December 2003 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 December 2003. 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: December 5, 2003 - OC&I/File No. 03-07 re: South County Hospital Healthcare System for property and its facility located at 100 Kenyon Avenue in the Town of South Kingstown. The OC&I alleges that the Respondent is in violation of RIDEM's Air Pollution Control ("APC") Regulation No. 9, entitled "Air Pollution Control Permits", APC Regulation No. 22, entitled "Air Toxics" and RI General Law Title 23, Chapter 23-23, entitled "Rhode Island Clean Air Act", Section 23-23-13. The violations pertain to Respondent's failure to obtain a permit before installing an 8.77 MMBtu/hr boiler designed to fire distillate fuel and natural gas, failure to obtain a permit before installing a diesel fired 800+ horsepower generator with a heat input capacity greater than the 5 MMBtu/hr permit threshold in the APC Regulations and failure to produce records pertaining to xylene and ethylene oxide purchases and use on a daily basis as required by RIDEM's Air Toxics Operating Permit issued to the Respondent. Following issuance of a Notice of Alleged Violations to the Respondent by RIDEM's Office of Air Resources, the Respondent obtained all necessary permits and complied with all record requirements. In the NOV, the OC&I assessed a penalty in the amount of $2,400.00 for Respondent's non-compliance.December 5, 2003 - OC&I/UST File No. 03-00720 re: Clifford R. McGinnes, Sr. and the Estate of Marjorie McGinnes dba Ballard's Service Center for property located on Corn Neck Road, Assessors Plat 5, Lot 9 in the Town of New Shoreham. The OC&I alleges that the Respondents are in violation of RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials ("the UST Regulations"). The violations pertain to testing requirements for UST cathodic protection systems, inventory record keeping requirements, annual testing of line leak detectors, operation and maintenance of UST leak detection equipment and investigation of release detection signals, monthly and annual testing requirements of UST continuous monitoring systems, fill port labeling, and record keeping requirements. In the NOV, the OC&I ordered the Respondent to inspect and test the cathodic protection system for applicable USTs, conduct a daily inventory of all inflows and outflows including a daily reconciliation, test the line leak detectors, investigate the release detection signal and system status warnings displayed by Respondent's CMS, conduct proper monthly and annual CMS testing, label the fill ports and provide all applicable records for RIDEM's review. The Respondent was ordered to submit all applicable records and verifications. The OC&I assessed a penalty in the amount of $13,715.00.December 5, 2003 - OC&I/AIR File No. 03-09 re: Bradford Dyeing Association, Inc. for its facility located at 460 Bradford Road in the Town of Westerly. The OC&I alleges that the Respondent is in violation of RIDEM's Air Pollution Control ("APC") Regulation No. 1, entitled "Visible Emissions", and APC Regulation No. 17, entitled "Odors". The violations pertain to observations on two occasions where an OC&I inspector observed air contaminants greater than or equal to 20 percent opacity being emitted from the facility and on four occasions where an OC&I inspector detected odors emitting from the facility that were determined to be objectionable beyond the property line of the facility. In the NOV, the OC&I ordered the Respondent to comply with APC Regulations No. 1 and 17 and assessed a penalty in the amount of $4000.00. The Respondent has filed an appeal of the NOV with the AAD.December 30, 2003 - OC&I/AIR File No. 03-10 re: Rhode Island Hospital for its facility located at 593 Eddy Street in the City of Providence. The OC&I alleges that the Respondent is in violation of RIDEM's Air Pollution Control ("APC") Regulation No. 29, entitled "Operating Permits" and RI General Law Title 23, Chapter 23-23, entitled "Rhode Island Clean Air Act", Section 23-23-13. The violations pertain to the Respondent's failure to submit semi-annual monitoring reports and failure to file an annual compliance certification. The Respondent had previously been issued notices of alleged violation by RIDEM's Office of Air Resources for not having submitted such reports as required by the Clean Air Act the APC Regulations and the Respondent's Operating Permit. Certain past due reports for more recent assessments are still not submitted. In the NOV, OC&I ordered compliance with the APC Regulations and assessed a penalty in the amount of $1,500.00.December 31, 2003 - OC&I/Solid Waste File No. 03-030 re: Ross Hill Development, Inc. and John M. Rosa IV for property located at 78 Ross Hill Road, Assessor's Plat 14, Lot 14 in the Town of Charlestown. The OC&I alleges that the Respondents are in violation of Rhode Island's Refuse Disposal Act, Rhode Island General Law � 23-18.9-8 relating to operating a solid waste management facility without a license. The property is subject to a Superior Court Consent Order that required the clean up and removal of solid waste illegally stored and disposed of on the property. The Respondents were managing the solid waste clean up and removal operation on the property. The violations pertain to the Respondents