SERVED FEBRUARY 23,2010 

U.S. DEPARTMENT OF TRANSPORTATION r^'/cj^ 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

REDOX TECH, LLC, 

Respondent. 

FAA DOCKET NO. CP09AL0013 

(Civil Penalty Proceeding) 

DMS NO. FAA-2009-0978 

ADMINISTRATIVE LAW JUDGE'S ORDER DENYING 

MOTION FOR JUDGMENT ON THE PLEADINGS 

The Federal Aviation Administration ("FAA" or "Complainant") has 

filed a motion for decision under § 13.218(f)(5) of the Rules of Practice and 

Procedure, 14 C.F.R. § 13.218(f)(5). The gravamen of the motion is that the 

Respondent's answer has admitted the allegations of the complaint that 

relate to the Respondent's liability, leaving for decision only the issue of the 

amount of the civil penalty that should be assessed. In this order, I deny the 

motion. 

On September 5, 2007, Redox Tech, LLC ("Redox" or "Respondent") 

shipped by Federal Express air transportation a hydraulic pump with an 

internal combustion engine, an accompanying lead/acid storage battery and a 

can. of "Thrust Quick Starting Fluid.'-' The shipment originated in Attleboro, 

Massachusetts and was destined for a consignee in Anchorage, Alaska. 

According to the complaint, when the shipment arrived at its destination, the 

engine promptly started, indicating that the shipment included sufficient fuel 

to accomplish that purpose. 

On May 14, 2008, the Office of the Regional Counsel for the FAA's 

Alaskan Region issued a Notice of Proposed Civil Penalty to the 

Respondent, alleging that the shipment had resulted in 18 violations of the 

Department's Hazardous Materials Regulations ("HMR") by shipping 
hazardous materials by air without, inter alia, proper shipping papers, 

labeling, information, certification, statement, marking or preparation. The 

Respondent timely requested a hearing, and the FAA filed a complaint 

seeking assessment of an $84,000 civil penalty against the Respondent. 

On November 24, 2009, Respondent filed a document entitled 

"Response to Complaint," in which it admitted 15 of the 18 factual 

assertions set out in the complaint. Respondent denied the allegation that it 

had "knowingly" offered a non-bulk shipment containing hazardous 

materials for transportation. The answer also stated that the Respondent 

lacked sufficient information to admit or deny the allegation that "[w]hen 

tested after the . ., shipment [arrived]... and without the addition of any 

fuel, the engine quickly started and ran normally." The answer also 

admitted that neither the fuel lines nor the fuel filter had been drained; 

however, it denied the Complainant's claim that the fiiel tank had not been 

drained and the fuel filler cap was not tightly secured. Finally, the answer 

contested the amount of the civil penalty the FAA had sought. 

On January 27, 2010, the FAA filed a motion for a summary decision 

on all issues except the amount of the civil penalty. In its motion, the 

Complainant took issue with the Respondent's contention that it did not 

possess the requisite mens rea to commit a "knowing" violation of the HMR. 

"Respondent admits these facts," the motion papers said, "and these facts 

establish the knowledge requirement of 49 U.S.C. § 5123(a)(1). Knowledge 

of the regulations is irrelevant." The motion also argued that the controversy 

about starting the engine is not material because the allegation about that 

subject merely served to show that there was fuel in the engine, thereby 

demonstrating that not all of the fuel had been drained. Finally, the motion 

papers point out that the Respondent had not denied that it had failed to 

drain the fuel from the fuel lines and the fuel filter. 

The FAA's motion did not seek a decision on the matter of the 

amount of the appropriate civil penalty. 

The FAA did not submit any documentary evidence in support of its 

motion. Apparently, the motion is based wholly on the contents of the 

complaint and the Respondent's answer. 

Three days after the motion was filed, the Respondent filed an 

amended answer. It also submitted a reply to the motion as an addendum to 
its amended answer and in the form of a separate letter addressed to me.' 

The amended answer withdrew the Respondent's adinission that the engine's 

fuel lines and fuel filter had not been drained before the shipment took place. 

The Respondent now takes the position that in applying a vacuum to drain 

the fliel tank, its employee most have also removed all the fuel from the > 

filter and fuel lines. In the addendum to its amended answer, the 

Respondent noted that it frequently shipped hazardous materials and has 

trained its personnel at its headquarters in Cary, North Carolina to do so 

properly. It also alleged that it had taken corrective action to make sure that 

violations of the HMR did not recur. In addition, the Respondent said it did 

not have the wherewithal to pay the amount that the FAA has sought. 

The Respondent did not submit any documentation in support of its 

factual claims. 

Since neither of the parties has submitted materials outside the 

pleadings, the Complainant's motion stands as a motion for judgment on the 

pleadings. It is well-settled that the criteria for deciding a motion for 

judgment on the pleadings are identical to those applicable to a motion for 

summary judgment. See, e^ . Reeves v. Sanderson Plumbing Products. 530 

U.S. 133 (2000). "Judgment on the pleadings is appropriate where there are 

no material facts in dispute and the moving party is entitled to judgment as a 

matter of law." Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 

n 1^ Cir. 200 n . citing Mergens v. Drevfoos. 166 F.3d 1114, 1116-17 (11^ 

Cir. 1999). 

