Topic: Important Announcement

The NYS Court of Appeals heard the case of FMC verses the DEC on March 21, 2018. A decision should be rendered in about 60 days. To view a summary of the case argued click here.

To veiw a Youtube video of the arguments made before the court click here. This video runs about 30 minutes.

The six judges on the bench (one was absent) seemed to be well informed and prepared even though some of their questions were more historical than pertaining to the case at hand.

The attorney for the DEC stated the contamination in the school yard and properties surrounding the plant was from overflow runoff from the lagoon or western impoundment area between 1981 and 2008. However we know that the much of the area currently being remediated was contaminated by airborne particles released from the plant before FMC discontinued using arsenic in 1974. It appears the DEC's case has some fallacies.

The public session to receive oral comments concerning the hazardous waste management facility application draft permit was held on September 27, 2017.

No comments were made in either afternoon or evening sessions.

Written comments may be sent in to the DEC but must be received by October 20, 2017.

FMC has objected to the draft permit for a waste management facility at the Middleport plant site issued by the NYSDEC.

The company believes this is an attempt to circumvent the Administrative Order of Consent (AOC) established between FMC and the government agencies in 1991. It should be noted that this order expired several years ago and the parties have been unable to agree on a new consent order.

FMC evidentally wishes to continue operating under to old order until a new one is agreed to.

The NYSDEC has issued a draft permit for a hazardous waste management facility at the FMC site in Middleport.

This permit covers the operation/closure of the three regulated hazard waste sites or surface impoundments within the FMC plant facility in Middleport. They consist of:

1. The Eastern Surface Impoundment which is now inactive and has a temporary soil cover. This area was at one time called the CAMU. FMC is required to close this unit per the permit.
2. The Western Surface Impoundment which is now a lined collection pond for plant site contaminated surface water run off. Water from this pond is processed at the waste water treatment plant on site before off site discharge.
3. The Central Surface Impoundment which is closed.

The draft permit also includes requirements for corrective action programs at the FMC facility.

A public comment period on the draft permit will run through October 20, 2017. Written comments should be mailed to:

Michelle Woznick, Environmental Analyst
NYSDEC Region 9
270 Michigan Avenue
Buffalo, NY 14203-2915

or E-mailed to DEP.R9@dec.ny.gov.

Two open public sessions where oral comments may be made will be held at the Middleport Fire Hall at 28 Main Street, Middleport, New York on Wednesday, September 27, 2017, beginning at 1:00 p.m. and 7:00 p.m. The sessions will be conducted by Administrative Law Judge Michael S. Caruso. Additionally, public availability sessions where one-on-one discussions can be had will be held one hour before each formal session (12:00 and 6:00 o'clock).

To review the announcement and overview of the draft and comment period click here.

To view the draft permit click here.

On Tuesday, July 25,2017, FMC held a meeting to introduce a few new personal who will be working either at the Middleport plant or associated with the arsenic cleanup. The attendees besides FMC related personnel included village leaders, school board members, the school superintendent and chairman of the MCIG.

Mr. John Paul Rossi in now the lead engineer for the environmental cleanup replacing Shawn Tolan. Shawn is still connected with the cleanup but will not be associated with the day to day activity.

Mr. Leonardo Picanto is the current interim plant manager replacing Greg Sullivan who left this past April. Mr. Picanto is from the FMC facility in Brazil.

Christina Kaba is the Director of Environmental Health and Safety in Philadelphia replacing Bob Forbes who retired at the end of 2016.

Roberta Kloda is manager for Environmental Health and Safety at the Middleport plant. Also Yolanda Rivero is a safety specialist.

FMC Middleport is placing an emphasis on employee safety both at the plant and in the home and community. Various programs are being implemented to further this goal

FMC is continuing to study and conduct remedial efforts for the various operative units in and surrounding Middleport except for the air deposition area and the Roy-Hart school which the DEC continues to do on a unilateral basis. FMC has won the court decision concerning the Agency selected remedy for the Air Deposition Area but the DEC is appealing. Until a ruling is rendered on the appeal, the judge has allowed the DEC to continue with the cleanup using their remedy (absolute max 20 PPM). However, this may change if the appeal goes in FMC's favor. The ruling is expected this coming fall. The suit concerns the DEC selected remedy as it was not one of the remedies outlined in the CMS for the Air Deposition Area. The ruling could impact the work for next year.

FMC is currently working on the CMS for Operative Unit 6, the Jeddo Creek Tributary, with an expected completion of the draft report by November of this year. It will then be submitted to the Agencies for review. If events go as in the past, the Agencies will want changes with the CMS, FMC will negotiate and make some, the modified CMS will be submitted, the Agencies hopefully will accept it, there will be a public comment period, comment responses will be published by the Agencies, a remedy selected (hopefully one in the CMS) and then work will begin.

As for the part of the tributary between Frances St and the Erie Canal, the Agencies have directed FMC to perform an Interim Corrective Measure (ICM) to remove contaminated soil from the creek bed and floodplain. The DEC has accepted the preliminary plan and FMC will submit the final plan on August 14. If the final plan is accepted, the work will begin in 2018 and be completed by fall 2019. Twenty six residential, commercial and public properties whose backyards are part of the floodplain will be effected. This work is not part of the law suit between FMC and the DEC

FMC is working on the RFI for OP3 which are the two areas north of the canal and east of the Niagara-Orleans County line

Dr. Klatt, school superintendent, stated it appears there may be 3 more phases of remediation at the school meaning 3 more years of work by the DEC. The area in front of the two schools bordering State St. will need to be done along with more areas to the rear and west of the high school and east of the middle school.

