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o 

U.S. Depanmeni 

Of Transportation 

Federal Aviation 

Administration 

Northwest Mountain Region 

Colorado, Idalio, Montana 

Oregon, Utah, Washington 

Wyoming 

1601 Lind Avenue, SW 

Ronton, WA 98055-4099 

Tel: (425) 227-2007 

Fax:(425)227-1007 

November 16, 2006 

VIA FACSIMILE AND CERTIFIED MAIL- RETURN RHCEIPT REQUESTED 

Federal Aviation Administration, AGC-430 

600 Independence Ave. SW, Room 2014 

Wilbur Wright Building 

Washington, DC 20591 

'0 

CD 

U'J 

Attn: Hearing Docket Clerk c^bummih^"^^?^^ 

Re: In the Matter of Westmark Industries, Inc., Case No. 2006NM700095 

Enclosed hcrev^ith please find a copy of the Complaint, in the ahove-rcfcrcnced proceeding. 

The FA A requests that the hearing in this matter be held in Portland, OR, and expects that the 

hearing will last one day. 

Please address all communications for the FAA to the undersigned at: 

Federal Aviation Administration 

Northwest Mountain Region, ANM-7 

1601 Lind Avenue S.W. 

Renion, Washington 98055-4099 

Telephone: (425)227-2163 

Fax: (425)227-1007 

Sincerely, 

Carey Terasaki 

Senior Attorney, ANM-7 

Enclosures 

Request lor Hearing 

Complaint 
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DKPAR I MKNT OF TRANSPORTATION 

WASHINGTON, D.C. 

In the Matter of: 

Westmark Industries, Inc. 

FAA Case No. 2006NM700095 

FAA C.P. Docket No. 

Judge not yet assigned 

COIMPI.AINI 

rhe Complainant files it.s Complaint, in accordance with Rule 208 oflhc FAA'S 

Rules of Practice in Civil Penalty Actions, 14 CFR § 13.208, and states the following: 

Respondent was advised by a Final Notice of Proposed Civil Penalty, dated 

October 1 i, 2006, that the FAA proposed to assess a civil penalty in the amount of 

Si 6,()()(). Respondent sent a written request for a hearing, dated November 7, 2006, and 

received November 13, 2006. 

II 

1. C)n or about August I, 2005, an employee for Westmark Industries, inc., offered a 

shipment lo LIniied Parcel Semce (UPS) for air transportation from Lake Oswego, 

Oregon, to Pacific Allied Product.s, in Kapolei, Hawaii. 

2. The August Isi shipment included approximately 1 liter of a hazardous material. 

On the shipper's certification paper, the employee described the shipment as "Ethyl 

alcohol solutions, [hazard elas.s] 3, [identification number] UNI 170, [packing group] IIL 

LTD QTY." 

3. That hazardous material was product #DG0502-005, Conditioner, Stencil Ink, 

Rol-it-on. it is actually Diacetonc alcohol, UN 1148, under the Title 49 of the Code of 

Federal Regulations (CFR), Section 172,101 hazardous materials table. Column 2. 
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III 

4. On or about September 29, 2005, an employee for We.stmark Industries, Inc., 

offered a shipment to UPS for air transportation from Lake, Oswego, Oregon, to 

Insulfoam-Anchorage, in Anchorage, Alaska. 

5. The September 29th shipment included approximately 11 liters of a hazardous 

material. On the shipper's certification paper, the employee described the shipment as 

"Ethyl alcohol solutions, [hazard class] 3, [identification number] UNI 170, [packing 

group] III, LTD QTY." 

6. That hazardous material was product #DG0802-605, Coder Ink Conditioner, 

Non-porous. It is actually a Packing Group II material. 

IV 

7. U PS's hazardous materials information, including the information on its website, 

contains the following UPS Carrier Variation: "UPS accepts only 'Passenger Aircraft 

Quantities' of hazardous materials for transport in UPS Air Services." UPS's hazardous 

materials infonnation, including the information on its website, contains the following: 

"'Hazardous materials are accepted for transport in UPS Ground service to/from AK, HI, 

PR and Catalina Island only in passenger aircraft quantities prepared according to the 

requirements set forth in Title 49 of the Code of Federal Regulations (49 C.F.R.) and the 

UPS Hazardous Materials Guide at UPS.com.'' UPS does not transport ha:iardous 

materials in aircraft configured for the transportation of hazardous materials in "'cargo 

aircraft only" quantities. 

8. Under the 49 CFR, Section 172.101 hazardous materials table. Column 9a, the 

maximum quantity allowed on a passenger-carrying aircralt for Ethyl alcohol solutions, 

Class 3, UNI 170, PG II, is 5 hlcrs. 

