U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS WASHINGTON, D.C. 

In the Matter of National Power Corporation 

2010-GL-70-0212 

Hon. Richard C. Goodwin 

ANSWER 

National Power Corporation (NPC), by counsel, hereby files its Answer to the Complaint filed by 

the Federal Aviation Administration pursuant to 14 C.F.R. 13.209, aud states as follows: 

1. On or about January 8, 2010 until March 25,2010, NPS [sic] knowingly offered to 

Federal Express Corporation, eleven (11) shipments of dangerous goods untested prototype 

lithium ion batteries for trausportation by air, certified under ICAO Technical Instructions for the 

Trausportation ofDaugerous Goods by Air (ICAO TI), including all United States Variations 

thereto. 

ANSWER: Respondent denies that it knowingly shipped any goods in violation of any 

statute or regulation. Further, a citation to ICAO TI is not stated by the Complainant. 

2. The shipping papers for each oft.'le 11 shipments certified. and described the shipment as 

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

ANSWER: Respondent can neither admit nor deny this allegation since the "shipping 

papers" are not identified nor attached as an exhibit to the complaint. 

3. The following eleven shipments were offered and transported by NPC in violation of the 

hazardous materials regulations (the slllprrients}: 

01108/2010 

01108/2010 

01108/2010 

01112/2010 

01/15/2010 

02/10/2010 

03/02/2010 

03/10/2010 

03/10/2010 

03/25/2010 

03/25/2010 

798285410873 

793164350459 

793164350426 

793174932310 

7983077i5600 

798378979723 

793316713356 

798461814731 

798461814720 

793388207231 

793388207334 

Creation Technologies, Inc. 

Creation Technologies, Inc. 

Creation Technologies, Inc. 

Agilent Technologies 

Agilent Technologies 

Creation Technologies, Inc. 

Creation Technologies, Inc. 

Creation Technologies, Inc. 

Creation Technologies, Inc. 

Creation Technologies, Inc. 

Creation Technologies, Inc. 

ANSWER: Respondent denies that these shipments violated any statute or regulation. 

Further, this allegation should be stricken for vagmeness sine;; it does not specifY how the. 
shipments violated the hazardous materials regulations. 

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

prototype 

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

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

required permission in violation of 49 CFR 173.185(£). 

ANSWER: Respondent admits that it did not have a special permission letter at the time 

the shipments identified in paragraph 3 were made. It denies that the batteries were 

untested and therefore it did not need a special permission letter. 

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

packing group II standard and should have been packaged in UN 4G packing group I standard. 

ANSWER: Respondent denies that the shipments were improperly packaged. Respondent 

followed the stricter of the two standards due to the ambiguity of the regulations. 

6. NPC failed to comply with the hazardous materials 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. 

ANSWER: NPC cannot admit nor deny the allegation herein since a particular shipment 

(or shipments) is not identified nor referenced. Further, the term "dangerous goods" is not 

defined with specificity. 

7. Hazardous material employee Maria Munoz performed hazardous material shipping 

functions when she had not received the required hazardous materials employee training. 

ANSWER: NPC denies that Maria Muiioz did not receive hazardous material employee 

training. Further, the allegation does not identify any particular shipment or shipments 

wherein Maria Muiioz performed hazardous material shipping functions. 

8. NPC offered the shipments of dangerous goods for transportation by air when the 

shipments listed above did not contain a statement indicating that the shipment is within the 

limitations prescribed for either passenger and cargo aircraft or cargo aircraft only. 

ANSWER: NPC denies this allegation. 

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

when they did not properly train their hazmat employees in accordance with the requirements of 

the hazardous materials regulations. 

ANSWER: NPC cannot admit nor deny this allegation since "above described hazardous 
material" is not referenced to where it is above described. It further denies that it did not 

properly train its hazmat employees. 

I 0. NPC offered the shipments of dangerous goods for transportation by air when it did not 

properly package the shipments. 

ANSWER: NPC cannot admit nor deny this allegation since "shipments" and "dangerous 

goods" is not identified nor referenced. Further, NPC denies that it ever improperly 

packaged any shipment. 

