.0 

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 2W1 000 

:?3 p !: lJ.l 

ATTN: HEARING DOCKET CLERK 

Great Lakes Region 

2300 E. Devon Avenue 

Des Plaines, IL 60018 

847/294-7313 

RECEIVED 

AUG 1 6 2013 

HEARING DOCKET 

Re: In the Matter of EcoSMART Technologies, Inc.f FOO\ S ~0 l 3 - O'CI tf 

Docket No. 2012-GL-70-0111 2.ot3· P\\.0~ .. c..pp .. d..5Cf3S 

Enclosed herein please find a copy of a request for hearing and the original and one copy of the 

Federal Aviation Administration's Complaint in the above-entitled action for filing, together with 

proof of service 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 of Kate 

Barber, Office of the Regional Counsel, 2300 East Devon Avenue, Des Plaines, Illinois 60018. 

~ Kate Barber 

Enclosures 

cc: AGL-700 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

RECEIVED 

AUG 1 6 2013 

HEARING DOCKET --------------------------------------------------------

In the Matter ofEcoSMART Technologies, Inc. 

2012-GL-70-0111 

Judge Not Assigned 

COMPLAINT 

The Federal Aviation Administration (FAA or Complainant), by counsel, hereby files its Complaint, 

·pursuant to Rule 208 ofthe Rules ofPractice (14 C.P.R. 13.208), and states as follows: 

I 

1. On or about March 17, EcoSMART Technologies, Inc. (EcoSMART) lmowingly offered a twopiece undeclared shipment containing hazardous materials to Federal Express Corporation (FDEA), under 

Airway Bill (A WB) number 798176704103 for transportation by air from Atlanta, Georgia to Indianapolis, 

Indiana. 

2. The shipment contained approximately 485 ounces of aerosol, 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 opened the shipment to inspect its inner contents due to noticeable signs of leakage. 

5. Inspection of the shipment found that it did contain undeclared hazardous materials. 

6. The shipment was not properly packaged, marked, labeled, documented, or otherwise declared for 

transportation in commerce. 
7. The shipment of the hazardous materials was processed by an employee ofEcoSMART that did 

not receive the required hazardous materials training. 

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 of hazardous material for 

transportation by air when there were no shipping papers containing the proper shipping name of 

each hazardous material; the hazard class of each hazardous material, preceded by "UN" or 

"NA," as applicable; the total quantity by weight or volume of each hazardous material covered 

by the description; and the basic description of each hazardous material shown in sequence. 

10. EcoSMART offered the above-described hazardous material for transportation by air and 

did not provide two copies of the 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 of the 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 of each 

hazardous material contained therein, and with the required marking in English and printed on or 

affixed to the surface of the 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 not make emergency response information, including the emergency 

response telephone number, available for use at all times the hazardous material was present. 

2 
15. EcoSMART's employee performed hazardous material shipping functions when they 

had not received the required hazardous materials employee training. 

IV 

By reason of the 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 CFR Part 172.200(a), in that EcoSMART offered a hazardous material for 

transportation and did not properly describe that material on the shipping paper. 

c) 49 CFR Part 172.204(a), in that 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 on the shipping paper. 

d) 49 CFR Part 172.301(a), in that 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 CFR Part 172.400(a), in that EcoSMART offered a hazardous material for 

transportation and did not properly label that material in accordance with the 

. regulations; 

f) 49 CFR Part 172.600(c)(2), in that EcoSMART offered a hazardous material for 

transportation and did not provide emergency response information in accordance with 

the regulations; 

3 
g) 49 CFR Part 172.704(c), in that EcoSMART did 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 with the requirements of this 

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 of outage and 

filling limits required by this subchapter. 

Pursuant to 49 U.S.C. §5123, Respondent is subject to a civil penalty of at least $250 but not 

more than $50,000 for each of the violations alleged. Under the facts and circumstances of this 

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 Devon Avenue, AGL-7 

Des Plaines, Illinois 60018 

84 7/294-7862 

Fax: 847/-294-7498 

4 
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, or a written Motion to Dismiss if appropriate, not later than 30 days after the date 

shown on the Certificate of Service. A general denial is deemed a failure to file an answer 

(Section 13.209( e)). 

5 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complaint has 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 2Wl 000 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

~~ Y anda Quiles · 

Legal Technician 

Federal Aviation Administration 

Office of Regional Counsel 

2300 East Devon A venue, AGL-7 

Des Plaines, lllinois 60018 

6 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In The 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 of Hearings, and the Respondent, pursuant to 14 C.F.R. §13.204(b), that it 

shall be represented in the above-stated action by the following attorney: 

Kate Barber 

Federal Aviation Administration 

Office of Regional Counsel 

2300 East Devon A venue, AGL-7 

Des Plaines, Illinois 60018 

84 7/294-7862 

Fax: 847/294-7498 

All communications, notices, pleadings or documents are respectfully requested to be forwarded as 

follows: 

Kate Barber 

Federal Aviation Administration 

Office of Regional Counsel 

2300 East Devon A venue, AGL-7 

Des Plaines, Illinois 60018 

84 7/294-7862 

Fax: 847/294-7498 

Respectfully submitted, 

Kate Barber 

Attorney 

Dated: 8 b t J.-z..o i 3 

• 
CERTIFICATE OF SERVICE 

I hereby certify that on this day copies of the foregoing Notice of Appearance were sent Overnight 

Mail as follows: 

Overnight Mail 

Overnight Mail 

(Original and one Copy) 

Vern Kennedy 

Chief Executive 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 of Regional Counsel 

2300 East Devon A venue, AGL-7 

Des Plaines, Illinois 60018 
August9, 2013 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

LE~©>SMART THS SAFS PESTfCIOE BRANCw 

RECEIVED 

AUG 1 3 2013 

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.