October 2004 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 October 2004. 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:

October 4, 2004 - OC&I/Septic System File No. CI 91-69 re: Sandra M. Barron for property located at 590-596 Danielson Pike, Assessor's Plat 33, Lot 26 in the Town of Scituate. The property includes three (3) motel/apartment buildings and a residential house/office. OC&I alleges that the Respondent is in violation of the Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction, and Maintenance of Individual Sewage Disposal Systems (ISDS Regulations). The violation pertains to the discharge of sewage to the surface of the ground from the sewage disposal system for the motel/apartment buildings. The sewage was being discharged through use of a portable sump pump installed in the sewage disposal system. OC&I issued a Notice of Intent to Enforce (NOI) to the Respondent on October 17, 2002 for improper maintenance of the septic system (piece of plywood used as a cover). In the NOI the Respondent was warned that the pumping of sewage to the ground surface was a violation of the ISDS Regulations. The Respondent failed to comply with the NOI. In the NOV the Respondent was ordered to immediately have the septic system pumped by a licensed septage hauler to prevent any and all sanitary sewage from overflowing on the property or backing up into the buildings; take steps to reduce the discharge of sewage to the disposal system through the use of water conservation devices, immediately remove all pipes and sump pump from the septic tank; cease further pumping of sewage waste from the septic system, and have the septic system inspected and repaired. OC&I assessed a penalty in the amount of $1,800.00.



October 4, 2004 - OC&I/Septic System File No. CI 01- 49 re: Betty Ann King-Smith for property located at 6 Monson Street, Assessor's Plat 8, Lot 165 in the Town of Johnston. The property includes a single-family dwelling. OC&I alleges that the Respondent is in violation of the ISDS Regulations. The violation pertains to the discharge of sewage to the surface of the ground from the sewage disposal system for the dwelling. OC&I issued a Notice of Intent to Enforce (NOI) to the Respondent on April 12, 2001 for the septic system failure on the property. In the NOI the Respondent was required to pump the system as needed to prevent sewage overflows and have the system inspected and repaired, if necessary. The Respondent failed to comply with the NOI. In the NOV the Respondent was ordered to cease the discharge of sewage to the surface of the ground and to repair the failed septic system. OC&I assessed a penalty in the amount of $3,000.00.



October 12, 2004 - OC&I/Freshwater Wetlands File No. C02-0042 re: David and Constance DeLoia for property located approximately 150 feet southwest of West Road, at House Number 379, near Utility Pole Number 9, approximately 1,300 feet southwest of the intersection of West Road and Round Top Road, Assessor's Plat 56, Lot 13, in the Town of Burrillville. OC&I alleges that the Respondents are in violation of the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertain to filling, grading, grubbing, installing culvert pipes, and creating soil disturbance to construct a driveway and retaining walls; installing fencing; stockpiling materials within freshwater wetlands; and constructing a garage and barn. These activities have resulted in the unauthorized alteration of approximately 90 linear feet of River channel (450 square feet of Freshwater Wetland) and 42,000 square feet of 100-foot Riverbank Wetland. The Respondent was advised of the violations by DEM during a July 11, 2001 inspection. An inspection on March 30, 2004 revealed that the site was substantially unchanged from the prior inspection. In the NOV the Respondents were ordered to restore all freshwater wetlands. OC&I assessed a penalty in the amount of $1,700.00.



October 26, 2004 - OC&I/Septic System File No. CI94-404 re: Henderson Realty, Inc. and Coventry Donuts, Inc. for property located at 800 Tiogue Avenue, Assessor's Plat 29, Lot 36, in the Town of Coventry. The property is owned by Henderson Realty, Inc and includes a donut shop (Dunkin Donuts) that is operated by Coventry Donuts, Inc. OC&I alleges that the Respondents are in violation of the ISDS Regulations. The violation pertains to the discharge of sewage to the surface of the ground from the septic system at the property. OC&I issued a Notice of Intent to Enforce ("NOI") to Respondent Henderson Realty, Inc. on August 8, 2003 for the septic system failure on the property. The NOI required that the septic system be pumped as needed to prevent sewage overflows and that the system be inspected and repaired. Respondent Henderson Realty, Inc. failed to comply with the NOI. OC&I previously issued a NOV to Respondent Henderson Realty, Inc. on July 11, 2001 for the same violation on the property. Respondent Henderson Realty, Inc. repaired the septic system at that time. In the NOV OC&I ordered the Respondents to cease discharge of any and all types of wastewater to the septic system until such time as the sewerage system at the property is connected to the municipal sewerage system. OC&I assessed a penalty in the amount of $2,000.00.



