Crying Over Spilled Milk: Creamery Pleads Guilty to Violating Clean Air Act

In what should have been its sweetest day of the year, this past Halloween, the Hershey Creamery Co. pleaded guilty to violating the Clean Air Act. Hershey Creamery, which is not affiliated with candy manufacturer Hershey Co., is the first company ever charged with violating the act’s risk management provisions, which were enacted almost 10 years ago. Hershey Creamery’s story highlights two significant facts: first, that the government has begun to enforce these risk management provisions; and, second, that companies can be held criminally liable merely for acting too slowly.

Risk Management Provisions of the Clean Air Act

The risk management provisions of the Clean Air Act require companies to adopt plans to deal with accidental releases of dangerous substances. These provisions apply to companies that keep any regulated substance above specified threshold levels. The Environmental Protection Agency determines the list of regulated substances and the threshold levels. Covered companies must have a formal risk management program, or RMP, in place to deal with accidental releases of those substances. Companies must audit their compliance with their RMP and must certify that compliance every three years. The EPA also audits compliance with the risk management provisions.