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FMC must pay for state's Middleport cleanup plan, state's top court says

FMC Corp., whose agricultural chemical plant in Middleport is blamed for contaminating much of the surrounding village with arsenic and other chemicals, must pay for the state's cleanup efforts, the state's highest court ruled Tuesday.

The Court of Appeals said the state Department of Environmental Conservation has the power to clean up Middleport itself and send FMC the bill - which could amount to as much as $69 million.

"Today’s ruling and dismissal is a clear victory for New York, and ensures the state can take swift action to protect the public when polluters refuse to act to protect public health and the environment," DEC Commissioner Basil Seggos said.

A spokesman for FMC said the company "is reviewing the opinion and its options moving forward."

In 1991, FMC signed a consent order agreeing to pay for removal of arsenic from Middleport soil, including the campus of Royalton-Hartland Central School and dozens of village homes. Since then, it has spent more than $200 million on studies and cleanups.

In 2013, the DEC chose a remediation method for 202 sites that hadn't already been cleaned up, including part of the school grounds.

The DEC's choice required every spot of soil on every lot it excavated to contain less than 20 parts per million of arsenic. That's the amount previous tests determined is the naturally occurring level of the element in eastern Niagara County.

FMC, which carried out its own study, preferred a plan that would have considered a lot safely cleaned up if the average arsenic reading there was under 20 parts per million.

The DEC said Tuesday its plan was estimated to cost $58 million to $69 million, with work so far making it more likely to fall toward the low end of that range. FMC said its preference would have cost about $27 million.

When talks broke down in 2014, FMC refused to pay and sued the DEC, while the state agency went ahead with its preferred remediation plan. So far, the DEC has spent $20 million on the work.

In October 2016, the Appellate Division of State Supreme Court ruled the DEC didn't have the legal authority to carry out its plan unilaterally and make FMC pay for it.

But the state appealed, and Tuesday the Court of Appeals ruled unanimously that the state Environmental Conservation Law "authorizes unilateral action in every case where DEC determines that action is cost-effective."

And the court found that "DEC’s decision to proceed unilaterally demonstrates it determined that path was cost-effective."

The six judges who heard the case said FMC offered no proof the DEC's choice wasn't cost-effective.

Because of complaints from residents, the DEC has allowed property owners to opt out of having their yards excavated and filled with new soil. Thirty lots are slated for excavation this year.

At past public meetings, many residents have opposed excavation, saying they have seen no negative health impact from the arsenic in the dirt.

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