U.S. Department ofTransportation Federal Aviation Administration Southern Region Office of the Regional Counsel

CERTIFIED- RETURN RECEIPT REQUESTED Hearing Docket Clerk P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX 

# RECEIVED AUG 2 52014 

## HEARING DOCKET FAA, AGC-430, Suite 2Wl000 Wilbur WrightBuilding 800 Independence Avenue, SW Washington, DC 20591

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# lf- 05Y0

Re: Inthe Matter ofDGW, Inc., d/b/aMelrose T-Top, Inti FAA Case No. 2013S0700205 Enclosed herewithplease find a copy ofa request for hearing andthe original and one copy of the Complaint in the above-referenced proceeding. The FAArequests that the hearing inthis matter be held inthe Louisville, KY area, and expects that the hearing will last one day. Please address all communications for the FAAto the undersigned, at: Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 SouthernRegion 1701 Columbia Avenue College Park, GA 30337 Telephone: (404) 305-5200, facsimile (404) 305-5223. Sincerely,

J' I / /;?".;::? 

# /;:/'12/J?/' '**,//':~-** _/ /t 1**~_~~/-··** CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel EnclosuresU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,

vs. DGW, Inc., d/b/aMelrose T-Top, Intl Respondent.

JUDGENOT YET ASSIGNED FAADocketNo.

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# 0Sy [p Judge

COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 C.F.R. 13 .208), and states as follows: I. OnJuly 29, 2014, Respondent, DGW d/b/aMelrose T-Top, Inc., was advisedthrough a Final Notice ofProposed Civil Penalty that the FAA proposedto assess a civil penalty in the amount of$38,500. On August 8, 2014, the Agency Attorney received a written request for a hearing from the Respondent. II. l. On or about March 13,2013, DGW d/b/aMelrose T-Top ("Melrose") knowingly offeredto UPS a one-piece shipment consisting ofa fiberboard box containing hazardous materials for transportationby air. 2. The above-mentioned shipmentwas assigned UPS Three Day Select tracking number/air waybill number lZ 617 489 12 6033 7371. The shipment was offered byMelrose for transportation to the consignee at 7717 Eagle Ridge Drive, SanDiego, CA 92119. 3. At all times mentionedherein, the above-mentioned shipment was not accompaniedby a Shipper's Certification or Declaration ofDangerous Goods. 4. The above-mentioned shipment was transportedto the UPS sort facility in Louisville, Kentucky.

### 5. On or about March 14, 2013, ground-handling personnel at the UPS sort facility discovered the above-mentioned shipment leaking. 6. The above-mentioned fiberboard box contained four (4) 1-gallon (3.785liter) metal containers ofGM Vehicle Care BlackReconditioning Paint (totaling 15.14liters), with metal lids, marked "DANGER! FLAMMABLE LIQUID AND VAPOR". 7. Further investigation showed that the entire contents ofthe one container had leaked into and through the fiberboard container. 8. (a) GM Vehicle Care BlackReconditioning Paint is classified as a hazardous material under the Department ofTransportation Hazardous Materials Regulations (HMR) ( 49 C.P.R.§ 172.101). (b) The proper shipping name ofthe material is Paint. It

### is in Hazard Class 3 (Flammable Liquid), Packing Group II, and has an assigned identification number ofUN1263. The proper label is Flammable Liquid. (c) The quantity ofGM Vehicle Care Black Reconditioning Paint in the fiberboard box exceeded the S-liter limit to be carried aboard a passenger aircraft. 9. Melrose offered the above-described shipment ofhazardous material for transportation by air without shipping papers that included: (a) the assigned identification number prescribed for each hazardous material; (b) the proper shipping name prescribed for each hazardous material; (c) the hazard class prescribedfor eachhazardous material; (d) the packing group prescribed for each hazardous material; (e) the total net mass per package ofeachhazardous material; and, (f) 

### the number and type ofpackages containing hazardous material. 10. Melrose offered the above-described shipment ofhazardous material for transportation by air and failed to: (a) certify that the materials were in accordance with the HMR (49 C.P.R. §§ 171, et seq.) by printing on the shipping papers the certification set forth in§ 172.204(a)(1), 172.204(a)(2), or§ 172.204(c) ofthe HMR; (b) prepare the required certifications in duplicate; and,

