April 2008 Enforcement Action Summary Formal Enforcement Actions IssuedFormal Enforcement Actions Settled or ResolvedSuperior Court Actions IssuedSuperior Court Actions Settled or Resolved This report includes formal enforcement actions issued or resolved by the Office of Compliance & Inspection for the month of April 2008. This report is intended to inform the public of certain compliance/enforcement activities performed in the preceding month to protect the public's health, safety, welfare and the environment. Formal Enforcement actions are taken to achieve compliance with law/regulations; remediate environmental damage; restore natural resources to appropriate conditions; impose penalties that capture the gravity of the situation and any economic benefit gained by the alleged violator; and deter similar actions in the future. Formal enforcement is generally in the form of a Notice of Violation ("NOV") that alleges certain facts and violations, contains orders to resolve the alleged violations, contains an assessed penalty with supporting documentation regarding what factors RIDEM used to determine the penalty, and, by law, allows a respondent the ability to appeal or contest the NOV to the Department's Administrative Adjudication Division ("AAD"). Since most NOVs are contested cases, RIDEM does not generally discuss the case with the public while the matter is awaiting hearing or pending negotiated settlement. NOVs are subject to release under the Access to Public Records law in Rhode Island. A copy of an individual NOV may be obtained through RIDEM's Office of Customer and Technical Assistance. The OC&I often resolves formal enforcement actions through negotiated settlement agreements prior to hearing before the AAD. Media inquiries should be addressed to Gail Mastrati at 401-222-4700 ext. 2402. Requests for file reviews should be emailed to firstname.lastname@example.org. More information is available at www.dem.ri.gov/programs/customertech/file-review.php. Please note that formal case names appearing in blue text are linked to a PDF version of the unsigned document. Formal Enforcement Actions Issued: April 11, 2008 - OC&I/Water Pollution File No. 07 - 155 re: the City of East Providence. The Respondent is the owner of the East Providence Water Pollution Control Facility (the "Facility") located at 1 Crest Avenue, in East Providence. The Respondent is the holder of a Rhode Island Pollutant Discharge Elimination System ("RIPDES") Permit No. RI0100048. The Permit authorizes the Respondent to discharge treated wastewater from the Facility to the Providence River. The OC&I alleges that the Respondent is in violation of the Water Pollution Act, the RIDEM Water Quality Regulations, the RIDEM Regulations for the Rhode Island Pollutant Discharge Elimination System and the RIDEM Rules and Regulations Pertaining to the Operation and Maintenance of Wastewater Treatment Facilities. The violation pertains to the unauthorized discharge of approximately 1.15 million gallons of unchlorinated wastewater from the Facility to the Providence River on December 4, 2005, the failure to report the violation to RIDEM in compliance with the Permit requirements, the failure to follow an approved operation manual, and the failure to maintain records. On December 8, 2005, a Facility operator verbally notified RIDEM that the analytical result from a fecal coliform bacteria sample collected on December 4, 2005 of the final effluent wastewater that was discharged to the Providence River was > 1600 MPN per 100 ml. The daily maximum Permit limit for fecal coliform bacteria is 400 MPN per 100 ml. The Facility operator stated the unauthorized discharge was caused by an equipment failure. The Permit requires the Respondent to immediately notify RIDEM of an equipment failure and a violation of a daily maximum Permit limit. On December 9, 2005 and February 6, 2007 Respondent submitted reports to RIDEM regarding the unauthorized discharge. On February 28, 2007 and March 5, 2007 RIDEM met with the Facility's staff to discuss the unauthorized discharge. From these reports and discussions, RIDEM determined that on December 4, 2005 a power outage affected equipment throughout the Facility. Facility staff failed to restart the chlorination equipment as a first priority as required by the operation manual and failed to maintain chart recordings and/or maintenance records for the chlorine residual analyzer. Following the unauthorized discharge, the Respondent implemented a standard operating procedure that allows the Facility operator to provide chlorine feed directly from the chlorine feed pumps in case of an