Notice of Lodging of Proposed Consent Decree Under the Clean Air Act, 51923-51924 [2021-20121]

Download as PDF Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices complaint was reasonable, and whether the mechanism to enforce the final judgment are clear and manageable’’). As the U.S. Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations in the government’s complaint, whether the proposed Final Judgment is sufficiently clear, whether its enforcement mechanisms are sufficient, and whether it may positively harm third parties. See Microsoft, 56 F.3d at 1458–62. With respect to the adequacy of the relief secured by the proposed Final Judgment, a court may not ‘‘make de novo determination of facts and issues.’’ United States v. W. Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 1993) (quotation marks omitted); see also Microsoft, 56 F.3d at 1460–62; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); United States v. Enova Corp., 107 F. Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S. Dist. LEXIS 84787, at *3. Instead, ‘‘[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General.’’ W. Elec. Co., 993 F.2d at 1577 (quotation marks omitted). ‘‘The court should bear in mind the flexibility of the public interest inquiry: the court’s function is not to determine whether the resulting array of rights and liabilities is one that will best serve society, but only to confirm that the resulting settlement is within the reaches of the public interest.’’ Microsoft, 56 F.3d at 1460 (quotation marks omitted); see also United States v. Deutsche Telekom AG, No. 19–2232 (TJK), 2020 WL 1873555, at *7 (D.D.C. Apr. 14, 2020). More demanding requirements would ‘‘have enormous practical consequences for the government’s ability to negotiate future settlements,’’ contrary to congressional intent. Id. at 1456. ‘‘The Tunney Act was not intended to create a disincentive to the use of the consent decree.’’ Id. The United States’ predictions about the efficacy of the remedy are to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at 1461 (recognizing courts should give ‘‘due respect to the Justice Department’s . . . view of the nature of its case’’); United States v. Iron Mountain, Inc., 217 F. Supp. 3d 146, 152–53 (D.D.C. 2016) (‘‘In evaluating objections to settlement agreements under the Tunney Act, a court must be mindful that [t]he government need not prove that the settlements will perfectly remedy the VerDate Sep<11>2014 16:19 Sep 16, 2021 Jkt 253001 alleged antitrust harms[;] it need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.’’) (internal citations omitted); United States v. Republic Servs., Inc., 723 F. Supp. 2d 157, 160 (D.D.C. 2010) (noting ‘‘the deferential review to which the government’s proposed remedy is accorded’’); United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (‘‘A district court must accord due respect to the government’s prediction as to the effect of proposed remedies, its perception of the market structure, and its view of the nature of the case.’’). The ultimate question is whether ‘‘the remedies [obtained by the Final Judgment are] so inconsonant with the allegations charged as to fall outside of the ‘reaches of the public interest.’’’ Microsoft, 56 F.3d at 1461 (quoting W. Elec. Co., 900 F.2d at 309). Moreover, the Court’s role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint, and does not authorize the Court to ‘‘construct [its] own hypothetical case and then evaluate the decree against that case.’’ Microsoft, 56 F.3d at 1459; see also U.S. Airways, 38 F. Supp. 3d at 75 (noting that the court must simply determine whether there is a factual foundation for the government’s decisions such that its conclusions regarding the proposed settlements are reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he ‘public interest’ is not to be measured by comparing the violations alleged in the complaint against those the court believes could have, or even should have, been alleged.’’). Because the ‘‘court’s authority to review the decree depends entirely on the government’s exercising its prosecutorial discretion by bringing a case in the first place,’’ it follows that ‘‘the court is only authorized to review the decree itself,’’ and not to ‘‘effectively redraft the complaint’’ to inquire into other matters that the United States did not pursue. Microsoft, 56 F.3d at 1459–60. In its 2004 amendments to the APPA, Congress made clear its intent to preserve the practical benefits of using consent judgments proposed by the United States in antitrust enforcement, Public Law 108–237 § 221, and added the unambiguous instruction that ‘‘[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.’’ 15 U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d at 76 (indicating that a court is not required to hold an evidentiary hearing or to PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 51923 permit intervenors as part of its review under the Tunney Act). This language explicitly wrote into the statute what Congress intended when it first enacted the Tunney Act in 1974. As Senator Tunney explained: ‘‘[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.’’ 119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney). ‘‘A court can make its public interest determination based on the competitive impact statement and response to public comments alone.’’ U.S. Airways, 38 F. Supp. 3d at 76 (citing Enova Corp., 107 F. Supp. 2d at 17). VIII. Determinative Documents There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment. Date: September 2, 2021. Respectfully submitted, lllllllllllllllllllll Kenneth A. Libby, Special Attorney, U.S. Department of Justice, Antitrust Division, c/o Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580, Phone: (202) 326– 2694, Email: klibby@ftc.gov. [FR Doc. 2021–20149 Filed 9–16–21; 8:45 am] BILLING CODE 4410–11–P DEPARTMENT OF JUSTICE Notice of Lodging of Proposed Consent Decree Under the Clean Air Act On September 13, 2021, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Southern District of Texas in the lawsuit entitled United States of America v. Formosa Plastics Corporation, Texas, Civil Action No. 21–00043. In this action, the United States, on behalf of the U.S. Environmental Protection Agency, filed a Complaint and proposed Consent Decree pertaining to Clean Air Act (‘‘CAA’’) violations at the petrochemical