ADMINISTRATOR, FederalAviation Administration Complainant,


### v. VANAIRMANUFACTURING, INC. Respondent. CaseNo. 2014-GL-70-0045 NTSB DocketNo.: FAA-2016-4269 FDMS No.: FAA-2016-4269 Judge: J.E. Sullivan

ANSWERAND AFFIRMATIVE DEFENSES TO THE COMPLAINT Respondent, VANAIR MANUFACTURING, INC., by and through his counsel, CREMER, SPINA, SHAUGI-INESSY, JANSEN & SIEGERT, pursuant to 49 CFR 13.209, respectfully states as follows: ANSWER 1. On or about September 24, 2013, an employee of Vanair Manufacturing, Inc. (Vanair) knowingly offered a shipment containing hazardous materials to Southwest Airlines (SWA) onapassenger carrying flight inhis checkedbaggage, for transportationby air. ANSWER: Respondent denies the allegations contained in paragraph one (1) of the Complaint. Specifically, Respondent denies that its employee knowingly offered a shipment containing hazardous materials to Southwest Airlines. 2. The checkedbaggage contained one cylinder ofBernzomatic nonMapp gas, a hazardous material that is forbidden onpassenger carrying aircraft. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraphtwo (2) ofthe Complaint. 3. Personnel from SWA contacted the Federal Aviation Administration who conducted an investigation into the shipment ofthe hazardous materials and discovered that the hazardous materials shipment was not declared, described, packaged, marked or labeled as containing hazardous materials or in the proper condition for transport according to the Hazardous MaterialRegulations. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraphthree (3) ofthe Complaint. 4. The Material Safety Data Sheet (MSDS) for the product lists the product's name as Butane.a. The products are classified as a hazardous material under the Department ofTransportationHazardous Materials Regulations (49 CFR§ 172.101). b. The proper shipping name of the material is flannnable gas. It is in Hazard Class 2.1 and is assigned identificationnumberUN 1011. ANSWER: Respondent admits that Butane products can be classified as hazardous materials under the Department of Transportation Hazardous Materials Regulations and that Butane products can be classified in Hazard Class 2.1 and assigned the identification number UN 1011. Respondent is without sufficient knowledge or information to admit or deny the reminder ofparagraph four (4) ofthe Complaint.

that 5. did The shipment ofthe hazardous materials was processedby an employee ofVanair not rece1ve the required hazardous material training. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph five (5) ofthe Complaint. 6. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declarationfor Dangerous Goods. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph six (6) ofthe Complaint. 7. Vanair offered the above-described shipment of hazardous material for transportation by air whenthere were no shipping papers containing the proper shipping name of each hazardous material; the hazard class of each hazardous material, preceded by "UN" or "NA." as applicable; the total quantity by weight or volume ofeach hazardous material covered bythe description; and thebasic description ofeachhazardous material showninsequence. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph seven (7) ofthe Complaint. 8. Vanair offered the above-described hazardous material for transportation by air and didnotprovide two copies ofthe required shipper's certification. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph eight (8) ofthe Complaint. 9. Vanair offered the above-described hazardous material for transportation by air when the shipment was not marked or labeled in any manner that would indicate the hazardous nature ofthe contents contained therein. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph nine (9) ofthe Complaint.

210. Vanair offered the above-described shipment for transportation by air when the box was not marked with the proper shipping name and the assigned identification number of eachhazardous material contained therein, and with the required marking inEnglish and printed onor affixedto the surface ofthepackage. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph ten (10) ofthe Complaint. 11. Vanair did not make emergency response information, including the emergency response telephone number, available for use at alltimes the hazardous material waspresent. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph eleven (11) ofthe Complaint.
had 12. not Vanair employee's performed hazardous material shipping functions when they received the required hazardous materials employee training. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraphtwelve (12) ofthe Complaint. 13. Vanair offeredthe above-describedhazardous material for transportationby air on a passenger carrying aircraft when the material was forbidden from being offered or transported aboard a passenger carrying aircraft. ANSWER: Respondent is without sufficient knowledge or information to admit or deny paragraph thirteen (13) ofthe Complaint. Denied as to each and every subpart of Complainant's allegations as to regulations violated. Denied as to Complainant's Prayerfor Relief. AFFIRMATIVE DEFENSES 1. The facts set forth inthe Complaint do not, as a matter oflaw, support aviolation, in whole and/or inpart, ofthe Department ofTransportation Hazardous Materials Regulations. 2. The Complainantfails to state a claim warranting the proposedpenalty. 3. To the extent that the Notice ofProposed Civil Penalty was issued onNovember 24, 2015, as stated inthe Complaint, Respondent moves to dismiss the Complaintpursuant to 14

3CFR § 13.208(d), as the alleged violation occurred more than two (2) years before the Notice of Proposed Civil Penalty was issued. Respondent reserves the right to raise additional affirmative defenses based upon facts developedthrough discovery. WHEREFORE, Respondent, by counsel, respectfully requests the Administrative Law Judge to enter an Order dismissing the Complaint with prejudice and enteringjudgmentinfavor ofRespondent.

Dated: Aprill9, 2016 Respectfully submitted,



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**··~. ~-·--**  Jared . Schneider



### 4 JohnS. Hoff JaredA. Schneider Cremer, Spina, Shaughnessy, Jwsen & Siegert, LLC OneNorth Franklin Street, 1 Ort' Floor Chicago, Illinois 60606 (312) 726-3800 Tel. (312) 726-3818 Fax jhoff@cremerspina.com jschneider@cremerspina.comCERTIFICATE OF SERVICE I hereby certify that on Aprill9, 2016, I have sent by U.S. Post, the original and one (1) copy ofthe forgoing documentto: Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilber Wright Building- Suite 2W1000 In addition, I hereby certify that on April 19, 2016, I have sent by U.S. Post and via facsimile, a copy ofthe foregoing document to the following: Kate Barber, Esq. EnforcementDivision, MidwestTeam 2300 East Devon Avenue Des Plaines, IL 60018 kate.barber@faa.gov Fax: (847) 294-7498 Honorable J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Fax: (202) 366-7536

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