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MCIG Response to Agencies Comments

Posted by: BillA on Sep 30, 2009 - 12:57 PM
Issues related to the RCRA process
The USEPA, NYSDEC and the NYSDOH held an open public comment period for the RCRA Facilities Investigation of the Air Deposition Area and Culvert 105 from May 18 to July 2, 2009. These areas are comprised of the parts of Middleport of Main St. east to the county line and south of the canal to Route 31 as well as the drainage ditch from the railroad to the sewage treatment plant on N. Hartland St. The drainage ditch is a buried pipe from the railroad to north of Sleeper St., however parts of it was an open ditch in the past.

The Agencies received several comments form the public during this open comment period both written and spoken at a session held at the fire hall on June 10, 2009. The responses from the agencies to each of those comments are available on this site in the Document Repository or by clicking here.

The Middleport Community Input Group appreciated the opportunity provided by the government agencies (USEPA, NYSDEC and NYSDEC) for the residents of Middleport to submit their comments pertaining to the RCRA project in the village. Community involvement and two way communications is an important part of the process and needs to be further developed for a successful conclusion which will be acceptable to all.

However the MCIG believed some of the agency responses were incomplete, evasive or unresponsive.

The MCIG has provided comments on some Agency responses since the group would like to continue to emphasize our concerns over some positions and responses the agencies have taken in the past.

Those MCIG comments can be viewed by clicking on the Read Full Article link below.
Response 1a.
In the agencies’ response, it is stated that it takes 5 to 40 years after exposure to arsenic to have an effect such as cancer. FMC used arsenic in their pesticide manufacturing beginning in the 1920’s and discontinued in 1974. No new distribution through air deposition from FMC should have occurred since 1974 so what is in soils in the air deposition area has been there since then. That is 35 years since the use and 79 since the commencement of use of arsenic, well within the 5 to 40 year time span. If arsenic is going to cause a detrimental effect on the residents of Middleport, some evidence should have been seen by now. It is understandable that 40 PPM of contamination would be worse than 20 PPM, but how much when compared to other factors, the cost of remediation or the residual effect left on personal properties to obtain the lower level.

The response given in the June 18, 2008 MCIG Questions and Answers regarding this topic is no more complete and acceptable now than they were in 2008.


Response 1b:
If there is no evidence of elevated arsenic in the bodies of residents, how can there be any effect to health. The agencies can discount the DOH study from 1987 and the Exponent study but it showed no elevated levels of arsenic in body fluids whether or not the residents lived in areas with elevated levels of arsenic in soils.

Response 1c:
They are very few residents, perhaps 1, where the drinking water supply is from ground water (well). The main source of water in the community is from a public water system. The one used well has been tested several times in the past and found not to have elevated levels of arsenic. Therefore this is not an issue and the agencies’ response should have stated so.

Response 1e:
It is recognized that arsenic is a carcinogen as are many other factors in our environment and in various life styles. However what the agencies seem to fail to recognize is the percentage effect of arsenic in the environment verses all other factors. The agencies should refer to a report by Holly L. Howe, Ph.D., Director Cancer Surveillance Program, Bureau of Cancer Epidemiology of the NYS Department of Health, dated 1987. This report is in the document repository of the MCIG’s web site. In that report, Dr. Howe provides percentages of cancer risk verses several factors. Environment was associated to a only a 5% risk were smoking had a 30% risk and diet a 35% risk of causing cancer. The remaining 30% is associated to other factors not related to the environment. The result of an environmental cleanup such as the arsenic in Middleport soils would have a minimal effect on cancer incidences when compared to other factors.

Response 1f:
Refer to the comment to 1b above.

Response 2:
The calculation determining that 20 PPM is the background arsenic level in Middleport using Gasport data may have been performed scientifically with peer reviews but it is still an approximation filled with assumptions that would probably have different results if done by different groups. Just because it was peer reviewed doesn't make the calculation any more accurate.

The MCIG would like to know the exact location of the six soil samples taken in Niagara and Orleans Counties displayed in the table shown in this response. Also these are six out of several hundred total, a low representation.

Response 3:
The MCIG and the residents of Middleport appreciate the changed attitudes shown by members of the government agencies regarding the setting of target dates as measurements of how the process is proceeding. In any engineering endeavor, it is necessary to have some form of measurement to know how well the program is progressing.

Response 4a:
The MCIG also finds it unacceptable to exclude residences who in good faith, allowed sampling of their property but are not to be included in and FMC remedial action. They may receive a letter from the agencies and may not have their property usage restricted but they still will be required to disclose upon sale of the property any test results thus possibly lowering their property value. Property owners should be provided assistance to resolve this situation.

Response 4b:
If a property owner enters into a discussion to have their property sampled when it has not been done so in the past, it should be made clear to that owner that if sampling is performed and elevated levels of arsenic are found, that fact must be disclosed upon sale of the property if no remediation is performed. If the property is left unsampled the owner has no definite knowledge of any contamination so is not required to make any disclosure.

Response 5c:
It should be made clear at this time how restoration will be done after any remediation. Will FMC restore properties to the owners specifications or will FMC provide vouchers where the property owner will be responsible for restoration using those vouchers for funding? The MCIG feel the agencies response is incomplete to the comment regarding restoration.

Properties that lose mature trees will not have substantial trees again for many years and in some cases beyond the lifetime of the current owner. FMC may be responsible for some form of restoration, however tree preservation technologies may not be applicable in all cases.

Response 6:
It should have been noted that remediation technologies other than excavation with landscape removal has not been shown to be feasible at this time. If they are not, excavation would be the prime technology used. This would result in the destruction of residential landscapes and wildlife habitats. Also since wildlife habitats tend to be heavily wooded areas, it may not be possible to use other technologies in such a wide spread dense area.

Response 7:
To say the agencies did not request the ICM on Vernon St. but that it was FMC’s proposal is disingenuous. Many of Middleport’s residents attending seminars pertaining to the Vernon St. proposal heard statements made by members of government agencies concerning the need to remediate and the ramifications to property owners who refused. Certain comments were made such as red flags on deeds for owners not complying or property owners being told their property could be condemned if they did not comply were meant to twist arms and cause alarm.

There has been an attempt by the agencies in the past to characterize the situation as dangerous, causing alarm. For example a DOH representative stated at a community seminar she would not eat vegetables grown in an area garden in direct conflict with a DOH fact sheet on this subject. Another DOH representative’s comment at an MCIG mentioned the example of someone’s little girl dropping her hot dog in the dirt, which would have been a one time when most people wouldn’t want their little girl eating a hot dog dropped in dirt anywhere in America. Statements such as these are uncalled for and inappropriate.

Response 8:
The key terms in this response is that the RCRA action and the administrative order pertain to the FMC facility. The residential areas of Middleport are not part of the FMC plant facility. Therefore the action in Middleport is not a standard RCRA action and therefore procedures should be performed accordingly with community involvement and two way communications with the community as important as those with FMC.

Response 15:
It should have been noted that if the property owner has their property sampled and it shows elevated levels of arsenic, that fact would have to be disclosed, by state law, when the property is sold if it is not remediated. The MCIG feel this response by the agencies is incomplete.
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