06/03/2011 11:48 FAX 3107256816 AWP-7 i!002 

< ^ 

I f.S. Department 

orTratisportaOott^ 

Federal AviatkHi 

Administration 

Westcm-Pacjfic Region 

Office of the Regional Counsel 

P.O. Box 92007 

Los Angeles, CA 90()09-2007 

Telephone: (310) 72.')"-7137 

Facsimile: (310)725-6816 

June 3, 2011 

CERTIFIED MAIL - RETURN RECEIPT REQUESTED 

I'ederal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building -- Suite 2W1000 

Re: In the Matter of Greenwood Chevrolet; Case No. 2008WP700205 

> 

-v^QS 

^n^-- ^ 

o Q ^ 

I'jaclosed is a copy of a request for hearing dated May 24,2011, and the original and one copy of 

the Complaint in the above-referenced proceeding. 

I request that the hearing in this matter be held bx the San Jose, California area. This location is 

closest for the FAA agent/investigator and the Soquel, California, Federal Express employee 

AVho discovered the subject shipment leaking during the sort process. The hearing is expected to 

last one (1) day. 

Please address all communications for the Regional Counsel of the Western-Pacific l^egion, to 

the undersigned, at: Office of the Regional Counsel, AWP-7, Federal Aviation Administration, 

Western-Pacific Region, P. O. Box 92007, Los ^\ngeles, CA 90009-2007, Telephonf:: (310) 

725-7110, FAX: (310)725-6816. 

Sincerely, 

Naomi Tsuda 

Regional Counsel 

ny: i(j^§ridm ^ 

LisaJ. 1 oscano 

Attorney 

Knciosures: Request for Hearing; Complaint; Certificate of Service 

NOTE TO RESPONDENT: SECTION 13.209 OF THE CP RULES OF PRACTI<:E 

REQUIRE THAT A WRITTEN ANSWER TO THE COMPLAINT BE FILED NOT LATER 

:inH[AN 30 DAYS AFTER SERVICE OF THE C:OMPLAINT. AS AN ALTERNAl IVE TO 

FILING AN ANSWER, A MOTION MAY BE FILED PURSUANT TO SECTION 13-208(D) 

OR SECTION 13-218(F)(l-4) OF TEIE RULES OF PRACTICE. 
06/03/2011 11:48 FAX 3107256816 AWP-7 11003 

y -Y -p. 

<J MOTORS 

GrHnwood Chmnlgl fonlw: Buidc CMC 

lei 831.637.5328 

270 Son Fdips RtHid • HoUister a 9S023 

foil 831.43',2369 

www.GrMmvoMlMotors.CDin 

May 24, 2011 

\\r:\\ • " • il l Ni 

i 

! ^ _ "^ ' • i 

u, 

Federal Aviation Administration 

800 independence Avenue, SW 

Washington, DC 20591 

Attention: 

Re: 

Dear FAA: 

Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Room 2W1000 

Case #2008WP700205 

Request for Hearing 

VIA CERTIFIED MAIL. 

RETURN RECEIPT REQUESTED , 

Greenwood Chevrolet dba Greenv\^ood Chevrolet Buick GMC, a California corporation 

("Greenwood"), of Hollister. California, the party that was mailed a Final Notice of Proposed 

Civil Penalty on May 11, 2011, in the above-referenced case, hereby requests that a hearing 

be scheduled in this matter to allow Greenwood the opportunity to contest the facts, 

conclusions, allegations, and proposed civil penalty set forth in such Final Notice. 

In so doing. Greenwood also alleges by way of affirmatrve defense that the FAA's 

Western-Pacrfic Region has been dilatory in proceeding against Greenwood and has thereby 

caused Greenwood prejudice in the process such that the Doctrine of Lachess should bar 

furthier action against Greenwood. 

Moreover, and by way of additional affirmative defense, the amount of hazardous 

materials offered for shipping my Greenwood, if any, fell under the small quantity exception 

found in 49 CFR 173.4. 

Greenwood also requests that the hearing be set for a location that is within a 

reasonable driving distance from Hollister, California, such as somewhere in San Jose, 

Monterey, Gilroy, or Hollister, California. 

