Association of Irritated Residents et al v. United States Environmental Protection Agency et al

Filing 26

STIPULATION AND ORDER. Signed by Judge Samuel Conti on 12/5/08. (tdm, COURT STAFF) (Filed on 12/5/2008)

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RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division ROCHELLE L. RUSSELL (CA Bar No. 244992) Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section 301 Howard Street, Suite 1050 San Francisco, CA 94105 Tel: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendants

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ASSOCIATION OF IRRITATED RESIDENTS, an unincorporated association, and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, STEPHEN L. JOHNSON, in his official capacity as Administrator of the United States Environmental Protection Agency, and WAYNE NASTRI, in his official capacity as Regional Administrator for Region IX of the United States Environmental Protection Agency, Defendants.

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No. CV 08-00227 SC STIPULATION AND [PROPOSED] ORDER

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WHEREAS, Plaintiffs Association of Irritated Residents and the Natural Resources Defense Council, Inc. filed a complaint, AIR v. EPA, Case No. CV 08-00227 SC, on January 14, 2008, against the United States Environmental Protection Agency; Stephen L. Johnson, in his official capacity as Administrator of the United States Environmental Protection Agency; and Wayne Nastri, in his official capacity as Administrator for Region IX of the United States Environmental Protection Agency (collectively, "EPA"), pursuant to the citizen suit provision in section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2), alleging that EPA failed to perform nondiscretionary duties by not acting on certain state implementation plans within the time lines set forth in section 110(k)(2) of the Clear Air Act, 42 U.S.C. § 7410(k)(2); WHEREAS, Plaintiffs' claims in AIR v. EPA (other than the costs of litigation and attorneys' fees) were resolved by a consent decree entered by the Court on September 12, 2008 (Dkt. 21) (hereafter "Consent Decree"); WHEREAS, Plaintiffs and EPA wish to settle Plaintiffs' claims for costs of litigation, including attorneys' fees, in AIR v. EPA in order to avoid unnecessary litigation and without any admission of fact or law; NOW THEREFORE, the parties, by and through their undersigned counsel, hereby stipulate to the entry of an order that: 1. The United States shall pay, within 90 days, $33,815 to the Center on Race,

Poverty & the Environment and $10,751 to the Natural Resources Defense Council by electronic funds transfer in accordance with instructions provided to Defense counsel by Plaintiffs' counsel. 2. Any obligation of the United States to expend funds under this settlement

agreement are subject to the availability of appropriations in accordance with the Anti-Deficiency Act, 31 U.S.C. § 1341. This settlement agreement shall not be construed to require the United States to obligate or pay funds in contravention of said Anti-Deficiency Act, 31 U.S.C. § 1341. 3. Plaintiffs agree that payment pursuant to Paragraph 1 within 90 days of the date

on which the Court enters this Stipulation and Order (or after 90 days if Plaintiffs accept payment after that date) will constitute full and final payment of costs of litigation (including reasonable attorneys' fees) incurred by Plaintiffs in connection with AIR v. EPA prior to the Court's entry of

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the Consent Decree and in negotiating this Stipulation and Order. Upon payment within 90 days of the date on which the Court enters this Stipulation and Order (or upon payment after 90 days if Plaintiffs accept payment), Plaintiffs release the United States, including EPA, from any claims regarding such fees and costs incurred by Plaintiffs in connection with AIR v. EPA prior to the Court's entry of the Consent Decree and in negotiating this Stipulation and Order. The payment pursuant to Paragraph 1 does not affect the right of Plaintiffs to seek to recover reasonable costs and attorneys' fees that Plaintiffs may incur to enforce the Consent Decree, nor does it affect the right of EPA to oppose any such request for fees and costs, as provided in Paragraph 13 of the Consent Decree. 4. In the event that the United States fails to pay the sum specified in Paragraph 1

within 90 days of the date on which the Court enters this Stipulation and Order, Plaintiffs may file a motion with the Court for their costs of litigation (including reasonable attorneys' fees). Such motion shall be filed no later than 150 days after the date the Court enters this Stipulation and Order. The parties agree that, in litigation over such fee application, the United States reserves any defenses it may have to a fee application.

FOR THE DEFENDANTS:

RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division /s/ Rochelle L. Russell ROCHELLE L. RUSSELL United States Department of Justice Environmental Defense Section 301 Howard Street, Suite 1050 San Francisco, CA 94105 [phone] [e-mail]

Dated: December 3, 2008

FOR THE PLAINTIFFS: Dated: December 3, 2008 /s/ Brent Newell BRENT NEWELL Center on Race, Poverty & the Environment 47 Kearney Street, Suite 804 San Francisco, CA 94108 [phone] [e-mail] Attorney for Association of Irritated Residents
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Dated: December 3, 2008

/s/ Adriano Martinez ADRIANO MARTINEZ Natural Resources Defense Council, Inc. 1314 Second Street Santa Monica, CA 90401 [phone] [e-mail] Attorney for Natural Resources Defense Council

PURSUANT TO STIPULATION, IT IS SO ORDERED. 7 8
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12/5/08 Dated: _________________

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__________________E________________ D O OR Hon. Samuel ContiDER IT IS S Senior Judge United States Districtonti C Court Samuel
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CERTIFICATE OF SERVICE I certify that on December 3, 2008, a true and correct copy of the foregoing STIPULATION AND [PROPOSED] ORDER was served electronically via the Court's efiling system to Counsel of Record.

/s/ Rochelle L. Russell ROCHELLE L. RUSSELL

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