manufacturing plant (‘‘Facility’’) owned and operated by Formosa Plastics Corporation, Texas (‘‘Defendant’’) in Point Comfort, Texas. This case stems in part from a May 2, 2013 accidental release of an extremely hazardous substance that caused a fire and explosion at the Facility that resulted in multiple injuries to workers. In the Complaint, the United States alleged that the Defendant violated Section 112(r)(1) of the CAA, 42 U.S.C. E:\FR\FM\17SEN1.SGM 17SEN1 51924 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 7412(r)(1), by failing to identify risks associated with accidental releases of extremely hazardous substances and failing to design and maintain a safe facility. The Complaint also alleges numerous violations of Section 112(r)(7) of the CAA, 42 U.S.C. 7412(r)(7), and the Chemical Accident Prevention regulations promulgated at 40 CFR part 68, including failure to implement safe work practices and failure to conduct mechanical integrity inspections and tests. Under the proposed settlement, the Defendant will pay $2,850,000 in civil penalties and will be required to update its response and personal protection plans to prevent employee injury, conduct a third-party audit of its risk management practices, perform corrective action based on the audit results, and develop key performance indicators to evaluate future compliance. The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to United States of America v. Formosa Plastics Corporation, Texas, D.J. Ref. No. 90–5–2–1–08995/1. All comments must be submitted no later than thirty (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. Assistant Attorney General, U.S. DOJ—ENRD, P.O. Box 7611, Washington, DC 20044–7611. By mail ......... During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website: https:// www.justice.gov/enrd/consent-decrees. We will provide a paper copy of the proposed Consent Decree 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. Please enclose a check or money order for $11.25 (25 cents per page reproduction cost) payable to the United States Treasury. Thomas Carroll, Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. 2021–20121 Filed 9–16–21; 8:45 am] BILLING CODE 4410–15–P NATIONAL ARCHIVES AND RECORDS ADMINISTRATION [NARA–21–0013; NARA–2021–045] Records Schedules; Availability and Request for Comments National Archives and Records Administration (NARA). ACTION: Notice of availability of proposed records schedules; request for comments. AGENCY: The National Archives and Records Administration (NARA) publishes notice of certain Federal agency requests for records disposition authority (records schedules). We publish notice in the Federal Register and on regulations.gov for records schedules in which agencies propose to dispose of records they no longer need to conduct agency business. We invite public comments on such records schedules. DATES: NARA must receive comments by November 1, 2021. ADDRESSES: You may submit comments by the following method. You must cite the control number, which appears on the records schedule in parentheses after the name of the agency that submitted the schedule. • Federal eRulemaking Portal: https:// www.regulations.gov. Due to COVID–19 building closures, we are currently temporarily not accepting comments by mail. However, if you are unable to comment via regulations.gov, you may contact request.schedule@nara.gov for instructions on submitting your comment. FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, Regulatory and External Policy Program Manager, by email at regulation_comments@ nara.gov. For information about records schedules, contact Records Management Operations by email at request.schedule@nara.gov, by mail at the address above, or by phone at 301– 837–1799. SUPPLEMENTARY INFORMATION: SUMMARY: Public Comment Procedures We are publishing notice of records schedules in which agencies propose to VerDate Sep<11>2014 16:19 Sep 16, 2021 Jkt 253001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 dispose of records they no longer need to conduct agency business. We invite public comments on these records schedules, as required by 44 U.S.C. 3303a(a), and list the schedules at the end of this notice by agency and subdivision requesting disposition authority. In addition, this notice lists the organizational unit(s) accumulating the records or states that the schedule has agency-wide applicability. It also provides the control number assigned to each schedule, which you will need if you submit comments on that schedule. We have uploaded the records schedules and accompanying appraisal memoranda to the regulations.gov docket for this notice as ‘‘other’’ documents. Each records schedule contains a full description of the records at the file unit level as well as their proposed disposition. The appraisal memorandum for the schedule includes information about the records. We will post comments, including any personal information and attachments, to the public docket unchanged. Because comments are public, you are responsible for ensuring that you do not include any confidential or other information that you or a third party may not wish to be publicly posted. If you want to submit a comment with confidential information or cannot otherwise use the regulations.gov portal, you may contact request.schedule@nara.gov for instructions on submitting your comment. We will consider all comments submitted by the posted deadline and consult as needed with the Federal agency seeking the disposition authority. After considering comments, we will post on regulations.gov a ‘‘Consolidated Reply’’ summarizing the comments, responding to them, and noting any changes we have made to the proposed records schedule. We will then send the schedule for final approval by the Archivist of the United States. You may elect at regulations.gov to receive updates on the docket, including an alert when we post the Consolidated Reply, whether or not you submit a comment. If you have a question, you can submit it as a comment, and can also submit any concerns or comments you would have to a possible response to the question. We will address these items in consolidated replies along with any other comments submitted on that schedule. We will post schedules on our website in the Records Control Schedule (RCS) Repository, at https:// www.archives.gov/records-mgmt/rcs, E:\FR\FM\17SEN1.SGM 17SEN1

