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›› The FAA resisted efforts to strengthen oversight of hot air balloon industry.

Inspector warned of need three years before deadly crash

- By John Tedesco jtedesco@express-news.net

The Federal Aviation Administra­tion had resisted years of efforts to strengthen oversight of the hot-air balloon industry, creating a vacuum that allowed Alfred “Skip” Nichols to obtain and keep a license to pilot commercial balloons.

Nichols and 15 of his passengers died in a Texas field last July.

A San Antonio Express-News review of government documents, internal emails obtained under the Freedom of Informatio­n Act and testimony from a federal safety hearing in Washington reveal missed opportunit­ies that led up to the deadliest balloon crash in U.S. history.

Among the newspaper’s findings:

• Balloons suffer higher crash rates than other aircraft, but the FAA doesn’t require those pilots to take drug tests or undergo medical evaluation­s.

• Of more than 140 private and commercial balloon crashes since 2005, more than half were blamed on mistakes made by the pilot, and nearly 1 in 5 involved a power line.

• Commercial balloons are getting larger to accommodat­e more customers, increasing the odds of a tragedy. The Kubicek balloon that Nichols piloted was more than nine stories tall and featured a 750-pound gondola with five separate compartmen­ts that could fit 16 passengers and the pilot.

One of the first people to recognize the growing risk was an FAA safety inspector in Detroit, who said oversight of the balloon industry was “minimal or nonexisten­t.”

More than three years before the deadly crash, he suggested increasing regulation­s.

To this day, the FAA hasn’t adopted his proposal.

With minimal federal oversight of hot-air balloons, it’s ultimately up to customers to vet pilots. It’s not an easy task.

Third-party brokers dominate web searches for balloon rides, and customers aren’t told who they’re flying with until they pay for tickets.

There’s no straightfo­rward way to check the track record of a balloon pilot, and there’s no requiremen­t for the pilot to carry insurance.

“Ballooning may be more hazardous than some folks realize,” said Chris Kilgore, a lawyer who represents the company that insured Nichols’ balloon. “It has an uncontroll­ed element once the balloon is aloft. It’s one of the reasons why I won’t fly in one.”

The National Transporta­tion Safety Board, which issues nonbinding recommenda­tions to the FAA and other agencies to prevent future accidents, is investigat­ing the July crash.

In a written statement to the Express-News, the FAA said there’s no guarantee drug tests would have flagged prescripti­on medication­s that Nichols was taking, and medical exams also could be circumvent­ed.

Dean Carlton, president of the Balloon Federation of America, the primary trade group for balloon pilots, didn’t challenge the newspaper’s findings that balloons suffer higher crash rates but said many accidents are survivable hard landings.

“We estimate nearly a half-million people flew safely in hot-air balloons last year,” Carlton said. “It’s a very, very safe sport. But every once in a while, something happens. And something this dramatic hasn’t happened since the Hindenburg.”

Yet Robert Sumwalt, an NTSB board member who served as chairman of the safety hearing, was unusually blunt about the FAA’s lack of oversight. When asked in an interview if he believed the agency was doing enough to protect the public, he said the record speaks for itself.

“We have 16 people who are dead,” Sumwalt said. “This pilot should have never been flying.”

Wayne Phillips warned the FAA it could happen.

An FAA safety inspector in Detroit, Phillips was a licensed balloon pilot who had owned a sightseein­g company before he joined the agency.

In November 2012, Phillips wrote a proposal urging increased scrutiny of the industry, saying that balloon rides were more common than helicopter tours and some balloons were “behemoths.”

“When fifteen passengers pay $250 each, there could be exceptiona­lly strong motivation to launch a flight that is worth nearly $4,000 in one hour,” Phillips wrote.

But it was “exceptiona­lly easy,” he said, to get a pilot’s certificat­e to fly a commercial balloon — requiring only 20 hours of flight time.

Phillips proposed putting commercial balloon pilots on par with sightseein­g operations for airplanes and helicopter­s.

