10/2(1/2011 15:44 FAX 2024935142 FAA - OMS 0001/01 2 

Q 

U.S. Department 

of Transportation 

iq^ARTt^pip F 

:i-:ANSPOSvestern|p^acific Region 

^Ci^b • OFbtftceiof'the Regional Counsel 

P.O. Box 92007 

Los Angeles. CA 90009-2007 

Federal Aviation 

Administration 

Telephone; (310)725-7105 

m Facsimile (310)725-6816 OCT 25 A ^^ 1^ 

OCT .1 4 2011 

!• ACSIMTLE AND CERTIFIED MAIL - RETURN RECFTPT REQUESTED 

Federal Aviation Administratidn l^^El^FIl/F" ^f 

Hearing Docket Clerk, AGC-430 •m^\^E»IWfc»l^ 

Wilbur Wright Building, Suite 2Wl 000 QQ | 2 \ 2(NI 

800 Independence Ave. S.W. •iCArfct 

Washington. DC 20591 HEARING DOCKET 

rax:202-493-5M2 ^^//W// / 

Re: In the Maner of M & M Tanks. Inc.; Case No. 2010WP700010 

Enclosed is a copy ofa request for hearing post marked October 3, 2011, and the original 

and one copy of the Complaint in the above-relerenced proceeding. 

1 request that the hearing in this mailer be held in the Los Angeles. California area, and 

expect that the hearing will last one (I) day. 

Please addres.'; all communications for the Regional Counsel of the Westem-Pacitic Region, 

to the undersigned, at: Office of the Regional Counsel, AWP-7.5, Federal Aviation 

Administration. Weslem-Pacitlc Region, P. O. Bo.x 92007, Los Angeles, CA 90009-2007, 

Telephone: (S10W25-7105, FAX : (310)725-6816. 

Sincerely, 

NAOMI rs u 

Regiona 

By: 

istopner Merrill 

Attorney 

Enclosures; Request for Hearing: Complaint; Certificate of Service 

NOTF TO RESPONDENT: SECTION 13.209 OF THE C? RULES OF PRACTlCt 

REQUIRE THAT A WRITTEN ANSWER 10 THE COMPLAFN T BE FILED NOT 

LATER THAN 30 DAYS AFTER SERVICE OF THE COMPLAINT. AS AN 

ALTtKNAHVE TO t'U,TNG AN ANSWER, A MOTION MAY BE FILED PURSL'AN J 

10 SECTION Lv208(D) OR SECTION 13.2lS(F)(l-4) Oh THE RULES OF PRACflCF. 

cc: AWP-740 
10/24/201 1 15:45 FAX 2024935142 FAA - DMS [?1002/Ol2 

REPLY TO NOTICE OF PROPOSED CIVH_ PENALTY 

(Transportation of Hazardous Materials) 

Regional Counsel for the Western-Pacific Region i 

Federal Aviation Administration, AWP-7. "^ f 

P.O. Box 92007 ; 

Los Angeles. CA 90009-2007 | 

Subject: Notice of Proposed Civil Penalty - (HM) • 

In reply to your Notice of Proposed Civil Penalty. I elect to pipceed as indicated by my 

check marie beside the numtiered paragraph(s) below: 

1. [ ] I hereby submit the amount of the proposed civil penalty with the 

understanding that an order assessing civil penalty wilt be iGsjued In the annount without 

further notice, and that I wraive my right to a hearing. j 

2. [ ] I hereby submit evidence and information, demonstrating that a violation of 

the regulations did not occur or that the amount of the penalty is not warranted by the 

circumstancee. 

3. [ ] I hereby submit information and records showing thaj I am financially unable to 

pay the proposed civil penalty, or that payment of the penally would prevent me from 

continuing in business. ' 

4. [ ] I hereby request that a civil penalty be assessed in tfae amount of $ 

and I submit the reasons forthe reduction of the proposed amoiArt. My request constitutes 

my agreement that if this offer Is accepted by the FAA, an OrderJAssessing Civil Penalty in 

that anrount may be issued without further notice and I waive rjiy right to a hearing. 

5- [ ] I hereby request an informal conference that will be Held at the Office of 

the Regional Counsel, Hawthorne. California, or i 

(a mutually convenient location) in order to discuss this matter Nw^th the attomey in charge 

of this case and to present evidence and infomiation on my behalf. 

AWP-7 FORM 2150-34 (12/06 Edition) 
10/24/201 1 15:45 FAJ( 2024935142 FAA - DMS I2]003/012 

2. 

6. [ X ] I hereby request a hearing in accordance with Subpart G of Part 13 of the 

Federal Aviation Regulations with the understanding that a Complaint will be filed. I 

request that the hearing be held in l4oNOL v ^ ^ . (AA^^PJ /1 I am sending this 

request both to the FAA~"gti6rney and to the flearing Docket, Federal Aviation 

Administration, 800 Independence AveTT^ Washington, D.C. 20591, Attention: 

Hearing Doc>to^teric. AGG43a WiE^A/mh t Building. Suite 2W1000. 

