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State Court's Decision

Posted by: BillA on Oct 28, 2016 - 06:13 PM
Issues related to the RCRA process
In 2014 the DEC decided to unilaterally implement their remedy for the arsenic contamination cleanup in the Air Deposition Area of Middleport and the Roy-Hart School over the desired remedy of FMC and the MCIG. FMC filed a law suit in Albany Supreme court to challenge the DEC.

Since then the DEC has proceeded to implement their plan at the school and in the village neighborhoods of Alfred, Park and Freeman Avenues this year and last year despite FMC's legal challenge.

On October 20, 2016, a panel of five judges unanimously ruled against the DEC stating the state agency violated the law as spelled out in the Administrative Order of Consent, legally agreed to by FMC and the DEC in 1991, by not allowing a hearing to settle the dispute between FMC and the DEC on the remedy selection.

It now remains to be seen how the DEC will proceed from here. They are looking at all their legal options. They could appeal or allow a hearing and let the courts decide. They could enter into further discussions with FMC but that is what has been going on since 1991 with no agreement between the two. The DEC could just continue with the cleanup in the village with their remedy acknowledging that FMC may not pay for all of it or any of it. However it is believed that FMC always assumed some amount of the cleanup would be paid by them. WLVL radio stated that the ruling meant FMC would not have to pay for the cleanup activity from 2014 and 2015 but that is not clear from the statements seen so far. What amount FMC does not pay would be left to the taxpayers of New York.

Use this link to view the Buffalo News article

Use this link to view FMC's statement

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