September 2012 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 2012. 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: None issued this month. Formal Enforcement Cases Settled or Resolved: September 5, 2012 - Air File No. 12-06 re: Arkwright Advanced Coating, Inc. for its facility located at 538 Main Street in the town of Coventry. On August 8, 2012 the OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Clean Air Act and the RIDEM's Air Pollution Control (APC) Regulation No. 29 - Operating Permits. On November 24, 2008 the RIDEM issued an operating permit to the Respondent. The permit requires the Respondent to limit the total quantity of volatile organic compounds (VOCs) discharged to air pollution control device C037 so as not to exceed 350 pounds per hour. The violation pertained to the Respondent's failure to comply with its permit. On March 14, 2012, as a result of RIDEM's request, the Respondent submitted a letter to RIDEM. The letter revealed that the total quantity of VOCs discharged to C037 exceeded 350 pounds per hour from calendar year 2007 through calendar year 2011. In the NOV, the OC&I assessed an administrative penalty of $7,750.00. The Respondent paid the penalty in full to resolve the NOV.September 13, 2012 – OWTS File OWTS 12-50 and CI 11-148 re: Christopher Lage for property located at 15 Marigold Drive, Assessor's Plat 341, Lot 102 in the city of Warwick. The property includes a residential dwelling and is owned by the Respondent. On April 25, 2012 the OC&I issued an NOV to the Respondent alleging that the Respondent violated the RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems (OWTS Regulations). The violation pertained to the discharge of laundry wastewater and wastewater from the onsite wastewater treatment system (OWTS) for the dwelling to the surface of the ground. On November 7, 2011 the OC&I inspected the property and documented the violations. In the NOV, the OC&&I ordered the Respondent to permanently cease the discharge of laundry wastewater to the surface of the ground, keep the OWTS pumped as often as necessary to prevent wastewater overflows, have the OWTS evaluated by a licensed OWTS designer to determine the cause of the failure, and repair the OWTS in accordance with an approval issued by the RIDEM, if it's determined that a repair is necessary. The OC&I assessed an administrative penalty of $800. The Respondent filed an appeal of the NOV with the AAD. Prior to an administrative hearing on the NOV, the OC&I and the Respondent met to discuss the NOV. The Respondent provided paperwork to the OC&&I showing that he applied for approval to connect the plumbing for the dwelling to the city sewerage system two weeks prior to the issuance of the NOV and completed the connection 2 1/2 weeks after the NOV was issued. Given these new facts, the OC&I decided to waive the penalty assessed in the NOV.September 14, 2012 - Air File No. 12-01 re: DSM NeoResins, Inc. for a facility located at 199 Amaral Street in the city of East Providence. On May 4, 2009, the RIDEM issued a permit to the Respondent to emit air pollutants from the facility. The permit requires the Respondent not to exceed a maximum outlet exhaust gas temperature of 50 degrees Fahrenheit at the surface condenser. On May 4, 2012 the OC&I issued an NOV to the Respondent alleging that the Respondent violated RIDEM's Air Pollution Control Regulations. The violation pertained to the Respondent's failure to comply with its permit. On May 25, 2011, June 6, 2011, June 21, 2011, June 22, 2011, September 7, 2011 and October 7, 2011, the Respondent submitted documents to the RIDEM pertaining to the air pollution control equipment at the facility. A review of the documents revealed that the Respondent failed to maintain the outlet gas temperature from the surface condenser at or below 50 degrees Fahrenheit during the period of June 9, 2010 through August 9, 2011. Specifically, the condenser operated for 2770 hours with an outlet gas exhaust temperature above 50 degrees Fahrenheit. In the NOV, OC&I assessed an administrative penalty of $7,500.00. The Respondent paid a penalty of $5,000.00 to resolve the NOV.September 20, 2012 - Air File No. 12-07 re: Roger Williams University for its campus located at 1 Old Ferry Road in the town of Bristol. On July 20, 2012 the OC&I issued an NOV to the Respondent alleging that the Respondent violated Rhode Island's Clean Air Act and the RIDEM's Air Pollution Control (APC) Regulation No. 9 - Air Pollution Control Permits. The violations pertained to the installation and operation of emergency generators on the campus without a permit from the RIDEM. On April 18, 2012, the RIDEM received five minor source permit applications. The applications included the following information: a 75 