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FEDERAL AVlATTON ADMINISTRATION 

Alaskan Region 

Office of the Regional Counsel 

111 West Seventh Avenue, Box 14 

Anchorage, Alaska 99513 

PH: (907) 271-5269 FAX: (907) 271-2800 

FACSIMILE TRANSMISSION COVER SHEET 

TO: Judge Richard C Goodwin 

Pocket CUrk 

FROM: Craig Wm. Black, Esq. 

FAX No: (2W)36G-753ti 

(202) 493-5020 

RE: Smith Cable Systems, Inc. 

FAA Docket No. CPO9ALO012 

DMS No. FAA-2009-0976 

Number of pages (not including this cover sheet): - 9 -

Administrator'j Response To Smith Cable's Closing Argument 

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::rPARi!viENTOr 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS . _ 

WASHINGTON. D.C. ''•''•^ -^^ -2 A H: 2 3 

IN THE MATTER OF 

SNOTH CABLE SYSTEMS, INC. 

FAA DOCKETNO. CP09AL0012 

(Civil PcnaUy Action) 

DMS NO. FAA-2009-0976 

ADNnNISTRATOR-S RESPONSE TO SMFTH CABLETS CLOSING ARGUMENT 

L Introduction. 

Complainant Federal Aviation Administration ("Adminisiraior"). through counsel, hereby 

responds to the closing arguments presented by respondent Smith Cable Systems. Inc. ("Smith 

Cable"). 

IL Discussion. 

A. Smitit Cable Offered Hazardous Materials for Shipment BY Air. 

The fundamental issue for the administrative law judge to resolve is whether Smith Cable offered 

ha7,ardous materials for shipment by air, the materials in this case being two cylinders of propane 

concealed within a propane stove and one can of spray paint. The weight of the evidence 

presented ai hearing, fairly judged, demonstrates thai Smith Cable did precisely that. 

Smith Cable's two crcwmembcrs, Todd Linne and Tom Fiaiek, testified that they purchased and 

used a small propane stove to cook meals as they laid coaxial cable throughout Southeast Alaska 

in the summer and ear)y fall of 2003. Smith Cable President Ronald Smith testified that it wa.s 

not at all uncommon for his crews to have propane stoves on such jobs. Indeed, Mr, Smith 

tesiificd that Mr. Linne and Mr. Fialek had one on this job. There can be no question, then, that 

Smith Cable had propane and a propane .stove as its crew moved around Southeast Alaska. 

Alaska Airlines employees Stephen Camp and Timothy Cook testified that, in the course of 

moving the Smith Cable shipment aroimd the airline's ramp in Ketchikan, the shipment was 

disturbed, causing a closed propane slove to tumble out and split open. It w-as at that moment that 

Mr. Camp discovered that the closed stove had concealed two cylinders of propane, a regulated 

material. Upon discovering the propane. Mr. Camp and Mr. Cook performed a full search of the 

Smith Cable .sliipmenr to determine if it contained any other hazardous materialii. During their 

.search, they found a concealed can of spray paint, another regulated material. Mr. Camp and Mr. 
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Cook both identified photos of two cylinders of propane and a can of spray paint a.s fairly 

depicting the items they discovered concealed within the Smith Cable shipment. 

B. Smith Cable's Defenses are Unsupponcd-bv the Evidence or the Law. 

In its closing. Smith Cable raises several arguments against the violations and penally sought by 

the Admini-^trator. None of these arguments find support in the facts or law. 

I. Smith Cable Offered Hazardous Motetials for Shipment. 

Smith Cable argues that it did not "present" hazardous materials for shipTnent.' In support of this 

claim, Smith Cable cites (he testimony by Mr. Linne and Mr, Fialek, who both testified that they 

knew they could not ship propane by air and did not do so. and that they did not use ?pray paint 

on this job. Smith Cable also cites the testimony of its Anchorage-based administrative assistant 

Annie AfUsia. who arranged for the shipment. 

