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Description of item being transmitted: Hon. Richard C. Goodwin Office of Hearings, M-20, US DOT (202) 366-7536 Courtney Adolph Attorney

3115113 ' Complatnt s Mot1on to Deem Allegations Admitted and Motion for Decision, or in the alternative, Motion to Limit the issues at Hearing to Sanction, In the 

### Matter of ChemSystems, Inc., FDMS No. FAA-2012-0911 FAA Docket No. TBD 

# Federal Aviation Administration

Office ofthe Regional Counsel, AWP7.4 PO Box 92007 Los Angeles, CA 90009-2007 Telephone: (:;310) 725-7128 Facsimile: (310) 725-6816 Email: Courtney.Adolph@faa.gov 

### Facsimile

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cc: HeetingDocketClerk, AGC-430 (Ho.rd copyto follow intheU.S. 

### mail) (202) 493-5142 RobettFling, Esq. (Respondenfs Coun.sel) (Hard copy to follow inthe U.S. mflil) 

### (281) 727-0082 

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### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF :HEARINGS WASHINGTON, DC

Jn the Matter ofChemSystems, Inc.,
Respondent. FAADocketNo.: TBD FDMS No.: FAA-20l2-0911 FAARegion: Weste.-n Pacific 

### Judge: Richard C. Goodwin
COMfLAlNANT'SMOTIONTO l>EEM ALLEGATIONS ADMITTED AND MOTION FORDECISION OR, IN THE ALTERNATIVE.MOTION TO LIMIT THE ISSUES AT HEARING TO SANCTION To: Hon. Richard C. 

### Goodwin, Administrative Law Judge, and to ChemSystems, inc., ("Respondent") by and through its attorneys: COMES NOW, the Regional Cotmsel ofthe Westem-Pacific Region ofthe :federal Aviation Administration (FAA), by cotmsel, files this Motionto Deem Allegations Admitted and Motionfor Decision, pursuant to sections 13.218(a) and (f)(S), and 13.209(f) ofTitle 14 ofthe Code ofFederal Regulations. 

### Inthe altemative, Complainantmoves to have the hearing limitedto th.e amount ofthe sanction. This motion is based on the factno answer has been filed by Respondent. The Complaint wasfiled and served onRespondent onNovember 23, 2012. It alleges: 1. On or about August 4, 2011, Shannon Wooten, an employee ofChemSystems, offered a shipment to Federal Express ("FedEx"), for "express saver" delivery from Houston, Texas to consignee Heritage Bomanitc, Fresno, California (referred to hereinafter as "shipment") on air 

### waybill number 493062658064. 2. The shipment included one fiberboard box containing four ( 4) one-gallon containers of"ChromastainEmber." liZJ 00203/1_5/2013 09:01 FAX 3107256816 AWP-7

3 "Chromastain Ember" is a hazardous material, in accordance with the Hazardous Materials Table inTitle 49 ofthe Code ofFederal Regulations (49 C.P.R.), Section 172.101. It is a corrosive liquid, acidic, inorganic, n.o.s. (Hydrochloric Acid), and has an IdentificationNo. UN3264, Hazard Class 8, Packing Group III. 4. ChemSystems offered the shipment for air transportation in commerce when 

### it

### was not properly packaged and in condition filr shipment as required or authorized by applicable requirements in Subchapter C ofChapter l of49 C.F

### .R-, or an exemption or special permit, approval, orregistration issued under Subchapter C or Subchapter A ofChapter I. To wit:
a. The four (4) containers possessed no positive means ofclosure and the fiberboard box was not designed, constructed, maintained, filled its C<mtents so limited, and closed, under conditions normally inci.dent to transportation to prevent a release ofthe hazardous material. b. The necessary hazardous materiai markings were not visible on the exterior of the shipment box.
c. Hazardous material labels were notvisible on the exterior ofthe shipmeot box. d. The shipping papers did not include any classi:5cation or description ofthe materials being shipped. 141003

ChemSystems offered the shipmentwhenemergency response information, conformingto 49 C.F.R. part 172, subpart G, was not immediately available for use at all times the hazardous material waspresent. ChemSystems offered the shipment when it did notprovide anemergencyresponse telephone numberfor use in the event ofan emergency involving the hazardou:; rnaterial. 6. As described above, ChernSystems was a 

### hazmat employer, and Shannon Wooten, was a 

### hazmat employee, as those terms are defined in49 C.P.R. section 171 

### .8. Shannon Wooten offered the shipment fi)r air transportation when s/he did nothave recurrent general awareness/familiarization, function-specific, security awareness, safety, etc. training in accordance with subpartH ofpart 172 of49 C.F.R. Onor about August 8, 2011, FedExtransported the shipmentby ground from Hanston, Texas to its sorting facility in Oakland, California, where the shipment was found to be leaking. The Complaint seeks an Order Assessing civil Penalty of$154,000.

