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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARJNGS 

WASHlNGTON, DC 

In the Matter- of ChemSystems, Inc., 

Respondent. 

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FAA Docket No.: TBD 

FDMS No.: FAA-2012-0911 

FAA Region: Western Pacific 

Judge: Richard C. Goodwin 

COMPLAINANT'S MOTION FOR DECISION OR. IN THE ALTERNATIVE, 

MOTION TO LIMIT THE ISSUES AT HEARING TO SANCTION 

fo: Hon. Richard C. Goodwin, Administrative Law Judge. and to ChemSystems, Inc., 

("Respondent") by and through its attorneys: 

COMES NOW, the Regional Counsel o:fthe Western-Pacific Region of the Federal 

Aviation Admioistration (FAA), by counsel, files this Motion for Decision, pursuanT: to 

section 13.218(£)(5) of Title 14 ofthe Code of Federal Regulations. In the alternative, 

Complainant moves to have the hearing limited to the an1ount of the sanction. 

Introduction 

This case involves one shipment of hydrochloric acid that was not properly classified 

on shipping papers, marked, labeled, packaged, containing emergency response information, 

and being sent by a hazmat employee not properly trained. The pleadings, answers to 

·.nterrogatories, and admissions show that there is no genuioe issue of material fact regarding 

that shipment, and that Complainant is entitled to a decision as a matter of law. 

141002 

Tbis case rests on the determination of two legal, not factual, issues. First, there is no 

dispute that Respondent knowingly offered each container that contained hydrochloric acid, 

as "knowingly" is used in 49 U.S. C.§ 5123(a). Even to the extent that one would accept 

Respondent's apparent asse1tion that it did not have actual knowledge, it is clear that it had 
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·~onstructi.ve knowledge---coostructive knowledge of the hydrochloric acid it offered for sale 

and, thus, for shipment to its customer. 

Second, the sanction sought by Complainant is wammted and in accordance with the 

appropriate statutory factors :md the published FAA sanction guidance 

Undisputed Facts 

lill 003 

Respondent is a manufacturer of specialty decorative concrete color admixtures. See 

Exhibit I, homepage ofwww.chemsystemsinc.net, last accessed on3/28/l4. Links on 

Respondent's website offer access to the products' Material Safety Data Sheets and Iechnical 

Data Sheets. I d. 

The Complaint alleged and Respondent admitted that on or about August 4, 2011 

Respondent, through its now former employee, Shannon Wooten, offered the subject 

>hipment via Federal Express ("FedEx") "express saver" delivery from Houston, Texas to 

Fresno, California See Exhibit 2, Complaint and Answer. The Complaint also alleged and 

the Respondent admitted that the shipment included one (I) fiberboard box containi:a.g tour 

(4) one-gallon containers of"Chromastain Ember." ld. The shipment was transported from 

Houston to Oakland, California, where it was found to be leaking. Se~ Exhibit 2 Complaint; 

Exhibit 3, Photographs; Exhibit 4, Form DOT F 5800. 

Based on the indisputable evidence, the box in which the hazardous material was 

shipped was saturated from the leak. See Exhibits 3 and 4. Indisputable photographic 

.evidence also demonstrates that none of the necessary markings and labelings was visible on 

the exterior of the box. Id Also, the shipping papers did not include any classification or 

description of the materials being shipped. Id. The uncontroverted evidence also shows that 

the four containers possessed no positive means of closure. Id. 

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"Chromastain Ember" is a corrosive liquid, acidic, inorganic, n.o.s. (Hydrochloric 

Acid), and has an U.N. identification number ofUN3264, Hazard Class 8, Packing Group III. 

:'iee Exhibit 2, Complainant and Answer. Indeed, Respondent's discovery responses admit 

such. See Exhibit 5, Responses to Complainant's Request for Admissions, Nos. l - 6. 

No genuine issues of material fact as to the above description exist based on the 

;evidence, including the Answer and discovery responses. 

Motion for Decision Standard 

Pursuant to 14 C.F.R. section 13.218(f)(5), "[t]he administrative law judge shall grant 

a parry's motion for decision if the pleadings, depositions, answers to interrogatories, 

admissions, matters that the administrative law judge has officially noted, or evidence 

introduced during the hearing show that there is no genuine issue of material fact and that the 

parry making the motion is entitled to a decision as a matter of law." 

At·gument 

Complainant's motion is appropriate. Respondent offered an tmdeclared shiJ)ment of 

four (4), one-gallon containers ofhydrolic acid for transportation by air from Houston, Texas, 

to Fresno, California. See Exhibit 1, Complaint; Exhibit 3; Exhibit 4_ Respondent failed to 

properly package and prepare the shipment in violation of Subchapter C of Chapter J of Title 

49 of the Code of Federal Regulations. !d; 49 C.P.R. §171 et seq. Specifically, Respondent 

did not provide positive means of closure of the fonr (4), one-gallon containers ofh;rdrolic 

;acid. See Exhibit 1, Complaint; Exhibit 3; Exhi.bit 4. 

