1 

2 

3 

4 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: § 

§ FAA Case No. 

§ 2011SW700189 

Page 1 

5 § FDMS No. FAA-2013-0040 

§ 

6 

7 

8 

9 

10 

11 

12 

13 

14 

§ Judge: Honorable 

MARTINAIRE AVIATION, LLC § Richard C. Goodwin 

************************* 

ORAL DEPOSITION OF 

PAUL DANIEL KLIMAS 

May 17, 2013 

************************* 

;A 

··~ORIGINAL 

15 ORAL DEPOSITION OF PAUL DANIEL KLIMAS, produced as a 

16 witness at the instance of the PLAINTIFF, and duly sworn, 

17 was taken in the above-styled and numbered cause on May 

18 17, 2013 from 9:01a.m. to 9:59a.m., before JanaK. 

19 Richter, CSR, CMRS, CLR, RSA in and for the State of 

20 Texas, reported by machine shorthand, at Regus Office 

21 Suites, 2000 East Lamar Boulevard, Suite 600, Arlington, 

22 Texas 76006, pursuant to the Federal Rules of Civil 

23 Procedure and the provisions stated on the record or 

24 attached hereto. 

25 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A P P E A R A N C E S 

2 

3 ATTORNEY FOR MARTINAIRE AVIATION, LLC: 

4 

Mr. Michael L. Dworkin 

5 MICHAEL L. DWORKIN AND ASSOCIATES 

465 California Street, Suite 210 

6 San Francisco, California 94104 

Telephone: 415-421-2500 

7 Facsimile: 415-421-2560 

8 

9 ATTORNEYS FOR FEDERAL AVIATION ADMINISTRATION: 

10 

Mr. James Archier 

11 Ms. Becky Holmes 

FEDERAL AVIATION ADMINISTRATION 

12 Office of Regional Counsel 

Southwest Region, ASW-7 

13 2601 Meacham Boulevard, Suite 6E 

Fort Worth, Texas 76137 

14 Telephone: 817-222-5099 

Facsimile: 817-222-5092 

15 

16 

ALSO PRESENT: 

17 

Mr. Alan S. Rusinowitz 

18 

* * * * * 

19 

20 

21 

22 

23 

24 

25 

Sunbelt Reporting & Litigation Services 

Page 2 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 3 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 INDEX 

2 Page 

3 Appearances ...... . 2 

4 Examination by Mr. Michael L. Dworkin. 5 

5 Changes and Signature ..... 32 

6 Reporter's Certification .. 33 

7 * * * * * 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 4 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 EXHIBIT INDEX 

2 Number Description Page Marked 

3 1 Martinaire Aviation, LLC's (First Amended) 

4 Notice of Deposition and Request for 

5 Production of Documents and Things ... 5 

6 2 Resume of Paul Daniel Klimas ............. . 7 

7 3 Letter dated June 19, 2012 to Mr. Michael 

8 L. Dworkin from James Archier ....... . 18 

9 4 Attachments to Martinaire's letter of 

10 response. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 

11 5 Letter dated June 9, 2009 to Mr. Alan 

12 Rusinowitz from Bryan Buchanan; letter 

13 dated May 29, 2009 to Paul Klimas from 

14 Alan Rusinowitz; letter dated May 14, 2009 

15 to Paul Klimas from Alan Rusinowitz ...... . 27 

16 6 Order Assessing Civil Penalty dated June 19, 

17 2009 ...................................... 29 

18 7 Order Assessing Civil Penalty dated May 18, 

19 2009 ...... . 30 

20 * * * * * 

21 

22 

23 

24 

25 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 5 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 PAUL DANIEL KLIMAS, 

2 having been first duly sworn, testified as follows: 

3 EXAMINATION 

4 (Klimas Exhibit 1 was marked.) 

5 QUESTIONS BY MR. MICHAEL L. DWORKIN: 

6 Q Good morning, Mr. Klimas. 

7 A Good morning. 

8 Q I've handed you what's been marked as Klimas 1. 

9 This is the notice of deposition for both you and 

10 Mr. Buchanan. Have you seen this before? 

11 A Yes, I have. 

12 Q Okay. Have you ever had your deposition taken 

13 before? 

14 A No, sir. 

15 Q Okay. Let me go through a few rules of 

16 engagement, so to speak. 

17 Everything that is said here in the 

18 conference room while we're on the record is being 

19 reported by the court reporter. She will transcribe it 

20 into a booklet form, and you'll have the opportunity to 

21 review your transcript and to make changes or 

22 corrections. 

