Sierra Club et al v. Johnson

Filing 107

STIPULATION TO AMEND DEADLINE AND ORDER. Signed by Judge Alsup on April 9, 2009. (whalc1, COURT STAFF) (Filed on 4/9/2009)

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JOHN C. CRUDEN Acting Assistant Attorney General Environment & Natural Resources Division ROCHELLE L. RUSSELL (Cal. Bar No. 244992) Attorney, Environmental Defense Section Environment & Natural Resources Division U.S. Department of Justice 301 Howard Street, Suite 1050 San Francisco, CA 94105 Tel: [phone] Fax: [phone] Email: [e-mail] Counsel for Defendants

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

SIERRA CLUB, GREAT BASIN RESOURCE WATCH, AMIGOS BRAVOS, and IDAHO CONSERVATION LEAGUE, Plaintiffs, v. LISA P. JACKSON, Administrator, United States Environmental Protection Agency, and RAY LAHOOD, Secretary, United States Department of Transportation,1/ Defendants, and SUPERFUND SETTLEMENTS PROJECT, RCRA CORRECTIVE ACTION PROJECT, AMERICAN PETROLEUM INSTITUTE, and TREATED WOOD COUNCIL, Defendant-Intervenors.

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Case No. 08-cv-01409 WHA STIPULATION TO AMEND THE MAY 4, 2009 DEADLINE FOR EPA TO PUBLISH A NOTICE OF PRIORITY UNDER CERCLA SECTION 108(b) AND [PROPOSED] ORDER THEREON

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/ Stephen L. Johnson and Mary E. Peters were originally named as the defendants in this case in their official capacities as Administrator of the United States Environmental Protection Agency and Secretary of the Department of Transportation, respectively. Pursuant to Federal Rule of Civil Procedure 25(d), their successors, Lisa P. Jackson and Ray LaHood, are automatically substituted.

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WHEREAS, on March 12, 2008, Plaintiffs Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League brought suit under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 96019675, alleging that Defendants United States Environmental Protection Agency ("EPA") and United States Department of Transportation ("DOT") failed to perform the following alleged nondiscretionary duties under CERCLA Section 108(b), 42 U.S.C. § 9608(b): (1) publish a notice in the Federal Register by December 11, 1983, identifying those classes of facilities for which financial responsibility requirements will be first developed; (2) promulgate financial responsibility requirements beginning no later than December 11, 1985; and (3) implement those financial responsibility requirements as quickly as can reasonably be achieved but in no event later than four years after promulgation, see Dkt. 1; WHEREAS, on May 22, 2008 and September 2, 2008, the Court granted motions to intervene by Defendant-Intervenors American Petroleum Institute, RCRA Corrective Action Project, Superfund Settlements Project, and Treated Wood Council, see Dkts. 34 and 70; WHEREAS, on June 26, 2008, the parties filed a Joint Case Management Statement, wherein the parties proposed to resolve Plaintiffs' claims on cross-motions for summary judgment and agreed that briefing would be limited to the merits of those claims and that, in the event the Court granted Plaintiffs' motion, the parties would enter into private settlement negotiations to try to resolve the remedy (i.e., deadlines for EPA and DOT to take action under CERCLA Section 108(b)), as well as any attorneys' fees issues, see Dkt. 52, at ¶¶ 12, 16; WHEREAS, on August 18, 2008, the Court entered an Order approving the parties' proposed briefing schedule, see Dkt. 68; WHEREAS, on February 25, 2009, after a hearing on the merits of the parties'crossmotions for summary judgment, the Court entered an Order that: (1) granted Defendants' motion with respect to DOT, finding that Plaintiffs lack standing to sue DOT; (2) denied DefendantIntervenors' motion, finding that Plaintiffs have standing to sue EPA; and (3) granted Plaintiffs' motion with respect to the claim that EPA failed to publish a notice by December 11, 1983 identifying the classes of facilities for which financial responsibility requirements will be first
STIPULATION TO AMEND THE MAY 4, 2009 DEADLINE FOR EPA TO PUBLISH A NOTICE OF PRIORITY UNDER CERCLA SECTION 108(b) AND [PROPOSED] ORDER THEREON

