88 FR 71 pgs. 22481-22482 - 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
Type: NOTICEVolume: 88Number: 71Pages: 22481 - 22482
Pages: 22481, 22482FR document: [FR Doc. 2023-07759 Filed 4-12-23; 8:45 am]
Agency: Justice Department
Official PDF Version: PDF Version
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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
[top] 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 Exploración, S.A., Repsol USA Holdings LLC, Repsol E&P USA LLC,
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:
| To submit comments: | Send them to: |
|---|---|
| By email | pubcomment-ees.enrd@usdoj.gov. |
| By mail | Assistant Attorney General, U.S. DOJ-ENRD, P.O. Box 7611, Washington, DC 20044-7611. |
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 pubcomment-ees.enrd@usdoj.gov 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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