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State v. PVS Chemicals, Inc.

United States District Court, Second Circuit

January 2, 2014

STATE OF NEW YORK, Plaintiff,
v.
PVS CHEMICALS, INC., Defendant.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #45.

PVS Chemicals, Inc. ("PVS Chemicals"), seeks an Order directing the State of New York to remove its facility at 55 Lee Street, Buffalo, New York, from the registry of Class 2 Inactive Hazardous Waste Disposal Sites; precluding the State of New York from commencing further proceedings relating to environmental conditions known to it at the time of the Stipulation and Order of Settlement entered April 18, 2002 ("2002 Order of Settlement"), and granting PVS Chemicals' costs and attorneys' fees related to this motion. Dkt. #80.

BACKGROUND

On February 10, 1993, the New York State Department of Environmental Conservation ("NYSDEC"), advised PVS Chemicals that it had "not identified any hazardous wastes at this site." Dkt. #80-2, p.4. As a result, the NYSDEC notified PVS Chemicals

of the deletion of such site from the Registry of Inactive Hazardous Waste Disposal Sites in New York State. This site will not appear in future registries, unless information is brought to our attention which justifies relisting the site.

Dkt. #80-2, p.4.

On July 24, 1997, the State of New York commenced this action alleging that PVS Chemicals violated the Clean Water Act; Resource Conservation and Recovery Act; articles 17 and 19 of the New York Environmental Conservation Law and related state regulations addressing water and air pollution, respectively, and engaged in a public nuisance by discharging and disposing of pollutants to the waters of New York, including the Buffalo River and groundwater, to the ground, and to the air, and by maintaining illegal solid and hazardous waste activities and contaminated conditions at PVS Chemicals' Buffalo facility. Dkt. #73 & Dkt. #80, ¶ 3.

The parties entered into the 2002 Order of Settlement obligating PVS Chemicals to perform a site investigation work plan to test soil and groundwater conditions at the site, install a cooling tower system or treatment/pH adjustments system to eliminate point source discharges from the facility to the Buffalo River, implement improvements to its containment and conveyance systems, implement a Continuous Emissions Monitoring System and to pay a fine of $70, 000.00. Dkt. #73, Dkt. #80, ¶ 5 & Dkt. #85, p.1. In exchange for the performance of these tasks, the 2002 Order of Settlement provides that it

shall be in full settlement of all pending civil claims and liabilities against defendant, its directors, officers and employees that are alleged in the complaint and occurred at the facility prior to the effective date of this Stipulation and Order. The Stipulation and Order shall not be construed as being in settlement of events regarding which the State lacks knowledge, or occurring after the effective date of this Stipulation and Order

except as provided in the Reservation of Rights, which states, in relevant part, that

Nothing contain in this Stipulation and Order shall be construed as barring, diminishing, adjudicating or in any way affecting:
1. The State's right to proceed against defendant for any liability that may result from the State's determination, after review of the reports submitted upon performance of the Site Investigation Work Plan, that further groundwater and/or soil-related measures are required by law to be performed by defendant, and defendant's right to defend against the same;
2. The State's right to enforce this Stipulation and Order against defendant in the event that defendant fails to fulfill any ...

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