09/11/2013 13:40 8472947498 FAA GLRC PAGE 02/12 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMTNIS1RA TION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

ln. the Matter ofNational Power Corporation 

201 D~GL~ 70-0212 

Judge Richard Goodwin 

ATY.tENDED COMPLAINT 

TI1e Federal Aviation Administration (FAA or Complainant), by counsel, hereby files its Amended 

Complaint, pursuant to RuJe 214 of the Rules of Practice (14 C.F.R 13.214), aud states as follows: 

I 

1. On or about January 8, 2010 until March 25, 20 l 0, NPS knowingly offered to Federal 

Express Corporation, eJeven (11) shipments of dangerous goods W1tested prototype lithium ion 

batteries for transportation by air, certified under ICAO Technical Instructions for the 

Transportation of Dangerous Goods by Air (ICAO TO, including all United States Variations 

thereto. 

2. The shipping papers for each of the 11 shipments certified and described the shipment as 

Lithium Ion Batteries, UN3480, Class 9, Packing Group II. . ; ' 

':1 ' : ·.·: ' . 

3. The following e]even shipments were offered and transported by NPC in violati.on of the 

hazardous materials regulations (the shipments): 

i I ,.·,,,: 

(,....,-". 

\ .. _,; ~ ~~ 

-;···r: .. \l ln.,<···r 

· T'r·_;· .. •r_, 'i il. ... i i ·~··,..; 
09/11/2013 13:40 8472947498 

til /U8r.W I (I 

Ol/OS/1010 

0 1/08/20"1 0 

o tiJ 21:ZOJ o 

0111:5/20"10 

0:2.il0/2010 

03/02120l0 

03ll 0/2!) I 0 

03iHJt:l01 0 

(/3/2Sl20·I 0 

03!25/2010 

r· 

i9X2 8541 0873 

793 t 643S 045<1 

793 l 64~5 0426 

793 [ 7493 231 () 

7983 0771 5600 

79S3 i897 9723 

7933 I Q 71 33:S6 

79$4 6 J N I 4 73 1 

7984 6181 4720 

79)3 8820 723 I 

793:?- 8820 7334 

FAA GLRC 

t v • . .. · ' ... J'.:· 

.Creation TccJ1noiu~i~. lor;. 

CreHl'ion ~reehnologics. Inc. 

Cr~ation ·rcchnoi<)gics, [nc. 

A.gilcnt Tcn:hnologics 

Agilcnt Tcchno-lo~.tl~ 

Cr<lat'ion 'l'ecllno!Clgies .• Inc. 

Crotado~ TQ<::hnolog!cs. lnc. 

Creation Technolop;ic~ .. }nc. 

Ct>!Wrioll Tccilnolo~ies, In-;. 

CTCRt.ion Techn()lo!;ies. [11c. 

Crcatio"(l·Technol(lgics. Inc. 

PAGE 03/12 

4. The eleven shipments (as described in paragraph 3) each contained untested prototype 

lithium ion batteries. The shipment of these batteries requires special pennission from the 

Pipeline and Hazardous Materials Safety Administration (PHMSA). NPC did not have the 

requ.ired permission in violation of 49 CFR 173.185(f). 

5. The shipments were improperly packaged in UN 4G fiberboard boxes tested to the 

packing group U stan.dard and should have been packaged in UN 4G pa.cking group I standard. 

6. NPC failed to comply with the hazardous matbrials regulations, in that NPC failed to . • ·. ' ! !•': ' 

make emergency response information, including an emergency response telephone number, 

.• ' <: 

available for use at all. times the dangerous goods were present during the course of the shipment 

by air. 

7. Hazardous material employee Maria Munoz perfonned hazardous m.aterial shipping 

functions when she had not recejved tbe required hazardous materials employee training as 

described in 49 CFR § 171.22(g)(2). 

8. NPC offered. the above-described hazardous material for transportation in air commerce 

when they did not have the required special permission from PHMSA. 

9. NPC offered the above-describeq haz.<:~.rdops ~~terial f.or transportation in air commerce • r ', ' I ~ , ,. I < , 

when they did not properly train their h~at employees jn accordance with the requirements of 

the ha?..ardous materials regulations. . r .... i ( 
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10. NPC offered the sh1pments of dangerous goods for transportation by air when it did not 

properly package the shipments. 

11. NPC offered the above-described hazardous materials for transportation in air commerce 

' ,. '.:.: ', i!' ' • I :; ~ :, ~ ~ 

and the shipments di.d not contain an e!Jlergency.rcsponse number that complied with the I :' ' •' : ' ' 

requirements oftbe HMR. 

II 

By reason of the foregoing facts au.d circumstances, the Respondent violated the following 

Federal Aviation Regulations: 

a) 49 CFR § 171.2( e), which states in relevant part that, no person may offer or accept a 

hazardous material for transportation in commerce unless the hazardous material is 

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

required o.r authorized by applicab.le requirements of this subchapter or an exemption or 

special permit, approval, or registration issued under this subchapter or subchapter A of 

tbjs chapter. 

