[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)]
[Notices]
[Pages 61927-61928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24718]


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DEPARTMENT OF JUSTICE


Notice of Lodging of Proposed Consent Decree Under the 
Comprehensive Environmental Response, Compensation, and Liability Act, 
and Notice of Availability and Request for Comments on Draft 
Restoration Plan/Environmental Assessment

    On November 8, 2019, the Department of Justice filed a Complaint 
and lodged a proposed Consent Decree with the United States District 
Court for the Eastern District of Michigan in a lawsuit entitled United 
States of America, State of Michigan, and the Saginaw Chippewa Indian 
Tribe of Michigan v. The Dow Chemical Company, Civil Action No. 1:19-
cv-13292. On the same date, the United States Fish and Wildlife Service 
published a Draft Restoration Plan/Environmental Assessment (``RP/EA'') 
that relates to various natural resource restoration activities that 
would be undertaken pursuant to the Consent Decree.
    The proposed Consent Decree would resolve natural resource damage 
claims asserted against The Dow Chemical Company (``Dow'') for injuries 
to natural resources resulting from releases of hazardous substances, 
including dibenzo-p-dioxins and dibenzofurans, into the environment 
from a facility that Dow owns and operates in Midland, Michigan. The 
filed Complaint in this action alleges that injured natural resources 
include, but are not limited to, fish, mammals, and birds within an 
Assessment Area that includes portions of the Tittabawassee River and 
adjacent riverbank and floodplain areas, the Saginaw River and adjacent 
riverbank and floodplain areas, portions of Saginaw Bay, and an area 
within Midland affected by aerial deposition of hazardous substances 
from Dow's Midland facility. The Complaint also alleges that hazardous 
substances released from Dow's Midland facility resulted in the loss of 
recreational fishing and tribal use services provided by natural 
resources.
    The Complaint asserts claims on behalf of designated federal, 
state, and tribal natural resource trustees to recover natural resource 
damages under Section 107 of the Comprehensive Environmental Response, 
Compensation, and Liability Act, 42 U.S.C. 9607. The Complaint also 
asserts claims on behalf of state natural resource trustees to recover 
natural resource damages under Sections 3115(2) and 20126a of the 
Michigan Natural Resources and Environmental Protection Act, MCL 
324.3115(2) and 324.20126a. The natural resource trustees here include 
the U.S. Department of the Interior, acting through the U.S. Fish and 
Wildlife Service and the Bureau of Indian Affairs; the Saginaw Chippewa 
Indian Tribe of Michigan; and the State of Michigan, represented by the 
Michigan Department of Environment, Great Lakes, and Energy (formerly 
known as the Michigan Department of Environmental Quality), the 
Michigan Department of Natural Resources, and the Michigan Attorney 
General (collectively, the ``Trustees'').
    Under the proposed Consent Decree, Dow would: (1) Implement eight 
natural resource restoration projects in accordance with requirements 
set forth in Statements of Work attached to the Consent Decree and 
subject to oversight and approval of the Trustees; (2) pay $6.75 
million to a restoration account that will be used by the Trustees to 
fund five additional natural resource restoration projects described in 
the Consent Decree; (3) pay an additional $15 million to a restoration 
account--of which at least $5 million will be used to fund additional 
natural resource restoration projects that will be selected by the 
Trustees in the future, with public input; (4) reimburse the Trustees 
for past assessment costs not already reimbursed under a memorandum of 
agreement; and (5) implement two other projects as part of the 
resolution of a separate State claim for reimbursement of certain State 
response costs. In addition, under the proposed Consent Decree, the 
United States, on behalf of Settling Federal Agencies, would pay $21 
million to Dow in exchange for a comprehensive resolution of potential 
liability of Settling Federal Agencies for both natural resource 
damages and for past and future response costs relating to releases or 
discharges from Dow's Midland, Michigan facility.
    Subject to specific reservations of rights set forth in the 
proposed Consent Decree, the proposed settlement would resolve (1) 
Dow's potential liability for natural resource damages resulting from 
releases of hazardous substances or discharges of oil from Dow's 
Midland facility, (2) Dow's potential liability for reimbursement of a 
limited set of State response costs identified in the proposed Consent 
Decree, and (3) specified claims of Dow against the other Settling 
Parties, including claims against Settling Federal Agencies that Dow 
contends are also liable for releases or discharges of hazardous 
substances or discharges of oil from the Midland facility. The proposed 
Consent Decree does not resolve potential liability of Dow to perform 
response actions to clean up hazardous substances or discharges of oil 
released from the Midland facility or to reimburse any response costs 
incurred by the Settling Parties in connection with releases from the 
Midland facility.
    Consistent with the Department of the Interior's Natural Resource 
Damage Assessment and Restoration regulations, 43 CFR part 11, and the 
National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321-
4347, and its implementing regulations at 40 CFR parts 1500-1508, the 
Trustees evaluated a suite of three alternatives for conducting the 
type, quality, and quantity of restoration sufficient to compensate the 
public for natural resource injuries and service losses resulting from 
releases of hazardous substances from Dow's Midland facility. Based on 
selection factors including location, technical feasibility, cost 
effectiveness, and types and timing of benefits, the Trustees 
identified a

