›› The FAA resisted efforts to strengthen oversight of hot air balloon industry.
Inspector warned of need three years before deadly crash
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.