In the Matter of 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

PUBLIC VERSION 

FEB 1 0 2011 

The Dow Chemical Company, 

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a corporation, and Docket No. C-3999 

Union Carbide Corporation, 

a corporation. 

PETITION OF THE DOW CHEMICAL COMPANY FOR APPROVAL OF A CERTAIN 

AMENDMENT TO THE HUNTSMAN AGREEMENT 

Pursuant to Section 2.41 of the Federal Trade Commission ("Commission") Rules of 

Practice and Procedure, 16 C.F.R. §2.41, the Dow Chemical Company ("Dow") hereby petitions the 

Commission to approve an amendment to the Huntsman Agreement, which is incorporated into the 

Decision and Order (the "Order") in the above-captioned matter. I 

The proposed amendment (the "Deep Well Amendment") to the Amended and Restated 

Environmental Systems Separation and Services Agreement (the "ARES SA") was executed by Dow and 

Huntsman International LLC ("Huntsman") in December 2010 and has been reviewed and accepted by 

Richard M. Klein, the Commission-appointed Monitor Trustee. 2 This petition describes the tenns of the 

Deep Well Amendment and explains how the Deep Well Amendment satisfies the purposes of the 

Commission's Order. 3 

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3 

All capitalized terms used but not otherwise defined in this petition have the meanings ascribed to them in the 

Commission's Order. 

The Deep Well Amendment is provided as Confidential Exhibit A to this petition. 

Dow is filing this petition based on discussions with Commission Staff. However, Dow does not believe that a 

petition to approve this amendment is required by the Order. The Deep Well Amendment does not modify the 

underlying terms of the ARESSA and is not inconsistent with that agreement. The Deep Well Amendment 

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PUBLIC VERSION 

For the convenience of maintaining the public record, Dow is submitting this petition in 

two versions - one that includes confidential and proprietary information (the "Confidential Version") 

and another that is the same as the Confidential Version, but with Confidential Appendix A and certain 

confidential information redacted (the "Public Version"). Pursuant to Section 21 of the Federal Trade 

Commission Act, 15 U.S.C. §57b-2, and the Commission's Rules of Practice 4.10-4.11, 16 C.F.R. 

§§4.10-4.11, Dow hereby requests that all of the redacted information, including Confidential Appendix 

A, be treated by the Commission as strictly confidential and not be made available to the public. The 

redacted portions (including Confidential Appendix A) contain commercially and competitively 

sensitive information of Dow and Huntsman and disclosure of the infonnation to the public will 

prejudice Dow and Huntsman. 

I. Proposed Amendment to Huntsman Agreement 

Pursuant to paragraph II.A of the Order, on February 9,2001, Dow divested, absolutely 

and in good faith, as an ongoing business, the Dow Global Ethyleneamines Business to Huntsman in 

accordance with the Huntsman Agreement. Since the divestiture, Dow believes it has complied with its 

obligations under the Huntsman Agreement, including the ARESSA, which prescribes the separation of 

Dow and Huntsman's environmental systems at Dow's Freeport, Texas site, where Huntsman operates 

an ethylenamines plant that is part of the divested Dow Global Ethyleneamines Business. 

As stated in paragraph II.C of the Order, the purpose of the divestiture oftbe Dow Global 

Ethyleneamines Business is to ensure the continued operation of the Dow Global Ethyleneamines 

Business in the same businesses in which the assets and businesses of the Dow Global Ethyleneamines 

Business were engaged at the time of the acquisition by Dow of Union Carbide Corporation, and to 

memorializes the parties' mutually agreed understanding of the meaning of certain otherwise undefined terms in the 

ARESSA. Neither the Order nor the ARESSA requires that Dow seek Commission approval of modifications to 

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PUBLIC VERSION 

remedy the lessening of competition resulting from the acquisition as alleged in the Commission's 

complaint. As explained below, the proposed amendment to the ARESSA satisfies the purposes of the 

Commission's Order. 

As part of the divestiture of the Dow Global Ethyleneamines Business, Dow and 

Huntsman entered into the ARES SA, which contemplated the separation of environmental systems at 

the Freeport site. Given the historical interconnections between the ethyleneamines plant and the other 

Dow businesses at the Freeport site, the ARESSA provided that Dow would undertake certain 

environmental projects to effectuate the separation of these environmental systems. These projects 

included the Wastewater Projects (as defined in the ARESSA), the goal of which was that effluent 

generated by Huntsman and by Dow be separately treated and discharged "to the extent technically 

feasible and economically practicable.,,4 

After the ARESSA was executed, the parties developed a potential Wastewater Project 

comprised of dual deep wells and a related filtration system (the "Deep Well Project," as defined in the 

Deep Well Amendment), which could be implemented pursuant to the ARESSA ifit were "technically 

feasible and economically practicable." 

However, the terms "technically feasible" and "economically practicable" were not 

further defined in the ARESSA. Given the high cost involved and the uncertainty of success of the 

Deep Well Project, it could not be determined with certainty that the project was either "economically 

practicable" or "technically feasible." In the face of this ambiguity, Dow and Huntsman negotiated a 

common understanding of the circumstances under which the Deep Well Project would be "technically 

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divestiture agreements. Indeed, the ARESSA itself - which is incorporated into the Order - states that Dow and 

Huntsman may modify the ARESSA at any time. See ARES SA, § 19.1. 

ARES SA, Section 2.1(a). 

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PUBLIC VERSION 

feasible" and "economically practicable." The Deep Well Amendment reflects this understanding. 

More specifically, the Deep Well Amendment expresses Dow and Huntsman's agreement that the 

deepwell injection of the wastewater stream is a technically feasible solution to the Wastewater Projects 

if there is a filtration system to filter solids from the wastewater stream that meets certain enumerated 

standards. Dow and Huntsman also agree that the expenditure of 

is "economically 

practicable. " 

The Deep Well Amendment also reflects Dow and Huntsman's agreement on other terms 

for the implementation of the Deep Well Project, including the property where the Deep Well Project 

will be conducted and the procedure for obtaining the necessary permits. 

By reducing to writing the terms of the Deep Well Project and Dow and Huntsman's 

understanding of the conditions under which the Deep Well Project is "teclmically feasible" and 

"economically practicable," the Deep Well Amendment will advance the parties' pursuit of the Deep 

Well Project as a Wastewater Project pursuant to the ARESSA and in so doing will facilitate the 

separation of the environmental systems at the site and satisfy the Commission's goals of protecting 

competition. 

For the sake of completeness, we note that the Deep Well Amendment also contains the 

parties' agreement regarding another Wastewater Project, the Storm Water Segregation Sumps (as 

defined in the Deep Well Amendment), which Dow has agreed to undertake, and the Pond Closure 

Project (as defmed in the ARESSA), which was contemplated in the ARES SA. As with the Deep Well 

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PUBLIC VERSION 

Project, the Deep Well Amendment's provisions regarding these environmental projects will facilitate 

the completion of these projects and thereby support the purposes of the Commission's Order. 

II. Conclusion 

The terms of the Deep Well Amendment accomplish the purposes of the Commission's 

Order. Accordingly, Dow respectfully requests that the Commission approve the proposed amendment 

as expeditiously as possible. 

Respectfully submitted, 

j. 

Geor . Cary 

Elaine Ewing 

Cleary, Gottlieb, Steen & Hamilton LLP 

2000 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

Counsel for The Dow Chemical Company 

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CONFIDENTIAL EXHIBIT A 

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Deep Well Amendment 

(Redacted) 

PUBLIC VERSION