### • STUARTA. GOLDSTEIN, P.A.

StuartA. Goldstein, Esq. 7300 North Kendall Drive, Suite 380 Miami, FL 33156



### Via Federal Express DocketOperations,M-30 U. S. DepartmentofTransportation WestBuilding, GroundFloor 1200NewJerseyAvenue, S. E. RoomW12-140 Washington, D. C. 

### 20590 Re: TheLibertyFoundation DearSir/Madam: June 12,2015 Board CertifiedAviationLawAttorney T: (305) 670-1222 F: (305) 400-0685 stuartgoldsteinpa@att.net



### Enclosed for docketing please find "The Liberty Foundation Inc.'s Supplement To Its Petition For Reconsideration Of The Denial Of Its Petition To RenewIts Exemption." Pleaseadviseifthereareanyquestions. Verytrulyyours,

'



### jhs

### To: U.S. DepartmentofTransportation DocketOperations, M-30 WestBuilding, Ground Floor RoomW12-140 1200NewJerseyAvenue, S. E. Washington,D. C., 

### 20590

THE LIBERTYFOUNDATION INC.'S SUPPLEMENT TO ITS PETITION FORRECONSIDERATION OF THE DENIAL OF ITS PETITION TO RENEWITS EXEMPTION



### Petitioner: The LibertyFoundation 

### cjoStuartA 

### Goldstein,Esq. StuartA Goldstein, P. A 7300 North Kendall Drive, Suite 380 Miami, FL 33156 Tel: (305) 670-1222 Fax: (305) 400-0685 stuartgoldsteinpa@att.net Dated: June 

### 12,2015 .. '**~**



### .. -

u

.**~J**

### 2 This Supplement to The Liberty Foundation's ("Liberty") Petition For Reconsideration ofthe Denial ofits Petition to Renew Its Exemption ("Denial") is submittedto make a more completeresponsetothe Denial so thatitis clearLiberty deserves to have its Exemption renewed. There were two areas of concern the Federal Aviation Administration ("FAA") asked Liberty to address in this supplementaryfiling. These are Conditions and Limitations 2 and 22 ofExemption No. 8565C. Condition and Limitation 2 relates to the maintenance ofthe Liberty Belle aircraft and Condition and Limitation 22 relates to certain required notifications totheAtlanta FSDO. We will discuss Condition and Limitation 22 first

as itrequires less discussion. We will also address the NTSB's finding ofprobable

cause. AveryimportantpreliminarymatterLibertywishes to bringtothe attention ofthe Administrator is the changes Liberty has made to its maintenance program. Priortothe accident, Libertyutilized contractmaintenancepersonnel. Althoughthe contract personnel were well experienced, qualified, and professional, subsequent to the accident Liberty hired a full-time, in-house Director ofMaintenance and has

an A & 

### P mechanic who travels with the aircraft 24/7. This preserves continuity when conducting maintenance and focused inspections, and provides a focal point for all other Liberty operations' personnel. Liberty strives to embrace greater consistency with its maintenance program while providing for greater interdependabilitywithintheorganization.

### 3 

### ConditionAnd LimitationNo. 22 ConditionandLimitation 22 ofLiberty's ExemptionrequiresLibertyto notify theAtlantaFSDO within 24hoursof: (1) eachin-flightfire inanysystem orareathat requires activation of any fire suppression system or discharge of a portable fire extinguisher; (2) except for training, each occurrence of engine shutdown or propeller feathering, and the reason for such shutdown or feathering; (3) each failure or malfunction of the fuel system, tanks, pumps, or valves; and (4) each malfunction, failure, or defect in any system or component that requires taking emergencyactionofanytypeduringthecourseofanyflight. Liberty met the requirements of Condition and Limitation 22 when it promptly notified Atlanta FSDO Inspector Greer Parramore of the accident that occurred on June 13, 2011, and the details, such as theywere known to Liberty at that time. Attached hereto as 

### Exhibit 1 is the Declaration of Raymond Fowler, Liberty's Chief Pilot, attesting to the facts that on June 13, 2011 he personally notified Inspector Parramore ofthe known details ofthe fuel leak, fire, and engine shut down. Mr. Fowler also contacted Inspector Ray Stitchcomb to inform him of theaccident. 

### ConditionandLimitationNo. 2 Condition and Limitation No. 2 requires Liberty to maintain its Limited Category airplane in accordance with: (1) the maintenance requirements as specified in the appropriate type certificate data sheet, as amended; (2) the FAA approved maintenance inspectionprogramthatmeetsthe requirements ofSections 91.409(c), (fJ(4) and (g); and (3) the appropriate military technical manuals

### 4 

### (Technical Orders). The Denial also states there was "an apparent inappropriate modification to the fuel system." (Emphasis added). Liberty understands the FAA's 

### reference is directed to the fuel tankprojectin which Libertyreplacedbladderfuel tanks with aluminum fuel tanks concludingin February, 2011, andtherepairofthe fuel leakin the number one fuel tankpriorto the accidentflight. Forthe following reasons, Libertybelieves itmetall ofthe requirements ofCondition and Limitation No.2,

### andtherewasnotaninappropriatemodification ofthefuel system. The Repair oftheFuel TankLeakonJune 12-13,2011 Liberty met all ofits obligations related to the repair ofthe fuel tank leak performed on June 12-13, 2011, prior to the accident flight. Condition and Limitation No. 19 ofExemption 8565C onlyrequiresthatLibertyhave "the services of an FAA-certified airframe and powerplant mechanic or an appropriately rated repair station available at all stopovers to perform all required maintenance inspections and repairs." Liberty met (and exceeded) this requirement because it utilizedthreeA 

