November 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 November 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: November 23, 2005 - OC&I/Air File No. 05-06 re: Amstar of Western New Your, Inc. c/o Damon & Morey, LLP for property located in the vicinity of 44 Winnapaug Road, Assessor's Plat 127, Lot 88 in the Town of Westerly. The Property is owned by the Town of Westerly and contains a water tower commonly referred to as the Winnapaug water storage tank. OC&I alleges that the Respondent is in violation of RIDEM's Air Pollution Control ("APC") Regulation No. 24 entitled "Removal of Lead Based Paint from Exterior Surfaces". The Respondent was employed by the Town of Westerly to complete the encapsulation of lead based paint on the Winnapaug water storage tank. APC Regulation No. 24.4.2 requires anyone that is removing lead based paint from any structure other than a building to first submit a plan to RIDEM's Office of Air Resources ("OAR") that describes the procedure(s) to be employed in the removal operation and to obtain a written approval from the OAR before proceeding with the removal of the lead based paint. The OC&I assessed a penalty in the amount of $5,000.00 for Respondent's noncompliance.November 25, 2005 - OC&I/Oil Pollution Control File No. 05-02 re: H.C. Woodmansee & Son, Inc. for property located at 8 Fairview Avenue in the Village of Hope Valley, Assessor's Plat 28, Lot 116 in the Town of Hopkinton. The Respondent is the owner and operator of four aboveground storage tanks ("ASTs") that are located on the property. The OC&I alleges that the Respondent is in violation of RIDEM's Oil Pollution Control Regulations. The violations pertain to Respondent's failure to provide secondary containment for the ASTs for a period of at least ten years. The Respondent was informed during inspections of the ASTs and in writing following the inspections that secondary containment was required for the ASTs. In addition, the Respondent failed to conduct monthly inspections of the ASTs, failed to maintain inspection records and failed to submit annual reports summarizing the monthly inspections of the ASTs. The Respondent did eventually construct the required secondary containment for the ASTs. In the NOV, OC&I ordered the Respondent to submit the missing annual reports for the ASTs for the years 1995 through 2004, begin performing monthly inspections of each AST, begin maintaining inspection records in accordance with the OPC Regulations and submit annual reports as required. A penalty in the amount of $7,500.00 was assessed in the NOV.November 25, 2005 - OC&I/Solid Waste File No. C05-012 re: Gardner C. McLintock for property located at 2670 Ten Rod Road, Assessor's Plat 28, Block 1, Lot 03 in the Town of Exeter. The OC&I alleges that the Respondent is in violation of Rhode Island's Refuse Disposal Act. The violations pertain to the Respondent's disposal of approximately 31,141 cubic yards of solid waste on the property. The solid waste consists of processed wood construction and demolition debris, creosote and pressure treated wood, discarded and deteriorated house trailers, camper trailers, scrap metal, steel tanks, tree wood, tires and other mixed solid waste. By disposing of the solid waste, the OC&I is alleging that the Respondent is operating a solid waste management facility without first obtaining a license from the RIDEM. OC&I further alleges that the Respondent was aware of his responsibilities under the law through prior correspondence issued the Respondent in the past. The Respondent failed to comply with prior informal enforcement actions issued to achieve voluntary compliance. In the NOV the Respondent was ordered to cease operating a solid waste management facility without a license, cease the disposal of solid waste on the property and was ordered to remove all solid waste from the property. OC&I assessed a penalty in the amount of $50,000.00 for Respondent's noncompliance. Formal Enforcement Cases Settled or Resolved: November 14, 2005 - OC&I/Freshwater Wetlands File No. C01-0122 re: Leslie A. Dagesse and Kathye Toppazzini for property located approximately 150 feet south of Harris Avenue; behind house number 55, approximately 400 feet southeast of the intersection of Harris Avenue and Foxx Drive, Assessor's Plat 26, Lot 195 in the Town of Lincoln. On February 17, 2004 the OC&I issued a NOV to Respondents alleging that Respondents violated Rhode Island's Freshwater Wetlands Act and