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Home > Programs > Bureau of Environmental Protection > Office of Waste Management > Portsmouth Town Dump Bulletin Board

Portsmouth Town Dump Bulletin Board

The Department has become aware of the need for a centralized location to allow more regular communication regarding the closure of the Former Portsmouth Landfill off Park East Drive in the Island Park Area of Portsmouth. This privately owned municipal landfill is undergoing closure in the Department's Landfill Closure Program. Plans and specific information can be found by clicking here.

Questions can be placed on the bulletin board by emailing them to Interested parties wishing to know when this site is updated can send an email to this address to sign up for our Portsmouth Town Dump listserve.


Questions and answers below are listed in reverse chronological order. For clarity, the Department's answers are in italics.
Questions submitted by Joe Robicheau, Portsmouth Town Council President 8/16/11 (from original Department response of 8/22/2011)

Q. What are the fencing requirements and have they been met?

A. Their BUD application states the following: A chain link fence will surround areas of the site where impacted soil and landfill material has been exposed. The fence will be secured at the conclusion of each workday during the construction project by the construction superintendent. Several recent inspections have shown that there is a chain link fence at the area of active work but that a chain link fence does not completely surround the area. We have made the applicant aware of this issue, and will take additional steps necessary to bring them into compliance.

Q. Does mud on the tires of the trucks that deposited soils with naturally occurring arsenic last spring present a risk to people off-site?

A. As you correctly surmised, the Department’s standards and BUD decision were based on long term chronic (20-30 years) exposure to arsenic. In spite of the cobbled road at the entrance, when trucks deliver material to the site, especially in the rain, their tires pick up soil from a variety of sources, including offsite soils, cover soils at the site and soils that are being deposited from offsite. Exposure to dust from tires of trucks, even in a worse case scenario, occurs in a time frame more analogous to acute (under 14 days) exposure.

I discussed the issue with Dr. Vanderslice of the Department of Health. Chronic levels are based on a target does of 0.3 µg/kg in an exposed individual. An acute dose is 5 µg/kg (16 times greater). That means the acute dose would need to be 16 times greater than the chronic levels of concern to be an issue. These levels are set by animal testing and documented human exposure experience to be less than that which would result in symptoms. The sampling data does not indicate any need for further sampling of roadway debris.

Note that exposures to roadway debris that contain low levels of arsenic may still be unsafe due to other contaminants associated with roadways, including oil, gas, soot and asbestos from rake linings.

It is also worth noting that as per the report of the Joint Legislative Commission on Arsenic, excavation in areas similar to the Navy Soils in question (mean arsenic levels >7 mg/kg and <20 mg/kg) occurs routinely in areas such as Aquidneck Island without the requirement of any special precautions.

Q. Arsenic in soils and required handling of these soils is described in 49 CFR.

A. Levels of naturally occurring arsenic that have been submitted do not suggest that this soil qualifies as a hazardous material under 49 CFR. Below is the logic for that.

United States Department of Transportation (DOT) Regulations govern the shipping of any hazardous materials on a public road as well as rail. These regulations are found in 49 CFR 171-178. A hazardous material is defined to include a hazardous waste as well as certain products that are hazardous. In the case of soil, the issue here is, is it a hazardous waste?

Hazardous Waste is defined by USEPA, specifically in 40 CFR 261.20. The Regulations in 40 CFR 260-299 are commonly known as Resource Conservation Recovery Act (RCRA) Regulations. A waste can be hazardous based on how it is generated, or by exhibiting a hazardous characteristic. As the arsenic is naturally occurring, we are dealing with hazardous characteristic. To identify a hazardous waste characteristic, one must do a test known as the toxic characteristic leaching procedure (TCLP). This is different (less) than total metals that we usually analyze for in risk assessment. TCLP is an aggressive procedure meant to model the very acidic environment of landfill leachate. If the TCLP test shows more than 5 mg/l of arsenic, it is a hazardous waste.

In the case of the Newport soils, the source is the meta-sedimentary rocks. Since these rocks have been below the groundwater table for most of 300 million years, intuitively, you have every reason to believe the solubility of arsenic must be comparatively low for it to still be there. This also makes sense if you think about arsenic being trapped in the rocks silicate matrix. If it were significantly soluble in the levels present on Aquidneck Island many drinking water wells on the island would contain elevated evidence of arsenic. However, if we assumed, for the sake of argument, that all the arsenic was completely soluble, it would take 100 mg/kg of arsenic to yield 5 mg/l on the TCLP test. The highest sample submitted thus far, had 25 mg/kg of total arsenic, with 15/16 of the samples having levels below 20mg/kg. Our sample showed about 15 mg/kg. So we are nowhere near the level of reaching the definition of a hazardous waste.

All hazardous waste by EPA’s RCRA rules are, by definition, Hazardous Wastes in Rhode Island, but our rules are more strict, and therefore more inclusive than the federal rules. Since arsenic is a carcinogen, a waste having more than 1/10 of 1% is automatically a Rhode Island Waste, and therefore hazardous in Rhode Island. 1/10 of 1% corresponds to 1,000 mg/kg. Clearly, at less than 20mg/kg, we are well below the RI hazardous waste threshold.

Consequently, there is no requirement under 49 CFR, 40 CFR or the State Hazardous Waste Regulations that would regulate transportation of this material.

I can refer you to contacts within the Rhode Island State Police- Commercial Vehicle Enforcement Unit if you would like to discuss the issue with them.

