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Enforcement

Tyson Foods, Inc. Clean Air Act (CAA) Settlement

(Washington, DC ­ April 5, 2013) The U.S. Environmental Protection Agency

(EPA) and the U.S. Department of Justice announced a Clean Air Act (CAA)

settlement with Tyson Foods, Inc. and several of its affiliate corporations to

address threats of accidental chemical releases after anhydrous ammonia was

released during incidents at facilities in Kansas, Missouri, Iowa, and Nebraska,

resulting in multiple injuries, property damage, and one fatality.

On this page:

Settlement Resources

Press Release

Consent Decree

Overview of Company

Violations

Injunctive Relief

Pollutant Impacts

Health Effects and Environmental Benefits

Civil Penalty

Comment Period

Contact

Overview of Company

Tyson Foods, Inc. (Tyson) was founded in 1935 with its headquarters in

Springdale, Arkansas. Tyson is the world’s largest processor and marketer of

chicken, beef and pork, the second largest food production company in the

Fortune 500 and a member of the S&P 500. Tyson has revenues of more than $5.2

billion and employs approximately 117,000 people at 400 facilities nationwide.

Violations
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Section 112(r) of the CAA and the implementing regulations at 40 C.F.R.

Part 68, require owners and operators of a stationary source that has more

than a threshold quantity of a regulated substance in a process to develop

and implement a risk management program. The stationary source’s risk

management program is to be described in a risk management plan that

must be submitted to EPA. The Tyson facilities named in this consent

decree are subject to these regulations because the refrigeration systems at

these facilities each contain more than the threshold of 10,000 pounds of

anhydrous ammonia.

On October 31, 2006, an anhydrous ammonia release occurred at the South

Hutchinson, KS facility resulting in one fatality and one injury. An OSHA

investigation revealed that the Standard Operating Procedure (SOP)

requiring personal protective equipment was inadequate and that the safety

relief valve that failed was installed incorrectly, and was corroded and

worn.

On November 8, 2006, an anhydrous ammonia release occurred at the

Sedalia, MO facility resulting in three onsite injuries and $125,000 in

property damage. EPA conducted an inspection on November 18, 2009, and

found that the February 17­20, 2009, Process Hazard Analysis noted

numerous deficiencies which had not been corrected, including

Management of Change Review related to valve motors and multiple

nuisance leaks occurring during the manual operation of the valves (similar

to what occurred on the November 8, 2006, ammonia release).

On December 9, 2006, an anhydrous ammonia release occurred at the

Hutchinson, KS facility resulting in ten injuries and 43.71 pounds migrating

off­site. An OSHA inspection revealed that the vibration on the filter

housing caused threads to deteriorate, allowing the filter oil seal to fail.

On December 26, 2006, an anhydrous ammonia release occurred at the

Omaha, NE facility resulting in 5 on­site injuries and the evacuation of 475

employees. Both OSHA and EPA conducted inspections which revealed

that Tyson’s mechanical integrity program relative to the change out of the

failed valve was not implemented and there was no documentation of the

inspection, testing or 5­year change­out of the safety relief valve.

On October 4, 2007, and November 5, 2009, there were anhydrous

ammonia releases at the Perry, IA facility that injured the same employee.

Tyson blamed the October 4, 2007, incident on operator error alleging that

the employee failed to lock out the ammonia line when initiating a line

break and failure to follow SOPs for proper personal protective equipment.

However, it was also noted in incident investigation that there was a 3 way

safety relief valve failure.

On October 30, 2007, there was an anhydrous ammonia release at the Sioux

City, IA facility that resulted in one injury and the release of 3,867 lbs. of

ammonia.

On November 5, 2009, the same employee was exposed to anhydrous

ammonia, burned over 25% of his body and spent 45 days in the hospital.

Again, Tyson blamed the operator and cited four operator errors in the

incident investigation report: failure to pump out/lock out; failure to utilize

a line breaking permit; lack of use of PPE; and failure to follow proper hand

valve opening and closing SOP guidelines. However, OSHA found that

there was a broken and/or defective reducer in the safety relief valve that
12/11/2015 Tyson Foods, Inc. Clean Air Act (CAA) Settlement | Enforcement | US EPA

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should not have been there and that lead to the valve failure.

On December 13, 2010, an anhydrous ammonia release occurred at the

Madison, NE facility resulting in 3 injuries and a release of 309 lbs. of

ammonia. Tyson states in its May 23, 2011, response to EPA’s Information

Request that given the date of the incident; the incident investigation is still

open. The point of discharge was from a pressure relief valve header on the

roof.

The numerous deficiencies in Tyson facilities’ RMPs described above constitute

violations of 40 C.F.R. Part 68, and therefore are violations of Section 112(r) of

the CAA, 42 U.S.C. § 7412(r).

Injunctive Relief

Tyson is required to, as part of the settlement embodied in the Decree:

Conduct third­party audits of its current compliance with the Clean Air

Act’s Risk Management Program requirements at its 23 facilities in EPA

Region VII that operate on or more covered processes (ammonia

refrigeration equipment). The Audit Protocol requires that third­party

auditors with expertise in ammonia refrigeration systems and who are

recognized experts in PSM/RMP compliance conduct paper reviews of

Tyson’s engineering and design specifications as they relate to the physical

systems of the covered processes at the facilities. The Auditor shall next

conduct on­site Audits of the ammonia refrigeration systems at all the

facilities according to a schedule set forth in the audit protocol. Within 30

days after the completion of each on­site Audit, the Auditor shall provide a

report to Tyson and EPA. Within 45 days of receiving the Audit report,

Tyson shall submit a response to EPA which shall include a plan to correct

identified violations within 6 months for non­capital expenditures and

within 12 months for capital expenditures. Once Tyson has completed

implementation of any corrective measure, Tyson shall certify the

completion of the work.

In addition, Tyson has agreed to perform non­destructive testing at certain

piping used in its refrigeration systems at the 23 facilities. The nondestructive testing is designed to identify piping that was partly responsible

for some of the anhydrous ammonia releases by testing threaded piping

connections less than two (2) inches in diameter because of their potential

for failure.

Pollutant Impacts

The terms of the Consent Decree address accidental releases of anhydrous

ammonia. The 23 facilities in Region VII have a combined inventory of 1,779,257

of anhydrous ammonia on­site. The super compliance resulting from the extensive

third­party audits should eliminate the risk of future anhydrous ammonia releases.

Health Effects and Environmental Benefits
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Anhydrous ammonia is considered a poisonous gas. Exposure to its vapors can

cause temporary blindness and eye damage, and irritation of the skin, mouth,

throat, respiratory tract and mucous membranes. Prolonged exposure to

anhydrous ammonia vapor at high concentrations can lead to serious lung damage

and even death.

Civil Penalty

Tyson will pay a $3.95 million penalty to the United States.

Comment Period

The proposed settlement, lodged in the U.S. District Court for the Eastern District

of Missouri, is subject to a 30­day public comment period and final court

approval. Information on submitting comments is available at the Department of

Justice website.

For more information, contacts:

Dean B. Ziegel

Waste and Chemical Enforcement Division

U. S. Environmental Protection Agency

1200 Pennsylvania Ave, NW (MC 2249A)

Washington, DC 20460

(202) 564­4038

ziegel.dean@epa.gov

Anne Rauch

Office of Regional Counsel

U.S. EPA, Region VII

901 North 5th Street

Kansas City, Kansas 66101

(913) 551­7288

rauch.anne@epa.gov

Last updated on March 12, 2015
 

 

 

 

 

 

Case: 1:13-cv-00056-LMB Doc. #: 2-1 Filed: 04/04/13 Page: 1 of 54 PageID #: 69 

UNITED STATES DISTRICT COURT
 

FOR THE EASTERN DISTRICT OF MISSOURI 

SOUTHEASTERN DIVISION 

UNITED STATES OF AMERICA ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

TYSON FOODS, INC., ) 

IBP REDEVELOPMENT CORP., ) Civil Action No. 1:13-cv-56 

IBP FOOD CO., ) 

FOODBRANDS SUPPLY CHAIN ) 

SERVICES, INC., ) CONSENT DECREE 

TYSON CHICKEN, INC., ) 

TYSON DELI, INC., ) 

TYSON FRESH MEATS, INC., ) 

TYSON POULTRY, INC., ) 

TYSON PREPARED FOODS, INC., ) 

TYSON PROCESSING SERVICES, INC., ) 

and TYSON REFRIGERATED ) 

PROCESSED MEATS, INC., ) 

)
 

Defendants. ) 

____________________________________) 

United States v. Tyson Foods, Inc., et al. Consent Decree Page 1 
WHEREAS Plaintiff the United States of America, on behalf of the United States

Environmental Protection Agency ("EPA"), has filed a complaint in this action concurrently with

this Consent Decree, pursuant to Section 113(b) of the Clean Air Act ("CAA" or the "Act"), 42

U.S.C. § 7413(b), alleging that Tyson Foods, Inc., IBP Redevelopment Corp., IBP Food Co.,

Foodbrands Supply Chain Services, Inc., Tyson Chicken, Inc., Tyson Deli, Inc., Tyson Fresh

Meats, Inc., Tyson Poultry, Inc., Tyson Prepared Foods, Inc., Tyson Processing Services, Inc.,

and Tyson Refrigerated Processed Meats, Inc., (collectively "Tyson" or the "Defendants")

violated Section 112(r) of the CAA, 42 U.S.C. § 7412(r).

WHEREAS The Complaint against Tyson alleges violations of Section 112(r)(7) of the

CAA at twenty-three of Tyson's facilities in Nebraska, Iowa, Missouri and Kansas. Tyson uses

anhydrous ammonia in the refrigeration processes at these Facilities. Anhydrous ammonia is an

"extremely hazardous substance" regulated by Section 112(r)(3) of the CAA. Because of the use

of an extremely hazardous substance in an amount above the threshold quantity of 10,000

pounds, all of the Facilities covered in this Decree are subject to the requirements of the Risk

Management Program provisions of Section 112(r)(7) of the CAA, and its implementing

regulations, 40 C.F.R. Part 68.

WHEREAS Based on inspections, information requests, and internal reports, EPA alleges

that there have been multiple occasions of noncompliance with the requirements of the chemical

accident prevention provisions of the CAA, including failure to test or replace safety relief

valves, improperly co-located gas-fired boilers and ammonia compressors, and failure to abide

by the Risk Management Program requirements of CAA § 112(r)(7).

United States v. Tyson Foods, Inc., et al. Consent Decree Page 2

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WHEREAS Tyson does not admit any liability to the United States arising out of the

transactions or occurrences alleged in the Complaint or otherwise.

