ATTORNEYS' OFFICE IGNORES CRITICAL EVIDENCE IN THE VALUJET CRASH
ADMITTED OXYGEN GENERATORS WERE TO BE RETURNED
In recent days there have been many rumors circulating in the press that Federal prosecutors may indict a few line workers who were employed by SabreTech for falsifying documents relating to the shipment of hazardous materials in the ValuJet disaster. If this is the extent of criminal action taken by law enforcement authorities, it amounts to nothing more than a cowardly, token act on the part of the Justice Department. These indictments, in their current form, target minimum-wage workers, while the well-documented, illegal actions of ValuJet management are not even addressed. This amounts to nothing more than punishing schoolyard drug users, while absolving the drug lords.
It is indeed difficult to find words to express the disappointment felt by family members of those who perished in the ValuJet crash at the absence of strong action by law enforcement authorities. This is yet another in a long string of betrayals by the governmental bodies whom ostensibly exist to prevent such disasters. ValuJet's dismal safety record was well known within the FAA, yet the agency failed to act in time to avert the disaster, even with an internal report recommending that the airline be grounded well before the crash. The NTSB produced an ineffective and unproven final report that spread the blame for the crash among so many that no meaningful safety reforms have actually been put into force. At last report, only two of the forty ValuJet airplanes now flying under their assumed name "AirTran" have had smoke alarms installed in the forward cargo hold. Yet, as we have watched little more than finger pointing continue over the past three years, family members have held on to the belief that somehow, meaningful legal actions would be brought forth to hold those responsible for the deaths of our loved ones accountable for their actions. Unfortunately, if these recent reports are accurate, there will have been no effective deterrent established to prevent a similar disaster from happening again.
All we have ever asked for is the truth to be told and justice affirmed. A simple request, it would seem, and our loved ones deserve nothing less. Criminal prosecution would mean more to our family members than any settlement or jury award in any amount. But to avoid prosecuting those who are so clearly at fault while prosecuting those with only incidental roles is an insult to the memory of our loved ones, an insult to the collective intelligence of the family members, and an insult to any and all future air travelers.
It is apparent that Federal prosecutors are following the NTSB's lead in their analysis of this case. In doing so, they are disregarding years of legal precedents. Our loved ones bought tickets on ValuJet Airlines, not SabreTech. ValuJet's responsibility was to maintain its aircraft and provide safe transportation. They chose to hire a subcontractor to perform maintenance tasks for which they bore the ultimate responsibility. Courts have always held that companies that operate in perilous industries perform tasks that are considered to be "non-delegable duties" - ones in which the liability cannot be passed on to a subcontractor. In this situation, authority can be delegated, responsibility cannot. In simple terms, the person that hires the hit man is responsible for the murder.
As in all other things connected with ValuJet, their motivation to hire SabreTech to perform these tasks was to save money. Should ValuJet also be rewarded for this decision by relieving them from accountability? The decision to prosecute SabreTech, and not to prosecute ValuJet, is a clear signal to this and all other outlaw airlines that the very practices that led to the crash will be tolerated in the future. Their failure to prosecute ValuJet will result in a frightening precedent where companies in perilous industries subcontract dangerous tasks in order to potentially relieve themselves from liability should anything go wrong.
By failing to indict ValuJet, the Justice Department has ignored evidence that clearly shows ValuJet violated Federal law. It is an incontrovertible fact that ValuJet ordered SabreTech to return the expired oxygen generators to them rather than have them disposed of as hazardous waste, and then knowingly transported them on board Flight 592. Criminal penalties for knowingly transporting hazardous material are five years in prison and fines up to $500,000, and that's if no one gets killed. Of course, ValuJet (AirTran) now says that it never wanted the oxygen generators returned to them in Atlanta, and furthermore, that SabreTech deliberately disguised the oxygen generators so that they would be loaded on Flight 592 against the airline's wishes. The statements made by ValuJet representatives soon after the crash reflect no such reluctance to carry the oxygen generators on board their aircraft. As will be shown, the airline's statements reflected the fact that they were fully aware of the presence of the oxygen generators on board that flight. This raises the question, what possible reason could ValuJet have had for transporting worthless, expired oxygen generators back to Atlanta? Prior to the ValuJet crash it was quite common for airlines to transport oxygen generators back to their home base so that they could be disposed of at the lowest possible cost. ValuJet, however, was not authorized to carry hazardous material, despite their initial protests to the contrary. We must live the rest of our lives with the sickening realization that our loved ones are dead because ValuJet Airlines was attempting to save a few dollars in hazardous waste disposal costs.
