e 

U.S. Departmenl Q^^ ^ ^^ ,^g Regional Counsel, _ p O Box 9^007 

Of Transpo^olion Western-Pacific Region X:PARTiviENT OF Los Angeles, California 90009-2007 

In'J^L'li.^Mi^n''" "Afs'8P0RTAT!0N 010) 725-7128 Telephone 

Administration - T. ^ OP^RATiGNP'^) 725-6816 Facsimile 

MAR 13 2012 

?Hi/ MAR 2 3 P 3M b 

CERTIFIED MAIL - RETURN RECEIPT REQUESTED 

Federal Aviation Administration 

SOO Independence Avenue, SW 

Washington, DC 20591 '-MAR 20 Tflfi 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Room 2\V1000 

Facsimile: (202) 493-5020 

HEARJMG DOCKET 

Re: In the Matter of Westover Corporation /^Di(^-ft\OA'CfP ' C>^^^43 

CaseNo. 20I0WP70O145 ' r-r^^t^^n^ .s -r^O^e^ : 

Enclosed herewith please find a copy of a request for hearing and the original and one copy 

of the Complaint in the above-referenced proceeding. 

The FAA requests that the hearing in this matter be held in the Gardena, California, and 

expects that the hearing will last one (l)day. 

Please address all communications for the FAA to the undersigned, at: Federal Aviation 

Administration Western-Pacific Region, AWP-7.4, Post Office Box 92007, Los Angeles, 

CA 90009-2007; Telephone: (310) 725- 7128, Facsimile: (310) 725-6S16. 

Sincerely, 

"NaomiTsuda 

Regional Counsel 

ney Adolph 

mey 

Enclosed: Request for Hearing 

Complaint 

Certificate of Sen'ice 

Enclosures; Request for Hearing, Complaint, Certificate of Service 

NOTE TO RESPONDENT: SECTION 13.209 OF THE CP RULES OF PRACTICE 

REQUIRES THAT A WRITTEN ANSWER TO THE COMPLAINT BE FILED NOT 

LATER THAN 30 DAYS AFTER SERVICE OF THIS COMPLAINT. AS AN 

ALTERNATIVE TO FILING AN ANSWER, A MOTION MAY BE FILED PURSUANT 

TO SECTION 13.208(D) OR SECTION 13.218 (F) (1-4) OF THE RULES OF PRACTICE. 

cc: AWP^740 
Howard Bittman, Attorney at Law 

Mailing address; P.O. Box 4370, Boulder, CO 80306 

Office address: 1113 Spruce Street. Boulder, CO 

Phone: 303-444-8349: fax: 303 444-1089 

Email: howardbillman[awoffice(S).comcast.net •-.•. \ i , L i..''..H..-i -:Oi . I . ' 

February 29, 2012 

Federal Aviation Administration 

800 Independence Ave., SW 

Washington, D.C. 20591 

Attn.: Hearing Docket Clerk - AGC 430 

Wilbur Wright Building- Room 2W1000 

Re; Case # 2010WP700145AA/estover Corporation 

REQUEST FOR HEARING 

Per (attached) FINAL NOTICE OF PROPOSED FINAL PENALTY dated February 

16, 2012 and received by Westover Corporation on February 21, 2012, Westover 

Corporation hereby requests that a hearing be set on the issues raised therein. 

Westover further requests that said hearing be conducted in Denver, Colorado 

where Westover's business and offices are located. 

Howard Bittman 

Colorado Atty. Reg # 4773 

—^Attorneyfor Westover Corp'oration 

Of: Courtney Adolph 

Office of Regional Counsel 

P\qrBo)r92007--^...^^^ 

Los'Angeles, Califorhia 90009-2007 

^ ^ 

HOWARD BITTMAN 

( ^ 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTTRATION 

FAA DOCKET NOT ASSIGNED 

In the Matter of: 

FAA CASE NO. 2010WP700J 45 

Westover Corporatiou, 

Respondent 

JUDGE NOT ASSIGNED 

COMPLAINT 

The Complainant files its Complaint, pursuant to Rule 208 of the Rules of Practice 

(14C.F.R. § 13.208), and states as follows: 

I. 

Respondent, Westover Corporatioo, was advised tlirough a Final Notice of 

Proposed.Civil Penalty. that-theFederaLAviation-Administration(FAA)proposedto~assess a" 

civil penalty in the amount of $91,000.00. On February 29, 2012, Counsel for Respondent 

submitted a written request for a hearing. 

II. 

1. On or about August 17, 2010, Travis Morse, an employee for the Respondent, 

offered an undeclared shipment to United Parcel Service ("UPS")i for second-day air 

transportation from Denver, Colorado to consignee Westover Controls Corp., 

Newbury Park, California, on air waybill number IZ SOX 094 02 4416 6032 

(refen'ed to hereinafter as "shipment"). The shipment was prepared by Respondent's 

employee Jenell Cordova. 
2. The shipment consisted of one (1) fiberboard box containing two (2) loose Eagle 

Richer Carefree Rechargeable Lead Acid Batteries, CF-I2V7.2, and only (1) 

styiofoam piece and one (1) sheet of paper. 