horsepower (HP) diesel-fired emergency generator was installed on November 28, 2007 at the guard house/main gate; a 85 HP natural gas fired emergency generator was installed in May 2009 at the north campus sewerage pumping station; a 375 HP diesel-fired emergency generator was installed in May 2009 at the main library; a 360 HP natural gas fired emergency generator was installed on June 5, 2009 at the Global Heritage Hall; and a 375 HP diesel-fired emergency generator was installed on June 16, 2009 at the North Residence Hall. The RIDEM's APC Regulation No. 9 requires a minor source permit from the 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, the OC&I assessed an administrative penalty of $5,163.00. The Respondent paid a penalty of $2,663.00 to resolve the NOV.September 26, 2012 - Freshwater Wetlands File No. C06 - 0045 re: Stephen N. Tolias, Martin Petry and John P. Wrenn for property located approximately 1,200 feet north of Putnam Pike and approximately 1,600 feet northeast of its intersection with Highland Lake Terrace at and in the vicinity of New Pond Dam (State ID No. 397) (New Pond Dam), Assessor's Plat 13, Lot 21 in the town of Glocester. The property is owned by Stephen N. Tolias and Janice Strode. The freshwater wetlands affected by the activities alleged in the NOV are located on the property and Assessor's Plat 10C, Lot 17 (owned by the Chepachet Cemetery Association); Plat PA, Lot 8 (owned by Donald F. Lapierre); Plat 13, Lot 131 (owned by Bradley L. Steere and maintained by Dorothy B. Steere (Trustee)); and Plat 13, Lot 12-E (owned by Steven F. Winsor), all located in the town of Glocester (Affected Properties). On April 30, 2008 the OC&I issued an NOV to the Respondents alleging that the Respondents violated Rhode Island's Freshwater Wetlands Act, Rhode Island's Water Pollution Act, Rhode Island's Dam Safety Act, the RIDEM's Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act, and the RIDEM's Water Quality Regulations. The violation pertained to unauthorized alterations of freshwater wetlands caused by a breach in New Pond Dam that was the result of unauthorized work to repair the dam, the discharge of pollutants (in the form of soil) to the waters of the State, and the repair of a dam without prior approval by RIDEM of the plans for such repair. The violation resulted in the unauthorized alteration of approximately 1.6 acres of Swamp, 12.0 acres of Pond, and 6,800 square feet of River. On April 3, 2006, the OC&I received a complaint from the Glocester Public Works Director that New Pond Dam had failed. The OC&I performed an inspection the same day and confirmed a breach in the dam approximately 23 feet long, about 10 feet in depth and approximately 30 feet in width, an empty pond and extensive deposits of sand, gravel and soil deposited in downstream wetlands. A follow up inspection by the OC&I on April 5, 2006 in the dam breach location revealed evidence of material used to carry out dam repair and backfilling operations including plywood, broken wooden planks partially buried in the breach area, sand bags, deposited sand and gravel material. On August 10, 2006 OC&I issued a Notice of Intent to Enforce to the Respondents requiring a detailed restoration plan to remove all fill and to remediate all damage in downstream wetlands. On December 4, 2006 the OC&I met with Mr. Petry and Mr. Wrenn. Mr. Petry stated that he completed the repair to New Pond Dam. Mr. Wrenn provided money to repair the dam along with access to the dam through his property. Mr. Petry stated that Mr. Tolias was aware that the repair work was ongoing. On January 30, 2007, OC&I received an affidavit signed by Mr. Tolias. In the affidavit Mr. Tolias stated he did not give permission to Mr. Wrenn or to Mr. Petry to enter on his land to make repairs to New Pond Dam. On July 17, 2007 OC&I received an affidavit signed by Mr. Wrenn. In the affidavit Mr. Wrenn stated that at no time did he engage in any physical alteration to New Pond Dam. In the NOV, OC&I ordered the Respondents to restore the wetlands and assessed an administrative penalty of $33,000.00. Respondents Wrenn and Tolias filed an appeal of the NOV with AAD. On January 17, 2012 and January 18, 2012 an administrative hearing was held at AAD. The AAD hearing officer issued a Decision and Order on September 26, 2012. In his Decision and Order the AAD hearing officer found that OC&I did not meet its burden of proof and dismissed the NOV against Respondents Wrenn and Tolias. Superior Court Actions Issued: None issued this month. Superior Court Actions Settled or Resolved: September 11, 2012 - Septic System File CI 97-119 and Superior Court File No. PC 11-3577 re: Plaintiff Janet L. Coit, Director, RIDEM vs. Defendants John Wright, Jr. and Jeanne M. Wright for property