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Commitments and Contingencies | 9 Months Ended
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Sep. 30, 2023
Commitments and Contingencies. |
Commitments and Contingencies | 18. Commitments and Contingencies Environmental Matters Due to the nature of our business, certain of our subsidiaries’ operations are subject to numerous existing and proposed laws and governmental regulations designed to protect human health and the environment, particularly regarding plant wastes and emissions and solid waste disposal. Our consolidated environmental liabilities on an undiscounted basis were $20 million and $22 million as of September 30, 2023 and December 31, 2022, respectively, primarily within our Energy segment, which are included in accrued expenses and other liabilities in our condensed consolidated balance sheets. We do not believe that environmental matters will have a material adverse impact on our consolidated results of operations and financial condition. Energy Clean Air Act Matter - CVR Energy’s indirect wholly-owned subsidiary, Coffeyville Resource Refining & Marketing, LLC (“CRRM”) and certain of its affiliates have agreed to settle claims brought in the United States District Court for the District of Kansas (“D. Kan”) by the United States, on behalf of the EPA, and the State of Kansas, on behalf of the Kansas Department of Health and Environment (“KDHE”) which primarily relate to the CRRM refinery’s flares. The EPA and KDHE are seeking stipulated penalties under a 2012 Consent Decree (“CD”) (the “Stipulated Claims”), which amount CRRM previously deposited into a commercial escrow account and which escrowed funds are legally restricted for use and are included in Other assets in our condensed consolidated balance sheets. The EPA and KDHE also filed a complaint in the D. Kan alleging violations of the Clean Air Act, the Kansas State Implementation Plan, Kansas law, and CRRM’s permits seeking civil penalties, injunctive relief, and related relief in connection with these claims (collectively, the “Statutory Claims”). The parties have reached agreement to resolve the Stipulated Claims and the Statutory Claims subject to final approvals by the EPA and KDHE. The terms of the settlement will be set forth in a consent decree that is in the process of being executed by the parties, which consent decree is subject to the approval and entry by the D. Kan following a period for public notice and comment. Should the settlement and consent decree be finalized as agreed to between the parties, such settlement is not expected to have a material impact on CVR Energy’s financial position, results of operations, or cash flows. Should such settlement not be finalized as agreed to between the parties, CVR Energy cannot determine whether any subsequent enforcement or litigation relating thereto would have a material impact on the Company’s financial position, results of operations, or cash flows. 45Q Transaction In January 2023, CVR Energy and its obligated-party subsidiaries entered into a joint venture and related agreements with unaffiliated third-party investors and others intended to qualify for certain tax credits available under Section 45Q of the Internal Revenue Code. Under the agreements entered into in connection with the 45Q Transactions, CVR Partners and certain of its subsidiaries are obligated to meet certain minimum quantities of carbon dioxide supply each year during the term of the agreement and could be subject to fees of up to $15 million per year, with an overall cap at $45 million, should it fail to perform. Renewable Fuel Standards CVR Energy’s obligated-party subsidiaries are subject to the Renewable Fuel Standard (“RFS”) implemented primarily by the EPA which requires refiners to either blend renewable fuels into their transportation fuels or purchase renewable fuel credits, known as RINs, in lieu of blending. CVR Energy’s obligated party subsidiaries are not able to blend the substantial majority of their transportation fuels and, unless their obligations are waived by the EPA, have to purchase RINs on the open market and may have to obtain waiver credits for cellulosic biofuels or other exemptions from the EPA, to the extent available, in order to comply with the RFS. CVR Energy’s obligated-party subsidiaries have filed a number of petitions in the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) and the United States Court of Appeals for the District of Colombia Circuit (the “DC Circuit”) challenging certain actions taken by the EPA in April 2022 and June 2022 relating to the RFS including but not limited to the EPA’s denial of small refinery exemptions (“SREs”) sought by one of CVR Energy’s obligated-party subsidiaries, Wynnewood Refining Company, LLC (“WRC”), for the 2017 through 2021 compliance periods (the “SRE Denial”), and challenging the EPA’s Final Rule issued in July 2022 establishing renewable volume obligations (“RVO”). CVR Energy’s obligated-party subsidiaries have also