settlement

IN THE UNITED STATESDISTRICf COURT FOR THE NORTHERN DISTRICf OF CALJIlORNIA 2 3 SAN FRANCISCO BMSION SlBRRA CLUB and 4 IMPROVING KIDS ENVIRONMENT, 5 ) ~ 6 7 8 v. STEPHEN L.I0HNSON, in his official ) capacity as Administrator of the United ) States Environmental Protection Agency, ) Defendant. l ~ Case No.: C 06-5641 pm 9 10 11 ------------) SEITLEMENT AGRUMENT WHEREAS, theParties to this Settlement Agreement are Plaintiffs Sierra Club and 12 13· Improving Kids' Environment; Defendant StephenL. Johnson in bis official capacity as Administrator of the United States Environmental ProtectionAgency("EPA" or the "Agency"); and 14 Intervenor Association of BatteryR.eeyclers, Inc.("ABR"); 15 16 . 17 18 WHEREAS, this lawsuitarises :from EPA's denial in July 2006 ofa portion of SiCIIB Club's April 2006 Petitionfor administrative actionsunder the ToxicSubstances Control Act ("TSCA")~ WHEREAS, Sierra Club's Petition requested. among other things. that EPA (1) require 19 TSCA Section 8{d} health and safety data:reporting for lead and lead sal~ and (2) issue TSCA Section 6(b) qualitycontrol orders regarding the production of toy jewelry; 20 21 WHEREAS, Sierra Club's Petitionalso requested that the ConswnerProduct Safety Commission ("cpSC") take certain administrative actions concerning lead in children's toyjewelry; WHEREAS, in December2006, CPSCvoted to grant (with modifications) SierraClub's 22 23 24 25 request in its Petitionto classify toy jewelry containinglead as a banned hazardous substanee Wlder the FederalHazardous SubstancesAct r~FHSA"). and on Jan.uaty 9. 2007, CPSC publishedan 26 27 Advance Notice ofProposedRulemaldng ("ANPR") initiating that rulemak:ing proceeding WHEREAS, EPA, Plaintiffsand ABRhave participated in mediationoftbis matter and have agreed, subject to the limitationsand conditions set forth herein, to settle this case without protracted 28 1 litigation and without any adjudication or admission of fact or Jaw; 2 WHEREAS on February 22, 2001, uponbeing apprised by theperties that they had 3 tentatively agreed. on the tenDs of a settlement.. the Courtentered an order effectively staying this 4 litigation untilJuly 5, 2001; and 5 WHEREAS. settJeme.nt of all issues raised in this case is in the public in1erest: 6 7 8 NOWTHEREFORE, the parties hereto agree as follows: 1. Withinseven (7) days after the effective date of this Settlement Agreement. as provided in Paragraph 19. the Partiessball file a joint status report and stay motion with the Court 9 notifying it of this Settlement Agreement and requesting thatthis ease be further stayed in all 10 respects pending implementation of the terms of this Settlement Agreement. In said joint stay 11 motion, the parties agree to request that the Court retain jurisdictionover this caseuntil June 26, 12 2008,or until partieshave filed a joint stipulation of dismissalorlhis case,whichever is earlier. As 13 described in Paragraphs 2-6, dismissal may occuras earlyas June 2001. 14 2. On or about April30, 2007,EPA will send a letter from the Directorof the National 15 Program Chemicals Divisionto an appropriate CPSC official. The letter will contain substantially 16 the following: 17 (a) A statement that the questions about the adequacy ofqualitycontrol measures 18 19 described in Paragraph 2(b) have been :raised by Plaintiffs. (b) A statement thatinformation BPA bas reviewed nlises questio~ about the 20 21 adequacy of qualityconuol measures by companies importing and/ordistributing children's jewelry. 22 23 3. On or aboutApril30, 2001, EPA will send letters from the DirectoroCtheChemical Control Division to no more than 120 companies. Plaintiffswill have the opportunity to provide to 24 EPA for its consideration, by April 16,2001,the names and addressesof potential recipients of said 25 letters. The partiesagree that appropriate recipients may includecompanies that have been subject to 26 a recall by CPSC relating to leadin consumer productsand/or that enteredinto the jeweby settlement 27 . 28 SETI'LEMENT AOREEMENT(CASENO.:CIJ6..S64I) -2­ 1 in Case No. RG04-162075 with the StateofCalifomiaon or aboutFebruary 21,2006. The letters to 2 be sent by EPA will containsubstantially the following: 3 (a) A reference to potential lead risksfrom consumer produetswitha link to 4 5 6 7 8 (b) www.epa.govllead. The sentence: "In additionto possibleobHgations underthe Consumer Product Safety Act and the Federal Hazardous Substances Act, personswho ~ proeess or distribute lead in products may alsohave obligations under the ToxicSubstances Control Act." (c) 9 10 The text of thequestions and 8DS'WeIS numbered 25 and 26 in EPA's TSCASection 8(e) guidance found at 11 www.qpa.govloRPfltsca8elpubslfreguent\yaskedguestion!!fBgs.htm#healtb2. 