Topic: 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.

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The USEPA has withdrawn from the negotiations concerning the Air Deposition Area and Culvert 105 only being involved for informational purposes.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.

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

E-mail: infurna.michael@epamail.epa.gov


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

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.

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.

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.

A set of Frequently Asked Questions has been created that attemps to answer some of the questions concerning the cleanup and the Agencies presentations at the public meeting held at the fire hall on June 27th.

To view the document click here.

Or click on the Read Full Article link below to read the document on your browser.

The Agencies' presentations by Robert Schick of the DEC, Tom Johnson of the DOH and Sally Dewes of the DEC are available for download.

Click here to download a copy in PDF format.

The Agencies response to the comments submitted during the open public comment period for FMC's Corrective Measures Study is available in the Document Repository. Click here to download the file in PDF format.

Supporting documents for the Preliminary Statement of Basis are available in the Document Repository of this web site.

They are:

Arsenic in Soil Contamination - Frequently Asked Questions. Click here to download the PDF file

The Development of New York State Soil Cleanup Objectives for Arsenic in a Q&A format. Click here to download the PDF file.

To view a fact sheet on the public comment period click here.

When reading these documents, please keep in mind they may be controversial. For example the second item of the Arsenic in Soil – Frequently Asked Questions states the agencies consider the absorption of arsenic from soil to be the same as that from water is very questionable. Arsenic in water is in a dissolved state more easily absorbed by the body. Arsenic in soil has changed and combined with other minerals in soil such as iron and copper. The body needs to break these bonds down before arsenic can be absorbed (bioavailability). It has been shown in laboratory studies that the bioavailability of arsenic in Middleport soils is around 45%. Also people tend to drink a lot more water than they eat dirt. The Agencies use of this conclusion to support their selection of a Corrective Measure Alternative along with other conclusions may cause the preliminary selection of a CMA to be flawed.

For more information about calculating bioavailabilty see EPA Region 8's analysis by clicking here.