1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of: : National Safe T Propane, : Case No. 07-1207-TR-CVF 4 Inc., : : 5 Notice of Apparent : Violation and Intent to : 6 Assess Forfeiture. : 7 - - - 8 PROCEEDINGS 9 before Mr. James M. Lynn, Hearing Examiner, at the 10 Public Utilities Commission of Ohio, 180 East Broad 11 Street, Room 11-G, Columbus, Ohio, called at 10:00 12 a.m. on Friday, April 4, 2008. 13 - - - 14 15 16 17 18 19 20 21 ARMSTRONG & OKEY, INC. 185 South Fifth Street, Suite 101 22 Columbus, Ohio 43215-5201 (614) 224-9481 - (800) 223-9481 23 Fax - (614) 224-5724 24 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 2 1 APPEARANCES: 2 Mr. Robert W. Rettich III 46 East Main Street 3 Germantown, Ohio 45327 4 On behalf of the Respondent 5 Mark Dann, Ohio Attorney General Duane W. Luckey, Senior Deputy 6 Attorney General Public Utilities Section 7 Mr. William Wright Ms. Sarah Parrot 8 180 East Broad Street, 9th Floor Columbus, Ohio 43215-3793 9 On behalf of the Staff of the Public 10 Utilities Commission. 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 3 1 INDEX 2 - - - 3 WITNESS PAGE 4 Officer Robert Barrett Direct Examination by Ms. Parrot 08 5 Cross-Examination by Mr. Rettich 47 Redirect Examination by Ms. Parrot 60 6 Recross-Examination by Mr. Rettich 63 7 Jonathan Frye Direct Examination by Ms. Parrot 72 8 Cross-Examination by Mr. Rettich 89 9 Jay Kothari Direct Examination by Mr. Rettich 105 10 Cross-Examination by Mr. Wright 112 Redirect Examination by Mr. Rettich 137 11 Recross-Examination by Mr. Wright 138 12 - - - 13 INDEX 14 STAFF EXHIBITS IDFD ADMTD 15 1 - Driver/Vehicle Examination Report 12 71 16 1-A Driver/Vehicle Examination Report 71 104 17 2-B Photograph 39 72 18 2-C Photograph 71 72 19 2-D Photograph 71 72 20 2-E Photograph 71 72 21 2-F Photograph 71 72 22 2-G Photograph 71 72 23 3 - Civil Forfeiture Violations Chart 79 104 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 4 1 STAFF EXHIBITS IDFD ADMTD 2 4 - Forfeiture Assessment Matrix 81 104 3 5 - Notice of Preliminary Determination 88 104 4 - - - 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 5 1 Friday Morning Session, 2 April 4, 2008. 3 - - - 4 THE ATTORNEY EXAMINER: The Public 5 Utilities Commission of Ohio has assigned for hearing 6 at this time and place Case No. 07-1207-TR-CVF in the 7 matter of National Safe T Propane, Notice of Apparent 8 Violation and Intent to Assess Forfeiture. I am Jim 9 Lynn, the attorney-examiner for this case, and first 10 I'll ask the parties to enter their appearances of 11 counsel, and we will start with the Ohio Attorney 12 General's Office. 13 MS. PARROT: Your Honor, good morning, on 14 behalf of the Staff of the Transportation Section of 15 the Public Utilities Commission of Ohio, Ohio 16 Attorney General Marc Dann, Duane Luckey, section 17 chief, Sarah Parrot and Bill Wright, assistant 18 attorneys general, 180 East Broad Street, Columbus, 19 Ohio 43215. 20 THE ATTORNEY EXAMINER: Representing 21 National Safe T Propane. 22 MR. RETTICH: Your Honor, Robert Rettich 23 III representing National Safe T Propane. 24 THE ATTORNEY EXAMINER: As we discussed, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 6 1 we will determine the matter of the date for filing 2 briefs towards the end of this proceeding. With that 3 in mind, Mr. Rettich and Ms. Parrot, are you ready to 4 proceed? 5 MR. WRIGHT: If your Honor, before we do 6 proceed I'd like to make one matter clear on the 7 record. We received a letter from Mr. Rettich on 8 April 2, that would have been on Wednesday, 9 referencing an earlier conversation with you and I 10 believe also with Sarah Parrot regarding today's 11 hearing, and I just wanted the record to be clear, by 12 this letter the intention was that company president, 13 George Kuhn, through his counsel is waiving any right 14 to be here today at this hearing or to otherwise have 15 this hearing rescheduled so that he could be in 16 attendance, and I would ask Mr. Rettich to confirm 17 that is in fact the case. 18 MR. RETTICH: That is in fact the case. 19 MR. WRIGHT: Very good, thank you, sir. 20 THE ATTORNEY EXAMINER: Thank you. 21 MS. PARROT: At this time staff calls 22 Officer Robert Barrett to the stand. 23 THE ATTORNEY EXAMINER: Officer Barrett, 24 please take the stand. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 7 1 MR. RETTICH: Your Honor, I ask for a 2 separation of witnesses. 3 THE ATTORNEY EXAMINER: Separation of 4 witnesses? 5 MR. RETTICH: I think they may intend to 6 call a second witness. 7 MR. WRIGHT: If I may, Mr. Rettich. 8 MR. RETTICH: Please feel free. 9 MS. PARROT: An explanation why I don't 10 think that's necessary or that there will be any 11 prejudicial impact, the second witness will explain 12 merely how the forfeiture amount was arrived at, 13 nothing more. This is our primary witness right 14 here. 15 MR. RETTICH: All right. 16 THE ATTORNEY EXAMINER: In that case -- 17 MR. RETTICH: I withdraw it, if that's 18 all we are going to have. 19 - - - 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 8 1 OFFICER ROBERT BARRETT 2 being first duly sworn, as prescribed by law, was 3 examined and testified as follows: 4 DIRECT EXAMINATION 5 By Ms. Parrot: 6 Q. Good morning, officer. 7 A. Good morning. 8 Q. Would you please state and spell your 9 name for the record. 10 A. First name is Robert, last name Barrett, 11 B-A-R-R-E-T-T. 12 Q. And what is your business address, 13 please? 14 A. 180 East Broad Street, Columbus, Ohio 15 4321 . 16 Q. And by whom are you employed? 17 A. The State of Ohio, Public Utilities 18 Commission, Transportation Enforcement Division. 19 Q. And in what specific capacity are you 20 employed? 21 A. I'm a hazardous material investigator or 22 specialist with the Transportation Enforcement 23 Division. 24 Q. And what are your duties and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 9 1 responsibilities in that position? 2 A. I am a field staff member. I work out of 3 Shelby County, which is in Northwest Ohio. My duties 4 consist of responding to hazardous material 5 incidents, spills and releases, traffic accidents, to 6 conduct roadside inspections, platform scale fixed 7 location inspections, to conduct compliance reviews, 8 safety audits. 9 Q. What equipment is issued to you so you 10 can perform your job? 11 A. The uniform such as I'm wearing today is 12 the uniform of the day for the field staff, and I 13 operate a 2006 Ford Explorer, which is the vehicle 14 issued to me. It's white in color. It has a red 15 light bar on top and it is marked with the 16 designation Public Utilities Commission of Ohio on 17 both doors. 18 Q. Is there any other equipment that you use 19 to inspect vehicles? 20 A. I have a laptop, printer, scanner, 21 digital camera, the road gear needed to do the 22 inspection, creeper, hard hat, chalks, safety 23 glasses. 24 Q. How long have you worked for the Public ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 10 1 Utilities Commission? 2 A. Since December 2001. 3 Q. How long have you been employed in your 4 current position with the Commission? 5 A. Since December 2001. 6 Q. Do you have any other work experience 7 before your employment with the Commission? 8 A. Yes, I do. I was a 1986 graduate of the 9 Ohio State Highway Patrol Academy, commissioned as a 10 trooper, and worked out of St. Mary's and Wapakoneta 11 patrol posts up until December 2001, roughly 16-1/2 12 years. The last two years from 1999 to 2001 I worked 13 out of the Piqua, Ohio District Headquarters for 14 District 5 of the Highway Patrol, and the last two 15 years I worked in the Commercial Enforcement Section 16 and Weights and Measures, inspecting trucks roadside 17 and then weighing them with the portable scales. 18 Q. Do you hold any certifications or have 19 you received any type of special training? 20 A. I was certified through the North 21 American vehicle training course when I was working 22 with the State Highway Patrol, which is to conduct 23 roadside inspections -- 24 MR. RETTICH: Objection, your Honor, that ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 11 1 appears that would have been more than 16 years ago. 2 THE ATTORNEY EXAMINER: I don't really 3 see where that's an issue. 4 MR. RETTICH: All right. 5 THE WITNESS: I'm sorry, I didn't hear 6 what he said. 7 MR. RETTICH: My objection was based she 8 asked what training you had, and I think the training 9 you enunciated was more than 16 years ago. 10 A. Since I started with the Commission I was 11 certified in hazardous materials, Code of Federal 12 Regulations, basic HazMat, cargo tank, bulk package, 13 training in enhanced level 6 radioactive training, 14 compliance review, safety audit training, and we have 15 quarterly meetings, refreshers and in-service 16 training and so on. 17 Q. Thank you, Officer Barrett. Were you on 18 duty December 21, 2006? 19 A. Yes, I was. 20 Q. And what was your assignment on that day? 21 A. I was working at the platform scale on 22 Interstate 70 just inside the Ohio/Indiana line 23 located in Preble County. 24 Q. And what does that involve? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 12 1 A. Conducting inspections on vehicles as 2 they pass through the scale. 3 Q. Did you inspect a commercial motor 4 vehicle operated by the respondent, National Safe T 5 Propane, on this date? 6 A. Yes, I did. 7 Q. When you conduct such an inspection, do 8 you generate any type of report? 9 A. In our laptop we have an Aspen program. 10 It's a software program we enter the vehicle 11 information in and it generates an inspection. 12 MS. PARROT: May I approach, your Honor? 13 THE ATTORNEY EXAMINER: Yes. 14 (EXHIBIT MARKED FOR IDENTIFICATION.) 15 MS. PARROT: For the record, I have given 16 to Officer Barrett a packet of the exhibits for this 17 case that have been previously marked for 18 identification purposes only. I have also given a 19 copy to the respondent. 20 Q. Officer Barrett, would you please direct 21 your attention to Staff Exhibit 1, which has been 22 marked for identification purposes. 23 A. Yes. 24 Q. Do you recognize this document? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 13 1 A. Yes. 2 Q. Would you please identify it for us? 3 A. It's an Aspen-generated inspection number 4 OH3210301092 . 5 Q. Who prepared this inspection report? 6 A. It's a duplication of one that I had 7 prepared in my laptop. 8 Q. And is that contained anywhere on the 9 report, your preparation of it, that you prepared 10 this document? 11 A. Well, my inspector identification number 12 is 3210, so the OH, the report number obviously is 13 the state of Ohio. 3210 would indicate it was mine. 14 Q. Did you prepare the inspection report as 15 part of your official duties? 16 A. That's correct. 17 Q. Is this document regularly maintained by 18 the Commission in the ordinary course of its 19 business? 20 MR. RETTICH: Objection, your Honor, as 21 it is hearsay and he doesn't have a clue. He's not 22 the person that would maintain the record. 23 MS. PARROT: He's employed by the 24 Commission, your Honor. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 14 1 MR. RETTICH: I don't dispute he's 2 employed, but he's certainly not the custodian of the 3 records, nor do I think he knows what the records 4 custodian policy would be. 5 THE ATTORNEY EXAMINER: Would you care to 6 restate the question? 7 MS. PARROT: We will withdraw the 8 question, your Honor. 9 Q. You mentioned that this is an 10 Aspen-generated report I believe. 11 A. That's correct. 12 Q. Would you please tell us more about how 13 you prepared this and what that means? 14 A. Basically during an inspection you take 15 the driver's credentials the vehicle credentials, 16 markings as far as plate numbers and information you 17 enter into the program, into the Aspen program. As 18 you do the roadside inspection, you enter the 19 information in, and this is a report that's produced. 20 Q. When did you prepare this report? 21 A. On 12/21/2006, between the hours of 10:17 22 hours and 10:57 a.m. 23 Q. Was it prepared during the inspection? 24 A. In between those two times, yes, the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 15 1 10:57, the ending time, would have been the time it 2 was sent to the printer. 3 Q. And what did you do with the report after 4 you prepared it? 5 A. I print out sometimes one or two copies. 6 It depends on if I have adequate paper with me. I 7 sign one copy under my name. I have the driver 8 operating the commercial vehicle sign for the driver. 9 They are issued their copy, the driver is for the 10 motor carrier, and normally at the end of business -- 11 MR. RETTICH: I'm going to object to what 12 he normally does. It might be very probative, but 13 it's not evidence of what occurred on this particular 14 day at this particular time. If he has some 15 independent recollection that he in fact printed two, 16 the driver signed one and he signed the other one, 17 it's fine, but I don't think he knows. He may have a 18 standard normal procedure for performing, but I don't 19 think he knows what he did on 12/21/06 with this 20 particular stop. 21 THE ATTORNEY EXAMINER: I'll overrule 22 that objection. I'm assuming that Mr. Barrett would 23 prepare this report in ways he would prepare similar 24 inspection reports. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 16 1 MR. RETTICH: Thank you. 2 Q. Did you give a copy of this report to the 3 driver in the case? 4 A. Yes, ma'am. 5 Q. Does it indicate that anywhere on this 6 report? 7 A. This is not the one that was actually 8 signed physically by the driver, but a copy was 9 received by the driver. 10 MR. RETTICH: That wasn't responsive. 11 THE ATTORNEY EXAMINER: Can you repeat 12 the question, Ms. Parrot? 13 MS. PARROT: May we have the question and 14 answer read back. 15 (Record read.) 16 THE ATTORNEY EXAMINER: Mr. Rettich, 17 you're objecting? 18 MR. RETTICH: I'm objecting because the 19 question was is it on this report that was given to 20 the driver, and that's not what he responded to. He 21 said it was, but he didn't say whether it was on the 22 report or not. 23 THE ATTORNEY EXAMINER: Can the court 24 reporter read the answer back again. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 17 1 (Record read.) 2 THE ATTORNEY EXAMINER: Mr. Rettich, your 3 objection is. 4 MR. RETTICH: My objection, the question 5 was: Where on this form does it show the driver 6 received it. That was the question, I believe. 7 MR. WRIGHT: Your Honor, maybe we can cut 8 to the chase on this. Is Mr. Rettich willing to 9 stipulate the driver received a copy of the report? 10 MR. RETTICH: No, I'm not. 11 MR. WRIGHT: On that basis I would note, 12 your Honor, it has not been brought to the attention 13 of anyone here that's been the case lo these 15-plus 14 months. 15 MR. RETTICH: I understand. 16 MR. WRIGHT: Which has been excessive. 17 In any event, the inspector is certainly entitled to 18 respond whether or not he gave a copy of the report 19 to the driver. 20 MR. RETTICH: Your Honor, I don't dispute 21 that. 22 Can you read the question asked by the 23 prosecutor one more time for the judge. 24 MR. WRIGHT: Your Honor, we will withdraw ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 18 1 the question and ask a different question. 2 Q. (By Ms. Parrot) Officer, did you give a 3 copy of the report to the driver at the time of the 4 inspection? 5 A. Yes. 6 Q. Did you send a copy of the report to the 7 Commission? 8 A. Yes. It's uploaded mechanically. 9 Q. Is that done at the time of the 10 inspection? 11 A. It can be. I may have waited until the 12 end of the day. 13 Q. Thank you. I'd like to direct your 14 attention back to Staff Exhibit 1, your inspection 15 report, and have you sort of walk us through this 16 document. Would you please begin with the 17 information appearing in the top right corner of the 18 report? 19 A. Top right corner again identifies the 20 report number, which identifies me as the inspector, 21 the inspection date 12/21/2006, the time, start time, 22 end time, it was a level 2 walk-around inspection 23 consisting of a bulk HazMat. 24 Q. What does a level 2 inspection involve? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 19 1 A. Level 2 is inspecting the driver, his 2 documents, and anything that can be visibly inspected 3 during a physical walk-around of the vehicle. You 4 don't get a creeper out. You don't got underneath 5 the vehicle. You don't check brakes, things like 6 that. 7 Q. What does the next section of the report 8 shows us? 9 A. The left side is the carrier information 10 which is generated by typing in the USDOT number, 11 which is taken off the side of the commercial 12 vehicle. That is not physically entered in by 13 myself. It automatically appears by entering the DOT 14 number. On the right side of that same section is 15 the driver's license and driver identification which 16 was obtained off of the driver's CDL. 17 Q. And moving further down, what does the 18 next section there show? It shows Location. Do you 19 see that? What does that show us? 20 A. That the inspection was in fact conducted 21 at the Preble County scales that is located on 22 Interstate 70 at approximately mile post 1. It gives 23 a bill of lading number for the load that was last 24 transported within the cargo tank; that the driver ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 20 1 had started or originated prior to me stopping him 2 from Indianapolis, Indiana, was en route to 3 Middletown, and the original load that was on here 4 for the shipping paper No. 0526986 originated from 5 Teppco, Todd Hunter loading rack in Middletown. 6 Q. And what type of cargo was involved in 7 this case? 8 A. Liquified petroleum gas. 9 Q. And does that go by any other name? 10 A. Propane. 