October 2011 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 October 2011. 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:

October 11, 2011 - Air File No. 11-19 re: Rhode Island Department of Health for a facility located at 118 Parade Street in the city of Providence. The OC&I alleges that the Respondent is in violation of Rhode Island's Clean Air Act and RIDEM's Air Pollution Control (APC) Regulation No. 9 - Air Pollution Control Permits. The violation pertains to the installation and operation of a 449 horsepower (HP) diesel fuel fired emergency generator at the facility without a permit from RIDEM. On July 19, 2011, the Respondent submitted to RIDEM an application for a general permit. The application stated that the emergency generator was installed on 8 July 2011. APC Regulation No. 9 requires a minor source permit from RIDEM for any emergency generator with an internal combustion engine of 50 HP or larger and an initial start up date on or after November 15, 2007. In the NOV, OC&I assessed an administrative penalty of $1,000.00.



October 13, 2011 - Air File No. 11-10 re: City of Cranston and Veolia Water North America Operating Services, LLC for a facility located at 140 Pettaconsett Avenue in the city of Cranston. The facility is a wastewater treatment plant that is owned by the city of Cranston (Cranston) and operated by Veolia Water North America Operating Services, LLC (Veolia). On April 22, 2008, the RIDEM issued a permit to Cranston for air pollution control equipment at the facility (the Minor Source Permit). On September 19, 2008, the RIDEM issued an operating permit to the facility (the 2008 Operating Permit). On July 21, 2009, the RIDEM issued a revised operating permit to the facility (the 2009 Operating Permit). The 2009 Operating Permit expires on July 21, 2014. The Minor Source Permit, the 2008 Operating Permit and the 2009 Operating Permit required/require Cranston to conduct a minimum of one visible emissions test (the Opacity Observations) for each four-hour period of operation for each incinerator on any day that the incinerator is operating and ensure that all observers qualify pursuant to Federal regulations (the Certification Protocol). The 2008 Operating Permit and the 2009 Operating Permit required/require Cranston to submit to the RIDEM a true, accurate and complete semi-annual monitoring report (SAMR) for the periods ending 30 June and 31 December each year and clearly identify in such reports all deviations from the permit. The OC&I alleges that the Respondents are in violation of Rhode Island's Clean Air Act and RIDEM's Air Pollution Control (APC) Regulation No. 9 - Air Pollution Control Permits and RIDEM's APC Regulation No. 29 - Operating Permits. The violations pertain to the Respondents' failure to comply with the Minor Source Permit, 2008 Operating Permit and 2009 Operating Permit. RIDEM inspected the facility on December 21, 2010 and January 6, 2011 (the Inspections). On March 7, 2011, Veolia submitted electronic correspondence to the RIDEM (the March Correspondence). The Inspections and RIDEM's review of the March Correspondence revealed that certain Veolia employees who were not qualified pursuant to the Certification Protocol made Opacity Observations. Specifically, from April 14, 2008 through March 7, 2011, 18 employees who were not qualified pursuant to the Certification Protocol made Opacity Observations. The SAMRs submitted for the periods ending December 31, 2008, June 30, 2009, December 31, 2009 and June 30, 2010 failed to identify that some of the Opacity Observations were performed by employees who were not qualified pursuant to the Certification Protocol. In the NOV, the Respondents were ordered to submit revised SAMRs that address the violations alleged in the NOV. The OC&I assessed an administrative penalty of $17,500.00.



October 26, 2011 - Hazardous Waste File No. 2010-66 HW re: Symmetry International, Inc. and Lance Industries, Inc. for a facility located at 55 Industrial Circle in the town of Lincoln. The facility is used for the fabrication, design, manufacture, marketing and distribution of foam products. The Respondents are registered with RIDEM as a small quantity hazardous waste generator at the facility. The OC&I alleges that the Respondents are in violation of RIDEM's Rules and Regulations for the Management of Hazardous Waste (Hazardous Waste Regulations) and Title 40 of the Code of Federal Regulations. The violations pertain to Respondents' failure to determine if the waste generated onsite meets the definition of hazardous waste. The OC&I inspected the facility on August 2, 2011. The inspection revealed fifty-six 55-gallon containers, sixty-four 5-gallon containers, twenty-eight 1-gallon containers and one 30-gallon container stored inside the facility. The containers were identified by the plant manager as holding chemical wastes (in the form of flammable liquids including waste paints, lacquer thinner, resins, epoxies, and coating solutions); however, the Respondents had not determined whether the waste was hazardous waste. In the NOV, the OC&I ordered the Respondents to achieve compliance with the Hazardous Waste Regulations and pertinent Code of Federal Regulations. The OC&I assessed an administrative penalty of $25,314.00.



