U.S. Department ofTransportation Federal Aviation Administration

March 14, 2013
OVERNIGHT MAIL Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 £). -") (') -.**~)** :;: Great Lakes Region Regional Counsel, AGL-7 2300 East Devon Avenue Des Plaines, Illinois 60018 847/294-7109



# RECEIVED**~AR** 

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## HEARING DOCKET

ATIN: HEARING DOCKET CLERK 

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## ~0( 3--<.JOLf-7 Re: In the Matter ofFacility Solutions, Inc. I ' e>- 

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## 55 FAA Case No. 2012-NE-70-0128 

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### h\0 Enclosed herein please find a copy of a request for hearing and the original and one copy ofthe Federal Aviation Administration's Complaint in the above-entitled action for filing, together with proofofservice upon the Respondent. The FAA requests that the hearing in this matter be held in the Detroit Metropolitan area, and expects that the hearing will last one day. Please address all communications for the Federal Aviation Administration to the attention ofBrian K. Khan, Office ofthe Regional Counsel, 2300 East Devon Avenue, Des Plaines, Illinois 60018. 

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Brian K. Khan Attorney Enclosures
cc: ANE-700U.S. DEPARTMENT OF TRANSPORTATION FEDERALAVIATION ADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.
In the Matter ofFacility Solutions, Inc. 2012-GL-70-0128 Judge Not Assigned

·coMPLAINT The Federal Aviation Administration (FAA or Complainant), by counsel, hereby files its Complaint, pursuantto Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows: I
On August 22, 2012, Respondent was advised through a Notice ofProposed Civil Penalty thatthe FAAproposed to assess a civil penalty in the amount of$37,500. On February 28, 2013,
a Final Notice ofProposed Civil Penalty in the amount of$33,000 was issued. OnMarch 10, 2013, Respondent submitted a written request for a hearing.
II 1. On oraboutMay21, 2012, JeffreyDwyer, acting onbehalfofFacility Solutions, Inc. (hereinafter "Facility Solutions"), was a ticketedpassengeronSouthwestAirlines flight 194, a passenger-carryingflight, departing from Manchester-BostonRegional Airport inManchester, NewHampshire
.. 2. On oraboutMay21, 2012, Jeffrey Dwyer, acting onbehalfofFacility Solutions, offered checkedbaggage for transportationinair commerce onSouthwestAirlines flight 194. 3. Beforethe above-describedbaggagehadbeentransported viaaircraft, Transportation Security Administration (TSA) personnel atManchester-BostonRegional Airportinitiated aninspection of thebaggage andobservedthat itcontainedthe following item:a) One, 14.1 ounce containerofBernzomaticMap IPro Premium TorchFuel b) The containerofBernzomaticMap 

### IPro PremiumTorchFuel was labeled 

### "DANGER,""EXTREMELYFLAMMABLE," "FIRE/EXPLOSION HAZARD," 

### and "CARBONMINOXIDE HAZARD" 4. The containerofBernzomaticMap IPro PremiumTorchFuel (the "shipment'') is classified as hazardous materials under § 172.101 ofthe DepartmentofTransportationHazardousMaterial Regulations ( 49 C.F.R 

### § 171 

### etseq). 5. The proper shipping name for the container ofBemzomatic Map I Pro Premium Torch Fuel is Propylene. Itis in Hazard Class 2.1 (flammable gas), has an assigned identification number ofUN1077, and is forbidden for transportation onpassengercarrying aircraft. 6. At

### all times mentionedherein, the above-referenced shipmentwas notaccompaniedbya Shipper's Certification orDeclaration for Dangerous Goods. 7. Facility Solutions offeredthe above-described shipmentofhazardous material for transportationby

### airwhenthe material was notproperly classed, described, packaged, marked, labeled, or inthe properconditionfor shipment 8. Facility Solutions offered the above-described shipment ofhazardous material for transportation by air when the shipping papers did not contain the proper shipping name prescribed for the hazardous material, the hazard class or division prescribed for the hazardous material and the assigned identification number ofthe hazardous material, all shown in sequence with no additional information interspersed. 9. Facility Solutions offered the above-described shipment ofhazardous material for transportation by air without placing the total quantity ofthe material covered bythe hazardous materials description onthe shipping paper before or after, orboth before and after, the description. 10. Facility Solutions offered the above-described shipment ofhazardous material to an aircraft operator for transportation by air and did notprovide two (2) copies ofthe required shipper's certification. 11. Facility Solutions offered the above-described shipment ofhazardous material for transportationby air when the packages containing the hazardous material were not marked with the proper shipping nanie and identification numbers, preceded by "UN" or "NA" as appropriate, ofthe hazardous material contained therein, and without the
2required markings being durable, inEnglish and printed on or affixed to the surface of the package, or on a label, tag or sign. 12. Facility Solutions offered the above-described shipment ofhazardous material for transportation by air without making emergency response information immediately available for use at all times the hazardous material was present. 13. Facility Solutions offered the above-described shipment ofhazardous materials for transportation by air without properly preparing the shipment. 14. Facility Solutions offered the above-described shipment containing a material that is "Forbidden" for transportation aboard a passenger-carrying aircraft as indicated in Column 9a ofthe§ 172.101 table (49 C.P.R.§ 172.101).
Ill By reason ofthe above, it appears that Facility Solutions violated the following Department of Transportation Hazardous Materials Regulations: a) 49 CFR § 171.2(e), inthat Facility Solutions offered hazardous material for transportation in commerce when the material was not properly classed, described, packaged, marked, labeled, and inthe condition for shipment required by the Hazardous Material Regulations. b) 49 CFR § 172.200(a), in the Facility Solutions offered hazardous material for transportation without properly describing the material onthe shipping paper. c) 49 CFR § 172. 202(a)(1), inthat Facility Solutions offered hazardous material for transportation when the required hazardous material description on the shipping paper did not include the proper identification number prescribed for the material. d) 49 CFR 

