U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE OF HEARINGS WASHINGTON, D.C.

Inthe Matter ofNational 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 Administrationpursuantto 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 ofdangerous goods untestedprototype lithiumionbatteries 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 thatitknowingly shipped any goods inviolation ofany statute orregulation. 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 LithiumIon 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 transportedbyNPC in violation ofthe 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 CreationTechnologies, Inc. Creation Technologies, Inc. Creation Technologies, Inc. Agilent Technologies Agilent Technologies Creation Technologies, Inc. Creation Technologies, Inc. Creation Technologies, Inc. Creation Technologies, Inc. CreationTechnologies, Inc. Creation Technologies, Inc. ANSWER: Respondent denies that these shipments violated any statute orregulation. Further, this allegation should be strickenfor vagmeness sine;; it does not specifY how the.shipments violated the hazardous materials regulations. 4. The eleven shipments (as described inparagraph 3) eachcontained untested prototype lithium ionbatteries. The shipment ofthesebatteries requires special permission from the Pipeline and Hazardous Materials Safety Administration (PHMSA). NPC did nothave the required permission in violation of49 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 improperlypackaged inUN 4Gfiberboard boxestestedto the packing group II standard and should have beenpackaged inUN 4Gpacking group I standard. ANSWER: Respondent denies that the shipments were improperly packaged. Respondent followed the stricter ofthe two standards due to the ambiguity ofthe regulations. 6. NPC failed to comply with the hazardous materials regulations, inthat NPC failed to make emergency response information, including an emergencyresponse telephone number, available for use at all times the dangerous goods were present during the course ofthe shipment by air. ANSWER: NPC cannot admit nor deny the allegation herein since a particular shipment (or shipments) is notidentified nor referenced. Further, the term "dangerous goods" is not defined with specificity. 7. Hazardous material employee MariaMunoz performedhazardous material shipping functions when she had notreceived 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 ofdangerous goods for transportation by air when the shipments listed above did not contain a statement indicating that the shipmentis withinthe limitations prescribedfor 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 whenthey did notproperly train their hazmat employees in accordance withthe requirements of the hazardous materials regulations. ANSWER: NPC cannot admit nor deny this allegation since "above described hazardousmaterial" is not referenced to where it is above described. Itfurther denies that it did not properly train its hazmat employees. I0. NPC offered the shipments ofdangerous goods for transportation by air when it did not properlypackage 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 emergencyresponse number that complied withthe requirements ofthe 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 HMRis or purports to be.

II By reason ofthe foregoing facts and circumstances, the Respondent violated the following Federal Aviation Regulations: a) 49 CFR §I71.2(e), which states inrelevant partthat, 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 ofthis subchapter or an exemption or specialpermit, approval, or registration issued under this subchapter or subchapter A ofthis chapter. b) 49 CFR § I7I.22(b)(1), which states that ahazardous material that is offered for transportation ortransported in accordance withthe international standards and regulations authorized inparagraph (a) ofthis section is subject to the requirements ofthe applicable international standard orregulation and must be offered for transportation or transported in conformance withthe applicable standard or regulation. The shipments above violated ICAO Technical Instructions, Special Provision A88, inthatNPC offered packages containing Prototype Lithium Batteries for transportationby air without authority ofthe State oforigin (PHMSA) or proper Packing Group I packaging's [sic]. c) 49 CFR § 171.22(g)(2), which states that ahazardous material that is offered for transportation or transported in the United States in accordance withthis subpart must conform to the following requirements ofthis subchapter, as applicable:(!) The emergency response informationrequirements in subpart G ofpart 172 ofthis subchapter; (2) The trainingrequirements in subpart H ofpart 172 oftbis subchapter, including function-specific training in the use ofthe international transport standards and regulations authorized inparagraph (a) ofthis section, as applicable; d) 49 CFR § 172.604(a)(l) which states inrelevantparttbat apersonwho offers ahazardous material for transportation mustprovide an emergency response telephone number, includingtbe area code, for use inthe event ofan emergency involving tbe hazardous material. Fortelephone numbers outside the United States, tbe international access code or tbe 

### "+" (plus) sign, country code, and city code, as appropriate, mustbe included. The telephone number mustbe-(!) Monitored at all times the hazardous material is intransportation, including storage incidentalto transportation; e) 49 CFR § 172.702(a), which states inrelevant part, a hazmat employer shall ensure that each ofits hazmat employees is trained in accordance withthe requirements prescribed in this subpart. f) 49 CFR § 173.185(£), which states in relevant partthat a lithium cell or battery tbat does not comply withthe provisions oftbis subchapter may be transported onlyunder conditions approvedbytbe Associate Administrator. ANSWER: NPC neither admits nor denies the statements in this Count as they are statements ofvarious regulations which speak for themselves. Further, the above cited regulations are not identified with specificity to any particular shipment. Pursuantto 49 U.S.C. §5123, Respondent is subjectto a civil penalty ofat least $250 but not more tban $50,000 for each ofthe violations alleged. ANSWER: NPC neith!!r admits nor denies the allegation contained herein since it merely cites a regulation which speaks for itself. Underthe facts and circumstances ofthis 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 Corporationby Martin A. Blumenthal, its attorney

Martin A. Blumenthal Attorney for Respondent 1Northfield Plaza, Suite 300 Northfield, IL 60093 847-441-2687 marty@blumenthallaw.comCERTIFICATE OF SERVICE

I hereby certifY that the foregoing Answer was sent viaFirst-Class Mail to: Federal Aviation Administration 800 Independence Avenue, S.W. Wilbur WrightBuilding, 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 ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave., S.E. (E-11-310) Washington, D.C. 20590

Date: 

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MartinA. Blumenthal