JANET L. COIT, in her capacity as Director of the RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Plaintiff,
ANGELA CELICO, as Trustee of the Angela Celico Revocable Trust; DAVID I. STRONG; RICHARD D'AMBRA; BPF REALTY, LLC; and APM FELT, LLC, Defendants.
Kent County Superior Court
For Plaintiff: Susan B. Forcier, Esq.
For Defendant: George A. Comolli, Esq. Kelly M. Fracassa, Esq.
Before the Court is the Rhode Island Department of Environmental Management's (Plaintiff or RIDEM) motion for a permanent injunction. Plaintiff avers that it is entitled to permanent injunctive relief under Rule 65 of the Superior Court Rules of Civil Procedure because it has proven both its success on the merits and that the public interest will be served by the issuance of the injunction. Further, Plaintiff contends that the Rhode Island Water Pollution Control Act (RIWPCA) relieves Plaintiff from proving the otherwise required "irreparable" harm in seeking an injunction. BPF Realty, LLC (Defendant) concedes that Plaintiff need not prove irreparable harm; however, it maintains that Plaintiff has not proven success on the merits. Jurisdiction is pursuant to G.L. 1956 § 46-12-17. For the following reasons, the Court grants Plaintiff's motion for a permanent injunction.
I Facts and Travel
In June 2010, Defendant purchased a parcel of property located at 460 Bradford Road in Bradford, Rhode Island (the Property). The Property consisted of a large, factory-style building, known as Bradford Printing and Finishing (Bradford), and a large wastewater treatment facility (Bradford WWTF), which services Bradford's wastewater discharge. The instant suit arises because Bradford is suspected of illegally discharging wastewater to the Bradford WWTF and of illegally discharging pollutants from the Bradford WWTF to waters of the State.
On September 20, 2012, Defendant entered receivership,  and Attorney Theodore Orson was appointed as Receiver (the Receiver). Plaintiff notified the Receiver that certain off-site, third-party property owners were discharging wastewater into the Bradford WWTF through potentially undocumented connections to Bradford's wastewater sewer lines. Tr. at 25:6-8. Plaintiff also notified the Receiver that Defendant was discharging untreated sanitary wastewater from Bradford directly into the Bradford WWTF. After receiving such notification, the Receiver filed a Petition for Instructions Regarding Third-Party Discharge to Wastewater Treatment Facility (the Petition). As a result of the Petition, the Court issued an order permitting Plaintiff to file a separate action "with regard to any enforcement and/or other actions it may take with regard to [the discharges at 460 Bradford Road], " and on October 29, 2013, Plaintiff initiated the instant action, seeking permanent injunctive relief.
On June 17, 2014, the Court entered a Preliminary Injunction (the Preliminary Injunction), providing a temporary solution to some of the discharge concerns at the site. The Preliminary Injunction required Defendant to cease the use of devices which produced sanitary sewage on the property and of all wastewater systems, excluding those which produced "greywater, " and required the use of portable toilets by Defendant until permitted on-site wastewater treatment systems were installed.
Subsequently, on June 22, 2015 and July 2, 2015, the Court held evidentiary hearings on Plaintiff's motion for a permanent injunction. Testimony from Plaintiff's first witness, Alexandre Pinto (Pinto), an engineer in RIDEM's Office of Waste Resources, explained that the Bradford WWTF was subject to a Rhode Island Pollution Discharge Elimination System (RIPDES) permit. Pinto explained that a RIPDES permit is issued by Plaintiff and authorizes certain commercial businesses to discharge wastewater from the operations and processes that occurred at the site. Tr. 4:14-16. Pinto explained that while Bradford was in operation, process wastewaters from the production of military fabric, plus small amounts of sanitary wastewater, stormwater runoff, and cooling waters, were directed to the Bradford WWTF. Id. at 5:20-6:8. Pinto expounded that to treat such wastewater, Bradford WWTF's treatment procedure utilizes a neutralization lagoon, aeration lagoon, settling tank, temporary sludge storage lagoon, and a discharge pipe to the Pawcatuck River. Id.
Pinto further testified that in 2012, after an on-site inspection, he notified Defendant of his concerns that the Bradford WWTF was not operating properly and was not capable of operating in such a way that would provide adequate wastewater treatment. Id. at 16:14-21. A copy of this email notifying Defendant was introduced as Plaintiff's Exhibit 3. Pinto explained that for Bradford WWTF to operate effectively, a significant amount of wastewater must flow through the facility. Id. at 7:15-17. If there is too little effluent moving through the system, the "good" bacteria in the sludge lagoon dies off, compromising the effectiveness of the treatment process.  Id. at 9:22-10:3; 47:18-21.
Pinto explained that the Bradford WWTF was intended to process wastewater from three sources-sanitary, industrial, and storm water-and was designed to operate with an average of two million gallons of effluent per day flowing into the facility. Id. at 7:15-17; 10:4-9; 13:5-12. Pinto elaborated that when flows into the facility are below average capacity, the bacteria in the lagoons that is responsible for the treatment of the wastewater does not have enough "food, " or good bacteria, to properly treat the wastewater. Id. Pinto further explained that the clarifier allowed the sludge to settle and for clear water that drains off as effluent to be discharged into the Pawcatuck River, and under normal operations of the Bradford WWTF, such sludge would be removed on a set schedule and properly disposed of at an appropriate facility. Id. at 84:19-22. However, since the Bradford WWTF had not been operated at capacity or with regularity, no sludge has been removed from the lagoon since approximately 2007. Id. at 83:24-25.