23 It is very, very important that while we're 

24 sitting here, you give us your best answer because if 

25 this matter goes to hearing, I can comment on any changes 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 6 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 or corrections you've made to your transcript. So try to 

2 give us your best answer. 

3 A Understood. 

4 Q If you -- and, also, because of the limitations 

5 of the court reporter system, our court reporter, 

6 although she is quite capable, can only take down what 

7 one person is saying at a time. So please wait for me to 

8 finish the question before you start to answer. Okay? 

9 A Yes, sir. 

10 Q And likewise, I'll try not to step on you. 

11 It is also very, very important that all 

12 answers be verbalized. A nod or a shake of the head 

13 doesn't show up in the transcript. Likewise, "uh-huh" 

14 and "huh-uh" look identical in the transcript, so it is 

15 important that "yes" answers be verbalized "yes" or 

16 affirmative, and "no" answers be verbalized as "no" or 

17 negative. Okay? 

18 A Yes, sir. 

19 Q This is not the Spanish Inquisition. The 

20 objective is not to make you uncomfortable. The 

21 objective is just simply to gather facts in connection 

22 with this case. I'm not attempting to harass you, make 

23 you uncomfortable, upset you, or anything like that. 

24 Okay? We'll just maintain a very, very professional 

25 dialogue during this deposition. 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 7 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A Yes, sir. 

2 Q Is there any reason why your deposition cannot 

3 be taken today? 

4 A No, sir. 

5 Q Okay. Are you under the influence of any drugs 

6 or medication that would adversely affect your ability to 

7 be deposed today? 

8 A No, sir. 

9 Q Let's see -- I was going to give you one more 

10 admonition, but it seems to have slipped my mind. If it 

11 comes back, I'll remember it. You know, one of the 

12 things that's the first to go is the memory. 

13 (Klimas Exhibit 2 was marked.) 

14 Q (By Mr. Dworkin) Okay. I have here, which your 

15 attorney, Mr. Archier, provided me, your CV. It's 

16 identified as Klimas Exhibit 2. It was also Government 

17 Exhibit B in some prior documents that the FAA had filed 

18 in this case. It appears to be your CV; is that correct? 

19 A Yes, it is. 

20 Q Okay. Is that your current CV? 

21 A Yes, it is. 

22 Q Okay. Has there been any changes since that was 

23 prepared? 

24 A No, sir. 

25 Q Okay. And what you listed there is true and 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 8 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 correct, correct? 

2 A Yes, sir. 

3 Q In connection with today's deposition, did you 

4 bring any writings or documents with you? 

5 A I don't have anything on me right now, sir. No, 

6 not at all. 

7 Q Okay. This case involves the notifications of 

8 pilot in command. And these are the documents that are 

9 required by Section 175.33(a) (1) and various other 

10 sections of the Hazardous Materials Regulations and 49 

11 CFR; is that correct? 

12 A Yes, sir. 

13 Q Okay. And as a hazardous materials specialist 

14 with the FAA, you are familiar with the Hazardous 

15 Materials Regulations; is that correct? 

16 A Yes. 

17 Q Okay. Now, I don't expect you to have committed 

18 the regulation to memory, but my understanding of this 

19 regulation is that when a hazardous material is carried 

20 in an aircraft, the operator of the aircraft has to 

21 provide the pilot in command with accurate and legible 

22 written information concerning the shipping name, hazard 

23 class, and identification number of the material; is that 

24 correct? 

25 A Yes, sir. 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 9 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 Q Okay. And the regulation says that the operator 

2 of the aircraft has to provide this to the pilot in 

3 command? 

4 A Yes, sir, it does. 

5 Q Okay. There has been an assertion made in this 

6 case by the FAA that the notification of pilot in 

7 command, also known as a NOPC, N-0-P-C, serves some other 

8 purposes. Are there other purposes that the NOPC serves? 

9 A Yes, there is, sir. 

10 Q Okay. What other purposes does the NOPC serve? 

11 A In addition to what you've just spoke about also 

12 for emergency response procedures in event of an incident 

13 involving the aircraft. 

14 Q Okay. And specifically, how would a NOPC come 

15 into play in an emergency response? 

16 A If there's an incident involving the flight, 

17 somebody on the ground would now have access to the 

18 information on the NOPC for emergency response 

19 procedures. 

20 Q Okay. Where in 175.33 does it state that the 

21 NOPC is used for emergency response procedures or should 

22 be available for emergency response procedures? 

