July 2008 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 2008. This report is intended to inform the public of certain compliance/enforcement activities performed in the preceding month to protect the public's health, safety, welfare and the environment. Formal Enforcement actions are taken to achieve compliance with law/regulations; remediate environmental damage; restore natural resources to appropriate conditions; impose penalties that capture the gravity of the situation and any economic benefit gained by the alleged violator; and deter similar actions in the future. Formal enforcement is generally in the form of a Notice of Violation ("NOV") that alleges certain facts and violations, contains orders to resolve the alleged violations, contains an assessed penalty with supporting documentation regarding what factors RIDEM used to determine the penalty, and, by law, allows a respondent the ability to appeal or contest the NOV to the Department's Administrative Adjudication Division ("AAD"). Since most NOVs are contested cases, RIDEM does not generally discuss the case with the public while the matter is awaiting hearing or pending negotiated settlement. NOVs are subject to release under the Access to Public Records law in Rhode Island. A copy of an individual NOV may be obtained through RIDEM's Office of Customer and Technical Assistance. The OC&I often resolves formal enforcement actions through negotiated settlement agreements prior to hearing before the AAD. Media inquiries should be addressed to Gail Mastrati at 401-222-4700 ext. 2402. Requests for file reviews should be emailed to email@example.com. More information is available at www.dem.ri.gov/programs/customertech/file-review.php. Please note that formal case names appearing in blue text are linked to a PDF version of the unsigned document. Formal Enforcement Actions Issued: July 7, 2008 - OC&I/Solid Waste File No. 2007- 1678 re: RPE Waste Services, LLC for property located at 9 New Kings Factory Road, Assessor's Plat 11A, Lot 002, unit 003 in the Town of Richmond. The Respondent operates a business related to rubbish removal at this location. The OC&I alleges that the Respondent is in violation of Rhode Island's Refuse Disposal Act and RIDEM's Solid Waste Regulation No. 1, Section 1.4.01 pertaining to operating a solid waste management facility without a license. On 5 December 2007, the OC&I conducted an inspection of the facility in response to a complaint. The inspection revealed that Respondent had constructed an earthen ramp at the rear of the facility. The ramp was being used by the Respondent to facilitate the transfer of solid waste from collection vehicles into solid waste roll off containers (transportation units). At the time of the inspection, the Respondent was observed dumping the trash into roll off containers and using other excavation equipment to transfer solid waste into containers. Operating a solid waste transfer station without a license is prohibited by law and regulation. In the NOV, the OC&I ordered the Respondent to cease operating a solid waste management facility and assessed a penalty in the amount of $2,500.00 for Respondent's noncompliance. The Respondent has filed an appeal of the NOV with the AAD.July 7, 2008 - OC&I/AIR File No. 08 - 03 re: Branch River Plastics, Inc. for a facility that Respondent operates at 15 Thurber Boulevard in the Town of Smithfield. The facility is a potential major stationary source of air pollutants subject to federal and RIDEM Air Pollution Control ("APC") Regulations. The OC&I alleges that the Respondent is in violation of APC Regulation No. 9, entitled "Air Pollution Control Permits", and Rhode Island's Clean Air Act. The Respondent is also in possession of an Emissions Cap issued by RIDEM's Office of Air Resources ("OAR") pursuant to APC Regulation No. 29, entitled "Operating Permits". The violation pertains to Respondent's failure to obtain a permit from the OAR for the installation of a continuous polystyrene bead expander, rated at 2,000 pounds per hour, to replace two existing expanders. Expansion of polystyrene beads releases pentane, a volatile organic compound. Based on information provided by the Respondent, the OAR determined that Respondent's continuous polystyrene bead expander with beads containing 6.49% pentane discharges pentane at a rate of about 127 pounds of pentane per hour, and that exceeds the permit requirement threshold of 100 pounds or more per day or 10 pounds or more per hour of an air contaminant as stated in APC Regulation No. 9. The Respondent installed the equipment on or about 4 March 2005 with an initial start up date of 17 April 2006. The OAR discovered the new equipment during an inspection on 22 May 2007. On 5 December 2007, the OAR issued a Notice of Alleged Violation to the Respondent for its failure to obtain the necessary permit. The Respondent has since filed an application with the OAR to obtain a minor source permit for the equipment; however, the Respondent has continued to operate the equipment without