11 Q. Thank you. Moving further down on our 12 report, there's a section headed Vehicle 13 Identification. Do you see that? 14 A. Yes, ma'am. 15 Q. Would you please tell us what that shows 16 us? 17 A. It describes the physical makeup of the 18 vehicle. It was a combination vehicle, semi-tractor, 19 truck tractor Freightliner, the year, the license 20 plate number, the company assigned unit number, and 21 the vehicle identification number, identifies the 22 semi-trailer involved, Lubbock 1969, and the license 23 plate number on it, and the company unit number 24 identifying it. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 21 1 Q. And how can you obtain that information? 2 A. I make a note of the physical walk-around 3 the vehicle on a notepad and I verify it with a 4 certification of registration. 5 Q. And the next section headed Brake 6 Adjustments, do you see that? 7 A. Yes. That is something that's completed 8 during a level 1 inspection so it's not applicable 9 during a walk-around. 10 Q. Thank you. All right. Next we have the 11 Violations section. Would you please explain that to 12 us? 13 A. Based on defects noted on the 14 walk-around, I applied the applicable Code of Federal 15 Regulations, either the HazMat regulation or the 16 Federal Motor Carrier safety regulation and then type 17 in an example under violation description. 18 Q. And the other information in this 19 section, explain the section code. What is the unit? 20 A. Units No. 2 would be the semi-trailer. 21 Unit No. 1 is the truck tractor. OSS indicates it 22 was yes or no placed out of service as a result of 23 the defects or the inspecting. This was no. The 24 citation column is something, for instance, if the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 22 1 Highway Patrol would issue a physical citation to the 2 driver, we would indicate the citation number on 3 there. To verify yes or no would be if they actually 4 had an out-of-service violation and if it was 5 verified repaired at the scene or not, so, again, no 6 on all of those, and whether or not they were 7 precrash, post crash, it is not applicable in this 8 instance. 9 Q. What violations did you find as a result 10 of your inspection? 11 A. I cited a marking violation on the cargo 12 tank for failing to display the month and the year 13 for the five-month certification test on the pressure 14 and the internal visual inspection. 15 MR. RETTICH: I object. I believe the 16 witness just misspoke. He said month. I think he 17 meant year. I'm just trying to keep the record 18 straight. 19 THE ATTORNEY EXAMINER: Can we please 20 have that read back, that response? 21 (Record read.) 22 Q. Did you mean the five-year inspection, 23 officer? 24 A. Right. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 23 1 THE ATTORNEY EXAMINER: That's fine, 2 thank you. 3 MR. WRIGHT: Thank you. 4 Q. What other violations also did you find? 5 A. A couple minor lighting violations and 6 intermediate turn signal, which also then is to 7 operate as a hazard lamp, an inoperative stop lamp 8 and -- 9 MR. RETTICH: Your Honor, I am going to 10 object because they don't have a relationship to why 11 we're here. We're only here as to the 180.415(b) 12 violation. 13 THE ATTORNEY EXAMINER: I'll admit that 14 testimony anyway. Granted, your point is noted. 15 MR. RETTICH: Thank you. 16 Q. Officer, I'd like to talk about your 17 inspection of this vehicle. Would you please 18 describe for us how you first encountered the 19 respondent's vehicle on December 2, 2006? 20 A. I was inside the platform scale facility, 21 which is facing north, glass front. Commercial 22 vehicles entering Ohio on Interstate 70 eastbound are 23 required to roll through the scale. The vehicle 24 rolled, this vehicle in question rolled through the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 24 1 scale, saw that it was a hazard material cargo tank. 2 Q. How did you know it was a hazardous 3 material tank? 4 A. The physical makeup of the tank itself, 5 knowing what is transported within that type of a 6 vessel and the placards and the markings as far as a 7 UNID markings that were displayed on it. The 8 specification testing markings are to be on the 9 barrel itself right by the specification plate, and I 10 saw that there were some markings and dates missing 11 on this particular truck as it rolled through. 12 Q. How far were you from the respondent's 13 vehicle? 14 A. As it crossed in front of me? 15 Q. As it crossed in front of you. 16 A. Within four feet four or five feet. 17 Q. Did you have a clear view of the testing 18 and inspection markings from your position? 19 A. Yes. 20 Q. Why did you choose to stop the 21 respondent's vehicle? 22 A. As I said, when it rolled through the 23 scale, I saw the specification plate, and I saw that 24 it had an annual one-year test date marks. V and K ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 25 1 were clearly visible. The next line down below that 2 had 03 and then an IPW, and I really wasn't sure what 3 that indicated so I activated the red light to bring 4 the vehicle around to further investigate that. 5 Q. And what did you do next? 6 A. I don't know if I instructed the driver 7 or the load limit inspector inside, but we instructed 8 the driver to pull back behind the building and went 9 outside and made contact with the driver and 10 initiated the inspection process. 11 Q. And what did that inspection involve? 12 A. Contacting the driver, obtaining 13 identification, driver's license or commercial 14 driver's license, medical certification, shipping 15 paper, emergency response information, logbook, if he 16 is so filling one out, depending on the scope of the 17 carrier's operation, and permit book for the truck, 18 tractor and the company HazMat permits they're 19 required to maintain. 20 Q. And at that point -- I should say -- 21 strike that. When did you notice that the inspection 22 markings were not as they should be? 23 A. That was -- 24 MR. RETTICH: Asked and answered. I ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 26 1 believe he already testified that he noticed it when 2 he was standing inside the scale building 3 approximately four or five feet away from the truck 4 as it drove by. 5 MS. PARROT: I'll rephrase. 6 Q. During the inspection did you verify that 7 your initial interpretation of the markings was 8 correct? 9 A. Yes. 10 Q. Did you have a conversation with the 11 driver during the inspection about the marking 12 violation that you noted? 13 A. From December 2006 I don't recall. I'm 14 sure there was some discussion. Obviously, you 15 exchange in communication, but I don't recall, I 16 can't tell you exactly what was said in 2006. 17 Q. Do you recall anything that the driver 18 may have said to you? 19 A. No, I can't, ma'am. 20 Q. Did you ask the driver for any proof that 21 the required tests had been completed on this 22 vehicle? 23 A. In going through the permit book, some 24 companies will have test report forms that are ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 27 1 required to be filled out when the inspector actually 2 does the tests that are required. The motor carrier 3 is not required to maintain those in or upon the 4 commercial vehicle, but this driver did have the 5 annual test report forms within the vehicle. At some 6 point, I don't remember if they were in the permit 7 book or not, so the V and K markings on the tank were 8 consistent with the test report forms that he did 9 have in his position, but he had nothing as I recall 10 for the five-year test. 11 Q. Did the driver, do you recall, explain 12 why he had proof for some testing but not other 13 testing? 14 MR. RETTICH: Again, your Honor, it's 15 already been asked and answered. He can't recall. I 16 think that's been asked twice., this would be the 17 third try. 18 THE ATTORNEY EXAMINER: I'll agree to 19 your objection. 20 Q. Officer Barrett, are you familiar with 21 the test and inspection requirements for cargo tanks 22 that are constructed in accordance with the USDOT 23 certification that carry hazardous materials? 24 A. It's quite large, but, yes, I am. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 28 1 Q. Was the respondent's cargo tank 2 constructed in accordance with the USDOT 3 certification? 4 A. The tank was a DOT certification 5 331 cargo tank. 6 Q. How do you know that? 7 A. It's displayed on the certification plate 8 which the manufacturer attaches when the vehicle or 9 vessel is manufactured. 10 Q. And you've mentioned various types of 11 testing today. What type of testing specifically is 12 required for the MC331 cargo tank driven by the 13 respondent? 14 A. It's required to have an annual external 15 visual inspection. 16 MR. RETTICH: Again, your Honor, there's 17 no dispute that that was valid and that's not the 18 violation that we're here to hear. 19 THE ATTORNEY EXAMINER: I'll overrule 20 that. I think the officer is giving some background 21 as far as what types of tests overall are required 22 for the tank. 23 MR. RETTICH: I understand thank you. 24 THE ATTORNEY EXAMINER: I'll let the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 29 1 officer continue. 2 A. The external visual inspection and the 3 leak test are required annually on a 331. And then 4 once every five years is required to have a pressure 5 test, and if it has a manway or opening that allows 6 an inspector to gain access to the internal, it's 7 required to have an internal visual inspection every 8 five years also. 9 Q. When a test is due but not yet been 10 completed on the cargo tank, may the cargo tank be 11 filled and offered into transportation? 12 A. Once the tank test becomes due it may not 13 be refilled. 14 Q. May it be transported under those 15 circumstances? 16 A. If it was filled prior to the expiration. 17 Q. Thank you. And how did you know what 18 types of frequency of testing were required for this 19 particular cargo tank? 20 A. There's a section, obviously, that spells 21 out for each individual cargo tank, specification 22 tank what tests and the interval that are required, 23 by basically knowing, having knowledge having done 24 this for a few years what is required, which tests ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 30 1 are required. 2 Q. Are you familiar with the properties of 3 propane? 4 A. I'm not a chemist but, yes, somewhat. 5 Q. Is propane classified as a hazardous 6 material under the hazardous material regulations? 7 A. Yes, it is. 8 Q. And why is that? 9 A. It's a level 5 petroleum gas and has -- 10 MR. RETTICH: Your Honor, I appreciate, 11 I'm sure he has a vast knowledge about propane. We 12 are getting far afield. The violation -- the only 13 section we're addressing is 180.415(b), and propane 14 may be a hazardous material; we don't dispute that. 15 It's been testified the vehicle was properly 16 placarded. I'm not sure why we are getting into the 17 properties of propane. I'm just trying to keep it 18 brief. 19 MS. PARROT: Your Honor, I just trying to 20 lay the background why the cargo tank is required to 21 be marked in the first place. 22 THE ATTORNEY EXAMINER: I'll let 23 Ms. Parrot continue. 24 MS. PARROT: Can we have the question and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 31 1 answer reread, please. 2 (Record read.) 3 Q. Would you please finish your answer. 4 A. A liquified petroleum has a high tendency 5 for explosion. It's flammable. It's under extreme 6 pressure. You know, within that tank it's 7 pressurized condensed down to a liquid, but actually 8 when it comes out in the environment it's a vapor, 9 which is highly flammable and will explode. 10 Q. So why are these pressure and other types 11 of tests required on a cargo tank that's carrying 12 propane? 13 MR. RETTICH: Your Honor, objection. 14 Again I don't know if he knows why it is required, 15 and, again, I don't think it makes any difference and 16 it's just not relevant. 17 MR. WRIGHT: It's highly relevant, your 18 Honor. The issue goes to the marking of the vessel 19 itself, and certainly the witness is entitled to as 20 background to explain why that regulation is 21 important to be adhered to. That goes to the heart 22 of the matter. 23 MR. RETTICH: Your Honor, I'd like to 24 respond to that. The regulation exists. It was ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 32 1 either in compliance or it wasn't. There's not 2 dispute about what this in fact was. The officer 3 pulled up the DOT number. He has stated that it was 4 properly placarded as a hazardous vehicle containing 5 propane. I think that has already been admitted in 6 Staff Exhibit 1, OH3210, and I just don't know where 7 we're going with this, but I'll be quiet and let them 8 ask what they want. 9 THE ATTORNEY EXAMINER: I'll let 10 Ms. Parrot continue, but, again, your comments are 11 noted. 12 Please continue. 13 Q. You may answer the question. 14 THE WITNESS: I'm sorry, I have to 15 request you to read that again. 16 (Record read.) 17 A. The whole intention is to ensure that the 18 tank is loaded, that the material is transported from 19 Point A to Point B without any unintentional release 20 of product in the environment, and to minimize, you 21 know, the loss of life or property damage if 22 something were to go wrong. 23 Q. So does this testing go to the integrity 24 of the cargo tank? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 33 1 A. Yes, it does. 2 Q. Under what circumstances is a cargo tank 3 required to have the test and inspection markings? 4 A. Well, when the vessel is manufactured, it 5 is given a spec plate which tells when that tank was 6 certified as a specification tank, and then one year 7 after that it's required to have a leak test and the 8 external, and then five years from the original 9 certification date it's required to have the internal 10 and the pressure test done. 11 Q. And at what -- 12 A. And then every 12 months thereafter on 13 the VK or the one year annual test and every five 14 years continuing with the pressure and the internal 15 visual. 16 Q. And so at what point are the markings 17 required? 18 A. The inspector, once he completes the 19 required tests, is required to mark the tank 20 accordingly. 21 Q. And are the markings updated after the 22 new test is completed? 23 A. That is the intention of the requirement, 24 yes, that they are updated. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 34 1 Q. Is the cargo tank required to have these 2 markings even if it's containing a residue amount of 3 the hazardous material? 4 A. Yes. 5 Q. Are there any exemptions from this 6 marking requirement found in the hazardous material 7 regulations? 8 A. There are none for this that I'm aware 9 of. 10 Q. And why are these markings required in 11 the first place? 12 MR. RETTICH: Objection. I think that's 13 already been asked and answered, too. I just can't 14 not object again. We have been through why the 15 markings are required. It's been asked and answered. 16 MS. PARROT: I think we discussed why the 17 testing is important and required. I'm now 18 addressing the markings. 19 THE ATTORNEY EXAMINER: I'll let 20 Ms. Parrot continue. 21 A. As the vehicle is in transit, it allows 22 an inspector, such as myself, that observes that tank 23 to be able to identify if it is being maintained to 24 the specifications to which it was originally ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 35 1 manufactured. 2 Q. And what risk, if any, if the markings 3 are not there? 4 A. Well, it would lead again to making the 5 assumption if the markings aren't there that maybe 6 the tests weren't done. 7 Q. By visually inspecting the exterior of 8 the tank alone could you determine whether the 9 required pressure and internal visual testing had 10 been completed? 11 A. Someone could mark the tank, but you 12 would not at that point really be able to ascertain 13 if they in fact performed the test. 14 Q. Could you determine there might be a 15 problem with the cargo tank by an exterior visual 16 inspection alone? 17 A. No, not necessarily. 18 Q. Would you please tell us how the cargo 19 tank is required to be marked under the hazardous 20 material regulations? 21 MR. RETTICH: Objection. The law speaks 22 for itself. We would just be hearing his 23 interpretation of the law. 24 THE ATTORNEY EXAMINER: Do you have any ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 36 1 additional comments? 2 MS. PARROT: Your Honor, he's out there 3 in the field interpreting and applying these 4 regulations. That what he does as part of his job. 5 THE ATTORNEY EXAMINER: Again, your 6 question was? 7 MS. PARROT: How a tank is required to be 8 marked. If he's required in the field as part of his 9 job to be able to -- I can rephrase. 10 THE ATTORNEY EXAMINER: Okay, please do. 11 Q. What is your understanding of how a cargo 12 tank is required to be marked? 13 A. A tank that passes the annual test is to 14 be marked with the letter V and the letter K, which 15 would be the V is external visual, K would indicate 16 the leak test, and then the month slash, dash or 17 however want to break it, month and year that that 18 test was completed and the tank was returned to 19 service. 20 And then for the internal visual and the 21 pressure it would be marked with an I for internal, P 22 for pressure, and once again with the month and the 23 year in which it successfully passed the test and was 24 returned to service. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 37 1 Q. Is there a size requirement for these 2 markings? 3 A. There is. I would have to double-check 4 what exactly that is, if I may. 5 Q. But there is a minimum size requirement. 6 A. Yes. I think it's an inch and 7 three-quarters, I'm speculating. I would have to 8 look at the regulation. 