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### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC**:·};:p~R-r/·.JFNT** 

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## OPERATION.S
************************************ 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 ofthe 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 ofPractice inFAA

### Civil Penalty Actions (14 C.P.R.§ 13.230(c)), 

### Complai.nant, by and

### through the undersigned**counsel~** hereby files this Post-Hearing BriefofClosing Argument. 

### PROCEDURAL BACKGROUND On June 24, 2011, Complainant filed its 

### Complaintin this matter alleging 

### that Respondent violated numerous provisions ofthe hazardous materials regulations, 

### (HMR), Title 49 ofthe 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 ofthe boxes contained eight small fiberboard boxes. Each small box contained 50 Ruyan 

### Rapp E·Mysticks or Ruyan E-MystickMenthol (Mystick). 

### In total there 

### were approximately 

### 2000 Ruyan Rapp E-Mysticks inthe shipment. Each

### Mystick consisted of

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2

an Atomizerthat contained 1.5 ml offlammable liquid.• Lobelia, Ethanol, Propylene Glycol and flavoring. The piece also included an airflow**sensor~** a LED, a safety device and aprimary lithium battery. The Respondent offered tb.e shipmentto 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 ithad 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 airwaybill (A\VB) 86714095292. 

### 2. The consignee wasRuyan America Inc., (RAI), 5550 NicolletAve., 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 fire10/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL

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 (AWB) 86714095292. 6. Tile shipmentunderA \VB 86714095292was a5piece shipmentcontainingapproximately 2000Ruyan Rapp E-Mysticks. EachE-Mystickcontained. 1.5m1 ofaClass 3flammable liquid,**Alcohol~**n.o.s., UN 1987,Packing Group 

## m, and aPrimaryLithium 

### BattezyDevice. PAGE 04/15
3

7. The material within the shipment is classified as hazardous materials under Section 172.101 ofthe Hazardous Materials Regulations. ThepropershippjngnameisLithiwn. metal batteries contained inequipment, UN 3091, Class 9, Packing Group II. These hazardCM; materials shipments

### werenot**dec1~**packaged, marked orlabeledas containinghazardous materials. 8. The Primary

### Lithiwn Battery contained.inthe E-Mystickweighed 19g. The E-Mysi'icki.s a forbidden materialthatmaynotbetransported by rur. 9, Therewereno 

### markings orlabels onanyof thepackagesto indicatethatthey

### C0'1tained 

### hazardous materialsorlithitnn

### ba.tt.erl.es. 10. The shippingpaper

### wasmarked'11o" inresponsetothe question, "Doesthe shipmentcontain dangerous 

### goods". 11. DPC offered the above-described hazardous material for transportation 

### in air
commerce and it was not proper.ly labeled ormarked. 12. DPC offered the above-described hazardous material for transportation in air
commerce and 

### itwas not properly packaged. 13. DPC offered the above-described hazardous material for transportation in air
conunerce without proper shipping papers.10/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL

14. DPC offered. the above-describedhazardous 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 identificationnumber. 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 whenthey did notproperly train their hazmat employees in accordance with the requirements ofthe hazardotls materials regulati.ons. 

### 1.8. DPC offered the above-described hazardous material for transportation in air
commerce when they did 

### not properlypackage the shipment in packagingthat 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 ofthe facts stated above. FAA contends that D&M Custom Injection Molding Corporation (D & M) violated the 

### fol1owing Department 

### ofTransportation Hw..ardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations): PAGE 05/15
410/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL

a) 49 CFR §171.2(e), which states inrelevant part that, no personmay 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, orregistration issued underthis subchapter or subchapter A of this chapter. b) 49 CFR § 172.200(a), which states inrelevantpartthat, eachperson wb.o offers a hazardous material for airtransportation mustdescribe that hazardous material on the shippingpaper as required. c) 49 CFR § 172.204(a), which states in relevant partthat, eachperson that offers a hazatdous material for ai.r transportation shall certifY that the material is offered for transportation in accordance withprescribedregulations. d) 49 CFR § 172.301(a), which states inrelevant 

