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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

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************************************ 

Federal Aviation. Administration 

Complainant 

v. 

* 

* 

* 

* 

T IS 

* FAA Docket No. CPllGLOOOO 

D & M Custom Injection 

Moldjng Corporation 

Respondent 

* 

* 

* 

"' ****•******************************** 

Judge Richard C. Goodwin 

DMS No. FAA"2011-0679 

POST-HEARING BRIEF OF CLOSING ARGUMENT 

At the conclusion of the August 9, 2012 hearing~ the Honorable Judge asked the 

parties to file briefs on the issues. Pursuant to Section 13.230(c) ofth.e Rules of Practice 

in FAA Civil Penalty Actions (14 C.P.R.§ 13.230(c)), Complai.nant, by and through the 

undersigned counsel~ hereby files this Post-Hearing Brief of Closing Argument. 

PROCEDURAL BACKGROUND 

On June 24, 2011, Complainant filed its Complaint in this matter alleging that 

Respondent violated numerous provisions of the hazardous materials regulations, (HMR), 

Title 49 of the Code of Federal Regulations (49 CFR), specifically regulations under parts 

172-173, arising :from an undeclared shipment consisting of five large fiberboard bo:x:es . 

Each of the boxes contained eight small fiberboard boxes. Each small box contained 50 

Ruyan Rapp E·Mysticks or Ruyan E-Mystick Menthol (Mystick). In total there were 

approximately 2000 Ruyan Rapp E-Mysticks in the shipment. Each Mystick consisted of 

2: 25 
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an Atomizer that contained 1.5 ml of flammable liquid .• Lobelia, Ethanol, Propylene 

Glycol and flavoring. The piece also included an airflow sensor~ a LED, a safety device 

and a primary lithium battery. The Respondent offered tb.e shipment to Federal Express 

for transportation by air o.n or about August 13, 2009. The FAA sought a civil penalty in. 

the amount of$168~000. On December 16~ 2011, the Court issued an Order Limiting 

Hearing to Sanction based upon the Complainant's Motion to Deem Allegations 

Admitted and the Respondent's Response on November 28, 2011, that stated it had no 

objections to limiting the hearing to sanction. On August 9, 2012. a hearing on the 

sanction was held in Chicago, Illi.nois. This brief serves as the closing argtun.ent for the 

Complainant. 

STATEMENT OF THE CASE 

Complaint 

The FAA's Complaint contained the following factual allegations and. regulatory 

violations: 

t. On or about August 1.3, 2009, D & M Plastics Corporation (DPC) offered an 

undeclared and forbi.dden hazardous materials shipment next day air to Federal 

Express (Fed Ex) under air waybill (A \VB) 86714095292. 

2. The consignee was Ruyan America Inc., (RAI), 5550 Nicollet Ave., Minneapolis, 

MN 55419. 

3. 1lle shipment was transported on flight #1718, from Indianapolis International 

Airport (IND), to Minneapolis-St. Paul International Aitport (MSP). 

4. Upon arrival at MSP, on August 14, 2009, the Fed Ex flight crew reported a cargo 

fire warning light that appeared during landing. The crew discharged the fire 
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suppression agent and taxied to the Fed Ex gate. The MSP Fire Department 

responded and extinguished the fire that was discovered in an LD3 container. 

5. After an. investigation it was discovered the fire started in a Unit Load. Device and 

was caused by the shipment under air waybill (A WB) 86714095292. 

6. Tile shipment under A \VB 86714095292 was a 5 piece shipment containing approximately 

2000 Ruyan Rapp E-Mysticks. Each E-Mystick contained. 1.5m1 of a Class 3 flammable 

liquid, Alcohol~ n.o.s., UN 1987, Packing Group m, and a Primary Lithium Battezy Device. 

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7. The material within the shipment is classified as hazardous materials under Section 

172.101 ofthe Hazardous Materials Regulations. ThepropershippjngnameisLithiwn. 

metal batteries contained in equipment, UN 3091, Class 9, Packing Group II. These hazardCM; 

materials shipments were not dec1~ packaged, marked or labeled as containing hazardous 

materials. 

