Today's arsenic fact is courtesy of Rep. J. Patrick O'Neil, who was vice-chair of the Special Legislative Commission to Study Naturally Occurring Arsenic in Soil, and who provided an official comment to DEM that was included in the Beneficial Use Determination (BUD), available on the DEM web site.

Representative J. Patrick O'Neil, Rhode Island House of Representatives Majority Whip (DEM responses in italics)

• Commenter was Vice Chair of Special Legislative Commission to Study Naturally Occurring Arsenic in Soil. As detailed in the Commission's report (See Attachment F: Finding and Recommendations of the Special Legislative Commission to Study Naturally Occurring Arsenic in Soils) the regulatory standard of 7 mg/kg needs to have a measure of flexibility to reflect the unique situation regarding naturally-occurring concentrations of arsenic.
  No response needed.
• The proposed modification regarding acceptance of grading and shaping material with average of 20 and maximum of 40 mg/kg is entirely consistent with the Commission's findings and recommendations.
  Response from the Commission's leadership is helpful in guiding the Department regarding whether the Commission's intent was to allow this type of activity. See also The Relationship of Regulatory Standards to the Proposal
• Precluding the use of the material set a bad precedent that will have negative impacts on individuals, developers and municipalities.
  See above response.
• The Proposed is more conservative than the Commission's recommendations and proposed regulatory amendments in that it calls for 2 feet of cover with and ELUR whereas under the proposed amendments there is only 6 inches of cover with no ELUR for soils with that level of arsenic.
  See above response.

Editorial note: I strongly encourage anyone who lives in Island Park to read the entire BUD and get the facts.

Landfill petition

According to the DEM, the anti-landfill petition circulated in Island Park contained language which "inaccurately characterizes the proposal." The arsenic concentration, the height of the cap, and the nature of the fill are all incorrect, DEM said in their final ruling on the Beneficial Use Determination (BUD), available on the DEM web site.

PETITION: opposing 8’ elevation and the use of contaminated industrial fill which contains 20-40 ppm of arsenic

We, the residents of Portsmouth, petition the Rhode Island Department of Environmental Management and the Portsmouth Town Council to deny the request to cap the Island Park Landfill site with fill contaminated with 20-40 ppm of arsenic and request an extension for review of the history of submitted material and for further laboratory investigation including written comments prior to issuing its final approval.

DEM RESPONSE
The Department is very concerned that a petition was provided to hundreds of residents, the title of which (Residents oppose use of 8' of contaminated industrial fill containing 20-40 ppm of arsenic.) inaccurately characterizes the proposal of 12/3/2010 that is under consideration. Therefore the Department is left to conclude that they accepted the statement as fact. Specifically:

• The proposal calls for a 3-5% grade of the site with a maximum height of 8 feet. See Purpose of the Cap
• The proposed modification does not call for use of contaminated industrial fill with arsenic. It calls for the use of soils only containing naturally occurring levels of arsenic with the absence of other contaminants in the soil. See also The Relationship of Regulatory Standards to the Proposal
• The proposal calls for soils from sources with a maximum average of 20 ppm, with a maximum of 40 ppm in addition to other fill previously approved with levels below 7 ppm. The Relationship of Regulatory Standards to the Proposal

[emphasis in original]

Editorial note: I strongly encourage anyone who lives in Island Park to read the entire BUD and get the facts.

I've finished reading the 185-page RI DEM decision on the Request for Modification on the Beneficial Use Determination (BUD) and because I'm not sure that everyone will have the time to explore the detailed responses that DEM offers to neighborhood concerns, over the next few days, I will post pertinent snippets. This one caught my attention.

Q. Is it safe to grow vegetables in my garden?

A. The Department’s arsenic standard for Class A compost to be sold to consumers for garden use is 41 mg/kg. Therefore, the Department does not feel that allowing soils averaging 20 mg/kg or under, mixed with other soils with much lower levels of arsenic, covered by a cap is cause for an advisory.

Want the facts? Read the whole document.

