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State v. PVS Chemicals, Inc.

United States District Court, W.D. New York

July 27, 2018

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

          DECISION AND ORDER

          H. KENNETH SCHROEDER, JR. UNITED STATES 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.

         BACKGROUND

         By letter dated April 3, 1985, the New York State Department of Environmental Conservation (“NYSDEC”), advised PVS Chemicals, Inc. (“PVS Chemicals”), that its property at 55 Lee Street, Buffalo, New York (Site Code 915004), identified as the Allied Chemical, Industrial Chemical Division site, was included on the registry of inactive hazardous waste disposal sites in New York as a Class 2a site based upon groundwater samples indicating violation of standards for iron, lead and pH. Exh. 22.

         A Phase I Investigation of the property, dated January, 1986, recounted that prior to the purchase of the property by PVS Chemical, Allied Chemical Corporation maintained a holding pond which received wastewater containing, inter alia, nitric acid and sufluric acids, sulfur drainings, metallic nitric rinses (containing cadmium, copper, nickel, potassium and iron). Exh. 27. The Phase I Investigation further noted that the holding pond was removed from service in 1977, with accumulated solids and contaminated soil excavated and transported for appropriate disposal. Exh. 27. The Phase I Investigation acknowledged that groundwater samples detected heavy metals, including copper, iron, lead, nickel and vanadium, with concentrations of iron and lead exceeding the standards for drinking water, as well as excessive pH. Exh. 27.

         In 1987, PVS Chemical purchased additional property from Allied Chemical Corporation pursuant to an agreement whereby Allied Chemical Corporation agreed to hold PVS Chemical harmless against any environmental remedial actions required by the environmental condition of a parcel of that property as of the closing date. Exh. 28.

A Phase II Investigation, dated October, 1989, determined that
Groundwater releases of benzene, toluene, aluminum, cadmium, calcium, potassium, silver, vanadium, and mercury potentially attributable to the site was a major finding of this investigation. Since groundwater is not used locally as a drinking water source, the releases do not appear to pose a significant public health threat. However, groundwater contamination in the area should be addressed for environmental reasons, and the potential for groundwater discharge to the Buffalo River. Additional investigation may be necessary to show conclusively that the former Allied Chemical surface impoundment is causing groundwater contamination. Given the site setting, with its thick mantle of low permeability clay and a fractured bedrock regime, it may be that other sources in this heavily industrialized area are contributing to the groundwater contamination.

Exh. 33.

         A Comprehensive Groundwater Monitoring Evaluation, dated December, 1991, recommended further evaluation. Exh. 35.

         On February 10, 1993, the NYSDEC advised PVS Chemicals that it had “not identified any hazardous wastes at this site.” Exh. 39. 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.

Exh. 39.

         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 into the waters of New York, including the Buffalo River and groundwater, and into the air, and by maintaining illegal solid and hazardous waste activities and contaminated conditions at PVS Chemicals' Buffalo facility. Dkt. #1. A Second Amended Complaint was filed on February 11, 2000. Exh. 45.

         By letter dated March 1, 2000, the State of New York outlined a five step process for resolution of groundwater-related issues: (1) development of a site investigation work plan; (2) implementation of a site investigation work plan; (3) submission of a site investigation report; (4) submission of a “work plan for corrective measures study that evaluates potential corrective measures to remediate impacted environmental media; and (5) implementation of approved corrective measures work plan. Exh. 47. The State of New York emphasized its position that

in order to settle this lawsuit, it is essential that PVS make a firm commitment from the outset to undertake and complete this sequential process for addressing the State's concerns regarding groundwater and related environmental resources. . . . The State will not settle the claims in its complaint piecemeal. For settlement to occur, the past inability to resolve this and other issues must be overcome in a comprehensive, binding legal document.

Exh. 47.

         By letter dated June 16, 2000, PVS Chemicals submitted a Work Plan for Environmental Site Investigation. Exh. 51.

         By letter dated July 10, 2000, the State of New York provided PVS Chemical with a proposed Consent Decree for settlement of this litigation. Exh. 52.

         By letter dated August 2, 2000, PVS Chemicals responded that the proposed consent decree failed to offer any definite resolution of any issue. Exh.54.

         A Consent Decree dated September, 2000 proposes 5 groundwater-related measures, including: (1) submission of a site investigation work plan; (2) submission of a site investigation report; (3) submission of a work plan for a corrective measures study; (4) submission of a corrective measures study work plan; and (5) implementation and completion of the corrective measures. Exh. 53.