### § 172.202(a)(2), inthat Facility Solutions offered hazardous material for transportation when the required hazardous material description on the shipping paper did not include the proper shipping name prescribed for the material. e) 49 CFR 

### § 172.202(a)(3), in that Facility Solutions offered hazardous material for transportation whenthe required hazardous material description onthe shipping paper did not include the hazard class or division number prescribed form the material.

3f) 49 CFR § 172.202(c), inthat Facility Solutions offered hazardous material for transportation when the total quantity ofthe material covered bythe description did not appearbefore or after, or both before and after, the description required by subpart C of the Hazardous Material Regulations. g) 49 CFR § 172.204(a) or (c)(1), in that Facility Solutions offered hazardous material for transportation without printing the required certification on the shipping paper. h) 49 CFR § 172.300(a) and§ 172.301(a), inthat Facility Solutions offered hazardous material for transportation when the package was notmarked withthe proper shipping name and identification number for its contents. i) 49 CFR § 172.304(a)(1), in that Facility Solutions offered a package containing hazardous material for transportation when the required markings were not durable, in English and printed on or affixed to the surface ofthe package or on a label, tag or sign. j) 49 CFR § 172.400(a), inthat Facility Solutions offered a package containing hazardous material for transportation by air when the package was not properly labeled as specified in§ 172.101. k) 49 CFR § 172.600( c)(1), in that Facility Solutions offered a package containing hazardous material for transportation by air without making emergency response information immediately available for use at all times the hazardous material was present. 1) 49 CFR § 173.1(b), inthat Facility Solutions offered a shipment ofhazardous materials for transportation by air without properly preparing the shipment. m) 49 CFR § 173 .27(b)(1), in that Facility Solutions offered a package containing a material that is "Forbidden" for transportation aboard a passenger-carrying aircraft as indicated in Column 9(a) ofthe§ 172.101 table.
IV 1. Pursuant to 49 U.S.C. §5123, Respondent is subject to a civil penalty ofat least $250 ($450 for training violations), butnot more than $50,000 for each ofthe violations alleged. 2. Under the facts and circumstances ofthis case, a civil penalty of$33,000 is appropriate.

4WHEREFORE, the FAA, by counsel, respectfully requests that the Administrative Law Judge enter an order assessing Facility Solutions, Inc. a civil penalty inthe amount of$33,000. Respectfully submitted,

# ~ Brian K. Khan Attorney Federal AviationAdministration 2300 East Devon Avenue, AGL-7H Des Plaines, Illinois 60018 847/294-7652 Fax: 847/294-7498 

### NOTE: The Rules ofPractice for this proceeding are set forth in Part 13, Subpart G, of the FederalAviation Regulations (14 C.F.R. Part 13). The Rules of Practice provide that Respondent must file a written answer to this Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the date shown on the Certificate of Service. A general denial is deemed a failure to file an answer (Section 13.209(e)).

5CERTIFICATE OF SERVICE I hereby certify that on this day a copies ofthe foregoing Complaint were sent First Class/Certified Mail as follows:
First Class/Certified Mail Mr. Roy 

### J. Transit, Esq. P.O. Box 1578 Royal Oak, MI 48068-1578 Attorney for Respondent I hereby certify that on this day copies ofthe foregoing Complaint were sent via Overnight Mail as follows: OvernightMail (Original & One Copy)

Date: 

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# rr-- Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2W1000



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# JfLe\_) Tammy Gardner Legal Technician Federal AviationAdministration Office ofRegional Counsel 2300 East Devon Avenue, AGL-7 Des Plaines, Illinois 60018

6March 10, 2013 Federal Aviation Administration 600 Independence Avenue, SW. 

