DRC-2011-007563 - 0901a0688028b452

Rece
NOV 2011 2
Denison Mines (USA) Corp.
105017th Street, Suite 950
Denver, CO 80265
USA
Tel: [phone]
Fax: 303 389^125
www.denisonmines.com
DENISO
MINES
November 4, 2011
VIA PDF AND FEDERAL EXPRESS
Mr. Rusty Lundberg
Co-Executive Secretary
Utah Water Quality Board
State of Utah Department of Environmental Quality
195 North 1950 West
P.O. Box 144810
Salt Lake City, UT 84114-4810
Dear Mr. Lundberg:
Re: DRC Findings and Proposed Settlement Agreement and Monetary Penalty dated
October 14, 2011 relating to Notice of Violation and Compliance Order, Docket No.
UGWll-04
On October 27, 2011, we had a conference call with you and DRC staff to discuss why DRC had
concluded that the Affirmative Defense set out in Part I.G.3.c) of the White Mesa Mill's
Groundwater Discharge Permit ("GWDP") is not applicable to one of the violations of the
GWDP included in the Notice of Violation referenced above. That violation involved a failure
ofthe Mill's contract analytical laboratory to follow the sample holding time requirements in the
Mill's Groundwater Quality Assurance Program ("QAP"), when those requirements are in
conflict with the requirements of the Analytical Method prescribed in the QAP.
During that call, you advised that DRC interprets Part I.G.3.c) of the GWDP as only being
applicable to violations of Discharge Minimization Technology ("DMT") or Best Available
Technology ("BAT") provisions of the GWDP that essentially involve mechanical failures or
malfunctions, and is therefore not applicable to violations such as this relating to sampling
procedures and methods.
During the call we advised you that we had discussed this very point with DRC's Dane
Finerfrock and Loren Morton some years ago and understood that DRC had interpreted Part
I.G.3.c) of the GWDP to have a broader application, and to be available as a potential defense to
most if not all violations of the GWDP, not just mechanical failures or failures only involving
DMT or BAT provisions of the GWDP. We further recall from our discussions at that time with
Loren and Dane that such an interpretation was consistent with the way the Division of Water
Quality interpreted the equivalent provisions in the State groundwater rules and in groundwater
discharge permits issued by that Division, although we are not certain of that recollection.
We further advised you on our October 27, 2011 call that, regardless, all monitoring wells at the
site should be considered to fall within the category of DMT under the GWDP, and referred you
to Part I.D.3.a) of the GWDP, titled "DMT Monitoring Wells at Tailings Cell 1." The
monitoring well network at the Mill site was maintained and expanded as a DMT requirement
under the GWDP, because a number of features of the facility, such as the historic cell liner and
leak detection systems of Cells 1, 2 and 3, did not qualify as BAT at the time the GWDP was
issued. The existing well network was expanded to serve as DMT in the absence of such BAT
features. To date, we have operated under the understanding that failure to properly sample a
monitoring well is considered a failure of DMT.
You asked us to review our files to see if we could find an example of DRC's interpretation of
Part I.G.3.C) of the GWDP that is consistent with Denison's understanding, as described above.
As requested, Denison has reviewed its files and has been able to locate an example of a situation
where DRC's interpretafion of Part I.G.3.c) of the GWDP appears to be consistent with
Denison's understanding. Attached to this letter is a series of correspondence relating to a
violation for failure to comply with the sample receipt temperature requirements set out in the
QAP, and which did not involve a mechanical failure or malfunction. It would appear from this
correspondence that DRC acknowledged that the Affirmative Defense standards specified in Part
I.G.3.C) of the GWDP are applicable to such types of violation.
A timeline summarizing the issue is included below, and the applicable documentation is
attached to this letter as Attachments 1 through 5. Note that the text of the attachments has been
highlighted for ease of review.
July 3, 2008 - Denison provides verbal notification of the noncompliant situation (within 24
hours of discovery as required) whereby samples were received at the analytical laboratory
outside of the QAP-specified limits.
Attachment 1 - Julv 7, 2008 - Denison provides written notice of the noncompliant situafion
(within 5 days of initial notification) as required.
