Reep 

Bella 

Laird 

:":•:••• • ••U " '•- " -i i 

:"••••; n;-;:- IV. , 

-fji i i '••. d:-ii: - .:^'V>-.; 

ATTORNEYS AT LAW 

Fax Cover Sheet 

DATE: 

TO: 

FRO^fl: 

September 2, 2011 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Richard A. Reep, Esq. 

TIME: 

PHONE: 

FAX: 

4-.11 PW 

202-493-5020 

RE: FAA Case No. 2010NM710045 

NUMBER OF PAGES INCLUDING COVER SHEET: 9 

MESSAGE: 

AN ORIGINAL AND ONE COPY WILL FOLLOW BY MAIL. 

CONFIDENTIALITY NOTICE 

VJNLESS OTHERWISE INDICATED, TH£ INrORMATlON COf^TTAlNED IN THIS FACSIMILE MESSAGE IS INFORMATION 

PROTECTED BY THE ATTORNEY •• CLIENT ANO/OR ATTORNEY - WORK PRODUCT PRIVILEGES. IT IS INTENDED ONLY FOR 

THE INDIVIDUAL NAMED ABOVE. AND THE PRIVILEGES ARE NOT WAIVED BY VIRTUE OF THIS HAVING SEEN SENT BY 

FACSIMILE. IF THE READER OF THiS FACSIMILE, OR THE EMPLOYE^ OR AGENT RESPONSfBLE TO DELIVER IT TO THE 

NAMED RECIPIENT. !S NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANr DISSEMINATION. 

DISTRIBUTION OR COPYING OF THE COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS 

COMMUNICATION IN ERROR. PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE 

TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. WE WILL PROMPTLY REIMBURSE YOU FOR THE 

TELEPHONE AND POSTAGE EXPENSE. THANK YOU. 
' 1 ^ ^ . 

:••"• 'rTnv=nA]jOM5 

Richard A. Rt;ep, hsq. ^- • — • -

REEP , BELLaUAJRD , P.C. - - , n 

2955 StockT^rd Road Ijii! ^^.i-' •'•- '^ '"^i' ' ' 

P.O.Box 16960 

3 Missoula, Montana 59808-6960 

Telephone: (406) 541-4100 

A Facsimile: (406) 541-4101 

Attomevs forArmorcoat USA 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

9 OFFICE OF HEARfNGS 

WASHINGTON. D.C. 

10 

12 

16 

17 

18 

15 

20 

21 

22 

23 

24 

FN THE MATTER OF: ) FAA Case No. 2010KM710045 

) Judge Not Assigned 

ARMORCOATUSA. ) 

) ANSWER TO COMPLAINT 

•'• -^ Responding to the Complaint filed in this cause, Delendant, Aimorcoat USA, a Montana 

•'•'^ limited liability company, responds as follows: 

1 . Responding to pai'agraph I, Annorcoat USA admits the allcgauons stated therein. 

2. Responding to paiagraph IJ, Anuorcoat USA <uisvvers the following subsections: 

A. Responding to subsection 1, Armorcoat USA states ihat it is a Montana 

limited liability company that rarely traiisports hazardous materials. 11 estimates two to three 

shipments per year. 

B. Responding to subsection 2, Ajjnorcoat USA admits that a United Parcel 

Sei^vice (UrPS) package was shipped by Annorcoat USA on or about May 14, 2010 with the 

destination being Singapore. 

ANSWER TO COMPLAINT PAGE 1. 
vja| j \JL . -i I •J-i . I -T)-' 

10 

-„1 

1-^ 

13 

14 

15 

16 

17 

16 

19 

20 

21 

22 

23 

24 

C. Responding to subsection 3, Amiorcoat USA alleges that the product 

shipped was not paint but *'reducer" which is a Class 3 "paint related material" as dcfmcd by 49 

C.F.R. § 172.101(3). Amiorcoat USA denies the remaining allegations except to the extent 

admitted above. 

D. Responding to subsection 4. Armorcoat USA admits that the shipment was 

transported by UPS and the waybill speaks for itself 

E. Responding to subsection 5, Annorcoat USA admits that leakage was 

alleged to have been discovered but affirmatively stales (and asserts as an affirmative defense) 

that the package and packaging materials have been destroyed and/or have not been provided to 

Annorcoat USA for imalysis or Teview. Amiorcoat USA farther states that the shipper—UPS— 

has affirmatively taken responsibility for mishandling the package and any damage that may 

have occurred (and further asserts this intervening cause as an affinnative defense). See copy of 

undated UPS correspondence from Chris Bowman attached hereto as Exhibit A and expert 

review letter from Jeff Rooker of Rtec Industrial attached hereto as Exhibit B. Any staining or 

leakage may have been external to the shipping container and source and not from the container 

within the packaged material. 

