March 2008 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 March 2008. 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:

March 11, 2008 - OC&I/Freshwater Wetlands File No. C95-0244 re: Oscar & Hasmeg Sahagian for property located approximately 190 feet south of Countryside Drive, approximately 450 feet southwest of the intersection of Countryside Drive and West River Parkway, Assessor's Plat 22, Lot 1081 in the Town of North Providence. The property is owned by the Respondents. OC&I alleges that the Respondents are in violation of the Freshwater Wetland Act and RIDEM's Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violation pertains to installation of a fence and wooden bridge across the West River and associated Riverbank Wetland and Floodplain, and construction of a dam/waterfall in the West River. The violations resulted in the unauthorized alteration of approximately 220 linear feet of the freshwater wetlands from the installation of the fence and approximately 100 square feet of the freshwater wetlands from the installation of the wooden bridge and construction of the dam. On March 26, 1973 a Cease and Desist letter was sent to the Respondents for diverting and filling the West River. On April 12, 1973 Respondent Oscar Sahagian submitted an application to the predecessor of RIDEM (Department of Natural Resources (DNR)); however, no record of an approved application was issued by DNR. On July 11, 1994 and October 15, 1996 RIDEM performed an inspection of the property, which revealed the installation of a fence along the eastern property boundary across the West River and associated Riverbank Wetland and Floodplain. On February 7, 1997 a Notice of Intent to Enforce ("NOIE") was issued to the Respondents requiring removal of the fence. After the Respondents failed to comply with several deadline extensions, on January 13, 1998 OC&I issued a failure to comply letter to the Respondents. OC&I received a request for a meeting from Respondent's attorney on February 2, 1998; however, OC&I has no record in its file that a meeting was held. On October 28, 2004 and April 24, 2007 OC&I performed inspections of the property, which revealed that the fence along the eastern property boundary was still in place and that an additional fence had been installed along the western property boundary along with the wooden bridge and dam. In the NOV, OC&I ordered the Respondents to cease and desist from any further wetland alterations and to restore all freshwater wetlands. OC&I assessed an administrative penalty of $3,500.00.



March 20, 2008 - OC&I/Water Pollution File No. WP 08-010 re: Sakonnet Point Club and Reagan Construction Corp. for property located at 11 Bluff Head Avenue in Little Compton. The property includes a yacht club and desalination water treatment facility to supply drinking water to the yacht club. Sakonnet Point Club ("SPC") is the owner of the property. Reagan Construction Corp. ("Reagan") was contracted by SPC to construct a wastewater outfall pipe for the water treatment facility. The OC&I alleges that Respondent SPC is in violation of the Water Pollution Act, RIDEM's Water Quality Regulations, and RIDEM's Regulations for the Rhode Island Pollutant Discharge Elimination System. The OC&I alleges that Respondent Reagan is in violation of the Water Pollution Act and RIDEM's Water Quality Regulations. SPC's violations pertain to the failure to discharge wastewater at the authorized depth, failure to perform analytical testing, and the failure to provide accurate information to RIDEM. Reagan's violation pertains to the unauthorized discharge of concrete to State waters. On November 29, 2002 RIDEM issued a permit to SPC that authorized the discharge of treated wastewater from the water treatment facility to the Sakonnet River. As part of the permit, RIDEM approved the construction of a wastewater outfall pipe to the Sakonnet River. The permit required SPC to discharge wastewater from the outfall pipe at a depth of 13 feet below sea level, perform analytical testing 1 day each month, and provide true and accurate information to RIDEM. The approved plans for the wastewater outfall pipe also required the installation of two (2) pre-cast concrete blocks to support the pipe. On or about August 17, 2007, RIDEM received an inquiry from a private citizen on whether the outfall pipe was constructed at the proper depth. RIDEM requested that SPC provide an "as built" plan, which was provided to RIDEM on September 14, 2007 and showed that the pipe was constructed 23 feet below sea level. Upon further inquiries by RIDEM, SPC had a diver inspect the pipe, which revealed that the pipe was constructed only 7 � feet below sea level. On September 14, 2007 and October 22, 2007 RIDEM received copies of letters from Reagan to SPC. The letters stated that a concrete block was installed at the diffuser and that 10 cubic yards of concrete was pumped into the water to encase the wastewater outfall pipe from the diffuser to the breakwater [in lieu of installing a concrete block at the breakwater]. Reagan did not have authorization from RIDEM to discharge concrete into the waters of the State. On October 9, 2007 SPC submitted to RIDEM a Discharge Monitoring Report (DMR) for the quarter of July 1, 2007 through September 30, 2007. The DMR did not include any reported analytical results for September and the DMR stated that there were no discharges in September. On October 19, 2007 RIDEM issued a letter to SPC advising SPC that the wastewater outfall pipe was not constructed in accordance with the approved permit and that the discharge of wastewater through the current outfall pipe is not authorized by the permit. On October 26, 2007 SPC submitted a letter to RIDEM that stated discharges occurred over 9 separate days in August and 3 separate days in September, and that a total of 3,960 gallons of wastewater was discharged over the 12 days. The concrete that had been pumped into the water was removed to facilitate the reconstruction of the wastewater outfall pipe to comply with the permit. In the NOV, OC&I assessed an administrative penalty of $33,750.00 to SPC and an administrative penalty of $6,250.00 to Reagan.



