LAW 0Ff1CE OF 

HOZUBIN 

&MOBERLY 

310 K S1REET, SUITE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

u.s. DEPARTMENT OF TRANSPORTATFJ E c E I v E 

OFFICE OF HEARINGS 

WASHINGTON, DC MAY 2 0 2013 

In the Matter of: HEARING DOCKET 

TGI FREIGHT 

)FAA Docket No. CP10NM0012 

)OMS NO. FAA-2010-1079 

______________________________ )Judge RICHARD C. GOODWIN 

TGI FRIEGHT'S POST-HEARING BRIEF 

On or about February 19, 2010, TGI Freight received from 

Parsons Corporation, along with other items, four 

manufacturers' combination packaging (shipping containers) of 

Pro-poxy 400 epoxy resin. None of the packages either 

displayed a consumer commodity label, as required by CFR-49 

172.316 (a), or limited quantities markings, as required by 

172.315. 

Further inspection found that the inner containers did 

display a WHMIS Class D, division 2 symbol that warns of 

possible poisonous reactions to a person who is repeatedly 

exposed to small amounts, but they did not display the WHMIS 

Class B symbol for flammable/combustible material. In other 

words, the only marking indicated that the material may be 

irritating to the skin after prolonged exposure. This does not 

make it a hazardous material, nor was there any indication that 

the item was a hazardous material. 
LAW OFF1CE OF 

HOZUBIN 

&MOBERLY 

310 K STREET, SUITE 405 

ANaiORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

It has been TGI Freight's experience that the presence of 

the Class D, division 2 symbol is a consumer warning and does 

not equal DOT hazard class. Because of the absence of the 

required information from the manufacturer, TGI Freight 

appropriately considered the Pro-poxy 400 to be a non-regulated 

item and shipped it as such. 

TGI Freight properly relied on the information provided by 

the manufacturer of the product. This is appropriate pursuant 

to 49 CFR 171.2: ~each offeror may rely on information 

provided by another offeror." 

The outer packaging was not marked with a proper shipping 

name, as required by 172.300/172.301, or UN/NA number in a 

diamond, as required by 172.315, for limited quantities by nonair transport. It was also not marked with Consumer Commodity, 

ORM-D. As shown by pictures in evidence, and confirmed by the 

testimony of Mr. Jueneman, Mr. Clark, Mr. Peters, and Mr. 

Deitz, there are no markings or labels of any kind on the 

packaging. This is in direct violation of 49 CFR. 

Unitex, the manufacturer, has taken the position that 

because of the small quantity in the 9 oz. tubes, it does not 

require marking, labeling, or placement of WHMIS symbols. See 

generally the testimony of Todd Clark. This is despite the 

fact that research has shown that the exact same product in 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 2 
LAW OFFICE OF 

HOZUBIN 

&MOBERLY 

310 K STREET, SUITE 405 

ANCHORAGE, AK 99501 

1EL: (907) 276-5297 

FAX: (907) 276-5291 

larger 28 oz. tubes is labeled with multiple flammable warnings 

on the tubes. The fault for what occurred lies with the 

manufacturer and not TGI Freight. 

Additionally, there has been some criticism by the FAA of 

TGI concerning this shipment for not consulting a Material 

Safety Data Sheet ("MSDSH) . MSDSs are not transportation 

documents. [TR. P.179, lines 19-22.] The MSDS is an OSHA form 

referenced in CFR-29, and they are not required to have any 

transportation information on them. [TR. P.180, lines 1-6.] 

CFR-49 does not require that TGI refer to the MSDS as 

part of this process. [TR. P.174, line 22 - P.175, line 3.] 

Further, there is much evidence that MSDSs are not necessarily 

always accurate, despite being from the manufacturer. The 

parties agree that MSDSs, to a certain extent, are incorrect. 

