Topic: Issues related to the RCRA process

The NYS DEC has announced its plans for residential remediation during the construction season of 2017. To download the DEC fact sheet click here.

Although the overhead view of the area on the third page of the sheet outlines neighborhood blocks as the original remediation plan described, it appears from the literature the DEC will be remediating by streets for at least this year. Up to 34 properties will be remediated this year:

1. Those properties on Alfred St. not yet remediated.


2. The north side Freeman Ave.


3. The east side of Vernon St. from Niagara St. to Rochester Rd


4. The west side of Vernon St. from South St to Rochester Rd excluding those already done.

In addition, the work started last year at St Stephens Church will be completed.

Work times will be 7:00 AM to 5:00 PM, Monday though Friday.

The DEC has announced their plans to continue remediation activity at the Royalton-Hartland Junior and Senior high schools for the 2017 construction season. There will be two adjoining work areas centrally located between the schools which include a couple of softball diamonds. Approximately 18,000 cubic yards of soil will be removed. The main parking lot between the schools apparently will be used for truck exit and entrance. A fence will be constructed to enclose the work area. Air quality will be monitored.

The adjoining work areas will have two schedules, one to be remediated while school is out for the summer and the other to be started and competed while school is in session. Where cars will park while school is in session was not explained.

To view the DEC announcement which includes a map of the proposed work area click here.

In 2014 the DEC decided to unilaterally implement their remedy for the arsenic contamination cleanup in the Air Deposition Area of Middleport and the Roy-Hart School over the desired remedy of FMC and the MCIG. FMC filed a law suit in Albany Supreme court to challenge the DEC.

Since then the DEC has proceeded to implement their plan at the school and in the village neighborhoods of Alfred, Park and Freeman Avenues this year and last year despite FMC's legal challenge.

On October 20, 2016, a panel of five judges unanimously ruled against the DEC stating the state agency violated the law as spelled out in the Administrative Order of Consent, legally agreed to by FMC and the DEC in 1991, by not allowing a hearing to settle the dispute between FMC and the DEC on the remedy selection.

It now remains to be seen how the DEC will proceed from here. They are looking at all their legal options. They could appeal or allow a hearing and let the courts decide. They could enter into further discussions with FMC but that is what has been going on since 1991 with no agreement between the two. The DEC could just continue with the cleanup in the village with their remedy acknowledging that FMC may not pay for all of it or any of it. However it is believed that FMC always assumed some amount of the cleanup would be paid by them. WLVL radio stated that the ruling meant FMC would not have to pay for the cleanup activity from 2014 and 2015 but that is not clear from the statements seen so far. What amount FMC does not pay would be left to the taxpayers of New York.

Use this link to view the Buffalo News article

Use this link to view FMC's statement

A resident was walking by the house on the corner of Alfred and State Street as they were cutting down the trees on that property. That resident got into a friendly conversation with one of the workers and was told property owners are being informed they should remediate because if they sell, the buyer will not be able to get a mortgage or title insurance from the banks since the property will be considered contaminated.

Not having heard of any problem like this, I talked with FMC since they have the Home Value Assurance Program. According to FMC representatives there is no problem they know of with selling houses in Middleport. In fact it seems the houses covered under their plan are selling at or above appraised value and typically within 60 days of listing.

In addition to FMC, I talked with three real estate agents from two companies. None had heard or experienced any problems with purchasing homes in Middleport or the new owners getting the necessary mortgage and insurance. The realtors actually appeared puzzled the question was being asked.

Perhaps the Agencies (DEC) are once again arm twisting to get owners to commit to remediation. Someone told a worker or workers there was this problem and now it's getting spread. This has been done in the past and the DEC has told me it wasn't them and they would never do it but here it is again.

Owners should understand there is no reason to remediate unless they are concerned about the arsenic in their soil.

There was a reported problem where a sale did not go through because the buyer could not get a mortgage but that was reported to be caused by a financial situation not contamination.

Posted by Bill Arnold

On June 20, 2016, FMC announced it has agreed, upon request from the NYSDEC and USEPA, to perform additional soil sampling of the flood plain and adjoining properties of the Jeddo Creek tributary between Francis St. and the Eire Canal. This agreement only includes additional soil samples within this stretch of the creek. It does not necessarily mean anything more including remediation will be done. Several weeks later FMC extended this study area along the creek to Pearson/Stone Rd.

Property owners involved will be contacted and get an explanation what the study means to them. A request to each owner to access their property will be made. Owners have the right to refuse and no samples will be taken without written permission.

To review the announcement from Shawn Tollin of FMC click here.

To review the work plan click here.

Or go to the Document Repository in this site and find these and other documents. The referenced documents are in the category Study and Work Plans.

This agreement between FMC and the Agencies does not change the other current activities at the Middle and High Schools or in the "M" and "K" blocks in residential areas. The NYSDEC began work on Park Ave. several weeks ago and will begin work at the school soon after the school year ends which is June 24. FMC has no involvement in this work and the DEC is using the taxpayer funded State Superfund to pay for the activity.

Following is a new release from the DEC regarding their plans for 2016.

The New York State Department of Environmental Conservation (DEC) announced today that Phase two of the soil remediation effort will begin on June 27 on the grounds of the Royalton-Hartland (Roy-Hart)High School and on May 3 at residences located on the K and M Blocks in the Village of Middleport, Niagara County. This remediation is part of the overall 14.4-acre remediation effort required under the Final Statement of Basis (FSB) issued by DEC in May 2013 regarding the cleanup of the FMC Corporation Middleport facility site.

The 2013 FSB requires the removal of arsenic contamination exceeding the 20 part per million soil cleanup objective from the Roy-Hart High School property. To date, approximately 8,000 cubic yards of material has been excavated from the school property by DEC due to FMC's refusal to implement the remedy. During phase two, DEC will excavate and remove approximately 900 cubic yards of arsenic-contaminated soil from the Roy-Hart High School inner courtyards and grass areas adjacent to the southwestern side of the high school during the summer of 2016.

DEC is currently working with the Royalton-Hartland Board of Education and school district officials to develop a construction schedule for all remaining soil remediation activities at the school.
Remedial work will also restart this month to complete the excavation and removal of arsenic-contaminated soil from three residential properties within the K and M Block areas as well as the remaining 28 residential properties within the K and M Block areas that have signed on to the project.
DEC and partnering contractors have worked closely with the Village Mayor and public works staff to coordinate this work on the K and M blocks. The DEC project team has also engaged in extensive outreach with residential property owners in this area and will continue these activities until the project is complete.

The FSB identifies a total of 182 properties in the Village of Middleport for cleanup and DEC will continue its cleanup activities until all impacted properties have been addressed, as required by the FSB. Any property owners within the K and M Blocks who have not already responded to DEC to schedule remediation of their properties are encouraged to contact Dave Chiusano at 518-402-9813 or David.Chiusano@dec.ny.gov.

For comments from Bill Arnold, MCIG Chairman, click Read Full Aricle link below.

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.

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.

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.

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.