Brief in Support I. Case No. 2014GL800041 This case revolves around an incident at the Cleveland Hopkins International Airport ( Airport ) where Air Traffic Control ( ATC ) advised United Airlines flight 1112 to divert to Detroit Metropolitan Wayne County Airport. At 9:48pm on February 24, 2014, the local forecast called for likely snow showers, mainly in the morning. (Cuyahoga County Weather Report, attached as Exhibit A). At 11:51pm, a light snow began at the airport. (METAR Report, attached as Exhibit B). However, there was no precipitation until 5:04am on February 25, 2014. Id. Between 5:04am and 5:51am that morning, when the precipitation stopped, a total of 1/10 of an inch of snow had fallen. Id. At 5:12am, all runways were inspected and found to be covered in thin snow with good friction values at 40 Mu. (Field Condition Reporting System ( FCRS ) 2/25/2014, attached as Exhibit C). The Snow and Ice Control Plan requires the Airport to close a runway only if friction values are at or below 21 Mu. (Snow and Ice Control Plan ( SICP ), Section 5.3). At 5:10am, the Airport began snow removal operations on Runway 24R. (Ops Log 2/25/15, attached as Exhibit D). Runway 24R is a Priority-1 runway (SICP, Appendix A, attached as Exhibit E). The Airport does not have the capacity to treat two Priority-1 runways at the same time, even at full capacity during a Snow Code Red. The Airport made the determination to treat Runway 24R before Runway 24L because Runway 24R is equipped with more advanced navigational equipment, making it easier to land in low visibility. From 5:04am to 5:31am that morning, visibility was at a mere three quarters of a mile. (Exhibit B). To compare, visibility was at nine miles when the snow began at 11:51pm. Id. 3
At 5:26am, the Airport reported friction levels of 40 Mu on Runway 24L. (Exhibit C). Fifteen minutes later, at 5:41am, UPS flight 1442 landed on Runway 24L and reported braking conditions as Poor and NIL at the end of the runway. This was the first report of NIL braking on Runway 24L that morning, and per the SICP, Runway 24L was closed so that the runway could be tested for braking and cleared if necessary. However, since Runway 24R was in the process of being cleared, the Airport could not begin to clear Runway 24L until it had finished clearing Runway 24R. Fourteen minutes later, at 5:55am, Air Traffic Control diverted United Airlines flight 1112 to Detroit Metropolitan Wayne County Airport since both of the Airport s Priority-1 runways were closed for clearing. At 6:01am, the Airport began clearing Runway 24L. (Exhibit D). At 6:03am, the Airport recorded good friction values on Runway 24R at 40 Mu and reopened the runway at 6:06am. (Exhibits C and D). The FAA stated the Airport failed to conform with the SICP by failing to prioritize for snow and ice removal on Runway 24L. The Notice of Proposed Penalty states that the Airport should have begun snow removal operations on Runway 24L before removing snow on Runway 24R, stating that Runway 24R is a Priority-2 runway. However, as shown in the SICP, Runway 24R is also a Priority-1 runway. When given the choice between clearing either of the Airport s two Priority-1 runways, the Airport prefers to clear Runway 24R because it is easier to land during low visibility conditions. In this instance, it was important to clear Runway 24R first since visibility that morning was so low. The SICP does not require Runway 24L to be cleared before Runway 24R. The United Airlines flight was not diverted due to the Airport being unable to keep its runways treated, but because of timing outside of the Airport s control. At 5:41am, the Airport 4
was in the process of treating one Priority-1 runway when it received a report that its other Priority-1 runway had NIL braking conditions and was required to be closed for testing. Up until that point, braking conditions had been reported above NIL on Runway 24L. The United Airlines flight was diverted at 5:55am and Runway 24R had reports of good braking conditions at 6:03am. Had the United Airlines flight arrived a little later, it would have been able to land on Runway 24R. There was only a 22 minute window where both Priority-1 runways were closed. The Notice of Proposed Penalty stated that with a snow and ice control plan, [s]now, ice, and slush should be removed as expeditiously as possible. The goal is to maintain runways, highspeed turnoffs, and taxiways in a no worse than wet (i.e., no contaminant accumulation) condition, realizing that this is not always possible. (Emphasis added) (FAA Advisory Circular No. 150/5200-30C, Section 2-1, attached as Exhibit F). Under the circumstances, it was not possible to have a Priority-1 runway open during a 22 minute period. Even if the Airport began snow removal operations on Runway 24L before Runway 24R, the situation would have been the same, except instead of UPS flight 1442 landing on Runway 24L and reporting NIL braking, it would have landed on Runway 