July 2005 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 July 2005. 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: July 5, 2005 - OC&I/UST File No. 05-00673 re: Park Avenue Gasoline Station, Inc., Peter J. Rocchio, and Marie C. Rocchio for property located at 1025 Park Avenue, Assessor's Plat 6, Lot 1865 in the City of Cranston. Respondents Peter J. Rocchio and Marie C. Rocchio are the owners of the property. Respondent Park Avenue Gasoline Station, Inc., is the operator of a gasoline dispensing facility on the property. The facility has three registered USTs consisting of an 8,000-gallon UST and two 6,000-gallon USTs. 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 the Respondents' failure to register two additional USTs on the property consisting of a waste oil UST and a UST used for the storage of No. 2 heating oil, failure to upgrade the waste oil UST consistent with the corrosion protection requirements of the UST Regulations, failure to compile inventory control records for the three gasoline USTs for a period of three years, failure to perform tank tightness testing for the three gasoline USTs for the years 1998 and 2003, failure to monitor the product piping line for a 6,000-gallon UST for leaks through use of the facility's continuous monitoring system ("CMS"), failure to perform annual functionality testing of the line leak detectors for the three gasoline USTs from 1995 through 2004, failure to perform monthly testing of the CMS from 2002 through 2005, failure to perform annual certification/testing of the CMS from 1995 through 2004, failure to maintain spill containment basins for the waste oil tank and heating oil tank or to keep the spill containment basins for the three gasoline USTs clean of liquids and solid debris and failure to upgrade the tank pad observation well pursuant to the UST Regulations. The OC&I ordered the Respondents to comply with the UST Regulations and assessed an administrative penalty in the amount of $26,670.00.July 27, 2005 - OC&I/Septic System File No. CI02-0023 re: Hog Island Water Association, Inc. and Hog Island Improvement Association for property located at 0 Middle Road, Assessor's Plat 69, Lot 169 in the Town of Portsmouth. The Property is owned by Hog Island Water Association (HIWA) and is leased to Hog Island Improvement Association (HIIA) and includes a building used as a recreation hall. OC&I alleges that the Respondents are in violation of the Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction, and Maintenance of Individual Sewage Disposal Systems ("the ISDS Regulations"). The violation pertains to installation of a kitchen sink in the recreation hall and the discharge of gray water from the sink into a subsurface disposal system for which no permit was issued by RIDEM. OC&I issued a Notice of Intent to Enforce (NOI) to the Respondents on March 19, 2002. In the NOI the Respondents were required to cease the discharge until a permanent solution to the violation was approved by RIDEM and either remove the sink and subsurface system or apply for a permit from RIDEM for an approved subsurface system. The Respondents failed to comply with the NOI. In the NOV the Respondents were ordered to immediately cease the discharge and either remove all water supply and waste piping from the recreation hall and fill in the subsurface disposal system or submit a formal application from a licensed designer for a septic system for the sink discharge. OC&I assessed a penalty in the amount of $800.00.July 27, 2005 - OC&I/Septic System File No. CI03-131 re: Stephen C. Gressak for property located at 179 Lake Drive, Assessor's Plat PLB, Lot E, in the Town of Glocester. The Property is owned by Stephen C. Gressak and includes a single-family dwelling. OC&I alleges that the Respondent is in violation of RIDEM's ISDS Regulations. The violation pertains to a failed septic system on the Property. OC&I issued a Notice of Intent to Enforce (NOI) to the Respondent on December 17, 2003. In the NOI the Respondent was required to immediately take steps to reduce the discharge of sewage and submit a plan to RIDEM to repair the failed system, including the submittal of an application by a licensed designer. The Respondent failed to comply with the NOI. In the NOV the Respondent was ordered to immediately take steps to reduce the discharge of sewage to the septic system and submit a written proposal for a permanent solution to the violation, which must include an inspection, by a licensed designer to determine the cause of the failure and submittal of an application to repair the system, if necessary. OC&I assessed a penalty in the amount of $600.00.July 28, 2005 - OC&I/Site Remediation File No. 05-01 re: Getty Petroleum Marketing, Inc., Power Test Realty Company Limited Partnership and Getty Properties, Corporation for property located at Dunellen Road and Dexter Road, Assessor's Map 204, Block 1, Parcels 9, 11 and 15 in the City of East Providence. Capital Terminal Company ("CTC") is the owner of Parcel 15. Respondent Power Test Realty Company Limited Partnership ("PTR") is the owner of Parcels 9 and 11. Respondent Getty Properties Corp. ("GPC") is the owner of petroleum pipelines that are installed on Parcels 9 and 11. Respondent Getty Petroleum Marketing, Inc. ("GPM") is the operator of the petroleum pipelines installed on Parcels 9 and 11. The petroleum pipelines extend east and west of Parcels 9 and 11 across easements and other parcels owned by Respondent PTR. The OC&I alleges that the Respondents are in violation of Rhode Island's