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### Complainant sent a cover 1 etter withthe Complaint. That letter stated: 

### NOl'E l'O RESPONDENT: SECTION 13.209 OF THE CP RULES OF PRACTICE REQUIRE THATA WRITTEN ANSWER TO THE COMPLAINT BE FILED NOT LATERTHAN 30 DAYS AFTER SERVICE OF THIS COMPLAINT AS AN ALTERNATIVE TO FILING AN ANSWER, A MOTION MAY BE FILED PURSUANT TO SECTION I3.208(D) [sic] OR SECTION l3.218(F) [sic] ('A) 

### OF THE RULES OF PRACTICE. (Emphasis inoriginal.) Section 13.209(a) ofTitle 14 ofthe Code ofFederal Regulations [14 C.F.R. section l3.209(a)] requires a respondent to file an answer no later than thirty (30) days after service. Ptirsuantto section 13.21 1, the date ofservice is the date on the proofofservice, and after s':rvice by mail, an additional five (5) days is added to the prescribed period for a response. i•,ccordingly, an answer was due onDecember 28, 2012, which is thirty-five (35) days after November 23, 2012 (the date the Complaint was served). To date, no answer has beenreceived by Complainant. Respondent has not requested
an extension oftime in which to file an answer, and there are no apparent circumstances that would constitute good cause ±or a failure to file. In view ofthe above, Complainant moves tl1at the allegations in the complaint be deemed admitted. As a result, there is no genuine issue ofmaterial fact and the Complainant is en1itled to a decision as a matter of[aw. Complai.nant's motion is appropriate. Respondent offered an tmdeclared shipment of141004



### four ( 4), one-gallon containers ofhydrolie acid Jor transportation by air from Bouston, Texas, to Fresno, California. Respondent failed to properly package and prepare the shipment in yiolation ofSubchapter C ofChapter I ofTitle 49 ofthe Code ofFede1:al Regulations. Specitlcally, Respondent did notprovide positive means ofclosure ofthe four (4), one-gallon containers ofhydrolic acid. Likewise, Respondent did not use a fiberboard box that was

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### designed, constructed, maintained, filled its contents so limited, and closed, under conditions normally incident to transportation to prevent a rdease ofthe hazardous material in violation ofsections 173.24(b) and 173.27(d), for example', such as a leak-proofliner. Respondent ai1so failed to properly mark and label the shipment in violation ofsections 172.300(a) and 172.400(a). Respondent didnot include any classification or description ofthe hazardous material onthe shipping papers in violation of section 172.200(a). Further, Respondent offered the shipment when Respondent didnot provide emergency response information in accordance with subpart 

### 0 ofpart 172 ofTitle 49, and whenit did not provide hazanious material training for its hazardous material employees in conformance with subpart H ofpart 172 ofTitle 49. Section 13.209(t) ofthe Rules ofPractice [14 C.f.R. Section 13.209(£)] states: "A person's failure to file an answer without good cause shall 

### be deemed an admission to the truth ofeach allegation contained in the complaint." (Emphasis added.) Complainant moves the Administrative LawJudge to issue an Order Assessing Civil Penalty in the amount of $154,000.00. Alternatively, Complainant moves that the hearing be limited to the issue ofthe amount oftlle sanction. The sanction requested inthis case is appropriate. The FAA's publicly avaihtble sanciion guidance matrix for hazardous material violations is contained in Figure C-1 of Appendix C offAA Order 2150.3B. Respondent's website states that Respondent, ''offers integral and dry-shake colors as well as topping compmmds, overlays, acid stains, solvent, and water-based dyes, bonding agents, liquid and powder release agents and sealers."' Respondent manufactures at least some ifnot most ofthose materials. As ofthe date ofthis

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motion, Respond<;:nt also offers a link ofMaterial Safety Data Sheets ofthe products it uses. Underthis sanction guidance, the FAA concluded that Respondent is a business entity that regularly offers, accepts, ortransports hazardous materials. The shipment ofhydrolie acid exceeded th.e quantity limitations for transportation on passenger-carrying aircraft, which also constitutes an aggravating factor under the sanction guidance. FAA Order2150.3B, Appx. C, para. 8(b)(2), p. C-6. Pursuant to these culpability factors, a figure in a higher amount ofthe moderate range is appropriate. A moderate weight is assigned to this case because hydrolic acid is a "category B" material. Id., atpa,a. 8(b)(1). Respondent committed seven (7) ofthe eight (8) offense categories (shipping papers, markings, labeling, packaging, training, emergency response information, and release into the envhomnent). Id., Flg. C-1, p. C-12. Under the FAA's sanction guidance analysis, a business entity that regularly ;ffers, accepts, or transports hazardous materials ordinsrily is subject to a civil penalty in therange ofbetween $10,000.00 to $32,500.00 tor each ofTense category violated. Id. Giventhat Respondent asserts that it is a small business conc<,m, the FAAbelieves that a civil penalty slightly higher than the mid-point range of$22,000.00 is a1Jpropriate for each offense category violated. Accordingly, a civil penalty amount of $\54,000.00 (7 X $22,000.00) is appropriate for the violations in this case. Complainant's choice ofsanction inth.is case as it is not arbitrary, capricious, or otherwise not according to law." Complainanthas selected a civil penalty well within the rMge indicated inthe matrixfor hazardous materials violations under FAA Order 2150.3B, p,_ppendix C, Figure C-J_

1 '}ee http://www.chemsystemsinc.net. 2 '}ee, 49 U.S.C. §44709(d)(3)
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Based onthe foregoing, Complainant is entitled to a decision in its favor that Respondent committedthe violations charged and should be assessed a civil penalty of 

### $154,000.00. In the alternative, the only issue appropriate for 

### the hearing is the amOlmt of the civil penalty.
Respectfully submitted, NAOMI TSUDA Regional Counsel

# By:~ CQe)TAdOillh General Attorney
Dated: March 

### 15,2013

6 141007