SERVED: October 29, 2013 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

FEDERAL AVIATION ADMINISTRATION, 

) 

Complainant, ) 

) 

. ;--, 

~ ) 

) 

FAA Docket No. CP10NM0012 

(Civil Penalty Action) 

TGI FREIGHT, ) 

) 

Respondent. ) DMS No. FAA-2010-1079 

) 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: Complainant did not prove a violation. The Complaint will be dismissed. 

This case turns on the nature and scope of the duty shippers ofhazardous materials owe 

to their constituents: the Federal Aviation Administration, first responders, crew members and 

the travelling public. 

I. Background 

The parties, Complainant Federal Aviation Administration ("Complainant," "FAA," or 

''the agency") and Respondent TGI Freight ("Respondent" or "TGI"), of Anchorage, AK, are in 

general agreement on the facts. The FAA had hired Lockheed Martin ("Lockheed") and the 

Parsons Corporation ("Parsons") to install under a Parsons technical-services contract a weather 

camera at the Misty Fjords National Monument. The location is on New Eddystone Island, near 

Ketchikan, AK (Exh. C-27; Tr. 14-16,41-44, 50). 

Certain materials had to be shipped by air from Anchorage to Ketchikan. Typically the 

contractor's shipping at the origination point is handled by the FAA at its logistics complex at 
2 

the Anchorage airport. 1 Parsons normally consolidates the materials, segregating known or 

suspected hazardous materials ("hazmats") on separate pallets or containers. It then turns the 

load over to the FAA's logistics manager, identifying the possible hazmats. FAA policy is to 

then bring the hazmats to the Respondent for manifesting and shipping (Tr. 23-24; see also Tr. 

51-52). Respondent moves freight and performs hazardous materials packaging and 

certification (Tr. 299). 

The product central to the instant dispute is Pro-Poxy 400 ("Pro-Poxy"). Pro-Poxy is 

manufactured by a company called Unitex. It was tendered for shipment in four fiberboard 

boxes as part of a six-box shipment. Each of the four boxes contained twelve 9.3-ounce (275 ml) 

tubes of the material (Tr. 57-58, 200; Exhs. C-9, C-12, C-21). The writing on the boxes' exterior 

describes Pro-Poxy as an epoxy acrylate anchoring gel used in concrete stone masonry (see, e.g., 

Exh. R-8, p. 1; Tr. 315). It was to be used in this job to cement the base of the camera into the 

rock (Tr. 38; see also Tr. 7). The word "adhesive" also was written on the boxes' exterior (Tr. 

66-67; Exh. R-8). Parsons, in consolidating the items, determined that Pro-Poxy was a 

hazardous material and duly segregated it from the rest of the shipment (Tr. 40-41). 

Robert Dexheimer, FAA's logistics manager, testified that he ships project materials for 

the FAA and for contractors such as Parsons and Lockheed. He customarily asks entities with 

whom he deals if they have hazmats; if they do, those materials are separated and taken to TGI to 

ship. Dexheimer took the materials from Parsons and noticed the word "epoxy" on the 

packages' exterior. He did not know whether or not the product inside was hazardous. Most 

epoxies, he said, have one part that is hazardous, and one that is not. When in doubt he typically 

brings the material to the experts, he said. He turned these packages over to TGI (Tr. 68-84; 

Exh. C-14, p. 1; see also Tr. 140-43; Exh. C:-26). 

On February 19, 2010, TGI offered the four boxes ofPro-Poxy to Alaska Airlines 

("Alaska") for shipment from Anchorage, AK, to Ketchikan, AK.? The air waybill, which 

included the two other boxes in the shipment as well, described the shipment as a whole as 

"miscellaneous non-hazardous tools & construction material" (Exh. C-2; Tr. 102-03, 115). The 

shipper initialed the box stating "This shipment does not contain dangerous goods" (underlining 

in original). 3 

Alaska decided that further investigation was warranted. This prompted it to obtain ProFoxy's Material Safety Data Sheet ("MSDS") (Tr. 272-73; Exh. C-19). The MSDS is an 

Occupational Safety and Health Administration ("OSHA") document whose primary purpose is 

to convey safety information to individuals working with that material (Tr. 160-61, 179-80). It 

is not a requirement for air shipment. But it is a quick way to identify the nature of a product and 

any restrictions attached to its transportation (Tr. 99-100, 106-07, 158-59, 307). Examination of 

the MSDS led Alaska to conclude that Pro-Poxy was a hazardous material. The carrier held the 

1 From Ketchikan the materials travel by landing craft to New Eddystone Island. Tr. 22, 64-65. 2 Parsons was the named shipper. Exh. C-2; Tr. 118. TGI, however, affirmed that it was the actual offeror. It is 

the "dangerous goods agent" for air shipments tendered by Parsons, it stated, and it took responsibility for 

the shipment and its consequences. Tr. 122-25, 271-72, 349-50; Exhs. C-22, C-23. 