• Under § 13.214 of the Rules of Practice, 14 C.F.R. § 13.214, 

Respondent was entitled to amend its answer in response to the 

Complainant's motion for judgment.^ The amendment raised several 

disputed and material issues of fact that cannot be resolved on the basis of 

the papers submitted by the parties. For example, the HMR require that 

internal combustion engines must be prepared for shipment by air 

transportation in accordance with § 173.220 of the HMR. Under that 

section, the HMR requirements apply when -

' The Respondent is not represented by counsel. Its pleadings were signed by its President and Managing 

Partner as its representative. 

^ § 13.214(b)(1) provides that a party may amend an answer as of right not later than 15 days before the 

scheduled date of a hearing. The Respondent's amendment to its answer is undated but was received on 

February 2,2010. As of that date, the hearing was scheduled to commence on March 11,2010, more than 

15 days later. (It has since been postponed to March 25,2010.) 
The engine or fuel tank contains a liquid fuel. An engine may be 

considered as not containing fuel when the fuel tank, engine 

components, and fuel lines have been completely drained, sufficiently 

cleaned of residue, and purged of vapors to remove any potential 

hazard and the engine when held in any orientation will not release 

any liquid fuel. 

Depending on whether or not the internal combustion engine is 

installed in a vehicle or equipment, different standards of preparation apply. 

Under § 173.220(b)(1), if the engine is installed on a vehicle or equipment, 

"[a] fuel tank containing a flammable liquid must be drained and securely 

closed, except that up to 500 mL (17 ounces) of residual fuel may remain in 

the tank, engine components, or fuel lines provided they are securely closed 

to prevent leakage of fuel during transportation." On the other hand, § 

173.220(f) states that if the engine is uninstalled, "all fuel... remaining in 

the engine must be drained as far as practicable, and all disconnected fluid 

pipes must be sealed with leak-proof caps that are positively retained." 

Notably, each preparation requirement includes a level of tolerance for 

residual fuel. 

In its complaint, the FAA alleged that the "fuel tank, engine 

components, and fuel lines had not been completely drained and securely 

closed to prevent leakage of fuel. But the Complainant's motion papers 

offered no proof as to the amount of fuel remaining in the tank or the rest of 

the engine. Instead, the complaint alleges, and the motion repeats, that the 

engine started upon arrival, thus suggesting that a substantial amount of fuel 

existed in the components. The Complainant says that from this one should 

infer that the Respondent violated the HMR by failing to prepare the 

shipment properly. These are, however, simply a lawyer's arguments, and it 

is well-settled that a lawyer's arguments are not evidence. 

The Respondent's answer admitted that it offered the engine, storage 

batter and Thrust Quick Starting Fluid, all hazardous materials, for air 

transportation knowing what they were. The answer also admitted that the 

Respondent did not provide the carrier with the paperwork or other 

information needed to disclose that it was shipping hazardous materials and 

to provide guidance about the handling of such materials in the event or an 

accident or other emergency. Hence, the Complainant is clearly correct in 

arguing that if the Respondent violated the HMR, it did not "knowingly" 

within the meaning of the statute, 49 U.S.C. § 5123(a)(1). As a matter of 
law, the question whether the Respondent's employees knew that the 

shipment was subject to the HMR at the time they tendered it to the carrier is 

irrelevant; it is equally irrelevant whether those employees knew they were 

violating the law at that time. See Riverdale Mills Corp., FAA Order No. 

2003-10 at 5 (Sept. 12, 2003). On this issue, the FAA prevails. 

But that leave us with a host of other issues, which can be resolved 

only after a hearing at which all of the facts can be explored. Chief among 

them is to determine how much, if any, fuel remained in the engine at the 

time it was shipped. In addition, in the event the Respondent is deemed to 

be liable, a hearing will be required to determine the amount of the 

appropriate civil penalty. In these circumstances, nothing would be served 

by granting a small part of the Complainant's motion. Since a hearing on 

the merits is required, the interests of the parties, and justice, would be better 

served by getting on with it. 

The Complainant's motion for judgment on the pleadings is denied. 

IT IS SO ORDERED. 

Isaac D. Benkin 

Administrative law Judge 
FAA Docket No. CP09AL0013 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC^30 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Dr. John Haselow 

Redox Tech, LLC Respondent 

200 Quade Drive 

Cary, NC 27513 

TEL: 919-678-0140 

FAX: 911-678-0150 

Hov^^ard L. Martin, Jr., Complainant's Counsel 

Regional Counsel, Alaskan Region 

Office of the Regional Counsel, AAL-7 

Federal Aviation Administration 

222 West 7* Avenue, Box 14 

Anchorage, AK 99513-7587 

TEL: 907-271-5271 

FAX: 907-271-2800 

The Honorable Isaac D. Benkin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

TEL: Attorney 202-366-2139 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

' 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 2W1000, Washington, 

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