From: Robert Fling Fax: (28-1) 727-0082 To: +12024935142 Fax: +"12024935142 

## S. ROBERT FLING, PLLC. ATTORNEY AT LAW TELEPHONE (281) 391-2003 FACSIMILE (281) 727-0082 Physical Address: 5518 Fifth Street, Suite C Katy, Texas 77493


### Federal Aviation Administration, 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2WIOOO Facsimile: (202) 493-5142 Hon. Richard C. Goodwin May7, 2014 Page 2 of 12(0510712014 5:47

Mailing Address: P.O. Box 411 Katy, Texas 77492



### Office ofHearings, M-20 CMRRR# 7012 1640 0000 4545 5059 U.S. Department ofTransportation 1200 New JerseyAve., S.E. EastBuilding Ground Floor, Room E12-230 Washington, D.C. 20590 Facsimile: (202) 366-7536 Kyle Lomazow General Attorney CMRRRNo. 7012 1640 0000 4545 5097 Office ofthe Regional Counsel Federal Aviation Administration NorthwestMountain Region Renton, Washington 98057 Telephone : (425) 227-1847 Facsimile: (425) 227-1007 

### Re:; FAADocket: TED; FAA CaseNo. 2011WP700181; In theMatter of ChemSystems, Inc.; Honorable Richard C. Goodwin, Please see attached Respondent's Response to Complainant's Motion for Decision or in the Alternative, Motion to Limit the Issues at Hearing to Sanction and exhibits. In addition, please find attached the written agreement extending the time period to respond to Complainant's Motion and email further extending the time period to May7, 2014. Respectfully Submitted, /S/ 

### S**;RoberCFU~** 

### S. RobertFlingPhysical Address: 5518 Fifth Street, Suite C Katy, Texas 77493


### Kyle Lomazow General Attorney 

## S. ROBERT FLING,PLLC. ATTORNEY AT LAW TELEPHONE (281) 391-2003 FACSIM!LE (281) 727-0082



### April 25, 2014



### Office ofthe Regional Counsel FAANorthwestMountain Region 1601 Lind Ave. SW, ANM-7 Renton, Washington 98057 Mailing Address: P.O. Box 411 Katy, Texas 77492



### Re:; FM Docket: TBD; FM CaseNo. 2011WP700181; In the

### Matterof ChemSystems, Inc.; Mr. Lomazow,**~!{\.;;·** "\ \ 

### Per our conversation on Apri'i''23, 20!4, 

### counsel for the Federal Aviation Administration, Mr. Kyle E. Lomazow, has agreed to extend the due date for Respondent Chemsystems, Inc.'s response to Complainant's Motion for Decision or in the Alternative, Motion to Limit the Issues at the Hearing to Sanction to the date ofMay 5, 2014. 

### Ifthe language above is 

### atrue and correct account ofourconversation 

### and agreement, please sign below. k 

### you for youraccommodation.

Kx oma

ener!)J-1(ttorney 

### ffleeofthe Regional Counsel CC: Hon, Richard C. Goodwin Office ofHearlngs 1**M~20** U.S. Department ofTransportation 1200 New Jersey Ave., S.E. East Building Ground Floor, Room**E!2~230** Washington, D.C. 20590 Faesimile: {202)366-7536

Lt:s**Y~OZ/**L0/901Gl .JO £ aB-ed Z:ti-9BStz:on+ :xe.:l 

### Sincerely,

S. RobertFling 

### Counsel for 

### Chemsystems, Inc.

Z:BOO-LGL**(~SG)** :xe.::J 6U!I.:l +JSqOtj :WO.I::/From: Robert Fling


### Robert Fling From: Sent: To: Subject:
Hi Mr. Fling, Fax: (281) 727-0082 To: +12024935142

Kyle.Lomazow@faa.gov Tuesday, May 06, 2014 5 18 PM Robert Fling RE: Chemsystems

I have no problem with the response being filed tomorrow at all. Fax: +12024935142 Page 4 of ·1210510712014 5:47

In regards to the financial documents, besides the 2013 we still need the completed OBD-500 and a financial statement forthis calendar year so far. Once we have all that Ithinkwe should be good to go. thanks, Kyle Lomazow General Attorney Office of the Regional Counsel FAA Northwest Mountain Region 1601 Lind Ave. SW, ANM-7 Renton, WA 98057 (425) 227-1847

From: "Robert Fling" <robert@flinglaw.com> To: Date: ANM-007, Office ofRegional Counsel Kyle Lomazow/ANM/FAA@FAA,

05106/2014 03:01 PM Subject: RE: Chemsystems

Mr. lomazow, I apologize In advance for askfng, would object tothe Response befng tiled tomorrow. FAA HAZ MAT actions are not my normal tleld of practice and I am tryfngto learn as I go. 1am alos waiting on myclient's 2013 tax return which Itoldthem I needed today. Ifyou cannot extend theffllng totomorrow, please let me know and Iwlll drafta Motion for leaveto filealong with the Response. I have attached my dients Fed Tax Returns for 2010, 2011 and 2012. I have also attached Texas Workforce Commission filings showing the numberofemployees. 

