U.S. DEPARTMENT OF TRANSPORTATION .. ^ 

FEDERAL AVIATION ADMINISTRATION^ *'^" ^ 2Bti 

In the Matter of: 

Hajoca Waterworks, 

Respondent 

^t:ARlMG DOCKET 

FAA Docket Not Assigned 

FAA Case No. 2010SW700113 

ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT 

NOW COMES HAJOCA WATERWORKS ("Hajoca" or "Respondent"), by and through 

its attorneys, Seyfarth Shaw LLP, and for its Answer and Affirmative Defenses to Complaint, 

states as follows: 

I 

..J -,-:'_J:-=r 

AMENDED COMPLAINT f 1: ' Qg ^ 

On or about March 22, 2010, Hajoca Waterworks ("Hajoca") offered United Parcel 

Service ("UPS") hazardous material for transportation by air from Tulsa, Oklahoma to Gardner, 

Kansas. 

ANSWER: 

The allegations in Paragraph 1 of the Amended Complaint are legal conclusions to which 

no response is required. Hajoca therefore denies the allegations in Paragraph I. 

AMENDED COMPLAINT f 2: 

The shipment consisted of four quart size containers of "CHEM-PRIME HS RED" 

primer (#37 Tnemec Primer) and four quart size containers of "Blackhawk Coating #5011". 

ANSWER: 

Hajoca lacks sufficient knowledge as to what shipment Paragraph 2 is referring and 

therefore cannot form a belief as to the truth of the allegations. Hajoca therefore denies the 

allegations in Paragraph 2. 

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AMENDED COMPLAINT 1T3: 

All eight quarts of "CHEM-PRIME HS RED" and "Blackhawk Coating #5011' 

were contained inside of a non-specification fiberboard box. 

ANSWER: 

The allegations in Paragraph 3 of the Amended Complaint are legal conclusions to which 

no response is required. Hajoca further lacks sufficient knowledge as to what shipment 

Paragraph 3 is referring and therefore cannot form a belief as to the truth of the allegations. 

Hajoca therefore denies the allegations in Paragraph 3. 

AMENDED COMPLAINT f 4: 

"CHEM-PRIME HS RED" primer (#37 Tnemec Primer) and "Blackhawk Coating 

#5011" are classified as hazardous materials under the Department of Transportation Hazardous 

Material Regulations (49 CFR § 172.101). 

ANSWER: 

The allegations in Paragraph 4 of the Amended Complaint are legal conclusions to which 

no response is required. Hajoca therefore denies the allegations in Paragraph 4. 

AMENDED COMPLAINT 115: 

The proper shipping name for "CHEM-PRIME HS RED" primer (#37 Tnemec 

Primer) is Paint, hazard class 3, UNI263, Packing Group III. 

ANSWER: 

Hajoca admits that the proper shipping name contained in the material safety and data 

sheet for "CHEM-PRIME HS RED" is "UN1263, PAINT, 3, PGIII, ERG 128." 

AMENDED COMPLAINT f 6: 

The proper shipping name for "Blackhawk Coating #5011" is Tars, Liquid, hazard 

class 3, UNI999, Packing Group III. 

ANSWER: 

Hajoca admits that the shipping name contained in the material safety and data sheet for 

Blackhawk #5011 is "Tars, liquid including road asphalt and oils, bitumen, and cutbacks." 

13033157V.) 
AMENDED COMPLAINT %7: 

The shipment was sent via UPS air bill number 1Z9VA0690142160275. 

ANSWER: 

Hajoca lacks sufficient knowledge as to what shipment Paragraph 7 is referring and 

therefore cannot form a belief as to the truth of the allegations. Hajoca therefore denies the 

allegations in Paragraph 7. 

AMENDED COMPLAINT fS; 

The shipper was Hajoca Waterworks, 5000 Southwest Blvd., Tulsa, Oklahoma 74107. 

ANSWER: 

The shipper was Hajoca Waterworks, 5000 Southwest Blvd., Tulsa, Oklahoma 74107. 

AMENDED COMPLAINT 119: 

The consignee was Joey, Grimm Construction, 785 East Warren, Gardner, Kansas 66030. 

ANSWER: 

Hajoca lacks sufficient knowledge as to what shipment Paragraph 9 is referring and 

therefore cannot form a belief as to the truth of the allegations. Hajoca therefore denies the 

allegations in Paragraph 9. 

