Case: 1:16-cv-09302 Document #: 1 Filed: 09/28/16 Page 1 of 8 PageID #:1
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No.
)
SEARS HOME IMPROVEMENT )
PRODUCTS, INC. )
)
Defendant. )
COMPLAINT
The United States of America, by and through the undersigned attorneys, by authority of
the Attorney General and at the request of the Administrator of the United States Environmental
Protection Agency (“EPA”), alleges as follows:
NATURE OF ACTION
1. This is a civil action brought against Sears Home Improvement Products, Inc.
(“SHIP” or “Defendant”) for violations 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 Rule is intended to ensure that owners
and occupants of target housing and child-occupied facilities receive information on lead-based
paint hazards before renovations begin, that individuals performing such renovations are
properly trained and certified, and that specified work practices are followed during the
renovations to reduce the potential for lead-based paint exposure.
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2. The United States seeks an injunction ordering Defendant to comply with TSCA
and its implementing regulations.
JURISDICTION AND VENUE
3. This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. §§ 1331, 1345 and 1355; Section 17 of TSCA, 15 U.S.C. § 2616; and over the parties to
this action.
4. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (c)
and 1395(a), because the Defendant resides in the Northern District of Illinois.
DEFENDANT
5. Defendant is a Florida corporation located at 1024 Florida Central Parkway
Longwood, Florida 32750, registered to do business in the State of Illinois. Defendant is part of
the Sears Home Services division, within Sears Holdings Corporation. Defendant has 58 district
offices and does business in 45 states, including Illinois. Defendant, through its network of
third-party contractors, has performed numerous compensated renovations of pre-1978 housing
in the United States, including renovations in buildings located in the Northern District of
Illinois.
STATUTORY AND REGULATORY BACKGROUND
6. In 1992, Congress enacted the Residential Lead-Based Paint Hazard Reduction
Act, Pub. L. 102-550 (October 28, 1992; 106 Stat. 3910), also referred to as Title X of the
Housing and Community Development Act of 1992. This law amended TSCA by adding a new
Title IV, entitled “Lead Exposure Reduction.”
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7. EPA has promulgated regulations to implement Title IV of TSCA. The
Residential Property Renovation Rule (often referred to as the “RRP Rule”) is codified at 40
C.F.R. Part 745, Subpart E. The purpose of the rule is to reduce the risk of lead exposure that
can occur during property renovations by ensuring that owners and occupants of pre-1978
housing are informed of lead-based paint hazards before renovations begin and by establishing
training and certification requirements and work practice standards for certain renovations
performed for compensation in target housing and in child-occupied facilities.
8. The RRP Rule requires renovators or firms that perform renovations of pre-1978
housing for compensation to provide a lead-hazard information pamphlet entitled “Renovate
Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools” to
the owner and occupant of such housing prior to commencing the renovation. 40 C.F.R.
§ 745.81(b). Among other things, the pamphlet describes “the risks of lead exposure for children
under 6 years of age, pregnant women, women of childbearing age, persons involved in home
renovation, and others residing in a dwelling with lead-based paint hazards; [and] describe the
risks of renovation in a dwelling with lead-based paint hazards . . . .”
9. The RRP Rule requires that all renovations for compensation must be performed
by certified firms. 40 C.F.R. § 745.89. In addition, each renovation project covered by the RRP
Rule must be performed and/or directed by an individual who has become a certified renovator
by successfully completing renovator training from an accredited training provider. 40 C.F.R.
§ 745.90(a). The certified renovator is responsible for ensuring compliance with the work
practice standards set forth in the regulations and must perform or direct certain critical tasks
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during the renovation, such as posting warning signs, establishing containment of the work area,
and cleaning the work area after the renovation. 40 C.F.R. § 745.90(b).
10. The RRP Rule requires firms performing renovation activities to keep certain
records. Among the recordkeeping requirements are the following:
40 C.F.R. § 745.84(a)(1) provides that: “No more than 60 days before beginning
renovation activities in any residential dwelling unit of target housing, the firm
performing the renovation must (i) obtain, from the owner, a written
acknowledgment that the owner has received the pamphlet or ii) obtain a
certificate of mailing at least 7 days prior to the renovation.”
40 C.F.R. § 745.86(b)(6) provides that certain records must be retained, including:
“Documentation of compliance with the requirements of § 745.85, including
documentation that a certified renovator was assigned to the project, that the
certified renovator provided on-the-job training for workers used on the project,
that the certified renovator performed or directed workers who performed all of
the tasks described in § 745.85(a), and that the certified renovator performed the
post-renovation cleaning verification described in § 745.85(b).”
