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Topic: Issues related to the RCRA process

The new items published under this topic are as follows.

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Issues related to the RCRA process
The Editorial Board of the Union Sun & Journal published out of Lockport, New York wrote an opinion on what is occurring at the Royalton-Hartland School in Middlport regarding the remediation of the school yard.

Lockport is the closest city to Middleport and its paper is considered the hometown newspaper.

To read the opinion click here.

Posted by: BillA on Mar 06, 2015 - 12:16 AM  

Issues related to the RCRA process
On Wednesday, March 4, 2015, the Royalton-Hartland School Board of Education voted 4-2 to approve the first phase of remediation of the school yard. Phase 1 will involve only the field hockey field in the south east section of the school behind the Junior High school. Work will begin the latter half of June.

Before the vote was taken most of the board members expressed concerns over the project. Board member Sandra Hoerner expressed concern for the cost and benefit. Jeffrey Waters wondered about the soil at the Gasport school and samples taken there. He asked why children at Gasport were less important than those in Middleport. Sara Fry was concerned over the timing and rush to make a decision to proceed. Daniel Bragg had the most concerns mentioning the rush to make a decision, the fact the EPA is no longer involved, the ongoing law suits between FMC and the Agencies and what happens when they are resolved and he did not like the arm twisting put on the Board by the State Education Department. He summed it up saying this is all being done just to grow some grass and mentioned Mr. Bruno Pacini who coached and spent more years than anybody on the athletic fields at the school but still plays a good game of golf today. Superintendent Dr. Klatt wants to be able to approve the work plan when it becomes available. Patricia Riegle sympathized with the concerns of the other board members but expressed her concern that if they did not approve the work, the State Education Department would not approve any emergency repairs or capital builds. The board has been told the school property is red flagged and the State Education Department would not approve such activity until the flag is removed.

In the end the vote was Riegle, Hoerner, Fry and Keith Bond voting yes to proceed, with Bragg and Waters voting no. Board member Kenneth Koch was absent from the meeting.

Posted by: BillA on Mar 06, 2015 - 12:04 AM  

Issues related to the RCRA process
On February 4, 2015, the DEC and DOH presented the results from the additional soil sampling performed on the school property in Middleport last August to the Roy-Hart school board. The findings show that most all the school property except for the football field previously remediated should be cleaned up to attain the state agency goal of 20 PPM maximum of soil arsenic. This includes a couple of courtyards.

Sample points were spread over a 100 by 100 foot grid. There were 109 locations where multiple samples were taken at different depths totaling 604 samples in all. Of the 109 locations, 87 had arsenic levels above 20 PPM with the maximum being 95 PPM.

The DEC proposes excavating most areas to a one foot depth but there are some areas that will need to be dug 18 and 24 inches deep. It may be necessary to go deeper in some areas depending on additional sampling during excavation. Further sampling will be performed to determine if the soil under the parking lots is contaminated to the degree requiring remediation.

The DEC would like to begin this summer. There will probably be three phases with the first phase remediating the area known as the field hockey field located behind the junior high school in the south east section of the school property.

The schedule is to finalize the design for the remediation/reconstruction by May, mobilize the construction crews by June and begin excavation mid June. It was hoped that Phase one could be completed with reconstruction and new turf by the beginning of the school year.

A fence will surround the work area to keep people out and away from exposed soil.

To gain access to the work area a roadway will be constructed along the eastern side of the school property. A truck staging area will be built near the work site but the roadway will be wide enough to support additional staging as necessary. Smaller trucks will be used for hauling soil in and out (no double tandem trucks). Water trucks will periodically spray down the area to reduce dust. Dust monitoring devices will be strategically placed around the area.

In order to meet the construction schedule the school board must make a decision whether to have phase one started or not by March 4th. The target for completion of the entire school property is sometime between 2016 and 2018.

Posted by: BillA on Feb 06, 2015 - 11:26 PM  

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.

Posted by: BillA on Jan 29, 2015 - 01:05 AM  Read full article: 'State Agencies Decide To Go It Alone' (1791 more words)

Issues related to the RCRA process
FMC has filed a suit against the DEC in Albany court and against the EPA in Buffalo Federal court.

FMC filed a notice of dispute regarding the remediation remedy selected and the method it was selected by the DEC requesting EPA consideration and possible reversal. The EPA has declined, stating the consent decree does not allow them to reconsider the selected remedy. FMC disagrees with this position and has filed a petition with the Federal court on Buffalo requesting a judge to examine the consent decree and make a decision whether the EPA can or cannot reconsider the remedy.

Also, FMC filed a suit in Albany court to stop the DEC from imposing their remedy on the community when there are other alternatives that are effective. The DEC remedy would remove any soil with arsenic levels above the established background of 20 PPM. FMC has said they are ready to begin now removing enough soil from each property to bring the average down for that property to 20 PPM. The difference in the amount of soil to remove and time to execute the cleanup between the two alternatives is considerable. The EPA allows for averaging in some regulations. The DEC has not agreed.