AMENDED COMPLAINT 1110; 

The shipment was discovered leaking a black substance at the UPS Tulsa cargo sort 

station. 

ANSWER: 

Hajoca lacks sufficient knowledge as to what shipment Paragraph 10 is referring and 

therefore cannot form a belief as to the truth of the allegations. Hajoca therefore denies the 

allegations in Paragraph 10. 

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AMENDED COMPLAINT fll : 

At all times mentioned herein, the above described box was not marked with the proper 

shipping name or UN identification number of the hazardous material. 

ANSWER: 

The allegations in Paragraph 11 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca further lacks sufficient knowledge as to what shipment 

Paragraph 11 is referring and therefore caimot form a belief as to the truth of the allegations. 

Hajoca therefore denies the allegations in Paragraph 11. 

AMENDED COMPLAINT f 12: 

At all times mentioned herein, the above described box was not labeled with the proper 

hazardous materials labels, was not accompanied by a shipper's declaration of dangerous goods, 

shipper's certification or other proper shipping documents containing the information, including 

emergency response information, required by the hazardous material regulations, and was not 

otherwise in a condition for transportation by air as required by the hazardous material 

regulations. 

ANSWER: 

The allegations in Paragraph 12 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca further lacks sufficient knowledge as to what shipment 

Paragraph 12 is referring and therefore cannot form a belief as to the truth of the allegations. 

Hajoca therefore denies the allegations in Paragraph 12. 

AMENDED COMPLAINT 1113: 

Hajoca offered hazardous material for transportation by air when the material was not 

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

required or authorized by applicable requirements of the hazardous material regulations. 

ANSWER: 

The allegations in Paragraph 13 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 13. 

13033157V.1 
AMENDED COMPLAINT 1114: 

Hajoca offered hazardous material for transportation by air when the shipping papers did 

not include: 

(a) the identification number prescribed for the material as shown in Column (4) of 

the§ 172.101 table; 

(b) the proper shipping name prescribed for the material in Column (2) of the 

§ 172.101 table; 

(c) the hazard class or division number prescribed for the material, as shown in 

Column (3) of the § 172.101 table; 

(d) the packing group in Roman numerals, as designated for the hazardous material in 

Column (5) of the § 172.101 table; 

(e) the total quantity of each hazardous material covered by the description must be 

indicated; 

(f) the total net mass per package, must be shovm unless a gross mass is indicated in 

Columns (9A) or (9B) of the § 172.101 table in which case the total gross mass 

per package must be shown; 

(g) the number and type of packages must be indicated. 

ANSWER: 

The allegations in Paragraph 14 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 14. 

AMENDED COMPLAINT 1T15: 

Hajoca offered hazardous material for transportation by air and failed to certify by 

printed certification, in the manner allowed by 49 C.F.R. §§ 172.204(a)(1) or 172.204(c)(1), that 

the material was offered for transportation in accordance with the hazardous material regulations. 

ANSWER: 

The allegations in Paragraph 15 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 15. 

13033157V.1 
AMENDED COMPLAINT 1(16: 

Hajoca offered hazardous material for transportation by air when it failed to provide two 

copies of the certification showing that the materials were in accordance with the certification set 

forth in § 172.204(a)(1) or § 172.204(c)(1) of the hazardous materials regulations. 

ANSWER: 

The allegations in Paragraph 16 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 16. 

AMENDED COMPLAINT HIT: 

Hajoca offered hazardous material for transportation in air commerce in non-bulk 

packaging and failed to mark the package with the proper shipping name and identification 

number for its contents. 

ANSWER: 

The allegations in Paragraph 17 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 17. 

AMENDED COMPLAINT 1T18: 

Hajoca offered hazardous material for transportation by air and failed to label the 

package or containment device with the label specified in Section 172.101 (49 C.F.R. 

§ 172.101). 

ANSWER: 

The allegations in Paragraph 18 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 18. 

AMENDED COMPLAINT 1119: 

Hajoca offered hazardous material for transportation by air and failed to make emergency 

response information immediately available for use at all times the hazardous material was 

present. 

ANSWER: 

The allegations in Paragraph 19 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 19. 

I3033157V.1 
AMENDED COMPLAINT 1120: 

Hajoca offered hazardous material for transportation by air and failed to make emergency 

response information, including an emergency response telephone number, required by this 

subpart 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. 