### (c) add to the certification required in this sectionthe following statement: "I declare that all ofthe applicable air transport requirements have beenmet." 11. Melrose offered the above-described shipment ofhazardous materials for transportation by air when: (a) the outer container was not marked with the proper shipping name ofeach hazardous material contained therein; (b) the outer container was not marked with the assigned identification number ofeachhazardous material containedtherein; (c) the outer container was marked Consumer Commodity, ORM-D, buthad no other markings; (d) a "FLAMMABLE LIQUID" label was not affixed to the outer container; and (e) a "CARGO AIRCRAFT ONLY" label was not affixed to the outer container. 12. Melrose offered the above-described shipment ofhazardous material for transportation by air and failed to make emergency response information available for use at all times the hazardous material was present. l3. Melrose offered the above-described shipment ofhazardous material for transportation by air and failed to make an emergencyresponse telephone number immediately available to the appropriate official person designated to respond to an incident involving a hazardous material, or who was conducting an investigation involving a hazardous material. 14. Melrose offered the above-described shipment ofhazardous material for transportation by air when the packaging was not designed, constructed, maintained, filled, its contents so limited, and closed, so that under conditions normallyincidentto transportation, there would be no identifiable release ofhazardous material to the environment. 15. Melrose offered the above-described combination package ofhazardous materials for transportationby air when the inner packagings were notpacked, secured, and cushioned to preventtheirbreakage or leakage and to control their movement within the outerpackaging under conditions normally incident to transportation. 16. Melrose offered the above-described shipment for transportationby air and failed to use stoppers, corks, or other such friction-type closures that were held in place securely, tightly and effectively by positive means.17. Park Place offered the above-described shipment ofhazardous material for transportation by air and failed to ensure that each ofits hazmat employees was trained in accordance withthe prescribed requirements as set forth in Section 172.704.

III. 18. Byreason ofthe above Melrose violated the following Department of Transportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations): 19 Section 171.2(e) inthat Melrose offered ortransported a hazardous material for transportation in commerce when the hazardous material was not properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorizedby applicable requirements ofthis subchapter, or an exemption, approval, orregistration issued under this subchapter or under subchapter A ofthis chapter. 20. Sections 172.200(a) and 172.202(a)(l) inthat Melrose offered ahazardous material for transportation and failed to describe the hazardous material on shipping papers including the identification number prescribed for the material as shown in Column 4 ofthe § 172.101 Table, in the manner required by this subpart. 21. Sections 172.200(a) and 172.202(a)(2) in that Melrose offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the proper shipping name prescribed for the material as shown in Column 2 ofthe§ 172.101 Table. 22. Sections 172.200(a) and 172.202(a)(3) inthat Melrose offered a hazardous material for transportation and failed to describe the hazardous material on shippingpapers including the hazard class or division number prescribed for the material as shown in Column 3 ofthe § 172.101 Table. 23. Sections 172.200(a) and 172.202(a)(4) inthat Melrose offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the packing group in Romannumerals, as designated for the hazardous material in ColumnS ofthe § 172.101 Table. 24. Sections 172.200(a) and 172.202(a)(6) inthat Melrose offered a hazardous material for transportation by aircraft and failed to describe the hazardous material on shipping papers showing the total mass perpackage, unless a gross mass is indicated in Columns (9A) or (9B) ofthe § 172.10I Table in which case the total gross mass perpackage must be shown; or, for Class 7 materials, the quantity ofradioactive must be shown by activity. 25. Sections 172.200(a) and 172.202(a)(7) inthat Melrose offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers indicating the number and type ofpackages (for example, "12 drums").26. Sections 172.204(a) or (c)(l) inthat Melrose offered a hazardous material for transportation and failed to certify that the material was offered for transportation in accordance with this subchapterby printing onthe shipping paper containing the required shipping description one ofthe certifications set forth inthis part. 27. Section 172.204(c)(2) in that Melrose offered a hazardous material to an aircraft operator for transportationby air and failed to provide two copies ofthe certificationrequired in this section. 28. Section 172.204(c)(3) in that Melrose offered for transportationby air a hazardous material authorized for airtransportation and failed to add to the certification required inthis sectionthe following statement: "I declare that all ofthe applicable air transport requirements have beenmet." 29. Section 172.30l(a) in that Melrose offered for transportation a hazardous material in a non-bulk packaging and failed to markthe package withthe proper shipping name and identification number (preceded by "UN" or "NA", as appropriate) for the material as shown in the §172.101 table. 30. Sections 172.300(a) and 172.312(a) in that Melrose offered hazardous material for transportation and failed to properly packthe package ofliquid hazardous material with closures upward and legibly markthe package with standard orientation markings, ontwo opposite vertical sides ofthe package with the arrows pointing inthe correct upright direction. 31. Section 172.400(a) inthatMelrose offered for transportation a hazardous material in one ofthe packages or containment devices listed inthis subpart and failed to label the package or containment device with the labels specified for the material inthe §172.101 Table and inthis subpart. 32. Section 172.600(c)(1) inthat Melrose offered for transportation a hazardous material and failed to make the emergencyresponse information conformingto this subpart immediately available for use at all times the hazardous material was present. 33. Section 172.600( c