October 26, 2011 - Air File No. 11-16 re: Toray Plastics (America), Inc. for a facility located at 50 Belver Avenue in the town of North Kingstown. On March 31, 2010, the RIDEM issued an operating permit to the Respondent that authorizes the Respondent to emit air pollutants from a turbine at the facility. The permit requires the Respondent to achieve an emissions rate of nitrogen oxides from the turbine at or below 35.3 pounds per hour when firing fuel oil with the duct burners fired. On February 11, 2011, the Respondent submitted to the RIDEM the results of stack testing of the turbine that was conducted on December 10, 2010. The results showed that the emissions rate of nitrogen oxides from the turbine when firing fuel oil with the duct burners fired was 35.9 pounds per hour. In the NOV, the OC&I assessed an administrative penalty of $2,500.00.

Formal Enforcement Cases Settled or Resolved:

October 1, 2011 - Air File No. 10- 20 re: Quarter Moon, Incorporated for a facility located at 200 Highpoint Avenue in the town of Portsmouth. On March 19, 2007, the RIDEM issued operating permit RI-38-04(R1) to the Respondent to emit air pollutants from the facility. The permit requires the Respondent to adhere to the following emission limits: gel coats used in emission unit P001 (a gel coat spray booth), except those applied by brush, shall not have a volatile organic compound (VOC) content greater than 36.1% by weight and organic hazardous air pollutants (HAPs) from open molding operations shall not exceed the limit specified by an equation that is the weighted sum of the mass of resin and gel coat used, based on a twelve-month rolling average. On February 21, 2011, the OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Air Pollution Control Regulation No. 29 - Operating Permits. The violations pertained to the failure to comply with the permit. On February 15, 2010, the Respondent submitted to the RIDEM its annual compliance certification report for calendar year 2009. The RIDEM's review of the report revealed that from May through November 2009 three gel coats used in emission unit P001 had a VOC content greater than 36.1% by weight and had not been applied by brush. On March 5, 2010, the Respondent submitted to the RIDEM a compliance report on HAPs emitted at the facility. RIDEM's review of the report revealed that for calendar year 2009 the facility exceeded its HAP limit for each month. In the NOV, the OC&I assessed a penalty in the amount of $3,500.00. The Respondent failed to file an appeal of the NOV with AAD and failed to pay the penalty. The OC&I referred the case to RIDEM's collection agency, which resulted in payment of the full penalty assessed in the NOV.



October 1, 2011 - Air File No. 2008 1978 AR, 2008 2190 AR and 08-07 re: Jack Scuilla d/b/a Price Painting for properties located at 376 Benefit Street and 112 Keene Street in the city of Providence. On January 28, 2009, the OC&I issued an NOV to the Respondent alleging that the Respondent violated the RIDEM's Air Pollution Control Regulation No. 24 entitled "Removal of Lead Based Paint from Exterior Surfaces". The violations pertained to the removal of exterior lead paint from residences at the properties in noncompliance with the following standards: operating power sanding equipment without a HEPA vacuum to capture dust from the removal operation, installing inadequate ground sheeting that was not anchored or weighed down to prevent lead paint from being deposited on the ground, failing to notify an adult residing in the dwelling that lead paint was being removed, failing to erect vertical containment shrouds to prevent movement of paint and other debris beyond ground sheeting, failing to close and seal all windows and doors on the working face, and failing to cover air conditioners on the working face. Lead paint removal debris was on the surface of the ground at the time of the inspections; however, follow up inspections shortly thereafter revealed that the Respondent cleaned all lead paint debris. In the NOV, the OC&I assessed a penalty in the amount of $18,000.00. The Respondent failed to file an appeal of the NOV with AAD and failed to pay the penalty. The OC&I referred the case to RIDEM's collection agency. The collection agency reported to the OC&I that it exhausted its efforts to collect the penalty. The OC&I closed its case without collection of any of the administrative penalty assessed in the NOV.