ANSWER: 

The allegations in Paragraph 20 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 20. 

AMENDED COMPLAINT 1[21: 

Hajoca offered hazardous material for transportation by air and failed to provide and 

maintain emergency response information that includes the minimum information set forth in 

this section, 172.602(a)(l-7)). 

ANSWER: 

The allegations in Paragraph 21 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 21. 

AMENDED COMPLAINT 1122: 

Hajoca offered hazardous material for transportation by air and failed to provide an 

emergency response telephone number 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. 

ANSWER: 

The allegations in Paragraph 22 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 22. 

AMENDED COMPLAINT f23: 

Hajoca offered hazardous material for shipment by air when emergency response 

information was not presented on a shipping paper. 

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ANSWER: 

The allegations in Paragraph 23 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 23. 

AMENDED COMPLAINT f24: 

Hajoca offered hazardous material for shipment by air and failed to provide an 

emergency response telephone number (including area code) for use in the event of an 

emergency involving hazardous material that is monitored at all times that the material is in 

transportation, including storage incidental to transportation. 

ANSWER: 

The allegations in Paragraph 24 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 24. 

AMENDED COMPLAINT 1T25: 

Hajoca offered hazardous material for shipment by air and failed to provide an 

emergency response telephone number of a person knowledgeable of the hazardous material 

being shipped and who has comprehensive emergency response and incident mitigation 

information for that material, or has immediate access to a person possessing such knowledge 

and information. 

ANSWER: 

The allegations in Paragraph 25 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 25. 

AMENDED COMPLAINT f 26: 

Hajoca offered hazardous material for transportation by air and failed to provide an 

emergency response telephone number, for use in the event of an emergency involving the 

hazardous material, and entered on a shipping paper immediately following the description of the 

hazardous material required by subpart C of this part, or entered once on the shipping paper in a 

clearly visible location. 

ANSWER: 

The allegations in Paragraph 26 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 26. 

13033157V.1 
AMENDED COMPLAINT K27: 

Hajoca offered hazardous material for transportation by air and failed to train the 

HAZMAT employee who offered the shipment. 

ANSWER: 

The allegations in Paragraph 27 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 27. 

AMENDED COMPLAINT 1128: 

Hajoca offered hazardous material for shipment by air and failed to class and describe the 

hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous 

Materials for Transportation. 

ANSWER: 

The allegations in Paragraph 28 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 28. 

AMENDED COMPLAINT 1T29: 

Hajoca offered hazardous material for shipment by air and failed to use packaging that 

was designed, constructed, maintained, filled, its contents so limited, and closed so that under 

conditions norrnally incident to transportation there was no identifiable release of hazardous 

materials to the environment. 

ANSWER: 

The allegations in Paragraph 29 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca therefore denies the allegations in Paragraph 29. 

II. 

AMENDED COMPLAINT 1130: 

By reason of the above, Hajoca violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations): 

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), in that Hajoca offered hazardous material 

for transportation by air in commerce when the material was not properly classed, described, 

packaged, marked, labeled, and in a condition for shipment as required or authorized by 

applicable requirements of the hazardous material regulations. 

13033I57v,l 
b. Section 172.200(a) (49 C.F.R. § 172.200(a)), which requires that each person 

offering a hazardous material for transportation to properly describe the hazardous material on 

the shipping papers. 

c. Section 172.202(a)(l)(49 C.F.R. § 172.202 (a) (1)) in that it offered hazardous 

material for transportation in air commerce when the required hazardous material description on 

the shipping papers did not include the identification number prescribed for the material as 

shown in Column 4 of the § 172.101 Table. 

d. Section 172.202(a)(2)(49 C.F.R. § 172.202(a)(2)) in that it offered hazardous 

material for transportation in air commerce when the required hazardous material description on 

the shipping papers did not include the proper shipping name prescribed for the material in 

Column 2 of the § 172.101 Table. 

e. Section 172.202(a)(3) (49 C.F.R. § 172.202(a)(3)) in that it offered hazardous 

material for transportation in air commerce when the required shipping papers did not include the 

hazard class or division number prescribed for the material, as shown in Column (3) in the 

Hazardous Materials Table, referenced in section 172.101. 

f Section 172.202(a)(4) (49 C.F.R. § 172.202(a)(4)) in that it offered hazardous 

material for transportation in air commerce when the required shipping papers did not include the 