' . (' ' ' 'I' ·. " ' 

b) 49 CFR §17l.22(b)(l). which 'states that a hazardous material that is offe:red for 

transportation or transported in accordance with the international standards and 

' regulations authorized in paragraph (a) of.this section is subject to the requirements of the . . ' 

applicable international standard or regulation ~d. must be offered for transportation or 

transported in confonnance with the applicable standard or regulation. The shipments 

above violated ICAO Techu.ical Instructions, Special Provision A88, ill. that NPC offered 

package...:; containing Prototype Lithium Batteries for. transpo.rtation by air without 

authority of the State of origin CPI·IMSA) or proper Packing Group I packaging's. 
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c) 49 CFR §171.22(g)(2), which states that a hazardous material that is offered for 

tTansportation or transported in the United States in accordance with this subpart must 

conform. to tbe followi.:ng requirements of this subchapter, as app1icable: (1) Th.e 

'' 

emergency response information requirements in· subpart G of part 172 of this 

subchapter; (2) The trai.njng requirements in subpart H of part 172 of this subchapter. 

including function-specific training in the use of the international transport sta:odards and 

regulations authorized in paragraph (a) of this ~ectio~' as applicable; ' . ' 

d) 49 CFR § 172.604(a)(1) wbkh states in relevant part that a person who offers a hazardous 

material for transportation must provide an emergency response telephone number, 

including the area code, for use in the event of an emergency involv.i.ng the hazardous 

material. for telephone numbers outside the United States, the international access code 

or the"+~' (plus) sign, country code, and chy code, as appropriate, must be iucl.ud.ed. The 

telephone number must be--(1) Monitor.ed at all times the hazardous material is in 

transportation, including storage incidental to transportation; 

e) 49 CFR § 172.702(a), which states in relevant part, ahazmatemployer shall ensure that 

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

this subpart. •I' 

f) 49 CFR § 173.18S(f), which ~t~~ ln rcle~ant ~~rt that a lithium. cell or battery that does 

not comply with the provisions ohbis subchapte~ roay be transported ooly under 

conditions approved by the Associate Administrator. 
09/11/2013 13:40 8472947498 FAA GLRC PAGE 05/12 

<.,.,· .. •, 

.. '· : i i,_•',' ' 

i' 

Pursuant to 49 U.S.C. §5123, Respondent is su~ject to a cjvil peualty of at least $250 but not ' ' ' ,, 

more than $50,000 for each of the violations alleged Under the facts and circumstances of this 

case, a civil penalty of $66,000 is appropriate. · 

WHEREFORE; the FAA, by counsel, respectfully requests that the Administrative Law 

Judge enter an order assessing National Power Corporation a civil penalty in the amount of$66,000. 

Respectfully submitted, 

~o"' Kate 

~ Barber 

Attorney 

Federal Aviation Administration 

2300 East Devon Avenue, AGL-7 

Des Plaines, Illinois 60018 

84 7/294-7862 

Fax: 847/-294-7498 

NOTE: 

. ·'' ' 

·i 

The Rule.." of Practice for this proce~ing are set forth in Part 13, Subpart G, of tbe 

Federal Aviation Regulations (14 C.F.R. Part 13). · 

The Rules of .Practice provide that Respondent must file a written answer to this 

Complaint, or a written Motion to Dismiss if o.pp.-opriate, not late.- than 30 days after the date 

shown on the Certificate of Sen>ice. A general denial is deemed a failure to file an answer 

(Section 13.209(e)). 
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CERTIFICATE OF SERVICE 

I hereby certify that the foregoj:o.g Amended Complaint has sent via USPS and Fax as follows: 

USPS- CertLfi.ed Mail 

Fax: 847-831-l 406 

USPS- Certified MaiJ. 

Fax:202-493"5020 

(Original & One Copy) 

USPS~ Certified Mail 

Fax; 202-366-7536 

Martin A. Blumenthal 

' Attorney 

Yol n 

O~e Northfield Plaza, Suite 300 

Northfield, TL 60093 

Federal Aviation. Administration 

800 Independence Avenue, S.W. 

Wilbur Wright Building, Suite 2Wl 000 

Washington, D.C. 20591 

Attn.: Hearing Docket Clerk, AGC-430 

Honorable Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department ofTransportation 

1200 New Jersey Avenue, S.E. (Ell-31 0) 

Washington DC, 20590 

Leg echnician · 

Federal A via,tion Administration 

Office of Regional Counsel 

2300 East Devon Avenue, AGL-7 

Des Plaines, Illinois 60018 

1,. ' 

t ./ ~ ,' " I, ·, 

',1 .t;<;: .I 0 I I' 
09/11/2013 13:40 8472947498 FAA GLRC 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAl.- AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of National Power Corporation 

201 0-GL-70-0212 

Judge Goodwin 

'. i :t' 

. \''•. ·' 

'' 

PAGE 08/12 

~onmlainant's Motion for Leave to File Late Response w ResJ!ondent's Motion for More 

Definite Statement. to Strike. and Production of Documents 

NOW COMES the Complainant, by counsel, au.d pursuant to the Rules of Practice set forth in 

14 C.P.R. Part 13, Subpart G, of the Federal Aviation Regulations, and for the reasons set forth 

below, moves the Judge for leave to leave to file the attached late response to Respondent's 

Motion foT more Definite Statement, to Strike, and Production of Documents. 