Attachment 2 - Ausust 1, 2008 - DRC correspondence to Denison providing the Notice of
Agency Findings. The Notice of Agency Findings states "It appears that DUSA has met three of
the four items (1,2, and 4) needed to meet the Affirmative Defense requirements under UAC
R317-6-6.16(c)(3). Although DUSA describes in great detail the steps they have taken or will
take to fix the sample temperature problems, DUSA failed to provide the DRC with a schedule
or date when it would be back in compliance. Without a schedule by which compliance will be
regained, DUSA fails to meet the terms of Affirmative Defense." The Notice further states
"Although DUSA failed to meet all the criteria for Affirmative Defense in the July 7, 2008
submittal, DUSA can still submit a date whereby compliance for future samples will be
regained."
DENISO
MINES
Attachment 3 - Ausust 19, 2008 - E-mail correspondence from Loren Morton to Dane
Finerfrock. The e-mail states "Dave said he understood why he didn't meet the affirmative
defense criteria and that DRC was leaving the door open for them to qualify for it...."
Attachment 4 - September 4, 2008 - Denison correspondence to DRC which provides follow-up
to the Notice of Agency Findings from August 1, 2008. This letter provided a date by which
compliance for temperature exceedances would be regained as required in order to meet the
Affirmative Defense requirements.
Attachment 5 - October 9, 2008 - DRC correspondence to Denison giving notice of
Enforcement Discretion for the temperature exceedance issues.
As can be seen from the attached, the Affirmative Defense standards have been previously
applied to groundwater monitoring situations similar to the violation at hand. In the attached
example, the initial denial of the Affirmative Defense was as a result of an incomplete
submission rather that the inappropriate application of the defense.
Based on the foregoing, we ask that DRC reconsider its current interpretation of the applicability
of Part I.G.3.C) of the GWDP, and that DRC confirm that its interpretafion is consistent with the
Division of Water Quality's interpretation of similar standards for its permittees.
Please let me know if you have any questions or require any further information.
Yours very truly,
DUSA (J^SA) CORP.
By:
Davi
Vice President, Regulatory Affairs and Counsel
cc: Ron F. Hochstein
Harold R. Roberts
Jo Ann S. Tischler
David E. Turk
Katherine Weinel
DENISO MINES
Dontson Mines (USA) Corp.
1050 17th Street, Suite 950
Denver, CO 80265
USA
Tei: 303 628-7798 - :
Fax: 303 389^125
www.denisonmlnes.com
July 7, 2008
VIA PDF AND FEDERAL EXPRESS
Dane L. Finerfrock, Executive Secretary
Utah Radiation Control Board
Utah Department of Environmental Quality
168 North 1950 West
P.O. Box 144810
Salt Lake City, UT 84114-4810
Dear Mr. Finerfrock:
Re: State of Utah Ground Water Discharge Permit No. UW370004 White Mesa Uranium Mill
- Notice Pursuant to R313-6-6.13
Please take notice pursuant to R313-6-6.13 that Denison Mines (USA) Corp. (DUSA) initiated a
follow-up telephone call with its contract analytical laboratory on July 2, 2008 to determine whether
the temperature of samples delivered for the second quarter of 2008 had met the 4^ C temperature
specification. As a result of the call, DUSA discovered two instances where samples were received at
the White Mesa Mill's (the Mill's) contract anal54ical laboratory above the 4° C specification, as
detailed below. Initial notice of these instances of non-compliance was given to the Executive
Secretary by telephone on July 3, 2008 (within 24 hours of the discovery).
DUSA believes that the affirmative defense set out in Part l.G.3.c) of the Mill's State of Utah
Groundwater Discharge Permit (the Permit) should be applicable to these non-compliance situations,
for the following reasons:
• the failure was not intentional or caused by DUSA's negligence,
• DUSA has taken adequate measures to meet permit conditions in a timely manner or has
submitted to the Executive Secretary, for the Executive Secretary's approval, an adequate plan
and schedule for meeting permit conditions, as detailed below; and
• the provisions of UCA 19-5-107 have not been violated.
The following information is relevant:
The Mill's QA Manager noted in his follow-up conversafion with the Mill's contract analytical
laboratory on July 2, 2008 that two sets of samples received and accepted by the laboratory for the
second quarter of 2008 were above 4° C (but on ice) at the time of delivery to the lab. These two sets
(April and May accelerated samples from MW-14, MW-26 and MW-32) were received at 5 ° C for
April and 6 ° C for May and were outside of the temperature specification at 4° C, as required by Part
I.E.4(b), Part II.A ofthe Pennit, and Table 1 and Section 9.3(d) ofthe approved DUSA QAP. All
other samples sent to the laboratory in the second quarter of 2008 were within the 4^^ C requirement.
