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United States v. CEMEX, Inc. - Civil Action No. 09-cv-00019-MSK-MEH, 2009 U.S. Dist. LEXIS 73457 (D. Colo. Aug. 13, 2009)

Rule:

Upon a Joint Motion to Modify, a federal district court may reset the deadlines in a Scheduling Order to accommodate the unified issues of liability and remedy, including mitigation, harm, and penalty due to the complexity of the issues raised.

Facts:

Plaintiff United States sought injunctive relief and the imposition of civil penalties against defendant CEMEX, Inc., for violations of the Clean Air Act and the Colorado State Implementation Plan. In relation to the case, both parties filed a Renewed Joint Motion to Modify the Scheduling Order and asked the federal district court to reset the deadlines to accommodate the unified issues of liability and remedy, including mitigation, harm, and penalty due to the complexity of the issues raised.

Issue:

Should the Renewed Joint Motion to Modify the Scheduling Order be granted?

Answer:

Yes

Conclusion:

Section 113(b) of the Clean Air Act ("CAA"), 42 U.S.C. § 7413(b), authorizes the imposition of a civil penalty of not more than $ 25,000 per day for each violation" of the CAA. Under the Debt Collection Improvement Act of 1996, as implemented by the Civil Monetary Penalties Inflation Rule, 40 C.F.R. Part 19, as amended, penalties may be assessed each day. The magistrate judge recommended the granting of the Renewed Joint Motion to Modify the Scheduling Order. Due to the complexity of the issues raised, the Magistrate believed a schedule providing for trial within approximately two years of filing the action, which the parties' proposed schedule will do, is appropriate and fairly common within this District. The Magistrate noted that the proposed scheduling adjustments surpass the date set for a Final Pretrial Conference before the District Court, which is why the Magistrate recommended that the District Court adopt the proposed deadlines and reset the Final Pretrial Conference as it sees fit.

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