June 2012 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 June 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 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:

June 1, 2012 - Septic System File OWTS-12-41 re: Michael D. Boyajian for property located at 22 Clara Avenue, Assessor's Plat 355, Lot 38 in the city of Warwick. The property includes a residential dwelling and is owned by the Respondent. The OC&I alleges that the Respondent is in violation of the RIDEM's Rules Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems (OWTS Regulations). The violation pertains to the discharge of sewage from the onsite wastewater treatment system (OWTS) for the dwelling to the surface of the ground. On March 26, 2012, the OC&I inspected the property and documented the violation. On March 29, 2012, the OC&I issued an informal written notice to the Respondent for the violation. The Respondent failed to comply with the notice. In the NOV, the OC&I ordered the Respondent to keep the OWTS pumped as often as necessary to prevent sewage overflows, have the OWTS evaluated by a licensed OWTS designer to determine the cause of the failure and repair the OWTS, if necessary. The OC&I assessed an administrative penalty of $1,000.00.

Formal Enforcement Cases Settled or Resolved:

June 7, 2012 - Site Remediation File No. 2001-031 re: Kevin T. Malloy, United States Investment & Development Corporation and Johnston Corp Profit Plan for property located at 1 Mashapaug Street and 11 Mashapaug Street, Assessor's Plat 43, Lots 956, 957, 958, 959 and 989, in the city of Providence. The Johnston Corp Profit Plan had a tax interest in 1 Mashapaug Street, Assessor's Plat 43, Lot 956. Kevin T. Malloy and the United States Investment & Development Corporation (USIDC) are the owners of the property. On April 13, 2001, the RIDEM received notification of a release of a hazardous material on the property and received a site investigation report (SIR). RIDEM evaluated the SIR and determined that lead, arsenic and cadmium were present in the soil in excess of the residential direct exposure criteria set forth in RIDEM's Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases (the Remediation Regulations). The RIDEM issued a Letter of Responsibility to the USIDC in May 2001 and issued a Remedial Decision Letter to the USIDC in June 2001. The Remedial Decision Letter required that USIDC submit a Remedial Action Work Plan (RAWP) to the RIDEM for review and approval. The USIDC failed to submit the RAWP as required. On November 14, 2001 USIDC's corporate charter expired. Kevin T. Malloy was listed as USIDC's president. The Johnston Corp Profit Plan acquired a tax interest in 1 Mashapaug Street, Assessor's Plat 43, Lot 956 on September 14, 2006. On May 9, 2008, the OC&I issued an NOV to Kevin T. Malloy and Johnston Corp Profit Plan alleging that the Respondents violated the RIDEM's Remediation Regulations. The violation pertained to the failure to submit a RAWP to the RIDEM. In the NOV, the OC&I ordered the Respondents to submit a RAWP and application fee of $1,000.00 and assessed a penalty in the amount of $17,000.00. The Respondents filed an appeal of the NOV with AAD. On February 16, 2010, the OC&I issued an Amended NOV. The Amended NOV added USIDC as a named Respondent. At the time the Amended NOV was issued, USIDC had reinstated its corporate charter. The Respondents filed an appeal of the Amended NOV with AAD. On May 18, 2010, the AAD issued an Amended Decision and Order dismissing Johnston Corp Profit Plan as a named Respondent in the Amended NOV. On September 13, 2011, the Respondents submitted a RAWP to the RIDEM, and the RIDEM issued a letter to the Respondents on September 27, 2011 that identified deficiencies in the RAWP. Prior to an administrative hearing on the Amended NOV, OC&I and the Respondents executed a Consent Agreement to resolve the Amended NOV. The Respondents agreed to submit a revised RAWP that addressed all the deficiencies in the RIDEM's letter, record an Environmental Land Use Restriction on the property, and complete all work in accordance with the approved RAWP within three years. The Respondents also agreed to pay an administrative penalty of $4,800.00 in two payments. The first payment of $2,400.00 was paid upon execution of the Consent Agreement. The second payment is due by July 15, 2012.



