December 2010 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 December 2010. 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:

December 15, 2010 - Septic System File CI08-0128 re: Howard R. Migneault for property located at 34 Richardson Clearing Trail, Assessor's Plat 1A, Lot 14, in the town of Glocester. The property includes a residential dwelling and is owned by the Respondent. The OC&I alleges that the Respondent is in violation of RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violation pertains to the unauthorized construction of an onsite sewage disposal system for the dwelling. On November 6, 2008 OC&I issued a Notice of Intent to Enforce (NIE) to the Respondent. The NIE required the Respondent to take specific corrective actions to resolve the violation. The Respondent failed to comply with the requirements of the NIE. In the NOV, OC&I ordered the Respondent to retain a licensed septic system designer to submit an application to repair the system and construct the system upon RIDEM's approval of the application. In the NOV, OC&I assessed an administrative penalty of $1,000.00.



December 28, 2010 - Freshwater Wetland File No. FW C10-010 re: Frank DiCenzo, Jr. and DiCenzo Construction Company, Inc. for property located at 636 Douglas Pike, Assessor's Plat 19, Lot 3 in town of North Smithfield. Frank DiCenzo, Jr. owns the property. DiCenzo Construction Company, Inc. operates a gravel and stone crushing business on the property. The OC&I alleges that the Respondents violated Rhode Island's Freshwater Wetlands Act and RIDEM's Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertain to filling (in the form of at least soil material), grading, clearing, creating soil disturbance, and storage of materials, vehicles, and other heavy equipment within Forested Wetland and excavating, filling (in the form of dredged soil material), clearing, grading, and creating soil disturbance within an Emergent/Shrub Wetland Complex. This activity resulted in the unauthorized alteration of approximately 4,500 square feet of freshwater wetland. OC&I inspected the property on July 18, 2005 and January 14, 2010 and documented the violations. The Respondents did not receive approval from RIDEM to alter the freshwater wetlands. In the NOV, OC&I ordered the Respondents to restore the freshwater wetlands on the property. OC&I assessed an administrative penalty of $7,500.00.



December 31, 2010 - Hazardous Waste File No. 2009-76 HW re: Harris Industries, Inc. for a facility located at 181 Conant Street in the city of Pawtucket. The facility manufactures flexographic printing products and is registered with RIDEM as a small quantity hazardous waste generator at the facility. The OC&I alleges that the Respondent violated RIDEM's Rules and Regulations for the Management of Hazardous Waste (Hazardous Waste Regulations) and Title 40 of the Code of Federal Regulations. The violations pertain to Respondent's failure to: properly label each container holding hazardous waste; keep containers holding hazardous waste closed except when adding or removing waste; mark each container holding hazardous waste with the date upon which the waste initially began to accumulate; store hazardous waste onsite for a period of time that does not exceed ninety days; provide a containment system for all drums and containers holding liquid hazardous waste in storage onsite; maintain adequate aisle space to allow for unobstructed movement of personnel, fire protection equipment, spill control equipment and decontamination equipment; equip the facility with spill control equipment of sufficient type and quantity to respond to spills or unplanned releases of hazardous materials and waste; prepare a written contingency plan that would be used in the event of an emergency involving hazardous waste; conduct weekly inspections of container storage areas looking for leaking containers and signs of deterioration caused by corrosion or other factors and maintain documentation of the inspection; submit to OC&I a list of agents authorized by the company to sign uniform hazardous waste manifests for shipments of hazardous waste; provide training for all employees who manage hazardous waste; and submit a small quantity generator report when required by RIDEM. OC&I inspected the facility on July 28, 2009 and documented the violations. In the NOV, the OC&I ordered the Respondent to achieve compliance with the Hazardous Waste Regulations and pertinent Code of Federal Regulations. OC&I assessed an administrative penalty of $35,316.00.



December 31, 2010 - Septic System File CI10-103 re: Paul J. McCabe, Jr. for property located at 12 Allen's Cove, Assessor's Plat 9, Lot 216, in the town of Charlestown. The property includes a residential dwelling and is owned by the Respondent. The OC&I alleges that the Respondent is in violation of RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violation pertains to the overflow of sewage from the sewage disposal system for the dwelling to the surface of the ground. On August 30, 2010 OC&I issued a Notice of Intent to Enforce (NIE) to the Respondent. The NIE required the Respondent to take specific corrective actions to resolve the violation. The Respondent failed to comply with the requirements of the NIE. In the NOV, OC&I ordered the Respondent to pump the system as needed to prevent overflows, retain a licensed septic system designer to determine the cause of the failure, and repair the system, if necessary. In the NOV, OC&I assessed an administrative penalty of $1,000.00.