Likewise, Respondent did not use a fiberboard box that was designed, constructed, 

maintained, filled its contents so limited, and closed, under conditions normally incident to 

;lransportation to prevent a release of the hazardous material in violation of sections I 73 .24(b) 

;md 173 .27(d), for example, such as a leak-proofliner. See Exhibit 1, Complaint; Exhibit 3; 

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Exhibit 4. Respondent also failed to properly mark and label the shipment in violation of 

sections 172.300(a) and 172.400(a). See Exhibit I, Complaint; Exhibit 3; Exhibit 4_ 

Respondent did not include any classification or description of the hazardous material on the 

shipping papers in violation of section 172.200(a). See Exhibit 1, Complaint; Exhibit 3; 

Exhibit 4. Further, Respondent offered the shipment when Respondent did not provide 

emergency response information in accordance with subpart G of part 172 of Title 49, and 

when it did not provide hazardous material training for its hazardous material employees in 

'~onformance with subpart H of part 172 of Title 49. See Exhibit 1, Complaint; Exhibit 3; 

Exhibit 4.; 49 C.F.R. §172.600 et seq., and §1 72.700 et seq. 

Under 49 U .S.C. section 5123(a), a person knowingly violates a hazmat regulation if 

"''(A) the person has actual knowledge of the facts giving rise to the violation; or (B) a 

reasonable person acting in the circumstances and exercising reasonable care would have that 

knowledge." 49 U.S.C. §5123(a)(l)(A)&(B). 

ln 1998, the Department of Transportation published a forma\ interpretation that 

darifies the above provision. 63 P.R. 30411 (1998). The interpretation involved a carrier 

accepting or transporting a hazmat. The DOT wrote: 

[a] carrier knowingly violates the HMR when the carrier accepts or transports a 

hazardous material with ... constructive knowledge that a package contains a 

hazardous material which has not been packaged, marked, labeled, and described on a 

shipping paper as required by the HMR. This means that a carrier may not ignore 

readily apparent facts that indicate that __ . _ a shipment actually contains a hazardous 

material governed by the HMR despite the fact that it is not marked, labeled, 

placarded, or described on a shipping paper as containing a hazardous materia\_ 63 

F.R. 30411 (1998). 

fhe FAA Administrator has held that this statute "requires inquiry and n:eats a person as 

possessing whatever knowledge inquiry would have produced." In the Matter Scott Novak, 

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FAA Order No. 2014-1; quoting In the Matter Interstate Chemical Co., FAA Order No. 

2002-29 at 13, citing Contract Courier v. Research .. 924 F.2d 112, 114 (7th Cir. 1991 ). 

In its Answer, Respondent contends that it was "without sufficient knowledge" to 

respond to most of the Complaint (save for the :first two paragraphs). Exhibit 2, Complaint 

and Answer. However, a genuine issue of material fact does not exist here because of the 

unrefuted evidence, as discussed below. 

liiJ 006 

Respondent asserted in its discovery responses that it did not "knowingly" vi alate any 

regulation because it does not manufacture "ChTomastain Ember" and such product is labeled 

by the manufacturer and shipped to Respondent. Exhibit 5, Respondent's Discovery 

Responses, Response to Interrogatory No. 12. This argument fails for several reasons. 

First, the alleged violations are brought against Respondent for offering the ~ubject 

b.azardous material into the stream of commerc(:. It matters not who manufactured it. 

Accepting Respondent's argument WO\lld reduce the applicability of the offering 

requirements and prohibitions in the HMR to hazmat manufacturers. Such a result would 

defy the plain language of the word "person" in the HMR. Respondent admits that it offered 

::he "Chromastain Ember," See Exhibit 2, Answer, 1. 

Second, Respondent had constructive, if not actual, knowledge that the shipment 

<;ontained regulated hazardous materials. In its discovery responses, Respondent provides 

ohotographs of what a "typical" properly declared shipment looks like. See Exhibit 5. These 

•:espouses and photographs indicate Respondent was aware that "Chromastain Ember" was a 

;:egulated hazardous material. For example, the representative photographs include 

hazardous material markings, labels, and reference to the Material Safety Data Sheet 

·:MSDS). See Exhibit 5. 

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Most significantly, Respondent's own website provides details and MSDS' son the 

various products that it accepts from elsewhere and offers for sale on its website. 1 

(Respondent's website even claims that it "manufactures" some of those products and offers 

them for sale. Exhibit 1.) With respect to the "Chron1astaiu Ember" alleged to have been 

offered in the Complaint, Respondent's website' describes "Cbromastain" as "a ready-to-use, 

penetrating, acidic stain that chemically reacts with cured concrete to produce permanent, 

variegated or translucent color effects." See Exhibit 1, at the sth page. That same wc~b page 

b.as a link to the MSDS for "Chromastain." See Exhibit 1, at the 6th page. 