October 5, 2011 - Air File No. 11-13 re: Town of Westerly for wastewater pumping stations on Bradford Road (Bradford station) and Canal Street and Columbus Avenue (Canal/Columbus station) in the town of Westerly. On July 22, 2011, the OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Clean Air Act and RIDEM's Air Pollution Control (APC) Regulation No. 9 - Air Pollution Control Permits. The violation pertained to the installation and operation of a 67 horsepower (HP) diesel fired emergency generator at the Bradford station and a 200 HP diesel fired emergency generator at the Canal/Columbus station without a permit from RIDEM. On May 11, 2011 and May 31, 2011, the Respondent submitted to RIDEM applications for a general permit for the Bradford station and Canal/Columbus station, respectively. The applications stated that the emergency generator at the Bradford station was installed in April 2011 and that the emergency generator at the Canal/Columbus station was installed in June 2010. APC Regulation No. 9 requires a minor source permit from RIDEM for any emergency generator with an internal combustion engine of 50 HP or larger and an initial start up date on or after November 15, 2007. In the NOV, OC&I assessed an administrative penalty of $2,000.00. The Respondent failed to file an appeal of the NOV with AAD. The Respondent agreed to pay an administrative penalty of $1,000.00, which the OC&I agreed to accept as full resolution of the penalty. The penalty has been paid to the OC&I.



October 6, 2011 - Septic System File CI 10-103 re: Paul J. McCabe, Jr. for property located at 12 Allen's Cove, Assessor's Plat 9, Lot 216, in the town of Charlestown. The property includes a residential dwelling and is owned by the Respondent. On December 31, 2010, the OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violation pertained to the overflow of sewage from the sewage disposal system for the dwelling to the surface of the ground. In the NOV, OC&I ordered the Respondent to pump the system as needed to prevent overflows, retain a licensed septic system designer to determine the cause of the failure, and repair the system, if necessary. In the NOV, OC&I assessed an administrative penalty of $1,000.00. The Respondent filed an appeal of the NOV with AAD. The Respondent submitted documentation to the OC&I showing that he does not have the financial means to pay the administrative penalty assessed in the NOV. 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 pump the system as often as necessary to prevent any and all overflows, discontinue all use of the washing machine at the dwelling until the system is repaired, submit a proposal to resolve the violation, which includes an inspection of the system to determine the cause of the failure, and repair the system, if the inspection determines that a repair is necessary. The OC&I waived the administrative penalty assessed in the NOV.



October 7, 2011 - Septic System File CI 10-021 re: Michael A. St. Angelo, Jr. and Lisa A. St. Angelo for property located at 19 Pine Lane, Assessor's Plat 61, Lot 31 in the town of Johnston. The property includes a residential dwelling and is owned by the Respondents. On May 4, 2011, the OC&I issued an NOV to the Respondents alleging that the Respondents violated RIDEM's Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems (effective October 1, 1998). The violation pertained to the installation of a drinking water well and individual sewage disposal system (ISDS) on the property without complying with the minimum separation distance of 100 feet set forth in the regulations. On June 7, 2000, RIDEM approved an application to repair the ISDS. The approval required that: the existing well located in the front of the property be capped with concrete and abandoned, the ISDS be constructed in the front yard; and a new well be constructed in the rear yard. On November 30, 2009, the OC&I inspected the property. The inspection revealed that the new drinking water well and ISDS were constructed in the front yard at a distance of approximately forty-one feet. In the NOV, the OC&I ordered the Respondents to retain a licensed septic system designer to submit an application to repair the ISDS and construct the ISDS in accordance with the approval OR install a drinking water well in accordance with all applicable state and local regulations. In the NOV, the OC&I assessed an administrative penalty of $600.00. The Respondents filed an appeal of the NOV with AAD. The Respondents submitted a site plan to the RIDEM that depicts the proposed location of a new drinking water well to be installed in the rear yard. Prior to an administrative hearing on the NOV, the OC&I and the Respondents executed a Consent Agreement to resolve the NOV. The Respondents agreed to install the new drinking water well as shown on the plan, abandon the existing well, and pay an administrative penalty of $150.00. The penalty was paid upon execution of the Agreement.



