August 2009 Enforcement Action Summary

Formal Enforcement Actions Issued

Formal Enforcement Actions Settled or Resolved

Superior Court Actions Issued

Superior 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 2009. 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 dem.filereview@dem.ri.gov. 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 3, 2009 - Water Pollution File No. WP09-011 re: Case Foundation Company for property located at Coasters Harbor Island on Narragansett Bay. The property includes the U.S. Naval Base known as "Naval Station Newport" in the City of Newport. On August 30, 2007 RIDEM's Office of Water Resources (OWR) issued a Water Quality Certificate (WQC) to the Navy for the construction of a new vehicular bridge at the property. The WQC prohibited any shaft excavation material from being discharged into any waterway. The Navy entered into a contract with American Bridge Company to construct the bridge, and American Bridge Company retained Case Foundation Company as the drilled shaft subcontractor. The OC&I alleges that the Respondent is in violation of the Rhode Island Water Pollution Act and the RIDEM Water Quality Regulations. The violation pertains to the discharge of material to Narragansett Bay without approval from RIDEM. On or about March 31, 2009 the Navy reported to OWR that the subcontractor discharged water from a fractionation tank to Narragansett Bay, which resulted in a turbidity plume in the Bay. On May 29, 2009 the Navy provided OWR a copy of a letter from American Bridge Company describing amended procedures regarding use of the fractionation tank. The discharge from the fractionation tank was a violation of the WQC. In the NOV, OC&I assessed an administrative penalty of $2,500.00.



August 3, 2009 - UST File No. 2009-00606 re: Aisha Tassawar, Inc. and Iggy's Food Mart, Inc. for property located at 292 Market Street, Assessor's Plat 21, Lot 259 in the town of Warren. The property includes a convenience store and a gasoline station with one 12,000 gallon and one 8,000 gallon underground storage tank (UST) used for storage of gasoline and one 4,000 gallon UST used for the storage of diesel fuel. The OC&I alleges that the Respondents are in violation of the RIDEM Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). The violations pertain to the failure to retain a qualified person to test the line leak detectors in 2005 and 2007; failure to test the impact valves in 2005 and 2007; failure to retain a qualified person to certify/test the continuous monitoring system (CMS) in 2005 and 2007; failure to keep the collection sumps and spill containment basins free of liquid, and the failure to report an excessive variance in the inventory provided by the CMS on October 9, 2008. (The variance was 2,371 gallons, which exceeded the leak detection threshold of 1,580 gallons.) The violations were observed during an inspection by OC&I on October 9, 2008. On November 19, 2008 OC&I issued a Letter of Noncompliance (LNC) requiring action to correct the violations. The Respondents submitted reports to OC&I in response to the LNC, but the reports failed to demonstrate that the Respondents were in full compliance with the UST Regulations. In the NOV OC&I ordered the Respondents to achieve compliance with the UST Regulations and assessed an administrative penalty of $7,472.00.



August 3, 2009 - Freshwater Wetlands File No. C03-0259 re: CFD Realty, LLC and JS Pallet Co., Inc. for property located along Lockbridge Street, beginning at a point approximately 900 feet north of the intersection of Lockbridge and Weeden Streets and continuing to a point 2,320 feet north of the intersection, Assessor's Plat 47, Lot 725 in the city of Pawtucket and Assessor's Plat 1, Lot 150 in the town of Lincoln. The property is currently owned by CFD Realty, LLC. CFD Realty, LLC acquired the property on December 29, 2003. The property was owned by JS Pallet Co., Inc. JS Pallet Co., Inc. purchased the property on December 31, 1992. The OC&I alleges that the Respondents are in violation of Rhode Island's Freshwater Wetlands Act and RIDEM's Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violation pertains to filling (in the form of at least pallets, pavement, trailers, and vehicles) within 200-foot Riverbank Wetland and 100-year Floodplain. This activity resulted in the unauthorized alteration of 71,000 square feet of freshwater wetland. The violation was first observed during an inspection of the property on September 24, 2003. On November 20, 2003, OC&I issued a Notice of Intent to Enforce (NIE) to JS Pallet Co., Inc. requiring restoration of the wetlands. OC&I's review of 2003 and 2008 aerial photographs revealed that no restoration occurred as required in the NIE. On March 3, 2009 OC&I issued a letter to Carlos DaSilva of CFD Realty, LLC informing him of the violation. To date, no action has been taken to correct the violation. In the NOV, OC&I ordered the Respondents to restore the freshwater wetlands on the property and assessed an administrative penalty of $1,000.00.