## Roy J. 

## Transit Attorney at Law

P.O. BOX 1578 Royal Oak, Ml48068-1578 586-491-6822

Wilbur Wright Building- Suite 2W1000 Washington, D.C. 20591
RE: RESPONDENT: Facility Solutions, Inc. AGL-7H 2012-NE-70-0128 

### RESPONSE TO FINAL NOTICE OF PROPOSED CIVIL PENALTY:
Now comes Facility Solutions, Inc., by and through their attorney, Roy J. Transit and makes the following response to the Final Notice ofProposed Civil Penalty issued by the Federal Aviation Administration date February 28, 2013, and states as follows in regards to each ofthe paragraphs set forth in the Notice: 1. Respondent denies this paragraph in part in that the passenger, Jeffrey Dwyer was not acting 

### O!! behalfofthe Respondent, Facility Solutions, Inc. 2. Respondent denies this paragraph in part in that the passenger, Jeffrey Dwyer was not acting on behalfofthe Respondent, Facility Solutions, Inc. 3. Respondent is without sufficient information or personal knowledge to admit or deny this claim and therefore leaves the Petitioner (FAA) to their proofs. 4. Respondent is without sufficient information or personal knowledge to admit or deny this claim and therefore leaves the Petitioner (FAA) to their proofs.5. Respondent is without sufficient information or personal knowledge to admit or deny this claim and therefore leaves the Petitioner (FAA) to their proofs. 6. Respondent is without sufficient information or personal knowledge to admit or deny this claim and therefore leaves the Petitioner (FAA) to their proofs. 7. Denied. 8. Denied. 9. Denied. 10. Denied. 11. Denied. 12. Denied. 13. Denied. 14. Denied. In responses to the specific allegations contained in the remainder ofthe Petitioner's Final Notice ofProposed Civil Penalty, paragraphs a-m, the Respondent denies that it so acted in each and every one ofthe alleged violations and further states by way ofaffirmative defense to the alleged violations that the passenger, Jeffery Dwyer, was acting without the Respondent's knowledge or consent and outside ofthe course and scope ofhis employment.



### PROOF OF SERVICE A copy ofthis Response and the Letter requesting Hearing was served upon Mr. Jeffrey A. Klang, Regional Counsel, and Mr. Brian K. Khan, Attorney, Federal Aviation Administration Great Lakes Region, at the Office ofthe Regional Counsel, 2300 East Devon Avenue, Des Plaines, IL 60018, on March 10, 2013 by US Mail, postageprepaid, by the undersigned.

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u.s. DEPARTMENT OF TRANSPORTATION 

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FEDERALAVIATION ADMINISTRATION oFFicE oF HEARINGs 

# HEARING DuCKET

WASHINGTON, D.C. fu the Matter ofFacility Solutions, fuc. 2012-NE-70-0128 Judge NotAssigned
NOTICE OFAPPEARANCE Complainant, Federal Aviation Administration, hereby notifies the United States Department of Transportation, Office ofHearings, and the Respondent, pursuant to 14 C.F.R. §13.204(b), that it shall be represented in the above-stated action by the following attorney: Brian K. Khan Federal Aviation Administration Office ofRegional Counsel 2300 East Devon Avenue, AGL-7H Des Plaines, Illinois 60018 847/294-7652 Fax: 847/294-7498
All communications, notices, pleadings or documents are respectfully requested to be forwarded as follows: Brian K. Khan Federal Aviation Administration Office ofRegional Counsel 2300 East Devon Avenue, AGL-7H Des Plaines, Illinois 60018 847/294-7652 Fax: 847/294-7498 Respectfully submitted,

# /fY'v~ Brian K. Khan Attorney

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CERTIFICATE OF SERVICE I hereby certify that on this day copies of the foregoing Notice of Appearance were sent First Class/Certified Mail as follows: First Class/Certified Mail 

### Mr. Roy 

### J. Transit P.O. Box 1578 Royal Oak, MI 48068-1578 Attorney for Respondent
I hereby certify that on this day copies ofthe foregoing Notice ofAppearance were sent via Overnight Mail as follows:
Overnight Mail (Original and one Copy)

Date: 

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# rt Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2W1000

# ~~~~/UA_/ Legal Technician Federal Aviation Administration Office ofRegional Counsel 2300 East Devon Avenue, AGL-7 Des Plaines, Illinois 60018 8

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March 10, 2013 Hearing Docket 

## Roy

## J. Transit Attorney at Law

P.O. BOX 1578 Royal Oak, Ml48068·1578 586-491-6822



### Attention: Hearing Docket Clerk- AGC 430 Federal Aviation Administration 600 Independence Avenue, SW. WilburWright Building- Suite 2W1000 Washington, D.C. 20591
RE: Facility Solutions, Inc. AGL-7H 2012-NE-70-0128
Dear Hearing Docket Clerk: 

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## HEARING DOCKET

Please be advised that I am writing on behalfofmy client Facility Solutions, Inc. and I am requesting that the above referenced matter be set for a Hearing in accordance with 14 C.F.R. 13.16. I have enclosed my response to the Final Notice ofProposed Civil Penalty issued by the Federal Aviation Administration for your file. Thank you for your attention to this matter.

Mr. Jeffrey A. Klang, Regional Counsel Mr. Brian K. Khan, Attorney Federal Aviation Administration Great Lakes Region Office ofthe Regional Counsel 2300 East Devon Avenue Des Plaines, IL 6018