first obtaining the permit in violation of Rhode Island's Clean Air Act. In the NOV, the OC&I ordered the Respondent to cease operation of the equipment until a permit has been issued by the OAR and assessed a penalty in the amount of $29,668.00 for Respondent's noncompliance. The Respondent has filed an appeal of the NOV with the AAD.July 7, 2008 - OC&I/Hazardous Waste File No. 2007 - 1298 - HW re: Ashaway Line & Twine, Inc. The Respondent operates a manufacturing plant that produces synthetic racket strings, non-absorbable surgical suture material, specialty industrial cords, and sport strings and line at two properties located at 9 Laurel and 24 Laurel Street in the Town of Hopkinton. The OC&I alleges that the Respondent is in violation of RIDEM's Rules and Regulations for Hazardous Waste Management and the Code of Federal Regulations pertaining to the management of hazardous waste that are enforced by RIDEM pursuant to delegated authority granted by the EPA. The violations pertain to Respondent's failure to label each storage container of hazardous waste with the date that accumulation started; failure to include the words "Hazardous Waste" or other words to describe the waste contents within the container; failure to conduct weekly inspections of the areas where hazardous waste is stored to ensure that containers are in good condition and not leaking and maintain inspection logs of the inspections; failure to inspect hazardous waste tanks and related equipment each operating day to ensure the tanks and equipment are in good working order and not leaking; failure to provide annual hazardous waste handling training to company employees who manage hazardous waste; and failure to keep satellite containers of hazardous waste closed except when adding or removing waste. In the NOV, the OC&I ordered the Respondent to achieve compliance with the regulations and assessed a penalty in the amount of $29,000.00 for Respondent's noncompliance. Respondent has filed an appeal of the NOV with the AAD.July 9, 2008 - OC&I/RI State Dam ID #295 re: The Town of Lincoln - Limerock Reservoir Dam. The Town of Lincoln is the owner of property located at Assessor's Plat 27, Lot 2 in the Town of Lincoln. The property includes a water body identified as Limerock Reservoir and a dam and associated spillway identified as Limerock Reservoir Dam No. 295 (the "Dam"). DEM classifies the Dam as High Hazard, which means that a failure or mis-operation of the Dam could result in a probable loss of human life. The OC&I alleges that the Respondent is in violation of the DEM Rules and Regulations for Dam Safety. The violation pertains to the failure to maintain the Dam in a safe condition. On March 17, 2004, OC&I issued a letter informing Respondent that inspections performed by RIDEM's engineering consultant on March 19, 2002 and an inspection performed by OC&I to confirm the consultant's findings on March 1, 2004 revealed that the Dam was unsafe. OC&I recommended that the Respondent complete further investigation and repair of the Dam as soon as possible. On April 4, 2005, OC&I issued a Notice of Intent to Enforce ("NOIE") to the Respondent. The NOIE required the Respondent to inspect the Dam at least once per week and at least once following every rain event of greater than two (2) inches; to assure that the primary and emergency spillways are clear of debris; and to submit to OC&I a report prepared by a registered professional engineer that describes how the Dam will be made safe. On October 4, 2005, OC&I received a report prepared by Respondent's engineering consultant. The report stated that the Dam was inaccessible, provided no benefit to Lincoln, exceeded its original design life and was nearing the practical design life for a corrugated metal pipe spillway, was deteriorated to a point where it was in poor condition and that it posed a risk to the downstream area. The report identified specific short term actions to decrease the potential for a failure of the Dam and recommended removal of the Dam as the best alternative for long term action. The Respondent informed OC&I that it intended to pursue the short and long term actions in the report. On March 10, 2006, OC&I advised the Respondent in a letter of a concern with the lack of progress in addressing the short term actions in the report. On October 3, 2006, OC&I issued a letter of noncompliance to the Respondent for its failure to complete the short term actions associated with the emergency spillway. On January 23, 2007, OC&I received a memorandum from Respondent's consultant stating that the work on the emergency spillway was completed. On December 17, 2007, OC&I received a letter from the Respondent informing OC&I that a number of studies were completed and that a schedule for submission of plans to the Freshwater Wetland Permitting Program ("FWWP") would be forthcoming. To date, the Respondent has not submitted an application to FWWP to permanently lower the height of the Dam (the alternative recommended by Respondent's consultant) so that the Dam