WHEREAS The Parties recognize, and the Court by entering this Consent Decree finds,

that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation

between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

NOW, THEREFORE, before the taking of any testimony, without the adjudication or

admission of any issue of fact or law except as provided in Section I, and with the consent of the

Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

I. JURISDICTION AND VENUE

This Court has jurisdiction over the subject matter of the United States' claims in

this action and over the parties pursuant to 28 U.S.C. §§ 1331, 1345, and 1355; and Section

113(b) of the CAA, 42 U.S.C. § 7413(b), and over the Parties. Venue lies in this District

pursuant to 28 U.S.C. §§ 1391(b), (c), and 1395(a), and Section 113(b) of the CAA, 42 U.S.0

§ 7413(b), because Defendants do business in this District and events giving rise to the claims

alleged herein occurred in this District.

2. For purposes of this Consent Decree only, Defendants agree that the Complaint

states claims upon which relief may be granted pursuant to Sections 112(r) and 113 of the CAA,

42 U.S.C. §§ 7412(r), 7413.

II. APPLICABILITY

3. The obligations of this Consent Decree apply to and are binding upon the United

States, and upon Defendants and upon any successors, assigns, or other entities or persons

otherwise bound by law.

4. No transfer of ownership or operation of the Facilities or any portion thereof,

prior to the Termination Date, whether in compliance with the procedures of this Paragraph or

United States v. Tvson Foods, Inc., et al. Consent Decree Page 3

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otherwise; shall relieve Defendants of their obligation to ensure that the terms of this Decree are

implemented, except as described in Paragraph 5, below. At least thirty (30) Days prior to such

transfer, Defendants shall provide a copy of this Consent Decree to the proposed transferee and

shall simultaneously provide written notice of the prospective transfer, together with a copy of

the proposed written agreement to EPA Region 7 and to the United States, in accordance with

Section XVI (Notices) of this Decree. Any attempt to transfer ownership or operation of the

Facilities without complying with this Paragraph constitutes a violation of this Decree.

5. If Defendants propose to sell or transfer a Facility after implementation of

Appendices A and B of the Consent Decree is complete at that Facility to an entity unrelated to

Defendants ("Third Party"), they shall advise the Third Party in writing of the existence of this

Consent Decree prior to such sale or transfer, and shall send a copy of such written notification

to the Plaintiff pursuant to Section XVI (Notices) of this Decree at least thirty (30) Days before

such proposed sale or transfer. The notification to Plaintiff shall specify the Facility proposed

for sale or transfer. The notification to Plaintiff shall also provide certification that

implementation of Appendices A and B of the Consent Decree, and any corrective measures

required as a result of the audits and testing conducted pursuant to Appendices A and B,

respectively, is complete at that Facility.

a. Upon completion of a sale or transfer in compliance with this Paragraph,

Defendants are hereby released from the obligations and liabilities of this Consent

Decree with respect to the sold or transferred Facility.

b. Sales or transfers of Facilities among entities that are not Third Parties are not

subject to this Paragraph and do not relieve Defendants of any obligations under

this Consent Decree.

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c. This Paragraph and Paragraph 4 of the Consent Decree do not apply if an

operational or ownership interest is sold or transferred solely as collateral security

in order to consummate a financing arrangement, so long as Defendants remain

the operator (as that term is used and interpreted under the CAA) of the subject

Facility and remain subject to and liable for all obligations and liabilities of this

Consent Decree.

d. Notwithstanding any other provision of this Decree, Tyson may assert that any

notice and associated documentation provided pursuant to Paragraphs 4 or 5

contains confidential business information pursuant to 40 C.F.R. Part 2.

6. This Consent Decree shall not be construed to impede the transfer of any

operational or ownership interest in any Facility between Defendants and any Third Party so long

as the requirements of this Consent Decree are met. This Consent Decree shall not be construed

to prohibit a contractual allocation as between Defendants and any Third Party of the burdens of

compliance with this Consent Decree, so long as the requirements of this Consent Decree are

met. Any contractual allocation Defendants enter pursuant to this Paragraph does not alter their

burdens of compliance with this Consent Decree.

7. Nothing in this Consent Decree shall be construed to require Defendants to

continue to operate any Facility. The idling or closure of a Facility shall not relieve Defendants

of any obligations under the Consent Decree with respect to such Facility except as provided

herein. Should Defendants decide to permanently close any Facility at which implementation of

Appendices A and B of this Consent Decree are not yet complete, Defendants may petition EPA

for relief from those Appendices. EPA shall grant the petition if Defendants have ceased all

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operations and surrendered all operational permits for the Facility. In its sole discretion, EPA

may grant the petition in other circumstances deemed appropriate by EPA.

8. Defendants shall provide a copy of this Consent Decree to all officers, employees,

and agents whose duties might reasonably include compliance with any provision of this

Decree. Defendants shall also provide to any contractor retained to perform work required

under this Consent Decree with the provisions of the Consent Decree that are relevant to the

work that contractor is performing. Defendants shall condition any contract to perform such

work upon performance of the work in conformity with the terms of this Consent Decree.

9. Defendants agree not to contest the validity of the Consent Decree in any

subsequent proceeding to implement or enforce its terms.

10. In any action to enforce this Consent Decree, Defendants shall not raise as a

defense the failure by any of its officers, directors, employees, agents, or contractors to take any

actions necessary to comply with the provisions of this Consent Decree.

III. OBJECTIVES

11. It is the purpose of the Parties to this Consent Decree to further the objectives of

Section 112(r) of the CAA, 42 U.S.C. § 7412(r).

IV. DEFINITIONS

12. Terms used in this Consent Decree that are defined or used in the CAA, or in

regulations promulgated thereunder, shall have the meanings assigned to them in such statute or

such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below

are used in this Consent Decree, the following definitions shall apply:

a. "Complaint" shall mean the complaint filed by Plaintiff in this action.

b. "Consent Decree" or "Decree" shall mean this Decree, including all appendices.

c. "Covered Process" shall mean "a process that has a regulated substance present in

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more than a threshold quantity as determined under 40 C.F.R. § 68.115."

40 C.F.R. § 68.3.

d. "Day" shall mean a calendar day unless expressly stated to be a business day. In

computing any period of time under this Consent Decree, where the last day

would fall on a Saturday, Sunday, or federal holiday, the period shall run until the

close of business of the next business day.

e. "Date of Lodging" shall mean the day that this Consent Decree is lodged with the

Court for the public comment period.

f. "Defendants" shall mean Tyson Foods, Inc., IBP Redevelopment Corp., IBP Food

Co., Foodbrands Supply Chain Services, Inc., Tyson Chicken, Inc., Tyson Deli,

Inc., Tyson Fresh Meats, Inc., Tyson Poultry, Inc., Tyson Prepared Foods, Inc.,

Tyson Processing Services, Inc., and Tyson Refrigerated Processed Meats, Inc.

g. "EPA" shall mean the United States Environmental Protection Agency and any

of its successor departments or agencies.

h. "Effective Date" shall have the definition provided in Section XVII of this

Decree.

"Facilities" shall mean Defendants' facilities in the following locations:

• 1300 S. Lake Street, Cherokee, Iowa

• Highway 70 North, Columbus Junction, Iowa

• 2700 23~d Avenue and 2101 South 29th Street, Council Bluffs, Iowa

(Including both the Case Ready and Cooked Meat Processes)

• 2490 Lincoln Way, Denison, Iowa

• 13500 I Court, Perry, Iowa

• 3939 South Lewis Boulevard, Sioux City, Iowa

• 2101 West 6~' Street, Emporia, Kansas

• 9 North Washington Street, South Hutchinson, Kansas

• 521 South Main, Hutchinson, Kansas

• 1001 East Stoddard, Dexter, Missouri

• ,19571 Whitfield Road, Sedalia, Missouri

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• Highway 35, Dakota City, Nebraska

• 1500 Plum Creek Parkway, Lexington, Nebraska

• 1200 Industrial Parkway, Madison, Nebraska

• 13076 Renfro Circle, Omaha, Nebraska

• 1901 South Saint Louis Street, Concordia, Missouri

• West Highway 50, Finney County, Kansas

• .800 County Road, Monett, Missouri

• 1001 Harness Drive, Montgomery City, Missouri

• 1 Tyson Avenue, Noel, Missouri

• 20701 West 159`x' Street, Olathe Distribution Center, Olathe, Kansas

• 1009 Richland Street, Storm Lake, Iowa

• 501 North Elk Run Road, Waterloo, Iowa (Including both the Animal

Slaughtering and Meat from Carcass Processes)

j. "Interest" shall mean interest at the rate specified in 28 U.S.C. § 1961.

k. "Non-Destructive Testing Protocol" shall mean the entirety of the compliance

obligations described in and established in Appendix B to this Consent Decree.

1. "Paragraph" shall mean a portion of this Decree identified by an Arabic numeral.

m. "Parties" shall mean the United States and Defendants.

n. "Plaintiff 'shall mean the United States.

o. "Regulated Substance" shall mean "any substance listed pursuant to section

112(r)(3) of the Clean Air Act, as amended, in 40 C.F.R. § 68.130." 40 C.F.R.

§ 68.3.

p. "Section" shall mean a portion of this Decree identified by a Roman numeral.

q. "Termination Date" shall mean the date this Consent Decree terminates as

provided by Section XX of this Decree.

r. "Third Party Audit Protocol" shall mean the entirety of the compliance

obligations described in and established in Appendix A to this Consent Decree.

s. "United States" shall mean the United States of America, acting on behalf of

EPA.

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V. PAYMENTS

13. Within thirty (30) Days after the Effective Date of this Consent Decree,

Defendants shall pay the sum of $3,950,000 as a civil penalty. Defendants shall pay this civil

penalty and Interest, if any, by FedWire Electronic Funds Transfer ("EFT") to the U.S.

Department of Justice in accordance with written instructions to be provided to Defendants,

following lodging of the Consent Decree, by the Financial Litigation Unit of the U.S. Attorney's

Office for the Eastern District of Missouri. Any payments received by the Department of Justice

after 4:00 pm Eastern Time shall be credited on the next business day. At the time of payment,

Defendants shall send a copy of the EFT authorization form and the EFT transaction record,

together with a transmittal letter, which shall state that the payment is for the civil penalty owed

pursuant to the Consent Decree in United States v. Tyson Foods, Inc. et al., and shall reference

the civil action number and DOJ case number 90-5-2-1-10377, to the United States in

accordance with Section XVI (Notices) of this Decree; by email to

acctsreceivable.CINWD(cLepa~ov; and by mail to:

EPA Cincinnati Finance Office

26 Martin Luther King Drive

Cincinnati, Ohio 45268

14. The Defendants shall not deduct any penalties paid under this Decree pursuant to

this Section or Section XI (Stipulated Penalties) of this Decree in calculating its federal income

tax.

