Tyson Foods (Tyson) recently agreed to pay approximately $4 million in civil penalties to resolve alleged violations of the Clean Air Act’s Risk Management Program (RMP) at meat processing and packaging facilities owned by Tyson and related entities. The Tyson settlement illustrates a trend toward increased RMP enforcement and greater penalties for violations. This trend will likely continue in light of a recent report issued by the EPA’s Office of Inspector General setting forth several recommendations for enhancing the quality of RMP inspections and a push by Senator Barbara Boxer (D-CA) for greater safety protections at chemical plants following the April 17 explosion at a fertilizer plant in West, Texas.
The RMP, codified in Section 112(r)(7) of the Clean Air Act and in regulations at 40 C.F.R. Part 68, is designed to prevent accidental releases of hazardous substances. It requires owners and operators of facilities that have more than a specified threshold amount of an EPA-listed substance to prepare and implement an accidental release risk management plan, which must contain three main elements:
- A hazard assessment to evaluate the potential effects of an accidental release, including an estimate of potential release quantities and a determination of downwind effects.
- A program for preventing accidental releases of regulated substances, including safety precautions and maintenance, monitoring and employee measures to be used at the source.
- A response program providing for specific actions to be taken in the event of an accidental release, including procedures for informing the public and local agencies responsible for responding to accidental releases, emergency health care and employee training measures.
A facility must submit its plan to the Chemical Safety Board, the state emergency response commission and any local emergency planning committee that has responsibility for planning and responding to accidental releases in the area. Generally speaking, plans must be revised and resubmitted every five years. A new facility must submit a completed RMP as soon as it has an amount of a covered chemical that exceeds the threshold quantity.
The Tyson Settlement
The Tyson enforcement action involved 23 facilities in Kansas, Missouri, Iowa and Nebraska, which were subject to RMP requirements because refrigeration systems at the facilities each contained more than 10,000 pounds of anhydrous ammonia. EPA inspections revealed numerous deficiencies in the facilities’ RMP programs. Further, ammonia releases at some facilities allegedly had caused property damage, injuries and one death.
Under the consent decree, Tyson will pay a $3.95 million penalty. The company also agreed to purchase $300,000 in emergency response equipment for first responders in communities with significant environmental justice concerns in which Tyson operates facilities. In addition, Tyson promised to conduct pipe testing and third-party audits of its ammonia refrigeration systems in all 23 facilities.
Increased Penalties and Enforcement
As the Tyson settlement suggests, penalties for RMP violations are growing. Average civil penalties in stand-alone RMP enforcement cases increased nearly threefold from 2009 to 2012 – rising from about $6,000 to almost $18,000. So far this year, the average penalty in RMP cases, excluding the Tyson case, has been about $33,000.
EPA is also ramping up RMP enforcement efforts. Its Office of Solid Waste and Emergency Response (OSWER) made RMP inspections a high priority for fiscal year 2013. OSWER tasked regional offices with conducting RMP inspections of at least 4 percent of all regulated facilities, with 30 percent of those inspections taking place at high-risk facilities. In addition, EPA is building a more rigorous RMP inspection program in response to a March 2013 OIG report, which concluded that EPA’s RMP inspectors and their supervisors were inadequately trained and that the agency had limited mechanisms in place to ensure that quality inspections were performed. Finally, political pressure (led by Senator Boxer) for increased oversight of chemicals in general is increasing in the aftermath of the West, Texas fertilizer plant explosion.
Given EPA’s increased focus on RMP enforcement and its intention to seek larger penalties for violations, owners of RMP-regulated facilities should carefully evaluate their RMP program compliance and preparedness for EPA inspections. Noncompliance can have severe consequences, as evidenced by the Tyson settlement.