23 A It does not. 

24 Q Okay. Are there any FAA written opinions that 

25 are publicly available, to your knowledge, that state 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 10 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 that the NOPC is used for emergency response purposes? 

2 A No. That is a practice. 

3 Q A practice that has been in effect for how long? 

4 A One example I can think of was the Fed-Ex 

5 incident. 

6 Q And that occurred when and where? 

7 A I believe 1999 in New York. I'm not sure on the 

8 years. 

9 Q Okay. Are there any FAA handbooks or orders or 

10 advisory circulars that state that the NOPC, in addition 

11 to serving as a notice to the pilot in command, is also 

12 to be used for emergency response procedures? 

13 A I don't believe so. Not that I'm aware of. 

14 Q Now, you were -- as the hazardous materials 

15 specialist, you were the investigating inspector in this 

16 case; is that correct? 

17 A Yes, sir. 

18 Q Now aside from Martinaire, are there other 

19 carriers that you routinely inspect and survey concerning 

20 NOPC issues? 

21 A Yes. 

22 Q What carriers are there? 

23 A American Airlines, United Airlines, just to name 

24 two. 

25 Q As an example -- well, with American, when an 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 11 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 American Airlines flight is caring hazardous materials, 

2 does the American flight crew prepare the NOPC, or is 

3 that done by somebody else in some office somewhere? 

4 A The flight crew reviews the NOPC. 

5 Q Okay. But the NOPC is actually prepared by 

6 someone else other than the flight crew; is that correct? 

7 A Yes, sir. 

8 Q Okay. And likewise, with United Airlines? 

9 A Yes, sir. 

10 Q Okay. And unlike American and United Airlines, 

11 in Martinaire's case, it is the pilot who physically 

12 prepares the NOPC; is that correct? 

13 A No, sir. The dispatcher takes a -- the NOPC is 

14 communicated to the dispatcher. 

15 Q And it's communicated to the dispatcher by the 

16 pilot? 

17 A Yes, sir. 

18 Q Okay. In the case of American Airlines and 

19 United Airlines, does the flight crew communicate that 

20 information to dispatch, or is that information already 

21 within the company? 

22 A Only when an item has been removed at the end or 

23 they reject an item. 

24 Q Okay. So in other words, in the case of 

25 American or United, the NOPC is prepared by some entity 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 12 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 other than the flight crew? 

2 A Yes, sir. 

3 Q And it is based upon information that is 

4 acquired by some entity other than the flight crew within 

5 the United or the American organizations? 

6 A Yes, sir. 

7 Q And the only time that the flight crew -- and 

8 I'm using the term "flight crew," because American and 

9 United Airlines are piloted by more than one person --

10 A Yes, sir. 

11 Q -- at least I should hope so -- the only time 

12 that the flight crew provides some information to 

13 dispatch is in the event some item is removed or 

14 rejected? 

15 A Yes, sir. 

16 Q In Martinaire's case, it is the pilot who is 

17 providing the information to dispatch; is that correct? 

18 A Yes, sir. 

19 Q Okay. So in terms -- although dispatch prepares 

20 the notice to the pilot in command, in essence, the pilot 

21 is preparing the basis for -- the guts of the 

22 notification to himself? 

23 A Yes, sir. 

24 Q Now, on July 8 of 2011, you conducted -- and it 

25 wasn't just you, but there were other FAA hazardous 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 13 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 material specialists who accompanied you an inspection 

2 at Martinaire's facility; is that correct? 

3 A Yes, sir. 

4 Q And that was at their facility in Addison, 

5 Texas? 

6 A Yes, sir. 

7 Q And this was a full-based HAZMAT inspection? 

8 A Yes, sir. 

9 Q You were not just looking at NOPCs; you were 

10 looking at their HAZMAT training program, their HAZMAT 

11 compliance, everything? 

12 A At Addison? 

13 Q Yes. 

14 A Yes, sir. 

15 Q In addition to the Addison inspection, did you 

16 conduct an inspection at other Martinaire facilities that 

17 day? 

18 A Yes, sir. 

19 Q Where? 

20 A DFW International Airport. 

21 Q Okay. And what were you looking for at DFW? 

22 A Compliance with the pilot notification 

23 procedures, aircraft loading, acceptance, watching, 

24 making sure they're operating safely. 

25 Q Okay. How long did the DFW inspection take? 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 14 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A I don't recall. 

2 Q Okay. With respect to what you observed at DFW, 

3 did Martinaire appear to be in compliance? 