March 24, 2008 - OC&I/Freshwater Wetlands File No. 2007 552 FW re: Paul J. & Emily A. Neves for property located approximately 700 feet north of the intersection of Black Plain Road and Mattity Road and approximately 100 west of Black Plain Road, Assessor's Plat 11, Lot 246, formally a portion of Assessor's Plat 11, Lot 145 in the Town of North Smithfield. The property is owned by the Respondents. OC&I alleges that the Respondents are in violation of the Freshwater Wetland Act and RIDEM's Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violation pertains to clearing, filling (in the form of at least soil material), and creating soil disturbance within a Wetland Complex and Perimeter Wetland. The violations resulted in the unauthorized alteration of approximately 8,000 square feet of the Wetland Complex and 12,250 square feet of Perimeter Wetland. On September 17, 2004 and March 16, 2005 the previous owner of the property submitted applications to RIDEM to construct a house on the property. RIDEM advised the prior owner that no permit was required as the work proposed was located outside any freshwater wetland areas on the property. On March 14, 2007 and March 23, 2007 OC&I conducted an inspection of the property, which revealed that unauthorized alterations of freshwater wetlands were evident. Respondent Paul Neves was advised by the OC&I inspector during both inspections to cease further work within the wetland areas. On April 4, 2007 a Notice of Intent to Enforce ("NOIE") was issued to the Respondents requiring restoration of the unauthorized altered freshwater wetlands on the property. In response to additional citizen complaints, OC&I performed an inspection of the property on May 9, 2007, which revealed continued filling (placing loam) within the freshwater wetlands. The OC&I inspector issued a written Cease and Desist Order to Respondent Paul Neves at that time. OC&I was advised by the prior owner that he advised Respondent Paul Neves of the prior applications and that buffer zone markers delineating the outer edge of the Perimeter Wetland were in place when the Respondents purchased the property. In the NOV, OC&I ordered the Respondents to cease and desist from any further unauthorized wetland alterations and to restore all freshwater wetlands. OC&I assessed an administrative penalty of $10,000.00.



March 25, 2008 - OC&I/Freshwater Wetlands File No. 2007 428 FW (AMENDED) re: OBF, LLC and Craig S. Hibbad for property located approximately 200 feet north of Simmons Road, at utility pole No. 20, approximately 800 feet west of the intersection with East Main Road, Assessor's Plat 29, Lot 18, in the Town of Little Compton. The property is owned by OBF, LLC (Craig S. Hibbad, Manager). The RIDEM Division of Agriculture (" Agriculture") advised OC&I that Respondent Hibbad was a farmer. On September 18, 2007 OC&I issued a Notice of Violation ("NOV") to the Respondents. In the NOV OC&I alleged that the Respondents violated the Freshwater Wetland Act and RIDEM's Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to filling (in the form of at least sand, gravel and rocks), excavating and installing a house foundation with associated building materials within a Swamp-Marsh Wetland Complex, filling (in the form of at least sand, gravel, and rocks) within a 50-Foot Perimeter Wetland, and filling (in the form of eroded sediments) within an Area Subject to Storm Flowage (ASSF). These activities resulted in the unauthorized alteration of approximately 11,500 square feet of Swamp-Marsh Wetland Complex, 2,800 square feet of Perimeter Wetland, and 20 linear feet of ASSF. In the NOV OC&I ordered the Respondents to restore the altered wetlands except for alterations allowed for normal farming activity. OC&I assessed an administrative penalty of $5,500.00. The Respondents filed an appeal of the NOV with AAD. On November 9, 2007 representatives of OC&I inspected the property, which revealed that the Respondents had performed additional filling (in the form of construction debris and other solid waste materials) in the 50-foot Perimeter Wetland. On February 6, 2008, Agriculture advised OC&I that the Respondents do not meet the definition of a farmer pursuant to RIGL 2-1-22(i)(1) and (j). In consideration of this information OC&I determined that additional violations involving the installation of fencing and clearing within the Swamp-Marsh Wetland Complex and Perimeter Wetland that had been previously documented by OC&I also represented unauthorized alterations to freshwater wetlands. These violations resulted in the unauthorized alteration of approximately 1.4 acres of the freshwater wetlands. In the Amended NOV, OC&I order the Respondents to cease and desist from any further alterations and to restore all freshwater wetlands except for alterations subject to exemptions allowed for normal farming activity. OC&I assessed an administrative penalty of $5,500.00.



