### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASIDNGTON, D.C.



### IN THE MATTER OF EXTREME ENERGY SOLUTIONS, INC. 

### FDMS NO. FAA-2015-1322 (Civil PenaltyAction) 

# RECEIVED

HEARING DOCKET

AGENCY'S MOTION TO DEEM ALLEGATIONS ADMITTED AND FORA DECISION REGARDING THE VIOLATIONS 

### The Complainant moves for an Order deeming admitted each allegation in Sections I and II ofthe complaint. The basis for this motion is that Respondent failed to answer the complaint within 30 days1 

### ofthe date onwhich it was served. In

### accordance with 

### § 13.209(f) ofthe Rules ofPractice in FAA Civil Penalty Actions, 14 C.F.R. part 13, subpart G, unless Respondent demonstrates that there is good cause for this failure, it constitutes an admission ofthe truth of each allegation contained inthe complaint. This motionis based onthe following facts: 1. 

### Complainant served the complaint onRespondent by certified mail, returnreceipt requested, on June 9, 2015? 2. Included atthe end ofthe complaintis a notice informing Respondent ofthe requirement to submit an answerwithin 30 days ofservice and the fact the failure to do so, without good cause, constitutes an admission ofthe truth ofeach allegation inthe complaint. 3. Respondentreceived the complaint onJune 19, 2015? 4. 

### In its letter to Respondent dated June 9, 2015, (Exhibit B) Complainant specifically advises Respondent that notwithstanding any previous denials, it must still submit an answer to the complaint. 5. To date Respondent has not submitted an aiJswer.

1 Because the complaint was served bymail, Respondenthad an additional five days. 14 C.P.R. § 13 .211(e). 2 See Exhibit A, which is a copy ofComplainant's flle copy ofthe PS Forms 3800 aod 3811 aod frrst page ofthe June 9, 2015 letter sent to Respondent along with Respondent's copy ofthe cover letter aod complaint sent to the Hearing Docket. 3 See Exhibit B, which is a complete copy ofComplainant's June 9, 2015 letter to Respondent (withoutthe enclosures, which were the cover letter to the Hearing Docket aod complaint).
1

### Because the complaint was servedby mail on June 9, 2015, Respondent haduntil July 14, 2015, to submit an answer. Respondent is already 58 days late, andthis period is still growing. Unless Respondent can demonstrate good cause for the entire period ofthis failure,§ 13.209(f) requires that each allegation inthe complaint be deemed admitted. Absent such a showing of good cause, Complainant is entitled to what it now seeks-an Order deeming admitted each allegation in Sections I and II ofthe complaint. In the Matter of AirFlorida Express, Inc., FAA OrderNo. 2002-9 (April15, 2002); In the Matter of RonaldBurger, FAA OrderNo. 2002-8 (April15, 2002). Based on an order deeming admitted each allegation in Sections I 

### and II ofthe complaint, Complainant further moves for a decision withrespect to the violations alleged inparagraph III.I. The basis for this motion is thatwiththe allegations in Sections I and II ofthe complaint deemed admitted, there is no genuine issue as to a material fact, and the Complainantis entitled
as a matter oflawto an Order finding that Respondent violatedthe regulations as alleged in paragraph III.l 

### ofthe complaint.4 

### Respectfully submitted this lOth day ofSeptember2015. Peter J. Lynch Assistant ChiefCounsel

for Enforcement

By: EnforcementDivision, Western Team 222 W 7thAvenue Box 14 Anchorage, AK 99513-7587 email: glenn.brown@faa.gov telephone: (907) 271-5271 (direct) (907)271-2800 (fax)

4 Ifthe allegations in Sections I and II ofthe complaint are deemed admitted and this motion for decision regarding the violations is granted, the onlyremaining issue willbe the amount ofthe civil penalty.
2

### CERTIFICATE OF SERVICE Re: Extreme Energy Solutions, Inc. FDMS No. FAA-2015-1322

I hereby certifythat onthis date I have served a copy ofthe Agency's Motions to Deem Allegations Admitted and for a Decision Regarding the Violations bypostage-prepaid, certified mail, return receiptrequested and facsimile transmissionto the following: Judge J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 US Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310 Washington, DC 20590 Fax: (202) 366-7536 Mr. Samuel K. 

### Burlurn, President/CEO Extreme Energy Solutions, Inc. 150 Main Street Ogdensburg, NJ 07439 Fax: 973-209-4796

I further certify that on this date I have servedthe original and one copy ofthe Agency's Motions to DeemFacts Admitted and for a DecisionRegarding the Violations bypostage-prepaid, certifiedmail, returnreceiptrequested and facsimile, addressed as follows: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 ATTN: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2WIOOO Fax: (202) 493-5020



# DATED:~- /0 

# .:ltJ;s-- /



### Federal AviationAdministration Office ofRegional Counsel 222 West 7thAvenue, Box 14, AAL-7 Anchorage, Alaska 99513-7587



### 3U. S. Department ofTransportation Federal Aviation Administration

Case No. 2015NM730008 

## :JUN. 

## -92015 Alaskan Region Otlice ofthe Regional Counsel 222 W. 7th Avenue #14 Anchorage, Alaska 99513-7587 Phone: (907} 271-5271 Fax: (907} 271-2800 Email: glenn.brown@faa!.!ov