F. Responding to subsection 6, Annorcoat USA denies the allegations of this 

subsection and its subsections aiid states that the design of the package and protective materials 

was accomplished by qualified shipping container contractors and was believed to be designed to 

confonti to all regulations. 

G. Responding to subsection 7, Annorcoat USA denies the allegations of this 

subsection and asserts (hat its primary employee handling such shipments was trained and well 

versed in HAZMAT regulations and procedures. 

ANSWER TO COMPLAINT PAGE 2. 
9 

10 

11 

12 

13 

14 

15 

16 

17 

1 

20 

21 

22 

23 

2^ 

H. Responding to subsection 8, Annorcoat USA denies the allegations of this 

subsection. Armorcoat USA alleges that a request was made for copies and copies were retained 

eJectronicalJy by UPS. Because of Ihc rare shipment of such materials and because recovery of 

the "copies" posed a significant expense in time and money, Armorcoat USA identified the 

manner of storage and requested confirmation of necessity which confinnation was never 

received from tlie investigator. To the kiiowledge of Annorcoat USA, copies continue lo be 

retained by UPS in electronic form for the required three year period. 

3. Responding to paragraph III, Amiorcoat USA answers the following subsections: 

A. Responding to subsections I a, Armorcoat USA denies the allegations of 

improper description or condition and alleges theshipinent was properly marked and designed in 

accordance with regulations and that any-mishandling or leakage was a result of third party 

mishandling or outside source contamination. 

B. Responding to subsection lb, Armorcoat USA denies the allegations and 

alleges it used independent packaging contractors to design and manufacture, the container and 

packaging in order to comply with law. 

C. Responding to subsection Ic, Annorcoat USA denies the allegations and 

alleges that an electronic image of any previous shipments of Armorcoat USA is and were/are 

available tlirough UPS's electronic document storage. 

D. Responding to subsection Id, Annorcoat USA denies the allegations and 

alleges that it believed the shipment to be properly described in shipping papers. 

E. Responding to subsection 1 e, Armorcoat USA denies the allegations and 

alleges that its primary handling employee was trained and knowledgeable as per regulatory 

requirements. 

ANSWER TO COMPLAINT PAGE 3. 
11 

1 F. Responding to subsection If, Annorcoat USA denies the allegations and • 

2 alleges the package was properly constmcted and prepared for shipment. 

G. Responding to subsection Ig, Annorcoat USA denies the allegations and 

4| alleges that it properly classified and described the contents of the shipment. 

5 H. Responding to subsection Ih. Annorcoat USA denies the allegations and 

6 alleges that il used third party constructed containers and shipping materials believed to be in full 

7 compliance with regulations and that damage, if any, was caused by persons or entities not a 

8 party to this proceeding. 

9 1. Responding to subsection 11, Armorcoat USA denies the allegations and 

- ^ alleges that the packaging and absorbent materials utilized as part of the packaging were 

adequate under the regulations. 

•^^ J. Responding to subsection 2, Armorcoat USA states that the United States 

•'• ^ Code and the Code of Federal Regulations speak for themselves in establishing liability for civil 

penalty but deny that any liability for civil penalty exists in this instance. 

IC. Responding to subsection 3. Annorcoat USA denies that under the facts 

and circumstances of this case, a $15,000.00 penalty is appropriate. 

AFFIRMATIVE DEFENSES 

4. As an affinnative defense, Annorcoat USA alleges as follows; 

A. UPS has affirmatively admitted mishandling of the package at issue and 

ajiy e.xposure for civil pena]r>' should not accrue to Armorcoat USA. 

B. The package in question has been destroyed and not retained by the 

agency and, therefore, .Armorcoat USA has been una.ble to evaluate cither the contents or the 

package or the manner of destruction to estabhsh tlie propriety of any claim of violation. 

14 

15 

16 

17 

16 

19 

20 

21 

22 

23 

24 

ANSWER TO COMPLAINT , PAGE 4. 
1 C. Based upon expert review' of the photo of the container, staining occurred 

2 as a result of externa! sources and not due to leakage of the product shipped. 

3 \Vl-IEREFORE, Armorcoat USA, by counsel, respectfully requests that this matter be 

^ dismissed and that no penalty be assessed and that Armorcoat USA's attorneys' fees and costs be 

5 awarded. 

b DATED this ^ dav of September, 2011. 

