______________________________
                              )
In the Matter of CLEAN ALL    )
      PRODUCTS, INC.,         )
                              )  Ref. No. 95-17-SB-EA
                              )
                              )
Respondent.                   )
______________________________)

On March 18, 1996, the Chief Counsel, Research and Special Programs Administration (RSPA), U.S. Department of Transportation, issued an Order to Clean All Products, Inc. (Respondent), finding that Respondent had knowingly committed the following four violations of the Hazardous Materials Regulations (HMR), 49 C.F.R. Parts 171-180, and assessing a penalty in the amount of $5,790:

1. Offering for transportation in commerce a hazardous material, hydrochloric acid solution, in unauthorized packagings (fiberboard boxes containing one-gallon plastic bottles that were not strong enough for their contents and lacked any marking that they met an authorized specification or performance standard), in violation of 49 C.F.R. ßß 171.2(a) and 173.263(a) (as authorized until October 1, 1996) or, alternatively, 49 C.F.R. ßß 171.2(a) and 173.202 (as authorized on and after January 1, 1991).

2. Offering for transportation in commerce a hazardous material, compound cleaning liquid, accompanied by a shipping paper that did not contain the technical name of the material, in violation of 49 C.F.R. ßß 171.2(a) and 172.203(k)(3).

3. Offering for transportation in commerce a hazardous material, hydrochloric acid solution, accompanied by shipping papers that contained an incorrect proper shipping name and identification number for the material, in violation of 49 C.F.R. ßß 171.2(a) and 172.202(a).

4. Offering for transportation in commerce a hazardous material, hydrochloric acid solution, accompanied by shipping papers that failed to contain a shipper's certification, in violation of 49 C.F.R. ßß 171.2(a) and 172.204(a).

The Order, which is incorporated herein by reference, modified the $9,650 civil penalty originally proposed in the January 10, 1995 Notice of Probable Violation (Notice). By letter dated April 8, 1996, Respondent submitted a timely appeal of the Order.

Discussion

Respondent has not disputed any of these four violations but appeals for a reduction of the penalties assessed for violations Nos. 1 and 3. It argues that "no harm was done and immediate action was taken on all matters," and asks that the penalty be reduced to $1,000 -- the statutory minimum penalty of $250 for each of the four violations. Respondent states that even the minimum $1,000 civil penalty would be a "hardship," because it has had "very little profits, if any, for the last three years."

Respondent's appeal does not include any financial information. Prior to issuance of the Order, Respondent provided documentation of annual sales of approximately $2.5 million to $3 million, a small loss in 1992, and a larger loss in 1993. Respondent did not provide a balance sheet or other evidence of assets and liabilities -- the best evidence of a company's overall financial condition and ability to pay a penalty -- despite RSPA's explicit request for a copy of your most recent financial statement, preferably certified, showing current assets, current liabilities, retained earnings, and net worth.

Nonetheless, the minimal financial information provided was considered in the Order, in which the Chief Counsel assessed Respondent the minimum $250 penalty for violations Nos. 2 and 4, and provided that Respondent could pay the total civil penalty of $5,790 in 30 monthly installments of $193 each. Greater penalties were assessed for the other two violations, as follows:

$3,150 for violation No. 1 (unauthorized, inadequate packaging of hydrochloric acid solution), and

$2,140 for violation No. 3 (improper shipping name and identification number on the shipping papers for hydrochloric acid solution).

RSPA considers that it was only good fortune that "no harm was done," because the boxes Respondent used to ship hydrochloric acid solution were clearly inadequate for their contents. Each of these filled boxes weighed more than 40 lbs. However, according to the box manufacturer's seal on the bottom, these boxes were made of 200 lbs. psi singlewall fiberboard which (under provisions in the HMR authorized for shipments until October 1, 1996) would have been adequate only for packages with a gross weight of 30 lbs. See the former DOT-12B specification in 49 C.F.R. ßß 178.205-16 (1990 ed.). Even more significant is the fact that some of the boxes observed at Respondent's customer were caved in and one had a crushed corner. See the photographs taken by RSPA's inspector in Exhibit 3, Tab 1 to the report of inspection/investigation.