9. As described in Allegation No. 1, above, Westmark Indusuies and its employee 

were a "hazmat employer" and "hazmat employee," respectively, as those terms are 

defined in 49 CFR § 171.8. Further investigation of Westmark Industries' records 

indicated that the employee who offered the shipment described in Allegation No. 1 had 

not received hazardous materials training since December 29, 2000. 
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10. By reason of the foregoing, Westmark Industries, Inc., violated the following 

Department of Transportation hazardous materials regulations (Title 49 of the Code of 

Federal Regulation.?, part 171, et seq.): 

a. 49 CFR § 172.200(a), in that it offered a hazardous material for 

transportation and it failed to describe the hazardous material, on the shipping paper, in 

the manner required by subpart C of part 172 of Title 49, i.e.: 

i. It did not include the proper shipping name, as required by 49 CFR 

§ I72.202(a)(i). 

ii. It did not include the proscribed identification number, a.s required 

by 49 CFR § 172.202(a)(3). 

iii. It did not include the designated packing group, as required by 49 

CFR§ 172.202(a)(4). 

b. 49 CFR § 172.702(a), in that, as a hazmat employer, it failed to ensure that 

each of its hazmat employees was trained in accordance with the requirements prescribed 

in subpart H of part 172 of Title 49, i.e., 49 CFR § 172.704(c)(2), in that at least one 

hazmat employee did not receive hazardous materials training, in accordance with 

subpart H, at least once every three years. 

c. 49 CFR § 173.27(b)(3), in that it offered a hazardous material for 

transportation aboard a passenger-carrying aircraft when the quantity of the material 

exceeded the maximum quantity prescribed for that material in Column 9a of the 49 CFR 

§ 172.101 hazardous materials table. 

VI 

I 1. Under 49 U.S.C. § 5123, Respondent is subject to a civil penalty as follows: 

a. Not less than $250, nor greatei' than S30,000, for each of the vjolaiions 

before August 10,2005. 

b. Not less than $250, nor greater than $50,000, for each of the violations on 

or after August 10, 2005. 

12. Under the facts and circumstance.', of this case, a civil penalty of $16,000 is 

appropriate. 
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Complainant respectfully requests that the Ac 

Respondent be assessed a civil penalty in the 

ministrarivc Law Judge enter an order that 

imount of $16,000. 

Respectfully submitted this i6th day of Novcjmber, 2006 

KARL B. LEWIS 

Regional Counsel 

By: 

' ^ ^-j-r* 

rcy W^^Krasaki 

Senior Attorney 

.ai 

Notice to R<ispondcnt 

Complainant refers Respondent to 14 CFR § L 3.209(a), which includes the following: 

"Writing required. A respondent shall file a •written answer lo the complaint, or may file 

a written motion pursuant to § 13.208(d) or tj 3.218(0(1-4) of this subpart instead of 

filing an answer, not later than 30 days after strvice of the complaint. The answer may 

be in the form of a letter but must be dated anc signed by the person responding to the 

complaint." 

Complainant also refers Respondent to 14 (>•" R 

following: ''Specific denial of allegations requ 

admit, deny, or State that the person is without 

admit or deny, each numbered paragraph of th( 

contained in the complaint that is not specificai 

admission of the tiuth of that allegation. A general 

failure to file an answer." 

§ 13.209(e), which includes the 

red. A person filing an answer shall 

sufficient knowledge or informafion to 

complaint. Any statement or allegation 

ly denied in the answer may be deemed an 

denial of the complaint is deemed a 
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Complainant respectfully requests thai the Administrative Law Judge enter an order that 

Respondent be assessed a civil penalty in the imount of $16,000. 

Respectfully .submitted this 16th day of November, 2006. 

KARL B. LEWIS 

Regional Counsel 

By: ^•*'-^g ? 

.'arcy W^^'brasaki 

Senior Attorney 

Notice to Respondent 

Complainant refers Respondent to 14 CFR § 1 

"Writing required. A respondent shall file a \\|ritten answer lo the complaint, or may file 

a written motion pursuant to § 13.208(d) or ij 3.218(f)(l -4) of this subpart instead of 

filing an answer, not later than 30 days after st rvice of the complaint. The answer may 

be in the form of a letter but must be dated anc signed by the person responding to the 

complaint." 

3.209(a), which includes the following: 

Complainant also refers Respondent to 14 Olj^ 

following: "Specific denial of allegations requ 

admit, deny, or state that the person is without 

admit or deny, each numbered paragraph of tht 

contained in the complaint that is not specifica 

admission of the tmth of that allegation. A gc: 

failure to file an answer." 

§ 13.209(e), which includes the 

red. A person filing an answer shall 

sufficient knowledge or information to 

complaint. Any statement or allegation 

ly denied in the answer may be deemed an 

ijicral denial of the complaint is decrned a 
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CERTIFICATE OF SERVICE 

I certify that, on this date, I served Complainant's Complaint, FAA Case No. 

2006NM700095, by FedEx and certified mail, return receipt requested, as follows: 

Westmark Industries, Inc. 

Owner Michael Offer 

6701 SWMcEwanRoad 

Lake Oswego, OR 97035-7815 

Federal Aviation Administration (original) 

600 Independence Avenue SW 

Washington. DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Room 2014 

Certified Mail only 

FEDEX only 

MW\ ^ ^MfUJiX 

Date 

11-/^-0/^