The Administrator is burdened in this matter to prove, by a preponderance of the leliable, 

probative, and substantial evidence, each of the elements of the violation.s alleged." In this 

matter, there is no question that the testimony of the Smith Cable employees conflicts wt± the 

tesiinr^ony of the Alaska Airlines eroployec^. The Admimstrativc Law Judge must weigh their 

testimony and determine which is more credible. 

The Administrator submits that, on balance, the testimony of the Alaska Airlines employees is 

entitled to greater weight. First, unlike the Smith Cable employees, the Alaska Airlines 

employees are truly disinterested. The Administrator has alleged that Mr. Linne and Mr. Fialek 

are the individuals who. in the name of their employer, offered har^rdous materials for shipment 

by air. Their performance is at question, and the mere presence of that question, rightly or 

wrongly, provides them with a motive to dimijni.sh their mistakes and try to pin the blame on 

others, most notably the unknown Aero Services worker who transported the shipment to Alaska 

Airlines. Mr. Linne and Mr, Fialek work in this field and have an undersrandoble reason to 

protect their reputations as reliable, law-abiding workers who won't expose their employers to 

rcgulatoi^ violations. 

By contrast, the Alaska Airlines employees merely discovered the haiardou:; materials and 

determined that they were part of the Smith Cable shipment. They described in detail the propane 

and how it was part of the Smith Cable shipment, and how the discovery of the propane led them 

to find the spray paint concealed deeper within the shipment. They have no motive to distort 

their testimony. Indeed, finding these hazardous materials likely complicated their work: they 

were forced to conduct a full search of the shipment, document and photograph their discoveries, 

report the matter to the Administrator, be interviewed, and ultimately te.stify jn this proceeding. 

Mr. Camp and Mr. Cook complicated their workdays by finding these matetials. 

Smith Cable Clo.sing Argument at 12-13. 

^ 14C.F.R. 13.223. 

^mrh_QaM<LS^^terns, fnc. DMS No. FAA-2009-0976 

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The simple truth here is that the Smith Cable crew had an inexpensive propane stove duritig theu 

navels in Southeast Alaska. After they wrapped the job. they shipped their gear back north. 

While on the loading ramp in K-ctchikan, a propane stove and propane of the .sizes and kinds that 

the crewmembers said they had been using were discovered in the shipment. It would be nothing 

short of fantastic for those peculiar items to be anything other than the ones that Smith Cable's 

crew had been using throughout their journey. 

Less is known about the spray paint or why it wound up concealed within the Smith Cable 

shipment. Both Smith Cable employees testified that, whereas they had and LLscd a propane stove 

on this project, they do not nomially use spray paint in their work. (Tr. 414. 4401 However, 

neither testified that they did not have any spray paint during their travels. It may well be thai, 

while they did not need any spray paint for their work, a can of spray paini was with them in 

Ketchikan and wound up bemg included in the 1,213 pound shipment they offered to Alaska 

Airlines. Moreover, the Alaska Airlines employees were unequivocal in testifying that they 

found a can of spray paint in the .shipment and photographed it along with the propane. On 

balance, the evidence and testimony of ihe Alaska Airlines employees that the shipment 

contained both propane and spray paint .should be afforded greater weight. 

Smith Cable raises Ms. Afusia's apparent sensitivity lo hazardous materials shipment issues/ 

apparently to imply that her awareness somehow prevented Mr. Linne and Mr. Fialek from 

shipping die propane and the sipray paint by air. Smith Cable also cites to a "memorandutn" she 

prepared that demonstrates her knowledge and concern.^ While Ms. Afusia did send an email to 

Mr. Linne,^ that email merely directs the crew to .*ihip the "4 wheeler and gas grill" via barge "to 

avoid problems with the hazmat papenA'ork at the airport".^ However, her email is silent on what 

to do with propane cylinders or spray paint, and is ultimately irrelevant to the qucstioix of what 

Smith Cable ultimately included in the shipment it offered to Alaska AirUnes. 

