Connecticut Fund for the Environment, Inc. d/b/a Save the Sound v. Westchester County, New York

Filing 189

CONSENT DECREE: IT IS HEREBY STIPULATED BETWEEN THE PARTIES AND ORDERED, ADJUDGED AND DECREED BY THE COURT AS FOLLOWS: 1. JURISDICTION AND VENUE 1. Jurisdiction. Jurisdiction over this action is conferred by 28 U.S.C. § 1331 (federal question) , and 33 U.S.C. § 1365(a) (CWA jurisdiction). Plaintiffs have standing and have complied with the statutory notice requirements under the CWA, 33 U.S.C. § 1365(a)(1), and the corresponding regulations at 40 C.F.R. § 135.2. An actual , justiciable controversy exists between the Parties. The requested relief is proper under 28 U.S.C. § § 2201, 2202, and 33 U.S.C. § 1365(a). 2. Venue. Venue is properly vested in this Court pursuant to 33 U.S.C. § 1365(c)(1), b ecause Rye Brook is located, and the events giving rise to this action. occurred, within this judicial district. 3. Consent. For purposes of this Order, or any action to enforce the Order, Rye Brook consents to the Court's jurisdiction over th is Order. For purposes of this Order, Rye Brook consents to venue in this judicial district, as further set forth. Fees, Costs, and Expenses. Rye Brook shall pay a sum of one hundred thousand dollars ($100,000) as full and complete satisfaction of Plaintiffs' claims for attorneys' fees and costs incurred to date, including investigative and expert costs, against Rye Brook. This sum shall be paid in two installments. The first payment of fifty thousand dollars ($50,000) will be placed in escrow with Rye Brook's attorney within thirty (30) days of the Parties' execution of this Order and will be transferred to Plaintiffs' attorney on or before the seventh (7th) day after the Effective Date of this Order. Th e second payment of fifty thousand dollars ($50,000) will be transferred to Plaintiffs' attorney on or before June 30, 2021. The checks shall be payable to "Super Law Group, LLC Attorney Trust - IOLA". Payments will be deposited i n Super Law Group's IOLA Trust Account for the benefit of the Plaintiffs, as further set forth. 60. Entry of this Order constitutes Final Judgment under Rule 54 of the Federal Rules ofCivil Procedure. Village of Rye Brook terminated. Motions t erminated: 188 CONSENT MOTION to Approve Consent Judgment as to Village of Rye Brook filed by Save The Sound, Atlantic Clam Farms of Connecticut, Inc. (Signed by Judge Cathy Seibel on 1/19/2020) (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D Part 1, # 5 Appendix D Part 2). (mml)

Case 7:15-cv-06323-CS Document 189 Filed 01/19/21 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
SAVE THE SOUND and ATLANTIC CLAM
FARMS of CONNECTICUT, [NC.,
Plaintiffs,
v.
WESTCHESTER COUNTY, NEW YORK;
TOWNNILLAGE OF HARRISON; VILLAGE OF
LARCHMONT; TOWN OF MAMARONECK;
CITY OF NEW ROCHELLE; VILLAGE OF
PELHAM MANOR; CITY OF RYE; VILLAGE
OF RYE BROOK; and VILLAGE OF
SCARSDALE,

Case No. 7: l 5-cv-06323-CS

�
CONSENT DECREE

Defendants.

X

ORDER WITH RESPECT TO DEFENDANT VILLAGE OF RYE BROOK
Plaintiffs Connecticut Fund for the Environment, Inc., d/b/a Save the Sound,
Soundkeeper, Inc., and Atlantic Clam Fanns of Connecticut, Inc., and Defendant Village of Rye
Brook ("Rye Brook") (collectively, the "Parties") hereby enter into this Order ("Order") in
settlement of this action,
WHEREAS, Plaintiffs commenced this action asserting, inter alia, claims that Rye Brook
was in violation of provisions of the Clean Water Act (33 U.S.C. § 1365 et seq.) ("CWA"), was
in violation of provisions of the County Environmental Facilities Sewer Act (Charter and
Administrative Code of Westchester County, Article 824) ("County Sewer Act"), and was
contributing to a public nuisance;
WHEREAS, Rye Brook has prepared a Sanitary Sewer Evaluation Study ("SSES") dated
September 20, 2017; a Work Plan based on the SSES, dated March 28, 2019; a Supplemental
Work Plan, dated May 15, 2019; an lnfonnation Update, dated July 12, 2019; and an additional
information and Clarification Update, dated October 17, 2019;
WHEREAS, Rye Brook has completed pipe lining repairs and manhole rehabilitation
work; and