FIRST CLASS MAIL and CERTIFIED MAIL-RETURN RECEIPT REQUESTED

Samuel K. Burlum, President/CEO Extreme Energy Solutions, Inc. 150 Main Street Ogdensburg, NJ 07439 DearMr. Burlum: This responds to your four undated letters sent to us on June I, 2015. They are in response to Notice oflnformal Conference, which we served onApril29, 2015, and ourFinal Notice of Proposed Civil Penalty, which we served on May 22,2015. We initiated this case whenwe served a Notice ofProposed Civil Penalty dated February 

### 19, 2015. Init we allege that onOctober 23,2014, Extreme Energy Solutions (EES) offered a AAL-7

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## -9 2015 Alaskan Region Office ofthe Regional Counsel 222 \V. 7th Avenue #14 Anchorage, Alaska 99513-7587 Phone: (907) 271-5271 Fa." (907) 271-2800 Email: glcnn.brown@faa.!!ov

FIRST CLASS MAIL and CERTIFIED MAIL-RETURN RECEIPT REQUESTED

Samuel K. Burlum, President/CEO Extreme Energy Solutions, Inc. 150 Main Street Ogdensburg, NJ 07439 Dear Mr. Burlum: This responds to your four undatedletters sentto us onJune 1, 2015. They are inresponse to our Notice oflnformal Conference, which we served on April29, 2015, and our Final Notice of Proposed Civil Penalty, which we served on May 22, 2015. We initiated this case when we served aNotice ofProposed Civil Penalty dated February 19, 2015. In it we allege that on October 23,2014, Extreme Energy Solutions (EES) offered a package to United Parcel Service for transportation by air from NewJerseyto Shanghai, China, and that the package contained a hidden shipment oftwelve canisters ofa flammable aerosol. For the munerous violations ofthe Hazardous Materials Regulations arising out ofthis incident, we propose to assess a $19,400 civil penalty. You responded onbehalfofEES with a letter dated March 17, 2015. Init you deny a number of the allegations and raise various defenses. You offerto settle with a $1000 civil penalty, request a telephonic informal conference with anFAA attorney, and state your desire for a formal hearing ifwe are not able to reach a reasonable resolution ofthe case. In a letter dated April29, 2015, we responded to your March 17, 2015 letter. In ourletter.we summarize the allegations an events to date, reject your settlement offer, and inform you the requested informal conference is set for May 14,2015, at 2:00p.m. Eastern Time. We also invite you to let us know ifanother date and time would work better so that we could reschedule it. We called you atthe number youprovided at the designated time. Theperson who answered the phone informed us that you were outofthe office until the following Monday, which was May 18,2015. After I explained the reason for the call, she indicated she would let you know that wehad called. I then asked her to letyou know that ifyou still wanted an informal conference, to call me early the following week. She indicated atthat point that she would send you anemail with this information. Postal Service on-line tracking records indicate that the Notice ofInfom1al Conference was available for pick-np beginning at 8:50a.m. onMay 5, 2015, and was fmal.ly claimed at 12:03 p.m. on May 18,2015. Although you had my email address, phonenumber, and mailing address, you did not contact me duringthe week ofMay 18,2015. Consequently, we concluded you no longer wished to have an informal conference, and on May 22,2015, we served ourFinal Notice ofProposed Civil Penalty inthis matter. In your four responses on behalfofEES, you deny the allegations, contend EES's right to an informal conference has been violated, offer to settle with a civil penalty of$5850, and request a formal hearing. You also indicate you submittedthese documents to the FAA'shearing docket clerk in Washington, DC. Because you submitted a writtenrequest for a hearing to the hearing docket clerk, the regulations require that we file a complaint. We are herewith doing so. The copy we are serving on EES is enclosed. Please note that despite the previous denials, the applicable regulation, 14 C.F.R. § 13.209, requires that EES submit an answerto the complaint in which it specifically admits, denies, or states it is without sufficient information to admit or deny each numberedparagraph in the complaint. 

### A general denial ofthe complaint is deemed a failure to file an answer, which, unless there is good cause for it, is deemed an admission ofeach allegation. EES's ans\ver must be served within 30 days ofthe date on which we serve the complaint, which in this case is the date ofthis letter. Regarding the reqnested informal conference, the regulatory requirement is that we provide an opporlunity for such a conference. This we did. As noted above, the notice regarding it was available for EES to pick-up beginning onMay 

### 5'h. This was a reasonable time for EES to have claimed the letter and request a different time. Further, when we did call on May 141 h, we were told you would be advised that day via email, and the notice and our cover letter were picked up on May 18 1 h Yet itwasn't unti!June I, 2015, and after youhadreceived our final notice that you contacted us. We, nevertheless, remain willing to discuss the case with you in an effort to reach a settlement. Please give me some dates and times that will work for EES, and we will endeavor to schedule a call at a mutually convenient time. Here inAlaska we are four hours behind Eastern Time, so sometime between I:00 p.m. and 4:00 p.m. Eastern Time is the most likely time for it.Such settlement discussions do not serve to delay the procedural requirements set forth in 14 C.F.R. part 13, subpart G. EES must still submit its answer and comply with any deadlines that may be imposed bythe assigned administrative lawjudge. Call or email me ifyou have any questions. Sincerely,



# JJL'~ Glenn H. Brown SeniorAttorney Enclosure