August 2004 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 August 2004. 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 email@example.com. 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: August 13, 2004 - OC&I/Freshwater Wetland File No. C99-0088; OC&I/Water Pollution File No. 04-11; OC&I/ISDS File No. CI04-36; OC&I Solid Waste File No. 04-026; OWM Site Remediation File No. 99-037; and OC&I/Air File No. 04-06 re: Alton Realty Corp and NFA Corp. for property located at the confluence of the Wood and Pawcatuck Rivers, at 299 Church Street, Assessor's Plat 11A, Lots 6 and 42 in the Town of Richmond (the Property). The Property is owned by Alton Realty Corp and includes a textile manufacturing facility (the Manufacturing Facility). NFA Corp currently operates the Manufacturing Facility. The Property includes three wastewater lagoons that were constructed with RIDEM approval to allow process wastewater from the Manufacturing Facility to infiltrate into the underlying soil (the Wastewater Lagoons). OC&I alleges that the Respondents are in violation of multiple environmental statutes and RIDEM Regulations involving Water Pollution, Freshwater Wetlands, Underground Injection Control, Air Pollution, Groundwater Pollution, Individual Sewage Disposal Systems (ISDS), Solid Waste, and Hazardous Material Releases. The violations include the following: construction and use of a fourth wastewater lagoon within 200-Foot Riverbank Wetland without RIDEM approval; the discharge of pollutants (in the form of dye waste) into the Pawcatuck River caused by leaching of process wastewater from the Property; excavation and clearing within Riverbank Wetland associated with a gravel excavation/borrow/fill area used to extract clean sand for use in the Wastewater Lagoons; the release of hazardous substances (including volatile organic compounds) in groundwater on the Property; the failure of the ISDS that accepts wastewater from the Manufacturing Facility that has caused contamination of an adjacent off site residential drinking water well with fecal coliform bacteria; the failure to equip a boiler and oil heater with an opacity monitor with audio alarm that was operational; an odor that was determined to be objectionable beyond the Property line of the Manufacturing Facility; and stockpiling of sand mixed with organic material on the Property, some of which occurred within Riverbank Wetland. The stockpiled material is generated from the periodic removal of the lagoon bottom surface layer of accumulated organic material from the Wastewater Lagoons (the Lagoon Scrapings). RIDEM issued Notices of Intent to Enforce (NOI) to the Respondents on April 13, 1999, June 24, 1999, October 18, 2000, and June 18, 2004. The NOI's required the Respondents to take specific actions to address the Water Pollution, Freshwater Wetlands, Underground Injection Control, Groundwater Pollution, Individual Sewage Disposal Systems (ISDS), Solid Waste, and Hazardous Material Releases violations. The Respondents made efforts to address the violations, however, given the nature and extent of the violations RIDEM determined that a formal enforcement action was needed to ensure that the violations are corrected under an enforceable schedule. In the NOV the Respondents were ordered to take the following actions: cease further alterations of freshwater wetlands; cease further use of the fourth wastewater lagoon; reduce wastewater discharges to the ISDS and have the ISDS inspected and repaired, if necessary; repair/replace the opacity monitors and audio alarms for the boiler and oil heater; take all necessary actions to prevent objectionable odors; submit plans and studies to characterize and properly dispose of the Lagoon Scrapings; submit plans and studies to properly close the fourth wastewater lagoon; restore all freshwater wetlands; and provide an alternate source of drinking water to the residence with the contaminated drinking water well. OC&I assessed a penalty in the amount of $9,500.00.August 16, 2004 - OC&I/ISDS File No. CI 02-108 re: Robert D. Houghton for property located at 28 Yates Avenue, Assessor's Plat 64, Lot 103 in the Town of Coventry (the Property). The Property includes a multi-family (4 unit) rental dwelling and is owned by the Respondent. OC&I alleges that the Respondent is in violation of the Rhode Island Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems (ISDS Regulations). The violations pertain to the discharge