### S. RobertFling Attorney at Law 5518 Fifth Street, Suite C Katy, Texas 77493 P.O. 

### Box411 Katy, Texas 77492 Telephone: 281-391-2003 Facsimile: 281-727-0082 1From: RobNt Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024835142 Page 5 of 12(0510712014 5:47 RobeJt@FlingLaw.com

Circular 230Disclosure: Incompliance withrequirements imposedbythe IRSPursuanttoIRS Circular 230, we informyouthat any U.S. lax advice contained inthis commilllication (including any attachments) is notintendedorvvrittentobe used, and cannotbeused, forthepurpose of(i) avoiding penalties underthe InternalRevenue Code or (ii) promoting, marketing orrecommendingto anotherpartyany transactionor matter addressedherein. CONFIDENTIALITYNOTICE: Unless othervvise indicated or obvious from the nature ofthe transmittal, the informationcontained inthis email message is attorney privileged and confidential informationintendedfor the use ofthe individual ruuned above. Ifthe reader ofthis message is notthe intendedrecipient, orthe employee or agentresponsible to deliver itto the intendedrecipient, youare herebynotified that anydissemination, distribution or copying ofthis communicationis strictlyprohibited. Ifyouhavereceivedthis e-mail illerror, please immediately notifyme at (281) 391-2003 andpermanentlydelete the original and any copy ofany e-mail and anyprintout !hereof From: Kyle.Lomazow@faa.gov [mailto:Kyle.Lomazow@faa.gov] Sent: Thursday, May 01, 2014 4:11 PM To: s. Robert Fling Subject: Re: Chemsystems Hi Mr. Fling, As I indicated in my prior email I looked into the 2 pages that you stated were washed out Those two pages following the report are completely blank pages. My guess is they were accidentally included as part of the file rather than justthrown away. Following those two pages is a 4 page "hazardous materials incident report." Iassume you have a clear copy of that particular report, but if not please let me know and Iwill forward you a copy. Thanks, Kyle Lomazow General Attorney Office of the Regional Counsel FAA Northwest Mountain Region 1601 Lind Ave. SW, ANM-7 Renton, WA 98057 (425) 227-1847

From: "S. Robert Fling" <robert@fljnglaw.com>**ANM~007,** Office of Regional Counsel To: Date: Subject:Kyle Lomazow/ANM/FM@FAA, 04/23/2014 01 ·.06 PM

Re: Chemsystems

Mr. Lomazow, Thankyou for the introduction. I will be sending a Second Requests for Production and Interrogatories this afternoon.

Mr. Adolph and myselftypically faxed/emailed documentsto each other along with mailingthe documents. Ifyou would like me to fax the request please forward your fax number. Ifyou would like to forego the antiquated fax system and simply request by email and certified mail please let me know. Also, in the FAA's Responses to myfirst Requests for Production the copies ofthe 11 picturestaken byAgent Michael Burdick are in black and white and the details ofthe pictures are lost in the darkness. Could you please forward the 2From: Robert Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024935142 Page 6 of 12!0510712014 5:47
11 pictures in color. Also, there are 2 pages immediatelyfollowing the pictures that are completely washed out. they appear to be some sort of report but are completely illegible. Please forward clear copies ofthose documents. Also, I received the FAA's Motion for Decision or in the Alternative Motion to Limit Issues on approximatelyAprilll. was in trial at the time and then entered into another trial setting on April 

### 21, 2014. Iwould like to file a response to the Motion, would it be possible to obtain a Rule 

### 11 agreement providing me with an additional weeI< tofile an answer? Mr. Adolph and I had previously discussed a possible resolution to this matter, we had not agreed on a number, however my clients would rather resolve this issue priorto the hearing f possible. S. Robert Fling Attorney at Law 

