U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION

In the matter of: PROTHERAGEN, INC., d/b/a/ ALFACOMPANY ) 

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## ________________________) JUDGE NOT ASSIGNED COMPLAINT 

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## HEARING DvGKET

The Federal Aviation Administration (FAA) hereby files its complaint, under Rule 208 of the Rules ofPractice inFAA Civil PenaltyActions, 14 CPR§13.208, and states the following: I. Respondent Protheragen, Inc., d/b/a Alfa Chemistry ("Alfa Chemistry") was advised through a Amended Final Notice ofProposed Civil Penaltythat the FAAproposedto assess a civil penalty inthe amount of$325,000. On June 30,2014, Respondent submitted a written request for a hearing. II. 1. Alfa Chemistry offered shipments ofhazardous material for transportationby air, as set forth below, without complying withthe Department ofTransportationHazardous Materials Regulations (HMR) (49 C.P.R. Parts 171 et seq.). Undeclared Hazardous Material Shipments 2. On or about April19, 2013, Alfa Chemistry knowingly offeredto FedEx Express ("FedEx"), an air service, anundeclared shipment for transportationby air ("the April 19, 2013 shipment"). 3. The Aprill9, 2013 shipment, which was assigned FedEx Tracking No. 7995 6678 3410, was offered for transportation in air commerce and delivery via standard overnight service to Rafi Dekermendjian, Alfa Aesar, 26 Parkridge Road, Ward Hill, Massachusetts 01835.14. At all times mentioned herein, the above-described shipments were not accompanied by a Shipper's Certification or Declaration for Dangerous Goods. 15. Alfa Chemistry offered the above-described shipments ofhazardous material for transportation in commerce whenthe material was notproperly classed and/or described as required by the HMR (49 C.F.R. parts 171, et seq.). 16. Alfa Chemistry offered the above-described shipments ofhazardous material for transportation without properly describing the material onthe shipping paper inthe manner required by the HMR. 17. Alfa Chemistry offered the above-described shipments ofhazardous material for transportation whenthe required hazardous material description on the shipping paper did not include the proper identification number prescribed for the material in Column (4) ofthe §172.101 table (49 C.F.R. § 172.101). 18. Alfa Chemistry offered the above-described shipments ofhazardous material for transportation when the required hazardous material description onthe shipping paper did not include the proper shipping name prescribed for the material in Column (2) of the §172.101 table (49 C.F.R. § 172.101). 19. Alfa Chemistry offered the above-described shipments ofhazardous material for transportation when the required hazardous material description on the shipping paper did not include the hazard class or division number prescribed for the material, as shown in Column (3) ofthe §172.101 table (49 C.F.R. § 172.101). 20. Alfa Chemistry offered the above-described shipments ofhazardous material for transportation when the total quantity ofthe material covered bythe description did not appear before or after, orbothbefore and after, the description required by subpart C ofthe HMR. (49 C.F.R. §§ 172.200 et seq.). 21. Alfa Chemistry offeredthe above-described shipments ofhazardous material for transportation in air commerce without printing the required certification on the shipping paper as stated in §172.204(a)(1) or (a)(2) (49 C.F.R. § 172.204(a)(l) or (a)(2)). 22. Alfa Chemistry offered the above-described shipments ofhazardous material to an aircraft operator for transportation by air and did notprovide two copies ofthe required shipper's certification. 23. Alfa Chemistry offered the May 23,2013 shipment ofhazardous material for transportation whenthe package was not marked in a mannerrequiredby the HMR.24. Alfa Chemistry offered the May 23, 2013 shipment ofhazardous material for transportation and failed to markthe package with the proper shipping name and identificationnumber for the material as shown in the §172.101 Table. 25. Alfa Chemistry offered the May 23, 2013 shipment ofhazardous material for transportation when the required markings were not durable, in English and printed on or affixed to the surface ofthe package or on a label, tag or sign. 26. Alfa Chemistry offered the May 23, 2013 package containing hazardous material for transportation by air whenthe package was notproperly labeled as specified in Section 172.101 (49 C.P.R.§ 172.101). 27. Alfa Chemistry offered the above-described packages containing hazardous material for transportation by air without making emergency response information immediately available for use at all times the hazardous material was present. 28. Alfa Chemistry offered the May 23, 2013 shipment ofhazardous materials for transportationby air without properlypreparing the shipment. 29. Alfa Chemistry offered the May 23, 2013 shipment ofhazardous material for transportation by air and failed to use a package that was so designed, constructed, maintained, filled, its contents so limited, and closed, so thatunder conditions normally incidentto transportation, there would be no identifiable release of hazardous material to the environment. 30. Alfa Chemistry offered the above-described shipments ofhazardous material for transportation by air when the shipments contained a material that is "Forbidden" for transportation aboard an aircraft as indicated in Column 9b ofthe§172.101 table (49 C.P.R.§ 172.101). Training 31. Section 171.8 (49 C. F. R. § 171.8) oftheDepartment ofTransportation Hazardous Materials Regulations (HMR) (49 C.P.R. parts 171 et seq.) defmes the term 'hazmat employer' as a person who uses one or more ofits employees in connection with transporting hazardous materials or causing hazardous materials to be transported or shipped in air commerce. 32. Section 171.8 (49 C. F. R. § 171.8) ofthe HMRdefmes the term 'hazmat employee' as a person employed by a hazmat employer who in the course ofemployment directly affects hazardous materials transportation safety. 33. The HMRrequire hazmat employers to ensure that eachhazmat employee is trained in accordance withthe requirements ofthe HMRand is testedby appropriate means onthe training subjects covered in section 172.704 (49 C. F. R. § 172.704), and theHMRpreclude hazmat employees from performing any function subjectto the requirements ofthe HMRwithout first being instructed inthe requirements ofthe HMRthat apply to that function. 34. Alfa Chemistry causes hazardous materials to be transported in air commerce and Alfa Chemistryuses its employees in connection with that activity. 35. Based upon the findings referenced above, Alfa Chemistry is classified as a hazmat employer under the HMR. 36. Alfa Chemistry employees Alice White, Michelle Brown and Betty Lee performed functions subject to the HMR, as theyprepared and/or offered shipments ofhazardous materials for transportation in air commerce, including butnot limited to the shipments ofhazardous materials for transportation in air commerce described above. 37. Atthe time they prepared and/or offeredthe shipments ofhazardous materials for transportation in air commerce described above, Alice White, Michelle Brown and Betty Lee did not have the appropriate training as required by the HMR. 38. Based onthe above, Alfa Chemistry failed to ensure that each ofits hazmat employees was first trained and tested in accordance withthe HMRrequirements. 39. By reason ofthe foregoing facts and circumstances, Alfa Chemistry violated the following Department ofTransportation Hazardous Materials Regulations (Title 49, Part 171 

