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State wins lawsuit against FMC

PRESS RELEASE


MIDDLEPORT – Attorney General Eric T. Schneiderman and the New York State Department of Environmental Conservation (DEC) today announced a legal victory in state court that will allow a long-delayed cleanup of hazardous waste in the Village of Middleport, Niagara County to proceed.

The New York State Court of Appeals confirmed the authority of DEC to perform, and recoup its costs incurred in the cleanup of hazardous wastes released from the FMC Corporation's Middleport facility into neighboring properties, including a school and several hundred residences. For decades, FMC has delayed, resisted, and contested it responsibilities related to the full cleanup of its contamination in the community. 

"For years, the residents of Middleport have been forced to live with hazardous waste released by FMC in their community, homes, and school," said Attorney General Schneiderman. "Today's court decision is a victory for these residents, marking an end to FMC's foot-dragging and noxious contamination. My office will continue to hold companies that fail to honor their obligations to the law and their communities to account."

DEC Commissioner Basil Seggos said, "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. To date, DEC has spent more than $20 million in State Superfund resources to remediate contamination from this site and protect the people of Middleport. Today's decision means New Yorkers won't be left picking up the tab."

FMC owns and operates a 103-acre pesticide formulation facility in the Village of Middleport, Niagara County. Over nearly a century of operation, that facility released significant quantities of hazardous wastes, including arsenic, lead, cyanide, acetone, and the pesticides DDT and carbofuran. Many of those wastes migrated onto adjacent properties, including a school, recreational watercourses, croplands, and several hundred residences.

In 1991, FMC entered into a consent order with DEC and the federal EPA that required it to undertake a variety of obligations, including the preparation of a study to identify measures to clean up the hazardous wastes that had migrated from the Middleport facility to adjacent properties. In 2013, DEC adopted a final cleanup plan. For the following year, DEC attempted to negotiate a new consent order obligating FMC to implement the plan. When FMC refused to commit to undertake a cleanup protective of public health and the environment, DEC announced it would undertake the cleanup itself and seek to recover its associated expenses from FMC after the fact. FMC challenged DEC and won a decision by the State Appellate Division that DEC lacked the authority under state law to perform the cleanup unilaterally.  

Today's decision reversed the Appellate Division and dismissed FMC's challenge. The court found that DEC indeed has authority under state law to unilaterally clean up "the significant threat posed by hazardous wastes [FMC] had released into neighboring properties." The decision also affirmed DEC's authority under federal law to seek reimbursement from FMC of the costs it incurs in performing the cleanup.

This appeal was handled for Attorney General Schneiderman by Solicitor General Barbara D. Underwood, Deputy Solicitor General Andrea Oser, Assistant Solicitor General Frederick A. Brodie, Environmental Protection Bureau Deputy Bureau Chief Lisa M. Burianek, and former Assistant Attorney General Maureen Leary.