RIDEM's Freshwater Wetland Regulations. The violations pertained to clearing, filling, installing a tennis court, lawn and stone walls, and installing a concrete slab within freshwater wetlands. The activity resulted in the unauthorized alteration of 3,100 square feet of 100-Foot Riverbank Wetland, portions of which are also 50 foot Perimeter Wetland, and an Intermittent Stream. On June 26, 1995 a Notice of Intent to Enforce (NOI) was issued to the Respondents for unauthorized alterations of freshwater wetlands on the Property. The Respondents agreed to restore the freshwater wetlands and did so to the satisfaction of RIDEM. Inspection of the Property on April 24, 2001 and October 3, 2002 revealed that the Respondents caused new unauthorized alterations of the same freshwater wetlands cited in the previous NOI. In the NOV the Respondents were ordered to restore the freshwater wetlands. OC&I assessed a penalty in the amount of $2,000.00. The Respondents filed an appeal of the NOV with the AAD. Prior to hearing, the Respondents and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondents agreed to restore the wetlands on the property before May 15, 2006. The Respondents further agreed to pay the penalty in full plus a plan review fee of $300.00. The penalty and review fee totaling $2,300.00 was paid upon execution of the Consent Agreement.November 16, 2005 - OC&I/Hazardous Waste File No. 02-079 re: Leo E. LeFebvre, Jr. d/b/a Woonsocket Auto Salvage for property located at 1 Madison Avenue, Assessor's Plat 42-O, Lot 396, File 15 in the City of Woonsocket. On July 9, 2004 the OC&I issued a NOV to the Respondent alleging that the Respondent violated RIDEM's Hazardous Waste Regulations and RIDEM's Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases ("the Site Remediation Regulations"). The violations pertained to the Respondent's failure to immediately notify RIDEM in the event of a spill or release of hazardous waste or materials and failure to take immediate steps to prevent, contain and/or clean up the spill of hazardous waste or material. The Respondent was advised in a Letter of Non-Compliance ("LNC") issued on December 19, 2002 that RIDEM suspected, among other violations, a release of hazardous waste at the Respondent's gasoline tank removal area. The LNC required the respondent to investigate the release and to remediate the site in the event that hazardous waste or materials were discovered. The Respondent hired an environmental consultant to investigate the matter but failed to report the results of the investigation and failed to remediate the site by preventing additional spills or releases, containing the site and cleaning up the spill or release of hazardous waste and materials. In the NOV, OC&I ordered the Respondent to remediate the site in compliance with the Site Remediation Regulations and assessed a penalty in the amount of $10,000.00. The Respondent failed to contest the NOV at AAD. In lieu of proceeding to Superior Court to enforce the NOV, the Respondent and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to submit a Site Investigation Report consistent with Remediation Regulation 7.08 within 60 days of execution of the Consent Agreement and agreed to comply with any and all requirements of the Remedial Decision Letter issued by RIDEM pursuant to the Remediation Regulations. The Respondent further agreed to pay an upfront penalty of $4,000.00 and to pay an additional $4,000.00 in 12 monthly installments. The Respondent has paid the initial $4,000.00 penalty.November 28, 2005 - OC&I/RCRA File No. 04-079 re: Victory Finishing Technologies, Inc. for property located at 145 Globe Street, Assessor's Plat 022, Lot 0352 in the City of Providence. On November 10, 2004 the OC&I issued a NOV to the Respondent alleging that the Respondent violated RIDEM's Rules and Regulations for Hazardous Waste Management and the Code of Federal Regulations ("CFR") related to hazardous waste management. As a result of a compliance evaluation inspection, OC&I determined that the Respondent failed to properly label all satellite containers of hazardous waste, failed to complete hazardous waste labeling on certain containers of hazardous waste, failed to maintain satellite containers of hazardous waste at the point of generation, failed to keep all hazardous waste containers closed when not specifically adding hazardous waste, failed to properly store incompatible hazardous waste by separating the incompatible