8. The Primary Lithiwn Battery contained. in the E-Mystick weighed 19g. The E-Mysi'ick i.s a 

forbidden material that may not be transported by rur. 

9, There were no markings or labels on any of the packages to indicate that they C0'1tained 

hazardous materials or lithitnn ba.tt.erl.es. 

10. The shipping paper was marked '11o" in response to the question, "Does the shipment contain 

dangerous goods". 

11. DPC offered the above-described hazardous material for transportation in air 

commerce and it was not proper.ly labeled or marked. 

12. DPC offered the above-described hazardous material for transportation in air 

commerce and it was not properly packaged. 

13. DPC offered the above-described hazardous material for transportation in air 

conunerce without proper shipping papers. 
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14. DPC offered. the above-described hazardous material for transportation in air 

conunerce without a certification that the material is offered for transportation in 

accordance with prescribed :regulations. 

15. DPC offered the above-described hazardous material for transportation in air 

commerce without marking the package with the proper shipping name and 

identification number. 

16. DPC offered the above-described hazardous material for transportation in air 

commerce without the emergency response information., including the emergency 

response telephone number. 

17. DPC offered the above-described hazardous material for transportation in air 

commerce when they did not properly train their hazmat employees in accordance 

with the requirements of the hazardotls materials regulati.ons. 

1.8. DPC offered the above-described hazardous material for transportation in air 

commerce when they did not properly package the shipment in packaging that were 

designed and -constructed to prevent leakage that may be caused by changes in 

altitude and temperature during transportation aboard aircraft. 

19. DPC offered the above~described hazardous material for transportation in air 

commerce when the hazardous material was forbidden. 

Because of the facts stated above. FAA contends that D&M Custom Injection 

Molding Corporation (D & M) violated the fol1owing Department of Transportation 

Hw..ardous Materials Regulations (Title 49 of the Code of Federal Regulations): 

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a) 49 CFR § 171.2( e), which states in relevant part that, no person may offer or accept a 

hazardous material for transportation in commerce unless the hazardous material is 

properly classed, described, packaged, marked, labeled, an.d in condition for shipment as 

required or authorized by applicable requirements of this subchapter or an exemption. or 

special permit, approval, or registration issued under this subchapter or subchapter A of 

this chapter. 

b) 49 CFR § 172.200(a), which states in relevant part that, each person wb.o offers a 

hazardous material for air transportation must describe that hazardous material on the 

shipping paper as required. 

c) 49 CFR § 172.204(a), which states in relevant part that, each person that offers a 

hazatdous material for ai.r transportation shall certifY that the material is offered for 

transportation in accordance with prescribed regulations. 

d) 49 CFR § 172.301(a), which states in relevant part, each person who offers a 

ha?..ar.dous material for transportation in non-bulk packaging must mark the package with 

the proper shipping name and identification number (preceded by UN or NA, as 

appropriate) for the material as shown in the § 172.101 Table. 

e) 49 CFR § 172.400(a), which states in relevant part that, each person who offers for 

air transportation or transports a hazardous material~ shall label the package or 

containment device with labels specified for the material in the § 172 .l 01 Table. 

:f) 49 CFR § 172.600(c)(2), which states in. relevant part, no person. to whom this subpart 

applies may offer for transportation, accept for transportation, transfer, store or otherwise 

handle during transportation in a hazardous material unless: emergency response 

information, including the emergency response telephone number, required by this 

subpart is immediately available to any person who, as a representative of a Federal State 

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of Local government agency, responds to an incident involving a hazardous material, or 

is conducting an investigation which involves hazardous material. 

g) 49 CFR § 172. 702(a), which states in relevant part, a hazmat employer shall ensure 

that each of its hazmat employees is trained in accordance with the requirements 

prescribed in this subpart. 

