October 2002 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 October 2002. 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: October 1, 2002 - OC&I/Water Pollution File No. 02-04 x-ref. RISUIC File No. 00596 re: Victor and Loretta A. Gough for property located at 661 West Shore Road, Assessor's Plat 318, Lot 48 in the City of Warwick. The property includes an automotive repair business. OC&I alleges that the Respondent is in violation of the Water Pollution Act, RIDEM's Groundwater Quality Regulations and Underground Injection Control Regulations. The violation pertains to the discharge of petroleum contaminated water into a floor drain located in the automotive garage, that then discharged into the sewage disposal system. On May 6, 1999 and October 13, 1999 RIDEM sent correspondence to the Respondents describing the required actions to comply with the regulations. The required actions included the permanent closure of the floor drain and the sewage disposal system. The Respondents properly closed the floor drain and connected the sewerage system for the property into the city sanitary system; however, the Respondents failed to properly close the sewage disposal system. On December 27, 2001 RIDEM sent correspondence to the Respondents restating the need to properly close the sewage disposal system. The Respondents failed to comply with the letter. In the NOV, the OC&I ordered the closure of the sewage disposal system and assessed a penalty of $2,500.00.October 8, 2002 - OC&I/Septic System File No. CI 02-47 re: John F. Sparin for property located at 50 Melrose Street, Assessor's Plat 18, Lot 684 in the Town of Cumberland. The property includes a single-family residence. The OC&I alleges that the Respondent is in violation of RIDEM's 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 the discharge of sewage to the surface of the ground from the sewage disposal system for the dwelling. On April 25, 2002 OC&I issued a Notice of Intent to Enforce ("NOI") to the Respondent for the discharge of sewage to the ground. The Respondent failed to comply with the NOI. In the NOV, OC&I ordered the Respondent to immediately cease the discharge of sewage to the surface of the ground and repair the septic system. OC&I assessed a penalty of $1,000.00.October 8, 2002 - OC&I/Septic System File No. CI 01-111 re: Shree Enterprises, Inc. for property located at 162 Danielson Pike, Assessor's Plat 10, Lot 37 in the Town of Foster. The property includes a 1 1/2 story building with an office and apartment (Building #1) and a 1 1/2 story building with 6 motel units (Building #2). The OC&I alleges that the Respondent is in violation of the ISDS Regulations. The violations pertain to the discharge of sewage to the surface of the ground from the sewage disposal systems for Buildings #1 and #2. On June 20, 2001 OC&I issued a NOI to the Respondent for the discharge of sewage to the ground. The Respondent failed to comply with the NOI. In the NOV, OC&I ordered the Respondent to immediately cease the discharge of sewage to the surface of the ground and repair the septic system. A penalty of $4,000.00 was assessed in the NOV.October 17, 2002 - OC&I/Water Pollution File No. C02-05 re: Adult Assisted Care Associates, LLC for property located at 2543 West Main Road, Assessor's Plat 55, Lot 1A in the Town of Portsmouth and Assessor's Plat 104, Lot 7 in the Town of Middletown. The property includes land that was proposed as a development for a nursing home and elderly housing. The OC&I alleges that the Respondent is in violation of the Water Pollution Act and RIDEM's Water Quality Regulations. The violation pertains to the construction of a wastewater collection system without an Order of Approval by RIDEM. On September 15, 1999 the Respondent submitted an application to RIDEM to construct a wastewater collection and treatment system on the property. RIDEM sent technical comment letters to the Respondent between November 1999 and February 2001 as part of RIDEM's review of the proposal. RIDEM stated in each technical comment letter that all of the concerns outlined in the technical comment letters had to be satisfactorily addressed prior to the issuance of an Order of Approval. On August 7, 2001 the Respondent's consultant advised RIDEM that the wastewater collection system was installed without the Order of Approval because the project's financing was in jeopardy. The Respondent submitted as-built plans to RIDEM that documented the wastewater collection system that was installed. RIDEM issued a letter to the Respondent on July 26, 2002 stating that an Order of Approval for the wastewater collection system would be issued concurrently with a RIPDES permit. A penalty of $6,250.00 was assessed in the NOV for the Respondent's noncompliance.October 17, 2002 - OC&I/UST File No. 02-00544 re: Sembel Enterprises, Inc., 75 Goff Avenue Realty Trust, Yohannes Bein, and Simret Zemrht for property located at 75 Goff Avenue, Assessor's Plat 44, Lot 493 in the City of Pawtucket. 