4 A Yes, sir. 

5 Q And so then you went to Addison. And what 

6 things were you looking at in Addison, other than the 

7 NOPCs? 

8 A Hazardous materials training records. As I 

9 recall, took a look at the stores operation as well. 

10 Q And were the HAZMAT training records in 

11 compliance? 

12 A Yes, sir. 

13 Q Was the stores operation in compliance? 

14 A Yes, sir. 

15 Q As a matter of fact, would it be fair to say 

16 that with respect to HAZMAT compliance, other than the 

17 NOPCs, everything else that you and your team saw was in 

18 compliance with the HMRs? 

19 A we had no other findings. 

20 Q How long did the inspection at Addison take? 

21 A I don't recall. I believe we were done probably 

22 12:30 or 1:00 o'clock that day. we started early at DFW. 

23 Q Okay. Now, in terms of Martinaire's training, 

24 Martinaire performs HAZMAT training every 12 months; is 

25 that correct? 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 15 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A As I best recall, yes. 

2 Q The regulations require training every 24 

3 months, but Martinaire elects to do 12 months; is that 

4 correct? 

5 A Yes, I believe so. 

6 Q Do you think that's a good thing? 

7 A Yes, I personally do. 

8 Q And so what brings us here together on this day 

9 in this case are 12 sample NOPCs that you had some 

10 difficulties with? 

11 A Yes, sir. 

12 Q Okay. And which Martinaire admitted were 

13 deficient? 

14 A Yes, sir. 

15 Q There's been no argument from Martinaire that 

16 these NOPCs were deficient? 

17 A Correct. 

18 Q They basically fessed up and said, "You're 

19 right"? 

20 A Yes, sir. 

21 Q And in response to your findings, what, if 

22 anything, did Martinaire do? 

23 A Retraining. That's about -- I have not 

24 performed an inspection of Martinaire since that time, so 

25 I can only go with what was in the letter. 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 16 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 Q Did you find that Martinaire had expressed 

2 sufficient level of concern about your findings? 

3 A Yes, sir. 

4 Q Do you think that Martinaire's response was 

5 adequate? 

6 A Yes, sir. 

7 Q Do you think that their corrective action was 

8 adequate? 

9 A Yes, sir. 

10 Q As a matter of fact, following the inspection of 

11 July 8th, Martinaire had -- it actually revised their 

12 NOPC form; is that correct? 

13 A Yes, sir. That was in the letter of response, I 

14 believe. I have not performed an inspection since that 

15 time. 

16 Q Okay. As a matter of fact, the corrective 

17 action that Martinaire took was relatively instantaneous; 

18 was it not? 

19 A I believe changes were enacted rather quickly, 

20 yes, sir. 

21 Q Okay. Your inspection was July 8, and I believe 

22 the changes took place something, like, July 11th? 

23 A We met on July 11th, yes. 

24 Q Okay. And the purpose of the meeting on 

25 July 11th was what? 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 17 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A To discuss the inspection and what had occurred. 

2 Q Okay. And at that July 11th meeting, was that 

3 when Martinaire had actually revised the NOPC form? 

4 A I do recall talking about it on that date. 

5 Q Okay. Did you or your team play a role in the 

6 changes that were made to the form? 

7 A I believe those were completed by 

8 Mr. Rusinowitz. 

9 Q Did you provide any input? 

10 A I don't recall. 

11 Q Is there any corrective action that you would 

12 have like to have seen Martinaire take that they didn't 

13 take? 

14 A I don't recall any, no. 

15 Q So as we sit here today, they were -- they took 

16 these findings seriously, they acted accordingly, and 

17 they were fully responsible? 

18 A Yes. 

19 Q So you have no gripes as to the amount of effort 

20 or the -- or with respect to the concern or the 

21 responsiveness or the thoroughness of the corrective 

22 actions that Martinaire undertook? 

23 A No, I do not. 

24 Q Now, as the investigating inspector, you 

25 prepared what is known as an EIR; is that correct? 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 18 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A Yes, sir. 

2 Q And the "EIR" stands for Enforcement 

3 Investigative Report 

4 A Yes, sir. 

5 Q -- is that, correct? 

6 A Yes, sir. 

7 (Klimas Exhibit 3 was marked.) 

8 Q (By Mr. Dworkin) Mr. Klimas, I'm handing you or 

9 have just handed you what has been marked as Klimas 

10 Exhibit 3. 

11 There is a cover letter to me from 

12 Mr. Archier, but that cover letter represents that the 

13 attachments are the EIR. If you could take a look at 

14 that and verify that the EIR has been attached to that 

15 letter. 

