On April 18, the DEC updated their remediation plans for 2019 construction season.

Phase 5 of the Roy-Hart school remediation project will begin in April. Areas to the south, west, and north of the high school and areas north of the middle school will be cleaned up. This includes all that area in front of both schools to the State St. right-of-way. The first work to be done will most likely be removal of the trees along State St. Approximately 12,000 cubic yards of soil will be removed. All the work continues to be performed under the over-site of the DEC without FMC involvement. For now, cost will be paid for from The New York State Superfund.

Phase 5 of the Air Deposition Area will also begin in April. Up to 33 properties will be cleaned up this year. The areas includes:

1. The north side of State St. between Hammond Parkway and Butler parkway.


2. Both the east and west side of East Ave.


3. The first two properties on the east side of Butler Pkwy from State. (The other properties on this street have “No further action required” status except for the two on either side at the end of the street next to the canal [as of 2018]. Their status may have changed for 2019.)


4. The grassy island within the circle in Hammond Pkwy.


5. The residential property immediately east of the Middle School on State Rd.


6. The east and west sides of Maple Ave. between State and Park.


7. The north side of Park Ave. between Maple and Vernon.


8. Two properties on the south side of State Street east of Maple. (The third property forms a break point as it has 'No further action required” status.)


9. The east side of Vernon Street between Park and State.


10. Required restoration work not completed during the 2018, Phase 4 effort.

Some properties within these areas will not be remediated as they have “No further action required” status and some may be properties whose owners refuse. The DEC will work with owners to determine what must be removed and how the property will be restored. Work will be conducted by National Vacuum Environmental Services Corporation of Niagara Falls under the over-site of the DEC on weekdays generally between 7:00 AM and 5:00 PM. Full time air monitoring will be employed.

After this year's phase, all that will remains in the Air Deposition Area is State Street between William and Vernon and two feeder streets north of State (William and Washington). All properties on Robertson St. have “No further action required” status. Also, some fields east of the village remain to be done pending owner approval.

To download the DEC announcement for Phase 5 of the Air Deposition Area cleanup, click here.

On Tuesday, December 4, 2018, FMC held an information meeting to bring community officials up to date on plant activities and the remediation process in and around Middleport. Officials from the village a long with the Supervisors from the towns of Yates and Hartland attended.

A new remediation project coordinator was introduced. Elizabeth (Liz) Madara will be assuming those duties replacing Nick Schapman. Nick came on board just a year ago. Liz has a background as an environmental consultant.

The DEC will continue to remediate the Air Deposition Area and the school yard in Middleport during 2019 and 2020 without FMC. Although the Agency has announced only one more phase for school remediation, it was thought that there is too much area to cleanup for it to be completed in 2019, so there may be some amount of work to do in 2020. It was also mentioned that the school has some issues with the DEC plan concerning accessibility to certain areas of the campus during the remediation process.

After the Air Deposition Area is completed it is believed the DEC will be remediating Culvert 105 between Sleeper St. and the sewage treatment plant along with any areas of the culvert not already done between Sleeper and the canal. This activity will also be performed without FMC. There is no schedule for this. The culvert south of the canal will be done as individual properties that the underground culvert passes through are remediated.

FMC continues to work with the DEC and EPA on Jeddo Creek and its tributary that runs through Middleport. FMC has submitted the Corrective Action Measures for the tributary but the DEC/EPA have asked for revisions. The two sides could not come to an agreement so they are in dispute resolution. It is now doubtful that any work can begin in 2019.

A proposal for the eastern area of the FMC plant (past proposed site for the CAMU) was submitted to the Agencies on December 29, 2017, but there has been no feedback.

The Administrative Judge is continuing to review the submitted briefs supporting or opposing the Hazardous Waste Management Facility Permit Application. These briefs were to be submitted by last spring. The permit, if so ordered, will replace the AOC (Administrative Order of Consent) that FMC and the Agencies are currently working by and will continue to until the status of the permit is resolved.

FMC had begun some sampling activities along the Jeddo Creek north of Pearson Rd but stopped when hunting season began . They will resume next spring. Any sampling results obtained so far have been submitted to the Agencies.

FMC has added three new product lines at the Middleport plant and are in the process of adding a fourth. These lines are from product acquisitions from Dupont. There was a 55% increase in production of their product Command. FMC has invested 3 million dollars in plant improvements in 2018 and plan to invest 8 million in 2019. There is also a plan on the table to construct a building to house new labs and offices. The intent is to become more than just a manufacturing site. They would like to be able to demonstrate products to potential customers at the plant.

