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Issues related to the RCRA process
The New York State DEC and DOH have decided to discontinue negotiating with FMC to remediate residential properties in Middleport and do it themselves with state superfund money. The “M” and “K” blocks comprising of Alfred St., the north side of Park Ave. and the south side of Freeman Ave have been targeted for remediation this year (2015). A flier announcing this was mailed to most Middleport residents early in January with owner specific letters from Robert Cozzy, Director of Remedial Bureau B going to property owners in the “M” and “K” blocks. The latter gave more technicalities and stated that the property owner would be contacted to set up a one-on-one meeting. These contacts began January 26th. The remedy to be used is Corrective Measures Alternative 9 which stipulates all levels of arsenic above 20 parts per million in soil will be removed with some level of flexibility. Permission must be granted by each property owner before anything can be done by the state on that property.

The Royalton-Hartland School property will also be targeted for remediation in 2015. The school shares it's western border with the properties in the “K” block. Areas of the school not previously remediated will be addressed with permission from the school board.

To view the flier sent to most Middleport residents click here.

To view the news article published in the Buffalo News click here.

To view the news article published in the Lockport US&J click here.

A letter explaining the process and emphasizing the fact property owners can decline or “Opt-Out” was sent by Chairman Bill Arnold to the property owners of the “M” and “K” blocks. A supplement to the letter provided some reasons declining could be justified. This was to balance the information given to the property owner with pro remediation information coming from the state agencies. To view the letter click on the "Read Full Article" link below.

Dear Fellow Resident,

As owners of property within the so called M and K blocks of Middleport, you should have received letters from the New York State DEC explaining their intention to examine your property and determine a plan to remediate.

The proposed process will be to first obtain permission to perform additional soil sampling, then inquire about features owners want saved, determine what areas of the property require remediation from the additional sampling, work up a plan, present the plan to the owner and then proceed with remediation.

Please keep in mind you have the right to refuse or decline anytime in this process, even refusing initial contact. Typically in the past, at any time where someone has to come onto a property, a written request to proceed has a page for the owner’s signature with two sections. One for acceptance and one to decline or refuse. The owner signs in the appropriate place. It is not clear if it will work that way this time but you will have the right to register your refusal if you wish.

Every effort has been made, especially by Mayor Westcott, to protect your rights and interests as property owners and to protect the village as best as possible. The agencies have indicated they will try to persuade you to change your mind if you chose to decline remediation. It is hoped they will not resort to arm twisting or threats but these techniques have been used in the past by parties trying to convince owners to remediate. Be aware that the DEC cannot force you to remediate. The decision is totally up to the property owner alone.

If you have questions or concerns you would be best served by contacting Sally Dews at the DEC in Albany at 518-402-9768 or E-Mail at

You may want to have your property remediated if:

  1. You are concerned about the levels of contamination in the soil in your yard. The primary contaminant of concern in Middleport is arsenic. It has been shown in studies that exposure to arsenic for long periods of time can lead to some illnesses including cancer.

  2. You are not concerned about losing any features on you property or believe they will be satisfactorily replaced with like of similar features. You will be given the opportunity to discuss the replacing of any item that needs to be removed during the remediation process. For the most part any above ground items will need to be removed where excavation needs to be performed including trees, shrubs, flower beds, above ground pools, swing sets and other playground equipment, fencing, sheds, driveways and sidewalks. At the end of remediation everything will be replaced to your specifications except older, mature trees will be replaced with younger trees but not saplings.

  3. You would like to receive a “Clear” or “No Further Action Needed” status for your property which would show your property has been cleaned to the satisfaction of the state. This status letter should be included with the disclosure document required at the time of sale of the property.

You may want to decline remediation if:

  1. You are not concerned about the levels of contamination in the soil of your yard which is under the landscape. Please refer to the attachment for some additional information.

  2. You are not exposed to soil in your yard a high number of days per year where you or members of your family may ingest soil.

  3. You have features on your property you do not want to lose which if left in place could not support a “Clear” or :No Further Action Required” status. The Agencies will be looking at this on a case-by-case basis.

  4. You do not want the inconvenience of going through several weeks of deconstruction, excavation and reconstruction of your property. Also keep in mind construction cannot continue during rainy periods. If it is too wet to work, your yard could be in a state where the sod has been removed exposing contaminated soil and left that way until dry enough to continue. Pets or children could track soil into your house.

  5. You are not concerned if you have a “Clear” or “No Further Action required” status for your property. Sale of property in Middleport does not appear to have been greatly affected by the possible arsenic contamination.

The Agencies will provide their reasons to remediate. The following are some reasons to consider that support declining remediation.