The DEC has said in the past they would work with each property owner on an individual basis to allow flexibility in order to save a tree or some other item the owner wanted to save. However in their specifications for the cleanup, the definition of flexibility is so restrictive that very little could be saved if the owner wanted to receive a "No Further Action Needed" classification.

Read the articles published in the Buffalo News or the Lockport US&J.

Posted by: BillA on Jul 02, 2014 - 01:27 AM  Read full article: 'FMC Sues Agencies'

Issues related to the RCRA process
On May 1, 2014, FMC filed a notice of formal dispute regarding the recommended cleanup remedy for the Air deposition Area and Culvert 105 in Middleport, seeking a USEPA review of the NYSDEC/NYSDOH remedy.

The USEPA has withdrawn from the negotiations concerning the Air Deposition Area and Culvert 105 only being involved for informational purposes. This request by FMC is an attempt to bring the EPA in for a review under the current contract FMC has with the Agencies under the past consent decree. This project is still under the guidelines of a federal RCRA program even if the State is making the decisions.

FMC has spent the past year in discussions with the New York State Agencies trying to understand how the parameter “flexibility” will be incorporated into the remedy. After these discussions it has been concluded there is no flexibility and we are actually back to CMA-2, everything above 20 PPM would be remediated.

Some of the factors FMC plans to dispute are:
  1. The use of 20 PPM as a maximum instead of an average of 20 per property.

  2. The calculation method used for the Middleport background using sampling from Gasport.

  3. The lack of adherence to federal guidelines in some instances.

  4. The ignoring of public comments by the Agencies.

  5. The lack of use of a site based risk assessment as specified in the Cleanup Objectives and instead using background as a maximum.

  6. The selection of land use for cleanup objectives where the assumed land use is not the current use of the property.

The dispute procedure should begin in 30 days and could take a year or so to resolve. Our state elected officials will endorse FMC's dispute.

Click Read Full Article below for more.

Posted by: BillA on May 03, 2014 - 12:00 AM  Read full article: 'FMC Files Notice of Dispute ' (138 more words)

Issues related to the RCRA process
The USEPA and the NYSDEC have made available the RFI Report concerning the former FMC property located near the corner of Route 31 (Rochester Rd.) and Vernon St. known as the Former FMC R&D Facility. This property has been used for commercial purposes and is privately owned, not by FMC

The RFI report, Volume III, documents the results of environmental investigations (soil sampling and analysis) that has been conducted on since 1973. Click here to download and review this document.

The USEPA and the NYSDEC will open a comment period for anyone to submit written comments concerning the RFI report from March 3 to April 2, 2014. Only written comments are requested and it does not appear there will be an open comment session in Middleport.

Written comments should be mailed to:
Michael Infurna
EPA Project manager
290 Broadway
New York, New York 10007-1866


In addition to the EPA/DEC study, Niagara County Department of Economic Development retained a consultant to perform a Phase II Environmental Site Assessment (ESA) at the property. A Phase I Environmental Site Assessment was performed in 2007. The phase II study was conducted to identify the level of environmental contamination and to determine feasibility of remediation and redevelopment. The EPA/DEC study looked only at soils at the site, however the Niagara County ESA sampled soils and groundwater. Also an inventory of remaining containers and materials in and out of containers was performed along with an asbestos and lead-based paint survey of the existing buildings

Posted by: BillA on Mar 03, 2014 - 07:14 PM  

Issues related to the RCRA process
Senator Maziarz and Assembly Woman Corwin submitted a guest view to the Lockport Union Sun & Journal which appeared in the Thursday, September 26, 2013 edition. It may also have appeared in other local newspapers such as the Medina Journal-Register.

The view is in support of a less drastic approach to remediation in Middleport and suggests the only person who can change the remedy decision made by the DOH/DEC is Governor Cuomo.

Click here to read the guest view.

Posted by: BillA on Sep 27, 2013 - 12:34 AM  

Issues related to the RCRA process
Senator Maziarz and Assemblywoman Corwin have written a letter to Governor Cuomo expressing their disappointment in the DEC decision directing the Air Deposition Area of Middleport and properties bordering Culvert 105 be remediated as prescribe in their Final Statement of Basis where CMA-9 was the selected remedy.

The Senator and Assemblywoman asked the Governor to work with them for a more acceptable solution for the community.

To view the letter, click here.

Posted by: BillA on Jun 27, 2013 - 11:45 PM  

Issues related to the RCRA process
The Agencies have released their Final Statement of Basis regarding cleanup of the Air Deposition Area of Middleport and along Culvert 105. To review the document click here.

The responses to comments submitted to the Agencies during the public comment period last summer has also been released. To view these responses click here.

To review the Announcement from the Agencies click here.

Posted by: BillA on May 29, 2013 - 12:24 PM  

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