The DEC has announced the final phase of remediation at the Royalton Hartland Middle and High School. Instead of two more phases over the next two summers, the remaining areas at the schools will be remediated beginning this month, November, 2018, in one phase. Completion is expected to be November, 2019. As a contingency, there may be some work left for the summer recess of 2020. Approximately 16,600 cubic years of soil will be removed from mainly in front of the two schools, and to the west and behind the high school.

Preparation and the installation of a work area fence behind the high school will begin in November with major soil removal beginning in April, 2019, continuing through October, 2019. Soil removal will begin behind the high school, moving to the front of both schools during summer recess to minimize the impact on the function of the school. During school hours, work will not begin before 8:00 AM. Air monitoring will be performed during work hours.

To view the DEC flier describing the activity click here.

The DEC has sent letters requesting access for sampling and potential remediation to around 70 property owners in the Air Deposition Area. These residential properties are the last in that area that have not been previously remediated or their owners declined aside from the school and agricultural fields. The properties run along State Street from Hammond Parkway to Vernon St. and include the side streets along the way (East Ave., Butler, William, Washington, Maple and Vernon Streets). In addition, three residential only property owners east of the school have received letters requesting permission. The properties on and bordering Roberson St. have clear or No Further Action Required status. There are about 37 properties scattered along the area that also have received clear letters.

The DEC want to get permission, if they can, on these remaining properties so they can sample and develop plans for remediation over the winter. However only about 30 properties will be remediated in 2019 with the rest being done on 2020. It should be noted there will probably be some owners who will refuse. Although the request for access from the DEC includes sampling and remediation, owners are still allowed to opt out at any time during the process. They may write on the agreement what they are agreeing to before signing and returning the request.

There is no way to know at this time how many owners will refuse but there most likely will be some. Note that for this year's activity, the refusal rate on Main St., south of South St., was above 50% who declined. However that rate on Hammond Parkway was around 10%.

On another front, FMC sent letters during the summer to property owners along the Tributary and its flood plain north of Pearson Rd to Mill Rd near Marshall in Orleans County. Theses areas are refereed to as Operable Units 7 and 8. The intent is to gain access to survey boundaries and mark drainage areas as well as gain knowledge of the property's history. FMC has already filed a preliminary sampling plan with the DEC. Unlike the Air Deposition Area, FMC is executing the survey and sampling. It remains to be seen who does any subsequent remediation.

The DEC has not announced their plans for next year's activity at the school, but it's most likely the areas in front of the two buildings will be remediated. Remaining would be areas west and south of the high school. The DEC has planned on two more phases at the school.

The DEC mailed a fact sheet to area residents the week of June 24 describing their planed activity for Phase 4 of the cleanup of contaminated soil at the Royalton-Hartland school in Middleport for the summer of 2018.

They planed on starting mid June but there has not been much activity as of June 30. The excavation work and back fill is suppose to be completed by September. Restoration will be performed during the fall.

Some 8300 cubic yards of soil will be removed east and south of the Middle School along with the existing playground area. A temporary fence will surround the work area. The truck route during the summer while school is out will run through the parking area north of the middle school from the gym to the building housing the cafeteria. During fall when school is in session the truck route will run only through the parking area in from of the gym. It appears trucks will be loaded in these parking areas. The work area will be reduced when the school starts in the fall.

Dust monitoring equipment will be placed around the work area but it was not mentioned where in the fact sheet.

A letter to community members from the school superintendent was included with the DEC fact sheet. Dr. Stopinski stated that the school is committed to replace the playground as part of their “Long Range Plans” so it is unclear when this will happen and if it will be paid for by the school or the DEC as part of the latter's restoration. It was mentioned that part of the restoration would include site work for new tennis and pickleball courts along with a new access driveway to the field hockey field and a parking area next to the field.

To view the fact sheet click here.

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.

The DEC announced its plans to continue remediation of private properties in the Middleport village during the 2018 construction period.

The areas to be done are:

1. The "N&O block" which is the area bounded by Park Ave. on the north, the railroad on the south, Maple Ave. on the east and Main St. on the west. This does not include St. Stephens Church which has already been remediated.


2. The "S block" which is what is left to be done on the west side of Vernon St. between South St. and Telegraph Rd.(three properties) and the east side of Main St. between South and Telegraph excluding the two properties already remediated in 2003.