equipment failure. In the NOV, OC&I ordered the Respondent to submit the standard operating procedure and a report on the chlorine residual analyzer. OC&I assessed an administrative penalty of $27,500.00.April 30, 2008 - OC&I/Freshwater Wetlands File No. C06 - 0045 re: Stephen N. Tolias, Martin Petry and John P. Wrenn, for property located approximately 1,200 feet north of Putnam Pike and approximately 1,600 feet northeast of its intersection with Highland Lake Terrace at and in the vicinity of New Pond Dam (State ID Number 397) ("New Pond Dam"), Assessor's Plat 13, Lot 21 in the Town of Glocester (the "Subject Property"). The Subject Property is owned by Stephen N. Tolias and Janice Strode. The freshwater wetlands affected by the activities alleged in the NOV are located on the Subject Property and Assessor's Plat 10C, Lot 17 (owned by the Chepachet Cemetery Association); Plat PA, Lot 8 (owned by Donald F. Lapierre); Plat 13, Lot 131 (owned by Bradley L. Steere and maintained by Dorothy B. Steere (Trustee)); and Plat 13, Lot 12-E (owned by Steven F. Winsor), all located in the Town of Glocester (the "Affected Properties"). OC&I alleges that the Respondents are in violation of the Freshwater Wetlands Act, the RIDEM Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act, the Water Pollution Act, the RIDEM Water Quality Regulations, and R.I. General Laws 46-19-3 pertaining to dam safety. The violation pertains to unauthorized alterations of freshwater wetlands caused by a breach in New Pond Dam that was the result of unauthorized work to repair the dam, the discharge of pollutants (in the form of soil) to the waters of the State, and the repair of a dam without prior approval by RIDEM of the plans for such repair. The violation resulted in the unauthorized alteration of approximately 1.6 acres of Swamp, 12.0 acres of Pond, and 6,800 square feet of River. On April 3, 2006, OC&I received a complaint from the Glocester Public Works Director that New Pond Dam had failed. OC&I performed an inspection the same day and confirmed a breach in the dam approximately 23 feet long, about 10 feet in depth and approximately 30 feet in width, an empty pond and extensive deposits of sand, gravel and soil deposited in downstream wetlands. A follow up inspection by OC&I on April 5, 2006 in the dam breach location revealed evidence of material used to carry out dam repair and backfilling operations including plywood, broken wooden planks partially buried in the breach area, sand bags, deposited sand and gravel material. On August 10, 2006 a Notice of Intent to Enforce ("NOIE") was issued to the Respondents requiring a detailed restoration plan to remove all fill and to remediate all damage in downstream wetlands. On December 4, 2006 OC&I met with Mr. Petry and Mr. Wrenn. Mr. Petry stated that he completed the repair to New Pond Dam. Mr. Wrenn provided money to repair the dam along with access to the dam through his property. Mr. Petry stated that Mr. Tolias was aware that the repair work was ongoing. On January 30, 2007, OC&I received an affidavit signed by Mr. Tolias. In the affidavit Mr. Tolias stated he did not give permission to Mr. Wrenn or to Mr. Petry to enter on his land to make repairs to New Pond Dam. On July 17, 2007 OC&I received an affidavit signed by Mr. Wrenn. In the affidavit Mr. Wrenn stated that at no time did he engage in any physical alteration to New Pond Dam. In the NOV, OC&I ordered the Respondents to restore the wetlands and assessed an administrative penalty of $33,000.00. Formal Enforcement Cases Settled or Resolved: April 03, 2008 - OC&I/UST File No. 06 - 03250 re: Citizens Financial Group, Inc., CFG Associates, L.P., First States Investors 240, LLC, Capital Properties, Inc. and MPM Property Management, LLC for property located at One Citizens Plaza, Assessor's Plat 19, Lot 103 in the City of Providence. A 550-gallon diesel fuel UST was located on the property. On October 25, 2006 the OC&I issued a NOV to Respondents alleging that the Respondents violated RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials ("the UST Regulations"). The violations pertained to Respondents' failure to submit an Environmental Results Program Compliance Certification Checklist within the deadline prescribed by the UST Regulations, failure to complete the checklist as required, failure to submit a Return to Compliance Plan even though issues of noncompliance were identified in Respondents' checklist, failure to certify the submission by the UST owners and failure to complete the property owner information section of the checklist. On 27 September 2005, an inspection by the RIDEM