Greenwood will be represented in this matter by Houston N. Tuel, Jr., Esq., and all 

future notices and communications conceming this case should be directed to him as follov*^: 

Houston N. Tuel, Jr., Esq. 

Law Offices of Houston Tuel 

1550 Harbor Blvd.. Suite 206 

Graarmoaa Cnev TAA Hr 5-24.11 dcx: 
06/03/2011 11:49 FAX 3107256816 AWP-7 11004 

n Gf'fiiiiTjTTrzZ. 

MOTORS 

SMI C 

West Sacramento, CA 95691 

Telephone - (916) 376-0100 

Facsimile - (916) 376-0299 

E-mail - hnt@tuelqarman.com 

Graanwood CheYtoiel Panliac Bukli Of/lC 

lei 831.437.5328 

270 San Felipe Road-Hollister CA9S023 

fox 831.437.23^9 

www,Gre«nv-raodMotorj.[oii] 

Respectfully submitted. 

Greenwood Chevrolet, £ 

California corporation 

(x.: Lisa J, Toscano 

Federal Aviation Administration 

Western-Pacific Region 

Office of the Regional Counsel 

P.O. Box 92007 

Los Angeles, CA 90009-2007 

Vice President 

Gi'AAnv.-eod Chev FAA hr S.24-1 l.doc 
06/03/2011 11:49 FAX 3107256816 AWP-7 ii005 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVL^TION ADMINISTRATION 

la the Matter of: 

Greenwood Chevrolet 

Respondent 

JUDGE NOT ASSIGNED 

FAA DOCKET 

FAA CASE NO. 200SWP7002C5 

COMPLAINT 

The Complainant files its Complaint, pmsuant to Rule 208 of the Rules of Practice (14 

C.F.R. 13.208), and states as follows: 

T. 

Respondent, Greenwood Chevrolet, was advised through a Notice of Proposed Civil 

Penalty and a Final Notice of Proposed Civil Penalty that the FAA proposed to assess a civil 

penalty in the amount of $56,000. On May 24,2011, Respondent submitted a writtei request for 

a hearing. 

IL 

1. On or about May 28, 2008, Greenwood Chevrolet ("Greenwood") offered a 

shipment to Federal Express (FedEx) for air transportation firom Hollister, 

California to GM Warranty Parts Center, a company located in Lake Orion, 

Michigan. 
06/03/2011 11:49 FAX 3107256816 AWP-7 @1006 

2. The shipment airbill, tracking no. 862299410390, indicated no declared 

hazardous materials were being offered in the shipment. 

3. On or about May 28, 2008, the shipment airived by ground transportation at the 

FedEx sort center in Soquel, California whereupon FedEx discovered the 

shipment leaking during the sort process. 

4. The shipment consisted of a fiberboard box containing a fuel pump -wxapped in 

plastic. Approximately a quarter of a liter of motor gasoline had leaked from the 

fuel pump. 

5. Motor gasoline is a hazardous material under § 172.101 of the Hazardous 

Materials Regulations (49 C.F.R. §§ 171 et seq.). Its proper shipping name is 

"Gasoline," it is in hazard class 3 and packing group II, and has an assigned 

identification number of UN 1203. 

6. At all times mentioned herein, the shipment was not accompanied by a Shipper's 

Declaration for Dangerous Goods. 

7. Greenwood, through employee Mark Lacasa, offered the above-described 

shipment of hazardous material for transportation when the shipping papers did 
06/03/2011 11:49 FAX 3107256816 AWP-7 Igl007 

not contain the proper shipping name of each hazardous material, the hazard class 

of each hazardous material, the assigned identification niunber of each hazardous 

material preceded by "UN" or "NA," as applicable, the total quantity by weight or 

volume of each hazardous material covered by the description, and thi3 basic 

description of each hazardous material shown in sequence. 

