______________________________
)
In the Matter of SAFETY AND )
HEALTH ASSOCIATES, INC. )
D/B/A FIRE BOSS, ) Ref. No. 97-222-CR-SW
Respondent. )
______________________________)
ACTION ON APPEAL
Background
On June 18, 1998, the Chief Counsel, Research and Special
Programs Administration (RSPA), U.S. Department of Transportation,
issued an Order to Safety and Health Associates, Inc. D/B/A
Fire Boss (Respondent) assessing a penalty in the amount of
$6,300 for three violations of the Hazardous Materials Regulations
(HMR), 49 C.F.R. Parts 171-180.
The Order, which is incorporated herein by reference, found
that Respondent knowingly offered compressed gas in cylinders
for transportation in commerce without providing the required
training to its hazmat employees and without maintaining training
records (violation No. 1), represented, marked, certified,
and offered compressed gas cylinders as having been successfully
retested in accordance with the HMR without performing the
hydrostatic retest at the minimum test pressure (violation
No. 2), and offered compressed gas in cylinders for transportation
in commerce accompanied by shipping papers on which an incorrect
shipping name was used and which omitted the hazard class
and Respondent's emergency response telephone number (violation
No. 3), in violation of 49 C.F.R. §§ 171.2(a) & (c), 172.201,
172.202, 172.702, 172.704, and 173.34(e). Based on the actions
taken by Respondent to correct these violations and to prevent
future violations of the HMR, the Order reduced the $7,870
civil penalty originally proposed in the December 15, 1997
Notice of Probable Violation.
By its letter dated June 24, 1998, Respondent submitted a
timely appeal of the Order.
Discussion
Respondent has admitted these violations. Its appeal (as
its original response to the Notice) contends that the penalties
assessed in the Order are too high and states these violations
do not "pose a serious threat to safety." Respondent disagrees
with the findings set forth on the third page of the Chief
Counsel's Order that:
[P]roper training will ensure that Respondent's
hazardous materials employees have knowledge of the HMR. If
Respondent's employees had been properly trained, safety-threatening
violations may have been prevented.
[F]ailing to properly test a high pressure cylinder
could result in a defective cylinder being put back into service
instead of being condemned. Ultimately that cylinder could
burst, causing injury or death.
Respondent's discrepancies in the shipping paper
could hinder response personnel in their attempts to identify
the materials in case of an emergency.
With respect to the first violation, Respondent stated in
its original response to the Notice that it had "a hazmat
employee, properly trained with appropriate documentation,
primarily responsible for retesting," and that its "error
was in not realizing that every [hazmat] employee needed the
testing." This admission, by itself, contradicts the statement
in Respondent's appeal that "training was performed," with
the only "error being record keeping."
RSPA's inspection/investigation report indicates that one
of Respondent's employees received training in "the rules,
policies, and requirements on Cylinder Requalification" at
a prior place of employment (see Exhibit 7) and, according
to Respondent, oversaw all cylinder retesting. A second retest
operator stated that he was shown how to retest cylinders
by a former employee, but it is doubtful that this demonstration
included all three required areas of hazmat training (see
49 C.F.R. § 172.704(a)). There is no evidence that a third
retest operator had ever received any training. In sum, there
is no indication that Respondent itself provided any hazmat
training, nor that any of its employees had ever been trained
in matters related to preparing hazardous materials for shipment,
including the preparation of shipping papers.
While "[p]roper training can not prevent every possible violation,"
as Respondent asserts, the other violations in this case appear
to have resulted directly from an unawareness of basic requirements
in the HMR. Adequate function-specific training by Respondent
should have included such matters as the minimum retest pressure
for cylinders and the required contents of shipping papers.
Under all these circumstances, the $1,080 penalty allocated
to this violation in the Order (after consideration of the
small size of Respondent's business and its corrective actions)
is appropriate and consistent with RSPA's penalty guidelines
in Appendix A to 49 C.F.R. Part 107, subpart D.
The second violation, for retesting cylinders at less than
the minimum test pressure, was based on a review of Respondent's
retest records during RSPA's inspection. These records showed
that six cylinders with a service pressure of 2,900 psi were
retested at 4,300 psi (rather than 4,833 psi). Another cylinder,
with a service pressure of 3,500 psi, was retested at 5,800
psi (rather than 5,833 psi). See Exhibit 6, Tab 1 to RSPA's
report of inspection/investigation. Respondent's test records
did not contain the cylinders' specifications, despite the
requirement in 49 C.F.R. § 173.34(e)(8) to record the ICC
or DOT specification. Respondent's employee told RSPA's inspector
that all these were DOT-3A and 3AA cylinders.