June 8, 2012 - Air File No. WP 12-04 re: Covalence Specialty Adhesives LLC for a facility located at 51 Ballou Boulevard in the town of Bristol. On May 12, 2009, the RIDEM issued a permit to the Respondent authorizing the emission of air pollutants from the facility. On April 3, 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 violation pertained to the Respondent's failure to comply with its permit. The permit requires the Respondent to: ensure that volatile organic compound (VOC) emissions generated from the pressure sensitive tape and surface coating line be reduced by 96% or greater; ensure that the destruction efficiency of the thermal oxidizer for VOC be at least 96%; and shut down the coating line if a malfunction of the emission capture systems and/or thermal oxidizer results, or could result, in emissions in excess of the permit and continue to keep the coating line shut down until the malfunction has been corrected. On August 2, 2011 and October 24, 2011, the RIDEM received the results of stack testing conducted at the facility on June 8, 2011 and September 8, 2011, respectively. The results revealed that the thermal oxidizer achieved an average VOC destruction efficiency of 93.5% on June 8, 2011 and an average VOC destruction efficiency of 98.0% on September 8, 2011. The Respondent failed to shut down the coating line from June 8, 2011 through September 8, 2011. In the NOV, the OC&I assessed an administrative penalty of $7,500.00. The Respondent paid the penalty in full to resolve the NOV.



June 15, 2012 - 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. On October 13, 2011, the OC&I issued an NOV to the Respondents alleging that the Respondents violated 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 pertained 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. The Respondents filed an appeal of the NOV with AAD. 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 submit revised SAMRs to address the violations alleged in the NOV and pay an administrative penalty of $14,000.00, which was paid upon execution of the Consent Agreement.



June 19, 2012 - Air File No. 11-17 re: Rhode Island College for its campus located at 600 Mount Pleasant Avenue in the city of Providence. On February 13, 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 at the campus without a permit from the RIDEM. On February 5, 2009, the RIDEM issued a written notice to the Respondent for the violations that involve several of the emergency generators that are the subject of this notice. The notice required specific actions to correct the violations. Inspections by the RIDEM in February and March 2011 revealed that the Respondent failed to comply with the notice and installed additional generators without obtaining a required permit from the RIDEM. In April 2011, the Respondent submitted to the RIDEM minor source permit applications for eight diesel-fired emergency generators at the campus, which are located at: New Residence Hall, Clark Science Lab, Gaige Hall Data Center; Fogarty Life Science Classroom; Building 1; Building 7; Donovan Dining Center; and Sweet Hall. The Respondent self-reported to the RIDEM the violations involving Donovan Dining Center and Sweet Hall. The generator at New Residence Hall was installed in August 2007 and has a maximum heat input capacity of 10.5 million British Thermal Units (BTUs) per hour. The generators at the remaining sites were installed after November 15, 2007 and have engines of 50 horsepower (HP) or larger. 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 or for any fuel burning device designed to burn liquid fuels having a maximum heat input capacity of 5.0 million BTUs or more per hour. In the NOV, the OC&I assessed an administrative penalty of $17,000.00. 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 $8,500.00, which was paid as full settlement of the NOV.



June 27, 2012 - Water Pollution File No. 06-07 re: Rollingwood Acres, Inc., Smithfield Peat Co., Inc. and Smithfield Crushing Co., LLC for property located at 961 Douglas Pike, Assessor's Plat 46, Lots 71 and 76 in the town of Smithfield. The property is owned by Rollingwood Acres, Inc. Smithfield Peat Co., Inc. (Smithfield Peat) operates a leaf and yard waste composting facility at the property and Smithfield Crushing Co., LLC operates a rock crushing facility at the property. RIDEM issued a freshwater wetlands permit authorizing Smithfield Peat to construct two stormwater detention basins. On January 9, 1997, January 27, 1997, February 10, 2005, and April 4, 2006, a RIDEM inspector conducted an inspection of the property and observed turbid water discharging from the two stormwater detention basins into an unnamed stream located on the west side of Douglas Pike. On February 9, 2005 and February 10, 2005, a RIDEM inspector conducted an inspection of the property and observed and documented an oil-sheen on the surface of the water in the stormwater detention basins and a flow of oily water entering the detention basins from the property. Smithfield Peat engaged an emergency response contractor to contain and clean up the oil discharge at the direction of RIDEM. On November 6, 2006, the OC&I issued an NOV to the Respondents alleging that the Respondents violated Rhode Island's Water Pollution Act, Rhode Island's Oil Pollution Control Act, the RIDEM's Water Quality Regulations, the RIDEM's Oil Pollution Control Regulations, and the RIDEM's Regulations for the Rhode Island Pollutant Discharge Elimination System. The violations pertained to the discharge of sediment into an unnamed stream and freshwater wetlands without approval from the RIDEM, the release of oil onto the land without approval from the RIDEM, and the failure to stop the release of oil onto the land immediately and report the release to the RIDEM. In the NOV, the Respondents were ordered to install temporary sediment and erosion control devices on the property adequate to minimize further discharge of sediment to the unnamed stream and freshwater wetlands immediately and thereafter maintain them and submit an application to RIDEM for an individual permit for stormwater discharges for the property. OC&I assessed a penalty in the amount of $31,470.00. The Respondents filed an appeal of the NOV with AAD. An administrative hearing was held on September 27, 2011, September 28, 2011, December 1, 2011, December 5, 2011, December 6, 2011, and February 28, 2012. On June 27, 2012, the AAD issued a Decision and Order. The AAD hearing officer upheld the NOV in part and dismissed it in part. The Respondents were ordered to pay $2,615.00 for the discharge of oil onto the land. The AAD hearing officer dismissed the ordered actions and penalty against the Respondents for the discharge of sediment into the unnamed stream and freshwater wetlands.