Q. Documented runoff from the site is contaminating the environment.

A. Inspections by RIDEM and CRMC, to our knowledge, have shown sedimentation controls are working effectively. AP Enterprise is conducting work on, and has put sedimentation controls within the boundaries of their property, which is their responsibility.

APE is also responsible for final grades to address erosion on their property. As has been documented in previous studies, there are areas where residential waste has been deposited, both to the west (Levesque Property) and to other properties to the east that have no cap or sedimentation controls. Environmental issues not related to AP Enterprise at these properties are the legal responsibilities of the owners and/or the Town and/or the former owners, and not AP Enterprise.

I understand from our conversation, there is also some concern about arsenic leaching into rain water running off the site. Given the lack of solubility of naturally occurring arsenic in Aquidneck Island soils demonstrated over the last 300 million years there is no reason for concern that any measurable amount of arsenic becomes water borne at the site or in the neighborhood during heavy rain events. In determination of the arsenic standard for the proposed Remediation Regulations, as well as in the arsenic condition, consideration was given to being protective of drinking water resources. It is also important to note that the soil in question is located above the water table, and therefore is in contact with rain water for a relatively brief time compared with soils below the water table.

Q. Is heavy metal an issue with the fill material and how is it controlled?

A. Sampling data submitted and data from RIDEM sampling do not show metals contamination that exceeds the requirements set forward in the BUD approval.
Questions submitted by Joe Robicheau, Portsmouth Town Council President 8/24/11

Q: DEM is requiring the excavated dirt at the Sullivan School site on Dexter St. in Middletown to be covered immediately when disturbed. Why is APE allowed 14 days to cover fill soils containing elevated levels of arsenic?

A: DEM required the soil piles be covered with plastic because the soil with elevated arsenic may be excavated and stored at the site for a period up 6-12 months. The covering at this site (plastic sheeting) is less protective than the required temporary cover of 6 inches and the permanent cover of 2 feet.

Q: Similarly, DEM has mandated that the old Kempenaar site on Valley Rd. in Middletown be fenced off completely to prevent the public access because of arsenic in the soil. This area is covered with grass and other natural growth. It is assumed the vegetation at the Kempenaar site precludes the airborne arsenic risk. Why is it that APE is allowed 14 days to cover soils containing elevated levels of arsenic?

A: Soil at the site in question has been contaminated with arsenic and pesticides likely due to application of pesticides, including arsenic based pesticides, for agricultural purposes. The parties involved have made no effort to cover the soils to prevent exposure to these contaminants. We do not believe it is reasonable to conclude that because there is some vegetation on the site there is no risk of airborne dust, as there is always some degree of dust generation, particularly in winter or in bare spots. Furthermore, there are other pathways of human exposure, namely incidental ingestion via direct contact. For this reason, the Department does not view the presence of grass as a sufficient barrier, either at the Kempenaar Site or the Portsmouth Landfill.

Q: The measures in Middletown have been implemented due to the health risks. Yet the Island Park soil is allowed to stay exposed 14 days before requiring cover. A health risk is a health risk; why are the standards protection so inconsistent?

A: This issue is addressed above, there is no inconsistency.

Q: Additionally, your letter of August 23, 2011 recounts from the BUD "impacted soil and landfill material has been exposed" must be fenced. Since there are approximately 14 acres of landfill area, and most if not all the area was cleared (uncovered) of vegetation prior to delivery of fill material, why isn't the entire 14 acres subject to fencing?

A: In the context that it was written, the Department feels the intent was clearly intended to address excavation activities. The Department also feels that soil management activities should receive similar treatment.
Questions submitted by Tom Casselman, Portsmouth Resident 10/20/11 and 10/22/11

Q: [Is the site violating] the 150 ton per day limit to dump waste on the Portsmouth site? That figure was derived from the new law signed by the governor on July 1st that limits the total allotment per day. I saw at least 8 to 10 trucks depositing their load on the Portsmouth site and it seems that APE is exceeded that limit as of Wednesday of this week.

A: The Law [Chapter 193 2011- H 5547 SUBSTITUTE A AS AMENDED Enacted 07/01/11] applies only to Construction and Demolition Debris. Construction and Demolition Debris is defined by Statute (R.I. Gen. Laws § 23-18.9-7) as: non-hazardous solid waste resulting from the construction, remodeling, repair, and demolition of utilities and structures; and uncontaminated solid waste resulting from land clearing. This waste includes, but is not limited to, wood (including painted, treated and coated wood and wood products), land clearing debris, wall coverings, plaster, drywall, plumbing fixtures, non-asbestos insulation, roofing shingles and other roof coverings, glass, plastics that are not sealed in a manner that conceals other wastes, empty buckets ten (10) gallons or less in size and having no more than one inch of residue remaining on the bottom, electrical wiring and components containing no hazardous liquids, and pipe and metals that are incidental to any of the previously described waste. Solid waste that is not C&D debris (even if resulting from the construction, remodeling, repair, and demolition of utilities, structures and roads and land clearing) includes, but is not limited to, asbestos, waste, garbage, corrugated container board, electrical fixtures containing hazardous liquids such as fluorescent light ballasts or transformers, fluorescent lights, carpeting, furniture, appliances, tires, drums, containers greater than ten (10) gallons in size, any containers having more than one inch of residue remaining on the bottom and fuel tanks. Specifically excluded from the definition of construction and demolition debris is solid waste (including what otherwise would be construction and demolition debris) resulting from any processing technique, other than that employed at a department-approved C&D debris processing facility, that renders individual waste components unrecognizable, such as pulverizing or shredding. The Department has been unambiguous in its insistence that absolutely no C&D Debris may be stored or brought to the site for any reason due to odor and environmental concerns. The materials brought to the Portsmouth site are strictly limited to soils meeting criteria outlined in the Beneficial Use Determination.