16 A Yes, sir I it has. 

17 Q Is that the EIR that you prepared? 

18 A Yes, sir. 

19 Q Okay. Going to the first page after 

20 Mr. Archier's letter there's an FAA memorandum dated 

21 September 20, 2011. It's to David Donnell, the Assistant 

22 Chief Counsel from Marty S. Alford. Is he your ultimate 

23 supervisor? Other than Mr. Huerta? 

24 A Ms. Alford --

25 Q "Ms. Alford." I'm sorry. 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 19 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A -- is the central office director. 

2 Q Was this memorandum prepared by Ms. Alford, or 

3 was it prepared by you? 

4 A I did not prepare this. 

5 Q Okay. Let's go to the -- we have the -- the 

6 next page is the Enforcement Investigation Report. And 

7 that's the document that you have prepared; is that 

8 correct? 

9 A Yes, sir. 

10 Q And the next page bears a redaction under 

11 "Regulation Believe Violated.'' Did you redact that? 

12 A No, sir. 

13 Q So that was done by somebody else? 

14 A Yes, sir. 

15 Q Okay. And -- but under the "Regulations Believe 

16 Violated," when you prepared the report, I would presume 

17 you put in the pertinent sections of the HMR that you 

18 believed were violated by Martinaire; is that correct? 

19 A Would you mind restating the question? 

20 Q When you prepared -- you did prepare Block 18 --

21 not the redaction, but you put something in Block 18 when 

22 you prepared your report? 

23 A Yes, sir. 

24 Q And that would have been the provisions of the 

25 HMRs that you believed that Martinaire violated by reason 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 20 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 of the incomplete NOPCs? 

2 A That's what goes in the box. 

3 Q Okay. And on the next page, there's another 

4 redaction. And, again, that's "Regulations Believed 

5 Violated," the same thing. And then there are some 

6 recommendations under "Type Action" and "Sanction," and 

7 those have been redacted? 

8 A Yes, sir. 

9 Q The next page is a I guess a Regional 

10 Division Review by somebody in regional headquarters; is 

11 that correct? 

12 A Yes, sir. 

13 Q It's Gary Moore? 

14 A Yes, sir. 

15 Q Then after Mr. Moore's sign-off we have a 

16 Section B of the EIR, and that was also prepared by you? 

17 A Yes, sir. 

18 Q And if you go to paragraph Roman Numeral II of 

19 Section B, which I think is about four pages in, "Factor 

20 Affecting Sanction," and, likewise, Roman Numeral III, 

21 "Other Information" and Roman Numeral IV, "Enforcement 

22 Decision Tool Worksheet," were those redactions done by 

23 you or by somebody else? 

24 A I did not perform those redactions, sir. 

25 Q Okay. So with respect to items II, III, and IV, 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 21 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 you had put something in --

2 A Yes, sir. 

3 Q -- that report; is that correct? 

4 A That's correct. 

5 Q What factors did you consider that affected 

6 sanction? 

7 A Compliance history. 

8 Q And specifically what about Martinaire's 

9 compliance history? 

10 A Would you mind being more specific? 

11 Q Yeah. You said you considered Martinaire's 

12 compliance history, and, specifically, what? Were there 

13 other incidents that you felt were significant? 

14 A There were similar violations within the last 

15 five years. 

16 Q Okay. Were there any other factors that you 

17 considered in determining sanction? 

18 A The nature of the violation. 

19 Q What else? 

20 A I believe that was all, sir. 

21 Q Did you consider Martinaire's response --

22 A Yes. 

23 Q -- to the FA findings? 

24 A Yes. 

25 Q And the immediacy of Martinaire's response? 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 22 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A Yes. 

2 Q And the comprehensiveness of Martinaire's 

3 response? 

4 A Yes. 

5 Q What did you put in/ in terms of "Other 

6 Information" in block Roman Numeral III? 

7 MR. ARCHIER: I'm going to object to that 

8 question. This document that is redacted is redacted by 

9 the attorney, me. He does not make the redactions. The 

10 material that's redacted here goes directly to the 

11 protective order and the material that's under protection 

12 of the protective order. 

13 MR. DWORKIN: Okay. Are you directing him 

14 not to answer? 

15 MR. ARCHIER: I am directing him not to 

16 answer that question. 

