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DtmRTMENT OF 

U.S. DEPARTMENT OF TRANSPORTATION i RAN3P0RTATI0N 

FEDERAL AVIATION ADMINISTRATION ; ;/,<cT OPERAT'OMS 

OFFICE OF HEARINGS 

WASHINGTON,D.C. /'iH ^H'/ ;q p It: 20 

In the Matter of Cenogenics Corporation 

FAA Docket No. CP10EA0007 

(Civil Penalty Action) 

FDMS No. FAA-2010^0786 

The Honorable Ronnie A. Yoder 

COMPLAINANTS REPLY TO RESPONDENT'S INTERROGATORIES AND NOTICE 

TOPRODUCE 

COMES NOW the Complainant, by and through its designated 

representative, the Regional Counsel for the Eastern Region and his designated and 

authorized agents, in accordance witli 14 C.F.R, 13.220 and Rules 33 and 34 of the Federal 

Rules of CiviJ Procedure, and submits its response to Respondent's Interrogatories and 

Notice to Produce documents as follows: 

INTERROGATORIES 

1, Identify all persons whom you believe have knowledge of facts which pertain 

in any way to this action. As to each person, set forth in detail the facts you 

believe that person has knowledge of. 

Answer: 

Charles Odum 

Special Agent 

Newark Security Field Office 

10 Woodbridge Center Drive 

Suite 100 

Woodbridge, NJ 07095 

(732) 634-1045 
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Special Agent Odum conducted a comprehensive inspection of Respondent. He Ixas 

knowledge of his inspection and the facts he discovered evidencing violations of the 

Department of Transportation Hazardous Materials Regulations (DOT HMR), as set forth in 

the Enforcement Investigative Report (EIR) he prepared. Non-privileged portions of the 

EIR are attached hereto. 

Ryan PohUce 

Special Agent 

DOT/FAA/Hazmat Division 

10100 Reunion Place 

Suite 200 

San Antonio, TX 78216 

(210)108-3300 

Special Agent Pohlke was present during Special Agent Odum's comprehensive inspection 

of Respondent. Mr. Pohlke recalls thai Mrs. Katz was reclassifying hazardous materials for 

air transportation from the Manufacturer's classification of the material as published in tiie 

Material Safety Data Sheet (MSDS), as she deemed fit based on the ingredients. 

Ray Tobia, President 

Air Sea International Forwarding, Inc. 

1405 Route 18, Suite 206 

Old Bridge, NI08857 

(732) 607-0600 

At all relevant times Mr. Tobia was President of Air Sea Intemalional Forwarding, Inc., a 

Freight Forwarder. Upon irtfonnalion and belief. Air Sea International Forwarding, Inc. is 

presently not active. Mr. Tobia has knowledge of the ti^aining Respondent alleges that K^Ir. 

Tobia provided to Respondent's employee Eileen Kerster, including that he has no 

documentation to support that such training took place and has no records of such training. 

Respondent and its employees and agents have knowledge of * e facts which pertain to this 

action. 

List the names and addresses of all witnesses you intend to call at trial and 

State the substance of the facts or opinions to which they are expected to 

testify. 

Answer: 

Complainant has not yet made a final determination as to the witnesses it will call at the 

bearing of this matter, however, it is anticipated that Complainant wiU call; 
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Special Agent Odum is expected to testify as to his investigation and findings in the 

instant maiter. See response to Interrogatory No. 1. 

Ray Tobia is expected to testify that he did not provide DOT HMR training to 

Respondent's employee Eileen Kerster and has no documentation of such training. See 

response to Interrogatory No, 1, 

3, Set forth the name and address of all proposed expert witnesses whom you 

expect to call at trial, and as to each, state: 

(a) the subject matter on wliich the expert is expected to testify; 

(b) the substance of the facts and opinions to which the expert is expected 

to testify; 

(c) state the substance of all materials cxamhied by the expert; 

(d) provide copies of any documents relating to facts that were submitted 

to the expert, or if facts were cortununicated to the expert in a mamier 

other than by documentary material, state the fonn in which the facts 

were provided to the expert and the substance of same; 

(e) the expert's job title or position, educational background^ work history, 

experience, employer, and membership in professional and/or trade 

organizations; and 

(f) state every standard relied i^ n in forming the expert's opinion and 

which will be relied upon at trial. Annex copies of any written 

standard and state the substance of any oral or unwritten standards and 

give the source of each. 

Answer: 

The Agency anticipates calling Special Agent Odum as an expert in the DOT HMR at the 

hearing of the instant matter- He will testify as to his knowledge of the facts relevant to 

the instant matter as set fortli in the EIR (attached) and his findings that the DOT HMR 

were violated. See response to Interrogatory 1, 

A copy of Special Agent's curriculum vitae will be provided upon receipt. 

In addition, depending upon Respondent's responses to Complainant's discovery, the 

Agency may call an expert witness, not yet identified. 
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4. Specify the tide of the individual answering these interrogatories, provide his 

or her name and address and the nature of his or her duties and 

responsibilities. 

Answer: Objection. The Interrogatory calls for information tliai is not relevant or likely 

to lead to admissible evidence. 

