How DOT Determines Civil Penalties, and How to Avoid Them [49 CFR 107.329 and 107.331]

July 19, 2018
If a DOT Hazardous Materials Compliance Investigator confirms that a civil violation of DOT’s hazardous materials regulations has occurred, the DOT’s Office of Chief Counsel has the authority to issue a civil penalty.
49 CFR 107.329 establishes $78,376 as the maximum civil penalty allowed for each violation—except the maximum civil penalty is $182,877 for a violation that results in death, serious illness or severe injury to any person, or substantial destruction of property. There is no minimum civil penalty—except a minimum $471 penalty for training-related violations. For continuing violations, each day of the violation constitutes a separate offense.
To determine the amount of a civil penalty, the DOT’s Office of Chief Counsel takes the factors at 49 CFR 107.331 into account:
  • Nature and circumstances of the violation
  • Extent and gravity of the violation
  • Degree of the person/company’s guilt
  • Violations previously committed by the same person or company
  • Financial capability of the person or company to pay the violation
  • Potential effects to the person or company’s ability to continue in business
  • Any other relevant matters to ensure justice is achieved
The best way to avoid penalties is to implement an effective program for shipping hazardous materials that includes:
  • Hazardous materials classification: how you will determine which materials are subject to regulation by DOT, and who will perform the classification
  • Packaging: how you will select the appropriate packages, how your materials will be packaged, and how you will follow the manufacturer’s instructions for filling and sealing the packages
  • Exceptions, special permits, approvals: how you will meet these streamlined regulatory requirements when they apply to you
  • Communication: how you will mark and label packages, and placard vehicles
  • Shipping papers: what will be entered on shipping papers and who will sign them
  • Training: who must be trained, training frequency, who will provide the training, how employees will be tested, and how the training will be documented
  • Safety: how employees, the public, and the environment will be protected from the hazards of the materials that you ship
  • Security: procedures on keeping secure information regarding the materials you ship; what employees should do if they identify a potential security threat; and if applicable, development of a written hazmat security plan
  • Registration: if applicable, details of your site’s registration and renewal as a hazardous material shipper or carrier
If you receive a notice of violation, you will be given an opportunity to make your case as to why the penalty should be reduced. Depending on the circumstances of the shipment, you might be able to demonstrate that the violation did not occur, or that you quickly took steps to ensure that the violation cannot reoccur. Environmental Resource Center has successfully assisted clients in obtaining penalty reductions. Call 800-537-2372 if you ever need our assistance in resolving a penalty.