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Ecological Rights Foundation v. Pacific Gas and Electric Co.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


August 23, 2010

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

The opinion of the court was delivered by: Richard Seeborg United States District Judge

STIPULATION AND [PROPOSED] ORDER GRANTING PLAINTIFF LEAVE TO FILE THIRD AMENDED COMPLAINT STIPULATION

WHEREAS, on January 11, 2010, Plaintiff Ecological Rights Foundation filed a Complaint for Declaratory and Injunctive Relief and Civil Penalties 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

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 April 13, 2010, Plaintiff and PG&E filed a Stipulation and Proposed Order Regarding Motion for Leave to File First Amended Complaint ("Stipulation and Proposed Order");

WHEREAS, in the Stipulation and Proposed Order, PG&E agreed not to oppose Plaintiff's then-pending Motion for Leave to File First Amended Complaint and Plaintiff agreed that PG&E would not be obligated to answer or otherwise plead to the First Amended Complaint because of Plaintiff's intention to soon file a Second Amended Complaint;

WHEREAS, on April 14, 2010, the Court granted the Stipulation and Proposed Order, as modified;

WHEREAS, on February 9, 2010, Plaintiff served a Notice of Violation and Intent to File Suit Under the CWA and Resource Recovery 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 was 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, on May 13, 2010, Plaintiff and

Defendant filed a stipulation and proposed order granting Plaintiff leave to file a Second Amended Complaint to add a claim under RCRA section 7002(a)(1)(B), 42 U.S.C. § 6972 (a)(1)(B), and to make certain changes to the factual allegations in support of the CWA claims;

WHEREAS, the stipulation of May 13, 2010 provided that PG&E would not be obligated to file an Answer or other responsive pleading to the Second Amended Complaint due to Plaintiff's intention to soon file a Third Amended Complaint;

WHEREAS, on May 13, 2010, the Court granted the stipulation for leave to file the Second Amended Complaint (Docket Doc. No. 35);

WHEREAS, on April 9, 2010, Plaintiff served a Supplemental Notice of Violation and Intent to File Suit Under the Clean Water Act and Resource Recovery and Conservation Act ("Supplemental Notice Letter"), to identify one additional facility at which Plaintiff alleges that PG&E has violated the CWA and RCRA;

WHEREAS, the 90-day notice period has now expired on the Supplemental Notice Letter, and Plaintiff seeks leave to file a Third Amended Complaint to incorporate the new facility into its pleadings;

NOW, THEREFORE, the parties do hereby stipulate, by and through counsel, that:

1. Plaintiff should be granted leave to amend to file the Third Amended Complaint;

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

Dated: August 5, 2010

On August 5, 2010, Plaintiff Ecological Rights Foundation and Defendant Pacific Gas & Electric Company filed a Stipulation and Proposed Order Granting Plaintiff Leave to File Third Amended Complaint ("the Stipulation"). Having considered the Stipulation, and good cause appearing, the Court hereby GRANTS the Stipulation and orders as follows:

Plaintiff is granted leave to file the Third Amended Complaint, which will be deemed filed on the date it is lodged with the Court. PG&E's Answer or other responsive pleading to the Third Amended Complaint will be due in accordance with the schedule established by the Federal Rules of Civil Procedure.

IT IS SO ORDERED.

20100823

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