Q: Does the Town of Portsmouth have a log of the number of truck loads per day available to them and if so, does the zoning enforcement officer know if that limit is being exceeded on a daily basis as it relates to the number of trucks and the total per day deposits on the Portsmouth site?

A: A record of the truck loads of soils being deposited at the Portsmouth site is being maintained and submitted as part of APE’s quarterly reports. However, as previously indicated, the restriction regarding the quantity of C&D debris does not apply to these truck loads as they do not contain C&D debris.

Q: Does APE provide to the town a manifest from the waste haulers to the town?

A: This is not a condition of the Department's approval and our understanding is they do not receive such notification.

Q: Is this manifest available through DEM and can it be posted also on the web site to insure that they are not violating the new law limiting these total deposits to 150 tons per day?

A: Total quantities of waste received are contained in the quarterly reports. The most recent (July – Sep 2011) can and will be posted.

Q: How often do you verify at the site this compliance of APE to the new law and please post that info also.

A: The most recent inspections were performed on 6/20/11, 7/26/11 and 9/8/11. Inspections are generally only performed when soils are being received. No C&D Debris was observed during these inspections or any previous inspection.
Questions submitted by Laura Rogers, Portsmouth Resident 11/1/2011

Q. Are we at risk when we stand at the bus stop at 12:05? We hear the trucks, I have my 3 month old outside and my 5 yr. old, waiting at least 15 min. a day for the bus. We see the dirt blowing, is it also in my yard? We were told there was a different levels of arsenic allowed for residential vs. commercial. Is that true?

A. Most contaminants have a different standard for residential vs. industrial/commercial in the Department's Remediation Regulations. This is because of the different assumptions made when calculating these risk based standards. However, with arsenic, the level is the same for both residential and industrial/commercial because it is based on naturally occurring levels in uncontaminated soils and not risk.

From a risk assessment standpoint, the primary risk posed by arsenic is incidental ingestion [a more detailed explanation can be found in the answers to the question below]. Therefore the Department requirement is that the material be covered within 14 days is consistent with the Remediation Regulations. The Department also requires the site operators to comply with fugitive dust requirements, regardless of what levels are within the soils. Even if soils meet residential standards, fugitive dust can create nuisance issues for neighbors. Therefore the operators must wet soil to try to minimize dust issues.

As of the Department's last inspection on November 2, 2012, all soils with arsenic levels above 7 mg/kg had been covered. Currently most of the soils being received are from a RIDOT project in Pawtucket that comply with the arsenic standard as well as industrial/commercial standards for other compounds.

Questions submitted by Tom Casselman and Larry Fitzmorris 11/3/2011

1. Why has the DEM disregarded the advice of its own expert witness, Dr. Vanderslice, of the Rhode Island Department of Health, in establishing arsenic standards? He advised against raising levels of arsenic above the previously recognized 7 ppm limit as late as June 2007, yet the DEM sided with the developers on the House Special Commission on Arsenic, when it adopted the 40 ppm arsenic standard in early 2011. If Dr. Vanderslice is not the Department's expert, who functions in that role?

A. The characterization that the Department chose between the Commission and Dr. Vanderslice is not accurate. Dr. Vanderslice was a member of the Commission. The Commission took the recommendation of both DEM and DOH not to raise the standard. However, the consensus of the Commission was that more flexibility was needed in how arsenic levels over 7 ppm were handled. In both promulgation of the Remediation Regulations and responding to health concerns at the site, the Department has and continues to consult with Dr. Vanderslice. None of the Department's actions were done over the objections of Dr. Vanderslice. (findings of the Commission are posted at

2. The primary concern of the residents in the vicinity of the Island Park Landfill (Portsmouth) is the airborne dust containing arsenic. The landfill site is routinely subject to high winds (approximately 65 mph during Irene) and routine flooding, yet the material being delivered to the site is not routinely covered. In addition, the DEM imposes requirements to cover other sites containing significant arsenic on Aquidneck Island. Why has this requirement been waved at the Portsmouth Landfill site?

A. The most recent inspection on 11/2/2011 indicated the material with elevated arsenic has all been covered. When the Department originally developed its risk based standard, based on very conservative assumptions, it found the ingestion level was below the naturally occurring levels in uncontaminated soils. Therefore the level was and still is based on naturally occurring levels. However, because arsenic does not readily volatilize, the risk from inhalation of arsenic in dust from soil is very low. If the risk based number were based on chronic inhalation alone, the residential standard would have been over 2,552 mg/kg. If it were based on short term risk of inhalation, it would have been significantly higher still. The original formula and assumptions are shown here.

3. In a population of 100,000, what are the specific cancer risks of 40 ppm ingested arsenic dust?

A. If the soil is managed as described, the Department does not believe there is any specific risk to the community. The Legislative Commission on Arsenic concluded the standards are protective of human health and the environment. As clarified in the comments to the proposal from Representative O'Neil, the Department requirements go above and beyond those of the Commission's recommendations. It is not the intent for the project team here to redo either the work of the legislative team or the work of the Department's team that promulgated the Remediation Regulations with the new standards. It is also important to note that in reviewing the data, the Department has not found any soils with arsenic levels over 27 mg/kg and all shipments had average levels well below 20 mg/kg. Furthermore, many of the shipments had arsenic levels below 7 mg/kg in all samples. So the implication that residents have been exposed to arsenic soils of 40 mg/kg is not consistent with the data for the site.