December 2010 UST Notices of Violation



The OC&I alleges that the Respondent(s) in all of the following referenced cases are in violation of RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). On January 22, 2010 RIDEM's Office of Customer and Technical Assistance (OCTA) issued a letter to all registered facility owners/operators of underground storage tanks (USTs) used for storage of petroleum products that required the owners/operators to inspect their facility and complete and submit to OCTA a Compliance Certification Checklist, a Certification Statement form and any necessary Return to Compliance Plans (collectively, Compliance Certification Forms). The violations pertain to the failure to submit to OCTA the Compliance Certification Forms. In each case OC&I issued a Notice of Intent to Enforce (NOI) to the Respondent(s). The NOI required the Respondent(s) to submit the Compliance Certification Forms. In each case the Respondent(s) failed to comply with the NOI. In the NOV, OC&I ordered the Respondent(s) to submit the Compliance Certification Forms to OC&I in accordance with Rule 8.03 of the UST Regulations. OC&I assessed an administrative penalty of $3,000.00.



December 13, 2010 - UST File No. 2010-00644 re: 533 Broadway LLC and Arash Energy Corp. for property located at 533 Broadway in the city of Newport. The property includes a gasoline service station.



December 14, 2010 - UST File No. 2010-02681 re: CVS Pharmacy, Inc. for property located at 1 CVS Drive in the city of Woonsocket. The property includes an office building.



December 31, 2010 - UST File Nos. 2010-03159 and 2010-03294 re: Town of West Warwick for property located at 1 Pontiac Avenue and Main Street in the town of West Warwick. The properties include a municipal wastewater treatment facility and a sewerage pumping station.



December 31, 2010 - UST File No. 2010-01793 re: Robert Plasse for property located at 135 Putnam Avenue in the town of Johnston. The property includes a gasoline service station.



December 31, 2010 - UST File No. 2010-00431 re: Jeha Corp. and John Jeha, Inc. for property located at 76 Newport Avenue in the city of Pawtucket. The property includes a gasoline service station.

Formal Enforcement Cases Settled or Resolved:

December 10, 2010 - Freshwater Wetland File No. C07-0106 re: Steven and Ellen Ceceri for property located approximately 800 northwest of the intersection of Douglas Pike and Pound Hill Road, at utility pole #142, Assessor's Plat 10, Lot 126 in the town of North Smithfield. The property is currently owned by Michael Menard. The property was owned by Steven and Ellen Ceceri and was purchased by Mr. Menard on July 29, 2010. On February 26, 2009 OC&I issued an NOV to the Ceceris alleging that the Ceceris violated Rhode Island's Freshwater Wetlands Act and RIDEM's Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violation pertained to clearing and filling (in the form of soil material and stone), grading, and installing numerous property accessories within a 50-foot Perimeter Wetland and 200-foot Riverbank Wetland. These activities resulted in the unauthorized alteration of 13,600 square feet of freshwater wetland. In the NOV, OC&I ordered the Ceceris to restore the freshwater wetlands on the property. OC&I assessed an administrative penalty of $7,500.00. The Ceceris did not file an appeal of the NOV with AAD and did not comply with the NOV. Mr. Menard complied with the Order portion of the NOV upon his purchase of the property and paid the $7,500.00 penalty.



December 13, 2010 - Air File No. 10-10 re: ACN - Providence, LLC for a facility located at 455 George Washington Highway in the town of Smithfield. The Respondent reconditions metal drums at the facility using various surface coating operations and is a major stationary source of volatile organic compounds. On July 22, 2010 OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Clean Air Act and RIDEM's Air Pollution Control Regulation No. 19, Control of Volatile Organic Compounds from Surface Coating Operations and Air Pollution Control Regulation No. 29, Operating Permits. The violations pertained to the failure to use a surface coating with an emission limit of no more than 3 pounds of volatile organic compounds per gallon of coating (minus water), as applied and the failure to submit a timely and complete permit application to RIDEM's Office of Air Resources (OAR). The Respondent submitted a letter to OAR on September 3, 2009 that summarized the actions taken to resolve the violations, which was accepted by OAR. In the NOV, OC&I assessed an administrative penalty of $15,000.00. The Respondent did not file an appeal of the NOV with AAD and paid the full penalty of $15,000.00 to resolve the NOV.