### 5518 Fifth Street, Suite C Katy, Texas 

### 77493 P.O. Box 

### 411 Katy, Texas 

### 77492 Telephone: 

### 281-391-2003 Facsimile: 

### 281-727-0082 Robert@Fiinglaw.com

Circular 

### 230 Disclosure: In compliance with requirements imposed bythe IRS Pursuant to IRS Circular 

### 230, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended orwritten to be used, and cannot be used, for the purpose of (i) avoiding penalties underthe Internal Revenue Code or 

### (ii) promoting, marketing or recommendingto another partyanytransaction or matter addressed herein. CONFIDENTIALITY NOTICE: Unless otherwise indicated or obvious from the nature ofthe transmittal, the information contained in this e-mail message is attorney privileged and confidential information intended forthe use ofthe individual named above. Ifthe reader ofthis message is not the intended recipient, or the employee oragent responsible to deliver itto the intended reci From: Kyle.Lomazow@faa.gov Sent: Tuesday, April 22, 20145:29PM To: robert@fiinglaw.com Subject: Chemsystems Hi Mr. Fling, Ijustwanted to give you the heads up that Iam taking this case over for Courtney Adolph so any future communications should be directed to me. Iam going to serve a Notice of Appearance with you and Judge Goodwin tomorrow, but just as a courtesy I wanted to let you know beforehand. Isee that the hearing is scheduled for June 23-26 in Houston so it looks like we will meet then. thanks,

3From: Robert Fling
Kyle Lomazow General Attorney Fax: (281) 727-0082

Office of the Regional Counsel FAA Northwest Mountain Region 1601 Lind Ave. SW, ANM-7 Renton, WA 98057 To: +12024935142 Fax: +12024935142 Page 7 of 12(05/07/2014 5:47

(425) 227-1847 

### [attachment "FedTax Return 2010.pdf'' deletedby Kyle Lomazow/ANM/FAA] [attachment "Fed Tax Return 2011.pdf'' deletedby Kyle Lomazow/ANM/FAA] [attachment "Fed Tax Return 2012.pdf'' deletedbyKyle Lomazow/ ANM/FAA] [attachment "Texas Workforce Commission's Employer's QuarterlyReport · Filed onOctober 09, 20ll.pdf'' deleted by Kyle Lomazow/ANM/FAA] [attaclunent "Texas Workforce Commission's Employer's QuarterlyReport- Filed onApril28, 2013.pdf" deletedbyKyle Lomazow/ANM/FAA] [attachment "Texas Workforce Commission QtrlyReport 1- 

### 2012.pdf'' deleted by Kyle Lomazow/ANM/FAA]

4From: Robert Fling Fax: (2B1) 727-0082 To: +12024935142**F~x:** +12024935142



### U.S.**DEl~**

### ARTMENTOFTRANSPORTATION OFFICEOFHEARINGS WASHINGTON, DC Page 8 of 12(0510712014 5:47



### In the Matterof: ChemSystems,Inc,, ) FAA

### DOCKET No: TBD .FDMS No: FAA-2012-0911 Chemsystems, Inc. ) ) ) 

### Respnndent )**~'AA** Regi&n: WesternPacific .Judge: Richard C. Goodwin


### RESI'ONDENT'S OPPOSITION TO COMPl-AINANT'S MO'I:lON FOR UEClSION OU, IN THE ALTERNATlV.E, MOTION TO LIMIT TilE ISSUES AT HEARING TO SANCTION 1. Chemsystems, Inc. (''Respondent") submits this memorandqm in opposition to the Administrator's ("Complainant") Motion ·for Decision. or, in the Alternative, Motitln to Limit the Issues at Hearing to Sanction. Claimant seeks a Motion 

### fbr Decision claiming there is no genuine issue ofmaterial fact and that Claimant is entitled to a decision as a matter oflaw. Clai.mant essentially seeks a Motion

### for Swnmary Judgment. The Supreme Court hris identified tbe burden 

### ofprooffor swnrnaryjudgment in the 

### f(lllov'ling frequently cited cases: 

### Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.2548 (1986);

### Anderson v. Uberty Lobby, Inc, 477 U.S. 242, 106 S. Ct. 

### 2505 (1986). Theburdenofproofin a summaryjudgmentpr<lcced.ing is 

### on the same patty who would bear tb.e burden attriaL 

### Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. AU reasonable doubts about the facts must he resolved 

### in favor 

### of the 

### noimlovant. Cooper Tire andRubberCo. v. Farese, 423 

### F.3d446, 456 

### (5rh Cir.2005),



### 2. The product 

### shipped in this matter is a 

### Convumer Commodity 1mder 

### §l7

### LD08 and is ciassified as UN3264, 

### Har..ard Class 8, Packing Group III. In 

### ti1e limited quantity 

### in which it

was shipped, the productintothe exceptions forClass 8 under §I73.154(b)(2) and §173. !54(C).From: Robert Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024935142 Page 9 of 12t05/0712014 5:47



