ROC 

. 0ER^.RTMENTOF 

UNITED STATES DEPARTMENT OF TRANSPORTATION^/r-j^-p rfj-l^'TiOr'; 

OFFICE OF HEARINGS .^v..up.^. Ul L.IA .'J^ O 

WASHINGTON, D.C. iOiroci -s A II: 00 

IN THE MATTER OF 

TGI FREIGHT 

FAA DOCKET NO. CP10NM0012 

(Civil Penally Action) 

DMSNO. FAA-20IO-1079 

MOTION FOR DECISION 

The Federal Aviation Administration (hereinafter "FAA"), 222 West Seventli 

Avenue, Box #14, Anchorage, Alaska 99513, (907) 271-5269, through the Agency 

Attorney from the Regional Counsel's office for the Alaskan Region, files this Motion for 

Decision pursuant to the Rules of Practice in FAA Civil Penalty Actions, 14 C.F.R. § 

] 3.218(f)(5). Specifically, the FAA moves for a decision on the limited issue of whether 

UNITEX Pro-Poxy 400 is regulated as a hazardous material for the purpose of 

transportation under the Department of Transportation Hazardous Materials Regulations 

("HMR") [Title 49 Code of Federal Regulations (C.F.R.) 171.1 e/ seq.], specifically, 49 

C.F.R. § 171.2(e) with a proper shipping name "Adhesives," Hazard Class 3, Packing 

Group III, and identification number UNI 133. As support for this motion, the FAA 

submits that as a result of the documentary evidence provided, there remains no genuine 

issue of a material fact that requires a hearing on the limited issue of whether UNITEX 

Pro-Poxy 400 is regulated as a hazardous material for the purpose of transportation under 
ROC 

.Od:-59:32.pjn tn-^J-^ui l 

the HMR and, therefore, the FAA is entitled to a Motion for Decision on this issue as a 

matter of law. 

In support of its motion, ihe FAA would show the Court as follows: 

FAA's Complaint 

November 2, 2010, the FAA filed a complaint in which it alleges that on or about 

February 19, 2010. TGI Freight knowingly offered a six (6) piece shipment to Alaska 

Airlines (ASAA) for air transportation from Anchorage, Alaska, to Ketchikan, Alaska, on 

ASAA air waybill # 027-3371 9873. The block indicating the shipment does not contain 

hazardous materials was initialed. During the screening process, ASAA personnel 

discovered the presence of four boxes, each of which contained twelve (12) 9.3 ounce 

mbes of UNITEX Pro~PoKy.400 adhesive. The FAA also alleged in its complaint that 

TGI Freight failed to mark the shipment with all applicable identification markings and 

labels that would indicate the presence of the hazardous materials inside; that the shipment 

was not accompanied by a Shipper's Certification of Declaration of Dangerous Goods; and 

that the shipment was not accompanied by shipping papers that described the hazardous 

material and provided emergency response information, including a 24-hour emergency 

response telephone number. 

Motion for Decision 

In the Matter of TGI Frei&ht 

Docket No. CP10NMOLH2 

Page 2 of 11 
^ ^ , _[>a'^'^:a-i n.[n. uj-^j-.^" ' • 

ROC ' 

The FAA, tliercfore, alleged that TGI Freights actions violated the Department of 

Transportation Hazardous Materials Regulations ("HMR") [Title 49 Code of Federal 

Regulations (C.F.R.) 171.1 erye^/.], specifically, 49 C.F.R. §§ 171.2(e), 172.200(a), 

172.201(d), 172.202(a)(l-4), 172.204(a) or (c)(!), 172.204(c)(2), 172.204(c)(3), 172.300 

and 172.301(a), 172.400(a), and.172.600(c)(1) and (c)(2). 

The FAA also alleged in its complaint that under 49 U.S.C. § 5123(a), TGI Freight 

is liable for a civil penalty of not less than $250 [$450 for training violations], nor greater 

than $50,000 [$100,000 if death, serious illness, severe injury, or substantial property 

damage results] for each violation of the Federal hazardous materials transportation law 

[49 U.S.C. § 5101 et seg.], and for each violation of the Department of Transportation 

Hazardous Materials Regulations [49 C.F.R. §§ 171.1 ei seq.]. 

Finally, the FAA alleged that under the facts and circumstances of this case, a civil 

penalty of $15,000 is appropriate and reasonable. 