December 14, 2010 - Air File No. 10-19 re: Bradford Printing & Finishing, LLC for a facility located at 460 Bradford Road in the town of Westerly. RIDEM's Office of Air Resources (OAR) issued a permit to the Respondent on January 2, 2009 to emit air pollutants from the facility. The permit prohibits the use of a boiler identified as Emission Unit B801 from 1 April through 31 August except in the event of an emergency. On November 19, 2010 OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Air Pollution Control Regulation No. 29, Operating Permits. The violation pertained to the failure to comply with the permit. On or about April 14, 2010, the Respondent submitted its 2009 Air Pollution Inventory forms to OAR. The forms documented that Emission Unit B801 was operated in May, June and August 2009. The Respondent provided no information to OAR that the operation of the emission unit was a result of an emergency. In the NOV, OC&I assessed an administrative penalty of $1,000.00. The Respondent did not file an appeal of the NOV with AAD and paid the full penalty of $1,000.00 to resolve the NOV.



December 14, 2010 - Air File No. 10-13 re: Calise & Sons Bakery, Inc. for a facility located at 2 Quality Drive in the town of Lincoln. On September 10, 2010 OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Clean Air Act and RIDEM's Air Pollution Control Regulation No. 9, Air Pollution Control Permits and Air Pollution Control Regulation No. 14, Record Keeping and Reporting. The violation pertained to the installation and operation of three natural gas ovens without applying for or receiving a minor source permit from RIDEM's Office of Air Resources (OAR). On March 12, 2010 the Respondent submitted an application to OAR for the ovens. The application stated that the facility currently emits thirty tons per year of ethanol, a volatile organic compound (VOC), and began emitting VOCs in excess of twenty-five tons per year in calendar year 2005. The Respondent failed to submit annual VOC emissions statements to OAR for calendar years 2005, 2006, and 2007, which are required for any facility emitting twenty-five tons or more per year of VOCs. On July 6, 2010 OAR approved the application. In the NOV, OC&I assessed an administrative penalty of $562,736.00. The Respondent filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, OC&I and the Respondent executed a Consent Agreement to resolve the NOV. The Respondent agreed to pay a penalty of $275,000.00 in installments. The first payment of $100,000.00 was paid upon execution of the Agreement. The second, third and fourth payments of $50,000.00 are due by April 1, 2011, July 1, 2011 and October 1, 2011, respectively. The final payment of $25,000.00 is due by December 1, 2011.