Notwithstanding the objection. Complainant responds as follows: 

Special Agent Charles Odum: Special Agents use comprehensive, focused, follow up and 

special emphasis inspectiotis to ensure compliance with the regulations of the Department 

of Transportation and tlie International Civil Aviation Organizations Technical 

Instructions for the safe transport of dangerous goods by air. 

See response to Intetrogatcry 1. 

Jeanine C. Gotimer 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718 553-3272 

Facsimile; 718 995-5699 

Agency counsel drafted these responses and interposed objections, Agency counsel's duties 

include representing the Agency in all phases of the enforcement process. 

5. Identify the basis upon which the specific sum demanded as penalty in this 

matter was ascertained. 

Answer: Objection; The Production Request is vague and calls for information that is 

protected from disclosure under the deliberative process, attorney work product, and 

attorney-client privileges, See response to Production Request 11. 

Notwithstanding the objections, please refer to the EIR and FAA Order 2150.3B, 

Appendix C, 

6. If any photographs, videotapes, audio tapes or other forms of electronic 

recording, sketches, reproductions, charts or maps were made with respect to 

anything that is relevant to the subject matter of the complaint, describe: (a) 

the number of each; (b) what each shows or contains; (c) the date taken or 

make; (d) the names and addresses of the persons who made them; (e) in 
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whose possession they are at present; and (1) if in your possession, attach a 

copy, or if not subject to convenient copying, state die location where 

inspection and copying may take place. 

Answer: None. Please refer to the EIR. 

7. If you claim that the defendant made any admissions as to the subject matter 

of this lawsuit, state: (a) the dale made; (b) the name of the person by whom 

made; (c) the name and address of the person to whom made; (d) where made; 

(e) the name and address of each person present at the time the admission was 

made, (f) the contents of the admission; and (g) if in writing, attach a copy. 

Answer: The Complainant objects to this request in that it calls for legal theory and 

interpretation. Notwitiistanding the objection, please refer to the Complaint and the EIR. 

On or about May 19,2009, during the comprehensive inspection at Respondent's facility, 

Respondent's employee, Eileen Kerster, ainitted to SA Odum that the 24 hour 

Emergency Response Contact Telephone Number for shipments referenced in 

Allegations 3(a) and 3(b) of the Complaint were the telephone numbers for the Katz 

home and Respondent's office. 

At tlie Informal Conference, Mr. and Mrs. Katz confirmed the same to Agency counsel. 

See response to Interrogatories 1 and 8, herein. 

Sec also, correspondence from Mrs. Katz dated August 25,2010 and Sept 29,2010 

wherein she admits that Respondent reclassified the UN1993, Flammable Liquid, N.O.S, 

Class 3, Packing Group II, referenced in Allegations 3(a) and 9 of the Complaint 

8. If you or your representative and the defendant have had any oral 

communication concerning the subject matter of this lawsuit, state: (a) the 

date of the communication; (b) the name and address of each participant; (c) 

the name and address of each person present at the time of such 

commtinication; (d) where such communication took place; and (e) a 

suimnary of what was said by each party participating in the communication. 

Answer: Objection: Respondent is aware of oral communications it had with 

Complainant. Notwithstanding the objection, please refer to a copy of the EIR, attached 

hereto- In addition, Respondent bad oral communications with Agency Counsel, at the 

Inlbrmal Conference of this matter held on December 2, 2009 in the conference room of 

the FAA Office of Regional Counsel, Eastern Region. 

See response to Interrogatories 1 and 7, herein. 
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9. If you have obtained a statement from any person not a party to this action, 

state: (a) the name and present address of tlic person who gave the statement; 

(b) whether the statement was oral or in writing and if in writing, attach a 

copy; (c) the dale the statement was obtained, (d) if .such statement was oral, 

whether a recording was made, and if so, the nature of the recording and the 

name and present address of the person who has custody of it; (f) the name 

and address of the person who obtained the statement; and (g) if the statement 

was oral, a detailed sununary of its contents. 

Answer: None. 

10. If you claim that the violation of any statute, rule, regulation or ordinance is a 

factor in this action, state the exact title and section. As to each stat-ute, rule, 

regulation or ordinance, set forth in detail the manner and means by which 

you allege it has been violated. 

Answer: The Complainant objects to this request in that it is vague, and that it calls for 

legal theory and interpretation. Notwithstanding the objection please see the EIR and the 

regulations cited in the Complaint 

11. Set forth in detail all facts in suppon of the allegations contained in Paragraph 

3 of the Complaint. 

Answer: Please refer to the ETR. 

12. Set forth in detail all facts in support of the allegations contained in Paragraph 

4 of the Complaint. 

Answer; Please refer to the EIR. 

13. Set forth in detail all facts in support of the allegations contained in Paragraph 

5 of the Complaint 

Answer: Please refer to the EIR, 

14. Set forth in detail all facts in support of the allegations contained in Paragraph 

6 of the Complaint. 

Ajiswer: Please refer to the EIR. 

15. Set forth in detail all facts in support of the allegations contained in Paragraph 

7 of the Complaint. 

