o 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

rsr-n-f f-.r T: 

Souttiwest Region Ui.ri wrj 

Arkansas, Louisiana, " 

New Mexico, Oklatioma 

Texas 

'•'"'"'^.DTAT'OM 

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Via Federal Express Priority Overnight 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Su4|e 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Office of Regional Counsel 

2601 Meactiam Boulevard 

Fort Worth, TX 76137-4298 

(817)222-5099 

(817) 222-5945/5092 FAX 

RECEIVED 

m - 5 2010 

HEARING DOCKET 

Re: In the Matter of LMI Painting, LLC t f jOS^OCii . | f pf\ JltitT^Cii'^ 

FAACaseNo. 2009SW700208 / 

Enclosed you will find a copy of the LMI Painting, LLC request for a hearing received by the 

agency on December 18, 2009, and the original and one copy of the FAA's Complaint in the abovereferenced proceeding. The FAA requests that the hearing in this matter be held in the Fort Worth, 

Texas, area, as that is where the events that gave rise to the violation occurred and where the agency 

witnesses are located. We anticipate that the hearing will last one day. 

Please address all communications with the FAA to the undersigned agency attorney, at: 

si 

Federal Aviation Administration 

Southwest Region, ASW-7G5 

Office of Regional Counsel 

2601 Meacham Boulevard 

Fort Worth, Texas 76137-4298 

LYNETTE WORD 

Regional Counsel 

Southwest^egion 

Enclos LMI Painting, LLC Request for Hearing 

"FAA Complaint - original and one copy 

cc: Lance Murphy, President/Owner 

LMI Painting, LLC 

5238 Brittmoore Road 

Houston, TX 77041 
uvn 

L.M.I. 

5238 Brittmoore Road 

Houston, Texas 77041 

____^ _ Phone; (713) 856.8757 

PAINTING .WALLCOVERING . SPECIAL COATINGS Fox ; (7I3) 856.818 6 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

LMI Painting (here in after called LMI) is requesting a hearing in accordance with 

Subpart G of Part 13 of the Federal Aviation Regulations (14 CFR13, Subpart G), with 

an understanding that a Complaint will be filed. LMI requests that the hearing be held in 

Houston, TX. This request is in reference to the Final Notice of Proposed Civil Penalty 

iweived December 11,2009. FAA Case No. 2009SW700208 (Hazardous Materials). 

LMI is sending this request both to the FAA attomey who signed the Notice and to the 

Hearing Docket. 

Addi«ss: S;^3^ Brt H mWr^'^JD^d 

Telephone: 111'%'^ ' ^^6 7 

Date: I^J-ll'd ^ 

Case No: JjOO^SW 1DOXO % 

Tax ID Number: I h D^tTbU'l ^ 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

*********************************** 

In the Matter of: 

LMI Painting, LLC 

FAA DOCKET Not Assigned 

FAA Case No. 2009SW700208 

********************************** * 

JUDGE NOT ASSIGNED 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, files its Complaint pursuant to Rule 

208 of the Rules of Practice in FAA Civil Penalty Actions (14 C.F.R. § 13.208 (a-c)), and states the 

following: 

I. CASE STATUS 

On December 11, 2009, Respondent LMI Painting, LLC was advised through a Final Notice 

of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount of 

$29,750.00. On December 18, 2009, the FAA received a copy of Respondent's written request for a 

hearing. 

n . FACTS ALLEGED 

1. On or about May 8, 2009, at Houston, Texas, L.M.I. Painting, LLC (LMI) knowingly offered a 

two-piece shipment to FedEx Express (FedEx), a 14 CFR part 121 air carrier, under FedEx 

AirbilL/Tracking Number 7975 7869 9715, for air transportation in commerce to the consignee, 

Ryan Carlson, Key Construction, Many, Louisiana. 

2. One of the packages (the shipment) contained, in part, the following hazardous materials: 

a. One (1) one-gallon can of PPG Industries "Speedhide Interior Wall & Trim Semi-Gloss 

Oil" Enamel paint, product code #6-1110, which contains naphtha (petroleum), hydrotreated heavy 

and naphtha (petroleum), heavy alkylate and has a flash point of 120° F [Closed Cup]. The proper 

shipping name for this hazardous material is Paint. It is in Hazard Class 3 (Flammable liquid). 

Packing Group III, and has an assigned identification nimiber of UN 1263. The proper label is 

"FLAMMABLE LIQUID 3" on a red background. Note: this product can be reclassified as 

Combustible Liquid. 
2 

b. One (1) one-gallon can of PPG "Speedhide Alkyd Semi-Gloss" paint, product code #6-

1300, which contains Stoddart solvent [petroleum distillate] and has a flash point of 107° F 

(Closed Cup). The proper shipping name for this material is Paint. It is in Hazard Class 3 

(Flammable liquid). Packing Group III, and has an assigned identification number of 

UN 1263. The proper label is "FLAMMABLE LIQUID 3" on a red background. Note: 

this product can be reclassified as Combustible Liquid. 