SabreTech was a subcontractor of ValuJet, performing line and heavy aircraft maintenance. In early 1996, SabreTech was performing maintenance on three aircraft recently purchased by ValuJet. Due to the fact that SabreTech found most of the oxygen generators had exceeded their shelf lives on two of these aircraft, they were ordered to replace them. Three months prior to the crash, ValuJet sent a written engineering order to SabreTech. Item 12.1.3 of Engineering Order 15-3520-B0820 instructed SabreTech as follows; "From the Passenger Unitized Oxygen Insert Assy. Unit, remove the existing Insert-Bracket Assy. and the Oxygen Generator. Tag and return to stores." ("Stores" is a term used in the industry to denote a place where new or refurbished parts are kept.) Although the NTSB quoted directly from other areas of this engineering order in its final report, they curiously deemed this section did not warrant mentioning. (A copy of this engineering order may be found at http://www.flight592.com/NTSB/returnto.htm.)
We feel that the omission of this section of the engineering order in the NTSB's final report was unconscionable. Clearly, this engineering order is the seminal document in a trail of evidence that can support no other conclusion than the fact that ValuJet did indeed wish for the expired oxygen generators to be returned to them. Had ValuJet followed the law and ordered SabreTech to dispose of the oxygen generators as hazardous waste, the oxygen generators would never have been placed on board the aircraft. SabreTech is accused of, a) falsifying work cards, which indicated they had installed safety caps on the oxygen generators, and b) describing the shipment of oxygen generators as "empty". Had these tasks been performed correctly, they may have been preventative in nature, but in no way can these acts alone be described as causal. It was the issuance of ValuJet's engineering order that led its own employees to place the oxygen generators on board Flight 592, while the actions (or lack thereof) of SabreTech failed to prevent the loading of the canisters on Flight 592 and failed to render the canisters harmless.
Initial news reports detailed the recovery of soot covered and scorched parts from the areas adjacent to each side of the bulkhead dividing the cockpit from the cabin. Transmissions from the first officer to the control tower tended to support initial accounts advanced by the NTSB that the plane had suffered electrical problems. However, when it was reported that oxygen generators had been on board the flight, any further investigation of an electrical cause was abandoned.
During the early days following the crash, ValuJet was under intense pressure to restore the confidence of investors, regulators and the flying public. They quickly realized that a disaster of this magnitude carried with it the very real possibility that the airline could be forced from business, as had happened to Air Florida. (Not to mention fines and prison sentences.) This was big time corporate damage control. Along with ValuJet spokespersons, Chief Operating Officer Lewis Jordan took a lead role in meeting with the press. Every word in every statement had to be crafted with utmost care as the very survival of the airline was at stake. Answers to questions were rehearsed. They were careful to "get their story straight." Collectively, these statements, when viewed in a historical perspective, would later constitute an undeniable admission as to ValuJet's true intentions. ValuJet had been caught illegally shipping hazardous material to save on disposal expenses, and did not even bother to exercise the minimum of care to verify that the oxygen generators had been discharged. While not constituting a legal shipment of hazardous material, at least the oxygen generators could not have sparked or fed a fire if they had been discharged. Section 175.3 of the Hazardous Materials Regulations reads: "Hazardous materials that are not prepared for shipment in accordance with this subchapter may not be accepted for transportation or transported aboard an aircraft." One hundred and ten innocent souls gave their lives because ValuJet wanted to save on disposal costs. It has since been said, "ValuJet spent lives to save money."