October 26, 2004- OC&I/License No. L0438 Septic System File No. CI03-206 re: Howard C. Richmond for property located at 614 Alton Carolina Road in the Town of Charlestown. The OC&I alleges that the Respondent violated Rhode Island General Laws, Section 5-56-1 relating to requirements for licensed septic system installers and Section SD 2.01(a) of the ISDS Regulations. The violations pertain to repairing an existing septic system without approval from RIDEM. OC&I issued a Notice of Intent to Suspend or Revoke the Respondent's license on October 3, 2003 and afforded the Respondent an opportunity to meet with OC&I to explain what occurred and show that he had complied with all lawful requirements. The Respondent received the Notice, but did not request an opportunity to meet with OC&I. The Respondent provided correspondence to OC&I on October 16, 2003 and again on November 28, 2003 to show that he had complied with all lawful requirements. The Respondent failed to show through the documents submitted that he had complied with all lawful requirements. In addition, the Respondent has a history of non-compliance with the ISDS Regulations. The Respondent's license was previously suspended by DEM on 2 separate occasions in June 1978 and July 1986 for altering or repairing an ISDS without approval from DEM. In the NOV OC&I ordered that License No. L0438 issued to the Respondent be revoked. OC&I assessed a penalty in the amount of $1,000.00.



October 28, 2004 - OC&I/UST File No. 04-01818 re: Anthony J. Paolino, Monica A. Paolino and Hitesh Mehta d/b/a BD Food Mart for property located at 189 Hartford Pike, Assessor's Plat 17, Lot 85B in the Town of Foster. The OC&I alleges that the Respondents are in violation of the Rules and Regulations for Underground Storage Facilities Used for Petroleum Products and Hazardous Materials ("the UST Regulations"). The violations pertain to Respondents' failure to compile monthly inventory reconciliation records for 2 USTs from April 2001 through April 2004, failure to perform annual functionality testing of the line leak detectors for 2 USTs during the years 1997 through 2003, failure to maintain the piping collection sumps for 2 USTs, failure to perform monthly testing of the continuous monitoring system ("CMS") from April 2001 through April 2004, failure to perform annual certification/testing of the CMS from 1997 through 2003 and failure to maintain the spill containment basins for 2 USTs free of liquids or solid debris. The Respondents were notified of their non-compliance with the UST Regulations in a Letter of Non-Compliance ("LNC") issued on May 10, 2004 and were allowed to voluntarily resolve the non-compliance issues raised in the LNC. The Respondents did not reply to the LNC. In the NOV, the OC&I ordered the Respondents to achieve compliance with the UST Regulations and assessed a penalty in the amount of $12,031.00.



October 28, 2004 - OC&I/UST File No. 04-02881 re: J&&M Service Center, Inc. and West Shore Realty Associates, Ltd. for property located at 1710 West Shore road, Assessor's Plat 358, Lot 320 in the City of Warwick. The OC&I alleges that the Respondents are in violation of RIDEM's UST Regulations. The violations pertain to Respondents' deactivation of the annular space sensor for a 6000-gallon gasoline UST at the facility and the piping collection sump sensors for 3 gasoline USTs in addition to Respondents' failure to notify RIDEM of the deactivation, failure to utilize the CMS to perform a 0.2 gallon per hour leak test for 2 of Respondents' USTs on a monthly basis, and failure to perform tank tightness testing for 2 USTs during the year 2003. RIDEM's inspection determined that one of the USTs at the facility had been filled beyond 95% of its capacity indicating a malfunction of the overfill protection device for the UST. In the NOV, the OC&I ordered the Respondents to achieve compliance with the UST Regulations and assessed a penalty in the amount of $8,350.00.