[TR. P.175, lines 4-9; TR. 307, line 19 - P. 308, line 5.] In 

this case, the MSDS itself for the epoxy at issue is confusing 

at best: 

And because the clean-up off the clothing and off the 

person says water clean-up, which indicates to me a 

non-haz item. When I read that, I was shocked that 

it had a flashpoint as low as it did, considering 

that if I get it on my hands - I get it on my skin 

I get it on the clothing, this and the material 

safety data sheet both say clean it up with water. 

Once it's- once the material has hardened- and 

we're talking about the adhesive itself, not the 

inner components. We're talking- and I believe 

that's the way the MSDS talks, is that I think once 

they figure it comes out of here, it's going to get 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 3 
LAW OFFICE OF 

HOZUBIN 

&MOBERLY 

310 K S1REET, SUITE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

mixed together and you're going to have an adhesive. 

But until it - within the first five minutes you can 

wash it off with soap and water. So that would 

indicate to me almost that it's a latex. So when I 

saw that it was flammable, I was - I want to say I 

was a little bit- it's confusing. 

[TR. 388, line 6- P. 389, line 4.] 

TGI Freight acted appropriately based on the information 

provided to it on the manufacturer's shipping containers. Had 

the cartons or even inner containers been properly marked, 

labeled, or embossed with the WHMIS symbols, as required, TGI 

Freight would have properly declared them. TGI Freight did not 

knowingly violate any provision of USCA, chap. 51. 

This Court indicated at the end of the hearing that its 

hands are tied by the regulations. However, there is 

flexibility in the regulations, much like there is flexibility 

in the FAA's decisions to pursue investigations and fines or 

not, and flexibility in the FAA's requirements of shippers. 

For example, 49 CFR 171.2(b) states: "each offeror may rely on 

information provided by another offeror, unless that offeror 

knows or, a reasonable person, acting in the circumstance and 

exercising reasonable case, would have knowledge that the 

information provided by the other offeror is incorrect." In 

other words, TGI has every right to rely on the representations 

of the manufacturer. That was entirely reasonable under the 

circumstances. Ultimately, it is the manufacturer's 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 4 
LAW OFFICE OF 

HOZUBIN 

&MOBERLY 

310 K S1REET, SUITE 405 

ANCHORAGE, AK 995fH 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

responsibility to appropriately mark and label what they 

produce. [TR. P.l83, lines 8-13.] 

In this case, Mr. Jueneman of TGI inspected the epoxy and 

found no markings or labelings on the product. [TR. P. 301, 

line 8-Page 302, line 5.] Mr. Jueneman called in Mr. Clark to 

confirm his findings. [Id.] Mr. Clark reviewed both the tubes 

of expoxy and their shipping boxes for any indication that they 

were hazardous, and did not even find any minimum marking 

requirements for surface transportation. [See generally, TR. 

P.301-304.] 

TGI Freight was shipping both hazardous and non-hazardous 

materials for the FAA project at the time. [TR. P.308, line 

13-P.309, line 5.] The epoxy at issue in this case was a 

question for Parsons as well: "The Pro-Foxy was a kind of a 

question. So with the - you know, the word epoxy, we said 

we'll take it over to TGI Freight for shipping. Because I did 

not know if it was hazardous or not." [TR. P.75, lines 3-7; 

see also TR. P.83, lines 4-19.] 

Not all epoxies are hazardous. [TR. P.l94, lines 7-8 .] 

Not all epoxies are adhesives. [See generally, TR. P.l83-194; 

and TR. 336-340.] In fact, the item at issue was not an 

adhesive. [TR. P.369, line 8- P.374, line 1.] 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 5 
LAW OFFlCE OF 

HOZUBIN 

&MOBERLY 

310 K SlREET, SUITE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

There were no markings or labelings on the boxes of epoxy 

that the manufacturer shipped to Alaska Sand and Gravel. [TR. 

P. 62, lines 7-13; TR. P.254, lines 2-6.] This was illegal. 

[ Id. ] In fact, there were no markings even on the shrinkwrapped pallet as received by Alaska Sand and Gravel. [TR. P. 