9 Q. And how about the location for the 10 markings, is there a requirement for the location? 11 A. Yes. 12 Q. And what is that requirement? 13 A. There's a specification plate, as we 14 previously discussed. It's attached or affixed to 15 the tank when it's manufactured. The test date 16 markings are required to be displayed in relation to 17 that spec plate, or it is permitted to be displayed 18 on the head of the tank. 19 Q. So that's an either/or requirement, 20 either on the spec plate or on the front head. 21 A. That's right. 22 Q. Am I understanding correctly? 23 A. That's right. 24 MR. RETTICH: Your Honor, I believe ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 38 1 that's a misstatement. I think specifically it's 2 near, but I would have to actually read the statute. 3 It's not on. The prosecutor used the word -- 4 MS. PARROT: I'm sorry, near the spec 5 pale or on the front head. 6 Q. Is that the correct? 7 A. That is my interpretation. 8 THE ATTORNEY EXAMINER: Thank you. 9 Q. How about in terms of the readability of 10 the markings, is there any requirement in that 11 respect? 12 A. The markings are simply required. Again, 13 it's my interpretation that once they're affixed by 14 or attached by the certified inspector when they 15 completed the test, that they are durable, that they 16 are legible, that they're able to withstand the 17 environment changes and climate, temperature and 18 washing the tank and so on. They need to be able to 19 be legible so I can look at those going down the road 20 and ascertain if they are current or not. 21 Q. You mention that the test markings must 22 be either near the specification plate or on the 23 front head of the cargo tank. Did you inspect both 24 of those areas of the respondent's vehicle? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 39 1 A. Yes, I did. 2 Q. Did you take any photographs during your 3 inspection of the responsibility's vehicle? 4 A. Yes, I did. 5 Q. In your packet of exhibits you have what 6 has been marked for the purposes identification as 7 Staff Exhibit 2. Would you please find that. 8 A. I have a 2-A. 9 Q. Yes, thank you. 10 MS. PARROT: I'm sorry. For 11 clarification Staff Exhibit 2 is divided into 12 subparts A through G. 13 MR. RETTICH: The photos are 2-A through 14 2-G. 15 MS. PARROT: 2-A through 2-G and everyone 16 has copies of the photographs marked as Staff 17 Exhibit 2-A through 2-G for the record. 18 MR. WRIGHT: Your Honor, for the record, 19 I would note that the inspection report and the 20 photographs were previously provided to Mr. Rettich 21 pursuant to his request. 22 MR. RETTICH: That is correct, your 23 Honor. I only received black and whites. These are 24 extremely nice colors, but I would certainly admit ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 40 1 that I previously have received these. 2 MR. WRIGHT: The black and whites were 3 all that were available to timely comply with 4 counsel's request. 5 MR. RETTICH: Thank you. 6 THE ATTORNEY EXAMINER: All right, please 7 continue. 8 Q. (By Ms. Parrot) Officer Barrett, do you 9 recognize Staff Exhibit 2? 10 A. Yes, I do. 11 Q. A through G? 12 A. Yes. 13 Q. Would you please identify Staff Exhibits 14 2-A through G for us? 15 A. 2-A is the right side of the cargo tank 16 in question, which would be the side that was visible 17 as it passed through the Preble County platform 18 scale. 19 Q. Let me start with that. When were those 20 photographs taken? 21 A. The camera has an automatic time and date 22 stamp with the photos. It is 12/21/2006 at 23 10:35 a.m. 24 Q. Was they taken during the course of the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 41 1 inspection of respondent's vehicle? 2 A. Yes. 3 Q. Do these photographs fairly and 4 accurately depict the respondent's vehicle and its 5 test markings as they appeared at the time of your 6 inspection? 7 A. Yes. 8 Q. And, again, what does Staff Exhibit 2-A 9 depict? 10 MR. RETTICH: Objection, it speaks for 11 itself, your Honor. 12 THE ATTORNEY EXAMINER: I'll let 13 Ms. Parrot continue. 14 A. 2-A is again the right side of the cargo 15 tank itself, the barrel, so to speak, which would 16 have been the visual that I would have had as it 17 crossed through the scale. 18 Q. It looks like there's different markings 19 here that we're seeing in this photograph. Would you 20 please explain what they are? 21 A. Let's start on the right side. There's a 22 white decal with black ink on it, and it has a red 23 part that's sticking out from underneath of that. 24 That would be the periodic annual inspection required ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 42 1 by part 396, deals with the chassis itself. Below 2 that would be the specification plate that was again 3 put on or welded or affixed when the barrel was 4 manufactured. Below that, you know, you have a 5 close-up, looks likes the ASME plate. That's what it 6 appears to be, which again was affixed the same time 7 the vessel was manufactured. 8 Going back to the top left, test date, 9 periodic inspection, month No. 9, year 06, type of 10 tests performed, V and K, which would indicate that 11 the external visual and leak test was conducted on 12 9/06. 13 Q. In your opinion does that marking that 14 you just described satisfy the markings requirement 15 of the hazardous material regulations? 16 A. As I interpret them, yes. 17 Q. And below that? 18 A. And below that is a marking, the letter 19 QT, which would indicate that the tank was quenched 20 and tempered during its manufacturing process. 21 And below that is the letter or the 22 number 03 followed by the letters P and I and W. 23 Q. And how do you interpret that last 24 marking that you just mentioned? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 43 1 A. The P would indicate the pressure test. 2 I'm assuming or making an assumption here. The I 3 would be the internal visual. The W, I really have 4 no idea what that stands for, and the 03, one would 5 speculate that that was the year. But I really -- 6 again I'm speculating. 7 Q. To your knowledge does the W have any 8 meaning under the hazardous material regulations? 9 A. Not in part 180 that I'm familiar with. 10 Q. And what about what appears to be a 11 smudge, I guess you could call it, to the left of the 12 03 in the photo. What do you make of that? 13 A. It appears that at one point there may 14 have been a number 2 there. It looks like it may 15 have been scratched off. Its looks like there's some 16 scratches in and around that. 17 Q. But you're not sure? 18 A. I would be speculating. I really don't 19 know. 20 Q. In your opinion does this marking, the 03 21 PIW, comply with the pressure and internal visual 22 inspection markings requirement under the hazardous 23 material regulations? 24 MR. RETTICH: Your Honor, I object. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 44 1 Obviously that's the case or we would not be here. 2 MR. WRIGHT: He's entitled to answer the 3 question. 4 THE ATTORNEY EXAMINER: Right, let the 5 answer officer. 6 A. No, it does not comply. The month is 7 missing. If I was to assume that is 2003, the month 8 would be missing. 9 Q. Did you note that finding anywhere in 10 your inspection report? 11 A. Which was -- yes, I did. The 180 12 citation or notation on the inspection is what that's 13 for. 14 Q. Officer, would you please direct your 15 attention to Staff Exhibit 2-B, the next photograph. 16 MR. RETTICH: Your Honor if it would save 17 time, I would stipulate to the admissibility of 18 Exhibits 2-A through G. 19 MR. WRIGHT: Give us one minute, your 20 Honor. 21 (Discussion off record.) 22 MS. PARROT: We have one question about 23 one of the photos we would like to address, but 24 that's fine. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 45 1 MR. WRIGHT: We otherwise accept the 2 stipulation. 3 MR. RETTICH: All right. 4 THE ATTORNEY EXAMINER: All right. 5 Please go ahead. 6 Q. (By Ms. Parrot) Officer, direct your 7 attention to what has been marked as Staff 8 Exhibit 2-F for identification purposes. 9 A. Okay. 10 Q. Would you please just briefly tell us 11 what this photo depicts? 12 A. In the photo I'm giving you a view from 13 the rear towards the front of the cargo tank, vehicle 14 in question. 15 Q. Is there anything you would like to note 16 for the record about this photograph? 17 A. I apparently have a typo in the license 18 plate digits. The last digit on the license plate 19 number is actually a 3, and on my inspection I noted 20 it -- it's a 3 on the inspection report. It's 21 technically a 2 actually on the vehicle. 22 Q. And what is your explanation for that? 23 A. Not known for my clerical skills, 24 obviously a typo. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 46 1 Q. Thank you. 2 THE ATTORNEY EXAMINER: That being said, 3 Mr. Rettich, you're stipulating to the rest of the 4 photographs? 5 MR. RETTICH: Yes, I am. 6 THE ATTORNEY EXAMINER: That's fine. 7 If we can go off the record for a minute, 8 please. 9 (Recess taken.) 10 THE ATTORNEY EXAMINER: Back on the 11 record. 12 MS. PARROT: I think we have just one 13 further to sort of wrap things up with Officer 14 Barrett. 15 Q. (By Ms. Parrot) We've talked at great 16 length about testing requirements and markings 17 requirements, and just to sort of summarize that, is 18 it your understanding under the hazardous material 19 regulations that a testing marking must be durably 20 and legibly, conspicuously displayed on the carrier 21 tank? 22 A. Yes, that is my interpretation. 23 MS. PARROT: Your Honor, we have no 24 further questions for this witness at this time, but ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 47 1 we would like to reserve the right to recall him, if 2 necessary, to offer rebuttal testimony. 3 THE ATTORNEY EXAMINER: That's fine. 4 That's granted. 5 Mr. Rettich, do you have questions for 6 the witness? 7 MR. RETTICH: Yes, I do, your Honor, 8 thank you. 9 - - - 10 CROSS-EXAMINATION 11 By Mr. Rettich: 12 Q. Officer Barrett, the propane tanker was 13 empty, wasn't it? 14 A. No, it wasn't. It still contained 15 residue and vapor of a hazardous material. 16 Q. I don't dispute that, but there's a 17 difference between a full tanker truck and one that's 18 empty. There may be some residual, and I think you 19 marked that down of propane. I don't dispute that, 20 but it's not full of propane, is it? 21 A. No, no. He had made a delivery. 22 Q. He had dumped the propane he was 23 carrying, and what remained would be the residual. 24 A. That's correct. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 48 1 Q. And that's why he didn't need to be 2 weighed. He was just rolling through the scale, 3 right? 4 A. Yeah. All trucks are required to roll 5 through, unless he had the prepass system, and I 6 don't recall if he had prepass or not. 7 Q. The driver was polite and cooperative. 8 A. As I recall, yes. 9 Q. He provided you everything you asked for. 10 A. Again, as I recall, yes. 11 Q. The real issue in this cause is based on 12 this photograph of Staff Exhibit 2-A, isn't it, 13 officer? 14 A. The test date marking on the five-year 15 test, yes. 16 Q. Exactly. Now, you don't dispute that all 17 these letters and numbers are near the welded affixed 18 permanent plate, do you? 19 A. No. It's right there, yes. 20 Q. It's right there. I believe what you're 21 disputing you believe there has to be some 22 designation for the month in front of this 03. 23 A. That's the requirement as I interpret the 24 regulation, yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 49 1 Q. And there is -- maybe I misread, but 2 there is a P denoting pressure right here, isn't 3 there, so there's no question that the P does exist? 4 A. Right, there's a letter P there. 5 Q. All right. When you first read your 6 OH3210 form, it actually says "failed to display a 7 letter 'P' and test date." There is a letter P 8 there, isn't there, officer? 9 A. Yes, there's a letter P. 10 Q. Do you see where it says: Specified 11 count, failed to display a letter P and test date. 12 There is a letter P, isn't there? 13 A. There is a letter P, yes. 14 Q. All right. What we're really disputing 15 is whether the month for the PIW is displayed, isn't 16 it? I think I've asked a question, but I'm just 17 trying to make it clear. There is a P? 18 A. That's correct. 19 Q. Okay. The W you're not familiar with in 20 Ohio's hazardous waste. I believe that's a Canadian 21 required marking. You have seen that before or you 22 never have? 23 A. I have never seen a W in relation or in 24 conjunction with the specification testing. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 50 1 Q. All right. Officer, did you contemplate 2 that 9/06 was the date of the periodic test as it's 3 properly displayed here, isn't it? 4 A. Yeah; that's prominently marked and 5 displayed. 6 Q. And you don't dispute that that's 7 completely valid? 8 A. With the limited knowledge that you have 9 on hand during a roadside inspection, yes. 10 Q. That's all you do have, is that limited 11 knowledge of looking at it. 12 A. Right. 13 Q. The lower test, the big black numbers are 14 the five-year test; is that correct? 15 A. You have the letters QT and below that, 16 one would believe that, yes, that is the five-year 17 test. 18 Q. Well, QT has to deal with how the tank is 19 tempered, isn't it? 20 A. Yes. 21 Q. And I think you went through it on 22 direct, but could you tell us why that QT is on 23 there? 24 A. A tank that when it was manufactured went ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 51 1 through the quenched and tempering process, it loses 2 the -- the steel loses it ability to fight off 3 corrosion, and so only propane or liquified petroleum 4 gas that is noncorrosive is allowed in the quenched 5 and tempered tank. That's why the QT is important. 6 We would want to make sure that the shipping paper 7 indicated noncorrosive and that it was in a proper 8 tank. 9 Q. So QT would be appropriate for propane 10 liquified petroleum gas? 11 A. Noncorrosive. 12 Q. Well, it would be a noncorrosive gas but 13 liquified petroleum. 14 A. Yes. Right, it would only be the 15 noncorrosive. If you have a corrosive in there, it 16 would be a -- 17 Q. Violation. That's why the QT is on 18 there. Now, 03 you believe is the year. 19 A. One would make that assumption or could 20 make that assumption. 21 Q. All right. And the P and the I, what are 22 those two? 23 A. Again, with the W there, I guess I was -- 24 you, know I'm thrown. A P and I standing alone would ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 52 1 indicate the pressure test on the vessel and the 2 internal visual inspection. 3 Q. And you're just unfamiliar with the W. 4 A. Right. 5 Q. Officer, when the test is done, at some 6 point every -- annually, in this particular case, 7 this tank would be inspected every the -- the ninth 8 month of every year. 9 A. Based on that marking there, it would be 10 due for testing prior to October 1, 2007, yes, you 11 are correct. 12 Q. Okay. So I think I'm beating this to 13 death, but every September that annual inspection 14 would have to be done. 15 A. Or it could not be loaded prior to 10/1. 16 Q. Okay. It would be valid up to October. 17 A. Correct. 18 Q. Okay. Every five years the P and I test 19 is required; isn't that correct? 20 A. Yes, sir. 21 Q. And aren't those tests normally done at 22 the same -- wouldn't that test also be done in 23 September? 24 A. No, that's not necessarily true. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 53 1 Sometimes there are circumstances that would cause it 2 to be done differently. 3 Q. In general the tests are done 4 simultaneously? 5 A. A motor carrier I would say, yes, because 6 a motor carrier would want to eliminate the downtime 7 for that unit. 8 Q. In this particular case couldn't the 9/06 9 also be 9/03 PIW? 10 MS. PARROT: Objection, your Honor, calls 11 for speculation. 12 MR. RETTICH: Your Honor, we've asked 13 this person many speculative questions. I guess I 14 could restate it in his opinion, but I believe it's 15 an admissible question he can answer. 16 MS. PARROT: I'll let him answer. 17 MR. WRIGHT: Could we have the 18 question -- I don't believe you even completed the 19 question. Could we have it read back. 20 MR. RETTICH: I think I did but maybe I 21 didn't. Could we have the question read back, 22 please. 23 (Record read.) 24 A. Yeah, it could be. It could be any ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 54 1 number 1 through 10 or 1 through 11 or 1 through 12. 2 I mean, one person looks at it, it's black and one 3 person looks at it, it's gray. Yeah, it could be; it 4 may not be. 5 Q. All right. 6 A. I would be assuming either way. 7 Q. All right. The 9/06 is immediately 8 adjacent to the QT 03 PIW. 9 A. Yes. 10 Q. Officer, isn't it possible that at one 11 point there may have been a 2/03, but when the tank 12 was certified, they did it in September so the tank 13 wouldn't have that double downtime? 14 MS. PARROT: Objection. Again, calling 15 for speculation. 16 MR. RETTICH: He can answer if he knows. 17 A. Could the P and I have been done in 18 conjunction? 19 MR. WRIGHT: Wait, your Honor, excuse me. 20 The question was not phrased "do you know." The 21 question was phrased "isn't it possible that" or 22 something to that affect. If counsel would like the 23 rephrase the question. 24 MR. RETTICH: I will rephrase it, your ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 55 1 Honor. 2 Q. You had previously mentioned there's a 3 space beyond the 03 where there appears to have 4 perhaps been a number. 5 A. Yes. 6 Q. That's your opinion. 7 A. Something was there. There is some type 8 of smudge or something there, yeah. 9 Q. You thought it was a 2. 