September 2010 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 September 2010. 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: September 10, 2010 - Air File No. 10-13 re: Calise & Sons Bakery, Inc. for a facility located at 2 Quality Drive in the town of Lincoln. The OC&I alleges that the Respondent violated Rhode Island's Clean Air Act and RIDEM's Air Pollution Control Regulation (APC) No. 9, entitled Air Pollution Control Permits and APC Regulation No. 14, entitled Record Keeping and Reporting. The violation pertains to the installation and operation of three natural gas ovens without applying for or receiving a minor source permit from RIDEM. RIDEM inspected the facility on February 19, 2010. The inspection revealed that the Respondent installed the ovens on or about September 1, 2000. On March 12, 2010 the Respondent submitted an application to RIDEM for the ovens. The application stated that the facility currently emits thirty tons per year of ethanol, a volatile organic compound (VOC), and began emitting VOCs in excess of twenty-five tons per year in calendar year 2005. The Respondent failed to submit annual VOC emissions statements to RIDEM for calendar years 2005, 2006, and 2007, which are required for any facility emitting twenty-five tons or more per year of VOCs. On July 6, 2010 RIDEM approved the application. In the NOV, OC&I assessed an administrative penalty of $562,736.00.September 15, 2010 - Water Pollution File No. 10-076 re: Town of Portsmouth for properties located in the Island Park and Portsmouth Park neighborhoods. The northern end of Portsmouth includes two saltwater bodies known as the Sakonnet River and The Cove. Island Park lies between the Sakonnet River to the south, Boyd's Lane to the west, and The Cove to the north. Seven storm water drainage pipes convey storm water from throughout the neighborhood to The Cove and six storm water drainage pipes convey storm water from throughout the neighborhood to the Sakonnet River. Portsmouth Park lies between Morningside Lane to the south, East Main Road and Chase Road to the west, Boyd's Lane to the north and the Sakonnet River to the east. Five storm water drainage pipes convey storm water from throughout the neighborhood to the Sakonnet River. The Respondent is the owner of the storm water drainage pipes in both neighborhoods. The OC&I alleges that the Respondent is in violation of Rhode Island's Water Pollution Act and RIDEM's Water Quality Regulations. The violation pertains to the discharge of pollutants (in the form of sewage) from the drainage pipes in the neighborhoods to The Cove and the Sakonnet River. The discharges have resulted in RIDEM prohibiting shellfish harvesting in 109 acres of The Cove and 180 acres of the Sakonnet River and the issuance of an advisory from the Rhode Island Department of Health not to swim in these prohibited areas. In October 2002, May 2003, and December 2009 the Respondent received reports from three separate engineering firms retained by the town to assess wastewater needs within the two neighborhoods. In each report the engineers found that the septic systems within the neighborhoods are subject to frequent failure and/or inadequate treatment caused by the density of the housing stock, the small lot size, the permeability of the soil, and the groundwater table. In the 2003 and 2009 reports the engineers concluded that the only permanent solution was the construction of a sewerage system and wastewater treatment facility for the neighborhoods. The 2009 report, entitled Wastewater Facilities Plan Town of Portsmouth, RI December 2009, was the subject of a public meeting and public hearing within the town. Following the public hearing, the Respondent was required to submit the Facilities Plan to RIDEM for review and approval; however, the Respondent failed to submit the Facilities Plan to RIDEM. In the NOV OC&I ordered the Respondent to submit several reports to RIDEM, specifically, a report on the findings of the Respondent's illicit discharge detection program, the 2003 report revised to address RIDEM's comments, and the Facilities Plan. The NOV further ordered the Respondent to submit an application for approval to construct a sewerage system and wastewater treatment facility serving the neighborhoods within two years of RIDEM approval of the Facilities Plan and complete all construction within three years of RIDEM's approval of the application. In the NOV, OC&I assessed an administrative penalty of $186,019.00.September 17, 2010 - Septic System File CI 09-89 re: Chimera, Inc. for property located off of Tourtellot Hill Road in the town of Glocester, Assessor's Plat 14, Lots 44 and 77. The property includes a mobile home park that is owned by the Respondent. An onsite wastewater treatment system (OWTS) is located on the property that consists of one leach field (located adjacent to the mobile home at 5 Diamond Hill Road) and at least nine septic tanks, with one tank located at each mobile home (the community OWTS). A second OWTS for laundry wastewater is located at 5 Davis Drive (the laundry OWTS). A third OWTS serves the mobile home located at 32 Everson Drive (the Everson Drive OWTS). The OC&I alleges that the Respondent is in violation of RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems. The violations pertain to the overflow of sewage from the community OWTS, the laundry OWTS, and the Everson Drive OWTS to