October 11, 2011 - Dam File No. 527 (Metcalf Wildlife Marsh Dam) re: SCOBCO Associates and Pauline C. Metcalf for property located northwest of the intersection of Tripps Corner Road and Sheffield Hill Road and east of Gardiner Road, in the town of Exeter. The property includes a dam and associated spillway. The dam is classified by RIDEM as High Hazard. The Respondents own the dam. On May 3, 2011, the OC&I issued an NOV to the Respondents alleging that the Respondents 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 June 24, 2010. The inspection revealed the following: excessive vegetation on the left two thirds of the downstream side of the embankment did not allow a proper inspection to be performed and there was an inoperable low-level gate. In the NOV, the OC&I ordered the Respondents to cut or remove the improper vegetation, retain a registered professional engineer to perform a visual inspection of the dam, submit a report to the OC&I prepared by the engineer on the findings of the inspection, and repair the low-level gate. The OC&I did not assess an administrative penalty. The Respondents filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the OC&I and the Respondents executed a Consent Agreement to resolve the NOV. The Respondents agreed to remove the excess vegetation from the embankment of the dam in the areas specified in the NOV, have the dam inspected by an engineer experienced with dam inspections, submit a report of the inspection's findings to the OC&I, and repair the low-level gate in accordance with an application and plan approved by the OC&I.



October 12, 2011 - Air File No. 11-15 re: Providence Water Supply Board for facilities located at 60 Ashby Street and 134 Bath Street in the city of Providence, 430 Scituate Avenue in the city of Cranston, and 61 North Road in the town of Scituate. On July 27, 2011 the OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Clean Air Act and RIDEM's Air Pollution Control (APC) Regulation No. 9 - Air Pollution Control Permits. The violations pertained to the installation and operation of an emergency generator at each of the facilities without a permit from RIDEM. On May 20, 2011, the Respondent submitted to RIDEM applications for a minor source permit for each of the facilities. The applications stated the following: the emergency generator at the Ashby Street facility was installed in March 1993, is fired with #2 fuel oil and has a maximum heat input capacity of 9.51 million British thermal units per hour (BTU/hr); the emergency generator at the Bath Street facility was installed in February 1997, is fired with #2 fuel oil and has a maximum heat input capacity of 9.51 million BTU/hr; the emergency generator at the Scituate Avenue facility was installed in January 2006, is fired with #2 fuel oil and has a maximum heat input capacity of 6.27 million BTU/hr; and the emergency generator at the North Road facility was installed in May 2001, is fired with #2 fuel oil and has a maximum heat input capacity of 5.65 million BTU/hr. APC Regulation No. 9 requires a minor source permit from RIDEM for any fuel burning device designed to burn liquid fuels having a heat input capacity of 5 million BTU/hr or more. In the NOV, OC&I assessed an administrative penalty of $5,375.00. The Respondent filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the Respondent agreed to pay an administrative penalty of $2,375.00, which the OC&I agreed to accept as full resolution of the penalty. The penalty has been paid to the OC&I.



October 24, 2011 - UST File Nos. 2010-03159 and 2010-03294 re: Town of West Warwick for properties located at 1 Pontiac Avenue and Main Street in the town of West Warwick. The properties include a municipal wastewater treatment facility and a sewerage pumping station. Underground storage tanks (USTs) are located at the facility and the pumping station that are used for storage of petroleum products. On December 31, 2010, the OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). On January 22, 2010, RIDEM's Office of Customer and Technical Assistance (OCTA) issued a letter to all registered facility owners/operators of USTs used for storage of petroleum products that required the owners/operators to inspect their facility and complete and submit to the OCTA a Compliance Certification Checklist, a Certification Statement form and any necessary Return to Compliance Plans (collectively, Compliance Certification Forms). The violation pertained to the failure to submit to the OCTA the Compliance Certification Forms. In the NOV, the OC&I ordered the Respondent to submit the Compliance Certification Forms to the OC&I in accordance with Rule 8.03 of the UST Regulations. OC&I assessed an administrative penalty of $6,000.00. The Respondent filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the Respondent complied with the Order section of the NOV, and the OC&I and the Respondent executed a Consent Agreement to resolve the NOV. The Respondent agreed to pay an administrative penalty of $1,140.00, which was paid upon execution of the Agreement.