However, the indignation that was initially widespread throughout the country slowly faded. ValuJet Airlines, aided and abetted by the FAA, the NTSB and now it would appear State and Federal prosecutors, has engineered one of the most clever and successful public relations comebacks of all time. Even though ValuJet had admitted that they were actively involved in the transportation of oxygen generators back to Atlanta, they successfully lied big enough, loud enough and long enough until they had totally reversed the accepted truth. Within 12 to 18 months, the deception was so widespread that even news anchors would mistakenly introduce news stories concerning the airline as if they had been the victim of their irresponsible subcontractor, who illegally loaded the dangerous oxygen generators on board their aircraft without their knowledge or commission. (Just so you don't forget, ValuJet was the party that ordered SabreTech to return the oxygen generators, as it was ValuJet who illegally loaded the oxygen generators on its own aircraft.) We have seen two examples of this in the past week.
Although there were off the cuff remarks by Lewis Jordan such as "We did nothing wrong", "We are victims", and "Someone put a bomb on board our plane", ValuJet would later settle on the disingenuous mantra, "No decision or action by the airline or its employees can be linked to the accident." If someone had simply read a news account from the time of the crash they could have seen that this statement is ludicrous.
On the first day that it was revealed the oxygen generators had been on board the flight, Greg Kenyon, a spokesperson for ValuJet, addressed the press. The May 15th issue of the Palm Beach Post published the following in an article entitled, "Investigators Focus on Scorched, Sooted Parts and Oxygen Containers":
The ValuJet DC-9 was carrying 50 to 60 oxygen canisters in the cargo hold behind and beneath the cockpit, investigators said. The devices, which were past their shelf life, were being taken to ValuJet headquarters in Atlanta.
ValuJet spokesman Gregg Kenyon wouldn't comment directly on the canisters, but said the airline's policy is to not accept hazardous materials for commercial carriage.
"We are permitted by federal regulations to carry certain hazardous materials associated with the maintenance and operation of our fleet," he added.
This article details a theme that would be present in virtually every news story published over the next few days. ValuJet readily acknowledged that it was transporting the oxygen generators back to Atlanta, defending its actions because it believed it was transporting company material.
However, ValuJet spokesman Gregg Kenyon was in error when he implied that federal regulations allowed the airline to legally transport oxygen generators. Behind the scenes, ValuJet and the FAA were involved in heated discussions regarding this issue. Lewis Jordan steadfastly maintained that the shipment of oxygen generators was company material (CoMat) and not a shipment from SabreTech. Jordan maintained that ValuJet was not shipping hazardous material (HazMat) but that they had the right to transport equipment and supplies necessary for the maintenance of their fleet.
While Jordan was technically correct about the definition of company material, his use of this argument as a defense was a ruse crafted to offer an explanation as to the presence of the oxygen generators on the aircraft. The Washington Post, in a May 17th article entitled. " Heavy Chunks of DC-9 Removed as Oxygen Tank Probe Continues" offered the following perspective:
He (Greg Feith) said ValuJet and the Federal Aviation Administration are differing over whether ValuJet is allowed to carry hazardous material for its own use even though it cannot accept hazardous material from customers.
ValuJet President Lewis Jordan said the shipping ticket listed the canisters as empty, and "if that information is correct, we are not at fault. If those units are charged, they are not supposed to be on our airplane." Jordan said the repair station was supposed to return the canisters empty.
In the May 17th edition of Aviation Week, the article "ValuJet Chief Says Flight 592 Canisters Not Dangerous", explained further:
Oxygen canisters being transported in the cargo compartment of ValuJet Flight 592, which crashed shortly after takeoff on May 11, were empty, according to a shipping ticket ValuJet Chairman Lewis Jordan presented at a news conference May 16. Jordan said ValuJet believes the canisters were empty, posed no threat to passengers and could be transported legally, even though the carrier is not authorized to carry hazardous materials. The canisters came from one of ValuJet's MD-80s, and Jordan said it is standard practice to discharge them before shipping. Jordan's remarks were in conflict with those of an FAA official who said Wednesday the canisters still would contain hazardous materials, even if they had been emptied.