VI. COMPLIANCE REQUIREMENTS

15. Defendants shall comply with all applicable Risk Management Program statutory

requirements under 42 U.S.C. § 112(r)(7) and regulations promulgated thereunder at 40 C.F.R.

Part 68 at the Facilities.

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16. Defendants shall comply with and implement all provisions of the Third Party

Audit Protocol embodied in Appendix A attached hereto.

17. Defendants shall comply with and implement all provisions of the NonDestructive Testing Protocol embodied in Appendix B attached hereto.

VII. REPORTING REQUIREMENTS

18. Defendants shall timely submit all reports and deliverables described in the Third

Party Audit Protocol, Appendix A; the Non-Destructive Testing Protocol, Appendix B; and the

Protocol for Supplemental Environmental Project, Appendix C.

19. Whenever any violation of this Consent Decree or any other event affecting

Defendants' performance under this Decree, or the performance of its Facility, may pose an

immediate threat to the public health or welfare or the environment, Defendants shall notify EPA

orally or by electronic or facsimile transmission as soon as possible, but no later than 24 hours

after Defendants first knew of the violation or event. This procedure is in addition to the

requirements set forth in the preceding Paragraph.

20. All reports shall be submitted to the persons designated in Section XVI (Notices)

of this Decree.

21. Each report submitted by Defendants under this Section shall be signed by a

senior official of the submitting party and include the following certification:

I certify under penalty of law that this document and all

attachments were prepared under my direction or supervision in

accordance with a system designed to assure that qualified

personnel properly gather and evaluate the information submitted.

Based on any personal knowledge I may have and my inquiry of

the person or persons who manage the system, or those persons

directly responsible for gathering the information, the information

submitted is, to the best of my knowledge and belief, true,

accurate, and complete. I am aware that there are significant

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penalties for submitting false information, including the possibility

of fine and imprisonment for knowing violations.

22. This certification requirement does not apply to emergency notifications where

compliance would be impractical.

23. The reporting requirements of this Consent Decree do not relieve Defendants of

any reporting obligations required by any federal, state, or local law, regulation, permit, or other

requirement.

24. Any information provided pursuant to this Consent Decree may be used by the

United States in any proceeding to enforce the provisions of this Consent Decree and as

otherwise permitted by law.

VIII. APPROVAL OF DELIVERABLES

25. Approval of Deliverables. After review of any plan, report, or other item that is

required to be submitted pursuant to this Consent Decree, EPA shall in writing: a) approve the

submission; b) approve the submission upon specified conditions; c) approve part of the

submission and disapprove the remainder; or d) disapprove the submission. Specifically, the

following plans, reports, or other items are subject to this Section: Defendants' responses to

Audit reports pursuant to Section 6 of Appendix A; and Defendants' reports pursuant to Section

5 of Appendix B. Provided, however, that nothing in this Section shall prevent Defendants from

invoking dispute resolution pursuant to Paragraph 6.3 of Appendix A after receipt of any Audit

report.

26. If the submission is approved pursuant to Paragraph 25.a, Defendants shall take

all actions required by the plan, report, or other document, in accordance with the schedules and

requirements of the plan, report, or other document, as approved. If the submission is

conditionally approved or approved only in part, pursuant to Paragraph 25.b or .c, Defendants

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shall, upon written direction from EPA, take all actions required by the approved plan, report, or

other item that EPA determines are technically severable from any disapproved portions, subject

to Defendants' right to dispute only the specified conditions or the disapproved portions, under

Section XIII (Dispute Resolution) of this Decree. If the submission is disapproved in whole or in

part pursuant to Paragraph 25.c or .d, Defendants shall, within 30 Days or such other time as the

Parties agree to in writing, correct all deficiencies and resubmit the plan, report, or other item, or

disapproved portion thereof, for approval, in accordance with the preceding Paragraphs. If the

resubmission is approved in whole or in part, Defendants shall proceed in accordance with the

preceding Paragraph.

27. Any stipulated penalties applicable to the original submission, as provided in

Section XI (Stipulated Penalties) of this Decree, shall accrue during the 30-Day period or other

specified period, but shall not be payable unless the resubmission is untimely or is disapproved

in whole or in part; provided that, if the original submission was so deficient as to constitute a

material breach of Defendants' obligations under this Decree, the stipulated penalties applicable

to the original submission shall be due and payable notwithstanding any subsequent

resubmission.

28. If a resubmitted plan, report, or other item, or portion thereof, is disapproved in

whole or in part, EPA may again require Defendants to correct any deficiencies, in accordance

with the preceding Paragraphs, or may itself correct any deficiencies, subject to Defendants'

right to invoke Dispute Resolution and the right of EPA to seek stipulated penalties as provided

in the preceding Paragraphs.

29. Permits. Where any compliance obligation under this Consent Decree requires

Defendants to obtain a federal, state, or local permit or approval, Defendants shall submit timely

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and complete applications and take all other actions necessary to obtain all such permits or

approvals.

30. Failure of Compliance. Notwithstanding the review or approval by any agency of

the United States of any plans, reports, policies or procedures formulated pursuant to the Consent

Decree, Defendants will remain solely responsible for compliance with the terms of the Consent

Decree, all applicable permits, and all applicable federal, state, regional, and local laws and

regulations, except as provided in Section XII (Force Majeure) of this Decree.

IX. SUPPLEMENTAL ENVIRONMENTAL PROJECT

31. Defendants shall implement a Supplemental Environmental Project ("SEP"), in

accordance with Appendix C of this Consent Decree.

32. Defendants are responsible for the satisfactory completion of the SEP in

accordance with the requirements of this Decree. Defendants may use contractors or consultants

in planning and implementing the SEP.

33. With regard to the SEP, Defendants certify the truth and accuracy of each of the

following:

a. that all cost information provided to EPA in connection with EPA's approval of

the SEP is complete and accurate and that Defendants in good faith estimate that

the cost to implement the SEP is $300,000;

b. that, as of the date of executing this Decree, Defendants are not required to

perform or develop the SEP by any federal, state, or local law or regulation and

are not required to perform or develop the SEP by agreement, grant, or as

injunctive relief awarded in any other action in any forum;

c. that the SEP is not a project that Defendants were planning or intending to

construct, perform, or implement other than in settlement of the claims resolved in

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this Decree;

d. that Defendants are not party to any open federal financial assistance transaction

that is funding or could be used to fund the same activity as the SEP nor has the

same activity been described in an unsuccessful federal financial assistance

transaction proposal submitted to EPA by Defendants within two (2) years of the

date of Defendants' execution of this Consent Decree (unless the project was

barred from funding as statutorily ineligible);

e. ,that Defendants have inquired of each fire department listed in Attachment 1 to

Appendix C (the SEP Protocol), whether they are party to an open federal

financial assistance transaction that is funding or could fund the same activity as

the SEP and whether the same activity has been described in an unsuccessful

federal financial assistance transaction proposal submitted to EPA by the fire

departments listed in Attachment 1 to Appendix C, within two (2) years of the

date of Defendants execution of this Consent Decree (unless the project was

barred from funding as statutorily ineligible), and has been informed that there is

no such open federal financial assistance transaction and no such unsuccessful

proposal;

f. that Defendants are not otherwise aware of any open federal financial assistance

transaction that is funding or could fund the same activity as the SEP;

g. that Defendants have not received and will not receive credit for the SEP in any

other enforcement action;

h. that Defendants have not received and will not receive credit for the SEP in any

other enforcement action; and

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i. that Defendants will not receive any reimbursement for any portion of the SEP

from any other person.

j. For purposes of this Paragraph "open federal financial assistance transaction"

refers to a grant, cooperative agreement, loan, federally-guaranteed loan

guarantee, or other mechanism for providing federal financial assistance whose

performance period has not yet expired.

34. SEP Completion Report. Within 30 days after the date set for completion of the

SEP, Defendants shall submit a SEP Completion Report to the United States, in accordance with

Section XVI (Notices) of this Decree.. The SEP Completion Report shall contain the following

information:

a. a detailed description of the SEP as implemented;

b. a description of any problems encountered in completing the SEP and the

solutions thereto;

c. an itemized list of all eligible SEP costs expended;

d. certification that the SEP has been fully implemented pursuant to the provisions

of this Decree; and

e. a description of the environmental and public health benefits resulting from

implementation of the SEP.

35. EPA may, in its sole discretion, require information in addition to that described

in the preceding Paragraph, in order to evaluate Defendants's completion report.

36. Within 90 days after receiving the SEP Completion Report, the United States

shall notify Defendants whether or not Defendants have satisfactorily completed the SEP. If

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Defendants have not completed the SEP in accordance with this Consent Decree, .stipulated

penalties may be assessed under Section XI of this Consent Decree.

37. Disputes concerning the satisfactory performance of the SEP and the amount of

eligible SEP costs shall be resolved under Section XIII (Dispute Resolution) of this Consent

Decree.

38. Each submission required under this Section shall be signed by an official with

knowledge of the SEP and shall bear the certification language set forth in Paragraph 21.

39. Any public statement, oral or written, in print, film, or other media, made by

Defendants making reference to the SEP under this Decree shall include the following language:

"This project was undertaken in connection with the settlement of an enforcement action, United

States v. Tyson Foods, Inc. et al., taken on behalf of the U.S. Environmental Protection Agency

under the Clean Air Act."

40. For federal income tax purposes, Defendants agree that they will neither capitalize

into inventory or basis nor deduct any costs or expenditures incurred in performing the SEP.

X. INFORMATION COLLECTION. RECORDKEEPING AND RETENTION

41. The United States and its representatives, including attorneys, contractors, and

consultants, shall have the right of entry into any facility covered by this Consent Decree, upon

presentation of credentials, to:

a. monitor the progress of activities required under this Consent Decree;

b. verify any data or information submitted to the United States in accordance with

the terms of this Consent Decree;

c. obtain documentary evidence, including photographs and similar data; and

d. assess Defendants' compliance with this Consent Decree.

