Aviation Business Journal 1st Quarter 2013 - 41

Fish in the Barrel
A
by Bob Fox, Director of Maintenance at Landmark Aviation

ll of us in the aviation
industry strive to achieve
100 percent regulatory
compliance 100 percent
of the time. Unfortunately, there
are times when things go awry
and in those cases we take our
medicine, learn from what happened
and follow the steps necessary to
prevent a recurrence. That’s what
safety management and continuous
improvement are all about.
It’s not typical to share these stories
with the public other than in the
manner chosen by the FAA, such as
press releases for notices of proposed
civil penalties greater than $50,000.
However, we believe our experience
can serve as a cautionary tale for
companies that offer to ship hazardous
materials (hazmat). As with regulatory
compliance generally, substantial
compliance is not good enough.
Our case arose shortly after
Landmark Aviation (Landmark)
acquired the assets of another
company. Landmark has been
handling hazmat for some time and,
until this occurrence, had a spotless
compliance record. While we had
performed our due diligence before
signing the asset purchase agreement,
it took us a little time to integrate
the personnel we inherited fully into
Landmark’s systems, procedures
and corporate culture. Although the
recent nature of the acquisition was a
contributing factor in the case, it did

Aviation Business Journal | 1st Quarter 2013	

not change the fact that Landmark
was responsible for all shipments.
The Hazardous Materials
Regulations (HMR), Title 49 Code
of Federal Regulations (CFR), parts
171-180 address transportation-related
safety issues only. They are issued by
the Pipeline and Hazardous Materials
Safety Administration (PHMSA), an
agency of the U.S. Department of
Transportation. However, the rules are
enforced by the agency responsible for
regulating the particular mode used
to transport the article (i.e., Federal
Aviation Administration (FAA),
Federal Railroad Administration,
Federal Motor Carrier Safety
Administration, etc.). The HMR
differ from the hazardous waste and
disposal rules issued by the U.S.
Environmental Protection Agency, and
state and local authorities that focus
on environmental issues.
It may surprise you that the
maximum civil penalty for a hazmat
violation is almost double the amount
for operational or maintenance
violations. At the time of our
experience, the hazmat maximum
was $50,000 per violation. Note that
this is not per shipment; it is for each
violation! The good news is that the
FAA did not impose the maximum
penalty allowable under the law.
Nevertheless, the amount was
significant and certainly high enough
to get our attention. I’m sure the fact
that it involved a chemical oxygen

generator (COG) also factored into
the agency’s decision.
A typical hazmat enforcement
case follows a standard pattern.
An undeclared hazmat package
is prepared for shipment, it leaks
in transit (usually at the carrier’s
facility) and the person who
discovers the discrepancy reports it
to the FAA as required by the HMR.
The FAA’s hazardous materials
enforcement branch conducts a formal
investigation, takes pictures and
assembles other evidence (known as
“items of proof”) that establish the
alleged non-compliance. Usually, the
investigation focuses on packaging,
marking, labeling, personnel training,
shipping documents, emergency
response information, record retention
and other requirements of Title
49. (From this point forward, I will
reference only the applicable 49 CFR
section). In a typical undeclared
hazmat case, it is common for the FAA
to allege about 15 different violations.
Our case was a little different. The
good news is that the responsible
person in Landmark’s shipping
department had received the required
hazmat training and knew that a COG
contained in protective breathing
equipment (PBE) was indeed a
hazardous material. So, the individual
declared the shipment to be
hazardous, prepared and signed the
Continued on page 43

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Aviation Business Journal 1st Quarter 2013

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