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Ecological Rights Foundation v. Pacific Gas and Electric Co.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


April 14, 2010

ECOLOGICAL RIGHTS FOUNDATION, PLAINTIFF,
v.
PACIFIC GAS AND ELECTRIC COMPANY. DEFENDANT.

STIPULATION AND [PROPOSED] ORDER REGARDING MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AS MODIFIED BY THE COURT

STIPULATION

WHEREAS, on January 11, 2010, Plaintiff Ecological Rights Foundation filed a Complaint for Declaratory and Injunctive Relief and Civil Penalties ("Original Complaint") under Clean Water Act ("CWA") section 505(a)(1), 33 U.S.C. § 1365(a)(1), seeking relief for the alleged unlawful discharge of pollutants from Pacific Gas and Electric Company ("PG&E")'s corporation yards and service centers located throughout Northern California ("the Facilities") into waters of the United States in violation of the CWA. See Docket Doc. No. 1;

WHEREAS, on April 8, 2010, Plaintiff filed a Notice of Motion for Leave to File First Amended Complaint and Memorandum of Points and Authorities in support thereof ("Motion for Leave to File First Amended Complaint"), seeking to provide additional detail on the background statutory law applicable to this case and the specific way in which Plaintiff alleges that PG&E has violated that law at the Facilities;

WHEREAS, on February 9, 2010, Plaintiff served a Notice of Violation and Intent to File Suit Under the CWA and Resource Recover and Conservation Act ("RCRA") ("Notice Letter") on PG&E, the U.S. Environmental Protection Agency, and relevant State agencies as required by the notice provisions of the CWA and RCRA. See CWA section 505(b), 33 U.S.C. § 1365(b); RCRA section 7002(b)(2)(A), 42 U.S.C. 6972 (b)(2)(A);

WHEREAS, pursuant to the notice provisions of RCRA, Plaintiff is required to wait 90 days from the date of service of the Notice Letter before filing suit under RCRA;

WHEREAS, after the expiration of the 90-day notice period, Plaintiff intends to seek leave to file a Second Amended Complaint adding additional claims under RCRA section 7002(a)(1)(B), 42 U.S.C. § 6972 (a)(1)(B);

WHEREAS, prior to and after the filing of the Motion for Leave to File First Amended Complaint, counsel for Plaintiff and counsel for PG&E met and conferred regarding whether PG&E 5 would or would not oppose the Motion for Leave to File First Amended Complaint;

WHEREAS, the parties agreed that PG&E would not oppose the Motion for Leave to File First Amended Complaint provided that Plaintiff would stipulate that PG&E would not be obligated to file an Answer or otherwise plead to the First Amended Complaint because of Plaintiff's intention to soon file a Second Amended Complaint to incorporate new claims under RCRA;

NOW, THEREFORE, having reached an agreement, the parties do hereby stipulate, by and through counsel, that:

1. PG&E has agreed not to oppose the Motion for Leave to File First Amended Complaint;

2. Plaintiff has agreed that PG&E will not be obligated to file an Answer or otherwise plead to the First Amended Complaint;

3. PG&E's Answer or other responsive pleading to the Second Amended Complaint will be due in accordance with the schedule established by the Federal Rules of Civil Procedure.

Dated: April 13, 2010

PROPOSED ORDER

On April 13, 2010, Plaintiff Ecological Rights Foundation and Defendant Pacific Gas & Electric Company filed a Stipulation and Proposed Order Regarding Motion for Leave to File First Amended Complaint ("the Stipulation"). Having considered the stipulation, and good cause appearing, the Court hereby GRANTS the Stipulation and orders as follows:

PG&E will not oppose Plaintiff's Motion for Leave to File First Amended Complaint, filed April 8, 2010. PG&E will not be obligated to file an Answer or otherwise plead to the First Amended Complaint. PG&E's Answer or other responsive pleading to the Second Amended Complaint will be due in accordance with the schedule established by the Federal Rules of Civil Procedure. The pending motion to dismiss is denied as moot, without prejudice to the reassertion of the same or similar arguments in response to the Second Amended Complaint.

IT IS SO ORDERED.

20100414

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