4. What are the effects of the deposits of contaminated soil at the landfill site on the nearby flora and fauna in the beach area, the adjoining estuary and the recently restored habitat at the Boyd's Lane reclamation project?

A. The driving factor of the choice of a remedy was that improved runoff and capping of solid waste will improve the environmental conditions both on and adjacent to the landfill.

5. Is the Portsmouth Landfill considered a precedent for resolution of Rhode Island's approximately one hundred other contaminated municipal landfills?

A. Other sites that have undergone and will undergo closure will do so under the same rules.

6. Soil being deposited at the Island Park landfill site is primarily coming from three sites (by late October, 2011) on the Newport Navy Base: the building site of the new Army Reserve Center, a construction site at the Naval Underwater Systems Command and the Hazardous Material facility site. Why is this soil acceptable at a residential site in Portsmouth and a bordering salt water estuary, and not acceptable at industrial sites on the Navy Base?

A. The Department did not view the material as unacceptable where it was. Its removal was the result of excavation from construction related activities. Identical material continues to exist in the ground at the navy base and is not viewed as unacceptable.

7. Does the July 1, 2011 amendment to Rhode Island General Law 23-18.9 (Health and Safety - Refuse Disposal) effect the operation at the Island Park Landfill in Portsmouth? The recent modifications to the Act include instituting air quality monitoring plans (including reporting on lead, which is included in current deposits at the site), quarterly surface water and ground water sampling for lead and municipal letters of compliance with local ordinances and zoning requirements.

A. No, the statute only affects facilities that accept C&D debris. C&D debris is not allowed to be disposed of or stored at the site for any reason. The site is only allowed to accept soils that meet the Department's specifications in the BUD approval as amended.

8. In the meeting with the Governor, attended by ourselves, Director Coit and other high ranking officials of DEM, it was admitted by DEM representatives that the reason the arsenic level was raised to a maximum of 42 ppm was to allow the current owner of the landfill site, APE Enterprises, to make a profit on the capping project. The Department also recently authorized the increase of the Pond View (East Providence) tonnage limits from 150 tons per day to 1,500 tons per day. Is it the policy of the DEM, in view of the recent Department decisions at the Pond View and the Portsmouth Landfill facilities, to allow the raising legal limits, for solely financial (profit) reasons?

A. The arsenic level was not raised to a maximum of 42 ppm to allow APE Enterprises to make a profit. The reasoning behind the change in the arsenic standard is well documented in the report of the legislative commission on arsenic and the regulation changes that were promulgated as a result of that effort. It was acknowledged that APE Enterprises was receiving money for accepting this soil as fill/grading materials prior to final capping under the Beneficial Use Determination issued by the Department and the revenue from this was offsetting the overall cost of the closure/remediation of the site, making it more economically feasible. The Department evaluates every application submitted under the terms and conditions of the governing regulations and does not make decisions based on the profits or losses resulting from the proposed operation/activity.

9. During the March, 2011 meeting with the Governor, Director Coit characterized the Island Park Landfill site material, exclusive of the cap material, as "unsafe". What is the scientific reference to support that statement?

A. Two extensive site characterizations have been prepared, a Site Investigation Report in 2003 and a Supplemental Site Investigation Report in 2006. These studies found the following threats to human health and the environment posed by the site:
  • Trash and refuse is present near the surface with minimal or no cover.
  • The topography of the landfill did not meet the Department's standards and did not adequately manage runoff.
  • Existing soils exceed the RIDEM Residential and Industrial/Commercial Direct Exposure Criteria for the following hazardous substances: arsenic, lead, benzo (a) pyrene, benzo (b) fluoranthene, and chrysene.
  • Soil sampling showed existing soil exceeds the RIDEM GB leachability criteria for trichloroethene. The GA leachability criteria were also exceeded for the following hazardous substances: trichloroethene, tetrachloroethene and cis-1,2-dichloroethene.
  • Groundwater sampling of on-site wells shows it exceeds the GA criteria for barium, benzene, cis-1,2-dichloroethene, tetrachloroethene, trichloroethene, and vinyl chloride. The area is classified as GA.
  • Soil gas results indicate elevated levels of trichloroethene, 1,1,1-trichloroethane, toluene, 1,1-dichloroethene and 1,1,2-trichlorotriflouroethane on the central portion of the landfill.
So, in summary the site has significant exceedences in the Department standards for a number of carcinogens and non-carcinogens. There is direct evidence that the toxic chemicals have been released to the aquifer and the air. Furthermore uncovered trashed on the surface presents a physical hazard as well. This is the basis of the Department's conclusion that the site, prior to the closure, presented a risk to visitors at the site, nearby residents as well as environmental receptors on and around the site.

Questions submitted by Dr. Christopher Ottiano, Senator District 11, Portsmouth Resident 11/7/2011

1. Please give an overview of the findings and actions of the arsenic commission from the last session of the general assembly.