In its response to the Notice, Respondent stated that the
2,900 psi cylinders were foreign cylinders that were retested
"at the manufacturers recommended test pressure instead of
5/3 working pressure" (if higher); "our people were mainly
at fault in not referencing the CFR to determine proper procedure
for foreign cylinders." Respondent also stated that the last
cylinder "was a domestic cylinder tested within the 1% deviation."
In its appeal, Respondent states that the cylinders were "tested
to 3/2 working pressure instead of 5/3." It asserts that,
because "a star on a cylinder allows a higher working pressure,"
and that, for a cylinder allowed to be refilled to 110% of
its service pressure, "a test pressure of 5/3 the stamped
pressure is actually 3/2 of the true working pressure," which
"does not pose any serious threat to safety." Respondent also
stated that RSPA had recognized "the safety of a 3/2 test
pressure" because "[p]ending D.O.T. regulations" would supposedly
allow test pressure to be reduced to 3/2 of service pressure.
Respondent appears to confuse several issues with respect
to this violation. First, the 4,300 psi pressure at which
it retested the 2,900 psi cylinders would not have satisfied
a requirement to test at 3/2 (4,350 psi) of the service pressure.
Second, the requirement to calibrate retest equipment to within
±1% of test pressure, in 49 C.F.R. § 173.34(e)(4)(iii), does
not authorize testing below (even by 1%) the minimum test
pressure specified in the Table at 49 C.F.R. § 173.34(e).
The permissible inaccuracy in retest equipment may minimize
the seriousness of this violation with respect to the 3,500
psi cylinder, but not with respect to the six 2,900 psi cylinders.
Third, it is the plus (+) marking (not a star) that authorizes
filling certain DOT specification cylinders with certain gases
to 110% of service pressure. Moreover, calculations of maximum
or average wall stress (which Respondent did not perform)
are required before these DOT cylinders may be marked with
a plus sign. 49 C.F.R. § 173.302(c).
Fourth, RSPA has not proposed any change in the requirement
that the minimum test pressure for a foreign cylinder is that
"marked on the cylinder, but not less than 5/3 of any service
or working pressure marking." 49 C.F.R. § 173.34(e)(Table).
In a recent Notice of Proposed Rulemaking in Docket No. 98-3684
(HM-220), RSPA discussed a petition submitted by the Compressed
Gas Association (CGA)
to change the test pressure from 5/3 times service
pressure for currently authorized DOT specification seamless
cylinders to 3/2 times service pressure for newly constructed
DOT specification seamless cylinders, [which would have the
effect of increasing] the filling limit for most of the new
seamless DOT specification cylinders to that currently authorized
for cylinders marked with a "+" sign (see 49 CFR 173.302(c)).
63 Fed. Reg. 58460, 58462 (emphasis added) (October 30, 1998).
In this NPRM, RSPA explained that it
accepted the CGA proposal to increase the filling
limits for new cylinders, in principle, but has chosen to
limit the proposal for increased filling limits to metric-marked
DOT specification cylinders. Additionally, RSPA has not changed
the requirements in 49 CFR 173.302(c) for the current DOT
specification cylinders, . . .
63 Fed. Reg. at 58463. Accordingly, Respondent's argument
that RSPA "recognizes the safety of a 3/2 test pressure" misses
the mark with respect to all (1) existing DOT specification
cylinders and (2) non-DOT specification (i.e., foreign) cylinders.
The only cylinders that would be allowed to be retested at
3/2 service pressure, under RSPA's proposal, are new metric-marked
cylinders, to which additional requirements apply (i.e., ultrasonic
testing), besides those DOT specifications allowed to be marked
with a plus (+) sign when wall stress calculations are performed.
See 63 Fed. Reg. at 58514-15. Respondent's appeal provides
no basis for reducing the $2,340 penalty allocated to violation
No. 2 in the Order.
In addressing the third violation, Respondent's appeal states
that, although it used the incorrect shipping name of "Non-flammable
gas . . . [e]mergency response to either would be exactly
the same. I do not see how this could pose a serious threat
to life or property." In this respect, a more significant
fact is that, for each of the two gases shipped (carbon dioxide
and krypton) Respondent actually used the correct identification
number. See Exhibit 8 to RSPA's inspection/investigation report.