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 precision testing requirements for USTs, annual testing of continuous monitoring equipment and line leak detectors, maintenance of testing records, monthly testing of continuous monitoring equipment by the owner, maintenance of daily written inventory and monthly reconciliation records and investigations of suspected releases of petroleum product. On 11 May 2001, OC&I issued a Letter of Non-Compliance to the Respondents ("LNC"). The LNC informed the Respondents of the alleged violations and provided a compliance schedule to be met. Despite follow up inspections and contact by the OC&I, the Respondents failed to bring the facility into compliance with the UST Regulations. In the NOV, OC&I ordered compliance with the UST Regulations and assessed a penalty in the amount of $16,030.00.October 24, 2002 - OC&I/AIR File No. 02-08 re: Catanzaro & Sons Painting, Inc. for property located at 332 Rumstick Road in the Town of Barrington. The OC&I alleges that the Respondent violated sections of Air Pollution Control Regulation No. 24 relating to "Removal of Lead Based Paint from Exterior Surfaces". The violations pertain to the Respondent's failure to issue written notification prior to the removal of any lead paint, properly place impenetrable material on the ground at the paint removal work site, attach ground sheeting to the ground by staking or weighing down, securely seal doors and windows on walls being machine sanded, place vertical containment shrouds to prevent lead paint debris from escaping the work area, meet regulatory requirements when using mechanical methods to remove paint and failing to mist exterior surfaces with water prior to manual scraping. The Department has issued both informal and formal enforcement actions to this Respondent in the past. The OC&I assessed a penalty in the amount of $8,750.00.October 29, 2002 - OC&I/Water Pollution File No. 02-03 re: Rhode Island Resource Recovery Corporation for the solid waste management facility ("the Facility") that the Respondent owns and operates located at 65 Shun Pike, Assessor's Plat 43, Lot 402, in the Town of Johnston. The OC&I alleges that the Respondent is in violation of the Water Pollution Act, the Freshwater Wetlands Act, RIDEM's Water Pollution Regulations, Rhode Island Pollutant Discharge Elimination System (RIPDES) Regulations, and the Freshwater Wetland Regulations. The violations pertain to the discharge of water containing silt/sediment from the Facility to Cedar Swamp Brook and Upper Simmons Reservoir on a continuous basis from October 1998 through February 2002 and the Respondent's failure to comply with their RIPDES Permit as evidenced by a failure to: perform weekly inspections of the Facility, implement necessary corrective actions to control sediment/erosion, and perform weekly turbidity sampling of the sedimentation basins at the Facility. The Respondent was notified of RIDEM's concerns with sediment/erosion problems at the Facility in correspondence sent from RIDEM to the Respondent in December 1999, April 2001, September 2001, and November 2001. The Respondent failed to take action to fully comply with the concerns outlined in RIDEM's letters. The Respondent submitted a report to RIDEM in October 2001 that assessed the impacts of sedimentation to Upper Simmons Reservoir. The report concluded that 1 1/2 feet of non-indigenous sediment is present in Upper Simmons Reservoir, that the majority of the sediment is in the northern portion of the Upper Simmons Reservoir and is newly deposited since the Upper Simmons Reservoir was last dredged in 1996, and that the Upper Simmons Reservoir receives sediment contribution from the Facility and other properties adjacent to the Facility. The violations also pertain to the discharge of leachate from the Facility to a location where it is likely to enter the waters of the State that took place between December 1999 and August 2000. The Respondent