval, to no avail. A penalty amount
has been calculated by DRC staff, which is included later in this memo (see pps. 9 - 15).
Violation of Part I.H.4.(c) of the Permit for failure to provide at least a 10 calendar day
prior notice of the hydrostatic test that verifies that the steel liner and leak detection
system perform in accordance with the approved drawings, and to allow a DRC
inspector to be present during the test.
DUSA Response (quotes below in italics):
a) The root cause of the noncompliance:
By a letter dated November 16, 2009, Denison provided DRC with 10 day advance notice
of a hydrostatic test to begin on December 1, 2009. DRC staff did not attend that test.
Denison redid the hydrostatic test between February 9-11, 2010, because of changes to the
test reporting form, and submitted the report of this second test to the Executive Secretary
with the March 12, 2010 letter referred to above.
Mill operations staff mistakenly assumed that, because DRC staff did not elect to attend
the tirst (sic) hydrostatic test, they would not elect to attend the second hydrostatic test.
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and that it was therefore not necessary to provide a 10-day notice ofthe second
hydrostatic test. This assumption was in error and in violation of Part I.H.4 ofthe Permit.
b) Steps that have been or will be taken to correct the violations:
The Mill will conduct a third hydrostatic test and will provide DRC staff with a 10-day
prior notice, as required by Part I.H.4(c) of the Permit.
c) Date when compliance was or will be regained:
Compliance will be regained after completion of the third hydrostatic test.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
This is a one-off test, so a re-occurrence of this noncompliance will not occur.
DRC Findings:
We agree that in the November 16, 2009 DUSA letter that notice was provided that a
hydrostatic test on the steel liner would begin on December 1, 2009. However, Violation No.
4 still stands, in that DUSA failed to provide a 10-day notice for the hydrostatic test conducted
on February 9-11, 2010. After considering the Executive Secretary's possible enforcement
options, DRC staff believes it is necessary to pursue a penalty for this violation in that
multiple opportunities were provided to communicate what was required, and upon issuance
ofthe final Permit on January 20, 2010, DUSA had a clear responsibility to notify the DRC
about upcoming hydrostatic testing. A penalty amount has been calculated by DRC staff,
which is included later in this memo (see pps. 9 - 15). The DUSA commitment to correct the
violation by conducting a third hydrostatic test and providing a 10-day prior notice to the
DRC, is acceptable in concept, but has yet to be accomplished.
Violation of Part I.H.4(d) of the Permit for failure to refrain from use of the New
Decontamination Pad until after Executive Secretary approval of the as-built drawings.
DUSA Response (quotes below in italics):
a) The root cause of the noncompliance:
Based on the nature ofthe requests for information set out in the February 4, 2010 letter
from DRC staff, and the fact that this was the second Request for Information and it
appeared to Denver operations staff that all substantive issues had been addressed
previously or would be addressed by Denison's response to the February 4, 2010 letter,
Denison operations staff mistakenly interpreted the February 4 letter as a conditional
approval ofthe use ofthe new decontamination pad after Denison had satisfled the
outstanding matters in the letter. This was clearly an inappropriate and wrong
interpretation of the February 4, 2010 letter.
As a result, after submittal of the March 12, 2010 response letter to the Executive
Secretary Denison operations personnel mistakenly believed that the outstanding matters
Page 10
had been addressed and that Executive Secretary approval had been obtained, and
instructed Mill personnel to commence use of the new decontamination pad.
b) Steps that have been or will be taken to correct the violations:
Denison stopped use of the new decontamination pad on May 11, 2010, and will not
recommence use of the pad until all conditions in Part I.H.4 of the Permit have been
satisfled and Executive Secretary approval has been obtained in writing.
c) Date when compliance was or will be regained:
Compliance will be regained upon receipt of written approval from the Executive
Secretary that use of the new decontamination pad may re-commence.
d) Steps taken or to be taken to prevent reoccurrence of the noncompliance:
This is a one-off circumstance that is not expected to re-occur.
DRC Findings:
Based on the chronology outlined above, where a DRC October 8, 2009 inspection found the
steel liner had already been constructed, it would appear that the engineering drawings
submitted on November 16, 2009 were DUSA as-built drawings. Further, it is clear that
DUSA has yet to resolve all DRC questions and concems regarding said drawings and
information. As a result, Violation No. 5 still stands, in that DUSA put the NDP into service
on or about March 22, 2010, before receiving DRC approval of the As-Built drawings.
After considering the Executive Secretary's possible enforcement options, DRC staff believes
it, is necessary to pursue a penalty for this violation in that multiple opportunities were
provided DUSA to secure DRC approval of the as-built drawings, and that the requirement
was clearly enforceable after execution of the Permit on January 20, 2010. Therefore, a
penalty amount has been calculated by DRC staff, which is included later in this memo (see
pps. 9-15).