the surface of the ground. On November 5, 2009 and May 12, 2010, OC&I issued a Notice of Intent to Enforce (NIE) to the Respondent. The NIE required the Respondent to take specific corrective actions to resolve the violations. The Respondent failed to comply with the requirements of the NIE. In the NOV, OC&I ordered the Respondent to cease the discharge of laundry waste from the mobile home located at 5 Davis Drive, cease the discharge of sewage to the surface of the ground from the community OWTS and the Everson Drive OWTS, pump the systems as needed to prevent overflows, retain a licensed OWTS designer to determine the cause of the failures, and repair the systems, if necessary. In the NOV, OC&I assessed an administrative penalty of $3,600.00. Formal Enforcement Cases Settled or Resolved: September 21, 2010 - Freshwater Wetlands File No. C03-292 re: 102 Properties, Ltd., Willis Properties, LLC and Norman P. Marsocci for property located northeast of Victory Highway, Route 102 (in the vicinity of Utility Pole Number 25), generally north/northeast of the intersection of Victory Highway (Route 102) and Barnett Lane, west of Route 95 and south-southwest of Robin Hollow Road (in the vicinity of Utility Pole 37), Assessor's Plat 14, Lots 5 & 7 in the town of West Greenwich (the property). The property is owned by 102 Properties, Ltd. The property is situated generally south of a parcel of land owned by Gary F. Malikowski, the location of which is described as approximately 1,000 feet south of Robin Hollow Road, in the vicinity of Utility Pole No. 1965, on property associated with and generally southeast of house number 200, approximately 1,400 feet southeast of the intersection of Robin Hollow Road and Benjamin Reynolds Road, Assessor's Plat 14, Lot 1-3 in the town of West Greenwich (the Malikowski property). On May 12, 1989, RIDEM issued a NOV to A. Cardi Construction Inc., the prior owner of Plat 14, Lot 7, for unauthorized alterations of freshwater wetlands. The violations pertained to the filling, excavating, grading, and clearing within a Pond Complex consisting of three Ponds all greater than ¼ acre in size; filling, excavating, grading, and clearing within 50 foot Perimeter Wetland associated with the Pond Complex; and clearing within a 100 foot Riverbank Wetland associated with a stream less than 10 feet wide. The activities resulted in the unauthorized alteration of approximately ½ acre of Pond Complex, one acre of Perimeter Wetland, and ¼ acre of Riverbank Wetland. The NOV was recorded in the land evidence records of the town of West Greenwich. A. Cardi Construction Inc. did not comply with the NOV. On July 11, 1995 102 Properties Ltd. purchased Plat 14, Lot 7. In accordance with RI General Law Section 2-1-24, any subsequent transferee of the wetland is responsible for complying with the requirements of the restoration order or notice. Inspections performed by RIDEM in May 2003, April 2006, June 2006, and July 2006 revealed that additional freshwater wetland violations were present on the property. On April 5, 2007, OC&I issued an NOV to the Respondents alleging that the Respondents violated Rhode Island's Freshwater Wetlands Act and RIDEM's Freshwater Wetlands Regulations. The violations pertained to the clearing, filling, excavating, and grading within, and elimination of, a Special Aquatic Site/Forested Wetland Complex; clearing, filling, grading within a Stream (< 10 feet wide), filling in a portion of the Stream channel, and diverting Stream flows to an alternate location; clearing, filling, and grading within two 100 Foot Riverbank Wetlands; clearing, filling, and grading within a second portion of the Stream (< 10 feet wide) to construct a gravel road; clearing, filling, and grading within a Swamp to construct a gravel road; clearing, filling and grading within a 50 Foot Perimeter Wetland to construct a gravel road; clearing, filling, and grading within a 50 Foot Perimeter Wetland to create and maintain a soil stockpile area; clearing, filling, grading, and excavating within a 50 Foot Perimeter Wetland to create and maintain storm water basins; and clearing, filling, grading, and excavating within 50 Foot Perimeter Wetland. The activities resulted in the unauthorized alteration of approximately ½ acre of Special Aquatic Site/Forested Wetland Complex, 2,750 square feet of Stream, two acres of 100 Foot Riverbank Wetland, 7,500 square feet of Swamp, and four acres of Perimeter Wetland. In the NOV, the Respondents were ordered to restore all freshwater wetlands on the property and the Malikowski property. OC&I assessed an administrative penalty of $8,600.00. The Respondents filed an appeal of the NOV with AAD. Willis Properties, LLC was able to demonstrate that no unauthorized wetland violations were present on property it owned; therefore, RIDEM dismissed Willis Properties, LLC as a named respondent. Prior to an administrative hearing on the NOV, OC&I and the Respondents executed a Consent Agreement to resolve the NOV. The Respondents agreed to restore the freshwater wetlands on the property and the Malikowski property in accordance with a plan approved by RIDEM on April 28, 2009. The Respondents also agreed to pay an administrative penalty of $5,762, which was paid upon execution of the Agreement. Superior Court Actions Issued: None issued this month. Superior Court Actions Settled or Resolved: None settled or resolved this month.