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e 

U.S. Oepurtment 

of Transportation 

Federal Aviation 

Adminbtrafion 

Souihwest Region 

Arkansas, Louisiana, 

New Mexico, OI<iahoma 

Texas 

Office of Regional Counsel, ASW-7 

2601 Meacham Blvd. 

pQrtWorth.TX 76137 

(817)222-5099 

(817) 222-5945/5092 FAX 

December 6, 2010 

Vxa Federal Eacprega 

Hearing Docket 

Federal Aviation Aciministration 

600 Independence Avenue, SW 

Wilbur Wright building - Suite 2W1000 

Washington, DC 20591 

Attention: Hearing Docket Clerk - AGC 4 30 

13 

OPlOSiA/ira/if 

gigs 

C.-.' ~:s- ^ n 

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Re: Hajoca Waterworks, FAA Case No. 2010SW700113 

Dear Hearing Docket Clerk: 

Enclosed herewith please find a copy of Hojoca Waterworks letter 

requesting a hearing dated, November ?9, 2010 and the original 

and one copy of the complaint in the above-referenced case. 

I request that this hearing be held in Tulsa, Oklahoma because 

the shipment was sent from the Hajoca Waterworks facility in 

Tu.lsa, Oklahoma and many of the witnesses are located in the 

vicinity. I eypect the hearing to last 3 daya. Please address 

all communications for the Regional Counsel, Southwest Region to 

the undersigned at: 

James Archier 

Attorney 

Federal Aviation Administration 

Southwest Region 

2G01 Meacham Blvd., .SuiLtj 6E 

Fort Worth, Texa.s 7 6137 
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Sincerely , 

T.YNETTE WORD 

Regiona l Coun,sel 

Southwest Regio n 

ames Archier , Attorne y 

(817) 222-507 4 

Enclosures : Request fo r Hearing , Origina l and copy of complaint . 

Certificat e of Service . 

c c : Mc. Danie l R. Flyn n 
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SEYPARTH, 

SHAW, 

ATTOHNEY S 

Writer* drrDi? phone 

Wfller's e-maii 

Jflynn@scyfiirth.eo m 

131 Sovith DeartefTi SbM l 

Suite 2A0O 

Chicage. IIHnoia soeuj 

(312]4>4D-S<X]a 

1bx(312)4eo.7ui>a 

' "(irfarth.com 

November 29, 2010 

VIA FACSIMILE f817> 222-S94S AND FEDERAL EXPRESS 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building-Suite 2W10000 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Re: Hajoca Watcnvorks, FAA Case No. 2010SW700113 

Reque.it for a Hearing 

Dear Sir or Madam: 

Hajoca Waterworks hereby requests a hearing regarding the Final Notice of Proposed Civil 

Penalty dated November 12, 2010, which we received on November 15,2010. The allegations 

stated therein are hereby denied. The proposed civil penalty is not supported by the factual 

allegations, Hajoca further requests that the hearing take place in or near Ardmore, Pennsylvania, 

which is Hajoca Corporation's main ofQce. 

Please let us know if you have any questions or need any additional informationVery truly yours, 

SEYFARTH SHAW LLP 

Daniel R. Flynn 

DRF:clb 

cc; James Archier 

Sharilyn Christiansen 

Eric E. Boyd 

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U.S . DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

I n th e Matte r of: 

Hajoc a Waterworks, 

Responden t 

FAA Docke t No t Assigne d 

FAA Cas e NO.2010SW700113 

Judg e Not As.signed 

COMPLAINT 

The Federal Aviation Administration (''FAA") files it.<^ 

complaint under Rule 208 of the Rules of Practice in FAA 

Civil Penalty Actions, 14 C.F.R. § 13.208 and state.s- Lhe 

foil owing: 

By Notice of Proposed Civil Penalty dated, .September 

1, 2010 and by Final Notice of Proposed Civil Penalty dated 

November 12, 2010 Hajoca Waterworks was advised that the 

FAA proposed to assess a civil penalty in the amount o.C 

$63,000.00. 

1. On or about March 22, 2010, Hajoca Waterworks 

(^'Hajoca") offered United Parcel Service ("UPS") hazardous 

material for tran.?porLation by air from Tulsa, Oklahoma to 

Gardner, Kansa.'S. 

2. The .shipment consisted of lour quart size containers of 

"CHEM-PRIME HS RED primer" (tt37 Tnem.ec Primer) and four 

quart size containers of "Blackhawk Coating #5011" paint. 

.3. All eight quarts of paint and primer were contciined 

inside of a non-.specification fiberboard box. 

