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.