### The product 

### was shipped on AUI;,'llst 4, 2011 in individual inner packaging plastic containers with a screw top containing lesson than 3.78 littJrs (1 U.S.gallon) bearing all required hazardous material markings. The outer packaging consisted of a tiberboard box containing less than ' 

# . 1S.14liters (four 

### U.S. gallons) ofthe product and containing all markings required !br\JN3264, 

### Hazard Class 8, Packing Group 

### li1 shipped in this limited quantity as it falls into the exceptions ti:Jr 

### Class 8 under §173.154(b)(2) and §

### 173.154(C), The 

### package shipped was in compliance with 

### the pwvlsions of

### 49 C.F.R. 

### 172.101 and. 

### 49 C.F.R 173.154. 

### At no time did Respondent intend 

### or offer to ship the package 

### by air. Respondent offered and intended the package 

### by ground ttansportati(llt. The package 

### was in 

### foct shipped 

### by ground 

### transportation. ·rhe Fedex Hazardous 

### Material Incident Report is attachedas 

### Exhibit "A", 3. The product shipped in this matter .is a 

### Consumer Commodity under §

### 171.008 and the prodnct was shipped inindividual innerpackagingplastic rec<:ptacle 

### with a screwtop containing lesson than 

### 3.78 liters (1 

### U.S.gallon) beating all

### required

### hazardous material markings, 4. Respondent maintains that the package contained 

### all necessary 

### labels, markings and documentations. Complainant's report 

### prepared by agent 

### Michael 

### Burdick notes under photographs 7 & 8 

### that the fiberboard box was total.ly saturated and that sides ofthe box were in pieces. Agent 

### Bnrdick's report also notes that the Fed.eral Express 

### Corporati.au {)ange.rous Goods Administration ("Fedex"} did not notify Complainant of the spill at their facility in 

### Oakland, Californiatmtil August 18, 2011, more than ten (10) days after the package arrived at the Fedex Oakland, 

### Californiafacility. (Complainant'sreport is attached as Exhibit "B"). 

### 5. Complainant's rept>rt further states that the leaking package arrived at lh.e Oakland 

### facility at I0:47pmonAugust7, 20ll,however it

### was notunloaded orfhund

### tobe lealdng untll 5:06 pm on August 8, 2011, over IS hours after arrival at the Fedex Oaklruld 

### facility.From: Robert Fling Fax: (281} 727-0082 To: +12024935142 Fax: +12024935142 Page 10of 12(05/07/2014 5:47



### ComplaiJlant's report states that the 

### fiberboard box was totally saturated and 

### in pieces but 

### describes no efforts by 

### Fedex or Complainant to verify all 

### pieces ofthe 

### box or labels f:i:om the 

### box had 

### been recovered. ( Complainant's report 

### is atta(:bed as Exhibit "B"). Complainant's investigation 

### photographs, produced by Complainant 

### responsive to Respondent's Request for Production show pieces ofthe

### Hberboard box completely saturated 

### and destroyed. It is tmclear if the JJ.berboard 

### box became saturated inside the Fedex truck during shipment or after the 

### fiberboard box was placed in the 55 gallon bane! 

### lor more than IZ days. (Complain!mt's 

### pictutes are attacb(-d as Exhibit "C"). Complainant's pictures 

### 5, 6, 7 and 8 

### show the deteriorated condiiion ofthe Hberboard hox after being saturated in a 55 gallon drum for 

### more than 12 days. 

### 6. Contplainant's 

### report fiJ.rther states that Fedex placed the leaking plastic container 

### and 

### saturated pieces of

### the fiberboard

### h<>x. 

### in. a55 gallon 

### drum Jbr 12 days until Complainantarrived to inspect the leaking plasiic container and saturated cardboard. 

### picl)cs. Respondent maintains that hazardous tttaterial labels artd documentation were in place when the package was shipped from 

### Houston butnot recovered

### or niaintained 

### by Fedex. 7. In additionto being fully saturated, the fiberboard box showsdamage unrelated to a leak of fluids. Complainant's photograph 4, produced responsive to Re:i.pondent's Requests for Production shows a long

### jagged tear in the 

### top corner ofthe fiberboard 

### box. (Cmnplalnant's pictures are attached a.s Exhibit "C") The drullitge whichcaused the plastic il:ltedor containerto leak was caused 

### by Fedex's 

### mishandling on

### the package. Complainant's report does not state the interior plastic 

### contait1ers were discovered with 

### open c>r loosened screw 

### tojo caps. 

### (Complairumt's reportis attached 

### as Exhibit "B"). In fact, Complainant's pictures of

### the plastic 

### ccmtainers show all lids to be securely in place. (Complainant's picwres are attached 

### as ExhibitFrom: RobBrt Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024935"142 Page 11 of 12!05/07/2014 5:47

"C"). .Federal Regulation 49 C.F.R. 