March, 2008 Septic System Notices of Violation issued by the OC&I:

The OC&I alleges that the Respondent(s) in all of the following referenced cases are in violation of RIDEM's Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Individual Sewage Disposal Systems promulgated January 2002 or RIDEM's Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction and Maintenance of Onsite Wastewater Treatment Systems promulgated January 1, 2008. The violations pertain to the overflow of sewage from the sewage disposal system that is located on the property to the surface of the ground and/or the failure of the sewage disposal system. In each case OC&I issued at least one Notice of Intent to Enforce ("NOI") to the Respondent(s). The NOI required the Respondent(s) to take specific corrective actions to resolve the violation. In each case the Respondent(s) failed to comply with the requirements of the NOI. In the NOV, OC&I ordered the Respondent(s) to cease the discharge of sewage to the surface of the ground, pump the system as needed to prevent overflows, and/or repair the system.



OC&I assessed the following administrative penalties against each named Respondent: Lyle and Shirley Monroe ($800.00), Walter and Maria Harpin ($600.00) and James A. Mathews ($400.00).



March 3, 2008 - OC&I/Septic System File No. CI 95-289 re: Lyle & Shirley Monroe for property located at 581 Trimtown Road, Assessor's Plat 42, Lot 42 in the Town of Scituate. The property includes a seven-bedroom single family dwelling owned by the Respondents.



March 21, 2008 - OC&I/Septic System File No. 2007 743 IS and CI07-0102 re: Walter and Maria Harpin for property located at 40 Mapledale Street, Assessor's Plat 54, Lot 134 in the Town of Coventry. The property is assessed as a three-bedroom single family dwelling owned by the Respondents.



March 21, 2008 - OC&I/Septic System File No. 2007 1516 IS and CI07-0193 re: James A. Mathews for property located at 11 Hilltop Drive, Assessor's Plat 219, Lot 74 in the City of Warwick. The property is assessed as a single family dwelling owned by the Respondent.

 

Formal Enforcement Cases Settled or Resolved:

March 11, 2008 - OC&I/Hazardous Waste File No. 06-065 re: Swarovski North America, LTD for property located at One Kenney Drive, Assessor's Plat 13, Lot 50 in the City of Cranston. The Respondent operates a manufacturing facility at this location. On August 30, 2007 the OC&I issued a NOV to the Respondent alleging that the Respondent violated RIDEM's Rules and Regulations for Hazardous Waste Management ("the Hazardous Waste Regulations") and applicable sections of Title 40 of the Code of Federal Regulations pertaining to the management of hazardous waste. The violations pertained to Respondent's failure to place an accumulation start date on a container of hazardous waste in storage, storing a container of hazardous waste for more than 90 days without a permit, failing to determine if wastes generated at the facility meet the definition of a hazardous waste, failing to meet all of the hazardous waste manifest requirements by forwarding a copy to the destination state as required, failing to provide the requisite hazardous waste training to one of Respondent's employees that manages hazardous waste, failing to ensure that all fire protection equipment is tested and maintained as necessary and failing to keep all containers of universal waste closed as required. In the NOV the OC&I ordered the Respondent to achieve compliance with the Hazardous Waste Regulations and assessed an administrative penalty in the amount of $9,500.00. The Respondent filed an appeal of the NOV with the AAD. Prior to hearing, the Respondent and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent achieved compliance with the order section in the NOV and agreed to pay a penalty in the amount of $7,600.00. The penalty was paid upon execution of the Consent Agreement.