It is difficult to imagine how much more clearly the situation could have been described. Despite the airline's recent denials, here is Lewis Jordan, Chief Operating Officer, admitting that the oxygen generators were supposed to be returned to them, and that they were harmless when discharged. It is clear from these statements that he was relatively unconcerned with the fact that oxygen generators had been on board his company's aircraft.
Other articles covered the controversy as follows:
The Palm Beach Post, May 16th, "Illegal, Volatile Canisters on Plane"
ValuJet initially said the shelf life of the canisters had expired and that they were being ferried back to the airline's Atlanta headquarters.
The Palm Beach Post, May 16th, "Crews Pull Larger Pieces of Airliner from Everglades"
The Federal Aviation Administration said ValuJet was not allowed to transport the oxygen canisters, which are considered hazardous material and can get as hot as 500 degrees when activated. The devices were being taken to ValuJet headquarters in Atlanta.
The Washington Post, May 16th, "Containers on Jet Were Mislabeled"
However, manufacturing sources said the only way to empty the canisters is to ignite the chemical inside, which produces a residue of barium salt that is classified as hazardous waste and also could not be flown on ValuJet planes.
The Palm Beach Post, May 18th, "Risky Cargo Flies Regularly"
ValuJet lacks certification to ship hazardous material, even if it's company property, said Patricia Klinger, spokeswoman for the Department of Transportation, which oversees shipping procedures for hazardous materials.
"Hazardous material is hazardous material, regardless of who owns it, and it has to be transported and packaged properly," Klinger said.
ValuJet filed no exemption request with the transportation department to transport its own hazardous material, Klinger added.
St. Louis Post Dispatch, May 20th, "Tire Discovery Favors Theory on Jet Fire"
Feith said Sunday that ValuJet personnel put them aboard the DC?9 for shipment to Atlanta, where the airline has its headquarters. The distinction may be important, because SaberTech, the maintenance contractor contends that whether or not the generators were hazardous cargo, the airline is responsible for figuring out what it is loading on its planes.
The articles above clearly show that ValuJet initially admitted that it was transporting the oxygen generators back to its headquarters in Atlanta, but that the airline's contention that it was allowed to transport the oxygen generators it believed to be empty was incorrect. ValuJet dropped this claim, and began to assert that if SabreTech had labeled the oxygen generators correctly, it would have refused to transport them. Even this argument appears specious due to the fact that the airline had recently been cited twice for violations concerning other oxygen related cargo. In fact, if ValuJet ramp agents had been alert, the mere labeling "Oxy canisters - Empty" should have been enough to question this shipment and cause further investigation. SabreTech's failure to properly label, and ValuJet's acceptance for transport, are equivalent illegal acts.
The following articles addressed the purpose of shipping expired oxygen generators;
St. Louis Post-Dispatch, May 22nd, "ValuJet Wanted Generators Back, SabreLiner Says"
ValuJet spokesman Gregg Kenyon said he did not know why the airline was shipping the generators, which were outdated.
He blamed Sabreliner for not labeling the oxygen generators as hazardous waste.
Palm Beach Post, May 23rd, "ValuJet Shareholders Unsure of Company's Future After Crash"
He (Jordan) refused to answer questions about why ValuJet would fly empty canisters back to its headquarters. Empty canisters are worthless and cannot be reused.
St. Louis Post-Dispatch, June 2nd, "Firms Linked in Plane Crash Ignored Rules"
ValuJet spokesman Gregg Kenyon refused to say last week whether the airline wanted to send the oxygen generators to Georgia to save money.
The shipping ticket also bore the legend "Customer Furnished Material Returned Per Customer Instructions". It should be noted that a shipping ticket is not the same as an air bill, which typically accompanies air cargo. Nowhere are there instructions on the shipping ticket to fly the boxes anywhere.
The word "empty" is misleading. Discharged oxygen generators contain chemicals and must be treated as hazardous waste in Florida, though they pose no threat of fire.