Packing Group, in Roman numerals, prescribed for the material in Column 5 of the § 172.101 

Table. 

g. Section 172.202(a)(5) (49 C.F.R. § 172.202(a)(5)) in that it offered hazardous 

material for transportation in air commerce and failed to describe the hazardous material on the 

shipping papers, including the total quantity (by net or gross mass, capacity, or as otherwise 

appropriate), including the unit of measurement, or the hazardous material covered by the 

description, in the manner required by this subpart. 

h. Secfion 172.202(a)(6) (49 C.F.R. § 172.202(a)(6)) in that it offered hazardous 

material for transportation in air commerce and failed to describe on the shipping papers the total 

net mass per package, unless a gross mass is indicated in Columns (9A) or (9B) of the § 172.101 

Table. 

i. Section 172.202(a)(7) (49 C.F.R. § 172.202(a)(7)) in that it offered hazardous 

material for transportation in air commerce and failed to describe on the shipping papers the 

number and type of packages. 

j . Section 172.204(a)(49 C.F.R. § 172.204(a)) in that it offered hazardous material 

for transportation by air and failed to certify by printed certification, in the manner allowed by 49 

C.F.R. §§ 172.204(a)(1) or 172.204(a)(2), that the material was offered for transportafion in 

accordance with the hazardous material regulations. 

k. Section 172.204(c)(2) (49 C.F.R. § 172.204(c)(2) in that it offered hazardous 

material for transportation by air when it failed to provide two copies of the certification showing 

that the materials were in accordance with the certification set forth in § 172.204(a)(1) or 

§ 172.204(c)(1) of the hazardous materials regulations. 

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13033157V.1 
1. Section 172.300 (49 C.F.R. § 172.300), which requires that each person offering a 

hazardous material for transportation to properly mark each package, freight container, and 

transport vehicle containing the hazardous material. 

m. Section 172.301(a) (49 C.F.R. § 172.301(a)) in that it offered a hazardous 

material for transportation in air commerce in non-bulk packaging and failed to mark the 

package with the proper shipping name and identification number for its contents. 

n. Section 172.400(a) (49 C.F.R. § 172.400(a)) in that it offered hazardous material 

requiring labeling under the hazardous material regulations for transportation in air commerce 

and failed to label the package or containment device with the label specified in Section 172.101 

(49C.F.R.§ 172.101). 

o. Section 172.600 (49 C.F.R. § 172.600)), which requires that each person offering 

a hazardous material for transportation to provide and maintain emergency response information 

during transportation and at the facility where hazardous materials are loaded for transportation, 

stored incidental to transportation or otherwise handled during any phase of transportation. 

p. Section 172.600(c)(l))(49 C.F.R. § 172.600(c)(1)) in that h offered hazardous 

material for transportation by air and failed to make emergency response information 

immediately available for use at all times the hazardous material was present. 

q. Section 172.600(c)(2))(49 C.F.R. § 172.600(c)(2)) in that h offered hazardous 

material for transportation by air and failed to make emergency response information, including 

emergency response telephone number, required by this subpart 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. 

r. Section 172.602(a)(l -7)) (49 C.F.R. § 172.602(a)) in that it offered a hazardous 

material for transportation by air and failed to provide and maintain emergency response 

information that includes the minimum information set forth in this section, 172.602(a)(l-7)). 

s. Secfion 172.602(b)(2))(49 C.F.R. § 172.602(b)(2)) in that it offered hazardous 

material for transportation by air and failed to provide an emergency response telephone number 

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. 

t. Section 172.602(b)(3)(i))(49 C.F.R. § 172.602(b)(3)(i) in that it offered hazardous 

material for shipment by air when emergency response information was not presented on a 

shipping paper. 

u. Section 172.604(a)(l))(49 C.F.R. § 172.604(a)(1)) in that it offered hazardous 

material for shipment by air and failed to provide an emergency response telephone number 

(including area code) for use in the event of an emergency involving hazardous material that is 

monitored at all times that the material is in transportation, including storage incidental to 

transportation. 