 

Formal Enforcement Cases Settled or Resolved:

October 1, 2004 - OC&I/Freshwater Wetlands File No. C01-0183 re: Hillside Construction Co., Inc. for property located southeast of Pound Road, at utility pole number 9, northeast of the intersection of Diamond Hill Road and Pound Road, Assessor's Plat 38, Lot 29 in the Town of Cumberland. On August 27, 2001 OC&I issued an NOV to the Respondent alleging that the Respondent violated the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to the Respondent's failure to abide by multiple permit conditions associated with a permit issued by the DEM on October 26, 2000 for the construction of a single-family dwelling. In addition, the Respondent altered approximately 2,950 square feet of 50-foot Perimeter Wetland beyond that authorized in the permit. The Respondent did not comply with a Letter of Noncompliance issued on April 25, 2001 and did not comply with a Cease and Desist order issued by DEM. In the NOV OC&I ordered compliance with all permit conditions not met to date and ordered restoration of the unauthorized altered wetlands. OC&I assessed a penalty in the amount of $5,800. The Respondent failed to appeal the NOV to AAD. 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 restore the freshwater wetlands and submit a plan to OC&I illustrating the location of a relocated deck and deck stairs associated with the dwelling constructed at the property that were authorized by OC&I to remain. The Respondent also agreed to pay a reduced penalty of $3,000.00 and a review fee of $150.00. The penalty and review fee were paid upon execution of the Consent Agreement.



October 1, 2004 - OC&I/Freshwater Wetlands File No. C02-0076 re: Hillside Construction Co., Inc. for property located at 51 Hazebrouck Street, Assessor Plat 52, Lot 324, in the Town of Cumberland. The property includes a single-family dwelling. On August 26, 2003 OC&I issued a NOV to the Respondent alleging that the Respondent violated the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to clearing, filling, grading, and installing a lawn within a 50-foot Perimeter Wetland and failure to comply with the conditions of a permit issued by RIDEM to the Respondent. The activities resulted in the unauthorized alteration of 5,400 square feet of Freshwater Wetland. A permit was issued to the Respondent by RIDEM on June 12, 2000 for the construction of a single-family dwelling. Inspection of the property on October 3, 2001 and December 3, 2001 by DEM revealed that the Respondent was not complying with the permit. On December 14, 2001 DEM issued a noncompliance letter to the Respondent. The Respondent failed to respond to the letter. A follow up inspection on May 9, 2002 revealed that the wetland alterations were not corrected. In the NOV OC&I ordered the Respondent to restore the freshwater wetlands and comply with the conditions of the permit by recording the permit in the land evidence records and submitting a report prepared by an engineer or land surveyor that the storm water system for the project was constructed in accordance with the approved plans. OC&I assessed a penalty in the amount of $4,400.00. The Respondent appealed the NOV to AAD. Prior to a hearing on the NOV, the Respondent and OC&I executed a Consent Agreement to resolve the NOV. The Respondent agreed to restore the freshwater wetlands and pay a reduced penalty of $2,800.00. The penalty was paid upon execution of the Consent Agreement.



October 20, 2004 - OC&I/Septic System File No. CI 92-20 re: Ralph and Phyllis Davis for property located at 334-340 Tiogue Avenue, Assessor's Plat 210, Lot 52 in the Town of Coventry. The property includes a multi-unit apartment building. On October 24, 2003 OC&I issued a NOV to the Respondents alleging that the Respondents violated the ISDS Regulations. The violation pertained to the discharge of sewage to the surface of the ground from the sewage disposal system for the building. In the NOV DEM ordered the Respondents to pump the system as needed to prevent sewage overflows and repair the failed septic system. OC&I assessed a penalty in the amount of $3,400.00. The Respondents appealed the NOV with AAD. Prior to a hearing on the NOV, the Respondents repaired the failed septic system and executed a Consent Agreement with OC&I to resolve the NOV. The Respondents agreed to pay a reduced penalty of $1,700.00. The penalty was paid upon execution of the Consent Agreement.