A Federal Department of Transportation official, who spoke on the condition that he not be identified, said that safety regulations apply equally to companies that carry hazardous waste as well as those that offer it for shipment.
These last three articles are puzzling. Both Jordan and his spokesman refused to answer questions concerning the true reason the oxygen generators were being shipped to Atlanta. One would have thought that they would have shown great anger at the mere insinuation of this, and have issued a heated denial. They did not of course, because there can be no other reason to ship worthless oxygen generators out of a state that required expensive hazardous waste treatment than to save on disposal costs.
In summary, it has been shown that;
Our family group has stood by waiting patiently for three long years, assured that in the end the truth would be told regarding the cause of the crash of Flight 592, and that those responsible would be brought to justice. Having been burned by the FAA and then the NTSB, we would await the findings of law enforcement officials. Perhaps we were foolish, but we believed in our country, and in the integrity of the U.S. and State Attorneys' Offices and FBI investigators. Sadly, they have only paid cursory attention to this matter, and rubber-stamped the findings of the NTSB.
Indeed, it appears that the various representatives of our government have had as their concerted effort the goal that ValuJet be relieved of all accountability in this matter. Initially, the NTSB was able to change the focus of its investigation when oxygen generators conveniently appeared so that the NTSB could drop any potential electrical malfunctions as a possible cause of the crash. Family members watched in disbelief at the NTSB hearing in August of 1997, as the NTSB staff recommended that only the actions of the FAA and SabreTech were causal to the crash, while the actions of ValuJet were merely contributory. Thankfully, NTSB Board Member John Goglia, issued an impassioned plea that there be no doubt that the owner-operator of an airplane is ultimately responsible for its airworthiness, and for the oversight of its contractors, and that this ultimate responsibility is absolute. The family members had finally found a lone champion for their cause, and Member Goglia was greeted with a thunderous standing ovation. In April, 1998, the FAA, in what amounted to little more than a publicity stunt, had the audacity to fine SabreTech $2.25 million. Where was the fine for ValuJet, and who would fine the FAA for its role in the disaster? Now it appears that the families' last hope for justice, the U.S. and State prosecutors aided by the FBI, will follow suit and charge the ignorant and improperly trained low-level employees of SabreTech with crimes that they had little hope of preventing. All this furthers the public perception that SabreTech was the sole cause of the accident and that ValuJet was an innocent victim.
There is a trend here that is readily apparent, but the examination of which is beyond the scope of this paper. This trend is the active participation by the current administration to boast of its achievements in low cost air transportation, and to whitewash those incidents that would not reflect favorably upon it. This discussion may be more fully examined by reviewing the articles listed at http://www.fumento.com/supena.html. We wonder what pressures, if any, the administration has brought to bear on the U.S. Attorney's office of South Florida.
Only the press has come close to fulfilling its historical role by making this information available to the public. We would indeed be lost without this information. However, there is a feeling that the press has lost much of its desire to aggressively pursue investigative reporting, and if ValuJet is not indicted, it is only by this aggressive investigative reporting that the true story will be told. If you are a member of the press, please ask questions of those that are accountable to all of us. There is plenty of material presented in these pages, and those that you question will be caught off guard.
The only facts not available to us at this time are a direct result of the NTSB failing to complete its job. A careful reading of the NTSB's final report will reveal that it is filled with unsubstantiated opinions and unsupported facts. Not only did the NTSB fail to assign blame where it belonged, they never performed scientifically valid tests to support their assertion that illegally carried oxygen generators were responsible for the ignition of the fire on board Flight 592. Yet incredibly, this report has now become the basis for referral and a criminal complaint. We wonder if the Justice Department has considered this omission.
In conclusion, perhaps one of the most horrifying facts of this preventable disaster is that the flying public has been lulled into complacency by these governmental agencies. The fact that shipments of oxygen generators have been banned from passenger flights has led to a false sense of security. Unfortunately, there is no effective deterrent against cost-cutting executives who sacrifice safety for the bottom line.