TIVERTON -- New England Gas Co. has issued a blistering response to a state-imposed deadline of Jan. 4 intended to move the utility toward cleaning up contaminated soil in the Bay Street neighborhood.
New England Gas denies that it is violating regulations of the state Department of Environmental Management.
On the contrary, the Jan. 4 deadline is itself "improper," according to a letter New England Gas sent DEM on Tuesday.
DEM gave notice to New England Gas earlier this month that it expected information by Jan. 4 on a minimum of three ways the company might clean up the contaminated soil, which the state has traced to the dumping of coal gasification wastes from the former Fall River Gas Co.
But David L. Black, vice president of New England Gas for legal affairs, strenuously denied DEM's long-standing assertion that company is responsible for the soil contamination and said the imposition of the deadline runs contrary to DEM's own regulations.
Black wrote that New England Gas "will not ... yield to unreasonable demands or accept responsibility that clearly lies elsewhere."
The tone of the letter appears to be in keeping with the gas company's vigorous defense in a separate lawsuit brought by homeowners who want to force the utility to clean up contaminated soil, which they say has made them virtual prisoners on in their own homes.
New England Gas has asked U.S. District Judge Ernest Torres to dismiss the complaint, filed by Environmental Neighborhood Awarness Committee of Tiverton (ENACT) earlier this year.
Meanwhile, DEM had expected to receive plans for remediation last summer, when New England Gas submitted its second report on soil testing that the utility conducted on 76 of the 96 properties within the contaminated area.
Instead, New England Gas proposed further analyzing the test results to assess risks to human health.
In Tuesday's letter, Black said DEM is not allowing the company time to conduct such human health risk assessments, which are clearly permitted by the agency's own regulations.
A DEM spokeswoman said yesterday that agency officials had not yet had a chance to review the New England Gas Co. letter, addressed to Leo Hellested, chief of the Office of Waste Management.
But a DEM official has said publicly that the proposed human health risk assessments are a mathematical exercise that would lead to restrictions on homeowners' use of their properties rather than removal of contaminated soil.
The DEM engineer, Jeffrey Crawford, spoke at a public forum hosted by ENACT in October. At the time, he also pointed out that these assessments could not take place without the approval of homeowners, something they were extremely unlikely to give.
In Tuesday's letter, Black wrote that the DEM's reason for objecting to the risk assessment is "flawed and inconsistent with the remediation regulations," suggesting that the agency might have encouraged property owners to object to this option.
Black asserted that DEM "does not have the authority to disregard the remediation regulations and select and implement the remedy preferred or chosen by the property owner."
"It is improper for RIDEM to predict, in advance, that the residents will not be in favor of a remedy that might flow from that risk assessment," Black wrote.
The most recent round of soil testing showed 2,335 instances in which hazardous chemicals exceeded safe limits on the 76 properties that were examined, including concentrations of cyanide, arsenic, lead, and benzo(a)pyrene, all of which exceeded safe limits for residential areas.
The worst readings were for benzo(a)pyrene, which has been described by a state health official as a "probable" carcinogen. It was detected in concentrations 285 times the safe limit at a depth of no more than 6 inches, and 530 times the safe limit in samples taken as much as 2 feet below ground.
Black's letter challenged a determination made by DEM in March 2003 -- nearly three years ago -- that New England Gas is responsible for the contamination.
The letter said the most recent site investigation demonstrates that it is "wrong" to assume the contamination comes from coal gasification -- the burning of coal to create gas at the former Fall River Gas Co. during the early part of the last century.
"There are multiple sources of the contamination found within the study area, including manufacturing operations, petroleum operations, agricultural uses and landfill activities," Black wrote.
"There are also many domestic uses of materials that have potentially contributed hazardous substances to the study area, including coal, fuel oil, lead paint, gasoline, pesticides, herbicides and treated wood materials used for decks and fencing," according to the letter.
It continued, "Much of the contamination identified in the study area is similar to urban background concentrations found in this region of the country and has nothing to do with [coal gasification wastes] or New England Gas Co. "
The letter also noted that in 1988, DEM's Crawford investigated a complaint that the gas company had dumped coal gasification wastes on some 12 acres that are part of the current controversy and found no evidence of contamination.
Black suggested that, based on Crawford's findings, the town allowed 11 homes to be built on the vacant land.
He wrote that New England Gas will "continue to work with RIDEM on study area issues as long as we both work cooperatively and reasonably."
The company "will not, however, yield to unreasonable demands or accept responsibility that clearly lies elsewhere," according to Black.
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