3. "Eagle Picher Carefree Rechargeable Lead Acid Batteries, CF-12V7.2" are a 

hazardous material, in accordance with the Hazardous Materials Table in Title 49 of 

the Code of Federal Regulations (49 C.F.R.), Section 172.101. Theirproper 

shipping name is "batteries, wet, non-spillable, electric storage" and have an 

identification number of UN2S00, and are in Hazard Class 8, packing group III. 

4. Respondent offered the shipment for air transportation in commerce when it was not 

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

shipment as required or authorized by applicable requirements in Subchapter C of 

Chapter 1 of 49 C.F.R., or an exemption or special pennit, approval, or registration 

issued under Subchapter C or Subchapter A of Chapter I. To wit: 

a. The shipping papers did not include any classification or description of the 

materials being shipped. 

b. The shipment was not properly packaged in order to prevent a dangerous 

evolution of heat, short circuits, and to prevent damage to the battery 

terminals. 

c. Hazardous material markings were not visible on the exterior of the shipment 

box. 
d. Hazardous material labels were not visible on the exterior of the shipment 

box. 

5. Respondent offered the shipment when emergency response infonnation, conforming 

to 49 C.F.R. part 172, subpart G, was hot immediately available for use at all times 

the hazardous material was present. Respondent offered the shipment when it did 

not provide an emergency response telephone number for use in the event of an 

emergency involving the hazardous material. 

6. As described above. Respondent was a haimat employer, and Jenell Cordova was a 

haznuit employee, as those terms arc defined in 49 C.F.R. § 171.8. Respondent 

offered the sliipment for air transportation when Ms. Cordova did not have recurrent 

general awareness/familiarization, function-specific, security awareness, safety, etc. 

training in accordance with subpart H of part 172 of 49 C.F.R. 

7. On August 18, 2010, UPS transported the shipment by air from Denver, Colorado to 

its sorting facility in Ontario, California, where UPS employees observed smoke 

emanating from the shipment and discovered that the shipment contained hazardous 

materials. 

8. Further inspection of the shipment by an FAA Special Agent revealed that each of 

the four (4) battery terminals was unprotected and that metal from each of the four 

battery tenninals had melted. Residue (white) from burning was observed near each 

terminal. Further, two scorch marks were obsen'cd on the sheet of paper that was in 

the box. 
By reason of the foregoing facts and circumstances. Respondent violated the following 

Departmenl of Transportation Hazardous Material Regulafions (Title 49, Part 171 et seq.. 

Code of Federal Regulations): 

a. 49 C.F.R. § 171.2(e), which states that no person may offer hazardous 

material for transportation unless the hazardous material is properly classed, 

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

required or authorized by applicable requirements of the Hazardous Materials 

Regulations, or an exemption, approval, or registration issued under the 

Hazardous Materials Regulations; 

b. 49 C.F.R. § 172.200(a), in that it offered a hazardous material for 

transportation without properly describing the hazardous material on shipping 

papers; 

c. 49 C.F.R. § 172.300(a), which states that each person who offers a hazardous 

material for transportation shall mark each package, freight container, and 

transport vehicle containing the hazardous material in the manner required by 

this subpart; 

d. 49 C.F.R. § 172.400(a), which states that except as specified in §172.400a, 

each person who offers for transportation or transports a hazardous material 

in any of the following packages or containment devices, shall label the 
package or containment device with labels specified for the material in the 

§172.101 table and in this subpart: (1) non-bulk package; 

e. 49 C.F.R. § 172.600(c), which states that no person to whom this subpart 

applies may offer for transportation, accept for transportation, transfer, store 

or olhenvise handle during transportation a hazardous material unless: (1) 

Emergency response infonnafion conforming to this subpart is immediately 

' available for use at all times the hazardous material is present; and (2) 

Emergency response infonnation, including the emergency response 

(elepJione number, required by this subpart is immediately available to any 

person who, as a representative of a Federal, state or local government 

agency, responds to an incident involving a hazardous material, or is 

conducting an investigation which involves a hazardous material; 

f 49 C.F.R. § 172.702(a), which states in relevant part that a hazmat employer 

shall ensure that each of its hazmat employees is trained in accordance with 

the requirements prescribed in this subpart; 

g. 49 C.F.R. § 172.704(a), which states that hazmat employee training must 

include the following: (4) Security Awareness Training. No later than the 

date of the first scheduled recurrent training after March 25, 2003, and in no 

case later than March 24, 2006, each hazmat employee must receive training 

that provides an awareness of security risks associated with hazardous 

materials transportation and methods designed to enhance transportation 

security. This training must also include a component covering how to 
recognize and respond to possible security thi'cats. After March 25, 2003, 

new hazmat employees must receive the security awareness training required 

by this paragraph within 90 days after employment; 

h. 49 C.F.R. § 172.704(c)(2), which states that a hazmat employee shall receive 

the training required in this subpart at least every three (3) years; 

i. 49 C.F.R. § 172.704(d), which states that a record of cuiTenl training, 

inclusive of the preceding three years, in accordance with this section shall be 

created and retained by each hazmat employer for as long as that employee is 

employed by that employer as a hazmat employee and for 90 days thereafter. 