The MSDS for "Chromastain" on Respondent's website, under "SeetionlX---Special 

Precautions and Comments," states "DOT: Corrosive liquid, acidic, inorganic, n.o.s. 

(Hydrochloric acid). 8, UN3264, PGIII." See Exhibit 7, MSDS for "Chromastain" from 

www.chemsystemsinc.net, printed 4/9/14, page 4. 

Despite the above, Respondent asserts that it did not "knowingly'' offer a hazardous 

material, because it was not the manufacturer o:fthe materiaL Respondent's responses and 

admissions, and the plain information on its own website, establish that Respondent 

"knowingly" offered Hydrochloric acid, Class 8:, UN3264, Packing Group III material for air 

tJ:ansportation 

Whether this court wants to conclude that that knowledge was actual or constructive 

does not matter. At a minimum, Respondent has constructive knowledge ofthe nature of the 

products it sells. Complainant is not required to prove that Respondent read the MSDS for 

;'Chromastain" it provides on its website. (Indeed, under the standard in Section 5123(a), 

1 The sample photographs show that the subject shipment was "typically" shipped as "ORM-D". It should be 

noted t\lat simply having the marking "ORM-D" is a haZJnat marking that in and of itself is a sufficient 

indication to meet the requirement of constructive knowledge. See F. A.A. v. Federal Express, FAA Docket No. 

CP98GL0021, 2000 WL 34229115, •2.•3 (D.O.T. 2000). 

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Complainant is not required, per se, to prove that Respondent had in hand an MSDS for 

·'Chromastain" when it offered the product.) 

Furthermore, Complainant asserts that it defies logic to assert that a company does not 

11avc actual knowledge of the content of its owo website or the products that it ships to its 

~;ustomers. Otherwise, how does that content even get on the website in the first place, and 

how does that company know what to send to its customers? Respondent's argument that it 

l1ad no actual knowledge of what it said on its own website or what it sells is wholly 

iJilpersuasive and should be rejected. 

Therefore, there are no genuine issues of material facts left as to the factual 

allegations in the Complaint. This motion for decision should be granted, finding that 

Respondent knowingly offered hazardous materials as alleged in the Complaint, and that 

Respondent violated the HMR as alleged in the Complaint. 

Civil Penalty Amount 

In its Answer, Respondent denies the proposed civil penalty of $154,000 is 

appropriate. It supplied no evidence in its discovery responses supporting such a detense. 

')ee Exhibit 5_ Complainant moves the Administrative Law Judge to issue an Order 

1\ssessing Civil Penalty in the amount of$154,000.00. Alternatively, Complainant moves 

that the hearing be limited to the issue of the amount of the sanction. 

A person who knowingly violates the statute or regulations pertaining to the 

transportation of hazardous material, "is liable to the United States Government for a civil 

penalty of at least $250 but not more than $50,000 for each violation." 49 U.S.C. § 5123(a). 

(The minimum penalty for a training violation is $450.) When determining the amount of a 

civil penalty, Congress bas dictated that the following factors be considered: (1) the nature, 

circmnstances, extent, and gravity of the violation; (2) the violator's degree of culpability, 

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h.istory of violations, and the ability to pay; and (3) other matters that justice requires. 49 

J.S.C. § 5l23(c); see also 14 C.F.R. § 13.16(c)(to the same effect). 

To guide the FAA's prosecntorial discretion, the Agency developed penalty 

guidelines to aid the application of the statutorily defined penalty considerations and "to 

oromote a relative consistency in determining civil penalties for violations of the Department 

of Transportation Hazardous Material Regulations[.]" FAA Order 2150.3B, Appendix C 

-:october 1, 2007) (hereafter Sanction Guidance). FAA's use of the Sanction Guidance table 

::o determine the appropriate civil penalty norm<1-llY shonld not be disturbed unless other 

!'actors justify the reduction of an otherwise reasonable assessment. Trans World Airlines, 

rnc., FAA Order no. 98-11 (June 16, 1988). 

"'Although [ ALJ s] are not agency personnel, and therefore are not bound by internal 

agency orders [sucb as FAA Order 2150.38, which contains the Sanction Guidance]. [the 

1\.LJs] are nonetheless subject to agency policy.'" Novak, supra; citing e.g., [Air Carrier], 

:OAA Order No. 1996-19 at 4 (May 3, 1996). The Decisionmaker in Novak continued, "'lf 

lhe ALJ does not follow agency policy, the agency may impose tl)at policy by reversing the 

<\LJ's decision on appeal.' (Jd) As previously stated, '[t]he Administrator has both t:he 

authority and duty to impose the agency's policy on appeal."' Novak, supra, citing 

Warbelow 's Air Ventures, FAA Order No. 2000-3 at 9 (February 3, 2000). 

