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 inits submission ofan answer. To support this, EES asserts its representative, Samuel K. Burlurn, (1) responded to the complaintin a prior submitted response; (2) doesn't have a clear understanding ofthe process; (3) didn't have an opportunity to consult a legal representative; (4)
was engaged in another unrelated legal matter thattook priority; and (5) repeatedly expressed EES's argument and denial ofthe 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 anyproof, is attempting to "deem a Judgement [sic] based ontheir own arbitrary and capricious standards," is providing nothing more than its own opinion and assumptions, and is attempting to "strip the Respondent ofits property byway of 'Papering' the Respondent with undue burdens withinunreasonable timelines." The issue is whetherthese assertions establish the requisite good cause.
I. PROCEDURAL IDSTORY
The Agency initiated this case by serving its Notice ofProposed Civil Penalty onFebruary 19,2015. Initthe Agency alleges that in October 2014, EES offered anundeclared shipment of 12 flammable aerosol canisters to United Parcel Service for shipmentby air from New Jersey to China in violation ofvarious Hazardous Materials Regulations, and for these violations the

1 The motion was served on September I0, 2015
1Agencyproposes a $19,400 civilpenalty. EES responded with a nine-page letter in whichit effectively acknowledges having offered the shipmentbut offers numerous reasons why it should not beheldresponsible 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 contactthe Agencyto reschedule, so onMay22, 2015, the Agency served a Final Notice ofProposed Civil Penalty. OnJune 1, 2015, EES, through Burlum, requested a hearing, and onJune 9, 2015, the Agency filed its complaint and served a copy on EES. Included onpage 9 ofthe complaintis a notice regarding the requirement for an answer within 30 days as well as the consequences ofthe failure to timely submit an answer. Ina cover letterto the complaint, the Agency specifically points outthat despite the previous denials, the applicable regulation still requires that EES submit an answer to the complaintinwhich it specifically admits, denies, or states it is without sufficient informationto admit or deny each numberedparagraph 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 onEES's failure to submit an answer, the Agency moved for
an order deeming admitted the allegations in Section I and II ofthe complaint and for a decision regarding the violations. In a cover letter the Agency advises EES that it has 10 days inwhich to respondto 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 onbehalfofEES dated October 8, 2015, Burlum references his personal divorce and his inabilityto afford counsel for boththe present matter and his divorce. During the Ru1e 16 Litigation Scheduling Conference held onNovember 17,2015, EES was givenuntil 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 submittedby EES fall far short ofestablishing good cause. The most glaring shortcoming inthis regard is that EES has offered practically no facts to support any ofits rather vague conclusions. Its response is not supported with an affidavit, but form aside, there's no

2 EES submitted a copy ofthis letter as an attachmentto its December 14, 2015 answer. 3 Attachment B to the Agency's September 10,2015 motions is a copy ofthis letter. 4 Attachment A to this reply is a copy ofthis cover letter.
2statement from anyone that sets forth the underlying facts. Atmostthere is a claimthat Burlum
was going through a divorce, butthere's no information as to what and when specific things such
as discovery matters were happening in that or any other case, andthere is no explanation as to how suchpersonal matters so consumedhis attention that neither he nor anyone else at EES could consult counsel or handle the submission ofan answer. The complaint includes an advisementregarding the requirement for an answer, and the EES was specifically advised inthe
cover letter serving the complaintthat its previous denials didn't satisfy the requirement for an answer,5yetthere's no claim or indication that EES took steps to comply or seek additional time. Burl urn may not have had a clearunderstanding ofthe process, butthere is no indicationhe 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. Butthe circumstances in which good cause for a late-filed answer has been found have involved situations where therespondent was not advised ofthe requirements, was given arguably misleading advice as to the requirements, or exercisedreasonable diligence intrying to comply with requirements. See In the Matter of Larry's Flying Service, Inc., FAA OrderNo. 1998-4 (March 12, 1998) (discusses several cases in which good cause was found). Here, EES was advised ofthe requirement despite its previous denials, and there is no contention or indicationit
was somehowmisled by the advisements. Thus, to show good cause, EES must at a minimum showthat it exercisedreasonable diligence. This EES has not done. It submitted a written request for a hearing, yet it has not submitted any information as to who-ifanyone-evenread the complaint orthe Agency's cover letter that itreceived on June 19, 2015, or what ifany steps were taken to ensure compliance with procedural requirements. Indeed, aside from claiming certified mail, there's no indication that EES took any action withrespect 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 ithad 10 days to reply to the Agency's motions. Unsupported claims that ithadto prioritize responses to legal matters do not establish good cause or exempt EES from the consequences ofthe choices itmade.

5 Decisions so holding include In the Matter of Burger, FAA OrderNo. 2002-8 (Aprill6, 2002), andln the Matter of

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


### 3In short, good cause is a conclusionthat is derived from a consideration offacts. The level of detail that is needed will vary depending on the circumstances, buthere, EES's conclusional assertions are not supported by any ofthe relevant underlying facts. This is particularly critical because while it is plausible that other matters consumedBurlum's attention and that ofother EES management officials for shortperiods oftime, itis not fathomable that this went on for the entire five-month period at issue here-especiallywhen all EES needed to do was submit its previous responses. Regarding counsel, EES does have the rightto consult counsel and to be represented by counsel in this proceeding. ButEES'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 ofchoice, this would, at most, establish good cause for a shortperiod oftime. More importantly, such a contention must be supported with detailed facts, which EES has not done. EES'sremaining arguments are attacks onthe process and have nothing to do with whether good cause exists to excuse its failure to comply withthe applicable procedural rules. Even if they were relevant, EES does not explainthe basis for its conclusion that the Agency's "standards" are arbitrary and capricious or its contentionthat the Agency is papering EES "with undue burdens within unreasonable timelines." But more importantly, as the FAA Decisionmaker states inLarry's FlyingService, supra: "Procedural rules mustbe enforced in a non-arbitrary mannerto ensure the integrity ofthe civil penaltyprocess, even where this results in severe consequences."In the Matter of Harkins, FAA OrderNo. 94-22 at 4 [

...](June 22, 1994). Both sides must file timelypleadings or risk default. Just as an untimely complaint is dismissed absent good cause (14 C.F.R. § 13.208(b)(1)), so too is anuntimely answer dismissed absent good cause (14 C.F.R. § 13.209(f)).
In summary, EES has not supported any ofits contentions with the facts onwhich each is based. Without supporting facts, its conclusional assertions are meaningless and do not establish good cause.

4III. 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 ofDecember 2015. Peter J. Lynch Assistant ChiefCounsel

for Enforcement

By:

5 Glenn H. Brown Enforcement Division, 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)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 ANSWERTO FAA'S SEPTEMBER 11, 2015 MOTIONbypostage-prepaid, certified mail, return receipt requested and facsimile transmission to the following: Judge J.E. Sullivan U.S. Administrative Law Judge Office ofHearings, M-20 US Department ofTransportation 1200 NewJersey 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 bypostage-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 2W1000 Fax: (202) 493-5020 DATED:

Federal Aviation Administratio Office ofRegional Counsel 222 West 7thAvenue, Box 14, AALAnchorage, Alaska 99513-7587

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