IN THE UNITED STATESDISTRICf COURT
FOR THE NORTHERN DISTRICf OF CALJIlORNIA
2
SAN FRANCISCO BMSION
3
SlBRRA CLUB and )
4
IMPROVING KIDS ENVIRONMENT, ~
Case No.: C 06-5641 pm
l
5
6
v.
7 STEPHEN L.I0HNSON, in his official )
capacity as Administrator of the United )
8
States Environmental Protection Agency, )
9
Defendant. ~
10
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SEITLEMENT AGRUMENT
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WHEREAS, theParties to this Settlement Agreement are Plaintiffs Sierra Club and
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Improving Kids' Environment; Defendant StephenL. Johnson in bis official capacity as
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Administrator of the United States Environmental ProtectionAgency("EPA" or the "Agency"); and
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Intervenor Association of BatteryR.eeyclers, Inc.("ABR");
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WHEREAS, this lawsuitarises :from EPA's denial in July 2006 ofa portion of SiCIIB Club's
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April 2006 Petitionfor administrative actionsunder the ToxicSubstances Control Act ("TSCA")~
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WHEREAS, Sierra Club's Petition requested. among other things. that EPA (1) require
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TSCA Section 8{d} health and safety data:reporting for lead and lead sal~ and (2) issue TSCA
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Section 6(b) qualitycontrol orders regarding the production of toy jewelry;
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WHEREAS, Sierra Club's Petitionalso requested that the ConswnerProduct Safety
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Commission ("cpSC") take certain administrative actions concerning lead in children's toyjewelry;
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WHEREAS, in December2006, CPSCvoted to grant (with modifications) SierraClub's
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request in its Petitionto classify toy jewelry containinglead as a banned hazardous substanee Wlder
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the FederalHazardous SubstancesAct r~FHSA"). and on Jan.uaty 9. 2007, CPSC publishedan
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Advance Notice ofProposedRulemaldng ("ANPR") initiating that rulemak:ing proceeding
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WHEREAS, EPA, Plaintiffsand ABRhave participated in mediationoftbis matter and have
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agreed, subject to the limitationsand conditions set forth herein, to settle this case without protracted
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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 NOWTHEREFORE, the parties hereto agree as follows:
7 1. Withinseven (7) days after the effective date of this Settlement Agreement. as
8 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 described in Paragraph 2(b) have been :raised by Plaintiffs.
19 (b) A statement thatinformation BPA bas reviewed nlises questio~ about the
20 adequacy of qualityconuol measures by companies importing and/ordistributing
21 children's jewelry.
22 3. On or aboutApril30, 2001, EPA will send letters from the DirectoroCtheChemical
23 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
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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 www.epa.govllead.
5 (b) The sentence: "In additionto possibleobHgations underthe Consumer Product Safety
6 Act and the Federal Hazardous Substances Act, personswho ~ proeess or
7 distribute lead in products may alsohave obligations under the ToxicSubstances
8 Control Act."
9 (c) The text of thequestions and 8DS'WeIS numbered 25 and 26 in EPA's TSCASection
10 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 6. Jfthe actions described in Paragraphs 2,3 and 4 ofthis Settlement Agreement
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28 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.
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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 SettlementAgreement.
12 11. Should Sierra Club :filea seeond TSCA Section 21 petition requesting TSCA Section
13 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
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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 15. The Parties may agree to extend any dates in this Settlemcmt Agreement or to
4 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 Anti-Deficiency Act, 31 U.S.C. § 1341. In theevent that sufficientappropriated fimding is not
10 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 date when it bas been fully signed by representatives of all of the parties set forth below. This
25 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
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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
: - as iflhat porty had signed 011 olbor~ .,J
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Dated:April 13. 2007
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1701 TIltonDrive
Silver Sprill& MD 20902
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(317) 442-3973
neltner@fkecoalition.om
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Attorneyfor Plaintiffs
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Dated: April 13.2007
~n~\)~_
BIN
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2020 K Street; N.W.
Washington, DC 20006
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(202)373-6000
Michael.Wigmore@bingbam.com
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;z:~~~
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Dated: April 13. 2007 MAll11N'&. TriBlAUomoy
United States Department of Justice
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Environment andNatural Resources Division
Environmental Defense Section
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P.O. Box 23986
Washington. DC 20026-3986
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(202) 514-4122 (tel)
martin mcdennott@usdQj·oov
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Attorneyfor Defendant
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EPAcontact (for purposes of Paragraph 17)
Mama A. McDermott
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Office of General COlDlSCl
United States Environmental Protection Agen!.;y
2S
Washington. DC 20460
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SETILEMENT AGREBMENT (CASB'NO.: C 06-.5641) -7