The samples sent to the laboratory were sent in 5-day coolers, as the use of these coolers had shown
demonstrated success subsequent to Denison's February 21, 2008 correspondence with UDEQ, where
the coolers had been proposed for use in sample transport.
DUSA believes that the affirmative defense in Part l.G.3.c) of the Pennit should be applicable to these
sample temperature non-compliance situations. The exceedance of temperature was unintentional and
not caused by DUSA's negligence. Mill personnel were following the procedures reported to UDEQ
on February 21, 2008 and June 3, 2008 to avoid future sample temperature problems and the situation
had improved. With the exception of these two sets of samples, all samples sent to the laboratory in 5-
day coolers since February 21, 2008 have arrived at the laboratory at less than 4° C. The fact that
these two sets of samples did not meet the temperature specification, has prompted DUSA to further
study the matter to determine what further steps are required in order to ensure that the temperature
specification will be satisfied in all cases in the future. DUSA will also move up its sample dates to as
close to the beginning of each sample period as practicable, in order to allow for re-sampling within
the period, should the temperature specification prove to be violated in the future. As an initial step,
Mill personnel have been instructed to continue to use 5-day coolers for all future sample shipments
and are currentiy conducting a test run to lower further the temperature of samples during transport.
The test will include increasing coolant volume and/or decreasing the number of samples per cooler.
The test will not include actual samples. Once the test run is complete (and successful), and actual
samples have been sent to the laboratory, sample receipt temperature will be confirmed by the
laboratory and if the receipt temperature remains unacceptable a re-sample of the affected water
samples will be collected. DUSA is also reviewing transportation times and logistics from the Mill to
the laboratory, to ensure that the time between sample collection and receipt at the laboratory is kept to
a minimum, and is also considering other methods of cooling and transporting samples to the
laboratory that are available or that are being used successfully by other similar facilities. DUSA will
provide a follow up letter to the Executive Secretary after its completion ofthis review.
DUSA appreciates your consideration of this matter and if you should have any questions please
contact me or David Frydenlund.
Yours truly.
'^-^ Steven DT Landau
Manager, Environmental Affairs
cc: Ron F. Hochstein
Harold R. Roberts
David C. Frydenlund
David E. Turk
DENISON
MINES
State of Utah
Department of
Environmental Quality
Richard W. Sprott
Executive Director
DIVISION OF RADIATION
CONTROL
Dane L. Finerfrock
Director
JON M. HUNTSMAN, JR.
Governor
GARY HERBERT
Lieutenant Governor
1'
^/ ii>^^ /?f/i Afirt Sf^L^ d T
BY:
August 1,2008
Mr. David C Frydenlund
Vice President and General Counsel
Denison Mines (USA) Corp. (DUSA)
1050 Seventeenth St. Suite 950
Denver, Colorado, 80265
SUBJECT: July 7, 2008 DUSA Arguments for Affirmative Defense Regarding Temperature
Exceedances, April and May, 2008 Accelerated Groundwater Monitoring Event,
Denison Mines (USA) Corp. (DUSA) White Mesa Uranium Mill near Blanding, Utah:
Notice of Agency Findings
Dear Mr. Frydenlund:
On July 3, 2008 DUSA notified (by phone) the DRC that two sets of samples were received and
accepted by its analytical laboratory at temperatures greater than the maximum allowed temperature
of 4°C for VOCs. These two sets of samples were received at 5°C and 6°C for the April and May,
2008 accelerated monitoring events, respectively. It appears that these temperature exceedances are
violations of Part I.E. 1(a), Part II.A of the Permit, and Table 1 and Section 9.3(d) of the approved
DUSA QAP. DUSA written notification of the temperature exceedances was provided to the DRC by
e-mail on July 7, 2008. In the July 7, 2008 notice DUSA argues that Affirmative Defense set out in
Part I.G.3(c) of the Permit should be applicable to these temperature exceedances for the following
reasons:
1. DUSA submitted verbal notification of the temperature exceedances on July 3, 2008 and
written notification on July 7, 2008 according to UAC-R317-6-6.13
2. The failure was not intentional or caused by Permitee negligence, either in action or in
failure to act,
3. The Permittee has taken adequate measures to meet Permit condifions in a timely matter or
has submitted to the Executive Secretary, for the Executive Secretary's approval, and
