Are you shipping hazardous materials by air? Are you sure you are not? Ever since ValuJet Flight 592 crashed in the Florida Everglades due to a fire in the cargo hold caused by a chemical oxygen generator, the The Federal Aviation Administration (FAA) has been serious about ensuring compliance with the Department of Transportation Hazardous Material Regulations.
Shippers and carriers of hazardous materials sent via aircraft in the United States are subject to the commercial transportation Hazardous Materials Regulations contained in 49 CFR Parts 171-179. Under these rules, shippers must properly classify, mark, label and pack hazardous goods before shipping by air. Because of the complexity of the regulations and the small amounts of “hazardous materials” it take to incur a large fine, many companies unknowingly run afoul of these regulations. It is the responsibility of the shipper, that is, the business, organization or individual sending the material, to know whether the package is properly classified.
Hazardous materials are not just industrial products. Many items classified as “hazardous materials” by the FAA are everyday products, such as paints, spray adhesives and aerosols, batteries, skin care products, alcohol, weapons cartridges, cleaning solvents, disinfectants, dry ice, cooking oils, pesticides, compressed gasses, oily rags, salts and nail polish removers.
Since 2000, the FAA penalized over 2,000 air carriers, shippers and individuals for hazardous materials violations totaling more than $30 million in civil penalties. See http://bit.ly/1fumSUG As you might expect, at the top of this list are the large shippers, such as FedEx and UPS, as well as many airlines. However, many smaller companies shipping have been caught unaware of that the regulations applied to them. For example, between 2000 and 2014, many shippers were penalized $50,000 or more, often for first-time or small quantity violations.
How does the FAA find out about these shipments? Usually from a third -party source. For example, in a recent matter, an aircraft repair station shipped the overhead panel to another repair station to fix the reading light. However, because an oxygen generator was attached to the panel (although there was no chemicals included in the shipment), the second repair station reported it to the FAA. Other examples include a third-party notifications when the material leaks after handling, or an inspection reveals a mislabeled package or hazardous material being transported in an employee’s checked luggage.
Once notified, the FAA will investigate. Sometimes, the FAA will send a “Letter of Investigation” to the target company or individual asking for information about the alleged incident. If you or your company receives one of these, you should contact a lawyer experienced with this type of matter to assist in your response. After the close of the investigation, if it finds a violation, the FAA will typically issue a “Notice of Proposed Civil Penalty” detailing the facts alleged and a proposed penalty amount. Many times these Notices of Proposed Civil Penalties are then released to the public through press release. Examples from the last few months:
- $81,669 against DGI Menard Inc. The FAA alleges that on Jan. 12, 2015, DGI Menard knowingly offered an undeclared hazardous material shipment to FedEx for air transport from Carnegie, Penn., to Crystal Lake, Ill. The shipment included eight one-pint cans of Lubemaster’s Fire Up, which is a flammable liquid, and six bottles of Diesel Mate All Seasons, which is a flammable petroleum distillate.
- $54,000 against Aqua-Chem, Inc. of Knoxville, Tenn. The FAA alleges that on April 3, 2013, Aqua-Chem offered UPS an undeclared shipment containing six, one-pint plastic containers of corrosive phosphoric acid solution. Workers at the UPS package sort facility in Louisville, Ky., discovered the shipment.
- $54,000 against Rust-Oleum Corp. of Vernon Hills, Ill. The FAA alleges that on Jan. 5, 2015, Rust-Oleum offered four containers of spray paint to FedEx for shipment by air from Vernon Hills to Huntington Beach, Calif. Employees at the FedEx sort facility in Northbrook, Ill., discovered the flammable paint and notified the FAA.
- $63,000 civil penalty against CTC Battery Inc. of Hayward, Calif. The FAA alleges that on April 25, 2013, CTC Battery offered an undeclared shipment of four 12.8V rechargeable lithium ion phosphate batteries to UPS for air transportation to Tampa, Fla.
If you receive a Letter of Investigation or a Notice of Proposed Civil Penalty – or any other communication from the FAA – you need to act quickly! The FAA wants to communicate with companies and individuals who are shipping items to ensure that they are aware of the law. FAA enforcement actions, as with all federal agency enforcement actions, require attention from personnel that are experienced in these matters.
Taber Law Group, P.C.’s primary attorney is a former FAA attorney, who has represented clients in numerous FAA enforcement matters, negotiated settlements with the agency. In addition, Taber Law Group, P.C. can review and revise your company’s FAA compliance procedures, train employees to avoid violations and represent you in the event you receive a notice.