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h) 49 CPR§ 172. lOl(h), which states in relevant part, that Column 7 specifies codes for 

special provisions applicable to hazardous materials. When Column 7 refers to a special 

provision for a hazardous materi.al, the meaning and requirements of that special 

provjsion are as set forth. in § 172.102 of this subpart. 

i) 49 CFR § 172. 312(a)(2), which states in relevant part, that except as provided i.n this 

section, each non-bulk combination package having inner packaging containing liquid 

haza:r.dous materials, single packaging fitted with vents, or open cryogenic receptacle 

intended for the transport of refrigerated liquefied gases must be: (2) legibly marked with 

package orientation markings that are similar to the illust-ration shown in this paragraph, 

on two opposite vertical sides of the package with the arr.ows pointing in the correct 

upright direction. The arrows must be either black or red on white or other suitabl.e 

contrasting backgroWld and commensurate with the size of the package. Depjcting a 

rectangular border around the arrows is opti.onal. 

j) 49 CFR § 173.l(b), which states in relevant part that, a shipment of hazardous 

materials that is n.ot prepared in accordance with this subchapter may not be offered for 

transportation by air. 

k) 49 CFR § 173.21(c), which states in relevant part that, unless othervvise provided. in 

this subchapter, the offering for transportation or transportation of the following is 

forbidden: (c) e]ec::trical devices, such as batteries and battery-powered. devices, which are 
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likely to create sparks or generate a dangerous evolution of heat, unless packaged in a. 

manner which precludes such an occurrence. 

1) 49 CFR § 173.24(b)(1), which states in relevant part that, each package used for the 

shipment of hazardous materials un.der this subchapter shall be designed, constructed, 

maintained, filled, its contents so limited. and closed, so that under conditions normally 

incident to tran.sportation (I) except as otherwise provided in this subchapter, there will 

be no identifiable (without the use of instruments) release ofhazardou.s materia]s to the 

environment. 

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m) 49 CFR § 173.27©(1), which states in relevant part that, packagings must be designed 

and constructed to prevent leakage that may be caused by changes in altitude and 

temperature during transportation aboard aircraft. 

ARGUMENT 

Th.e FAA presented two witnesses during the hearing. The first witness that testi.fied 

before the court was FAA Security Specialist, Joseph Sanders (Sanders). Sanders 

testifi.ed that on or about August 14, 2009, he investigated a hazardous materials incident 

at the Minneapolis/St. Paul International Airport. He was informed that a fire had 

occurred on a Federal Express Aircraft as it landed at the airport. Tr. 16. Pursuant to the 

investigation Sanders discovered that the fire was caused by a five piece shipment of 

Ruyan. Wrap E-Mysticks shipped from D& Min Burlington, Illinois. Tr. 18 and 26. 

Sanders explained that the he took a multitude of pictures of the shipment and fire 

damage that it caused. He went through and described in detail the fire damage to the 

Unit Load Device that contained the shipment and the fire. San.ders also described the 

fire damage to the produ.cts and the rest of the shipment that was visible in each picture. 

Tr. 20- 23 He discussed that the fire was caused by the Mystick when they generated a 
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dangerous quantity of heat and that the E-Mysticks were the source of the fire, Tr. 27 He 

further explained that D & M was hired to assemble the product, pa.ckage and ship the EMysticks. Tr. 31 D& M mixed the liquid ingredients together to form the fi.nalliquid. 

The finalliqui.d that was placed in theE- Mysticks had a flash point of93 degrees 

Fahrenheit for the regular and 94 degrees for the menthol. Tr. 31 He went on to explain 

that these respective flashpoints are considered to be Class 3 flammable liquid and 

therefore regulated by HMR. 

Sanders discussed the damage that incurred due to the fire on board the aircraft. 

He explained the i.ncident report completed b~ Federal Express listed. the material loss of 

$15,000, cattier damage of $1. 0,000, property damage of $1 0,000, response costs of 

$1,000. and clean-up costs of$1,000. Tr. 33 He went on to state that he next calculated 

the amount of appropriate sanction and used. the Federal Aviation. Administration Order, 

2150. 3B, Appendix C. He explained the factors that are taken into consideration when. 

determinin.g the appropriate amouo.t of sanction which includes the circumstances, the 

extent, the nature and the gravi.ty ofthe violation., and the quantity ofmateri.al i.nvolved in 

the viola.tion. Additionally, whether there was any damage, injury or illness associate 

with the violation.. Tr. 35 Mitigating factors are also taken into consideration and he 

stated that in this case he did consider the mitigating factor that D&M relied upon 

information provided. to them by Ruyan America. Tr. 36 

The maximum amount of civil penalty that could be assessed agai.nst D&M would 

be $195~000. Tr. 36 Sanders explained that the FAA assessed the amount of$168~000 

due to taking into consideration both the mitigating and aggravating circumstances. 