24R and would have likely reported the same braking conditions. Both Priority-1 runways would still have been closed for the same 22 minute window and United Airlines flight 1112 would have still been diverted to Detroit. The FAA and the Airport set a goal of thirty minutes to clear a Priority-1 runway. (Exhibit E at section 3.6). However, the FAA has stated that the goal should not be interpreted as a requirement to treat surfaces within any particular time. (Exhibit F at section 1-6[a]). Even if the Airport had treated Runway 24R in thirty minutes, there would have only been one minute left before UPS flight 1442 landed to check the braking conditions on the runway, update the Air Traffic Controller, and relay that message to UPS flight 1442. The Air Traffic Controller would 5
have likely still given the instruction to UPS flight 1442 to land on Runway 24L, since those instructions are given long before the flight is close to the Airport. The Notice of Proposed Penalty also stated that the Airport failed to effectively monitor and manage the conditions on Runway 24L. Fifteen minutes before UPS flight 1442 reported braking conditions as NIL, the Airport conducted its own runway check and found that the friction levels on Runway 24L were at 40 Mu, suggesting that braking conditions were good. The Airport had no reason to expect that braking conditions were anything but good until UPS flight 1442 reported NIL braking conditions. At that point, the Airport immediately closed Runway 24L for inspections as required by the SICP. There was nothing more the Airport could have done to more effectively monitor and manage the conditions on Runway 24L. Even if the Airport wanted to clear Runway 24L, regardless of the fact that it had reports of good braking conditions, it would have needed to wait until Runway 24R was cleared. For these reasons, the Airport asks the FAA to reconsider its proposed $40,000 penalty and find that on February 25, 2014 the Airport was safe, secure, and in conformance with the Snow and Ice Control Plan. 6
II. Case No. 2014GL800034 This case revolves around an incident where an Aircraft Rescue and Firefighting ( ARFF ) vehicle crossed the hold bar for Runway 24L on Taxiway Romeo. On January 18, 2014, at around 8:30pm, ARFF conducted training exercises on the airfield. ARFF employee David Horky was driving Truck-15 as the lead vehicle on an airfield familiarization mission with three other trucks. (Investigation Report, attached as Exhibit G). Mr. Horky had been with the City for around twenty years and had recently finished a Ground Vehicle Operator refresher training on January 3, 2014. Id. At 4:45pm, braking was reported as fair to good on all Taxiways, with no change between then and the time of the training exercises. (FCRS 1/18/14, attached as Exhibit H). At 8:32:10pm, Mr. Horky requested permission from Air Traffic Control ( ATC ) over radio to drive from Taxiway Gulf to Taxiway Romeo. (Exhibit G). ATC approved Mr. Horky s team to drive from Gulf to Romeo, but told Mr. Horky to hold short of all runways and advise when all vehicles are off Runway 24L. Id. Mr. Horky requested that the transmission be repeated and ATC repeated the instructions. Id. When Mr. Horky repeated the instructions back to ATC, he failed to properly read back ATC s instructions and did not state that he would remain clear of all runways. Id. ATC failed to correct Mr. Horky for forgetting to repeat that he was to remain off the runways. Id. At 8:32:47pm, Mr. Horky stated Cleveland ground all ARFF vehicles are off. Id. At 8:33:39pm, ATC cleared Air Shuttle flight 2638 for takeoff on Runway 24L. Id. At 8:34pm, ATC saw Mr. Horky drive towards Runway 24L and yelled ARFF-15 Stop! At that point, Mr. Horky hit the brakes and stopped the vehicle 176 feet beyond the hold bar and seven feet short of the edge of Runway 24L. Id. Air Shuttle flight 2638 took off without a problem. 7
Immediately after the incident, the Airport conducted a special runway inspection in the area where Mr. Horky crossed the hold bar. The Airport reported that all guard lighters were operational, the hold line was visible, and the braking was good. Id. The Airport interviewed Mr. Horky after the incident. Id. He stated that he had no excuse and was at fault for crossing the hold bar on Taxiway Romeo and into the safety area of Runway 24L without clearance. Id. He also admitted to his failures in communicating with ATC. Id. Mr. Horky was required to take a retraining course, which he completed on January 20, 2014. Id. The Notice of Proposed Penalty stated the Airport failed to give Field Condition Report updates between 4:45pm and 9:42pm on January 18, 2014. The Airport is required to give updates on runway conditions only when there has been a change in the field conditions. The FAA s Advisory Circular 150/5200-30C, Section 5-2(b) states that [r]unway condition reports must be updated any time a change to the runway surface condition