Government Enforcement of the HMR

The federal government actively enforces the Hazardous Materials Regulations and regularly investigates hazmat incidents. Though the HMR are promulgated by RSPA, most HMR enforcement activity is undertaken by DOT's modal administrations, such as FAA. The United States Department of Justice (DOJ) also has authority to prosecute violations of the HMR. Subsequent to September 11, 2001 HMR enforcement has become prominant agenda items for both DOT and DOJ. FAA has been particularly active in HMR enforcement, especially since the 1996 ValueJet disaster in the Florida Everglades, and typically issues press releases when it issues a proposed penalty greater than $50,000.

Government Investigation and Notice of Proposed Penalty Letters

In many instances, government enforcement matters start with an investigation letter and proceed to a "Notice of Proposed Penalty." While there is no recipe for responding to either an investigation letter or a Notice of Proposed Penalty (in part because they are very fact-specific), there are a few things that should be kept in mind:

• Respond to the letter. Hazmat violations can result in criminal prosecution, and the potential fines are substantial.
  
  
• Responding to the letter may involve answering questions and producing records, so seeking the advice of counsel may be appropriate.



• Conduct an internal investigation to get a clear understanding of every aspect of the shipping event in question. Investigations coordinated at the direction of counsel will likely protect certain aspects of the investigation.



• Keep in mind that HMR violations are strict liability -- fault or honest mistakes have little bearing on the government's investigation or prosecutorial decisions.



• The why and how behind the shipping incident can be quite important in assessing liability and proposing penalties. Although compelling explanations might not eliminate liability, they can have a positive bearing on proposed penalties.



• Arguments that focus on the recipient's status, lack of prior violations or that the substance involved was of a minimal quantity tend not to work very well.

Mistakes happen -- even with the most sophisticated and conscientious hazmat shipping policies. To the extent that an investigation reveals a gap in an entity's shipping policy, taking proactive steps to close the gap, as well as explaining the same to FAA (or RSPA) may also be helpful in dealing with the administration.

It also goes without saying, of course, that developing a proactive hazmat compliance program (e.g. a written, audited document) can be a major help in avoiding hazmat incidents in the first place.

© 2004 Cramer Law Group PLLC