wastes with a physical barrier, failed to comply with the 90 day storage limit for hazardous waste, failed to maintain a complete hazardous waste contingency plan, failed to provide annual training to company employees who handle hazardous waste and failed to properly store and label universal hazardous waste. In the NOV, OC&I ordered the Respondent to bring the facility into compliance with the applicable hazardous waste regulations and assessed a penalty in the amount of $25,500.00. The Respondent filed an appeal of the NOV with the AAD. Prior to hearing, the Respondent and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent achieved compliance with the orders contained in the NOV. The Respondent was able to show to the OC&I that it was operating in receivership and had a financial inability to pay a penalty larger than $5,000.00. The OC&I agreed to the reduced penalty and the penalty has been paid.November 29, 2005 - OC&I/UST File No. 04-02996 re: Providence Petroleum, Inc., Charles C. Potter and Diane C. Potter for property located at 1304 Eddy Street, Assessor's Plat 87, Lot one in the City of Providence. On June 23, 2004 the OC&I issued an NOV to the Respondents alleging that the Respondents were in violation of RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials ("the UST Regulations"). The violations pertained to Respondents' failure to properly test UST cathodic protection systems, failure to properly meet inventory record keeping requirements for UST systems, failure to continuously monitor double-walled piping systems, failure to conduct annual testing of line leak detectors, failure to conduct monthly and annual testing of the UST continuous monitoring system, failure to properly maintain spill containment basins, failure to meet construction requirements for tank pad observation wells and groundwater monitoring wells at UST facilities, failure to meet documentation requirements for new UST installations and failure to maintain required test records. The Respondents were ordered to achieve compliance with the UST Regulations. A penalty in the amount of $22,876.00 was assessed in the NOV. The 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 were able to show OC&I that they had complied with the UST Regulations for some violations cited in the NOV. The Respondents agreed to achieve full compliance with the UST Regulations within 30 days of execution of the Consent Agreement and agreed to pay a penalty in the amount of $13,204.00. The OC&I agreed to accept $3,204.00 upon execution of the Consent Agreement and agreed to allow Respondents to pay the remaining penalty of $10,000.00 in installments of $500 per month for the next 20 months.November 30, 2005 - OC&I/UST File No. 05-00919 re: Motiva Enterprises, LLC for property located at 10 Ten Rod Road, Assessor's Plat 93, Lot 118 in the Town of North Kingstown. The Respondent is the owner and operator of four USTs consisting of three 10,000-gallon gasoline USTs and one 550-gallon No. 2 heating oil UST. On 4 June 2004, DEM received a copy of a Compliance Application for the facility from the RI Underground Storage Tank Financial Responsibility Fund Review Board. RIDEM commenced with a compliance determination and requested that the Respondent submit copies of certain documents to verify compliance with the UST Regulations. On or about 2 December 2004, the Respondent's consultant advised RIDEM that documentation requested by RIDEM could not be located. On June 30, 2005 the OC&I issued a NOV to Respondents alleging that the Respondent violated RIDEM's UST Regulations. The violations pertained to Respondent's failure to perform annual certification/testing of the continuous monitoring system ("CMS") during the months of September, October and November 2001, failure to perform annual functionality testing of the line leak detectors for the three 10,000-gallon gasoline USTs in 1999 and failure to compile inventory control records for the three 10,000-gallon gasoline USTs for the months of September, October and November 2001. A penalty in the amount of $6,004.00 was assessed in the NOV for Respondent's past noncompliance. The Respondent filed an appeal of the NOV with the AAD. Prior to hearing, the Respondent and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent provided documentation that it was in compliance with the UST Regulations. The OC&I and the Respondent agreed to a reduced penalty in the amount of $3,150.00. The penalty was