In the Matter of Hazardous Materials Petition

UNITED STATES POSTAL SERVICE v. MARLENE BURGESS-JACKSON                                                       
D/B/A MOLLY'S PRODUCTS

P.S. Docket No. HM 19-236

APPEARANCE FOR COMPLAINANT
Julie Hanlon, Esq
Postal Inspector Attorney

APPEARANCE FOR RESPONDENT
None

INITIAL DECISION

Respondent Marlene Burgess-Jackson doing business as Molly’s Products shipped prohibited items on multiple occasions through the United States Postal Service.¹   The shipper was warned by United States Postal Inspection Service (USPIS) personnel both in writing and in person that continued shipping of hazardous materials may result in further legal action, including the imposition of civil penalties.  Respondent did not heed the warnings and continued to ship prohibited items. 
Respondent did not participate in this proceeding.  Multiple attempts to reach Respondent at her place of business were unsuccessful.  Respondent was served with the Complaint by certified and regular mail on July 9, 2019, and again by first class mail hand delivered on August 21, 2019.  Subsequent pleadings were served on Respondent by certified and first class mail.  Respondent did not file any pleadings or otherwise appear in the proceeding when invited to do so.
Pursuant to 39 C.F.R. § 958.12(d), I hereby find Respondent in DEFAULT in this matter.  In so doing, I issue this Initial Decision in favor of the Postal Service.²

FINDINGS OF FACT

1. On or about August 14, 2018, Respondent mailed a Priority Mail parcel at the Philadelphia, PA Post Office.  Inside the parcel was a heat sealed plastic bag containing 99% food grade sodium hydroxide.  (Complaint, ¶5; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶1).
2. Sodium hydroxide solid (commonly called lye or caustic soda) is classified under UN1823 as a DOT class 8 corrosive material (Complaint, ¶6; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶2).
3. According to USPS Publication 52, Hazardous, Restricted and Perishable Mail (Publication 52), corrosive solids are prohibited in all classes of international mail (including Canada) and APO/FPO/DPO mail, and corrosive solids with more than 10 percent corrosive material are prohibited in all domestic mail (Complaint, ¶7; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶3; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, Exh. 1).
4. On or about August 20, 2018, USPIS mailed a warning letter to Respondent, putting her on notice that mailing hazardous materials, such as sodium hydroxide, is permitted only under certain conditions.  The warning letter provided Respondent with notice and information about Publication 52.  (Complaint, Exh. 1; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶4).
5. On or about September 12, 2018, Respondent met with Postal Inspector Joseph McCann and Homeland Security Coordinator Thomas Glacken.  Respondent was again advised of Publication 52 and the importance of complying with mailing standards.  Respondent was also advised of the consequences of failing to comply with the mailing standards specific to hazardous materials.  Respondent stated she would no longer ship sodium hydroxide through the U.S. Postal Service.  (Complaint, ¶10; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶5).
6. On or about March 20, 2019, Respondent mailed a Priority Mail parcel at the Philadelphia, PA Post Office.  Inside the parcel was a five-pound plastic container of food grade 99% sodium hydroxide.  (Complaint, ¶12; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶6).
7. Respondent knew, or through reasonable exercise of care, should have known that the mailings contained a corrosive material, given the fact that Respondent was a routine seller of this product, was previously sent a warning letter by USPIS, and spoke with USPIS personnel about the content of her mailings (Complaint, ¶¶10, 15; Complaint, Exh. 1; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶7).
8. On or about April 23, 2019, USPIS mailed Respondent a demand letter assessing her a $50,000 fine as a result of her continuous shipment of hazardous materials through the mail.  The demand letter provided Respondent with notice and information regarding Publication 52.  (Complaint, Exh. 3; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶8).
9. Respondent did not reply to the April 23, 2019 demand letter.  USPS tracking records indicate the letter was received on April 26, 2019.  (Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶9).
10. Respondent continued to violate USPS mailing safety standards by knowingly placing parcels into the mail stream after receiving a letter of warning and speaking with USPIS personnel (Complaint, ¶¶ 10, 15; Complaint, Exh. 1; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶10).
11. Respondent did not participate in the litigation, but was properly served, including service by hand of the Complaint. 

DISCUSSION

The undisputed facts establish that Respondent violated Postal Service regulations repeatedly.³   Although Respondent was informed of her violations both in writing and in person, Respondent chose to engage in the same unlawful practice that places Postal Service employees and equipment at risk.  Respondent’s behavior in doing so was reckless.  Section 3018(e) of chapter 39 states “in determining the amount of civil penalty for a violation of this section, the Postal Service shall consider (1) the nature, circumstances, extent, and gravity of the violation; (2) with respect to the person who committed the violation, the degree of culpability, any history or prior violations, the ability to pay, and any effect on the ability to continue in business; (3) the impact on Postal Service operations; and (4) any other matters that justice requires.”
On August 14, 2018, and again on March 20, 2019, Respondent placed into the mail stream parcels containing food grade 99% sodium hydroxide in violation of Publication 52, § 348.2, which prohibits corrosive solids in excess of 10% corrosive material in the domestic mail stream.⁴   Respondent’s parcels at 99% sodium hydroxide far exceeded the 10% allowable limit.  The Postal Service prohibits corrosive solids due to the potential to leak causing damage to equipment and potential injury to Postal Service personnel.  In assessing a civil penalty, I consider both the potential for damage to equipment and potential injury to personnel should the parcels leak their corrosive material. 
I find that the nature and gravity of Respondent’s violations are significant.  Although USPIS previously warned Respondent of the dangers of mailing hazardous materials, and she was previously cited for doing so, it is apparent she is indifferent to her responsibilities as a shipper.  The statute directs that "a person acts knowingly for purposes of paragraph (1) when — (A) the person has actual knowledge of the facts giving rise to the violation; or (B) the reasonable person acting in the circumstances and exercising reasonable care would have had that knowledge.”  39 U.S.C. § 3018(c)(2).  I find that Respondent acted knowingly within the meaning of the statute.
Because Respondent offered no defense in this case, I cannot assess how a civil monetary penalty might impact her business.  Nevertheless, Respondent’s history of prior violations along with her blatant disregard of Postal Service regulations outweigh any concerns I might have about Respondent’s future business prospects.  I also find that the impact upon Postal Service operations was significant, in that Postal Service personnel were placed at risk of personal injury because of the potential for leakage of the parcels.  Further, potential leakage of the parcels could lead to significant damage to Postal Service equipment.
Section 3018 provides that “a person who knowingly violates this section or a regulation prescribed under this section shall be liable for a civil penalty of at least $250, but not more than $100,000, for each violation.”  39 U.S.C. § 3018(c)(1)(A).  The Postal Service seeks a monetary penalty of $50,000 in this case.  Respondent has not opposed this request.  Given the nature of the offense, the fact that Respondent has engaged in this behavior on at least one prior occasion, that she was warned both in writing and in person of the danger of such conduct, and then she mailed hazardous materials again, the proposed penalty seems reasonable under the circumstances.

ORDER

Marlene Burgess-Jackson is HEREBY ORDERED to pay a civil monetary penalty in the amount of $50,000 within 30 days of the date of this Order.⁵
James G. Gilbert
Chief Administrative Law Judge