December 20, 2010 - Multi-Media File No. HW 06-067 re: John Lussier d/b/a John's Salvage Company and Lanmar Corporation for property located at 333 Cottage Street, Assessor's Plat 8, Lot 409, in the city of Pawtucket. Lanmar Corporation (Lanmar) owns the property. John Lussier (Lussier) operated a business on the property known as John's Salvage Company. On May 1, 2008 OC&I issued an NOV to the Respondents alleging that the Respondents violated RIDEM's Rules and Regulations for Hazardous Waste Management and Title 40 of the Code of Federal Regulations pertaining to hazardous waste management. The violations pertained to Lussier's failure to: obtain a permit to store hazardous waste for more than 90 days; determine if wastes generated at the facility meet the definition of a hazardous waste; provide adequate aisle space between containers of hazardous waste stored at the facility; provide secondary containment for containers of liquid hazardous waste; label all containers of hazardous waste; store ignitable waste at least 50 feet from the property boundary; provide training to employees who handle hazardous waste and to maintain records of such training; have a contingency plan for the facility in the event of a fire, spill or release of hazardous waste; test fire protection equipment to ensure proper operation in time of emergency; inspect containers of hazardous waste on a weekly basis to check for leaks and deterioration; maintain weekly inspection logs for containers of hazardous waste; and maintain an adequate supply of spill control equipment in the event of a release of hazardous waste. OC&I further alleged that the Respondents violated Rhode Island's Oil Pollution Control Act and RIDEM's Oil Pollution Control Regulations, Groundwater Quality Regulations and Underground Injection Control Regulations. The violations pertained to a release of oil to the ground at the facility and to a subsurface catch basin at the facility and a failure to: stop the discharge of oil and remove the oil from the environment; report the release to RIDEM; operate a facility so as to prevent the discharge of any pollutant to groundwater; and obtain an approval for the operation of an injection well that endangers groundwater quality. Prior to the issuance of the NOV, Lussier vacated the property and Lanmar removed all hazardous waste from the property. In the NOV Lanmar was ordered to file a report with the OC&I regarding all steps taken to clean up and remove oil pollution from the property, evaluate the extent of subsurface oil pollution associated with the catch basin on the property and submit a closure plan to eliminate the catch basin/underground injection control system. The OC&I assessed an administrative penalty of $47,590.00 against Lussier and $15,000.00 against Lanmar. The Respondents filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, Lanmar complied with the Order portion of the NOV, and OC&I and Lanmar executed a Consent Agreement to resolve the NOV as it pertains solely to Lanmar. Lanmar agreed to pay a penalty of $9,090.00 in installments. The first installment of $590.00 was paid upon execution of the Agreement. The remaining payments shall be paid in eighteen $500.00 monthly installments. AAD issued a Final Order of Default against Lussier and ordered him to pay the administrative penalty assessed in the NOV. Lussier failed to pay the penalty and the case has been forwarded to a collection agency.



December 20, 2010 - Air File No. 10-09 re: FPLE Rhode Island State Energy, L.P. for an electric generating facility located at 24 Shun Pike in the town of Johnston. RIDEM's Office of Air Resources (OAR) issued a permit to the Respondent on July 31, 2009 to emit air pollutants from the facility. The permit authorizes the Respondent to use treated wastewater from the Cranston Water Pollution Control Facility, which the Respondent further treats at the facility prior to use. The permit has the following conditions: comply with a total suspended solids (TSS) limit of 5 mg/l at the exit from the tertiary treatment system prior to chlorination; comply with a total chlorine residual limit of 1.0 mg/l at the terminal point of the wastewater pipeline; and have no more than 5% of the samples collected during the month be positive for fecal coliform bacteria if at least 40 samples per month are collected. On July 9, 2010 OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Air Pollution Control Regulation No. 29, Operating Permits. The violations pertained to the failure to comply with the permit. Specifically, the Respondent failed to: comply with the TSS limit on July 8, 2008, June 2, 2009, and June 12, 2009; comply with the total chlorine residual limit on September 23, 2008 and failed to report this incident of noncompliance to OAR in its semi-annual monitoring report for the period of July 1 2008 through December 31, 2008 and in its 2008 Annual Compliance Certification; and collected at least 40 samples for fecal coliform bacteria and reported positive fecal coliform readings from September 23, 2008 through September 26, 2008, which resulted in more than 5% of the samples collected during the month having tested positive for fecal coliform bacteria. In the NOV, OC&I assessed an administrative penalty of $15,000.00. The Respondent filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, OC&I and the Respondent executed a Consent Agreement to resolve the NOV. The Respondent agreed to pay a penalty of $9,500.00, which was paid upon execution of the Agreement.



December 28, 2010 - Hazardous Waste File No. 2009-12 HW re: Tedor Pharma, Inc. for its facility located at 400 Highland Corporate Drive in the town of Cumberland. The facility is used for pharmaceutical manufacturing and product development. On February 26, 2010 OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Rules and Regulations for the Management of Hazardous Waste (Hazardous Waste Regulations) and Title 40 of the Code of Federal Regulations. The violations pertained to Respondent's failure to: determine if the waste generated onsite meets the definition of hazardous waste; label all satellite accumulation containers with the words "hazardous waste" and other words to describe the contents of the container; keep containers holding hazardous waste closed except when adding or removing waste; mark each container holding hazardous waste with the date upon which the waste initially began to accumulate; maintain adequate aisle space to allow for the unobstructed movement of personnel, fire protection equipment, spill control equipment and decontamination equipment; separate containers holding hazardous waste that are not compatible with other wastes and/or materials by means of a physical barrier or by location; store hazardous waste onsite for a period of time that does not exceed ninety days; complete and submit a small quantity generator report when required by RIDEM; submit to RIDEM a list of agents authorized by the company to sign uniform hazardous waste manifests for offsite shipments of hazardous waste; prepare a written contingency plan that would be used in the event of an emergency involving hazardous waste; and provide training for all employees who manage hazardous waste. In the NOV, the OC&I ordered the Respondent to achieve compliance with the Hazardous Waste Regulations and pertinent Code of Federal Regulations and assessed a penalty in the amount of $41,420.00. Prior to an administrative hearing on the NOV, the Respondent complied with the Order portion of the NOV, and OC&I and the Respondent executed a Consent Agreement to resolve the NOV. The Respondent agreed to pay a penalty of $24,500.00 in installments. The first installment of $6,500.00 was paid upon execution of the Agreement. The remaining payments will be paid in nine $2,000.00 monthly installments.