determined that Respondents failed to inspect and test the sacrificial anode cathodic protection system for the product piping to the UST, failed to equip the UST with an approved automatic tank gauging system, failed to perform tightness testing of the UST and the underground product piping line in 1995, 1998, 2001, 2003 and 2004, failed to keep the spill containment basin free of liquids, failed to confirm the presence of overfill protection, failed to equip the UST with a submerged fill tube, and failed to label the fill port to identify the product stored inside the UST. In the NOV OC&I ordered the Respondents to achieve compliance with the UST Regulations and assessed a penalty in the amount of $23,561.00. The Respondents submitted a check for the $23,561.00 penalty assessed in the NOV and filed an appeal with the AAD to contest the NOV. Prior to hearing, the Respondents and the OC&I executed a Consent Agreement to resolve the enforcement action. Prior to execution of the Consent Agreement the Respondents removed the UST from the property. The removal of the UST resolved the order portion of the NOV. For settlement purposes, the OC&I agreed to reduce the penalty to $18,811.00. Since Respondents had already submitted a check for $23,561.00, the OC&I agreed to reimburse the Respondents in the amount of $4,750.00.April 16, 2008 - OC&I/Water Pollution File No. 07 - 01 re: City of Cranston, Veolia Water North America Operating Services, LLC, Chapel Associates, LLC and Carpionato Properties, Inc. The City of Cranston (Cranston) is the owner of the Cranston Water Pollution Control Facility (the "Facility"). The Facility receives wastewater through a sanitary sewer collection system (the "Collection System") that includes an 18 inch gravity sewer ("18 inch gravity sewer") located near Sockanosset Crossroad in Cranston. Cranston is the holder of Rhode Island Pollutant Discharge Elimination System (RIPDES) Permit No. RI0100013. The permit authorizes Cranston to discharge treated sanitary wastewater from the Facility to the Pawtuxet River. The RIPDES permit does not authorize any other discharges from the Facility or the Collection System. Veolia Water North America Operating Services, LLC (Veolia) operates the Facility and Collection System on behalf of Cranston. Chapel Associates, LLC (Chapel) owns property through which the 18 inch gravity sewer passes. Carpionato Properties, Inc. (Carpionato) is constructing a residential/commercial development on the property owned by Chapel. On January 18, 2007 OC&I issued a NOV to the Respondents alleging that the Respondents violated the RIPDES Permit, the Water Pollution Act, the RIDEM Water Quality Regulations, and the RIDEM RIPDES Regulations. The violation pertained to the unauthorized discharge of sanitary sewage from the 18 inch gravity sewer into the Pocasset River in February 2005 and October 2005 due to a blockage caused by rock debris in February 2005 and collapse of the 18 inch gravity sewer in October 2005. In the NOV Cranston was ordered to assess the structural integrity of the 18 inch gravity sewer. OC&I assessed an administrative penalty of $25,000.00 to Chapel and Carpionato and $25,000.00 to Cranston and Veolia. The Respondents filed an appeal of the NOV with AAD. Prior to hearing, OC&I, Cranston, and Veolia executed a Consent Agreement to resolve the enforcement action issued against Cranston and Veolia. Cranston and Veolia provided documents to DEM to demonstrate that the 18 inch gravity sewer was repaired and was structurally sound. Cranston agreed to pay a reduced penalty of $8,500.00 and stipulated that Veolia was not obligated to repair the 18 inch gravity sewer (prior to its collapse) and, accordingly, should be dismissed as a Respondent in the NOV. Cranston paid their penalty upon execution of their Consent Agreement. The NOV against Chapel and Carpionato is still pending at AAD and has not been dismissed.April 22, 2008 - OC&I/Freshwater Wetlands File No. C04-0163 re: William and Denise Machala for property located approximately 200 feet west of Bayberry Road, opposite utility Pole 11, and approximately 700 feet southwest of the intersection of Bayberry and Log Road, adjacent to house number 28, Assessor's Plat 50, Lot 24, in the Town of Smithfield. On November 17, 2004 OC&I issued an NOV to the Respondents alleging that the Respondents violated the Freshwater Wetlands Act and the RIDEM Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to filling, clearing, and constructing a garage within a Riverbank Wetland associated with Latham Brook and excavating, grading and clearing, and soil disturbance within an Area