12 Additionally, EPA will add a link on EPA·s website to the letterdescribed in this Paragraph. 13 4. The Sixtieth Report of the TSCA Interagency Testing Committee ("TrC'") is expected 14 in May2007. EPAwill recommend a listingfor inclusionin the Report to support a TSCASection 15 Sed) Rule regarding lead and lead compounds in consumer products intendedfor use by children. 16 EPA's recommendation will specify,in substance. that the required information will be limitedto 17 unpublished health and safetystudiesthat relate to the lead contentofconsumer products that are 18 "intended for use by children" (as that term is defined at 40 CFR 710.43)excluding children·smetal 19 jewelry; and/or studies that assess children's exposure to leadftom such products [mcluding studies 20 ofbioavaiJability). With regard to grade or purity requireoleats, studiesshowing any measurable 21 lead content in such products would be required. The parties recognize. that TSCASection 8(d) rules 22 arisingfromITC listings do not require submissions from processors. 23 5. EPA expects to be in the positionto make the recommendation described in Paragraph 4. and 24 the parties expectthat the Sixtieth rrc Report wUllist a substantially similar chemical categoryto 25 that described in Paragraph 4. 26 27 28 6. Jfthe actions described in Paragraphs 2,3 and 4 ofthis Settlement Agreement SE111J3MENTAGREEMENT(CASENO.:C06-S641) -3­ 1 substantially occur, Plaintiffs,EPA and ABR shall, within ten (10) days of being notified that the 2 SixtiethITC Report bas been deJiveIed to the Administrator andthat said report lists a substantially 3 similar chemical category to that descn'bed in Paragraph 4,1ile a joint stipulation ofdismissal of this. 4 case, with prejudi~ in accordance with FederalRule ofCivil Procedure 41(a)(l). Thejoint 5 stipulationofdismissal shallstate thateach party bears it own attorneys' fees andcosts.exceptas 6 otherwise specifieally provided hereinin Paragraph 12. 7 7. If the rrc's Sixtieth Report does not list a substantiallysimilarchemical category to 8 thatdescribed in Paragraph 4, then EPAmayrecommend the listing described in Paragraph 4 to the 9 ITC for its Sixty-firstReport, expected in November2007. Thereafter, in the event 1bat the ITC's 10 Sixty-firstReport lists a substantially similar ehemicalcategoryto that described above in Paragraph 11 4. Plaintiffs agree to dismiss this case, with prejudice. in accordance with FedemlRule of Civil 12 Procedure41(a)(I), within ten (10) days ofbeing notified that such Report has been delivered to the 13 Administrator, provided that EPA has also satisfied its commi1meDts under Paragraphs2 and3 of 14 this Settlement Agreement. The joint stipulationofdismissalshall statethat each party bears it own 15 attorneys' fees and costs,exceptas otherwise speci&alJy provided hereinin Paragraph 12. 16 8. In the event that neitherthe lTC's Sixtieth Report nor the ITC's Sixty-firstReport 17 lists a substantially similar chemical categoryto that described in Paragraph4, EPA agrees to 18 propose, by June 2, 2008, a TSCA Section Sed) rule to obtain use and exposureinformation 19 substantially similar to that described in Paragraph 4. The partiesrecognize that minorchanges to 20 the substanceofthe proposed rule mayoccuras a resuh orebe roIemaldng process. 21 9. In the event that Paragraph8 becomesoperative,Plaintiffs agree to dismiss this case, 22 with prejudice, in accordance with FederalRule ofCivil Procedure 41(a)(11 withinten (10) days of 23 EPA's issuanceof a proposedrule, providedthat EPA has alsosatisfied its commitments under 24 Paragraphs 2 and 3 ofthis SettlementAgreement. The joint stipulationofdismissalshall state that 25 each party bearsit own attorneys' fees and costs,exceptas otherwise speci1ic:a1ly provided hereinin 26 Paragraph 12. 27 28 SE'ITLEMENT AOREafENT (CASE NO.:C 06-5641) 1 10. IfEPA does not take the actions substantially as set forth in Paragraphs 2, 3. and 4 (or 2 7 or 8. ifeitherofsaid Paragraphs becomes operative) ofthis SettlementAgreement, then Plaintiffs' 3 sole remedy under this Settlement Agreement sball be to ask the Courtto lift the stay of proceedings 4 then in effect. Plain1iffs agree to provide EPA ten (10) days notice prior to SMking to lift any such 5 stay of proceedings. EPA reservesits right to oppose any such motion to lift a stay ofproceedings, 6 but EPA agrees that the grounds for any such opposition win be limited to the issues ofwhcther EPA 7 in fact met its commitments underParagraphs2, 3, and 4 (or 8, ifsaid Pamgraphbecomesoperative) 8 of this Settlement Agreementandwhetherany motion to reactivate the litigation has been reasonably 9 and timelyfiled. The partiesagree that there are no otherremediesavailableunderthis Settlement 10 Agreement and specificallyagree thatcontemptofcourt is not an available remedy under this 11 12 13 SettlementAgreement. 