A. The following is a summary of The Findings and Recommendations of the Special Legislative Commission to Study Naturally Occurring Arsenic in the Soil. The entire report can be found on page 29 of the Department's Response to Comments on the BUD proposal at the following link:

Their concerns with the current standards involved the following:
  • The Commission heard testimony from those who felt the standard of 7 ppm (mg/kg) was too low and those who felt it should be kept at its current level.
  • In areas of the state where naturally occurring arsenic in the soil is higher than the average, such as Aquidneck Island, concerns were raised that the standards posed an extraordinary burden to developers, both for commercial and affordable housing properties.
  • The debate is complicated by the fact that some lawn fertilizers and potting soils contain levels of arsenic that would trigger DEM remediation requirements.
  • RIDEM and RIDOH both recommended the standard stay at 7 ppm but agreed there should be more flexibility in how soils with levels above 7 ppm could be managed.
The Commission recommended the RIDEM maintain the 7 ppm standard, but that where the average soil concentrations were above 7 ppm, the Department should adopt a tiered strategy towards its management as follows:
  1. Level 1 (average 7-15 ppm arsenic) soils must be adequately covered with clean soil or gravel at a depth of 4 inches
  2. Level 2 (average 15-43 ppm arsenic) soils must be removed, covered with landscape fabric and containment or covered with concrete or a permanent cover.
  3. Level 3 (average above 43 ppm) soils must be covered with concrete or a permanent cover and owner must put an Environmental Land Use Restriction on the Property Title.
In his comment on this project, Representative J. Patrick O'Neil, the Commission's Chair, pointed out that the Department requirements go above and beyond those of the Commission's recommendations. This is because the Department requires management of the material as if it were Level 3 (permanent cover and Environmental Land Use Restriction on the deed) although the soils all fall within the levels associated with Levels 1 and 2 (the average concentration of arsenic is below 20 ppm). The approval also has conditions that no sample may have levels above 40 ppm and that the soil must be covered with 6 inches of soil within 14 days. While these restrictions go above and beyond those recommended by the commission, we feel they are reasonable because the soil is being brought to the site from offsite, and therefore the Department has the right to err on the side of caution.

2. Please give a list of the contaminants, in order of toxicity concern, at the site and in the fill. Details about concentrations and exposure limits would be very helpful with regard to the next question.

A. Contaminants found in onsite soils and groundwater in the 2003 and 2006 studies can be found by clicking here.

3. Please detail the ways that a resident can minimize his/her exposure or health risk. It would be good to include the mandated requirements that the developer is to follow to accomplish the same.

A. As detailed above, the site soils and groundwater have been contaminated as a result of historic landfilling activity. Furthermore, although the soil brought in must all meet industrial/commercial standards, not all of the soil used for grading and shaping material meets residential standards. All of the soils with arsenic above 7 mg/kg have been covered. If more soil with elevated arsenic is brought onsite, the owner or his contractors have a maximum of 14 days to ensure that soil is covered and the public protected from exposure.

For the reasons above, as well as physical hazards at the site, the Department would recommend area residents not trespass on the property. The site owner is also in the process of erecting a chain link fence around the site to comply with the Department's Letter of Non-Compliance requiring access restrictions to the work areas. Furthermore, the owner must follow their approved dust mitigation protocols that require wetting and/or treatment of the soils to minimize dust generation.

In addition to arsenic, soils in residential areas of RI also commonly contain lead, pesticides, and soot from car exhaust and other sources. Therefore, it is good practice to limit soil exposures, especially to limit the amount of soil a young child may ingest. Children ingest soil when they get their hands and toys dirty and then put them in their mouth while playing. Washing hands frequently, especially before eating, taking steps to prevent tracking of soil into homes (mats, leaving shoes at the door), and routinely cleaning floors are all good ways to prevent soil ingestion.

It is important to note that the Department is requiring the site owner (APE) implement the remedy for property he owns. Previous site investigations indicate that the Town's landfilling activity extends beyond the APE property boundary to the west and possibly east of the property as well. The Department has no information on contamination present in areas of the landfill that are not on APE property. However, the steps above to minimize exposure to soils would be advisable for these areas as well.

The approved remedy for the site involves covering the grading and shaping material with 2 feet of soil meeting residential standards. Therefore, completion of the remedy should prevent direct contact with contaminated material at the site.

Responses and questions submitted by Tom Casselman and Larry Fitzmorris 12/30/2011 as a follow-up to previous responses to questions submitted on 11/3/2011 (This was posted as a PDF file because it contains a graphic).
Summary of Department of Health Meeting with Senator Ottiano on 1/23/12
Responses to Complaint Submitted by Debra Cardoza (Island Park resident) on 3/15/2012

Original Complaint

I am writing in concerned with the recent soils delivered to the Portsmouth municipal dump. After research, and in recent communication with Mr. Al Oliveira, Morgan school project manager. in Fall River Massachusetts.

In this recent conversation, he stated this soil is unsuitable and unacceptable at this location and contains higher levels of lead. He assured me it was going to a proper landfill.

15,000 tons of contaminated soil with higher levels of lead is unacceptable unsuitable and unacceptable at its present location. Mr. Oliveira also stated that they were paying a lot of money to have this hauled away, approximately $225,000.

I then informed him, this was a small municipal dumpsite, closed in the early 1970s. This was not a licensed facility, and these soils are being dumped in a densely populated residential area surrounded by wetlands and beaches.

In a recent MassDEP, An Investigation to Determine Releases of Oil and Hazardous Material are Affecting Schools, Homes and The Environment Justice, named, "PROTECTING OUR CHILDREN AND THEIR ENVIRONMENT" in this report the highest priority was given to the releases that could impact indoor air schools and homes and sites which children might have contact with contaminated surfical soil or could be exposed to contaminated fugitive dust blowing off sites.

This is an MCP site identified in the study requiring cleanup bringing them into compliance because of the potential impact of health safety and welfare of the children, the residence and and environmental justice. the report continues with the impact soil groundwater migration, air-quality "sensitive receptors" (such as children) to come into contact with the environmental contamination.

if you Google, Morten school, Fall River, Mass -Toxic material - you will find a write up from USA Today, stating the school ranked 1-10 highest and toxic air and other hazardous materials.