3. The non-specification fiberboard box containing the above-referenced shipment of regulated 

paint did not exhibit identification markings or labels that identified the hazardous materials therein. 

4. At all times mentioned herein, the shipment was undeclared and was not accompanied by a 

Shipper's Certification or Declaration of Dangerous Goods, nor was it accompanied by shipping 

papers that described the hazardous material and provided emergency response information, 

including a 24-hour emergency response telephone number. 

5. On May 12,2009, at the FedEx sort center at Fort Worth AlUance Airport, FedEx personnel 

discovered that the package in the above-referenced shipment was leaking during the sort process while 

off"-loading of the aircraft. The top of the can of PPG Industries "Speedhide Interior Wall & Trim SemiGloss Oil" Enamel paint, product code #6-1110 dislodged, causing approximately two quarts to spill 

out into the interior of the packaging. There were no positive closures applied to the top of the cans. 

6. Paint is classified as a hazardous materials under the Department of Transportation Hazardous 

Materials Regulations (HMR) 49 C.F.R. § 172.101 Hazardous Materials Table. 

7. LMI did not make emergency response information that can be used in the mitigation of an 

incident involving the hazardous material available for use away fi-om the package at all times the 

hazardous material was present in transportation or stored incidental to transportation. 

8. At all times mentioned herein, LMI, a "hazmat employer" as defined in 49 C.F.R. § 171.8, did 

not provide its "hazmat employees" as defined in 49 C.F.R. § 171.8 with hazardous materials training 

mandated by 49 C.F.R. Part 172. Julie Kalousek, an LMI employee, had not received the required 

hazardous materials training at the time she prepared the shipment and offered the shipment to FedEx 

for transportation by air. 

m . Citations 

By reason of the above facts and circumstances, L.M.I. Painting, LLC. knowingly violated 

the following Department of Transportation Hazardous Materials Regulations (HMR): 
1. Section 171.2(e) [49 C.F.R. § 171.2(e)], by offering hazardous material for transportation in 

commerce within the United States when the material was not properly classed, described, 

packaged, marked, labeled, and in condition for shipment as required or authorized under the HMR, 

49 C.F.R. Part 171 et. seq. 

2. General requirements Section 172.200(a) [49 C.F.R. § 172.200(a)], by offering hazardous 

material for transportation without properly describing the hazardous material on the shipping paper in 

the manner required by 49 C.F.R. Part 172; and specifically, the following sections under Section 

172.202(a) [49 C.F.R. § 172.202(a)]: 

a. Section 172.202(a)(1) [49 C.F.R. § 172.202(a)(1)], by offering hazardous material for 

transportation by air without including on shipping papers the identification number prescribed for the 

material as shown in Column (4) of the § 172.101 table; 

b. Section 172.202(a)(2) [49 C.F.R. § 172.202(a)(2)], by offering hazardous material for 

transportation by air without including on the shipping paper the proper shipping name prescribed for 

the material in Column (2) of the § 172.101 table; 

c. Section 172.202(a)(3) [49 C.F.R. § 172.202(a)(3)], by offering hazardous material for 

transportation by air without including on the shipping paper the hazard class or division number 

prescribed for the material, as shovra in Column (3) of the § 172.101 table; 

d. Section 172.202(a)(4) [49 C.F.R. § 172.202(a)(4)], by offering hazardous material for 

transportation by air without including on the shipping paper the packing group in Roman numerals, as 

designated for the hazardous material in Column (5) of the § 172.101 table; 

e. Section 172.202(a)(6) [49 C.F.R. § 172.202(a)(6)], by offering hazardous material for 

transportation by air without including on the shipping paper the total net mass per package, unless a 

gross mass is indicated in Columns (9 A) or (9B) of the § 172.101 table. 

f Section 172.202(a)(7) [49 C.F.R. § 172.202(a)(7)], by offering hazardous material for 

transportation by air without indicating on the shipping paper the number and type of packages. 

3. Section 172.204 [49 C.F.R. § 172.204], by offering hazardous material for transportation by air 

without the proper certification on the shipping papers, as required by either Section 172.204(a) or 

(c)(1) and by failing to add the additional statement: "I declare that all of the applicable air transport 

requirements have been met" as required by Section 172.204(c)(3). 
4. Sections 172.300(a) and 172.301(a) [49 C.F.R. §§ 172.300 and 173.301(a)], by offering 

hazardous materials for transportation in non-buUc packagings when the package was not marked with 

the proper shipping name and identification number for the material, as shown in the § 172.101 table. 

5. Section 172.400(a) [49 C.F.R. § 172.400(a)], by offering hazardous materials for transportation 

by air when the packages were not properly labeled as specified in the Section 172.101 Hazardous 

Materials Table [49 C.F.R. § 172.101]. 