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WHEREAS, Rye Brook has also conducted follow up inspections to facilitate pipe repair
in the Arbors.
NOW, THEREFORE, without the trial of any issue of fact or law, without the admission
by Defendant of any of the facts or violations alleged in the Complaint, upon consent of the
Parties, and upon consideration of the mutual promises contained herein,
IT IS HEREBY STIPULATED BETWEEN THE PARTIES AND ORDERED,
ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:
I.

JURISDICTION AND VENUE
I. Jurisdiction. Jurisdiction over this action is conferred by 28 U.S.C. § t 331 (federal
question), and 33 U.S.C. § I 365(a) (CWA jurisdiction). Plaintiffs have standing and have
complied with the statutory notice requirements under the CWA, 33 U.S.C. § 1365(a)(l ),
and the corresponding regulations at 40 C.F.R. § 135.2. An actual, justiciable
controversy exists between the Parties. The requested relief is proper under 28 U.S.C. § §
2201, 2202, and 33 U.S.C. § 1365(a).
2. Venue. Venue is properly vested in this Court pursuant to 33 U.S.C. § 1365(c)( l ),
because Rye Brook is located, and the events giving rise to this action. occurred, within
this judicial district.
3. Consent. For purposes of this Order, or any action to enforce the Order, Rye Brook
consents to the Court's jurisdiction over this Order. For purposes of this Order, Rye
Brook consents to venue in this judicial district.

II.

APPLICABILITY
4. The provisions of this Order shall apply to and hereto be binding upon and inure to the
benefit of Plaintiffs, Defendant Rye Brook, and their successors and assigns.
5. No transfer of any ownership interest in or any interest in the operation of Rye Brook's
Sanitary Sewer System, whether in compliance with this Paragraph or otherwise, shall
relieve Rye Brook and their successors and assigns of their obligation to ensure that the
terms of this Order are implemented. In the event of any transfer of ownership or
operation of the Sanitary Sewer System, or any portion thereof, to any other person or
entity, Rye Brook shall be required to provide the proposed Transferee with a copy of this
Order at least thirty (30) days prior to such transfer. In addition, Rye Brook shall
simultaneously provide Plaintiffs written notice of the prospective transfer, together with
verification that Rye Brook has provided the proposed Transferee with said notice and
copy of Order, in accordance with Section XVII (Notice). Any noncompliance with this
Paragraph constitutes a violation of this Order.

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6. Rye Brook shall provide a copy of this Order to all officers, directors, employees, and
agents whose duties might reasonably include compliance with any provisions of the
Order.
7. The Parties agree to meet and renegotiate the obligations of this Order if agreement is
later reached between Rye Brook and Westchester County on reallocation of sewer
investment and/or maintenance responsibilities between the County and Rye Brook.

III.

OBJECTIVE
8. It is the express purpose of the Parties in entering into this Order that Rye Brook shall use
its best efforts to reduce contributions to sewage spills over time.

IV.

DEFINITIONS
9. Unless otherwise expressly provided herein, terms used in this Order which are defined in
the CWA or in regulations promulgated under the CW A shall have the meaning ascribed
to them in the CWA or in the regulations promulgated thereunder. Whenever the terms
listed below are used in this Order, the following definitions shall apply:
a. "The Agencies" shall mean the United States Environmental Protection Agency
and the United States Department of Justice.
b. Date of Lodging: the day the Plaintiffs submit this Order to the Agencies for the
forty-five (45) day review period required by 33 U.S.C. § 1365(c)(3).
c. Effective Date: the day the Court enters this Order after the expiration of the forty­
five (45) day review period required by 33 U.S.C. § 1365(c)(3).
d. Term of this Order: the period beginning on the Effective Date and ending four
years from the Effective Date, which is the "Termination Date."
e. Work Period: the period from the Effective Date until April 1, 2021 (the "Work
End Date"). During the Work Period, Rye Brook intends to complete the
Remedial Measures and draft and implement the Operational and Management
Measures identified below in Sections VII-VIII.
f.