occurs. Changes that initiate updated reports include weather events, the application of chemicals or sand, or plowing or sweeping operations. (Exhibit F). There was no change in conditions between 4:45pm and 9:42pm that warranted an update. It did not start snowing until 9:51pm that night. (METAR 1/18/14, attached as Exhibit I). Therefore, the Airport was not required to update the Field Condition Report between 4:45pm and 9:42pm. The Notice of Proposed Penalty also states that the Airport failed to prioritize for snow and ice removal on Runway 24L and the entrance and exit of Taxiway Romeo. As stated earlier, braking reports on Runway 24L and Taxiway Romeo were good during the day leading up to the incursion and after the incursion. At no point did the Airport receive any information that would require the Airport to begin snow removal operations on Runway 24L and Taxiway Romeo. The incursion had nothing to do with the braking conditions on Taxiway Romeo, but rather the 8
human error by Mr. Horky in failing to communicate with ATC. Even if Taxiway Romeo had been treated with chemicals, sand, or cleared, Mr. Horky would have still miscommunicated with ATC and crossed the hold bar into the safety area of Runway 24L. For these reasons, the Airport asks the FAA to reconsider its proposed $40,000 penalty and find that on January 18, 2014 the Airport was safe, secure, and in conformance with the Snow and Ice Control Plan. 9
III. Case No. 2014GL800031 This case revolves around two aircraft that became disabled on taxiways at the airport due to NIL braking conditions. On December 29, 2013, the overnight forecast showed snow showers late that evening with a 30% chance of precipitation. At 5:51pm, the National Weather Service ( NWS ) stated that it did not anticipate any accumulations as the ground temperatures will take some time to fall below freezing Rain moving out of the area early this evening not a lot of precip[itation]. (NWS 12/29/13, 5:51pm, attached as Exhibit J). At 9:45pm, the Airport decided to partially pretreat Runways 24R and 24L and a number of taxiways to and from the terminal with sand and anti-icing chemicals. (Ops Log 12/29/13, attached as Exhibit K). At 11:20pm, the NWS forecasted snow converting to freezing drizzle with freezing drizzle lingering for a couple of hours, but [f]ortunately the moisture is limited and the potential accumulation is limited to a light glazing on exposed surfaces The main hazard areas are in the East and in High terrain regions. (NWS 12/29/13, 11:20pm, attached as Exhibit L). The Airport is on the west side of the City of Cleveland in a low terrain region. (Ohio Topographical Map, attached as Exhibit M). For four hours between 11pm on December 29, 2013 and 3am on December 30, 2013, the Airport did not have Field Maintenance staff on hand. Because the runways had been pretreated, they were never worse than wet and braking conditions were reported as good. (Exhibit K). However, the taxiways had developed a thin layer of ice at 12:02am with braking reported between poor and good. (FCRS 12/30/13, attached as Exhibit N). There was no change in the weather conditions between then and 2:34am, when the Airport was closed due to NIL braking on numerous taxiways. At 4:00am, the Airport was reopened. (Exhibit K). 10
The Airport understands that it did not have adequate maintenance staff on hand to help the disabled aircraft on the taxiways. The Operations Superintendent allowed an Airport Operations Agent to leave early without a replacement and did not limit air carrier operations. That Superintendent was disciplined for his poor performance and misjudgments that evening. However, the Airport was able to keep the most important part of the airfield, the runways, in good condition throughout the evening. The Airport did this even though the weather report forecasted only a slight chance of a light freezing rain and did not anticipate any accumulation, even though that is what ultimately occurred that evening. The Notice of Proposed Penalty noted that the Airport did not update field conditions between 12:01am and 3:44am. As discussed earlier, the Airport is required to update field conditions only when there has been a change on the airfield. In this instance, between 12:01am and 1:57am there was no change in field conditions requiring an update. At 1:57am and at 2:23am, two aircraft became disabled on taxiways due to NIL braking conditions. At 2:34am a Notice to Airmen (NOTAM) was issued, notifying users of the airport that it was now closed. (Exhibit K). At 3:44am, the Airport issued an updated FCRS and at 4:00am, the Airport reopened (Exhibits N and K). Once the airport was closed, any updates on the field conditions would have been moot, since there were no air carriers using the airport while it was closed. The purpose of runway condition reporting is to notify all air carriers using the airport when any portion of the movement area normally available to them is less than satisfactorily cleared for safe operation by their aircraft. (Exhibit F at Section 5-2). Once the airport was closed, the runways were not available to any aircraft and an update to the field conditions would have been of no use to anyone. The Airport updated the field conditions prior to reopening the airport, so in the event an 11
