SETTLEMENT
AGREEMENT
This
agreement,
dated
December
___,
2005,
is
entered
into
by
and
between
United
Farm
Workers
of
America,
AFL­
CIO;
Sea
Mar
Community
Health
Center;
Pineros
y
Campesinos
Unidos
del
Noroeste;
Beyond
Pesticides;
Frente
Indigena
Oaxaqueno
Binacional
and
Arnulfo
Lopez
(
collectively
"
Plaintiffs")
and
the
United
States
Environmental
Protection
Agency
("
EPA"):

WHEREAS,
on
October
30,
2001,
EPA
issued
Interim
Reregistration
Eligibility
Determinations
("
IREDs")
for
azinphos­
methyl
("
AZM")
and
phosmet;
and
WHEREAS,
on
January
13,
2004,
Plaintiffs
filed
a
complaint,
pending
in
the
United
States
District
Court
for
the
Western
District
of
Washington
(
Case
No.
04­
0099),
alleging
that
the
AZM
and
phosmet
IREDs
were
arbitrary,
capricious
and
contrary
to
the
Federal
Insecticide,
Fungicide
and
Rodenticide
Act
("
FIFRA"),
7
U.
S.
C.
§
§
136­
136y.

For
and
in
consideration
of
the
mutual
undertakings
of
the
parties
as
hereinafter
set
forth,
the
parties
agree,
as
follows:

1.
EPA
agrees
to
determine
by
August
3,
2006
whether
to
approve
or
deny
the
AZM
registrants'
July
2004
applications
to
retain
the
ten
remaining
AZM
uses.
By
remaining
uses,
EPA
means
the
uses
listed
in
Appendix
C
to
Memorandum
of
Agreement
between
EPA
and
Registrants
of
Pesticides
Containing
AZM.

2.
EPA
agrees
to
determine
by
August
3,
2006
whether
the
existing
restricted­
entry
intervals
("
REIs")
for
the
nine
time­
limited
phosmet
uses
should
continue
on
phosmet
products
produced
after
October
30,
2006.
By
time­
limited
uses,
EPA
means
the
uses
that
are
identified
in
Attachment
1
to
the
Memorandum
of
Agreement
between
EPA
and
Gowan
Company
Regarding
the
Registrations
of
Pesticide
Products
Containing
Phosmet.

3.
EPA
will
publish
in
the
Federal
Register
an
announcement
of
its
proposed
decisions.
EPA
will
use
its
best
efforts
to
announce
its
decisions
by
April
3,
2006
either
through
the
Federal
Register
notice
or
its
website.
If
EPA
chooses
to
announce
its
proposed
decisions
per
the
EPA
Web
site,
EPA
agrees
to
notify
subscribers
to
the
EPA
Office
of
Pesticide
Programs'
("
OPP's")
Listserv
of
the
proposals.
EPA
will
provide
for
a
comment
period
of
not
less
than
60
days
for
AZM
and
not
less
than
30
days
for
phosmet.
If
EPA
is
unable
to
announce
one
or
both
of
the
proposals
by
April
3,
2006,
EPA
agrees
to
inform
Plaintiffs
on
or
before
that
date
of
the
date
EPA
expects
to
issue
the
proposals.
If
EPA
fails
to
announce
the
proposed
decisions
by
April
3,
2006,
that
failure
will
not
excuse
EPA
from
meeting
the
deadlines
in
¶
¶
1­
2.

4.
With
respect
to
occupational
and
environmental
risks,
EPA's
determinations
on
the
AZM
uses
will
be
based
on
the
"
unreasonable
adverse
effects"
standard
in
FIFRA
Section
3(
c)(
5)
(
as
defined
by
FIFRA
Section
2(
bb)).
EPA's
determinations
will
include
consideration
of
the
human
and
ecological
risks
from
use
of
the
pesticide
and
balancing
of
such
risks
with
the
benefits
of
retaining
the
pesticide.
EPA
will
consider
relevant
chemical
and
non­
chemical
alternatives
to
AZM
in
its
assessment.
EPA
will
identify
the
relevant
factors
it
considered
and
articulate
how
it
considered
those
factors
in
weighing
the
risks
and
benefits
of
the
uses.
5.
EPA's
determinations
on
whether
to
retain
the
REIs
for
the
nine
time­
limited
phosmet
uses
will
be
based
on
the
FIFRA
"
unreasonable
adverse
effects"
standard
in
FIFRA
Section
3(
c)(
5)
(
as
defined
by
FIFRA
Section
2(
bb)).
EPA's
determinations
will
include
consideration
of
worker
risks
associated
with
the
REIs
and
balancing
of
such
risks
with
the
benefits
of
retaining
the
current
REIs.
EPA
will
consider
relevant
chemical
and
non­
chemical
alternatives
to
phosmet
in
its
assessment.
EPA
will
identify
the
relevant
factors
it
considered
and
articulate
how
it
considered
those
factors
in
weighing
the
risks
and
benefits
of
the
uses.