Water Pollution Act and Oil Pollution Control Act as well as RIDEM's Oil Pollution Control Regulations, Groundwater Quality Regulations, Water Quality Regulations and the Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases ("the Remediation Regulations"). The violations pertain to the release of light non-aqueous phase liquid ("LNAPL") in the form of gasoline from the petroleum pipelines on the property. The release of petroleum product has resulted in pollutants entering the land and waters of the state of Rhode Island. The RIDEM issued a Letter of Responsibility ("LOR") to the Respondents on December 2, 2002 advising Respondents of the release and presence of separate phase petroleum in groundwater on Parcel 15, that the likely source of the petroleum was the abutting pipeline controlled by Respondents and that Respondents were required to perform a site investigation to determine the nature and extent of contamination and that Respondents needed to evaluate and propose a remedy for the problem to be submitted to RIDEM on or before February 1, 2003. The Respondents failed to comply with the LOR. RIDEM issued a Notice of Intent to Enforce ("NOIE") to the Respondents on July 21, 2003. Following receipt of the July 2003 NOIE, Respondent GPM notified RIDEM of their intention to comply with the requirements of the NOIE. Respondent GPM commenced to comply with the July 2003 NOIE but failed to submit the completed studies, work plans and action plan required in the NOIE. On December 18, 2003 RIDEM issued a second NOIE to GPM and CTC that required compliance to address the violations on the properties. Based upon interim investigations completed as of January 21, 2005, LNAPL ranging in thickness of 1.45 to 2.54 feet was found in groundwater monitoring wells on or near parcel 11, from .02 feet to 2.42 feet in six groundwater-monitoring wells on parcel 15 and from .02 to .81 feet in two monitoring wells on adjacent parcel 10. This report showed an increase in thickness and spread of LNAPL as compared to previous reports. As of the issuance of the NOV, Respondents failed to submit a Site Investigation Report ("SIR"), an SIR checklist and a Short Term Response Action proposal as required by the LOR, the July 2003 NOIE and December 2003 NOIE and otherwise failed to comply with the requirements of the Site Remediation Regulations and the Oil Pollution Control Regulations. In the NOV, OC&I ordered the Respondents to comply with both sets of Regulations in the submission of required studies, a response plan and a final remediation of the properties/site. A penalty in the amount of $50,000.00 was assessed in the NOV.July 29, 2005 - OC&I/UST File No. 05-03973 re: Stratford House Associates Limited Partnership and Woloohojian Realty Corp. for property located at 675 Elmwood Avenue Assessor's Plat 52, lot 473 in the City of Providence. The OC&I alleges that the Respondents are in violation of Rhode Island's Water Pollution Act, Oil Pollution Act, RIDEM's Regulations for Groundwater Quality, Oil Pollution Control Regulations, UST Regulations and Remediation Regulations. The violations pertain to the release of hazardous materials/pollutants in the form of dry cleaning solvent, fuel oil and gasoline from USTs or tanks that have been abandoned at the property into the land and waters (groundwater) of the state. On March 29, 2000, RIDEM issued a Letter of Responsibility ("LOR") to the Respondents after receiving reports concerning abutting and down-gradient properties that identified the presence of hazardous substances in groundwater on those properties. The LOR required the Respondents to perform a site investigation and to bring the property into compliance with the Remediation Regulations. On September 14, 2000 RIDEM received a Site Investigation Report from the Respondents that revealed the presence of at least five USTs on the property. The USTs were used for the storage of Varnolene and gasoline. Laboratory analysis of soil samples at the time revealed concentrations of total petroleum hydrocarbons ("TPH") exceeding the Residential and Industrial Direct Exposure Criteria and the GB Leachability Criteria set forth in the Remediation Regulations. Benzene above the GB Groundwater Objectives was also found. Additional information provided on August 2, 2001 showed that laboratory analysis of ground water samples from the property revealed concentrations of benzene, tetrachloroethene, trichloroethane and 1,1- dichloroethene above the GB Groundwater Objectives set forth in the Remediation Regulations. On October 10, 2001, the RIDEM notified the Respondents that any USTs on the property that were still in use must be registered and that any abandoned USTs on the property must be permanently closed in accordance with the UST Regulations. The Respondents submitted a Permanent Closure Application for USTs on October 25, 2001 but did not complete the closure of the USTs on the property. The Respondents continued to advise RIDEM that they were in the process of obtaining bids to conduct all work on the property. On February 6, 2004 the RIDEM issued a Letter of Noncompliance to the Respondents requiring that they bring the property into compliance with the Remediation Regulations no later than March 5, 2004. On the same date, RIDEM notified the Respondents that they were required to achieve compliance with the UST Regulations by permanently closing the USTs on the property and conducting any and all clean up requirements in accordance with the UST Regulations. The Respondents failed to comply with