Respondent's use of unauthorized packagings appears to have been widespread. According to its hazardous materials log (Exhibit 6 to the report of inspection/investigation), it sells at least 20 different liquid hazardous materials in either 4x1 gallon or 6x1 gallon configurations. Still other materials are shipped in outer packagings with inner quart containers. Following RSPA's inspection, Respondent changed three-quarters of all the "outstanding boxes that were shipped to our customers," according to its October 23, 1995 letter.

With respect to the hydrochloric acid solution involved in this case, Respondent made two shipments totaling 480 boxes (or 1920 gallons) in April 1994 to the customer where RSPA's inspector first observed these unauthorized packagings. Under all these circumstances, the Chief Counsel clearly gave adequate consideration to both Respondent's corrective actions and its financial condition in reducing the penalty for violation No. 1 to $3,150, or almost 50% from the $6,200 baseline penalty. (RSPA's penalty guidelines provide that a 25% reduction is the maximum normally allowed for corrective actions. Section IV.A. of Appendix A to 49 C.F.R. Part 107, Subpart D.)

Violation No. 3 involved Respondent's misdescription of the hydrochloric acid solution on shipping papers that accompanied this material. Respondent used the description "Muriatic Acid, Hypochlorite Solution, Corrosive Material UN 1791" rather than "Hydrochloric Acid Solution, 8, UN 1789, PG II." Although Respondent termed this simply a "typographic mistake" in its appeal, there were a number of errors beyond the incorrect inclusion of "hypochlorite solution" in the proper shipping name and use of an incorrect identification number. Respondent failed to update its hazardous materials log for changes to the HMR effective October 1, 1993. After that date, "muriatic acid" was no longer authorized as an alternative proper shipping name for hydrochloric acid solution; the hazard class must be indicated by the numeral "8," rather than "corrosive material"; and the packing group is required. Other entries on this hazardous materials log contain similar errors.

The shipping paper is a primary source of information to emergency responders in the event of an incident, and erroneous information can lead to improper responses (including possible additional risks to the responders themselves). In this case, however, the 1993 edition of the Emergency Response Guidebook (ERG) contained references to both "muriatic acid" and "hydrochloric acid solution," and the ERG indicated similar first response actions for both of these as well as for hypochlorite solution. This reduces the seriousness of this violation and warrants reduction of the penalty to $1,000, from the $2,140 penalty assessed in the Order.

In its appeal, Respondent also argues that it was not "knowingly aware of said violations," and that it would not "knowingly" commit any violations. As explained in the Notice, the "knowingly" standard in Federal hazardous material transportation law is a negligence standard and requires only that a Respondent have actual or constructive knowledge of the facts of a violation. There is no requirement that the company actually know the law or intend to commit a violation. Accordingly, Respondent's apparent lack of knowledge of the specific requirements in the HMR is not relevant; its apparent knowledge of the facts of these violations is the basis for the Chief Counsel's finding in the Order that Respondent "knowingly committed the violations as alleged in the Notice."

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 $4,650 is appropriate in light of the nature and circumstances of these violations, their extent and gravity, Respondent's culpability, Respondent's lack of prior violations, 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 April 18, 1996, is affirmed as being substantiated in the record and as being in accordance with the assessment criteria prescribed in 49 C.F.R. ß 107.331.

The $4,650 civil penalty is payable in 30 monthly installments of $155 each, with the first payment due within 30 days of the date of issuance of this Action on Appeal and each succeeding payment 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 notice, become immediately due and payable as of the date that 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 $4,650 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 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. ß 3717, 4 C.F.R. ß 102.13, and 49 C.F.R. ß 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.

Final Administrative Action

This decision on appeal constitutes the final administrative action in this proceeding.

/S/ Kelly S. Coyner

Kelley S. Coyner
Acting Administrator

Date Issued: February 23, 1998

Enclosure

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

Original to: Mr. August Gonnella
President
Clean All Products, Inc.
838 Erie Blvd. W.
Syracuse, NY 13204