Mark Dennen of RI DEM notified interested parties this afternoon that the state agency had approved the amended plan from AP Enterprise for capping the Portsmouth Island Park Landfill.

The approval letter (linked below) specifies some additional terms: only naturally occurring arsenic, 40ppm not to be exceeded, any 40pm soils covered within 14 days, GA water quality to be enforced, delivery during weekday business hours only, dust and odor control required, DEM can split and test any samples, all other ordinances apply (including the Town and CRMC) and DEM can do random inspections.

Here's the e-mail from DEM:

From: Mark Dennen
To: [redacted]
Subject: Decision Documents regarding former Portsmouth Town Dump
Date: 03/11/2011 03:28:42 PM

Dear Interested Parties:

The Department has completed its review of the December 3, 2010 Request for Modification of the Beneficial Use Determination for the Former Portsmouth Town Dump. The Department’s decision, response to comments and related information is posted at:

http://www.dem.ri.gov/programs/benviron/waste/pdf/portsbud.pdf

Appendix F: Report of the Legislative Arsenic Commission were inadvertently omitted form the response to comments and is attached here.

Please pardon any duplication as I am trying to ensure timely communication with all interested parties.

Please contact me if you have any questions.

Mark M. Dennen
RIDEM/Office of Waste Management

More than 50 protesters, some wearing Tyvek jumpsuits and respirators, staged a protest on Park Ave in Portsmouth's Island Park this afternoon, and I was there not as a reporter, but to hand out fliers with some data about arsenic. With so much misinformation and overheated rhetoric, I thought it was important to try to get some facts out.

I was cursed at, my interview with Channel 10 was disrupted by the protesters, and one guy in a hazmat suit yelled repeatedly inches from my face (in the presence of a reporter) to the point that I asked people to call the police. (He backed off.)

Let me state my position clearly: I am not in favor of arsenic, nor am I defending any activities which do not adhere to the safety guidelines set out in the RI DEM Beneficial Use Determination (BUD) which specify the levels of material that are acceptable and the procedures that must be followed. I am simply saying that based on my research, I have found nothing which says the BUD, as written, is unsafe. I've summarized some of that research in the one-page handout I distributed this afternoon, which you can download here.

As a reporter, I do not blindly trust the DEM. I contacted a source, a soil scientist with a DEM in another New England state who provided off-the-record answers because they are not authorized to comment. The source's review of the BUD found no significant issues. The source said that there was nothing unsafe about spot 40ppm concentrations of arsenic in grading soil under a two-foot cap of residential grade earth, assuming that there are appropriate land use restrictions in the deed and that monitoring for erosion is conducted after the work.

Those are the facts as I have researched them, and getting those out was my only goal this afternoon. I have the utmost repect for my neighbors, and honor their committment to and participation in the process. That said, I do wish that those who disagree with me would extend the same courtesy.

I learned my lesson in how to respond in these situations from Alger Hiss.

In college, I was a reporter for a weekly newsreel, and I was assigned to cover a book tour appearance by Hiss. He spoke for a while at the campus book store, and things were uneventful until the Q&A, when one person lunged up to Hiss, inches from his face, and started yelling, "I think you're guilty as hell."

Hiss held his ground, but replied softly and calmly, "You are entitled to your opinion." That was a powerful lesson in respect and grace under pressure which I have never forgotten.

We may have differing opinions, but we are still neighbors, and I hope that we can respect each other — and the facts.

The torch-and-pitchfork treatment received by the RI Department of Environmental Management (DEM) at the hands of Portsmouth residents at Tuesday's meeting about the Island Park landfill has garnered extensive coverage in the EcoRI news site.

Money quote:

Given the volatility of the chemicals and heavy metals already present at the former landfill, it was disturbing to hear the refrain of, “Our kids play there,” repeated by residents as a reason to not allow fill with elevated levels of naturally occurring arsenic. AP Enterprises' legal counsel, Kristen Sherman, was nearly shouted down when she said, “If you know that your children are, frankly, trespassing on private property that used to be a landfill, I suggest that you steer them towards safer behaviors.”
— EcoRI

Worth clicking through to read the whole piece. And this is on a site specifically focused on ecology and green issues. Will the people putting up the hand-lettered signs about "Arsenic in the town dump" please take a breath and consider the science?

