July 8, 2021

P.S. Docket No. HM 19-166

In the Matter of Hazardous Materials Petition

UNITED STATES POSTAL SERVICE v. RAYMOND GREEN and MELISSA VANDERSLOOT

APPEARANCE FOR COMPLAINANT
Julie Hanlon, Esq.
Postal Inspector Attorney

APPEARANCE FOR RESPONDENT VANDERSLOOT
James Doezema, Esq.
Foster, Swift, Collins, & Smith, P.C.

APPEARANCE FOR RESPONDENT GREEN
Raymond Green, pro se

INITIAL DECISION

Respondent Melissa Vandersloot shipped metallic mercury, a prohibited item, through the United States Postal Service mail stream.¹   While in the mail stream, the package of metallic mercury leaked, requiring the closure of a post office for multiple days and specialized cleaning to remove the substance from the premises. 
On May 29, 2019, the Postal Service filed a Complaint under 39 U.S.C. § 3018 against Ms. Vandersloot, seeking damages for the costs of cleanup and civil penalties.  After multiple attempts by the Postal Service and this court to serve Ms. Vandersloot, I issued an Initial Decision on April 29, 2020, in which I found Ms. Vandersloot in default.  That decision was subsequently appealed by Ms. Vandersloot to the Judicial Officer.  After a joint stipulation by both parties, my prior Initial Decision was vacated by the Judicial Officer on June 26, 2020, the default was removed, and the case remanded to me for further proceedings.
On remand, Ms. Vandersloot implicated a third party, Raymond Green, as the person liable for the damages stemming from the mercury leak.  The Postal Service subsequently amended its original Complaint adding Mr. Green as a Respondent.  I conducted a trial by video teleconferencing in accordance with COVID-19 protocols in March 2021 in which both Respondents appeared and testified (Tr. 4).  These findings are based upon the record.

FINDINGS OF FACT

1. Melissa Vandersloot and Raymond Green are friends (Tr. 96).
2. Mr. Green operated a pawn shop, which included selling antiques and sports memorabilia items through eBay (Tr. 95).
3. Mr. Green opened multiple accounts on eBay to maximize his opportunities to sell items (and to avoid certain fees) including an account in Ms. Vandersloot’s name, identified as user “antq2316memro” (Tr. 117-119; Comp. Exh. 6 at 2).
4. While sorting through antiques, Mr. Green discovered a glass bottle of mercury and determined that it was salable on eBay.  Subsequently, he listed and sold the mercury via the eBay account he registered in Ms. Vandersloot’s name.  (Tr. 120-121).
5. In preparing the mercury for shipping, Mr. Green wrapped the glass bottle in a towel and bubble plastic before placing it in a cardboard box.  He did not tell Ms. Vandersloot what the parcel contained, nor did he label the parcel as a hazardous material or indicate that it was fragile.  (Tr. 121-22).
6. Despite the use of her credentials for this eBay account, Ms. Vandersloot did not control the account, or the profits generated by it (Tr. 98-99, 119, 135-136).
7. Occasionally, however, Ms. Vandersloot brought sealed packages to the post office for Mr. Green’s eBay sales (Tr. 96-97, 121-122).
8. On December 22, 2017, Ms. Vandersloot mailed a Priority Mail parcel at the Lowell, Michigan Post Office.  This parcel contained the bottle of metallic mercury Mr. Green previously sold on eBay.  (Tr. 121-122; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶1).
9. Metallic mercury is classified under UN2809 as a DOT class 8 corrosive material.  According to USPS Publication 52, Hazardous, Restricted and Perishable Mail (Publication 52), mercury is prohibited in all classes of domestic and international mail.  (Tr. pp. 69-70; Complaint, ¶9; Complainant’s Proposed Findings of Fact and Statement of Civil Penalty, ¶2).
10. On December 24, 2017, a Postal Service employee noticed that the parcel had leaked in the Beech Grove, Indiana Post Office but rewrapped it for delivery.  The parcel was delivered to the recipient on December 26, 2017.  (Tr. 25).
11. On December 28, 2017, an employee at the Beech Grove Post Office discovered that the parcel had leaked mercury inside the premises and dispatched the Marion County Health Department and the United States Postal Inspection Service (USPIS) to initiate an investigation and cleanup (Tr. 25-27; Comp. Exh. 1).
12. On September 4, 2018, USPIS mailed a letter to Ms. Vandersloot notifying her that the parcel she mailed had leaked mercury in violation of Publication 52 and required industrial cleanup as well as closure of the Beech Grove Post Office from December 28, 2017, through January 4, 2018 (Comp. Exh. 4).
13. Ms. Vandersloot was directed to pay a total of $87,765.24, which included $77,765.24 for cleanup costs and $10,000 as a civil penalty (Comp. Exh. 4; Complainant’s Amended Statement of Civil Penalty).