no longer would pose a safety risk. OC&I considers the Dam unsafe for the following reasons: areas of tree stumps are present within the embankment; areas of erosion and seepage are present along the downstream embankment; the primary spillway is a corrugated metal pipe and deformation has reduced the pipe inlet height from 48 inches to 38 inches; and the primary spillway is susceptible to blockage from debris. In the NOV, OC&I ordered the Respondent to complete the work to install the scour protection along the toe of the dam identified in the short term actions of the report and submit an application to the OC&I for repair of the Dam. OC&I assessed an administrative penalty totaling $1,000.00 (maximum authorized by law) and a continuing penalty of $1,000 per day for every day the Respondent fails to comply with the ordered actions.July 9, 2008 - OC&I/Solid Waste File No. 07 - 010 re: Laura A. Kulsic, Jin Reid Kulsic, Aaron Robert Kulsic, and Keith John Kulsic for property located at 551 Victory Highway, Assessor's Plat 7, block 3, Lot 1 in the Town of Exeter. The OC&I alleges that the Respondents are in violation of Rhode Island's Refuse Disposal Act. The violation pertains to as much as 888 cubic yards of solid waste deposited on the property without approval or authorization for disposal from the RIDEM. The waste consisted of scrap lumber, discarded furniture, tree waste, construction & demolition debris, white goods, above ground tanks, scrap metal, wire, abandoned trailers, scrap equipment, household refuse and other mixed solid waste. The OC&I issued a Letter of Noncompliance ("LNC") to the Respondents on 25 September 2006. The Respondents removed some waste in response to the LNC but did not comply with the deadline requiring the removal of all accumulated solid waste. On 29 January 2007, the OC&I issued a Notice of Intent to Enforce ("NOIE") to the Respondents giving the Respondents 90 days to remove all waste. Inspections by the OC&I on 11 April, 30 May, and 14 December 2007 revealed that the Respondents have removed some waste but continue to have as much as 585 cubic yards of waste on the property. In the NOV, the OC&I ordered the removal of all solid waste from the property within an additional 90 days and assessed a penalty in the amount of $3,500.00. The Respondents have filed an appeal with the AAD. Formal Enforcement Cases Settled or Resolved: July 2, 2008 - OC&I/LUST File No. 06 - 3960 re: 168 Florence Drive, LLC, Thomas Tracy, Jr. & Edward Guerin, Jr. for property located at 168 Florence Drive, Assessor's Plat 27, Lot 63 in the City of Woonsocket. The Property is the site of the former Florence Dye and Textile, Inc. There were two 23,500-gallon heating oil USTs on the property that had been abandoned for several years and were removed on or about June 9, 2005. On October 25, 2006, the OC&I issued an NOV to Respondents alleging that the Respondents violated Rhode Island's Water Pollution Act, Oil Pollution Control Act, RIDEM's Oil Pollution Control Regulations, Groundwater Quality Regulations and RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials, ("the UST Regulations"). The violations pertained to the subsurface petroleum contamination of both soil and groundwater discovered within the tank graves on the property, Respondents' failure to comply with temporary storage and removal requirements for oil spill cleanup debris, failure to properly and permanently close USTs that have been abandoned for longer than 180 days, failing to submit a Site Investigation Report ("SIR") as required, and failure to submit a transfer of certificate of registration to DEM prior to transferring ownership of the facility. In the NOV, the Respondents were ordered to remove and properly dispose of contaminated soil excavated from the property during the tank closure and to complete a SIR for the property including a Corrective Action Plan if required by findings in the SIR. OC&I assessed a penalty in the amount of $40,502.00. Respondents 168 Florence Drive, LLC and Edward Guerin, Jr. filed a request for a hearing before the AAD. Respondent Thomas Tracy, Jr. did not file a request for a hearing. Prior to an administrative hearing with Respondent 168 Florence Drive, LLC or proceeding to Superior Court to enforce the NOV against Thomas Tracy, Jr., Respondents 168 Florence Drive, LLC and Thomas Tracy, Jr. and the OC&I executed a Consent Agreement on February 26, 2008 to resolve their portion of the NOV. That Consent Agreement did not resolve any allegations made in the NOV against co-Respondent Edward Guerin, Jr. On July 2, 2008 the OC&I and Respondent Edward Guerin, Jr. executed a Consent Agreement to resolve the remaining issues of the NOV. Since Respondent 168 Florence Drive, LLC and Thomas Tracy, Jr. agreed to pay a penalty in the amount of $17,500.00 and resolve all performance-related matters to remediate the property, the remaining issue was resolution of the penalty assessed against Edward Guerin, Jr. Respondent Guerin agreed to pay a penalty in the amount of $8,500.00. The