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HomeMy WebLinkAboutDRC-2011-007567 - 0901a0688028b4c6DENISO MINES Denison Mines (USA) Corp. 1050 17th Street, Suite 950 Denver, CO 80265 USA Tel: 303 828-7798 Fax:303 389-4125 vvww.deni8onmines.com 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 195North 1950 West P.O. Box 144810 Salt LakeCity, 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 Pennit ("GWDP") is not apphcable 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.e) 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 malfiinctions, 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 Finerfi-ock and Loren Morton some years ago and understood that DRC had interpreted Part I.G.3.e) ofthe 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 fi'om our discussions at that tune 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 groimdwater 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 imder the GWDP, and referred you to Part ID.B.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 GWDPj because a number of features of the facility, such as the historic cell liner arid 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) ofthe 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 interpretation 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 situation (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 comphance. 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 subniittal, DUSA can still submit a date whereby compliance for future samples will be regained." DENISO MINES Attachment 3 - Ausust 19. 2008 - E-mail correspondence firom 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 appUcation of the defense. Based on the foregoing, we ask that DRC reconsider its current interpretation of the applicability of Part I.G.3.C) ofthe GWDP, and that DRC confinn that its interpretation 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 Mr;sjES(}j?SA) CORP. By: Davf Vice President, Regulatory Affairs and Counsel cc: Ron F. Hochstein Harold R. Roberts Jo Ann S. Tischler David E. Turk Katherine Weinel DENISO MINES DENISO MINES Denison Mines (USA) Corp. 105017th Street, Suite 950 Denver, CO 80289 USA Tel: 303 628-7798 . Fax:303 389-4125 www.danlsonmtnes.com July 7, 2008 VIA PDF AND FEDERAL EXPRESS Dane L. Finerfrock, Executive Secretary Utah Radiation Control Board Utah Department of Environmental Quality 168North 1950 West P.O. Box 144810 Salt Lake City, UT 84114-4810 Dear Mr. Firierfrock: 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 detemiine whether the temperature of samples delivered for the second quarter of 2008 had met the 4*^ C temperature specification. As a result ofthe call, DUSA discovered two instances where samples were received at the White Mesa Mill's (the Mill's) contract analytical 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 I.G.3.C) of the Mill's State of Utah Groundwater Discharge Permit (the Permit) should be applicable to these non-compliatice 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 conversation 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 ° Q 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 of the Pennit, and Table I and Section 9.3(d) of the 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 I.G.3.c) of the Permit should be applicable to these sample temperature non-compliance si tuations. 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 fiiture 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 currently conducting a test run to lower further the temperature of samples during transport. The test will include increasing coolant volimie and/or decreasing the number of samples per cooler. TTie test will not include actual samples. Ohce the test run is complete (and successful), and actual samples have been sent to the laboratory, sample receipt tempprafure 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 successfiiUy by other similar facilities. DUSA will provide a follow up letter to the Executive Secretary after its completion of this review. DUSA appreciates your consideration of this matter and if you should have any questions please contact me or David Frydenlund. Yours truly, 'i^- Steven DfTLarioau Manager, Environmental Affairs cc: Ron F. Hochstein Harold R. Roberts David C. Frydenlund David E. Turk DENISO 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. Govemor GARY HERBERT Lieutenant Governor BY:.....-..-^.— i^cr ^f/f Jrjirt S£)u /) r 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 arid 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. 2. 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 The failure was not intentional or caused by Permitee negligence, either in action or in failure to act. The Permittee has taken adequate measures to meet Permit conditions in a timely matter or has submitted to the Executive Secretary, forthe Executive Secretary's approval, and adequate plan and schedule for meeting Permit conditions, and Provisions of UAC 19-5-107 have not been violated. 168 North 1950 West • PO Box 144850 • Salt Lake City, UT 84114-4850 • phone (801) 536-4250 • fax (801) 533-4097 T.D.D-(801) 536-4414 • mvw.t/cg.uM/i i'ov Printed on 100% recycled Diiper Notice of Agency Findings Jtjappearsihatia©S*^h^Mit^hi^^ l)efieris(g^reqi^^ steps.they=?h^e[ioisWillg^ adWfith^ais'Sl^uleSC)^^ ^ CtSn^liarice^williie'repine^ considerations follow below: a. The sample temperature problem is a continuing issue in that DUSA has been cited for this same problem in the 1^', 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. InresponsetotheJanuary ll,2008DRCNOV,inaFebruary21,2008DUSAletterthe company made a commitment 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 Febmary 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 abbve 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 monitoririg 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. ^ltHi5lafh«WSA«faile4t^ffie^^ DUSA*stiMaean|S,y^^t^^^^ If you have ahy questions or coirimients regardirig this letter, please contact Phil Goble at (801) 536r 4044. UTAH WATER QUAUTY BOARD Dane L. Finerfj^k, Go-Executive Secretary DLF/PRG:prg cc: M.M. Hubbell, Utah Attorney General's Oftlce F:/DUSA/2"' pTR 2008 GW Samplmg File: ORG Hndings of April & May Temp Excecdancc.s,doc ,tfld Frydenlund 'Tom: Loren Morton [LMORTON@utah.gov] 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 justf called to report that some quart.erly THF samples collected on 6/18/08 were sent to AWAL here in SLG. Upon arrival at AWAL they were found to be between 1 and 5 C. Of course some of those samples were greater thari the 4 C required by the QAPi 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 recjuest 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 com;ply with the sample temperature requirements, these included: 1. Using regular ice, instead of Blue Ice to