V.

Fiscal Year: the fiscal year for the Village of Rye Brook, being June I through
May 31.

PAYMENTS
I 0. Environmental Benefit Project. To mitigate and remediate hanns to the Long Island
Sound watershed, in lieu of civil penalties that could have been assessed if the action had
been adjudicated against Rye Brook, Rye Brook shall complete the Environmental
Benefit Project attached hereto as Appendix D by June 30, 2022.
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11. Fees, Costs, and Expenses. Rye Brook shall pay a sum of one hundred thousand dollars
($100,000) as full and complete satisfaction of Plaintiffs' claims for attorneys' fees and
costs incurred to date, including investigative and expert costs, against Rye Brook. This
sum shall be paid in two installments. The first payment of fifty thousand dollars
($50,000) will be placed in escrow with Rye Brook's attorney within thirty (30) days of
the Parties' execution of this Order and will be transferred to Plaintiffs' attorney on or
before the seventh (7th) day after the Effective Date of this Order. The second payment
of fifty thousand dollars ($50,000) will be transferred to Plaintiffs' attorney on or before
June 30, 2021. The checks shall be payable to "Super Law Group, LLC Attorney Trust IOLA". Payments will be deposited in Super Law Group's IOLA Trust Account for the
benefit of the Plaintiffs.
FEDERAL REVIEW OF ORDER

VI.

12. Review by Agencies. The Parties recognize that, pursuant to 33 U.S.C. § 1365(c)(3), this
Order cannot be entered until forty-five (45) days after the receipt of a copy of the
proposed Order by the Agencies. Therefore, upon signing of this Order by the Parties,
Plaintiffs shall serve copies of this Order upon the EPA Administrator, the Regional EPA
Administrator, and the Attorney General for review, as required by 40 C.F.R. § 135.5. If
for any reason the United States should decline to approve this Order in the form
presented, the Parties agree to continue negotiations in good faith to cure any objection to
entry of this Order raised by the United States.
13. Entry of Order. Upon the expiration of the forty-five-day review period provided by 33
U.S.C. § l365(c)(3), the Parties shall move the Court for entry of this Order. This Order
shall take effect on the date it is entered by this Court and shall terminate four years from
the Effective Date. If for any reason the Court should decline to approve this Order in the
form presented, the Parties agree to continue negotiations in good faith in an attempt to
cure any objection raised by the Court to entry of this Order.
VII.

REMEDIAL MEASURES

14. Intended Effect of Remedial Measures and Operational and Management Measures.
The Measures set forth in Sections VII -VIII and the Appendices referenced therein are
intended to further Rye Brook's ongoing efforts to improve management of its Sanitary
Sewer System, to reduce inflow and infiltration, to address contributions sanitary sewer
overflows, to achieve compliance with the County Sewer Act, and to develop information
necessary to determine compliance with the requirements of this Order.
15. Completion of Remedial Measures. Rye Brook shall complete the Remedial Measures
as set forth in Appendix A.
VIII. OPERATIONAL AND MANAGEMENT MEASURES

16. Implementing Operational and Management Measures. Rye Brook shall update its
current Capacity, Management, Operations and Maintenance plan ("CMOM") such that it
reflects the Management Measures as set forth in Appendix B and C.
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IX.

ACHIEVING COMPLIANCE WITH THE COUNTY SEWER ACT
17. Rye Brook has performed and is performing the Remedial, Operational, and Management
measures set forth and referenced in Paragraphs 14-16 of th is Decree to achieve
compliance with the County Sewer Act's flow limits as set forth at Section 824.72 of the
Act, including any amendments thereto, by the end of the flow monitoring period
described in Appendix B.

18. At the conclusion of the Work Period, Rye Brook shall request that the Westchester
County Department of Environmental Facilities ("WCDEF") evaluate whether Rye Brook
has achieved compliance with the County Sewer Act. Rye Brook shall provide Plaintiffs
with a copy of its request, WCDEF's response, and any associated correspondence by
email, immediately upon sending or receipt.
19. Until the end of the Term of this Order, any disagreement between the Parties regarding
Rye Brook's compliance with the County Sewer Act shall be addressed through the
Dispute Resolution Procedure (Section XV). Plaintiffs' sole remedy for a detennination
that compliance has not been achieved shall be limited to the Village's perfonnance of
additional measures to achieve compliance. The Village's non-compliance may
constitute grounds for injunctive relief, but shall not subject the Village to monetary
penalties.
X.