### part, each person who offers a ha?..ar.dous material for transportation in non-bulk packaging mustmark thepackage with the proper shipping name and identificationnumber (preceded

### by UN orNA, as appropriate) for the material as shown inthe § 172.101 Table. e) 49 CFR § 172.400(a), which states inrelevant part that, each personwho offers for air 

### transportation or

### transports a hazardous**material~** shall label the package or containmentdevice with labels specified for the material in the § 172.l01 Table. :f) 49 CFR § 172.600(c)(2), which states 

### in. relevantpart, no person. to whom this subpart applies may offerfor 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 ofa Federal State PAGE 06/15


### 510/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL

ofLocal 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 ofits hazmat employees is trained in accordance with the requirements prescribed inthis subpart. PAGE 07/15
6

h) 49 CPR§ 172. lOl(h), which states inrelevant 

### part, that Column 7 specifies codes for special provisions applicable to hazardous materials. When Column 7 refers to a special provision for 

### ahazardous materi.al, the meaning and requirements ofthat special provjsion 

### are as 

### set forth. in §

### 172.102 ofthis subpart. i) 

### 49 CFR § 

### 172. 312(a)(2), which states in relevant 

### part, that except 

### as provided 

### i.n this section, eachnon-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 ofrefrigerated 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 ofthe package with the arr.ows pointing in the correct upright direction. The arrows must be either black or red on white orother suitabl.e contrasting backgroWld and commensurate with the size ofthe 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 ofhazardous materials that is n.otprepared in accordance with this subchaptermay not be offered for transportation by air. k) 49 CFR § 173.21(c), which states inrelevant part that, unless othervvise provided. in this subchapter, the offering for transportation or transportation ofthe following is forbidden: (c) e]ec::trical devices, such as batteries and battery-powered. devices, which are10/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL

likelyto create sparks or generate a dangerous evolution ofheat, unless packaged in

### a.
manner whichprecludes such an occurrence. 1) 49 CFR § 173.24(b)(1), which states in relevant

### part that, eachpackage used for the shipment ofhazardous materials un.derthis 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 ofinstruments) release ofhazardou.s materia]s to the environment. PAGE 08/15
7

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 atthe Minneapolis/St. Paul International Airport. He was informed that a fire had occurred on a Federal Express Aircraft as it landed atthe 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 ofpictures ofthe 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 ofthe shipment that was visible in each picture. Tr. 20- 23 He discussed that the fire was caused bythe Mystick when they generated a10/09/2012 14:55 8472948293 FAA AGL 7 COUNSEL PAGE 09/15


### 8 dangerous quantityofheat and that the E-Mysticks were the source ofthe fire, Tr. 27 He further explained that D & M was hired to assemble theproduct, pa.ckage and ship the EMysticks. Tr. 31 D& M mixedthe 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 onto explain that these respective flashpoints are considered to be Class 3 flammable liquid and thereforeregulated byHMR. 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, cattierdamage 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 onto state that he next calculated the amount ofappropriate sanction and used. the Federal Aviation. Administration Order, 2150. 3B, Appendix C. He explainedthe factors that are taken into consideration when. determinin.g the appropriate amouo.t ofsanction 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, whetherthere was any damage, injury orillness associate with the violation.. Tr. 35 Mitigatingfactors are also taken into consideration and he stated that inthis case he did considerthe mitigating factor that D&M relied upon information provided. to them byRuyan America. Tr. 36 The maximum amount of

### civil penalty that could be assessed agai.nst D&Mwould 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 shipmentwas undeclared and that is was a forbidden material. The shipment10/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL PAGE 10/15
9 consisted ofa large quantity ofprimary lithium batteries which are forbidden in large quantities because they generate a dangerous quantity ofheat. 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 crewhad no infonnati.on regarding the hazardous material on board. 