allowing solid waste in the form of tires and construction and demolition debris to be brought onto the property from outside sources. Such activity requires a license pursuant to the Refuse Disposal Act. In the NOV, the Respondents were ordered to cease operating a solid waste management facility, remove the waste, and document proper disposal at a licensed solid waste management facility. OC&I assessed a penalty in the amount of $7,000.00.December 31, 2003 - OC&I/AIR File No. 03-02 re: the Rhode Island Resource Recovery Corporation (RIRRC) for its facilities located at 65 Shun Pike ("the Central Landfill facility") in the Town of Johnston and 2550 Plainfield Pike ("the RecoverMat facility") in the City of Cranston. The OC&I alleges that the Respondent is in violation of RIDEM's Air Pollution Control ("APC") Regulation No. 9, entitled "Air Pollution Control Permits", APC Regulation No. 14, entitled "Record Keeping and Reporting", APC Regulation No. 36 entitled "Control of Emissions from Organic Solvent Cleaning" and Rhode Island General Law Title 23, Chapter 23-23, entitled "Rhode Island Clean Air Act", Section 23-23-5, paragraph 19. The violations pertain to Respondent's failure to obtain air pollution pre-construction permits before installing and operating multiple diesel-fired generators used for compost grinding or RecoverMat grinding at its Central Landfill facility and its RecoverMat facility. The generators exceed the 5 MMBtu/hr maximum heat input capacity permit threshold and have the potential to emit nitrogen oxides ("NOx") in excess of 50 tons per year. For the Central Landfill facility, the Respondent also failed to submit an annual emission statement regarding emissions of volatile organic compounds ("VOCs") and NOx emissions and failed to maintain its cold cleaner (degreaser) with its cover closed while the cold cleaner was not actively being used. Prior to the issuance of the NOV, the Respondent obtained certain permits for certain generators for its RecoverMat facility and filed air pollution pre-construction permit applications for certain generators at its Central Landfill facility. In the NOV, the OC&I ordered the Respondent to achieve compliance with the APC Regulations and the RI Clean Air Act for all issues remaining in noncompliance. OC&I assessed a penalty in the amount of $28,500.00. Formal Enforcement Cases Settled or Resolved: December 4, 2003 - OC&I/RCRA File No. 99-020 re: Izzo Group, Inc. and Metals Recycling, LLC for property located at 89 Celia Street, Assessor's Plat 13, Lots 219 and 266 in the Town of Johnston. On June 9, 1999, OC&I issued an NOV to the Respondents alleging that Respondents violated Rhode Island's Hazardous Waste Management Act, RI General Law §23-19.1 et seq. and RIDEM's Rules and Regulations for Hazardous Waste Management. In 1998 and 1999, RIDEM's Office of Criminal Investigation conducted an investigation of the Respondents' facility. Evidence gathered in that investigation was turned over to the RI Attorney General for prosecution. The RI Attorney General released the information for use by RIDEM OC&I for regulatory purposes. Review of the evidence determined that Respondents' auto shredder residue ("ASR") at the time contained polychlorinated biphenyls above 50 parts per million which is a level in RIDEM's regulations that classifies the material as hazardous waste. Evaluation of the evidence gathered by the Office of Criminal Investigation revealed that Respondent's actions or failure to act resulted in multiple regulatory violations. The violations pertained to Respondents' failure to manage its hazardous waste that existed in piles of ASR in an appropriate manner, failing to mark and label hazardous waste, failing to obtain an operating permit to accept, store and transfer hazardous waste, failing to adequately determine if any of their waste meets the definition of hazardous, failing to transport hazardous waste by a licensed transporter to a licensed hazardous waste treatment, storage or disposal facility, failing to manifest hazardous waste, not keeping appropriate records, accepting hazardous waste without a manifest and failing to prepare and submit a biennial report. OC&I ordered compliance with the law and regulations and assessed a penalty in the amount of $718,045.00. The Respondents filed an appeal of the NOV with the AAD. The Respondents sought and achieved a stay of the adjudicatory hearing at AAD while the criminal case before the Superior Court proceeded. Subsequent to RIDEM's criminal and civil regulatory actions, USEPA commenced a hazardous waste regulatory investigation of the Respondents' facility. USEPA alleged that violations of federal hazardous waste regulations existed at the facility pursuant to Section 3005(a) of RCRA, 42 U.S.C. Section 6925(a). In September 2001, Respondents executed an Administrative Settlement with USEPA to resolve improper storage violations of hazardous waste and to facilitate clean up of contaminated ASR at the facility. A penalty in the amount of $200,000.00 was paid to USEPA. On December 4, 2003, following agreements reached between the Respondents and the RI Attorney General's Office regarding the criminal matter pending before the Superior Court, OC&I and the Respondents executed a Consent Agreement to resolve the NOV. The