aircraft needed to land at the airport right as it reopened, it would have an up-to-date field condition report. For these reasons, the Airport asks the FAA to consider reducing its proposed $100,000 penalty and find that on December 29, 2013 the Airport was safe, secure, and in conformance with the Snow and Ice Control Plan. 12
IV. Case No. 2015GL800037 This case revolves around numerous days when the Airport was not fully staffed in accordance with the SICP and a report of NIL braking by Air Wisconsin flight 3897. This brief in support will handle each of these instances separately. a. Air Wisconsin s Report of NIL Braking On March 1, 2015, at 7:00am, the forecast called for between one to four inches of snow, which put the Airport into a Snow Code Yellow. At 8:43am, Airbus 319 reported NIL braking conditions on Taxiway Papa. (Ops Log 3/1/15, attached as Exhibit O). The Airport immediately closed Taxiway Papa and Runway 24L so they could be treated. Id. At 9:08am, the Airport reopened Taxiway Papa. Id. At 9:56am, the Airport reopened Runway 24L, with good friction values reported at 40 Mu. Id. At 10:05am, the Airport reported good friction values of 38 to 40 Mu for Runway 24R. Id. At 11:19am, the Airport updated the conditions on both Runway 24L and 24R and found snow on both runways with a range of braking conditions on both runways as low as 33 Mu. At 11:44am, the Airport made the decision to first close and treat Runway 24R before Runway 24L, since Runway 24R is easier to land in low visibility. Id. The visibility at that time was only 1 ¾ of a mile. (METAR 3/1/15, attached as Exhibit P). Both Runways are Priority-1 runways under the Airport s SICP. (Exhibit E at Appendix A). At 11:59am, Air Wisconsin landed on Runway 24L, since the Airport had just closed Runway 24R to be treated. Moments later, the Air Traffic Controller asked Air Wisconsin to report the braking conditions. (Air Traffic Control Tower Recording at 00:27:55, Compact Disc attached as Exhibit Q). Air Wisconsin replied that braking conditions were good. (Id. at 28:00). 32 seconds later, the Air Traffic Controller told Air Wisconsin to exit Runway 24L onto Taxiway 13
Papa and Air Wisconsin responded, Roger, we ll have it here in two minutes. (Id. at 28:32) (Emphasis added). 19 seconds later, the Air Traffic Controller cleared another flight for takeoff on Runway 24L and advised the pilot of another flight on a two and half mile final descent to head towards Runway 24L for landing. (Id. at 28:51) Immediately after ATC cleared the runway for takeoff and landing, Air Wisconsin abruptly reported poor braking on Runway 24L, less than a minute after he reported good braking conditions. (Id. at 28:58). At 12:04pm, the Airport received the report of poor braking on Runway 24L at Taxiway Papa and closed the runway for inspection. (Exhibit O). At 12:07pm, the Airport reported fair friction values of 35 Mu on Runway 24L and friction values of 30 Mu on Taxiway Papa, but treated both Runway 24L and Taxiway Papa anyway. Id. The Airport is required to close a runway or taxiway for treatment only when Mu levels are at 21 or below. (Exhibit E at Section 5.3). The Airport reopened Runway 24R with good frictions levels at 40 Mu at 12:10pm, 26 minutes after it had been closed for treatment at 11:44am. By 12:23pm, the Airport had plowed Taxiway Papa and applied anti-icing chemicals. (Exhibit O). By 1:15pm, the Airport reopened Runway 24L with good friction levels at 40 Mu after applying anti-icing chemicals. Id. The Notice of Proposed Penalty states that the Airport failed to prioritize for snow and ice removal on Runway 24L and Taxiway Papa. The Airport received a report at 11:19am that both Priority-1 runways had snow and fair friction values above the level where the SICP requires the Airport to close the runways. However, knowing that the weather would continue to deteriorate through the rest of the morning and into the afternoon, the Airport took steps to clear both runways immediately. The Airport decided to treat Runway 24R first, since it is the easiest 14