Signature: 

Name: 

Address: \/ 0 3 0 1 ^ \\^o\~' C "^ t 

Telephone: go 8 " & H 1 ^G L 8 6 ~ 

Date: / O /S ' /< ^ O f / 

Case No.: _<PoiO \^?lr0^ o \ O 

[ y ] I request that future documents in this case be sent to: 

Name: j(^l^CtA:^c u ^^t^GAh l 

Address: / D 56 MiiCiyL<^ S^. 

^^.vo/Ju_ fir ^^^/7 

Telephone: ^O S ^d^^ i ^ U(o 8 S 

AWP-7 FORM 21SO-34, Pag* 2 of 2, 12/06 Edition 
9AAh[ TANKS INC. 

T036 Mikole Streef 

Honolulu. Howaii 9681V 

OPENED. BYi>A> 

i/MMliJMim 

7D11 DllD QODl Q5QD 7LC3 

I f 

U.S. POSTftDf 

pflro 

HONOLULU,Ml 

96920 

DCI 03.^f| 

AMOUNT 

$5,59 

0 A J 

?.D,?:.o^ ^^oo ^ 

? 

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10/24/2011 15 45 FAX 2024935142 FAA - DhS Igl005/012 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMIN ISTT RATI ON 

In the Matter of: 

M&MTanks, Inc., 

FAA DOCKET 

FAA CASE NO. 201<l\VP700010 

Respondent. 

JUDGE NOT ASSIGNED 

COMPLAINT 

The Complainant files its Complaint, pursuant to Rule 208 of the Rules of 

Practice (14 C.F.R, § 13.208), and states as follows: 

1. 

Respondent, M & M Tanks, Inc., (M & M). was advised through a Tinal Notice 

of Propcised Civil Penalty dated September 27, 2011. that the FAA proposed to assess a 

civil penalty in the amount of $73,998.00. On October 3, 2011, Respondent submitted a 

written request for a hearing. 

1. On or about September 24. 2009, James P. Franks, an employee of Respondent, 

offered a .shipment, througli checked baggage, to Hawaiian Airlines (HALA) for air 

transportation from Honolulu, III to Kahului. HI. 
10/24/201 1 15.45 FAX 2024935142 FAA - DMS 21006/012 

2. The shipment consisted of two 1-gallon plai;tic bottles of "Brickform" Blush Tone 

Acid Stain. 

3. "Brickform" Blush lone Acid Stain is a hazardous material in accordance with the 

Hazardous jMateriaLs Tabic in Title 49 of the Code of Federal Regulations (49 CFR), 

Section 172.101. U is "Hydrochloric Acid," UNI789, Hazard Class 8, Packing Group 

111. 

4. The shipment, totaling two gallons, was a quantity that exceeded the maximum 

quantity of that hazardous material in a package thai may be offered for transportation or 

iransported aboard a passcnger-carr>'ing aircraft. 

5. Respondent's employee, James P. Franks, otTered the shipment for air 

transportation in commerce w^hen it was not properly classed, described, packaged, 

marked, labeled, and/or in condition for shipment as required or authorized by 

applicable requirements in Subchapter C of Chapter I of 49 CFR, or an exemption or 

?;pecial permit, approval, or registration issued under Subchapter C or Subchapter A of 

Chapter 1. 

6. Respondent's employee, James P. Franks, offered the shipment when emergency 

response information, conforming to subpart G of pari 172 of 49 CFR. was not 

immediately av.nilable fo»r use at all times the ha;;ardouii material was present. 

Respondent offered the shipment when it did'not provide an emergency response 
10/24/201 1 15-45 PAX 2024935142 FAA - QMS 0007/01 2 

telephone number for use in the event of an emergency involving the hazardous 

material. 

7. As described above. James P. Franks was a hazmat employee, and Respondent was 

a ha2rnat employer, as those terms are deiined in 49 C.l-'.R. § 171.8. Hazmai employee 

James P. Franks offered the shipment for air transpOTtation when he did not have 

lunction specific, security awareness, etc., training in accordance with .subpart II of part 

172 of 49 C.F.R. 