Agencies

Department of Justice

[Federal Register Volume 86, Number 178 (Friday, September 17, 2021)]
[Notices]
[Pages 51923-51924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20121]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE


Notice of Lodging of Proposed Consent Decree Under the Clean Air 
Act

    On September 13, 2021, the Department of Justice lodged a proposed 
Consent Decree with the United States District Court for the Southern 
District of Texas in the lawsuit entitled United States of America v. 
Formosa Plastics Corporation, Texas, Civil Action No. 21-00043.
    In this action, the United States, on behalf of the U.S. 
Environmental Protection Agency, filed a Complaint and proposed Consent 
Decree pertaining to Clean Air Act (``CAA'') violations at the 
petrochemical manufacturing plant (``Facility'') owned and operated by 
Formosa Plastics Corporation, Texas (``Defendant'') in Point Comfort, 
Texas. This case stems in part from a May 2, 2013 accidental release of 
an extremely hazardous substance that caused a fire and explosion at 
the Facility that resulted in multiple injuries to workers. In the 
Complaint, the United States alleged that the Defendant violated 
Section 112(r)(1) of the CAA, 42 U.S.C.

[[Page 51924]]

7412(r)(1), by failing to identify risks associated with accidental 
releases of extremely hazardous substances and failing to design and 
maintain a safe facility. The Complaint also alleges numerous 
violations of Section 112(r)(7) of the CAA, 42 U.S.C. 7412(r)(7), and 
the Chemical Accident Prevention regulations promulgated at 40 CFR part 
68, including failure to implement safe work practices and failure to 
conduct mechanical integrity inspections and tests. Under the proposed 
settlement, the Defendant will pay $2,850,000 in civil penalties and 
will be required to update its response and personal protection plans 
to prevent employee injury, conduct a third-party audit of its risk 
management practices, perform corrective action based on the audit 
results, and develop key performance indicators to evaluate future 
compliance.
    The publication of this notice opens a period for public comment on 
the proposed Consent Decree. Comments should be addressed to the 
Assistant Attorney General, Environment and Natural Resources Division, 
and should refer to United States of America v. Formosa Plastics 
Corporation, Texas, D.J. Ref. No. 90-5-2-1-08995/1. All comments must 
be submitted no later than thirty (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............................  [email protected].
By mail.............................  Assistant Attorney General, U.S.
                                       DOJ--ENRD, P.O. Box 7611,
                                       Washington, DC 20044-7611.
------------------------------------------------------------------------

    During the public comment period, the proposed Consent Decree may 
be examined and downloaded at this Justice Department website: https://www.justice.gov/enrd/consent-decrees. We will provide a paper copy of 
the proposed Consent Decree 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.
    Please enclose a check or money order for $11.25 (25 cents per page 
reproduction cost) payable to the United States Treasury.

Thomas Carroll,
Assistant Section Chief, Environmental Enforcement Section, Environment 
and Natural Resources Division.
[FR Doc. 2021-20121 Filed 9-16-21; 8:45 am]
BILLING CODE 4410-15-P

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