adequate plan and schedule for meeting Permit conditions, and
4. Provisions of UAC 19-5-107 have not been violated.
168 North 1950 West • PO Box 144850 • Salt Lake City, UT 84114-4850 • phone [phone] • fax [phone]
T.D.D. [phone] • www.deq.utah.sov
Printed on 100% recycled paper
Notice of Aeencv Findings
It appears_that DUSA has met three of the'l fourlitems (1, 2, and 4) needed to rneet the Affirmative
Peferi'se^requiremenfs under UAC R31Z--6-6.16(c)(3). Although, DUSA.describes!^ detail the
steps they have or will take to fix the sariiple temperature problems, DUSA fai^ DRC
with a schedule or date when it would be back in compliancb^-Without a-sehedure by-wM^^
compliariee will be regained, DUSA fails to meet the terms of Affirmative Defense. Other-pertinent
considerations follow below:
a. The sample temperature problem is a continuing issue in that DUSA has been cited for this
same problem in the 2"^^, 3"^, and 4^^ quarters of 2007 via 3 other Notices of Violation
(NOV) dated January 11, 2008 (Docket No. UGW07-04), February 28, 2008 (Docket No.
UGW08-01), and April 1, 2008 (Docket No. UGW08-02).
b. The January 11, 2008 NOV required DUSA to identify the root cause of the problem and
provide a schedule by which it would be corrected.
c. In response to the January 11, 2008 DRC NOV, in a February 21, 2008 DUSA letter the
company made a cominitment to correct the sample temperature problem for future sampling,
commencing on February 21, 2008, by changing the equipment used (5-day coolers).
d. After review of the 1^* Quarter, 2008 Groundwater Monitoring Report, it appears there were
sample temperature problems in the January and March, 2008 monitoring events. In the July
25, 2008 DRC Findings and Notice of Enforcement Discretion Letter, the Executive Secretary
decided to use enforcement discretion for the January, 2008 samples because they were
collected prior to the DUSA February 21, 2008 commitment.
e. In a June 3, 2008 letter DUSA disclosed that Mill sampling personnel reverted back to the
former equipment and did not use the 5-day coolers for the March, 2008 THF samples
analyzed by American West Analytical Laboratories (AWAL).
f. Groundwater samples collected during the April and May, 2008 accelerated monitoring events
were transported to the laboratory using the 5-day coolers, however, they arrived at the
analytical laboratory at a temperature above 4°C. These sample temperature problems
happened after the DUSA commitment of February 21, 2008.
We recognize the experimental efforts described in your July 7, 2008 submittal involving ratio of ice
to sample volumes. However, it is clear from the above chronology that: 1) DUSA failed to identify
the true root cause in its response to the January 11, 2008 NOV, and 2) the repeat violation from the
March, 2008 sampling event is a product, at least in part, of DUSA's failure to abide by its
commitment to use 5-day coolers.
Although, Part I.E.4(a) of the Permit gives DUSA until the next quarterly ground water monitoring
report and correct any non-conformance with QAP requirements, this is not applicable in the case of
the March, April, May, 2008 samples with temperature exceedances, because it is appears they are a
continuing violation, originally cited on January 11, 2008.
If you have any questions or comments regarding this letter, please contact Phil Goble at (801) 536-
4044.
UTAH WATER QUALITY BOARD
Dane L. Finerffj^ck, Co-Executive Secretary
DLF/PRG:prg
cc: M.M. Hubbell, Utah Attomey General's Office
R/DUSA/I""^ QTR 2008 GW Sampling
File: DRC Findings of April & May Temp Exceedances.doc
vid Frydenlund
Tom: Loren Morton [[e-mail]]
Sent: Tuesday, August 19, 2008 4:32 PM
To: Dane Finerfrock
Cc: David Frydenlund; Steve Landau; Dean Henderson; Phillip Goble
Subject: Denison Mines: Verbal Notice for VOC Temperature Failures in
Dane,
Dave Frydenlund and Steve Landau just called to report that some quarterly THF samples
collected on 6/18/08 were sent to AWAL here in SLC. Upon arrival at AWAL they were found
to be between 1 and 5 C. Of course some of those samples were greater than the 4 C
required by the QAP. Dave and Steve were calling to provide verbal notice of the non-
compliance under the Permit.