The Norco plant site has seen no activity and is considered part of the Air Deposition Area. It is up the the DEC to come up with a solution for that property pending the appeal.

FMC is continuing with the Home Value Assurance Program through 2018 for homes in the study areas. Homes that are for sale in Middleport are typically selling quickly and at good prices so the cleanup activity does not appear to be effecting that.

The MCIG website (middleport-future.com) has been down the last couple of days. It has been receiving an unusual number of hits the last few months and exceeded its allotted activity. The reason for these hits is not clear as is their source. It may be increased interest or it could be hackers. Programs are being put in place to determine the source.

A new feature has been added to the home page of this web site.

At the upper right portion of the home page there now is a big blue Comment button. Click on the button to bring up your E-mail client and send the MCIG your comment about the remediation project in Middleport, about this web site, or any other related subject. You can also use the button to send the MCIG a question. Comments and questions may be discussed at MCIG meetings.

Comments and questions will be posted after a review either on the home page, in the Share an Opinion section of the site or in the FAQ section.

As part of the Corrective Measures Study to be performed in Middleport by FMC under guidance by the government agencies (USEPA, NYSDEC and NYSDOH) there was a risk assessment study conducted by Dr. Rosalind Schoof of Integral Consulting. The assessment will be used to determine how the arsenic contamination in Middleport soils affects the residents and at what levels contamination becomes a concern.

The result of the survey can be viewed by clicking here.

Dr. Schoof is an internationally recognized expert on arsenic in the environment and has performed past studies on the arsenic contamination in Middleport.

Dr. Schoof held information workshops on November 4th and 5th. A flyer was delivered door to door in the CMS study areas. That flyer can be viewed by clicking here.

The final versions of RFI Volumes 1, 2 and 4, agreed to by the government agencies with oversite responsibilities of the Middleport RCRA project, is available in the Document Repository of this site. Click here to go to the category containing the volumes.

Volume 1 contains background and historical information, Volume 2 has the Facilities Investigation of the Air Deposition Area of the village which is that area south of the Erie Canal to Route 31 (Rochester Rd.) and Main St. east to the Niagara/Orleans County line. Volume 4 has the Facilities Investigation of Culvert 105 which is a drainage pathway starting at the railroad tracks north of the FMC plant running to the sewage treatment plant on N. Hartland St.

The draft version for Volume 5 is also there however this volume is currently undergoing revisions negotiated between FMC and the Agencies. This volume has the Facilities Investigation of the Jeddo Creek Tributary (Tributary #1) from Francis St., north to Pearson Rd.

These volumes report on the investigation of the extent of arsenic contamination in soils and creek beds in their respective areas.

A letter has been sent to Mr. Brian McGinnis of FMC signed by Mr. Matt Mortifolio of the NYSDEC for himself and Mike Infurna of the USEPA dated September 14, 2009, stating the Agencies (NYSDEC, USEPA and NYSDOH) are in agreement with the CMS Work Plan for the Air Deposition Area and Culvert 105 and that the Work Plan is consistent with the Agencies' Final Corrective Action Objectives.

In conjunction with the FMC proposed schedule, the agencies have set June 15, 2010, as the target date FMC will submit the draft version of the Corrective Measures Study report to the Agencies. August 16, 2010, is the target date for the submission of the final version of the Corrective Measures Study report.

There are three clarifications specified in the letter.

1. The CMS Work Plan describes using "Probabilistic Risk Assessment" to evaluate site-specific human health risks associated with arsenic in soil. The agencies reserve the right to comment on the applicability of these types of risk assessments for the Middleport project, in conjunction with the Agencies' review of FMC's submission entitled "FMC Middleport Risk Management Approach for the CMS Suspected Air Deposition Area 1 and Culvert 105 Study Area" required under Task 2 of the CMS Work Plan.


2. The performance of site-specific risk assessments are considered, by the Agencies, to be one tool but not the only appropriate evaluation method upon which judgments are made regarding human exposure to environmental contaminants and the need for corrective measures.


3. The agencies approval of the CMS Work Plan should not be interpreted as relieving FMC of their obligation under the AOC to satisfy the requirements set forth in an attachment to the AOC (Scope of Work for the CMS).

The document referenced in clarification #1 is targeted for submission by FMC to the Agencies on October 30, 2009. The Agencies will publish their comments on it by December 30, 2009.

Therefore, at this time with the draft version of the CMS report due for submission in June of next year, it appears it should be known by next summer the properties which will probably be recommended for remediation. Although it must be reviewed and agreed to by the Agencies.

The draft investigation report for the Jeddo Creek tributary between Francis St. and Pearson Rd. (RFI Vol 5) has a target date of October 23, 2009. There will be a 45 day open public comment session scheduled at this time between November 9 and December 24, 2009 with an approval of the final version of the report scheduled for February 15, 2010. The CMS work plan for the tributary will follow.

The Middleport Community Input Group has been recognized by the EPA receiving their Environmental Quality Award. This is one of the highest awards given by the EPA and recognizes the MCIG's effort to achieve an environmentally safe community while trying to maintain the character of the village. This award was be presented to the MCIG by Mike Infurna from the EPA at the June 9th MCIG meeting.