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U.S. Department of Transportation Federal Aviation Administration August 15, 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 

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ATTN: HEARING DOCKET CLERK Great Lakes Region 2300 E. Devon Avenue Des Plaines, IL 60018 847/294-7313 

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## HEARING DOCKET

Re: In the Matter ofEcoSMART Technologies, Inc.f

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## tf DocketNo. 2012-GL-70-0111 

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## d..5Cf3S 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 Chicago area and expects that the hearing will last one day. Please address all communications for the Federal Aviation Administration to the attention ofKate Barber, Office ofthe Regional Counsel, 2300 East DevonAvenue, Des Plaines, Illinois 60018.

# ~ Kate Barber Enclosures
cc: AGL-700U.S. DEPARTMENT OF TRANSPORTATION FEDERALAVIATION ADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

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## HEARING DOCKET

-------------------------------------------------------- Inthe Matter ofEcoSMARTTechnologies, Inc. 2012-GL-70-0111 Judge NotAssigned

COMPLAINT The Federal Aviation Administration (FAA or Complainant), by counsel, hereby files its Complaint, ·pursuantto Rule 208 ofthe Rules ofPractice (14 C.P.R. 13.208), and states as follows: I 1. OnoraboutMarch 17, EcoSMARTTechnologies, Inc. (EcoSMART) lmowingly offered a twopiece undeclared shipmentcontaininghazardous materialsto Federal Express Corporation (FDEA), under Airway Bill (A WB) number 798176704103 fortransportationbyairfrom Atlanta, Georgiato Indianapolis, Indiana. 2. The shipmentcontained approximately485 ounces ofaerosol, herbicide, pesticide, and fungiciderelated materials. 3. When offered into transportation, the products contained within the shipment are regulated as UN1950, Aerosols, flammable, Class 2.1 and UN1950, Aerosols non-flammable, Class 2.2. 4. During the sort process at FDEA cargo sort center in Indianapolis, Indiana, FDEA personnel openedthe shipmentto inspect its inner contents due to noticeable signs ofleakage. 5. Inspection ofthe shipmentfound

### that itdid containundeclaredhazardousmaterials. 6. The shipmentwas notproperlypackaged, marked, labeled, documented, orotherwise declared for transportation incommerce.7. The shipmentof the hazardous materials was processedby anemployee ofEcoSMARTthat did notreceive the requiredhazardous materialstraining. 8. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration for Dangerous Goods. 9. EcoSMART offered the above-described shipment ofhazardous material for transportation by air whenthere were no shipping papers containing the proper shipping name of each hazardous material; the hazard class ofeach hazardous material, preceded by "UN" or "NA," as applicable; the total quantity by weight or volume ofeachhazardous material covered by the description; and the basic description ofeach hazardous material shown in sequence. 10. EcoSMART offered the above-described hazardous material for transportation by air and did not provide two copies ofthe required shipper's certification. 11. EcoSMART offered the above-described hazardous material for transportation by air when the shipment was not marked or labeled in any manner that would indicate the hazardous nature ofthe contents contained therein. 12. EcoSMART offered the above-described shipment for transportation by air when the box
was not marked with the proper shipping name and the assigned identification number ofeach hazardous material contained therein, and with the required marking in English and printed on or affixed to the surface ofthe package. 13. EcoSMART offered the above-described shipment for transportation by air when it did not contain a Cargo Aircraft Only label. 14. EcoSMART did notmake emergency response information, including the emergency response telephone number, available for use at all times the hazardous material was present.

215. EcoSMART's employee performed hazardous material shipping functions when they had not received the required hazardous materials employee training. 

### IV By reason ofthe foregoing facts and circumstances, the Respondent violated the following Federal Aviation Regulations: a) 49 CFR §171.2(e) in that EcoSMART offered a hazardous material for transportation in air commerce that was not properly packed, classed, described, marked, labeled and
was not in condition for shipment as required by the Hazardous Material Regulations. b) 49 CFRPart 172.200(a), inthat EcoSMART offered a hazardous material for transportation and did notproperly describe that material onthe shipping paper. c) 49 CFR Part 172.204(a), inthat EcoSMART offered a hazardous material for transportation and did not include a statement indicating that the shipment is within the limitations prescribed for either passenger and cargo aircraft or cargo aircraft only must be entered onthe shipping paper. d) 49 CFR Part 172.301(a), inthat EcoSMART offered a hazardous material for transportation in a non-bulk package and did not properly mark that material in accordance with the regulations. e) 49 CFRPart 172.400(a), inthat EcoSMART offered a hazardous material for transportation and did notproperly label that material in accordance withthe