Of the five violations described above, DRC staff believes it is appropriate to seek a civil penalty
for all five of the violations; this is described in detail below:
WATER OUALITY PENALTY CRITERIA
According to R317-1-8 (Penalty Criteria for Civil Settlement Negotiafions), the penalty
calculation methodology consists of the following formula:
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CIVIL PENALTY = PENALTY + ADJUSTMENTS - ECONOMIC AND LEGAL
CONSIDERATIONS
L 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 ofthe Utah Water Pollution Control Act,
associated regulations, permits or orders to include:
Category B.1 - Discharges which likely caused or would potentially cause (undocumented) public
health effects or significant environmental damage.
Category B.2 - Creafion of a serious hazard to public health or the environment.
Category B.3 - Illegal discharges containing significant quanfities of concentrafions 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. Violafions ofthe Utah Water Pollution Control Act,
associated regulations, permits or orders to include:
Category Cl - 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.5 - Any type of violation not mentioned previously which warrants a penalty
assessment under category C.
Category D - up to $500 per day. Minor violafions of the Utah Water Pollution Control Act,
associated regulations, permits or orders to include:
Category D.l - Minor excursion of permit effluent limits.
Category D.2 - Minor violations of compliance schedule requirements.
Category D.3 - Minor violations of reporting requirements.
Category D.4 - Illegal discharges not covered in Categories A, B and C.
Category D.5 - Any type of violations not mentioned previously which warrants a penalty
assessment under category D. .
During inspection ofthe DUSA White Mesa Mill on May 4, 2010, DRC staff observed that the
NDP had been placed into service. At that time, no Executive Secretary approval of the liner /leak
detection design, as-built engineering drawings / report, or use the NDP had been issued.
Therefore, the DRC cited DUSA for five violafions, five of which warrant monetary penalties.
None of the violations caused direct or potential harm to human health and the environment
Page 12
(Category A and B). Therefore, the following penalty categories do not apply: Categories A (1
and 2), B (1 thru 4), C. 1, 3, 4, 5 and D. 1, 2, 3, 4.
One of the five violations fall under the penalty Category D.5 (Violafion 1) and the other foUr fall
under Category C.2 (Violafions 2 - 5). For details see Table 1 above.
The violations described above that are similar in nature were combined into two (2) separate civil
penalties. This is summarized in the Table 2, below:
Table 2. Proposed Penalty Categories
Violations Penalties Why Combined
1- Constmction of NDP without
receiving DRC approval Penalty 1 NA
2- Failure to submit an updated DMT
Monitoring Plan reflecting the NDP
by February 19,2010
Penalty 2
These violations were combined
because each of these violations
are requirements of Part I.H.4 of
the Permit.
3- Failure to receive approval of liner
and leak detection system before
construction Penalty 2
These violations were combined
because each of these violations
are requirements of Part I.H.4 of
the Permit.
4- Failure to provide at least a 10-day
notice for the hydrostatic test
conducted Febmary 9 - 11, 2010
Penalty 2
These violations were combined
because each of these violations
are requirements of Part I.H.4 of
the Permit.
5- Failure to refraining from use of
the NDP until after DRC approval of
As-Built drawings.
Penalty 2
These violations were combined
because each of these violations
are requirements of Part I.H.4 of
the Permit.
1. Penalty 1: Violation 1 - Violation of Part I.D.4 of the Permit for construction, and
operation of a new wastewater treatment or storage facility without submittal of
engineering design plans and specifications, and prior Executive Secretary review and
approval.
STATUTORY MAXIMUM PENALTY
The number of days that DUSA is considered to be out of compliance was calculated from the
date the DRC identified that DUSA had constructed the NDP (November 17, 2008) to the day
DUSA submitted preliminary design drawings of the NDP (May 29, 2009).
The proposed maximum penalty, therefore, would be calculated for 193 days at $500 per day is
$96,500.
However, because there wasn't a potenfial threat to the environment until the NDP was placed
into service, the number of days that DUSA will be considered to be out of compliance was
calculated firom the date DUSA put the NDP into service (March 22, 2010) to the day DUSA
stopped use of the NDP (May 11, 2010), or 50 days.
ASSIGNED PENALTY AMOUNT WITHIN A CATEGORY
History of compliance or non-compliance:
Page 13
Under UAC R317-1-8.3(A), two factors need to be considered, including previous
violations and degree of recidivism.
