82 FR 34977 - Notice of Lodging of Proposed Consent Decree Under the Clean Air Act

DEPARTMENT OF JUSTICE

Federal Register Volume 82, Issue 143 (July 27, 2017)

Page Range		34977-34978
FR Document		2017-15780
Federal Register, Volume 82 Issue 143 (Thursday, July 27, 2017)
[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)]
[Notices]
[Pages 34977-34978]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-15780]


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DEPARTMENT OF JUSTICE


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

    On July 20, 2017, the Department of Justice lodged a proposed 
Consent Decree with the United States District Court for the District 
of Columbia in the lawsuit entitled United States v. Harley-Davidson, 
Inc., et al., Civil Action No. 1:16-cv-01687.
    The United States' Complaint, filed on August 18, 2016, Dkt. Nos. 
1, 4, alleges that Harley-Davidson, Inc. (and three related companies) 
manufactured and sold over 339,392 after-market devices (known as 
``Super Tuners'' and used with Harley-Davidson motorcycles) in 
violation of the Clean Air Act prohibition on the manufacture or sale 
of devices that defeat the functioning of the motorcycles' certified 
emissions control system. The Complaint also alleges, relatedly, that 
Defendants violated the provision of the Act that prohibits any person 
from removing or rendering inoperative a motor vehicle's certified 
emissions control system and from causing such ``tampering.'' Finally, 
the Complaint alleges that Defendants manufactured and sold more than 
12,000 motorcycles from model years 2006, 2007, and 2008 that were not 
certified by EPA as required by the Clean Air Act.
    The Consent Decree requires Defendants to stop selling the illegal 
tuners in the United States by August 23, 2016. Defendants will also 
offer to buy back all such tuners in stock at Harley-Davidson 
dealerships across the country and destroy them. The Decree requires 
Defendants to obtain an Executive Order from the California Air 
Resources Board (CARB) for any tuners Defendants sell in the United 
States in the future. These Executive Orders (EOs) will demonstrate 
that the CARB-certified tuners do not cause Defendants' motorcycles to 
exceed the EPA-certified emissions limits. Defendants must also conduct 
tests on motorcycles that have been tuned with the EO-certified tuners 
and provide the results to EPA to ensure that their motorcycles remain 
in compliance with EPA emissions requirements. In addition, for any 
uncertified Super Tuners that Defendants sell outside the United States 
in the future, they must label them as not for use in the United 
States.
    Under the Consent Decree, Defendants must also ensure that all of 
their future motorcycle models intended for sale in the United States 
are certified by EPA.
    Finally, Defendants will pay a civil penalty of $12 million.
    The Consent Decree lodged with the Court on July 20 is identical to 
a Consent Decree lodged with this Court on August 18, 2016, Dkt. 2, 
except that the Consent Decree lodged on July 20 (and on which comment 
is now being sought) does not include the requirement in the original 
Consent Decree for Defendants to ``fund a program'' (described in 
Appendix A of the original Consent Decree) that required Defendants to 
pay a third-party organization to mitigate emissions of hydrocarbons 
and oxides of nitrogen in the northeastern United States by replacing 
old, higher polluting woodstoves with emissions-certified woodstoves 
(``mitigation project''). As explained briefly below, certain new 
developments led the United States and Defendants to agree to revise 
the Consent Decree in this manner.
    On June 5, 2017, the Attorney General issued a policy, Prohibition 
on Settlement Payments to Third Parties, which prohibits a settlement 
that ``directs or provides for a payment or loan to any non-
governmental person or

[[Page 34978]]

entity that is not a party to the dispute[,]'' unless it is ``an 
otherwise lawful payment . . . that . . . directly remedies the harm 
that is sought to be redressed, including, for example, harm to the 
environment. . . .'' This policy became effective upon issuance and 
applies to, among other things, consent decrees entered into on behalf 
of the United States. The original Consent Decree would have required 
Defendants to pay a non-governmental third-party organization to carry 
out the mitigation project. Questions exist as to whether this 
mitigation project is consistent with the new policy.
    The United States and Defendants also became aware that the U.S. 
Government Accountability Office (``GAO'') is developing a legal 
opinion regarding the original Consent Decree, focusing on the 
mitigation project. On February 6, 2017, the United States received a 
letter from counsel for Harley-Davidson asking the United States to 
delay moving to enter the Consent Decree until GAO completed its 
evaluation. The United States has been informed by GAO that development 
of its legal opinion would likely not be concluded for many more 
months. The mitigation project was also the subject of public comment 
during the notice and comment period.
    In light of these facts, the United States and Harley-Davidson 
attempted to negotiate a substitute mitigation project, but were unable 
to reach timely agreement on a suitable alternative. The United States 
is mindful of the length of time this settlement has already been 
pending and, in the interest of moving forward with the important 
relief secured by the Consent Decree, has sought and received 
Defendants' approval to modify the Decree to remove the mitigation 
project.
    The United States has decided on balance that proceeding now with 
the substitute Consent Decree is in the public interest.
    The publication of this notice opens a period for public comment on 
the Consent Decree. Comments should be addressed to the Assistant 
Attorney General, Environment and Natural Resources Division, and 
should refer to United States v. Harley-Davidson, Inc., et al., D.J. 
Ref. No. 90-5-2-1-11333. 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:

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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.
------------------------------------------------------------------------

    During the public comment period, the Consent Decree may be 
examined and downloaded at this Justice Department Web site: https://www.justice.gov/enrd/consent-decrees. We will provide a paper copy of 
the 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 $9.50 (25 cents per page 
reproduction cost) payable to the United States Treasury.

Karen Dworkin,
Deputy Section Chief, Environmental Enforcement Section, Environment 
and Natural Resources Division.
[FR Doc. 2017-15780 Filed 7-26-17; 8:45 am]
 BILLING CODE 4410-15-P
Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices 34977

1933–1979 MPS), Apalachia Dam Rd., Polk County control system and from causing such
Murphy, MP100001459 Ocoee No. 3 Hydroelectric Project, ‘‘tampering.’’ Finally, the Complaint
Hiwassee Hydroelectric Project, (Tennessee (Tennessee Valley Authority Hydroelectric alleges that Defendants manufactured
Valley Authority Hydroelectric System, System, 1933–1979 MPS), 1988 US 64, and sold more than 12,000 motorcycles
1933–1979 MPS), 600 Powerhouse Rd., Benton, MP100001473 from model years 2006, 2007, and 2008
Murphy, MP100001460
Rhea County that were not certified by EPA as
Clay County required by the Clean Air Act.
Watts Barr Hydroelectric Project, (Tennessee
Chatuge Hydroelectric Project, (Tennessee Valley Authority Hydroelectric System,
The Consent Decree requires
Valley Authority Hydroelectric System, 1933–1979 MPS), 6868 Watts Bar Hwy., Defendants to stop selling the illegal
1933–1979 MPS), 221 Old Ranger Rd., Spring City, MP100001474 tuners in the United States by August
Hayesville, MP100001461 23, 2016. Defendants will also offer to
Sevier County buy back all such tuners in stock at
Graham County
Douglas Hydroelectric Project, (Tennessee Harley-Davidson dealerships across the
Fontana Hydroelectric Project, (Tennessee Valley Authority Hydroelectric System, country and destroy them. The Decree
Valley Authority Hydroelectric System, 1933–1979 MPS), 850 Powerhouse Way,
1933–1979 MPS), 1011 Fontana Dam Rd.,
requires Defendants to obtain an
Dandridge, MP100001475 Executive Order from the California Air
Fontana Dam, MP100001462
Sullivan County Resources Board (CARB) for any tuners
TENNESSEE Defendants sell in the United States in
Boone Hydroelectric Project, (Tennessee
Carter County Valley Authority Hydroelectric System, the future. These Executive Orders
Watauga Hydroelectric Project, (Tennessee 1933–1979 MPS), 301 Boone Dam Rd., (EOs) will demonstrate that the CARB-
Valley Authority Hydroelectric System, Kingsport, MP100001476 certified tuners do not cause
Fort Patrick Henry Hydroelectric Project, Defendants’ motorcycles to exceed the
1933–1979 MPS), 774 Wilbur Dam Rd.,
(Tennessee Valley Authority Hydroelectric EPA-certified emissions limits.
Elizabethton, MP100001463
System, 1933–1979 MPS), Rt. 1 Box 2385, Defendants must also conduct tests on
Coffee County Kingsport, MP100001477 motorcycles that have been tuned with
Normandy Dam Project, (Tennessee Valley South Holston Hydroelectric Project,
(Tennessee Valley Authority Hydroelectric
the EO-certified tuners and provide the
Authority Hydroelectric System, 1933– results to EPA to ensure that their