### §173.27 

### requires each sc.rew•type closure on any package must be secured to 

### preve11t closure from loosening due to vibration 

# or substantial change in temperature. 

### Co1npiainant's Motion presents 

### no evid.ence to indicate Respondent 

### violated 49 C.F.R. §173.27. 8. Complainant maintains that Respondent violated 49 C.F.R. §173.24(b) by shipping the package in 

### a Jiberboard box which became satumted wh<en 

### one of the 

### four interior plastic 

### containers developed a. leak. Complainant's photographs shows damage to one of the top
comers ofthe fiberboard box. 

### (Picture 4 of Complainant's pictures attached as Exhibit ''C"). The exterior fiberboard box 

### packaging is 

### C(ll'i.1pliant with NonAndk 

### packages for liquid hazardous materials in 

### packing Group Ill 49 C.F.R 173.203. 

### Respondent .J.nain.talns that the 

### outer container W<\S corrugated fiberboard 

### box designed, 

### constructed, malntained, 

### filled with its contents 

### so limited and

### closed so that 

### under conditio11s normally 

### incident to tT!UlS!)Ottiition there would have been 

### no release ofhazatdous material and the package would have withstood the shocks, loadings 

### or vibrations ntlrmally encountered 

### during transportation. Respondent maintains that the damage to the exterior co.rrugated 

### fiberbtlard box 

### indicates the package was negligently 

### loaded and transported byFed.ex. 9. In addition, Claimant maintains that the package 

### did not 

### include shipping papers, however photograph S of Complainant's photographs clearly shows the plastic envelope attached to the 

### exterior ofthe saturated box. 

### The plastic envelope appears to have beenopened and the 

### documents retrmved 

### from the 

### envelope. Complainant's report nor pictures mention of show 

### the documents removed from the plastic envelope. No docl!ments from the plastic envelope were produced responsive. 

### to Respondent'sRequests fur Production. Shipping papers W<mld have been included within the plastic envelope attached to the top ofthe fiberboard box.From: Robert Fling Fax: (2B1)**727~0082** To: +12024935142 Fax: +12024935142 Page 12of 12(0510712014 5:47



### Respondent as demonstrated an issue of fact, specifical1y that the package was damaged by 

### Fedex's handling and**d~lay** 

### in removing the package from the truck then**furth~r** 

### dell!Y in contaciing the FAA Respo1.t\l.cnt's_j(now**l~Sf** 

### 10. Complainant assumes that Respondent acted knowingly simply because Respondent had knowledge 

### of what 

### was contained within the package. However; Complainan.t C<lntends because Respondent'had knowledge ofone fact, Respo11deni had knowledge ofall 

### facts giving rise to the 

### claimed violation. As 

### cited in Complainant's mution 49 U.S,C. 

### 5123 (a) 

### states, a 

### person knowingly 

### violates a hazmat regulation if"(A) the person has actual knowledge ofthe facts giving rise to 

### the violation; or (B) a reasonable person in the circumstances and exercising reasonable care would have that knowledge." 49 U.S.C. 

### §5123(a)(l)(A)&(B). 11, Complainant provides no evidence that Respondent knew the package was n6t properly marked, labeled and without a material data sheet. Otl 

### the conttaty, Complainant relies on photographs**prodnc<~d** 

### by Respondel1t that demonstrate that packages were as a general practice ptoperly 

### marked, labeled and containing a material data sheet to demonstrate that the 

### package
was knowingly unmarked and labeled in August 2011. ln addition, reports provided by Complainant indicate the package was notdiscovered to beleaking until more than twelve

### h(mrs after it arrived in 

### Oakland by ground transpOitation and that Fcdex did not notify Complainant ofthe 

### leak until more than l0 days after the leaking package was discovered. Asstated above, Respondent maintains that the package was properly marked and labeled. when it left HMston, Texas (m 