When asked Mr. Oliveira if this was safe for the community, he would not respond, only to state, "well, it was approved and be accepted" (by your state).

Mr. Gray, this is an environmental injustice! These trucks are flying by on Boyds Lane. Dust flying all over the place, mothers walking by with children in strollers, dust flying all over the wetlands, all over our beach, all over our properties, our cars, and our homes. Let me remind you there is also a children's school, children's playground,and children's bus stop at this very corner.

We are exposed to the contaminated fugitive dust blowing off site with clouds of dust that you could pick it up on the side of the road with a shovel. This is a clear violation of the Bud!

This state agency is the "Department of Protection Environment" What are you protecting? The owner to profits at the expense of others? It surely is Not the children, the Residents and the Environment!

I asked that you look into this and keep us safe, protect us from the contamination of these Hazardous Materials that are blowing off-site and placed approximately 35 feet from our homes! Thank you!

Department response: When the Department was originally informed about the Morton site by Site Remediation Technologies, we were told there were two sources of material at the Morton School Site, one that was impacted and one that was clean. Only the clean material was proposed for use at the Portsmouth Landfill, therefore only the analyses for the clean material were examined by the Department. These analyses showed the soil not only met commercial/industrial standards but were also compliant with RI residential standards for all contaminants. As there was a large volume of soil being brought in, the results were posted on the web site and a mass email was sent to interested parties, including the complainant (Debra Cardoza) to keep them informed.

After receiving this complaint about high lead levels, the Department went out the next day and took two random samples of the material in question and had them analyzed for lead and arsenic. The Department contacted David Peter of Site Remediation Technologies (project manager for the Portsmouth Town Dump for APE) and was informed that no lead contaminated material had left the Morton site and the lead contaminated soil was destined for in-situ treatment followed by disposal at a Massachusetts facility. The Department also contacted Ken Melvoen- Project Superintendent for J&J Construction who is handling soils removal at the Morton School Site in Fall River. He also stated that no lead contaminated soil had left the Morton property and that the lead contaminated soil was being separately contained and bid for disposal within the State of Massachusetts. Mr. Melvoen confirmed that the soils that were going to the Portsmouth Town Dump were those analyzed by Geolabs Inc. on 2/15/2012 and found compliant with applicable standards. He also mentioned that prior to the current soils removal at the Morton site, there had been an underground storage tank cleanup that included disposal of soil that was impacted with petroleum. This soil was transported by NEDT to a facility in Stoughton, MA, but that petroleum contaminated material had not been brought to Portsmouth either.

The Department also contacted Al Oliveira, project manager for the City of Fall River as he was the quoted source for the complaint. The Department sent him a copy of the complaint. In a conversation on March 23, 2012, Mr. Oliveira recalled the conversation with the complainant but said the complaint was not an accurate reflection of that conversation. He had told Ms. Cardoza that the cleanup was being done in accordance with Massachusetts Regulations and that the soils being sent to Portsmouth complied with what they are authorized to accept. He never said any lead contaminated material had been sent to Portsmouth. Regarding the neighborhood and the proximity to houses, he advised her that this is an issue between her, DEM and the responsible party and does not involve the City of Fall River.

On March 27, 2012, the Department received the sampling results for its sampling of 3/16/2012. Total lead levels were 4.1 and 15.0 mg/kg . These levels are an order of magnitude below the standard of 150 mg/kg for uncovered, un-vegetated soils in residential properties and playgrounds. Arsenic levels were 2.3 and 2.6 mg/kg.

The complaint also made reference to a USA Today Article. The Department found a USA Today Article entitled "The Smokestack Effect- Toxic Air and America's Schools" that made reference to the Morton School. It appears the inclusion of the Morton School in the article was based on the Fall River area's air quality and air emissions from sources in the area (the largest being Brayton Point Power Plant). The purpose for the ranking is completely unrelated to any chemicals either at the school or in the soil.

In conclusion, the allegation that lead contaminated soil from the Morton School has been dumped at the Portsmouth Town Dump is untrue.

Complaint of 3/21/2013:
In addition to the email below, the Department spoke by phone with Mike Ramos, an area resident on 3/18, 3/21, 3/22 and 3/25 who had complained about the same issue.

Complaint received from Councilman David Gleason
Subject: Airborne Contaminated Soil on Park Ave and Boyd's Lane in Portsmouth, RI

I received a call this morning from a Portsmouth resident concerning the proliferation of airborne contaminated soil on Park Ave and Boyd's Lane in Portsmouth, RI. from trucks leaving the site of the "old Portsmouth dump site" which is being filled by or for Palmer Industries. In seeing this for myself today, there was also a police officer there today that took several photos confirming the tracking of large amounts of mud on, what I think are state owned roads. In addition, another resident filmed the conditions there yesterday as the dry, contaminated dirt is blown around in a violent dust cloud. No resident of any part of RI should have this occurring in their neighborhood and with the only two people in DEM's compliance division unavailable to speak with today, I am sending this email.

While we in Portsmouth may not be able to change the situation that DEM is allowing here where contaminants are being brought in to cover this dump site, we can ask that the terms of the BUD(?) be adhered to. Allowing this much contaminated soil onto the roadways and into the air of our neighborhoods is unacceptable if not illegal. Please look into this matter at your earliest convenience! In passing on the citizen's observations, gravity feeding water from a tank into a puddle (of contaminated mud) to "clean" the truck tires leaving the site does not work. He suggested a gas powered pressure washer to clean the tires as a possible solution which I would agree with.