17 MR. DWORKIN: And, likewise, Roman Numeral 

18 IV, are you directing him not to answer? 

19 MR. ARCHIER: What's your question? 

20 MR. DWORKIN: What he had put in the 

21 "Enforcement Decision Tool Worksheet" in his report. 

22 MR. ARCHIER: That is correct. 

23 MR. DWORKIN: And likewise, the very next 

24 page, "Hazardous Material EDP Worksheet," you're also 

25 instructing him not to answer any questions regarding 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 23 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 what he had inserted in that report? 

2 MR. ARCHIER: That is correct. 

3 MR. DWORKIN: And that goes on for pages 2' 

4 3 ' 4' 5, and 6? 

5 MR. ARCHIER: That is correct. 

6 Q (By Mr. Dworkin) In response to the FA's letter 

7 of investigation, and although you were the investigating 

8 inspector, it was Bryan Buchanan who had written the 

9 actual LOI, is that correct, or signed the LOI? 

10 A He signed the LOI. 

11 Q Okay. And I believe that went out on July 19th? 

12 A Yes, sir. 

13 Q Okay. And Martina ire responded to LOI by a 

14 letter dated August 2· ' is that correct? 

15 A Yes. 

16 Q And I believe you have it right in front of you? 

17 A Yes. 

18 Q Is there anything in that Martinaire letter with 

19 which you disagree? 

20 A No, sir. 

21 Q Now, attached to that letter were a number of 

22 attachments that were referenced right in the letter, 

23 Attachments A through, I believe, M, correct? 

24 A I recall a number of attachments, yes. 

25 Q Okay. And what that -- those attachments 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 24 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 consisted of included, among other things, pertinent 

2 provisions of Martinaire's general operating manual or 

3 GOM, changes to the HAZMAT training program that they had 

4 immediately adopted, the revised NOPC form among other 

5 things; is that correct? 

6 A As I recall, yes, sir. 

7 Q And when you got that, you were satisfied that 

8 Martinaire had essentially fixed the problem? 

9 A If they followed their program. 

10 Q How come none of those attachments to 

11 Mr. Rusinowitz or Martinaire's August 2 letter ended up 

12 in your EIR? 

13 A Would you mind rephrasing that question, 

14 possibly? 

15 Q How come none of the attachments in Martinaire's 

16 letter of response of August 2, 2011, other than 

17 Martinaire's letter, but how come the attachments didn't 

18 end up in your EIR? 

19 A I don't recall. Now, what they sent me is what 

20 I included in their letter of response. 

21 Q But you didn't include the attachments? 

22 A I don't recall not including the attachments. 

23 (Klimas Exhibit 4 was marked.) 

24 Q (By Mr. Dworkin) Let me represent to you that 

25 what has been marked as Klimas Exhibit 4 are the 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 25 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 attachments to Martinaire's letter of response. 

2 Were any of those documents included in 

3 your EIR? 

4 A If they sent them to me, I included them in the 

5 EIR 

6 Q Okay. Well --

7 A -- as part of the index of attachments --

8 Q Okay. Well 

9 A -- items of proof. 

10 Q Well, I'm looking at your EIR, Exhibit 3, which 

11 is, oh, maybe about a half an inch thick and I'm looking 

12 at the attachments to Martinaire's letter of response, 

13 which are about an inch and a half thick, and how could 

14 that inch-and-a-half pile have been included in your EIR 

15 which is about one-third the thickness? 

16 A If it was submitted, I included it. 

17 Q So in other words, what has been represented as 

18 being the EIR, is not, in fact, the EIR because the 

19 A It was -- right. It is a reprint of their 

20 HAZMAT program. 

21 Q Yes. 

22 A In total. And if I -- if I received it as part 

23 of the letter of response, I included it. 

24 Q Well, if it wasn't in the EIR that was provided 

25 to me, do you have some explanation as to what happened 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 26 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 to it? 

2 MR. ARCHIER: Can I interject? And I'm not 

3 trying to tell the witness how to answer, but maybe we 

4 can resolve this problem by going off the record for a 

5 minute. 

6 MR. DWORKIN: Sure. 

7 THE REPORTER: Off the record. 

8 (Off the record 9:36 a.m. to 9:42 a.m.) 

9 Q (By Mr. Dworkin) I take it because Martinaire 

10 does carry HAZMAT, your office has considerable dealings 

11 with them; is that correct? 

12 A I have some dealings with them, yes. 

13 Q How would you consider the relationship between 

14 your office and Martinaire? Is it a cooperative working 

15 relationship? 