located at 82 Levesque Street, Plat 262, Lot 313 in the city of Warwick. The property includes a single family dwelling and is owned by the Defendants. On December 4, 2006 the OC&I issued an NOV to the Defendants alleging that the Defendants violated RIDEM's Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems (January 2002) (ISDS Regulations). The violations pertained to the overflow of sewage from the individual sewage disposal system (ISDS) for the dwelling to the surface of the ground and the discharge of laundry waste from the dwelling to the surface of the ground. In the NOV the Defendants were ordered to cease the discharge of laundry waste, pump the ISDS as necessary to prevent overflows of sewage to the ground surface, retain a licensed designer to evaluate the cause of the ISDS failure, and repair the ISDS if necessary. The OC&I assessed an administrative penalty in the amount of $800.00. The Defendants failed to file an appeal of the NOV at AAD and failed to comply with the NOV. On June 23, 2011 RIDEM filed a complaint in Superior Court. In the complaint RIDEM asked the court to order the Defendants to come into compliance with the ISDS Regulations and pay the administrative penalty of $800.00. On September 11, 2012 the court issued an Order requiring the Defendants to: within 60 days retain a licensed designer and have the designer assess the ISDS in the manner described in the NOV and submit the findings of the assessment to the RIDEM; repair the system within 6 months if the system assessment shows that a repair is necessary; and within 60 days pay a penalty of $400.00.September 25, 2012 - Water Pollution File No. 07- 03 and Superior Court File No. PC 12-2185 re: Plaintiff Janet L. Coit, Director, RIDEM vs. Defendant Commerce Park Associates 4, LLC for an approximately 480 acre parcel of land located north of Interstate 95 in the town of West Greenwich, west of Arnold Road and New London Turnpike in the town of Coventry, east of Hopkins Hill Road in the town of Coventry and south of King Street in the town of Coventry (also known as The Centre of New England). On January 23, 2007 the OC&I issued an NOV to the Defendant et.al alleging that the Defendant violated Rhode Island's Water Pollution Act, the RIDEM's Water Quality Regulations, Rhode Island's Freshwater Wetlands Act, and the RIDEM's Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to the discharge of storm water containing soil to waters of the State identified as Tiogue Lake, Little Tiogue Lake, Lake George, Rope Walk Pond, the stream tributary to Rope Walk Pond, Rope Walk Brook, and the stream tributary to Lake George in a concentration that caused turbidity to the State waters in violation of the State water quality standards and the deposition of sediment within the State waters. In the NOV the Defendant was ordered to, among other things, restore the affected water bodies. The OC&I assessed an administrative penalty in the amount of $430,000.00. The Defendant filed an appeal of the NOV with AAD. Prior to an administrative hearing on the NOV, the OC&I and the Defendant executed a Consent Agreement to resolve the NOV. The Defendant agreed to, among other things, restore the portion of Tiogue Lake known as Harrington Cove by March 2011 (which involves the excavation and removal of sediment deposits attributed to The Centre of New England development). The Defendant also agreed to perform a Supplemental Environmental Project (SEP) at a total cost of $225,000.00. The SEP involved the removal of sediment deposits in Lake George, Little Tiogue Lake, and the stream tributary to Lake George by March 2010. The Defendant failed to restore Harrington Cove or any of the waterbodies required pursuant to the SEP. On September 25, 2012 the RIDEM filed a complaint in Superior Court. In the complaint, the RIDEM asked the Court to order the Defendant to restore Harrington Cove, pay the $225,000.00 to the RIDEM in lieu of completing the SEP, and pay stipulated penalties for failing to comply with the deadline to restore Harrington Cove. On September 25, 2012 the court issued an Order requiring the Defendant to provide written contracts to the RIDEM within 14 days to complete the SEP and the restoration of Harrington Cove in accordance with the plans and permits approved for said work and complete all work by March 15, 2013. The Order requires the RIDEM to assist the Defendant if necessary in obtaining access agreements to complete the work. The Order states that if the Defendant completes the work by March 15, 2013 the RIDEM shall waive its rights to seek noncompliance penalties for failing to comply with deadlines in the Consent Agreement. The Order further states that all of the other terms of the Consent Agreement shall remain in full force and effect.