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Sierra Club v. Jackson

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION


September 30, 2010

SIERRA CLUB, PLAINTIFF,
v.
LISA P. JACKSON, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, IN HER OFFICIAL CAPACITY, DEFENDANT.

The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

PLAINTIFF'S AND DEFENDANT EPA'S STIPULATION TO REFER CERTAIN MATTERS TO A MAGISTRATE JUDGE FOR FINDINGS AND RECOMMENDATIONS AND [PROPOSED] ORDER THEREON

Plaintiff's and Defendant EPA's Stipulation To Refer Certain Matters to a Magistrate Judge

Defendant Lisa P. Jackson, Administrator of the United States Environmental Protection Agency 112(f)(2) of the Clean Air Act ("CAA"), 42 U.S.C. §§ 7412(d)(6) and (f)(2), concerning the review and revision of the National Emission Standards for Hazardous Air Pollutants

WHEREAS, concurrent with the filing of this Stipulation, Plaintiff and EPA have moved the Court to enter a proposed Consent Decree, that will, if entered, fully resolve Plaintiff's claims against EPA in this action, except as to the issues of costs of litigation and attorney fees;

Administrator must sign certain proposed and final actions for each of the 28 source categories pursuant to CAA sections 112(d)(6) and 112(f)(2); provides for negotiation of claims for costs of litigation, including reasonable attorney fees; and provides procedures for enforcement of and to resolve disputes regarding the proposed Consent Decree, among other things;

retain jurisdiction over this matter to enforce the terms of the Consent Decree and to consider any requests for costs of litigation, including attorney fees;

WHEREAS, on July 14, 2010, EPA published the proposed Consent Decree for public comment in the Federal Register, 75 Fed. Reg. 40,827, as required by CAA section 113(g), 42

WHEREAS, upon the Court's request, Plaintiff and EPA have conferred and agree that referral to a Magistrate Judge to make proposed findings of fact and recommendations to the Court concerning matters related to the enforcement of the terms of the Consent Decree, including requests for costs of litigation and attorney fees, is appropriate under Local Rule 72,

WHEREAS, as set forth below, such referral under Local Rule 72, Fed. R. Civ. P. 72(b), and 28 U.S.C. § 636(b)(3) would preserve the Court's jurisdiction to review the Magistrate Judge's findings and recommendations on any matters subject to dispute; the Magistrate Judge's

WHEREAS, on January 13, 2009, Plaintiff Sierra Club filed a complaint alleging that ("EPA"), failed to meet certain alleged non-discretionary duties under sections 112(d)(6) and ("NESHAPs") and the promulgation of residual risk standards for 28 source categories;

WHEREAS, the proposed Consent Decree establishes deadlines by which the EPA WHEREAS, paragraph 34 of the proposed Consent Decree provides that this Court shall U.S.C. § 7413(g), and accepted comment through August 13, 2010; Fed. R. Civ. P. 72(b), and 28 U.S.C. § 636(b)(3);

Plaintiff's and Defendant EPA's Stipulation To Refer Certain Matters to a Magistrate Judge decisions would be recommended, not final; any party would be able to object to the Magistrate Judge's findings and recommendations; and the Court would review de novo any portion of the Magistrate Judge's findings and recommendations to which a party objected specifically in writing;

purposes to a Magistrate Judge, but not to reassignment in full; Intervenors, who have stated that their clients do not oppose the Stipulation as set forth below;

HEREBY AGREE AND STIPULATE as follows, subject to approval of the Court: requests for costs of litigation and attorney fees, shall be referred to a Magistrate Judge appointed by the Court for recommendation.

(2) The Magistrate Judge shall conduct hearings, including evidentiary hearings, and submit proposed findings and recommendations to the Court, for rulings on any motions related to enforcement of the terms of the Consent Decree, including costs of litigation and attorney fees.

(3) Within 14 days after being served a copy of the Magistrate Judge's proposed findings and recommendations, any party may file an objection to such proposed findings and recommendations, pursuant to the procedures set forth in Local Rule 72-3. A party may request any such objection be set for hearing. A party may respond to any such objection within 14 days after being served a copy.

(4) The Court will make a de novo determination as to the portions of the Magistrate Judge's findings and recommendations to which objection is made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The Court may also receive further evidence or recommit the matter to the Magistrate Judge with instructions.

WHEREAS, Plaintiff and EPA consent to referral of this case for the above-described

WHEREAS, Plaintiff and EPA have met and conferred with counsel for Defendant- NOW THEREFORE, Plaintiff and EPA, by and through the undersigned counsel, (1) Motions related to the enforcement of the terms of the Consent Decree, including

(5) In the absence of any timely objections, the Court may enter judgment in accordance with the Magistrate Judge's findings and recommendations.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

20100930

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