United States of America v. Lowe's Home Centers, LLC

Filing 10

ORDER GRANTING the USA's unopposed motion to enter consent decree (Doc. 8 ). The Court DIRECTS the Clerk of Court to enter the proposed consent decree (Doc. [8-1]). Signed by Judge J. Phil Gilbert on 08/29/14. (ajr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case No. 14-cv-449-JPG-SCW

LOWE’S HOME CENTERS, LLC, formerly
known as Lowe’s Home Centers, Inc.,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the plaintiff United States of America’s (“USA”)
unopposed motion to enter consent decree (Doc. 8). On August 19, 2014, the Court held a
hearing on the motion. For the following reasons, the Court grants the motion.
1. Background
This action was brought by the USA at the request of the Administrator of the United
States Environmental Protection Agency (“EPA”) for violation of sections 402(c), 406(b), and
407 of Title IV of the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §§ 2682(c), 2686(b)
and 2687, and the regulations promulgated thereunder, codified at 40 C.F.R. Part 745, Subpart E
(“Residential Property Renovation Rule” or “RRP Rule”). The RRP’s purpose is to reduce the
risk of lead exposure during the renovation of housing of pre-1978 structures by informing the
occupants of lead-based paint hazards, requiring training and certification prior to renovations,
and complying with certain work practices for renovations in certain structures.
The USA alleged in its complaint that Defendant Lowe’s Home Centers, LLC, (“Lowe’s)
violated the foregoing provisions by (1) failing to retain and provide to the EPA upon request
certain records as required as set forth in 40 C.F.R. § 745.84(a)(1) (proof pamphlet was
provided), 40 C.F.R. § 745.86(b)(1) (documentation of lead test kit use and results), 40 C.F.R.

§ 745.86(b)(6) (documentation that certified renovator was assigned), 40 C.F.R. § 745.86(b)(6)
(certification of compliance documentation), 40 C.F.R § 745.86(b)(6)(i) (on the job training for
workers), 40 C.F.R. § 745.86(b)(6)(v) (documentation of compliance with work practice
standards), and 40 C.F.R. § 745.86(b)(6)(viii) (documentations of post-cleaning verification);
and (2) failing to comply with work practice standards set forth in 40 C.F.R.
§ 745.85(a)(2)(ii)(C) (requiring plastic sheeting on floors in work area) and 40 C.F.R.
§ 745.85(a)(5) (cleaning work area). The USA seeks a declaratory judgment finding that Lowe’s
failed to comply with TSCA and its implementing regulations and an order requiring Lowe’s to
comply with TSCA and its implementing regulation
After an extensive negotiation process, the parties came to the agreement currently under
consideration. On April 18, 2014, the USA filed its notice of lodging consent decree. Notice of
lodging of the consent decree was published in the Federal Register on April 24, 2014 (79 Fed.
Reg. 22, 836). The public comment period expired and the USA reported that it received no
comments on the proposed consent decree. The Court has received no response to the USA’s
motion to enter the consent decree and will consider approval of the consent decree.
2. Analysis
Approval of a consent decree is committed to the discretion of the district court. Madison
Cnty. Jail Inmates v. Thompson, 773 F.2d 834, 845 (7th Cir. 1985). In reviewing a consent
decree, the district court pays deference to the expertise of the agency and the policy encouraging
settlement. United States v. George A. Whiting Paper Co., 644 F.3d 368, 372 (7th Cir. 2011).
As such, a presumption in favor of approving the consent decree arises. Donovan v. Robbins,
752 F.2d 1170, 1177 (7th Cir. 1985). Accordingly, this Court “must approve a consent decree if
it is reasonable, consistent with [TSCA]’s goals, and substantively and procedurally fair.”
George A. Whiting Paper Co., 644 F.3d at 372.
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a. Procedural Fairness
A consent decree is procedurally fair if the negotiations in reaching it were open and at
arms-length. In re Tutu Water Wells CERCLA Litig., 326 F.3d 201, 207 (3d Cir. 2003); see also
United States v. Cannons Eng’g Corp., 899 F.2d 79, 86 (1st Cir. 1990) (a court determines
procedural fairness by examining “the candor, openness, and bargaining balance ”). Here, both
parties are represented by experienced counsel, and there is nothing suggesting this consent
decree was reached through anything but a procedurally fair negotiation process. As such, based
on the representations both in the filings and in the motion hearing, the Court finds that the
instant consent decree was the result of a procedurally fair process.
b. Substantive Fairness
A consent decree is substantively fair if it involves “corrective justice and accountability:
a party should bear the cost of the harm for which it is legally responsible.” Cannons, 899 F.2d
at 87. Procedural fairness is relevant to the inquiry because “[t]o the extent that the process was
fair and full of adversarial vigor, the results come before the court with a much greater assurance
of substantive fairness.” Id. at 87, n.4.
The Court finds the instant consent decree substantively fair because it contains a
significant civil penalty for the alleged noncompliance, requires Lowe’s to take steps to comply
with TSCA in the future, and includes an injunctive protocol on future renovation projects. The
Court has no reason to believe the process was substantively unfair.
c. Reasonableness
Considering a consent decree’s reasonableness is a “multifaceted exercise.” Id. at 89.
Reasonableness factors include: (1) “the decree’s likely efficaciousness as a vehicle for cleansing
the environment”; (2) “whether the settlement satisfactorily compensates the public for the actual

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(and anticipated) costs of remedial and response measures”; and (3) “the relative strength of the
parties’ litigating positions.” Id. at 89-90.
The reasons this Court finds the consent decree substantively fair also support the
reasonableness of the agreement. Thus, based on the representations in the filings and at the
motion hearing, this Court finds the consent decree to be reasonable.
d. Consistency with TSCA
TSCA was enacted to address the “unreasonable risk of injury to health or the
environment” caused by chemical substances. 15 U.S.C. § 2601. This consent decree is
consistent with that goal. It is further consistent with TSCA’s goals in that it avoids expensive
litigation.
3. Conclusions
For the foregoing reasons, the Court GRANTS the USA’s unopposed motion to enter
consent decree (Doc. 8). The Court DIRECTS the Clerk of Court to enter the proposed consent
decree (Doc. 8-1). Because the consent decree resolves all pending claims between the parties,
once the consent decree is entered, this case should be closed.
IT IS SO ORDERED.
DATED: August 29, 2014
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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