Last night, the RI Department of Environmental Management (DEM) and AP Enterprise (the project team) came to Portsmouth Town Hall to answer residents' questions about a change to the town dump remediation plan which would allow higher levels of naturally occurring arsenic in the grading soil used under the cap.

DEM was represented by Mark Dennen, Principal Environmental Scientist in the Office of Waste Management. On hand to describe the analysis done to support the soil re-use was Tim O'Connor, a consultant with Vanasse Hangen Brustlin (VHB). Representing the developer, AP Enterprise, were Arthur Palmer and attorney Kristen Sherman.

The meeting quickly devolved into a shouting match, with residents of Island Park in full attack mode before the DEM's presentation was even finished. Completely obscured by the rapid escalation of rhetoric (which caused the Portsmouth Police Dept. to show up at 8:17pm) were the simple scientific facts: Arsenic is a naturally occurring element in soil, and the concentrations under discussion are within levels generally regarded as safe.

If you don't believe me, please do some Google-fu on arsenic at 20 parts per million (ppm). I was concerned too, before Dennen sent me the full Beneficial Use Determination (BUD). I'm continuing to look into this, and would be happy to hear from anyone with reliable data. We should be having this discussion based on facts.

But facts didn't stop PCC President Larry Fitzmorris, who took to the microphone to claim that there would be a "flow of arsenic off this property," or Tailgunner Gleason, who put in a turn in her new role as citizen activist, or several of the same loud NIMBY voices from the Island Park anti-skatepark contingent who believe, apparently, that public discourse is best conducted in a register of spittle-flecked invective. (I think that technique was in one of the lost chapters of Aristotle's Rhetoric...)

If you want to see how bad it got, Portsmouth Patch has good coverage and videos.

At root, there seemed to be four basic principles underlying the FUD bellowing:

• Don't investigate or believe the science
• Fear the DEM
• Believe everything is a plot
• Suspect that DEM and the Council are colluding with developers

Particularly interesting was that several speakers managed to work in specific references to Town Administrator Bob Driscoll, implying that he was to blame. Driscoll is a favorite target of the PCC fringe, and I can anticipate this situation being trotted out when his contract comes up for renewal.

To those in the PCC and their fellow travelers who are stirring the pot for political gain, please consider the impact on our community. Are you really concerned for the health and safety of Island Park? Or could it be that some in the PCC believe it might actually be a good thing if AP Enterprise backed out and left the town with a million-dollar cleanup? Hey, I can play the "everything is a plot" game too. The PCC saddled the schools with a million dollar deficit next year by shooting down the referendum; a giant brownfield cleanup bill would be a another peachy "starve the beast" stratagem.

In all seriousness. Did the DEM shoot themselves in the foot by only advertising this in the ProJo? Absolutely. Could they have done a better job at communicating more information earlier in the process? You bet.

Do me a personal favor as a resident of Island Park. Please, everyone, before you decide to amp up the rhetoric, read the full documentation on the BUD.

The RI Department of Environmental Management (DEM) has scheduled a meeting to discuss work at the Island Park landfill on Tuesday, Jan. 18 at the Town Hall, according to an e-mail from Town Administrator Bob Driscoll.

"Anyone with questions/concerns should attend," said Driscoll.

Go visit XKCD to see it full size (and read the delightful last panel...)

Yesterday, Portsmouth Patch reported on a request made by the company doing re-capping work at the old landfill on Park Ave to use dirt with levels of arsenic significantly higher than the RI DEM standard. If you live in Island Park, you will want to attend the Council meeting on Monday, and you may also want to send a note to the RI Dept. of Environmental Management (DEM) explicitly asking for a public meeting.

Sent this to RI DEM yesterday and received a polite, "Thank you, I will be in touch on this issue."