6.
In
making
the
determinations
specified
in
¶
¶
1
&
2
of
this
Settlement
Agreement,
EPA
will
consider,
together
with
other
relevant
information,
comments
submitted
to
EPA
during
the
2001
comment
period
for
the
2001
AZM
and
phosmet
IREDs,
published
materials
and
evaluations
that
Plaintiffs,
Plaintiffs'
counsel,
and
others
have
submitted
to
EPA
relevant
to
the
AZM
and
phosmet
IREDs,
and
comments
submitted
in
response
to
EPA's
proposed
determinations,
as
specified
in
¶
3.

7.
Upon
execution
of
this
Settlement
Agreement,
the
parties
agree
to
request
the
Court
to
stay
all
proceedings
in
this
case
until
September
5,
2006.

8.
On
or
before
September
5,
2006,
Plaintiffs
will
select
one
of
the
following
options
and
advise
EPA
and
the
Court:

(
a)
Plaintiffs
may
file
a
notice
of
dismissal
with
prejudice;
or
(
b)
Plaintiffs
may
move
for
leave
to
amend
their
complaint
challenging
EPA's
determinations
specified
in
¶
¶
1
&
2.
The
parties
reserve
all
rights
with
respect
to
the
litigation,
including
the
right
to
propose
a
new
briefing
schedule
or
enter
into
a
settlement
agreement
as
to
Plaintiffs'
claims.

9.
Within
30
days
of
the
dismissal
of
this
case,
EPA
agrees
to
pay
Plaintiffs
$
230,000
for
attorneys'
fees
and
costs
for
the
action
brought
by
plaintiffs
pursuant
to
their
first
amended
complaint
in
2004.
In
the
event
Plaintiffs
elect
to
resume
litigating
this
case
under
option
(
b),
Plaintiffs
retain
the
right
to
seek
attorneys'
fees
and
costs
for
work
performed
after
the
Settlement
Agreement.
The
United
States
retains
its
right
to
oppose
any
such
request
by
Plaintiffs.

10.
In
the
event
EPA
does
not
meet
the
terms
of
this
Settlement
Agreement,
or
in
the
event
of
any
other
alleged
failure
of
EPA
to
comply
with
the
terms
of
this
Settlement
Agreement,
the
right
to
resume
the
litigation
of
this
matter
shall
be
Plaintiffs'
sole
and
exclusive
remedy.

11.
Any
obligations
of
the
United
States
to
obligate
or
expend
funds
under
this
Settlement
Agreement
are
subject
to
the
availability
of
appropriations
in
accordance
with
the
Anti­
Deficiency
Act,
31
U.
S.
C.
§
1341.
This
Settlement
Agreement
shall
not
be
construed
to
require
the
United
States
to
obligate
or
pay
funds
in
contravention
of
said
Anti­
Deficiency
Act,
31
U.
S.
C.
§
1341.

12.
The
individuals
signing
this
Agreement
on
behalf
of
the
Parties
hereby
certify
that
they
are
authorized
to
bind
their
respective
parties
to
this
Settlement
Agreement.
For
Plaintiffs:

________________________________
Patti
Goldman
Managing
Attorney
Earthjustice
705
2nd
Avenue,
Suite
203
Seattle,
WA
98104­
1711
206­
343­
7340
Michael
Meuter
Directing
Attorney
Migrant
Unit,
California
Rural
Legal
Assistance,
Inc.
3
Williams
Road
Salinas,
CA
93905
831­
757­
5221
For
the
United
States
of
America:

Sue
Ellen
Wooldridge
Assistant
Attorney
General
Environment
&
Natural
Resources
Division
__________________________
Christina
B.
Parascandola
Cynthia
J.
Morris
Environmental
Defense
Section
Environment
&
Natural
Resources
Division
U.
S.
Department
of
Justice
601
D
Street,
N.
W.
Washington,
D.
C.
20004
202­
616­
7554
Of
Counsel:
Mark
Dyner
Michele
Knorr
EPA
Office
of
the
General
Counsel
1200
Pennsylvania
Avenue,
NW
Washington,
DC
20460