6. Section 172.600(c) [49 C.F.R. § 172.600(c)], by offering for transportation a hazardous material 

and failing to provide emergency response information that can be used in the mitigation of an incident 

involving hazardous materials and contains at a minimum the information prescribed in § 172.602(a) 

and that is immediately available for use at all times the hazardous material is present; and emergency 

response information, including the required emergency response telephone number required by § 

172.604(a) that is 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, and con 

7. Section 172.702(a) and (d) [49 C.F.R. § 172.702(a) and (d)], in that LMI, as a hazmat employer, 

as defined in 49 C.F.R. § 171.8, failed to ensure that each of its hazmat employees, as defmed in 49 

C.F.R. § 171.8, was trained and tested in accordance with the requirements of the HMR as set out in 49 

C.F.R. § 172.704(a). 

8. Section 173.24(b)(1) [49 C.F.R. § 173.24(b)(1)], by offering a shipment of hazardous 

materials for transportation and failing to use a package that was so designed, constructed, 

maintained, filled, its contents so limited, and closed, so that under conditions normally incident to 

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

materials to the environment. 

9. Section 173.24(f)(1) [49 C.F.R. § 173.24(f)(1)], by offering a shipment of hazardous 

materials for transportation and failing to use closures that were so designed and closed that under 

conditions (including the effects of temperature, pressure and vibration) normally incident to 

transportation, there is no identifiable release of hazardous materials to the environment from the 

opening to which the closure is applied; and the closure is leakproof and secured against loosening. 

For air transport, stoppers, corks, or other such friction closures must be held in place by positive 

means. 
5 

10. Secfion 173.27(d) [49 U.S.C. § 173.27(d)], by offering hazardous materials in a non-bulk 

packaging for transportation by air and failing to ensure that stoppers or other fiiction-type closures 

were held securely, tightly, and effectively in place by positive means. 

IV. Proposed Civil Penalty 

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

[49 U.S.C. § 5123(a)], L.M.I. Painting, LLC is Hable 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 49 U.S.C. § 5101 et seq., the Federal 

hazardous materials transportation law, or any regulation prescribed under this statute in the 

Department of Transportation Hazardous Materials Regulations [49 C.F.R. Part 171 et seq.]. 

2. Under the facts and circumstances of this case, a civil penalty of $29,750.00 is reasonable 

and appropriate. 

V. Conclusion 

WHEREFORE, the FAA, by coimsel, respectfully requests that the Administrative Law 

Judge enter an Order that Respondent be assessed a civil penalty in the amount of $29,750.00. 

Respectfully submitted this 4* day of January 2010. 

LYNETTE WORD 

Regional Coimsel 

Federal Aviation Administration 

Southwest Region 

2601 Meacham Boulevard 

Fort Worth, Te 

NOTE TO RESPONDENT: 

Pursuant to § 13.209 of the Rules of Practice for FAA Civil Penalty Actions (14 C.F.R. § 13.209), 

Respondent shall file a written answer to the complaint, not later than 30 days after service of the 

complaint. The answer must be dated and signed and may be typewritten or legibly handwritten. A 

Respondent filing an answer shall personally deliver or mail the original and one copy of the 

answer for filing with the Hearing Docket Clerk, AGC-430, at the following addresses: 
6 

IF YOU ARE FILING A DOCUMENT VIA PERSONAL DELIVERY OR EXPEDITED COURIER 

(i.e., FedEx or other delivery service): 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

IF YOU ARE FILING A DOCUMENT VIA U.S. MAIL: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

The Respondent filing an answer should suggest a location for the hearing when filing the answer 

and shall serve a copy of the answer on the agency attomey who filed the complaint. 

A Respondent filing an answer shall admit, deny, or state that it is without sufficient knowledge or 

information to admit or deny, each numbered paragraph of the complaint. A general denial of the 

complaint is deemed a failure to file an answer. Failure to file an answer without good cause shall be 

deemed an admission of the truth of each allegation contained in the complaint. 
CERTIFICATE OF SERVICE 

I hereby certify that the original and one copy of the foregoing Complaint for FAA Case No. 

2009SW700208 was filed by Federal Express Priority Overnight Tracking No. 

8696 7963 6701 with the Hearing Docket Clerk, AGC-430, at: 

Hearing Docket 

Federal Aviation Administration Telephone: 202-385-8229 or 8230 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

I hereby also certify that a copy of the foregoing Complaint for FAA Case No. 2009SW700208 has 

been served this date by certified mail, return receipt requested, receipt no. 

7004 2510 0005 6015 1205 , to pro se Respondent: 

Mr. Lance Murphy, President/Owner 

LMI Painting, LLC 

5238 Brittmoore Road 

Houston, TX 77041 

'MffA.^uM^ iil^. ^ IW-Jio/D 

Marquitt^ Robinson Date 

Paralegal Specialist