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42. Until five (5) years after the termination of this Consent Decree, Defendants shall

retain, and shall instruct its contractors and agents to preserve, all non-identical copies of all

documents, records, or other information (including documents, records, or other information in

electronic form) in its or its contractors' or agents' possession or control, or that come into its or

its contractors' or agents' possession or control, and that relate to Defendants' performance of its

obligations under this Consent Decree. This information-retention requirement shall apply

regardless of any contrary corporate or institutional policies or procedures. At any time during

this information-retention period, upon request by the United States, Defendants shall provide

copies of any documents, records, or other information required to be maintained under this

Paragraph. Defendants may assert that certain documents, records, or other information is

privileged under the attorney-client privilege or any other privilege recognized by federal law. If

Defendants assert such a privilege, it shall provide the following: (1) the title of or description of

the document, record, or information; (2) the date of the document, record, or information; (3)

the name and title of each author of the document, record, or information; (4) the name and title

of each addressee and recipient; (5) a description of the subject of the document, record, or

information; and (6) the privilege asserted by Defendants. However, no documents, records, or

other information created or generated pursuant to the requirements of this Consent Decree shall

be withheld on grounds of privilege. Defendants may also assert that information required to be

provided under this Section is protected as Confidential Business Information ("CBI") under 40

C.F.R. Part 2. As to any information that Defendants seeks to protect as CBI, Defendants shall

follow the procedures set forth in 40 C.F.R. Part 2.

43. At the conclusion of the information-retention period provided in the preceding

Paragraph, Defendants shall notify the United States at least 90 Days prior to the destruction of

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any documents, records, or other information subject to the requirements of the preceding

Paragraph and, upon request by the United States, Defendants shall deliver any such documents,

records, or other information to EPA.

44. This Consent Decree in no way limits or affects any right of entry and inspection,

or any right to obtain information, held by the United States pursuant to applicable federal or

state laws, regulations, or permits, nor does it limit or affect any duty or obligation of Defendants

to maintain documents, records, or other information imposed by applicable federal or state laws,

regulations, or permits.

45. Nothing in this Consent Decree shall limit the authority of EPA to conduct tests,

inspections, or other activities under any statutory or regulatory provision.

XI. STIPULATED PENALTIES

A. General Provisions Regarding Stipulated Penalties.

46. Defendants shall be liable for stipulated penalties to the United States for

violations of this Decree as specified below, unless excused under Section XII (Force Majeure).

A violation includes failing to perform any obligation required by the terms of this Decree

according to all applicable requirements of this Decree and within the specified time schedules

established by or approved under this Decree.

47. Stipulated penalties under this Section shall begin to accrue on the Day after

performance is due or on the Day a violation occurs, whichever is applicable, and. shall continue

to accrue until performance is satisfactorily completed or until the violation ceases. Stipulated

penalties shall accrue simultaneously for separate violations of this Consent Decree.

48. Defendants shall pay any stipulated penalty within thirty (30) Days of receiving

the United States' written demand.

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49. The United States may in the unreviewable exercise of its discretion, reduce or

waive stipulated penalties otherwise due it under this Consent Decree.

50. Stipulated penalties shall continue to accrue as provided in Paragraph 68, during

any Dispute Resolution, but need not be paid until the following:

a. If the dispute is resolved by agreement or by a decision of EPA that is not

appealed to the Court, Defendants shall pay accrued penalties determined to be

owing, together with Interest, to the United States within thirty (30) Days of the

effective date of the agreement or the receipt of EPA's decision or order.

b. If the dispute is appealed to the Court and the United States prevails in whole or

in part, Defendants shall pay all accrued penalties determined by the Court to be

owing, together with Interest, within sixty (60) Days of receiving the Court's

decision or order, except as provided in Paragraph 50.c, below.

If any Party appeals the District Court's decision, Defendants shall pay all

accrued penalties determined to be owing, together with interest, within fifteen

(15) Days of receiving the final appellate court decision.

51. Defendants shall pay stipulated penalties owing to the United States in the manner

set forth and with the confirmation notices required by Paragraph 13, except that the transmittal

letter shall state that the payment is for stipulated penalties and shall state for which violations)

the penalties are being paid.

52. If Defendants fail to pay stipulated penalties according to the terms of this

Consent Decree, Defendants shall be liable for Interest on such stipulated penalties, as provided

for iri 28 U.S.C. § 1961, accruing as of the date payment became due. Nothing in this Paragraph

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shall be construed to limit the United States from seeking any remedy otherwise provided by law

for Defendants' failure to pay any stipulated penalties.

53. Subject to the provisions of Section XIV (Effect of Settlement/Reservation of

Rights) of this Decree, the stipulated penalties provided for in this Consent Decree shall be in

addition to any other rights, remedies, or sanctions available to the United States for

Defendants' violation of this Consent Decree or applicable law. Where a violation of this

Consent Decree is also a violation of the Clean Air Act, Defendants shall be allowed a credit for

any stipulated penalties paid against any statutory penalties imposed for such violation.

Notwithstanding the foregoing, the United States reserves all its rights to pursue, under the

Consent Decree and/or outside of it, any other non-monetary remedies to which it is legally

entitled, including but not limited to injunctive relief for violations of the Consent Decree.

B. Specific Stipulated Penalties.

54. Failure to Pay or Late Payment of Civil Penalty required by Para aph 13. If

Defendants fail to pay the civil penalty required to be paid under Section V (Payments) of this

Decree when due, Defendants shall pay a stipulated penalty of $5,000 per Day for each Day that

the payment is late.

55. Failure to Comply with any Risk Management Program Requirement set forth in

42 U.S.C. ~ 7412(r)(7) or 40 C.F.R. § 68 as Required by Paragraph 15 after the Effective Date:

Number of Days Late or Deficient

1-30

31-59

60 and Over

Penalty Per Day Late or Deficient

$1,000

$1,500

$3,000

This provision does not apply to any failure to comply that falls within the scope of Paragraph

76.

56. Failure to Timely Conduct an Audit in Accordance with Appendix A:

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A:

Number of Days Late or Deficient

1-30

31-59

60 and Over

Penalty Per Day Late or Deficient

$1,500

$3,000

$6,000

57. Failure to Timely Correct a Finding in an Audit Report as Required b~ppendix

Number of Days Late or Deficient Penalty Per Day Late or Deficient

1-30 $1,500

31-59 $3,000

60 and Over $6,000

58. Reporting Requirements. The following stipulated penalties shall accrue per

violation per Day for each violation of the reporting requirements of Section VII of this Consent

Decree, including those in requirements listed in Appendices A, B, and C.

Number of Days Late or Deficient Penalty Per Day Late or Deficient

1-30 $500

31-59 $1,000

60 and Over $2,000

59. Failure to Compl ~ with An~quirement of this Consent Decree for which

.Stipulated Penalties are Not Specifically Set Forth Above.

Number of Days Late or Deficient

1-30

31-59

60 and Over

Penalty Per Day Late or Deficient

$500

$1,000

$2,000

This provision does not apply to any failure to comply that falls within the scope of Paragraph

76.

60. SEP Compliance. Except as provided in Paragraph 61, if the SEP is not

satisfactorily completed by the deadline set forth in Appendix C, the Defendants shall pay

stipulated penalties for each day the SEP is late or not satisfactorily completed, as follows:

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Number of Days Late or Deficient

1-30

31-59

60 and Over

Penalty Per Day Late or Deficient

$1,500

$3,000

$6,000

61. SEP Abandonment. If the Defendants have not satisfactorily completed the SEP

by 90 days after the SEP Completion Date set forth in Appendix C, the United States may elect

to terminate the SEP if it determines that the Defendants are not making a good faith effort to

satisfactorily complete the SEP. In addition, if at any time the United States determines that the

Defendants have abandoned the SEP, it may terminate the SEP. The United States shall provide

written notice of SEP termination to the Defendants. If the United States terminates the SEP, the

Defendants shall be liable for a lump sum stipulated penalty of $375,000, less any amount that

the Defendants have paid under Paragraph 60 and less the amount of any equipment Defendants

can prove they purchased and distributed pursuant to Appendix C. If Defendants pay a

termination penalty under this Paragraph, they shall not be liable for stipulated penalties under

Paragraph 60. Any sums already paid under Paragraph 60 shall be credited against the lump sum

stipulated penalty due under this Paragraph.

XII. FORCE MAJEURE

62. "Force Majeure," for purposes of this Consent Decree, is defined as any event

arising from causes beyond the control of Defendants, of any entity controlled by Defendants, or

of Defendants' contractors, which delays or prevents the performance of any obligation under

this Consent Decree despite the Defendants' best efforts to fulfill the obligation. The

requirement that Defendants exercise "best efforts to fulfill the obligation" includes using best

efforts to anticipate any potential force majeure event and best efforts to address the effects of

any such event (a) as it is occurring and (b) after it has occurred to prevent or minimize any

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resulting delay to the greatest extent possible. "Force majeure" does not include Defendants'

financial inability to perform any obligation under this Consent Decree.

63. If any event occurs or has occurred that may delay the performance of any

obligation under this Consent Decree, whether or not caused by a force majeure event,

Defendants shall provide notice orally or by electronic mail or to the United States within

seventy-two (72) hours of when the Defendants first knew that the event might cause a delay.

Within seven (7) days thereafter, the Defendants shall provide in writing to the United States an

explanation and description of the reasons for the delay; the anticipated duration of the delay; all

actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of

any measures to be taken to prevent or mitigate the delay or the effect of the delay; the

Defendants' rationale for attributing such delay to a force majeure event if it intends to assert

such a claim; and a statement as to whether, in the opinion of the Defendants, such event may

cause or contribute to an endangerment to public health, welfare or the environment. The United

States may, in its unreviewable discretion, extend the time within which notice must be given.

No such extension shall be effective unless in writing. The Defendants shall include with any

force majeure notice all documentation then available supporting the claim that the delay was

attributable to a force majeure. Failure to comply with the above requirements shall preclude the

Defendants from asserting any claim of force majeure for that event for the period of time of

such failure to comply, and for any additional delay caused by such failure. Defendants shall be

deemed to know of any circumstance of which the Defendants, any entity controlled by

Defendants or Defendants' contractors knew or should have known.

64. If the United States agrees that the delay or anticipated delay is attributable to a

force majeure event, the time for performance of the obligations under this Consent Decree that

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are affected by the force majeure event will be extended for such time as is necessary to

complete those obligations. An extension of the time for performance of the obligations affected

by the force majeure event shall not, of itself, extend the time for performance of any other

obligation. The United States will notify the Defendants in writing of the length of the

extension, if any, for performance of the obligations affected by the force majeure event.

65. If the United States does not agree that the delay or anticipated delay has been or

will be caused by a force majeure event, or needs further information from Defendants regarding

the asserted force majeure event to make a decision, it will notify the Defendants in writing of its

decision.