Smith Cable also spends a great deal of time focusing on the complications that the crew had in 

tendering the .shipment to Aero Services for delivery to Alaska Airlines as arranged by Ms. 

Afusia. However, there is no evidence, beyond mere speculation, that Aero Services actually 

adulterated Smith Cable's shipment. Moreover, the suggestion that it did so is truly incredible. In 

essence. Smith Cable theorizes that, by some incredible coincidence. Aero Sen/ices somehow 

adulterated the shipment by adding not just a can of spray paint, but also a propane stove and 

propane cylinders of a type and kind that the crew acntally had throughout their journeys in 

Southea.st Alaska. Common sense holds that almost certainly did not occur. 

• Significantly, neither crcwmember testified as to whatever became of the propane stove or It.s 

fuel: one would expect that if they disposed of them at some point they would have .so testified. 

'^ Smith Cable Clo.sing Argument at 12-13. 

^ Id, at 13. 

" Smith Cable Exhibit A. 

' ] ^ 

Smith Cable Closing Argumeni ai 13. 

Smirh Cable Systems, Inc. ^^ ^ ^^^ FAA-2009.0916 

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2. SrnUh Cable Offered the Shipment far Tran-zporiaiirm hy Air Via an Agent. 

Aero Servicer. 

Smith Cable claims that Aero Services' work in transporting the shipment from Mr. Linne and 

Mr. Fialek co Alaska Airline.'^ in Ketchikan was performed as an indcpendciU comracior. not an 

agent. Therefore, Smith Cable argues, because Aero Services operated as an independent 

contractor, at^y resulting violations of the HMRs'' for this shipmem caiit\ot be atuributcd to Smith 

Cable,'° In support. Smith Cable cites Husky Corp.. '' in which the Administrator determined 

that a company that icqucsts another to ship hazardous materials but docs not direct or specify 

the means of shipment bears no responsibility for subseqtient violations of the HMRs. 

This case is easily distinguished from the facts in Husky. In Husky, the Administrator held that, 

in order to impute the violation.'* to the party who requests the shipment, the Administrative Law 

Judge must find more than that the shipper simply dispatched the materials at the requesting 

party's demand. In addition, the Administrative Law Judge must also find by a preponderance of 

the evidence that the requesting pany had a right to control the means by which the shipment 

was transponed. Here. Smith Cable sufficiently directed and controlled .^ero Services' behavior 

and conduct in handling the shipment to render Aero Services its agent. 

Smith Cable's direction is apparent from Ms. Afusia's tesrimony. Ms. Afusia established that 

Smith Cable alone was responsible for the shipment being offered to Alaska Airlines on its 

behalf She testified that she was the Smith Cable employee who 

was responsible for getting all of the trucks and equipment to and from each 

location. 

(Tr. 391) With regard to this crew in particular, she testified that she 

made sure that every time a job was finishing or ending that ihey were getting 

both their equipment, the truck, and them.selves from one location to the next and 

then I ended up getting them from their end location back to Fairbanks. 

(Tr. 393) When the job wound down in Ketchikan, she testified that she 

arranged with Alaska Airlines to have a few palleu - I believe it was iwo or three 

pallets of equipment and luggage shipped back via airplane from Ketchikan. The 

boom truck along with some oCher equipment would be going on the ferry and 

then the - the employees were on an Alaska Airlines flight. 

(Tr. 394-95). Asked if she arranged for a company to pick up the aii shipment, she testified about 

het intimate Involvement and direction of every detail; 

1 did. I - 1 arranged for - I called a few places and there was only one place in 

Ketchikan diat was able to do thai and it was Aerl Transportation [ believe is what 

ii'.s called. 

Department of Transportation's Hazardous Materials Regulations (49 CFR Part<i 171-80) 

("HMRs"). 