to land in low visibility. The Airport does not have the ability to treat both Priority-1 runways at the same time and made a reasoned decision to clear Runway 24R first. The Airport treated Runway 24L after Air Wisconsin reported poor braking, even though Air Wisconsin had just reported good braking conditions a minute earlier and the inspection immediately after the report showed fair friction values. Every objective test on Runway 24L that morning resulted in fair to good braking conditions. The only report of poor to NIL braking was the subjective report of the pilot of Air Wisconsin, whose own report was inconsistent with the report of good braking conditions he gave only moments earlier. Even though the pilot s reports were inconsistent, the Airport still treated both the runway and Taxiway Papa with antiicing chemicals. The Notice of Proposed Penalty states that the Airport failed to treat Taxiway Papa with anti-icing chemicals until 12:23pm. Throughout the morning, braking conditions on Taxiway Papa never reached NIL. As soon as Air Wisconsin reported poor conditions on Taxiway Papa, the Airport treated Taxiway Papa with anti-icing chemicals. The Airport did this even though Air Wisconsin s subjective reporting of the braking conditions was not substantiated by the Airport s investigation of the braking conditions on the taxiway. In addition, SICP section 4.4 does not require chemicals to be applied under any specific circumstances. (Exhibit E at Section 4.4). Section 4.4 states that [t]he selection and application of approved materials for snow and ice control is based upon an evaluation of the existing field conditions. Id. The Airport monitored the condition of Taxiway Papa all morning and applied anti-icing chemicals after the inspection, while the taxiway was already closed. This decision allowed the Airport to apply anti-icing chemicals without having to close the taxiway twice. 15
The Notice of Proposed Penalty also states that the Airport failed to provide updated Field Condition Reports between 12:25am and 4pm. However, the Airport provided updated Field Condition Reports at 12:25am, 12:39am, 1:06am; 1:30am, 1:48am, 2:52am, 3:53am, 4:55am, 6am, 6:58am, 7:46am, 7:59am, 8:05am, 8:48am, 8:53am, 9:55am, 10:06am, 11:19am, 11:44am, 12:05pm, 12:10pm, 1:15pm, 1:26pm, 2:03pm, and 4pm. (Exhibit O and FCRS 3/1/15, attached as Exhibit R). The Airport updated the field conditions every time the airfield s condition changed as required by the SICP and FAA Advisory Circular 150/5200-30C, section 5.2. At no point before or after this incident was the airfield unsafe. The Airport cleared both Priority-1 runways and applied anti-icing chemicals as they were warranted and in a manner that would require the fewest possible runway and taxiway closings. The Airport cleared and applied anti-icing chemicals to Runway 24L, even though Air Wisconsin s subjective report of poor braking was inconsistent with his own earlier report and unsubstantiated by the Airport s objective testing. b. Staffing Below the Levels set by the Snow and Ice Control Plan The Notice of Proposed Penalty lists nineteen days that the Airport did not meet the staffing levels outlined in the SICP. On eight of those days, the Airport was short only one to three employees. (Staffing Report, attached as Exhibit S). The Airport s Snow and Ice Control Plan for the 2014-2015 winter season was the first SICP to require minimum staffing levels during snow events. The SICP for the 2015-2016 winter season will not require minimum staffing levels during snow events. On many of the days listed in the Notice of Proposed Penalty, the Airport was short one operations agent, but exceeded the minimum staffing requirement for field maintenance workers, who clear snow and ice from the 16
airfield. In these instances, the City had more than enough workers to ensure that the airfield was safe as well as prepared in case the weather deteriorated. Regulations require that the Airport, [p]rovide sufficient and qualified personnel to comply with the requirements of its Airport Certification Manual and the requirements of [14 C.F.R. Part 139]. (14 C.F.R. 139.303(a), attached as Exhibit T). On each of the nineteen days listed in the Notice of Proposed Penalty, the Airport had sufficient staff to keep the airfield safe and in certain divisions had more than the required number of staff on hand. The number of staff on hand does not guarantee that the airfield will be kept clear of snow and ice or that the airfield will be safe. While the requirements under the SICP cannot be met without staff, there is no specific level of staffing that will guarantee a safe airport. The substantive requirements of the SICP are more relevant. Though the Airport did not have the required number of staff on each of the nineteen days listed in the Notice of Proposed Penalty, the Airport has not been accused of failing to meet any of the substantive requirements of the Snow and Ice Control Plan and has kept the airfield safe. The Airport was able to clear runways and check braking levels, it had the requisite snow removal equipment, and it followed required protocols. During each of those days, the Airport kept the airfield safe, which is the ultimate goal of any Snow and Ice Control Plan. c. Conclusion For these reasons, the Airport asks the FAA to consider reducing its proposed $555,000 penalty and find that throughout the 2014-2015 winter season, the Airport was safe, secure, and in conformance with the Snow and Ice Control Plan. 17