10 A. Could have been a 2. 11 Q. And that 2 was -- 12 A. You thought it was a 9. 13 Q. It could have been a 9. It could be a 14 2 or 9, but whatever it was, it was removed. 15 A. It's not there, yes. It's absent. 16 Q. In fact, it could originally have been a 17 2 and then perhaps have been a 9. 18 A. It could have been. 19 Q. We don't know, do we? But there is a 9 20 immediately above that, isn't there, officer? 21 A. On the V and K there is a 9. 22 Q. And that 9 would denote the month of 23 September. 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 56 1 Q. It actually has a little MO in front of 2 it. 3 A. Yes. 4 Q. As you can see here, this actually -- the 5 periodic test is a preprinted sticker that you then 6 stick these dates onto, isn't it officer? 7 A. That's the format that they chose, yes. 8 Q. There is no preprinted format for the 9 five-year test, is there? 10 A. You mean a different stand-alone decal? 11 Q. Exactly. 12 A. No, not that I'm aware of. 13 Q. What you believe in your professional 14 opinion to be wrong with the decaling on this tanker 15 is the lack of what you believe is a month for the 16 five-year test. 17 A. That's correct. 18 Q. You don't have any problem with the 19 denoting of the 03 as the year being 2003. 20 A. No, sir. 21 Q. Why aren't you required to put 2003? Why 22 are you allowed to only put 06 or 03? 23 A. I have no idea. 24 Q. That's how everyone does it. You must -- ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 57 1 MR. WRIGHT: Objection to the 2 characterization. 3 Q. Officer, you see literally hundreds of 4 these, don't you? 5 A. I see them daily, yes. 6 Q. Well, you've seen hundreds. 7 A. In the course, yes, I would say yes. 8 Q. Well, I guess I'm trying to find out some 9 things. I only see them have the last two digits. 10 Do you see them have like 2006 or 2003? 11 A. No. Most of them only have the last two 12 designations. 13 Q. Okay. I have a couple more questions 14 just because I'm trying to learn things here and I 15 want to make the record straight. When something 16 says 9/06, the picture you took on 12/21/06, when it 17 says 9/06 up on the periodic test, that means it's 18 valid for at least one year from that date, 9/06. 19 A. Yes. 20 Q. And you take it that 9/06 means September 21 of 2006. 22 A. Yes. 23 Q. And then the next connotation is 03 PIW, 24 and that would be 2003. That's when the actual P/I ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 58 1 test would have been performed without dispute, 2 sometime in 2003? 3 MS. PARROT: Objection. 4 A. Again, I -- 5 MR. WRIGHT: There's an objection 6 pending. 7 MS. PARROT: Your Honor, I believe 8 Mr. Barrett has testified previously that he did not 9 know what this 03 PIW marking represents. 10 MR. RETTICH: That is not true. He 11 explained what the P and I meant. I don't think he 12 knew what the W meant. I think we are pretty much in 13 agreement the 03 is the year 2003. I don't know. 14 That's what I'm eliciting from him. 15 MS. PARROT: I believe on his direct 16 testimony he said that he does not know what it 17 represents and that he's only -- only can possibly 18 speculate what it may mean. 19 THE ATTORNEY EXAMINER: Mr. Rettich, what 20 was your question again at this point? 21 MR. RETTICH: Well -- 22 THE ATTORNEY EXAMINER: Can you restate 23 it? You kind of lost me. 24 Q. Below the periodic inspection, the actual ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 59 1 placard up there, there's a Q and T, right? 2 A. Above the -- 3 Q. Above the PIW. 4 A. Say that again? You said something QT. 5 Q. The QT, that means quench test, right? 6 A. Correct. 7 Q. And below the quench test to the left a 8 little bit is the numeral 03. 9 A. Yes. 10 Q. Now, we're pretty sure that there was 11 something beyond the 03, but we're just not sure what 12 it is. 13 A. Yes. 14 Q. And then it says PIW. 15 A. Yes. 16 Q. This 03 would represent, to the best of 17 your knowledge or your professional experience, the 18 year 2003. Or are you maintaining you don't know 19 what it means? I'm just asking. 20 A. Well, one would speculate that's what it 21 means. 22 MR. RETTICH: I have no other questions. 23 Thank you for your candor and honesty, officer. 24 THE ATTORNEY EXAMINER: Mr. Wright or ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 60 1 Ms. Parrot? 2 MR. WRIGHT: Can we have a minute or two? 3 THE ATTORNEY EXAMINER: Yes. Off the 4 record for a minute. 5 (Recess taken.) 6 THE ATTORNEY EXAMINER: Back on the 7 record. 8 MS. PARROT: Your Honor, just a few more 9 questions for this witness. 10 THE ATTORNEY EXAMINER: Okay. 11 - - - 12 REDIRECT EXAMINATION 13 By Ms. Parrot: 14 Q. To clarify the record, could you please 15 explain what the QT marking on this cargo tank 16 represents. 17 A. The QT represents when the tank was 18 manufactured, the tank went through a process were it 19 was quenched and tempered. I'm not a metallurgist, 20 and I don't even want to go that path. That 21 indicates to me that the process was done and now 22 that tank is more susceptible to corrosion so the 23 contents that are placed in it, be it petroleum gas, 24 has to be the type that is noncorrosive by nature. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 61 1 Q. Does that refer to any type of testing 2 that was done on this cargo tank? 3 A. Just the manufacturing process, nothing 4 to do with the annuals or year or any type of 5 recurrent testing. 6 Q. Thank you to for that clarification. 7 Returning to the 03 PIW marking, in your 8 understanding of the regulations can you conclusively 9 say this complies with the markings requirement of 10 the 180.415 of the hazardous material regulations? 11 A. In my opinion it does not because there's 12 no indication of the month and the year that the P 13 and I five-year specification test was completed. 14 Q. Over your many years of experience, how 15 do you find that most cargo tanks are marked? 16 A. Most of them are marked in conjunction 17 with the spec plate, like the V and K is, but they're 18 marked so they're easily understandable, legible. 19 You can look at them, and as long as you can do a 20 quick math calculation before the tank clears the 21 scale pad, you can ascertain if they're expired or 22 not. Most all of those are marked with two numbers. 23 If it's January, the number would be 01, 02, and 24 normally a slash or a dash or a 03, 04, 05 depending ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 62 1 on what year it was completed. 2 Q. In fact, the regulations set out examples 3 of proper markings; is that correct? 4 A. It's just incorporated with that section. 5 It gives examples, yes. 6 Q. Is there any reason to connect the 7 periodic inspection markings at the top of the photo 8 there, the month 9 and 06 with the 03 PIW marking? 9 A. I don't know exactly what you're asking. 10 Connection? 11 Q. Is there any reason to believe that the 12 periodic inspection marking relates in any way to the 13 03 PIW marking? 14 A. No. 15 Q. That there's any connection between the 16 two? 17 A. No. 18 Q. If in fact the pressure test and visual 19 test had been done in connection with the exterior 20 visual and the leakage test, would you have reason to 21 believe the markings would be different? 22 A. No. I would think they would just put -- 23 attach a little V, K and an I and a P all in the same 24 plaque and same decal instead of going below and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 63 1 above and beyond that. 2 Q. The periodic section, that label, you 3 would expect everything to be marked there together? 4 A. That's the way a lot of them do, yes. If 5 they're all done simultaneously, they indicate that 6 was done all at the same time on the marking. 7 Q. Do you know for a fact either today or at 8 the time of the inspection whether the 03 in this 9 photograph stands for 2003, the year? 10 A. Again, I would be speculating one way or 11 another. Again, the marking 03 PIW I'm not used to 12 seeing anything familiar or similar to that on a test 13 date marking. The W, again, maybe if it were not 14 there, one could assume maybe, but right now it would 15 be entirely speculative. 16 MS. PARROT: We have no further 17 questions. 18 MR. RETTICH: Your Honor, a couple but, 19 it would be very brief. 20 - - - 21 RECROSS-EXAMINATION 22 By Mr. Rettich: 23 Q. Officer, you're not suggesting that they 24 add letters to the periodic inspection -- you're not ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 64 1 suggesting they put a P and an I up there in those 2 slots, those five blank holes, are you? 3 A. If on 9/06 the V, K, I and P were all 4 done simultaneously, they're is no reason why they 5 couldn't put all those on the one decal. 6 Q. But there is because the P/I test is 7 valid for five years; isn't that correct? 8 A. Uh-huh. 9 Q. It wouldn't reflect the very next year 10 when you have your periodic test done, the five-year 11 test would no longer match, would it? 12 A. That's correct. 13 Q. So you have to keep them separately? 14 A. Only the second year would you have to 15 separate them, but initially you could. I don't see 16 why you couldn't. I've seen it that way before where 17 they're all on one line. 18 Q. You may have, but this five-year test 19 would be performed obviously only every five years. 20 A. Right. 21 Q. So it's only going to be right every 22 fifth year. 23 A. Right. 24 Q. In this particular case -- I don't want ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 65 1 to get into what did -- the example that's actually 2 used in the CFR are two digits to denote the year, 3 isn't it? 4 A. I have to refer to it, if I may. The 5 example, now, you said it's two digits? 6 Q. To denote the year. 7 A. Yes. 8 Q. And if we do denote the year as two 9 digits 03, whatever the month that you're saying 10 doesn't exist here, this tank would have been in 11 compliance, right? It's good for five years from 12 '03. So when you inspected it on 12/21/06 the tank 13 would have been in compliance. 14 A. If you assume that 03 was in fact the 15 year of the test, by doing the math, yes, sir, you 16 are correct, it would have been in compliance adding 17 five years to 2003. 18 Q. Whatever the month would have been, it 19 would have been in compliance. 20 A. Again, if you made the assumption that 21 '03 was the year of the tank test. 22 Q. You're not making the allegation that the 23 tank is not in compliance; you're allegation is only 24 that it's not appropriately marked. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 66 1 A. My violation I cited was an improper 2 marking because I had no determination of what month 3 and year the P, I and W were done because it's not a 4 complete marking as required. 5 MR. RETTICH: I have no other questions. 6 THE ATTORNEY EXAMINER: Ms. Parrot, none 7 for you or Mr. Wright? 8 MS. PARROT: No, you Honor. 9 THE ATTORNEY EXAMINER: Okay, thank you. 10 The witness may step down from the stand. 11 MR. RETTICH: Thank you. 12 MS. PARROT: Thank you, officer. 13 Your Honor, at this time staff moves for 14 the admission into evidence of Staff Exhibit 1 as 15 well as Staff Exhibit 2-A through 2-G. 16 MR. RETTICH: Your Honor, I have already 17 stipulated to A through G. I have huge problems with 18 Staff Exhibit 1. 19 MR. WRIGHT: Can we go off the record a 20 minute here? Do you want this on the record? 21 MR. RETTICH: Yes. My problem with Staff 22 Exhibit 1 is one that keeps coming up. We keep 23 getting these computerized copies that I believe are 24 altered, and they do not truly reflect what the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 67 1 officered entered on that day, and the example is on 2 page 2. I think this officer actually testified he 3 signed the piece of paper, and he says that he gave 4 it to the driver, so what we are receiving in Staff 5 Exhibit 1 is just a copy I think may have once been 6 held inside a computer memory and was by modem sent 7 to somewhere in the PUCO, maybe. It's not what was 8 signed and received by Mr. Herbert, the driver of 9 the truck, whether he received it or not, and it's 10 not the copy that the officer prepared and signed -- 11 I guess it's Herbert Marshall, the driver of the 12 truck. 13 And it's not the copy the officer signed 14 because it's possible to go in here electronically 15 and alter this form because I've seen them altered 16 because what comes up with what was here, we say we 17 had to alter it because it's required by something or 18 other. I just have a problem with it if it's not the 19 actual exhibit. That's not the actual exhibit. It's 20 an electronic copy of what may have been the exhibit 21 at one time. 22 MR. WRIGHT: A couple points, I take 23 great umbrage to the word "altered." Whether counsel 24 meant some sinister activity by it, I don't know. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 68 1 But in any event, I don't believe there's any 2 indication, other than counsel's testimony in the 3 record that that's the case. 4 Number two, that was no raised at all and 5 could have been with Mr. Barrett. And, number three, 6 I believe -- I'm going to give counsel the benefit of 7 the doubt here. I believe a better understanding of 8 how the process works will show that in fact the 9 report was received by the driver, was received by 10 the company and actually signed off by the company 11 that corrective action had been taken, 12 And we intend inasmuch as prior to 13 earlier this morning, totally unbeknownst to us there 14 was any question about whether or not the driver of 15 the vehicle received the report, we learned that for 16 the first time when Mr. Rettich mentioned that, we 17 are prepared to offer that as an exhibit and an 18 explanation. That would come in through the next 19 witness, so perhaps counsel's objection at best is 20 premature. He can raise it later. 21 And, finally, your Honor, even if what 22 counsel said is true, he's not demonstrated that has 23 any bearing on anything we're doing now, the 24 allegation, the violation for which that has been ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 69 1 cited, so it's not clear to me that if there is error 2 or a problem that it's material or relevant. 3 MR. RETTICH: Your Honor, to reply, 4 believe me, I'm not in anyway even connotating there 5 was nefarious on malevolent action taken by anyone. 6 I am not even alleging it. I just think the 7 documents -- when you look at photographs, you 8 believe they're photographs that were taken at the 9 time that actually reflects that. When you look at 10 documents, you believe they were the documents that 11 were printed at the time and they are the actual 12 documents. 13 But, in fact, that is not the case here, 14 and I think the officer very accurately said: This 15 is what I typed into my -- he had a name for it -- my 16 laptop computer under this Aspen-generated program, 17 and this is now printed version of what was at one 18 time little electronic yeses and nos running around 19 somewhere. 20 I just have had bad maybe I should say 21 past experiences that perhaps when this form arrived 22 at some office, things were changed because they 23 didn't meet some criteria. I don't know that that 24 happened in this case, but if you want to admit ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 70 1 something, I take it that somewhere in the records 2 Mr. Barrett has a copy that he signed, and if we're 3 going to admit something, I would prefer to get that 4 one over something we pulled out of the electronic 5 stratosphere. 6 MR. WRIGHT: Fair enough. We have, in 7 fact, one that was signed by both Mr. Barrett and 8 Mr. Marshall -- 9 MR. RETTICH: That's exactly what I want. 10 MR. WRIGHT: -- as well as other folks 11 associated with company. 12 MR. RETTICH: Can we substitute that as 13 No. 1, and I would withdraw my objection? 14 MR. WRIGHT: I believe we can. I still 15 think an explanation is going to be required on the 16 record. You raised a point that is still hanging 17 around out there. 18 MR. RETTICH: Let's hope they're not 19 different, your Honor. 20 MR. WRIGHT: Your Honor, could we go off 21 the record for a minute? 22 THE ATTORNEY EXAMINER: Very well. 23 (Discussion off record.) 24 THE ATTORNEY EXAMINER: Back on the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 71 1 record. 2 Mr. Wright. 3 MR. WRIGHT: Thank you, your Honor, in 4 light of Mr. Rettich's concern relative to the 5 inspection report, we are prepared to offer and will 6 mark it at Exhibit 1-A through the next witness, a 7 copy of the report itself, which appears to be 8 identical in all particulars, except what will be 9 marked as 1-A does not contain the inspection not 10 that appear in Staff Exhibit 1. 11 Discussion with counsel indicates he has 12 not objection with those inspection notes, the 13 authenticity or anything relative to those so we 14 would ask that that difference essentially being 15 incorporated into 1-A, if you will, for purposes of 16 admission and Commission determination. 17 THE ATTORNEY EXAMINER: That being said 18 then the motion to admit Staff Exhibits 1, 1-A, and 19 Staff Exhibit 2-A through -- 20 MR. WRIGHT: Staff Exhibit 1 would be 21 admissible as per Mr. Rettich only with a signed copy 22 of 1-A accompanying that. Is that fair? 23 MR. RETTICH: That's exactly right. 24 THE ATTORNEY EXAMINER: And all of ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 72 1 Exhibit 2, that motion was already made. 2 MR. WRIGHT: Yes, we are fine on 3 Exhibit 2. 4 MR. RETTICH: I think that addresses my 5 exact concern. 6 THE ATTORNEY EXAMINER: Thank you. All 7 these staff exhibits heretofore mentioned will be 8 admitted into evidence. 9 MR. WRIGHT: Thank you. 10 (EXHIBITS ADMITTED INTO EVIDENCE.) 