November 2018 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 November 2018. 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 Angela Spadoni at 401-222-4700 ext. 7307. 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:

November 26, 2018 – Hazardous Waste File No. OCI-HW-17-84 re: Branca Brothers, Inc. and Daniel Branca Life Estate for a property located at 50 Starr Street, Assessor’s Plat 5, Lot 221 in the Town of Johnston, Rhode Island. The property includes a facility used as an automobile salvage yard for the resale of automotive parts and a solid waste container leasing operation. Daniel Branca Life Estate owns the property. Branca Brothers, Inc. operates the facility. The OC&I alleges that Respondents are in violation of Rhode Island’s Oil Pollution Control Act, the Rhode Island Code of Regulations (RICR) titled Oil Pollution Control Regulations (250-RICR-140-25-2) and the RICR titled Rules and Regulations for Hazardous Waste Management (250-RICR-140-10-1). View the NOV.

November 26, 2018 – Underground Storage Tank File No. OCI-UST-18-33-00755 re: TMSA REALTY LLC and SHOP N GO, INC. for property located at 711 East Avenue, Assessor’s Plat 63, Lot 744 in the City of Pawtucket, Rhode Island. The property includes a convenience store and a motor fuel storage and dispensing system (facility). TMSA REALTY, LLC owns the property. SHOP N GO, INC. operates the facility. The OC&I alleges that Respondents violated the Rhode Island Code of Regulations titled Rules and Regulations for Underground Storage Facilities Used for Regulated Substances and Hazardous Materials (250-RICR-140-25-1). View the NOV.

November 26, 2018 – Underground Storage Tank File No. OCI-UST-17-26 re: Urban Arms Condominium Association for property located at 45 Urban Avenue and 53 Urban Avenue, Assessor’s Plat 2, Lot 274 in the Town of North Providence, Rhode Island. The property includes two 6-unit residential condominium buildings (facility). Respondent owns the property and operates the facility. The OC&I alleges that Respondent violated the Rhode Island Code of Regulations titled Rules and Regulations for Underground Storage Facilities Used for Regulated Substances and Hazardous Materials (250-RICR-140-25-1). View the NOV.

November 26, 2018 – Air File No. OCI-AIR-18-35 X-ref Approval Nos. 2024, 2097 and 2098 re: J.H. Lynch & Sons, Inc. for a facility located at 50 Lynch Place in the Town of Cumberland, Rhode Island. On April 7, 2010, the RIDEM issued to Respondent a permit (numbers 2024, 2097 and 2098) to emit air pollutants from the facility. The OC&I alleges that Respondent violated the permit and the Rhode Island Code of Regulations titled Air Pollution Control Permits (250-RICR-120-05-9). View the NOV.

Formal Enforcement Actions Settled or Resolved:

November 15, 2018 – Dams File Nos. State I.D. 016 (Pascoag Reservoir Upper Dam – West Dike) and OCI-DAMS-15-1 re: Leo A. Plouffe for a dam located approximately 1,800 feet south of the intersection of High Street and Rock Avenue, approximately 440 feet west of Rock Avenue, Assessor's Plat 191, Lot 80 in the Town of Burrillville, Rhode Island. The dam is classified by the RIDEM as High Hazard. Respondent owns the dam. On October 4, 2016, the OC&I issued an NOV to Respondent alleging that Respondent violated the Rhode Island Code of Regulations (RICR) titled Rules and Regulations for Dam Safety (250-RICR-130-05-1). View the NOV. Respondent did not file an appeal of the NOV to the AAD. Respondent complied with the Order section of the NOV to resolve the NOV.

Superior Court Actions Issued:

None issued this month.

