SETTLEMENT AGREEMENT

WHEREAS, Finger Lakes Zero Waste Coalition, Inc. filed, pursuant to section 505(b)(2) 

of the Clean Air Act, 42 U.S.C. § 7661d(b)(2), a petition dated December 22, 2012, with the 

Administrator of the U.S. Environmental Protection Agency, requesting that the Administrator 

object to Title V Operating Permit No. 8-3244-00040/00002 issued by the New York State 

Department of Environmental Conservation to the Ontario County Landfill Gas-to-Energy 

Facility, operated by Seneca Energy II, LLC in in Stanley, New York (“Ontario Petition”);

WHEREAS, Plaintiffs Finger Lakes Zero Waste Coalition, Inc. and Katherine M. 

Bennett Roll filed a complaint styled as Finger Lakes Zero Waste Coalition, Inc. et al v. 

McCarthy et al, No. 14-cv-06542 (W.D.N.Y.) (“Complaint”) on September 16, 2014, against 

Defendants Gina McCarthy in her official capacity as Administrator of the United States 

Environmental Protection Agency and the United States Environmental Protection Agency 

(collectively, “EPA”), pursuant to section 304(a)(2) of the Clean Air Act (“CAA”), 42 U.S.C. 

§ 7604(a)(2), alleging that EPA has a nondiscretionary duty under CAA section 505(b)(2) to 

respond to the Ontario Petition within 60 days of the filing of the Petition and further alleging 

that EPA has not responded to the Petition;

WHEREAS, EPA does not admit any allegation of fact or law alleged in the Complaint; 

WHEREAS, EPA and Plaintiffs (collectively, the “Parties”) wish to implement this 

Settlement Agreement (“Agreement”) to avoid protracted and costly litigation and to preserve 

judicial resources;

NOW, THEREFORE, the Parties, intending to be bound by this Agreement, hereby 

stipulate and agree as follows:

1. Within 10 days after this Agreement is executed by the Parties (i.e., signed), but 

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before finalization pursuant to Paragraph 5 of this Agreement, the Parties shall file a joint motion 

with the Court notifying it of this Agreement and requesting that this case be stayed pending 

completion of, and subject to, the terms of this Agreement.

2. EPA shall sign no later than June 30, 2015, a response to the Ontario Petition 

pursuant to CAA section 505(b)(2). Once EPA signs a response to the Ontario Petition, EPA 

shall expeditiously provide written notice to Plaintiffs through their undersigned counsel.

3. If the Agreement becomes final pursuant to Paragraph 5, Plaintiffs shall file a 

notice of voluntary dismissal of the Complaint under Federal Rule of Civil Procedure 41(a)(1) 

within 15 days of the date when EPA provides written notice pursuant to Paragraph 5. Except as 

specifically provided in Paragraph 4, the effect of such dismissal shall be with prejudice. 

4. If EPA fails to take action as set forth in Paragraph 2, Plaintiffs’ sole remedy 

under this Agreement shall be the right to ask the Court to reinstate this lawsuit and seek an order 

under the CAA requiring EPA to take such action. EPA does not waive or limit any defense 

relating to such litigation. The Parties agree that contempt of court is not an available remedy 

under this Agreement, and that this Agreement is not specifically enforceable.

5. The Parties agree and acknowledge that before this Agreement is final, EPA must 

provide notice in the Federal Register and an opportunity for public comment pursuant to CAA

section 113(g), 42 U.S.C. § 7413(g). EPA shall expeditiously submit such notice of this 

Agreement to the Federal Register for publication and public comment after the Agreement is 

executed by the Parties (i.e., signed). After this Agreement has undergone an opportunity for 

notice and comment, the Administrator or the Attorney General, as appropriate, shall promptly 

consider any such written comments in determining whether to withdraw or withhold her or his 

consent to the Agreement, in accordance with CAA section 113(g). Once the Administrator or 

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the Attorney General elects whether or not to withdraw or withhold her or his consent to this 

Agreement, EPA shall expeditiously provide written notice to Plaintiffs through their

undersigned counsel. This Agreement shall become final on the date, if any, that EPA provides 

written notice to Plaintiffs that the Administrator and Attorney General consent to this 

Agreement. If EPA does not provide such written notice within 60 days after the notice of the 

Agreement is published in the Federal Register, Plaintiffs’ sole remedy with respect to the 

Ontario Petition shall be the right to ask the Court to lift the stay of this proceeding and establish 

a schedule for further proceedings. 

6. This Agreement may be modified by written stipulation signed by the Parties.

7. Nothing in this Agreement shall be construed to limit or modify the discretion 

accorded EPA by the CAA or by general principles of administrative law, including discretion to 

alter, amend, or revise any responses or final actions contemplated by this Agreement. EPA’s 

obligation to perform the actions specified in Paragraphs 2 and 8 by the time specified therein 

does not constitute a limitation or modification of EPA’s discretion within the meaning of this 

Paragraph.