1979 MPS), Frank Hiles Rd. E of Coffee- System, 1933–1979 MPS), 918 South View
Rd., Bristol, MP100001478 motorcycles remain in compliance with
Bedford County Line, Normandy, EPA emissions requirements. In
MP100001464 Authority: 60.13 of 36 CFR part 60.
addition, for any uncertified Super
Franklin County Dated: July 5, 2017. Tuners that Defendants sell outside the
Tims Ford Hydroelectric Project, (Tennessee J. Paul Loether, United States in the future, they must
Valley Authority Hydroelectric System, Chief, National Register of Historic Places/ label them as not for use in the United
1933–1979 MPS), 461 Powerhouse Rd., National Historic Landmarks Program and States.
Winchester, MP100001465 Keeper, National Register of Historic Places. Under the Consent Decree,
Hamilton County [FR Doc. 2017–15781 Filed 7–26–17; 8:45 am] Defendants must also ensure that all of
BILLING CODE 4312–52–P their future motorcycle models intended
Chickamauga Hydroelectric Project, for sale in the United States are certified
(Tennessee Valley Authority Hydroelectric
System, 1933–1979 MPS), 5400 Lake
by EPA.
Resort Dr., Chattanooga, MP100001466 DEPARTMENT OF JUSTICE Finally, Defendants will pay a civil
penalty of $12 million.
Hardin County The Consent Decree lodged with the
Notice of Lodging of Proposed
Pickwick Landing Hydroelectric Project, Consent Decree Under the Clean Air Court on July 20 is identical to a
(Tennessee Valley Authority Hydroelectric Act Consent Decree lodged with this Court
System, 1933–1979 MPS), 850 Carolina on August 18, 2016, Dkt. 2, except that
Ln., Counce, MP100001467 On July 20, 2017, the Department of the Consent Decree lodged on July 20
Jefferson County Justice lodged a proposed Consent (and on which comment is now being
Decree with the United States District sought) does not include the
Cherokee Hydroelectric Project, (Tennessee
Valley Authority Hydroelectric System, Court for the District of Columbia in the requirement in the original Consent
1933–1979 MPS), 450 Powerhouse Rd., lawsuit entitled United States v. Harley- Decree for Defendants to ‘‘fund a
Rutledge, MP100001468 Davidson, Inc., et al., Civil Action No. program’’ (described in Appendix A of
1:16–cv–01687. the original Consent Decree) that
Loudon County
The United States’ Complaint, filed required Defendants to pay a third-party
Fort Loudon Hydroelectric Project, on August 18, 2016, Dkt. Nos. 1, 4, organization to mitigate emissions of
(Tennessee Valley Authority Hydroelectric alleges that Harley-Davidson, Inc. (and hydrocarbons and oxides of nitrogen in
System, 1933–1979 MPS), 1280 City Park
three related companies) manufactured the northeastern United States by
Dr., Lenoir City, MP100001469
Melton Hill Hydroelectric Project, (Tennessee and sold over 339,392 after-market replacing old, higher polluting
Valley Authority Hydroelectric System, devices (known as ‘‘Super Tuners’’ and woodstoves with emissions-certified
1933–1979 MPS), 2009 Grubb Rd., Lenoir used with Harley-Davidson woodstoves (‘‘mitigation project’’). As
City, MP100001470 motorcycles) in violation of the Clean explained briefly below, certain new
Tellico Dam Project, (Tennessee Valley Air Act prohibition on the manufacture developments led the United States and
Authority Hydroelectric System, 1933– or sale of devices that defeat the Defendants to agree to revise the
mstockstill on DSK30JT082PROD with NOTICES