Superior Court Actions Issued:

None issued this month.

Superior Court Actions Settled or Resolved:

June 4, 2012 - Septic System File No. CI 09-005 and Superior Court File No. PC 12-1915 re: Plaintiff Janet L. Coit, Director, RIDEM vs. Defendant Wale Akinsulire for property located at 191 Shannock Village Road, Assessor's Plat 10D, Lot 22 in the town of Richmond. The property includes a three-bedroom dwelling and is owned by the Defendant. On November 10, 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 violation pertained to the use of a failed septic system for the dwelling. On February 2, 2009, OC&I received records from a licensed septage hauler showing that the septic system was pumped on five (5) separate days from September 2008 through January 2009. The regulations define a failed septic system as one that is required to be pumped more than two times per year. In the NOV, the OC&I ordered the Defendant to reduce the discharge of sewage to the septic system, pump the system as needed to prevent overflows, have the system inspected by a licensed designer to determine the cause of the failure, and repair the system, if necessary. The OC&I assessed an administrative penalty of $600.00. The Defendant failed to file an appeal of the NOV at AAD and failed to comply with the NOV. On April 11, 2012, the RIDEM filed a complaint in the Superior Court asking the Court to order the Defendant to come into compliance with the OWTS Regulations and pay the administrative penalty of $600.00. Prior to a hearing on the complaint, the RIDEM and the Defendant entered a Consent Order with the Court to resolve the complaint. The Defendant agreed to pump the OWTS as needed to prevent the overflow of sewage to the ground surface, submit an application to the RIDEM within 60 days to repair the OWTS, and complete all work on the repair within 180 days of RIDEM's approval of the application. The Defendant also agreed to pay the administrative penalty of $600.00 in 5 payments. The first payment of $200.00 was paid upon entry of the Consent Order. The remaining payments shall be in monthly amounts of $100.00. The Defendant further agreed that, if he failed to comply with the Consent Order, then the dwelling would be vacated until such time as the required work is completed.



June 6, 2012 - Septic System File No. CI05-0054 and Superior Court File No. PC 09-4010 re: Plaintiff W. Michael Sullivan, Director, RIDEM vs. Defendant Maurice J. Murphy for property located at 20 West Street, Assessor's Plat 25, Lot 37 in the town of Hopkinton. The property includes a three-bedroom single family dwelling. On November 23, 2007, OC&I issued an NOV to the Defendant alleging that the Defendant violated RIDEM's 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 septic system on the property to the surface of the ground. In the NOV, OC&I ordered the Defendant to cease the discharge of sewage to the surface of the ground, pump the septic system as needed to prevent overflows, and repair the septic system. OC&I assessed an administrative penalty in the amount of $2,000.00. The Defendant did not file an appeal of the NOV with AAD, so the NOV automatically became a Final Compliance Order enforceable in Superior Court. On March 10, 2009, an inspection of the property by OC&I revealed continuing sewage overflows at the property as evidenced by fluid puddles seen on the surface of the ground and a strong sewage odor. On July 14, 2009, RIDEM filed a complaint in Superior Court. In the complaint, RIDEM asked the Court to order the Defendant to pump the septic system immediately to prevent sewage from overflowing to the ground and continue such pumping until the septic system is repaired, reduce the discharge of sewage to the septic system, repair the septic system and pay the full penalty of $2,000.00 assessed in the NOV. The Court Order required Defendant to pay $2,000.00 to RIDEM within thirty days and submit an application to RIDEM within forty-five days to repair the septic system. The Defendant was required to complete all work on the repair within one hundred twenty days of RIDEM's approval. The Defendant failed to comply with the Court Order, so RIDEM filed a motion for contempt. Prior to a hearing on the contempt motion, the RIDEM and the Defendant entered a Consent Order with the Court. The Defendant agreed to repair the OWTS by October 15, 2012 or have the dwelling vacated until such time as the required work is complete.