Respondent's Answer 

TGI Freight filed an answer, admitting only that the FAA originally issued a 

Notice of Proposed Civil Penalty in the amount of $27,000 before it issued a Final Notice 

of Proposed Civil Penalty in the amoimt of $15,000. TGI Freight either oiitright denied all 

factual allegations in the Complaint or denied the "allegations/steps as set forth in 

Motion for Decision 

[n the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 3 of 11 
X Q L • 

paragraph [], 4-11], of the Complaint were necessary, because neither the inner nor the 

outer packaging from the manufacturer had been marked and/or labeled correctly, and the 

original documentation from the manufacturer was not available." 

Argument 

In this Motion for Decision, the FAA is asking this Court to look only at the issue 

of whether UNITEX Pro-Poxy 400 is classified as hazardous material under § 172.101 of 

the United States Department of Transportation Hazardous Materials Regulations 

(HMR),49 C.F.R. Chapter I, Subchapter C (Parts 171-80). ) with a proper shipping name 

'"Adhesives/" Hazard Class 3, Packing Group IJI, and idenfification number UNI 133. 

Under the HMR, specifically, under 49 CFR § 173.120(a) a flammable liquid is a 

liquid having a flash point of not more than HOT. Tlius, because the undisputed facts in 

this case show that Pro-Poxy 400 has a component (Part A) with a flash point of 65 T, 

Pro-Poxy 400 is a flammable liquid as defined by the HMR. It is therefore regulated 

under the HMR as a matter of law. 

J. The Material Safety Data Sheet (MSDS) clearly supports that UNITEX Pro-Poxy 400 is 

classified as hazardous material under the HMR 

Motion for Decision • 

In the Matter of TGI Freight 

DocketNo. CP10NM00I2 

Page 4 of 11 
'mc 

-ubi.mj:ua-p.'T. \J3-^J-.I»J_I ^ 

First, the Material Safety Data Sheet (MSDS) produced by and readily available 

from the manufacturer's website to the public 24 hours a day, clearly indicates that ProPoxy 400 is classified as a "Flammable Liquid", has a flash point of 65T, and requires 

specific transportation infonnation, especially if shipping by air (Adhesive, 3, UNI 133, 

PGIII). See Agency Proposed Exhibit A-l 9 (attached). 

Once the FAA was notified of the improper shipment by Alaska Airiines', Jeffrey 

L. Deitz, one of FAA's Hazardous Materials Specialists, opened an investigation into the 

incident. See Declaration of Jeffrey L. Deitz (attached); FAA Proposed Exhibit A-l 

(Email from Kcrri Ketz, Alaska Air to Gary Mcadcrs, FAA, cc'd to Jeff Deitz, FAA 

regarding air waybill 027-3371 9873 undeclared hazmat) (attached); FAA Proposed 

Exhibit A-8 (Hazardous Materials Incident Report, dated February 19, 2010) (attached). 

As part of his investigation, Mr. Deitz pulled the MSDS for the Pro-Poxy 400 from 

UNITEX's website. See Declaration of Jeffrey L. Deitz (attached); Agency Proposed Exhibit A19 (attached). From the MSDS, Mr Dietz was able to verify that Pro-Poxy 400 consists of two 

components. Id. Component A is an Acrylate Blend and Silica, crystalline, and has a flashpoint 

of 65*'F. Component B is Benzoyl Peroxide, Calcium carbonate, and Epoxy Resin and has a 

flashpoint of 315T. Id. Both of these flashpoints were determined by using the Pcnsky Martens 

^ Alaska Airlines employees determined that the shipment was hazmat, stopped the shipment, and 

submitted a Hazardous Materials Incident Report on DOT Form F 5800.1 (01/2004) to the FAA Security 

Field Office nearest the location of the incident as required by regulations. 49 CFR §171.16(b)(2). 

Motion for Decision 

In the Matter of TGI Freight 

DocketNo. CPIONM0012 

Page 5 of 11 
KOV JJZJ.UjJ.Jfi.VL. 

Closed Cup method. Declaration of Jeffrey L. Deitz (attached); Agency Proposed Exhibit A-19 

at p. 1-2 (Section 3, Composition/Information on Ingredients and Section 5. Fire Fighting 

Measures) (attached). Mr. Dietz noted that given that Component A has a Flashpoint of 65°F per 

the Pensky Martens Closed Cup testing method, it is a flammable liquid (Class 3) per the 

Hazardous Materials Regulations^ Declaration of Jeffrey L. Deitz (attached). 