August 11, 2009 - Septic System File No. 2007 1308 IS and CI 07-176 re: Blue Berry Hill Real Estate, LLC for property located at 111 Potowomot Road, Assessor's Plat 210, Lot 30 in the city of Warwick. The property includes a two-bedroom family dwelling and is owned by Blue Berry Hill Real Estate, LLC. The OC&I alleges that the Respondent is in violation of the RIDEM Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violation pertains to the discharge of sewage from the septic system for the dwelling to the surface of the ground and the use of a failed septic system. On October 17, 2007, OC&I inspected the property and observed sewage on the surface of the ground. In November 2007 OC&I issued a Notice of Intent to Enforce (NIE) to the Respondent. The NIE required the Respondent to reduce the discharge of sewage to the septic system through the use of water conservation devices, arrange to have the system pumped by a licensed septage hauler as needed to prevent overflows, have the system inspected by a licensed designer to determine the cause of the failure, and repair the system, if necessary. The Respondent submitted an application to repair the system, which was approved by RIDEM's Office of Water Resources in November 2007; however, the Respondent failed to install the system and the approval expired. On May 8, 2009 OC&I inspected the property, which revealed that the level of sewage in the septic system was above the inlet pipe (indicative of a failed system). In the NOV, OC&I ordered the Respondent to immediately cease the discharge of sewage to the surface of the ground, reduce the discharge of sewage to the septic system, pump the system as needed to prevent overflows, have the system inspected by a licensed designer to determine the cause of the failure, and repair the system, if necessary. OC&I assessed an administrative penalty of $2,000.00.



August 17, 2009 - Site Remediation File No. 2009-1 SR re: 645 Realty Associates, LLC for property located at 645 Narragansett Park Drive, Assessor's Plat 41, Lot 341 in the city of Pawtucket. The property is owned by 645 Realty Associates, LLC. The property was previously owned by RIBCO Mfg, Inc. and was transferred to 645 Realty Associates, LLC on November 17, 2004. On October 27, 2004 RIDEM's Office of Waste Management (OWM) received a copy of an Environmental Land Use Restriction (ELUR) executed on October 27, 2004 by RIBCO Mfg, Inc. and recorded in the land evidence records. The ELUR includes terms and provisions to prevent exposure to or migration of hazardous substances in the soil on the property and to abate hazards to human health and/or the environment. On October 28, 2004 OWM issued a Remedial Approval Letter and Letter of Compliance to RIBCO Mfg. Inc. approving the remedial actions described in the ELUR. The ELUR requires the Respondent to conduct annual inspections of the property and submit an evaluation report detailing the findings of the inspection to OWM. The OC&I alleges that the Respondent is in violation of the RIDEM Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases. The violation pertains to the failure to submit annual evaluation reports for 2005, 2006, 2007, and 2008. On August 3, 2006 OWM issued a Notice of Intent to Enforce (NIE) to the Respondent. The NIE required the Respondent to submit the evaluation report for 2005. The Respondent submitted a letter to OWM stating its intention to fully comply with the NIE; however, the Respondent failed to do so. On August 5, 2009 the Respondent submitted the annual compliance report to OWM. The report included photographs showing that the parking lot requires maintenance to function properly as required by the ELUR. In the NOV, OC&I ordered the Respondent to take actions to bring the property into compliance with the ELUR and assessed an administrative penalty of $6,473.00.