was notified of RIDEM's concerns with the leachate discharges in correspondence that was sent from RIDEM to the Respondent in December 1999 and January 2000 and a Notice of Intent to Enforce ("NOI") that was issued on June 9, 2000. The NOI required the Respondent to take immediate temporary action to prevent leachate from entering the waters of the State and to submit a plan to RIDEM for a permanent solution. The Respondent submitted a leachate response plan to RIDEM on December 19, 2001. In the NOV, the OC&I ordered the Respondent to take specific actions to: prevent the discharge of leachate to the waters of the State, prevent the discharge of silt/sediment to the waters of the State, and restore Cedar Swamp Brook and Upper Simmons Reservoir. The OC&I assessed an administrative penalty of $520,000.00. OC&I and the Respondent met on several occasions between November 2001 and July 2002 to discuss the draft NOV and a proposed settlement to resolve the NOV. A proposed Consent Agreement that reflects the discussions and general agreement that was reached between RIDEM and the Respondent was forwarded to the Respondent along with the NOV.October 30, 2002 - OC&I/Septic System File No. D3057 and D4002 re: Robert C. Schultz for applications prepared as a licensed ISDS designer. The OC&I alleges that the Respondent is in violation of Rhode Island General Law Sections 5-56.1-8, 42-17.1-2(u) and 42-17.6-3 and the ISDS Regulations. The violations pertain to RIDEM's review of 8 separate ISDS applications submitted by the Respondent that revealed a pattern of gross or repeating negligence, incompetence, or misconduct in the representation of site conditions in an application or design of an ISDS. These violations included neglecting to submit required freshwater wetlands information, submitting plans not drawn to scale, inaccurately depicting grading and the location of freshwater wetlands, and the relationship of the proposed septic system to public water supplies and associated tributaries. Findings of RIDEM's review of the ISDS applications were presented to the ISDS Designer Licensing Review Panel (the Panel). The Panel is composed of 5 members who have expertise in ISDS issues and who are not employed by RIDEM. The Panel is appointed by the Director to review the actions of licensed designers and make recommendations to RIDEM on whether a designer's license should be suspended or revoked and the length of time for the suspension or revocation. The Panel recommended to RIDEM that the Respondent's License #D3057 and License #D4002 be suspended. On March 20, 2002 RIDEM issued the Respondent a Notice of Intent to Suspend or Revoke the Respondent's License. The Respondent failed to show cause why RIDEM should not suspend or revoke his License #D3057 and License #D4002. In the NOV, OC&I ordered that the Respondent's licenses be suspended for a period of eighteen (18) months and assessed a penalty of $7,000.00. Formal Enforcement Cases Settled or Resolved: October 1, 2002 - OC&I/RCRA File No. 00-020 re: D&L Sales, Incorporated, Linda Grasso, Dianne Denuccio and Sky Box Realty, RIGP for property located at 30 Agnes Street, Assessor's Map Plat 37, Lot 65 in the City of Providence. On December 6, 2000, the OC&I issued a NOV to the Respondents alleging that the Respondents violated multiple sections of the Rhode Island Rules and Regulations for Hazardous Waste Management and applicable sections of Title 40 of the Code of Federal Regulations relating to hazardous waste. The violations pertained to: storage of hazardous waste beyond the 90-day time allowed; failing to properly mark and label containers and tanks of hazardous waste; failing to keep tanks and containers of hazardous waste closed; failing to determine if wastes are hazardous; failing to develop and maintain a contingency plan and to document training for company personnel dealing with hazardous waste; failing to apply for and obtain an EPA identification number; failing to provide adequate secondary containment for hazardous waste containers; and failing to submit the names of agents authorized to sign the Uniform Hazardous Waste Manifest. The Respondents were ordered to comply with the regulations and were assessed a penalty in the amount of $58,373.39. The Respondents filed an appeal of the NOV to the AAD. Prior to hearing, the OC&I and the Respondents executed a Consent Agreement to resolve the enforcement action. The Respondents agreed to comply with the Regulations, agreed