SERVED June 19,2002 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FAA v. MACE ADHESIVES & COATINGS CO., INC. 

FAA DOCKET NO. CP02EA0004 

(Civil Penalty Action) 

DMS NO. FAA-2002--11513 

ORDER ASSESSING CIVIL PENALTY 

This proceeding is before me on the parties' cross-motions for decision on the 

written submissions.' Complainant's motion, as modified herein, is granted. 

Respondent's request to dismiss the complaint is denied; to the extent that it asked for a 

decision and a determination of penalty on the record presented, its motion is granted. , 

FINDINGS 

The facts alleged in the complaint are undisputed. On September 16, 1999, an 

employee of Mace Adhesives & Coatings Co., Inc. (Respondent or Mace), a manufacturing 

concern located in Dudley, MA, offered to United Parcel Service (UPS) a shipment in a 

fiberboard box. The box contained four metal containers filled with liquid. The shipment 

was loaded onto and flown on a regularly scheduled UPS flight. At UPS' sort facility in 

Philadelphia (the flight's destination), ground-handling personnel determined that the 

containers were leaking into the box. The box was emitting an odor. 

I As Respondent suggests in its prolixly-titled "Answer of Mace Adhesives & Coatings Co., Inc. in Opposition to 

Motion of FAA for Decision on the Pleadings and in Support of its Motion for Final Decision aud Judgment on the 
2 

The liquid in the containers was a flammable resin solution. A flammable resin 

solution is classified as a hazardous material under the Hazardous Materials Regulations 

(HMRs). See Hazardous Materials Tablefollowing 49 C.F.R. §172.1 01. 

The box had not been packaged, marked, described, or labeled properly. It also 

lacked other information required by the HMRs for the transport of hazardous materials. 

The agency charged Mace with violations of the following HMRs: 49 C.F.R. §§171.2(a), 

172.200(a), 172.201 (d), 172.202(a)(1 )-(a)(5), 172.204(a), 172.204(c)(2) and (c)(3), 

172.300(a), 172.301 (a), 172.400(a), 172.600(c), 173.1(b), 173.22(a)(1) and (2), 

173.24(b)(1) and (2), and 173.27(d).' Complainant seeks a civil penalty of $20,000. 

CONCLUSIONS 

Respondent conte.nds that it did not "knowingly" violate the law, as the statute 

requires for liability. "Knowingly" is defined as "actual knowledge of the facts giving rise 

to the violation" or the knowledge that a reasonable person exercising reasonable care 

would have. 49 U.S.c. §5123(a). Congress intended civil penalties to be imposed on 

those who knowingly committed the act that constituted a violation, which boils down to 

knowingly tendering a shipment for carriage in air commerce. It would not be necessary 

to show that the violator knew that his or her act constituted a violation. Scott H. 

Smalling, FAA Order No. 94-31 (October 5, 1994), p. 7; Tc/ Corporation, FAA Order No. 

92-77 (December 22, 1992), pp. 8-9 n. 13. 

Record Presented" of March 29, 2002 (Mace's Answer), its February 8, 2002 motion for suspension of procedural 

dates is moot. 

( 

2 The complaint had also alleged that Respondent violated § 172. 702(a) - that is, that the company failed to ensure 

that its hazmat employees had been properly trained - but, noting that Mace had since produced satisfactory training ( 

records for the employee in question, the agency excluded that charge in a subsequent pleading. See Motion for 

Decision (February 21,2002), pp. 2-3. 
3 

Respondent argues that the employee who turned over the shipment to UPS was 

suffering from clinical depression; therefore, the employee, and vicariously Respondent,' 

did not knowingly commit the violations with which it is charged.' 

This argument does not wash. I will assume, as Respondent's exhibits and 

argument assert, that this employee suffered from clinical depression at the time of the 

incident (see Exhibits A and M attached to Mace's Answer). But that circumstance does 

not require or inexorably warrant a finding, as Mace apparently contends, that the 

employee did not "knowingly" violate the statute or HMRs. The question of whether the 

employee's depression shows that the employee did not have the statute's requisite 

"knowledge" is a question of fact. Bender v. Department of Veterans Affairs, 1997 U.s. 

App. Lexis 29897 (Fed.Cir. 1997); U.S. v. McCaffrey, 1997 U.S. Dist. Lexis 6907 (N.D. III. 

1997). Respondent must show that this employee's condition absolved the employee, and 

thereby Mace, for responsibility for the particular incident under scrutiny. This it has 

utterly failed to do. Mace has provided no evidence on this point. Its mere recitation of 

the employee's clinical depression does not excuse it from liability. 

Indeed, Respondent's exhibits provide evidence that the employee's condition had 

no impact on the employee's "knowledge." A psychiatric examination of this employee 

less than three weeks after the incident - which Respondent submitted to show the 

employee's condition at the time of the incident - concludes that "[tlhought content is not 

3 The employee clearly acted within the scope of employment. As such, any action for which the employee is held 

responsible is vicariously ascribed to Mace. Warbelow's Air Ventures. Inc., FAA Order No. 2000-3 (February 3, 

2000), p. 5, reconsideration denied, FAA Order No. 2000-14 (June 8, 2000); see also Crook & Crook Marine 

Supply, 1999 FAA Lexis 418, 424-25 (Initial Decision ofJudgeKolko dated May 12,1999). 