March 12, 2008 - OC&I/Septic System File No. CI 99-27 re: Donna Rodriguez for property located at 45 Cobble Hill Road, Assessor's Plat 15, Lot 40 in the Town of Lincoln. The property is assessed as a three-bedroom single family dwelling owned by the Respondent. On November 23, 2007 OC&I issued an NOV to the Respondent alleging that the Respondent 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 discharge of laundry waste to a stream. In the NOV the Respondent was ordered to cease the laundry discharge, submit a written proposal for a permanent solution to the violation, and complete all work after approval by RIDEM. OC&I assessed an administrative penalty in the amount of $400.00. The Respondent complied with the ordered actions in the NOV and paid the administrative penalty.



March 14, 2008 - OC&I/UST File No. 07- 00399 re: the Town of North Providence pertaining to its police and fire complex located at 1967 Mineral Spring Avenue, Assessors Plat 21A, Lot 816 in the Town of North Providence. The Respondent owns and operates 3 USTs at this location consisting of an 8,000-gallon gasoline UST, a 6,000-gallon diesel fuel UST and a 5,000-gallon No. 2 heating oil UST. On February 6, 2007 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, ("the UST Regulations"). The violations pertained to Respondent's failure to protect product piping lines for its gasoline and diesel fuel USTs from corrosion; complete inventory control records for the same USTs from March 2003 through March 2006; failure to test the tightness for its product piping lines from 2000 through 2005; failure to keep spill containment basins for its USTs free of liquids and debris; and failure to label or secure from tampering the UST field observation wells at this facility. Despite a Letter of Noncompliance ("LNC") issued on March 20, 2006, a follow up letter issued on May 30, 2006 and several telephone calls to the Respondent regarding the violations, the Respondent did not resolve all violations at the facility. OC&I has determined that the Respondent has conducted tightness testing for all USTs and product piping lines in 2006 and reportedly passed each test. In the NOV, the OC&I ordered the Respondent to achieve full compliance with the UST Regulations and assessed a penalty in the amount of $9,036.00. The Respondent filed an appeal of the NOV with the AAD. Prior to hearing, the Respondent and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondent proposed and the OC&I agreed to allow the Respondent to conduct a Supplemental Environmental Project ("SEP"). The SEP consisted of the removal of the gasoline USTs from the Respondent's property thereby removing any future threat of contamination in the event that the gasoline USTs leak. The Respondent agreed not to replace the USTs. The OC&I allowed the Respondent to offset all but $768.00 of the penalty assessed in the NOV based on the costs of removal of the USTs. The cost of removing the USTs was estimated to be $22,680.00. The $768.00 represented the economic benefit for noncompliance set forth in the NOV. The Respondent has until July 31, 2008 to pay the $768.00.



March 21, 2008 - OC&I/Water Pollution File No. 04-18 re: Portsmouth School Department. The Portsmouth School Department is the owner and operator of the Portsmouth Middle School's wastewater treatment facility located in the Town of Portsmouth. On May 25, 2005 OC&I issued an NOV to the Respondent alleging that the Respondent violated the Water Pollution Act, the RIDEM Water Quality Regulations, and the RIDEM Rhode Island Pollutant Discharge Elimination System (RIPDES) Regulations. The violation pertained to the discharge of pollutants (in the form of carbonaceous biochemical oxygen demand (BOD), suspended solids, total chlorine, and fecal coliform bacteria) along with effluent that did not meet pH limits from the facility to an unnamed brook that flows into Narragansett Bay. The discharge and effluent had concentrations of pollutants that exceeded the limits in the Respondent's wastewater discharge permit. The permit required the Respondent to summarize monitoring results obtained during the previous month and report these results on Discharge Monitoring Report (DMR) Forms to RIDEM. The Respondent failed to submit the DMR Forms to RIDEM as required by the permit for the years 1990 through 1994, 2001, 2002 and the months of January 1995, September 1998, September 2000 through December 2000, and August 2004 through December 2004. The DMR Forms that were submitted to RIDEM for the months of January through August 2000 and January 2003 through June 2004 identified violations of the monthly average limits for BOD, suspended solids, pH, total chlorine, and fecal coliform bacteria for one or more pollutants in each month. The violations were as high as 220% over the limit for BOD, 300% over the limit for suspended solids, 50% over the limit for pH, 290% over the limit for total chlorine, and 700% over the limit for fecal coliform bacteria. The Respondent also failed to report the violations immediately to RIDEM as required by the permit and failed to perform required sampling of the wastewater as required by the permit. In the NOV the Respondent was assessed a penalty in the amount of $116,150.00 including $3,650.00 for the economic benefit from noncompliance. The penalty was based only on the violations that occurred in 2004. The Respondent filed an appeal of the NOV with the AAD and filed a subsequent pleading with the Superior Court to have the NOV dismissed. The Respondent argued in Superior Court that a Consent Agreement entered between RIDEM and the Respondent on June 1, 2005 to resolve an appeal of an action taken by RIDEM to terminate the discharge permit barred RIDEM from seeking the remedies set forth in the NOV. On March 10, 2008 the Superior Court ruled that (1) the Consent Agreement bars the RIDEM from seeking any remedies as set forth in the NOV; and (2) acts as full accord and satisfaction for any alleged violations set forth in the NOV; and (3) that RIDEM lacks the authority to seek administrative enforcement of the violations alleged in the NOV. An Order Dismissing the NOV was signed by the RIDEM Director on March 21, 2008.