PUBLIC INFORMATION
20. On or before February I of each year during the Term of this Order, Rye Brook shall
publish on its website and shall send to Plaintiffs a copy of the sewer map that Rye Brook
files with the County on January 15, pursuant to Section 824.73 of the County Sewer Act.
The map shall be provided in an agreed electronic document format (such as PDF).
21. On or before September 15 of each year during the Term of th is Order, Rye Brook shall
publish on its website and shall send to Plaintiffs an electronic copy of the plan for Rye
Brook's maintenance and repair program that Rye Brook files with the County on
September l , pursuant to Section 824.72(7) of the County Sewer Act.
22. On or before September 15 of each year during the Term of this Order, Rye Brook shall
publish on its website and shall send to Plaintiffs an electronic copy of its Capacity,
Management, Operation & Maintenance (CMOM) program document.
23. On or before September 15 of each year during the Term of this Order, Rye Brook shall
send to Plaintiffs a record of all callouts and related field notes, and identify corrective
actions taken in response, in the preceding fiscal year.

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24. On or before September 15 of each year during the Term of this Order, Rye Brook shall
send to Plaintiffs a record of all spill reports filed by Rye Brook the preceding fiscal year
pursuant to the Sewage Pollution Right to Know Act (NY ECL §17-0826-a).
25. Commencing on or before September 15, 2021, and then on September 15 of each
subsequent year during the Term of this Order, Rye Brook shall send to Plaintiffs an
updated copy of the "Repair Infonnation Sheet" attached as Appendix C to this Order
reflecting work performed in the preceding fiscal year.
XI.

REVIEW AND APPROVAL OF DELIVERABLES
26. A "Deliverable" is any plan, report, map, or other item that Rye Brook is required to
submit to Plaintiffs for either review or approval pursuant to this Order.
27. Rye Brook shall submit any significant modification or amendment of any Deliverable
for review or approval pursuant to this Order to Plaintiffs.
28. Plaintiffs shall respond to any Deliverable or amended Deliverable with written
comments within forty-five (45) days.
29. Within forty-five (45) days of receiving Plaintiffs' written comments, Rye Brook shall
either: (a) alter the submission to address Plaintiffs' written comments or (b) submit the
matter for Dispute Resolution under Section XV of this Order.
30. If a Deliverable is approved pursuant to this Section, Rye Brook shall take all actions
required by the Deliverable, in accordance with the schedules and requirements of the
Deliverable as approved.
31. For each day Rye Brook fails to timely submit any Deliverable, a stipulated
Environmental Benefit Payment ("EBP") for each such Deliverable may, at the sole
discretion of Plaintiffs, be assessed to Rye Brook. Such EBPs shall be held in escrow by
Plaintiffs' attorneys, for the benefit of an environmental benefit project to be determined
by mutual agreement of the parties. None of these payments shall be disbursed to
Plaintiffs. The payments may be assessed as follows:
Period ofNoncornpliance

EBP Per Deliverable Per Day

1-15 Days
16-30 Days
31-60 Days
More than 60 Days

Cure Period
$100
$200
$300

Rye Brook shall have a 15-day period to cure any untimely Deliverable. No EBP is
required if the Deliverable is submitted within fifteen ( l 5) days of the deadline.
However, if a cure is not effected within fifteen (15) days, an EBP may, at the sole
discretion of Plaintiffs, be assessed at up to $500.
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XII.

