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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.

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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

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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, high-

speed 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

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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.

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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.

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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

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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.

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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).

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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

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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.

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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

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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

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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 anti-

icing 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.

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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

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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.