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 Penalty Action) 

- ' '] ,\ 

COMPLAINANT'S REPLY TO RESPONDENT'S ANSWER TO FAA'S SEPTEMBER 

11, 2015 MOTION1 

Extreme Energy Solutions, Inc., (EES) contends there is good cause to excuse the five-month 

delay in its submission of an answer. To support this, EES asserts its representative, Samuel K. 

Burl urn, (1) responded to the complaint in a prior submitted response; (2) doesn't have a clear 

understanding of the process; (3) didn't have an opportunity to consult a legal representative; (4) 

was engaged in another unrelated legal matter that took priority; and ( 5) repeatedly expressed 

EES' s argument and denial of the allegations. EES also offers contentions to the effect that 

deeming the facts admitted would violate its constitutional rights and that the Agency is 

attempting to win without having to provide any proof, is attempting to "deem a Judgement [sic] 

based on their own arbitrary and capricious standards," is providing nothing more than its own 

opinion and assumptions, and is attempting to "strip the Respondent of its property by way of 

'Papering' the Respondent with undue burdens within unreasonable timelines." The issue is 

whether these assertions establish the requisite good cause. 

I. PROCEDURAL IDS TORY 

The Agency initiated this case by serving its Notice of Proposed Civil Penalty on February 

19,2015. In it the Agency alleges that in October 2014, EES offered an undeclared shipment of 

12 flammable aerosol canisters to United Parcel Service for shipment by air from New Jersey to 

China in violation of various Hazardous Materials Regulations, and for these violations the 

1 The motion was served on September I 0, 2015 

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Agency proposes a $19,400 civil penalty. EES responded with a nine-page letter in which it 

effectively acknowledges having offered the shipment but offers numerous reasons why it should 

not be held responsible for the violations, asserts some 19 affirmative defenses, and requests an 

informal conference.2 The informal conference was scheduled for May 13,2015, but Burlum was 

not available and did not contact the Agency to reschedule, so on May 22, 2015, the Agency 

served a Final Notice of Proposed Civil Penalty. On June 1, 2015, EES, through Burlum, 

requested a hearing, and on June 9, 2015, the Agency filed its complaint and served a copy on 

EES. Included on page 9 of the complaint is a notice regarding the requirement for an answer 

within 30 days as well as the consequences of the failure to timely submit an answer. In a cover 

letter to the complaint, the Agency specifically points out that despite the previous denials, the 

applicable regulation still requires that EES submit an answer to the complaint in which it 

specifically admits, denies, or states it is without sufficient information to admit or deny each 

numbered paragraph in the complaint.3 In accordance with 14 C.P.R.§§ 13.209(a) and 13.211(e), 

EES had until July 14, 2015, to submit its answer. 

On September 10, 2015, based on EES's failure to submit an answer, the Agency moved for 

an order deeming admitted the allegations in Section I and II of the complaint and for a decision 

regarding the violations. In a cover letter the Agency advises EES that it has 10 days in which to 

respond to the Agency's motions.4 EES did not submit an answer to the complaint or specifically 

respond to the Agency's motions, but in letters on behalf ofEES dated October 8, 2015, Burlum 

references his personal divorce and his inability to afford counsel for both the present matter and 

his divorce. During the Ru1e 16 Litigation Scheduling Conference held on November 17,2015, 

EES was given until December 15,2015, in which to respond to the Agency's September 10, 

20 15 motions and to submit its answer. 

II. ARGUMENT 

The matters submitted by EES fall far short of establishing good cause. The most glaring 

shortcoming in this regard is that EES has offered practically no facts to support any of its rather 

vague conclusions. Its response is not supported with an affidavit, but form aside, there's no 

2 EES submitted a copy of this letter as an attachment to its December 14, 2015 answer. 3 Attachment B to the Agency's September 10,2015 motions is a copy of this letter. 

4 Attachment A to this reply is a copy of this cover letter. 

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statement from anyone that sets forth the underlying facts. At most there is a claim that Burlum 

was going through a divorce, but there's no information as to what and when specific things such 

as discovery matters were happening in that or any other case, and there is no explanation as to 

how such personal matters so consumed his attention that neither he nor anyone else at EES 

could consult counsel or handle the submission of an answer. The complaint includes an 

advisement regarding the requirement for an answer, and the EES was specifically advised in the 

cover letter serving the complaint that its previous denials didn't satisfy the requirement for an 

answer,5 yet there's no claim or indication that EES took steps to comply or seek additional time. 

Burl urn may not have had a clear understanding of the process, but there is no indication he or 

anyone else at EES made an effort to learn about it. 

