SETTLEMENT AGREEMENT WHEREAS, Finger Lakes Zero Waste Coalition, In c. 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. Environ mental Protection Agency , requesting that the A dministrator 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, Plaintiff s 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 th e 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 Plaintiff s (collectively, the “Pa rties”) 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
1b efore finalization pursuant to P aragraph 5 of this Agreement, the Parties shall file a joint motion with the Court notifying it of this Agreement and requesting that th is 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 s ection 505(b)(2). Once EPA signs a response to the Ontario Petition , EPA shall expeditiously provide written notice to Plaintiff s through their undersigned counsel.
3. If the Agreement becomes final pursuant to Paragraph 5, Plaintiff s shall file a notice of voluntary dismissal of the C omplaint under Federal Rule of Civil Procedure 41(a)(1) within 15 days of the date when EPA provides writte n notice pursuant to Paragraph 5

. Except as specifically provided in Paragraph 4, the effect of such di smissal shall be with prejudice

. 4. If EPA fails to take action as set forth in Paragraph 2, Plaintiff s ’ 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 defen se 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 c omment 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 co mment 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
2the Attorney General elect s whether or not to withdraw or withhold her or his consent to this Agreement, EPA shall expeditiously provide written notice to Plaintiff s through their undersigned counsel. This Agreement shall become final on the date , if any, that EPA provides written notice to Plaintiff s 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 t he 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 action s specifi ed in P aragraph s 2 and 8 by the time spec ified therein does not constitute a limitation or modification of EPA’s discret ion within the meaning of this
P aragraph.
8

. If the Agreement becomes final under Paragraph 5 , the United States, on behalf of EPA, shall pay the su m of two thousand one hundred thirty eight dollars and forty eight cents ($2138.48 ) to Gary A. Abraham , as counsel for Plaintiff s , in full and complete settlement of all claims for attorney s’ fees and costs under any provision of law that Plaintiff s 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. Th e payment from the United States shall be made as

3soon 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 A greement, 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)

. 1 0

. The Parties recognize that t he 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 en vironmental 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 Partie s 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 pr ovide 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
4in 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 mo dification 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 th at EPA obligate or pay funds in contravention of the Anti

Deficiency Act, 31 U.S.C. § 1341. In the event that sufficient appropriated fund ing is not available, Plaintiff s ’ 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.
1 3

. This Agreement is the entire agreement between Plaintiff s and EPA in this case. All prior conversations, meetings, discussions, drafts, and writings of any kind are specifically superseded by this Agreement.
1 4

. It is understood and agreed that this Agreement was jointly drafted by Plaintiff s 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.
1 5

. The undersigned represe ntatives 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.
5SO 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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