3 Exh. C-2; Tr. 115. The term "dangerous goods" as used in the International Civil Aviation Organization ("ICAO") 

Technical Instructions is interchangeable with the term "hazardous material" as defined in 49 C.F .R § 171.8. 
3 

four suspect boxes at its Anchorage Airport facility (Tr. 134; Exh. C-24). Alaska notified FAA 

hazardous materials specialist Jeffrey Deitz of the situation the same day (Tr. 95-96; Exh. C-1). 

Deitz, as part ofhis investigation, also pulled Pro-Poxy's MSDS. He testified that the 

MSDS indicates that Pro-Poxy is a regulated, i.e. hazardous, material (Tr. 108). The MSDS 

describes it as an epoxy resin and an epoxy acrylate blend (Exh. C-19, p. 1). 

Hazardous materials offered for transportation by air must comply with detailed marking, 

labeling, packing, and informational requirements. These requirements are spelled out in the 

Hazardous Materials Regulations ("HMRs"). Under the HMRs, hazardous materials offered in 

air transportation must be labeled with a shipping name. The proper shipping name for this 

product, Deitz testified, is "ADHESIVES, containing a flammable liquid" (Caps in original). 

The tender also should have been accompanied by shipping papers -which contain a hazard 

class -plus appropriate marking and labeling, a UN number, and packing group and emergency 

response information (Tr. 107-11, 117-20, 193,244, 275-77; Exhs. C-8, C-19). 

The shipment, however, had been undeclared (Tr. 275; Exh. C-8, p. 1). "Undeclared" 

means that it lacked any notice of the hazardous nature of the product within. Midtown Neon 

Sign Corporation, FAA Order No. 96-26 (August 13, 1996), p. 2. Respondent, Complainant 

alleges, failed to observe any of the informational protections the HMRs require for such 

products. 

The FAA then brought this action against TGI. The agency cited Respondent for the 

following sixteen HMR violations: §171.2(e), in offering a hazardous material for transportation 

in commerce when the material was improperly classed, described, packaged, marked, and 

labeled for shipment; §172.200(a), in offering hazardous material without properly describing 

the material on shipping papers; §172.201(d), offering hazardous material without including an 

emergency response telephone number; § 172.202( a)( 1 ), offering a hazardous material without 

including its proper identification number; § 172.202(a)(2), offering a hazardous material without 

including the proper shipping name; § 172.202(a)(3), offering a hazardous material without 

including the hazard class or division number prescribed for the material; §172.202(a)(4), 

offering a hazardous material when the description did not include the assigned packing group; 

§173.204(a) or (c)(1), in offering hazardous material without printing the proper certification on 

the shipping papers; § 172.204(c)(2), failing to provide two copies of the shipper's certification; 

§172.204(c)(3), offering hazardous material without adding to the shipper's certification a 

statement declaring that all air transport requirements were met; §§172.300 and 172.301(a), 

offering hazardous material in a package not marked with the proper shipping names and 

identification numbers for its contents; § 172.400(a), offering an improperly labeled hazardous 

materials package; and §§172.600(c)(1) and (c)(2), offering hazardous material when emergency 

response information was not immediately available. Complainant has asked for a civil penalty 

under 49 U.S.C. §5123(a) and 14 C.P.R. §13.305(d) of$15,000. 

Respondent denied the charges. 
4 

I held a hearing in Anchorage, AK, on September 20 and 21, 2012. The parties have 

filed briefs and the matter is now ready for decision. 4 

II. Discussion and Arguments of the Parties 

The statute governing this case is the Hazardous Materials Transportation Act, 49 U.S.C. 

§§5101-5127 (''the Act"). In pertinent part the Act provides that "[a]ny person ... who is 

determined by the Secretary ... to have knowingly committed an act which is a violation ... of a 

regulation issued under this title, shall be liable to the United States for a civil penalty." 

(emphasis supplied). Under §5123(a)(1), a person acts knowingly when-

(A) the person has actual knowledge of the facts giving rise to the violation; 

or 

(B) a reasonable person acting in the circumstances and exercising reasonable 

care would have that knowledge. 