FORCE MAJEURE

32. "Force Majeure," for purposes of the Order, is defined as any event arising from causes
beyond the control of Rye Brook, of any entity controlled by Rye Brook or of Rye Brook's
engineers, consultants, and contractors, that delays or prevents the timely performance of
any obligation under the Order notwithstanding Rye Brook's best efforts to fulfill the
obligation. "Force Majeure" does not include Rye Brook's financial inability to perform
any obligation under this Order.
33. The requirement that Rye Brook exercise "best efforts" includes using best efforts to
address the effects of any such event (a) in preparation for a potential Force Majeure, to
the extent one is predicted; (b) as it is occurring and (c) after it has occurred to prevent or
minimize any resulting delay to the greatest extent feasible.
34. If any event occurs that may delay or prevent the performance of any obligation under
this Order, whether or not caused by a Force Majeure event, Rye Brook shall notify
Plaintiffs via email within ten (I 0) working days after Rye Brook first knew or should
have known that the event might cause a delay. Within ten (10) additional working days
thereafter, Rye Brook shall submit for review and approval by Plaintiffs, at the addresses
and in the manner specified in Section XVIII (Notice), an explanation of the cause(s) of
any actual or expected delay or noncompliance, the anticipated duration of any delay, the
measure(s) taken and to be taken by Rye Brook to prevent or minimize the delay, a
proposed schedule for the implementation of such measures, and a statement as to
whether, in the opinion of Rye Brook, such event may cause or contribute to an
endangerment to public health, welfare, or the environment. Failure to provide timely
and complete notice in accordance with this Paragraph shall constitute a waiver of any
claim of Force Majeure with respect to the event in question.
35. If Plaintiffs agree that a delay or anticipated delay is attributable to Force Majeure, the
time for performance of the obligations under this Order that are affected by the Force
Majeure event shall be extended for a period of time as is necessary to complete these
obligations. If the Parties cannot agree on the period of time necessary to complete these
obligations, the Parties may initiate the dispute resolution process set forth in Section XV.
36. If Plaintiffs do not agree the delay or anticipated delay is attributable to Force Majeure, or
on the number of days of noncompliance caused by such event, Plaintiffs wiII notify Rye
Brook in writing of its decision. Rye Brook may then elect to initiate the dispute
resolution process set forth in Section XV. If Rye Brook does not initiate the dispute
resolution process within ten (I 0) days of receiving Plaintiffs' written notice under this
Paragraph, then Rye Brook shall be deemed to have waived any Force Majeure claims or
any rights to initiate dispute resolution with regard to such claims.
37. Delay in performance of any obligation under this Order shall not automatically justify or
excuse delay in complying with any subsequent obligation or requirement of this Order.
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XIII. DISPUTE RESOLUTION
38. The Dispute Resolution procedure of this Paragraph shall be the exclusive mechanism to
resolve any disputes arising under this Order:
a. Any dispute that arises under this Order shall initially be subject to a period of
informal negotiations, which shall not extend beyond thirty (30) days unless the
Parties otherwise mutually agree in writing to an extension of the informal
negotiation period and/or a mediation process. The dispute shall be considered to
have arisen on the date one Party receives written notification from the other,
specifically referencing this Paragraph, that there is a dispute. Such notice shall
state the matter in dispute.
b. If the Parties cannot resolve a dispute by informal negotiations, whether before or
immediately after the lapse of the thirty (30) day informal negotiations, then the
Parties must seek the intervening role of a certified mediator, with such individual
chosen by mutual agreement of the Parties. The mediation period shall not extend
beyond forty-five (45) days from the end of the informal negotiation period,
unless the Parties otherwise mutually agree in writing to an extension of the
mediation period.
c. If the Parties cannot resolve a dispute by mediation, at the conclusion of the forty­
five (45) day mediation period, either Party may file a Dispute Resolution motion
with the court.
d. Alternatively, if the Parties mutually agree, in writing, to bypass mediation
entirely, the disputing party shall file a motion with the court directly. The motion
shall refer to this Order and Paragraph and shall set forth the nature of the dispute
and a proposal for its resolution. The opposing Party shall have thirty (30) days in
which to file a response.
e. Nothing in this section should be interpreted to limit the Court's inherent authority
to enforce its orders, including through the use of sanctions.
XIV. INFORMATION COLLECTION AND RETENTION
39. Plaintiffs and their contractors, consultants, and attorneys shall have authority to enter
any property or facility owned or controlled by Rye Brook, at all reasonable times, upon
proper identification, for the purposes of: (a) monitoring the progress of activity required
by this Order; (b) verifying any data or information submitted to Plaintiffs under this
Order; (c) assessing Rye Brook's compliance with this Order; (d) obtaining samples and,
upon request, splits of any samples taken by Rye Brook or its representatives, contractors,
or consultants; and (e) obtaining documentary evidence, including photographs and
similar data related to compliance with this Order. Except in an emergency, Plaintiffs
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shall provide a minimum of three (3) days' prior notice of intent to enter. Upon request,
Plaintiffs shall provide Rye Brook splits of any samples taken.
40. Rye Brook shall retain all non-identical copies of all documents, records, and other
information (including documents, records, or other information in electronic form)
generated by Rye Brook, and all data collected and all reports generated by Rye Brook's
contractors (including data and reports in electronic form), that relate in any manner to
Rye Brook's performance of its obligations under this Order from the Termination Date
for a period of five years. This information retention requirement shall apply regardless of
any contrary corporate or institutional policies or procedures. At any time during this
information-retention period, upon reasonable request by the Plaintiffs, Rye Brook shall
provide copies of any documents, records, or other information required to be maintained
under this Paragraph.
41. At least ninety (90) days prior to the expiration of the record retention period, Plaintiffs
may make a reasonable request, in writing, that Rye Brook extend the record retention
period. Upon such reasonable request, Rye Brook agrees to retain the particular records
in question for an additional one-year period.
42. Rye Brook may assert that certain documents, records, or other forms of information are
privileged under the attorney-client privilege or any other privilege or protection from
disclosure recognized by federal law or state law. If Rye Brook asserts such a privilege or
protection, it shall provide the following: ( 1) the title of the document, record, or
information; (2) the date of the document, record, or information; (3) the name and title of
each author of the document, record, or information; (4) the name and title of each
addressee and recipient; (5) a description of the subject of the document, record, or
information; and (6) the privilege or protection asserted by Rye Brook.
XV.

EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS

43. This Order resolves the civil claims of Plaintiffs for the violations alleged in their
Complaint, as against Rye Brook, filed in this action through the Date of Lodging.
44. Rye Brook is responsible for achieving and maintaining complete compliance with all
applicable federal, state, and local laws and regulations, and permits, and Rye Brook's
compliance with this Order shall be no defense to any action commenced pursuant to any
such laws, regulations, or permits, except as set forth herein. The Plaintiffs do not, by
their consent to the entry of this Order, warrant or aver in any manner that Rye Brook's
compliance with any aspect of this Order will result in compliance with provisions of the
CWA or with any other provisions of federal, State, or local laws, regulations, or permits.
45. This Order does not limit any rights or remedies available to the Plaintiffs or defenses
available to Rye Brook for any violation by Rye Brook of the CWA, State law, or
associated regulations or permit conditions other than those claims alleged in the
Complaints through the Date of Lodging.

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46. This Order does not limit any rights or remedies available to the United States or the
State.
47. The Plaintiffs expressly reserve all rights and remedies, legal and equitable, available to
enforce the provisions of this Order, including the provisions of any Appendix or
Deliverable approved by Plaintiffs under this Order.
48. This Order does not limit or affect the rights of Rye Brook or the Plaintiffs against any
third parties not party to this Order, nor does it limit the rights ofthird parties not party to
this Order against Rye Brook, except as otherwise provided by law.
49. This Order shall not be construed to create rights in, or grant any cause ofaction to, any
third party not party to this Order.
XVI. NOTICES
50. Any notice, demand, copies of documents and other communications required to be made
under the provisions of this Order (collectively, "Notices") by any Party hereto shall be
effective only if in writing and (a) personally served, (b) mailed by United States
registered or certified mail, return receipt requested, postage prepaid, (c) sent by a
nationally recognized courier service (i.e., Federal Express) to be confirmed in writing by
such courier, or (d) sent by electronic mail, with receipt confirmed by the counterparty
via electronic mail. Notices shall be directed to the Parties at their respective addresses
set forth below.
Notices for Plaintiffs shall be sent to:
Edan Rotenberg
Super Law Group, LLC
180 Maiden Lane, Suite 603
New York, NY I 0038
[e-mail]
Attorney for Plaintiffe
Notices sent to the individual listed above at the address listed above shall be deemed as
notice to Plaintiffs.
Notice for Rye Brook shall be sent to both:
Christopher J. Bradbury
Village Administrator
Village of Rye Brook
938 King Street
Rye Brook, NY 10598
[e-mail]

Edward F. Beane, Esq
Keane and Beane
445 Hamilton Avenue
White Plains, NY I 0601
[e-mail]
Attorney for Village of Rye Brook