323, lines 14-19.] It was neither marked nor labeled properly, 

even for surface shipping. [TR. P.367, line 20 - P.369, line 

7. See also, P. 382, line 22- P.387, line 11.] 

To require that a shipper or offeror do anything beyond 

relying on what a manufacturer represents on its product is a 

slippery slope, especially if the requirements are not 

contained within the regulations. To enforce what the FAA 

believes should have been done: i.e. pull MSDSs to get 

additional information, even though such documents are not 

meant for shipping purposes and are known to contain errors, 

would be to allow the FAA to impose non-existent regulations 

that will lead to arbitrary and capricious investigations, 

fines, and penalties. 

Another example of the FAA taking liberties in cases such 

as these is the FAA requiring that shippers obtain a letter 

from a manufacturer stating that it is acceptable to ship 

something in a manner other than what is listed on the marking 

and labeling. It is the FAA's position that if a shipper wants 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 6 
LAW OFFlCE OF 

HOZUBIN 

&MOBERLY 

310 K SlREET, SUITE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

to ship a package in a manner different than the manufacturer 

has marked or labeled the product, then the shipper is required 

to obtain a letter from the manufacturer advising that the 

shipment method is appropriate. [TR. P.259, lines 12-18; P. 

260, line 12-P.263, line 4.] Yet, there is nothing in the 

regulations that requires a shipper to do this, as the FAA 

admits. [TR. P.263, lines 5-8.] 

Further, as discussed supra, there is nothing in the 

regulations that requires a shipper to pull an MSDS in any 

circumstance. To read into CFR-49 the requirement than an MSDS 

be pulled, that a letter be obtained from the manufacturer, 

that a manufacturer be contacted in advance of shipment, or any 

other hoop the FAA chooses to require people to jump through 

that is not explicitly set forth in the regulations, is 

inherently unfair and prejudicial. Further, any enforcement of 

such fictitious hoops clearly indicates that the regulation is 

constitutionally vague, and would permit the FAA to arbitrarily 

and capriciously enforce the regulations based on its own 

internal, unpublished positions of the day, week, month, or 

year. 1 

1 See California Teachers Ass'n v. State Bd. of Educ., 271 F.3d 

1141, 1150 (9th Cir. 2001). Vague statutes and regulations are 

objectionable because, in part, they trap the innocent by not 

providing fair warning, and they impermissibly delegate basic 

policy matters to lower level officials for resolution on an ad 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 7 
LAW OffiCE OF 

HOZUBIN 

&MOBERLY 

310 K STREET, SUilE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

It is a slippery slope, because it leads to the question 

of what is next? What will the FAA require shippers and 

offerors to do to meet the standard of reasonable; or to have 

to show that they did not knowingly violate a regulation? Will 

the FAA require a shipper to confirm through the actual testing 

of the flashpoint when it is not on the product, and the MSDS 

is incorrect or inconsistent? While this is an absurd result, 

it is a possibility if the FAA is allowed to use the language 

of the regulations as a sword, a gun, or any weapon of its 

choosing depending on the day, the shipper or offeror, and the 

amount of work the individual FAA investigator has at any given 

time. The FAA asks this Court to bless its arbitrary opinion 

of what this language means. The FAA asks this Court to 

require every shipper, every offeror everywhere in the United 

States to succumb to its requirement of the day - today, that 

requirement being that each must pull an OSHA document, that 

specifically states it is not to be relied upon, to ascertain 

whether something may or may not be hazardous despite what the 

hoc and subjective basis, with the attendant dangers of 

arbitrary and discriminatory application." See also Connally 

.v. General Canst. Co., 269 U.S. 385, 46 S.Ct. 126 (1926); 

Borton, Inc. v. OSHRC, 734 F.2d 508, 510 (lOth Cir. 1984); 

