May 2013 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 May 2013. 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:

May 17, 2013 - Underground Storage Tank File No. 2012-103-00578 re: Chaouki Sarkis d/b/a 1074 East Main Road LLC for property located at 1074 East Main Road, Assessor's Plat 58, Lot 3 in the town of Portsmouth. The property includes three underground storage tanks (USTs or tanks) used for the storage of petroleum products. 1074 East Main Road LLC owns the property. 1074 East Main Road LLC is listed as an inactive corporation in Rhode Island's Secretary of State's corporations database. Chaouki Sarkis was the principal of the corporation and its registered agent. The OC&I alleges that the Respondent is in violation of RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). The violations pertain to the abandonment of the USTs and the failure to pay annual registration fees. Upon information and belief, the former facility operator, Ammouri Gas, LLC vacated the property in January 2011 and the facility has remained in an abandoned state since that time. In addition, the Respondent has failed to pay the UST registration fees assessed by the RIDEM since taking title to the property in 2006. The RIDEM issued an informal written notice to the Respondent on December 4, 2012 for the violations. The Respondent failed to respond to or comply with the notice. In the NOV the OC&I ordered the Respondent to permanently close the USTs in accordance with the RIDEM's UST Regulations. The OC&I assessed an administrative penalty of $11,187.00, of which $2,205.00 are for the registration fees.



May 28, 2013 - Freshwater Wetland File No. FW C11-0189 re: Tracey L. Henebury and Michael A. Henebury for property located immediately southwest of Nina Court, adjacent to house number 1, approximately 600 feet southwest of the intersection of Nina Court and Burlingame Road, Assessor's Plat 23, Lots 93, 94, and 95 in the city of Cranston. The Respondents own Lot 94. John Prescott Farms LLC owns Lots 93 and 95. The OC&I alleges that the Respondents are in violation of Rhode Island's Freshwater Wetlands Act and the RIDEM's Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertain to clearing and filling (in the form of at least soil material) within Swamp and clearing, filling (in the form for at least boulders and soil material) and constructing retaining walls within Perimeter Wetland and Riverbank Wetland on the property. This activity resulted in the unauthorized alteration of approximately 9/10th of an acre of freshwater wetland. On December 16, 2011 and August 15, 2012 the OC&I inspected the property and documented the violations. In 2011 the OC&I met with the Respondents to discuss the violations and issued a letter to the Respondents' attorney that described specific actions to resolve the violations. On November 1, 2012 the OC&I received a plan to restore the wetlands (Proposed Wetland Restoration Plan). In the NOV, the OC&I ordered the Respondents to cease and desist from any further alteration of the freshwater wetlands and restore the altered wetlands in accordance with the Proposed Wetland Restoration Plan, with some modifications on the required plantings. The OC&I assessed an administrative penalty of $4,200.00.

Formal Enforcement Cases Settled or Resolved:

May 1, 2013 - Multi Media/Solid Waste and OWTS/File Nos. SW 2011-03 and OWTS CI 09-007 re: Diana D. Burdett for a property located at 901 Mooresfield Road, Assessor's Plat 17, Lot 17 in the town of South Kingstown. The property includes a two bedroom single family dwelling. An onsite wastewater treatment system (OWTS) treats the wastewater from the toilets, showers, and sinks for the dwelling (Main OWTS). A separate OWTS treats the laundry wastewater from the dwelling (Laundry OWTS). The Respondent formerly owned the property. On May 5, 2011 the OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Refuse Disposal Act and RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems (OWTS Regulations). The solid waste violation pertained to the depositing of approximately 90 cubic yards of solid waste on the ground (consisting of used tires, junk automobiles, broken boat parts, wood waste, steel tanks, used appliances, carpeting, plastic waste, barrels, drums, household refuse, and other mixed solid waste). The OWTS violations pertained to the discharge of wastewater from the Main OWTS and Laundry OWTS to the surface of the ground. In the NOV, the OC&I ordered the Respondent to properly dispose of the solid waste, cease the discharge of wastewater to the surface of the ground from the Main OWTS, cease use of the washing machine at the dwelling until the Laundry OWTS is repaired, and repair the failed OWTSs in accordance with the OWTS Regulations. The OC&I assessed an administrative penalty of $4,200.00. The Respondent filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the property was foreclosed and acquired by Russell Koza and Kelly Jarvis (Current Owners). Mr. Koza was the Respondent's tenant at the property and was aware of the NOV prior to acquiring the property. The OC&I issued a separate NOV to the Current Owners for the violations. As the Respondent is no longer responsible for resolving the violations that are the subject of this NOV, the OC&I rescinded the NOV.