4. "CHEM-PRIME HS RED primer" (#37 Tnemec Primer) and 

"Blackhawk Coating #5011" paint are classified as hazardous 
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material under the Department of Transportation Hazardous 

Material Regulations (49 CFR § 172.101). 

5. The proper shipping name for 'XHEM-PRIME HS RED primer" 

(#37 Tnemec Primer) i.s PainL, hazard class 3, UN1263, 

Packing Group III. 

6- The proper shipping name lor "Blackhawk Coating #5011" 

is Tars, Liquids, hazard cla.ss 3, UN1999, Packing Croup 

III. 

7. The shipment was sent via UPS air bill number 

1Z9VA0690142160275. 

8. The shipper was Hajoca Waterworks, 5000 Southwest 

Blvd., Tulsa, Oklahoma 74107. 

9. The consignee was Joey, Grimm Construction, 785 Fast 

Warren, Gardner, Kansas 66030. 

10. The shipment was discovered leaking a black substance 

at the UPS Tulsa cargo sort station. 

11. 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. 

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, i.ncluding 

emergency response information, required by the hazardous 

material regulations, and was not otherwise in a cond-i.tion 

for transportation by air as requi red by the ha7.ardous 

material regulations. 

13. 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. 

14. Hajoca offered hazardous material for transportation by 

air when the shipping papers did not include: 

(a) the identification number prescribed for the 
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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 ior the hazardous material in Colijmn 

(5) of the § 172.101 table; 

(e) the total quantity of each hazardous material 

covered by the description must be uidicated; 

(f) the total net iria.t;s per package, must be shown 

unless a gros.=; mass is indicated in Columns (9A) 

or (9B) of the § 172.101 table i.n which case the 

total gross mass per package must be shown; 

(g) the number and type ol packages must be 

indicated. 

15. Hajoca offered hazardous material for transportation by 

air and failed to certify by printed certification, in the 

manner allowed by 49 C.F.R, §f? 172.204(a)(1) or 

172.204(c)(1), thai, the material was offered for 

transportation in accordance with the hazardous material 

regulations. 

16. Hajoca offered hazardous material for transportation by 

air when it failed to provide two copies of the 

certification showing that the materials werf.^ in accordance 

with the certification set forth in § 172.20'! (a) (1) or S 

172.204(c)(1) of the hazardous materi.als regulations. 

17. 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. 

1R. Hajoca offered hai:ardous 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), 
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19. Hajoca offered hazardous material for transportation by 

air and failed to make emergency response information 

immediately available for use at ail times the hazardous 

material was present. 

20. Hajoca offered ha^.ardous material foe 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. 

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) (1-7) ) . 

22. Hajoca offered hazardous material tor transportation by 

air and failed to provide An emergency re.<iponsc 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, 

23. Hajoca offered hazardous material for shipment by air 

when emergency response information was not presented on a 

shipping paper. 

24. 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, 

25. Hajoca offered hazardous material for shipment by air 

and failed to provide an emergency response telephone 

numbor 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 siich knowledge 

and information. 
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26. Hajoca offered hazardous material for transportation by 

a:r 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 svibpart C of this part, or entered 

once on the shipping paper in a clearly visible location. 

27. Hajoca offered hazardous material for transportation by 

air and failed to train the HAZMAT employee who offered the 

shipment. 

28. Hajoca offered hazardous material for shipment by air 

and failed to class and describe the hazardous material in 

accordance with parts 172 and 17 3 of Subpart B, Prepararion 

of Hazardous Materials for Transportation. 

29. 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 

ihat under conditions normally incident to transportation 

there was no identifiable release of hazardous materials to 

the environment. 

II. 

30. By reason of the above, Hajoca violated the following 

Department of Transportation Hazardous Materials 

Regulations (Title 49 of the Code of Federal Regulation.s) ; 

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), in that 

Plajoca 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. 

b. section 172.200(a) (49 C.F.R. § 172.200(a)), which 

requires tViat each person offering a hazardou.s material for 

transportation to properly describe the hazardous material 

on the shipping papers. 

c. .section 172.202 (a) (1 ) (49 C.F.R. § 172.202(a)(1)) in 

that it offered hazardous material for transportati.on in 

ai r commerce when the required hazardous material 

description on the shipping papers did not include the 
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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 or the § 172.101 Table. 

e. Section 172.202(a)(3) (49 C.F.R. § 172.202(a)(3)) in 

that it offered hazardous materia], 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 1/2.202 (a) (5) (49 CF.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 tiie description, in the manner required 

by thi.s Subparth. Section 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 m.atcrial 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), 
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that the material was offered for transp)Ortation 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 hai^ardous 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(3)(1) or 