8. As described above, Mark Lacasa was a hazmat employee and Greenwood was a 

hazmat employer, as defined in 49 C.F.R. § 171.8, Mr. Lacasa offered the abovedescribed hazardous material for transportation when he had not been trained in 

the transportation of hazardous materials in accordance with subpart H of part 172 

of 49 C.F.R. 

9. Greenwood offered the above-described hazardous material for transr^rtation 

without including in the shipping papers an emergency response telephone 

number as prescribed in Subpart G of Part 172 of the HMR. 

10. Greenwood offered the above-described hazardous material for transj-iortation 

when Greenwood did not certify that each hazardous material was in accordance 

with the HMR by printing the certification set forth in § 172.204(a) or 

§ 172.204(c)(1) of the HMR on the shippmg papers. 
06/03/2011 11:49 FAX 3107256816 AWP-7 121008 

11. Greenwood offered the above-described hazardous material when the shipment 

was not marked or labeled in any manner that would indicate the hazardous nature 

of its contents. 

12. Greenwood offered the above-described shipment for transportation v»^hen the 

shipment was not marked with the proper shipping name and the assigned 

identification number of each ha2'.ardous material contained in it, and the required 

markings in English were not printed on or affixed to the surface of tlie package. 

13. Greenwood offered the above-described shipment without packaging that 

, prevents identifiable release of teizardous materials to the environment. 

HI. 

By reason of the foregoing facts and circumstances, Respondent violated the following 

Department of Transportation Hazardous Material Regulations (Title 49, Part 171 et seq.. Code 

of Federal Regulations): 

a. Section 171.2fe') f49 C.F.R. 6 171.2re')'). which states; No person may offer or 

accept a hazardous material for tj-ansportation in commerce unless the hazardous 

material is properly classed, described, packaged, marked, labeled, ar.d m the 

condition for shipment as required or authorized by applicable requirements of 
06/03/2011 11:49 FAX 3107256816 AWP-7 il009 

5 -

this subchapter or an exemption or special permit, approval, or registration issued 

under this subchapter or subchapter A of this chapter; 

b. Section 172.200Ca'). which states: Description of hazardous materials required. 

Except as otherwise provided in this subpart, each person who offers a hazardous 

material for transportation shall <lescribe the hazardous material on the shipping 

paper in the manner required by this subpart; 

c. Section 172.202 (si) ny2V3¥4^ & (5\ which states: (a) The shippmg description 

of a hazardous material on the shipping paper must include: (1) The identification 

number prescribed for the material as shown in Colunm (4) of the § 172.101 

table; (2) The proper shipping njune prescribed for the material in Cclumn (2) of 

the § 172.101 table; (3) The hazard class or division number prescribed for the 

material, as shown in Column (3) of the § 172.101 table; (4) the packing group in 

Roman numerals, as designated for the hazardous material in Column (5) of the § 

172.101 table; and (5) Except for transportation by au-craft, the total quantity of 

hazardous materials covered by the description must be indicated (by mass or 

volume, or by activity for Class 7 materials) and must include an indication of the 

applicable xmit of measurement, for example, "200 kg" (440 pounds i or "50 L" 

(13 gallons); 
06/03/2011 11:49 FAX 3107256816 AWP-7 121010 

6-

d. Section 172.204 (eC). which states: General. Except as provided in paragraphs (b) 

and (c) of this section, each person who offers a hazardous material for 

transportation shall certify that the material is offered for transportatif>n in 

accordance with this subchapter by printing (manually or mechanically) on the 

shipping paper containing the required sliipping description the certification 

contained in paragraph (a)(1) of 1his section or the certification (declaration) 

containing the language contained in paragraph (a)(2) of this section; 

e. Section 172.300(a'). which states: Each person who offers a hazardous material 

for transportation shall mark each package, freight container, and trarsport 

vehicle containing the hazardous material in the manner required by this subpart; 

f Section 172.400('al which states: Except as specified in § 172.400a, each person 

who offers for transportation or transports a hazardous material in any of the 

following packages or containment devices, shall label the package or 

containment device with labels specified for the material in the § 172.101 table 

and this subpart; 

g. Section 172.600rcV which states: General requirements. No person to whom this 

subpart applies may offer for transportation, accept for transportation, transfer, 

store or otherwise handle during transportation a hazardous material imless: 
06/03/2011 11:49 FAX 3107256816 AWP-7 iiOll 

