Introduction

The Environmental Protection Agency (EPA) addresses regulatory violations through both civil and criminal proceedings. One common target of EPA enforcement is the Risk Management Plan (RMP) rule, which requires facilities that use hazardous chemicals to have written policies in place for preventing, mitigating, and responding to accidents. RMP rule violations can take a number of forms, from simple administrative oversights to disasters with a body count. Examining EPA enforcement of this rule can demonstrate what RMP rule compliance looks like, how it can go wrong, and what most concerns the EPA about it.

Background

The RMP rule is based in Section 112(r) of the Clean Air Act and regulated at 40 CFR 68 Subpart G. It requires facilities that use certain regulated substances, as specified in 40 CFR 68 Subpart F, to develop an RMP and submit it to the EPA.

The RMP must be readily available to management and workers at the facility, who must also be trained in it, and to local emergency responders and the general public. The tasks of an RMP are to detail:

• The accidents likely to occur at the facility and their effects;
• What the facility is doing to prevent such accidents (e.g., training, maintenance, and inspection); and
• The procedures in place to mitigate, contain, and otherwise address an accident.

Case study: Meat processing establishment

In April 2018 a meat processing establishment was penalized for violating Clean Air Act Section 112(r) as well as 40 CFR 68. An EPA inspection found that the facility:

• Used 250,000 pounds of anhydrous ammonia, a regulated substance in an amount above the threshold quantity of 10,000 pounds;
• Failed to document as required that its equipment complied with accepted engineering practices; and
• Failed to submit appropriate annual certification of its operating procedures for ammonia refrigeration.

The company agreed to pay a fine of $58,549.

This is a case in which enforcement is solely preventative. Nothing bad happened at the facility — no accidental releases, injuries, or other mishaps — and no immediate dangers were identified. However, the company’s lack of required documentation suggested a laxity in their processes and an increased possibility of future mishaps.

Case study: Energy corporation

In October 2018 an energy corporation settled with the EPA, the U.S. Department of Justice, and the Mississippi Department of Environmental Quality in regard to its four refineries in California, Mississippi and Utah, as well as a formerly owned refinery in Hawaii. The EPA began investigating the corporation after a 2012 fire at the refinery in Richmond, CA, led to a shelter-in-place order for the entire county and medical attention for 15,000 residents. Several days earlier, the same refinery had had a hydrogen sulfite release that wasn’t reported properly.

During the EPA investigation, two more incidents occurred:

• An explosion and fire at the Mississippi refinery that killed an employee; and
• A rupture at the El Segundo, CA, refinery that caused power loss and flaring.

The EPA found, unsurprisingly, that the corporation was in violation of the General Duty Clause and the RMP rule. The settlement involved extensive injunctive relief at all their refineries, largely building on requirements from previous settlements about the Richmond incidents, including:

• Replacing pipes;
• Establishing a centralized corporate safety authority;
• Setting up Integrity operating window parameters and alarms; and
• Making other safety improvements, both physical and administrative.

The corporation agreed to pay a $2.95 million penalty, split between the United States and the State of Mississippi (the only refinery state acting as co-plaintiff), and perform $10 million worth of Supplemental Environmental Projects (SEPs), providing equipment and funds to the fire departments of all the affected areas as well as the Mississippi Department of Environmental Quality.

This case seems like an occasion for both optimism and cynicism. EPA achieved injunctions as well as a financial settlement. At the same time, the corporation had a net profit of over $14 billion in 2018; the settlement including SEPs amounted to about 0.09 percent of the year’s net profit, an amount unlikely to be much of a deterrent. The Richmond refinery has since had several fires.

Case study: Explosives manufacturer

In June 2019 an explosives manufacturer settled with the EPA over violations of 40 CFR 68, as well as emergency notification and reporting requirements. The manufacturer failed to properly report two large accidental ammonia releases from an Oregon facility, in 2010 and 2015, as well as routine releases.

The EPA found that the company’s RMP was deficient in regard to:

• Equipment maintenance,
• Regular equipment testing, and
• Written operating procedures.

The manufacturer already paid a $250,000 criminal penalty in relation to the 2015 ammonia release. Under the 2019 settlement, they agreed to:

• Pay a $492,000 civil penalty,
• Provide emergency response equipment to the county affected by the releases as an SEP,
• Update its RMP and its estimates of its ammonia releases, and
• Hire a third-party auditor to assess its compliance.

This case is an example of how criminal and civil proceedings may overlap. It also demonstrates the necessity of compliance in handling all releases — both planned and unplanned.

Case study: Chemical company

In October 2016 a chemical company and three of its holdings pled guilty to criminal violations of the Clean Air Act. The charges arose from two sources:

• Failing to monitor air pollutant leaks from 2008–2012 and falsifying documents related to permit requirements; and
• Falsifying a hot work permit and failing to prepare a tank and piping before welding began, leading to an explosion that killed a worker and severely injured two more.

Under the plea agreement, the companies were:

• Fined a total of $3.3 million, and
• Required to pay $200,000 to the Southern Environmental Enforcement Network for hazardous air release prevention and emergency response training.

This case is a clear demonstration of premeditated criminal negligence. The defendants in this case didn’t forget to turn in their permit paperwork or skip a periodic inspection. Rather, they deliberately created and submitted false paperwork to give the impression of regulatory compliance without the hassle of actually keeping their workers safe.

Criminal enforcement of EPA regulations is far less common than civil enforcement.

Applicable laws & regulations

42 U.S.C. 7401 – Clean Air Act

29 U.S.C. 654 Section 5 – General Duty Clause

40 CFR 68 Subpart F – Regulated Substances for Accidental Release Prevention

40 CFR 68 Subpart G – Risk Management Plan

Related definitions

“Accidental release” means an unintended emission of a regulated substance into the air.

“Hot work” refers to tasks performed using high heat, most often welding.

“Injunctive relief,” or an “injunction,” is granted by a court to prevent a party from doing something or require them to act in a certain way in order to prevent future harm.

“Integrity operating windows” (IOWs) are the sets of limits for each variable that are used to determine the parameters under which a machine can operate safely. A machine operating outside of its IOW is at high risk of malfunction.

“Risk management plan” lays out the potential risks at a facility and puts comprehensive processes in place for prevention, mitigation and response.

“Supplemental Environmental Projects” (SEPs) are projects with environmental or public health benefits proposed by a defendant in an EPA enforcement case as part of the settlement. These are voluntary, go beyond what can be required by law, and relate to the violation in the case.

Key to remember

EPA enforcement of the RMP rule is harshest for disasters, but it can encompass small administrative violations as well. Staying up to date on RMP rule requirements helps keep your workers safe.