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

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. Secti.on 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) (40 C.F.R. § 172.400(a)) in that it 

offeree 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 i.n Section 172,101 (49 

C.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 respo.nse 

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.(500(c) (1) ) (49 C.F.R. § 172 , 600 (c) (1) ) in 

that it offered hazardous material tor 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. f? 172.600(0(2)) in 

that it offered hazardous material for transportation by 

air and failed to make emergency response information, 

i.ncluding emergency response telephone nuiriber, required by 
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this subpart immediately available to any person who, as a 

representative of a t-'ederal. 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) (1.-7) ) (49 C.F.R. § l-/2.602(a)) in 

-hat it offered a hazardous material for transportation by 

air and failed to provide and m.aintain emergency response 

information that includes the minimum information set forth 

in this section, 172.602(a) (1-7)) . 

3. Section 172.602(b)(2))(49 C.F.R. § 172.602(b)(2)) in 

that it offered hazardous material for transportation by 

air and failud to provide an emergency response telephone 

number i itiiriediateiy 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) (1)) (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) (1)) (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. 

V. SectjLon 172.604(a)(2)) (49 CF.R . § 172.604(a)(2)) in 

that it offered ha:iardous matericil for transportation by 

air and failed to provide an emergency response telephone 

ni:mber of a person knowledgeable of the hazardous material 

being shipped and who has comprehensive emergency response 

and incident mitigation informati.on for that material, or 

has immediate access to a person possessing such knowledge 

and information, 

w. section 172 . 604 (a) (3) ) (40 C.L'.R. § 172.604(a)(3)) in 

that it offered hazardous material tor transportation by 

air and failed to provide an emergency response telephone 

n\imber, for use in the event of an emergency involving the 
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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. Section 172.702(a) ) (49 C.F.R. § 172.702(a)) i.n that it 

offered hazardous material for transportation by air and 

failed to train the HAZMAT employee who offered the 

shipmenty. Section 17 3.1(b) (49 C.F.R. § 17 3.1(b), which 

prohibits the shipment of hazardous material by air that 

was not packed in packaging specified in Part 17 3. 

z. Section 173.22(a)(1)) (49 C.F.R. § 173.22(d)(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 3, Preparation 

of Hazardous Material.? for Transportation. 

aa. Section 173,24 (b) (1)) (49 C.F.R. § 173.24(b)(1)) in 

that it offered hazardous material for shipment by air and 

tailed 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. 

III. 

Pursuant to the Federal hazardous material transportation 

law, and 107.329 of the Hazardous Materials Transportation 

Regulations [49 U.S.C. § 5123 (a)(1) and 4 9 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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WHEREFORE, th e Regiona l Counsel for the Federa l Aviatio n 

Adiriinistration , Southwest Region, respectfull y requests 

tha t th e Administrativ e Law Judge ente r an Order tha t 

Hajoca Waterworks be assesse d a civi l penalt y in th e amount 

of 563,000.00 . 

Re.spectfully, submitte d this 6*^ day of December 2010. 

Lynett c Word 

.Regional Counsel 

Southwest Region 

BTC^^^^ ^ fX4.€>ltJZ^ 

ames Archier, Attorney 

R17) 222-5074 
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Please Note 

Pursuant to Title 14 CFR § 13.209(a), you are required to 

file a written answer to this complaint, or a written 

motion to dismiss if appropriate, not later than thirty 

(30) days after the date shown on the ceitificate of 

service whj.ch is attached to thi.s document. 

CERTIFICATE OF SERVICE 

Re: Hajoca Waterworks, FAA Case No. 2m0SW700113 

T hereby certify that on the 6"^ day of December 2010, i 

have sent via Federal Express an executed original and one 

copy of the complaint, addressed as follows: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW., 

Attention: Hearing Docket Clerk, 

AGC 4 30 

Wilbur Wright Building, Suite 2W1000 

Washington, DC 20591 

I further certify that on this date, I have sent via 

Federal Express a true copy of the complaint, addressed as 

f ollcw.? : 

Mr. Daniel R. Flynn 

Attorney at Law 

Seyfarth Shaw TJ.P 

131 South Dearborn Street 

Suite 2400 

Chicago, Illinois 

Lynette Word 

Regional Counsel 

Southwest Region 

Dated: December 6, 2010 

am^s Archier, Attorney 

(8^7) 222-5074 

11