The Portsmouth Town Council has a full bracket of PCC-sponsored mayhem on Monday, and I would urge all citizens interested in respect for science, medicine, and the right of our children to play as they wish in our public parks to attend.

Under old business, Paul "Transparancy" Kesson has an agenda item to "request that the Council Direct the Town Solicitor to prepare and ordinance limiting contaminates in fill material to the levels existing on land to be filled." Yes, the Council clearly knows better than the RI DEM, the Federal government, and the international scientific community about safe levels of arsenic. If you care about science, the right to use compost, or our taxes (see my previous posts) you'll want to encourage the Council to think long and hard about this one.

Okay, well, maybe just think long.

Then, former PCC director "Cheshire" Kathy Melvin has requested an agenda item, "Request Council Involvement in Approval Process for Locating Marijuana Center in Portsmouth Industrial Park." While I suppose it's possible that Ms. Melvin wants to urge the Council to speed the process along to get medical relief to those who need it, my gut tells me that's not what's going to be requested. Where were Ms. Melvin and the Council when CVS and RiteAid were stocking store shelves in our town with oxycodone? I'm shocked. Shocked, I say.

And to round out the trifecta of wacky, Portsmouth Police Chief Lance Hebert has an item, "Request Council Direction on how to Proceed re: Signage - Skateboarding at Island Park Playground/Police Dept." If you've read the coverage in Patch, you'll know that a new sign banning skating appeared in the Island Park playground, and my guess is that the Chief is going to ask the Council for an ordinance to back it up. Journalists are always looking for hidden connections, and while correlation is not causality, the fact that some of the most vocal landfill wingnuts are also the core of the anti-skate crowd makes me go, "hmmm." Not that the drumbeat of "who approved the aresenic" rhetoric about Town Administrator Bob Driscoll could have scared him into putting up a no-skating sign. I would never believe that. Nope. Not me. Remember that Descartes fundamental axiom is more properly stated as Dubito ergo sum, which makes much more sense when you think about it.

I'll admit, I haven't been going to Council meetings. Given the 4-member PCC bloc, it just hasn't seemed worth trying to reason with them. But these are issues that touch everyone in the community, and even if they're intent on corkscrewing Portsmouth into the ground, I think they should hear from us. Hope to see you there.

Full disclosure: I was a member of the Island Park working group that attempted to find a mediated solution on the skate park, and I was on the side of the skaters.

In this final installment, we'll ponder the interrelationship among misinformation, the power of suggestion, and the placebo effect. At the public hearing on January 18, at least one Island Park resident seemed to be alleging a connection between the project and health effects. Here's the allegation and what the DEM said in the Beneficial Use Determination (BUD), available on the DEM web site.

Here's DEM's response to the assertion:

Health conditions have gotten worse since dirt was placed there.

The material that is the subject of the hearing has not been placed yet. Since the material that has already been accepted meets the Department’s health based standards, we have no reason to believe it has or will cause health problems. Anyone believing they are suffering an environmentally based health condition should have their physician contact the Department of Health.

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

One of the more thought-provoking questions at the public hearing on January 18 came from Island Park resident Laura Rogers about the relationship of the capping project to taxes. Here's the transcript and what the DEM said in the Beneficial Use Determination (BUD), available on the DEM web site.

Laura Rogers
Is my taxes gonna be increased due to my front yard being arsenic blown on it?
Public hearing transcript, page 16, lines 8-10

While Ms. Rogers' initial question has a simple answer, the larger implications outlined in the DEM response should give every taxpayer in Portsmouth pause:

Will taxes increase because arsenic is blowing on it?

The Department does not understand how windblown dust would increase taxes. However, we understand the concern about how the site could affect the Town’s finances. The Town is financially responsible for closure of the landfill under both the Department and Federal EPA regulations if the closure no longer occurs under the voluntary landfill closure program via the approved APE plan.

Both the Department and the Federal EPA have the right to pursue enforcement action against the Town, including requiring the Town to complete the closure of the site, assessing fines or seeking reimbursement for work done by federal or state agencies. Also, the Bona Fide Perspective Purchaser Agreement with APE does not prevent either party from pursuing reimbursement from responsible parties.

Read those last two grafs again. If those seeking to block APE have their way, the town is on the hook for a cleanup and cap.

Do you care about your taxes?

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

Today we'll hear the DEM's response to Portsmouth Town Councilor Judi Staven, who provided official comments at the public meeting on January 18. Here's part of the transcript and what the DEM said in the Beneficial Use Determination (BUD), available on the DEM web site.

First, let's hear Ms. Staven in her own words:

JUDI STAVEN:
Um, as you can tell, people are afraid. All right? That's what's going on here. And part of it is because -- a big part is what everybody's been saying. There was no notice for this. I don't know what's going on. Nobody knows what's going on. And it scares people. You know, you hear arsenic, you hear raising levels and you live next to there, it's a problem.

See the BUD for rest of transcript. And here are the DEM responses in italic.

• People are afraid.
  Agreed. The Department believes some of the fear may be the result of misinformation about the site and proposed arsenic levels.
• Notice was not adequate.
  See Adequacy of Public Notice.
• Commenter was specifically told in an e-mail that it was supposed to be an informational meeting and not a public hearing. Given that the public notice didn't say there would be a stenographer it has been misrepresented.
  When the commenter originally requested a meeting, several formats were discussed, including a discussion during a meeting of the Town Council as well as an informational workshop. Given the level of concern, it became readily apparent residents wanted to be heard on the issue. Therefore, the press release was sent to the commenter (as well as media outlets and interested parties who had contacted the Department) on 1/14/2011 that contained the following statement: "Representatives of DEM and AP Enterprises LLC will present information about the proposal and answer questions. Interested parties will have an opportunity to submit comments following the question and answer session." We do not see how this could be construed as misrepresentation.
• Commenter resents the Department walking in and demanding we do this.
  The Department was more than accommodating to the wishes of the council. To have not allowed people the opportunity to comment for the record when the press release clearly stated: "Interested parties will have an opportunity to submit comments following the question and answer session" would have been completely unreasonable.

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

Today's arsenic fact is the DEM's discussion of the nightmare hurricane/flooding scenarios advanced by opponents of the project. Here's what the DEM said in the Beneficial Use Determination (BUD), available on the DEM web site.

There have been comments of concern that by creating this large mound of soil, it will lead to catastrophic consequences for the neighborhood in the event of a hurricane. Furthermore, the claim is that the slope will worsen a hurricane impact by its physical presence. The Department's disaster debris coordinator was also part of the review team for this application. We have also discussed the issue with the Rhode Island Emergency Management Agency. The drainage plans for the proposed work have undergone extensive review and received approvals from CRMC, the Town of Portsmouth, as well as DEM. Storm event and drainage calculations are required a part of these reviews. As it is within the 100 year coastal flood plain, the tidal surge of a category 3 hurricane could be devastating for the residents of the area. Even if the landfill did not exist, the catastrophic wind and flooding from such an event could result in the release of a large volume of other hazardous materials to the area; oil (from heating oil tanks), gasoline (from cars, mowers, boats and gas cans) and household chemicals (pesticides, herbicides, paints, and cleaners). Based on the technical review, a 3-5% slope on the landfill will not make a discernable difference to the flooding pattern associated with such an event. Furthermore, having a cap on the landfill, as compared to its current condition, would lessen the effects of a hurricane spreading contamination that already exists at the site.

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

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.