'" Smith Cable's Clo.sing Argumcr^t at 15-16. 

" FAA Order No. 3010-8 (June 16.2010). 

Smith C<^dyle Sysiemx, Im^, DMS No, FAA-2009-0976 

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Q. And so did you make - tell us what arrangements you made with them. 

A- I let them know how many pallets we had, the - the type of equipment we'd 

he moving, and made arrangemems for them lo pick up at a certain time while the 

employees were still on the ground and then arranged for Ihe airway bill with 

Alaska Airlines so that they would have that number and be able to ship it 

with Alaska Airlines. 

(Tr, 396; boldface added) M.S. Afusia also testified that she prepared the email with .shipping 

instructions to Mr. Fialek.'' and called Alaska Airlines to prepare the air waybill'" for the 

.shipment. (Tr. 396-401) 

Aero Services delivered this shipment to Alaska Airlines for Uansponation by air becmi:^^ Smith 

Cable cold them to. This is not a case like Husky, where the putative agent was directed to ship • 

hazardous materials without any guidance as to how to do so. Instead. Smith Cable arranged for 

Alaska Airlines lo fly the shipment from Ketchikan to Fairbanks and hired Aero Services merely 

to convey the shipmem from Smith Cables crew to the airport. If this case concerned Aero 

Services' movements through the streets of Ketchikan, and there were rcgulotory consequences 

ro whether Aero Services used a flatbed tnick or panel van or dog sled, then perhaps Husky 

might apply, since Aero Services chose how the shipment got to the airport. But this case is not 

about surface transponation. It is about Smith Cable's independent decision, fulfilled by Aero 

Services, to have the contents of this shipment fly on .Ma-ska Airlines aircraft, Smith Cable 

entirely dictated that aspect of its arrangement with Aero Services; Aero Sep.'ices *as purely an 

agent following orders. Under Husky, it is entirely appropriate for a principal such as Smith 

Cable to answer for offering undeclared hazardous materials for transport by air. 

3. Whether Smith Cable Held Title to the Hazardous Materials is Not 

Relevant, 

Smith Cable claims that it must be absolved of these violations because the AdminUlrator failed 

to prove that Smith Cable owned the hazardous materials. Smith Cable further argues that the 

Administrator's failure to ni^quire Alaska Airlines to secure and preserve the propane cylinders 

and spray paint prejudiced Smith Cable's ability to defend it-self to such a degree that the 

Administrative Law Judge should sanction die Administrator and 'Tmd that die stove found did 

not belong to Smith Cable." 

None of the violations alleged by the Administrator ore concerned with ownership of the 

hazardous materials in question. Rather, the question in whether Smith Cable offered the 

materials for transportation by air. Here, the testimony of the wimesses, the evidence, and. 

perhaps most directly on point, the photographs by the Alaska Airlines personnel about what 

they discovered within the Smiili Cable .shipment demonstrate that Smith Cable indeed did offer 

hazardous materials for transportation by air. Safety in air transport is imperiled to the same 

'- Smith Cable Exhibit A. 

" Smith Cable Exhibit B. 

14 Smith Cable Clo.sing Argument at 17-22. 

Smirk Cahje Svsrem.r. Inc. DMS f^o. FAA-2009-0976 

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degree no matter who owns the hazardous material improperly offered: the question of 

ovvneiship i^ irrelevant. 

The Administrator is not obliged to preserve hazardous materials, which by definition are 

hazardous and warrant prompt disposal.'" Moreover, Special Agent Jeffrey Deitz sent a Letter of 

Investigation"* to Smith Cable just seven days after the incident, on September 17. 2008. (Tr. 

181). Such letters are deemed sufficient to notify a respondent to, if it chooses, work to preserve 

evidence of the indicated violations," The Adminisu-ative Law Judge should rcjectihese 

contentions. 

4. The Preponderance of the Eviderice Indicates These Containers Actually 

Contained Hazardous Materials. 