Dave also said he has been doing some research and has found that the EPA SW-846 method
for VOCs now only requires the sample to arrive at the lab under 6 C. Dave explained that
DUSA is planning on asking for a QAP change to get those 2 extra degrees. I told DUSA
that they are welcome to ask for a QAP change at anytime, just send in a written request
with a redline / strikeout version of the currently approved QAP.
Dave also said they have made several changes of late to improve their ability to comply
with the sample temperature requirements, these included:
1. Using regular ice, instead of Blue Ice to cool the samples (Blue Ice was used
previously)
2. Do sampling earlier in the quarter - so as to allow more time for re-sampling (if
needed),
3. Do sampling earlier in the week, and use overnight shipping to get the samples to the
lab on a business day - so they don't set on a loading dock, un-refrigerated, over the
weekend.
4. DUSA calls the lab early on - to confirm the sample temperature on arrival at the lab.
Dave reported he will send in a written notice about this problem - as the Permit requires
- within 5 days.
On a different note, DUSA got our 8/1/08 Notice of Agency Findings letter - regarding the
VOC sample temperature problems for the April and May, 2008 samples (in response to the
7/7/08 DUSA written notice and claim of affirmative defense) . <^^^jgga^jgfegg^|djg^Sili^@§®@^J^©
gi^Sv^^^^^^g^W^gt?^
^§m^r^^m^^^^^'ii'iL»gm. Presumably, it would include the 4 points above. Dave recognized
that DUSA's earlier conclusion that the lack of 5-day coolers was the entire root cause,
and that there were other factors that needed to be fixed (hence the 4 points made above).
Dave reported that sample temperature results from July have been better. I told Dave
that we would have to see the written reports to confirm all that, but that I was
encouraged to hear about these recent improvements.
Also, Dave acknowledged receipt of the 8/4/08 DRC NOV regarding the sample temperature
problems for the March, 2008 sampling event. He acknowledged that issuance of NOV meant
it was too late for affirmative defense for those samples. I reiterated the wording in
the NOV, that we are not currently considering a monetary penalty for the March, 2008
sampling event, provided the problem is fixed in a timely manner.
If you have questions about this phone call, please let me know.
Loren
Denison Mines (USA) Corp.
105017th Street, Suite 950
.^.^ -r— w «» «« Denver, CO 80265
DENISOP^^iHiH
Tel: [phone]
Fax : [phone]
www.denisonmines.com
September 4, 2008
VIA PDF AND FEDERAL EXPRESS
Mr. Dane L. Finerfrock
Executive Secretary
Utah Radiation Control Board
State of Utah Department of Environmental Quality
168 North 1950 West
Salt Lake City, UT 84114-4850
Dear Mr. Finerfrock:
Re: July 7 2008 DUSA Arguments for Affirmative Defense Regarding Temperature Exceedances, April
and May, 2008 Accelerated Groundwater Monitoring Event, Denison Mines (USA) Corp. (DUSA) White
Mesa Uranium Mill (the "Mill") near Blanding, Utah: Notice of Agency Findings
Reference is made to your letter dated August 1, 2008, which DUSA received on August 6, 2008, in which you
provided DUSA with notice of agency findings relating to DUSA's July 7, 2007 written notice pursuant to R313-
6-6.13.
In its letter, DUSA asserted that the Affirmative Defense set out in Part I.G.3(c) of the Mill's Groundwater
Discharge Permit should be applicable to two sets of groundwater samples that were received and accepted by
the Mill's contract analytical laboratory at temperatures greater than the maximum allowed temperature of 4°C
for the April and May 2008 accelerated monitoring events. DUSA also advised in that letter that it was
undergoing a number of experimental efforts involving ratio of ice to sample volumes, transportation logistics
and sample collection timing, in order to better define the root cause and to allow DUSA to prevent re-
occurrences of the problem. DUSA stated in the notice letter that it would provide the Executive Secretary with
a follow up letter after completion of this review.