11. Should Sierra Club :filea seeond TSCA Section 21 petition requesting TSCA Section 6(b) orders related to lead in toyjewelry, EPA agrees not to deny such a petitionon the basis that it is 14 repetitive. EPA reservesthe right to deny such a petition,however,on any other appropriate basis, 15 including for the same reasons thatthe request for TSCA Section 6(b) orders in Sierra Club's April 16 2006 petition was denied. 17 12. EPA agrees to pay to Plaintiffsas full settlement of all claims for attorneys' fees and 18 costs of litigation(includingbut not 1imited to any fees and costs incurred by Plaintiffsprior to the 19 filing of thisaction) the sumof Twenty-Five Thousand Donars ($25.000) within a reasonable time 20 after a joint stipulationof dismissal oftbis case. with prejudice. is filed with theCourt. and the case 21 is dismissedpursuant thereto. 22 13. Nothing in this Settlement Agreement shaD be construedto limit or modify the 23 discretion accordedto EPA by TSCA or by general principlesofadminis1ndive law. 24 14. Nothing in this Settlement Agreement shall be consIrued to limit or modifyEPA's 25 discretionto alter. amendor revise any regulations. gui~ or intel:pretation EPA may issue in 26 accordance with or on mattersrelated to this Settlement Agreement:fi:om time to time or to 27 28 SE'm.EMENT AOREEMENT (CASB NO.:C 1J6.5(41) -5­ 1 promulgate or issuesuperseding regulations, guidance, or interpretati~ or to limit any rightthat 2 Plaintiffsmay have to seekjudicial review in a subsequent caseof any such actionby EPA 3 4 15. The Parties may agree to extend any dates in this Settlemcmt Agreement or to otherwise modifY this Settlement Agreement by written agreement (including counterparts) executed 5 by counsel fortheparties. 6 16. Thecommitments by EPA in this Settlement Agreement are subject to the 7 availability of appropriated funds. Noprovision ofthis Settlement Agreement shall be inteJpteted as 8 or constitute a commitment or requirement thatEPAobligate or pay funds in oontravention'ofthe 9 10 Anti-Deficiency Act, 31 U.S.C. § 1341. In theevent that sufficientappropriated fimding is not available, the parties maymodify the Settlement Agreemen~ pursuant to Paragraph 1St to adjust any 11 commitments herein. 12 17. Any notice required or madewith respect to this Settlement Agreement sbaIl be in 13 writing. shall be served by overnight mailor electronic JJ18i4 and sball be effective upon receipt For 14 anymatterrelating to this Settlement Agreemen~ the contact persons are the signatories listedbelow 15 and the EPAcontact person as listedbelowt unless a difletent contact person is designated by a 16 party. 11 18. It is expressly understood and agreed tba1 this Settlement Agreement wasjointly 18 drafted by the parties. Accordingly. the parties agt= that any and aU rulesof construction to the 19 effect that ambiguityis construedagainst the drafting party sball be inapplicablein any dispute 20 concerning the termst meaning, or interpretation of this Settlement Agreement. 21 19. The undersigned representative of each party certifies that belsbe is fully authorized 22 by the party belshe represents to bindtherepJeSeIltative partyto the terms of this Settlement 23 Agreement This Settlement Agreement will be deemed to be executed and sbaIl be eft'eetive on the 24 25 date when it bas been fully signed by representatives of all of the parties set forth below. This SettlementAgreement may be executed in any number of counterpart ori~ eacb of which shall 26 be deemed to constitute an original Settlement Agreemen~ and alI of which shall constitute one 21 28 SB'f'I1.BMBNT AGREEMENT (CASENO.:C 06-5641) -6­ 1 Settlement Agreement. The executionof one eounterpart by any party shall havethe same force and : 4 Dated:April 13. 2007 5 6 1701 TIltonDrive Silver Sprill& MD 20902 (317) 442-3973 neltner@fkecoalition.om Attorneyfor Plaintiffs as iflhat porty had signed 011 olbor~ .,J 7 8 9 10 Dated: April 13.2007 11 ~n~\)~_ BIN 2020 K Street; N.W. Washington, DC 20006 (202)373-6000 Michael.Wigmore@bingbam.com 12 13 14 15 16 Dated: April 13. 2007 17 18 19 ;z:~~~ Attorneyfor Defendant MAll11N'&. TriBlAUomoy United States Department of Justice Environment andNatural Resources Division Environmental Defense Section P.O. Box 23986 Washington. DC 20026-3986 (202) 514-4122 (tel) martin mcdennott@usdQj·oov 20 21 22 23 24 2S 26 27 28 SETILEMENT AGREBMENT (CASB'NO.: C 06-.5641) EPAcontact (for purposes of Paragraph 17) Mama A. McDermott Office of General COlDlSCl United States Environmental Protection Agen!.;y Washington. DC 20460 -7­