DISCUSSION

Liability of Respondent Raymond Green
On December 22, 2017, Mr. Green caused to be placed into the mail stream a parcel containing mercury in violation of Publication 52, § 348.2, which prohibits mailing metallic mercury in the domestic mail stream.  USPS Publication 52 lists mercury as a nonmailable corrosive and prohibits it being shipped in all classes of domestic and international mail.²   The Postal Service prohibits mercury due to the potential to leak and cause damage to equipment and potential injury to Postal Service personnel.  Section 3018 of Title 39 provides that “no person may mail or cause to be mailed hazardous material that has been declared by statute or Postal Service regulation to be nonmailable.”  39 U.S.C. § 3018(b)(1). 
The statute further 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). 
Upon discovering the substance, Mr. Green immediately identified it as liquid mercury and conducted research to determine that the quantity he possessed - 21.4 ounces - was valuable enough to sell on eBay.  Tr. 120-121; Comp. Exh. 5.  Mr. Green admittedly appreciated some danger of mercury at the time of discovery, testifying that he “knew you weren’t supposed to drink it.”  Tr. 124.  Independent of Mr. Green’s testimony, the Postal Service presented evidence showing that he knew mercury was hazardous on a more superficial level than human consumption.  After the buyer complained about the mercury spillage, Mr. Green wrote, “I’m having a hard time believing you just threw it in the trash, especially considering how hazardous this can be.”  Resp. Exh. 5 at 7.  In fact, he even cautioned the buyer about proper disposal of the mercury, advising, “I’m sure there is a proper way to dispose of [sic] and I doubt it is to just bag it and throw it in the garbage.”  Id. 
Mr. Green admitted operating a business since 2015 that used the Postal Service exclusively to mail products to his customers.  Tr. 130.  Moreover, he was aware of the Postal Service’s retail counter questions about mailing fragile, liquid, perishable, and potentially hazardous materials, based on the frequency of his experiences shipping items on what he described as, “Post Office Thursdays.”  Tr. 126.  Therefore, Mr. Green knew, or through the exercise of reasonable care should have known, that a glass bottle of mercury was prohibited from the Postal Service mail stream.  Although he denied actual knowledge of the regulation concerning the shipment of hazardous materials, I find that Mr. Green acted knowingly within the meaning of the statute.  Cont. Courier Servs., Inc. v. Rsch. & Special Programs Admin., U.S. Dep't of Transp., 924 F.2d 112, 114 (7th Cir. 1991)(“Because it is wise on occasion to require persons to acquire knowledge, and to treat them as if they have done so, statutes frequently provide that a person ‘knows’ whatever a reasonable inquiry would have turned up.”). 

