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."
BEST DEFENSE: EDUCATION
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.’’
ASSIGNING RESPONSIBILITY
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.