11 (Recess taken.) 12 THE ATTORNEY EXAMINER: Back on the 13 record. 14 MS. PARROT: Your Honor, staff calls 15 Mr. Jonathan Frye to the witness stand. 16 - - - 17 JONATHAN FRYE 18 being first duly sworn, as prescribed by law, was 19 examined and testified as follows: 20 DIRECT EXAMINATION 21 By Ms. Parrot: 22 Q. Good morning, Mr. Frye. 23 A. Good morning. 24 Q. Please state and spell your name for the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 73 1 record? 2 A. Jonathan Frye, F-R-Y-E. 3 Q. And what is your business address, 4 please? 5 A. 180 East Broad Street Columbus, Ohio 6 43215. 7 Q. And by whom are you employed? 8 A. Public Utilities Commission of Ohio, 9 Transportation Department. 10 Q. And in what capacity are you employed 11 with the Public Utilities Commission? 12 A. I'm the chief of the compliance division. 13 Q. And what are your duties and 14 responsibilities in that position? 15 A. To review the work of the compliance 16 officers who assess the fines as they relate to 17 violations that are discovered out on the roadway. 18 Q. Do you assess fines yourself? 19 A. No, I don't. I simply review the 20 assessments that are conducted by the compliance 21 officers. 22 Q. And are all of the compliance officers 23 that assess the fines under your supervision? 24 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 74 1 Q. How long have you worked for the Public 2 Utilities Commission? 3 A. Since 1990. 4 Q. And how long have been employed as chief 5 of the section? 6 A. Approximately five years. 7 Q. Do you hold any certifications or have 8 you received any special training? 9 A. HazMat training, North American out of 10 service training, compliance review training, 11 radioactive training. 12 Q. In the course of your duties have you had 13 the opportunity to review the staff's file for this 14 case? 15 A. Yes, I have. 16 Q. I believe you have before you what has 17 been marked -- what has been admitted into evidence 18 as Staff Exhibit 1. 19 A. Yes. 20 Q. Do you have that? 21 A. Yes. 22 Q. Do you recognize this document? 23 A. Yes. 24 Q. Would you please identify it? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 75 1 A. Yes. It's the Driver/Vehicle Examination 2 Report. 3 Q. Is this document part of the file that 4 you reviewed for this case? 5 A. Yes, it is. 6 Q. Is this document regularly maintained by 7 the staff of the Commission in the ordinary course of 8 business? 9 A. Yes, it is. 10 Q. I'd like to direct your attention to the 11 Certification Date that appears in the top right 12 corner of Staff Exhibit 1. Do you see that? 13 A. Yes, I do. 14 Q. Would you please explain to us what the 15 certification date represents? 16 A. Yes. Once an inspection has occurred out 17 on the roadway, the inspector will give the driver a 18 copy of the Driver/Vehicle Examination Report and 19 with the instruction the report will indicate to the 20 driver that he's required to give it to his 21 management personnel, and once the violations that 22 are noted on the inspection report have been 23 completed, the company is required to complete the 24 Driver/Vehicle Examination Report that was given to ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 76 1 them by the inspector and to mail it to our office. 2 Once the office reviews the verification 3 that the violations have been corrected, we will note 4 the date that the certification or the vehicle 5 examination report has been received by our office. 6 Q. So that indicates to you that the driver 7 would have given a copy of the report to the carrier 8 and the carrier then completed that, sent it to the 9 Commission; isn't that correct? 10 A. That's correct, yes. 11 Q. I'd like to direct your attention to 12 Staff Exhibit 1-A marked for purposes of 13 identification. 14 A. Yes. 15 Q. Do you recognize that document? 16 A. Yes, I do. 17 Q. Can you please identify it for us? 18 A. Yes. It's the actually Driver/Vehicle 19 Examination Report that was prepared by Robert 20 Barrett, who is the inspector. His signature appears 21 at the bottom of it. It's the copy that was given to 22 the driver, Herbet Marshall, whose signature appears 23 at the bottom of the report as well. 24 Q. And on the second page of that document, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 77 1 would you please tell us what those signatures are? 2 A. Yes. It certifies the completed repairs. 3 The company has certified that the repairs or the 4 violations that were noted on the inspection report 5 were completed. The shows that Allen Combs, I guess 6 C-O-M-B-S, was the person making the repairs. It 7 indicates he made the repairs on 12/28/06. It also 8 indicates that an officer, an agent of the company, 9 also certified that the repairs were completed 10 satisfactorily. There's a signature of a George Kuhn 11 who signed off on this as well. 12 Q. Is this document maintained by the staff 13 in the ordinary course of its business? 14 A. Yes. 15 Q. Mr. Frye, I'd like to direct your 16 attention to the section of the Exhibit 1-A that is 17 headed Violations. Do you see that? 18 A. Yes. 19 Q. What violations were noted in this case? 20 A. There's 180.415(b), a violation for cargo 21 tank inspection markings. There's also another 22 180.415(b) for cargo tank tests and inspection 23 marking or marking violation. That's also noted. 24 There's the 393.9TS for an inoperative turn signal. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 78 1 There's the 393.19 for an inoperative defective 2 hazard warning light. There's the 393.25(f) for stop 3 lamp violation, and there's the 396.3(a)(1) for 4 inspection/repair and maintenance for the parts 5 and/or accessories. 6 Q. Are you familiar with how civil 7 forfeitures are calculated for violations of the 8 hazardous material regulations? 9 A. Yes, I am. 10 Q. Was a civil forfeiture assessed for each 11 violation in this case? 12 A. There was one monetary violation that was 13 assessed for this particular case. 14 Q. Was a civil forfeiture assessed for some 15 violations and not others? 16 A. Typically we will assess civil forfeiture 17 to those violations that are more egregious than 18 other violations or pose a higher risk than other 19 types of violation. For the Federal Motor Carrier 20 types of violations we tend not to assess the 21 violation unless there's an out-of-service violation 22 that occurs. 23 Q. Would you please describe -- 24 MR. RETTICH: I couldn't hear the last ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 79 1 part. I heard part of it, but I couldn't hear the 2 end of it. 3 (Record read.) 4 Q. Would you please describe how the civil 5 forfeiture is calculated for violations of the 6 hazardous materials? 7 A. Yes. The compliance staff uses a civil 8 forfeiture violation chart where there's a point 9 value that's correlated to the type of violation 10 that's discovered out on the roadway. There's a 11 forfeiture assessment matrix that we use in order to 12 calculate the violation. We look at the nature of 13 the violation, and we assign a point value to the 14 violations that occur. We also take into 15 consideration the extent of the violation and whether 16 or not there's actual harm that's involved with the 17 violation as well. 18 We will also take a look at the amount of 19 material that's been transported, the type of 20 material that's been transported, and we also will 21 look at the company's history as well. We will take 22 those numbers, add them together, and multiply them 23 by $75 to come up with a dollar amount. 24 (EXHIBIT MARKED FOR IDENTIFICATION.) ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 80 1 Q. You have before you what's been marked 2 for purposes of identification as Staff Exhibit 3. 3 A. Yes. 4 Q. Do you have that? 5 A. Yes. 6 Q. Do you recognize this document? 7 A. Yes, I do. 8 Q. Would you please identify it for us? 9 A. Yes. That's the Civil Forfeiture 10 Violations Chart that's used by the compliance 11 officer to calculate how much the fine should be. 12 Q. Is this document regularly maintained by 13 the staff of the Commission in the ordinary course of 14 its business? 15 A. Yes. 16 Q. Is this document used by the staff of the 17 Commission to determine civil forfeiture assessments 18 in hazardous material cases? 19 A. Yes. 20 Q. And was this document used in this case 21 to determine the civil forfeiture? 22 A. Yes. 23 Q. Is this document used consistently by the 24 staff of the Commission for all carriers and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 81 1 individuals in hazardous material cases? 2 A. Yes. 3 MR. RETTICH: Objection. 4 THE ATTORNEY EXAMINER: Objection, why? 5 MR. RETTICH: I don't think he knows. 6 THE ATTORNEY EXAMINER: The question 7 again? 8 MS. PARROT: Is this document used 9 consistently by the staff of the Commission for all 10 carriers and individuals in Hazmat cases. He 11 testified he's the chief of the compliance section 12 for the Commission and he's responsible for the 13 individuals that assess. 14 MR. RETTICH: They may be supposed to do 15 that. I don't know that they actually do. Maybe he 16 does know that. I don't know. 17 THE ATTORNEY EXAMINER: I'll overrule 18 that. 19 Q. You may answer. 20 A. I'm sorry, can you repeat the question. 21 (Record read.) 22 A. Yes. 23 (EXHIBIT MARKED FOR IDENTIFICATION.) 24 Q. Mr. Frye, I believe you have before you ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 82 1 what has been marked as Staff Exhibit 4. Do you have 2 that before you? 3 A. Yes. 4 Q. Do you recognize this document? 5 A. Yes. 6 Q. Would you please identify it? 7 A. It is a worksheet that the compliance 8 officer used to make the assessment on this 9 particular case. 10 Q. And is that compliance officer someone 11 under your control and supervision? 12 A. Yes. 13 Q. And is this document part of the file 14 that you reviewed for this case? 15 A. Yes. 16 Q. Is this document regularly maintained by 17 the staff of the Commission in the ordinary course of 18 its business? 19 A. Yes. 20 Q. Was this document used to determine the 21 amount of the forfeiture assessed in this case? 22 A. Yes. 23 Q. Does this document accurately reflect how 24 the forfeiture amount was assessed in this case? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 83 1 A. Yes. 2 Q. I note at the top of the report there's a 3 number. Would you please tell us what that is, the 4 report number field? 5 A. Yes. The report number is 3210301092C. 6 Q. Is that the same number that appears on 7 the inspection report, which has been admitted as 8 Staff Exhibit 1? 9 A. Yes; with the exception we have added the 10 C to show this is a violation that has been assessed 11 against the carrier. 12 Q. Would you please walk us through these 13 documents to describe how the civil forfeiture amount 14 was derived in this case? 15 A. Sure. Under the Violation Code section 16 it's just the code section for the violation, and it 17 indicated no proper tests, and there's a (2) there. 18 Q. For the record, we are looking at Staff 19 Exhibit 4; is that correct? 20 A. That's correct, yes. 21 Q. Please continue. 22 A. So what happens, based upon the violation 23 description that's written out on the roadway, the 24 compliance officer will look at the Civil Forfeiture ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 84 1 Violations Chart, which is Staff Exhibit 3, and under 2 the 6 to 8 point range, under the 6 range there's the 3 cargo tank -- cargo test marking not displayed or 4 cargo tank test not completed. It's a 6 point, it 5 says, plus 1 under extent for each additional cargo 6 tank test not completed or displayed. 7 So in the first box under Nature and 8 Gravity, according to the chart it gets a 6, and 9 under Extent it gets an additional 1. Under the box 10 where it says Actual Harm, there's no numerical value 11 under Actual Harm when you look at Exhibit 4 because 12 there was no harm to the environment or no leak into 13 the environment. 14 The next box there's Other Circumstances. 15 That box would be used if there was some type of 16 injury. In this case there's none so there's no 17 numerical value listed there. 18 Q. Are they basically zero; is that how we 19 would read that? 20 A. That's correct. Then the next box is 21 Subtotal, which is simply adding up the various boxes 22 above the subtotal, and it comes to a number 7. Then 23 the next box under that is Subtotal. It asks for 24 Material Hazard. If we flip back to Staff Exhibit 3, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 85 1 on the next-to-the-last page of Staff 2 Exhibit 3 there's a material hazard chart. 3 In this particular case the report, the 4 driver vehicle inspection report, indicates there was 5 a Class 2.1 hazardous material being transported. So 6 it says the point value for 2.1 material, the point 7 value that should go in Staff Exhibit 4 in that box 8 would be a 1.1. 9 The next area we look at is the Amount of 10 Material that's being transported. In this 11 particular case we flip over to the Staff the 12 Exhibit 3, the last page, there's the hazardous 13 materials chart. And in this particular case it 14 indicates that this was a cargo tank with a Class 15 2.1 material that was being transported so the point 16 value would be a 1; however, if you take a look at 17 Staff Exhibit 4, the officer underassessed this 18 particular fine. She put a .2 in that particular box 19 when in actuality she should have put one point. 20 The dollar amount from the subtotal is 21 multiplied by the material hazard -- well, the 22 material hazard, which is 1.1, is added to the amount 23 of material, in this particular case she has a .2, 24 which comes to 1.3, and that is multiplied by the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 86 1 subtotal, which she arrived at is 9.1, when actually 2 that should have been I believe a 12.6. 3 We also look at the Respondent 4 Culpability and we also look at Respondent History. 5 In this particular case the respondent didn't have a 6 bad history so it gets a standard multiplier of a 1. 7 We multiply those values together to again arrive at 8 the 9.1 as the compliance officer has here, and, 9 again, in actuality it should have been a 12.6. We 10 take the total point value and multiply that by $75 11 to be the monetary amount. 12 Q. And that amount they arrived at was 13 $682.50; is that correct? 14 A. Yes. She indicated that the dollar 15 amount should be $682.50. 16 Q. If she had entered in the material field 17 there a 1, as you testified, how would that affect 18 the forfeiture amount? 19 A. The forfeiture would have been much 20 higher. It would have been 12.6 times $75, and I'm 21 not sure what the calculation would be, 900 and 22 some-odd dollars, but it would have been higher than 23 the 682.50 that actually went out. 24 Q. Is the dollar amount contained in the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 87 1 forfeiture assessment chart consistent with the civil 2 penalty requirements of Rule 4901: 2-7-06 of the 3 Ohio Administrative Code? 4 A. Yes, it is. 5 Q. Is it consistent with the suggested fine 6 schedule of the Commercial Vehicle Safety Alliance? 7 A. No. The Commercial Vehicle Safety 8 Alliance, that's a separate method of assessing fines 9 for nonhazardous type of material violations. 10 Q. Is this document used consistently by the 11 staff of Commission for all carriers and individuals 12 in hazardous material cases? 13 MR. RETTICH: Objection. That's asked 14 and answered because I objected to it previously. 15 MS. PARROT: It's a different document. 16 MR. RETTICH: It's still the same 17 question. 18 THE ATTORNEY EXAMINER: It's referring to 19 a different document. The witness may answer. 20 A. Yes. 21 Q. Based on your review of the file for this 22 case, was the respondent served with all notices 23 required by Chapter 4901: 2-7 of the Ohio 24 Administrative Code? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 88 1 A. Yes. 2 Q. I believe I have given you what's been 3 marked for purposes of identification as Staff 4 Exhibit 5. Do you have that before you? 5 A. Yes. 6 Q. Do you recognize this document? 7 A. Yes. 8 Q. Would you please identify this for us? 9 A. This is a Notice of Preliminary 10 Determination. It's the letter that's sent to the 11 respondent after a conference has been conducted. In 12 the event we're unable to reach a resolution during 13 our settlement conference, we issue this Notice of 14 Preliminary Determination advising the respondent 15 that they could either pay the fine or they can 16 request an administrative hearing to contest the 17 violation and the fine further. In this particular 18 case it indicates that this document was generated on 19 October 17, 2007. 20 Q. To whom was it sent? 21 A. Mr. George Kuhn, Nationa Safe T Propane, 22 Incorporated. 23 Q. Is this document regularly maintained by 24 the staff of the Commission in the ordinary course of ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 89 1 its business? 2 A. Yes. 3 MS. PARROT: We have no more questions, 4 but we would like to reserve the right to recall the 5 witness for rebuttal. 6 THE ATTORNEY EXAMINER: Fine. 7 Mr. Rettich. 8 - - - 9 CROSS-EXAMINATION 10 By Mr. Rettich: 11 Q. Mr. Frye, who did this assessment? It 12 says AMT. 13 A. Alla Magaziner Tempesta. 14 Q. And what was the last name? 15 A. Tempesta, T-E-M-P-E-S-T-A. 16 Q. And that's a PUCO employee underneath 17 you? 18 A. That's correct, yes. 19 Q. You're familiar with the fact this tanker 20 truck was empty, only hauling residue at the time of 21 the violation? 22 A. It was hauling residue. There's a 23 distinction between empty and residue. As residue 24 you have to transport it as if it was full. Empty ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 90 1 means it's been cleaned and purged of any material. 