March 24, 2008 - OC&I/Septic System File No. CI 93 - 569 re: Leslie A. Mathews for property located at 99 Charlotte Drive, Plat 201, Lot 134 in the City of Warwick. The property includes a single family dwelling owned by the Respondent. On December 4, 2006 OC&I issued an NOV to the Respondent alleging that the Respondent 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 discharge of sewage from the septic system on the property to the surface of the ground. In the NOV the Respondent was ordered to pump the septic system as necessary to prevent overflows of sewage to the ground surface, retain a licensed designer to evaluate the cause of the failure, and repair the system if necessary. OC&I assessed an administrative penalty in the amount of $800.00. The Respondent failed to file an appeal of the NOV with AAD. Respondent submitted an application to RIDEM to approve repairs to the septic system. The application was approved by RIDEM on March 7, 2007, and the system was constructed and conformed by RIDEM on May 17, 2007. In lieu of proceeding to Superior Court to enforce the NOV, the Respondent and OC&I executed a Consent Agreement to resolve the NOV. The Respondent agreed to pay an administrative penalty of $400.00, which was paid upon execution of the Consent Agreement.



March 25, 2008 - OC&I/Hazardous Waste File No. 05 - 016 re: Paul Sampson d/b/a Furniture and Metal Stripping and Romeo A. Sampson for property located at 162 Market Street, Assessor's Plat 10, Lot 79, 79A and 79B in the Town of Warren. Respondent Romeo A. Sampson owns the Property. Respondent Paul Sampson operates the facility d/b/a Furniture and Metal Stripping. On January 6, 2006 the OC&I issued an NOV to the Respondents alleging that the Respondents violated RIDEM's Rules and Regulations for Hazardous Waste Management and Title 40 of the Code of Federal Regulations enforced by the RIDEM and pertaining to the management of hazardous waste. The violations pertained to Respondents' failure to obtain a permit for the treatment, storage or disposal of hazardous waste, failure to properly label all hazardous waste containers, failure to mark all hazardous waste containers with the storage accumulation start dates, failure to conduct weekly inspections of hazardous waste containers in storage and to maintain a log of the weekly inspections, failure to have a contingency plan in the event of an accident or release involving hazardous waste, failure to have a training program for employees that manage hazardous waste, failure to notify the RIDEM in the event of a spill or release of hazardous waste, and failure to properly complete hazardous waste manifests used to ship hazardous waste. In the NOV, the OC&I ordered the Respondents to discontinue the treatment and disposal of hazardous waste, conduct a site investigation in accordance with RIDEM's Rules and Regulations for the Investigation and Remediation of Hazardous Material Releases to determine the extent of any release of hazardous waste, develop a remediation plan for the clean up and removal of the waste, and achieve compliance with all other hazardous waste rule management requirements cited in the NOV. The OC&I assessed a penalty in the amount of $25,099.00 against Respondent Paul Sampson and $10,000.00 against Respondent Romeo A. Sampson. The Respondents filed an appeal of the NOV with the AAD. Prior to hearing the OC&I and the Respondents agreed to execute a Consent Agreement to resolve the NOV. The Respondents resolved all of the orders in the NOV except for site remediation. In the Consent Agreement the Respondents agreed to complete all site investigation work, remove contamination and close the contaminated area on the property consistent with RIDEM's Site Remediation Regulations. The OC&I agreed to drop penalties assessed against Respondent Romeo Sampson. Respondent Paul Sampson agreed to pay a penalty in the amount of $12,800.00. The OC&I allowed Respondent Paul Sampson to pay $3,500.00 upon execution of the Consent Agreement and the remaining penalty of $9,300.00 in 24 monthly payment installments of $387.50 each. The initial $3,500.00 was paid upon execution of the Consent Agreement.

 

Superior Court Actions Issued:

None issued this month.

Superior Court Actions Settled or Resolved:

None settled or resolved this month.