August 17, 2009 - Hazardous Waste File No. 2008 2490 HW re: ACN-Providence, LLC for property located at 455 George Washington Highway in the town of Smithfield. The Respondent owns the property. The Respondent operates a commercial business engaged in industrial containers at the property and is registered as a large quantity hazardous waste generator. The OC&I alleges that the Respondent is in violation of the RIDEM Rules and Regulations for Hazardous Waste Management. The violations pertain to the failure to determine if any of the waste meets the definition of hazardous waste; failure to label each satellite accumulation container with the words "Hazardous Waste" and other words that identify the contents of the container; failure to conduct weekly inspections of the areas where containers of hazardous waste are stored and maintain written inspection logs of such inspections; failure to provide annual refresher training for all employees managing hazardous waste; and failure to maintain records regarding job title, job description, type and amount of hazardous waste management training required for the company's job positions. On July 31, 2008 OC&I inspected the facility and documented the violations. At the time of the inspection, the OC&I inspectors advised the Respondent of the violations and the actions necessary to correct the violations. On September 16, 2008 the Respondent submitted copies of a weekly container inspection log documenting the inspection of containers holding hazardous waste stored on site. In the NOV, OC&I ordered the Respondent to take specific actions to correct the remaining violations and assessed an administrative penalty of $37,750.00.



August 17, 2009 - Medical Waste File No. 2008 2846 SW and SW 09-01 re: Health Resources of Warwick, Inc. and Warwick Associates of Rhode Island, L.P. for a property located at 660 Commonwealth Avenue in the city of Warwick. The property includes a nursing home that operates under the fictitious name of Kent Regency. Warwick Associates of Rhode Island, L.P. is the owner of the property, and Health Resources of Warwick, Inc. is the operator of the facility. The OC&I alleges that the Respondent is in violation of the RIDEM Rules and Regulations Governing the Generation, Transportation, Storage, Treatment, Management and Disposal of Regulated Medical Waste in Rhode Island. The violations pertain to the failure to place regulated medical waste in suitable containers at the point of origin, failure to properly dispose of the medical waste, and storage of medical waste in excess of fifty (50) pounds. On October 22, 2008 OC&I was informed by the Resource Recovery Corporation (RRC) that medical waste from the facility was received at the RRC landfill in Johnston. On November 6, 2008 OC&I inspected the facility and documented the violations. At the time of the inspection the OC&I inspector advised the Respondents of the violations and the actions necessary to correct the violations. In the NOV, OC&I ordered the Respondents to take specific actions to correct the violations and assessed an administrative penalty of $8,750.00.



August 17, 2009 - Air File No. 09-01 re: Herff Jones, Inc. for a facility located at 150 Herff Jones Way in the city of Warwick. The Respondent operates a facility that is engaged in the manufacture of stainless steel rings. The OC&I alleges that the Respondent is in violation of RIDEM's Air Pollution Control Regulation No. 9. The violation pertains to the failure to comply with a permit that was issued by RIDEM's Office of Air Resources (OAR) on August 29, 2007 pursuant to RIDEM Air Pollution Control Regulation No. 9, entitled "Air Pollution Control Permits". The permit limited the Respondent's stainless steel rings' production to 100,000 stainless steel rings per year, using a twelve month rolling average. On January 21, 2009 OAR received a letter from the Respondent reporting that its production of stainless steel rings exceeded the 100,000 production limit for the previous twelve months. OAR had granted the Respondent's request to increase the production limit to 100,000 from a prior permit limit of 67,500 stainless steel rings after the Respondent reported to OAR that it had exceeded the 67,500 limit. In the NOV, OC&I assessed a penalty of $2,500.00.



August 27, 2009 - UST File No. 2009-01177 re: DCPKM Enterprises, Inc., Albert Therien and Doris Therien for property located at 3585 Mendon Road in the town of Cumberland. The property includes a service station that has one 10,000 gallon underground storage tank (UST), one 6,000 gallon UST, and one 8,000 gallon UST used for storage of gasoline. Albert and Doris Therien are the owners of the property and DCPKM is the operator of the facility. The OC&I alleges that the Respondents are in violation of the RIDEM Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). The violations pertain to the failure to use the automatic tank gauging (ATG) system to perform valid 0.2 gallon per hour leak tests at least once in the last thirty (30) days; failure to test the ATG on a monthly basis to ensure that it was operating effectively from December 2005 through December 2008; failure to retain a qualified technician to test/certify the ATG in 2007; failure to compile and maintain inventory control records from December 2005 through May 2008; failure to retain a licensed tightness tester to test the product pipelines in 2006 and 2007; failure to retain a qualified person to test the line leak detectors in 2006 and 2007; failure to test the shear valves in 2006 and 2007; and failure to label and secure the tank field observation well. (OC&I's inspector observed that the well casing was not equipped with an expandable watertight cap and that the well had been partially back filled with soil.) The violations were observed during an inspection by OC&I on December 29, 2008. In February 2009 OC&I issued a Letter of Noncompliance (LNC) to DCPKM requiring action to correct the violations and in April 2009 issued warning letters to the Respondents. In May 2009 DCPKM submitted a letter to OC&I stating that a compliance report would be submitted within one week. To date, no report has been submitted. In the NOV OC&I ordered the Respondents to achieve compliance with the UST Regulations and assessed an administrative penalty of $9,681.00.