Answer: Please refer to the EIR, 
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16. Set forth in detail all facts in support of the allegations contained in Paragraph 

8 of the Complaint. 

Answer: Please refer to the EIR. 

17. Set forth in detail aU facts in support of the alligations contained in Paragraph 

9 of the Complaint, 

Answer: Please refer to the EIR. 

18. Set forth in detail all facts in support of the allegations contained in Paragraph 

10 of the Complaint. 

Answer: The Agency is amending its Complaint to withdraw Allegation Number 10 of 

the Complaint, under separate cover. 

AGENCY RESPONSE TO RESPONDENT'S NOTICE TO PRODUCE 

1. Any and aU documents prodticed to you by any individual or entity related to 

this case. 

Answer: Objection. This Production Request calls for the production of documents 

created and sent to Complainant by Respondent and which Respondent has copies of 

See attached EIR, 

2. Any and all statements of any party or witness. 

Answer; See response to Production Request 1. 

3. Any and aU declarations agaiturt interest and admissions, 

Answer; Objection: Vague. Notwithstanding the objection, please refer to 

Complainant's response to Interrogatory No. 7. 

Information responsive to this request is pending responses to Complainant's 

Requests for Admissions. 

4. Any and all reports of consultants or experts you intend to call at the time of 

trial. 

Answer; See attached EIR, 
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5. Any and all non-privileged portions of any materials or communications sent 

to OT by any expert you intend to call at the time of trial. 

Answer: See attached EIR. 

6. Any and all reports or notes of any FAA agent, investigator or employee 

involved in the subject matter. 

Answer: Objection. This Production Request is overly broad, unduly burdensome 

and calls for the disclosure of privileged attorney work product and attorney-client 

communications. To the extent it seeks relevant non-privileged documents^ see 

attached EIR. 

7. Any and all non-privileged portions of any materials or conmiunications sent 

to or by any FAA agent, investigator or employe© involved in the subject 

matter, 

Answer: Sec reply to Production Request 6. 

8. Any and all documents used by the FAA to classify the chemicals, substances, 

OT materials involved in this matter. 

Answer: The FAA does not classify hazardous materials, See 49 CFR 172,101 and 

the MSDS for the subject materials. 

9. A copy of the resume, curriculum vitae, and/or training records of any and all 

F A A agents, mvestigaiors or employees involved in the subject matter. 

Answer: A copy of Special Agent's currictilum vitae will be provided upon receipt. 

10. Any and all documents which form the basis for or relate to the investigation 

and/or claims asserted against Cenogenics Corporation, including but not 

limited to a copy of the investigation enforcement file. 

Answer: Sec attached EIR. 

11. The penalty matrix and the basis upon which the specific sum demanded as 

penalty in this matter was ascertained. 

Answer Objection, The Production Request calls for information that is protected 

from disclosure under the deliberative process, attorney work product attorney-client 

privileges. 

12. Any and all forms that must be completed to have Cenogenics Corporation's 

financial status considered when calculating a penalty assessment. 
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Answer: See attached Department of Justice Corporate Financial Statement of Debtor 

Form. The Agency also seeks Respondent's Income Tax Reiim'is for the past two 

years if respondent is claiming a bona fide inabihty to pay the civil penalty. 

13. Any and all non-privileged documents to which the FAA reieited or will 

refer, or on which the FAA relied or will rely on in responding to any 

interrogatories that it answered or will answer in this matter. 

Answer: The Production Request is vague. Notwithstanding the objection, sec 

attached EIR, 

Complainant res^ves the right to amend responses in keeping with the ongoing 

namre of discovery. 

Respectfully submitted, 

Alfred R, Johnson, Jr. 

Regional Counsel 

By: (\^^.Jr^>9V-)....^_ Date; /ff (l/f Q 

Jeaime C. Gotimer 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

.Jamaica, NY 11434 

Telephone: 718 553-3272 

Facsimile: 718 995-5699 
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CERTTFICATE OF SERVICE 

I hereby certify that on this day copies of the foregoing Complainant's Reply to 

Respondent's interrogatories and Notice to Produce documents were sent via Certified Mail 

- Return Receipt Requested addressed as follows: 

And Via Facsimile witiiout AttaclTments 

Chief Administrative Law Judge Ronnie A. Yoder 

Of&ce of Administrative Law Judges 

Office of Hearings, M-20, 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room El2-320 

Washington, D.C. 20590 

FAX 202-366-7536 

And Via Facsimile without Attacliments 

Federal Aviation Adminisuration (Original and one copy) 

800 Independence Avenue, S.W. 

Washington, D.C 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014 

FAX 202-493-5142 

JohnP. Beyel 

McElroy, Deutsch, Mulvaney & Carpenter, LLP 

Attorneys at Law 

1300 Mount Kemble Avenue 

PO Box 2075 

Morristown. New Jersey 07962-2075 

Date: NOV 1 7 2010 hy.Ay^j-o-^y^^i''>^a^ [ff ^ 

Marianna Pcrcro 

Paralegal Specialist 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Room 561 

Jamaica, NY 11434 

10