2 So there's a distinction between the two. 3 Q. Well, I can rephrase it but I think the 4 answer would still be yes. You're aware of the fact 5 that this particular violation occurred when the 6 tanker truck was hauling residue? 7 A. Yes, residue, yes. 8 Q. In fact, didn't Ms. Magaziner assess the 9 quantity correct on C? 10 A. No, she didn't. 11 Q. Well, what was the weight of the residue; 12 do you know? 13 A. No. 14 Q. Isn't the quantity determined by the 15 weight of the actual item hauled? 16 A. It's determined by the weight plus in 17 certain circumstances the material that's being 18 transported as well. If you take a look at Exhibit 19 3, the last page under Amount (Weight), it says: 20 Cargo tank with flammable, class 3 and Class 2.1. If 21 you look to the left of that, there's a big 1, 1.0. 22 Q. Well, what would have been the weight of 23 the empty -- the propane in the residue of the tank? 24 A. That I don't know, but had it been ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 91 1 residue, simply residue that was nonflammable, it 2 could have received a .2. 3 Q. Yes. But if it was less than 5 pounds, 4 2 kilograms of propane, wouldn't it have also been 5 0.2, the last line of the last page? 6 A. I'm sorry, I didn't hear you. Can you 7 repeat it? I didn't hear the question. 8 (Record read.) 9 A. No. 10 Q. Why not? 11 A. Because it says less than -- the package 12 is less than 5 pounds, there would be a subtraction 13 of a .2. It would still be residue, which is a .2, 14 and then you less another .2 if the package is less 15 than 5 pounds. 16 Q. I'm going to go at this differently 17 Mr. Frye. So it's the exact same penalty .10, if you 18 are running with a full propane tanker truck or one 19 with -- I don't want to use the word empty -- a 20 residual, residue. 21 A. Yes. 22 Q. That doesn't seem fair, does it? 23 A. Yes. 24 Q. Oh, it is fair? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 92 1 A. Yes. 2 Q. Okay. Are you -- because as the -- 3 A. It's not a liquid. It's the vapors that 4 come from the package, so it's -- that's why when you 5 transport a residue, you have to transport a residue 6 in the same manner as you're transporting a full 7 load. It requires the same requirements. You have 8 to transport it in the same manner. 9 Q. Mr. Frye, you're maintaining to this 10 hearing officer at this hearing that full propane 11 tanker trucks are just as dangerous as empty ones? 12 A. Yes. Yes. It's the vapors, yes. 13 Q. They may be explosive, but certainly 14 residue propane tanker trucks wouldn't cause nearly 15 the catastrophic damage that an explosion of a full 16 one would. 17 A. The regulations require you to transport 18 residue in the same manner that you transport a full. 19 Q. You previously stated that, but I'm 20 asking you, the explosion of a tanker truck would 21 certainly be vastly different if it was full of, 22 according to the last page, 35,000-pound of liquified 23 petroleum as compared to one that was only 24 transporting a residual? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 93 1 A. Is that a question? 2 Q. Yes. One transporting 35,000 pounds 3 would certainly be more hazardous, more of a danger 4 than one only transporting a residual. You're 5 maintaining it's the same risk. 6 A. I don't know. Just based upon the 7 regulations requiring you to transport a residue in 8 the same manner you transport a full load, my belief 9 there wouldn't be a difference. That's why they're 10 required to be transported in the same manner. 11 Q. And you're chief of compliance. 12 A. Yes, I am. 13 Q. Of the Public Utilities Commission. 14 A. Yes. 15 Q. And you believe they're equally 16 dangerous, the full and the residual tanks. 17 A. Yes. Based upon my knowledge, yes. 18 Q. Well, you testified when you took the 19 stand you based this on part in actual harm. That 20 was your testimony. I wrote it down, the potential 21 for actual harm. 22 MS. PARROT: Objection. I think it 23 mischaracterizes the testimony previously offered. 24 MR. RETTICH: I wrote it down. We can ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 94 1 certainly look back and get it. It refers 6 to 8 2 points and he actually specifically said the 3 possibility of actual harm. 4 A. No, that's not what I said. 5 Q. Please correct me. What is it you did 6 say? 7 A. That the 6 points goes to the nature of 8 the type of violation that's discovered. I indicated 9 that there also is a separate box. Had there been 10 actual harm to the environment, then there were 11 additional points that could have been added to the 12 numerical value. 13 Q. All right. I want to keep going at this 14 because this 6 points is assessed whether the tank 15 was tested or not; is that correct? 16 A. Yes. Had the tests not been conducted, 17 there would have been a separate violation for the 6 18 points -- there would have been another violation for 19 tests not conducted. 20 Q. Well, wait. If I just don't have my tank 21 inspected at all, I don't have any performance 22 testing done, that's a 6-point violation, isn't it? 23 A. It starts off as a 6, yes. 24 Q. And if I don't have -- maybe there's no ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 95 1 "I" in my -- on the cargo tank. That's also a 2 6-point violation, isn't it? 3 A. That's correct, yes. 4 Q. Have you -- you don't make the judgment. 5 You haven't seen these photographs. You don't know 6 whether there was an I or P or not, do you? 7 A. Yes, I've seen the photos. 8 Q. So then you know there is, in fact, an I 9 and a P. 10 A. Yes. I've seen an I and I've seen a P. 11 Q. Well, on State's Exhibit 1, and I think 12 it also appears on State's Exhibit 1-A, there's a 13 list of actual mechanical flaws wrong with this truck 14 also, wasn't there? 15 A. That's correct, yes. 16 Q. And those flaws were corrected, weren't 17 they? 18 A. To my knowledge they were. 19 Q. Well, the carrier, the submechanic and 20 the carrier sent you a letter saying they were 21 corrected? 22 A. They sent me a letter indicating the 23 violations were corrected, yes. 24 Q. I am interested in this. Let's talk ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 96 1 about history on the nature of this forfeiture 2 assessment. This Respondent Culpability, how did you 3 arrive at the 1 or how did Ms. Magaziner arrive at 4 the 1? 5 A. That's based upon the inspection report, 6 what's written in the report. There's nothing to 7 suggest that the carrier willfully violated a 8 particular code section. Had that occurred, it would 9 have been a multiplier of 2 as opposed to 1. So a 10 multiplier of 1 isn't enhancing the particular fine. 11 Q. Why isn't it zero? 12 A. It could be a zero. 13 Q. That is why I'm asking. Why is it not 14 zero? 15 A. Because there's nothing in the report to 16 indicate that the respondent wasn't culpable. 17 Q. There does appear to be 03 designating a 18 year for the P and I test, isn't there? 19 A. I don't know if that's the year or the 20 month. After I looked at the pictures, it could be 21 the month. I don't know. That's the -- that's the 22 real heart of the matter. One inspector indicated 23 that he thought it was the year. I thought it was 24 the month. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 97 1 Q. Well, culpability, Ms. Magaziner assessed 2 a 1. 3 A. Yes. 4 Q. And you're not sure how she arrived at 5 that 1. 6 A. No. The standard multiplier is a 7 1 unless there is something in the report to suggest 8 otherwise, it should be the zero or some type of 9 willful conduct. 10 Q. That's what I'm trying to get from you. 11 Why isn't it in this case a zero because there 12 doesn't appear to be any evidence whatsoever of 13 culpability? 14 A. Right. Usually that's something that 15 goes out as a 1. If there's something presented at 16 the conference level, we can modify that, but looking 17 at the pictures and looking at what was written in 18 the report, it went out as a 1. 19 Q. I'm interested in that. Mr. Barrett, the 20 person that was actually on the scene, interacted 21 with the truck driver, initially believes he saw the 22 violation, wrote it up. He's not the person who put 23 this 1 here, is he? 24 A. No. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 98 1 Q. Why not? 2 A. Because that's not his job 3 responsibilities, to write the violation and then 4 determine how much the fine should be. 5 Q. You -- 6 A. Nor is it his responsibility to conduct a 7 conference. He writes the violation. We have a 8 separate staff that will assess and conduct a 9 conference. 10 Q. But you base -- Ms. Magaziner based her 11 determination or what Robert Barrett wrote. That's 12 all she has, isn't it? 13 A. Yes. But she's given the latitude to 14 make any adjustments when a conference is conducted. 15 Q. There was no adjustment in this case, was 16 there? 17 A. Not that I'm aware of. 18 Q. And history is a 1 here also. Why is 19 that, letter F? 20 A. Because there are -- because when looking 21 through the records, you can either be a history 22 carrier 1, 2 or 4 or zero based upon the number of 23 violations that occurred, based upon the number of 24 good inspections versus bad inspections. There's a ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 99 1 numerical value calculated, and that numerical value 2 is compared to other carriers that are out there. 3 Those within a certain frame, the top five percent, 4 their history would be a zero. The ones who are in 5 the middle I think 50 percent, their history would be 6 a 1. Those in the bottom 5 percent, and, again, it's 7 either 5 or 10 percent, their history would be four 8 times if they're in the bottom 5 percent. 9 So in this particular case based upon 10 running the numbers for National Safe T, they came 11 out as a history 1. So their fine wasn't enhanced 12 because of any negative violations, nor were any 13 credit given based upon the fact that they were a 14 zero. 15 Q. Mr. Frye, I'm not trying to disagree with 16 you, but I think you're mistaken, but let's try to 17 find out. When you look at F on the form, there is 18 only -- it says History, 1, 2 or 4. 19 A. Uh-huh. 20 Q. So the assessment is actually 4 for the 21 bottom five or ten percent, 2 for the 50 percent and 22 1 for the top five percent; isn't that correct? 23 A. Let me finish. History, and, again, 24 history in addition to those parameters I've just ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 100 1 outlined, history only applies to nature and gravity 2 violations that are I think it's 3 or 4 points and 3 below. I don't believe it applies to nature and 4 gravity. When you get up to a 6 point type of 5 violation, we don't give credit -- we don't give 6 anybody a zero history if they have a nature and 7 gravity point at 6 points or above. So there's no 8 way a carrier could be a zero history if the nature 9 and gravity is 6 or above because we believe those 10 violations are so egregious, they're not entitled to 11 any mitigating factors. So the best that National 12 Safe T could have gotten on an inspection like this 13 would be a history 1. 14 Q. This is not an out-of-service violation, 15 is it, Mr. Frye? 16 A. No, it's not. 17 Q. If Herbert Marshall would have been 18 operating a completely full of liquified petroleum 19 gas tanker truck that had never ever been tested on 20 12/21/06, this would have been the exact same 21 assessment? 22 A. I'm not sure I understand your question. 23 Q. Well, you originally testified that 24 Ms. Magaziner assessed the incorrect amount. Whether ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 101 1 it was full or empty, it would still be a 1, right? 2 A. Yes. 3 Q. I'm using empty meaning residue. I don't 4 want to get into some confusion about it. You also 5 said whether it was out of compliance, whether it had 6 been tested or not or just a marking violation, it's 7 still a 6-point violation? 8 A. That's correct. 9 Q. Mr. Frye, that doesn't strike you as 10 unfair? 11 MS. PARROT: Objection, your Honor, the 12 witness already answered that question. 13 THE ATTORNEY EXAMINER: I'll -- 14 MS. PARROT: And it's irrelevant. 15 THE ATTORNEY EXAMINER: I'll agree with 16 the objection. 17 Q. You didn't come up with this forfeiture 18 assessment form, did you? 19 A. No. It predates me. 20 Q. Do you know who did develop it? 21 A. No, I don't. 22 Q. Has it been changed? 23 A. It gets reviewed on a yearly basis. 24 Q. Who reviews it? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 102 1 A. The staff within the compliance division, 2 myself and the compliance officer, the staff 3 attorney, the assistant chief. 4 Q. Is that a public hearing? 5 A. No. 6 Q. It's just internal. 7 A. Yes. 8 Q. You don't take input from anyone but 9 employees of the Attorney General or PUCO? 10 A. We don't take -- we haven't taken input. 11 Q. Do you know how many years you have been 12 using this forfeiture assessment chart? 13 A. I have been here since 1990. We have 14 been using it prior to me arriving here, but I know 15 for sure since 1990. 16 Q. You haven't changed the classification 17 for different violations; maybe some activities would 18 prove to be more dangerous and others prove to be 19 less dangerous, you've never clanged it. 20 MR. WRIGHT: Objection. 21 THE ATTORNEY EXAMINER: Mr. Rettich, I'm 22 not quite sure where you're going with this. 23 MR. RETTICH: I'll rephrase it. 24 Q. I think I asked about the forfeiture ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 103 1 assessment hasn't been changed, and the chart that 2 goes with it, it hasn't been changed either. This 3 chart, I think it has a number, Staff Exhibit 3, and 4 the pages, the next-to-last and last pages, they all 5 remained the same this entire time you have been here 6 since 1990? 7 A. No, they haven't; remained the same. 8 MR. RETTICH: I have no other questions. 9 THE ATTORNEY EXAMINER: Ms. Parrot. 10 MS. PARROT: Your Honor, may we have a 11 moment to confer briefly with the witness? 12 (Discussion off record.) 13 MS. PARROT: Your Honor, we have no 14 further questions for this witness. 15 THE ATTORNEY EXAMINER: All right. Thank 16 you. I'd like to go off the record. 17 (Discussion off record.) 18 MS. PARROT: Your Honor, the staff has no 19 further witnesses to call, and at this time we move 20 for the admission into evidence Staff Exhibit 1-A, 21 Staff Exhibits 3 through 5. And we would also like 22 to reserve the right, as we said previously, to 23 recall witnesses for testimony, if necessary. 24 THE ATTORNEY EXAMINER: All right. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 104 1 MR. RETTICH: Your Honor, since we are on 2 the record, I guess the equivalent of a motion for a 3 directed verdict. It appears when you review 4 Exhibit 2-A, it does have the month 9 and 06 with a 5 VK, periodic test, and we would submit the 9 goes 6 with the 03, and that it is the month for 9/03 PI. 7 This tanker certainly was in compliance, and the 8 Staff Photo Exhibit 2 demonstrates that. 9 THE ATTORNEY EXAMINER: I'll overrule 10 that. 11 MR. RETTICH: Thank you, your Honor. 12 THE ATTORNEY EXAMINER: Those exhibits 13 are admitted . 14 (EXHIBITS ADMITTED INTO EVIDENCE.) 15 (Recess taken.) 16 MR. RETTICH: Your Honor, at the time we 17 call Jay Kothari. 18 THE ATTORNEY EXAMINER: Please spell your 19 name. 20 THE WITNESS: J-A-Y, K-O-T-H-A-R-I. 21 - - - 22 JAY KOTHARI 23 being first duly sworn, as prescribed by law, was 24 examined and testified as follows: ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 105 1 DIRECT EXAMINATION 2 By Mr. Rettich: 3 Q. Could you please state your name? 4 A. Jay Kothari. 5 Q. That's the name you just spelled? 6 A. Yes. 7 Q. And how are you employed? 8 A. I employed with Nationa Safe T Propane as 9 chief operating officer. 10 Q. And how long have you been employed by 11 Nationa Safe T Propane? 12 A. For about four and a half years, with two 13 and a half in this position. 14 Q. Do you do that on a daily basis? 15 A. I do. 16 Q. And what does the COO at National Safe T 17 Propane do? 18 A. As chief operating officer I just handle 19 most of the day-to-day operations, everything from 20 human resources to marketing to basically everything. 21 Q. And what is your address? 22 A. Business address? 23 Q. We will start with that. 24 A. P.O. Box 16, Germantown, Ohio 45327. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 106 1 Q. All right. You are familiar with the 2 alleged violation we are addressing here today? 3 A. I am. 4 Q. And is that violation, I'm trying to keep 5 this as brief as possible -- the PUCO staff attorneys 6 would say that the violation is depicted in Staff 7 Exhibit 2-A. 8 A. Right. 9 MR. WRIGHT: Clarification, your Honor, I 10 believe the staff witness who took the photos would 11 so state. 12 MR. RETTICH: That is correct. Do you 13 have those exhibits? Where are they at? I want to 14 make sure I have them in front of you. Do you know 15 where Staff Exhibit A is? May I approach the 16 witness? 17 THE ATTORNEY EXAMINER: Yes. 18 Q. Have you looked at this photo before? 19 A. Yes. 20 Q. In black and white? 21 A. Yes. 22 Q. What does that photo depict? 23 A. It depicts the identification plate on 24 the tanker with the inspection stickers placed on it. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 107 1 Q. Could you explain what that -- what is 2 depicted in the photograph? 3 A. In the upper left hand sticker, the test 4 date periodic inspection, September '06, you have the 5 visual and the leak test. Underneath that is quasi 6 tempered manufacturing of the tanker, and then below 7 that is the year 03 and a P and I and W. 8 MR. WRIGHT: I'm sorry, are you done? I 9 want to have the answer read back. I missed 10 something. 