The record shall include: (1) The hazmat employee's name; (2) The most 

recent training completion date of the hazmat employee's training; (3) A 

description, copy, or the location of the training materials used to meet the 

requirements in paragraph (a) of this section; (4) The name and address of the 

person providing the (raining; and (5) Certification that the hazmat employee 

has been trained and tested, as required by this subpart; 

j . 49 C.F.R. § 173.21(c), which states that unless otherwise provided in this 

subchapter, the offering for transportation or transportation of the following 

is forbidden: (c) Electrical devices which are likely to create sparks or 

generate a dangerous quantity of heat, unless packaged in a manner which 

precludes such an occurrence; 
k. 49 C.F.R. § 173.159(a), which states that electric storage batteries, containing 

electrolyte acid or alkaline coiTosivc battery fluid (wet batteries), may not be 

packed with other materials except as provided in paragraphs (g) and (h) of 

this section and in §§ 173.220 and 173.222; and any battery or batterypowered device must be prepared and packaged for transport in a manner to 

prevent; (1) A dangerous evolution of heat {i.e., an amount of heat sufficient 

to be dangerous to packaging or personal safety to include charring of 

packaging, melting of packaging, scorching of packaging, or other evidence); 

(2) Short circuits, including, but not limited to: (i) Packaging each battery or 

each battery-powered device when practicable, in fully enclosed inner 

packagings made of non-conductive material; (ii) Separating or packaging 

batteries and battery-powered devices in a manner to prevent contact with 

other batteries, devices or conductive materials (e.g., metal) in the 

packagings; or (iii) Ensuring exposed tenninals are protected with nonconductive caps,'non-conductive tape, or by other appropriate means; and (3) 

Damage to lerminals. If not impact resistant, the outer packaging must not be 

used as the sole means of protecting the battery terminals from damage or 

short circuiting. Batteries must be securely cushioned and packed to prevent 

shifting which could loosen terminal caps or reorient the terminals. Batteries 

contained in devices must be securely installed. Tenninal protection methods 

include but are not limited to; (i) Securely attaching covers of sufficient 

strength to protect the tenninals; (ii) Packaging the battery in a rigid plastic 

packaging; or (iii) Constructing the battery with tenninals that are recessed or 
otherwise protected so that the terminals will not be subjected to damage if 

the package is dropped; and 

49 C.F.R. § 173.159(b), which states that for transportation by aircraft; (1) 

The packaging for wet batteries must incorporate an acid- or alkaliproof liner, 

or include a supplementary packaging with sufficient strength and adequately 

sealed to prevent leakage of electrolyte fluid in the event of spillage; and (2) 

Any battery-powered device, equipment or vehicle must be packaged for 

transport in a manner to prevent unintenfional activation or must have an 

independent means of preventing unintentional activation {e.g., packaging 

restricts access to activation switch, switch caps or locks, recessed switches, 

trigger locks, temperature sensitive circuit breakers, etc.). 

III. 

1. In accordance with Section 5123 (a) of Title 49 of the United States Code 

(Transportation) [(49 U.S.C. Section 5123 (a)], Respondent is liable for a civil penalty 

of not less than $250.00 ($450 for training violations), nor greater than $50,000 (or 

$100,000 for violations resulting in death, serious illness, or severe injury to any person, 

or substantial destruction of property) for each violation of the Department of 

Transportation Hazardous Materials Regulations. 

2. Under the facts and circumstances of this case, a civil penalty of $91,000.00 

is appropriate. 
WHEREFOR_E, the Complainant, respectfully requests that the Administrafive Law 

Judge enter an order that Respondent be assessed a civil penalty in the amount of 

$91,000.00. 

Respectfully submitted, . 

Courtney Adolph 

Attorney 

Office of the Regional Counsel 

Federal Aviation Administration 

Western-Pacific Region 

DATED: March 13,2012 
CERTIFICATE OF SERVICE 

I hereby certify that on this date I have sent by facsimile and placed in the United 

States mail, postage prepaid, the executed original and one copy of the Administrator's 

Complaint dated March 13, 2012, addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Wasliington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Room 2WIOO0 

Facsimile: (202) 493-5020 

I fiirther certify that on this date I have placed in the United States mail, postage 

prepaid, certified mail, true copies of the Administrator's Complaint dated March 13, 2012, 

addressed as follows; 

President 

---_VVestoyer_Corporafion 

6580 Federal Blvd. 

Denver, CO 80221 

and; 

Howard Bittman, Esq. 

P.O. Box 4370 

Boulder, CO 80306 

Date; March 13,2012 

Antonia Garcia 

Paralegal Specialist 

Office of the Regional Counsel 

Western-Pacific Region