From the MSDS for the Pro-Poxy 400, Mr. Deitz was also able to quickly note that 

UNITEX warned shippers as well as the general public that the product should be treated 

as a flammable liquid and that an explosion hazard exists when Pro-Poxy 400 is exposed 

to heat or flame. Declaration of Jeffrey L. Deitz (attached); Agency Proposed Exhibit A19 (MSDS at Section 5) (attached). In addition, Mr. Dietz noted that inthe MSDS 

UNITEX very clearly provided shippers as well as the general public with the correct 

shipping informaUon for the Pro-Poxy 400. Specifically, UNITEX provided the proper 

shipping name (Adhesive), the hazard class (3), the identification number (UNI 133), and 

the packing group (PGIII) in Section 14; Transport Infonnation of the MSDS. Id. Finally, 

Mr. Dietz noted that the MSDS also specified that the Pro-Poxy 400 must be labeled 

"Flammable Liquid 3" when being shipped by air or water. Id. 

2. TGI Freight's March 18, 2010 Letter responding to FAA 's Letter of Investigation 

acknowledges the availability of ihe MSDS. the fact that Part A of Pro-Poxy 400 has a 

flashpoint of65°F, and that Section 14 contained shipping infonnation (Adhesive, UN 

' 49 CFR 173.120(a) and (c). 

Motion for Decision 

In the Matter of TGI Freight 

DocketNo. CP10NM0012 

Page 6 of 11 
1133, pg IlO^all of which support the fact UNITEX Pro-Poxy 400 is classified as 

hazardous material under the HMS 

As part of his investigation, Mr. Deitz also sent a Letter of Investigation ("LOI") to 

the shipper, Parsons Corporation on February 19, 2010. Declaration of JeflYey L. Deitz 

(attached); FAA Proposed Exhibit A-8 (attached). In response to this LOI, Mr. Deitz 

received a letter from TGi Freight explaining that TGI Freight has been involved as a 

dangerous goods agent for Parsons Corporation dating back to June of 2009 and served as 

their shipping agent on February 19, 2010. Declaration of Jeffrey L. Deitz (attached); 

FAA Proposed Exhibit A- 23 (attached). 

TGI Freight states in its response to Mr. Deitz that it received several items from 

Parsons Corporation to ship on February 19, 2010: 

• Fire extinguisher—-shipped on air waybill 027-3371-9825 

• ORM-D materials—shipped on air waybill 027-3371-91740 

• Pro-Poxy 400~offered on air waybill 027-3371-98173 

Id. TGI Freight admits to Mr. Deitz that it prepared the Pro-Poxy 400 on air waybill 027-

3371 9873. Id. TGI Freight admits that it looked for consumer warnings, but, because it 

did not find any, that the company did not follow its standard procedure and obtain a 

material safety data sheet. FAA Proposed Exhibit A-23 at p. 2-3 (attached). Otherwise, 

TGI Freight explained to Mr. Deitz that the company "would have declared this product 

Motion for Decision 

In the Mauer of TGI Ffeighl 

DocketNo. CP10NM0012 

Page 7 of 11 
and included it on the hazardous material declaration accompanying air waybill #027-

3371-9740." Id 

In its response, TGI Freight went on to explain that it in fact printed the MSDS for 

the Pro-Poxy 400. Declaration of Jeffrey L. Deitz (attached); FAA Proposed Exhibit A- 23 

(attached). TGI Freight noted that part A of the Pro-Poxy 400 had a flash point of 65°F. 

Id. TGI Freight even admitted to Mr. Deitz that the company called the manufacturer and 

had the flash point verified by UNITEX. Id 

TGI Freight thus is admitting that that UNITEX prepares an MSDS for Pro-Poxy 

400"* and that it is readily available to the public on UNITEX's web site. See FAA 

Proposed Exhibit A-23 (attached).. TGI Freight admits that tlie MSDS indicates that the 

Pro-Posy 400 has a flash point of 65°F'' and that it provides the specific information for 

transporting it as a hazardous material under Section 14 (Adhesive, Un 1133, pg III). Id. 

