ELR Citation: ELR 21132
No(s). 89-1089 (D.C. Cir. Apr 13, 1990)

The court court holds that the Federal Aviation Administration (FAA) correctly found that NL Industries violated the Hazardous Materials Transportation Act (HMTA), and properly assessed a $50,000 penalty when the company "offered hazardous materials for transportation" within the meaning of the HMTA. NL packaged drums of chemicals for transportation to a foreign customer and had them delivered to an air cargo carrier, but when the materials arrived at the air carrier the FAA found many violations in marking, labeling, and packaging regulations. The court first holds that the HMTA applies to the activities of any person that moves a hazardous material by any mode, and places reponsibility with one who transports hazardous materials or causes them to be transported, regardless of whether the person is a shipper or a carrier. Therefore, the court holds that NL's status of manufacturer rather than shipper or carrier does not insulate it from liability when it causes a hazardous material to be shipped when improperly packaged. The court also holds that NL is liable under the HMTA even though the company did not hold legal title to the chemicals when they were to be boarded on the air carrier. The court holds that NL is not relieved from responsibility for the shipment when the foreign customer contracted with an air carrier, because NL performed physical acts regulated by the statute by offering the materials for air transportation. The court finally holds that the FAA correctly took into account the nature, circumstances, extent, and gravity of the violation committed, history of prior offenses, ability to pay, and effect on ability to continue business when affirming NL's penalty. The court concludes that NL's penalty was not arbitrary or excessive and is within the scope of the FAA's authority.

A dissenting judge would hold that NL does not fall within the scope of the HMTA, since it did not "cause" the transportation of the hazardous chemicals.

Counsel for Petitioner
Richard P. Taylor
Steptoe & Johnson
1330 Connecticut Ave. NW, Washington DC 20036
(202) 429-3000

Counsel for Respondents
Cynthia A. Dominik, Allan H. Horowitz
Federal Aviation Administration, Office of Chief Counsel
800 Independence Ave. SW, AGC260, Washington DC 20591
(202) 267-3137

Philip Brady, General Counsel
Department of Transportation
400 Seventh St. SW, Ste. 10428, Washington DC 20590
(202) 366-4702

Before BUCKLEY, D.H. GINSBURG, and SENTELLE, Circuit Judge