On May 1, 2018, the New York State Court of Appeals ruled unanimously in favor of the DEC and against FMC's law suit claiming the latter should have been able to arbitrate the DEC's decision to proceed with cleanup in the Air Deposition Area with their selected corrective measure (CMA9). In agreeing with the DEC, the court determined that their decision to remediate unilaterally was cost effective, dismissed FMC's claim and directed FMC to pay for the cleanup effort both past and future. The Court claimed state law permits the DEC to act unilaterally if they determine their decision is cost effective and FMC offered no proof it wasn't.
This decision is somewhat of a surprise since the lower court, the Appellate Division of the State Supreme Court, ruled unanimously in FMC's favor.
FMC is looking into their next move but believe they will still have the opportunity to dispute their liability to pay for the cleanup. This will probably have to be in federal court.
The DEC has spent about 20 million dollars so far in the cleanup effort and estimate the total will be from 58 to 69 million for the Air Deposition Area including the school grounds. To date this money has come from the state supperfund. Before the DEC unilateral cleanup began, FMC spent about 200 million dollars on studies and cleanup such as various RFI's and CMS's, cleaning up the school football field, east side of South Vernon St, south side of Park Ave, etc.
The DEC will begin Phase four of the six phase cleanup of the school yard in May. The work will be east of the middle school. The existing playground will be replaced with a new, improved one meeting 2018 standards and new tennis courts and a parking lot will be built in the area.
The next phase of residential property cleanup will also begin in May.