May 10, 2013 - Dam File No. 46 (Slatersville Reservoir Middle Dam) re: Dudley Development Corporation for property located southwest of the intersection of Main Street and Providence Pike, south of Main Street and west of Church Street, in the town of North Smithfield. The property includes a dam and associated spillway. The dam is classified by RIDEM as High Hazard. The Respondent owns the dam. On April 1, 2011 the OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Rules and Regulations for Dam Safety. The violation pertained to the failure of the owner to maintain the dam in a safe condition. The dam was inspected on November 12, 2009. The inspection revealed an inoperable low level gate. In the NOV, OC&I ordered the Respondent to repair the low level gate. The OC&I did not assess an administrative penalty. The Respondent filed an appeal of the NOV with AAD. On October 23, 2012 an administrative hearing was held on the appeal of the NOV. On May 10, 2013, the AAD hearing officer issued a Decision and Order. The hearing officer found that OC&I did not meet its burden of proving by a preponderance of the evidence that the Respondent failed to maintain the dam in a safe condition and upheld the Respondent's appeal.



May 14, 2013 - Freshwater Wetlands File No. C06-0004 re: Keach Framing, Inc. for property located approximately 50 feet west of Old Widow Sweets Road and approximately 350 feet south of the intersection of Widow Sweets Road and Chapel Place Lane, Assessor's Plat 22, Block 4, Lot 7 in the town of Exeter. The property was previously owned by Alice Eliason. RIDEM issued a wetland permit to Ms. Eliason on December 10, 2004 to construct a 3 bedroom dwelling. The Respondent purchased the property on January 3, 2005 and constructed the dwelling. The property is currently owned by Devin J. McLaughlin. On September 5, 2006 the OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Freshwater Wetlands Act and RIDEM's Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to clearing, filling (in the form of at least soil material and stones), and constructing a retaining wall within Riverbank Wetland (associated with the construction of the 3 bedroom dwelling) that resulted in the unauthorized alteration of approximately 2,500 square feet of wetland and clearing and filling (in the form of a thick layer of woodchips) within Riverbank Wetland that resulted in the unauthorized alteration of approximately 1,260 square feet of wetland. In the NOV, OC&I ordered the Respondent to restore the altered wetlands. The OC&I assessed an administrative penalty of $6,250.00. The Respondent filed an appeal of the NOV with AAD and filed a complaint in Superior Court, which stayed the appeal. The Respondent's request for injunctive relief in Superior Court was denied and that decision was upheld by the Supreme Court. Prior to an administrative hearing on the NOV, the OC&I and the Respondent executed a Consent Agreement to resolve the NOV. The Respondent agreed to restore the altered wetlands by July 1, 2013 in accordance with a plan that was submitted to the OC&I dated March 27, 2013. The Respondent also agreed to pay an administrative penalty of $4,500.00 in eleven (11) payments. The first payment of $500.00 was paid upon execution of the Agreement. The remaining payments of $400.00 will be paid in consecutive monthly installments on the first of the month.



May 28, 2013 - Freshwater Wetland File No. FW C11-0067 re: Mark DePasquale for property located approximately 1,340 feet northeast of the intersection of Roberts Way and Ten Rod Road (Route 102) and 1260 feet north of the intersection of Thornton Way and Rodman Lane within a residential development known as North Kingstown Green in the town of North Kingstown. The property is also referred to as a portion of Assessor's Plat/Map 113, Lot 23. On September 7, 2006 the RIDEM issued a permit to North Kingstown Green LLC to construct North Kingstown Green. The permit was issued to the Respondent as a member of North Kingstown Green LLC. The permit did not authorize the alteration of any freshwater wetlands on the property. On August 10, 2012 the OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Freshwater Wetlands Act and the 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 at least wood chips) within Swamp and Perimeter Wetland. This activity resulted in the unauthorized alteration of approximately 9,600 square feet of freshwater wetland. In the NOV, the OC&I ordered the Respondent to cease and desist from any further alteration of the freshwater wetlands and restore the altered wetlands. The OC&I assessed an administrative penalty of $12,000.00. The Respondent filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the OC&I and the Respondent executed a Consent Agreement to resolve the NOV. The Respondent agreed to restore the altered wetlands by May 31, 2013 and pay an administrative penalty of $9,000.00, which was paid upon execution of the Agreement.