66. If Defendants elect to invoke the dispute resolution procedures set forth in

Section XIII (Dispute Resolution), it shall do so no later than fifteen (15) days after receipt of the

United States' notice pursuant to Paragraphs 64 or 65 above. In any such proceeding, the

Defendants shall have the burden of demonstrating by a preponderance of the evidence that the

delay or anticipated delay has been or will be caused by a force majeure event, that the duration

of the delay or the extension sought was or will be warranted under the circumstances, that best

efforts were exercised to avoid and mitigate the effects of the delay, and that the Defendants

complied with the requirements of Paragraph 63, above. If the Defendants carry this burden, the

delay at issue shall be deemed not to be a violation by the Defendants of the affected obligation

of this Consent Decree identified to the United States and the Court, and the relevant deadline

shall be extended for such time as is necessary to complete the obligations affected by the force

majeure event.

XIII. DISPUTE RESOLUTION

67. Unless otherwise expressly provided for in this Consent Decree, the dispute

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising

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under or with respect to this Consent Decree. Defendants' failure to seek resolution of a dispute

under this Section shall preclude it from raising any such issue as a defense to an action by the

United States to enforce any obligation of Defendants arising under or with respect to this

Decree.

68. The invocation of dispute resolution procedures under this Section shall not, by

itself, extend, postpone, or affect in any way any obligation of the Defendants under this Consent

Decree, unless the Court or the final resolution of the dispute so provides. Stipulated penalties

with respect to the disputed matter shall continue to accrue from the first Day of noncompliance,

until the Court issues a decision on the dispute in favor of the United States. Payment shall be

stayed pending resolution of the dispute as provided in Paragraph 50. If Defendants do not

prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in

Section XI (Stipulated Penalties).

69. Informal Dispute Resolution. Any dispute subject to Dispute Resolution under

this Consent Decree shall first be the subject of informal negotiations. The dispute shall be

considered to have arisen when Defendants send the United States a written Notice of Dispute.

Such Notice of Dispute shall state clearly the matter in dispute. The period of informal negotiations shall not exceed twenty (20) Days from the date the dispute arises, unless that period is

modified by written agreement. If the Parties cannot resolve a dispute by informal negotiations,

then the position advanced by the United States shall be considered binding unless, within ten

(10) Days after the conclusion of the informal negotiation period, Defendants invoke formal

dispute resolution procedures as set forth below.

70. Formal Dispute Resolution. Defendants shall invoke formal dispute resolution

procedures, within the time period provided in the preceding Paragraph, by serving on the United

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States a written Statement of Position regarding the matter in dispute. The Statement of Position

shall include, but need not be limited to, any factual data, analysis, or opinion supporting

Defendants' position and any supporting documentation relied upon by Defendants.

71. The United States shall serve its Statement of Position within thirty (30) Days of

receipt of Defendants' Statement of Position. The United States' Statement of Position shall

include, but need not be limited to, any factual data, analysis, or opinion supporting that position

and any supporting documentation relied upon by the United States. The United States'

Statement of Position shall be binding on Defendants, unless Defendants file a motion for

judicial review of the dispute in accordance with the following Paragraph.

72. Defendants may seek judicial review of the dispute by filing with the Court and

serving on the United States, in accordance with Section XVI (Notices) of this Decree, a motion

requesting judicial resolution of the dispute. The motion must be filed within ten (10) Days of

receipt of the United States' Statement of Position pursuant to the preceding Paragraph. The

motion shall contain a written statement of Defendants' position on the matter in dispute,

including any supporting factual data, analysis, opinion, or documentation, and shall set forth the

relief requested and any schedule within which the dispute must be resolved for orderly

implementation of the Consent Decree.

73. The United States shall respond to Defendants' motion within the time period

allowed by the Local Rules of this Court. Defendants may file a reply memorandum, to the

extent permitted by the Local Rules.

74. Standard of Review. Except as otherwise provided in this Consent Decree, in any

dispute brought under Paragraph 72, Defendants shall bear the burden of demonstrating that their

position complies with this Consent Decree and that they are entitled to relief under applicable

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principles of law. The United States reserves the right to argue that the dispute is reviewable

only on the administrative record and must be upheld unless arbitrary and capricious or

otherwise not in accordance with the law, and Defendants reserve the right to oppose this

position.

XIV. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS

75. This Consent Decree resolves the civil claims of the United States for the

violations alleged in the Complaint filed in this action through the Date of Lodging.

76. Entry of this Consent Decree also resolves the civil liability of Defendants to the

United States for the specific violations of Risk Management Program requirements in Section

112(r)(7) of the CAA, 42 U.S.C. § 7412(r)(7), or the regulations promulgated thereunder, that are

identified as a result of an Audit conducted pursuant to Appendix A (i.e. the Audit "Findings") or

testing pursuant to Appendix B, are reported to EPA pursuant to the requirements of Appendix A

or B, and that are timely and fully corrected by Defendants in accordance with Appendix A or B.

For the purposes of this Paragraph, violations) that are identified as a result of an Audit under

Appendix A (i.e. the Audit "Findings") or testing pursuant to Appendix B, shall only be

considered "fully corrected" on the date that Defendants send certification to the United States

that the violations) have been corrected in accordance with the reporting procedures under

Appendix A or Appendix B.

77. The United States reserves all legal and equitable remedies available to enforce

the provisions of this Consent Decree, except as expressly stated in Paragraphs 75-76. This

Consent Decree shall not be construed to limit the rights of the United States to obtain penalties

or injunctive relief under the CAA or implementing regulations, or under other federal laws,

regulations, or permit conditions, except as expressly specified in Paragraphs 75-76. The United

States further reserves all legal and equitable remedies to address any imminent and substantial

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endangerment to the public health or welfare or the environment arising at, or posed by, the

Facilities, whether related to the violations addressed in this Consent Decree or otherwise.

78. In any subsequent administrative or judicial proceeding initiated by the United

States for injunctive relief, civil penalties, other appropriate relief relating to the Facilities or

Defendants' violations, Defendants shall not assert, and may not maintain, any defense or claim

based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim

preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by

the United States in the subsequent proceeding were or should have been brought in the instant

case, except with respect to claims that have been specifically resolved pursuant to Paragraphs

75-76 of this Section.

79. This Consent Decree is not a permit, or a modification of any permit, under any

federal, state, or local laws or regulations. Defendants are responsible for achieving and

maintaining complete compliance with all applicable federal, state, and local laws, regulations,

and permits; and Defendants' compliance with this Consent Decree shall be no defense to any

action commenced pursuant to any such laws, regulations, or permits, except as set forth herein.

The United States does not, by its consent to the entry of this Consent Decree, warrant or aver in

any manner that Defendants' compliance with any aspect of this Consent Decree will result in

compliance with provisions of Section 112(r) of the Clean Air Act, 42 U.S.C. § 7412(r) or the

regulations promulgated thereunder, or with any other provisions of federal, state, or local laws,

regulations, or permits.

80. This Consent Decree does not limit or affect the rights of Defendants or of the

United States against any third parties, not party to this Consent Decree, nor does it limit the

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rights of third parties, not party to this Consent Decree, against Defendants, except as otherwise

provided by law.

81. This Consent Decree shall not be construed to create rights in, or grant any cause

of action to, any third party not party to this Consent Decree.

XV. COSTS

82. The Parties shall bear their own costs of this action, including attorneys' fees,

except that the United States shall be entitled to collect the costs (including attorneys' fees)

incurred in any action necessary to collect any portion of the civil penalty or any stipulated

penalties due but not paid by Defendants.

XVI. NOTICES

83. Unless otherwise specified herein, whenever notifications, submissions, or

communications are required by this Consent Decree, they shall be made in writing and

addressed as set forth below. Simultaneously, such notices shall be emailed to the relevant

recipients, except that any notice attachments that are too voluminous to email need only be

provided by mail. Where this Consent Decree requires that notices and submissions are to be

made to the United States, they shall be made to the United States Department of Justice and

EPA. Where the Consent Decree Requires that Notices and Submissions shall be made to EPA,

they need only be sent to EPA. Except as otherwise provided herein, all reports, notifications,

certifications, or other communications required under this Consent Decree to be submitted or

sent to the.United States, EPA, and/or Defendants shall be addressed as follows:

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As to the United States:

U.S. Department of Justice

Chief

Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611, Ben Franklin Station

Washington, DC 20044-7611

Reference Case No. 90-5-2-1-07459/1

Email: Walter.Benjamin.Fisherow@usdoj.gov

EPA Region 7•

For Risk Management Program Items related to Appendices A & B:

Chief, Chemical Risk Information Branch

EPA Region 7

11201 Renner Blvd.

Lenexa, Kansas 66219

Email: Bustos.Patrick@epa.gov

For All Items, including Items related to Appendix C:

Anne Rauch, Esq.

Office of Regional Counsel

Region 7

11201 Renner Blvd.

Lenexa, Kansas 66219

Rauch.~,nne"a,'e~a.gov

As to Defendants:

Timothy T. Jones

Senior Counsel

Legal Department

Tyson Foods, Inc.

2200 Don Tyson Parkway

Springdale, Arkansas 72762

(479)290-7102

+T"im..ic~~les~a~"I'vson.com

84. Any Party may, by written notice to the other Parties, change its designated notice

recipient or notice address provided above.

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85. Notices submitted pursuant to this Section shall be deemed submitted upon

mailing, unless otherwise provided in this Consent Decree or by mutual agreement of the Parties

in writing.

XVII. EFFECTIVE DATE

86. The Effective Date of this Consent Decree shall be the date upon which this

Consent Decree is entered by the Court or a motion to enter the Consent Decree is granted,

whichever occurs first, as recorded on the Court's docket.

XVIII.RETENTION OF JURISDICTION

87. The Court shall retain jurisdiction over this case until termination of this Consent

Decree, for the purpose of resolving disputes arising under this Decree or entering orders

modifying this Decree, pursuant to Sections XIII (Dispute Resolution) and XIX (Modification),

or effectuating or enforcing compliance with the terms of this Decree.

XIX. MODIFICATION

88. The terms of this Consent Decree, including any attached appendices, may be

modified only by a subsequent written agreement signed by all the Parties. Where the

modification constitutes a material change to this Decree, it shall be effective only upon approval

by the Court.

89. Any disputes concerning any modification of this Decree shall be resolved

pursuant to Section XIII (Dispute Resolution) of this Decree, provided, however, that, instead of

the burden of proof provided by Paragraph 74, the Party seeking the modification bears the

burden of demonstrating that it is entitled to the requested modification in accordance with

Federal Rule of Civil Procedure 60(b).