Case No. 08-cv-01409 WHA

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developed, as required under CERCLA Section 108(b), concluding that the claim is not timebarred by the six-year statute of limitations period in 28 U.S.C. § 2401(a), see Dkt. 105; WHEREAS, in the February 25, 2009 Order, without any briefing by the parties as to appropriate deadlines and in lieu of the parties' agreement to attempt to negotiate deadlines through private settlement, the Court ordered EPA to publish the CERCLA Section 108(b) notice of priority by May 4, 2009, see Dkt. 105 at p.15; WHEREAS, the Court, in its February 25, 2009 Order, declined to address the merits of the claims regarding EPA's alleged failure to promulgate and implement financial responsibility requirements under CERCLA Section 108(b), holding those issues in abeyance pending EPA's publication of the notice of priority, see Dkt. 105 at p.14; WHEREAS, because publication in the Federal Register is under the control of the Office of the Federal Register, not EPA, and the timing of publication depends, in part, on the volume of other items awaiting publication, EPA seeks to amend the deadline to provide for signature and transmission of the notice of priority to the Office of the Federal Register for publication, see Breen Decl. ¶ 9; WHEREAS, for the reasons set forth in the attached declaration, EPA plans to comply with the Court's February 25, 2009 Order but requires an approximate two-month extension, to July 10, 2009, to identify those classes of facilities for which CERCLA Section 108(b) financial responsibility requirements will be first developed and to transmit a signed notice of such prioritization to the Federal Register for publication, see Breen Decl. ¶¶ 6-9; WHEREAS, the parties do not believe the requested two-month extension will be prejudicial to any of the parties or will unduly delay the Court in taking action on the two remaining issues currently being held in abeyance pending EPA's action on the notice of priority; NOW THEREFORE, pursuant to Local Rules 6-2 and 7-12, the parties, by and through their undersigned counsel, hereby stipulate to modify the May 4, 2009 deadline for EPA to publish the notice of priority under CERCLA Section 108(b) to the following: No later than July 10, 2009, EPA shall identify those classes of facilities for which CERCLA Section 108(b) financial responsibility requirements will be
STIPULATION TO AMEND THE MAY 4, 2009 DEADLINE FOR EPA TO PUBLISH A NOTICE OF PRIORITY UNDER CERCLA SECTION 108(b) AND [PROPOSED] ORDER THEREON

Case No. 08-cv-01409 WHA

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first developed and shall transmit a signed notice of such prioritization to the Federal Register for publication. Upon publication of the notice in the Federal Register, EPA will file a status report informing the Court of the Agency's action. FOR DEFENDANTS: JOHN C. CRUDEN Acting Assistant Attorney General Environment & Natural Resources Division /s/ Rochelle L. Russell ROCHELLE L. RUSSELL United States Department of Justice Environmental Defense Section 301 Howard Street, Suite 1050 San Francisco, CA 94105 [phone] [e-mail] /s/ Jan Hasselman (with permission) JAN HASSELMAN Earthjustice 705 Second Avenue, Suite 203 Seattle, WA 98104 [phone] [e-mail] LISA GOLLIN EVANS Earthjustice 21 Ocean Avenue Marblehead, MA 01945 [phone] [e-mail] FOR DEFENDANT-INTERVENORS: Dated: April 2, 2009 /s/ Michael W. Steinberg (with permission) MICHAEL W. STEINBERG, Pro Hac Vice Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W. Washington, D.C. 20004 [phone] [e-mail]
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PURSUANT TO STIPULATION, IT IS SO ORDERED. 26 27 28 April 9, 2009 Dated: _________________

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STIPULATION TO AMEND THE MAY 4, 2009 DEADLINE FOR EPA TO PUBLISH A NOTICE OF PRIORITY UNDER CERCLA SECTION 108(b) AND [PROPOSED] ORDER THEREON

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__________________________________ lsup WILLIAM ALSUP illiam A Judge W UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2nd day of April, 2009, the foregoing STIPULATION TO AMEND THE MAY 4, 2009 DEADLINE FOR EPA TO PUBLISH A NOTICE OF PRIORITY UNDER CERCLA SECTION 108(b) AND [PROPOSED] ORDER THEREON was electronically filed with the Clerk of the Court and served using the CM/ECF system on all parties of record.

/s/ Rochelle L. Russell ROCHELLE L. RUSSELL

STIPULATION TO AMEND THE MAY 4, 2009 DEADLINE FOR EPA TO PUBLISH A NOTICE OF PRIORITY UNDER CERCLA SECTION 108(b) AND [PROPOSED] ORDER THEREON

Case No. 08-cv-01409 WHA

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