Clean Air Act Criminal Prosecution for Failure to Comply with Risk Management Program

November 6, 2008
by CAROL McCABE
MGKF Special Alert

On November 3, 2008, the Environmental Protection Agency Region 3 announced that Hershey Creamery Company pled guilty to a Clean Air Act felony relating to the company's failure to comply with Risk Management Program requirements at two Pennsylvania facilities. According to EPA, the action was based on the company's failure to develop and implement a Risk Management Program for its use of anhydrous ammonia, after twice certifying to EPA that it had done so. The company was sentenced to pay a $100,000 penalty and to one year of probation.

EPA's press release about the case stresses the importance of the Risk Management Program under the Clean Air Act, and the risk of civil and criminal penalties for failure to comply with the program or making false statements regarding compliance. The Risk Management Program applies to facilities that use any of the listed toxic, flammable or explosive chemicals in an amount exceeding threshold quantities, and requires such facilities to conduct a hazard assessment and to implement prevention procedures and emergency response plans. For anhydrous ammonia, often used as a refrigerant at industrial facilities handling food and beverage products, the Risk Management Program threshold quantity is 10,000 lbs. In addition to the specific requirements applicable to facilities meeting threshold quantities, the Risk Management Program requirements include a general duty clause which is applicable to facilities that store or use any amount of extremely hazardous substances. The general duty clause requires such facilities to identify the hazards posed by such substances, to design and maintain a safe facility, to take steps necessary to prevent releases and to minimize the impacts of any releases that do occur.

In the wake of EPA's criminal prosecution of Hershey Creamery Company, industrial facilities should re-examine their compliance with Risk Management Program requirements to ensure that certifications made under the program are accurate. In addition, facilities that previously determined that the Risk Management Program does not apply, should update such determinations to account for changes in facility processes or operations. This updated evaluation may be especially important for facilities submitting annual compliance certifications under Title V permits which include boilerplate conditions governing Risk Management Program compliance.

For more information please contact Carol McCabe at 484-430-5700 or cmccabe@mgkflaw.com.