In addition, TGI Freight admits that had these tubes and/or the boxes been marked witii an 

obvious flammable warning, TGJ freight would have followed their standard procedure 

and obtained a MSDS and then declared the Pro-Poxy 400 and included it another 

hazardous material declaration. Id, 

^ See Federal OSIM Communication Standard 29 CFR 1910.1200. 

^ In fact, TGI Freight states in its letter that in a telephone call to the manufacturer TGI Freight confirmed 

that the flashpoint for part A is 65°Fand that the manufacturer lists the product as a packing group III. 

FAA Proposed Exhibit A-23 at p. 2. 

Motion for Decision. 

In the Matter of TGI Freiehl 

DocketNo. CP10NM0012 

Page 8 of II 
Standard of Decision 

Rule 218(f)(5), Motion for Decision, of the Rules of Practice in FAA Civil Penalty 

Actions provides that a party is entitled to a Motion for Decision "if the pleadings, 

depositions, answers to interrogatories, admissions, matters that the administrative law 

judge has officially noticed, or evidence introduced during the hearing show that there is 

no genuine issue of material fact and that the party making the motion is entitled to a 

decision as a matter of law." 14 C.F.R. § 13.218(f)(5). The moving party has the burden 

of showing that there is no genuine issue of material fact disputed by the parties. Id. See 

also Pennsylvania v. Riley, 84 F.3d 125, 130 (3'^^ Cir. 1996). Because the FAA is offering 

additional materials to support its motion, the motion is titled as one for sununjuy' 

judgment, rather than a motion for a decision on the pleadings. A motion for summary 

judgment under Federal Rule of Civil Procedure 56(e) may be supported by affidavits as 

well as by other evidence. An evidentiary hearing before an administrative law judge 

need not be conducted if all material issues of fact can be adequately resolved on the basis 

of the written record. See Knott v. FERC, 386 F.3d (T' Cir. 2004); Delta Air Lines v. 

Department of Transportation, 51 F.3d 1065 (D.C. Cir 1995). 

Motion for Decision 

in the Matter of TGI Freiehl 

DocketNo. CP10NM00I2 

Page 9 of n 
Conclusion 

Under 49 CFR §173.120(a) a flammable liquid is a liquid having.a flash point of 

not more than M0°F. Because the undisputed evidence in this case shows that there is no 

genuine issue of fact that Pro-Poxy 400 has a component (Part A) with a flash point of 65 

^F, it is a flammable liquid as defined by the HMR. It is therefore regulated under the 

HMR as a matter of Jaw. There being no dispute on this issue, the FAA is entitled to 

judgment on this issue as a matter of law. The FAA therefore moves that the 

Administrative Law Judge grant the FAA's motion for partial summary judgment and find 

that LfNITEX Pro-Poxy 400 is classified as hazardous materia! under § 172.101 of the 

HMR with a proper shipping name "Adhesives," Hazard Class 3, Packing Group III, and 

identification number UNI 133. 

id RESPECTFULLY SUBMITTED this 23'*^ day of September 2011. 

HOWARD L. MARTIN, JR. 

Regional Counsel 

By: 

ra <^^^<^s^^y( \ 

Cher>'l M. Jones 

Senior Attorney 

Motion for Decision 

In the Matter of TGI Freight 

DocketNo. CP10NMOOI2 

Page 10 of II 
CERTIFICATE OF SERVICE 

Re: TGI Freight 

FAA Docket No. CP \ ONMOO12 

DMS NO. FAA-2010-1079 

1 certify that on this date I have served a copy of the FAA's Motion for Decision by facsimile 

(without exhibits) and by placing it in the United States Mail, postage-prepaid, certified mail, 

return receipt requested,-addressed as follows: 

Originai and 1 Copy 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

-^Fax : (202)493-5020 • 

'ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

One Copy 

Rebecca J. Hozubin, Esq. 

Wilkerson Hozubin 

310 K Street, Suite 405 

Anchorage, AK 99501 

Fax; (907)276-5297 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

East Building Ground Floor, Room E12-300 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

— ^ Fax: (202) 366-7536 

Office of the Regional Counsel Date 

222 West 7lh Avenue #14 

Anchorage, Alaska 99513-7587 

Motion for Decision 

!n the Maner of TG! Freight 

Docket No. CP I ONMOO 12 

Page JI of II 

i