November 2008 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 November 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 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:

November 10, 2008 - OC&I/Freshwater Wetland File No. 2008 2580 FW and C08-137 re: Arthur Saucier and Debra Nespolo for property located approximately 275 feet south of Buxton Street at utility pole no. 10 and approximately 600 feet southwest of its intersection with Homecrest Avenue, Assessor's Plat 1, Lot 43, in the town of North Smithfield. The property is owned by the Respondents. The DEM issued a permit to alter freshwater wetlands to construct a single family dwelling with a deck, gravel driveway, and private well on the property. The permit required the installation of permanent buffer zone markers to delineate the wetland edge. No work was allowed within freshwater wetlands beyond the markers. The OC&I alleges that the Respondents are in violation of the Freshwater Wetlands Act and the RIDEM Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertain to clearing and filling (in the form of soil and concrete house foundation) within a Swamp; clearing, grading, and filling (in the form of soil) within a 50 foot Perimeter Wetland associated with the Swamp; and physical relocation of the buffer zone markers in nonconformance with the permit. This activity resulted in the unauthorized alteration of 4,275 square feet of Swamp and 4,265 square feet of 50 foot Perimeter Wetland associated with the Swamp. On January 2, 2008, RIDEM issued a Letter of Non-Conformance (LNC) to the Respondents advising them of the violations on the property. On February 20, 2008 and August 18, 2008 RIDEM received correspondence from the Respondents describing the actions taken to comply with the LNC and the circumstances that led to the violations. The Respondents were advised that given the nature and extent of the violations RIDEM would be issuing an NOV, which would include an administrative penalty. In the NOV, OC&I ordered the Respondents to restore all damaged freshwater wetlands on their property. OC&I assessed an administrative penalty of $12,500.00.

 

Formal Enforcement Cases Settled or Resolved:

November 5, 2008 - OC&I/Septic System File No. CI 06-28 re: D & J Food Entreprises for property located at 961 Boston Neck Road, Assessor's Plat N/H, Lot 300 in the Town of Narragansett. The property includes a commercial business identified as Tony's Pizza and is owned by the Respondent. On January 15, 2008 OC&I issued an NOV to the Respondent alleging that the Respondent violated the RIDEM Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems. The violation pertained to the overflow of sewage from the individual sewage disposal system (ISDS) that is located on the property to the surface of the ground. In the NOV, OC&I ordered the Respondent to cease the discharge of sewage to the surface of the ground, pump the ISDS as needed to prevent overflows, and/or repair the ISDS. OC&I assessed an administrative penalty of $800.00. The Respondent appealed the NOV to AAD. Prior to an administrative hearing on the NOV, OC&I and the Respondent executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to repair the failed ISDS and pay the full penalty assessed in the NOV. The penalty was paid upon execution of the Agreement.



November 5, 2008 - OC&I/Septic System File No. CI 95-289 re: Lyle & Shirley Monroe for property located at 581 Trimtown Road, Assessor's Plat 42, Lot 42 in the Town of Scituate. The property includes a seven-bedroom single family dwelling owned by the Respondents. On March 3, 2008 OC&I issued an NOV alleging that the Respondents violated the RIDEM Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violations pertained to the overflow of sewage from the sewage disposal system that is located on the property to the surface of the ground. In the NOV, OC&I ordered the Respondents to cease the discharge of sewage to the surface of the ground, pump the system as needed to prevent overflows, and repair the system. OC&I assessed an administrative penalty of $800.00. The Respondents appealed of the NOV to AAD. The Respondents submitted financial documents to OC&I that showed to the satisfaction of OC&I that the Respondents do not have the financial ability to repair the failed system at this time or pay any portion of the administrative penalty. Prior to an administrative hearing on the NOV, OC&I and the Respondents executed a Consent Agreement to resolve the enforcement action. The Respondents agreed to the following actions until the system is repaired: pump the ISDS as often as necessary to prevent the overflow of sewage to the surface of the ground, discontinue all use of the washing machine at the dwelling, limit occupancy of the dwelling to no more than 2 persons, and vacate the dwelling and keep the dwelling unoccupied if OC&I documents through an inspection of the property that sewage is present on the ground surface and the Respondents fail to proceed to repair the failed ISDS. OC&I agreed to waive the entire administrative penalty assessed in the NOV.



November 14, 2008- OC&I/Water Pollution File No. 2007 1063 WP and WP07-99 re: Robert M. Derita for property located at 1042 Putnam Pike, specifically Assessor's Plat 10C, Lot 35 in the Town of Glocester. The property includes a commercial building with two automotive businesses known as Autostore Motor Sales and CPR Auto. The property is owned by the Respondent. On August 19, 2008 OC&I issued an NOV to the Respondent alleging that the Respondent violated the RIDEM Underground Injection Control Program Regulations. On July 13, 2007 and August 7, 2007, OC&I performed inspections of the property. The inspections revealed that floor drains and subsurface structures were present on the property and that fluids associated with the automotive businesses were being discharged into the subsurface structures. The subsurface structures and floor drains are considered underground injection control (UIC) systems, and no approval was issued by RIDEM for the UIC systems. In the NOV, OC&I ordered the Respondent to cease the discharge of fluids to the UIC systems and either obtain a permit for the UIC systems or close the UIC systems. OC&I assessed an administrative penalty of $2,500.00. The Respondent appealed the NOV to AAD. Prior to an administrative hearing on the NOV, OC&I and the Respondent executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to close the UIC systems and pay a reduced penalty of $500.00. The penalty was paid upon execution of the Agreement.