### et seq., Code ofFederal Regulations):

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), inthat Alfa Chemistry offeredhazardous material for transportation in commerce whenthe material was notproperly classed, described, packaged, marked, labeled, and inthe conditionfor shipment required by the HMR (49 C.F.R. parts 171, et seq.). b. Section 172.200(a) (49 C.F.R. §§ 172.200(a)), in that AlfaChemistry offered hazardous material for transportation without properly describing the material on the shipping paper in the mannerrequired bythe HMR.

c. Section 172.202(a)(l) (49 C.F.R. 

### § 172.202(a)(l)), inthat Alfa Chemistry offered hazardous material for transportation when the required hazardous material description onthe shipping paper did not include the proper identification number prescribed for the material in Column (4) ofthe 

### §172.101 table (49 C.F.R. 

### § 172.101). d. Section 172.202(a)(2) (49 C.F.R. 

### § 172.202(a)(2)), inthat Alfa Chemistry offered hazardous material for transportation whenthe required hazardous material description onthe shipping paper did not include the proper shipping nameprescribed for the material in Column (2) ofthe §172.101 table (49 C.P.R. § 172.101).

e. Section 172.202(a)(3) (49 C.P.R.§ 172.202(a)(3)), in that Alfa Chemistry offered hazardous material for transportation whenthe required hazardous material description onthe shipping paper did not include the hazard class or division number prescribed for the material, as shownin Column (3) ofthe §172.101 table (49 C.P.R.§ 172.101). f. Section 172.202(c) (49 C.P.R.§ 172.202(c)), in that Alfa Chemistry offered hazardous material for transportation when the total quantity ofthe material covered bythe description did not appear before or after, or bothbefore and after, the description required by subpart C ofthe HMR. (49 C.P.R.§§ 172.200 et seg.). g. Sections 172.204(a) or (c)(1) (49 C.P.R.§§ 172.204(a) or (c)(1)), inthat Alfa Chemistry offered hazardous material for transportation in air commerce without printing the required certification onthe shipping paper as stated in §172.204(a)(1) or (a)(2)( 49 C.P.R. § 172.204(a)(l) or (a)(2)). h. Section 172.204(c)(2) (49 C.P.R.§ 172.204(c)(2)), inthatAlfa Chemistry offered hazardous material to an aircraft operator for transportation by air and did not provide two copies ofthe required shipper's certification.

1. Section 172.300(a) (49 C.P.R. § 172.300(a)), in that Alfa Chemistry offered hazardous material for transportation when the package was not marked in a manner required by the HMR. J. Section 172.301(a) (49 C.P.R.§ 172.301(a)), inthat Alfa Chemistry offered hazardous material for transportation and failed to markthepackage withthe proper shipping name and identification number for the material as shown inthe §172.101 Table. 