The civil penalty requested in th.is case is appropriate. The FAA's publicly available 

'anction guidance matrix for hazardous materiai violations is contained in Figure C-1 of 

'\ppendix C of FAA Order 2150.3B. Respondent's website states th.at Respondent, "offers 

mtegral and dry-shake colors as well as topping compounds, overlays, acid stains, solvent, 

'md water-based dyes, bonding agents, liquid and powder release agents and sealers_'' Exhibit 

l. As of the date of this motion, Respondent also offers a link of Material Safety Data Sheets 

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of the products it uses. Based thereon and under the relevant Sanction Guidance, Respondent 

''S a business entity that regularly offers, accepts, or tr<1nsports hazardous materials. 

A moderate weight is assigned to this case because hydrolic acid is a "category B" 

material. Id., at para. 8(b)(l). Respondent corrunitted seven (7) of the eight (8) offense 

Gategories (shipping papers, markings, labeling, packaging, training, emergency response 

nformation, and release into the environment). Id, Fig. C-1, p. C-12. 

141010 

Under the FAA's sanction guidance analysis, a business entity that regularly offers, 

accepts, or transports hazardous materials ordinarily is subject to a civil penalty in the range 

•}fbetween $10,000.00 to $32,500.00 for each offense category violated. fd_ Given that 

Respondent's website indicates it's also a chemical manufacturer that regularly offers 

iJ.aZardous material for transportation, Complainant believes that a civil penalty slightly on 

the higher side ofthe mid-point range of $22,000.00 is appropriate for each offense <;ategory 

violated. Accordingly, a civil penalty amount of$154,000.00 (7 X $22,000.00) is appropriate 

for the violati.ons in this case. 

Complainant's choice of sanction in this case as it is not arbitrary, capricious, or 

otherwise not according to law2 Complainant has selected a civil penalty well within the 

'ange indicated in the matrix for hazardous materials violations under FAA Order 2l50.3B, 

O..ppendix C, Figure C-1 . 

While Respondent provided federal tax returns from years 20 l 0 and 2011, rutd asserts 

that it cannot afford the civil penalty proposed, it has produced no other cuuent information 

;n response to Complainant's discovery requests demonstrating any amount it can afford. 

Respondent's financial infonuation is clearly within its control, and it has not produced 

'See, 49 U.S.C. § 44709(d)(3) 

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evidence it has any inability to pay or to continue in business. In the Matter for Frost ad 

4.telier, Inc., FAA Order No. 2013-5 at 15 (September 5, 2013). Thus, even assuming 

•<rguendo that Respondent's financial circumstances are difficult, the $154,000 civil penalty 

~hould be affinned. ld., at 17, fn. 17. 

Based on the foregoing, Complainant is entitled to a decision in its favor thai 

Respondent committed the violations charged and should be assessed a civil penalty of 

$154,000.00. In the alternative, the ALJ should issue a decision tlmt the only issue 

.•tppropriate for the hearing is the amount of the civil penalty. 

Conclusion 

Complainant respectfully requests that this Court grant the above Motion for 

Decision. If any further litigation is warranted, the pleadings clearly establish that the hearing 

~hould be limited to the sanction to be imposed in this case. 

Respectfully submitted, 

"~AOMI TSUDA 

.Regional Counsel 

By:~~~=~~/(__ r-3-e_ Colkiey Adolph 

General Attorney 

Dated: AprillO, 2014 

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CERTIFICATE OF SERVICE 

I hereby certify that on this date I sent via United States mail, postage prepaid, the 

"xecuted original, as well as one copy by facsimile, of the COMPLAINANT'S MOTION 

FOR DECISION, OR IN THE ALTERNATIVE MOTION TO LIMIT ISSUES AT 

i''IEARlNG TO SA_l\ICTION, addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 000 

Facsimile: (202) 493-5142 

And by overnight mail, postage prepaid, a true copy to: 

Hon. Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, Room E12-230 

Washington, D.C. 20590 

Telephone: (202) 366-5121 Staff Asst. 

l further certifY that on this date I sent via overnight mail a true copy of the 

COMPLAINANT'S MOTION FOR DECISION, OR IN THE ALTERNATIVE MOTION 

TO LIMIT ISSUES AT HEARING TO SANCTION, addressed as follows: 

Dated: Apri\10, 2014 

ChemSystems, Inc. 

c/o S. Robert Fling, Esq. 

S. Robert Fling, PLLC 

P.O.Box411 

Katy, TX 77492 

Telephone (281) 391-2003 

-'\J.\tonia Garcia, Patalegal 

Office of the Regional Counsel 

"'ederal Aviation Administration 

Western-Pacific Region 

Lawndale, California 

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