In your August 1, 2008 letter you advised that, in its July 7 submittal, DUSA had met three of the four items
needed to meet the Affirmative Defense requirements under UAC R317-6-6.16(c)(3); however DUSA failed to
satisfy the fourth requirement because it did not provide the Executive Secretary with a schedule or date when
DUSA would be back in compliance. In your letter you also stated that although DUSA failed to meet all the
criteria for the Affirmative Defense in its July 7, 2008 submittal, DUSA can still submit a date whereby
compliance for future samples will be regained, and thereby satisfy the final item needed to meet the Affirmative
Defense.
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Follow Up to July 7, 2008 DUSA Notice
Since the July 7, 2008 notice to the Executive Secretary, DUSA has:
• canvassed another Utah permittee, that is subject to similar groundwater monitoring requirements as
well as the 4°C sample temperature requirement, to determine the methods it uses for the
transportation of samples to its contract analytical laboratory;
• performed a number of experiments relating to the ratio of ice to sample volume, the type of ice to be
used, and the effectiveness and timing of refrigeration at the Mill prior to packing samples into the
coolers; and
• reviewed the logistics of transportation of samples from the Mill to the analytical laboratory and timing
and handling of samples upon receipt by the analytical laboratory, to ensure that samples are taken
and sent to the analytical laboratory on a schedule that minimizes the time between shipment to and
receipt by the analytical laboratory.
Based on this review, DUSA has determined that the root cause of the past failures to satisfy the sample
temperature requirement was not due solely to the failure to use "5-day" coolers, as originally proposed by
DUSA, but due to a combination of the following factors:
• failure to use regular ice, rather than "blue ice" (i.e., blue plastic ice blocks that are re-frozen prior to
each re-use) to cool the samples during transit. The analytical laboratory and the other permittee have
advised DUSA that they have seen better success in meeting the sample temperature requirement
when regular ice rather than blue ice is used. The Mill has used blue ice as the coolant in its sample
coolers for the last several years;
• failure to ensure that there is a proper ratio of ice to sample volume. Mill personnel have conducted a
number of experiments to arrive at an acceptable ratio of ice to sample volume. In the past. Mill
personnel have not been systematic on this point;
• failure to collect samples on a schedule that minimizes sample transit time between the Mill and the
analytical laboratory. In the past, samples have been collected and sent to the analytical laboratory at
various times during the week. In some cases this has resulted in the samples sitting in transit over the
weekend;
• failure to use "5-day" coolers in all circumstances. While it is evident from recent failures to satisfy the
sample temperature requirements that the use of such coolers does not guarantee success, DUSA has
concluded that the better insulated coolers will provide a better chance of success, given that the
factors set out above are also satisfied; and
• failure of DUSA to schedule sampling events and identify sample temperature problems early enough in
the sampling period to allow re-sampling during the period, if necessary.
As a result of this analysis, DUSA has changed its practices, effective August 1, 2008, as follows:
• it will continue to use 5-day coolers. Mill staff have been advised that 5-day coolers are to be used in
all circumstances for water samples;
• it will use regular ice as a coolant;
• it will ensure that there is a proper ratio of ice to sample volume in each cooler;
• it will collect samples early enough in the week, so that they will be received by the analytical laboratory
on a business day and will not sit in transit over the weekend;
• it will collect samples as early in each sampling period as is reasonably practicable, in order to allow for
re-sampling during the period if necessary;
DENISO MINES
• it will contact the analytical laboratory upon scheduled receipt of the samples to ensure that they have
been received by the analytical laboratory within the required temperature range; and
• If samples are not received at the analytical laboratory within the required temperature range, the
samples will be re-taken during the period and new samples will be submitted to the analytical
laboratory for analysis.
The foregoing are revised practices that the Mill intends to follow in order to ensure that the sample temperature
requirements are satisfied. These may be fine-tuned as the Mill gains more experience with them. However,
the key feature is that samples will be taken early enough in each sample period to allow for re-sampling if
necessary.
Date Whereby Compliance for Future Samples will be Regained
Some but not all of the foregoing revised practices were instituted commencing July 1, 2008. No samples for
July, 2008 exceeded the 4°C requirement upon receipt at the analytical laboratory. The remainder of the
foregoing practices were instituted effective August 1, 2008. As a result, DUSA hereby advises that, for the
purposes of the Affirmative Defense under UAC R317-6-6.16(c)(3) and Part l.g.3(c) of the Mill's Groundwater
Discharge Permit that were asserted by DUSA in its July 7, 2008 notice to you, compliance for future samples
will be regained effective as of July 1, 2008.