intervened in an action filed by certain biofuels producers relating to the RFS. In March 2023, the Fifth Circuit granted WRC’s motion to stay enforcement of the RFS against WRC for the 2020 and 2021 compliance periods pending resolution of its underlying lawsuit relating to the denial; oral argument before the Fifth Circuit took place in October 2023. In July 2023, the EPA denied 26 petitions from small refineries seeking SREs for one or more of the compliance years between 2016 and 2023, including the SRE sought by WRC for 2022, which denial WRC has challenged in court. In October 2023, the Fifth Circuit granted WRC’s motion to stay enforcement of the RFS against WRC for the 2022 compliance period pending resolution of its underlying lawsuit against EPA relating to its denial. CVR Energy cannot yet determine at this time the outcomes of these matters. However, while CVR Energy intends to prosecute these actions vigorously, if these matters are ultimately concluded in a manner adverse to CVR Energy, they could have a material effect on our Energy business’ financial position, results of operations, or cash flows. Our Energy segment recognized a benefit of approximately $135 million and an expense of approximately $86 million for the three months ended September 30, 2023 and 2022, respectively, for CVR Energy’s obligated-party subsidiaries’ compliance with the RFS (based on the 2020, 2021, 2022 and 2023 annual RVO for the respective periods, excluding the impacts of any exemptions or waivers to which the obligated-party subsidiaries may be entitled). For the nine months ended September 30, 2023 and 2022, such benefits were $99 million and such expenses were $328 million, respectively. These recognized amounts are included in cost of goods sold in the condensed consolidated statements of operations and represent costs to comply with the RFS obligation through purchasing of RINs not otherwise reduced by blending of ethanol, biodiesel, or renewable diesel. At each reporting period, to the extent RINs purchased or generated through blending are less than the RFS obligation (excluding the impact of exemptions or waivers to which CVR Refining, LP (“CVR Refining”) may be entitled), the remaining position is valued using RIN market prices at period end using each specific or closest vintage year. As of September 30, 2023 and December 31, 2022, CVR Energy’s obligated-party subsidiaries’ RFS position was $413 million and $692 million, respectively, and is included in accrued expenses and other liabilities in the condensed consolidated balance sheets. Litigation From time to time, we and our subsidiaries are involved in various lawsuits arising in the normal course of business. We do not believe that such normal routine litigation will have a material effect on our financial condition or results of operations. See the matters described under the caption “Other” below. Energy Call Option Coverage Case – In September 2023, the Superior Court of the State of Delaware (the “Delaware Court”) denied the motion filed by the primary and excess insurers (the “Insurers”) of CVR Energy and certain of its affiliates (the “Call Defendants”) seeking to stay the Call Defendants’ action against the Insurers in relation to insurance policies that have coverage limits of $50 million (the “Policies”) alleging breach of contract and breach of the implied covenant of good faith and fair dealing relating to the Insurers’ denial of coverage of the Call Defendants’ defense expenses and indemnity, as well as other conduct of the Insurers, relating to the lawsuits filed by former unitholders of CVR Refining against the Call Defendants relating to CVR Energy’s exercise of the call option under the CVR Refining Amended and Restated Agreement of Limited Partnership assigned to it by CVR Refining’s general partner, which action was settled by the parties on August 19, 2022 (the “Call Option Lawsuits”). This ruling allows CVR Energy’s case against the Insurers to proceed in the Delaware Court. The 434th Judicial District Court of Fort Bend County, Texas (the “Texas Court”) granted summary judgment in the Insurers’ declaratory judgment action seeking determination that the Insurers owe no indemnity coverage in relation to the Policies for settlement of the Call Option Lawsuits, which CVR Energy intends to appeal once final judgment is entered. ​ As CVR Energy’s potential appeal of the Texas Court’s summary judgment rulings and its Delaware Court lawsuit are not yet concluded, CVR Energy cannot determine at this time the outcome of these lawsuits, including whether the outcome would have a material impact on its financial position, results of operations, or cash flows. ​ Other Matters Pension Obligations Mr. Icahn, through certain affiliates, owns 100% of Icahn Enterprises GP and approximately 85% of Icahn Enterprises’ outstanding depositary units as of September 30, 2023. Applicable pension and tax laws make each member of a “controlled group” of entities, generally defined as entities in which there is at