[[Page 61928]]

preferred alternative. The Draft RP/EA describes the Trustees' natural 
resource damage assessment, identifies and evaluates various 
alternatives considered by the Trustees to restore, replace or acquire 
the equivalent of injured natural resources, and identifies the 
Trustees' preferred alternative.
    Under the preferred alternative described in the Draft RP/EA, Dow 
would implement a set of projects to protect, enhance, and restore 
habitat for natural resources as well as provide recreational fishing, 
hunting, park-use, and tribal-use services relevant to the impacted 
area; provide funding for a set of projects for the Trustees to 
implement either directly or through partnerships; and provide funding 
for future projects to be selected by the Trustees with public input, 
as well as funding to support long-term stewardship of the projects 
beyond Dow's obligations.
    The publication of this notice opens a period for public comment on 
both the proposed Consent Decree and the Draft RP/EA.
    Comments on the proposed Consent Decree should be addressed to the 
Deputy Assistant Attorney General, Environment and Natural Resources 
Division, and should refer to United States of America, State of 
Michigan, and the Saginaw Chippewa Indian Tribe of Michigan v. The Dow 
Chemical Company, D.J. Ref. No. 90-11-3-08593. All comments on the 
Consent Decree must be submitted no later than forty five (45) days 
after the publication date of this notice. Comments may be submitted 
either by email or by mail:

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            To submit comments:                     Send them to:
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By email..................................  [email protected].
By mail...................................  Deputy Assistant Attorney
                                             General, U.S. DOJ--ENRD,
                                             P.O. Box 7611, Washington,
                                             DC 20044-7611.
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    During the public comment period, the Consent Decree may be 
examined and downloaded at this Justice Department website: https://www.justice.gov/enrd/consent-decrees.
    The Justice Department will provide a paper copy of the Consent 
Decree and/or the Draft RP/EA upon written request and payment of 
reproduction costs. Please mail your request and payment to: Consent 
Decree Library, U.S. DOJ--ENRD, P.O. Box 7611, Washington, DC 20044-
7611.
If requesting a paper copy of both the Consent Decree and the Draft RP/
EA, please enclose a check or money order for $107.50 (25 cents per 
page reproduction cost) payable to the United States Treasury. For a 
paper copy of the Consent Decree without the Draft RP/EA, the cost is 
$64.00. For a paper copy of only the Draft RP/EA, the cost is $43.50.
    Comments on the Draft RP/EA should be addressed to Lisa L. 
Williams, U.S. Fish and Wildlife Service, and reference ``TR RP/EA 
comment'' in the subject line. All comments on the Draft RP/EA must be 
submitted no later than forty-five (45) days after the publication date 
of this notice. Comments may be submitted either by email or by mail:

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            To submit comments:                     Send them to:
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By email..................................  [email protected].
By mail...................................  Lisa L. Williams, U.S. Fish
                                             and Wildlife Service, 2651
                                             Coolidge Road, East
                                             Lansing, MI 48823.
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During the public comment period, the Draft RP/EA may be examined and 
downloaded at this U.S. Fish and Wildlife Service Midwest Region 
Natural Resource Damage Assessment website: https://www.fws.gov/Midwest/es/ec/nrda/TittabawasseeRiverNRDA/. As described above, a paper 
copy of the Draft RP/EA may be obtained from the Department of Justice 
upon written request and payment of reproduction costs.

Randall M. Stone,
Acting Assistant Section Chief, Environmental Enforcement Section, 
Environment and Natural Resources Division.
[FR Doc. 2019-24718 Filed 11-13-19; 8:45 am]
 BILLING CODE 4410-15-P