November 20, 2008- OC&I/Water Pollution File No. 07- 09 re: Town of Middletown. The Town of Middletown is the owner and operator of a wastewater collection system that includes, but is not limited to, the Wave Avenue Pumping Station. The Wave Avenue Pumping Station is located near the intersection of Wave Avenue and Memorial Boulevard in Middletown. The Wave Avenue Pumping Station conveys wastewater through a pressurized pipe located beneath Bellevue Avenue to a gravity pipe located beneath the intersection of Bellevue Avenue and Memorial Boulevard in the City of Newport. On July 17, 2007 OC&I issued an NOV to the Respondent alleging that the Respondent violated the Rhode Island Water Pollution Act and the RIDEM Water Quality Regulations. The violation pertained to the discharge of untreated or partially treated wastewater to the waters of the State from the rupture of the pressurized pipe. Middletown submitted written reports to OC&I documenting that the pressurized pipe had ruptured on three occasions over a period of fourteen months (May 22, 2005; December 13 and 14, 2005; and July 11 and 12, 2006) that resulted in the discharge of partially treated wastewater to Easton's Bay. On July 11 and July 12, 2006 the discharge resulted in the closure of a public beach (Easton's Beach) for three days, the closure of a private beach (Atlantic Beach Club) for at least three days, and the closure of approximately three hundred acres of Easton's Bay to shellfishing for four and one half days. On August 2, 2006 the OC&I issued an Immediate Compliance Order (ICO) to Middletown due to the significant threat to human health and the environment posed by continued potential discharge from the pressurized pipe. In the ICO Middletown was ordered to complete the installation of a temporary above ground pipe. Middletown agreed to replace the entire pressurized pipe and was granted a deadline of May 31, 2007 to complete the work. The replacement of the pressurized pipe was completed on or about May 1, 2007. In the NOV, OC&I assessed an administrative penalty of $50,000.00. The Respondent appealed the NOV to AAD. Prior to an administrative hearing on the NOV, OC&I and the Respondent executed a Consent Agreement to resolve the enforcement action. The Respondent agreed to pay a cash penalty of $5,000 and to perform a Supplemental Environmental Project (SEP) worth a total cost of approximately $98,700. The SEP is a study to identify and evaluate the feasibility of various alternatives to reduce bacteria loads and storm water flow contributions from Middletown's storm water outfalls to Easton's Bay. The SEP includes implementation of one or more alternative corrective measures. The penalty was paid upon execution of the Agreement.



November 21, 2008 - OC&I/Water Pollution File No. 2007 1295 WP and 07-0130 and OC&I/ISDS File No. CI 02-0225 re: CAPCO, Thomas L. Ford Trust, and Pasqua Realty Trust, Dave's Marketplace of Cumberland, Inc. and Rainha Construction Corp. for property located at 2077 Diamond Hill Road, Assessor's Plat 21, Lot 491 in the Town of Cumberland. The property is owned by CAPCO, Thomas L. Ford Trust, and Pasqua Realty Trust (collectively CFP). The property includes Dave's Marketplace, a Dunkin' Donuts Restaurant, and a commercial one- story building with multiple units. The wastewater from each building is treated by several individual sewage disposal systems located on the property. On June 12, 2008 OC&I issued an NOV to the Respondents alleging that the Respondents violated the Rhode Island Water Pollution Act, the RIDEM Water Quality Regulations, the RIDEM Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems, and the Rhode Island ISDS Installer's Act, R.I.G.L. §5-56-1(a). The violations pertained to the discharge of sewage from one of the individual sewage disposal systems on the property into a storm water catch basin, the discharge of food waste and grease from Dave's Marketplace into a second storm water catch basin, and the unauthorized construction by an unlicensed person of a grease tank to accommodate waste from Dave's Marketplace that was connected to one of the individual sewage disposal systems on the property. In the NOV, OC&I ordered CFP to retain a registered professional engineer to submit a report that includes an as-built drawing of the sanitary sewage system, certification that all septic tanks, grease tanks, pump tanks, holding tanks, concrete chambers and/or cesspools were properly abandoned and certification that all the storm drainage pipes on the property were inspected and that no illicit connections are present. OC&I assessed an administrative penalty totaling $26,800.00 distributed as follows: CFP - $12,500.00; CFP and Dave's Marketplace of Cumberland, Inc. - $12,500.00; Rainha Construction Corp, CFP and Dave's Marketplace of Cumberland, Inc - $800.00; and Rainha Construction Corp - $1,000.00. The Respondents appealed the NOV to AAD. Prior to an administrative hearing on the NOV, OC&I and Rainha Construction Corp executed a Consent Agreement to resolve the enforcement action with regard only to RIDEM and Rainha Construction Corp. Rainha Construction Corp agreed to pay a reduced penalty of $600.00. The penalty was paid upon execution of the Agreement. The related enforcement actions against the other Respondents remain unresolved.

 

Superior Court Actions Issued:

None issued this month.

Superior Court Actions Settled or Resolved:

None settled or resolved this month.