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 77 493 

Federal Aviation Administration, 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright 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 of Hearings, M-20 CMRRR# 7012 1640 0000 4545 5059 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, Room E12-230 

Washington, D.C. 20590 

Facsimile: (202) 366-7536 

Kyle Lomazow 

General Attorney CMRRR No. 7012 1640 0000 4545 5097 

Office of the Regional Counsel 

Federal Aviation Administration 

Northwest Mountain Region 

Renton, Washington 98057 

Telephone : ( 425) 227-1847 

Facsimile: (425) 227-1007 

Re:; FAA Docket: TED; FAA Case No. 2011WP700181; In the Matter 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 May 7, 2014. 

Respectfully Submitted, 

/S/ S ;RoberCFU~ 

S. Robert Fling 
Physical Address: 

5518 Fifth Street, Suite C 

Katy, Texas 77493 

Kyle Lomazow 

General Attorney 

S. ROBERT FLING, PLLC. 

ATTORNEY AT LAW 

TELEPHONE (281) 391-2003 

F ACSIM!LE (281) 727-0082 

April 25, 2014 

Office of the Regional Counsel 

FAA Northwest Mountain Region 

1601 Lind Ave. SW, ANM-7 

Renton, Washington 98057 

Mailing Address: 

P.O. Box 411 

Katy, Texas 77492 

Re:; FM Docket: TBD; FM Case No. 2011WP700181; In the Matter of 

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 of May 5, 

2014. 

If the language above is a true and correct account of our conversation and 

agreement, please sign below. k you for your accommodation. 

Kx oma 

ener!)J-1(ttorney 

fflee of the Regional Counsel 

CC: 

Hon, Richard C. Goodwin 

Office ofHearlngs1 M~20 

U.S. Department of Transportation 

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/ L0/901G l .JO £ aB-ed Z:ti-9BStz:on+ :xe.:l 

Sincerely, 

S. Robert Fling 

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 for this 

calendar year so far. Once we have all that I think we 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 of Regional Counsel 

Kyle Lomazow/ANM/FAA@FAA, 

05106/2014 03:01 PM 

Subject: RE: Chemsystems 

Mr. lomazow, 

I apologize In advance for askfng, would object to the Response befng tiled tomorrow. FAA HAZ MAT actions are not my normal tleld of 

practice and I am tryfng to learn as I go. 1 am a los waiting on my client's 2013 tax return which I told them I needed today. If you cannot 

extend the ffllng to tomorrow, please let me know and I wlll draft a Motion for leave to file along 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 

number of employees. 

S. Robert Fling 

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 

1 
From: RobNt Fling Fax: (281) 727-0082 To: +12024935142 Fax: +12024835142 Page 5 of 12(0510712014 5:47 

RobeJt@FlingLaw.com 

Circular 230 Disclosure: In compliance with requirements imposed by the IRS Pursuant to IRS Circular 230, we inform you that any U.S. lax 

advice contained in this commilllication (including any attachments) is not intended or vvritten to be used, and cannot be used, for the purpose 

of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or 

matter addressed herein. 

CONFIDENTIALITY NOTICE: Unless othervvise indicated or obvious from the nature of the transmittal, the information contained in this email message is attorney privileged and confidential information intended for the use of the individual ruuned above. If the reader of this 

message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that 

any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this e-mail ill error, please 

immediately notify me at (281) 391-2003 and permanently delete the original and any copy of any e-mail and any printout !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 just thrown away. Following 

those two pages is a 4 page "hazardous materials incident report." I assume you have a clear copy of that particular report, but if 

not please let me know and I will 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, 

Thank you for the introduction. I will be sending a Second Requests for Production and Interrogatories this afternoon. 

Mr. Adolph and myself typically faxed/emailed documents to each other along with mailing the documents. If you 

would like me to fax the request please forward your fax number. If you 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 my first Requests for Production the copies of the 11 pictures taken by Agent Michael 

Burdick are in black and white and the details of the pictures are lost in the darkness. Could you please forward the 

2 
From: 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 immediately following the pictures that are completely washed out. they appear to be some 

sort of report but are completely illegible. Please forward clear copies of those documents. 