It has also been suggested to me that contaminated soli is being used as "cover" on contaminated fill. This too should be investigated by DEM. Perhaps we all have become too complacent at this site and it requires more oversight by DEM for our resident's safety and health. Thanks in advance for your remedies to this situation. David Gleason Portsmouth RI resident and Councilman (401-524-7660).

Department Response: A Department Engineer inspected the site on Friday March 22, 2013. In his inspection, he made note of two issues, a significant amount of mud on the road and the street sweeper was creating a dust issue when cleaning the road by not applying enough water during the process. The Site Operator who was present agreed to the following remedial measures:
  • Installing a power wash for vehicles prior to exit
  • Improving the street sweeping operation
  • Replacement of stone at the entrance.
On Tuesday, March 26, 2013 two DEM inspectors revisited the site. They found the three measure described had been implemented. They also observed that there was not a noticeable buildup of soil in the street. Trucks were not present at the time of inspection although earth moving equipment was operating at the site. At the time, the soil being managed was relatively wet and a dust problem was not observed.

Sampling results were requested and received for the soils that were being managed onsite. The Project Manager (David Peter) indicated that one of the sources met residential standards while the other two met commercial/industrial standards as required by the BUD. The Department has requested and is reviewing the sampling results.

The following comment was received on March 13, 2014 from Deb Debra Faber Cardoza on behalf of herself and area residents known as the Landfill Committee. The Department responses are indicated by "A." and shown in italics.

In response to your email, dated February 10, 2014, with its request for comments and questions, we submit the following points. Some of these comments have been submitted to me by surrounding landowners and Island Park residents.

The Current Proposal to Expand the Cap area:

AP Enterprises is purposing expansion of the cap area by about 15%-20%, we do not consider that a minor expansion. Has DEM requested AP Enterprises expand this project?

A. During 2013, APE notified the Department of their intent to conduct additional test pitting to delineate the boundaries of the landfill. They also applied for and received authorization from the Coastal Resources Management Council to conduct this test pitting. On July 16, 2013, the Department notified the interested parties of this activity as follows:

"We are sending this update regarding the former Portsmouth Town Dump. The owner has applied for and received permission from the Coastal Resource Management Council (attached) to perform exploratory test pitting in the northwestern portion of the landfill. This will allow them to more precisely delineate the areas of historic waste deposition, so that they meet cover requirements.

Please contact me or CRMC with any questions or concerns."

Subsequently the Department and CRMC received a request to cap the areas where historic landfilling operations were found to occur. The request was received by the Department on January 7, 2014. On February 10, 2014, the Department notified interested parties, including area residents and the town, of the plan. On February 20, 2014, having heard no concerns from the residents, the Department expressed 3 concerns about the plan:
  1. The plan inaccurately depicted some test pits as single points when they had been excavated as a series of pits.
  2. The plan called for erection of new fences in the area of the salt marsh that could have unnecessary negative effects on wildlife and aesthetics of the area.
  3. The proposed capping activity involved clearing and filling in a heavily vegetated area very close to residents of Russell and Highland Avenue. In trying to weigh the need for capping versus concerns for noise, dust and aesthetics, the Department asked that this capping be scaled back and preserve and enhance the vegetative barrier.
On March 6, 2014, APE submitted a revised plan to address the Department's concerns. The Department has reviewed this plan and found it addresses those concerns.

In the DiPrete Engineering maps contained in the proposal to expand the cap area, a number of homes located on Highland Avenue, Walnut Street and Russell Avenue are missing.

A. Agreed, however the plan accurately portrays the site boundaries and nearest abutters.

The property on the corner of Highland, Pine and Russell stated on the map as undeveloped, is currently being developed.

A. The Department was not aware that these roads were proposed for development. This is of concern because the undeveloped portions of Pine Street, Russell Avenue and perhaps Walnut Street are underlain by portions of the landfill that have not been studied or sampled. Its source is believed to be identical to landfill material on the APE property that contains hazardous materials. Construction of a road or buildings on fill material could create significant health concerns and we will contact the Town on this issue.

The homes on the North End of Russell Avenue (West side), are presently bordered by the cap on two sides, the West and South sides. When the cap is expanded, the homes shown on the map on the West side of Russell Avenue will be surrounded by hazardous waste on three sides by the landfill.

The West side of Russell Avenue will also be subjected to concentrations of any hazardous material from contaminated soils during construction. The area is downwind from the site with prevailing winds. Construction at the AP Enterprising cap site to date, has not effectively dealt with the blowing soil. The community is concerned about active children's playground on Highland Avenue.

AP Enterprises requested a BUD extension that was granted to complete this task. Now they seek to expand and extend this cap that is 90% complete. The project appears to be expanding into a permanent landfill for hazardous chemicals. This is NOT a licensed landfill facility. It was a small town dumpsite. When will this project be completed? Are further expansions and extensions anticipated?

A. The Department's regulations require that all fill material be covered and closed as the landfill was found to have exceedences of the Department's standards for a number of contaminants. To the extent that residential properties are surrounded this landfill speaks to how important it is to cap and close this site.

As the Department has repeatedly stated on many occasions that hazardous waste is legally defined and strictly regulated by both the United State Environmental Protection Agency and the Department's Hazardous Waste Regulations [the most recent version became effective 2/10/2014]. The USEPA also specifically defines the term but the state rules are more stringent. The Department does not now, nor has it ever permitted hazardous waste to be accepted at the site (the originally landfilling activities at the site pre-date the Department's existence). To dump hazardous waste at this or any other unpermitted site could result in significant civil and/or criminal penalties on both a state and federal level.