Dravo Corp. v. OSHRC, 613 F.2d 1227, 1234 (3d Cir. 1980); Kent 

.Nowlin Constr. Co. v. OSHA, 593 F.2d 368, 370-71 (lOth 

Cir.l979); Usery v. Kennecott Copper Corp., 577 F.2d 1113, 

1118-19 (lOth Cir. 1977); Diamond Roofing v. OSHRC, 528 F.2d 

645, 648-49 (5th Cir. 1976) 

.In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 8 
LAW OFFlCE OF 

HOZUBIN 

&MOBERLY 

310 K SlREET, SUITE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

manufacturer has represented on the packaging and the product 

or be subject to tens of thousands of dollars in penalties. 

At the same time, it was discovered in the course of this 

matter that the FAA has the ability to choose not to pursue 

investigations, and to even forego recording serious violations 

of the regulations at its own discretion. As was discussed at 

length during the course of the trial, there was a DHL shipment 

that Mr. Deitz was called on in September 2010 that contained 

significant amounts of hazardous materials, including lithium 

batteries. [TR. P.263, line 9-P.264, line 2.] Mr. Deitz 

brought the shipment to TGI Freight to properly ship the 

hazardous material. [See generally, TR. P.328-335.] There was 

no investigation into DHL or the BBC for the illegal shipment 

from Dutch Harbor, AK to Anchorage, AK. [ Id. ] In fact, Mr. 

Deitz had no recollection of this. The FAA is not without 

bounds. The FAA does not get to define the regulations beyond 

the scope of practicality or common sense. If the Court finds 

that the FAA can define "reasonable care" in any manner it 

chooses, at any given time, and levy exorbitant fines based on 

the same, then there is little doubt that the regulations are 

vague and subject to arbitrary and capricious enforcement. 

The evidence very clearly demonstrates that TGI Freight 

acted reasonably under the circumstances. The fault in this 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 9 
LAW OFFICE OF 

HOZUBIN 

&MOBERLY 

310 K S1REET, SUITE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

matter lies not with TGI Freight, but with the manufacturer. 

Mr. Peters, one of the, if not the, foremost experts in the 

shipment of hazardous materials, testified that, under the 

facts as presented in this case, he would have done the exact 

same thing that was done by TGI Freight, as is allowed by the 

regulations. TGI Freight exercised "reasonable care." TGI 

Freight had no reason to believe that the manufacturer's 

information, or lack of information on its packaging and 

products, was incorrect. TGI Freight did not act knowingly. 

Further, the evidence clearly demonstrated that, as shipped, 

the epoxy was a resin, not an adhesive, and that not all 

epoxies are hazardous materials. 

TGI Freight respectfully requests that this Court find in 

its favor in this matter. No fines should have been levied. 

TGI Freight exercised reasonable care under the circumstances. 

DATED this 13th day of May 2013. 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 10 

By: 

LAW OFFICE OF HOZUBIN & MOBERLY 

Attorneys for GI Freight 
LAW OFF1CE OF 

HOZUBIN 

&MOBERLY 

310 K STREET, SUITE 405 

ANGIORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

CERTIFICATE OF SERVICE 

I hereby certify that on the 

13th day of May 2013, a true 

and correct copy of the foregoing 

was mailed to the following: 

Original Plus 1 Copy 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl000 

One Copy 

Howard L. Martin, Jr. 

Regional Counsel, Office of Regional Counsel, AAL-7 

Alaskan Region 

Federal Aviation Administration 

222 West 7th Avenue #14 

Anchorage, AK 99513-7587 

Cheryl M. Jones, Sr. Attorney 

Office of Regional Counsel 

Alaska Region 

Federal Aviation Administration 

222 West 7th Avenue #14 

Anchorage, AK 99513-7587 

The Honorable Richard C. Goodwin, Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building, Ground Floor, Room E12-320 

Washington, DC 20590 

LAW & MOBERLY 

By:-f~~~~Yh~~~~==~~ Carol cNeese 

9100/242/trial/post trial/post-trial Brief 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 11