of sewage to the surface of the ground from the sewage disposal system for the dwelling, the discharge of laundry waste to the surface of the ground, an improper/poorly maintained cover for the sewage disposal system (ISDS) and renovation of the dwelling from 1 family to 4 family without prior approval by RIDEM to determine whether the ISDS was adequate. On June 4, 2002 and June 21, 2002 DEM received records from Town of Coventry stating that the dwelling had been converted from a one family to a 4 family apartment dwelling. The DEM had no record that a System Suitability Determination (SSD) Application was submitted to DEM to determine whether the ISDS was adequate for additional sewage. On June 26, 2002 the DEM issued a Notice of Intent to Enforce (NOI) to the Respondent. The NOI required the Respondent to replace the ISDS cover, cease the laundry discharge, reduce the discharge of sewage and have the ISDS pumped until permanently repaired, and either remove the additional dwelling units, submit an SSD Application to demonstrate that the ISDS is adequate (including an inspection of the ISDS by a licensed designer to determine the cause of the ISDS failure), or submit an application to replace the ISDS that is designed for a 4 family dwelling. The Respondent failed to comply with the NOI. In the NOV the Respondent was ordered to comply with the required actions in the NOI. OC&I assessed a penalty in the amount of $3,800.00.August 24, 2004 - OC&I/UST File No. 04-18607 re: West Bay Manor, LLC, Senior Lifestyle Horizon Bay Limited Partnership, Paul Buonaiuto, Patricia Langella, Gustin Buonaiuto, and Winnie Buonaiuto for property located at 2783 West Shore Road, Assessor's Plat 348, lot 895 in the City of Warwick. The OC&I alleges that the Respondents are in violation of RIDEM's Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials ("the UST Regulations"). The violations pertain to Respondents' failure to equip its 500-gallon diesel fuel UST with an automatic tank gauging system, failure to conduct tank and line tightness testing for multiple years and to provide testing records to support compliance, failing to install overfill protection for Respondents' UST and to submit written verification of compliance, failing to equip Respondents' UST with a submerged fill tube, failing to label the UST fill port to identify the product in the UST and failing to update ownership records of the UST with the RIDEM. In the NOV, OC&I ordered the Respondents to achieve compliance with the UST Regulations and assessed a penalty in the amount of $16,396.00.August 30, 2004 - OC&I/AIR File No. 04-05 re: Arlon, Inc. for its facility located at 199 Amaral Street in the City of East Providence. The facility is a major stationary source of air pollutants subject to both federal and state air pollution control regulations. The Respondent is in possession of a Title V permit (permit No. RI-10-01 R1, revised 24 July 2003) issued in accordance with APC Regulation No. 29. The OC&I alleges that the Respondent is in violation of RIDEM's Air Pollution Control Regulation No. 29 entitled 'Operating Permits". The violation pertains to Respondent's failure to comply with the terms of its Operating Permit when it failed to submit to RIDEM's Office of Air Resources ("OAR") its Annual Compliance Certification and Semi-Annual Monitoring Reports for 2003. The Respondent previously failed to comply with the terms of its Operating Permit when Respondent failed to submit its Annual Compliance Certification and Semi-Annual Monitoring Reports for 2001. The OAR previously issued a Letter of Noncompliance to the Respondent for its failure to comply with the 2001 reporting requirements. Respondent's failure to submit its 2003 Annual Compliance Certification and Semi-Annual Monitoring Reports represented a repeat violation. In the NOV, the OC&I assessed a penalty of $1,500.00. Formal Enforcement Cases Settled or Resolved: August 10, 2004 - OC&I/UST File No. 03-00473 re: Wickbay Properties, Inc./Brewer's Wickford Cove Marina for property located at 65 Reynolds Street, Assessor's Plat 91, Lot 142 in the Town of North Kingstown. On September 4, 2003, the OC&I issued a NOV to the Respondent alleging that the Respondent violated RIDEM's UST Regulations. The violations pertained to Respondent's failure to perform annual tightness testing of the product piping for its UST Nos. 004 and 005 for the years 1993, 1995, 1997, 1998, 1999 and 2000, failing to