LAW0Ff1CEOF HOZUBIN &MOBERLY 310KS1REET,SUITE405 ANCHORAGE,AK99501

TEL:(907)276-5297 FAX:(907)276-5291 

## u.s. DEPARTMENT OF TRANSPORTATFJ

# E

# cEI 

# v E OFFICE OF HEARINGS WASHINGTON, DC 

## MAY202013 In the Matter of: 

## HEARINGDOCKET

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 onlymarking indicatedthat the material maybe irritating to the skin after prolonged exposure. This does not make it a hazardous material, nor was there any indication that the itemwas a hazardous material.LAWOFF1CEOF HOZUBIN &MOBERLY 310KSTREET,SUITE405 ANaiORAGE,AK99501

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 informationprovidedby the manufacturer of the product. This is appropriate pursuant to 49 CFR 171.2:**~each** offerormay rely on information providedby another offeror." The outerpackaging was not marked with a proper shipping name, as requiredby 172.300/172.301, or UN/NA number in a diamond, as requiredby 172.315, for limited quantities by nonair transport. It was also not marked with Consumer Commodity, ORM-D. As shown bypictures in evidence, and confirmedby the testimony of Mr. Jueneman, Mr. Clark, Mr. Peters, andMr. 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 ofWHMIS symbols. See generallythe 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 2LAWOFFICEOF HOZUBIN &MOBERLY 310KSTREET,SUITE405 ANCHORAGE,AK99501

1EL:(907)276-5297 FAX:(907)276-5291 larger 28 oz. tubes is labeled withmultiple flammable warnings

on the tubes. The fault for what occurred lies with the manufacturer and not TGI Freight. Additionally, there has been some criticismby 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 onmy 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 thematerial 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

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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 offwith soap and water. So that would indicate tome almost that it's a latex. So when I saw that itwas 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 appropriatelybased on the information providedto it on the manufacturer's shipping containers. Had the cartons or even inner containers been properlymarked, labeled, or embossed with the WHMIS symbols, as required, TGI Freight would have properly declaredthem. 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 tiedby the regulations. However, there is flexibility in the regulations, much like there is flexibility in the FAA's decisions topursue investigations and fines or not, and flexibility inthe FAA's requirements of shippers. For example, 49 CFR 171.2(b) states: "each offerormay rely on informationprovidedby another offeror, unless that offeror knows or, a reasonable person, acting in the circumstance and exercising reasonable case, would have knowledge that the information providedbythe other offeror is incorrect." In other words, TGI has everyright to rely on the representations of the manufacturer. That was entirelyreasonable under the circumstances. Ultimately, it is the manufacturer's

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TEL:(907)276-5297 FAX:(907)276-5291 responsibilityto appropriatelymark 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 calledinMr. Clarkto confirmhis findings. [Id.] Mr. Clark reviewed both the tubes of expoxy and their shippingboxes for any indication that they

were hazardous, and did not even find anyminimummarking requirements for surface transportation. [See generally, TR. P.301-304.] TGI Freight was shippingboth 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 alsoTR. 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.]

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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 shrinkwrappedpallet as receivedbyAlaska Sand and Gravel. [TR. P. 323, lines 14-19.] It was neithermarked nor labeledproperly,

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 anythingbeyond relying on what a manufacturer represents on its product is a slippery slope, especially if the requirements are not containedwithin the regulations. To enforce what the FAA believes shouldhave been done: i.e. pull MSDSs to get additional information, even though such documents are not meant for shippingpurposes and are known to contain errors, wouldbe 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

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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 shipmentmethod 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 letterbe 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 andprejudicial. 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, inpart, they trap the innocent by not providing fair warning, and they impermissibly delegate basic policymatters to lower level officials for resolution on an ad In the Matter of TGI Freight Docket No. CP10NM0012 Page 7LAWOffiCEOF HOZUBIN &MOBERLY 310KSTREET,SUilE405 ANCHORAGE,AK99501

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 knowinglyviolate a regulation? Will the FAA require a shipper to confirmthrough 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 eachmust pull an OSHA document, that specifically states it is not to be reliedupon, to ascertain whether somethingmay ormay 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 8LAWOFFlCEOF HOZUBIN &MOBERLY 310KSlREET,SUITE405 ANCHORAGE,AK99501

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 abilityto 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 ofpracticality 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

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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 byTGI Freight, as is allowedby 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 shouldhave been levied. TGI Freight exercised reasonable care under the circumstances. DATED this 13thday ofMay 2013.

In the Matter of TGI Freight Docket No. CP10NM0012 Page 10 By: LAW OFFICE OF HOZUBIN &MOBERLY Attorneys for GI FreightLAWOFF1CEOF HOZUBIN &MOBERLY 310KSTREET,SUITE405 ANGIORAGE,AK99501

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 mailedto the following: Original Plus 1 Copy Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2Wl000 One Copy HowardL. Martin, Jr. Regional Counsel, Office of Regional Counsel, AAL-7 Alaskan Region Federal AviationAdministration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 Cheryl M. Jones, Sr. Attorney Office of Regional Counsel Alaska Region Federal AviationAdministration 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 JerseyAvenue, 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