August 27, 2009 - Septic System File No. 2008 2802 IS and CI 08-124 re: Ronald Demarais and Deborah McClintock for property located at 53 Laurel Street, Assessor's Plat 24, Lot 121 in the town of Hopkinton. The property includes a one-bedroom family dwelling and is owned by the Respondents. The OC&I alleges that the Respondents are in violation of the RIDEM Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violation pertains to the discharge of sewage from the septic system for the dwelling to the surface of the ground and the use of a failed septic system. On November 26, 2008, OC&I inspected the property and observed sewage on the surface of the ground. The OC&I inspector handed a copy of the "Field Inspection Report" and "Required Actions Summary Sheet" (collectively, a Notice of Intent to Enforce or NIE) to Deborah McClintock. The NIE required the Respondents to reduce the discharge of sewage to the septic system through the use of water conservation devices, arrange to have the system pumped by a licensed septage hauler as needed to prevent overflows, have the system inspected by a licensed designer to determine the cause of the failure, and repair the system, if necessary. An inspection by OC&I on April 10, 2009 revealed that sewage was present on the ground surface. The OC&I inspector issued a second NIE to Deborah McClintock. To date, the Respondents have not taken action to comply with the NIE. In the NOV, OC&I ordered the Respondents to immediately cease the discharge of sewage to the surface of the ground, reduce the discharge of sewage to the septic system, pump the system as needed to prevent overflows, have the system inspected by a licensed designer to determine the cause of the failure, and repair the system, if necessary. OC&I assessed an administrative penalty of $2,200.00.



August 31, 2009 - Solid Waste File No. 2007 1517 SW and SW 07-02 re: James and Melissa Pelletier for property located at Crandall Road, Assessor's Plat 128, Lot 4N in the town of Tiverton. The property is owned by the Respondents. The OC&I alleges the Respondents are in violation of the Rhode Island Refuse Disposal Act and the RIDEM Rules and Regulations for Composting Facilities and Solid Waste Management Facilities. The violations pertain to the unauthorized disposal of solid waste (in the form of composted tree waste, yard waste and manure) and the unauthorized operation of a composting facility on the property. Inspections of the property by OC&I in February 2007 and November 2007 revealed the unauthorized disposal of solid waste and the unauthorized operation of a leaf and yard waste composting facility. In December 2007 OC&I issued a Notice of Intent to Enforce (NIE) to the Respondents. The NIE required the Respondents to cease acceptance and disposal of solid waste, cease operation of a solid waste management facility, and remove and properly dispose of all solid waste from the property. In response to the NIE, the Respondents submitted an application to DEM for a leaf and yard waste compost facility. DEM issued letters to the Respondents in May 2008 and August 2008 requiring revisions to the application. The Respondents failed to submit a revised application to DEM. An inspection by OC&I in October 2008 revealed that approximately 1709 cubic yards of solid waste was deposited on the ground. In the NOV, OC&I ordered the Respondents to immediately cease the disposal of solid waste, immediately cease operating a composting facility, and properly remove all solid waste. OC&I assessed an administrative penalty of $17,000.00.