Superior Court Actions Issued:

None issued this month.

 

Superior Court Actions Settled or Resolved:

December 13, 2010 - Freshwater Wetland File Nos. A-1108, C97-071, C96-092, C-1094, and C98-039 and Superior Court File No. PC97-0592 re: Plaintiff W. Michael Sullivan, Director, RIDEM vs. Defendants John H. Tillinghast, Alfred E. Tillinghast and Anna Tillinghast for property known as the Bowdish Lake Camping Area located north of Putnam Pike (Route 44) in the towns of Burrillville and Glocester. On May 14, 1976 RIDEM issued two NOVs to the Defendants alleging that the Defendants violated Rhode Island's Freshwater Wetlands Act and RIDEM's Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to filling within 100 feet of Wilbur Brook and filling of an unnamed freshwater swamp. RIDEM also advised the Defendants of certain purported violations for which the Defendants were not issued any notices. In the NOVs the Defendants were ordered to restore the altered wetlands. No administrative penalty was assessed in the NOVs. On or about 1997, RIDEM filed a complaint in Superior Court. In the complaint RIDEM asked the Court to order the Defendants to restore the altered wetlands. On July 31, 1998, prior to a hearing on the complaint, RIDEM, the executor for Defendant Alfred Tillinghast's estate and Defendant Anna Tillinghast entered into a Consent Agreement that was signed by the Court. The Defendants agreed to, among other things, construct a 1½ acre replacement wetland (replacement wetland) and restore a 50 foot Perimeter Wetland associated with Wilbur Pond that was cleared for five campsites (the campsite restoration). The Defendants failed to comply with the Consent Agreement. On May 3, 2000 the Court issued an Order to Defendant Anna Tillinghast to submit a plan to RIDEM for the replacement wetland by May 12, 2000 and complete the campsite restoration by May 12, 2000. The Defendant failed to comply with the Order. On September 30, 2009 RIDEM and Defendant Anna Tillinghast entered into a Consent Order that was signed by the Court. The Order appointed a special master to resolve all issues concerning the Consent Agreement that was entered on July 31, 1998. The Court also ordered the Defendant to make a $10,000 contribution to a non-profit organization of her choosing by December 31, 2009, so long as the donation is used by said organization to benefit the environment or otherwise promote environmental education. On February 22, 2010 and March 10, 2010 the matter came before the Court for consideration of the special master's report and recommendation for the campsite restoration. The special master recommended that approximately 35 feet of the Perimeter Wetland be restored and that the Defendant be allowed to apply for a permit from RIDEM to maintain alterations within the remaining 15 feet of the Perimeter Wetland. On April 7, 2010 the Court issued an Order to Defendant Anna Tillinghast to complete the campsite restoration in accordance with the special master's report as soon as possible. The special master was authorized to submit an application to RIDEM for the remaining 15 feet of alteration within the Perimeter Wetland. RIDEM inspected the property on June 24, 2010 and determined that the Defendant completed the campsite restoration in accordance with the Order. On November 29, 2010 the matter came before the Court for consideration of the special master's report and recommendation for the replacement wetland. The special master recommended that a 1½ acre wetland be created on the property in three phases and that the special master have the ability to make changes to the final grading based on groundwater monitoring data and other site conditions with review and comment by RIDEM. On December 13, 2010, the Court issued an Order to Defendant Anna Tillinghast to complete the wetland replacement in accordance with the special master's report on or before December 13, 2012.