16 A I would say it has been. 

17 Q When you've expressed concerns, they have 

18 responded to those concerns; have they not? 

19 A In the past, they have, yes. 

20 Q And very positively? 

21 A Yes. 

22 Q They have sought compliance, correct? 

23 A Yes. 

24 Q Now, you mentioned some prior cases. What prior 

25 cases were there? 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 27 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A Out of --

2 Q Prior HAZMAT cases. 

3 A Okay. Within the last five years --

4 Q Yes. 

5 A -- we had a letter -- a case that was closed 

6 administratively following an inspection that I completed 

7 also involving 175.33 of 49 CFR, and a case out of 

8 Northwest Mountain. 

9 (Klimas Exhibit 5 was marked.) 

10 Q (By Mr. Dworkin) I'm showing you what's been 

11 marked as Klimas Exhibit 5. What is that? 

12 A Letter of investigation following my inspection 

13 in 2009. 

14 Q Is that the case you were talking about? 

15 A The case, yes, sir. 

16 Q Okay. And that was closed with an 

17 administrative action; is that correct? 

18 A Yes, sir. 

19 Q So in other words, there was no legal finding of 

20 violation; is that correct? 

21 A There was a violation and they -- the corrective 

22 action was such that we deemed it to be closed with a 

23 letter of warning. 

24 Q Okay. And -- but a letter of warning is not a 

25 legal finding of violation, is it? 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 28 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 A A letter of warning -- there was a violation. 

2 It just was not closed with a civil penalty. 

3 Q Is there some FA document which talks about the 

4 legal force or effect of a warning letter? 

5 A Not that I can site off the top of my head. I'm 

6 aware of one, yes. 

7 Q And what does that FA document say as to the 

8 legal force or effect of a warning letter? 

9 A That it -- that a warning letter is provided 

10 when corrective actions are such that administrative 

11 closure is deemed to be the best method to complete the 

12 case. 

13 Q Is there, to your knowledge, an FA document that 

14 basically states that a letter of warning does not 

15 constitute a legal finding of violation? 

16 (A brief interruption occurred.) 

17 A A violation was found, but we opted to close it 

18 with a letter of warning 

19 Q (By Mr. Dworkin) That's not --

20 A -- administratively. 

21 Q That's not the question. 

22 Is there some FA document that talks about 

23 the legal force or effect of a letter of warning, to your 

24 knowledge? 

25 A I'm not aware of one. I can't 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 29 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 Q Okay. 

2 A Yes, sir. 

3 (Klimas Exhibit 6 was marked.) 

4 Q (By Mr. Dworkin) I'm showing you what's been 

5 marked as Exhibit 6. 

6 Is that the other NOPC case you were 

7 referring to, the order assessing civil penalty from 

8 Northwest Mountain Region? 

9 A Yes, sir, it is. 

10 Q And in that case, Martinaire had -- the FA had 

11 proposed a civil penalty of $32,400. Martinaire settled 

12 it for $20,000; is that correct? 

13 A Yes, sir. 

14 Q And could you go to the third page of that 

15 exhibit. And the second-to-the-last paragraph, if you 

16 could read the first sentence of that paragraph, 

17 beginning with, "Martinaire's payment." 

18 A Yes, sir. 

19 "Martinaire's payment of civil penalty 

20 pursuant to this Order does not constitute or imply 

21 admissions by Martinaire that it committed the violations 

22 found by the FAA, or that Martinaire agrees with the 

23 facts averred by the FAA. However, Martinaire 

24 acknowledges that this Order constitutes a finding by the 

25 FAA of the facts or regulatory violations contained 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 30 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 herein." 

2 Q And there was -- I believe you referred to a 

3 third case; is that correct? 

4 A As I recall, that was outside of the five-year 

5 search, but I believe it was within seven years. 

6 (Klimas Exhibit 7 was marked.) 

7 Q (By Mr. Dworkin) Well, the only other case that 

8 I have in checking Martinaire's rap sheet, so to speak, 

9 is what I've handed you as Exhibit 7, and that is the 

10 Purple Power case? 

11 A This occurred roughly the -- in my world, 

12 roughly the same time that our inspection took place, 

13 within a two-month period. 

14 Q Okay. And so --

15 A So it hadn't been closed at the time that I had 

16 completed the EIR. 

17 Q Okay. 

18 A That's why that wasn't included. But , yes , I do 

19 recall learning of this, but it hadn't been closed at the 

20 time. 

