On April 5, 2013, Tyson Foods, Inc. agreed to a pay the United States a $4 million civil penalty to resolve alleged Clean Air Act Risk Management Program (RMP) violations at meat processing and packaging facilities owned by Tyson and related entities. This represents one of the largest standalone RMP enforcement penalties since the provision was added to the Clean Air Act in 1990. The Tyson settlement exemplifies EPA’s increasing focus on RMP compliance and enforcement and its intention to seek larger and larger penalties for RMP violations. Especially in light of the April 17 fertilizer plant explosion in West, Texas, owners of RMP-regulated facilities—even those with less obviously hazardous processes such as refrigeration and water treatment—should take note.

The Risk Management Program

Codified in Section 112(r)(7) of the Act and in regulations at 40 C.F.R. Part 68, the Clean Air Act’s Risk Management Program requires the owner and operator of any facility where more than a threshold quantity of a regulated substance is present to develop and implement a Risk Management Plan for the facility. Among other things, the plan must incorporate a process hazard analysis (modeled on the OSHA PSM standard) and must analyze the possible off-site consequences of the release of regulated toxic or flammable substances from the facility. Regulated facilities must conduct regular inspections of process equipment, record standard and emergency operating procedures for regulated processes (and train relevant personnel in those procedures), and conduct regular safety and compliance audits. The Clean Air Act currently authorizes penalties for RMP violations of up to $37,500 per violation per day, although this amount may soon increase as EPA adjusts civil penalties for inflation.

The Tyson Case

The Tyson enforcement action involved 23 facilities in Kansas, Missouri, Iowa, and Nebraska, which were subject to RMP requirements because of anhydrous ammonia used in refrigeration systems. Ammonia releases at some facilities had resulted in property damage, injuries, and one death. EPA inspections found numerous deficiencies in the facilities’ RMP programs. Some of these violations (as charged in the complaint) were significant and were directly related to accidental releases of ammonia. Others were relatively minor, unrelated to actual releases, and occurred at facilities where the safety risk of accidental releases was relatively small.

The Consent Decree agreed to by Tyson calls for a $3.95 million civil penalty and supplemental environmental projects (SEPs) worth $300,000. It also incorporates extensive injunctive relief, including third-party audits of Tyson’s RMP programs and supplemental equipment inspections.

RMP Penalties Are on the Rise

As the Tyson case suggests, RMP penalties are growing. According to EPA enforcement data, average civil penalties in RMP enforcement cases have escalated dramatically in recent years, from about $6,000 in 2009 to almost $18,000 in 2012. (Note that these averages do not include cases in which RMP violations were charged along with other environmental or emergency preparedness violations.) In 2013, the average penalty in RMP cases (not including the Tyson case) has been about $33,000.

And there is room for RMP penalties to further increase. RMP regulations contain long lists of detailed requirements, the failure to fulfill any of which may be charged as a separate RMP violation. Because many RMP deficiencies are “paperwork violations,” they may persist for years before detection, so that statutory maximum penalties (calculated on a per-day basis) may be enormous. Furthermore, under the agency policy used to calculate penalties for RMP violations in settlement discussions, penalties for even minor infractions may be subject to very large upward adjustments if they go on for long periods of time. Coupled with EPA’s willingness (as evidenced by the Tyson case) to charge multiple violations across company-owned facilities, these facts indicate that RMP penalty exposure may be much higher than a facility might expect based solely on the environmental impact of the perceived RMP deficiencies.

RMP Inspections Continue to be a High Priority for EPA

EPA may bring RMP enforcement action following an accidental release of a regulated material. More often, however, the triggering event is not an accident, but an inspection by EPA officials that reveals deficiencies in the facility’s risk management plan, in its execution of the plan (such as failure to conduct regular inspections of process equipment), or in the documentation maintained by the facility in support of the plan. Because RMP requirements are technical and extensive, and because facility personnel are not always prepared to provide required documentation (even when it exists), inspectors may identify many RMP violations even at facilities that run safe operations and try in good faith to comply with RMP requirements.

RMP inspections, especially for high-risk facilities, are a high priority for EPA’s Office of Solid Waste and Emergency Response (OSWER). In FY 2013 guidance to program offices, OSWER called on EPA Regional offices to conduct RMP inspections of at least four percent of all regulated facilities during FY 2013, with 30 percent of the inspections at high-risk facilities. In FY 2011, more than 600 such inspections were conducted.

Regulated facilities—especially those that handle ammonia—may expect even more scrutiny in the wake of the April 17 explosion at the West Chemical and Fertilizer Plant in West, Texas. The West facility reported handling 54,000 pounds of anhydrous ammonia and had a history of RMP violations. According to early news reports, the intensity of the blast significantly exceeded the worst-case release scenario included in the facility’s RMP. The magnitude of the explosion and the resulting deaths and injuries will undoubtedly spur even more scrutiny by EPA and state regulators, particularly of facilities handling potentially explosive materials.

Conclusion

The Tyson settlement is indicative of the significant concern that RMP enforcement may pose to regulated facilities, even where the owner/operators attempt to stay in compliance. Owners of RMP-regulated facilities—especially those which, like Tyson, operate many facilities—should carefully evaluate not only their RMP program compliance, but also their preparedness for EPA inspections.

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