11 Q. Mr. Kothari, does it designate a month? 12 A. No, it does not. 13 Q. Does it have a test designated in 14 periodic inspection? 15 A. Does it have a test? 16 Q. Is there a month designated in the 17 periodic inspection? 18 A. On the top where it says MO month, 19 there's the month 9. 20 Q. And what is the month for the P and I 21 test? 22 A. 9. 23 Q. How do you know that? 24 A. The test is aligned on this particular ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 108 1 tanker. That's why there is only one month and two 2 separate years. 3 Q. What do you mean, it's aligned? 4 A. The test date of five years and the one 5 year happen to fall on the same month on this tanker. 6 If those two tests were done in different months, 7 there would be a separate month indicating that down 8 there. 9 Q. And where would that month be? 10 A. That would be in front of the 03. 11 Q. Well, my question, and I think the PUCO 12 believes there should be a 9 in front of that 03. 13 A. Okay. 14 Q. Why should not there be a 9? 15 MR. WRIGHT: I'll object to the 16 characterization of the No. 9. I believe we believe 17 a number needs to be placed there. 18 MR. RETTICH: Okay. 19 Q. You can answer the question. 20 A. What I read in 180.415(b), my 21 interpretation of it is that there needed to be a 22 month and year specified on the tanker, not 23 necessarily multiple months and multiple years. 24 Q. You actually have another tanker truck. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 109 1 A. Yes. 2 Q. And are those tests aligned on it? 3 A. They are not. 4 Q. And it has separate months? 5 A. It has separate months. 6 Q. How would someone looking at this know 7 that the 9 with the periodic test designates the 8 month for the bi-decade test? 9 A. It's the only month on there. There's 10 not allowed to be any other sort of advertisements or 11 numbers placed in this area. This is a designated 12 area for that information. 13 Q. Are you required to keep it as minimal as 14 possible? 15 A. You are. 16 Q. Years are designated with two digits? 17 A. I don't believe that 180.415(b) specifies 18 two digits or four digits, but I think the norm is 19 two digits. 20 Q. Well, they don't put a 0 in front of the 21 months, do they? 22 A. They didn't on this one. 23 Q. In fact, the example set forth in 24 180.415(b) by the Federal Motor Carrier doesn't ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 110 1 either, does it? 2 A. I believe the example that I had was 3 October so it would be difficult to say. 4 Q. Are all the letters and numbers in this, 5 that appear as applicable in 2-A, of appropriate 6 size? 7 A. I believe that these numbers are actually 8 larger. Regulation calls for a 1-1/4 inch numbers. 9 In the top sticker they are two-inch numbers, and the 10 QT and P, I and W are three-inch numbers. 11 Q. There was some question earlier about 12 what this W means. Do you know? 13 A. It was kind of a mystery when we 14 purchased the tanker. The tanker was actually 15 purchased from a place up in Cleveland. It was being 16 used to run to Canada quite often. This is a 17 Canadian designation of a test that was performed 18 along with the pressure and interior test. 19 Q. Did you alter any of these things from 20 the time you purchased it? 21 A. Only if there's an inspection that has 22 taken place. 23 Q. Then you update the date? 24 A. That's correct. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 111 1 Q. This was the way it was lettered when you 2 acquired it? 3 A. This was -- I believe so. Well, I think 4 we acquired it prior to 9/06. That is a new sticker. 5 The test date is 9/06, is a new sticker. 6 Q. The periodic sticker has changed? 7 A. That's correct. 8 Q. The QT 03 PIW sticker, is that the same 9 or is it different? 10 A. That is the same. We did acquire this 11 after '03, yes. 12 Q. Do you still retain this tanker truck? 13 A. Yes, we do. 14 Q. And you maintain this in compliance with 15 section 180.415(b)? 16 A. Yes. 17 Q. Because the 9 appears in the periodic 18 inspection? 19 A. Correct. 20 MR. RETTICH: I have no other questions. 21 MR. WRIGHT: Your Honor, may I have one 22 moment. 23 THE ATTORNEY EXAMINER: Off the record 24 for a moment, please. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 112 1 (Discussion off record.) 2 - - - 3 CROSS-EXAMINATION 4 By Mr. Wright: 5 Q. Good afternoon, Mr. Kothari. You are the 6 chief operating officer. You have been in that 7 position for two and a half years? 8 A. Yes, correct. 9 Q. Can you tell me a little more what that 10 entails in terms of your duties? 11 A. I handle most of the day-to-day 12 operations. I oversee pretty much everyone in the 13 company with the exception of the president of the 14 company, maintenance, sales and marketing, office 15 management, receivables, things like that are all 16 handled under me. 17 Q. Is it fair to say the COO is pretty much 18 an office job? 19 A. No. I am in the field more than in the 20 office. We have multiple locations so I am out quite 21 often. 22 Q. When you say you're out, are you 23 traveling to different offices? Strike that. Would 24 it be fair to say in your oversight function you're ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 113 1 primarily responsible for the paperwork associated 2 with various operations of the company? 3 A. It is -- well, it's more of a managerial. 4 I would not say I handle each individual piece of 5 paper that comes into the company but I oversee the 6 people that do. 7 Q. I wasn't intending to suggest you handled 8 every piece of paper. You are not, for example, your 9 job specification -- let me ask you, can you explain 10 a little more about what it is you do? Can you be a 11 little more specific? Give me some examples of 12 things you do. 13 A. Sure. If we have any sort of employee 14 issues in any facility that we have, I would tend to 15 that. I handle the human resources type of role. I 16 do go in the field quite often. I do -- it is more 17 of a hands-on position than your typical chief 18 operating officer position would be in a larger 19 company. We're not an extremely large company so I 20 wear a lot more hats than I would -- 21 Q. Do you -- I'm sorry, I didn't mean to 22 interrupt. 23 A. Sure. If we have breakdowns in the 24 pumping system, in a facility, I go over and oversee ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 114 1 the repair. I'm by no means a repair expert, but I 2 would surround myself with people that know what they 3 are doing. 4 Q. What is your responsibility with respect 5 to the company's fleet of vehicles? 6 A. I make sure the office manager maintains 7 the proper documents and books that belong in the 8 trucks, as well as all the files are maintained, and 9 would randomly check to make sure the driver's are 10 doing their precheck inspections and post check 11 inspections. 12 Q. But that's primarily a check on the 13 paperwork. 14 A. Yes. 15 Q. In a question by Mr. Rettich, I refer you 16 to -- see the line in Staff Exhibit 2-A, the letters 17 QT you referred to as quasi tempered. 18 A. The Q word, it basically means it is a 19 heat-treated cylinder. Yes. It's not quasi, but 20 it's quenched and tempered is what the actual word 21 is. 22 Q. Okay. All right. You're not an 23 attorney, correct? 24 A. I'm not an attorney. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 115 1 Q. So any interpretation or opinion offered 2 by you about the federal regulation question 3 180.415(b) would be your lay opinion? 4 A. Exactly. 5 Q. You testified that again with reference 6 to Staff Exhibit 2-A that the field around the spec 7 plate, the carrier is responsible to keep the writing 8 on that as minimal as possible, words to the effect; 9 is that right? 10 A. That is my interpretation of Section 172. 11 I don't know the extras. 12 Q. Why would that be, do you think? 13 A. Probably to avoid confusion and wouldn't 14 want advertisements or things that might confuse 15 anybody. 16 Q. Do you think it would also be, and, 17 again, if you know, one reason to do that might be so 18 that the designations that are allowed to be on the 19 tank are readily identifiable? 20 A. That would make sense, yes. 21 Q. Okay. You said you purchased the tanker 22 from an outfit in Cleveland. 23 A. Yes. 24 Q. That used it apparently for some business ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 116 1 in Canada? 2 A. It's a large trucking outfit out of 3 Cleveland. They send trucks all over the country and 4 in Canada. 5 Q. Would you have been responsible for 6 effecting that purchase? 7 A. I viewed the tanker prior to purchasing 8 it, along with our mechanic and another gentleman who 9 was, once again, more familiar with tanks than I am 10 but, yes, I did view the tanker. 11 Q. Okay. When you purchased this tanker, 12 this particular tanker, did you -- what kind of 13 paperwork would have been involved in that 14 transaction? 15 A. Well, any appropriate tests that have 16 been performed on the tanker would be transferred 17 over to us as well as the bill of sale. That's about 18 it, I would think. 19 Q. How long have you -- you mentioned that 20 your preparation today you had read 180.415. When 21 did you read that, do you recall, approximately? 22 A. I reread it just the other day. 23 Q. Okay. 24 A. Prior to that, I mean, I'm versed in the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 117 1 Federal Motor Carrier compliance codes. I would not 2 say well versed, but that's why we have the manuals. 3 I read it before. I just refreshed my memory with it 4 the other day. 5 Q. Do you have any responsibilities as part 6 of your COO duties to interface with PUCO on matters 7 like this? 8 A. This would be my first time. Usually the 9 president handles it. George Kuhn handles these 10 things. 11 Q. So roughly at what point in time, and 12 again, an approximation is fine, did you become 13 involved in this case? 14 A. Once we realized that -- I mean, I was 15 notified of the case when it happened. When this 16 violation occurred, it came across my deck and I saw 17 it. Once again, I don't spend a lot of time on these 18 things. George handles this. I handle mostly the 19 internal stuff. George Kuhn does this outside stuff. 20 I started paying more attention to this case when I 21 realized I would be coming to this once we realized 22 George's health was not well enough to come. 23 Q. But I believe, I want to make sure I 24 understood your last response, you indicated that ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 118 1 then this would have at least first come across your 2 desk, ergo, you first would have been made aware of 3 this particular case back when it happened. 4 A. I believe it was right after the New 5 Year. 6 Q. Early 2007. 7 A. I was on vacation for that week, but, 8 yes, early 2007 I got that. 9 Q. Okay. Now, approximately when did you 10 buy this tank? 11 A. It was late 2005 or early 2006, I 12 believe. 13 Q. Okay. So you would have had any 14 paperwork that would have supported the testing on 15 that tank up to the time that you purchased it. That 16 came with the sale, correct? 17 A. Correct, any testing would have come with 18 the sale. 19 Q. Okay. Did you bring the testing reports 20 with you today that would demonstrate that the 21 five-year testing had been done? 22 A. I didn't even -- I did not bring it, no. 23 Q. Any reason why? 24 A. I didn't -- when I read over the case, it ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 119 1 didn't say the five-year testing was in question. It 2 was the marking is what we were being cited for. 3 Q. But the marking relative to the five-year 4 testing; correct? 5 A. Correct. 6 Q. Okay. So you don't have any 7 documentation to support your testimony as you sit 8 here today relative to the fact that you have 9 information that shows the five-year test was done? 10 A. No, I don't have anything. 11 Q. Do you think it a little odd that since 12 January 2007 you've had this information, the company 13 has had this information in their possession, some or 14 all of which would have presumably passed by your 15 desk, that not one time was the Commission made aware 16 of this information? 17 A. Made aware of -- 18 Q. Isn't that kind of odd? 19 A. Made aware of the information that? 20 Q. That the testing had actually been done. 21 A. Well, if the testing wouldn't have been 22 done, if this was out of test, would the tanker still 23 be on the road? Wouldn't it have been pulled out of 24 service if we didn't have the appropriate testing? I ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 120 1 assumed that the testing -- that you guys knew the 2 testing had taken place. 3 Q. Okay. That was just your assumption. 4 You had no -- nothing in front of you to -- 5 A. It's a required five-year annual test for 6 the visual and internal. I don't think the tanker 7 would be roadworthy if that testing had not been 8 completed. 9 Q. I would agree with you, but you have been 10 here the entire time today; correct? 11 A. Yes. 12 Q. And you heard testimony from two staff 13 witnesses, primarily Mr. Barrett, that indicates that 14 based on the designation on the tank, what is 15 pictured as Staff Exhibit 2-A, we can't tell whether 16 that testing has been done or not based on that. 17 A. I did hear that. 18 Q. Because it's an improper marking? 19 A. I understand that he interpreted it as 20 being an improper marking. 21 Q. Okay. Ergo, if it's not marked 22 properly -- well, strike that. Based on your earlier 23 testimony it would be your belief that it's important 24 that the marking be done properly, again, so that the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 121 1 inspector can see that and see that very clearly, 2 correct? 3 A. I think that the marking should be done 4 properly to comply with the letter of the law, I do. 5 Q. And, again, your understanding of why 6 that's required is so that an individual can -- an 7 inspector like Mr. Barrett can see quickly exactly 8 what has and has not been done, at least as 9 represented on the truck, correct, on the tank? 10 A. That would be one of the reasons, yes. 11 Q. What other reasons would there be? 12 A. We would need to know as well. We would 13 need to know for our drivers when they do their 14 walk-around to check off on that to make sure the 15 tank wasn't coming up due and we didn't have to 16 schedule a maintenance break for it. 17 Q. Would it be fair to say you hire drivers 18 from time to time? 19 A. I do, yes. 20 Q. Okay. If you'll agree with me -- for 21 sake of argument, let's assume that the 03 PIW is 22 confusing. How would a new driver know whether 23 something was coming up or not? How would he know to 24 even question it if he didn't know what it meant? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 122 1 A. New drivers go through training when they 2 come on with us so -- 3 Q. Is this particular tank used as the 4 example for the training? 5 A. Anybody that drives the tanker is being 6 trained. Not all of our drivers are class A CDL 7 drivers so there's only actually two drivers that 8 would handle this tanker. 9 Q. Now, you don't take issue with 10 Mr. Barrett's testimony or Mr. Barrett's 11 interpretation of 180.415(b) where he has indicated 12 that the regulation requires the marking to be 13 legible, durable and conspicuous, I believe are the 14 terms he used. You don't take issue with that, do 15 you? 16 A. No, I do not. 17 Q. For the reasons you already stated, 18 correct? 19 A. Correct. 20 Q. Okay. Now, do I understand as we sit 21 here today looking at Staff the Exhibit 2-A, there 22 appears to have been a number, perhaps a number, that 23 is smudged out on the far left there that has been 24 subject of conversation this morning, correct? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 123 1 A. Uh-huh. 2 MR. RETTICH: You have to answer out 3 loud. 4 A. Yes. 5 Q. A nod won't do it. Now, did you all do 6 that after you purchased the tanker, remove that 7 number? 8 A. No. That number was not on the tank. 9 That was likes that when we purchased it. 10 Q. So this depicts pretty much the tank the 11 way you purchased it. There might be a little rust 12 here and there but basically the markings. 13 A. Well, no. With the exception -- I 14 believe the sticker on the right over the 15 identification plate is a new sticker as well as 16 sticker on the left that indicates a test date of 17 9/06. 18 Q. Fair enough. But at least as to the -- 19 A. As to the 03 and PIW, that was the way it 20 came. 21 Q. Okay. And your testimony -- was your 22 testimony earlier with regard to the letter W that 23 you weren't sure what it meant but it is your 24 understanding that it might involve operations up in ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 124 1 Canada, a requirement in Canada? 2 A. Correct. I don't recall that the seller 3 had told us that, but when we went to the testing 4 facility that we get all our tests done, he informed 5 us. He said there was no regulation against having 6 it on there in case we would ever go back to Canada 7 so we just left it on there. We probably have no 8 intention of ever doing business in Canada, but if 9 that might arise, that testing would be done and is 10 clearly displayed. 11 Q. Now, do I understand, Mr. Kothari, your 12 testimony here today to be that the date that 13 appears -- strike that. On the periodic inspection 14 date that's the date of 9/06, September of 2006, 15 presumably -- correct? 16 A. Correct. 