40 C.F.R. § 745.87(b) provides that failure to establish and maintain records or to
make available or permit access to or copying of records, as required by this
subpart, is a violation of Sections 15 and 409 of TSCA (15 U.S.C. §§ 2614 and
2689).
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11. Under 40 C.F.R. § 745.84 and § 745.86, compensated renovators are required to
provide a lead hazard information pamphlet to the owner and occupant of pre-1978 housing no
more than 60 days prior to beginning renovation activities, and obtain from the owner a written
acknowledgment, and/or obtain a certificate of mailing at least 7 days prior to renovation; and
retain and make available to EPA, if requested, all records necessary to demonstrate compliance
with 40 C.F.R. Part 745, Subpt. E, for a period of 3 years following completion of the renovation
activities in pre-1978 housing.
12. Violation of a rule issued under Title IV of TSCA is a prohibited act under
Section 409 of TSCA, 15 U.S.C. § 2689.
13. Section 17(a) of TSCA, 15 U.S.C. § 2616(a), provides district courts jurisdiction
to restrain any violation of Section 409 of TSCA, 15 U.S.C. § 2689.
CLAIMS FOR RELIEF
14. The foregoing allegations are re-alleged and incorporated by reference.
15. Defendant is a “person” and a “firm” within the meaning of 40 C.F.R. § 745.83.
16. Defendant violated Sections 402(c), 406(b), and 407 of TSCA and its
implementing regulations by:
a. Failing to retain for a period of 3 years following completion of the renovation
activities, and failing to make available to EPA when requested, all records necessary to
demonstrate compliance with 40 C.F.R. § 745.84(a)(1) (proof that pamphlet was provided) at
compensated renovations in Chico, CA (Montclair Drive) and Richmond, CA (26
th
Street);
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b. Failing to provide documentation required by 40 C.F.R. § 745.86(b)(6)
(documentation that certified renovator was assigned; certification of compliance documentation;
on the job training for workers; documentation of compliance with work practice standards;
and/or documentation of post-cleaning verification) at the 71 compensated renovations in the
following cities: Alameda, CA (Haight Avenue; San Antonio Avenue); Anaheim, CA (West
Janeen Way; South Kennmore Street; East Almond Drive; North Hanover; South McCloud
Street); Azusa, CA (East Lee Place); Bakersfield, CA(Oleander Avenue; Pebble Beach Drive);
Burbank, CA (North Avon Street); Chico, CA (Montclair Drive); El Cajon, CA (Suncrest
Boulevard); Eureka, CA (Cottage Street; H Street); Freemont, CA (Elm Street; Hardwick
Place); Hayward, CA (Belmont Avenue); La Crescenta, CA (Janet Lee Drive); Lockeford, CA
(East Locke Road); Magalia, CA (Skyway); Meadow Vista, CA (Meadow Vista Road); Milpitas,
CA (Capitol Avenue); Novato, CA (Donna Street; Martinez Court); Pasadena, CA (Arbor
Street; East California Boulevard; Las Lunas Street); Pleasanton, CA (Bristolwood Road);
Richmond, CA (South 23
rd
Street; 15
th
Street; Amador Street; Carl Avenue; 30
th
Street; 26
th
Street;); Sacramento, CA (47
th
Street; Serra Way; Esmeralda Street; Ford Road; Chetwood
Way; Santa Ynez Way; Quinby Way); San Bernadino, CA (West 27
th
Street; North Stoddard
Avenue); San Francisco, CA (Victoria Street; Jennings Street; Miramar Avenue; Athens Street;
Vale Avenue; 18
th
Avenue; Vallejo Street; Highland Avenue; Highland Avenue (yes, 2); Santa
Monica, CA (26
th
Street; Kensington Road); Santa Rosa, CA (Yukon Drive; Glenbrook Drive);
Stockton, CA (North Freesia Avenue; East Cherokee Road); Ukiah, CA (South Dora Street);
Yorba Linda, CA (Rich Hill Way); Atlanta, GA (Glenwood Avenue SE; Ferry Heights Drive
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SW; Spellman Street NW); Las Vegas, NV (Corral Circle; Sombrero Circle); North Las Vegas,
NV (Crawford Street); Reno, NV (Royal Drive; Meadow Street); Brooklyn, NY (Avenue I);
Madison, WI (LaCrosse Lane); and
c. Failing to establish and maintain records or to make available or permit access to
or copying of records as required by 40 C.F.R. § 745.87(b) at 18 compensated renovations in
Minneapolis, MN (Russell Avenue N; 42
nd
Avenue S; 29
th
Avenue S; Garfield Street NE;
Morgan Avenue N; 17
th
Avenue N; 1606 Washburn Avenue N; Morgan Avenue S; 45
th
Avenue
S; McKinley Street NE; Queen Avenue N; 11
th
Avenue S; 38
th
Avenue S; 33
rd
Street W; Colfax
Avenue S; 13
th
Avenue S; Oakland Avenue; 6
th
Street N)
17. As provided in Sections 17 and 409 of TSCA, 15 U.S.C. §§ 2616 & 2689, the
violations set forth above subject Defendant to injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, the United States respectfully requests that this Court:
i. Issue a declaratory judgment finding that Defendant failed to comply with TSCA
and its implementing regulations;
ii. Issue an order requiring that Defendant comply with TSCA and its implementing
regulations; and
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iii. Provide for any and all other relief that this Court deems just and proper.