### August 4, 2011. Those labels and markings were lost or destmyed due to Fedex's delay and mishandlillg. Respondent has requested records related to Fedex's handling ofthe fiberboard container after discovery ofthe leak.From: Robert Fllng Fax: (281) 727-0082 To: +12024935142 Fax: +12024835142 Page 13of 12!05107/2014 5:47



### 12. In the**ali"m~tive,** 

### ifthe package was not labeled and marked, the statement ofSharon Wooten demonstrates that Ms. Wooten intended to ship the package by ground and mistakenly shipped the package Fedex "Express Saver" thinking the package would be shipped by ground transportation. Fedex shipping records indicate the package was in 

## tact shipped by ground transpmiation. 13. The Invoice, Sales Order, Work Order and Packing Slip for the shipmenttendered under tracking number 4930-6265-8064 

### provided by 

### Respond.ent and attach<:d by 

### Claimaut as Item of Proof 8, demonstrate that Respondent intended and actually thought the shipmellt was being sent by 

### ground delivery. All four documents were prepaJ·ed on August 4, 2011, the day ihe package was shipped, all !bur documents identity the package as being shipped by 

### "Fedex Ground". The Invoice, Sales Order, Work Order and Packing Slip are attached collectively as Exhibit "M". 

### RespmJde!tCJLQJscovery 

### Retluests !4, 

### On June 19, 2013, 

### Respondent served upon Complainant requests i{Jr admissions, requests for i.nterrogatol'ies and requests for production
.. On November 7, 2013, Complainant served upon Respondent its Responses to Requests 

### tor Admissions, Requests for Interrogatories and Requests fin Production along with twelve items ofproofincluding the statement orreport of FAA Special Agent Michael Burdick attached as Exhibit "B" and black and white photographs taken byFAA Special Agent Michael Burdick aWtched as Exhibit "C". 15. In addition, Complainant's items ofproofinclude a copy ofthe Feclex tracking history for the package, tracking number 4930·6265·8064 

### printed on August 19, 2011. The tracking 

### history is attached as 

### Exhibit "D". The pages ofthe

### tracking history are illegible. Uponinquiry, counsel for Respondent was intbrmed that the two illegible pages were blank pagesFrom: Robert Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024935142 Page 14of 12(05/0712014 5:47

inadvertently including 

### by mistake. The tracking history clearly wntains printed infbnnation that cannot be read, the tracking history may contain ini\mnation relevant to Respondent's defense or informationthat wuld leadto admissible evidence. 16. Based upon Claimant's discovery responses, Respondent has forwarded Respondent's Second Requests f(lr Discovery on April23, 2014. Respondent's Interrogatory Number !"our seeks infonnation relatedto Fedex's efforts to searchfor or recoverpieces ofthe fiberboard bnx and/or labels fi·om the fiberboard box from the truck from which the box was removed. In addition, Respondent's Second Request for Production seeks to inspect the pieces 

### of the fiberboard box to identify remnants ofhazardous material labels, 

### tile document identifie,d by Claimllnt as the "Air Way B.ill" to detennine 

### if the way bill specifically suggest that that package be sent by i,'l'ound shipping and a copy oftbe tracking history mentioned in Special Agent Burdick'sreport

### as well as col<lrphotographs from Special Agent Burdick'sphotographs. Respondent's Second Requestsfor Discovery are attached as Exhibit"D". 17. Although Clfiimanthas providedcolorphotographs from Special AgentBnrdick'sreport, Claimant has informed Respondent that the discovery period ended pursuant to the Amended Procedural Order served October 22, 2013. However, that pwccdural order also designated March 

### :J., 

### 2014 

### as the date 

### ofthe hearing. On

### February 2, 2()14; 

### Complainant requested thatthe 

### hearing be moved to a date after 

### April 1, 2014 because Special 

### Agerlt Burdick's unavailability, The hearing

### has beenre-settoJune 21, 2014. 18. Inthe alternativetothearguments above,Respondentrequest 1hat Claimant'sMotion for Deci.sicm be continued until Respondent hasreceived and had timeto inspectthe fiberboard box shown in Claimant's report and review Claimant'sresponsesto Respondent's Second Discovery Requests.From: Robert Fling Fax: (2B1) 727-00B2 To: +12024935142 Fax: +12024935142 Page 15of 12!0510712014 5:47



### Civil 

### Penaliy_Amoom 19, If

### the. Comt

### does decide acivil

### penalty shouldhe imposed uponRespondent, Respondent request that the amount soLtghtby Claimantbe redu.ced. The amount ofthe civil 