It should also be noted that the two sets of samples referred to in the July 7 notice (April and May accelerated
samples from MW-14, MW-26 and MW-32) were received at 5°C for April and 6°C for May. We understand that
current NELAC standards and the current version of EPA SW-846 both now require that those samples be
received by the laboratory at 6°C or less, not at 4°C or less. DUSA intends to make a submission to the
Executive Secretary to change the Mill's Groundwater Sampling Quality Assurance Plan to reflect these new
standards.
If you have any questions or require any further information, please contact the undersigned.
Yours very truly.
DENISON MINES (USA) CORP.
David C. Frydenlund
Vice President, Regulatory Affairs and Counsel
cc: Ron F. Hochstein
Harold R. Roberts
Steven D. Landau
David E. Turk
DENISO
MINES
State of Utah
JON M. HUNTSMAN, JR.
Govemor
GARY HERBERT
Lieutenant Govemor
Department of
Environmental Quality
Richard W. Sprott
Executive Director
DIVISION OF RADIATION CONTROL
Dane L. Finerfrock
Director
RECEIVED
OCT 1 7 M08
October 9, 2008
Certified Mail
(Retum Receipt Requested)
Mr. David C. Frydenlund
Vice President and General Counsel
Denison Mines (USA) Corp. (DUSA)
1050 Seventeenth St. Suite 950
Denver, Colorado, 80265
SUBIECT: 2°*^ Quarter, 2008 DUSA Groundwater Monitoring Report: Ground Water Quality
Discharge Permit UGW370004: DRC Findings, Notice of Enforcement Discretion, and
Request For Information.
Dear Mr. Frydenlund:
On September 2, 2008, the Utah Division of Radiation Control (DRC) received the 2°^ Quarter (April -
June) 2008 Groundwater Monitoring Report (2°** Quarter 2008 Report). After review of the 2"** Quarter
2008 Report for the Denison Mines (USA) Corp. (DUSA) White Mesa Uranium Mill near Blanding, Utah,
the following issues were identified:
Additional Monitoring Not Reported as Required
In Tab B of the 2°** Quarter 2008 Report, it shows that DUSA collected a groundwater sample from
monitoring well MW-4 on May 27, 2008 at 15:05. Included in Tab G of the 2°*^ Quarter 2008 Report,
Chain of Custody forms sent to Energy Labs and American West Analytical Labs requested analysis of
samples fi-om well MW-4. No results of these analyses were included in the 2^^ Quarter 2008 Report.
Since MW-4 is a chloroform investigation well, the 2°° Quarter 2008 Chloroform Monitoring Report (2°'^
Quarter Chloroform Report) was also reviewed to see if the results were included in that report. The MW-
4 samples collected on May 27, 2008 were not included in the T"^ Quarter Chloroform Report.
Although MW-4 was not required to be sampled under the Permit, additional monitoring is required to be
submitted under Part ILF of the Permit, as follows:
ADDITIONAL MONITORING BY THE PERMITTEE. Ifthe permittee monitors any pollutant more frequently than
required by this permit, using approved test procedures as specified in this permit, the results ofthis
monitoring shall be included in the calculation and reporting ofthe data submitted. Such increased
frequency shall also be indicated.
168 North 1950 West • Salt Lake City, UT
Mailing Address: P.O. Box 144850 • Salt Lake City, UT 84114-4850
Telephone [phone] • Fax [phone] • T.D.D. [phone]
www.deq.utah.gov
Printed on 100% recycled paper
Mr. Frydenlund
October 9, 2008
Page 2
Notice of Enforcement Discretion
Although it appears that DUSA has inappropriately withheld the results of the groundwater samples in well
MW-4 collected on May 27, 2008, the Executive Secretary has determined to use enforcement discretion in
this matter, based on:
1. DUSA will provide documentation that it canceled the analysis for the MW-4 groundwater sample
collected on May 27, 2008, or
2. DUSA will remit the MW-4 results for the groundwater sample collected on May 27, 2008 within
10 calendar days of receipt of this letter.