to a compliance schedule to remove all hazardous waste from the property, agreed to pay a penalty in the amount of $10,000.00 and to reimburse RIDEM $2,773.39 for costs incurred in the enforcement action. OC&I agreed to reduce the penalty based upon the Respondents' lack of financial ability to pay the amount assessed in the NOV.October 4, 2002 - OC&I/ Wetland File No. C02-0054 re: Zarella Development Corp. for property located approximately 200 feet southwest of the intersection of Middle Road and Ridgefield Drive, Assessor's Plat 8, Lot 68 in the Town of East Greenwich. On March 28, 2002, the OC&I issued a NOV to the Respondent alleging certain violations of the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to the unauthorized alterations of 15,400 square feet of Forested Wetland by clearing, grading, and constructing a house foundation. The Respondent requested a hearing on the NOV. In lieu of proceeding to an administrative hearing, RIDEM and the Respondent executed a Consent Agreement wherein the Respondent agreed to restore the freshwater wetland no later than November 20, 2002 by removing the house foundation and all associated fill and to replant the wetland. The Respondent also agreed to pay an administrative penalty of $800.00. The wetland restoration is ongoing and the penalty has been paid.October 7, 2002 - OC&I/AIR File Nos. 00-05, 00-08, and 01-05 re: Metals Recycling, LLC located at 89 Celia Street, Johnston. On 21 September 2000, 17 November 2000 and 14 February 2001 the OC&I issued NOVs to the Respondent alleging that the Respondent on numerous occurrences violated Air Pollution Control Regulation No. 17 related to "Odors" by causing objectionable odors beyond the property line of the facility. The OC&I ordered compliance with the regulation to cease objectionable odors from migrating beyond the property line. OC&I assessed penalties in the amount of $50,000.00 in NOV 00-05, $10,000.00 in NOV 00-08 and $10,000.00 in NOV 01-05. The Respondent filed an appeal of two of the NOVs with the AAD. Prior to hearing, the OC&I and the Respondent executed a Consent Agreement to resolve the enforcement actions wherein the Respondent agreed to a penalty in the amount of $32,500.00. The Respondent has paid the agreed upon penalty in full.October 22, 2002 - OC&I/Septic System File No. CI 93-479 re: Robert Horlborgen for property located at 78 Marlborough Road, Assessor's Plat 1, Lot 74 in the Town of East Greenwich. The property includes a multi-family dwelling. On or about February 11, 1994 RIDEM issued a NOV to David Moscatelli, the former owner of the property, alleging certain violations of the ISDS Regulations. The violations pertained to the overflow or spillage of sanitary sewage to the surface of the ground from the septic system at the property. The RIDEM ordered the Respondent to immediately have the system pumped by a licensed septage hauler; continue such pumping until the system was repaired; immediately take steps to reduce the discharge of sewage to the system and commence work on repair to the system. The RIDEM assessed a penalty of $4,000.00 against the Respondent. The Respondent did not request a hearing on the NOV. In lieu of proceeding to Superior Court to enforce the NOV, the OC&I referred the case to mediation. RIDEM and the Respondent reached a verbal agreement during the mediation process to resolve the NOV; however, the Respondent transferred title to Mr. Horlborgen prior to the execution of a written agreement to avoid foreclosure of the property. As part of the title transfer, the new owner agreed to the same terms as the Respondent to resolve the NOV. A Consent Agreement was entered into between the OC&I and the new owner on October 16, 2002. In the Consent Agreement, the new owner agreed to limit the usage of the septic system to the current 4 occupants and pump the system as needed to prevent any sewage overflows. The owner further agreed to either repair the system or connect to public sewers prior to the transfer of title of the property; renovations to the property; or evidence of sewage overflows. The Respondent agreed to pay an administrative penalty of $2,000.00.October 28, 2002 - OC&I/ Wetland File No. C90-0180 re: Cynthia Manchester Rego for property located approximately 2,800 feet west of Crandall Road and approximately 100 feet south of the intersection of Crandall Road and Saxony Road, Assessor's Plat 130, Lot 15 in the Town of Tiverton. On November 28, 1990, RIDEM