The Agencies base their concern for Arsenic exposure on studies performed in countries such as Taiwan, Japan, Chile, Argentina and third world countries where humans were exposed to contaminated drinking water. By their own admission in a response to a public comment submitted in 2012, “there are no studies in the peer reviewed literature that demonstrate an increased risk of cancer from arsenic in soil”. Arsenic in water is in a dissolved state more easily absorbed by the body when ingested. Arsenic which has been in soil for a number of years as in Middleport has become chemically bound to other minerals such as iron and copper to form compounds not as easily broken down. Middleport residents in the areas of concern obtain their water from a municipal water system, not from wells. Consider how many glasses of water you drink over plates of soil you eat in a day.

The Agencies concern for vegetables grown in area soil is based on studies performed in third world countries where rice was grown in patties flooded with contaminated water. Their belief is if rice would uptake arsenic in this condition, it might be true for all vegetables in any growing condition. This has been shown as not true. (See studies below)

There have been numerous studies performed using Middleport soil or involving Middleport residents,a few conducted by the New York State DOH. Some of these are:

  1. A study performed by Exponent collected urine and toenail samples from 439 people including 77 children under 7 years old, half the 7 year old children living in the study area. The result showed no relationship between the arsenic levels in urine and toenail samples taken from residents and the arsenic levels in their yards. All urine and toenail results were well under acceptable limits.

  2. A vegetable study by Exponent took vegetable samples from 42 Middleport gardens. The result showed no increase in arsenic levels in samples in an unwashed state to those purchased at a local supermarket.

  3. A phytoremediation study used plants known to uptake arsenic in other studies conducted outside of New York State. There were three areas in Middleport used for the study, 2 residential sites and one farm field location. Of the several types of plants used, only one, the brake fern, showed evidence of arsenic uptake. Soils from Middleport were taken to a lab for a more controlled study with similar results. It appears from this study and the one above, arsenic uptake by plants grown in Middleport soil is low and not any more than plants grown anywhere else.

  4. Dermal Arsenic Absorption of Middleport soils used rhesus monkeys which were dosed with a mud pack of Middleport soil applied to the shaved abdominal skin. Arsenic absorption was measured based on urinary excretion of arsenic. The study's results indicated that dermal absorption of arsenic from Middleport soil is negligible.

  5. NYSDOH Cancer Incidence Study was performed by the New York State Department of Health. It compared the number of cancer incidences reported by and for Middleport residents to those in similar communities. The result showed no statistical difference.

  6. NYSDOH Roy-Hart Student Study was also performed by the NYSDOH. The study took hair and blood samples from Roy-Hart high school athletes and elementary school children attending the schools in Middleport. The results were compared to students in a similar school outside Albany, NY. The study showed little difference in the samples taken between the two schools. In fact the average arsenic levels in the elementary school children from the Albany area were slightly higher than those from the Middleport school.

Note the studies cited in 5 and 6 above were done before the massive cleanup of the athletic field.

The Agencies choose to dismiss all of these studies relying on those conducted in Japan and third world countries based on arsenic in water not soil.

The state is targeting any residential property which has arsenic levels above the background level for the Middleport area. This level is set slightly above the state wide level because of historical land usage in the area. It was statistically calculated using soil samples from the Gasport area. This calculation did not strictly follow the guidelines stipulated in the New York State Brownfield Cleanup Program and Soil Cleanup Objectives document. If it had, the calculated Middleport background would be significantly higher resulting in less required remediation.

Arsenic is a naturally occurring element in soil.

The agencies have deemed inhaling dust and exposure on the skin to be possible but remote. The main exposure pathway is ingestion, you have to ingest the soil. This may sound odd but small children do play outside in the dirt and place their hands in their mouths, but not over a long period of time (35 to 70 years and 200 to 350 days per year depending on which Agencies statistics is used).

Using data from the Agency for Toxic Substances and Disease Registry, part of the U.S. Department of Health and Human Services, Dr. Daniel Watts (New Jersey Institute of Technology) estimates a 150 lb. person could ingest the equivalent of 85 peas worth of dirt at 20 ppm of arsenic contamination each day and would still be safe under the acute exposure rule. For chronic exposure it would be the equivalent of 5.1 peas a day. Double the contamination in soil and you could probably halve the number of equivalent peas per day. You will have to consider how much you are exposed to dirt in your yards and if you would ingest that amount every day, even in winter?

There is evidence from past remediation projects in Middleport that the heavy equipment used in excavating and large trucks used to haul dirt can damage the foundations and plaster of homes.

If a property owner declines remediation anytime from the initial contact or after reviewing the plan for their property, that owner or subsequent owner can ask for the property to be remediated in the future. If FMC is not on board at the time, the state will perform the remediation if state funds are available.
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