1979 MPS), c/o 1280 City Park Dr., Lenoir functioning of the motorcycles’ certified Consent Decree in this manner.
City, MP100001471 emissions control system. The On June 5, 2017, the Attorney General
Marion County Complaint also alleges, relatedly, that issued a policy, Prohibition on
Nickajack Hydroelectric Project, (Tennessee Defendants violated the provision of the Settlement Payments to Third Parties,
Valley Authority Hydroelectric System, Act that prohibits any person from which prohibits a settlement that
1933–1979 MPS), 3490 TVA Rd., Jasper, removing or rendering inoperative a ‘‘directs or provides for a payment or
MP100001472 motor vehicle’s certified emissions loan to any non-governmental person or

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34978 Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Notices

entity that is not a party to the To submit dollars ($5.9 million) to be allocated as
Send them to:
dispute[,]’’ unless it is ‘‘an otherwise comments: established by the consent decree
lawful payment . . . that . . . directly between the United States and Goodrich
By email ....... pubcomment-ees.enrd@
remedies the harm that is sought to be Corporation (‘‘Goodrich Consent
usdoj.gov.
redressed, including, for example, harm By mail ......... Assistant Attorney General, Decree’’) approved by the Court on July
to the environment. . . .’’ This policy U.S. DOJ–ENRD, P.O. Box 2, 2013 (Dkt. No. 1821). In return, the
became effective upon issuance and 7611, Washington, DC Goodrich Consent Decree provides,
applies to, among other things, consent 20044–7611. among other things, certain covenants
decrees entered into on behalf of the not to sue pursuant to CERCLA and
United States. The original Consent During the public comment period, Section 7003 of Resource Conservation
Decree would have required Defendants the Consent Decree may be examined and Recovery Act, 42 U.S.C. 6973.
to pay a non-governmental third-party and downloaded at this Justice
Department Web site: https:// The publication of this notice opens
organization to carry out the mitigation a period for public comment on the
www.justice.gov/enrd/consent-decrees.
project. Questions exist as to whether Wong Consent Decree. Comments
We will provide a paper copy of the
this mitigation project is consistent with Decree upon written request and should be addressed to the Assistant
the new policy. payment of reproduction costs. Please Attorney General, Environment and
The United States and Defendants mail your request and payment to: Natural Resources Division, and should
also became aware that the U.S. Consent Decree Library, U.S. DOJ– refer to City of Colton v. American
Government Accountability Office ENRD, P.O. Box 7611 Washington, DC Promotional Events, Inc., et al., D.J. Ref.
(‘‘GAO’’) is developing a legal opinion 20044–7611. No. 90–11–2–09952. All comments must
regarding the original Consent Decree, Please enclose a check or money order be submitted no later than thirty (30)
focusing on the mitigation project. On for $9.50 (25 cents per page days after the publication date of this
February 6, 2017, the United States reproduction cost) payable to the United notice. Comments may be submitted
received a letter from counsel for States Treasury. either by email or by mail:
Harley-Davidson asking the United Karen Dworkin,
States to delay moving to enter the Deputy Section Chief, Environmental To submit Send them to:
Consent Decree until GAO completed its Enforcement Section, Environment and comments:
evaluation. The United States has been Natural Resources Division.
By email ....... pubcomment-ees.enrd@
informed by GAO that development of [FR Doc. 2017–15780 Filed 7–26–17; 8:45 am]
usdoj.gov.
its legal opinion would likely not be BILLING CODE 4410–15–P By mail ......... Assistant Attorney General,
concluded for many more months. The U.S. DOJ—ENRD, P.O.
mitigation project was also the subject Box 7611, Washington, DC.
of public comment during the notice DEPARTMENT OF JUSTICE 20044–7611
and comment period. Notice of Lodging of Proposed
In light of these facts, the United Consent Decree Under the Under Section 7003(d) of RCRA, a
States and Harley-Davidson attempted Comprehensive Environmental commenter may request an opportunity
to negotiate a substitute mitigation Response, Compensation, and Liability for a public meeting in the affected area.
project, but were unable to reach timely Act of 1980 During the public comment period,
agreement on a suitable alternative. The On July 18, 2017, the Department of the Wong Consent Decree may be
United States is mindful of the length of Justice lodged a proposed Consent examined and downloaded at this
time this settlement has already been Decree with the United States District Justice Department Web site: https://
pending and, in the interest of moving Court for the Central District of www.justice.gov/enrd/consent-decrees.
forward with the important relief California, in the lawsuit entitled City of We will provide a paper copy of the
secured by the Consent Decree, has Colton v. American Promotional Events, Consent Decree upon written request
sought and received Defendants’ Inc., et al., Civil Action No. CV 09– and payment of reproduction costs.
approval to modify the Decree to 01864 PSG [Consolidated with Case Please mail your request and payment
remove the mitigation project. Nos. CV 09–6630 PSG (SSx), CV 09– to: Consent Decree Library, U.S. DOJ—
The United States has decided on 06632 PSG (SSx), CV 09–07501 PSG ENRD, P.O. Box 7611, Washington, DC
balance that proceeding now with the (SSx), CV 09–07508 PSG (SSx), CV 10– 20044–7611.
824 PSG (SSx) and CV 05–01479 PSG
substitute Consent Decree is in the Please enclose a check or money order
(SSx)].
public interest. In this action, the United States filed for $12.50 (25 cents per page
The publication of this notice opens a complaint under Section 107 of the reproduction cost) payable to the United
a period for public comment on the Comprehensive Environmental States Treasury.
Consent Decree. Comments should be Response, Compensation, and Liability Henry Friedman,
addressed to the Assistant Attorney Action (‘‘CERCLA’’), 42 U.S.C. 9607,
Assistant Section Chief, Environmental
General, Environment and Natural seeking to recover response costs Enforcement Section, Environment and
Resources Division, and should refer to incurred in connection with the Natural Resources Division.
United States v. Harley-Davidson, Inc., formerly named B.F. Goodrich
mstockstill on DSK30JT082PROD with NOTICES

[FR Doc. 2017–15861 Filed 7–26–17; 8:45 am]
et al., D.J. Ref. No. 90–5–2–1–11333. All Superfund Site, which was
BILLING CODE 4410–15–P
comments must be submitted no later subsequently renamed the Rockets,
than thirty (30) days after the Fireworks, and Flares Superfund Site
publication date of this notice. (‘‘RFF Site’’). The proposed consent
decree (‘‘Wong Consent Decree’’)
Comments may be submitted either by
requires the Estate of Wong (‘‘Estate’’) to
email or by mail:
pay five million nine hundred thousand

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Document Created: 2017-07-27 02:07:36
Document Modified: 2017-07-27 02:07:36
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		82 FR 34977