Southern California Alliance of POTWs et al., v. United States Environmental Protection Agency et al

Filing 39

STIPULATION and ORDER signed by Chief Judge Morrison C. England, Jr on 2/11/15. Motion Hearing as to 36 MOTION to COMPEL reset for 3/5/2015 at 02:00 PM in Courtroom 7 (MCE) before Chief Judge Morrison C. England Jr. (Manzer, C)

1 BENJAMIN B. WAGNER
United States Attorney
2 CHI SOO KIM
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: [phone]
Facsimile: [phone]
5
SAM HIRSCH
6 Acting Assistant Attorney General
Environment & Natural Resources Division
7 United States Department of Justice
LESLIE M. HILL
8 Environmental Defense Section
601 D Street N.W., Suite 8000
9 Washington D.C. 20004
Telephone [phone]
10 Facsimile [phone]
11 Attorneys for the United States Environmental
Protection Agency and Jared Blumenfeld,
12 Regional Administrator
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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SOUTHERN CALIFORNIA ALLIANCE OF
PUBLICLY OWNED TREATMENT
WORKS, and CENTRAL VALLEY CLEAN
WATER ASSOCIATION,
v.

Plaintiffs,

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; JARED
BLUMENFELD, REGIONAL
ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY, REGION IX; and DOES 1 to 10,

CASE NO. 2:14-cv-01513 MCE-DAD
EPA’S EX PARTE REQUEST AND ORDER
TO CONTINUE PLAINTIFFS’ MOTION TO
COMPEL RE: ADMINISTRATIVE RECORD
[Dkt 36]
Date:
Time:
Place:
Judge:

February 19, 2015
2:00 p.m.
Courtroom 7, 14th Floor
Hon. Morrison C. England

Defendants.
Pursuant to Local Rule 144(c), Defendants United States Environmental Protection Agency and

25 Regional Administrator Jared Blumenfeld (collectively, “EPA”) respectfully request a two (2) week
26 continuance of the hearing on Plaintiffs’ motion to compel Defendants to complete the administrative
27 record [Dkt 36] from February 19, 2015 to March 5, 2015, to be heard concurrently with the parties’
28 pending summary judgment motions [Dkt 25, 30]. EPA requests the continuance to allow it sufficient
Southern California Publicly Owned Treatment Works, et al. v. U.S. EPA, et al., Case No: 2:14-cv-01513 MCE-DAD
U.S. EPA’S EX PARTE REQUEST AND ORDER TO CONTINUE PLAINTIFFS’ MOTION TO COMPEL RE: ADMINISTRATIVE RECORD

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1 time to carefully consider and review Plaintiffs’ motion. Further, because EPA requests continuing
2 Plaintiffs’ motion to the same date for which the parties’ pending summary judgment motion are
3 currently scheduled, there are no concerns regarding the availability of counsel or the parties for March
4 5, 2015.
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To prevent any prejudice to Plaintiffs Southern California Alliance of Publicly Owned Treatment

6 Works (“SCAP”) and Central Valley Clean Water Association (“CVCWA”), EPA requests the briefing
7 schedule below to provide more time for Plaintiffs’ reply than would be provided under Local Rule
8 230(d).1
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- EPA’s response to motion (filing deadline)
- Plaintiffs’ reply (filing deadline)
- Hearing:

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2/17/2015
2/26/2015
3/5/2015

A stipulation extending time unfortunately could not be reached, and EPA informed Plaintiffs

13 that it would be filing this ex parte request. See L.R. 144(c). Declaration of Chi Soo Kim, ¶ 2. Counsel
14 for Plaintiffs declined EPA’s request that the parties enter a stipulation, stating that “Plaintiffs had
15 considered noticing the motion to be heard together with the cross-motions, but opted for the earlier
16 hearing date in order for the record to be prepared and available by the time of the hearing on the
17 merits.” Id. Because Plaintiffs filed and noticed their motion to compel two (2) weeks before the
18 parties’ dispositive motion hearing, it is unlikely that the administrative record issues would have been
19 resolved by the Court before the summary judgment hearing two weeks later.
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Throughout this litigation, EPA counsel has been cooperative and worked professionally with

21 counsel for Plaintiffs, and counsel have a positive working relationship. Kim Decl., ¶ 3. Though not
22 required to do so, EPA proactively proposed to provide Plaintiffs with a draft index of the administrative
23 record, confer with Plaintiffs regarding the administrative record, and jointly agree and propose to the
24 Court a schedule for the administrative record and parties’ dispositive motions. Kim Decl., ¶ 3; see Dkt
25 18, 19, 21.2 The purpose of meeting and conferring regarding the administrative record and jointly
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EPA’s proposed briefing schedule provides Plaintiffs with 10 days, rather than 7 days, after
the filing of EPA’s response for Plaintiffs’ reply.
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EPA counsel also took the laboring oar by drafting and filing all of the parties’ joint filings
and requests, again taking a proactive and cooperative role to work with Plaintiffs. Kim Decl., ¶ 3; see
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Southern California Publicly Owned Treatment Works, et al. v. U.S. EPA, et al., Case No: 2:14-cv-01513 MCE-DAD
U.S. EPA’S EX PARTE REQUEST AND ORDER TO CONTINUE PLAINTIFFS’ MOTION TO COMPEL RE: ADMINISTRATIVE RECORD

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1 agreeing to and proposing this schedule was to resolve issues regarding the administrative record early.
2 Kim Decl., ¶ 3. The parties met and conferred multiple times over approximately four (4) weeks
3 regarding the administrative record. Kim Decl., ¶ 3. The administrative record was lodged on October
4 15, 2014. [Dkt 22, 23] Plaintiffs did not file their motion to compel regarding the administrative record
5 until over three (3) months later on January 20, 2014, concurrently with Plaintiffs’ last brief on the
6 parties’ motions for summary judgment and after EPA had already filed its opposition and cross-motion
7 one month earlier. [Dkt 36, 30] Plaintiffs also did not provide EPA with any notice that it would be
8 filing this motion to compel, nor did the parties’ jointly proposed briefing schedule contemplate or
9 provide any additional time for EPA to respond to such a motion during the time already allotted for
10 EPA’s reply brief. Kim Decl., ¶ 2. EPA does not assert that Plaintiffs are prohibited from challenging
11 the administrative record, but merely requests a brief continuance to allow it sufficient time to carefully
12 consider and review Plaintiffs’ motion.
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Dated: February 4, 2015

Respectfully submitted,
BENJAMIN B. WAGNER
United States Attorney

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/s/ Chi Soo Kim
CHI SOO KIM
Assistant United States Attorney

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18 Dated: February 4, 2015
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/s/ Leslie M. Hill
LESLIE M. HILL
Environmental Defense Section

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ORDER

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IT IS SO ORDERED.
Dated: February 11, 2015

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Dkt 18, 19, 21. The Court approved the parties’ stipulated schedule. [Dkt 21]
Southern California Publicly Owned Treatment Works, et al. v. U.S. EPA, et al., Case No: 2:14-cv-01513 MCE-DAD
U.S. EPA’S EX PARTE REQUEST AND ORDER TO CONTINUE PLAINTIFFS’ MOTION TO COMPEL RE: ADMINISTRATIVE RECORD

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