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Notices sent to the individuals listed above at the addresses listed above shall be deemed
as notice to Rye Brook.
Each Party shall promptly notify the other Party of any change in the above-listed contact
information by using the procedures set forth in this paragraph.
XVII. EFFECTIVE DATE
51. Under Section 505(c)(3) of the Clean Water Act, Plaintiff will provide a copy of this
Order to the United States Environmental Protection Agency ("EPA") and the United
States Department of Justice ("DOJ"), and the Court may not enter the Order prior to
forty-five (45) days from the date the Order is received by EPA and DOJ. 33 U.S.C.
§ 1365(c)(3). In the event EPA or DOJ comments raise concerns on the provisions of this
Order during the revie\1/ period, the Parties agree to meet and confer to attempt to resolve
any issue(s) raised by EPA or DOJ. At the end of the forty-five (45) day review period,
or after receipt of comments from EPA or DOJ, whichever occurs first, the Parties will
jointly notify the Court of any comments received from EPA or DOJ, any resolution of
those comments, and move the Court to enter the Order. The Order becomes effective on
the date signed and issued by the Court.
XVIII. RETENTION OF JURISDICTION
52. The Court shall retain jurisdiction to enforce the terms of this Order and its Appendices
until the Termination Date and to resolve disputes that are not resolved through the
dispute resolution process prescribed above that may arise between the Parties.
XIX. FINAL COMPLIANCE AND TERMINATION
53. This Order shall terminate four years from the Effective Date. Except that, if Rye Brook
does not comply with its obligations under this Order by the dates set forth whether
because of a Force Majeure Event or for any other reason, then the term of this Order­
and the Court's jurisdiction-shall be extended for an appropriate period of time to be
agreed between the Parties through Dispute Resolution (Section XIV).
XX.

MISCELLANEOUS

54. Entire Agreement. This Order and its Appendices contain the entire agreement between
the Parties and no major modifications shall be valid unless in writing, mutually agreed to
and executed by the Parties, and entered by the Court; except that the Parties may
mutually agree in writing to minor modifications of this Order without further consent of
the Court and such written minor modifications shall be deemed incorporated into this
Order.
55. Representatives. Each undersigned representative of Rye Brook and Plaintiffs certifies
that he or she is fully authorized to enter into the terms and conditions of the Order and to
execute and legally bind the Party he or she represents to this document.
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56. Execution in Counterparts. This Order may be signed in counterparts, and its validity
shall not be challenged on that basis.
57. Headings. The section and paragraph headings contained in this Stipulated are for
reference purposes only and shall not affect in any way the meaning or interpretation of
this order.
58. Severability. In the event that any of the provisions ofthis Order are held by a court to
be unenforceable, the validity ofthe enforceable provisions shall not be adversely
affected.
59. Interpretation. The provisions contained herein shall not be construed in favor of or
against any Party because that party or its counsel drafted this Order but shall be
construed as if all Parties prepared this Order, and any rules of construction to the
contrary are hereby specifically waived. The terms ofthis Order were negotiated at aml 's
length by the Parties hereto. The language in all parts ofthis order shall be construed
according to its plain and ordinary meaning, except as to those terms defined by the Clean
Water Act or specifically herein.

XXI. FINAL JUDGMENT
60. Entry ofthis Order constitutes Final Judgment under Rule 54 of the Federal Rules of
Civil Procedure.

XXII. APPENDICES
61. The following appendices are hereby incorporated into this Order.
Appendix A - Remedial Measures
Appendix B - Operational and Management Measures
Appendix C - Repair Information Sheet
Appendix D - Environmental Benefit Project
Dated:

11-11- '2.02,0
----------

Village of Rye Brook

12

Case 7:15-cv-06323-CS Document 189 Filed 01/19/21 Page 13 of 13

/1

✓

Ir. 2cZO

Dated:

1.

Dated:

Nov. 18, 2020
Nov. 18, 2020

r,·

/s/ Edan Rotenberg
/s/ Edan Rotenberg

By:

its attorney, Edan Rotenberg
its attorney, Edan Rotenberg

Title:

ENTERED and DATED this 19t@ay of January

Partner, Super Law Group
Partner, Super Law Group

, 2020

Honorable Cathy Seibel
United States District Judge

13