)(2) inthat Melrose offered for transportation a hazardous material and failed to make emergency response information includingthe emergency response telephone number, immediately available to any government agency responding to an incident involving hazardous materials or conducting an investigation which involves ahazardous material. 34. Section 172.702(a) in that Melrose offered a hazardous material for transportation and failed to ensure that each ofits hazmat employees was trained in accordance with the requirements prescribed in this subpart.35. Section 173.24(b)(l) inthat Melrose failed to use a package which was designed, constructed, maintained, filled, its contents so limited, and closed, so that under conditions normally incidentto transportation, there would be no identifiable (without the use of instruments) release ofhazardous material to the environment. 36. Section 173.27(d) in that Melrose offered a package for transportationby air failed to ensure stoppers, corks or other such friction-type closures were held securely, tightly and effectively in place bypositive means, and that each screw-type closure on any packaging was secured to prevent closure from loosening due to vibration or substantial change in temperature. 37. Section 173.27(e) in that Melrose offered a package for transportationby air and failed to insure that except as otherwise provided inthis subchapter, liquid hazardous materials ofClass 3, 4, Division 5.1, 5.2 or 6.1, or Class 8 that are packaged and offered for transport in glass, earthenware, plastic or metal inner packagings were packaged using absorbent material as follows: (a) Packing Group I liquids on cargo aircraft, and Packing Group II liquids including Division 5.2 liquids on passenger and cargo aircraft, mustbe packagedusing a sufficient quantity ofabsorbent material to absorb the entire contents ofany one ofthe inner packagings containing such liquids. When the inner packagings are ofdifferent sizes and quantities, sufficient absorbent material must be used to absorb the entire contents ofthe inner packaging withthe greatest volume ofliquid. 38. Section 173.173 in that Melrose offered for transportation apackage containing paint when the §172.101 Table specified that it be packaged as prescribed under §173.202 ofthis part ifit is a Packing Group II material or §173.203 ofthis part ifit is a Packing Group III material. 39. Pursuantto 49 U.S.C. Section 5123(a), Melrose is subjectto a civil penalty not lower than $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 if death, serious illness, severe injury, or substantial property damage results), for each violation of the Department ofTransportation Hazardous Materials Regulations. 40. Under the facts and circumstances ofthis case, a civil penalty of$38,500 is appropriate.WHEREFORE, the Agency, by counsel respectfully requests that the Administrative Law Judge enter an order that Respondent be assessed a civil penalty inthe amount of$38,500. Respectfully submitted this**---r~---r'-** day ofAugust, 2014.

CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel PLEASE NOTE: Pursuantto Title 14 CPR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motion to Dismiss ifappropriate, not later than 30 days after the date shown onthe Certificate ofService whichfollows. CERTIFICATE OF SERVICE I hereby certifythat a copy ofthe foregoing Complainthasbeen mailedthis date by Certified Mail, Return Receipt Requested, to the following: Hearing Docket Clerk FAA, AGC-430, Suite 2W1000 Wilbur Wright Building 800 Independence Avenue, SW Washington, DC 20591 Richard L. Williams Griffin Williams LLP 501 W. State Street Suite 203 GenevaIllinois 60134

# ~gl;s Program Analyst

Dated (original + 1 copy)

# Griffin Williams LLF

August 5, 2014 

### Via**Fede~al**

### Express Federal Aviation Administration Attn: Hearing Docket Clerk 600 Independence Avenue SW Wilbur Wright Building Suite 2W1000 Washington, DC 20591 Re: Request for Hearing FAA Case No. 2013S0700205 Dear Hearing Docket Clerk: 

### AUG

- 8 Attorneysand Coum;elors atL.sn'\1

Richard L. Williams Direct: (630) 457-1205 rwilliams@gwllp]aw.com

Please be advised that our firm represents D G W., Inc., d/b/a Melrose I Top. Reference is made your cmrespondence dated July 29, 2014 entitled "Final Notice of Proposed Civil Penalty" addressed to "President, Melrose T-Top, 100 W. Ellwalk, Cortland, IL 60112." In accordance with Section 13.16 ofthe Federal Aviation Regulations (14 C.F.R. §13.16), D G W, Inc. hereby requests a formal hearing inthis matter.

RichaM\

## William~ Enc. )

cc: 

### Via CertifiedMail, ReturnReceiptRequested Christopher R. Stevenson, Esq. Office ofthe Regional General Counsel Federal AviationAdministration Southern Region P.O. Box20636 Atlanta, Georgia 30320 G[W • 501 W. State Street, Suite 203 •Geneva • Illinois • 60134 • ph: 630.457.1205 •fax: 630.262.0644 www.gwllplaw.com

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GRANT OFAUTHORITY I, the undersigned, certifY that I am the President ofD G W, Inc., an Illinois corporation, and hereby authorize my attorney, Richard L. Williams of GriffiniWilliams LLP, 501 W. State Street, Suite 203, Geneva, Illinois 60134, to file the above referenced Request for Hearing. I do here further authorize and direct all further communications regarding FAA Case No. 2013S0700205 to be served upon Richard L. Williams.

SUBSCRIBED AND SWORN to before me this

# .5iJ-. day ofAugust, 2014

# ~cl/J~ Notary Public (j

- D G

### W,,I/1/b/~;r/eF'op

# -~ii:&~.lf'_L_ __ By David Wiehle, President