A. Complainant's Arguments 

The agency argues that the statute and HMRs "impose a duty on a shipper to know what 

is in each shipment offered for transportation." It reiterates that the HMRs "place the duty to 

know the contents [of each shipment] squarely on the shipper ... " 

Respondent also has a duty to inquire. And the evidence also shows, the agency 

continues, that Respondent breached that duty. As such it failed to exercise reasonable care. 

Reasonable inquiry under the circumstances warranted TGI to investigate beyond the marking 

and labeling on the packages' exterior to ascertain whether Pro-Poxy was a hazardous material, 

Complainant asserts. TGI may not shift that duty tothe manufacturer or to another entity. Since, 

the argument continues, Respondent would have learned that Pro-Poxy is a regulated material, 

TGI is charged with that knowledge. It violated the HMRs at issue because it failed to follow the 

rules' informational requirements for the tender of such materials. Finally, the agency also 

asserts that because Respondent holds itself out as an expert in the shipment of hazardous 

materials, it should be held to a higher standard than that of an "ordinary shipper" - a standard 

that independently compelled further inquiry and would have uncovered Pro-Poxy's hazardous 

status (Compl. Br., pp. 16-19; Compl. Rebut. Br., pp. 2-5). 

In support of Complainant's arguments, FAA hazmat specialist Jeffrey Deitz testified that 

the terms "adhesives" and "epoxy" found on the exterior of the packages are ''trigger terms" (Tr. 

144, 147, 158). Trigger terms, he explained, are words or phrases used in describing materials 

which raise the suspicion that hazardous materials might be hidden in them or that the materials 

themselves might be hazardous (Tr. 143-44). Not all adhesives are regulated, he agreed, but 

some are. Similarly, many epoxies are hazardous, but some are not (Tr. 147, 149-58, 194; see 

Exh. C-34). Yet the presence of a trigger term always warrants further inquiry (Tr. 148). Such 

4 Compl. Br. = Complainant's Post-Hearing Brief; Resp. Br. = TGI's Post-Hearing Brief; and Compl. Rebut. Br. = 

Complainant's Rebuttal Brief. 
5 

inquiry, Deitz stated, would have begun either by contacting the manufacturer or by obtaining an 

MSDS (Tr. 148). 

Deitz acknowledged that MSDS' contain mistakes. And such documents, moreover, 

typically contain a disclaimer about the reliability ofthe information therein (Tr. 175-77, 184; 

Exh. C-19, p. 4). 

B. Respondent's Arguments 

Respondent maintains that the information on the packages did not warrant further 

inquiry. It was entitled to rely on the manufacturer's representations, it asserts. TGI is not 

responsible if the materials therein turned out to be hazardous, Respondent maintains; it is the 

manufacturer which failed in its duty of disclosure (Tr. 13; Resp. Br., pp. 1-3). Respondent 

concludes that it was "entirely reasonable under the circumstances" to rely on the manufacturer's 

representations and that it is not liable for any violations resulting (Resp. Br., pp. 4, 9-10). 

Jeff Jueneman is a warehouse manager at TGI. He received the shipment. He testified 

that he segregated the items according to their hazardous or non-hazardous nature. He 

appropriately marked and labeled the hazmats. Pro-Poxy was not among them. Jueneman 

maintained that nothing on the Pro-Poxy packages or the tubes inside indicated that the substance 

was a hazmat. He saw no labels or markings associated with hazardous materials. Although the 

packagings were marked "epoxy" and "adhesive," no indication on the boxes or the tubes 

suggested that this epoxy was a hazmat, he maintained. He processed the shipment undeclared 

and tendered it to Alaska Airlines (Tr. 280-86, 291-92, 295-96; see Exhs. R-21, R-22). 

Todd Clark is the owner ofTGI. He testified that Mr. Jueneman called him to look at the 

packages. Jueneman thought that there were no markings to identify the materials inside as 

hazardous, Clark testified, but because Pro-Poxy is an epoxy, Jueneman asked Clark to take a 

look. Clark understood that some adhesives and some epoxies are hazmats and some are not (Tr. 

335-36, 343-44). 