17 Q. Now, is it your testimony that the 9 that 18 appears on that plate should be implied for purposes 19 of the five-year test designation below it? 20 A. Yes. 21 Q. Okay. All right. And I believe you used 22 the term, as your reasoning for that, you used the 23 term aligned, did you not? 24 A. I used when the tests were aligned, when ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 125 1 they were done in the same month, then that's why the 2 tanker is marked that way. Both the tests, the 3 five-year and one-year test, were done in the month 4 of September in different years, three years apart. 5 Q. I guess I'm a little confused about 6 something then. Is it your testimony that the 7 03 that appears to the left of PIW, that that refers 8 to a year? 9 A. To 2003. 10 Q. To 2003, all right. You purchased this 11 tank at the end of 2005; is that right? 12 A. Late 2005 or early 2006. 13 Q. All right. And then in September 2006 14 you had the visual and the leak test done, anyways, 15 as per the plate, right? 16 A. Right. 17 Q. And you're also saying -- strike that. 18 Just out of curiosity, is it expensive to have these 19 five-year tests done? 20 A. Yes. It's not cheap. It's several 21 thousand dollars. 22 Q. Several thousand dollars, okay. So what 23 your testimony is here is you bought the tank in late 24 '05 or early '06, and then you had the five-year test ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 126 1 done at the same time you had the periodic inspection 2 test. 3 A. No. The five-year test was done prior to 4 us purchasing the tanker. It was in -- the test was 5 done in 2003. It's not due again now until 6 September 2008. 7 Q. My math would agree with that. But 8 what -- I thought you just testified a moment ago you 9 said the testing of those two was aligned. 10 A. One is a five-year test and one was a 11 one-year test. They are aligned in the month, but 12 there is going to be a five-year difference in 13 between the two tests. 14 Q. And presumably that would have been a 15 fairly easy thing to establish, wouldn't it, with the 16 proper paperwork? 17 A. What do you mean by "establish"? 18 Q. The month that the five-year test was 19 done, the fact that it was done in September, just 20 you had the periodic test done? That would be an 21 easy thing to establish, wouldn't it? 22 A. It is right on the paperwork, I'm sure, 23 yes. 24 Q. You would agree with me that an inspector ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 127 1 looking at this could reasonably be confused with the 2 lack of a month designation accompanying the 03, 3 wouldn't you? 4 A. I don't know what else the 03 could be 5 besides a year unless the tanker was not roadworthy. 6 Q. No one sitting here today saying the 7 tanker is not roadworthy. You understand that? 8 A. I understand that. 9 Q. This is all about the marking on the 10 tank. 11 A. I understand. 12 Q. You have the copy of the regulation with 13 you today? 14 A. It's on the table. 15 MR. WRIGHT: Could counsel provide that 16 to him, please. 17 A. I don't believe what we brought is 18 actually from the Federal Motor Carrier Regulations. 19 I think it's an interpretation. 20 MR. RETTICH: I'll hand it to him. 21 MR. WRIGHT: Thank you, I appreciate 22 that. 23 Q. Now that you have that -- okay, take a 24 minute, if you would, to look at the regulation. And ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 128 1 again, I recognize you are not offering a legal 2 opinion. Take a minute and refresh your recollection 3 about the regulation itself and what it requires, and 4 then if you would point me to the language in the 5 regulation that you believe supports your position 6 that there need be no date listed with the 7 03 designation for the five-year test? 8 A. Okay. What I believe the first two lines 9 of 180.415(b) to say is: Each cargo tank must be 10 durably and must be marked in English with the date, 11 month and year and the type of test or inspection 12 performed. The date must be readily identifiable 13 with the applicable test or inspection. 14 So In our case we have the V and the K 15 test done 9/06 and the P and I test done on 9 of '03. 16 Q. But other than your testimony here today 17 we don't have anything to support your statement that 18 the five-year test was done in 9/03. 19 A. I've walked into this late so I don't 20 know what you have and what you don't have, but if 21 you say you don't have it, I believe you. 22 Q. Now, there's been some testimony -- well, 23 if I can, you just referenced 180.415(b), correct? 24 A. Right. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 129 1 Q. That's the language you were referring 2 to. 3 A. Yes. 4 Q. Okay. It does say month and year, does 5 it not? 6 A. It does say month and year, yes. 7 Q. And it does say it suggests a designation 8 based on the type of test or inspection performed; 9 correct? 10 A. It does say that, yes. 11 Q. Okay. Now, the nature and scope of the 12 testing that's done periodically, that's the 13 annual -- when I use that term you understand that to 14 mean the annual? 15 A. Yes, I understand that. 16 Q. -- is different than what is required to 17 be tested every five years, correct? 18 A. That is correct. 19 Q. Okay. Would it be fair to say that the 20 five-year testing is much more in depth? 21 A. It is. 22 Q. Would it be fair to say that the 23 five-year testing requires, among other things, an 24 internal inspection of the tank? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 130 1 A. It does. 2 Q. That is someone actually physically 3 inside the tank. 4 A. Yes. 5 Q. It would require a close check of all 6 welds for corrosion, that sort of thing? 7 A. It does. 8 Q. A pressure test; is that right? 9 A. P, yes. 10 Q. Okay. None of which is required as part 11 of the annual testing; correct? 12 A. No. 13 Q. So it's both a very expensive test, I 14 assume. Presumably because it's so much more 15 comprehensive, it's only required five years. I 16 recognize I'm asking you to assume that. Is that a 17 fair assumption, you believe? 18 A. Amongst other things, yes. I'm sure 19 that's one of the reasons why. 20 Q. Well, it's probably safe to say that a 21 small company like yourself would not be happy if all 22 that were required annually, right? 23 A. It would be burdensome, you know, but we 24 would comply. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 131 1 Q. So, again, the periodic testing and the 2 testing for the five-year testing we just went 3 through, different areas, different levels of 4 comprehensiveness, different costs. 5 A. Yes. 6 Q. By the way, do you use the same testing 7 outfit for both? 8 A. We use several different testing outfits 9 depending on their schedule. Lot of time they get 10 backed up and it could take up to a month to get us 11 in so we have several we could use. 12 Q. Okay. Now, I think we're about done. 13 Back to Staff Exhibit 2-A if we could for a moment. 14 A. Okay. 15 Q. What I'll call again this smudge, if you 16 will, what appears to perhaps been a number at one 17 time to the left of '03, do you see that? 18 A. Right. 19 Q. Do you know -- you were employed by the 20 company at the time the tank was purchased. 21 A. I was. 22 Q. Were you part of the purchase 23 transaction? 24 A. I viewed the tanker prior to purchase, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 132 1 yes. 2 Q. You did. Did you at that time ask the 3 prospective seller of the tank what that had been? 4 A. I don't believe I did, no. 5 Q. Do you know when you purchased the tank, 6 did it come with a history of anybody else that had 7 owned it other than the Cleveland outfit? 8 A. No, it didn't come with a history. It 9 just came with the appropriate title and testing 10 paperwork. 11 Q. You don't know as you sit here today 12 whether or not that was a number at one time, 13 correct? 14 A. Well, it -- not to 100 percent certainty, 15 no. 16 Q. And likewise you don't know whether or 17 not some prior owner of this tank thought there did 18 have to be a designation of a month with the 03, 19 correct? 20 A. I can't speak for a prior owner of the 21 tank so, no, I do not know. 22 Q. That's my point. Okay. 23 MR. WRIGHT: Could I have one second, 24 your Honor? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 133 1 THE ATTORNEY EXAMINER: Certainly. 2 Q. Just to recap, the difference of opinion 3 we appear to be having here -- strike that. You 4 understand what has given rise to the marking 5 violation for which your company has been cited is 6 the lack of a numerical designation of the month with 7 the 03, what you believe to be the 03 year, correct? 8 A. I understand that's why we have been 9 cited, yes. 10 Q. And, again, the company, neither today or 11 in the last year, has come forward with any paperwork 12 of any kind to establish that this testing was in 13 fact the five-year testing that was in fact performed 14 in the month of September of 2003, correct? 15 A. Based on what I've heard today, yes, I 16 agree that's true. I'm not sure what has been sent 17 to PUCO but -- 18 Q. I want to repeat to you, that has not 19 been sent to PUCO. 20 A. Then I believe you, yes. 21 Q. Okay. You heard Mr. Barrett indicate 22 today, I believe that was actually a question from 23 your counsel, about the fact that he had -- he's 24 viewed hundreds of Hazmat trucks out in the field. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 134 1 Do you recall that? 2 A. Yes, I do. 3 Q. And I believe his testimony indicated 4 that had the testing been, as you used the term, 5 aligned, there could have been a different 6 designation used on the tank, a designation of VKIP. 7 Do you know what means? 8 A. That the two annual tests and the two 9 five-year tests. 10 Q. Okay. 11 A. That type of designation could happen 12 once every five years. The last time that could 13 happen is September '03 and the next time it could 14 happen is September of '08. It has to be on the same 15 sticker of the periodic and the five year only on 16 those two dates and then five years out will that 17 ever occur. 18 Q. Staff Exhibit 1-A, I believe you have 19 seen that. This is signed copy. 20 A. Yes, I have seen it. 21 Q. The representation at the end of that, it 22 says Certification of Completed Repairs, and it's 23 signed by various individuals from your company, 24 correct? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 135 1 A. Yes. 2 Q. And that apparently is intended to 3 reflect that the mechanical repairs have all been 4 taken care of, right? 5 A. Yes. 6 Q. Was there anything done about this -- 7 A. It was actually. 8 Q. -- Staff Exhibit 2-A. 9 A. Yes. 10 Q. How does the tank designation differ 11 today than it was then? 12 A. Well, to avoid any further problems, we 13 added an 09 to the front of that. 14 Q. On the same line as the 03? 15 A. On the same line as the '03. 16 Q. And do you know who put that on? 17 A. It would have been Allen Combs, our 18 director of maintenance and mechanic. 19 Q. Do you know on whose instructions he 20 would have done that? 21 A. I don't know that. 22 Q. Would they have been yours? 23 A. No. 24 Q. I might have misunderstood. You ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 136 1 indicated the designation would be put on by 2 Mr. Combs, is that what you said, the adding of the 3 09? 4 A. Yes, by Mr. Combs. 5 Q. Who is responsible for putting these 6 designations on the tankers? 7 A. It would generally be Mr. Combs. He 8 handles most of our maintenance and things like that. 9 The sticker would be the testing agency would have 10 done that. 11 Q. Okay, but the 09, you added it to this. 12 A. Yes. The tanker needs to be -- we keep 13 it on the road. It runs several times a week so to 14 avoid any further issues or tickets or citations we 15 added the 09. 16 Q. In fact, have there been any further 17 tickets or citations with regard to this particular 18 tanker since that change in marking was done? 19 A. Not that I'm aware of, no. 20 MR. WRIGHT: Thank you very much. That's 21 all we have. 22 THE ATTORNEY EXAMINER: Mr. Rettich. 23 - - - 24 REDIRECT EXAMINATION ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 137 1 By Mr. Rettich: 2 Q. I have a few questions. You haven't 3 received any citations from the time you purchased 4 the tanker until 12/21/06, had you? 5 A. No. 6 Q. The tanker ran three teams a week since 7 the day you acquired it? 8 A. At least, yes. 9 Q. Did you at any time change the 03; is it 10 identical to what is depicted in this photograph? 11 A. It's identical. 12 Q. There hasn't been an allegation that the 13 tanker truck didn't have a PI test, that's not an 14 allegation, is it, Mr. Kothari? 15 A. Not that I'm aware of, no. 16 Q. How often does this tanker go from your 17 plant to Indianapolis. 18 A. Twice a week. 19 Q. So it would have been across the scale 20 twice a week for literally months? 21 A. Probably close to a hundred times back 22 and forth. 23 Q. The violation you received, if you refer 24 to State's Exhibit 1, I think you have a copy in ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 138 1 front of you, it says that you don't have the P, 2 display a letter P and the test date. 3 A. Right. 4 Q. But there is a letter P, isn't there? 5 A. There is. 6 Q. And the second violation says the exact 7 same thing, fails to display a letter I and the test 8 date; isn't that correct? 9 A. That's what it says, yes. 10 Q. But the I is there. 11 A. Yes. 12 MR. RETTICH: I have no other questions. 13 - - - 14 RECROSS-EXAMINATION 15 By Mr. Wright: 16 Q. As part of the your job functions, 17 Mr. Kothari, are you responsible for scheduling all 18 the trucks? 19 A. Scheduling for the routing? 20 Q. Yes. 21 A. No. I oversee the person that schedules 22 the trucks. 23 Q. Okay. So for you to say that the amount 24 of time that truck or that tanker was on the road, ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 139 1 you really don't know firsthand, do you? 2 A. Yes, I do. One of my functions was to 3 start the Indianapolis branch, and I was actually 4 living in Indianapolis for the year, and we had to 5 receive those shipments in Indianapolis to maintain 6 operations there, so I was probably present at 7 75 percent of those tanker swaps. 8 Q. Are you saying that the same tanker is 9 used on all the trips to Indianapolis? 10 A. We have two. We use one primarily for 11 Indiana and other for local transport. I can't say 12 it's every trip, but it was probably the majority of 13 the trips. 14 Q. Regardless of the fact that this case is 15 not centering on whether the vessel is itself 16 roadworthy, i. e., that the testing has been done, 17 you do understand that the staff as we sit here has 18 not been presented with evidence that the testing was 19 actually done, the five-year testing was actually 20 done. 21 A. I understand that you've said you have 22 not received that paperwork. 23 Q. You would agree with me, would you not, 24 the only objective evidence to a field inspector that ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 140 1 it has been done would be an accurate marking on the 2 tank itself? 3 A. I would agree to that, yes, to a field 4 inspector. 5 Q. And the field inspectors are important 6 folks in this process, are they not? 7 A. Yes. I wasn't trying to belittle them. 8 Yes, definitely so. 9 MR. WRIGHT: That's it, thank you. 10 THE ATTORNEY EXAMINER: Mr. Rettich, any 11 further questions on your part? 12 MR. RETTICH: I have no further 13 questions. 14 THE ATTORNEY EXAMINER: Thank you both, 15 gentlemen. We earlier discussed possible dates for 16 full briefs, and our court reporter indicated it 17 typically takes ten business days for the transcript 18 to be available. Ten business days would be 19 approximately April 18. So with that in mind, what 20 date would you be comfortable with for the filing of 21 briefs, two weeks after that? 22 MR. WRIGHT: May I inquire first as a 23 preliminary matter, are we talking about an initial 24 brief and reply brief or one brief . ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 141 1 MR. RETTICH: First, I was going to do 2 one, it's going to be if I can find some case that 3 addresses these markings, and I have looked, and I 4 have not yet found it, but I would like the 5 opportunity to look again. Maybe I won't find 6 anything. 7 THE ATTORNEY EXAMINER: You're indicating 8 you would file one brief. 9 MR. RETTICH: That's exactly what I'm 10 indicating. I'm sorry, I should have been more 11 straightforward. 12 MR. WRIGHT: That was my question, one or 13 two briefs. We are certainly agreeable to doing one. 14 MR. RETTICH: My problem, I am going to 15 be out of the country from the 26th of April to the 16 12th of May. Other than that, I work constantly so 17 that would be my only holdup. 18 THE ATTORNEY EXAMINER: Apparently the 19 transcript would be ready on the 18th. That would 20 only give you a week. If more time is needed, we 21 will grant more time. 22 MR. RETTICH: How about due the 26th of 23 May? 24 MR. WRIGHT: How does that fall with ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 142 1 respect to Memorial Day? 2 THE ATTORNEY EXAMINER: That is Memorial 3 Day. Why don't we say the 23rd of May, filing of 4 briefs, then just one brief by each party on May 23. 5 Any other questions on any issues? 6 MR. RETTICH: I don't believe so. 7 THE ATTORNEY EXAMINER: Thank you very 8 much to both of you for your preparation. This 9 meeting is adjourned. 10 (The hearing adjourned at 1:56 p.m.) 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 143 1 CERTIFICATE 2 I do hereby certify that the foregoing is a 3 true and correct transcript of the proceedings taken 4 by me in this matter on Friday, April 4, 2008, and 5 carefully compared with my original stenographic 6 notes. 7 _______________________________ Professional Reporter and 8 Notary Public in and for the State of Ohio. 9 My commission expires April 5, 2009. 10 (RFA-8124) 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481