Respectfully submitted,
FOR THE UNITED STATES OF AMERICA
JOHN C. CRUDEN
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice
__/s/ James D. Freeman______________
JAMES D. FREEMAN
Senior Attorney
Environmental Enforcement Section
United States Department of Justice
999 18th Street
South Terrace, Suite 370
Denver, CO 80202
Tel: (303) 844-1489
Fax: (303) 844-1350
OF COUNSEL:
AMOS PRESLER
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
Washington, DC 20460
MARY T. McAULIFFE
Associate Regional Counsel
U.S. Environmental Protection
Agency, Region 5
77 West Jackson Boulevard
Chicago, IL 60604-3590
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ILND 44 (Rev. 07/13/16)
CIVIL
COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service
of
pleadings
or
other papers as required by law, except as
provided by local rules
of
court. This form, approved by the Judicial Conference
of
the United States in September 1974, is required for the use
of
the Clerk
of
Court for the
purpose
of
initiating the civil docket sheet. (SEE INSTRUCTIONS
ON
NEXT PAGE
OF
THIS FORM.)
I.
(a)
PLAINTIFFS
DEFENDANTS
UNITED STATES OF AMERICA
SEARS HOME IMPROVEMENT PRODUCTS, INC.
(b) County
of
Residence
of
First Listed Plaintiff County
of
Residence
of
First Listed Defendant
_c_o_o_k
_c_ou_n~ty
____
__
_ _
(EXCEPT
IN
U.S.
PLAINTIFF CASES)
(
C)
Attorneys (Firm Name, Address,
and
Telephone Number)
James D. Freeman, United States Department
of
Justice, Environment and Natural
Resources Division, 999 18th Street, South Terrace, Suite 370, Denver, CO 80202,
303-844-1489
(IN
U.S.
PLAINTIFF CASES ONLY)
NOTE:
JN
LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys
(If
Known)
John N. Hanson, Beveridge & Diamond
PC
, 1350 I Street, NW, Washington, DC
200005,202-789-6015
II. BASIS
OF
JURISDICTION
(Place an
"X"
in One Box Only) III.
CITIZENSHIP
OF
PRINCIPAL
p
ARTIES
(Place an
"X"
in
One Box
for
Plaintiff
I
Iii 1 U.S. Government
Plaintiff
D 2 U.S. Government
Defendant
D 3 Federal Question
(U.S. Government Not a Party)
D 4 Diversity
{Indicate Citizenship
of
Parties in Item Ill)
IV. NATURE
OF
SUIT
(Place an
"X"
in One Box Only)
cmn1tAcr
TORTS
D
110
Insurance
PERSONAL INJURY
PERSONAL
INJURY
D 120Marine
D
310 Airplane
D 365 Personal Injwy •
D 130 Miller Act
D
315 Airplane Product Product Liability
D 140 Negotiable Instrument
Liability
D 367 Health Care/
D 150 Recovery
of
Overpayment
D
320 Assault, Libel & Pharmaceutical
& Enforcement
of
Judgment Slander Personal Injwy
D
151
Medicare Act
D
330 Federal Employers' Product Liability
D 152 Recovery ofDelimlted
Liability
D 368 Asbestos Personal
Student Loans
D
340 Marine Injwy Product
(Excludes Veterans)
D
345 Marine Product Liability
(For Diversity Cases Only)
and
One Box
for
Defendant)
PTF
DEF
PTF
DEF
Citizen
of
This State D 1 D I Incorporated or Principal Place D 4 D 4
of
Business In This State
Citizen
of
Another State
02
D
2
Incorporated
and
Principal Place
D
Os
of
Business In Another State
Citizen
or
Subject
of
a
03
D 3
Foreign Nation
06
06
Foreign Country
FORFEITURE/PENALTY
BANKRUPTCY
OTHER
ST
A TUTES
D 625 Drug Related Seizure
0 422 Appeal 28 USC
158
D 3 7 5 False Claims Act
of
Property
21
USC
881
D 423 Withdrawal
0 376