'^ REEP, BELL 

1.^' 

11 

12 

13 

14 

15 

16 

17 

1 

19 

20 

2 1 

22 

2 3 

24 

By: 

-^ fCichard A. Reep* 

Attorneys for Annorcoat USA 

ANSWER TO COMPLAINT PAGE 5. 
9 

10 

11 

12 

13 

14 

15 

1^ 

17 

18 

CERTIFICATE OF SEHVTCE 

I, the undersigned, do hereby certify that on the^-2<_^ "-iay of September, 2011, a true aod 

correct copy of the foregoing was served upon the following as indicated; 

[x] U.S. Mail 

I ] Hand Delivery 

[ J Federal Express 

[xj FacsimUe (202-493-5123) 

[ \ Certified Mnil, Return Receipt Requested 

[x] U.S. Mail 

[ I Hand Delivery 

I 1 Federal Express 

|xl Facsimile (202-366-7536) 

I ] Certified Mail, Return Receipt Requested 

[x] U.S. Mail 

I J Hand Delivcrj' 

[ ] Fedora! Express 

[x] Facsimile (425-227-1007) 

f ] Certified Mail, Return Receipt Requested 

Hearing Docket Clerk, AGC-430 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue SW 

Wilber Wright Building, Suite 2W1000 

Washington, D.C. 20591 

ORIGINAL AND ONE COPY 

Administrative Law Judge 

Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, SE 

East Building- Ground Floor 

Washington, D.C. 20590 

ONE COPY 

Kyle E. Lomazow 

FAA Office of Regional Counsel 

1601 Lind Avenue SW 

Ronton, Wa,shington 98057 

ONE COPY 

^///i-^^A , ^ / / 

19 

2C 

21 

22 

23 

24 

ANSWER TO COMPLAINT PAGE 6. 
Amiorcoat USA 

Dear John: 

I am^^TIling to help clarify Issues regarding damaged packages you have hadwiUi UPS over the last 1& 

months. In each and every ca&e v/e have Investigated, you have bean found to ba compliant with the 

regulations. Any Failure In box or bottla was found to be caused by "extreme handling" of your paDkage 

by our p6.opl6. The only lime wa havo over had issues l3 v/hen ihl& sort of handling occurs. 

I have per^onaJfy been (o your office several limes and confirnned accsptabfe practices are being used 

when shipping product with us. i can also confinn that you origlrally became a certified Hazmat 

shipper in 2006, were re-certified in 2008 by UPS, and then re-cedlfled again in 2010 by a company 

named Infotrac. 

You hswe been a loyal cusbamer fo-UPS since June 25, 1983. I am happy to speak with anyone v;ho 

has qucstione regarding what has transpired over tha history of your relatJonshlp w'th us. 

Sincerely, 

Chris Bowman 

UPS Area Sales Manager 

221 Expressway Ln 

Mfsssoula, MT 59803 

406-&31-9326 

Exhibit A 
TO; JOHNttYAN 

PROM; XKFFEOOXER 

SLmjECTi DOXFICau^E 

DATE: 7/12/^aTT" 

John, I have revie-w'cd the pictuic vou seiit shov-ing a wet box. Unfortunately, as the picture 

shows only one side of the box, it is impossible to determine if the -wet spot onginated from laside 

ihe box or from an external source. From my e?cpenence that type of damage coming from within 

the box will crjise a separation of the sub.^raie^ and die box -will fall apan. The refison for ihis h 

because the box is made from 3 layere of pa.per, Hie Inside and outside is flax andihe center is fluted. 

Search is applied to die upper most portion of each fKite juid dried to the flat sheet on the inside and 

outside called linei^. When this liner is soaked through it will cause die starch to break down nnd the 

liner will separate from the flute. In simple terms, the box will fall apart. If iiist the outer liner gets 

wet> the integrity of the box ^ill remain in tact. 

Based on the picuire I see, my pi"ofessional opinion is tliat ihe danrnge came from an external 

source. It would of covuse help if I could sec the box or actual pictures showing the inside and odier 

angles. XOlthoiu this, it is not lil«ly anyone can ascertain the som"ce of the damage to rhis box. 

As you hiow 1 liave exrensK'e knowledge in \hls field having ?.'orl<ed in the corrugaicd incustry 

in excess of 25 years. I am at your disposal to heb wiih this bsue and -wT^uld be more than happy to 

send an affidavit or testify as )T3U decennine to be fitting. 

If there is anything ehe I can assist >t)u with please feel free to call 

Regards 

Jeff Roolcer 

President Rtec ludiistrial 

Exhibit B