### penalty sought by 

### Claimant will 

### greatly inhibit 

### Respondent's ability to remain solvent and in operation. Respondent has 

### provided to Claimant its Federal Tax Returns for the years 2010, 2011, and 2012. 

### Resp<lndent's2013 tax returns 

### are attached to this response, (Tax returns are attached as Exhibits "F","G","H", and "I"respectively). The tax returns demonstrate that Chemsystems did not make aprofit inthe year 2010 or 2011 and lost money in2013, Respondent has 

### forwarded its Texas Workforce Commission reports demonstrating that at no time since the year 2011 has Respondent 

### had. more than 18 employees. 

### Respondent's Texas 

### Workforce Commission are attached 

### as exhibits ''.1", "K", and "L". Respondent 

### is a small business as defined by 

### 13 CPR 121.104, 20. The Claimant, the FAA, must consider Respondent Chemsystems ability to remain. in business as.well as Respondentfs ability to stay in business. 49 U.S.C. §5123(c). Respondent would not be able 

### to remain financially solvent if 

### a penalty of $154,000.00 is 

### imposed, Respondent's fedeml income tax fllings dem.onstrate Respondent has not been profitable in
more than

### three years, 

### 21, In addition to the 

### inabiliiy of Resp,mdent to 

### pay the 

### penalty sought by Claimant, the amount 

### ofthe**p~'llalty** 

### should be mitigated by the facts of the claimed 

### infraction. Uude.r 49 U.S.C. 

### § 5123 (c) 

### and 14 C,F.R. § 

### l3.l6(c) the 

### Administrator must consider the following 

### factors in setting the sanction am.ount: (1)the nature, circumstances, extent 

### and gravity

### ofthe violations; (2) with 

### respect to the violater, the degree ofculpability, any history 

### ofprior 

### violations.,From: Robert Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024935142 Page 16of 12(05/07/2014 5:47

the ability to pay, and anyeffectonthe ability to continue to do business; and (3) othermatters thatjusticerequires. 49 U.S.C. 

### § 5123 (c) and 14 C.P.R.§ 13.16(c). 

### 22. The pa.ckage shipped 

### by Respondent, identified as UN3264,**wa~** a llazard Class 

### 8, Packing Group 

### !II shipped in 

### a limited quantity. 

### The shipment 

### falls i.nto the exceptions for 

### Class 8 tmder §173.154(!>)(2) and 

### §173.154(C). The shipping documents attached ro· this 

### response demonstrate that 

### Respondent at all times intended to ship the package 

### by ground transportation, 

### a mistake related 

### to Fedex's shipping options 

### resulted in 

### the package 

### bemg shipped Fedex Express Saver rather than Fedex Ground, Claimatll and Fed Ex's repnrts indicate the leakingpackage was in fact shipped 

### by ground transportation, resulted in no bodily injury and no property damage. Respondent has 

### no previous violations and has 

### received no notice of

### violations since 

### flus shipment. 23, Although Claimant inaintai.i1s the 

### package contained no 

### markings, Claimant's photographs 

### clearly show that the interior containers are, clearly marked and labeled with aU required 

### hazardous material 

### markings. Ali 

### four plastic 

### containers identify the 

### substance as UN3264, 

### Hazard Class 8, Packing Group 

### !If. The**send~'!·** ofthe 

### package, Chemsystems, is shown along with its Houston 

### phone number Just above the hazardous material markings on each plastic container, The plastic 

### containers and their labels would 

### have been visible to the 

### Fedex repre&'<'ntatives as theyunloaded the saturatedfiberboard box. 

### 24. Complainant·seeks $22,000.00 for each ofseven (7) 

### claimed violations, 

### Complainant's first six claimed violations of 49 C.F.R. §!Tl.2(e), 49 C.F.R. §172.200(a), 49 C.FK 

### §171.300(a), 49 C.P.R. 

### §171.400(a), 49 C.F.R. §172. 600(c) and 172.604(a) restate the same violationsrelated to themarkings 

### and labelingofpackages containinghazardous material.From: Robert Fling Fax: (281) 727-0082 To: +12024935142 Fax: +'12024935142 Page 17of 1210510712014 5:47

25. 49 C.F.R. §l71.2(e) is found under the "GENERAL REQUIREMENTS" heading the Title 49 Transportation Code. Section 171.2(e) states a general requirement under the Transportation Code that all packages containing hazardous material will be properly classed, described, packttged, marked, labeled, and 

### in condition for shipment**d~fined** under Subchapter A ofthe TransportationCode. 26. 49 C.F.R. §172.200(a) again requires the package to include a shippingpaper describing the !Jaz,ardous material. 27. 49 C.F.R. §172.300(a) requires each package to be marked as containing a hazardotis materiaL 28. 