Also, I received the FAA's Motion for Decision or in the Alternative Motion to Limit Issues on approximately Aprilll. 

was in trial at the time and then entered into another trial setting on April 21, 2014. I would like to file a response to 

the Motion, would it be possible to obtain a Rule 11 agreement providing me with an additional wee I< to file 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 prior to 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 by the 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 or written 

to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) 

promoting, marketing or recommending to another party any transaction or matter addressed herein. 

CONFIDENTIALITY NOTICE: Unless otherwise indicated or obvious from the nature of the transmittal, the information 

contained in this e-mail message is attorney privileged and confidential information intended for the use of the 

individual named above. If the reader of this message is not the intended recipient, or the employee or agent 

responsible to deliver it to the intended reci 

From: Kyle.Lomazow@faa.gov 

Sent: Tuesday, April 22, 2014 5:29PM 

To: robert@fiinglaw.com 

Subject: Chemsystems 

Hi Mr. Fling, 

I just wanted to give you the heads up that I am taking this case over for Courtney Adolph so any future communications should 

be directed to me. I am 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. 

I see that the hearing is scheduled for June 23-26 in Houston so it looks like we will meet then. 

thanks, 

3 
From: 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 "Fed Tax Return 2010.pdf'' deleted by Kyle Lomazow/ANM/FAA] [attachment "Fed Tax 

Return 2011.pdf'' deleted by Kyle Lomazow/ANM/FAA] [attachment "Fed Tax Return 2012.pdf'' deleted by Kyle 

Lomazow/ ANM/F AA] [attachment "Texas Workforce Commission's Employer's Quarterly Report · Filed on October 

09, 20ll.pdf'' deleted by Kyle Lomazow/ ANM/FAA] [attaclunent "Texas Workforce Commission's Employer's 

Quarterly Report- Filed on April28, 2013.pdf" deleted by Kyle Lomazow/ ANM/FAA] [attachment "Texas Workforce 

Commission Qtrly Report 1 - 2012.pdf'' deleted by Kyle Lomazow/ ANM/FAA] 

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

U.S. DEl~ ARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Page 8 of 12(0510712014 5:47 

In the Matter of: ChemSystems, Inc,, ) FAA DOCKET No: TBD 

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

) 

) 

Respnndent ) 

~'AA Regi&n: Western Pacific 

.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 of material fact and that Claimant is entitled to a decision as a matter 

of law. Clai.mant essentially seeks a Motion for Swnmary Judgment. The Supreme Court hris 

identified tbe burden of proof for swnrnary judgment 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). The burden of proof in a summary judgment pr<lcced.ing 

is on the same patty who would bear tb.e burden at triaL 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 and Rubber Co. v. Farese, 423 F.3d 446, 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 productinto the exceptions for Class 8 under §I 73.154(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) of the 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 attached as Exhibit "A", 

3. The product shipped in this matter .is a Consumer Commodity under § 171.008 and the 

prodnct was shipped in individual inner packaging plastic rec<:ptacle with a screw top 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 of the 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, California tmtil August 18, 2011, more than ten (10) days after the package arrived at 

the Fedex Oakland, California facility. (Complainant's report is attached as Exhibit "B"). 

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

facility at I 0:4 7 pm on August 7, 20 ll, however it was not unloaded orfhund to be 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 of the 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 of the 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. a 55 gallon drum Jbr 12 days until Complainant arrived 

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 but not recovered or niaintained by Fedex. 