Respondents agreed to a penalty in the amount of $250,000.00. The penalty was paid in full upon execution of the Consent Agreement.December 12, 2003 - OC&I/Solid Waste File No. 99-014 re: New England Ecological Development, Inc. and Solid Waste File No. 99-015 and Wetlands File No. C99-0016 re: Lewis A. Perrotti, Jr. On September 28, 1999, OC&I issued an NOV to Respondent Perrotti for property located at 70 Ridge Road, Assessor's Plat 43, Lot 104 in the Town of Scituate. The NOV alleged that Respondent Perrotti violated Rhode Island's Refuse Disposal Act by depositing approximately 11,553 cubic yards of solid waste in the form of what was supposed to be processed compost on the property. The processed compost met the definition of solid waste in accordance with the Solid Waste Regulations. In addition, Perrotti was cited for altering approximately 8,550 square feet of riverbank wetland without first obtaining a permit from the Director in accordance with the Freshwater Wetlands Act and applicable Regulations. The OC&I ordered removal of the solid waste and restoration of all unauthorized altered wetlands on the property. A penalty in the amount of $2,000.00 was assessed in the NOV. On September 28, 1999, the OC&I also issued an NOV to Respondent New England Ecological Development, Inc. ("NEED") for violations of the Refuse Disposal Act. The violations pertained to disposal of approximately 11,553 cubic yards of alleged processed compost that met the definition of solid waste on property owned by Respondent Perrotti. The OC&I ordered removal of the solid waste and assessed a penalty in the amount of $6,769.00 of which $1,000.00 was for the gravity of the violation and $5,769.00 related to the economic benefit for not disposing the material at a licensed solid waste management facility. Both Respondents NEED and Perrotti requested a hearing at AAD to contest the NOVs. Prior to hearing, the Respondents and the OC&I executed a consent agreement to resolve the enforcement actions. In the agreement, Respondent NEED agreed to remove the material from the property, document temporary storage of the material at its solid waste management facility located at 23 Green Hill Road, Johnston and transport all the material to the RI Resource Recovery Corp. solid waste management facility prior to February 1, 2002. Respondent Perrotti agreed to allow NEED to remove the material from the property and agreed to restore the riverbank wetland on the property by April 1, 2002. Respondent NEED agreed to a penalty in the amount of $1,000.00 and Perrotti agreed to a penalty in the amount of $1,500.00. The Respondents failed to comply with the removal and restoration deadlines set forth in the Consent Agreement. NEED commenced removal of the solid waste from the property but ceased activity before final removal. Respondent Perrotti was unable to obtain final removal of all solid waste by NEED before NEED's facility was shut down by RIDEM in an unrelated enforcement action in or about August 2002. NEED was eventually placed into receivership. OC&I notified Respondent Perrotti of his responsibility to comply with the Consent Agreement and his obligation to pay non-compliance penalties. On December 20, 2002, OC&I confirmed that all solid waste was removed from the property. On October 31, 2003, OC&I confirmed that the riverbank wetland was restored as required in the Consent Agreement. On December 9, 2003 OC&I representatives met with Respondent Perrotti and negotiated settlement of all non-compliance penalties. OC&I considered Respondent Perrotti's hardship in attempting to have Respondent NEED fulfill its obligations under the Consent Agreement and considered Respondent Perrotti's financial ability to pay non-compliance penalties for failing to comply with the Consent Agreement. OC&I agreed to accept $3,000.00 in non-compliance penalties. The penalty has been paid in full and the enforcement action is closed.December 23, 2003 - OC&I/Wetlands File No. C-1428 re: Fred Reiger for property located along the Moosup River approximately 500 feet west of Potter Road and approximately 2,400 feet southwest of the intersection of Moosup Valley Road and Potter Road, Assessor's Plat 1, Lot 43-B, in the Town of Foster. On May 3, 1984 RIDEM issued an NOV to the Respondent alleging a violation of the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violation pertained to the unauthorized construction of a dam across the Moosup River. In the NOV the Respondent was ordered to remove the dam from the Moosup River. The Respondent failed to request a hearing on the NOV. On August 28, 2001 an inspection by OC&I revealed that the Respondent had maintained fill in the form of the concrete and boulder dam and had changed the character of the Moosup River by failing to remove the dam referenced in the prior NOV. OC&I ordered the removal of the unauthorized dam and all associated fill from the Moosup River and assessed a penalty of $1,000. The Respondent filed an appeal of the NOV with the AAD. Prior to hearing, the Respondent and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to remove the dam by October 31, 2004 and agreed to pay a reduced penalty in the amount of $500.00. Superior Court Actions Issued: None filed this month. Superior Court Actions Settled or Resolved: None filed this month.