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

and the shipments did not contain an emergency response number that complied with the 

requirements of the HMR. 

ANSWER: NPC cannot admit nor deny this allegation since "above-described hazardous 

materials" is not referenced to where it is above-described. Further, "shipments" is not 

identified nor specifically referenced. "HMR" is not defined nor is there a citation as to any 

specific location in wh;ttever HMR is or purports to be. 

II 

By reason of the foregoing facts and circumstances, the Respondent violated the following 

Federal Aviation Regulations: 

a) 49 CFR §I71.2(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 or 

authorized by applicable requirements of this subchapter or an exemption or special permit, 

approval, or registration issued under this subchapter or subchapter A of this chapter. 

b) 49 CFR § I7I.22(b )(1 ), which states that a hazardous material that is offered for 

transportation or transported in accordance with the international standards and regulations 

authorized in paragraph (a) of this section is subject to the requirements ofthe applicable 

international standard or regulation and must be offered for transportation or transported in 

conformance with the applicable standard or regulation. The shipments above violated ICAO 

Technical Instructions, Special Provision A88, in that NPC offered packages containing 

Prototype Lithium Batteries for transportation by air without authority of the State of origin 

(PHMSA) or proper Packing Group I packaging's [sic]. 

c) 49 CFR § 171.22(g)(2), which states that a hazardous material that is offered for 

transportation or transported in the United States in accordance with this subpart must conform 

to the following requirements of this subchapter, as applicable:(!) The emergency response 

information requirements in subpart G of part 172 of this subchapter; (2) The training 
requirements in subpart H of part 172 oftbis subchapter, including function-specific training in 

the use of the international transport standards and regulations authorized in paragraph (a) of this 

section, as applicable; 

d) 49 CFR § 172.604(a)(l) which states inrelevantparttbat a person who offers a hazardous 

material for transportation must provide an emergency response telephone number, including tbe 

area code, for use in the event of an emergency involving tbe hazardous material. For telephone 

numbers outside the United States, tbe international access code or tbe "+" (plus) sign, country 

code, and city code, as appropriate, must be included. The telephone number must be-(!) 

Monitored 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, a hazmat employer shall ensure that 

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

subpart. 

f) 49 CFR § 173.185(£), which states in relevant part that a lithium cell or battery tbat does 

not comply with the provisions of tbis subchapter may be transported only under conditions 

approved by tbe Associate Administrator. 

ANSWER: NPC neither admits nor denies the statements in this Count as they are 

statements of various regulations which speak for themselves. Further, the above cited 

regulations are not identified with specificity to any particular shipment. 

Pursuant to 49 U.S.C. §5123, Respondent is subject to a civil penalty of at least $250 but not 

more tban $50,000 for each of the violations alleged. 

ANSWER: NPC neith!!r admits nor denies the allegation contained herein since it merely 

cites a regulation which speaks for itself. 

Under the facts and circumstances of this case, a civil penalty of $66,000 is appropriate. 

ANSWER: NPC denies that a penalty of $66,000 is appropriate nor is there an explanation 

as to why it is appropriate and how it was determined or calculated. 
Respectfully submitted, 

National Power Corporation by 

Martin A. Blumenthal, its attorney 

Martin A. Blumenthal 

Attorney for Respondent 

1 Northfield Plaza, Suite 300 

Northfield, IL 60093 

847-441-2687 

marty@blumenthallaw.com 
CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Answer was sent via First-Class Mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. Wilbur Wright Building, Suite 2WIOOO Washington, D.C. 

20591 

Attn: Hearing Docket Clerk, AGC-430 (Original and one copy) 

Federal Aviation Administration 

2300 E. Devon Ave., AGL-7 

Des Plaines, IL 60018 

Attn.: Kate Barber, Esq. 

The Honorable Richard C. Goodwin, ALJ 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (E-11-310) 

Washington, D.C. 20590 

Date: ,23 ~ 0 

Martin A. Blumenthal