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13033157V.1 
v. Section 172.604(a)(2)) (49 C.F.R. § 172.604(a)(2)) in that it offered hazardous 

material for transportation by air and failed to provide an emergency response telephone number 

of a person knowledgeable of the hazardous material being shipped and who has comprehensive 

emergency response and incident mifigation information for that material, or has immediate 

access to a person possessing such knowledge and information. 

w. Secfion 172.604(a)(3))(49 C.F.R. § 172.604(a)(3)) in that it offered hazardous 

material for transportation by air and failed to provide an emergency response telephone number, 

for use in the event of an emergency involving the hazardous material, and entered on a shipping 

paper immediately following the description of the hazardous material required by subpart C of 

this part, or entered once on the shipping paper in a clearly visible location. 

X. Secfion 172.702(a))(49 C.F.R. § 172.702(a)) in that it offered hazardous material 

for transportation by air and failed to train the HAZMAT employee who offered the shipment. 

y. Secfion 173.1(b) (49 C.F.R. § 173.1(b), which prohibits the shipment of 

hazardous material by air that was not packed in packaging specified in Part 173. 

z. Secfion 173.22(a)(1)) (49 C.F.R. § 173.22(a)(1)) in that it offered hazardous 

material for shipment by air and failed to class and describe the hazardous material in accordance 

with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation. 

aa. Secfion 173.24(b)(1)) (49 C.F.R. § 173.24(b)(1)) in that it offered hazardous 

material for shipment by air and failed to use packaging that was designed, constructed, 

maintained, filled, its contents so limited, and closed so that under conditions normally incident 

to transportation there was no identifiable release of hazardous materials to the environment. 

ANSWER: 

The allegations in Paragraph 30 of the Amended Complaint are legal conclusions to 

which no response is required. Hajoca denies each and every allegation in Paragraph 30. 

III. 

Pursuant to the Federal hazardous material transportation law, and 107.329 of the 

Hazardous Materials Transportafion Regulafions [49 U.S.C. § 5123 (a)(1) and 49 U.S.C. 

§ 107.329] Hajoca Waterworks is liable for a civil penalty not to exceed $50,000.00 for each 

violation alleged. 

Under the facts and circumstances of this case, a civil penalty of $63,000.00 is 

appropriate. 

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13033157V.1 
ANSWER; 

The allegations in part III of the Amended Complaint are legal conclusions to which no 

response is required. Hajoca denies each and every remaining allegation in part III of the 

Amended Complaint. 

Affirmative Defenses 

Respondent asserts the following affirmative defenses without waiving Complainant's 

obligation to meet its burden of proof and without assuming any burden of proof not otherwise 

imposed by law. Respondent reserves the right to raise other defenses of which it may become 

aware at the time of hearing. 

1. The Complaint fails to state a claim against Respondent upon which relief can be 

granted. 

2. Complainant's proposed civil penalty is excessive because Respondent took 

prompt and comprehensive corrective action to prevent future violations, and Respondent has no 

history of previous violations of the Federal Aviation Administration's Hazardous Materials 

Regulations. 

3. Complainant's proposed civil penalty is excessive because Respondent is not the 

manufacturer of the material nor does Respondent regularly ship hazardous materials in the 

course of its business. 

4. Respondent had in place procedures and policies that prohibited employees from 

shipping hazardous materials by air, which were communicated to all of its employees. 

Respondent cannot be held liable for an isolated violation of those procedures and policies by a 

single employee where Respondent did not have any knowledge of the act. 

13 

13033157V.1 
5. The regulations cited by Complainant are vague and ambiguous and did not 

provide Respondent with fair notice of the regulated conduct, especially as Complainant has 

interpreted and applied the standards to Respondent. 

6. The Complaint is vague and ambiguous in that Complainant has failed to provide 

sufficient facts to enable Respondent to evaluate Complainant's allegations that its employees 

violated the cited regulafions and, thus, has further denied Respondent due process. 

DATED: January 28,2011 Respectfully submitted, 

HAJOCA WATERWORKS 

Eric E. Boyd 

Daniel R. Flynn 

SEYFARTH SHAW LLP 

131 South Dearborn Street 

Suite 2400 

Chicago, Illinois 60603 

(312)460-5000 

13033157V.1 

14 
CERTIFICATE OF SERVICE 

I, Daniel R. Flynn, an attorney, do hereby certify that I have caused a true and correct 

copy of the foregoing ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLADSJT to be 

served upon the following, via Federal Express mail on this 28th day of January, 2011: 

James Archier 

Agency Attorney 

Federal Aviation Administration 

Southwest Region 

2601 Meacham Blvd., Suite 6E 

Fort Worth, TX 76137 

Daniel R. Flynn ^ 

13033157V.1