### k. Section 172.304(a)(l) (49 C.P.R.§ 172.304(a)(1)), inthatAlfa Chemistry offered hazardous material for transportation when the required markings were not durable, in English and printed on or affixed to the surface ofthepackage or on a label, tag or sign. I. Section 172.400(a) (49 C.P.R. § 172.400(a)), inthat Alfa Chemistry offered a package containing hazardous material for transportation byair when the package was notproperlylabeled as specified in Section 172.101 (49 C.P.R. § 172.101).

m. Sections 172.600(c)(l) and 172.600(c)(2) (49 C.P.R.§§ 172.600(c)(l) and 172.600(c)(2)), inthat Alfa Chemistry offered packages containing hazardous material for transportation by air without making emergency response information immediately available for use at all times the hazardous material was present.n. Section 172.702(a) (49 C.F.R. § 172.702(a)) inthat Alfa Chemistry, as ahazmat employer as defined in49 C.F.R. § 171.8, offered shipments containing hazardous material for air transportation and failed to ensure that each ofits hazmat employees was trained in accordance withthe requirements ofSubpart H ofPart 172 ofthe HMR (49 C.F.R. § 172.700 et seg.).

o. Section 172.702(b)(49 C.F.R. § 172.702(b)) inthat Alfa Chemistry, as ahazmat employer as defined in 49 C.F.R. § 171.8, offered shipments containinghazardous material for air transportation and failed to thoroughly instruct its hazmat employees regarding compliance withthe applicable requirements ofSubpart H of Part 172 ofthe HMR (49 C.F.R. § 172.700 et seg.). p. Section 172.702(d) (49 C.F.R. § 172.702(d)) inthat Alfa Chemistry, as a hazmat employer as defined in49 C.F.R. § 171.8, offered shipments containing hazardous material for air transportation and failed to ensure that each ofits hazmat employees was tested by appropriate means onthe training subjects covered in Section 172.704 (49 C. F. R. § 172.704). q. Section 172.704(a)(l) (49 C.F.R. § 172.704(a)(l)) in that Alfa Chemistry, as a hazmat employer as defined in 49 C.F.R. § 171.8, offered shipments containing hazardous materials for airtransportation and failed to provide eachhazmat employee general awareness/familiarization training designed to provide familiarity with the requirements ofSubpart H ofPart 172 ofthe HMR (49 C.F.R. § 172.700 et seq.), and to enable the employee to recognize and identityhazardous materials consistent withhazard communication standards ofSubpart H ofPart 172 ofthe HMR (49 C.F.R. § 172.700 et seq.).



### r. Section 172.704(a)(2) (49 C.F.R. § 172.704(a)(2)) inthat Alfa Chemistry, as a hazmat employer as defined in 49 C.F.R. § 171.8, offered shipments containing hazardous materials for air transportation and failed to provide eachhazmat employee function-specific training concerningrequirements ofSubpart H ofPart 172 ofthe HMR (49 C.F.R. § 172.700 et seg.), or exemptions issued under subchapter A, which are specifically applicable to the functions the employee performs.

s. Section 172.704(a)(3) (49 C.F.R. § 172.704(a)(3)) inthat Alfa Chemistry, as a hazmat employer as defined in 49 C.F.R. § 171.8, offered shipments containing hazardous materials for air transportation and failed to provide eachhazmat employee safety specific training concerning the requirements listed in Section 172.704 (49 C.F.R. § 172.704).

t. Section 173.l(b)(49 C.F.R. § 173.l(b)), in that Alfa Chemistry offered a shipment ofhazardous materials for transportation by air without properly preparing the shipment.u. Section 173.24(b)(l) (49 C.F.R. § 173.24(b)(l)), inthat Alfa Chemistry offered hazardous material for transportation by air and failed to use a package that was so designed, constructed, maintained, filled, its contents so limited, and closed, so that under conditions normally incident to transportation, there wouldbe no identifiable release ofhazardous materials to the environment.

v. Section 173.27(b)(2) (49 C.F.R. § 173.27(b)(2)), inthat Alfa Chemistry offered packages containing a material that is "Forbidden" for transportation aboard an aircraft as indicated in Colunrn 9b ofthe §172.101 table (49 C.F.R. § 172.101). III. 40. Under 49 U.S.C. §5123, respondent is subject to a civil penalty for each ofthe foregoing violations ofthe FAA'sregulations. The maximum penaltyper violation, as adjusted under 14 C.F.R. §13.305, is $75,000. 41. Under the facts and circumstances ofthis case, a civil penalty of$325,000 is appropriate. WHEREFORE, Complainantrespectfullyrequests that the administrative lawjudge enter an orderthat respondent be assessed a civil penalty in the amount of$325,000. Respectfully submitted this 1st day ofJuly, 2014 CHRISTOPHER POREDA Regional Counsel By:

# R~:_-=::,**Atto~ey** Federal Aviation Administration Office ofthe Regional Counsel 12 NewEngland Executive Park Burlington, MA 01803 Tel: 781-238-7058 Fax: 781-238-7055CERTIFICATE OF SERVICE I certifY that the foregoing complainthas been mailed this date by CertifiedMail, Return Receipt Requested, to: Respondent President Protheragen, Inc. d/b/a Alfa Chemistry 1360 Stony BrookRd. StonyBrook, NY 11790 And HearingDocket Federal Aviation Administration (original and one copy) 800 Independence Avenue, SW Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2Wl000 Washington, DC 20591

# ~~~~ :CHELLEMULL Y;Thlted: Julyl,4 Paralegal/ManagementProgram Analyst