. regulations; f) 49 CFRPart 172.600(c)(2), inthat EcoSMART offered a hazardous material for transportation and did notprovide emergency response information in accordance with the regulations; 3g) 49 CFR Part 172.704(c), inthat EcoSMARTdid not provide at least one employee, who was performing hazmat-related functions, with initial and recurrent hazmat training; h) 49 CFR Part 173.1(b), in that EcoSMART offered a parcel containing hazardous materials that were not prepared in accordance withthe requirements ofthis subchapter and the employee(s) preparing said parcel had not received the appropriate training; and i) 49 CFR Part 173.24(b)(l), in that EcoSMART shipped liquids in excess ofoutage and filling limits required by this subchapter. Pursuant to 49 U.S.C. §5123, Respondent is subject to a civil penalty ofat least $250 but not
more than $50,000 for each ofthe violations alleged. Under the facts and circumstances ofthis case, a civil penalty of$78,000 is appropriate. WHEREFORE, the FAA, by counsel, respectfully requests that the Administrative Law Judge enter an order assessing EcoSMART Technologies, Inc. a civil penalty in the amount of $78,000.

Attorney Federal Aviation Administration 2300 East DevonAvenue, AGL-7 Des Plaines, Illinois 60018 847/294-7862 Fax: 847/-294-7498

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### NOTE: The Rules of Practice for this proceeding are set forth in Part 13, Subpart G, of the Federal Aviation Regulations (14 C.F.R. Part 13). The Rules of Practice provide that Respondent must file a written answer to this Complaint, ora 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 thatthe foregoing Complainthas been sent via Overnight Mail as follows: Overnight Mail

Overnight Mail (Original & One Copy)

Date: Vern Kennedy ChiefExecutive Officer EcoSMART Technologies, Inc. 20 Mansell Ct., Ste. 375 Roswell, GA 30076 Federal Aviation Administration 800 Independence Avenue, S.W. Wilbur Wright Building, Suite 2Wl000 Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430

# ~~ Y anda Quiles · Legal Technician Federal Aviation Administration Office ofRegional Counsel 2300 East DevonAvenue, AGL-7 Des Plaines, lllinois 60018



### 6U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C. InThe Matter ofEcoSMART Technologies, Inc. 2012-GL-70-0111 Judge Not Assigned
NOTICE OF APPEARANCE 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 berepresented in the above-stated action bythe following attorney: Kate Barber Federal Aviation Administration Office ofRegional Counsel 2300 East DevonAvenue, AGL-7 Des Plaines, Illinois 60018 847/294-7862 Fax: 847/294-7498
All communications, notices, pleadings or documents are respectfully requested to be forwarded as follows: Kate Barber Federal Aviation Administration Office ofRegional Counsel 2300 East Devon Avenue, AGL-7 Des Plaines, Illinois 60018 847/294-7862 Fax: 847/294-7498 Respectfully submitted,

Kate Barber Attorney Dated: 

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# b t J.-z..o i3 •CERTIFICATE OF SERVICE I hereby certify that on this day copies ofthe foregoing Notice ofAppearance were sent Overnight Mail as follows: Overnight Mail

Overnight Mail (Original and one Copy) Vern Kennedy ChiefExecutive Officer EcoSMART Technologies, Inc. 20 Mansell Ct., Ste. 375 Roswell, GA 30076 Federal Aviation Administration 800 Independence Avenue, S.W. Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2W1000 Washington, D.C. 20591

# ~~ Legal Technician Federal Aviation Administration Office ofRegional Counsel 2300 East DevonAvenue, AGL-7 Des Plaines, Illinois 60018

### August9, 2013 Hearing Docket Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591

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## HEARING DOCKET

Attn.: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Ste. 2W1000 RE: AGL-78 I 2012-GL-70-0111 I Request for Formal Hearing Dear Sir or Madam: In accordance with your correspondence dated July 29, 2013 regarding the above reference proposed civil penalty, EcoSMART Technologies, Inc. hereby requests a formal hearing on this matter. Please process accordingly. Sincerely,

Chief Executive Officer

CC: Kate Barber, Esq.