By reason of the foregoing facts and circumstances, Respondent violated the 

foliowinj^ Department of Tran.sportation Hazardous Material Regulations (Title 49, Part 

171 ct seq.. Code ol"Federal Regulations): 

a. Section 171.2(e). which states that no person may offer or accept a hazardous 

maienal for transportation in commerce unless the hazardous material is 

properly classed, described, packaged, marked, labeled, and in condition for 

shipment as required or authorized by applicable requirements of this 

subchapter or an exemption or special permh. approval, or registration issued 

under this subchapter or subchapter A of this chapter; 
10/2fl/2011 15 45 FAX 2024935142 FAA - DMS 008/012 

b. Section 172.200(a), which states that no person may offer hazardous material 

for transportation unless the material is properly described on the shipping 

papers; 

e. Section 172.204(a). vvhich generally states that, each person who offers a 

hazardous material for transportation shall ccrti^ that the material is offered 

for transportation in accordance with the applicable subchapter. 

d. Section 172.300(a), which states thai each person who offers hazardous 

material for transportation shall mark each package containing the hazardous 

material in the maimer required by HMR subpart D (Marking). 

e Section 172.400(a), which generally states that each person who offers 

hazardous material for transportation shall label the package or containment 

device with labels specified for the material in section 172.101 (49 C.F.R. § 

172.101) and as required by IIMR subpart E; 

f Section 172.600(e), no person to whom this subpart applies may offer for 

transportation, accept for transportation, transfer, store or otheru'ise handle 

during transp*'>rtation a hazardous material unless emergency response 

information conforming to this subpart is immediately available for use at all 

limes the hazardous material is present; and emergency response 

information, including the emergency response telephone number, required 
10/24/201 1 15:45 FAX 2024935142 FAA ^ D(.1S 0009/01 2 

by this subpart is immediately available to any person who, as a 

representative of a Federal. State or local govemmeni agency, responds to an 

incident involving a hazardous material, or is conducting an investigation 

which involves a hazardous material. 

g. Section 172.604(a), which generally states that a person who offers a 

hazardous material for transporialion must provide an emergency response 

telephone number for use in the event of an emergency involving the 

hazardous material. The telephone number must comply with the 

requirements specified in the applicable subsections. 

h. Section 172.702(a), which generally states thai a hazmat employer shall 

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

requirements prescribed in this subpart. 

i. Section 173.1(b), which states that a shipment of hazardous materials that is 

not prepared in accordance with this subchapter may not be offered for 

iran.sportation by air, highway, rail, or water. U is the responsibility of each 

hazmat employer subject to the requirements of this subchapter to ensure that 

each hazmat employee is trained in accordance with the requirements 

prescribed in this subchapter. It is the duty of each person who offers 

hazardous materials for transportation to instruct each of his otficers, agents. 
10/24/201 1 15-46 FAX 2024935142 FAA - DMS 0010/01 2 

and employees having any responsibility for preparing hazardou.s materials 

for shipment as to applicable regulations in this subchapter.] 

j . Section 173.22(aK wiiich generally states that a person may offer a hazardous 

niaierial for transportation in a packaging or container required by this part 

only if the person classifies and describes the hazardous material and 

determines that the packaging or container is an authorized packaging, in 

accordance with the speeilkd subsections. 

k. Section 173.27(b)(3), which generally states that the maximum quantity of 

hazai dous material in a package that may be offered for transportation or 

transported aboard a passenger-carrying aircraft or cargo aircraft may not 

e.xcccd that quantity prescribed for the material in Column 9a or 9b, 

respectively, of the § 172.101 taole. 

III. 

1. In accordance with Section 5123 (a) of Title 49 of the United States Code 

(Transportation) [(49 U.S.C. Section 5123 (a)]. Respondent is liable for a civil penalty 

of not less than $250.00 ($450 for liaining violation.s), nor greater than .$50,000 (or 

$100,000 for violations resulting in death, serious illness, or severe injury to any person, 

or substantia! destruction of property) for each violation of the Department of 

Transportation Hazardous Materials Regulations. 
- OMS 

- ^'"n^er The facts and drc 

•^73.998.00 is appropriate. 

^cumstancesof:h.sease,acivijpenaltvof 

,.,;"TM""*'•-''-«-—""-»»«..«,,„ 

::*"'"°*"'"-——."-..«,,..,.. „ 

f^cspecifuljy submitred. 

"^'•^topher Merrill 

Attorney 

WficeoftheR.gionai Counsel 

wcstem-PiiL.dc Region 

DATED-

@on/oi2 
10/24/201 1 15:46 FAX 2024935142 FAA - DMS 0012/01 2 

CERTIFICATE OF SERVICE 

T hereby certify' that on this date 1 have sent by facsimile and placed in the Linitcd 

States mail, po.<itage prepaid, certified mail - return receipt requested, the executed 

original and one copy of the Complaint, addressed as follows: 

Federal Aviation Administration 

Hearing Docket Clerk, AGC-J30 

Wilbur Wright Building, Suite 2\V 1000 

800 Independence Ave.. S.W. 

Washington, DC 20591 

Fax:202-493-5142 

1 further certify that on this date I have placed in the United States mail, postage 

prepaid, certified mail - return receipt requested, a true copy of the Complaint, 

addressed as foMow-s: 

M & M Tanks, Inc. 

Ann: Michael Weilzenhoff 

1036 MikoleSt. 

Honolulu, in 96819 

Dated: OCT H 2011 

Jeff Kam berg 

Legal Technician 

Oftlce of the Regional CoLinsel 

Federal Aviation Administration 

Western-Pacific Region 

Lawndale. California