The Department has required extensive sampling as well as conducting its own split sampling of material accepted at the site to ensure no hazardous waste or soils in excess of its Site Remediation standards are accepted. There is no indication that hazardous wastes were ever accepted as part of the closure activities. This data has been published on the web site and interested parties were notified. We have also met with Town officials to make sure they are kept apprised of all developments at the site. The Department feels it has adequately addressed the town's concerns.

Closure of the landfill limits but does not preclude future non-residential construction activities at the landfill. Such activities must be in accordance with the landfill closure program that precludes activities such as placement of sewage disposal systems on fill. Any activities on the site may also be subject to additional permitting requirements of the Department and CRMC.

APE is not responsible for closure of properties under its control. As the landfill boundaries extend beyond these properties to the west, north and east, the Department anticipates that at some point in the future, other properties may undergo closure as well.

Outstanding Issues:

The Portsmouth Town Council issued their comments and concerns about the hazardous waste material delivered to this old dumpsite that was closed in early1970's, only to have DEM lower the standards and ignore the Town Council's request to cease and desist. To our knowledge, this request and concern remains unanswered. Is that correct?

A. Work has not ceased at the site. The Department has required extensive sampling as well as conducting its own split sampling of material accepted at the site to ensure no hazardous waste or soils in excess of its Site Remediation standards are accepted. There is no indication that hazardous wastes were ever accepted as part of the closure activities. This data has been published on the web site and interested parties were notified. We have also met with Town officials to make sure they are kept apprised of all developments at the site. The Department feels it has adequately addressed the town's concerns.

The Portsmouth Town Council made several formal requests to the Director of the Department of Health, Dr. Vanderslice to address the health risks from the hazardous waste materials received from Massachusetts and Rhode Island and deposited in a densely populated residential area. Has there been an analysis performed on the health risks to humans?

A. This issue was dealt with extensively in the approval process. As a clarification, Dr. Vanderslice is not the Director of the Department of Health but is the expert at HEALTH the Department consults on matters related to risk assessment. Doctor Vanderslice was consulted on the activities at the site and met with area residents regarding their concerns.

This Community is deeply concerned with their quality of life and health and the spread of hazardous contamination on their properties by the prevailing winds and threats of the special flood hazards. How will DEM address the residence health risk rights and their properties rights?

A. Health risks and property rights are paramount in oversight of site closures. This was also the basis of the Department's requested modifications to the current plan discussed above. Flood hazards are a major part of the CRMC review and the Department will continue to coordinate with the council as necessary.

Many members of the community throughout the years brought AP Enterprise violations to the attention of DEM only to have them dismissed as erroneous and or without further action.

A. The most recent complaints from 2013 dealt with dust control issues on Park East Drive and odor issues related to soils with high organic content. Both of these complaints were investigated and APE was required to modify their procedures to address these issues. The Department has never ignored complaints, although some complaints, such as soils violating hazardous waste transportation rules for arsenic and highly contaminated lead material being received from a site in Fall River, were investigated and found to be based on erroneous information.

Instead of the protection of the environment and the health of the residence in the densely populated area, DEM has lowered the standards of arsenic levels from 7 ppm to 42 ppm.

DEM has also failed to adequately evaluate the arsenic risk to the residential population in the vicinity of the landfill cap.

A. This issue was extensively considered and the Department's findings were posted on the website at: No new information is presented here.

Has the DEM imposed handling procedures on AP Industries to reduce the E.coli bacteria risks from soil excavated from sewer line repairs on Wellington Avenue in Newport and other toxics including heavy metals such as mercury, lead, PCB's, pesticides, petroleum hydrocarbons and other harmful chemicals that may very well be harmful to humans, animals and plants.

A. All incoming material is sampled for RCRA 8 metals, semi-volatile organic compounds, volatile organic compounds and PCB's. The Department has received analytical data, as part of quarterly reports that contains thousands of pages of analytical data. The Department has provided this data at no cost to anyone who requests it.

According to the EPA, industrial discharges, toxic pullulates are believed to a pose a direct risk to human health and contaminated sediments that are currently buried could pose a threat if disturbed through dredging and other disturbances are a concern as these material deposited here.

We remain concerned about the digging and disturbance within the old dump site which is not permitted in the BUD and has been documented to have occurred.

A. The Department has not been given any evidence to that effect.

It also appears throughout this project, different smells and texture of the waste materials dumped at this site do not reflect the test results. We request DEM diligence in these matters and when possible save the residential soils near homes.

A. The Department agrees and has had this discussion with APE representatives on this issue.

We have also noted that a flourishing population of deer, cottontail rabbits, foxes, hawks, barn owls and numerous wildlife have disappeared. It is a dry and barren waste land filled with hazardous industrial waste in a densely populated area. This has all been done without an adequate evaluation conducted by CRMC.

A. Unfortunately, it is not possible to cap the landfill without clearing the vegetation. The comment regarding CRMC is completely inaccurate as the original plan and the subsequent modifications, including this one, have gone through the complete application and permitting process with CRMC as appropriate.

The community would like to ensure the chain link fence remains securely in place as required by DEM in the BUD.

A. The original plan called for perimeter fencing for all the new areas. While we agree that this is necessary regarding areas that are in the proximity of residential properties, we have a concern doing so in areas adjacent to the salt marsh unnecessarily disturbs the habitat (an issue the commenter notes above). In addition to fragmenting the habitat, it impacts aesthetics of the area for kayakers. To that end, the Department does not believe an 8 foot chain link fence in the area that borders the salt marsh on the Levesque property is necessary.

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