test the line leak detectors for UST Nos. 004 and 005 during the years 1993 through 1995 and 1997 through 2000, failure to test the continuous monitoring system ("CMS") for its UST systems and failing to maintain records related to testing. OC&I ordered the Respondent to provide all applicable test records for line tightness testing, annual testing for line leak detectors and annual testing records for the CMS for the years cited in the NOV. A penalty in the amount of $7,945.00 was assessed against the Respondent for the alleged violations. The Respondent did not file an appeal of the NOV with the AAD. Prior to seeking enforcement of the NOV in the Superior Court, the Respondent and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent was able to show that compliance had been met for some alleged violations in the NOV. The OC&I for settlement purposes agreed to a reduced penalty in the amount of $4,870.20. The penalty was paid upon execution of the Consent Agreement.August 10, 2004 - OC&I/UST File No. 04-03020 re: Jiffy Lube International, Inc. for property located at 886 Bald Hill Road, Assessor's Plat 260, Lot 51 in the City of Warwick. On March 18, 2004, the OC&I issued a NOV to the Respondent alleging that the Respondent violated RIDEM's UST Regulations. The violations pertained to operation and maintenance of UST cathodic protection systems, inventory record keeping requirements, line tightness testing, operation and maintenance of UST continuous monitoring systems (CMS), operating a UST with a malfunctioning CMS, monthly and annual testing of the CMS and maintenance of test records. RIDEM received a Closure Assessment for the UST at the property. In the NOV, the OC&I ordered the Respondent to comply with the UST Closure Assessment and if necessary, complete a Site Investigation Report and a Corrective Action Plan in the event that a release is discovered. OC&I also ordered the Respondent to provide all missing test records and inventory control records. A penalty in the amount of $11,966.00 was assessed in the NOV. The Respondent filed an appeal of the NOV with the AAD. Prior to hearing, the OC&I and the Respondent executed a Consent Agreement to resolve the enforcement action. The subject UST was removed and permanently closed by the Respondent on or about November 4, 2003. A penalty in the amount of $9,000.00 was agreed upon in the Consent Agreement and was paid in full upon execution of the Agreement.August 24, 2004 - OC&I/UST File No. 03-03584 re: CGP, LLC, Midland Exchange, LLC, Robert S. Potter, Individually and in his capacity as President of Pro Oil, Inc. and Carole G. Potter d/b/a West Shore Mobil for property located at 2211 West Shore Road, Assessor's Plat 350, lot 241 in the City of Warwick. On February 13, 2004, the OC&I issued a NOV to the Respondents alleging that Respondents violated RIDEM's UST Regulations. The violations pertained to failing to conduct annual testing requirements for UST leak detection equipment and maintenance of test records, failing to conduct monthly and annual testing of the continuous monitoring system and failing to maintain test records of same. The OC&I ordered the Respondents to provide RIDEM with all applicable test records and assessed a penalty in the amount of $10,030.00. The Respondents filed an appeal of the NOV with the AAD. Prior to hearing, the OC&I and the Respondents executed a Consent Agreement to resolve the enforcement action. The Respondents were able to show that they were in compliance with some of the requirements of the UST Regulations regarding the violations cited in the NOV and documented that they were currently in compliance with the UST Regulations. A penalty in the amount of $6,500.00 was agreed upon in the Consent Agreement. The penalty was paid in full upon execution of the Consent Agreement.August 26, 2004 - OC&I/Septic System File No. CI 01-40 re: Iliasi and Vasilicki Zarokostas for property located at 615 Putnam Pike, Assessor's Plat 17, Lot 9 in the Town of Glocester (the Property). The Property includes the Gentleman Farmers Restaurant. On October 28, 2003 OC&I issued a NOV to the Respondents alleging that the Respondents violated the ISDS Regulations. The violation pertained to the discharge of sewage to the ground from the ISDS for the restaurant. In the NOV OC&I ordered the Respondents to immediately cease the discharge of sewage to the surface of the ground and to repair the failed septic system. OC&I assessed