- 1 ' 

(1) Emergency response information conforming to this subpart is innnediately 

available for use at all times the hazardous material is present; and (2) Emergency 

response information, including the emergency response telephone number, 

required by this subpart is immediately available to any person who, ?5 a 

representative of a Federal, State or local government agency, responds to an 

incident involving a hazardous material, or is conducting an investiga cion which 

involves a hazardous material; 

h. Section 172.604(a\ which states: A person who offers a hazardous material for 

transportation must provide an emergency response telephone numbcT, including 

the area code or international access code, for use in the event of an emergency 

involving the hazardous material; 

i. Section 172.702(a"), which states: A hazmat employer shall ensure that each of its 

hazmat employees is trained in accordance with the requirements prepcribed in 

this subpait; 

j . Section 172.704, which states: Hazmat employee training must include the 

following: (1) General awareness/familiarization training. {2) Funcnon-specific 

training. (3) Safety training. (4) Security awareness training. (5) In-depth 

security training; 
06/03/2011 11:49 FAX 3107256816 AWP-7 121012 

-8 

k. Section ll'i.KhX which states: A shipment ofbazardous materials that is not 

prepared in accordance with the subchapter may not be offered for transportation 

by air, highway, rail, or water; 

1. Section 173.3(a\ which states: Thepackagingof hazardous material;; for 

transportation by air, highway, rail, or water must be as specified in tiiis part; 

m. Section 173.22("a'). which states: Except as otherwise provided in this part, a 

person may offer a hazardous material for transportation in a packagi nig or 

container required by this part only in accordance with the following: (1) The 

person shall class and describe the hazardous material in accordance with parts 

172 and 173 of this subchapter, and (2) The person shall determine that the 

packaging or container is an authorized packaging, including part 17,'! 

requirements, and that it has been manufactwed, assembled, and marked in 

accordance with: (i) Section 173.7(a) and parts 173,178, or 179 of tiiis 

subchapter; (ii) A specification of the Department in effect at the datt; of 

manufacture of the packaging or container; (iii) National or intematicpnal 

regulations based on the UN Recommendations (IBR, see § 171.7 of this 

subchapter), as authorized in § 173.24(d)(2); (iv) An approval issued under this 

subchapter; or (v) An exemption or special permit issued under subchapter A of 

this chapter; 
06/03/2011 11:50 FAX 3107256816 AWP-7 11013 

n. Section lll.lMOaXW which states: Each package used for the shipment of 

hazardous materials imder this subchapter shall be designed, constructed, 

maintained, filled, its contents so lunited, and closed, so that under conditions 

normally incident to transportation - except as otherwise provided in this 

subchapter, there will be no identifiable (without the use of instruments) release 

of hazardous materials to the environment; and 

o. Section 173.27(e')('3'). which states: When absorbent materials are reciuired and 

the outer packaging is not liquid tight, a means of containing the liquid in the 

event of a leakage must be provided in the form of a leakproof liner, plastic bag or 

other equally efficient means of containment. 

IV. 

1. In accordance with Section 5123 (a) of Title 49 of the United States Code 

(Transportation) [(49 U.S.C. Section 5123 (a)]. Respondent is liable for a civil penalty 

of not less than $250.00 ($450 for tiraining violations), nor greater than $50,000 (or 

$100,000 for violations resulting in death, serious illness, or severe injury to any person, 

or substantial destruction of property) for each violation of the Department of 

Transportation Hazardous Materials Regulations. 
06/03/2011 11:50 FAX 3107256816 AWP-7 121014 

10 

2. Under the facts and circumstances of this case, a civil penalty of $56,<)00.00 is 

appropriate. 

WHEREFORE, the Complainant, respectftilly requests that the Administrati\e Law 

Judge enter an order that Respondent be assessed a civil penalty in the amount of $5(5,000.00. 

Respectfully submitted. 

^iP<Md. 

