[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Notices]
[Pages 22481-22482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07759]
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DEPARTMENT OF JUSTICE
Notice of Proposed Settlement Agreement Under The Federal Debt
Collection Procedures Act, The Comprehensive Environmental Response,
Compensation, and Liability Act, and The Resource Conservation and
Recovery Act
On April 7, 2023, the Maxus Liquidating Trust (``Trust'') filed a
motion with the United States Bankruptcy Court for the District of
Delaware seeking approval of a Settlement and Release (the ``Main
Agreement'') entered into by the Trust and YPF S.A., YPF International
S.A. (f/k/a YPF International Ltd.), YPF Holdings, Inc., and YCLH
Holdings, Inc. (f/k/a CLH Holdings, Inc.), Repsol, S.A., Repsol
Exploraci[oacute]n, S.A., Repsol USA Holdings LLC, Repsol E&P USA LLC,
[[Page 22482]]
Repsol Offshore E&P USA Inc., Perenco Trinidad & Tobago (Holdings) ETVE
SLU (f/k/a Repsol E&P T&T Limited), and Repsol Services Company (the
``Private Parties''). The motion was filed as document number 883 in
Maxus Liquidating Trust v. YPF S.A. et al., Adv. Pro. No. 18-50489(CTG)
(Bankr. D. Del.) (the ``Adversary Proceeding''), which is part of the
bankruptcy case of Maxus Energy Corporation and certain of its
affiliates (collectively ``Debtors''), In re Maxus Energy Corporation,
et al., No. 16-11501(CTG) (Bankr. D. Del.), in the same court (the
``Bankruptcy Case''). The Main Agreement is Exhibit B of the Motion,
document number 883-2. Attached as Exhibit 2 at to the Main Agreement,
at page 93 of 161, is a proposed Settlement and Covenant Not to Sue
(the ``Government Agreement''), which has been agreed to, subject to
public comment, by the United States, on behalf of the U.S.
Environmental Protection Agency (``EPA''), the U.S. Department of the
Interior (``DOI''), the U.S. National Oceanic and Atmospheric
Administration (``NOAA''), the State of Ohio, the State of Wisconsin,
and the Private Parties.
Under the Amended Plan of Liquidation (``Plan'') in the Bankruptcy
Case, approved by the Delaware Bankruptcy Court on May 22, 2017, the
Trust was established to pursue claims, on behalf of the Debtors,
against the Private Parties, who were direct or indirect parents of the
Debtors, asserting alter ego liability, fraudulent transfer claims, and
related claims. Bankruptcy Case Doc. No. 1460-1. Under the Plan, any
monies recovered by the Trust are to be distributed to various
creditors and the Environmental Response/Restoration Trust (``ERRT''),
pursuant to a distribution formula set forth in the Plan. The ERRT was
established to fund remedial and restoration activities at the Diamond
Alkali Superfund Site in Newark, New Jersey (``Diamond Alkali Site'').
On June 14, 2018, the Trust filed its complaint. The Main Agreement,
agreed to by the Trust and the Private Parties, is a settlement of the
Trust's claims. The Main Agreement requires the YPF Private Parties to
make a payment to the Trust in the amount of $287,500,000 (less certain
deductions of $2,000,000), plus interest, and the Repsol Private
Parties to make a payment to the Trust in the amount of $287,500,000,
plus interest, for a total of $573,000,000, plus interest. With respect
to the United States, approximately $80 million of this recovery will
be distributed by the Trust to EPA in connection with the Diamond
Alkali Site, approximately $80 million will be distributed to DOI and
NOAA related to their natural resource damages claims in connection
with the Diamond Alkali Site, and approximately $470,000 will be
distributed to EPA in connection with the Milwaukee Solvay Coke & Gas
Superfund Site, located in Milwaukee, Wisconsin. In addition,
approximately $25 million will be distributed to the ERRT.
The Government Agreement provides that, in consideration of the
payments that the Private Parties will make to the Trust under the Main
Agreement, approximately $160 million of which will in turn be paid to
the United States and approximately $25 million of which will be paid
to the ERRT, the United States, on behalf of EPA, DOI, and NOAA,
covenants not to sue the Private Parties and certain of their
affiliates/employees (``Related Private Parties'') for: (a) any common
law civil claims or causes of action that are Trust Derivative Claims,
as defined in the Government Agreement, related to (i) the Covered
Sites, including response actions and natural resource damages at the
Covered Sites, (ii) the United States' proofs of claim filed in the
Bankruptcy Case on behalf of EPA, DOI and NOAA, (iii) the Bankruptcy
Case, or (iv) the Adversary Action; (b) any claim or cause of action
under Subchapter D of the Federal Debt Collection Procedures Act (28
U.S.C. 3301-3308) to recover on a debt that is an environmental
liability at a Covered Site where such claim or cause of action arises
from the transactions at issue in the Adversary Proceeding; and (c) any
civil claims or causes of action pursuant to Sections 106 or 107 of
CERCLA (42 U.S.C. 9606 and 9607) or Section 7003 of RCRA (42 U.S.C.
6973) with respect to the Covered Sites. Trust Derivative Claims are
defined in the Government Agreement as claims that were or could have
been asserted by the Debtors and/or the Trust against the Related
Private Parties seeking relief or recovery arising from harm to any
Debtor or any Debtor's estate based on any legal theory including, for
example, that such party was the corporate alter ego of any Debtor or
wrongfully took or otherwise appropriated assets of any Debtor. Covered
Sites are defined in the Government Agreement to include: (a) the
Diamond Alkali Superfund Site; (b) the Milwaukee Solvay Superfund Site;
(c) the Diamond Shamrock Kearny Plant Site at 1015 Belleville Turnpike,
Kearny, New Jersey; (d) the St. Johnsbury Trucking Site at Obrien St.
and Sellers St. in Kearny, New Jersey; (e) certain real property
related to the former Diamond Shamrock Painesville Works Site in
Painesville, Ohio; and (f) the Maxus Agricultural Chemicals facility at
5421 Reichhold Rd., Tuscaloosa, Alabama. The covenants provided by the
United States are subject to a reservation of rights that reserves the
right of the United States to bring certain claims, including claims
for any liability that a Related Private Party might have that does not
arise from or through a liability of a Debtor.
The publication of this notice opens a period for public comment on
the Government Agreement. Comments should be addressed to the Assistant
Attorney General, Environment and Natural Resources Division, and
should refer to Maxus Liquidating Trust v. YPF S.A. et al., Adv. Pro.
No. 18-50489(CTG) (Bankr. D. Del.), D.J. Ref. No. 90-11-3-07683/11. All
comments must be submitted no later than 30 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............................. Assistant Attorney General, U.S.
DOJ--ENRD, P.O. Box 7611,
Washington, DC 20044-7611.
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Under section 7003(d) of the RCRA, a member of the public may
request, during the 30-day public comment period, a public meeting
concerning the proposed Agreement.
During the public comment period, the Government Agreement may be
examined and downloaded at this Justice Department website: https://www.justice.gov/enrd/consent-decrees. The Department of Justice will
provide a paper copy of the Government Agreement upon written request.
Please email your request to [email protected] or mail your
request to: Consent Decree Library, U.S. DOJ--ENRD, P.O. Box 7611,
Washington, DC 20044-7611.
Henry Friedman,
Assistant Section Chief, Environmental Enforcement Section, Environment
and Natural Resources Division.
[FR Doc. 2023-07759 Filed 4-12-23; 8:45 am]
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