Qui
Tam
(31
USC
06900ther
28
USC 157
3729 (a))
D 400 State Reapportionment
PROPERTY
RIGHTS
D 410 Antitrust
D 820 Copyrights
D 430 Banks and Banking
D 830 Patent
D 450 Commerce
D 840 Trademark
D 460 Deportation
D 4 70 Racketeer Influenced and
LABOR
socr
A•
-cuRITY
Corrupt Organizations
D 153 Recovery
of
Liability
PERSONAL
PROPERTY
D 710 Fair Labor Standards D
861
HIA (1395ff)
D 480 Consumer Credit
Veteran's Benefits
D
350 Motor Vehicle
D 370 Other Fraud Act
D 862 Black Lung (923)
D 490 Cable/Sat TV
D 160 Stockholders' Suits
D
355 Motor Vehicle D
371
Truth in Lending D 720 Labor/Management 0 863 DIWC/DIWW (405(g))
D 850 Securities/Commodities/
D 190 Other Contract Product Liability
D 380 Other Personal
Relations 0 864 SSID Title XVI
Exchange
D
195
Contract Product Liability
D
360 Other Personal Property Damage
0740
Railway Labor Act
D 865 RSI (405(g))
D 890 Other Statutory Actions
D 196 Franchise Injwy D 385 Property Damage D 751 Family and Medical
D
891
Agricultural Acts
D
362 Personal Injury • Product Liability Leave Act
Iii 893 Environmental Matters
Medical Maloractice
, D 790 Other Labor Litigation
D 895 Freedom
of
Information
I
REAL
PROPERTY
CIVIL
RIGHTS
PRISONER
PETITIONS
D 791 Employee Retirement
FEDERAL
TAX
SUITS
Act
D 210 Land Condemnation
D
440 Other Civil Rights D 510 Motions to Vacate Income Security Act D 870 Taxes (U.S. Plaintiff
D 896 Arbitration
D 220 Foreclosure
D
441 Voting
Sentence or Defendant)
D 899 Administrative Procedure
D 230 Rent Lease & Ejectment
D
442 Employment
Habeas
Corpus:
0 871
IRS-Third
Party
Act/Review or Appeal
of
D 240 Torts to Land
D
443 Housing/ D 530 General 26 USC 7609
Agency Decision
D 245 Tort Product Liability Accommodations D 535 Death Penalty
D 950 Constitutionality
of
D 290 All Other Real Property
D
445 Amer. w/Disabilities
D 540 Mandamus & Other
rMMJC.:RATION
State Statutes
Employment
D 550 Civil Rights
D 462 Naturalization Application
D
446 Amer. w/Disabilities
D 555 Prison Condition D 463 Habeas Corpus •
Other
D 560 Civil Detainee •
Alien Detainee
D
448 Education Conditions
of
(Prisoner Petition)
Confinement D 465 Other Immigration
Actions
V.
ORIGIN
(Place an
"X"
in One Box Only)
Ill I Original 2 Removed from 3 Remanded from
Proceeding State Court Appellate Court
4 Reinstated
or
Reopened
Transferred from
5 Another District
s eci
Multidistrict
6 Litigation-
Transfer
Multidistrict
8 Litigation -
Direct File
VI. CAUSE
OF
ACTION
(Enter U.S. Civil Statute under which you are
filing and write a brief statement
of
cause.)
15
U.S.C. § 2682(c), 2686(b), & 2687; Violations
oflaws
related to lead exposure
II. Previous
Bankruptcy
Matters
(For nature
of
suit 422 and 423, enter the case
umber and judge for any associated bankruptcy matter previously adjudicated by a
judge
of
his Court. Use a separate attachment
if
necessary.)
VIII.
REQUESTED
IN
0
CHECK
IF THIS IS A CLASS
ACTION
DEMAND$
CHECK YES only
if
demanded in complaint:
COMPLAINT:
UNDER RULE 23, F.R.Cv.P.
IX.
RELATED
CASE(S)
IF
ANY
X. This case
(check
one
ooxJ
D
DATE
ct/:J-'6//£
(See instructions):
JUDGE
JURY DEMAND:
D Yes
[!I
No
previously dismissed by
JudgiL__
1
Case: 1:16-cv-09302 Document #: 1-1 Filed: 09/28/16 Page 1 of 1 PageID #:9