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XX. TERMINATION

90. After Defendants have completed the requirements of Section VI (Compliance

Requirements) of this Decree, have complied with all other requirements of this Consent Decree,

have paid the civil penalty, have resolved any outstanding disputes, and have paid any accrued

stipulated penalties as required by this Consent Decree, Defendants shall serve upon the United

States a Request for Termination, stating that Defendants have satisfied those requirements,

together with all necessary supporting completion documentation required by Appendices A, B,

and C (to the extent not already submitted).

91. Following receipt by the United States of Defendants' Request for Termination,

the Parties shall confer informally concerning the Request and any disagreement that the Parties

may have as to whether Defendants have satisfactorily complied with the requirements for

termination of this Consent Decree. If the United States agrees that the Decree may be

terminated, the Parties shall submit to the Court an appropriate Joint Notice of Termination. The

Joint Notice of Termination shall recite that the requirements of the Consent Decree have been

met. The Joint Notice of Termination shall not require any further action from the Court and

shall terminate the Consent Decree upon filing.

92. If the United States does not agree that the Decree may be terminated or does not

timely respond to Defendant's Request for Termination, Defendants may invoke Dispute

Resolution under Section XIII of this Decree. However, Defendants shall not seek Dispute

Resolution of any dispute regarding termination, under Paragraph 72 of Section XIII, until at

least 130 Days after service of its Request for Termination.

XXI. PUBLIC PARTICIPATION

93. This Consent Decree shall be lodged with the Court for a period of not less than

thirty (30) Days for public notice and comment in accordance with 28 C.F.R. § 50.7. The United

United States v. Tyson Foods, Inc., et al. Consent Decree Page 32

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States reserves the right to withdraw or withhold its consent if the comments regarding the

Consent Decree disclose facts or considerations indicating that the Consent Decree is inappropriate, improper, or inadequate. Defendants consent to entry of this Consent Decree without

further notice and agree not to withdraw from or oppose entry of this Consent Decree by the

Court or to challenge any provision of the Decree, unless the United States has notified

Defendants in writing that it no longer supports entry of the Decree.

XXII. SIGNATORIES/SERVICE

94. Each undersigned representative of Defendants and the Assistant Attorney

General for the Environment and Natural Resources Division of the Department of Justice and

the Environmental Protection Agency certifies that he or she is fully authorized to enter into the

terms and conditions of this Consent Decree and to execute and legally bind the Party he or she

represents to this document.

95. This Consent Decree may be signed in counterparts, and its validity shall not be

challenged on that basis. Defendants agree to accept service of process by mail and, if

applicable, electronic case filing notices, with respect to all matters arising under or relating to

this Consent Decree that are required to be filed with the Court and to waive the formal service

requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable Local

Rules of this Court including, but not limited to, service of a summons.

XXIII.INTEGRATION

96. This Consent Decree constitutes the final, complete, and exclusive agreement and

understanding among the Parties with respect to the settlement embodied in the Decree and

supersedes all prior agreements and understandings, whether oral or written, concerning the

settlement embodied herein. No other document, nor any representation, inducement,

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agreement, understanding, or promise, constitutes any part of this Decree or the settlement it

represents, nor shall it be used in construing the terms of this Decree.

XXIV. FINAL NDGMENT

97. Upon approval and entry of this Consent Decree by the Court, this Consent

Decree shall constitute a final judgment of the Court as to the United States and Defendants. The

Court finds that there is no just reason for delay and therefore enters this judgment as a final

judgment under Federal Rules of Civil Procedure 54 and 58.

Dated and entered this _day of ,

UNITED STATES DISTRICT JUDGE

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WE HEREBY CONSENT to the entry of this Consent Decree subject to the public notice and

comment provisions of 28 C.F.R. § 50.7:

FOR PLAINTIFF THE UNITED STATES OF AMERICA:

Date: ~~~e2 ~~ 

ACIA S. MORENO

Assistant Attorney General

United States Department of Justice

Environment and Natural Resources

Divis'on

Date: !~ ~ ~ 3 

ARA A. COLANGELO

MICHAEL MCNULTY

Trial Attorney

Environment and Natural Resources

Division

Environmental Enforcement Section

United States Department of Justice

P.O. Box 7611

Washington, D.C. 20044

(202) 514-3394

Sara.Colan~elonusdoj.€,ov

Member of the Maryland Bar

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Date: -3 z'~

Office ofEnforcement and Compliance Assurance

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

Date: ~v ~~ b~l / ~'

SUSAN -SHINKMAN

Director, Office of Civil Enforcement

Office of Enforcement and Compliance Assurance

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

Date:

Director, Wastes and chemical Enforcement Division

Office of Enforcement and Compliance Assurance

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

United States v. Tyson Foods, Inc. et al. Consent Decree Page 37

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Date: ~ / (~ ~j~

t ~t t

O

Regional Administrator

U.S. Environmental Protection Agency

Region VII „

DAVID COZAH

Regional Counsel

U.S. Environmental Protecrion Agency

Region VII

Date: ~1 ~-~/~ 

AlvivE x~ucx

Assistant Regional Counsel

U.S. Environmen#al Protection Agency

Region VII

United States v. Tyson Foods. Inc., et al. Consent Decree Page 38

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1~~ HEREBY C{7N~ENT to t~7e entry cif this ~unsent Decree:

~'UI2 DEI~F.NLIAnTS

IB[' RF,I)EVFLr).P~Y[:~+z'~I~' CORP.

I~3P FOOD ~t~,

F()011.liE2~1.NDS SUPPLY CHAIN S~ItViCE~, INC.

T~'S+C)N CIIChEI'~t, il'~C.

T~'SflN llELt, I.NC.

Tl'SUN FRESH ~:~AT~, I:I~IC.

T"YSt3i~` P{1ULTRj', INC.

Tl'Sfl?Y PR~PARll FC30DS, :LNC.

'['YSON I'ItC3+C'ESSIIlG S~R~iC~S, INC.

`i'YSf}N REF'RI~ERATED PROCESSED MEATS, INC.

Kevin 1. tali

Senior Vice ['resident

~ttie:t ~~vi:rr~nzzaenta! H~:aith and Safety C~~f'ict~r

Agent Autilarizc~d tc~ Accept Service ft~r I.~efe~~dants in this C'~sc:

~eni~r C ~unsel

Legal Departnz~nt

°Fvsi~n Foads, Inc.

220 Dan Tyson Park~°ay

~a~rinciale, t~rkxnsas 727ti2

(~79) 290-710?

T i n~.,l~ir~cs'a`~"t ~e~ son.cr~tn

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APPENDIX A

THIItD PARTY AUDIT PROTOCOL

Section 1. Background and Purpose

1.1 As part of the settlement embodied in the Consent Decree, Tyson has agreed to

conduct third-party Audits of its current compliance with the Clean Air Act's Risk Management

Program requirements at its 23 Facilities in EPA Region VII that operate one or more covered

processes (ammonia refrigeration equipment). This Protocol governs the Audit process.

Section 2. Definitions

2.1 The terms used herein shall have the meaning set forth in Section IV of the

Consent Decree unless otherwise specified below:

• "Audit" shall mean athird-party audit as described in this Protocol.

• "Auditor" shall mean athird-party auditor as specified in or approved pursuant to this

Protocol.

• "Capital Expenditure" shall mean, for purposes of any corrective measure required

by Section 6.1, an expenditure that is estimated to be more than $50,000.

• "Deviation" shall mean an item that the Auditor has judged to be a departure from or

inconsistent with any applicable engineering and design specification, including

current design codes and standards, and/or any refrigeration industry recognized and

generally accepted good engineering practices at the time of the Audit. Deviations do

not include items that are in present non-compliance with the applicable requirements

of 40 C.F.R. Part 68. Any item that the Auditor has judged to be in present noncompliance with the applicable requirements of 40 C.F.R. Part 68 at the time of the

Audit shall only be reported as a Finding, as defined below.

• "Finding" shall mean an item that the Auditor has judged to be in present noncompliance with the applicable requirements of 40 C.F.R. Part 68 at the time of the

Audit.

• "Protocol" shall mean this Third. Party Audit Protocol.

• "Tyson" shall mean the Defendants.

Section 3. Third-Party Auditor

3.1 Tyson has proposed and EPA has agreed that Tyson shall initially use Douglas

Reindl (for the paper review required by Section 4.1 of.this Protocol only) and David Einolf

and/or AcuTech Consulting Group (for the audits) required by Sections 4.2(a) and (b) only)

until. such time, if any, that Tyson proposes and EPA approves a replacement or additional

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Auditor pursuant to Section 3.2 of this Protocol. The Auditor may use competent professionals

on their staff to assist with the Audits.

3.2 Tyson may propose to replace any Auditor or may propose to add any additional

Auditor by submitting a request to EPA pursuant to Section VIII of the Consent Decree

(Approval of Deliverables). The request shall indicate the reason for the change or addition; the

qualifications of the proposed Auditor; and any other relevant information. The proposed

Auditor for 4.2(a) shall have expertise in ammonia refrigeration systems and 4.2 (b) shall be a

recognized expert in PSM/RMP compliance.

3.3 Tyson shall be solely responsible for paying for each Auditor's fees and expenses;

provided, however, that no Auditor shall be considered Tyson's contractor for any purpose under

the Consent Decree, including but not limited to Sections II (Applicability), X (Information

Collection, Recordkeeping, and Retention), XI (Stipulated Penalties), and XII (Force Majeure).

Section 4. Audit Protocol

4.1 The Auditor shall first conduct a paper review of Tyson's engineering and design

specifications as they relate to the physical systems of the covered processes at the Facilities

according to the schedule set forth in Section 5 of this Protocol. Specifically, the Auditor shall

evaluate Tyson's ammonia refrigeration system engineering and design specifications PSM/RMP

Program Manual for compliance with 40 C.F.R. § 68.65(d)(2),(3) and for consistency with the

most current design codes and standards referenced below. Tyson uses and intends to continue

to use engineering specifications that incorporate current guidelines so that any ammonia

refrigeration system and/or project work satisfies refrigeration industry recognized and generally

accepted good engineering practices ("RAGAGEP"). The design codes and standards are listed

in the current PSM/RMP Program Manual as follows:

• ANSI/ASHRAE 34 - Number Designation and Safety Classification of Refrigerants,

American 3.12.4.1.2 Society of Heating, Refrigerating and Air Conditioning

Engineers, Atlanta, GA

• ASME Boiler and Pressure Vessel Code, Section VIII, American Society of

Mechanical Engineers 3.12.4.1.4, New York, NY

• ANSI/ASME B31.5, Refrigeration Piping, ASME, New York, NY

• NFPA 70 - National Electrical Code, National Fire Protection Association, Quincy,

MA

• ANSI/ASHRAE 15- — Safety Code for Mechanical Refrigeration

• ANSI/IIAR 2, LIAR 3, IIAR 5, IIAR Bulletins - 107, 108, 109, 110, 111, 112, 114,

and 116, ARTG-GDL 1

Additional location-specific codes may apply. The Auditor shall determine all localcodes

applicable to the covered processes at each Facility, including, but not limited to, the codes listed

below:

2

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• Building Code: Uniform Building Code

• Building Code: National Building Code

• Building Code: Southern Building Code

• Mechanical Code: Uniform Mechanical Code

• Mechanical Code: International Mechanical Code

• Plumbing Code: Uniform Plumbing Code

• Electrical Code: National Electric Code

• Fire Code: International Fire Code

• Fire Code: National Fire Protection Association Fire Code

4.2 The Auditor shall next conduct on-site Audits of the ammonia refrigeration

systems at all Facilities according to the schedule set forth in Section 5 of this Protocol. The

purpose of the on-site Audits is to assess Tyson's present compliance with all applicable

requirements of 40 C.F.R. Part 68 at the time of the Audits.