3. The "G block" which is Hammond Parkway including those properties on State St and the east side of East Ave.

However many properties within these blocks are not up for remediation because they have received "clear letters or no further action required". For example, in the N Block, only one property on Main St. (the large brick apartment house) and the two properties on Vernon behind the apartment building are up for remediation. All the rest are clear. On Main in the S block, six owners have refused and one (perhaps a new owner) has received a request from the DEC without a reply so far. This leaves only six properties that will be remediated this year in that block. Even though the DEC announcement included the east side of East Ave. in the G block, only those ranch houses within the Hammond Parkway development will be up for remediation this year but of the five properties bordering State St. in the G block, three are clear and the owner of one has refused, leaving only one to be remediated.

The properties along Telegraph Rd. are clear and all but two properties along west side of Main St. between Francis St. and Telegraph Rd. are clear. Of the latter two, one will be remediated this year and the owner of the second has refused.

After this year there will be roughly 60 properties remaining to be remediated mostly along State St., its feeder streets and Main and Vernon St. between State and Park. However many in these areas have received clear letters. About 30 properties are done each year so maybe after this year only two more years remain and the Air Deposition Area will be done (except for those properties along State between the village line and the county line).

In their announcement, the DEC stresses that remediation is voluntary and property owners have the ability to decline. Indeed a number of owners have declined.

The DEC also announced separately the remediation at the Junior/Senior High School will continue in 2018. The remediation effort will involve the eastern portion of the school property (east of the Junior High to the property line and north of the already remediated field hockey field up to the road (Rt 31E).

To view the DEC announcement on residential cleanup click here.

FMC announced they have extended their Home Value Assurance Program until December, 2021. There have been no changes made to the program. To view a pamphlet describing the program click here.

FMC has not updated their online pamphlet so this download is for the program dated 2016 to 2018. However aside from the dates and FMC contact, the information is the same.

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.

During December, 2017, FMC held a meeting to introduce their latest Remediation Project manager for the Middleport site. John Paul Rossi who was appointed earlier in the year accepted a job with his old company and left FMC. Nick Schapman is now the project manager. Nick is a construction engineer and had been involved in remediation work for FMC in West Virginia.

During the meeting FMC provided an update on plant activities. They are relining the west surface impoundment area and expanding the capacity of storage tanks that hold runoff water so that during storms more runoff can be retained for processing instead of letting excess unprocessed water flow into the tributary. They also have plans to build a new lab and do other upgrades to the facility. FMC Middleport has a few job openings including a couple of operators and several salaried positions.

In remediation news: FMC submitted a Draft Corrective Measures Study to the NYSDEC for the Jeddo Creek tributary between Frances St and Stone Rd on November 1, 2017. This was by direction of the DEC and their review will be along with consultation with the NYSDOH.

The draft CMS includes four Corrective Measure Alternatives for the creek and surrounding floodplain. Each CMA includes an Interim Corrective Measure for the portion of the creek between Francis St. and the Erie canal. This ICM would be the final remedy for that part of the creek and if completed, no further action would be required. It is not known if, after review, the Agencies would accept any of the CMA's or direct FMC to implement another as they did in the Air Deposition Area. FMC does not believe the Agency's review and subsequent negotiations will be done in time to start remediation work in 2018. FMC also has to devise a plan on how to remediate an active creek.

If you would like to review the Draft CMS Report go to the story below on this website.

The Agencies want to discuss with FMC remediation of the creek between Stone Rd and near Lyndonville. Some sampling was done in 2006 but more will be required in order to perform a Corrective Measures Study. This area is split onto two operable unites: OU7 is between Stone Rd and Ridge Rd, OU8 between Ridge and north of Lyndonville.

The Home Value Assurance program will be extended to December 2018. This program provides cash to property owners who successfully sell their property within a specified time after listing.

As of December, continuing remediation work in the Air Deposition Area is in question. The location of utilities were marked on some properties in the village last fall but there was no announcement from the DEC stating what the plans were as is usually the case. I contacted the DEC and was told that their next remediation effort would be Main St. between South St. and Telegraph Rd., Hammond Parkway including the four properties that face State St. and the block surrounded by Vernon, Maple and Park not already done. (St. Stephens Church was remediated in 2016-2017.) However there is a possibility that no remediation work will be done in 2018. One reason for this uncertainty, may be that the State Appellate Court ruled unanimously in favor of FMC and against the DEC in one of FMC's lawsuits. FMC filed the lawsuit believing they were not given the right to dispute the DEC's unilateral decision to begin remediation of the Air Deposition Area under their own CMA. FMC's position is the Consent Order agreed to by FMC and the Agencies gave them that right. Although the DEC may appeal, seldom is a unanimous decision by the Applet Court overturned. We may know what the DEC plans to do by this spring.