The aggravati.ng circumstances were the fire and damage caused by the fire. The fact that 

the shipment was undeclared and that is was a forbidden material. The shipment 
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consisted of a large quantity of primary lithium batteries which are forbidden in large 

quantities because they generate a dangerous quantity of heat. Tr. 37. He stated that 

having an undeclared forbidden ha7..ard.ous materials shipment is a signjficant aggravating 

factor because when a shipment is undeclared it is not recorded in the notice to pilot in 

command. The flight crew had no infonnati.on regarding the hazardous material on 

board. They had no knowledge of its presence or where the shipment was located in the 

aircraft. Tr. 37. In this case, the first responders did not know what and if there were 

hazardous materials involved in the fire. Tr. 38. The type and quantity of a. hazardous 

material is extremely important for :first responders to know because different hazardous 

materials are treated differently. A fire retardant for one material m.ay be an accelerant 

for another, thus knowing wl1at the hazardous material is monumental in respondi.ng to a 

fire involving a hazardous material. 

The second witness that testified on behalf of the FAA was Ha?...a.rdous Material 

Specialist, Chris Zawarus (Zawarus). Tr. 45. He testified that he went to D&M to 

conduct an inspection pursuant to the pending in.vesdgation relating to the incident i.n 

question. Tr. 47 He inspected the company and talked to various employees who 

infonned him of the assembly process of the E-Mysticks. Tr. 48 He explained that he 

learned that D&M received each of the solutions that make up the final liquid. mixture 

separately. D&M mixed the solution and. placed it into the E~Mysticks. Tr. 48 He was 

informed through the MSDS that were provided. to him from D&M that the two of the 

constituents, ethanol and lobelia were considered to be Class 3 flammable liquid. Tr. 49 

He also explained that the other component of the Mystick was the primary lithium 

battery. Primary lithium batteries are regulated due to its propensity to generate a 

dangerou.s amount of heat. He explained that the amount of the lithium batteries is Jim.ited 
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due to tllis propensity and further that the shipment in question exceeded the quantity 

limitations and therefore was forbidden to tr.avel by ai.r commerce. Tr. 50 

Zawarus testified that the primary lithium batteries were shipped to D&M and were 

received on August 4, 2009. Tr. 52 This is significant because the teceiving fonn. 

indicated that D&M inspected the incoming shipment and it stated jt was a battery 

assembly. He further testified that the five packages offered by D&M exceed the 

quan.tity limitation allowable for transportation by air. Tr. 53. Zawarus explained that 

shipping a forbidden material is considered an aggravating factor. He also stated that the 

requested civil penalty .of $1681000 falls within the 2150.3B guidance aud could have been 

as high as $195,000. Tr. 54 

The FAA is seeking a penalty of $168,000. The current FAA policy went in.to 

effect on April 21, 1999. (Prior to that time a "totality of the circumstances'' approach 

was used.) The policy is published as Ch.ange 26 to FAA Order 21 S0.3B (Attached). 

Under this policy, a civil penalty is determined by analyzing the statutory factors present 

in 49 U.S.C. 5213(a) including the nature~ circumstances, extent, and gravity of the 

violation, the degree of culpabUity of the violator, any history of past violations, the 

ability to pay, any effect on the ability to continue to do business, and other. :matters as 

justjce may req.uire. The statutory factors are then given a specific weight to determine 

the aggregate weight of the case. Finally, a matrix is used to further narrow the penalty 

range. 