(a) The on-site Audits shall evaluate the ammonia refrigeration systems in accordance

with all design codes/standards/guidelines applicable to the covered processes as

identified in Section 4.1. The Audits will have an increased focus on the following °

items:

• Safety Systems

o Safety relief valve systems

o Ammonia detection and alarms

o Emergency action and response plans/programs

• Machinery (Engine) Room

o Co-Location with flame-producing sources/hot surfaces (>800°F)

o Machinery (engine) room ventilation system design

• Piping

o Pay particular attention to Piping 2" or less to ensure proper Schedule (80

versus 40) and any mechanical issues relating to threaded versus welded

connections in conjunction with Appendix B "Protocol for Non-destructive

3

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Testing of Pipe Thickness". The Auditor will review the non-destructive

testing results included in Appendix B.

o Labeling and overall piping and valve integrity

(b) The Audits will also have an increased focus on the following items:

• Close out of all previous compliance audit, PHA, and incident investigation action

items

• Current and annually certified operating procedures

• Training for personnel, including operators and maintenance personnel

• Safe work practices (LOTO, line breaking, hot work, etc.)

• PPE requirements for opening refrigeration systems, including whether:

o Corporate requirements are appropriate and compliant with existing

standards?

o Facilities are following applicable requirements?

• Whether incidents are being reported in a timely manner and in compliance with

applicable regulations

• Implementation of Management of Change ("MOC") and Pre-startup Safety Review

("PS SR")

• Whether emergency contact information is updated in a timely manner and in

compliance with applicable regulations

• Emergency action plans

4.3 The Auditors) shall produce a report in accordance with Section 5 of this

Protocol documenting the specific Findings and Deviations that existed at the time of the Audit.

Findings and Deviations are mutually-exclusive and shall be listed separately.

4.4 At Tyson's election, any on-site Audit may serve as the official RMP audit

required by 40 C.F.R. § 68.79 provided all requirements of that section are met. The use of an

on-site Audit as the official RMP audit will reset the three-year rolling clock for performance of

a compliance audit at the applicable Facility.

Section 5. Timeline for the Audits

5.1 Tyson shall supply the Auditor with the information necessary to conduct the

paper Audit required by Section 4.1 of this Protocol within 30 days of the Effective Date of the

Consent Decree. The Auditor shall complete the paper review within 30 days thereafter and

4

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shall provide a report, including any Findings and Deviations, to Tyson and EPA as provided in

Section XVI of the Consent Decree (Notices). Tyson shall respond to the report pursuant to

Section 6 of this Protocol.

5.2 On-site Audits of the Facilities required by Section 4.2 of this Protocol shall

commence no later than 90 days after the Effective Date of the Consent Decree. Tyson shall

ensure that at least seven on-site Audits are conducted every 12 months after the Effective Date

of the Consent. Decree and that all 23 Audits are conducted within 36 months; provided,

however, that Tyson shall schedule the following Facilities in the first 12 month period:

• Emporia, KS

• Hutchison, KS

• Cherokee, IA

• Omaha, NE

• Perry, IA

• Sedalia, MO

• .South Hutchinson, KS

5.3 The Parties expect each on-site Audit to take approximately five business days to

complete. Where possible, the on-site Audits will be conducted over consecutive business days,

but the Parties acknowledge that may not always be possible. Within 30 Days after the

completion of each on-site Audit, the Auditor shall provide a report, including any Findings and

Deviations, to Tyson and EPA as provided in Section XVI of the Consent Decree (Notices).

Tyson shall respond to the report pursuant to Section 6 of this Protocol.

Section 6. Responses and Corrective Measures

6.1 Tyson shall submit a response to each Audit report that contains Findings no later

than 45 Days after receipt of the report. The response shall .include a plan to correct any

Findings, except any Findings that Tyson disputes pursuant to Section 6.3 of this Protocol, and

classify whether the response requires Capital Expenditures. EPA may request verification

documentation for any response requiring Capital Expenditures. Tyson shall correct Findings

that do not require Capital Expenditures within 6 months, unless a greater period of time is

sought by Tyson and approved by EPA. Tyson shall correct Findings that require Capital

Expenditures within 12 months, unless a greater period of time is sought by Tyson and approved

by EPA. Tyson's response shall be submitted to EPA pursuant to Section XIII of the Consent

Decree (Approval of Deliverables). Once Tyson has completed implementation of any

corrective measure for any Finding, Tyson shall certify the completion of that work. Tyson shall

do so either: (a) by including a certification in the next regularly-scheduled quarterly report

required by Section 7.1 of this Protocol; or (b) prior to the next regularly-scheduled quarterly

report, by submission of a certification to EPA.

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6.2 Tyson may, but is not required to, submit a response to any Deviations or other

statements in any Audit report if Tyson wishes to do so. If Tyson elects to submit such a

response, it must do so within 45 Days of receipt of the report. Tyson shall have no obligation

under this Protocol or the Consent Decree to correct Deviations or address other statements in

any Audit report (other than Findings, which are governed by Section 6.1 of this Protocol).

6.3 Should Tyson disagree with any Findings or any other element of any Audit

report, it may invoke dispute resolution pursuant to Section XIII of the Consent Decree (Dispute

Resolution) with respect to such Findings or elements. The invocation of dispute resolution shall

not relieve Tyson of its obligations under Section 6.1 of this Protocol with respect to any other

Findings. Should the dispute be withdrawn or resolved informally or formally in favor of the

United States, Tyson shall amend its response to the Audit report pursuant to Section 5.1 of this

Protocol to include the disputed Findings. Should the dispute be resolved in favor of Tyson, no

amendment shall be necessary. Neither Tyson's decision regarding dispute resolution nor its

response to any Findings or other elements of any Audit report shall constitute an admission of

any fact or liability.

Section 7. Quarterly Reports

7.1 Within 30 Days after the end of each full calendar-quarter (i.e., by April 30, July

30, October 30, and January 30) after the Effective Date of this Consent Decree, Tyson shall

submit a quarterly report to EPA summarizing Tyson's progress towards completing its

obligations under this Protocol. In particular, the quarterly report shall describe the following:

• The status of the Audits

• The status of the Audit reports

• The status of Tyson's responses to the Audit reports

• The status of any disputes regarding any Findings in any Audit reports

• The status of implementation of measures to correct Findings, including

certifications) regarding any Findings) for which corrective measures) have been

completed during the calendar-quarter at issue, if not already reported to EPA under

Section 6.2 of this Protocol.

The report shall also include a description of any non-compliance with this Protocol and a

description of the violation's likely cause and any remedial steps taken, or to be taken, to prevent

or minimize such violation.

7.2 The quarterly report shall be combined into one document with all other quarterly

reports required under the Consent Decree.

6

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Section 8. Comuletion of the Protocol

8.1 No separate notice of completion of this Protocol is required. Instead, Tyson will

state its satisfaction of this Protocol as part of its Request for Termination of the Consent Decree

pursuant to Section XX of the Consent Decree (Termination).

7

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APPENDIX B

PROTOCOL FOR NON-DESTRUCTIVE TESTING OF PIPE THICKNESS

Section 1. Background and Purpose

1.1 As part of the settlement embodied in the Consent Decree, Tyson has agreed to

perform non-destructive testing of certain piping used in its refrigeration systems at 23 Facilities

in EPA Region VII that operate one or more covered processes (ammonia refrigeration

equipment). This NDT Protocol governs the non-destructive testing program.

Section 2. Definitions

2.1 The terms used herein shall have the meaning set forth in Section IV of the

Consent Decree unless otherwise specified below:

• "Audit" shall mean the third party audit specified in the Third Party Audit Protocol.

• "Auditor" shall mean the third party auditor specified in the Third Party Audit

Protocol.

• "NDT Protocol" shall mean this Protocol for Non-Destructive Testing of Pipe

Thickness.

• "Tyson" shall mean the Defendants.

Section 3. Covered Pipe

3.1 This NDT Protocol covers threaded piping connections less than two (2) inches in

diameter because of their potential for failure as a result of human factors, possible excess force

applied as a result ofover-tightening, and wall thickness loss at the pipe ends due to threading of

the pipe. Some of these connections have been identified as inadvertently including schedule 40

pipe nipples. Tyson uses threaded connection piping in four areas of its refrigeration systems:

• Oil pots (for oil drain piping);

• Safety relief valve connections;

• Service/gauge valve control stations; and

• Manual purge valves associated with condensers.

Section 4. Non-Destructive Testing Protocol

4.1 This NDT Protocol covers threaded pipes less than two (2) inches in diameter at

all four categories of locations identified in Section 3.1 at all covered ammonia refrigeration

processes at Tyson's Facilities.

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4.2 The non-destructive testing will be used to determine whether the covered piping

is Schedule 40 or Schedule 80 pipe according to ANSI/ASME B31.5, Refrigeration Piping,

ASME, New York, NY. If the pipe wall thickness is determined to be greater than the midway

point between Schedule 40 and Schedule 80, the pipe is deemed to be Schedule 80 for purposes

of this NDT Protocol.

4.3 The non-destructive testing will be undertaken by Tyson personnel using

appropriate equipment or by a qualified consultant, at Tyson's election.

4.4 The non-destructive testing may also be used by Tyson for purposes of

compliance with 40 C.F.R Part 68.

Section 5. Timeline for the Testing

5.1 Except for the first three Facilities tested, or as otherwise approved by EPA, nondestructive testing will be completed at each Facility at least 60 days prior to the commencement

of the third party Audit so that the Auditor may assess compliance with this NDT Protocol as

part of the Audit. However, the first three Facilities tested will be completed at least 20 days

prior to the commencement of the third party Audit.