RIDEM's notices of February 6, 2004. In the NOV, the OC&I ordered the Respondents to comply with all requirements of the Remediation Regulations and the UST Regulations regarding the remediation and clean up of the property. The OC&I assessed a penalty in the amount of $65,829.00 for Respondents' noncompliance. Formal Enforcement Cases Settled or Resolved: July 18, 2005 - OC&I/LUST File No. 99-0835 re: C&M Realty, Inc. and Forte Brothers, Inc. for property located at 14 Whipple Street, Assessor's Plat 34, Lots 77, 78, 79, 80, 81, 82, 87, 88, 89, 90, and 91 in the Town of Cumberland. On December 6, 1999 the OC&I issued a NOV to the Respondents alleging that the Respondents violated Rhode Island's Water Pollution Act, Oil Pollution Control Act, RIDEM's UST Regulations, Groundwater Quality Regulations, and Oil Pollution Control Regulations. The violations pertained to the release of pollutants to the land and waters (groundwater) of the state in the form of total petroleum hydrocarbons ("TPH") and volatile organic compounds ("VOC") from USTs at the property. The contamination was confirmed following the removal of all USTs at the property on or about August 1996. The RIDEM advised the Respondents on several occasions of the need to conduct an expanded site investigation report to determine the extent of contamination on the property and the scope of remediation efforts needed to resolve the problem. The Respondents did remove approximately 685 tons of petroleum-contaminated soil from the property. Despite approval of numerous extension requests made by the Respondents, the Respondents failed to submit the required expanded site investigation report and failed to take appropriate actions to complete full remediation of the contamination at the property. In the NOV, the OC&I ordered the Respondents to conduct the necessary studies to identify the extent of contamination and to prepare and carry out a corrective action plan to remediate the property. A penalty in the amount of $49,620.00 was assessed in the NOV. The Respondents filed an appeal of the NOV with the AAD. The Respondents commenced efforts to investigate and monitor the contamination at the property. The RIDEM and the Respondents negotiated a LUST Settlement Agreement & Covenant Not to Sue (SACNTS") with C&M Realty, Inc. as the performing party to address remaining contamination at the property. The SACNTS requires C&M Realty to maintain engineered controls at the property in the form of monitoring and maintenance of impervious surfaces to insure that any residual contamination does not present a threat to human health or the environment through exposure or migration. The SACNTS also requires C&M Realty to record a Declaration of Environmental Land Usage Restrictions ("ELUR") and a Soil Management Plan ("SMP") into the land evidence records as institutional controls restricting how the property may be used and requiring disturbed soil and groundwater to be properly managed. In order to resolve the NOV, the OC&I and the Respondents executed a Consent Agreement. The Consent Agreement requires that C&M Realty abide by the SACNTS and provides for stipulated penalties in the event of noncompliance. The Respondents agreed to pay a penalty in the amount of $30,770.00. The penalty has been paid in full.July 20, 2005 - OC&I/UST File No. 04-00479 re: Overnite Transportation Company for property located at 617 George Washington Highway, Assessor's Plat 28, Lot 12, in the Town of Lincoln. On May 7, 2004 the OC&I issued a NOV to the Respondent alleging that the Respondent violated RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials ("the UST Regulations"). The violations pertained to Respondent's failure to properly comply with the UST Regulations regarding continuous monitoring of the interstitial space of double-walled USTs, inventory record keeping requirements for UST systems, line tightness testing requirements, monthly and annual testing requirements for UST continuous monitoring systems and maintenance of test records. In the NOV, OC&I ordered the Respondent to comply with the applicable UST Regulations and assessed an administrative penalty in the amount of $23,854.00. The Respondent did not file an appeal of the NOV to the AAD. In lieu of proceeding to Superior Court to enforce the NOV, the OC&I and the Respondent executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to achieve compliance with the UST Regulations by a date certain and agreed to pay a penalty in the amount of $13,040.00. The OC&I allowed the Respondent to pay $4,040.00 of the penalty upon execution of the Consent Agreement and the remaining portion of the penalty in 24 monthly installments of $375.00.July 25, 2005 - OC&I/Septic System License No. L0734 re: James Cawley for property located at 121 Greene Lane, Assessor's Plat 105, Lot 15B in the Town of Middletown. On June 5, 2001 OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island General Laws, Section 5-56-1 relating to requirements for licensed septic system installers and Section SD 2.01(a) of the Rules and Regulations Establishing Minimum Standards relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems. The violations pertained to altering and repairing an existing septic system without approval from the Director. In the NOV OC&I ordered that License No. L0734 issued to the Respondent be revoked. OC&I assessed a penalty in the amount of $1,000.00. The Respondent failed to file an appeal of the NOV with AAD, so his license was revoked. The Respondent refused to pay the penalty. OC&I