7. In addition to being fully saturated, the fiberboard box shows damage 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 of the fiberboard box. (Cmnplalnant's 

pictures are attached a.s Exhibit "C") The drullitge which caused the plastic il:ltedor container to 

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 report is 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 Exhibit 
From: 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 of the 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 of hazatdous 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 by Fed.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 of the saturated box. The plastic envelope appears to have been opened 

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's Requests fur Production. Shipping papers 

W<mld have been included within the plastic envelope attached to the top of the 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 of one fact, Respo11deni had knowledge of all 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 of the 

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 not discovered to be leaking until more than twelve h(mrs 

after it arrived in Oakland by ground transpOitation and that Fcdex did not notify Complainant 

of the leak until more than l 0 days after the leaking package was discovered. As stated 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 of the 

fiberboard container after discovery of the 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, if the package was not labeled and marked, the statement of Sharon 

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 shipment tendered 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 of proof including the statement or report 

of FAA Special Agent Michael Burdick attached as Exhibit "B" and black and white 

photographs taken by FAA Special Agent Michael Burdick aWtched as Exhibit "C". 

15. In addition, Complainant's items of proof include a copy of the 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 of the tracking history are illegible. Upon inquiry, 

counsel for Respondent was intbrmed that the two illegible pages were blank pages 
From: 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 information that wuld lead to 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 related to Fedex's efforts to search for or recover pieces of the 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 of hazardous 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 of tbe tracking history mentioned in Special 

Agent Burdick's report as well as col<lr photographs from Special Agent Burdick's photographs. 

Respondent's Second Requests for Discovery are attached as Exhibit "D". 

17. Although Clfiimant has provided color photographs from Special Agent Bnrdick' s report, 

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 of the hearing. On February 2, 2()14; Complainant requested that the 

hearing be moved to a date after April 1, 2014 because Special Agerlt Burdick's unavailability, 

The hearing has been re-set to June 21, 20 14. 

18. In the alternative to the arguments above, Respondent request 1hat Claimant's Motion for 

Deci.sicm be continued until Respondent has received and had time to inspect the fiberboard box 

shown in Claimant's report and review Claimant's responses to 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 a civil penalty should he imposed upon Respondent, Respondent 

request that the amount soLtght by Claimant be 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' s 2013 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 a profit in the year 2010 or 2011 and lost money in 2013, 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 of the 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 of the violations; 

(2) with respect to the violater, the degree of culpability, any history of prior 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 any effect on the ability to continue to do business; and 

(3) other matters that justice requires. 

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 leaking package 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~'!· of the 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 they unloaded the saturated fiberboard box. 

24. Complainant·seeks $22,000.00 for each of seven (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 

violations related to the markings and labeling of packages containing hazardous 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 of the Transportation Code. 

26. 49 C.F.R. § 172.200(a) again requires the package to include a shipping paper 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 emergency response information. 

30. 49 C.P.R. 172.604(a) provides tbat an emergency response telephone number must be 

provided by any pernon offering hazardous material for transportation. 

3 L Respondellt maintain.s that Complainant's complaint seeks to "pile on" by restating the 

same violatil)n related to the same underlying single act through multiple regulations . 

32. The penalties sought by Complainnnt are much too hlgh given Respondent's financial 

status; the circumstances 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 Frostad Atelier, 

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. 

A fact 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 in this mattL'T. 

DATED: May7,2014 

Respectfully submitted, 

S. ROBERT FLING, 

ATTORNEY AT LA 

cLS > 

S. ROBERT .F'UNG 

Tl3A 24043660 

P.O. Box 411 

Katy, Texas 77492 

(281) 391-2003 Teleph<me 

(281) 727-0082 Facsimile 

Attotney for 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 Docket Clerk, AOC-430 

Wilbur Wright Building---Suite 2WIOOO 

Facsimile: (202) 493-5142 

Kyl•~ Lomazow 

General Attorney 

Office ofthe Regional Counsel 

Federal Aviation Administration 

Northwest Mountain Region 

Renton, Washington '98057 

Telephone: (425) 227-1847 

Facs.imile: (425) 227· 

And by facsimile only to: 

Hon. Richard C. Goodwin 

Office of Hearings, M·20 

U.S. Department of Transportation 

1200 New 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 at Law, PLLC. 

Attorney for Chemsy&'tems, Inc. 

CMRRR No. 7011 0110 0002 296;t;J_:!24 

CMRRR No. 7012 l64Q.Q000454UQ.2.Z