Subject: Written comment pertaining to public landfill in Portsmouth
To: mark.dennen@dem.ri.gov
Cc: sen-ottiano@rilin.state.ri.us, rep-edwards@rilin.state.ri.us, rdriscoll@portsmouthri.com, rgilstein@portsmouthri.com [...]
Date: Fri, 07 Jan 2011 09:12:52 -0500

Mr. Dennen...
Please consider this a formal request for a public meeting pursuant to the notice attached. I am a long-time resident of Island Park, and our family lives two blocks from this landfill. While I fully understand that arsenic is a naturally occurring element, and that 20mg/kg is below mandated cleanup levels, it is still higher than normally found in RI soils, and I'd like the opportunity to have DEM and the developers discuss safety concerns with residents.

I am also cc'ing our state legislative delegation, both as a heads up, and also, because I do not believe that posting in the Providence Journal constitutes sufficient notice to residents of Portsmouth. The Journal may be the paper of record for Providence, but it closed its East Bay office several years ago; this, to me, means that by definition it is not a paper of record for the population of our town, and I would ask our legislators to work with DEM to find ways to provide effective notice.

Best Regards.
--John

---------

PUBLIC NOTICE This public notice is related to environmental conditions at the Former Portsmouth Landfill, located on the north side of Park Avenue in Portsmouth, Rhode Island (Assessor's Plat 20, Lots 1,2, and 13 and Plat 25, Lot 2). In accordance with the Rhode Island Department of Environmental Management's (RIDEM's) Rules and Regulations for Composting Facilities and Solid Waste Management Facilities (Solid Waste Regulations), January 2001 (Amended April 2001 and October 2005), AP Enterprise, LLC, is providing public notice of a proposed amendment of the variance to the Solid Waste Regulations, referred to as the Beneficial Use Determination (BUD) approved by RIDEM on September 20, 2010. The proposed amendment to the approved BUD relates to the re-use of soils that exhibit naturally occurring elevated arsenic concentrations (such as those found on Aquidneck Island the location of the Project) that exceed the RIDEM Industrial/ Commercial Direct Exposure Criteria (I/CDEC) of 7 mg/Kg (parts per million or ppm). These naturally occurring arsenic concentrations are typically identified by the absence of any other contaminants (organic and inorganic) within the sample. The Site is the subject of a remedial action under the Rules and Regulations for the Investigation and Remediation of Hazardous Materials Releases (the Remediation Regulations), as amended August 1996 and February 2004. A Remedial Action Work Plan has been approved by RIDEM which calls for capping of the former landfill area, groundwater monitoring, soil gas monitoring, and an Environmental Land Use Restriction (ELUR). The BUD allows the reuse of soil from off-site that exceeds RIDEM Residential Direct Exposure Criteria but meets Industrial/Commercial Direct Exposure Criteria and GB Leachability Criteria to be used for onsite grading and shaping purposes. The final cap layer will consist of two feet of soil which meets the RIDEM Residential Direct Exposure Criteria. APE requests a change in the acceptance criteria for arsenic-only impacted soils used for grading and shaping soils that will be placed under the approved final cap. Rather than use the RIDEM I/CDEC of 7 mg/Kg, APE requests a maximum arsenic concentration of 40 mg/Kg with a source data average concentration not to exceed 20 mg/Kg. The average concentration would be determined by the arithmetic average of no less than 10 samples. If significant written comments are received, the Department will schedule a public meeting and notify the commenters of the meeting date. Written comments should be submitted (within one week of this notice date) to: Mr. Mark Dennen Rhode Island Department of Environmental Management Office of Waste Management 235 Promenade Street Providence, Rhode Island 02909 mark.dennen@dem.ri.gov Arrangements to review RIDEM records may be made by calling 222-6822 ext. 7307.
—Published: 1/5/2011

Scientific disclaimer: Arsenic is a naturally occurring element, so its presence in soils should not necessarily be construed as problematic. And the proposed average levels of 20mg/kg appears to be below the level of concern, according to a recent EPA report about a different location which identifies 25 mg/kg as the cleanup threshold. In terms of direct action as a poison, you'd have to eat about five pounds of dirt to get a lethal dose. But when it comes to carcinogens, my motto is 'Trust but verify.'