Subject to Storm Flowage (ASSF). In the NOV OC&I ordered restoration of the freshwater wetlands. OC&I assessed a penalty in the amount of $1,400.00. The Respondents filed an appeal of the NOV with AAD. At the hearing, the Respondents and OC&I presented a settlement agreement to the AAD hearing officer to resolve the enforcement action. The Respondents agreed to restore a portion of the altered Riverbank Wetland, provide a conservation restriction over the remaining unaltered Riverbank Wetland, and apply to the RIDEM Office of Water Resources Freshwater Wetland Permitting (FWWP) for a permit for culvert pipes that were constructed within the ASSF. The Respondents also agreed to pay within 30 days the full administrative penalty of $1,400.00 and an application review fee of $1,172.00, which represents that fee the Respondents would have paid for the portion of the garage that was allowed to remain in the Riverbank Wetland had the Respondents properly submitted an application to the FWWP for the alteration. The hearing officer accepted the settlement agreement, which was signed by the Director as a Final Agency Order.April 24, 2008 - OC&I/UST File No. 05 - 00848 re: Rosemere Realty, Inc. for property located at 1995 Post Road, Assessor's Plat 323, Lot 426, in the City of Warwick. The Respondent is the owner and operator of two 10,000-gallon gasoline USTs at the property. On April 8, 2005 the OC&I issued an NOV to Respondent alleging that the Respondent violated RIDEM's UST Regulations. The violations pertained to the Respondent's failure to perform tank tightness testing for the two USTs for the year 2000, failure to inspect the impressed current cathodic protection system for the two USTs at least once every 60 days from June 2003 through June 2004, failure to maintain the CMS in a condition to properly test for leaks on a monthly basis, failure to compile inventory control records from June 2003 through June 2004, failure to perform annual testing of the line leak detectors, failure to perform monthly testing of the CMS from June 2000 through June 2004, failure to perform annual certification/testing of the CMS during the years 2000 and 2002, failure to maintain the spill containment basin in an undamaged condition and free of liquids, failure to maintain the automatic shut-off valve overfill protection device in working condition, and failure to properly equip the groundwater monitoring well with a locking gripper cap. The Respondent had previously executed a Consent Judgment to resolve a 1999 NOV at the facility. Prior to the issuance of this NOV, the OC&I issued a LNC to the Respondent advising it of the noncompliance and required compliance within a specified time period. The Respondent failed to resolve the violations identified in the LNC as required. In the NOV, the OC&I ordered the Respondent to achieve compliance with the NOV and assessed a penalty in the amount of $14,222.00. The Respondent filed an appeal of the NOV with the AAD. Prior to a hearing, the Respondent resolved all issues of noncompliance with the UST Regulations. The OC&I and the Respondent agreed to resolve the enforcement action through a Consent Agreement. The Respondent agreed to pay a penalty in the amount of $8,366.00 plus an additional $200.00 in cost recovery for stenographic services at AAD. The OC&I allowed the Respondent to pay an amount of $1,000.00 upon execution of the Consent Agreement and the remaining penalty of $7,366.00 to be paid in six equal installments, with the entire penalty to be paid on or before November 15, 2010. To date the Respondent has paid the initial $1,000.00 penalty amount and the $200.00 cost recovery amount.April 30, 2008 - OC&I/Water Pollution File No. WP 07-63 re: Ocean State Mooring and Marine, Ltd. The Respondent is the owner of a tug boat that was moored at Wickford Marina in the Town of North Kingstown. On September 10, 2007, OC&I issued a NOV to the Respondent alleging certain violations of the Rhode Island General Laws and the RIDEM Water Quality Regulations. The violation pertained to the discharge of oil from the tug boat to Wickford Harbor. In the NOV, OC&I assessed an administrative penalty of $2,500.00. The Respondent filed an appeal of the NOV with AAD. Prior to hearing, OC&I and the Respondent executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to pay a penalty in the amount of $1,000.00 in four monthly installments of $250.00. The Respondent paid the first installment upon execution of the Consent Agreement. Superior Court Actions Issued: None issued this month. Superior Court Actions Settled or Resolved: None settled or resolved this month.