As noted in the November 18, 2015 Order, good cause is a nebulous standard. But the 

circumstances in which good cause for a late-filed answer has been found have involved 

situations where the respondent was not advised of the requirements, was given arguably 

misleading advice as to the requirements, or exercised reasonable diligence in trying to comply 

with requirements. See In the Matter of Larry's Flying Service, Inc., FAA Order No. 1998-4 

(March 12, 1998) (discusses several cases in which good cause was found). Here, EES was 

advised of the requirement despite its previous denials, and there is no contention or indication it 

was somehow misled by the advisements. Thus, to show good cause, EES must at a minimum 

show that it exercised reasonable diligence. 

This EES has not done. It submitted a written request for a hearing, yet it has not submitted 

any information as to who-if anyone-even read the complaint or the Agency's cover letter that 

it received on June 19, 2015, or what if any steps were taken to ensure compliance with 

procedural requirements. Indeed, aside from claiming certified mail, there's no indication that 

EES took any action with respect to this case from its June 1, 2015 request for a hearing until its 

October 8, 2015 submissions regarding scheduling-this despite the warning in the September 

10, 2015 cover letter that it had 10 days to reply to the Agency's motions. Unsupported claims 

that it had to prioritize responses to legal matters do not establish good cause or exempt EES 

from the consequences of the choices it made. 

5 Decisions so holding include In the Matter of Burger, FAA Order No. 2002-8 (Aprill6, 2002), andln the Matter 

of Stevenson, FAA Order No. 2000-29 (December 21, 2000). 

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In short, good cause is a conclusion that is derived from a consideration of facts. The level of 

detail that is needed will vary depending on the circumstances, but here, EES' s conclusional 

assertions are not supported by any of the relevant underlying facts. This is particularly critical 

because while it is plausible that other matters consumed Burlum's attention and that of other 

EES management officials for short periods of time, it is not fathomable that this went on for the 

entire five-month period at issue here-especially when all EES needed to do was submit its 

previous responses. 

Regarding counsel, EES does have the right to consult counsel and to be represented by 

counsel in this proceeding. But EES 's choice not to consult or retain counsel-for whatever 

reason-is not a shield that bars the Agency from proceeding. Assuming arguendo that one 

could establish good cause by showing the unavailability ofthe counsel of choice, this would, at 

most, establish good cause for a short period of time. More importantly, such a contention must 

be supported with detailed facts, which EES has not done. 

EES's remaining arguments are attacks on the process and have nothing to do with whether 

good cause exists to excuse its failure to comply with the applicable procedural rules. Even if 

they were relevant, EES does not explain the basis for its conclusion that the Agency's 

"standards" are arbitrary and capricious or its contention that the Agency is papering EES "with 

undue burdens within unreasonable time lines." But more importantly, as the FAA 

Decisionmaker states in Larry's Flying Service, supra: 

"Procedural rules must be enforced in a non-arbitrary manner to ensure the integrity 

of the civil penalty process, even where this results in severe consequences." In the 

Matter of Harkins, FAA Order No. 94-22 at 4 [ ... ](June 22, 1994). Both sides must 

file timely pleadings or risk default. Just as an untimely complaint is dismissed 

absent good cause (14 C.F.R. § 13.208(b)(1)), so too is an untimely answer 

dismissed absent good cause (14 C.F.R. § 13.209(f)). 

In summary, EES has not supported any of its contentions with the facts on which each is 

based. Without supporting facts, its conclusional assertions are meaningless and do not establish 

good cause. 

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III. CONCLUSION 

Because ESS has not established good cause for its five-month delay in submitting its 

answer, the Agency's September 10, 2015 motions should be granted. 

Respectfully submitted this 31st day of December 2015. 

Peter J. Lynch 

Assistant Chief Counsel 

for Enforcement 

By: 

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Glenn H. Brown 

Enforcement Division, Western Team 

222 W 7th Avenue Box 14 

Anchorage, AK 99513-7587 

email: glenn.brown@faa.gov 

telephone: (907) 271-5271 (direct) 

(907) 271-2800 (fax) 
CERTIFICATE OF SERVICE 

Re: Extreme Energy Solutions, Inc. 

FDMS No. FAA-2015-1322 

I hereby certify that on this date I have served a copy ofthe COMPLAINANT'S REPLY TO 

RESPONDENT'S ANSWER TO FAA'S SEPTEMBER 11, 2015 MOTION by postage-prepaid, 

certified mail, return receipt requested and facsimile transmission to the following: 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

US Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310 

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 served the original and one copy ofthe 

COMPLAINANT'S REPLY TO RESPONDENT'S ANSWER TO FAA'S SEPTEMBER 11, 

2015 MOTION by postage-prepaid, certified mail, return receipt requested and facsimile, 

addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

ATTN: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 000 

Fax: (202) 493-5020 

DATED: 

Federal Aviation Administratio 

Office of Regional Counsel 

222 West 7th Avenue, Box 14, AALAnchorage, Alaska 99513-7587 

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