a penalty of $2,000.00. The Respondents filed an appeal of the NOV with the AAD. Prior to hearing, the Respondents and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondents agreed to pump the septic system at the Property as needed to prevent the overflow of sewage and repair the failed ISDS. A penalty in the amount of $1,000.00 was agreed to in the Consent Agreement and was paid upon execution of the Agreement.August 25, 2004 - OC&I/Water Pollution File No. 03-04 re: The Town of Middletown regarding its Middletown Public Works Garage located at the intersection of Berkley Avenue and Wyatt Road in the Town of Middletown. On September 2, 2003 OC&I issued an NOV to the Town alleging that the Town violated the Water Pollution Act and the Water Quality and Groundwater Regulations. The violations pertained to the discharge of salt from the Town Garage into the groundwater by seepage and onto Berkley Avenue and into the Maidford River by surface runoff. In the NOV the Respondent was ordered to take immediate temporary action to prevent further discharge of pollutants to the groundwater and surface waters, construct the salt storage facility, and submit a plan to evaluate the full extent of groundwater contamination to the surrounding areas. The OC&I assessed a penalty in the amount of $95,000.00. The Town filed an appeal of the NOV with the AAD. Prior to hearing, the Town and the OC&I executed a Consent Agreement to resolve the enforcement action. The Town agreed to construct stormwater controls at the Property (including a salt storage barn, detention basin, and wash rack for the garage), and agreed to provide public water to properties located on Ward Avenue, Ellen Road, and Columbia Road if drinking water well results reveal chloride levels greater than 50% of the EPA standard. The parties agreed to a reduced penalty in the amount of $47,500.00 in the form of a Supplemental Environmental Project and the payment of a cash penalty of $10,000.00 to RIDEM. The Supplemental Environmental Project involves the completion of a water quality study to determine the cause of the impairment of the Maidford River and recommend the most cost effective manner of reducing or eliminating the pollution. The parties agreed that if a viable study cannot be conducted for an approximate cost of $37,500.00 to $40,000.00 the Town could submit an alternate SEP proposal to RIDEM. The Respondent has paid the penalty of $10,000.00.August 26, 2004 - OC&I/Freshwater Wetlands File No. C03-0078 and Water Pollution File No. WP 04-03 re: the Rhode Island Resource Recovery Corporation (RIRRC) and J. H. Lynch & Sons Inc. (Lynch) for property located at 65 Shun Pike, Assessor's Plat 43, Lot 402 in the Town of Johnston. Respondent RIRRC operates a solid waste management facility at the Property (the Facility). A Permit to Alter Freshwater Wetlands was issued by RIDEM on January 24, 2003 to Respondent RIRRC. The Permit authorized the alteration of freshwater wetlands associated with the relocation of Cedar Swamp Brook and the Phase V Expansion of the Facility. Respondent RIRRC retained Respondent Lynch to complete the work associated with the Permit. On February 12, 2004 OC&I issued an NOV alleging that the Respondents violated the Water Pollution Act, the Water Quality Regulations, the Freshwater Wetlands Act, and the Freshwater Wetlands Regulations. The violations pertained to the discharge of pollutants (in the form of inorganic sediment, silt, sand, and other soil material) to the waters of the State and the filling of a Pond (Simmons Reservoir) associated with the work Respondent Lynch was completing as authorized by the Permit. The violations also pertained to the failure to comply with the conditions of the Permit requiring installation and maintenance of adequate erosion/sedimentation controls to prevent the discharge of sediment to freshwater wetlands. In the NOV OC&I assessed a penalty in the amount of $25,000.00. The Respondents filed an appeal of the NOV with the AAD. Prior to hearing, the Respondents and the OC&I executed a Consent Agreement to resolve the enforcement action. Respondent Lynch was dismissed from the NOV with prejudice by agreement of the parties. Respondent RIRRC agreed to pay a reduced penalty in the amount of $20,000.00. Respondent RIRRC has paid the penalty of $20,000.00. Superior Court Actions Issued: None issued this month. Superior Court Actions Settled or Resolved: None settled or resolved this month.