retained a private collection agency to collect the unpaid penalty, and the full penalty of $1,000.00 was paid.July 25, 2005 - 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: Charbert, Division of 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 is owned by the Respondent and includes a textile manufacturing facility (the Manufacturing Facility) that is currently operated by the Respondent. The Property includes three wastewater lagoons that were constructed with DEM approval to allow process wastewater from the Manufacturing Facility to infiltrate into the underlying soil (the Wastewater Lagoons). On August 13, 2004 OC&I issued an NOV to the Respondent alleging that the Respondent violated multiple environmental statutes and DEM 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 included 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). In the NOV the Respondent was 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. The Respondent filed an appeal of the NOV with AAD. The Town of Richmond petitioned AAD to intervene in the hearing. AAD, without objection from OC&I, granted Richmond's petition to intervene. The Respondent completed the following actions to comply with the NOV: ceased further alterations of freshwater wetlands; ceased further use of the fourth wastewater lagoon; installed drinking water well treatment systems for 3 residential dwellings on River Street in Richmond; repaired the opacity monitors and audio alarms for the boiler and oil heater; took steps to control and prevent objectionable odors beyond the property line; and submitted a Soil Reuse Plan for reuse of the Lagoon Scrapings, which was approved by DEM. Prior to a hearing on the NOV, the Respondent and OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to take the following major actions: submit a report to DEM evaluating the feasibility of alternatives for the treatment of wastewater generated at the Property; construct a new wastewater treatment system if the Respondent determines it is feasible; properly close the fourth wastewater lagoon; restore all altered freshwater wetlands; reuse the Lagoon Scrapings for the closure of the fourth lagoon to facilitate restoration of the freshwater wetlands; repair the failed ISDS; and complete the groundwater investigation. The Respondent also agreed to pay the full administrative penalty of $9,500.00, which was paid to DEM. Superior Court Actions Issued: July 20, 2005 - OC&I/Septic System File No. CI 99-233 and Superior Court File PC05-3692 re: Jill M. Wagner for property located at 2440 Putnam Pike, Assessor's Plat 1, Lot 45 in the Town of Glocester. The Property includes a single-family dwelling. On February 13, 2004 OC&I issued an NOV to the Defendant alleging that the Defendant violated RIDEM's ISDS Regulations. The violation pertained to the discharge of sewage to the surface of the ground from the sewage disposal system for the dwelling. In the NOV the Defendant was ordered to cease the discharge of sewage and repair the failed system. OC&I assessed a penalty in the amount of $1,200.00. The Defendant failed to file an appeal of the NOV with AAD and failed to comply with the NOV. Pursuant to R.I.G.L. 42-17.1-2(u)(5), upon the failure to timely request a hearing after receipt of a NOV, the NOV automatically becomes a Final Compliance Order and is enforceable in the Superior Court. In the Superior Court complaint, Plaintiff Director Sullivan seeks relief including an order to pump the septic system as necessary to prevent overflow, repair the system, and pay the assessed penalty in full. Superior Court Actions Settled or Resolved: July 6, 2005 - OC&I/Septic System File No. CI 03-351 and Superior Court File PC05-2606 re: Gerard Martin for property located at 29 Saranac Street, Assessor's Plat 3, Lot 86 in the Town of North Smithfield. The property includes a single-family dwelling owned by the Defendant. On January 14, 2005, OC&I issued an NOV to the Defendant alleging that the Defendant violated RIDEM's ISDS Regulations. The violation pertained to sewage from the septic system for the dwelling overflowing to the surface of the ground and onto the abutting neighbor's property. In the NOV, OC&I ordered the Defendant to pump the septic system as needed to prevent any and all overflows and submit an application to repair the septic system. OC&I assessed a penalty in the amount of $2,000.00. The Defendant failed to request an administrative hearing on the NOV and failed to comply with the NOV. Pursuant to R.I.G.L. 42-17.1-2(u)(5), upon the failure to timely request a hearing after receipt of a NOV, the NOV automatically becomes a Final Compliance Order and is enforceable in the Superior Court. OC&I received a citizen's complaint on May 18, 2005 that sewage continued to overflow from the septic system onto the neighbor's property. In the Superior Court Complaint, Plaintiff Acting Director Sullivan sought relief including an order to pump the septic system as necessary to prevent overflow, connection to the public sewer system or repair of the septic system, and payment of the assessed penalty in full. On July 6, 2005 a Consent Order was entered by the court requiring the Defendant to pump the septic system as needed to prevent overflows and submit a written proposal to RIDEM within 30 days for a permanent solution to the violation. The court ordered that the penalty be paid in full. The Defendant complied with the court order by paying the $2,000.00 penalty and submitting a proposal to connect to the public sewerage system by October 30, 2005.