October 25, 2011 - UST File No. 2010-00613 re: Mohammed Amer and MCA Enterprises, Inc. for property located at 514 Greenville Avenue in the town of Johnston. The property includes a gasoline service station and underground storage tanks (USTs) that are used for storage of petroleum products. On November 23, 2010, the OC&I issued an NOV to the Respondents alleging that the Respondents violated RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). On January 22, 2010, RIDEM's Office of Customer and Technical Assistance (OCTA) issued a letter to all registered facility owners/operators of USTs used for storage of petroleum products that required the owners/operators to inspect their facility and complete and submit to the OCTA a Compliance Certification Checklist, a Certification Statement form and any necessary Return to Compliance Plans (collectively, Compliance Certification Forms). The violation pertained to the failure to submit to the OCTA the Compliance Certification Forms. In the NOV, the OC&I ordered the Respondents to submit the Compliance Certification Forms to the OC&I in accordance with Rule 8.03 of the UST Regulations. OC&I assessed an administrative penalty of $3,000.00. The Respondents filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the Respondents complied with the Order section of the NOV, and the OC&I and the Respondents executed a Consent Agreement to resolve the NOV. The Respondents agreed to pay an administrative penalty of $750.00, which was paid upon execution of the Agreement.

Superior Court Actions Issued:

October 3, 2011 - Solid Waste File No. 03-012 and Superior Court File No. PC 11-5716 re: Plaintiff Janet L. Coit, Director, RIDEM vs. Defendants James H. Russell, Jr. and Robert Russell for property located at 1 Reservoir Road, Assessor's Plat 48, Lot 34 in the town of Smithfield. The Defendants own the property. On June 30, 2003, the OC&I issued an NOV to the Defendants alleging that the Defendants violated Rhode Island's Refuse Disposal Act and RIDEM's Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials (UST Regulations). The solid waste violations pertained to maintaining approximately 300 cubic yards of mixed solid waste on the property consisting of used vehicle tires, auto rims, processed wood waste, scrap metal, box trailers, 55-gallon drums, truck bodies, wood pallets, an electric transformer that may contain hazardous waste and other mixed solid waste. The UST violations pertained to the abandonment of one or more USTs in violation of the UST Regulations. In the NOV, the Defendants were ordered to remove all solid waste from the property and to submit a permanent closure application for the USTs including a closure assessment report. The Defendants were also ordered to determine whether the transformer contains hazardous waste and, if it does contain hazardous waste, properly manage the waste pursuant to the RIDEM's Rules and Regulations for Hazardous Waste Management. A penalty in the amount of $27,500.00 was assessed in the NOV. The Defendants failed to file an appeal of the NOV at AAD and have failed to comply with the NOV. In the Superior Court complaint, RIDEM is asking the court to order the Defendants to come into compliance with DEM's UST, solid waste and hazardous waste regulations and pay the administrative penalty of $27,500.00.

Superior Court Actions Settled or Resolved:

October 27, 2011 - Septic System File CI 08-21 and Superior Court File No. PC 11-3746 re: Plaintiff Janet L. Coit, Director, RIDEM vs. Defendant Clark A. Whitford Jr., Trustee, The Jason C. Whitford Irrevocable Trust - 1989 for property located at 22 Tripps Corner Road, Assessor's Map 35, Block 2, Lot 4 in the town of Exeter. The property includes a 1-bedroom single family dwelling. On May 5, 2009 the OC&I issued an NOV to the Defendant alleging that the Defendant violated the RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violations pertained to the pumping of sewage from the onsite wastewater treatment system (OWTS) for the dwelling to the surface of the ground with a portable pump. In the NOV the Defendant was ordered to pump the OWTS as necessary to prevent overflows of sewage to the ground surface using a licensed septage hauler, retain a licensed designer to evaluate the cause of the OWTS failure, and repair the OWTS if necessary. The OC&I assessed an administrative penalty of $2,000. The Defendant failed to file an appeal of the NOV at AAD and failed to comply with the NOV. On July 1, 2011, the RIDEM filed a complaint in Superior Court and asked the court to order the Defendant to come into compliance with the NOV. On October 27, 2011, prior to a hearing on the complaint, the RIDEM and the Defendant entered into a Consent Order that was signed by the Court to resolve the complaint. The Consent Order requires the Defendant to repair the OWTS by November 1, 2011 and pay the penalty in monthly installments.