Balloon operators would have to obtain a “letter of authorizat­ion” that would, among other things, notify the FAA about the operation, increase the chances for inspection­s and mandate drug tests for pilots.

Phillips, who still works at the FAA, declined an interview request for this report. But emails obtained by the Express-News through the Freedom of Informatio­n Act show he sent his proposal to the FAA office in Albuquerqu­e, N.M., for review.

It was then sent on Dec. 12, 2012, to James Viola, manager of the FAA’s Flight Standards Aviation and Commercial Division.

The FAA heavily redacted sections of the emails it released, citing an FOIA provision that allows the agency to withhold “recommenda­tions, opinions and analyses,” so it’s unclear how seriously Phillips’ proposal was considered.

By coincidenc­e, an NTSB inspector had seen a need for stronger regulation­s after he investigat­ed a separate crash in 2013 near Chester Springs, Pa.

In 2014, the NTSB formally sent its recommenda­tion to the FAA, and it mirrored Phillips’ proposal to require letters of authorizat­ion and drug tests for commercial balloon operations.

On Nov. 6, 2015, the FAA announced its decision.

FAA Administra­tor Michael Huerta said increased oversight wasn’t necessary.

Under federal regulation­s, Nichols was supposed to notify the FAA within 60 days of any conviction­s involving driving under the influence of drugs or alcohol. He also was supposed to tell the FAA about “reportable administra­tive actions” on his record, such as a revocation of his driver’s license. That never happened. In fact, Nichols, who was 49 when he died, had been arrested for a string of drug and traffic offenses. Most recently, on May 25, 2010, he’d been found guilty as an “aggravated” DWI offender.

FAA Special Agent Sonja King investigat­ed a complaint received in December 2012 and confirmed that Nichols had failed to report his criminal offenses to the FAA. But she didn’t recommend revoking or suspending his license. The violations were “stale,” she wrote, a regulatory term to describe violations that are more than 6 months old.

FAA officials said that if they had tried to prohibit Nichols from flying, he likely would have won any appeal. And they said the stale-violation rule is a standard followed by the NTSB, which handles appeals filed by discipline­d pilots.

But a case can’t go stale if a pilot falsifies a record, according to past appellate decisions involving other pilots.

Patricia Morgan, the mother and grandmothe­r of two victims from San Antonio, Lorilee and Paige Brabson, said the FAA should have grounded Nichols when it had the chance, pointing out there was no guarantee he would have filed an appeal.

“They were aware of this man, and they did absolutely nothing,” Morgan said. “Nothing.”

King recommende­d issuing a warning to Nichols. The FAA agreed.

In Washington, the NTSB kept pushing to increase oversight of the balloon industry. On May 18, 2015, it asked Phillips if he could look at balloon crashes that occurred after April 2014, when the NTSB recommende­d letters of authorizat­ion to the FAA.

Out of 25 accidents, 66 percent involved commercial operators, Phillips found, and 28 percent involved some form of injury or death.

Of particular concern was a May 2014 crash in Ruther Glen, Va., that killed three people after the balloon struck a power line.

But the FAA didn’t budge from its initial decision.

“Since the amount of ballooning is so low, the FAA believes the risk posed to all pilots and participan­ts is also low given that ballooners understand the risks and general hazards associated with this activity,” Huerta wrote in a letter to the NTSB.

The NTSB hasn’t yet released its findings on last summer’s crash.

Among the evidence collected were burned-up cellphones.

In the air, passengers had taken pictures and videos of the stunning view. At 7:40 a.m., one passenger sent a picture via text message to a relative.

“You see our shadow,” he wrote, pointing out the balloon’s silhouette.

The picture also showed a hole in the clouds.

Through the hole, the ground was visible — along with a transmissi­on tower with high-voltage power lines.

 ??  ?? Mike Fisher / San Antonio Express-News Source: NTSB
Mike Fisher / San Antonio Express-News Source: NTSB
 ??  ?? Nichols
Nichols

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