From the identification number, an emergency responder can
determine the proper first response from the North American
Emergency Response Guidebook.
Respondent's appeal does not address the omission of an emergency
response telephone number on these shipping papers, which
is the more serious aspect of violation No. 3. The shipper's
telephone number is necessary so that an emergency responder
can obtain more detailed information about the hazardous material
than is set forth on the shipping paper itself.
Upon further consideration, however, I conclude that the
penalty allocated to this violation should be reduced. The
penalty originally proposed in the Notice appears to have
been analogized to a failure to prepare any shipping paper
at all, which is a much more serious violation than the problems
with Respondent's shipping papers. It is more appropriate
to use the $2,600 baseline penalty in RSPA's guidelines for
failing to provide an emergency response telephone number
and apply the same reduction for corrective actions as previously
applied in the Order. This produces a penalty of $1,680 allocated
to violation No. 3, which, under all the circumstances, is
considered an appropriate penalty.
In its appeal letter, Respondent also asserts that it requested
a formal hearing in its February 25, 1998 letter. As explained
in the Order, this request was untimely because it was not
contained in Respondent's original January 14, 1998 response
to the Notice, but rather in a subsequent letter more than
30 days after Respondent received the Notice. Respondent was
advised in Appendix B to the Notice that its "right to . .
. a formal hearing is waived if your reply is not received
by the RSPA Office of Chief Counsel within 30 days of your
receipt of the Notice of Probable Violation (§ 107.313)."
Findings
I have determined that there is sufficient information to
warrant mitigation of the civil penalty assessed in the Chief
Counsel's Order. I find that a civil penalty of $5,100 is
appropriate in light of the nature and circumstances of these
violations, their extent and gravity, Respondent's culpability,
Respondent's lack of prior offenses, Respondent's ability
to pay, the effect of a civil penalty on Respondent's ability
to continue in business, and all other relevant factors.
Therefore, as modified herein, the Order of June 18, 1998,
is affirmed as being substantiated in the record and as being
in accordance with the assessment criteria prescribed in 49
C.F.R. § 107.331.
Respondent may pay this penalty in 15 monthly installments
of $340 each, the same period as originally provided in the
Order. The first $340 payment is due within 30 days of the
issuance of this Action on Appeal, and each succeeding payment
is due every 30 days thereafter until the entire amount is
paid. If Respondent defaults on any payment of this payment
schedule, the entire amount of the remaining civil penalty
shall, without further action, become immediately due and
payable as of the date the first installment is due.
Form of Payment
Each installment payment must be made in one of the following
two ways:
1) by wire transfer, through the Federal Reserve
Communications System (Fedwire), to the account of the U.S.
Treasury. Detailed instructions are contained in the enclosure
to this Order. Questions concerning wire transfers should
be directed to: Financial Operations Division (AMZ-320), Federal
Aviation Administration, Mike Monroney Aeronautical Center,
P.O. Box 25770, Oklahoma City, OK 73125 (Telephone 405-954-4719).
(2) by sending a certified check or money order
(containing the Ref. No. of this case) payable to "U.S. Department
of Transportation" to the Financial Operations Division (AMZ-320),
Federal Aviation Administration, Mike Monroney Aeronautical
Center, P.O. Box 25770, Oklahoma City, OK 73125.
If the $5,100 civil penalty is paid in accordance with the
terms of this Action on Appeal, no interest will be charged.
If, however, the civil penalty is not paid in accordance with
the terms of this Action on Appeal, the Financial Operations
Division of the Federal Aviation Administration will assess
interest and administrative charges, and it will initiate
collection activities on the debt and those charges. Interest
on the debt will accrue from the date of issuance of this
Action on Appeal at the applicable rate in accordance with
31 U.S.C. § 3717, 4 C.F.R. § 102.13, and 49 C.F.R. § 89.23.
Pursuant to those same authorities, a late-payment penalty
of six percent (6%) per year will be charged on any portion
of the debt that is more than 90 days past due. This penalty
will accrue from the date this Action on Appeal is received.
This debt and associated charges are also subject to referral
to the Department of the Treasury for collection, and the
Department of the Treasury may offset these amounts against
any payment due Respondent.
Final Administrative Action
This decision on appeal constitutes the final administrative
action in this proceeding.
/s/ Stephen Van Beek for
Kelley S. Coyner
Administrator
Date Issued: December 22, 1998
Enclosure
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