8. If the Agreement becomes final under Paragraph 5, the United States, on behalf of 

EPA, shall pay the sum of two thousand one hundred thirty eight dollars and forty eight cents 

($2138.48) to Gary A. Abraham, as counsel for Plaintiffs, in full and complete settlement of all 

claims for attorneys’ fees and costs under any provision of law that Plaintiffs asserted or could 

have asserted in connection with this litigation. The Parties agree that the amount provided 

herein constitutes a fair, reasonable, and full and complete settlement of Plaintiffs’ claims for 

attorneys’ fees and costs in this matter. The payment from the United States shall be made as 

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soon as reasonably practicable after dismissal of this case as set forth in Paragraph 3 by 

electronic wire transfer in accordance with instructions provided by Plaintiffs. 

9. Except as set forth in this Agreement, the Parties retain all rights, claims, 

defenses, and discretion they may otherwise have. Nothing in this Agreement shall be construed 

as an admission of any issue of fact or law nor to waive or limit any claim or defense, on any 

grounds, related to any final action EPA may take with respect to the Ontario Petition. Nothing 

in this Agreement shall be construed to confer upon the District Court jurisdiction to review any 

issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuant to 

CAA section 307(b)(1), 42 U.S.C. § 7607(b). Nothing in this Agreement shall be construed to 

waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 

7607(b)(1).

10. The Parties recognize that the possibility exists that circumstances outside the 

reasonable control of EPA could delay compliance with this Agreement. Such situations 

include, but are not limited to, a government shut-down such as occurred in 1995, 1996, and 

2013, or catastrophic environmental events requiring immediate and/or time-consuming response 

by EPA. Should such circumstances arise, any failure by EPA to meet a deadline set forth herein 

shall not constitute a failure to comply with the terms of this Agreement, and the Parties will 

meet and confer about an extension of any EPA deadline(s) occurring within one hundred twenty 

(120) days of the event. Such deadline(s) shall be automatically extended one day for each day 

of the delay, or more if the Parties so agree. EPA will provide Plaintiffs with notice as soon as is 

reasonably possible under the circumstances in the event that EPA invokes this term of the 

Agreement and will provide Plaintiffs with an explanation of EPA’s basis for invoking this term. 

Plaintiffs may challenge the invocation of this term of the Agreement in the proceeding set forth 

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in Paragraph 4, and EPA shall bear the burden of justifying its invocation of this term. Nothing 

in this Paragraph shall preclude EPA from seeking an additional extension through modification 

of this Agreement pursuant to Paragraph 6.

11. The commitments of EPA in this Agreement are subject to the availability of 

appropriated funds. No provision of this Agreement shall be interpreted as or constitute a 

commitment or requirement that EPA obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341. In the event that sufficient appropriated funding is not 

available, Plaintiffs’ sole remedy is set forth in Paragraph 4.

12. Plaintiffs and EPA agree that performance of the obligations described in 

Paragraphs 1, 2, 5, and 8 shall constitute a complete and final settlement of all claims that 

Plaintiffs have asserted against the United States, including EPA, under any provision of law in 

connection with Civil Action No. 14-cv-06542 (W.D.N.Y.). Plaintiffs therefore discharge and 

covenant not to sue the United States, including EPA, for any such claims except as authorized 

by Paragraph 4.

13. This Agreement is the entire agreement between Plaintiffs and EPA in this case. 

All prior conversations, meetings, discussions, drafts, and writings of any kind are specifically 

superseded by this Agreement.

14. It is understood and agreed that this Agreement was jointly drafted by Plaintiffs

and EPA. Accordingly, the Parties hereby agree that all rules of construction to the effect that 

ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning 

the terms, meaning, or interpretation of this Agreement.

15. The undersigned representatives of each Party certify that they are fully 

authorized by the Party that they represent to bind that Party to the terms of this Agreement.

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SO AGREED:

FOR PLAINTIFFS

GAR . AB H M

170 No. Second St.

Allegany, N.Y. 14706

Tel &Fax: (716) 372-1913

Gabraham44@eznet.net

DATED: ~ Av~~aY ~, ~ ~

FOR DEFENDANTS

JOHN C. CRUDEN

Assistant Attorney General

Env. &Natural Resources Division

L/~Cj ~/ E' ( D

SUE CHEN

Environmental Defense Section

Environment &Natural Resources Division

United States Department of Justice

P.O. Box 7611

Washington, D.C. 20044

Tel: (202) 305-0283

Fax: (202) 514-8865

sue.chen@usdoj.gov

DATED: ~ ~ ~~ ~~`) ~~ ~ >S

~~ J

Signature page for settlement agreement in Finger Lakes Zero Waste Coalition, lnc, et al v.

McCarthy et al, No. 14-cv-06542 (W.D.N.Y.).

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