Clark inspected one of the boxes. No labels or markings associated with hazmats were 

present, he said. He did acknowledge that the word "epoxy" is a trigger term (Tr. 343, 346). It 

mandated further scrutiny. So Clark looked inside a package and inspected the tubes. In 

conducting a hazmat inquiry, Respondent, Clark testified, ordinarily will look for signs that a 

material is corrosive, flammable, or toxic. Typical consumer warnings that TGI looks for, 

according to Clark, are "Keep away from heat or flame," "Contact with skin or eyes may cause 

· burns or blindness," "Poison, keep out of the reach of children" and similar. A depiction of a 

flame on the tube, for example, would have warranted determination of the substance's 

flashpoint, he said. And that would have led Respondent to the MSDS (Tr. 306). But these 

tubes had no such warnings -- save for one suggesting mild toxicity to skin in the event of long, 

repeated exposure. No other even "slightest indication" suggested that the product presented 

any danger to the user, the witness testified (Tr. 300-05, 346-47; Exhs. R-13, R-21, R-22; see 

also Exh. R-9, pp. 10, 11). Clark concluded that no reason existed to take what in different 

circumstances would have been the next step in the inquiry, i.e. checking the MSDS (Tr. 305-06, 

344, 348). Under the immediate circumstances "we trust[ed] what's on th[e] box" (Tr. 307). 
6 

Moreover, he added, when he later inspected a different load of the shrink-wrapped pallets by 

which the Pro-Poxy customarily was delivered, he saw no warning on the pallets' exteriors (Tr. 

318-19, 3 23; see Exh. R -9). It is true that a rectangular inset on the outside packaging states, 

"Per NTSB Safety Recommendations, the use of adhesive anchors is prohibited in sustained 

overhead load anchoring applications," and that the packaging shows a "T" symbol. But this 

information did not warrant a different approach, Clark maintained (Tr. 348; Exhs. C-14, p. 1 

and C-15). 

Clark concluded that "everything here indicates that it's a non-regulated item" (Tr. 348; 

see also Tr. 397). He insisted that he was right to rely on the manufacturer's representations 

(Tr. 319,323, 344). 

Jack Peters, a hazardous materials consultant and instructor, testified as an expert witness 

for Respondent. He stated that it is proper to look at the box first. To indicate a hazmat some 

cautionary words or statements should be present. Such terms as "flammable," "combustible," 

and "causes severe burns," for example: they "throw a flag up" (Tr. 375, 377). If a trigger term 

is present, he said, the next step is to look inside. Peters agreed with Complainant that the terms 

"epoxy" or "adhesive" are trigger terms which would compel a look inside the package (Tr. 376, 

391-92). 

In this case the inner packaging conveyed no information respecting hazardous materials 

transportation, Peters said (Tr. 367). That suggested a non-hazardous substance. The fact that 

directions on the tubes recommended water to remove the material from one's skin additionally 

indicates a non-hazardous substance, he stated (Tr. 388). In sum, Peters found no indication that 

the packages were hazardous (Tr. 374). He concluded that it was appropriate for TGI to rely on 

the descriptions of the manufacturer (Tr. 394; see also Tr. 407-08). 

III. Decision 

I find and conclude that Complainant failed to prove the allegations of the Complaint. 

The Complaint will be dismissed. 

It is undisputed that Respondent had actual knowledge of the facts giving rise to the 

violations alleged. That is, it was aware that it had offered four boxes ofUnitex Pro-Poxy 400, 

each box containing twelve 9.3-ounce tubes of the substance, to Alaska Airlines for air 

transportation from Anchorage to Ketchikan, AK (Compl. Rebut. Br., pp. 1, 2). It has neither 

been alleged nor shown, however, that Respondent had actual knowledge that it had offered 

hazardous materials. In this situation the law defaults to the Act's subparagraph B: it charges 

Respondent with the knowledge that reasonable inquiry would have produced. Contract Courier 

Services, Inc. v. Research & Special Programs Administration, 924 F.2d 112, 114 (ih Cir. 

1991); Interstate Chemical Company, Inc., FAA Order No. 2002-29 (December 6, 2002), p. 14. 

Complainant reads the statute differently. It contends that because a substance's nature, 

i.e. whether a hazmat or not, is a question of law and not of fact, it is not necessary to show that 

the entity offering a shipment was aware that the shipment contained hazmats. If Respondent 

knew that it tendered four fiberboard boxes ofPro-Poxy- which, as we have seen, it did- then it 
7 

inexorably follows, Complainant contends, that TGI is liable for the HMR violations with which 

it is charged. The law's duty of inquiry, the agency asserts, refers only the shipper's duty to 

know what it is shipping (Compl. Br., p. 16; Compl. Rebut. Br., p. 2). 

This argument is rejected. It is not the law. The question of a substance's nature is 

separate from the issue of a shipper's responsibility. Moreover, Complainant's formulation 

effectively eliminates the duty of inquiry plainly contained in the statute. The FAA would 

foreclose, and render meaningless, the statute's subsection creating the shipper's duty of 

reasonable care in the circumstances. See §5123(a)(1)(B), at I.D., p. 4 .. The agency's analysis 

violates one of the fundamental interpretive canons of statutory construction -- that "a statute 

should be construed so that effect is given to all its provisions, so that no part will be inoperative 

or superfluous, void or insignificant." Corley v. U.S., 556 U.S. 303, 314 (2009). 