DRC Finding: DUSA typically has a good record history of submitting the necessary
design drawings for major projects. Since the original Ground Water Discharge Permit
was issued to DUSA in March, 2005, there have been two major projects (Ceir4A
Refining, Cell 4B,) where the submittal of design drawings and Executive Secretary
approval of those drawings were required before construction/repair of the facilities.
DUSA submitted design drawings for the Cell 4A Refining Project and Cell 4B before the
construction/repair of the facilities; however, DUSA failed to do the same for the NDP.
The NDP was the first facility constructed by DUSA where they failed to receive
Executive Secretary approval before construction. Therefore, a 100% credit was given for
history of comphance.
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., submittal of
design drawings for Executive Secretary approval before construction of the NDP
(0 credit).
• DUSA could have made a reasonable effort by consulting with the DRC prior to
construction of the NDP (0 credit).
• DUSA knew of the legal/Permit requirements listed in the Permit, including: Part
I.D.4 that requires "...any construction, modiflcation, or operation of new waste or
wastewater disposal, treatment, or storage facilities shall require submittal of
engineering design plans and specifications, and prior Executive Secretary review
and approval... " This requirement has existed in the Permit since the original
March, 2005 Pennit (25% credit).
• The DRC and DUSA had a disagreement on the interpretation of Part I.D.4.
Because of this difference of opinion, DUSA did not feel it was necessary to
submit design drawings for Executive Secretary approval before construction of the
NDP. As the May 12, 2010 DRC Memorandum shows, DUSA made several
commitments it failed to meet (0 credit).
Although DUSA had control over the events constituting the violation and could have
made a reasonable effort by consulting with the DRC prior to construction of the NDP,
there was no willfulness in this action. Accordingly, the DRC will assign a 25% credit for
this category.
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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.
As required by Part I.D.4 of the Permit, DUSA should have submitted design drawings
and received Executive Secretary approval of those drawings before construction ofthe
NDP. DUSA submitted preliminary design drawings of the NDP, albeit after construction
had begun. The chronology also shows that DUSA has yet to resolve the technical issues
on engineering design and operations / maintenance. Therefore, a credit of 25% was given
for good faith efforts to comply.
Penalty Calculation
Category D, which is a maximum of $500 per day penalty = $500
Credits: 1 /3 (max $ 166) History of Compliance: (100% credit) = $166
1/3 (max $166) Degree of Willfiilness and/or Negligence: (25% credit) = $42
1/3 (max $166) Good Faith Efforts to Comply: (25% credit) = $42
Total credit = $250
Penalty per day violation: = $250
Number of days of violation = 50
Total Category Penalty (Gravity Component) = $12,500
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. Construction
ofthe NDP began in August of 2008. DUSA should have submitted engineering
design plans and specifications and received Executive Secretary approval of the
drawings before beginning construction of the NDP. It could be argued that DUSA
received an economic benefit by failing to preparing these documents before
constructing the NDP; however, DUSA did provide the design drawings of the NDP at
a later date (October 13, 2008). This benefit was likely offset by added labor costs due
to lower efficiency for DUSA to use the former decontamination pad to clean
equipment and containers. Therefore, no economic benefit will be considered with this
proposed civil penalty.
b. Investigative costs incurred by the DRC and/or other govemmentai levels: Based on
the degree ofthe violation (Category D.5), investigative costs incurred by
govemmentai agencies are not included.
Proposed Civil Penalty for Docket No. UGWlO-04 (Violations 1): $12.500
Page 15
Penalty 2: Violations 2 - 5 - Failure to comply with the requirements of Part I.H.4 ofthe
Permit (Compliance Schedule Violations).
STATUTORY MAXIMUM PENALTY
The number of days that DUSA is considered to be out of compliance was calculated from the
date DUSA put the NDP into service (March 22, 2010) to the day DUSA stopped use of the NDP
(May 11,2010), or 50 days.
The proposed maximum penalty, therefore, would be calculated for 50 days at $2.000 per day is
$100,000.
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 Findings: DUSA typically has a good record history of following the compliance
schedule items of the Permit. Therefore, a 100% credit was given for history of
compliance.
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 violations as DUSA is
ultimately responsible for complying with the requirements of the Permit (0 credit).
• DUSA could have made a reasonable effort to prevent the violations. Multiple
opportunities were provide by DRC to help DUSA understand what was required
for construction of a new wastewater management facility, including multiple
meetings, emails, and conference calls between October, 2008 and Permit issuance
(January 20, 2010) which resulted in several new compliance schedule
requirements that were exposed to public comment. In DUSA's root cause
analysis, DUSA agrees that it was implicitly agreed between DUSA and the DRC
that DUSA would follow the draft conditions of the Permit. DUSA states that the
Mill personnel were not aware of these commitments made by DUSA Denver.
