Regulators Target Hazmat

Regulators Target Hazmat

Inspections, fines on the rise as federal agencies increase scrutiny

By John Boyce, Contributing Editor

March 2001

If you’ve noticed an increase in FAA surveillance and enforcement of hazardous materials transportation rules, you’re seeing part of the agency’s response to the crash of ValuJet Flight 592 in May 1996.
"It’s actually a whole new revitalized dangerous goods and cargo security program prompted by the ValuJet accident,’’ says Rebecca Trexler, a public affairs spokesperson for the FAA, in response to a question about an apparent increase in FAA enforcement of the Department of Transportation rules for transporting hazardous materials.
In a Fact Sheet, the FAA explains further, "Today, the FAA is examining virtually every aspect of the transportation of dangerous goods by air. Focused inspections done in coordination with the Postal Service, the Customs Service, the Research and Special Program Administration (RSPA) and other Department of Transportation offices, have increased awareness of the seriousness with which the FAA is actively pursuing persons and companies who fail to comply with the dangerous goods regulations."
Bill Spohrer, president and CEO of Challenge Cargo Airlines in Miami, attests to the FAA’s increased surveillance. "FAA inspectors make more frequent surprise inspections,’’ Spohrer says, "and they’re more stringent than in the past. They’re absolutely right, you can’t take chances with this stuff.
"They (FAA) try to work with you. It’s not a confrontational situation. The idea is not to punish you; the idea is to get the procedure correct —although they have no hesitation about whacking you with a fine."
The FAA reports that since 1997 it has inspected 770 repair stations, 1,369 shippers of dangerous goods, and conducted 7,452 assessments of air carriers and indirect air carriers. This effort has resulted in more than $14 million in fines. And tellingly, "The fines do not necessarily mean more violations are occurring, but rather that the FAA now has a greater ability to uncover and respond to violations."
The cause of the ValuJet crash in the Florida Everglades was found to be a fire sparked by oxygen generators in the cargo hold of the aircraft. SabreTech, the company that shipped the generators, was later held criminally liable for that shipment.
That fact alone was enough to get the attention of the aviation industry, irrespective of what the FAA subsequently did, according to Jason Dickstein, general counsel for the Airline Suppliers Association (ASA) in Washington.
"There has been an increase in the enforcement by the FAA," Dickstein says, "but even if there hadn’t been, I think the SabreTech criminal actions would have been enough to turn people’s heads. Even without the enforcement you would see an awful lot more attention paid to hazmat training and hazmat quality systems."

The ValuJet crash, of course, did what so many crashes do: point out the ignorance or laxness in a particular phase of the industry. Within the past six years, the knowledge of hazmat transportation rules in the aviation industry, which have been on the books since the 1970s, has grown exponentially. In addition to the FAA’s beefed up enforcement (130 dangerous goods and cargo security personnel and 12 attorneys are dedicated to enforcement and penalty processing, a five-fold increase since 1997), it has an educational outreach program in place.
That outreach takes the form of speaking at conferences, publishing material in the Federal Register, sending letters to manufacturers, dangerous goods advisories to the industry, and creating brochures and videos. Additionally, groups such as ASA have developed education and training programs devoted to hazmat.
"First of all," says Ric Peri, technical services manager at the National Air Transportation Association (NATA) in Washington, "you have to educate the entire population on the basics of Part 49 (49 CFR, parts 171-180), "the transportation of hazardous materials and what constitutes hazardous materials. Then, recognizing that what you’re shipping might be hazardous material, the company should have a mechanism in place to provide assistance in the packaging and shipment of that product.
"Take something as simple as a repair kit. You get an AOG call and it needs a repair kit. Nobody thinks about it; they ship off the repair kit. Well, inside the repair kit is a quantity of hazmat and the mechanic is only sending a repair kit; they’re not sending a chemical — it’s a repair kit. We’re trying to educate people of the necessity to look inside that repair kit. It requires somebody to realize: Can you ship it? Does it require placarding? Is it beyond the threshold? What are the issues? That’s the only way you stay out of trouble."
The course developed by ASA will be offered at the Professional Aviation Maintenance Association (PAMA) convention in May to educate maintenance personnel and companies that hazmat can take many forms, including such things as aircraft parts and components and even aerosol cans.
"On the ground," says Doug Macnair, vice-president for governmental and technical affairs at PAMA, "these things may seem quite innocuous but could be considered hazmat in the context of flight... The whole point (of the course) is to bring people who manage or handle hazmat into compliance — everything from loading and unloading, handling, testing, repairing containers, documentation, packaging, everything.’’
It’s not that everybody was ignorant of the rules prior to ValuJet, according to Spohrer at Challenge Cargo Airlines. However, there were some who knew the rules and tried to circumvent them. The new enforcement push has served to remedy some obvious ways of getting around the rules or made those bent on violating the rules more devious.
The increased enforcement, Spohrer says, has resulted in some freight forwarders discontinuing the practice of hiding hazmat in built-up pallets to avoid the extra cost associated with hazmat transportation.
"Before," he says, "it (enforcement) was all the airlines, but then they started enforcing against the freight forwarders as well.’’

Bill Wilkening, FAA’s manager of dangerous goods and cargo security, says it is the job of the agency to assign responsibility for a violation of the hazmat regulations. That is usually the shipper or officer of the material in question. However, anybody and everybody in the chain of handling hazmat could be faced with fines.
"Hazardous materials regulations applicability," Wilkening says, "has three phases of transportation: those who offer hazmat; those who accept; and those who transport. You have to do one of those three things to be subject to the regulations.
"All three could be in violation in one transportation. Generally ... the responsibility begins with the offerer or shipper. The person who offers has the primary responsibility to declare and communicate the hazards. They have to describe the contents. It (the package) has to be marked, packaged, labeled, documented, and certified."
A manufacturer or freight forwarder could offer, an FBO or third party ground handler could accept, and an air carrier could transport. If the package is not properly packaged, marked, labeled, and documented, the primary responsibility falls to the shipper, but the others could be held liable.
Wilkening freely admits that there are grey areas that call for the FAA’s "application of judgment."
He explains, "The standard we use is knowledge. The violator must knowingly commit the violation. You can have actual knowledge or you can have constructive knowledge. Constructive knowledge is the concept that you know or should have known better.’’
An example, Wilkening explains, is where an air carrier accepts a package from a shipper that has "enough information (on it) that a reasonable person would know enough to inquire further to make it a suspicious shipment." The words cigarette lighter or flammable liquid are examples.