Liability of Respondent Vandersloot
In determining Ms. Vandersloot’s liability, the same standard applies.  Here, however, the Postal Service has not met its burden.  There is no evidence that Ms. Vandersloot had actual knowledge that she had placed hazardous materials into the mail stream.  She credibly testified that she understood Mr. Green’s business sold only antiques and sports memorabilia.  Tr. 95, 101.  Based on that understanding, she could not have reasonably expected the parcel in question to contain hazardous material. 
Additionally, Ms. Vandersloot had no significant involvement in Mr. Green’s business.  Unlike Mr. Green’s business partner, with whom he shipped items on “Post Office Thursdays,” Ms. Vandersloot testified that she only mailed items as a favor to him, and on approximately five occasions.  Tr. 96-97, 101, 121-122, 126.  Mr. Green corroborated Ms. Vandersloot’s testimony that she did not know that the parcel contained mercury and that she had no significant control of his business sales, including the eBay account that used her name.  Tr. 134-135, 141.  In short, Ms. Vandersloot did not know the contents of the package she mailed, and I find that Ms. Vandersloot did not act knowingly when she placed the hazardous material into the mail stream.  Accordingly, Ms. Vandersloot is not liable under the statute and is entitled to judgment in her favor.

Civil Penalty
In its post-trial brief, the Postal Service reiterated its request to impose a $10,000 civil penalty for Mr. Green’s violation of the statute.  Section 3018(e) provides:
[I]n 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.
39 U.S.C. 3018(e).
Postal Service witnesses provided credible testimony that the leaked mercury had a significant impact upon Postal Service operations.  The Beech Grove Post Office was closed for several days to clean up the spill.  Comp. Exh. 1.  There is no evidence, however, that any Postal Service employees sustained any personal injury from the mercury.  Indeed, a Postal Service witness testified that the leaking parcel was rewrapped and ultimately delivered to the buyer.  Tr. 37.
For his part, Mr. Green provided candid testimony, he acknowledged the gravity of the violation, and he expressed remorse for it during the trial.  Tr. 142.  He also testified that he had never mailed any hazardous materials before or after this occurrence.  In addition, he credibly testified that he was currently experiencing financial hardship as evidenced by his inability to pay a $160 ticket related to his driver’s license.  Tr. 137-138.  While I find that Mr. Green’s actions had a significant impact upon Postal Service operations, I am persuaded that he has expressed sincere regret, and that his financial situation is too challenging to impose a significant fine.  Accordingly, as this is Mr. Green’s first offense, and taking into consideration the above cited statutory factors, I impose a civil penalty of $250.

Damages
Section 3018(c) authorizes the Postal Service to recover costs for cleanup and damages associated with the mailing of hazardous materials.  39 U.S.C. § 3018(c).  The Postal Service bears the burden of proving the “definiteness . . .  of the amount of damage as far as is reasonably possible.”  Restatement (Second) of Torts § 912 (1979).  Here, the Postal Service submitted a proposal for emergency mercury spill cleanup from Weston Solutions, Incorporated, dated December 30, 2017.  It included a scope of work to be performed at the Beech Grove Post Office with a proposed price totaling $77,765.24.  Comp. Exh. 2.  At trial, the Postal Service elicited testimony from a postal inspector who witnessed the cleanup of the mercury spill; however, he testified that he had no personal knowledge whether the proposed price was actually paid by the Postal Service.  Tr. 31.  I advised Postal Service counsel that evidence of the proposal was admitted only for the purpose of showing that it was obtained—but not to establish that the Postal Service actually paid for it.  Tr. 34-35.  The Postal Service never presented any additional witnesses or evidence to substantiate its actual cleanup costs and damages.  According to our rules of practice, “the Postal Service must prove its case against a respondent by a preponderance of the evidence.”  39 C.F.R. § 958.5.  The Postal Service failed to meet that burden on damages.³   While it is apparent that a cleanup occurred, there is insufficient evidence to prove the actual cost of the cleanup.  Accordingly, I deny an award of damages to the Postal Service for failure to meet its burden of proof.

ORDER

Melissa Vandersloot is found NOT LIABLE.
Raymond Green is found LIABLE and is HEREBY ORDERED to pay a civil monetary penalty in the amount of $250 within 30 days of the date of this Order.⁴

IT IS SO ORDERED.

James G. Gilbert
Chief Administrative Law Judge

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