4 I grant that part of Mace's motion of February 8, 2002 to withhold from public disclosure under Rule 226 ofthe 

Rules of Practice in FAA Civil Penalty Actions, 14 C.F.R. § 13.226, the name ofthis employee and the associated 

medical records. The record shall be sealed to that extent. 
4 

delusional. Perceptions are clear ... Concentration is good . .. Insight and judgment are 

intact. Competent." Exhibit M, p. 2 (emphasis supplied). These observations suggest in 

fact that the employee was fully responsible in this matter. They show that the employee 

intended to place the shipment into air transportation, and understood the implications of 

so doing. I conclude that the employee knowingly committed the act that led to the 

charges. 

In view of the foregoing, I find the violations set out in the complaint, with the 

exception of §172.702(a) (see n. 2). I find and conclude that Respondent Mace Adhesives 

& Coatings Co., Inc. violated the following HMRs: 49 C.F.R.§§171.2(a), 172.200(a), 

172.201(d), 172.202(a)(1)-(a)(5), 172.204(a), 172.204(c)(2) and (c)(3), 172.300(a), 

172.301 (a), 172.400(a), 172.600(c), 173.1(b), 173.22(a)(1) and (2), 173.24(b)(1) and (2), 

and 173 .27(d). 

PENALTY 

The agency seeks a penalty of $20,000. Respondent argues that its employee's 

condition is such a significant mitigating factor that only nominal or minimal civil penalties 

should be assessed (Mace's Answer, p. 13). 

Mace also contends that its financial circumstances constitute a substantial 

mitigating factor. A supporting affidavit and exhibits state that the company, which 

employs about 15 people, operated at a loss in 2001 and 2000, and is currently operating 

at a loss; has exhausted available credit; and would have to borrow money to pay any civil 

penalties. Its debt continues to rise. It has laid off employees (Affidavit of Mark 

Compagnone; Exhibits 0, P and Q). I note, however, that Mace's financial information is 

( 
5 

based on its own representations and not on an independent audit (Exhibit Pl. 

Additionally, Respondent has neither asserted nor shown that a civil penalty could lead to 

bankruptcy or otherwise affect its ability to continue as a going concern. 

A review of all the factors that must be considered in setting the civil penalty 

under the Hazardous Materials Transportation Act (the Act) - including the nature, 

circumstances, extent, and gravity of the violation, and Respondent's degree of 

CUlpability, history of violations, and ability to pay - leads to the conclusion that a 

$10,000 civil penalty is warranted in this case. This figure reflects the serious nature of 

these violations while accounting for Respondent's difficult finances. 

For a civil penalty to achieve its purpose, it must have "bite," or deterrent effect. 

As the legislative history indicated, Congress intended the hazardous materials 

regulations to have "teeth." 120 Congo Rec. 41, 410 (1974); 120 Congo Reg. 40,677-

40,679 (1974); see Toyota Motor Sales, USA, Inc., FAA Order No. 94-28 (September 

30, 1994). Otherwise, Congress would not have increased the maximum penalty for 

each violation of the hazardous materials regulations from $10,000 to $25,000. It is 

the responsibility of the FAA to enforce the Act vigorously. 

In this case, the shipment was "hidden" - that is, nothing on the box informed 

the handlers of the hazardous nature of its contents. Such shipments pose a special 

health risk. Toyota Motor Sales, USA, Inc., p. 13. The shipment, additionally, was 

proffered by a company familiar with chemical solutions of a type that may be 

hazardous, and which had tendered many similar shipments before. It is experienced 
6 

in shipping such materials.' On the other hand, Mace's financial situation (but not its 

employee's condition) warrants mitigation. Respondent's affidavit and exhibits, 

although based on unaudited statements, indicate that its finances may be tenuous. 

And the company's situation appears to be worsening. 

I find that a civil penalty of $10,000 will have suitable "bite" without 

significantly affecting Mace's ability to continue in business. This amount is 

appropriate under the circumstances. 

I hereby assess a civil penalty of $10,000 against Respondent Mace Adhesives 

and Coatings Co., Inc., for violating the HMRs as set out above on p. 3. 6 

~i.l(~ 

Burton S. Kolko 

Administrative Law Judge 

5 Mace's web site, www.maceco.com. states that it "is a leader in polyurethane development and otTers a wide 

variety of water and solvent based products. Mace has a reputation as a Polyuretilane Specialisf' [caps in original]. 

6 Any appeal from this order to the Administrator must be in accordance with section 13.233 ofthe Rules of Practice, 

which requires 1) that a notice of appeal be filed no later than 10 days (plus 5 for mailing) from the date of this 

order and 2) that the appeal be perfected with a written brief or memorandum not later than 50 days (plus 5 for 

mailing) from the date of this order. Each is to be sent to the Appellate Docket Clerk, Room 924-A, Federal 

Aviation Administration, 800 Independence Avenue, Washington, DC 20591, and to agency counsel. Service upon 

the presiding judge is optional. 

( 
7 

FAA Docket No. CP02EA0004 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COpy 

Hearing Docket 

Room 924A, AGC-1O 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Robert N. Meiser 

Attorney at Law 

8700 Lothbury CT 

Fairfax, VA 22031 

TEL: (703) 560-5032 

fax: 703 560 5032 

Anthony J. Molligo, Attorney 

FAA,~A-7 

1 Aviation PLZ - Room 561 

Jamaica, NY 11434 

TEL: (718) 553-3278 

FAX: (718) 995-5699 

The Honorable Burton S. Kolko 

Administrative Law Judge 

Office of Hearings, M-20, Room 5411 

US Department of Transportation 

400 Seventh Street, SW 

Washington, DC 20590 

ONE COPY 

TEL: (202) 366-2144; law clerk 2139; secretary 2142 

FAX: (202) 366-7536