         By settlement memorandum dated December 5, 2000, PVS Chemicals advised that it had submitted

a “Work Plan” for Environmental Site Investigation (ET-832), dated May 30, 2000 prepared by Frontier Technical Associates, Inc. . . . Currently, two companies which own property immediately adjacent to PVS, Buffalo Color Corporation and Mobil Oil, are engaged in groundwater studies concerning their facilities which have extended onto PVS's property. Buffalo Color has drilled and sampled from a No. of wells on the PVS property. Mobil Oil will shortly be engaged in sampling on the PVS property. Both of these projects, with the consent and cooperation of PVS, involve contamination migrating from these two adjacent facilities.
In 1989 at the request of the DEC Division of Hazardous Waste Remediation, a Phase II investigation was undertaken with respect to a portion of PVS's facility on which Allied Chemical Company operated an unlined lagoon. Records indicated that the lagoon was clean and closed in 1978 and all excavated materials were disposed of offsite on behalf of Allied Chemical Company. The site was originally included on the list of inactive hazardous waste facilities prepared by New York in the late 1970s. The Phase II study initiated in 1989 was at the request of the State. The study concluded that hazardous waste was not present at the site and it was delisted (removed from the list of inactive hazardous waste sites). Subsequently, pursuant to ECL § 27-1316, the site was listed as one containing hazardous substances and posing a “significant threat to the environment.” The basis of this decision was the State's review of groundwater results from the prior Phase II study. PVS submitted a comment letter dated February 27, 1995 . . . which questioned the conclusion of the study and provided results from proper sampling. Subsequently, the State removed the site from the hazardous substance disposal site study by letter dated May 8, 1995 . . . . The reason for this removal was expressed in a DEC document as follows: “does not pose significant threat.” The legal basis for any further groundwater study at PVS would be evidence of a significant threat to the environment. In fact, no such evidence exists. Nevertheless, PVS will agree to perform the attached Work Plan.

Exh. 55.

         By letter dated January 5, 2001, the State of New York responded that it was “prepared to enter into a comprehensive settlement of the referenced litigation pursuant to a revised Consent Decree.” Exh. 56. As to groundwater-related measures, the State of New York explained:

As you know, the State's claims in this regard are not limited to any single former impoundment. Rather, they are based on a history of various acts and omissions as well as documented conditions. For purposes of settlement, the proposed site investigation work plan should be revised, with regard to groundwater investigation, to focus along the Buffalo River shoreline. A total of nine wells . . . should be the subject of groundwater sampling for four quarters.
As to soil investigation, the proposed work plan should be revised to provide a figure outlining the approximate locations of proposed soil samples. Exact sample locations should be determined in the field and biased for areas where sufur contamination is expected to be present. Additionally, the plan as outlined does not contemplate obtaining soil samples below a depth of twelve inches. Samples need to be collected at depths to adequately characterize the extent of contamination, pursuant to a sampling design that ensures the same which is based on the company's understanding of the history of deposition.
Upon its approval by the State, the revised work plan should be implemented. After its implementation, a combined site investigation report/corrective measures study should be submitted for approval. This document should analyze and interpret the data, evaluate remedial alternatives, including no action, additional monitoring and corretive action, make recommendations regarding the same, and provide for implementation by the company of any such measures upon State approval.

Exh. 56.

         In a Settlement Memorandum dated February 16, 2001, PVS Chemicals reiterated that

the settlement must resolve all outstanding items. PVS cannot settle on the basis of submittals which are not reviewed and approved prior to entry of the settlement. PVS also objects to the requirement of a “combined site investigation report/corrective measure study.” This requirement assumes the results of the Environmental Site Investigation. Contrary to Plaintiff's assertion regarding a “history of various acts and omissions as well as documented conditions, ” PVS will [sic] concede RCRA violations. It is prepared to implement the proposed Investigation if approved prior to Settlement. The proposed Investigation provides for reports of the results of both the groundwater and soil investigation . . . If there is a basis for RCRA claims or remedies as indicated by the data generated by the proposed Investigation, that can be the subject of discussions and negotiation between PVS and DEC. PVS does not believe that it is the intent of the Consent Order to provide the context for all future regulatory actions and relations between the parties.

Exh. 58.

         By letter dated April 20, 2001, the ...


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