### 49 C.F.R. §172AOO(a) requires that each package containing a hazard class 8 subst,ance be labelled as "Corrosive." 29. 49 C.F.R. §172.600(c) requires that each package COJt!aining hazardous material makes available emergencyresponse information. 

### 30. 49 C.P.R. 172.604(a) provides tbat 

### an emergency response telephone number 

### must be providedbyany

### pernonoffering hazardous

### material for transportation. 

### 3L Respondellt maintain.s that Complainant's 

### complaint seeks 

### to "pile 

### on" by restating the

same 

### violatil)n relatedto the same underlying single actthroughmultiple

### regulations
. 32. The penalties sought 

### by Complainnnt are much too hlgh given Respondent's financial status;thecircumstances

### related to the shipment; the 

### 1nlnimal threat created by the shipment and release; and the lack 

### (>f

### injury to any

### person or property. The

### penalty sought by

### Complainant is far above what was sought 

### by Complainant in

### previous matters such as 

### In Re FrostadAtelier, inc,, FAA Order No. 2013"5; in 

### Re Kaden, FAA Docket No. CP05NM0024, DMSFAA. Ordet: No. 2005"22081 and 

### In 

### Re Macauley, FAA FAA Docket No. CP02S00029; DMS Order No.From: Robert Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024935'142 Page 18of 12(05/07/2014 5:47



### FAA 2002-12591. 33. Complainant seeks a penalty almost three times as high as the penalty in Envirosolve, LLC 

### in which 

### it was 

### determined that 

### the shipper deliberately 

### misled FedEx 

### as to tt1e 

### true contents of a 

### package. In re Envirosolve, LLC, 

### FAA Order No. 2006-2; 

### Docket No. CP02SW0020;DMS

### No. FAA-2002-13915.



### 34. Respondent 

### respectfully requests that this Court deny Claimant's Motion Jhr Decision. Afact issue exist 

### related to 

### Fcdex's handling and delay in locating, m,aintaining, retaining and then reporting 

### the c.laimed discharge to 

### the FAA. In the altemative, Respondent**requ~sts** 

### that Complainant's Motion for Decision be continued until aiier Respt)ndent 

### has received 

### and had time to analyze Complainant's responses to Respondent's Second Requests for Discovery. Further in the ahernative Respondent requests that if the Admistrative 

### Law Judge grants Complainant's motion 

### related to the violations, 

### Respondent prays that 

### the hearing·be held to detem1ine proper sanctions inthis mattL'T.



### DATED: May7,2014 

### Respectfully submitted, S. ROBERT FLING, ATTORNEY

### ATLA

## cLS 

# > S. ROBERT .F'UNG 

### Tl3A 24043660 P.O. 

### Box411 

### Katy, Texas 77492 (281) 391-2003 

### Teleph<me (281) 727-0082 

### Facsimile Attotneyfor

### Defendimt, Cbemsystci11B, Inc.From: Robert Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024935142 Page 19of**12~05107/2014** 5:47



### CERTIFICATE OF SERVICE l further certify that 

### on this date l sent via facsimile and placed in the United States mail, postage prepaid, certified mail, the executed original and one copy of RESPONDENT'S OPPOSTriON TO COMPLAINANT'S MOTION FOR DECISION OR, JN THE ALTERNATIVE, MOTION TO LIMIT TilE ISSUES AT HEARING TO 

### SANCTION, addressed as follows: Federal 

### Aviaiion Administration, 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing DocketClerk, AOC-430 Wilbur WrightBuilding---Suite 2WIOOO Facsimile: (202) 493-5142**Kyl•~** 

### Lomazow General Attorney Office oftheRegionalCounsel Federal AviationAdministration NorthwestMountainRegion Renton, Washington '98057 Telephone: (425) 227-1847 Facs.imile: (425) 

### 227· And by facsimile only to: Hon. Richard C. Goodwin Office ofHearings, M·20 

### U.S. Departmentof

### Transportation 1200New Jersey Ave., S.E. Bast Building Ground Floor, Room El2-230 Washington, D.C. 20590 Facsimile: (202) 366·7536

# D~d:~;:o~~·-,

# .**_2J~~L:::** 

# ..---- s. Robert Fling, · 

### S. Robert

### Fling, Attorney atLaw, PLLC. Attorney for Chemsy&'tems,Inc. CMRRRNo. 7011 0110 0002 296;t;J_:!24



### CMRRR No. 7012 

### l64Q.Q000454UQ.2.Z