Lisa J. TqKiano 

Attorney 

Office of the Regional Counsel 

Federal Aviation Administration 

Western-Pacific Region 

DATED: June 3, 2011 
06/03/2011 11:50 FAX 3107256816 AWP-7 121015 

CERTIFICATE OF SERVICE 

I hereby certify that on this date I have placed m. the United States mail, postage prepaid, 

certified mail-return receipt requested, the executed original of the Complaint, addressed as 

follows: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

Also by facsimile: (202) 493-5142 

I further certify that on this date I have placed in the United States mail, postage prepaid, 

certified mail-return receipt requested, a true copy of the Complaint, addressed as fellows: 

Michael S. Greenwood, President 

Martin Greenwood, Vice President 

Greenwood Chevrolet 

270 San Felipe Rd 

Hollister, CA 95023 

Houston N. Tuel, Jr., Esq. 

1550 Harbor Blvd, Suite 206 

West Sacramento, CA 95691 

Also by facsimile: 916-376-0299 

Dated: June 3, 2011 

AgnesEbilane 

Legal Technician 

Office of the Regional Counsel 

Federal Aviation Administration 

Western-Pacific Region 

Lawndale, California 
fiJi2jB.n.iirari[jj£, 

MOTORS 

\ mtAXZ 

Greenwood Chevrolet Pontioc Buick GMC 

tel 831.637.5328 

270 Son Felipe Rood • Hollister tt 95023 

fox 831.637.2369 

www.GreenwoDdMotDn.coiii 

May 24, 2011 

RECEfVED 

m -12m 

HiARING DOCKET 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

VIA CERTIFIED MAIL 

RETURN RECEIPT REQUESTED , 

Attention: 

Re: 

Dear FAA: 

Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Room 2W1000 

Case #2008WP700205 

Request for Hearing 

Greenwood Chevrolet dba Greenwood Chevrolet Buick GMC, a California corporation 

("Greenwood"), of Hollister, California, the party that was mailed a Final Notice of Proposed 

Civil Penalty on May 11, 2011, in the above-referenced case, hereby requests that a hearing 

be scheduled in this matter to allow Greenwood the opportunity to contest the facts, 

conclusions, allegations, and proposed civil penalty set forth in such Final Notice. 

In so doing, Greenwood also alleges by way of affirmative defense that the FAA's 

Western-Pacific Region has been dilatory in proceeding against Greenwood and has thereby 

caused Greenwood prejudice in the process such that the Doctrine of Laches should bar 

further action against Greenwood. 

Moreover, and by way of additional affirmative defense, the amount of hazardous 

materials offered for shipping my Greenwood, if any, fell under the small quantity exception 

found in 49 CFR 173.4. 

Greenwood also requests that the hearing be set for a location that is within a 

reasonable driving distance from Hollister, California, such as somewhere in San Jose, 

Monterey, Gilroy, or Hollister, California. 

Greenwood will be represented in this matter by Houston N. Tuel, Jr., Esq., and all 

future notices and communications concerning this case should be directed to him as follows: 

Houston N. Tuel, Jr., Esq. 

Law Offices of Houston Tuel 

1550 Harbor Blvd., Suite 206 

Greenwood Chev FAA Itr 5-24-11 .doc 
FijojeL/iuii u ut ^ 

MOTORS 

< ^ \ S M C 

Greenwood Chevrolet Pontioc Buick GMC 

tel 831.637.5328 

270 San Felipe Road-Hollister CA 95023 

fax 831.637.2369 

www.GreenwoodMotors.coni 

West Sacramento, CA 95691 

Telephone - (916) 376-0100 

Facsimile - (916) 376-0299 

E-mail - hnt@tuelgarman.com 

Respectfully submitted, 

Greenwood Chevrolet, a 

California corporation 

Martin Greenwood 

Vice President 

cc: Lisa J. Toscano 

Federal Aviation Administration 

Western-Pacific Region 

Office of the Regional Counsel 

P.O. Box 92007 

Los Angeles, CA 90009-2007 

Greenwood Chev FAA Itr 5-24-11 doc