1. After careful Tevlew of the Respondent's Motion the Complainant has filed an Amended 

Complaint that addresses many of the issues that were discussed in the Respondent's 

Motion. 

2. The Complrunant wishes to respond to the remaining issues and requests leave to file the . '~· '' ' ' 

:.I 

attached Response to the Respondent's M~tionl : 

•' 

3. The attached response was not made within tbEfi,r~gulatory time frame due to the assigned 

attorney being out of the office for two weeks and returning Monday September 9, 2013. 

Upon return to the office the Motion was given careful review aod the Amended 

Complaiot and attached Motion VfCre drafted in an expeditious manner. 

•: . .1 

.,·I"' 
09/11/2013 13:40 8472947498 FAA GLRC PAGE 09/12 

i. 

Wherefore, the Complainant requestS leave to file:the attached Respon.se au.d Amended 

Complaint. 

Respectfully submitted, 

~ Kate 

~ Barber 

Attomey 

Federal Aviation Administration 

'I : 

Gr.eat Lakes Region, Office of Regional Counsel 

2300 E. Devon 

Des Plaines, IL 60018 

Phone: 847-294~ 7862 

Fax: 847-294-7498 

1 :.r 

,,'··' 

•·' ,., 

. I 
09/11/2013 13:40 8472947498 FAA GLRC 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter ofNati.orial Power Corporation 

. 2010~GL~70-0212 

·Judge Goodwin 

Response to Respondent's Motion for More Definite Statement. 

To Strike. and Production of Documents 

PAGE 10/12 

NOW COMES the Complainant, by coWlsel, and pursuant to the Rules of Practice set forth in 

14 C.F .R. Part 13, Subpart 0, of the Federal Aviation Regulations, and for the reasons set forth 

below, moves the Judge for an order denying the Respondent's Motion for more definite 

statement, to strike, and production of documents and in response files the attached Amended 

Complaint. 

! \ • : t ~· .';~,' .I 

1. The Complainant has filed an Amended Complaint. The Amended Cor:n.plai.ot is specific 

and clear and addresses each of the concerns of the Respondent The need for a more 

definite statement is rendered moot by the Amended Complaint. (See Attached Amended 

· Complaint) 

2. The Respondent moved the Court in pamwaph seven (7) of their Motion for a more 

definitive statement specifYing why the amount proposed is appropriate. The amount 

proposed by the Complainant is within the amount that the policy and procedures of the 

FAA man.dated in Order 2150.3B. Appendix C. Sanction Guidance H37.-ardous Materials 

Enforcement. The guidelines used to calculate the amount of sanction are published in 

''. !,\ 

;·:H 
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the Order 2150.3b which is a public document. The Complainant objects to producing 

any documents that were used to calculate tbe amount in this specific case because the 

documents are privileged as they contain attorney work product. 

WHER.Jl;FORE, the Complainant hereby respectfully request$ that the Respondent's Motion be 

denied on the basis 1hat the filed Amended Complaint contains the requested more definitive 

statements. Additionally, the Complainant ·requests that the Respondent's request for the 

documents used to calculate the amount of the sanction. be denied. 

Respectfully submitted, 1/k-- ' ~ Kate Barber 

Attorney 

Federal Aviation Administration 

Great Lakes Region, Office of Regional Counsel 

2300 E. Devon 

Des Plaines, IL 60018 

Phone: 847-294-7862 

Fax: 847-294-7498 

. :t 

. · .. : ·.~ :: '3· . . 
09/11/2013 13:40 8472947498 FAA GLRC 

,. 

\ 

CERTIFICATE OF SERVICE 

I hereby certiiy that the foregoing Motion has been sent via USPS and Fax as follows: 

USPS- Certified Mail 

Fax: 847-831-1406 

USPS- Certified Mail 

Fax:202-493~5020 

(Original & One Copy) 

USPS- Certified Mai.l 

Fax:202~366-7536 

Yol 

Martin A. Blumenthal 

Attorney 

One Northfield Pla7...a, Suite 300 

Northfield, JL 60093 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Wilbur Wright Building, Suite 2Wl 000 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Honorable Richard C. Goodwin 

O£Dce ofHearings,.M-20 

U.~. Department ofTransportation. 

1200 New Jersey Avenue, S.E. (Ell-310) 

Was~ngton DC, 20590 

Leg . echnici.an 

Federal Aviation Administration 

Office of Regional Counsel 

2300 Ea.<~t Devon A venue, AG.L-7 

Des Plaines, lllinois 60018 

. ; 

PAGE 12/12