21 Q And this is not a NOPC case? 

22 A Right, but I was aware of the hazardous 

23 materials issue, yes. 

24 Q In determining your recommendation or making 

25 your recommendations as to what should be done with 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 31 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 Martinaire as a result of this case, did you consider 

2 this Great Lakes region case? 

3 A It was another hazardous materials case, but, 

4 no, it did not influence -- it was just another 

5 violation, but, no, because it had not been closed at the 

6 time. 

7 Q Okay. So all we have is the administrative 

8 action from 2009 and the prior Northwest Mountain case 

9 A Yes, sir. 

10 Q -- to your knowledge? 

11 A Yes, sir. 

12 Q So two cases? 

13 A Right. Because this one had not been closed at 

14 the time. 

15 MR. DWORKIN: Okay. Let me just take a 

16 five-minute break. 

17 (Recess from 9:52a.m. to 9:58a.m.) 

18 MR. DWORKIN: One of the things I learned 

19 in law school was when to speak and when to shut up. And 

20 I've got no further questions, so we're done. Thank you. 

21 THE WITNESS: Thank you. 

22 MR. ARCHIER: One of the things I learned 

23 from my mom is when to speak and when to shut up. I have 

24 no questions either. 

25 THE REPORTER: Off the record 9:59 a.m. 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

PAGE/LINE 

ro I 't I~ I q 

Page 32 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

CHANGES AND SIGNATURE 

20 I, PAUL DANIEL KLIMAS, have read the foregoing 

21 deposition and hereby affix my signature that same is 

22 true and correct,except as noted herein. 

23 

24 

25 

!2JL-J 

PAUL DANIEL KLIMAS 

~£ JOB NUMBER 108773 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 

RECEIVED JUN G 5 2013 
CERTIFICATE OF ACKNOWLEDGMENT 

STATE OF TEXAS 

COUNTY OF TARRANT 

On this, the 30th day of May , 2013, before me, Teresa Emmons , a 

Notary Public in and for the County of Tarrant, State of Texas duly commissioned and 

qualified, personally appeared Paul Daniel Klimas , known to me to be the person 

described in, or produced appropriate identification as proof of identity, and whose names 

are subscribed to the attached instrument, and acknowledged to me that he executed the 

instrument for the purposes and considerations therein stated. 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, at 

my office in the day and year in this certificate frrst written above. 

TERESA EMMONS 

MY CommiiiiOn ~ 

Oc!Obtr 19, 2011· 

Notary Public (Signature) 

~ECEWEO JUN 0 5 2013 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: § 

§ FAA Case No. 

§ 2011SW700189 

Page 33 

§ FDMS No. FAA-2013-0040 

§ 

§ Judge: Honorable 

MARTINAIRE AVIATION, LLC § Richard C. Goodwin 

REPORTER'S CERTIFICATION 

ORAL DEPOSITION OF 

PAUL DANIEL KLIMAS 

May 17, 2013 

12 I, Jana K. Richter, Certified Shorthand Reporter 

13 in and for the State of Texas, hereby certify to the 

14 following: 

15 That the witness, PAUL DANIEL KLIMAS, was duly 

16 sworn by the officer and that the transcript of the oral 

17 deposition is a true record of the testimony given by the 

18 witness; 

19 I further certify that pursuant to FRCP Rule 

20 30(f) (1) that the signature of the deponent: 

21 X was requested by the deponent or a party 

22 before the completion of the deposition and returned 

23 within 30 days from date of receipt of the transcript. 

24 If returned, the attached Changes and Signature Page 

25 contains any changes and the reasons therefor: 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 
Page 34 

ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

1 ____ was not requested by the deponent or a 

2 party before the completion of the deposition. 

3 

4 I further certify that I am neither attorney nor 

5 counsel for, related to, nor employed by any of the 

6 parties to the action in which this proceeding was taken. 

7 Further, I am not a relative or employee of any attorney 

8 or record in this cause, nor am I financially or 

9 otherwise interested the outcome of the action. 

10 Subscribed and sworn to on this the 23rd day of 

11 May, 2013. 

12 

13 

14 

15 

16 Jana K. Richter, Texas CSR No. 3693 

Expiration Date: 12/31/13 

17 

18 

19 

20 

21 

22 

23 

24 

Firm Registration No. 301 

Sunbelt Reporting & Litigation Services 

1-800-666-0762 

25 JOB NUMBER 108773 

Sunbelt Reporting & Litigation Services 

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio