1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

KYLE E. LOMAZOW 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND AVE., SW 

RENTON, WASHINGTON 98057 

TELEPHONE: 425.227.1847 

FACSIMILE: 425.227.1007 

EiVED 

MAR 2 9 20t1 

lEARING DOCKET 

UNITED STATES OF AMERICA 

NATIONAL TRANSPORTATION SAFETY BOARD 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

WASHINGTON, D.C. 

In the Matter of: 

Empire Airlines FAA DOCKET CP10NM0007 

FAA Case No. 2009NM700065 

DMS No. FAA-2010-0791 

Judge Goodwin 

TO: Empire Airlines 

RESPONDENT'S FIRST SET OF INTERROGATORIES AND 

REOUESTS FOR PRODUCTION OF DOCUMENTS AND 

ITEMS PROPOUNDED TO THE COMPLAINANT 

In accordance with 14 C.F.R. § 13.220, Complainant responds to Respondent's Discovery 

Requests as follows, with the understanding that these requested Interrogatories and Request for 

Production are limited to the issue of sanction. Complainant also reserves the right to supplement if 

additional information comes to light. 

Interrogatory No. 1: State the name, business address and job title of each person supplying 

factual information used to compile the answers to these interrogatories and requests for 

production and identify the interrogatories and requests for which each person suppUed 

information. 

Mallory Luscher 

1601 Lind Avenue SW, Suite 530 

Renton, WA 98057 

Security Specialist (Hazardous Materials) 

425-227-1380 

David C. King 

1601 Lind Avenue SW, Suite 530 

Renton, WA 98057 

Security Specialist (Hazardous Materials) 

425-227-1991 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 1 of 9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

Thomas L. Kenny 

1601 Lind Avenue SW, Suite 530 

Renton, WA 98057 

Security Specialist (Hazardous Materials) 

425-766-4497 

Interrogatory No. 2: Identify each person by full name, job title, business address and telephone 

number who has knowledge or information concerning or related to the allegations of your 

Complaint and, for each identified person, provide a brief description of his or her knowledge 

regarding the same. 

Answer: 

See answer to Interrogatory #1. Agent Luscher was the inspector that conducted an investigation 

that produced facts that are the basis of the Complaint. Agent King was an inspector that was 

with Agent Luscher during the inspection. Agent Kenny was a supervisor that reviewed the case 

file during the deliberative process. 

Interrogatory No. 3: Identify by full name, job title, business address and telephone number each 

witness you intend to call at the hearing of this matter. 

See answer to Interrogatory No. 1. 

Interrogatory No. 4: Provide a summary of the facts and opinions to which each intended witness 

identified in Interrogatory No. 3 is expected to testify. 

Answer: The substance of the testimony to be offered by each of the witnesses identified in 

Interrogatory No. 1 is as follows: 

a) Mallory Luscher is expected to testify about what she discovered during the course of her 

investigation of this case, i.e.. Enforcement Investigative Report No. 2009NM700065. She 

will testify that the proposed sanction is consistent with that guidance and the sanction 

proposed falls within the sanction range under the Administrator's sanction guidelines. 

b) Thomas Kenny is expected to testify about what he discovered during the course of his 

investigation of this case, i.e.. Enforcement Investigative Report No. 2009NM700065. 

FAA reserves the right to identify any witnesses who may be called as experts prior to the hearing 

in this matter. 

Interrogatory No. 5: Identify each document and item you intend to introduce at the hearing of this 

matter. 

Answer: 

See previously produced Items of Proof from the Agency's case. However, out of an abundance 

of caution the entire releasable portion of the Agency's case file is produced anew. In addition. 

Complainant will offer an extract of FAA Order 2150.3B; specifically. Appendix C - the 

Administrator's sanction guidance for hazardous material cases. 

Interrogatory No. 6: Identify by name, business address and phone number the FAA inspector 

who conducted the February 3, 2009 inspection that is related to this matter and provide the dates 

of his or her employment with the FAA and his or her job title(s). 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 2 of 9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

. 49 

50 

51 

52 

53 

Answer: 

Mallory Luscher 

1601 Lind Avenue SW, Suite 530 

Renton, WA 98057 

Security Specialist (Hazardous Materials) December 14, 2002 

Program Analyst - September 24, 2000 - December 14, 2002 

Present 

Interrogatory No. 7: State the factual basis for the issuance of the subject Final Notice of Proposed 

Civil Penalty. 

Answer: 

No Final Notice of Proposed Civil Penalty was issued in this case. After Respondent received 

the Amended Notice of Proposed Civil Penalty, it exercised its right to request a hearing per 

14 C.F.R. § 13.16(f)(3). Because Respondent opted to request a hearing instead of holding 

another informal conference. Complaint was filed per 14 C.F.R. § 13.16(i). Attached is 

Respondent's request for a hearing dated September 7,2010. 

Interrogatory No. 8: State the factual basis, statutory basis, and any other information that may be 

presented at the trial of this matter to support the assessment of the $14,500 penalty in the subject 

Final Notice of Proposed Civil Penalty. 

Answer: 

The Administrator objects to the extent that this request asks for attorney work product. Without 

waiving said objection, the statutory basis for the assessment of the $14,500 penalty is 

49 U.S.C. § 5123. The facts presented will be the facts in the Agency case file which has already 

been produced. Respondent's violation history, and the factors set forth in the Administrator's 

sanction guidance. 

Interrogatory No. 9: Describe the actions taken in relation to the shippers of these packages, 

including the shipper's name, address, phone number, contact with ttie FAA, whether a letter of 

investigation was issued, whether a civil penalty was proposed, and the outcome of any 

investigation. 

Answer: Objection, irrelevant. Without waiving said objection: 

Case Number 2009NM700057 

VALLEY MEDICAL SERVICES 

2425 Highway 2 East 

Kalispell, MT 59901 

Closed with Civil Penalty ($1,000) for violations of the following regulations: 

49 C.F.R. 171.2(e), 171.2(k), 172.303, 172.704(a)(2), 173.199(a)(5) 

Case Number 2009NM700061 

HEXION SPECL^LTY CHEMICALS 

3670 Grant Creek Road 

Missoula, MT 59808 

Closed with Civil Penalty ($1,500) for violations of the following regulations: 

49C.F.R. 171.2(k), 172.303, 172.704(a)(2) 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 3 of 9 

KYLE E. LOMAZOW, FA A ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17. 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43. 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

hiterrogatorv No. 10: State the relevance and factual basis for the inclusion of the allegations in 

Paragraph 9 of the Complaint in this matter, particularly as it relates to Empire Airlines. 

Answer: 

The lack of a FedEx dangerous goods inspection sticker as well as the fact that this shipment was 

marked "ORM-D" rather than "ORM-D-Air" should have alerted Empire that this shipment was 

incorrectly marked and was not inspected. Empire is an independent air carrier and therefore has 

an independent duty to inspect prior to acceptance and transfer of packages. Today's 

transportation environment warrants the inspection of hazardous materials reclassified as 

"ORM-D" to ensure the safety and security of the hazardous materials shipments. 

Interrogatory No. 11: State any legal basis, statutory basis, or factual basis to support the 

allegation in Paragraph 16 of the Complaint. Specifically, specify where the requirement for the 

Respondent to inspect the inner packing of a shipment is noted, how that inspection is supposed 

to incur, and any other information that will be relied upon at trial to support the relevance of this 

allegation. 

Answer: 

In the absence of other indications there is no requirement. However, here on the face of the 

shipment there were indicators that the shipment was not properly inspected. Further, the outer 

package was clear plastic so observation of the inner package did not require opening it. Also, 

the FedEx contract for shipment reserves the right to open and inspect a shipment. 

Interrogatory No. 12: State any potential threat to safety posed by the allegations included in 

Paragraph 17 of the Complaint, and who might testify to that alleged safety threat at trial. 

Answer: 

See response to Interrogatory No. 1 as to who may testify. In regards to potential threats to safety, 

when air carriers do not follow the Hazardous Materials Regulation (HMR), there is a great risk 

of danger to the public at large. The issue is not whether the substance in any given case is 

dangerous, but whether the HMR is being followed. UN3373 is regulated due to the possible 

release of infectious substances into the environment. 

Interrogatory No. 13: Identify any and all case law that you contend would support the issuance of 

the subject Final Notice of Proposed Civil Penalty and the amount proposed. 

Answer: Complainant is not required to conduct legal research for Respondent. Further, no 

Final Notice of Proposed Civil Penalty was issued in this case. 

Interrogatory No. 14: Identify and describe any potential threat to safety posed by the allegations 

included in Paragraph 8 of the Complaint, and who might testify to that alleged safety threat at 

trial. 

Answer: 

See response to Interrogatory No. 1 as to who may testify. In regards to potential threats to 

safety, the issue is not whether the shipment or substance in any given case is dangerous, but 

whether the air carrier is following the HMR, which clearly indicates that any packages 

containing HAZMAT that qualify to be classified as a consumer commodity and are being 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 4 of9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

transported by air, must be marked "ORM-D-Air" and be accompanied by a shipper's 

declaration. 

Interrogatory No. 15: Identify by case name and number any FAA cases brought in your region 

since 2008 where companion cases have been brought against both an air carrier and a feeder 

operator of the same or a similar relation that is shared by FedEx and Empire in the case at bar. 

Answer: The Administrator objects to this interrogatory on the groimds that it is not relevant to 

the instant case. 

Interrogatory No. 16: Identify by case name and number, or other identifying number, any 

mishaps of which your region is aware since 2000 that involve the diversion of an aircraft or 

other emergency response related to dangerous goods of the nature of those involved in this case 

(ORM-D-Air or UN3373), including airline and result. 

Answer: 

The Administrator objects to this interrogatory on the grounds that the requested information is 

not relevant to the instant case and retrieval of the information would be unduly burdensome, as 

it would require retrieval and review of every Enforcement Investigative Report involving 

HAZMAT since the year 2000. 

Interrogatory No. 17: State each and every statutory or legal basis that you allege requires the air 

carrier to inspect packages containing UN3373. 

Answer: 

49 C.F.R. § 175.3 states that "a hazardous material that is not prepared for shipment in 

accordance with this subchapter may not be offered or accepted for transportation or transported 

aboard an aircraft." 

Interrogatory No. 18: Identify each and every way that the actual item contained in the package 

marked "ORM-D" might have impacted safety, and how the package should have been marked 

and labeled in order to travel properly. 

Answer: 

Any shipment labeled "ORM-D Air" is a hazardous material and hazardous materials are 

regulated by the HMR. The HMR does not leave it up to individual carriers to determine whether 

a particular shipment is dangerous or not. The HMR requires that every "ORM-D" package 

being transported by air must be marked "ORM-D-Air." 

Interrogatory No. 19: State with specificity each and every fact upon which you intend to rely on 

at trial that Empire "knovmigly accepted" the shipment at issue, referenced in Paragraph 12 of 

the Complaint. 

Answer: 

The Administrator will rely on the testimony of security agent Mallory Luscher as well as the 

releasable portion of the Agency's case file. 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 5 of 9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

Interrogatory No. 20: State with specificity each and every fact upon which you intend to rely at 

trial that Empire "knowingly accepted" the shipment at issue, referenced in Paragraph 3 of the 

Complaint. 

Answer: 

See response to No. 19. 

Interrogatory No. 21: State each and every fact upon which you base the allegation in Paragraph 

1 of the Complaint. 

Answer: 

Empire is a "will carry" air carrier and has a conttact with Federal Express to accept and 

transport packages, including HAZMAT shipments. 

Interrogatory No. 22: State each and every fact or allegation upon which you intend to rely at trial 

to dispute that Empire was acting solely as an agent of FedEx and not independently. 

Answer: 

When Empire accepted and transported these shipments from FedEx, they were operating under 

their own air carrier certificate and therefore had an independent duty to inspect all packages 

loaded onto their planes as per the HMR. 

Request for Production No. 1: Produce the entire FAA file regarding the subject Final Notice of 

Proposed Civil Penalty that was issued against Respondent and regarding the February 3, 2009 

inspection that is related to this matter, including a copy of the FAA inspector's notes, if any, 

taken contemporaneously or in relation to the aforementioned February 3, 2009 inspection. 

Please note that this request does not intend to seek documents or items that are protected by the 

attorney-client privilege. 

Answer: No Final Notice was issued. Respondent has received the releasable portion of the 

Agency's case file and it is again provided in this discovery response. The inspector no longer 

has any notes other than any that are contained in the documents previously produced. 

Request for Production No. 2: Produce any and all documents or items that concem or relate to the 

allegations of your Complaint. 

Answer: See response to Request for Production No. 1. In addition, the Agency will offer the 

Administtator's sanction guidance, a copy of which can be found at www.faa,gov. 

Request for Production No. 3: Produce any and all documents or items that either support or tend 

to refute any contention or affirmative defense raised by Respondent in its Answer and Statement 

of Affirmative Defenses. However, see In the Matter of Federal Express. 

Answer: Complainant is not aware of any documents that support or tend to refute Respondent's 

affirmative defenses. 

Request for Production No. 4: Produce a copy of any document or item you intend to introduce at 

the hearing of this matter or make the same available for inspection at a mutually convenient 

place and time if copying the document or item is unfeasible or impossible. 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 6 of 9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

Answer: See Response to Request for Production No. 2. Complainant reserves the right to 

supplement this request (or any other) if this changes. 

Request for Production No. 5: Produce the resume or curriculum vitae of the FAA inspector who 

conducted the February 3, 2009 inspection that is related to this matter. 

Answer: 

Mallory Luscher: Professional Hazardous Materials History: 

Security Specialist (Hazardous Materials) - United States Department of Transportation (Federal 

Aviation Administration - December 15, 2002 to Present. 

Conducts inspections at airports, air carrier stations, cargo acceptance points, freight forwarders, 

and hazardous materials shippers in order to evaluate compliance with Hazardous Materials 

Regulations and Federal Aviation Administration training regulations. Performs hazardous 

materials outreach to the public at air shows, airports, trade shows, etc. Composes enforcement 

investigative reports when violations of the Hazardous Materials Regulations are found. 

Program Analyst - United States Department of Transportation (Federal Aviation 

Administration) September 24, 2000 to December 15, 2002. 

Identified trends in transportation of hazardous materials in air ttansportation by analyzing data 

from internal and extemal computer systems. Created and presented reports requested by 

division management for outreach plan results, deployment plans, incident and assessment 

activity and other special projects. Conducted inspections at airports, air carrier stations, cargo 

acceptance points, freight forwarders, and hazardous materials shippers with Security Specialists 

(Hazardous Materials) to evaluate the hazardous materials program. Performed hazardous 

materials outreach to the public at air shows, airports, trade shows, etc. 

Request for Production No. 6: Produce any and all documents or things which you contend either 

supports or tends to refute the issuance of the subject citation. 

Answer: See previously produced documents from the Agency's case file. 

Request for Production No. 7: Produce any and all documents or things which you contend either 

supports or tends to reflite the assessment of the $14,500.00 penalty in the subject Final Notice of 

Proposed Civil Penalty. 

Answer: See Response to Request for Production No. 6. See also the Administrator's Sanction 

Guidance. 

Request for Production No. 8: To the extent it has not already been produced, produce each 

document or item identified or described in your responses to the interrogatories above. 

Answer: See previously produced documents from the Agency's case file. 

Request for Production No. 9: To the extent it has not already been produced, produce a copy of 

each document or item you relied upon in responding to the interrogatories above, including the 

releasable portions of the FAA file of the investigation of the shippers in this matter. 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 7 of 9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

Answer: See previously produced documents from the Agency's case file. 

DATED this 23"^ day of March, 2011 

KyCyl: e Lomazow 

FAA Attorney 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 8 of 9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complainant's Initial Response to Respondent's Initial 

Discovery Request has been served via facsimile and certified mail - Return Receipt Requested 

this date, to the following: 

The Honorable Richard C. Goodwin 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El2-320 

Washington, D.C. 20590 

TEL: 202.366.2139 

FAX: 202.366.7536 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

FAX: 202.493.5020 

Cynthia Chandler-Snell 

Federal Express Corporation 

3620 Hacks Cross Road 

Building B, 3"* Floor 

Memphis, TN 38125 

TEL: 901.434.8361 

FAX: 901.434.8283 

Dated this 23''' day of March, 2011. 

-UL '^ P A \/?f¥ ^ 

)ana Stephenson 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

425.227.2164 

Complaint's Response to Respondent's Initial Discovery Requests 

Empire Airlines - 2009NM700065 & CP10NM0007 

Page 9 of 9 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007