Under the current policy, the first category of factors (nature, circumstances, 

extent, and gravity of the violation) analyzes the nature of the material itself and the 

potential dangers it presented. This case involved flammable liquids assembled and. 

packaged with lithium batteries. The shipment was undeclared and the quantity limits 
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cause it to be forbidden for transport in. air commerce. Un.der the current policy this 

material is classified as a ~'Category A" material carrying a. "maximum" final aggregate 

weight. The hazardous material that was offered and shipped in air commerce caused a 

fire while the aircraft was in the air preparing to land. The :6re is an extreme 

aggravation and shows the gravity and nature of the violation .. 

Next, the policy requires the FAA to consider the vlolator's degree of culpability. 

In this case, D&M mixed the liquid solutions together to create the flammable liquid. 

mixture that went into the final product. D&M should have known that the liquids that 

they were working with and mixing together were hazardous materials and thus required 

to be shipped withi.n the limits ofthe HMR. Additionally, D&M knew that theEMysticks that they were assembling and shipping contained a primary lithium battery in 

each one of the E-Mysticks. A reasonable company would. understand each one of the 

components of the product that they are assembling and/or manufacturing an.d should use 

due care to be sure that any shipment of the product is done in. accordance with the HMR. 

D&M shipped. a forbidden material and it traveled in ai.r commerce where it 

ultimately caused a fire and severe property damage to a Federal Express aircraft. The 

shipment that caused the fire was not only forbidden to tr.avelon an aircraft, but it was 

aJso undeclared. The hazardous materials were not described on a shipping paper, there 

was no shipping certification, the packages were not marked wi.th a warning that lithium 

batteries and flammable liquids were in the packages, tltere was not shippers certification.) 

emergency response infonnation and the person who packaged the shipment was not 

trained in the hazardous materia1s regulations. D&M's shipment of forbidden. materi.al 

in violation of the HMR caused a fire and for this reason, in conjunction with the above 

aggravating factors, D&M should be assessed a civil penalty in the am.ount of$168,000. 
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CONCLUSION 

The transportation. of hazardous materials is inherently dangerous. A hazardous 

material is defined in the HMRs as "a substance or material that the Secretary of 

Transportati.on has determined is capable ofposin.g an unreasonable risk to health, safety, 

and property when transported in commerce", and has been so designated. 49 C.F .R. 

§ 171 .8. Therefore, shippers of inherently dangerous materials such as hazardous 

materials have a very high duty of care. 

This case involves flammable liquids that were assembled. with primary lithium 

batteries. The product was then packaged in fiberboard boxes that had n.ot been tested to 

ensure that the boxes could maintain thejr. integrity during the transportation of the 

hazardous material. The shipment was undeclared and forbidden to travel in air 

commerce. The missing infonnation on an undeclared package is significant and 

necessary to the various people handling the shipment and to the pilots of the aircraft. If 

this information is missing the shipment will not be treated with the care necessary of 

hazardous materl.als and in the event of a release of the hazardous materials the various 

people handling the shipment wi.ll not know how to safely remed-y the situation. 

As explained in detail above~ Respondent had the knowledge, or if it exercised 

reasonable care, would have had. knowledge that these shipments did not comply with the 

hazardous materials regulations. Under the circumstances, the proposed civil penalty is 

generous. 

WHEREFORE, Complainant requests the Administrative Law Judge to fix the civil 

penalty at the requ.ested amoWlt of$168,000. 

Respectfully submitted this 2tb. day of October, 2012. 
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Attorney 

Office of the Regional Cotmsel 
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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing PJst -Hearing Brief of Closing Argwnent has been faxed 

and mailed by Federal Express to thl following: 

The Honorable Richard C. Goodj Administrative Law Judge 

Office of Hearings, M-50 

Room 5411 

U.S. Department of Transportation 

400 Seventh Street, SW 

Washington, DC 20590 

FAX: (202) 366-7536 

And by CERTIFIED MAIL to: 

Mr. Scott Hagen 

Vice President 

D&M Custom Injection Molding C rporation 

150 French Road 

P.O. Box 158 

Burlington, IL 60109 

Fax: 847-683-2731 

Hearing Docket 

FAA, AGC-400 

600 Independence Ave., SW 

Room2014 

Washington, DC 20590 

FAX: (202) 493-5020 

TEL: (202 385-8229