Your HazMat Is In The Air: When Things Go Wrong

by Pierce Atwood LLP
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With increased inspections and enforcement, businesses are discovering the hard way that many common materials are “hazardous materials” (“HazMat”) under U.S. DOT rules.  Moreover, because many materials move by air (think FedEx and UPS), the Federal Aviation Administration (“FAA”) is playing a more important role than ever in policing shipments.

FAA may not be the first regulator you think of when it comes to your business, but several recent enforcement actions have been eye-catching:

  • Two small, sealed (non-spillable) lead acid batteries, shipped without shipping papers - $54,000 penalty sought
  • Undeclared shipment of medical-grade silicone fluid - $91,000 penalty settlement
  • Undeclared fiberboard box of paint - $78,000 penalty settlement

It often comes as a surprise that FAA is involved, since the shipment destination can be in the next town, but national shippers typically fly everything to a regional or national hub first. 

HazMat can be commonly used products by consumers, but if not properly shipped they can be subject to significant penalties.  Unexpected but common examples include shipment of HazMat to or from conventions and meetings, samples of waste or chemicals, materials for “beta” testing, and equipment with HazMat (even batteries) inside. 

FAA identifies these problematic materials through incidents, such as leaking packages, but also through inspections of records at carriers such as FedEx and UPS.  Our recent conversations with FAA special agents indicate there are hundreds of shipper inspections every year in the New England region alone.  Among the common violations identified by FAA are errors in shipping papers, failure to follow packaging instructions and regulations, and failure to train all employees who perform HazMat shipping functions. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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