least an 80% common ownership interest, jointly and severally liable for certain pension plan obligations of any member of the controlled group. These pension obligations include ongoing contributions to fund the plan, as well as liability for any unfunded liabilities that may exist at the time the plan is terminated. In addition, the failure to pay these pension obligations when due may result in the creation of liens in favor of the pension plan or the Pension Benefit Guaranty Corporation (the “PBGC”) against the assets of each member of the controlled group. As a result of the more than 80% ownership interest in us by Mr. Icahn’s affiliates, we and our subsidiaries are subject to the pension liabilities of entities in which Mr. Icahn has a direct or indirect ownership interest of at least 80%, which includes the liabilities of pension plans sponsored by Viskase and ACF Industries LLC (“ACF”), an affiliate of Mr. Icahn. All the minimum funding requirements of the Internal Revenue Code, as amended, and the Employee Retirement Income Security Act of 1974, as amended, for the Viskase and ACF plans have been met as of September 30, 2023. If the plans were voluntarily terminated, they would be underfunded by an aggregate of approximately $35 million as of September 30, 2023. These results are based on the most recent information provided by the plans’ actuaries. These liabilities could increase or decrease, depending on a number of factors, including future changes in benefits, investment returns, and the assumptions used to calculate the liability. As members of the controlled group, we would be liable for any failure of Viskase or ACF to make ongoing pension contributions or to pay the unfunded liabilities upon a termination of the Viskase or ACF pension plans. In addition, other entities now or in the future within the controlled group in which we are included may have pension plan obligations that are, or may become, underfunded and we would be liable for any failure of such entities to make ongoing pension contributions or to pay the unfunded liabilities upon termination of such plans. The current underfunded status of the pension plans of Viskase and ACF requires them to notify the PBGC of certain “reportable events,” such as if we cease to be a member of the Viskase or ACF controlled group, or if we make certain extraordinary dividends or stock redemptions. The obligation to report could cause us to seek to delay or reconsider the occurrence of such reportable events. Starfire Holding Corporation (“Starfire”), which is 99.6% owned by Mr. Icahn, has undertaken to indemnify us and our subsidiaries from losses resulting from any imposition of certain pension funding or termination liabilities that may be imposed on us and our subsidiaries or our assets as a result of being a member of the Icahn controlled group, including ACF. The Starfire indemnity provides, among other things, that so long as such contingent liabilities exist and could be imposed on us, Starfire will not make any distributions to its stockholders that would reduce its net worth to below $250 million. Nonetheless, Starfire may not be able to fund its indemnification obligations to us. Other Icahn Enterprises L.P. was contacted on May 3, 2023 by the U.S. Attorney’s office for the Southern District of New York and on June 21, 2023 by the staff of the Division of Enforcement of the U.S. Securities and Exchange Commission (the “SEC”), seeking production of information relating to the Company and certain of its affiliates’ corporate governance, capitalization, securities offerings, disclosure, dividends, valuation, marketing materials, due diligence and other materials. We are cooperating with these requests and investigations and are providing documents in response to these requests for information. In addition, two putative securities class action lawsuits have been filed against the Company in the U.S. District Court for the Southern District of Florida alleging violations of the federal securities laws, Okaro v. Icahn Enterprises L.P. et al., Case No. 23-21773 (S.D. Fl.), and Levine v. Icahn Enterprises L.P. et al., Case No. 23-22009 (S.D. Fl.). These lawsuits have been consolidated but a lead plaintiff has not been appointed. A derivative complaint has also been filed in the U.S. District Court for the Southern District of Florida, naming the Company’s general partner, its directors, and certain current and former officers as defendants, and the Company as a nominal defendant, alleging breaches of fiduciary duties with respect to the Company’s disclosure, Patrick Pickney v. Icahn Enterprises G.P. Inc. Case No. 1:23-cv-22932-KMW (S.D. Fl.). We believe that we maintain a strong compliance program and, while no assurances can be made, and we are still evaluating these matters, we do not currently believe that these inquiries and litigations will have a material impact on our business, financial condition, results of operations or cash flows. ​

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