issued a NOV to the Respondent alleging certain violations of the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to the unauthorized alterations of 16,000 square feet of Swamp and 4,500 square feet of Perimeter Wetland associated with the Swamp. The alterations resulted from excavating the Swamp and grading, clearing, and creating soil disturbance within the Perimeter Wetland. RIDEM ordered the Respondent to restore the freshwater wetlands and assessed a penalty of $1,300.00. The Respondent requested an administrative hearing on the NOV. Prior to hearing, RIDEM and the Respondent executed a Consent Agreement on October 7, 1996 wherein the Respondent agreed to restore the freshwater wetlands no later than November 15, 1996. The Respondent also paid RIDEM an administrative penalty of $650.00. Inspection of the property on October 24, 2002 confirmed that the freshwater wetland was restored and the restoration plan for the work was approved by RIDEM on October 28, 2002. All issues in the case have been resolved and the file is closed. Superior Court Actions Issued: October 1, 2002 - C.A. No. PC 02-2115 re: RIDEM, Plaintiff versus Norman D. Blier and the Quidnick Reservoir Company, LLC, Defendants for property located at Assessor's Plat 38, Lot 1.1 in the Town of Coventry. The property includes a dam and spillway (State Dam No. 177 "Tiogue Lake Dam"). Tiogue Lake Dam is located adjacent to Route 3 in a commercial area of Coventry. Norman Blier (Blier) is the owner of the property and Quidnick Reservoir Company LLC (Quidnick) is the owner of certain rights in the property. In 1968 Blier purchased the property from Quidnick; however, Quidnick retained ownership of the gatehouse, the rights of flowage by the discharge of waters from Tiogue Lake through a spillway, and all riparian rights with respect to the land conveyed. Quidnick also retained all other rights with respect to the maintenance and use of the spillway and the right to maintain and repair the dam. Inspections of the Tiogue Lake Dam by the OC&I in January and April 2000 revealed that the current condition of the spillway poses an unsafe condition to the dam. The spillway no longer functions in the manner in which it was intended due to earthen material creating substantial blockage of the spillway. The blockage poses a threat of water overtopping of the dam resulting in erosion of the earthen dam and catastrophic failure. On July 14, 2000, OC&I issued a Notice of Intent to Enforce ("NOI") to Blier and Quidnick requiring the parties to return the dam to a safe condition. Discussions with the parties from September 2000 through November 2000 failed to result in any agreement by Blier or Quidnick to restore the dam to a safe condition. Inspection of the dam in February 2001 revealed that no action had been taken to comply with the NOI. In accordance with State law, RIDEM filed a complaint in Superior Court requesting that the Court order Defendants Blier and Quidnick to restore the dam to a safe condition. Superior Court Actions Settled or Resolved: October 9, 2002 - OC&I/ Wetland File No. C99-0067 re: Peter Wiechers for property located approximately 1,150 feet north of Tomaquag Valley Road and approximately 2,500 feet northeast of the intersection of Tomaquag Valley Road and Diamond Hill Road, Assessor's Plat 4, Lot 137 in the Town of Hopkinton. On December 29, 1999, the OC&I issued a NOV to the Respondent alleging certain violations of the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to draining a pond, excavating, filling, grading and soil disturbance within the limits of the drained pond, filling and clearing within a pond/shrub wetland complex, and filling, grading, and clearing within a 50 foot perimeter wetland associated with the pond. These activities resulted in unauthorized alteration of approximately 76,125 square feet of wetlands. The OC&I ordered the Respondent to restore the freshwater wetlands and assessed a penalty of $3,000.00. The Respondent requested an administrative hearing on the NOV. Prior to the hearing on the NOV, the Respondent filed a motion in Superior Court to have the court rule on the constitutionality of OC&I's inspection of the property. Prior to a hearing on the Respondent's motion in Superior Court, OC&I and the Respondent entered a Consent Judgement with the Court wherein the Respondent agreed to restore the freshwater wetlands no later than November 30, 2002. The Respondent also paid an administrative penalty of $2,500.00.