October 20, 2004 - OC&I/Solid Waste File No. 04-001 re: Bradley Real Estate Holding Group, Inc. and Northeast Auto Recycling, Inc. for property located at 16 Canal Street, Assessor's Plat 3, Lot 134 in the Town of North Smithfield. On February 4, 2004, the OC&I issued a NOV to the Respondents alleging that the Respondents violated Rhode Island's Refuse Disposal Act. The violations pertained to the storage of approximately 15,000 used vehicle tires on the property. In the NOV OC&I ordered the Respondents to immediately commence removal of the used vehicle tires and to remove all used vehicle tires in excess of 400 tires within 90 days of receipt of the NOV. A penalty in the amount of $12,500.00 was assessed in the NOV. The Respondents failed to request a hearing on the NOV. Prior to proceeding to Superior Court to enforce the NOV, the Respondents and the OC&I executed a Consent Agreement to resolve the enforcement action. The Respondents documented the disposal of the used tires on the property in compliance with the NOV. The parties agreed upon a reduced penalty of $6,250.00 with $1,250.00 paid upon execution of the Consent Agreement and the remaining penalty to be paid in 12 equal and consecutive monthly installments of $416.33.



October 26, 2004 - OC&I/Freshwater Wetlands File No. C03-0099 re: Franklin Grove Corp. and intervenors John and Linda Imswiler for property located approximately 400 feet north/northeast of Nate Whipple Highway, at utility pole numbers 36 && 37, approximately 2,100 feet east/northeast of the intersection of Nate Whipple Highway and Staples Road, Assessor's Plat 44, Lot 11 in the Town of Cumberland. On October 16, 2003, OC&I issued a NOV to the Respondent alleging that the Respondent violated the Freshwater Wetlands Act and the Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act. The violations pertained to the unauthorized alteration of approximately 7,600 square feet of forested freshwater wetland without first obtaining a permit from the Director. The alterations are associated with filling and construction activity for a dwelling and a garage. A prior permit consisting of an approved plan and letter with terms and conditions was issued for the property on March 11, 1997 and was recorded in the land evidence records of the Town of Cumberland on April 8, 1997. The Respondent purchased the property on January 11, 2002. DEM alleged that the work that occurred on the property was not conducted in conformance with the permit issued on March 11, 1997. In the NOV the Respondent was ordered to restore the freshwater wetlands. OC&I assessed a penalty in the amount of $1,000.00. The Respondent appealed the NOV with AAD. The prospective buyers of the property (John and Linda Imswiler) requested and were granted intervenor status by AAD. Prior to a hearing on the NOV, the Respondent and the Imswiler's executed a Consent Agreement with OC&I. The Consent Agreement authorized the dwelling that was constructed within freshwater wetlands to remain. The Respondent agreed to construct a replacement wetland on another portion of the property and pay the full administrative penalty of $1,000.00. The administrative penalty was paid with the Consent Agreement.

 

Superior Court Actions Issued:

October 7, 2004 - Superior Court Case No. C.A. No. PC04-5455 re: Plaintiff Frederick J. Vincent, Acting Director, RIDEM vs. Defendant Gino Costantino for property located at 1A Snagwood Drive, Assessor's Plat 13, Lot 27 in the Town of Foster. On June 13, 2001 OC&I issued a NOV to the Defendant alleging that the Defendant violated the ISDS Regulations by allowing sewage to discharge to the surface of the ground from the septic system at the property for at least 1 1/2 years. In the NOV OC&&I ordered the Defendant to immediately have the system pumped by a licensed septage hauler; continue such pumping until the system is repaired; immediately take steps to reduce the discharge of sewage to the system and commence work on repair to the system. OC&I assessed a penalty in the amount of $3,000. The Defendant appealed the NOV to AAD. On March 31 and April 2, 2003 an administrative hearing on the NOV was held with AAD. On April 15, 2003 the Director of DEM issued a final Decision and Order requiring the Defendant to prevent any and all sanitary sewage from overflowing onto the property; take steps to reduce the discharge of sewage to the septic system; have the system inspected by a licensed designer to determine the cause of failure; submit a repair application to correct the failure and implement the repair upon approval by DEM; and pay a penalty of $3,000.00. To date, the Defendant has failed to comply with the Decision and Order. In the complaint, the DEM has petitioned the Superior Court to require the Defendant to immediately take all necessary actions to comply with the Decision and Order and such other relief that the Court deems just and equitable.

 

Superior Court Actions Settled or Resolved:

None settled or resolved this month.