Smith Cable argues that the Administrator is obliged to prove that the two propane cylinders and 

the spray paint can actually contained propane and spray paint when offered. It is true that the 

Administrator did not perform a forensic analysis of the propane cylinders or spray can to 

determine that they did in fact contain, respectively, liquefied petroleum gas or flammable 

aerosoli^- However, this ca.se concerns commonly .sold consumer items, and common experience 

tells that when they arc emptied they are disposed, not retained and shipped, strongly suggesting 

that they still contained usable quantities of product when offered. Moreover, it is not an 

unsubstantial effort to clean and purge containers of this nature such that they no longer contain 

residtie. The logical infcreucc is that such Items, even when their ability to produce the desired 

product is eithausted, continue to retain residue. The Administrator has carried the burden of 

proving, by a preponderance of the evidence, that the shipment contained hazardous materials 

through the testimony of the Alaska Airlines employees about what they discovered and the 

photographs they took. Moreover, with regard to the propane, both Mi. Linne and Mr. Fialek 

tcsrified that they occasionally cooked meals iLSed a propane stove, tn light of the lack of any 

evidence that the cylinders or can were in fact Fully and completely purged, the Administrative 

law Judge should find that the cylinders and aerosol can that Alaska Airlines discovered within 

the Smith Cable shipment in fact did contain hazardous materials. 

5. The Recommended Sanction of $60,000 Should Not Be Decreased. 

As previously set forth by the Administrator.'" fair application of Appendi.v C to Order 2150.3B 

indicates that Smith Cable should be assessed a civil penalty of $60,000. The 92 percent 

reduction Smith Cable requests (as low as S5,000) is conu^ary to the sanction guidance table and 

should be rejected. 

'^ Envirosolve. LLC. FAA Docket No. CP02SW0O2O, 2006 WL 465371. at +5-6 (Feb. 7, 2006). 

'* Exhibit C-9. 

'^ Nicholas J. Wehrle. FAA Order No. 07-20, at *4 (May 22. 1997). 

'•'' Administrator's Closing Brief at 9-10. 

Smith cable Systems, In^: ^^ ^ Vr. /r^^^ .2009-0976 

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Smith Cable argues that additional mitigation is warranted because it considers these violations 

iin "isolated event".'"^ This is not an i.solated event. As Ms. Afusia indicated. Smith Cable 

di.spatchcs crews to jobs statewide on a regular basis and is accu,stomcd to shipping their 

equipmenT and personal effects from s\te to site. Foi Smith Cable, thi? shipment was not isolated, 

but routine and commonly performed. A violation-fice history is the expected norm and does not 

of itself require mitigation."'^ Furthermore, the sanction guidance table as written presumes first 

time offenses: subsequent offenses trigger aggravation." 

Smith Cable cites two prior orders in support of its claim that its penally be mitigated as an 

isolated event.^* In both William Robert Witt'' and Dale_Weber. miligarion was deemed 

warranted where the shipper was an individuaU not a business, and the shipper was 

inexperienced in the transport of hazardous materials. However, more recent cases demonsTratc 

that such mitigation ji^i limited to shipments that the shipper docs not commonly make. See 

Lambton Doors" (shipper had never before attempted to ship wood stain and did not realize it 

was a hazardous material; shipment was therefore isolated and supported mitigation); Pgny 

Express Courier Com.''^ (no "isolated event" mitigation where the shipment was of a type 

routinely managed by the .shipper). 