### They had no knowledge 

### ofits presence or where the shipment was located in the aircraft. 

### Tr. 37. In this 

### case, the first responders did not know what and ifthere were hazardous materials involved inthe fire. Tr. 38. The type and quantity ofa. hazardous material is extremely importantfor :first responders to know 

### because differenthazardous 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 behalfofthe 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 inspectedthe company and talked to various employees who infonnedhim 

### ofthe assembly process ofthe E-Mysticks. Tr. 48 He explained that he learned that D&M received each ofthe solutions that make up the final liquid. mixture separately. D&Mmixed 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 ofthe constituents, ethanol and lobelia were considered to be Class 3 flammable liquid. Tr. 49 He also explained that the other component ofthe Mystick was the primary lithium battery. Primary lithium batteries

# are regulated due to its propensity to generate a dangerou.s amount ofheat. He explained that the amount ofthe lithium batteries is Jim.ited10/09/2012 14:55 8472948293 FAA AGL 7 COUNSEL PAGE 11/15
10 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 shippedto D&M and were received on August 4, 2009. Tr. 52 This is significant because the teceiving fonn. indicated that D&M inspectedthe incoming shipment and it stated jtwas 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$168 1000 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 ofthe 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 ofthe violation, the degree ofculpabUity ofthe violator, any history ofpastviolations, 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 ofthe case. Finally, a matrix is used to further narrow the penalty range. Underthe current policy, the first category offactors (nature, circumstances, extent, and gravity ofthe violation) analyzes the nature ofthe material itselfand the potential dangers it presented. This case involved flammable liquids assembled and. packaged with lithium batteries. The shipment was undeclared and the quantity limits10/09/2012 14:55 8472948293 FAA AGL 7 COUNSEL PAGE 12/15
11

cause itto 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 aircommerce caused a fire while the aircraft was in the airpreparing to land. The :6re is an extreme aggravation 

### and shows the gravity and nature ofthe violation
.. Next, the policy requires the FAA to consider the vlolator's degree 

### ofculpability. 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 knewthat theEMysticks that they were assembling 

### and shipping contained aprimary lithium battery in each one ofthe E-Mysticks. 

### A reasonable company 

### would. understand each one ofthe components ofthe product thatthey are assembling and/or manufacturing an.d should use due care to be sure that any shipment ofthe product is done in. accordance withthe 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 aFederal Express aircraft. The shipment that caused the fire was not only forbidden to tr.avelon an aircraft, but itwas aJso undeclared. The hazardous materials were not described on a shipping paper, there
was no shipping certification, thepackages were not marked wi.th a warning that lithium batteries and flammable liquids were in the packages, tltere was not shippers certification.) emergencyresponse infonnation and the person who packaged the shipment was not trained in the hazardous materia1s regulations. D&M's shipment offorbidden. materi.al in violation ofthe 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$168,000.10/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL PAGE 13/15 

### 12
CONCLUSION The transportation. ofhazardous materials is inherently dangerous. A hazardous material is defined in the HMRs as "asubstance 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 ofinherently dangerous materials 

### such as hazardous materials have a very high duty ofcare. This case involves flammable liquids that were assembled. with primary lithium batteries. The productwas then packaged in fiberboard boxes thathad n.ot been tested to
ensure that the boxes could maintain thejr. integrity during the transportation ofthe 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 ofthe aircraft. If this information is missing the shipment will not be treated with the care necessary of hazardous materl.als and in the event ofa release ofthe hazardous materials the various people handling the shipment 

### wi.ll not knowhowto 

### safely remed-y the situation. As explained in detail**above~** Respondent had the knowledge, or ifit exercised reasonable care, would have had. knowledge that these shipments did not comply with the hazardous materials regulations. Underthe 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 ofOctober, 2012.10/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL PAGE 14/15
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Attorney Office ofthe Regional Cotmsel**~** 10/09/2012 14:56 8472948293 FAA AGL 7 COUNSEL PAGE 15/15
14 CERTIFICATE OF SERVICE I herebycertifythat the foregoing PJst -HearingBriefofClosing Argwnenthas beenfaxed andmailedbyFederal 

### Express to

# thl following: The 

### Honorable Richard C.

# Goodj Administrative LawJudge Office ofHearings, M-50 

### Room 5411 U.S. Department ofTransportation 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