the next case on our characters state of new york versus p d f chemicals good morning good morning your honor may it please the court frederick really for the state the party settlement resolved five areas of pollution at the site for four of them the settlement required remediation at issue here is whether the state released p b s from all liability for the th area existing ground water and soil pollution solely in exchange for conducting environmental tests the answer is not the settlement expressly provided and the extrinsic evidence confirmed that d e c did not give a full release in exchange for just testing the groundwater why would they have done that anyway why would they want the testing without the remediation exactly exactly instead the state reserved its right to proceed against p v c s for further groundwater and worse oil related measures once the test results were in don't think that's right because if you look at page ten midi six of the record p b s coined its own tests showed ground water standards were not exceeded and the stink disputed whether p b s had tested the right  and where they were that was all up in the air persuaded by your argument that you did reserve these rights why shouldn't the contract be under the settlement which is a contract the construed to expect you to act within a reasonable time as i if i understand the record correctly the last report on their testing was in two thousand and three and it was not until eight years later that you registered the site as required remedial action so i'm concerned about the length of time here whether that's a reasonable contract as part of its obligations of good faith and fair dealing expect you to act within a reasonable time on your rights i mean are you saying that you could have acted one hundred and eighty two thousand and three report twenty the reason for that is it was it was in two thousand and three to two thousand and ten so maybe a little six years plus a few months two thousand and ten we notify them now what happens in the interim or st of all like a long time i mean you know you get a report in two thousand and three that the settlement says conduct this test it has to be done expeditiously you get the report and then you wait six years to do it to tell them they have to take remedial well i would i would point out there and p b s has has not made or preserve the latches argument and they haven't shown any prejudice from the way we let them stay there they're operating her business they're not heard in any way and and some of the delay it was also due to the fact that the study waited until it got further data new data from the buffalo river and the when they got the data from the buffalo river that showed the same contaminants that are in existing soil and groundwater pollution and then there is there is more back and forth and that's all on the extrinsic evidence suggestion in the arguments that have been presented to us that  the delay may have been explained in part by a change of law that made it easier for you to identify a need for an medial action by two thousand and eleven that you might not have been able to identify in two thousand and three i'd like to know if you agree with that and if so whether that lends any support to their argument that if you could remediation in two thousand and three on the condition that they reported to you that they shouldn't be allowed to you shouldn't be allowed to do so in two thousand and eleven based on a change in the law that they didn't make someone clean up hazardous waste you had to show it was waste you had to show it had come from a particular industrial process and was discarded and that was a huge burden that one couldn't meet here couldn't have met that in q one thousand  them report two thousand and three the next year could you not have thought remediation because of that that concern you just identified i think i think the change in the law if i recall correctly is two thousand and three so two thousand forward we had the benefit of that change in the law but up to two thousand and three we never know we don't know today what industrial practices and it wouldn't seem to have been the change in when we reserved our rights there was no time limit on the reservation of rights the change in law takes with the two thousand and three the new buffalo river tests which link the groundwater contamination to the river takes us to two thousand and six and then we ago to resolve the ambiguity the court found it indicated there are two reasonable interpretations one favoring the state's interpretation the other favoring ours in the andersen decision district court is a question of fact considering extrinsic evidence of the party's intent also anderson tells us that when the court decides in favor one party's interpretation as to the other by definition that's another both being reasonable that that isn't fair and you cited that yourself your honor in your dissent in attacking that this court isn't to substitute its judgment as a trier of fact and for a very court has noted and now we're hearing an argument that's based on some factual issues and quite frankly i've been involved with this case from the outset of a client for thirty six years that's not in fact the context of the settlement we were under time limits to produce in two thousand to two thousand and three for quarterly reports the state was under a time honored to tell us that there was something inadequate about those reports within sixty days of receiving it's right in the investigation which was exhibit a to the consent decree act i'm sorry i don't have the particular page but it's right at the outset i have to tell me where it is because i didn't see it i i thought that part of your problem was that they originally wanted you to consent to study and remediation and you were saying how can we agree to remediate we don't know what we're going to find  to that but they reserved the right depending on what you found to require whatever action was consistent with law so i don't see how you could argue that it was prepared the site work report and which is the reports on throughout the records the quarterly reports stay that the data was consistent with the historical conditions at the site because we had before the court hear after the only change their mind in two thousand and eleven and i'd like to adjust there because pointed out that was a long period of time now the reservation of rights sad they reserve the right to require additional believe is whether or not the trier of fact below made a clearly erroneous determination in the state has never argued that it was a question of fact the court was resolving below when it was remanded by this court to view expansive governance for what was a yes i just don't believe you are that in love for eight years after the reports were submitted that was the basis for the rebranding of the site the basis was our refusal to enter into a consent order to do the very thing which had been negotiated out of the for a start and not want remediation after the study is completed it doesn't make sense make sense your honor has that at that studies show different site conditions than the ones that previously existed the ones that were released from the terms of the release because the state had knowledge of those conditions then they could act as magistrate judge said below the new data didn't show any significant change in the old data  honor i'll start with standard of review the standard review was the no vote and there are three reasons for that st there's no issue of fact instead the magistrate judge conducted a summary judgment review at war argument ambiguity would not quote preclude summary judgment if the extrinsic evidence were so one sided that no reasonable fact finder could decide contrary to one party's until both patients this was not a summary judgment motion right it was a motion  to deal with a conflict well in in effect the judge conducted a summary judgment analysis cited summary judgment precedent and he didn't point to any issues of fact and in fact that that gets to my nd point magistrate judge did not conduct a trial either on the papers or live but which side did the judge assume the facts in the light most favorable to them we judge them that standard on summary judgment and i i mean i know i know exactly what you mean about the judge citing summary judgment precedent and speaking of summary judgment but that would have required the judge to view the facts in the light most favorable trial i thought your argument here was the only possible construction of this is that we have the right to order this remediation that's right what it gets us is a reversal and i that the court did not make findings of fact and when this magistrate judge was conducting a trial and was making findings of fact he made an expressway and we cited in our apply brief a number of what do you want e say no findings of fact were necessary given the remand from this court are you are you are you saying now that what the court what this court should have recognized is that there weren't t you'll see the key piece the critical critical piece of extrinsic evidence that is the t v s says no don't do a search don't make is to a site investigation and corrective measures which we don't know what they are yet assuming this was not summary judgment but trial as we anticipated that the record is insufficient as a matter of law to support the finding that the district court may as to the part that the settlement certainly and it is sufficient as a matter of law to support indeed compel a finding for listed thank you thank you both very lively arguments will reserve