coolv 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, uh-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 t:he 7/7/08 DUSA written notice and claim of affirmative defense). gB^a^^^e^j^s^a-idg^ «HlBOddi'dn^''€^tRelt^^^^ opjE!riSii§iDr"iSfehem:i;it ,He^,s^idg-^ prdvirae^«a''"ii^^ t'efnp^ifa't^re^^^^^ 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 bther factors that heeded 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,' 2Cj08 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 - DENISO MINES Denison Mines (USA) Corp. 1050 17th Street. Suite 950 Denver, CO 80265 USA Tel : 303 628-7798 Fax: 303 389-4125 www,deni8onmines.com September 4, 2008 j . , • i ' • • •, • ' VIA PDF AND FEDERAL EXPRESS I Mr. Dane L. Finerfrock i Executive Secretary j| Utah Radiation Control Board ! State of Utah Department of Environmentai Quality 168 North 1950 West \ ^ SaltLakeCity, UT84114-4850 j 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 '•' • • • • . j Reference is made to your letter dated August 1, 2008, which DUSA received on August 6, 2008, in which you I provided DUSA with notice of agency findings relating to DUSA's July 7, 2007 written notice pursuant to R313- j 6-8.13, 1 • j In its letter, DUSA asserted that the Affirmative Defense set out in Part I.G.3(c) of the Mill's Groundwater I Discharge Permit should be applicable to two sets of groundwater samples that were received and accepted by i 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 I undergoing a number of experimental efforts involving ratio of ice to sample volumes, transportation logistics I and sample collection timing, in order to better define the root cause'and to allow DUSA to prevent re- l occurrences of the problem. DUSA stated in the notice letter that it would provide the Executive Secretary wjth ii a follow up letter after completion of this review. i • " • ' ~ . I 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 ordate 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 Affimriative Defense. tBIeaseiac^ept^this^letter^s^theifol^ of a^datewherebyi-compliance forJ_u^^ ^f ense'^reqUirements urider ^ Permit: ' Follow Up to July 7,2008 DUSA Notice Since the July 7, 2008 notice to the Executive Secretary, DUSA has: • canvassed another Utah pennittee, 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 Mijl to the analytical liaboratory 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 "S-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 pennittee 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 forthe last several years; • failure to ensure that there is a proper ratio of iCe to sample volume. Milt 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 overthe weekend; • failure to use "5-day" coolers in all circumstances. While it is evident from recent failures to satisfy the sample ternperature requirements that the use of such coolers does not guarantee success, DUSA has concluded that the better insulated coolers vyill provide a better chance of success, given that the factors set out above are also satisfied; and x» 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; i • 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 vyith them. However, the key feature is that samples will be taken eariy 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^''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, forthe purposes of the Affirmative Defense under UAC R317-6-6.16(c)(3) and Part1.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. HilNtSMAN, JR. Govemor GARY HERBERT Lieutenant Govemor Department of Enviromnental Quality Richard W. Sprott Executive Director DIVISION OF RADIATION CONTROL Dane L. Finerfrock Director OCT 1 7 2008 October 9,2008 Certified Mail (Return Receipt Requested) Mr. David C. Frydenlund • / ' Vice President and General Counsel Denison Mines (USA) Corp. (DUSA) 1050 Seventeenth St. Suite 950 , Denver, Colorado, 80265 SUBJECT: Quarter, 2008 DUSA Groundwater Monitoring Report: Ground Water Quality Discharge Pennit UGW370004: DRC Findiiags, Notice of Enforcement Discretion, and Request For Information. Dear Mr. Ftydenlund: On September 2,2008, the Utah Division of Radiation Control (DRC) received the 2 - Quarter (April June) 2008 Groundwater Monitoring Report (2°*^ Quarter 2()08 Report). After review of the 2^^ Quarter 2008 Report for the Denispn Mines (USA) Corp. (DUSA) White Mesa Uranium Mill near Blandmg, Utah, the following issues were identified: Additional Monitoring Not Reported as Required '. In Tab B ofthe 2°^ Quarter 2008 Report, it shows that DUSA collected a groundwater san^le from monitoring well MW-4 on May 27, 2008 at 15:05. Included in Tab G ofthe 2"^ Quarter 2008 Report, Chain of Custody forms sent to Energy Labs and American West Analytical Labs requested analysis of samples from 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 2""* Quarter Chloroform Report. Although MW-4 was not required to be sampled under the Permit, additional monitoring is required to be submitted under Part n.F of the Pennit, 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 of this monitoring shall be included in the calculation andrepqrting ofthe data submitted. Such increased frequency shall also be indicated. 168 North 1950 West • Salt Lake Ci^, UT Mailing Address: P.O. Box 144850- Salt Lake Gi^, UT 84114-4850 Telephone (801)536-4250 - Fax (801-533-4097 • T.D.D. (801) 536-4414 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) hnproper 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 defined 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, arid Parts I.E.l(a) and H.A ofthe Pennit. This is a continuing violation, previously cited in the January 11, Febraary 28, April I. 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 Pennit 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 pr 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 pf 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-sampling 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 will 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 sanqiles will be submitted tp the analytical laboratory for analysis >Iihfej?ExegHti^>e:?Secre^ and^JMe^SOOS^samplesf^^ collectetd prior to the DUSA c wiir be receivea Dy tne analytical laooraiory at or beiow sample temperature requirements. ""^ As a resuh, the DRC will not pursue enforcement for the April - June temperature problems at this time, but will give DUSA the benefitof doubt that it has "solved" the temperature"prbblem. Please"ensure that compliance is achieved and maintained so as to avoid escalated emorcement action infEe future. Thank you for your cooperation in this matter. If you have any questions or cpnmients regarding this letter, please contact Phil Goble at (801) 536-4044. Sincerely, UTAH WATER QUALITY BOARD Dane L. Finer Co-Executive iSecittaiy PLF/PRG:prg