paid upon execution of the Consent Agreement. Superior Court Actions Issued: November 21, 2005 - Superior Court File No. 05-6033 - W. Michael Sullivan, in his capacity as Director, RIDEM, and Patrick Lynch, in his capacity as Attorney General of the State of Rhode Island (Plaintiffs) vs. Pauline E. Grieco (Defendant) for property located south of Plainfield Circle, west of Stony Acre Drive, Assessor's Plat 37, Lot 498, map section 2 in the City of Cranston. The property includes the western portion of Stone Pond Dam (State Dam No. 320). On May 4, 2005, the OC&I issued a Notice of Intent to Enforce ("NOIE") to Defendant. The NOIE informed Defendant that the present outlet area of Stone Pond Dam is actually a former breached section of the embankment with a make-shift masonry wall in poor condition. Visual indications of erosion and wet areas indicated possible recent over toppings of the dam with minimal freeboard present. The current condition of the dam is unsafe and significantly increases the likelihood of dam failure and loss of human life. The NOIE required the Defendant to submit to RIDEM a report prepared by a registered professional engineer with experience in dam repair that describes interim measures to bring and maintain water behind the dam to a lower elevation to prevent a catastrophic failure of the dam along with a schedule to accomplish the measures. The NOIE also required the Defendant to prepare a plan and schedule to return the dam to a safe condition. As of the date of filing the verified complaint in Superior Court, the Defendant had not complied with the requirements of the NOIE. In Plaintiffs' Verified Complaint and Request for Injunctive Relief filed on or about November 21, 2005, Plaintiffs have requested that the Superior Court grant preliminary injunction and permanent injunction ordering Defendant to comply with the requirements set forth in the NOIE within specific time frames. If the Defendant fails to undertake the actions as required, Plaintiffs have requested permission to complete the work as required and to seek reimbursement by Defendant. Plaintiffs have also requested costs, attorney's fees and other costs allowed by law, an order requiring Defendant to post a bond conditioned upon the observance of the temporary injunction and other relief as deemed equitable by the Court.November 21, 2005 - Superior Court Case No. C.A. No. 05-6034 re: W. Michael Sullivan, Director, RIDEM and Patrick Lynch in his capacity as Attorney General of the State of Rhode Island (Plaintiffs) vs. Quidnick reservoir Company and John Doe (Defendants) for property located westerly of the intersection of Phillips Hill Road and Hill Farm Road, Assessor's Plat 318, Lot 204-4 in the Town of Coventry. The property includes Coventry Reservoir, a dam and spillway (State Dam No. 176 a/k/a Coventry Reservoir Dam. On April 4, 2005 the OC&I issued a NOIE to the Defendant. The NOIE detailed that significant erosion to the embankment adjacent to the spillway of the dam had caused an unsafe condition to the dam. The NOIE required Defendant to immediately lower and maintain the water level behind the dam to an elevation eighteen inches below the spillway crest and to submit a report and schedule for completion by a registered professional engineer with experience in dam repair to return the dam to a safe condition. The NOIE explained that the Coventry Reservoir Dam is unsafe and there is reasonable cause to believe that danger to life and property may result from the unsafe condition of the dam. As of the date of filing the verified complaint in Superior Court, the Defendant had not complied with the requirements of the NOIE. In Plaintiffs' Verified Complaint and Request for Injunctive Relief filed on or about November 21, 2005, Plaintiffs have requested that the Superior Court grant preliminary injunction and permanent injunction ordering Defendant to comply with the requirements set forth in the NOIE within specific time frames. If the Defendant fails to undertake the actions as required, Plaintiffs have requested permission to complete the work as required and to seek reimbursement by Defendant. Plaintiffs have also requested costs, attorney's fees and other costs allowed by law, an order requiring Defendant to post a bond conditioned upon the observance of the temporary injunction and other relief as deemed equitable by the Court. Superior Court Actions Settled or Resolved: None settled or resolved this month.