Smith Cable also cites to Apollo A &. HS Co.^^ in arguing that it .should not be subject to 

multiple violation categories for what it characterizes as the single offense of merely failing to 

discIo.se hazardous materials. In that case, the Administrative Law Judge determined that 

assessing multiple penalties for what is essentially one violation is inappropriate where the 

respondent is not in the business of shipping goods in air transportation and readily admits to the 

acts compromising the violation.^^ In this matter, the Admlnisuator has given Smith Cable the 

benefit of the doubt by categorizing it as a mere business entity and not one that either uses 

hazardous materials in the course of its business or routinely ships haxardous materials. The 

Administrator ha.s not changed that approach despite the testimony of Ms. Afusia that Smith 

Cable actually is an experienced air transport .shipper. Moreover, unlike the respondent in 

Apollo. Smith Cable has not admitted to these violations and has in fact vigorously contested 

them. Lastly, multiple violations are warranied here to distinguish Smith Cable from shippers 

who make only one mistake: Smith Cable should not be assessed a single penalty like a shipper 

'"^ Smith Cable Closing Argimiem at 23. 

-^ TCI Corp.. FAA Order No. 92-77. 1992 WL 753226 at *7 (Dec. 21. 1992) 

-' Order 2150.3B. Appendix C. at C-8. 

^^ Smith Cable Closing /Argument at 23 n.5. 

^•' FAA Docket No. 86-121 {July 5, 1988). 

^^ FAA Docket No. 86-107 (May 25, 1989). 

" FAA Docket No. CP00SO00I3. 2004 WL 1167940 (May 7, 2004). 

-" FAA Docket No. 89-4.1993 WL 13119061 (Sept. 23, 1993). 

'^ FAA Docket No. CP08AL0001. 2009 WL 3696353 (Nov. 4, 2009). 

^^ld,ai*3. 

^mith Capte Systems, fnc. Q^ ^ ^^, fAA'2009-0976 

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who property declares, marks, and labels its shipment, but simply fails to provide emergency 

response information: in this case. Smith Cable did nothing correctly. Moreover, the propane that 

Smith Cable offered was forbidden on passenger-carrying aircraft. On balance, the penalty that 

the Administrator reque>;ts is appropriate and coasistent with applicable guidance. 

n i . Conclusion. 

For Lhe reasons presented herein and previously, the administrative law judge should enter an 

order finding the violations as alleged in the complaint and impose a $60,000 civil penalty. 

DATED this ^^^raS y of July. 2011. 

HOWARD L. MARTIN, JR. 

Regional Counsel 

ig wm. 

Attorney 

CERTIFICATE OF SERVICE 

Re: Smidi Cable Systems, Inc. 

FAA Docket No. CP09AL0012 

DMS No. FAA-2009-0976 

I HEREBY CERTIFY that on this dale I have served a copy of the foregoing by postage-prepaid, 

certified mail, return receipt requested, facsimile, and email to: 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington. DC 20590 

Fax:(202)366-7536 

Email: Richard.Goodwin@dot.gov 

I HEREBY FURTHER CERTIFY that on this date 1 have served the original and two copies of 

the foregoing by po.^tage-prcpaid. certified mail, return receipt requested and facsimile to: 

Federal Aviation Admini.stration 

Smith C^hle Systems Jnc . DMS No. FAA-2009-0976 

Administrator's Respofise to Smith Cable's Closing ArRtmj/mr Pa^e S 
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ATTN: Docket Clerk. AGC-430 

Wilbur Wright Building - Suite 2W1000 

800 Independence Avenue, SW 

Washington, DC 20591 

FAX; (202)493-5020 

I HEREBY FURTHER CERTIFY' that on this date I have ser^'ed copies of the foregoing by 

postage-prepaid first-class mail to: 

Brent R. Cole 

MOrstoo & Cole, PC. 

821 N Street, Suite 208 

Anchorage, AK 99501 

Fa;c: (907) 277-8002 

DATED: (2. ^ . ^. ^ .^^O fl 

M^ '^^^^ ^ j ^ 

Federal Aviation Administratio 

Office of Regional Counsel 

222 West 7th Avenue, Bo:i 14, AAL-7 

Anchorage, AK99513-75S7 

Sm}ih (^ilbifi Sj^;ems, Inc. ^^^^ ^^ FAA-2009-0976 

Admmisirator s Response to Smith Cable's Closing Argument Pa^^. g