Samples Received by Laboratory at Temperature Greater than Approved Temperature
(4°C)
Improper sample preservation was provided during the April, May, and June 2008 groundwater monitoring
events, in that, groundwater samples were received by the analytical laboratory at temperatures greater than
the 4°C for VOCs. As stated in Section 9.3(d) of the QAP, non-conformance is defmed when a sample
temperature is exceeded for a constituent. These temperature exceedances are in violation of Sections
9.3(d) and 10.1(a) of the QAP, and Parts I.E. 1(a) and H.A of the Permit. This is a continuing violation,
previously cited in the January 11, Febmary 28, April 1, and August 4, 2008 DRC NOVs.
On July 3, 2008 DUSA notified the DRC (by phone) that two sets of samples were received and accepted
by its analytical laboratory at temperatures greater than the maximum allowed temperature of 4°C for
.VOCs. These two sets of samples were received at 5°C and 6°C for the April and May, 2008 accelerated
monitoring events, respectively. In a July 7, 2008 Notice Pursuant to R317-6-6.13, DUSA argued that
Affirmative Defense set out in Part I.G.3(c) of the Permit should be applicable to these temperature
exceedances for the following reasons:
1. DUSA submitted verbal notification of the temperature exceedances on July 3, 2008 and
written notification on July 7, 2008 according to UAC-R317-6-6.13
2. The failure was not intentional or caused by Permitee negligence, either in action or in failure
to act,
3. The Permittee has taken adequate measures to meet Permit conditions in a timely matter or has
submitted to the Executive Secretary, for the Executive Secretary's approval, and adequate
plan and schedule for meeting Permit conditions, and
4. Provisions of UAC 19-5-107 have not been violated.
The DRC advised in an August 1, 2008 letter that DUSA had met three of the four items needed to meet
Affumative Defense. Although, DUSA described in great detail the steps they have or will take to fix the
sample temperature problems, DUSA failed to provide the DRC with a schedule or date when it would be
back in compliance. Without a schedule by which compliance will be regained, DUSA failed to meet the
terms of Affirmative Defense. Although, DUSA failed to meet all the criteria for Affirmative Defense in
the July 7, 2008 submittal, the DRC concluded that DUSA still could submit a date whereby compliance
for future samples will be regained.
In a September 4, 2008 submittal, DUSA determined that the root cause of past temperature problems were
not solely due to the failure to use "5-day" coolers, as originally proposed by DUSA, but was due to a
number of factors:
Mr. Frydenlund
October 9, 2008
Page 3
• Failure to use regular ice, rather than "blue ice"
• Failure to ensure that there is a proper ratio of ice to sample volume
• Failure to collect samples on a schedule that minimizes sample transit time from the Mill to the
analytical laboratory
• Failure to use "5-day coolers" in all circumstances
• Failure to schedule sampling events and identify sample temperature problems early enough in the
sampling period to allow re-sanq)ling during the period, if necessary
As a result of this analysis, DUSA claims it has changed its sampling practices, effective August 1, 2008,
as follows:
"5-day" coolers will be used in all circumstances to transport groundwater samples
DUSA will use regular ice as a coolant
Ensure there is a proper ratio of ice to sample volume in each cooler
Collect samples early in the week, so that the samples will be received by the analytical laboratory
on a business day and wiU not sit in transit over the weekend
• Collect samples as early in each sampling period as is reasonably practicable, in order to allow for
re-sampling during the period if necessary.
• Contact the analytical laboratory upon scheduled receipt of the samples to ensure that they have
been received by the lab within the requisite temperature range
• If samples are not received by the analytical laboratory within the required temperature range, the
samples will be re-collected during the same period and the new samples will be submitted to the
analytical laboratory for analysis
Notice of Enforcement Discretion
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As a result, the DRC will not pursue enforcement for the April - June temperature problems at this time,
but will give DUSA the benefit of doubt that it has "solved" the temperature problem. Please ensure that
compliance is achieved and maintained so as to avoid escalated enforcement action in the future.
Thank you for your cooperation in this matter. If you have any questions or comments regarding this
letter, please contact Phil Goble at [phone].
Sincerely,
UTAH WATER QUALIFY BOARD
Dane L. Finerfrpck
Co-Executive Secretary
DLF/PRG:prg