This reflected a breakdown in communication of DUSA Denver and the Mill
Page 16
personnel. DUSA also mistakenly assumed the outstsinding matters regarding the
NDP were resolved and placed the NDP into service, (0 credit)
• DUSA knew of the legal/Permit requirements after multiple discussions and
sharing of written correspondence before the new compliance schedule
requirements were listed in Part I.H.4 of the Permit. In fact, many of these new
compliance schedule requirements were derived from a June 5, 2009 DUSA letter
which proposed the conditions "must be satisfied prior to the Mill using the
Decontamination Pad" (0 credit).
• There is also evidence of recalcitrance. Part I.H.4 was added to DUSA's Permit in
the January 20, 2010 modification. Part I.H.4(b and d) of the Permit explicifly
forbid DUSA from using the NDP without approval of the steel liner / LDS design
and facility as-built report. DUSA willfully put the NDP into service on March
22, 2010 before these conditions were met, as evidenced the above chronology, and
a March 22, 2010 Harold Roberts e-mail sent to White Mesa staff that states: "All:
Attached is a copy of the letter response we sent to the State concerning the new
decon pad. In the letter we indicated that we were planned to begin using the
pad on march 22 (today), and requested that the state let us know if this was not
acceptable. I have heard nothing of this morning. Therefore, you are free to
begin using the pad. Make sure that your are in compUance with all the
inspection requirements in the revised DMT plan attached to the letter. Even
though the State has not approved the revisions we should still begin operating
under the changes related to the Decon Pad." This DUSA email was provided to
DRC staff during the May 4, 2010 inspection (0 credit).
As shown above DUSA failed to meet any of the factors for degree of willfulness and/or
negligence; therefore, the DRC will assign a 0% 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 did submit a revised DMT plan, although the DMT plan was submitted late [Permit
Part I.H.4(a)]. DUSA failed to secure Executive Secretary approval of the steel liner /
LDS before construction [Permit Part I.H.4(b)]. DUSA made a 10 day advance
notification for the hydrostatic test for be started December 1, 2010; however, DUSA
failed to provide the DRC with a 10 day notification of the hydrostatic test conducted
February 9 - 11, 2010 [Permit Part I.H.4(c)]. DUSA also failed to secure approval of as-
built drawings for the NDP before putting it into service [Permit Part I.H.4(d)]. Therefore,
a credit of 50% was given for good faith efforts to comply.
Penalty Calculation
Category C, which is a maximum of $2,000 per day penalty = $2,000
Credits: 1/3 (max $667) History of Compliance: (100% credit) = $667
1/3 (max $667) Degree of Willfiilness and/or Negligence: (0% credit) = $0
1/3 (max $667) Good Faith Efforts to Comply: (50% credit) = $333
Total credit =$1000
Page 17
Penalty per day violation: =$1,000
Number of days of violation: = 50
Total Category Penalty (Gravity Component) = $50,000
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. Any benefit
gained by DUSA by failing to comply with the requirement of Part I.H.4 of the Permit
would likely be delay of capitol outlays or expenses in completing the Permitting
process. However, this benefit was likely offset by added labor costs due to lower
efficiency in use of the former decontamination pad to clean equipment and containers.
Therefore, no economic benefit will be considered with this proposed civil penalty.
b. Investigative costs incurred by the DRC and/or other govemmentai levels: Based on
the degree of the violation (Category C.2), investigative costs incurred by
govemmentai agencies are not included.
Proposed Civil Penalty for Docket No. UGWlO-04 (Violations 2-5): $ 50,000
Proposed Overall Total Civil Penalty for Docket No. UGWlO-03, Violations 1-5:
Docket No. UGWlO-04, Violation 1 $ 12,500.
Docket No. UGWlO-04, Violations 2 - 5 $ 50,000.
TOTAL $ 62,500.
If DUSA resolves this matter at this time, through a Settlement Agreement, the civil penalty will be
$62,500. This amount is offered as an incentive for early settlement. As shown above, this
settlement offer has been achieved by combining some ofthe violations, and application of
various credits.
However, ifDUSA declines the proposed early settlement offer it will be necessary for the DRC to
take this matter to the Utah Water Quality Board, for their consideration and determination of an
appropriate penalty amount. If it is necessary for the DRC to go before the Board, the early
settlement offer will be rescinded and the DRC will pursue the maximum penalty amount for both
penalties, as follows (for details, see discussion above):
Penalty for Violation No. I: $96,500
Penalty for Violations Nos. 2-5: ^ $100.000
Total: $196,500
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Further, should DUSA fail to sign the early settlement agreement or complete negotiation by
January 4, 2011, the DRC will refer this matter to the Utah Attorney General's Office for
placement of this matter on the docket of the Utah Water Quality Board.