Superior Court Actions Settled or Resolved:

November 26, 2018 – Solid Waste File No. OCI-SW-14-15 and Superior Court File No. PC 16-1150 re: Plaintiff Janet L. Coit, Director, RIDEM vs. Defendant Kenlin Properties, LLC for property located at 1 Dexter Road, Assessor's Map 304, Block 1, Lot 1, Unit 10 in the City of East Providence, Rhode Island. The property included a facility that was engaged in the processing of 50 tons per day or less of construction and demolition (C&D) debris. Defendant Kenlin Properties, LLC (Kenlin) owns the property. Railside Environmental Services, LLC (RES) operated the facility. On or about October 7, 2013, RES submitted to the RIDEM an operating plan and closure plan for the facility. On October 29, 2013, the RIDEM approved the operating plan and closure plan and issued RES its registration. The registration required RES to: operate in accordance with its operating plan; receive no more than 50 tons per day of C&D; receive only C&D; and immediately remove and segregate any co-mingled non C&D waste inadvertently received in a C&D load in a secure roll-off. The operating plan required RES to maintain a maximum of 4 separate piles on the property always (3 piles consisting of C&D and 1 pile consisting of woodchips), with the total amount of C&D limited to 523 cubic yards and the total amount of woodchips limited to 74 cubic yards. The closure plan required RES to limit in size the storage of unprocessed and/or processed C&D debris stockpiles to the financial assurance posted for the closure cost, which was $37,000. In July 2014, Rhode Island’s Refuse Disposal Act was amended to require that all facilities that process C&D apply for and obtain a license from the RIDEM, regardless of the volume of material accepted, effectively removing the distinction that allowed RES to operate with a registration at 50 tons per day or less. On August 22, 2014, the OC&I issued an NOV to Kenlin and RES alleging that Kenlin and RES violated the operating and closure plans and Rhode Island's Refuse Disposal Act, the Rhode Island Code of Regulations (RICR) titled Rules and Regulations for Solid Waste Management Facilities and Organic Waste Management Facilities (250-RICR-140-05-1) and the RICR titled Solid Waste Regulation No. 7 Facilities That Process Construction and Demolition Debris (250-RICR-140-05-7). View the NOV. Kenlin filed an appeal of the NOV with the AAD. RES did not file an appeal of the NOV with the AAD. On September 3, 2014, the RIDEM issued a letter to RES, notifying it of the amended statute and requiring RES to submit a license application to the RIDEM within 90 days of receipt of the letter, while allowing the facility to continue to operate under its registration in the interim. On January 29, 2015, the license application submitted by RES was returned by the RIDEM as incomplete. The RIDEM subsequently issued a notice of revocation of the registration, and RES filed an appeal of the notice of revocation to the AAD. On July 9, 2015, the AAD Hearing Officer issued a Decision and Order upholding the registration revocation. RES filed an appeal of the Decision and Order to Superior Court. On November 23, 2015, the OC&I and Kenlin entered a Consent Order with the AAD that required Kenlin to remove all solid waste, including all wood piles and C&D, from the property. View the Order. Kenlin failed to comply with the Consent Order. On January 7, 2016, summary judgment was awarded to the RIDEM on RES’s appeal of the notice of revocation and the registration revocation became a final Order of the Superior Court. On March 11, 2016, the RIDEM filed a complaint in Superior Court asking the Court to order Kenlin to fully comply with the Consent Order. On June 23, 2016, by agreement of the parties, an Order was entered with the Court that required Kenlin to remove all the solid waste on the property by July 5, 2016, otherwise, stipulated penalties of $250 per day would begin to accrue. On May 10, 2016 and July 26, 2016, a hearing was held at the AAD on the administrative penalty. On May 5, 2017, the AAD Hearing Officer issued a Decision and Order upholding the NOV as a Final Compliance Order. Kenlin did not file an appeal of the Decision and Order to Superior Court. On July 21, 2017, Kenlin completed the removal of all the solid waste on the property. The outstanding penalties owed to the RIDEM by Kenlin and RES together, stemming from both the NOV and the stipulated penalties for the failure to remove the solid waste by July 5, 2016 totaled $180,877. Kenlin and RES failed to pay the outstanding penalties owed. The RIDEM mediated the matter with Kenlin and RES, with the assistance of Superior Court Justice Richard Licht. After considering the comments from Justice Licht, the RIDEM concluded that it would be unlikely to prevail in the collection of all the outstanding penalties owed. The mediation resulted in an agreement on November 1, 2017 that Kenlin and RES would pay $75,000 over 2 years. Those mediated payments did not commence, and the RIDEM agreed to accept a one-time payment of $68,000 as part of settlement of all issues. On November 26, 2018, the settlement agreement was entered by the Court, and Kenlin and RES paid to the RIDEM the $68,000 in accordance with the agreement.