PETROLEUM CARRIER AVOIDS STEEP PENALTY ASSOCIATED WITH RARE VIOLATION
Highlights
- Cummins & White’s expertise in hazardous materials transportation and storage helped it successfully represent a petroleum transporter when it was cited for not including an emergency response phone number on a bill of lading.
- Skillful negotiations with the San Diego County District Attorney led to a dismissal of all charges, including a serious misdemeanor vehicle code violation that carried a minimum $40,000 fine.
Attorney
- Charles T. Spagnola, lead trial counsel
Case Study
Cummins & White, LLP successfully represented a commercial hazardous waste transporter, which was cited for failure to list an emergency response phone number on a bill of lading, among other infractions, and initially assessed fines totaling $40,000. The error was discovered when one of the transporter’s trucks stopped at an inspection facility (weigh station) in Oceanside, CA, Cummins & White contacted the San Diego County District Attorney and negotiated a dismissal of all charges when evidence was produced that the manufacturer of the fuel had erroneously omitted the required telephone number.
Background
A truck belonging to a commercial petroleum transporter stopped at the San Onofre Weigh Station on the 5 Freeway in Northern San Diego County. During a routine inspection, California Highway Patrol officers found that a toll-free emergency response telephone number was not listed on the bill of lading. Two additional equipment violations were noted.
Thinking that all of the charges were minor infractions and that the fines could be paid in court, the transporter sent a staff member to settle the charges. However, during the hearing the judge informed the employee that failure to list an emergency response phone number on the bill of lading was a misdemeanor offense with a mandatory minimum fine of $40,000 [violation of California Vehicle Code 34506(b) concerning the transport of hazardous materials]. The judge suggested that the transporter retain counsel and return with an attorney for the next court appearance.
Legal Strategy
When shipping aviation fuel, manufacturers are required by law to list a toll-free emergency response telephone number on a bill of lading in case of spills or accidents. As part of the shipping process, independent transport drivers also must confirm that the bill of lading has been properly prepared.
Cummins & White’s analysis of the facts revealed that on this occasion, the manufacturer of the fuel inadvertently omitted the emergency response telephone number, and the transport driver, busy picking up the load, did not notice before his departure. Charles Spagnola, Cummins & White counsel representing the petroleum transporter, worked with the fuel manufacturer to prepare a declaration stating that a computer malfunction caused the toll-free phone number to be omitted from the bill of lading, and that normally shipping papers are in full compliance.
Armed with that information, Mr. Spagnola contacted the Deputy District Attorney (County of San Diego, North County Branch) to discuss the circumstances of the case and negotiate a reduced fine. During discussions, the Deputy District Attorney acknowledged that the primary vehicle code violation, which parallels a federal hazardous materials transportation regulation, was extremely rare and that she was unaware of the substantial fines associated with the charge.
Result/Implication
Based on these important points—the one-time computer malfunction and the rarity of the vehicle code violation and its substantial fine—Mr. Spagnola negotiated a dismissal of all charges, including the two minor equipment infractions, and no fines were paid.
“Our client, the petroleum transporter, had no prior problems with shipping papers and was shocked when the amount of the fine was clarified by the judge,” Mr. Spagnola said. “The computer error by the fuel manufacturer helped raise fairness issues for our client. And, while the Deputy District Attorney said that our client’s driver should have noticed the missing emergency response phone number, she agreed that a $40,000 fine was excessive. We were pleased to keep our client from a misdemeanor conviction and a significant expense that would have impacted daily operations, as well as the associated insurance implications.”