5.2 Tyson will prepare a report providing the results from the non-destructive testing

at each Facility. The reports will be sent to EPA on a rolling basis within 60 days of the

completion of the testing at each Facility (within 20 days for the first three Facilities tested) as

provided in Section XVI of the Consent Decree (Notices), and Tyson will make the reports

available to the third party Auditor. The reports will:

Provide a summary of the testing, including the test procedures, the names of the

test personnel, a list of the test equipment, the location of the testing, and dates of

testing;

• Provide an itemized list of all pipe found to be Schedule 40 (within the meaning

of Section 4.2) as a result of the testing; and

• Provide the results of the testing of each pipe tested.

Section 6. Corrective Measures

6.1 Tyson will replace any pipe found to be Schedule 40 (within the meaning of

Section 4.2) with Schedule 80 pipe. Alternatively, Tyson may remove pipe found to be Schedule

40 (within the meaning of Section 4.2) from the process, if appropriate, or replace it with some

other assembly that is in full compliance with applicable code requirements and 40 C.F.R. Part

68.

6.2 Except where additional time is requested and approved by EPA, all such

corrective meastares at each Facility will he completed within 1 S~ days ~f campletian of the

testing at each Facility. Once Tyson has completed implementation of any corrective measure at

any Facility, Tyson shall certify the completion of that work. Tyson shall do so either: (a) by

including a certification in the next regularly-scheduled quarterly report required by Section 7.1

2

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of this Protocol; or (b) prior to the next regularly-scheduled quarterly report, by submission of a

certification to EPA.

Section 7. Quarterly Reports

7.1 Within 30 Days after the end of each full calendar-quarter (i.e., by April 30, July

30, October 30, and January 30) after the Effective Date of this Consent Decree, Tyson shall

submit a quarterly report to EPA summarizing Tyson's progress towards completing its

obligations under this NDT Protocol. In particular, the quarterly report shall describe the

following:

• The status of the completion ofnon-destructive testing;

• The status of the submissions of the non-destructive reports; and

• The status of implementation of corrective measures.

The report shall also include a description of any non-compliance with this NDT Protocol and a

description of the violation's likely cause and any remedial steps taken, or to be taken, to prevent

or minimize such violation.

7.2 The quarterly report shall be combined into one document with all other quarterly

reports required under the Consent Decree.

Section 8. Completion of the NDT Protocol

8.1 No separate notice of completion of this NDT Protocol is required. Instead,

Tyson will state its satisfaction of this NDT Protocol as part of its Request for Termination of the

Consent Decree pursuant to Section XIX of the Consent Decree (Termination).

3

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APPENDIX C

PROTOCOL FOR SUPPLEMENTAL ENVIRONMENTAL PROJECT

Section 1. Background and Purpose

1.1 As part of the settlement embodied in the Consent Decree, Tyson has agreed to

implement a Supplemental Environmental Project ("SEP") to purchase emergency response

equipment for emergency responders in certain communities in which Tyson operates facilities

that are covered by the Consent Decree. This SEP Protocol, together with applicable

requirements of the Consent Decree, govern the implementation of the SEP. The equipment to

be purchased, listed on Attachment 1 hereto, is equipment that is relevant to responses to

emergencies involving chemicals that are regulated pursuant to the Clean Air Act's Risk

Management Plan program and the regulations promulgated thereunder, 40 C.F.R. Part 68,

including anhydrous ammonia.

Section 2. Definitions

2.1 The terms used herein shall have the meaning set forth in Section IV of the

Consent Decree unless otherwise specified below:

• "SEP Completion Date" shall mean the day that is 180 days after the Effective Date

of this Consent Decree, or any extended deadline approved by EPA pursuant to

Section XII (Force Majeure) or XIX (Modifications) of the Consent Decree or

imposed by the Court pursuant to Section XIII (Dispute Resolution).

• "SEP Protocol" shall mean this Protocol for Supplemental Environmental Project.

• "Tyson" shall mean the Defendants.

Section 3. Equipment Purchases

3.1 Tyson shall purchase and deliver, and/or shall ensure the purchase and delivery

of, the equipment listed on Attachment 1 to the fire departments listed on Attachment 1. All

such purchases and deliveries shall be completed by the SEP Completion Date.

Section 4. Quarterly Reports

4.1 Within 30 Days a$er the end of each full calendar-quarter (i.e., by April 30, July

30, October 30, and January 30) after the Effective Date of this Consent Decree, Tyson shall

submit a quarterly report to EPA summarizing Tyson's progress towards completing its

obligations under this SEP Protocol. In particular, the quarterly report shall describe the

following:

• The status of the completion of the equipment purchases and deliveries required in

Section 3, including the date of order and delivery of such equipment;

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• The actual cost of the equipment required by Section 3, including in comparison to

the estimated cost set forth in Section 3; and

• Copies of invoices or other similar evidence of the actual cost of, and delivery, of the

equipment required by Section 3 that was delivered during the calendar-quarter

covered by the report.

The report shall also include a description of any non-compliance with this SEP Protocol and a

description of the violation's likely cause and any remedial steps taken, or to be taken, to prevent

or minimize such violation.

4.2 The quarterly report shall be combined into one document with all other quarterly

reports required under the Consent Decree.

Section 5. SEP Completion Report

5.1 Tyson will prepare a SEP Completion Report as required by Paragraph 34 of the

Consent Decree within 30 days of the SEP Completion Date.

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Attachment 1-EPA 114 Region 7 SEP -Fire Department Equipment Purchase

Fire De artment Item Q Price Total

ToWI

Per Oe t. Contact Name Title Contact Number Vendor ~~~~~ B~~ ~A Haz-Mat /Utility Unit 1 $ 77,000.00 $ 77,000.OD

$ 78.990.40 Alan Byers Fire Chief 402-2903512 Toyne Mfg. Honeywell ECP/2 Ammonia Gas Detection Pkg. 1 $ 1,990.40 $ 1,990.40 Honeywell

Dexter, MO

Kappler Zycron 500 levelASuks XL 4 $ 566.42 $ 2,265.68

5 25,795.44 Don Seymore Fire Chief 573-820-0019

Hantover Kappler Zytron 500 Level A Suits 70(L 2 $ 623.05 $ 1,246.10 Hantover ZY~ron 500 coverell with hood and booties ZSh426 Level B Suks 3/cs XL 2 $ 326.63 $ 653.26 Hantover Firefighter Protective Clothing- Jacket/Pants Set 10 $ 1,494.00 $ 14,940.00 Banner Fire Equipment Multi-Rae bas Detector 4+plD with wkh with Auto-Rae 2 Cal Dock ~1 $ 4,700.00 5 4,700.00 Pine Environmental5ervices Honeywell ECP/2 Ammonia Gas Detection Pkg, 3 $ 1,990.40 $ 1,990.40 Honeywell

Monett, MO

Kappler Zytron 500 LevelAS~its XL 4 $ 566.42 $ 2,265.68

5 26,855.44 Tom )ones fire Chief 417-235-7799

Hantover Kappler Zytron 500 Level A Suits XXL 2 $ 623.05 $ 1,246.10 Hantover ZY~~on SOD coverall wRh hood and booties ZSh426 Level B Suits 3/cs XL 2 $ 326.63 $ 653.26 Hantover Honeywell ECP/2 Ammonia Gas Detection Pkg. 1 $ 1,990.40 $ 1,990.40 Honeywell Muki-Rae Gas OeteROr 4+PI0 with wkh Auto-Rae 2 Cal Dock 1 $ 4,700.00 $ 4,700.00 Pine Environmental Services Firefighter Protective Clothing - Jacket/Pants Set SO $ 1,600.00 5 16,000.00 Leo M. Ellebracht; Therese 636-332-6985

Omaha, NE

Mukl-Rae Gas Detector 4+P10 with Auto-Rae 2 Cal Oock 2 $ 4,700.00 $ 9,400.00

$ 17,934.38

Shane Hunter B/C 402-639.8126 Pine Environmental Services Kappler Zytron 500 levelA5utts Size XL 6 $ 566.42 $ 3,398.52

Brad Hildebrandt HM Coordinator 402-578-7039

Hantover Kappler Zytron 500 Level A Suits Size X%L 4 $ 623.05 $ 2,492.20 Hantover Zytron 500 coverall with hood and booties ZSh426 Level B Suits 3/cs XL 2 $ 326.63 5 653.26

Honeywell ECP/2 Ammonia Gas Detection Pkg. 1 $ 1,990.40 $ 1,990.40 Honeywell

Noel, MO Firefighter Protec[Ive Clothing Ensemble w/gloves, hood, helmets, boots 1S $ 1,990.50 $ 35,829.00 S 35,829.00 Brandon Barrett Fire Chief 417-438-5397 MES -Kyle 660-2813073

Perry, IA Scott AP 75 A1r Pak 4500psi with carbon bottle, mask and spare cylinder 11 $ 5,333.33 $ 58,666.63

5 ~z~156.63 Chris Heinz Fire Chief 515 208 - -3514 MES - Shelly Meh1402.957-6326 Bauer legacy 13 Air Compressor 6,000psi 1 $ 13,490.00 5 13,490.00 qugust Industries or MES

Lexington, NE

MSA FlreHawk M7 2216 SCBA, airframe harness, double pull w/chest strap, swivel

lumbar pad, L•30 carbon steakh cylinder, CBRN STC regulator, medium facepiece w/

medium nosecup, speed-on harness w/neck strap, clear command amp, PASS device

w/heat and motion, heads up display, no case plus spare MSA STEALTH 30 CYLINDER

Item A MSABM7LD13AOC14CAA0 (for Air Pack) Item N MSA807586 (for spare bottle) 5 $ 5,171.69 5 25,858.45 $ 25,858.45 Dallas Holbein Fire Chief 308325-2737 Fireguard

Dakota pty, NE

20' Enclosed Trailer for housing HM Decon Response Equipment 1 $ 8,628.00 $ 8,628.00

$ 16,630.08 Clint Rasmussen Fire Chief 712-389-5003

Matx Trailers; Siouz City, lA Bata HazMaz Boots Sizes 9,10, 11, 12, 13 (three pairs each) One size 14 16 $ 60.13 $ 962.08 Hantover Motorola HT-1250 VHF Radios with Impres Batteries/Microphones/Impres Spare

Batteries (Packaged Set includes programming) 6 5 1,010.00 5 6,060.00 Electronic Engineering; Sioux Cky, IA Motorola 6-bank Impres Muki-unit charger 2 $ 490.00 $ 980.00 Electronic Engineering; Siouz City, IA

Total $ 300,049.82 $ 300,049.82

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