Judge dissolves temporary restraining order against PVS Chemical

A chemical plant in Buffalo can operate as normal after a judge declined to continue a temporary restraining order that required the company to limit its sulfuric dioxide emissions in a legal dispute with a neighboring sports complex operated by Medaille College.

On May 18, a state supreme court justice ordered PVS Chemical Solutions to limit its emissions of sulfur dioxide at its plant adjacent to Medaille College’s sports complex on Lee Street in the Seneca Babcock community in Buffalo.

Medaille is suing the chemical company, claiming it had refused to follow an order from the state Department of Environmental Conservation to cease and desist operations until the emissions could be reduced.

But on Tuesday, U.S. District Court Judge John L. Sinatra dissolved the preliminary injunction against PVS Chemical and gave the company until June 29 to respond to Medaille’s complaint.

The chemical plant on Lee Street has been the subject of numerous complaints to state environmental authorities about odors and chemical emissions causing eye irritation and breathing problems for some using the sports complex. Some residential neighbors have also complained about odors from the facility, which is located about a football field away from the Elk Street sports complex.

On Wednesday, PVS in a prepared statement said it is grateful for the judge’s decision.

“PVS is working cooperatively with the New York State Department of Environmental Conservation to satisfy their concerns. We continue to be in compliance with all of our operating permits,” the company said in a prepared statement.

The judge said there are too many unanswered questions in the legal disput to keep PVS under a temporary restraining order.

For example, PVS questioned whether it is in violation of its state-issued air permit and whether the sports complex development is even legal because of an environmental easement on the property that prohibits certain types of development.

PVS argued that it operates lawfully under its air permit, which is “subject to close DEC supervision.”

PVS’s attorneys argued that the third-party air testing done for Medaille only focused on a national air quality standard that does not apply to a specific plant, but a larger geographic area.

In addition, PVS accused Medaille of disguising its real motive about money with health concerns of the users of its sports complex. PVS said Medaille had the air testing data that showed the plant allegedly had exceedances of national standards in 2019, but did not take any legal action until this year.

Only when the state Department of Health ordered Medaille to close the sports complex, thus harming its opportunity to collect revenue for sporting events, did the college cry afoul, PVS argued.

“Instead, during those years, Medaille collected revenues from students and third parties who used its facilities …” PVS said in opposition to the temporary injunction request.

Medaille, in response to PVS’s court filing, said that the rezoning by the city of the property allows athletic uses, so the environmental easement is not a barrier.

In addition, college officials stated that they did not wait until the state ordered it to close the sports complex. Rather, college officials and the property owner made their complaints known to the company and took steps to test the air surrounding the facility before moving ahead with any legal action.

PVS also argued that Medaille opened the sports complex despite their warnings that it is not a good location and that complaints would likely surface, which would impact their operations.

Kenneth M. Macur, president of Medaille College, said that the court’s ruling was “disappointing.”

“In its decision, the judge pointed back to NY DEC,” Macur said.

“We know that the issue has always been one for DEC to address in protecting the Seneca Babcock neighborhood. DEC and DOH have been actively involved and we are confident that the correct decision will be made. PVS is knowingly and flagrantly violating its operating permit. In filing its motions, Medaille College, as a private entity was standing up for the rights of the entire neighborhood.”

Medaille’s reply memorandum in support of its motion for a preliminary injunction against PVS states that the college faces “irreparable injury” without the injunction.

“PVS is obligated to operate in a legal and environmentally responsible manner,” wrote attorneys with Phillips Lytle LLP, who are representing the college.

“In contrast, Medaille continues to suffer irreparable harm.”

Meanwhile, the owner and developer of the sports complex property told News 4 Investigates that Medaille, the users of the sports complex and his company “are the victims.”

John Yensan, vice president of South Buffalo Development, which owns the land and performed a clean-up of the brownfield for Medaille’s use, said the neighborhood is undergoing a “renascence” with new business development such as Tesla and the clean-up of the Buffalo River from decades of industrial contamination.

He said PVS refuses to install existing technology to reduce its emissions.

“PVS is the only bad actor in the neighborhood, and it’s well within their means to install the proper emissions-control equipment,” he said.

“Yes, it would cost money but in the long run it would benefit them. We don’t want them to shut down if they can operate responsibly. So, if they would just invest the money and do the right thing and control their emissions they could be part of this wonderful neighborhood that is being developed around them.”

PVS processes “ultra-pure sulfuric acid,” which is a key ingredient in the manufacturing of semiconductors. The plant is also a top supplier of sodium bisulfite used by wastewater treatment plants in the New York City area.

PVS stated in court filings that it “has already spent nearly $500,000 on upgrades and repairs to equipment, as well as additional emissions testing over the past several months, and more work is planned and forthcoming.”

PVS also claims that it has reduced production, which is jeopardizing relationships with some of its key customers.

“Numerous customers have expressed concerns about PVS’s ability to provide reliable supply,” PVS stated in court filings.

“If this situation continues for a long period if the plant is required to shutdown entirely, the impacts would be even more severe, resulting in more than 30 PVS employees who work at the plant losing their jobs, and ripple effects on third parties as customers are unable to continue their operations without the critical chemicals PVS provides.”

Brian Pilarski, who heads the Seneca Babcock Community Association, said they were slated to begin summer sports clinics for lacrosse and soccer at the complex in the coming weeks, but now those plans will likely be delayed, if not cancelled.

Pilarski said the community has already been involved in a long fight with Battaglia Demolition, a concrete-crushing business in the neighborhood, that came under DEC scrutiny over pollution concerns. He fears the battle with PVS might follow a similar path.

“It is just unfortunate that this may be the route again of a long-term battle before the DEC makes a decision, just like it was for Battaglia rock crushing,” he said. “It could take up to 10-plus years.”

“Medaille has been a great partner to us since they have set foot on that property there. Now Medaille, they are hesitant. Medaille may pull out and not have a future expansion there, so that could definitely impact our community even more.”

The DEC and state Department of Health released a joint statement Wednesday afternoon stating that protecting air quality in local neighborhoods is a top priority.

“Businesses must ensure their operations do not adversely impact public health and the environment,” the two state agencies said in their joint statement.

“DEC and DOH directed PVS to cease operations that cause SO2 exceedances in order to address a public health threat. In order to protect public health and continue the state’s aggressive oversight over PVS, DEC and DOH are requiring PVS to significantly and expeditiously reduce S02 emissions. The agencies also required the Medaille Athletic Complex to stop use at the facility, including construction, until it is determined it is safe for use by DOH. These directives remain firmly in place and we will continue to keep the community informed as this situation progresses.”

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