Additionally, Pinto testified that managing and controlling the vegetation around the lagoons would prevent the plants and their root systems from growing so large as to compromise the structural integrity of the lagoons' walls or barriers. Id. at 13:18-25. Pinto noted in a site inspection report from 2011, introduced as Plaintiff's Exhibit 2, that he observed an overgrowth of vegetation around the lagoons during that visit to the site.
Pinto also testified that during an inspection in April of 2015, he observed bathrooms that had toilets with handles. Id. at 35:20. Plaintiff introduced photographs of these toilets taken during the Site Inspection Report from April 7, 2015 as their Exhibit 9. These handles on the toilets had been removed in previous inspections and indicated to him that the toilets, in violation of the Preliminary Injunction, had been in use at some point. Id. at 35:19-24. Photos attached to Exhibit 5-a site inspection report from 2012-show images of toilets without handles. Further, Pinto testified that during this same inspection he observed pumping from Bradford WWTF's neutralization lagoon into an adjacent wetland. Id. at 36:1-6. Photographs of this discharge were submitted as evidence in Exhibit 9.
Finally, Pinto testified to the current contents of the lagoons at Bradford WWTF, stating that the neutralization lagoon "is still receiving storm water[, ]" and "probably consists mostly of storm water at this point" but that "there is still probably some residual wastewater from previous operations." Id. at 39:13-16. Pinto testified that the activator lagoon has wastewater in it, as well as sludge that has settled to the bottom of the tank. Id. at 39:16-19. He also testified that "[t]he sludge lagoon has not changed" and that it "still holds a significant amount of sludge from previous operations." Id. at 39:19-21. Pinto stated that Defendant's staff indicated to him that there is an overflow pit in the area between the lagoons and the building that overflows when the water level in the neutralization lagoon gets too high. Id. at 28:25-29:1. Photos of this pit were introduced as Plaintiff's Exhibit 4, a site inspection report dated September 25, 2012. Furthermore, Pinto explained that the water in this pit and the water in the lagoon were at the same elevation, and that when the lagoon water level rises, the pit water level rises to the point that eventually water from the pit overflows into the vegetated area and onto a paved area near the production facility. Id. at 19:12-20.
Defendant argued on cross-examination of Pinto that this pumping from the lagoons was going into woods and not a wetland. Id. at 66:15-21. Defendant also asserts that this discharge stopped within a few days and submitted photographs to demonstrate that the discharge had ceased. Id. 67:10-12.
Liberti, RIDEM's Chief of Surface Water Protection, was Plaintiff's second witness, and he testified that the sludge in the lagoons consists of the dead bacteria normally used to provide treatment of wastewater, as well as chemicals, accumulated metals, and other residual components of the waste stream. Id. at 84:2-16. Liberti also stated that he maintained the same concerns as Pinto pertaining to the management and control of the vegetation surrounding the lagoons. Id. at 87:12-18.
Additionally, Liberti testified that the stormwater runoff that flows into the Bradford WWTF posed several risks. Id. at 91:23-92:12. For instance, stormwater runoff contains multiple pollutants picked up from roads, roofs, parking lots, and the industrial floor drains in the Bradford factory that lead directly into the Bradford WWTF. Id. at 90:3-7. Liberti further explained that the risk imposed by the floor drains emptying into the Bradford WWTF is augmented by the fact that this facility has historically had spills and leaks of chemicals and other pollutants that can either leak into the floor drains or get picked up by the stormwater that flows through or around the facility. Id. at 92:15-22.
Liberti also testified as to the sludge located in the sludge lagoon. Id. at 140:10-18. He explained that when Bradford WWTF was operating under normal circumstances, the sludge in the sludge lagoon would be removed and disposed of in New Hampshire because testing revealed the sludge to be hazardous waste and thus unable to be accepted by the Central Landfill in Johnston, Rhode Island. Id. at 140:12-15, 145:7-8. However, the sludge currently stored in the sludge lagoon has not been tested recently. Liberti admitted that the last tests were conducted while the plant was in full operation under the previous owner around 2009. Id. at 148:13-20. Liberti stated that tests need to be conducted to determine if sludge is leaching into the groundwater through the walls of the basin, but that the general knowledge concerning such sludge is that it will leach into groundwater over a long period of time. Id. at 149:18-150:1.
Defendant's witness, Nicholas Griseto (Griseto), the president and owner of BPF Realty, LLC, testified that after a fire in 2007, as part of the repairs to the property, drains in the bleach house were capped with cement. Id. at 160:3-23. Further, Griseto testified that during the 2010 flood of the Pawcatuck River, none of the barriers or walls of Bradford WWTF's lagoons were breached by this flooding. Id. at 167:22. Defendant submitted Exhibit D-an aerial photograph depicting the results of the flooding-to supplement Griseto's testimony.
Additionally, Griseto testified that in order to comply with the Preliminary Injunction, all the toilet facilities at Bradford were secured by shutting off all running water, except for sinks. Id. at 169:4. Further, Griseto stated that the lids were removed from the toilets, and that signs were posted in the bathroom directing any employees towards the port-a-johns located on site. Id. at 169:6-10. However, Griseto did state that one set of urinals were connected to the sink water. Id. at 169:5. Despite this concession, Griseto testified that "every bathroom has not been used in the facility" since August 2014. Id. at 170:4-5.
Furthermore, Griseto testified that the overflow pit in the area between the lagoons and the building, photographed in Exhibits 4, E, and G, was caused during an accident in either 2011 or 2012, during which a heavy-duty bucket loader crushed an underground pipe. Id. at 171:21-172:13; 173:7. Griseto testified that even though the pipes are connected to the neutralization lagoon, water ...