 

Formal Enforcement Cases Settled or Resolved:

August 12, 2009 - UST File No. 2009-02125 re: Apache Oil Company, Inc. for property located at 356 West Main Road, Assessor's Plat 108NW, Lot 73 in the Town of Middletown. The property includes a convenience store and gas station. On May 7, 2009 OC&I issued an NOV to the Respondent alleging that the Respondent violated the RIDEM Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). The violation pertained to the failure to submit a completed Compliance Certification Checklist, Certification Statement Form, and Return to Compliance Plan (collectively, the Compliance Certification Forms) on or before June 30, 2007 for the facility's underground storage tanks that are used for storage of petroleum products and are registered with RIDEM. In the NOV, OC&I ordered the Respondent to submit the completed Compliance Certification Forms. The NOV also included an administrative penalty of $3,000.00. The Respondent filed an appeal of the NOV with AAD. The Respondent submitted the Compliance Certification Forms. Prior to an administrative hearing on the NOV, the Respondent and OC&I executed a Consent Agreement to resolve the NOV. The Respondent agreed to pay an administrative penalty of $1,000.00, which was paid upon execution of the Agreement.



August 20, 2009 - Septic System File No. 2007 1417 IS and CI07-0185 re: Joseph Sarro for property located at 47 Belvedere Street, Assessor's Plat 48, Lot 120 in the Town of Johnston. The property includes a one family, three-bedroom dwelling and is owned by the Respondent. On June 26, 2008 OC&I issued an NOV to the Respondent alleging that the Respondent violated the RIDEM Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems. The violations pertained to the overflow of sewage from the septic system for the dwelling to the surface of the ground. In the NOV, OC&I ordered the Respondent to cease the discharge of sewage to the surface of the ground, pump the septic system as needed to prevent overflows, and/or repair the septic system. OC&I assessed an administrative penalty of $800.00. The Respondent filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the Respondent and OC&I executed a Consent Agreement to resolve the NOV. The Respondent agreed to pump the septic system as needed to prevent overflows; limit the occupancy of the dwelling to no more than two (2) persons and not sublet the dwelling until the system is repaired; vacate the dwelling and keep the dwelling unoccupied until the septic system is repaired if OC&I documents an overflow and, after receipt of proper notice from OC&I, the Respondent fails to repair the system; and repair the septic system upon transfer or sale of the property. The Respondent further agreed to pay the administrative penalty of $800.00 upon the sale or transfer of the property.



August 28, 2009 - Water Pollution File No. 2008 2525 WP and WP 08-099 re: City of Newport. The City of Newport is the owner and operator of the Lawton Valley Water Treatment Facility (the Facility) located in the Town of Portsmouth. On March 13, 2009 OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Water Pollution Act, the RIDEM Water Quality Regulations and the RIDEM Rhode Island Pollutant Discharge Elimination System (RIPDES) Regulations. The violation pertained to the discharge of waste solids associated with the treatment of water to Lawton Brook that was not authorized in the Respondent's RIPDES discharge permit. The permit authorizes the Respondent to discharge only treated filter backwash to Lawton Brook in accordance with interim limits. RIDEM issued an NOV to the Respondent on May 20, 2005 (the 2005 NOV) for the unauthorized discharge of waste solids from the sedimentation basins and coagulation basins to Lawton Brook. On February 16, 2007 RIDEM and the Respondent executed a Consent Agreement to resolve the 2005 NOV. The Respondent agreed to construct a conveyance system to store and transport solids from the basins to the sanitary sewerage system. The Respondent completed construction of the conveyance system, and the system began operation on January 29, 2008. In June 2008 RIDEM investigated a complaint that raw sewage was flowing out of Lawton Brook into Narragansett Bay. RIDEM determined that the Respondent had discharged solids from the sedimentation basins to Lawton Brook. In the NOV OC&I assessed a penalty in the amount of $25,000.00. The Respondent filed an appeal of the NOV with AAD. On April 1, 2009 the Respondent submitted standard operating procedures to ensure future compliance with RIDEM's regulations. Prior to an administrative hearing on the NOV, the Respondent and OC&I executed a Consent Agreement to resolve the NOV. The Respondent agreed to pay an administrative penalty of $10,000.00, which was paid upon execution of the Agreement.

 

Superior Court Actions Issued:

None issued this month.

 

Superior Court Actions Settled or Resolved:

None settled or resolved this month.