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UNIlED STATES DKPAR'I MENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of; ATLA S FRONTIERS. LLC 

F A A Order No. 2010-10 

DockeL m . CI'07NM0009 

FDMS No. 

Served; 

FAA-2007-0123' 

June 16,2010 

DECISION AND ORDERS 

Respondent Atlas Frontiers, LLC (]"Atlas") has appealed the written initial 

decision of Administrative Law Judge ("ALJ") Richard C. Goodwin^ assessing Atlas a 

civil penally of $12,000 for ti number of violations'' of the Department of Transporlalion 

("DOT") Hazardous Materials Regulationl ("MMR") (49 C.F.R, Parts 171-178). This 

decision denies Atlas's appeal and assesses a $12,000 civil penally. 

1. Facts 

Atlas is an equipment broker in Boise, Idaho, (Exh. C-12.) Using mainly eBay, 

an online auction Web site, Atlas manages the auction of items for companies that do no! 

have time to sell the items themselves. (Ti". 114-16; Exh. C-9.) Atlas's customers 

Materials filed in the FAA Hearing Docket (except for materials filed in .security cases) are also 

available for viewing at hnp.V/www.regulalions.gov. 

?.., , The Adminislrator's civil penalty decisions, along with indexes of the decisions, the rules of 

practice, and other information, are available on the Internet at the following address: 

hitp://Jaa.goWaboui/oJficej^rg/headqucu'i<irsJj:jSfices/agc/pol_adJudicaiioti^^ Fenalty. 

In addition, Thomson Reuters/Wesi Publishing publishes Federal Aviation Decisions. Finally, the 

decisions are available through LliXIS (TRANS library) and WestLaw (FFRAN-hAA database). 

For iidditionul inrormaiion, see the Web site. 

^ A copy of the ALJ's initial decision dated December 17, 2008, i.s attached. 

'' The violtitions found by the ALJ are listed in his "Order on Remand," served on Augu.si 20, 

2009 (attached). The text of the regulations that the AU found Atlas violated arc included in the 

Appendix to this decision. i 
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include hospitals, offices, and rental and construction equipment companies, (Id.) 

Atlas's owner, W. Mason Fuller, testified that Atlas is a very small company, Mith 

only a few employees. (Tr. 115.) It makes between 200 and 300 shipments per month. 

(Exh. C-12.) Atlas's Web site states that it manages all packing. (Exh. C-9; Tr. 72.) 

On or about June 1,2007, an Atlas employee in Boise brought a fibcrboard box. 

for ground shipment to DHL, an express courier service. (Tr. 126; Exh, C-8 at 1.) 

Although the shipment's ultimate destination was Lawton, Michigan (Exh, C-2 at 2), tlie 

shipment /lew first to Salt Lake City, where DHI- employees discovered that it was 

emitting gasoline fiunes and was leaking (Tr. 23, 52). 

DHL called USA Environmental, a remediation company, to clean up the 

environmental hazard. (Tr.. 20, 23,) Kirk SlauITer, a partner in USA Hnvironmcntal, 

responded. (Tr. 20, 23) He testified that ga"3 fiimes were in the air. (Tr. 24, 33,) He saw 

that gas, water, and oil were leaking out of the piece of equipment in the box. (Tr. 24, 34, 

35-36.) He observed an engine with a pump attached. There were brcfither holes in the 

engine's gas cap from which the gasoline was leaking. (Tr. 24, 35.) About 8 ounces of 

gasoline had spilled out, according to tlie "Hazardous Materials Incident Report" 

submitted by DHL to DOT's Research and Special Programs Administration CRSPA). 

(Exh. C-2 at 2.) Slauffer testified that there were no hazardous materials labels or 

markings on the box (Tr. 29, 40-41), and no absorbent material used for packaging liquid 

hazardous materials (Tr, 27). StauiFer put the engine with the attached pump in a 55-

gallon drum and sealed it. (Tr. 25.) The box was discarded. (Tr. 97.) 

Jame.s E. Berk is the FAA hazardous materials specialist who investigated the 

incident. (Tr. 45,47.) He went to DHL and observed the engine and pump (Tr. 47-48), 
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but the box had already been discarded. Or. 97.) Berk took photographs of the engine 

and pump and conducted interviews. (Exh. C-5, C-6; Tr. 48.) 

Berk testified that the proper shipping name of the engine was "Engine, internal 

combustion, flammable liquid powered," and the correct identification number for it was 

"UN3166." (Tr. 62-63; see also 49 CF.R, § 172.101, Hazardous Materials Table.) It 

required a CLASS 9 label or placard. (Tr. 63; Section 172,560,) 

As for the gasoline, its proper shipping name was "Gasoline," (Section 172.101, 

Hazardous Materials Table,) Berk testified that its identification number was UN 1204, 

and that it belonged in Packing Group U, Class 3. (Tr. 67.) Berk testified that there was 

about a quart of gas left in the tank when he observed it. (Tr. 68.) The proper label is a 

red FLAMMABLE LIQUID label. (Section 172.101, Hazardous Materials Table; 

Section 172.419.) 

Berk testified that the shipment required hazardous materials labels, markings 

(including orientation markings to prevent tipping on the side and leaking), and shipping 

papers (including emergency response information). (Tr. 63-<56,) He also testified that 

tiiere is a requirement to purge combustible engine fuel tanks before shipment. (Tr. 69.) 

The label indicated that Atlas was the shipper. The label further indicated that it 

was a ground shipment, although DHL Express's "Terms and Conditions of Service" 

indicated that DHL may carry its parcels by any means DHL chooses, including air. 

(Exh. C-4 at 1.) Atlas did not have a contrzict with DHL, but instead shipped under the 

account of Fleet Street Couriers (Fleet Street) (Tr. 118), a company owned by the father 

of Atlas's owner (Tr. 126). 
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Berk testified, based on a photographic exhibit, that there was a small orange 

envelope in the bottom right side comer of the box, but that the envelope contained the 

packing list rather than ha2ardous materials shipping papers. (Tr, 98; Exh, C-19.) Berk 

said that if there had been hazardous materials shipping paper,s, they would have been 

offered at the Boise, Idaho, station and would have "traveled on a pallet notification," 

(Tr. 109.) lliere also would have been a second copy, because one copy stays with the 

box and one is given to the pilot of the aircraft. (Tr, 109-110.) The shipping papers must 

be reUunetl by the shipper for 2 years and by tlie air carrier for 1 year, (fr. 111.) Berk 

was unable to obtain from Atlas any indication that there had been a shipper's declaration 

of hazardous goods (Tr. Ill), and DHL had no record of receiving the hazardous 

materials shipping documents (Tr. 110). 

Atlas's owner testified tliat "[n]ot to my knowledge": (1) did the box have any 

hazardous materials labels or markings; (2) was the box accompanied by haT-ardous 

materials shipping papers, including emergency response information; and (3) did the 

shipment have the required absorbent materials. (Tr, 121-22.) 

Berk testified that he asked Atlas to provide hazardous materials training records 

for the appropriate individuals at the company, but Atlas did not respond, (Tr. 74.) 

Fuller stated during the investigation that he had three employee.^ preparing shipments, 

but none of them were trained in the shipment of hazardous materials. (Exh. C-12.) He 

testified that he was the only person in the company to receive hazardous materials 

training, which occun'ed 9 months after the incident and consisted of watching a 

hazardotis materials .slide show on the DOT Web site, which had a "self test," (Tr, 124,) 

Fuller testified that at the time, Atlas did not have hazardous materials training because 
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Atlas did not sliip hazardous materials. (Tr. 117.) He testified that it was a new venture 

for Atlas to deal with construction rental equipment, which he implied was more likely to 

contain hazardous materials than Atlas's other types of shipments. (}d) 

IL ALJ's Decision 

The ALJ foi.md that Fuller admitted that the shipment lacked the required 

markings, labeling, and other required information. He fuiiher found that Fuller admitted 

that the engine had not been drained of fuel and that shipping personnel did not have 

hazardous materials training, Under the circumstances, the ALJ found, each alleged 

violation was proven. 

It made no difference to the ALJ that Atlas had offered the shipment for ground 

transportation. The ALJ stated that Atlas was, or should have been, aware of the 

pos-sibijjty that the package would travel by air because the contract with DHL specified 

that DHL may Uanspori shipments offered for ground transportation by air. 

Regarding the sanction, the ALJ found the following: 

• Undeclared shipments of hazardous materials "are particularly worrisome 

because they constitute a safety threat whose magnitude is unknown." 

(Initial Decision at 3.) 

• The danger was heightened because the gas could have ignited, the gas 

cap had a hole in it, and thei-e were no orientation markings to decrease the 

likelihood that the box would be tilted ar»d the gas spilled. 

• There was a leak of the hazardous material, which is an aggravating factor. 

• Atlas is a business that uses haz^dous materials in the course of its 

business, Nothing suggested that the shipment "was unique or unusual, or 

inconsistent with Atlas's holding itself out as an equipment broker," 

(Initial Decision at 4.) 

• Fven though Atlas did not know about the requirements for hazardous 

materials transportation, the fact that violations were unintentional does 

not mitigate an otherwise rea,sonable sanction. 
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• Regarding corrective action, Fuller's watching a slide show, produced by 

DOT, 9 months after the incident, even if true, was not timely and was not 

rigorous and thorough enough to be mitigating. 

• Atlas's -Status as a first-lime violator was not mitigating because a 

violation-fi-ee history is the norm, 

• Atlas did tiot substantiate its claim that the proposed sanction of .SI 2,000 

would force it out of business, 

For all of these reasons, the ALJ decided to assess a $12,000 civil penalty, the amount 

proposed by the agency attorney, 

i n . Atlas's Appeal 

A. Rc^la r Course of Business 

On appeal. Atlas argues that the sanction is too high because Atlas does not ship 

hazardous materials in the "regular course of business," Further, it claims, less than 0.1% 

of its shipment."! are hazardous. This argument is rejected because, as explained below., 

the civil penalty proposed by the agency attorney and assessed by the ALJ is appropriate 

under agency sanction guidance tor an entity like Atlas. 

Thc FAA's sanction guidance in hazardou.*? materials cases sets forth sanction 

ranges for several categories of business entities. (64 Fed. Reg. 19443,19447 (April 21, 

1999); FAA Order No. 2150,3A at 14, Figure 1.) The sanction range, per violation, fo:r a 

"business entity" is $1,500-7,500, while the sanction range for a "business entity that uses 

or handles Hazmat in the course of business" is $2,500-10,000. The sanction range for a 

"business entity that regularly offers, accepts, or transports Hazmat" is $5,000-12,000. 

In this case, the agency selected the sanction range for a "business entity" - i.e., 

$1,500-7,500. The agency then multipUed seven violations (shipping papers, labels, 

markings, iraining, packaging, emergency response information, and release into the 
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environment) - by the bottom of the range, $1,500, yielding $10,500. (Tr. 92.) The 

agency also multiplied the seven violations by the top of the range, $7,500, yielding 

$52,500. (Jd.) After factoring in other required considerations using the sanction 

guidance, the agency proposed a penalty of $12,000, which was near the low end of the 

range for these violations by a "business entity." The ALJ imposed the FAA's proposed 

penalty of $12,000. 

In contrast, the low end of the penalty range per violation for "business entity tliat 

uses or handles Hazmat in the course of business" is $17,500 (seven violations x $2,500) 

and the low end of tlie range for "business entity that regularly offers, accepts, or 

transports Hazmat" was $35,000 (seven violations x $5,000). The $12,000 assessed by 

the ALJ was below the range for these two categories of business entities and was within 

the range for a simple "business entity." Tlius, contrary to Atlas's argument, the ALJ did 

not assess a higher penalty for a business that ships hazardous materials in the "regular 

course of business." 

D. Shipping Papers 

Atlas argues that it is unclear whether ha/saidous materials shipping papers 

accompanied tlie shipment, given that the box with its attached pouch was destroyed, 

Therefore, Atlas contends, the agency attorney did not show that Atlas committed the 

violations related to shipping papers,^ Atlas points out that the remediation company's 

^ These include the following: 

• Section 171.2, which prohibits persons from offering a hazardous material for 

transportation in commerce unless the hazardous material is properly classed, 

described, etc.; 

• Section 172.200, which requires a description of the hazardous material on the 

shipping paper; 

• Section 172.202, vnhich details what must be included on the haitardoois materials 

."ihipping papers; and 
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personnel and the special agent who investigated the case did not open the envelope 

attached to the box. 

As noted above, when asked at the hearing whether there were hazardous 

materials shipping papers. Atlas's owner responded, "Not to my knowledge." (Tr. 121-

22.) The special agent testified that the envelope attached to the box would have 

contained only the packing list. As the special agent testified, if there had been 

hazardous materials sliipping papers, there would have been two copies - one attached to 

the box, and one given to the pilot. (IT. 109.) Furdier, both Atlas and DHL were 

required to keep copies of the hazardous materials shipping papers, but neither was able 

to produce any. (Tr, 98, 110,) Under the circumstances, the FAA successfully met its 

burden of proving that there were no shipping papers, 

C. Markings 

Atlas also argues that it was unclear whether the required markings were present, 

but when asked at the hearing whether there were any hazardous materials markings, 

Atlaa'a owner responded, "Not to my knowledge," (Tr. 121,) Further, the markings, 

including the orientation arrows, would have been visible on the box and StauiFer, wlio 

was first on the scene and who cleaned up the spill, did not observe any markings on the 

box, (Tr. 41.) 

• Section 172.600(c), which requires emergency response informatioii to be on the 

hazardous materials shipping papers. 

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D. Carrier Violations 

Atlas argues that the ALJ improperly foimd violations of Section 172.300 and 

172.602(c), which, it argues, apply only to carriers, and Atlas is not a carrier. 

While paragraph (b) of Section 172,300 applies to caixicrs, paragraph (a) applies 

to a "person." Section 172,300((a) provides as follows: 

(a) Each person who offers a hazardous material for transportation 

shall mark each package ... containing the hazardous material in the 

manner required by this subpart. 

Atlas is a "person" as tliat teiin is defined in 49 C.F.R. § 171.8 ("person").'' 

As for Section 172.602(e), it applies by its own terms only to carriers and 

to operators of facilities where a hazardous material is received, stored, or handled 

during transportation,^ Atlas does not come within any of tliese categories. Thus, 

the ALJ erred in finding a violation of Section 172.602(c), because Atlas is 

neither a carrier nor a facility operator." 

^ "Person," under 49 C.F.R. § 171.8, "means an individual, corporiition, company, association, 

firm, partnership, society, joint stock company; or a government, Indian tribe, or authority of a 

government or tribe offering a hazardous material for transportation in commerce or transporting 

a hazardou,s material to support a commercial enterprise." 

' Section 172.602(c) provides ua follows: 

(c) Emergency response information .<:hall be maintained as follows: 

(1) Carriers. Each carrier who transports a hazardous material shall 

maintain the inlbmoation specified in paragraph (a) of this section and § 172,606 

of this pajt in the same manner as prescribed for shipping papers ,... 

(2) Facility operators. Each operator of a facility where a hay.ard()us 

material is received, stored or handled during transportation, shall maintain the 

information required by paragraph (a) of this section whenever the hazardous 

material is present 

' No adjustment in the civil penalty is wairanied due to this error becau.se Atlas's violations still 

fall within tlie same basic categories of shipping papers, labels, markings, training, packaging, 

emergency rcaponse information, and release into the environment. Alihough Section 172.602(c) 

was inapplicable, the agency allegwd a violation of Section 172.600(c) pertaining to emergency 

response information, and Section 172.600(c) applied to Atlas. 
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The ALJ properly found that Atlas violated Section 172.600(c)(1) by iailing to 

provide emergency response information. Section 172,600(c)(1) requires any person who 

offers hazardous materials for transportation to provide emergency response information, 

{See 49 CF.R. § 172.600(b), addressing applicability.) 

E. Change in Transportation Mode 

Atlas argues that it did not have notice that DHL might change the mode of 

transportation from ground to air because Atlas was shipping under Fleet Street's 

contract with DHL.' Therefore, il contends, any penalty scales applied to it should be for 

ground transportation rather than for air transportation. 

Assuming, for the sake of argument, that Atlas lacked notice that DHL might 

change the mode of transportation Ixom ground to air, it would not make a difference. 

The regulations at issue apply to transportation by ground as well as by air, and the 

penally would be no lower if the engine had been shipped by ground. 

The Pipeline and Hazardous Materials Safety Administration ("PHMSA" ) 

(foimerly RSPA), an agency of DOT. has published sanction guidelines for the 

transportation of hazardous materials by ground, These guidelines appUed as of 

October 1, 2005, and were in effect at the relevant time. (49 C.F.R, Part 107. Subpart D, 

Appx. A at 43 (2007); Exh. C-15 at 3.) As the agency attorney pointed out, PHMSA's 

baseline assessment for an imdeclared shipment in groimd mode is $ 15,000, $3,000 

higher than the penalty assessed in the iastant case. (49 CF.R. Part 107, Subpart D, 

Appx. A at 43-44; Exh, C-15 at 3-4; Tr, 94.) PHMSA's baseline assessment tor the leak 

' DHL's "Terms and Conditions" for Ground Service define "shipment" to include all parcels that 

"may be carried by any mearu DHL chooses, including air, road, or any othor carriei," (FAA 

Exh, 4; emphasis added,) 

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alone, given that the gasoline was in Packing Group II, would be $9,000. (49 C.F.R. 

Part 107, Subpart D, Appx. A at 45; Exh, C-16 at 5; Tr. 95.) Thus, a.ssessing a sanction 

based on tlic guidelines for ground transportation would not yield a lower penalty, 

F. History of Violations 

Atlas argues tliat the sanction is too high, in part, because it does not have a 

history of violations. As stated in previous cases, a violation-fi-ee history "is not a 

mitigating factor, because a violation-free history is considered the norm." Interstate 

Chemical Co.. Inc.. FAA OrderNo, 2002-29 at 17 (December 6, 2002);see also TCI 

Corp.. FAA Order No. 1992-77 at 20 (December 22, 1992) (to the same effect). A 

history of prior violations would be an aggravating factor. Interstate Chemical Co., 

FAA Order No. 2002-29 at 17. The ALJ eoirectly rejected Atlas's violation-free history 

as a mitigating factor. 

G. Financial Hardship 

Alias argues that it does not earn enough to pay the penalty. It states that it is a 

young company and that the penalty would reduce Atlas's owner's income to zero for 

2 years and would cause Atlas to cease business operations. 

Financial hardship and inability to pay are affirmative defenses that the 

respondent has Iho burden of proving by a preponderance of the reliable, probative, and 

substantial evidence in the record. Giuffridft, FAA Order No. 1992-72 at 2 

(December 21,1992), citing 14 CF.R. § 13.224(c) ("[a] party who has asserted an 

affirmative defense has the burden of proving the affirmative defense"); see also ScenJc 

Mountain Air, Inc.. FAA OrderNo. 2001-5 at 13-14 (May 16, 2001) (Respondent "bore 

the burden of proving its claim of financial hardship"), A respondent bears the burden of 

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proof because its financial records are within its sole control. Seven's Paint & Wallpajyr 

Co., FAA OrderNo. 2001-6 at 5 (May 16, 2001), quoting Giuffrida. FAA OrderNo. 

1992-72 at 2. 

The only evidence in the record of financial hardship and inability to pay is the 

self-serving testimony of Atlas's owner. Atlas did not provide any supporting 

docmnentation such as tax records. Under the circumstances, the ALJ did not err in 

finding that Atlas failed to bear its burden of proving financial hardship and inability to 

pay. 

H. Corrective Action 

Regarding corrective action. Atlas's owner testified thai 3 months before the 

hearing, he took training consisting of a hazardous materials slide show on the DOT "Wi'eb 

site, (Tr, 123.) He testified that he was the only one at Atlas doing shipping at the time. 

(Jd.) He did not have copies of the training records with him at the hearing. (Tr. 122.) 

The ALJ held that if true, the Uaining, which did not take place until 9 months 

after the incident,'" was not timely, rigorous, or thorough enough to be mitigating. Atlas 

argues lliat tlie Iraining at issue shotJd be acceptable given that DOT offers the slide 

show on its Web site. Atlas also argues that Section 172.702, which contains the 

requirement tliat hazardous materials employers ensure that each of their hazardous 

materials employees is trained in accordance with the hazardous materials regulations, 

does not indicate a "preference for rigor or venue," 

'" The incident occuired in June 2007, and the hearing took place about a year later, in June 2008. 

Thus, if Atlas's owner was not trained until 3 months Iwforc the hearing, he was not trained until 

approximately 9 months after the incident 

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Under certain circumstances, corrective action may be considered in setting the 

civil penalty amount. Tovota Motor Sales. USA. Inc., FAA Order No. 1994-28 at 9 

(September 30, 1994). citing TCI Corp., FAA Order No. 1992-77 at 21 (December 21. 

1992). Although the Federal hai:ardous materials statute [now at 49 U.S.C. § 5123(c)(3)] 

does not specifically mention corrective action as a factor to consider, it may be 

considered under the category of "such other matters as justice may require," Seven's 

Paint & Wallpaper.Co.. FAA Order No. 2001-6 at 6, citing Phillips Building Supply, 

FAA OrderNo, 2000-20 at 9 n.lO (August 11, 2000), reconsideration denied, FAA Order 

No, 20O0-27 (December 21,2000), citing TCLCOTE^ FAA OrderNo. 1992-77 at 21. 

Swift, comprehensive, and positive corrective action warrants reduction of an 

otherwise appropriate civil j^enalty. Whitley, FAA OrderNo. 2009-4 at 21 (January 14, 

2009), citing Detroit-Metropolitan-Wavne County Airport. FAA Order No. 1997-23 at 5 

(Jxme 5, 1997). "Positive" means action to prevent future violations. Whitley. FAA 

OrderNo. 2009-4 at 22. Training, generally, constitutes a positive action since it is 

designed to prevent future violations.'' But in this case, the training was not switl, and 

under 49 C.F.R. § 172,702(a). Atlas should have accomplished the training before the 

shipment. See FAA Order No. 2150.3A, Appx. 6 at 11; 64 Fed. Reg. 19443, 19447 

(April 21,1999) ("Icjoirectivc action that results in mitigation is remedial action That 

exceeds the minimum legal requirements"). Further, the $12,000 civil penalty is already 

at the low end of llie appropriate range for these violations by a business entity like Atlas. 

" TCI Coip.. FAA OrderNo, l!>92-77 at 21-22 (one example of positive corrective action is 

sending one's employees to hazardous materials training; if Respondent bad done so, it might 

have boon entitled to a reduction in its penalty), cited in Interstate Cliemlca) Com.^Tnc. FA/\i 

OrderNo. 2002-29 at 18 (December 6,2002) (finding ihal penalty Vfas appropriate, among other 

things, in light of Respondent's sending its employee for additional training). 
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In light of Ihe egregiousncss of tlie violation - a hidden shipment of a gasoline 

engine containing gasoline - the penalty should not be any less than $12,000, In fact, a 

higher penally might be assessed if the Administrator were not constrained by the penalty 

sought by the agency attorney in the complaint. Sec 14 C.F.R. § 13.]6(j) ("|t]he FAA 

decisionmaker may assess a civil penalty but shall not assess a civil penalty in an amount 

greater than that sought in the complaint"). '^ 

Conclusion 

Having found no prejudicial error regarding the violations or tlie sanction, this 

decision denies Atlas's appeal and afiiims the $12,000 civil penalty assessed by the 

ALJ.''^ 

'RANDOLPH BAnBHT 

ADMINISIRATOR 

Federal Aviation Adminisfration 

^ Any arguments not discussed have been considered, rejected, and found unworthy of 

discussion. 

'^ This decision shall be considered an order assessing civil penalty unless Respondent files a 

petition for review within 60 days of service of this decision with the U.S. Court of Appeals for 

the District of Columbia Circuit or the U.S. court of appeals for the circuit in which the 

respondent resiidcs or has its principal place of business, 14 C.F.R, §§ 13,lC(d)(4), 13,233(j)(2), 

13.235 (2009). i'ce 71 Fed. Reg, 70460 (Dec. 5, 2006) (regarding petitions for review of final 

agency decisions in civil penalty cases). 

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APPENDIX 

Section 171.2(e)'^ provides: 

No person may offer or accept a hazardotis material for transportation in 

commerce unless the hazardous material is properly classed, described, 

packaged, marked, labeled, and in condition for shipment as required or 

authorized by applicable requirements of this subchapter .... 

Section 172.200(a) provides; 

Description of hazardous materials required. ... [E]ach person who offers 

a hazardous material for transportation shall describe the hazardous 

material on the shipping paper in the manner required by this subpart. 

Sections 172.202 provides: 

(a) The shipping description of a hazardous material on Ihe 

shipping paper must include: 

(1) The identification number ...; 

(2) The proper shipping name ,..; 

(3) The hazard class or division number...; 

(4) The packing group ...; 

(5) [TJhe total quantity of hazardous materials covered by tlie 

description; 

(6) [T]hc total net mass per package ... and; 

(7) The number and type of packages .... 

Section 172.300 provides: 

(a) Each pcr.9on who offers a hazardous material for transportation 

shall mark each package ... containing tiie hazardous material in the 

manner required by this subpart. 

Section 172,301(a) provides: 

(a) [E]ach person who offers for transportation a hazardous 

material in a non-bulk packaging niu<;t mark the package with the proper 

sliipping name and identification number (preceded by "UN" or "NA," as 

appropriate) for the material as shown in the § 172,101 table,,,. 

Section 172.304(a)(1) provides; 

(a) The marking required in this subpart -

Ml citations arc to the 2007 edition of Title 49 of the Code of Federal Kjsgulations. 
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(I) Must be durable, in English and printed ori or affixed to the 

surface of a package or on a label, tag, or sign. 

Section 172.400(a) provides: 

[Ejach person who offers for transportation or transports a 

hazardous material in any of the following packages or containment 

devices, shall label the package or containment device with the labels 

specified for the material in the § 172.101 Table and in this subpart ..., 

Section 172.600(c) provides: 

General requirements. No person to whom this subpart appUes 

may offer for transportation .., a hazardous material unless: 

(1) Emergency response information eonfonning to this subpart is 

immediately available for use at all times the hazardous material is present 

Section 172,602(c) provides: 

(c) Emergency response information shall be maintained as 

follows: 

(1) Carriers. Each carrier who transports a hazardous material 

shall maintain the information specified in paragraph (a) of this section 

and § 172,606 of this part in the same manner as prescribed for shipping 

papers .... 

(2) Facility operators. Each operator of a facility where a 

hazardous material is received, stored or handled durmg transportation, 

shall maintain the information required by paragraph (a) of this section 

whenever the hazardous material is present 

Section 172.702(a) provides: 

(a) A hazmat employer shall ensure that each of its hazmat 

employees is trained in accordance with the requirements prescribed in 

this subpart. 

Section 173.1(b) provides: 

(b) A shipment of hazardous materials that is not prepared in 

accordance with this subchapter may not be offered for transportation by 

air, highway, rail, or water. 

Section 173.22(a) provides: 
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(a) [A] person may offer a hazardous material for transportation in 

a packaging or container required by this part only in accordance witli the 

following; 

(1) iTic person shall class and describe the hazardous material in 

accordance with parts 172 and 173 of this subchapter .... 

Section 173.24(b)(1) provides: 

(b) F.aeh package used for the shipment of hazardous materials 

under this subchapter shall be designed, constructed, maintained, filled, its 

contents so limited, and closed, so that under conditions normally incident 

to transportation -

(1) There will be no identifiable (witliout the use of instruments) 

release of hazardous materials to the environment .... 

Ill 

i : ^ 
06/23/2010 10:40 FAX 2024835142 FAA •> DMS gl018/02 4 

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UEPTOFTR,^N$POff 

DGCI<,ETS 

1^ ;.i;S'20 P 2: l}2 

SJIRVED AUGUST 20,2009 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEAlUNGS 

WA$HINGTOW, DC 

IN'HiE MATTER OF 

ATLAS FROKHERS 

FAA DOCKET No. CP07KM0009 

(Civil Penalty Action) 

DMS No. FAA-2007-0123 

OKl>ER ON REMAND 

FAA Order No. 2009-8, served August 4,2009, remanded the Initial Decision 

(hereiiiBftei "LD.") in this matter to the undersigned to clarify certain matters herein. 

The mattera concern errore of traiiscription. 'Ihe LD. is hereby clarified as 

follows: 

1) Page 1, second line from the bottom, between "172.602(c)" and "173.1(b)," 

insert "172,702(B)," 

2) Page 6, change the final paragraph, following the colon, to read: "§§l71,2(c), 

172,200(B), 172.202, 172.3O0, 172.301(a), 172,304(a)(l), 172.400(a), 172.600(c), 

172.602(C), 172,702(a), 173.1(b), 173.22(a). and 173.24(b)(1)." .' 

Richard C. Ci^odwia 

Administrative Law Judge 

Attachment - Service List 
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SERVED DECEMBER 17, 2008 

DEPlOF]^:S='pHigiON 

UNFTED STATES DEPARTMENT OF TRANSPORTA170N ^-^^ ^ 

OFFICE OF HEARINGS 

WASHINGTON, D.C. • -'^^ "-^ 10 p 2- Q"* 

FEDERAL AVIATION ADMINISTRATION. 

Complainant, 

v. 

ATlAS FRONTIERS, 

Respondent, 

FAA DOCKET NO, CP07NM0009 

(Civil Penalty Action) 

DMS No. FAA-2007-6123 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 1) Respondent is hereby assessed D civil penalty of $12,0U0. 

1. BackerowBd 

Atlas Frontiers, LLC (hereinafter "Respondent" or "Atlas"), of Boise, ID, Is 

an equipment broker. It sells items for customers, generally by posting the 

particulars online. It handles all the details of sale, such as preparation for 

shipment and shipment itself. Atlas is a hazmat employer (Exh. C-9; Tr. 77,114-

16). 

According to the Amended Complaint of the Fedenal Aviation 

Administration (hereinafter "Complainant," "FAA," or "the agency"), on or about 

June 1, 2007, at Boise, ID, Atlas knowingly offered in air transportation an 

undeclared shipment of hazardous materials. "Undeclared" means that the 

external package, in this case a fiberboard box, was not marked or labeled in a 

manner that would indicate the hazardous nature of Its contents. Complainant 

identified the hazardous materials inside the box as 1) a gasoline engine 

(attached to a pump) and 2) approximately one quart of gasoline, which was 

inside the engine's fuel reservoir. 

Thus, according to Complainant, Respondent violated several Hazardous 

Materials Regulations ("HMRs"), 49 CFR §171 etseq., viz., §§l71.2(e), 

172.200(a), 172.202, 172.300,172.301(a). 172.304(a)(1), 172.400(a), 

172.600(c), 172.e02(c), 173.1(b), 173.22(a), and 173,24(b)(1). TTiese provisions 

set out marking, labeling, and packing requirements for certain hazardous-
06/23/201 0 10:4 0 FAX 2024935142 FAA + DMS @|020/024 

materials shipments, and mandate training for entities involved in such 

shipments. The agency seeks a civil penalty of $12,000. 

Respondent, who appeared pro $e and was represented by managing 

member Mr. Mason Fuller (Tr. 4), denied the charges. It had Intended the 

shipment to go by ground transportation. 

A hearing was held on June 12, 2006, in Boise, ID. I determined that a 

written decision was reasonable and appropriate under the circumstances (Tr. 

141). The parties made concluding arguments (Tr, 126-41) and the matter now 

is ready for decision. 

I hokl that the facts and circumstances of this case warrant findings of 

violations on all counts and an assessment against Respondent of $12,000. 

IL Facts and Circunstancej 

Atlas Frontiers on June 1, 2007, had shipped the offending package via 

DHL from Boise, intending it for a customer in Lawton, Ml (Exh. C-8; Tr. 70-71). 

Following a flight which touched down at Salt Lake City, the package was flagged 

on account of spillage (Exh, C-1). Witness Kurtis Stauffer, a partner in US 

Environmental, a remediation company which manages environmental hazards 

such as spills (Tr. 18-20), was called to the scene at the DHL facility In Salt Lake. 

He discovered a fiberboard box tendered by Respondent apparently leaking from 

the inside. The "obvious" odor of gas also was present (Tr. 24; see also Tr. 66 

(testimony of FAA special agent James E. Berk)), Stauffer looked inside and 

determined that the box contained a ditch pump attached to a small, gaspowered engine (see Exh. C-5). Liquid was coming out of the gas cap breather 

nozzle at the top of the gas can. Upon opening the can, Stauffer found gas in the 

container. Approximately one and one-half inches of gasoline remained in the 

tank, or about one quart. Water damage, originating from the pump, also was 

present Stauffer cleaned up the spill and removed the offending materials (Tr. 

22-29, 33-34; Exh. C-10' pp. 2-5; Exh. C-20). 

The shipment ought to have been classified as a hazardous material. The 

proper shipping name for the engine was 'engine, internal combustion, 

flammable liquid powered.' (See Hazardous Materials Table immediately 

following 49 C.F.R. §172.101). It is a Class 9 material. As such, to be shipped 

by air the HMRs required the display of certain labels and markings (notably, in 

this matter, orientation markings) and emergency response Information. The 

shipment also was obligated to follow standards of hazmat packaging- None of 

these conditions were met (Tr. 54-55. 62-64; Exh. C-2). Gasoline also Is 

classified as a hazardous material (Hazardous Materials Table following 

§172.101), and none of the conditions for its transport by air were present either 

(Exhs. C-1, C-7; Tr. 66-68). Moreover, the fuel lank of a combustible engine 

must be purged prior to shipment (Tr. 69) - but this tank was not. 
06/23/201 0 10:4 0 FAX 2024935142 FAA ^ DMS @l021/02 i 

Finally, Atlas employees responsible for tendering the shipment had not 

had the hazardous-materials training required for such tasks (Tr. 13-14,74-75). 

Mr. Fuller acknowledged the truth of these findings. He admitted that the 

shipment, tendered by an Atlas employee, lacked the required markings, 

labeling, and other required Iriformation (Tr. 121-22,125-26). He acknowledged 

that the engine had not been drained of fuel. He also admitted that shipping 

personnel did not have hazardous materials training (Tr. 116-17, 123). In these 

circumstances, I find that each of the violations alleged was proved. 

In Respondents defense. Fuller stressed that Atlas had tendered the 

shipment for ground transportation (Tr. 118-19; see a/so Tr. 49-50). But this 

argument does not avail Respondent. Alias was, or should have been, aware of 

the possibility that the package would travel by air. The contract It entered into 

with DHL specifies that, even when a shipment is offiered for ground 

transportation, DHL may transport it by air (Exh, C-4; Tr. 60), 

IIL Penalty 

Complainant seeks a civil penalty of $12,000. II bears the burden of 

proving the appropriateness of this amount by a preponderance of the evidence, 

Phillips Building Supply, FAA Order No, 2000-20 (August 11, 2000). p. 8. 

I have decided to assess a civil penalty against Respondent of $12,000. 

In determining the amount of the penalty, the decisionmaker must 

consider "the nature, circumstances, extent, and gravity of the violation," and, 

with respect to the violator, the degree of culpability, any history of prior 

violations, the ability to pay, and any effect on the ability to continue to do 

business," and "other matters that justice requires" (49 U.S,C, §5l23(c)). 

Hazardous materials, by their very nature, are dangerous. Air shipment of 

such goods puts the safety of air transportation - the overriding goal of the 

Department ~ at significant risk. Because of hazmats' inherent capacity for peril, 

the HMRs effect a web of protection to minimize risk for persons who could be 

adversely affected by proximity to such materials, such as handlers, passengers, 

and crew. 

Undeclared shipments of hazardous materials lack that protection. They 

are particularly worrisome because they constitute a safety threat whose 

magnitude is unknown. Undeclared shipmenls of hazardous materials, the 

Administrator has emphasized, 'increase the likelihood of Injury [and] pose a 

special risk" (see, e.g., Toyota Motor Sales, USA, Inc., FAA Order No. 94-28 

(September 30, 1994), p. 13). 
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In this case circumstances accentuating the danger also were present 

The gas remaining inside the engine could have ignited (Tr. 39). Further, the gas 

cap had a hole In it, Inviting additional peril. While necessary for engine 

performance (Tr. 65), the presence of the hole guaranteed that the gas would 

spill out if the engine were tipped on its side (Tr. 65-66). Without the required 

orientation arrows on the box, the risk of a tilt increased unacceptably. Indeed, 

approximately eight ounces of gasoline had leaked out prior to the shipment's 

removal from the line (Exh. C-2, p, 5; Tr. 55). A leaked package constitutes an 

aggravating fact (64 Fed.Reg. 19443,19445 (April 21.1999)), 

These circumstances warrant a significant firre. 

TT»e character of Respondent's business also Is important In determining 

an appropriate penalty. The Fine should reflect the degree of Respondenf s 

Involvement with hazardous materials. The agency's HMR Penalty Guidelines 

suggest that the greater the degree of a respondent's involvement in hazardous 

materials, the higher the sanction amount should be.' 

The record shows that Respondent is a business entity which uses 

hazardous materials In the course of its business, RespondenVs representative, 

Mr, Fuller, contended otherwise. But his assertion is belied by the very facts of 

this case. Nothing in this proceeding suggests that the nature of the materials 

shipped was unique or unusual, or inconsistent with Atlas' holding itself out as an 

equipment broker. Respondent's promise to handle all details attendant to 

shipping Is not limited to non-hazardous materials. Promotional materials 

promise without restriction to "sell off equipment and inventories at great prices." 

(Exh. C-9) 

Respondent's position as a business handling hazardous materials - even 

if it were doing so only on an occasional basis - compels an awareness of the 

HMRs and the concomitant obligation to follow them, The Penalty Guidelines 

emphasize that such a business "is clearly on notice of the hazardous mature of 

the material and the regulatory requirements to which the Hazmat is subject" (64 

Fed.Reg, 19443,19449). Atlas cannot avoid liability by claiming that it was 

unprepared or otherwise surprised. The nature of Respor>dent's business, I find, 

also compels a significant assessment for the violations at Issue. 

But Respondent in fact had no knowledge of the requirements attached to 

its undertaking. No employee had undergone any kind of training in the 

recognition or appropriate lender of hazardous materials. Respondent was 

completely unaware of requirements. This circumstance, however, does not 

Sue Federal Aviation Atlinmi.<:Tration Policy on En^Drcemcnt orcha Hazardous MuterialB Regulaiions: 

Penalty Quidulincs, 64 Fo±R*g. 19443 w seq. (April 21,1S>99). FAA Order 2150.3A, Chg, 26, Apvendin 6, 

dated April )4, 1999. By Order 2150.3B, the agency issued now sanction guidelinea superseding the oW, 

The nev^ guidclinM arc mapplicable here, however, because ih«y apply to violations occurring on or after 

Oclgbcr I, 2007, and the incident in this maltcrlook place on June 1,2007. Seg 72 Fed.Reg, 55553 

(Oclobor 1,2007). 
OG/23/201 0 10;4 0 FAX 202493514 2 FAA •> DMS 2)023/024 

avail it. Evidence that violations were unintentional does not mitigate an 

othen^ise reasonable sanctron. In fact evidence that a violation had bean 

intentional would constitute an aggravating factor, making appropriate an even 

higher sanction. American Air Network, Inc., FAA Order No. 2006-5 (February 

10,2006), p. 8. 

Mr. Fuller eventually undenvent a kind of hazardous-materials training. 

He stated that nine months after the incident, and after the proceeding had been 

set for hearing, he watched a slide show produced by the Department. The 

slides were followed by self-testing. Mr. Fuller produced no records of it (Tr. 

122-24). He added that he is now aware of the importance of training. Every 

Atlas employee who ships (only himself at this point) will be trained in the 

ldentificatk)n and use of hazardous materials, he said (Tr. 119). Atlas' response 

to the company's lack of training, however, fails to warrant mitigation. 

Swift action designed to l^etter ensure future compliance may justify a 

reduction in sanction. One such measure which has led to a lesser penalty 

involves^ending responsible employees to training programs {Westair 

Commuter Airlines, Inc. d/b/a United Express, FAA Order 93-18 (June 10, 1993), 

p. 15; Delta Airlines, FAA Order No. 91-40 (September 30.1991)). The action 

undertaken by Respondent, however, even If taken as true, vy/as not timely, and 

was of a nature considerably less rigorous and thorough than the kind of actions 

recognized for mitigation by the Department. It simply does not constitute the 

type of speedy or systemic change favored by the agency (64 Fed.Reg. 19443, 

19447 (April 21, 1999)). 

All other arguments proffered by Atlas have been considered and 

rejected.^ 

In weighing all the totality of the facts and circumstances, I find and 

conclude that a civil penalty assessment of $12,000 is appropriate, A company, 

in the business of selling equipment for others, which ships by air a gasolinepowered engine with gasoline sloshing around inside when not oozing out, and 

which fails to post any kind of waming or to employ appropriate packaging, has 

acted thoughtlessly and recklessly. It deserves a hefty fine. I conclude that the 

amount decided will help to achieve the statutory purpose of promoting 

compliance with the HMRs,^ It contains sufficient 'bite", or deterrent effect (see 

^ In puticular, thai Respondent may be a firsl-thne violslor (Tr, ) 20) fuils to justify a reduced penatty. A 

violulion-rTve history is expected to be the norm. Toyota Motor Sales, FAA OrderNo. 94-28 (September 

30, 1994); Tr. 67. And vrhilc Mv. Puller stated us on BfTiiTnalive derense that Atlas could Tail as a concern 

Eis a result of a fine of such magniiude (Tr, 120), the company failed to support this assertion with any 

evidence beyond IIJB witness' ban uHemncc. A self-serving clain) without any evidentiary backing is not 

proof. Atlas, then, failed to demonstraia financial hardship (s^e Vr. 130), snd Its claim is rcjecled, 

1 do not say this without nservations. Respondent's representative Mr, Fuller, in hi; viosing statement, 

reiterated his intention to hcncefbith follow the Department's "guidelines" for the shipment ofhazaiiious 

matcriftls. Tr, 140. Mr. Fuller's chanicterization of the HMRs is mistaJccn. The HMRs are not euidelines, 

but legal requirement*;. 
06/23/2010 10;41 FAX 2024935142 FAA * DMS @l024/024 

li.! 

I"! 

I Toyota Motor Sales, Inc., FAA Order No. 94-28 (September 30, 1994), p. 11). 

I \ The assessment additionally fairly weighs the post-incident actkjns Respondent 

has undertaken. Finally, the civil penalty also appropriately accounts for the 

factors the statute directs in fixing the assessment. 

t I 

Atlas Frontiers is hereby assessed a civil penalty of $12,000 for violations 

of thefollowing HMRs: §§171.2(a), 172.200(a), 172.202(a)(1)-(a)(3), 

172.202(a)(5). 172.2Q3(f), 172.204(a) or (c)(1), 172.204(c)(2), 172.204(c)(3), 

| i 172,600. 172.602(b)(3), 173.1(b). 172.702(a), 173.27(b)(1), and 173.222." 

i chard C. Gooawin 

Adminisirative Law Judge 

Aliachmcnl - Service I^ist 

';• 1 

r : • ; 

I' • 

* Any appeal from the initial Decision to the Administtator must be in accordance with section 13.233 of 

the Rules of Practice, Nvhich i^aires 1) that a notice of appeal be filed no later than 10 daya (plus an 

addilionul 5 for maJline) firom ttie date of this order iuid 2) that the appeal be perfected with a written brief 

or memorandum not later th»n 50 days (plus S for mailing) Irom the date of this onlcr. Each ia to be sent to 

the Appellate Docket Clerk, Room 924-A, federal Aviation Adrninlstralion, 800 Independence Avenue, 

Washington, DC 20591, and to agency counsel. Scrvict upon die presiding judge is optional.