OC&I agreed to allow the penalty to be paid in installments, with $1,700.00 paid upon execution of the Consent Agreement and the remaining penalty of $6,800.00 to be paid in 4 monthly payments of $1,700.00 each.July 3, 2008 - OC&I/UST File No. 06 - 03419 re: Mutual Properties 1245 Jefferson, LLC ("Mutual") and S B Automotive Enterprises, LLC ("SB") for property located at 1245 Jefferson Boulevard, Assessor's Plat 268, Lot 241 in the City of Warwick. Respondent SB was the owner of the property from 29 April 2003 until 28 December 2005. Respondent Mutual is the owner of the property as of 28 December 2005. Respondent Mutual is the owner and operator of one 3,000-gallon UST on the property. On January 18, 2007 the OC&I issued an NOV alleging that the Respondents violated RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials, ("the UST Regulations"). The violations pertained to the abandonment of a UST and failing to permanently close a UST that was removed from service for more than 180 days. In June of 2003, a representative of Respondent SB informed the DEM that the UST on the property had been out of service since Respondent SB purchased the property. The representative of Respondent SB was informed that abandonment of USTs was prohibited by the UST regulations and that the tank must be removed from the ground and the UST site permanently closed. On 28 December 2005, the OC&I issued a NOV to Respondent SB for violating UST Rule 8.03 when Respondent SB failed to comply with the UST self-certification requirements for UST facilities. Respondent SB failed to file an appeal of the NOV and failed to comply with the requirements of the NOV. On 28 December 2005, Respondent Mutual took title to the property. Respondents Mutual and SB failed to submit a Transfer of Certificate of Registration to the DEM pursuant to UST Rule 16.00. The UST on the property remained in an abandoned state since at least April 2003. In the NOV, the OC&I ordered Respondent Mutual to permanently close the UST on the property and assessed a penalty in the amount of $4,000.00. Respondent Mutual filed an appeal of the NOV with the AAD. Respondent SB did not request a hearing. The hearing was held on February 4, 2008, and a Final Agency Order was issued by the Director on July 3, 2008. In the Final Agency Order, the AAD found that Respondent Mutual removed the UST following issuance of the NOV; found that OC&I proved the violations against Mutual; found that OC&I properly assessed a Type I penalty for the violations; but found that OC&I did not prove the evidence to support imposition of joint and several liability against Mutual Properties. Thereafter, AAD determined the $4,000.00 penalty assessed against Respondent Mutual to be excessive and reduced the penalty to $2,500.00. The Final Agency Order requires Respondent Mutual to pay the penalty within 30 days.July 24, 2008 - OC&I/UST File No. 05-03431 re: Marcy T. Dunbar Bachini, Lori P. Cubellis and John D. Cubellis for the Homestead Service Station located at 837 Narragansett Avenue, on Prudence Island, Assessor's Plat 77, Lot 113 in the Town of Portsmouth. On April 8, 2005, the OC&I issued an NOV alleging that the Respondents violated RIDEM's UST Regulations. The Respondents are/were the owners and operators of one 2,000-gallon gasoline UST located on the property. The violations pertained to the failure to compile inventory control records for the UST consistent with the UST Regulations for a three year period from October 2001 through October 2004 and for a period of greater than five years from January 1998 through September 2004 as required by an Amended Consent Agreement executed to resolve a previous enforcement action, failure to perform tank tightness testing for the UST during the years 2001 and 2003, failure to perform monthly testing of the facility's continuous leak detection monitoring system ("CMS") from October 2001 through October 2004, failure to perform annual testing of the CMS during the years 1999 through 2003, and failure to label the fill port for the UST to identify the material stored inside the tank. In the NOV, the OC&I ordered the Respondents to achieve compliance with the UST Regulations and assessed a penalty in the amount of $18,624.00. Respondents filed an appeal of the NOV with the AAD. Prior to hearing, the OC&I and the Respondents executed a Consent Agreement to resolve the enforcement action. The Respondents permanently closed the UST on the property and replaced the UST with an above ground storage tank. The OC&I agreed to reduce the penalty assessed in the NOV based upon Respondents' financial inability to pay the full penalty. The Respondent agreed to pay $5,200.00. The OC&I further agreed to allow the Respondents to pay $1,000.00 within 30 days of execution of the Consent Agreement and to pay the remaining $4,200.00 in 24 equal and consecutive monthly installments of $175.00 each. Superior Court Actions Issued: None issued this month. Superior Court Actions Settled or Resolved: None settled or resolved this month.