PREET BHARARA

United States Attorney for the

Southern District of New York

By: MICHAEL J. BYARS

Assistant United States Attorney

86 Chambers Street, 3rd Floor

New York, New York 10007

Telephone: (212) 637-2793

Facsimile: (212) 637-2717

E-mail: michael.byars@usdoj.gov

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

NATIONAL RESOURCES DEFENSE COUNCIL

and PESTICIDE ACTION NETWORK NORTH :

AMERICA, ECF CASE

:

Plaintiffs, STIPULATION AND ORDER

: TRANSFERRING CASE TO

 -against- THE SUSPENSE DOCKET

 :

UNITED STATES ENVIRONMENTAL 10 Civ. 5590 (CM) (HBP)

PROTECTION AGENCY and LISA P. JACKSON, :

EPA Administrator,

:

Defendants.

---------------------------------------------------------------x

WHEREAS, on July 22, 2010, Plaintiffs Natural Resources Defense Council (“NRDC”) 

and Pesticide Action Network North America (“PANNA”) filed this lawsuit alleging that the 

Environmental Protection Agency (“EPA”) had unreasonably delayed in responding to NRDC 

and PANNA’s September 12, 2007 “Petition to Revoke All Tolerances and Cancel All 

Registrations for the Pesticide Chlorpyrifos” (the “Petition”); 

WHEREAS, EPA plans to take the following actions pursuant to the following schedule 

(the “Schedule”):

(a) On or before June 1, 2011, issue a preliminary human health risk assessment 

for chlorpyrifos and take public comment on that assessment;
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(b) On or before November 23, 2011, send NRDC and PANNA EPA’s written 

response to the Petition. 

WHEREAS, the parties wish to suspend this action while EPA takes the actions 

contemplated in the Schedule;

WHEREAS, the parties agree that if EPA fails to take the actions contemplated in the 

Schedule, Plaintiffs’ sole remedy shall be to remove this case from the suspense docket;

WHEREAS, by entering into this Stipulation and Order, no party waives any claim or 

defense relating to this litigation, including, but not limited to, Plaintiffs’ assertion that EPA has 

unreasonably delayed in responding to the Petition and EPA’s assertion that this Court lacks 

jurisdiction over this matter;

WHEREAS, this Stipulation and Order does not constitute any admission or evidence of 

any fact, wrongdoing, misconduct, or liability on the part of any party;

WHEREAS, the parties agree that no provision of this Stipulation and Order shall be 

interpreted to constitute a commitment or requirement that EPA obligate or pay funds in 

contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or take actions in contravention of 

the Administrative Procedure Act, 5 U.S.C. §§ 551-59, 701-06, the Federal Insecticide, 

Fungicide and Rodenticide Act, 7 U.S.C. § 136-136y, the Federal Food, Drug and Cosmetic Act, 

21 U.S.C. § 346a, or any other law or regulation, either substantive or procedural;

WHEREAS, the parties agree that the defendants named in the Complaint were sued in 

their official capacities, and any obligations or duties arising under this Stipulation and Order are 

to be performed by EPA;

WHEREAS, except as expressly provided herein, nothing in this Stipulation and Order 

shall be construed to limit or modify the discretion accorded EPA by law;
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WHEREAS, nothing in this Stipulation and Order shall be construed to create rights in, 

or grant any cause of action to, any person or entity not party to this Stipulation and Order;

WHEREAS, this Stipulation and Order may be modified or amended only with the 

written consent of the parties;

WHEREAS, this Stipulation and Order contains the entire agreement between the parties, 

and no statements, representations, promises, agreements or negotiations, oral or otherwise, 

between the parties or their counsel that are not included herein shall be of any force or effect;

WHEREAS, this Stipulation and Order shall become effective upon entry by the Court 

and

WHEREAS, this Stipulation and Order may be executed by facsimile transmission, and a 

photocopy may be used for all purposes;

NOW THEREFORE, it is agreed between the parties and ORDERED as follows:

1. This case is transferred to the suspense docket pursuant to Rule 20 of the Rules for 

the Division of Business Among District Judges for the Southern District of New 

York.

2. If EPA fails to take the actions contemplated in the Schedule, Plaintiffs’ sole remedy 

is to reactivate the case upon written notice to the Honorable Colleen McMahon, 

United States District Judge, Southern District of New York, with a copy of such 

notice to be served upon EPA and the U.S. Attorney’s Office at the addresses 

provided in paragraph 5 below. Contempt of court is not available as a remedy. 

Plaintiffs need not satisfy the “meet and confer” process described under paragraph 3 

below before reinstating the litigation pursuant to this paragraph.
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3. If the parties disagree about the interpretation or performance of any aspect of this 

Stipulation and Order, the dissatisfied party shall provide the other party with written 

notice of the dispute and a request for negotiations. The parties shall meet and confer 

in an effort to resolve the dispute within 14 days of the written notice, or at a time 

mutually agreed upon. If the parties are unable to resolve the dispute within 14 days 

of such meeting, Plaintiffs’ sole remedy is to reactivate the case upon written notice 

to the Honorable Colleen McMahon, United States District Judge, Southern District 

of New York, with a copy of such notice to be served upon EPA and the U.S. 

Attorney’s Office at the addresses provided in paragraph 4 below. Contempt of court 

is not available as a remedy.

4. Any notice required or made with respect to this Stipulated Injunction and Order 

shall be writing and shall be effective upon receipt. For any matter relating to this 

Stipulation and Order, notice shall be sent to: 

For the Plaintiffs:

Kevin E. Regan, Esq.

Earthjustice

705 2nd Avenue, Suite 203

Seattle, WA 98117 

Telephone: (206) 343-7340 x 21

Facsimile: (206) 343-1526 

For the Defendants:

Mark A. Dyner, Esq.

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W., MC – 2333A

Washington, DC 20460 
-5-

Michael J. Byars

Assistant United States Attorney

86 Chambers Street, 3rd Floor

New York, New York 10007

Telephone: (212) 637-2793

Facsimile: (212) 637-2717

E-mail: michael.byars@usdoj.gov

5. If this action is not reactivated by January 23, 2012, the action will be dismissed with 

prejudice and without costs or attorneys fees to any party.

Dated: New York, New York

 November ___, 2010

EARTHJUSTICE

By: ___________________________

KEVIN E. REGAN

Earthjustice

705 2nd Ave. Suite 203

Seattle, WA 98117 

Telephone: (206) 343-7340 x 21

Facsimile: (206) 343-1526

E-mail: kregan@earthjustice.org

Attorneys for National Resources Defense Council and 

Pesticide Action Network North America

PREET BHARARA

United States Attorney for the

Southern District of New York

Attorney for Defendants the United States 

Environmental Protection Agency and 

Lisa P. Jackson, EPA Administrator

By: ___________________________

MICHAEL J. BYARS

Assistant United States Attorney

86 Chambers Street, 3rd Floor

New York, New York 10007

Telephone: (212) 637-2793

Facsimile: (212) 637-2717

E-mail: michael.byars@usdoj.gov
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SO ORDERED:

_______________________________

HON. COLLEEN MCMAHON

UNITED STATES DISTRICT JUDGE