This leads us to the next question: whether Respondent's inquiry into the nature of the 

shipment was reasonable under the circumstances. I find that it was. Prompted by the trigger 

terms "adhesive" and "epoxy," TGI opened the exterior packaging and inspected the unit 

tendered, which was the tubes. It found no marking or labeling, no language or symbols, 

suggesting a risk of fire, toxicity, corrosiveness, or similar perils ofthe kind and quality 

customarily associated with hazmats. To end the inquiry at that point was a reasonable response, 

I find. TGI should not be held liable for the consequences. 

Complainant would have had Respondent continue its investigation further, either by 

pulling the MSDS or by contacting Pro-Poxy's manufacturer. It argues that because some epoxy 

materials and some adhesives are in fact hazardous, Respondent did not carry its investigation far 

enough. Had TGI appropriately persevered, it would have discovered that Pro-Poxy was a 

regulated material. It must be held responsible for the consequences, the agency concludes. 

This argument also may not stand. The fact that some substances in a certain 

classification prove to be hazardous does not warrant that all within that grouping compel the 

kind of scrutiny necessary to uncover their underlying nature. The law does not place such a 

broad, far-reaching obligation on shippers. The agency unjustifiably enlarges the meaning of 

"reasonable." 

The evidence in this case highlights the FAA's overreach. Respondent's owner testified 

that to obtain an MSDS for significantly more boxes in its warehouse would unfairly and 

unreasonably burden its business (Tr. 306-07). I do not believe that Congress intended such a 

result. Some of the responsibility - indeed, the prime responsibility - for properly indicating the 

nature of a substance when placing such an item in the stream of commerce should devolve on 

the manufacturer. Complainant's witness Deitz agreed that it may be appropriate for a shipper to 

rely on a manufacturer's statements regarding its products (Tr. 256). In this case, I find that it 

was appropriate to so rely. 

Finally, I cannot subscribe to Complainant's assertion that because Respondent held itself 

out as having particular expertise in the transport of hazardous materials, a greater duty of care 

devolved upon it. There is no authority for such a proposition. The statute commands that every 

shipper be held to the same standard of care - what is reasonable under the circumstances. 
8 

Moreover, I find that Respondent's promotion of its services simply was an effort to attract 

business, a way to distinguish itself from the competition. Such salesmanship is a part of 

commercial life. The more successful promoters of their skill or experience should not be, in 

effect, penalized for their relative success in the marketplace. 

I have carefully considered all other arguments advanced by the parties. Those not 

discussed herein are dismissed as without merit. 

I find and conclude that the agency failed to prove that Respondent TGI Freight 

knowingly offered hazardous materials in air transportation. As such, the Complaint is 

dismissed. 5 

Attachment - Service List 

5 Any appeal from the Initial Decision to the Administrator must be in accordance with section 13.233 of the Rules 

of Practice, which requires 1}that a notice of appeal be filed no later than 10 days (plus an additional5 for mailing) 

from the date of this order and 2) that the appeal be perfected with a written brief or memorandum not later than 50 

days (plus 5 for mailing) from the date of this order. Each is to be sent to the Appellate Docket Clerk, Room 924-A, 

Federal Aviation Administration, 800 Independence Avenue, Washington, DC 20591, and to agency counsel. 

Service upon the presiding judge is optional. 
9 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building-Suite 2W1 0001 

ONE COPY 

Law Offices of Hozubin & Moberly, Respondent's Counsel 

711 M Street, Suite 2 

Anchorage, AK 99501 

TEL: 907-276-5297 

FAX: 907-276-5291 

Howard L. Martin, Jr., Complainant's Counsel 

Regional Counsel, Office of Regional Counsel, AAL-7 

Alaskan Region 

Federal Aviation Administration 

222 W. 7th Avenue #14 

Anchorage, AK 99513-7587 

TEL: 907-271-5273 

FAX: 907- 271-2800 

The Honorable Richard C. Goodwin, Administrative Law Judge 

U.S. Department of Transportation 

Office ofHearings, M-20, 

1200 New Jersey Avenue, S.E.(Ell-310) 

Washington, DC 20590 

TEL: Staff Assistant 202-366-5121 

FAX: 202-366-7536 

FAA Docket No. CP10NM0012 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.