Superior Court Actions Issued:

None issued this month.

Superior Court Actions Settled or Resolved:

May 28, 2013 - Solid Waste File No. 2007 1517 SW and SW 07-02 and Superior Court File No. PC 12-6644 re: Plaintiff, Janet Coit, Director, RIDEM vs. Defendants James and Melissa Pelletier for property located at Crandall Road, Assessor's Plat 128, Lot 4N in the town of Tiverton. The property is owned by the Defendants. On August 31, 2009 the OC&I issued an NOV to the Defendants alleging that the Defendants violated Rhode Island's Refuse Disposal Act and the RIDEM's Rules and Regulations for Composting Facilities and Solid Waste Management Facilities. The violations pertained to the unauthorized disposal of solid waste (in the form of composted tree waste, yard waste and manure) and the unauthorized operation of a composting facility on the property. Inspections of the property by the OC&I in February 2007 and November 2007 revealed the unauthorized disposal of solid waste and the unauthorized operation of a leaf and yard waste composting facility. In the NOV, the OC&I ordered the Defendants to immediately cease the disposal of solid waste, immediately cease operating a composting facility, and properly remove all solid waste. The OC&I assessed an administrative penalty of $17,000.00. The Defendants filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the OC&I and the Defendants executed a Consent Agreement to resolve the NOV. The Defendants agreed to stop accepting and composting any additional leaf and yard waste and/or take any action to increase the amount of compost material in the form of leaf and yard waste beyond that which is already present on the property effective June 27, 2011, and that no additional leaf and yard waste will be accepted or composted and no action will be taken to increase the amount of compost material in the form of leaf and yard waste beyond that which is already present on the property unless and until such time as the Defendants obtain the RIDEM's approval to commence leaf and yard waste composting on the property in the form of either an Agricultural Composting registration or other appropriate registration, license or permit issued by the RIDEM. The Defendants also agreed to spread all the composted material on the property (approximately 916 cubic yards) across the property by June 30, 2012 in an effort to reclaim lost topsoil unless the Defendants obtain the RIDEM's approval to commence leaf and yard waste composting on the property, in which case the composted material shall be used in the manner that is consistent with the approval. The Defendants also agreed to pay a penalty of $13,000.00. The Defendants agreed to pay $6,500.00 and perform a Supplemental Environmental Project (SEP) valued at $6,500.00. The SEP involves the following activities: reduction of truck traffic to and from the property; restriction of sales at the property; use of compost generated on the property solely on the property to reclaim lost topsoil and in conjunction with the growth and harvesting of nursery trees; creation of a 100 foot landscaped setback area from the street; and creation of a 75 foot buffer on all sides of the property. The Defendants paid the penalty of $6,500.00. On July 12, 2012 the OC&I inspected the property. The inspection revealed that the Defendants failed to spread all the composted material on the property and failed to complete the SEP. On July 27, 2012 the OC&I issued a letter of noncompliance to the Defendants. No response to the letter was received from the Defendants or their counsel. On September 6, 2012 the OC&I inspected the property. The inspection revealed that the conditions remained largely unchanged. On November 26, 2012 the OC&I issued another letter to the Defendants that required the Defendants to attain compliance with the Consent Agreement. No response to the letter was received from the Defendants or their counsel. On December 26, 2012 the OC&I inspected the property. The inspection revealed that the conditions remained largely unchanged. On December 31, 2012, the OC&I filed a petition to enforce the Consent Agreement in Superior Court against the Defendants. In its petition, the OC&I asked the Court to order the Defendants to comply with the Consent Agreement. Prior to a hearing on the petition, the Defendants removed the composted material from the property and agreed to pay $5,000.00 to the OC&I to resolve the SEP and the issues of noncompliance with the Consent Agreement. On May 28, 2013 the agreement was formerly signed by the judge and the $5,000.00 was paid to the OC&I, thereby resolving the case.