### &Pcertificatedmechanicsto formulate a planto repairtheleakand then to repair the leak. Tr. 4-24-14, pp. 130-32 (Exhibit 2) 1 

### These certificated A&Ps were RodneySchneider, Chuck Giese, and John Hess.2 

### Therepair consisted of repairing the crack at the edge ofthe weld flange by drilling out some ofthe bolt holes thatwereoriginallyinthefuel tankso fasteners couldbeinstalledthroughthe flange to help pinch it together and keep the crack from spreading. They also packedthe crack externallywith sealer and putbolts through the holes. Theythen

1 Thetranscriptreferences aretosworntestimonyatthehearingbeforeDOTJudgeJ. E. Sullivanin April, 2014. 2 John Hessis alsoanATP relatedpilotandis a DeltaAirLines Captain. He waspilot-in-commandof the accidentflight.

### 5 

### tookanaluminumUchannel (also called a Cchannel) extrusionthatwastightfitting and bolted it to the edge of the seam. They then packed the U channel with additional sealer, thus making several layers ofprotection. Mr. Schneidertestified the sealer used to repair this leak is the same sealer he used at Delta Air Lines to repairfuel tankleaks. Tr. 4-24-14,p. 129 (Exhibit3). 

### No FAA witness testified this repair was not accomplished according to accepted methods, techniques, and practices or that the**repai~** 

### was not accomplished by elementary methods. FAA witness Timothy Bourgoine testified packing the sealant from the outside was "an improvement." Tr. 4-22-14, p. 157 (Exhibit 

### 4). FAA witrless Thomas Duellman agreed there was nothing that mandated the leak be sealed from the inside (Tr. 4-23-14, p. 211, Exhibit 

### 5) and FAA witness Thomas Soerens agreed notall methods, techniques, and practices are writtenintheFARs oranywhereelse. Tr. 4-23-14,p. 134(Exhibit6). 

### In addition, Liberty fully complied with therequirements ofAC120-16E CHG 1which specifies on pages 5-6 (Paragraph 201) the differences in maintenance and inspection programs between Parts 121/135 carriers and owners/operators under Part 91, such as Liberty. (Exhibit 

### 7). Under paragraph 201, 

### the Advisory Circular makes clear that for Part 91 owners/operators "The authorized and certificated person(s) hastheresponsibilityto performthemaintenanceproperlyin accordance with the manufacturer's manual and to approve the aircraft for return to service. The owner/operator does not have this responsibility. However, the

owner j

### operator is responsible for ensuring maintenance personnel make appropriate entries in the aircraft maintenance records indicating the aircraft has

### 6 

### received approval for return to service." Emphasis added. In accordance with the Advisory Circular, Liberty appropriately relied on the expertise ofthe three A & 

### P mechanics to properlyrepairtheleak and on Mr. Schneiderto returnthe aircraftto service. Both Mr. Schneider and Captain Hess testified at the hearing that a maintenance log entry was made in the aircraft's discrepancy log prior to the accidentflight. The discrepancylog was keptinthe**airc~aft** 

### as part ofthe aircraft's maintenance records and was destroyed in the post landing fire. Mr. Schneider specificallytestified thathe preparedthe maintenance record entryin the aircraft's log 

### book, thathe signed the entry, and entered his A 8r 

### P certificate number, all as required by FAR 43.9(a). Tr. 4-24-24, 157 

### (Exhibit 8). Mr. Schneider's testimony

wasnotrebuttedbyanyFAAwitness ordocument. Captain Hess specificallytestified thatbeforehe flew the aircraft onJune 13, 2011, 

### he personally reviewed the discrepancy log entry. Tr. 4-24-14, p. 121 

### (Exhibit 9). He testifiedMr. Schneiderwrotethediscrepancyand also returnedthe aircraft to service. Tr. 4-24-14, pp. 121-22 

### (Exhibit 10). An FAA witness (Mr. Bourgoine) also testified and confirmed thatLiberty used the discrepancylog form for writing up and clearing maintenance discrepancies. Tr. 4-22-14, pp. 146, 150 

### (Exhibit 11). Acopy ofthe discrepancylog form is attached hereto as 

### Exhibit 12. Mr. SchneiderandCaptain Hess testified itwasprocedureto usethe discrepancylog entryform to write up and clearmaintenance issues whenthe aircraftwas touring. See, 

### Exhibits8 and9, above.

### 7 

### The NTSB Report states: "A postaccident examination noted that the C channel installed as part ofthe No. 1 main fuel tank repair earlier inthe weekwas partiallyseparated." Thatmaybe a true statement,howeverthe NTSB was in error not to have mentioned that the fuel tank was substantially damaged by salvage wreckercrewswho essentiallydestroyedtheleftwingtakingitapart. Captain Hess

was onthe sceneimmediatelyandpersonallyobservedthenumber 1mainfuel tank repairwasnotdamaged andthefuel tankitselfwasintact. The NTSB wasnotonthe

scene when Captain Hess made these observations and it is not known when or where NTSB's "postaccident examination" was made. Captain Hess's in person, immediatelypost-accidentobservations deserve creditas to the statusoftherepair. In addition, the NTSB said it could not determine the ignition source of the fire. Guesses are nota fair wayto determine fault. Acopy ofCaptain Hess's Declaration is attachedheretoas Exhibit 

### 13,whereinCaptainHess states "I personally observed the wrecker crew significantly destroy the left wing and seriously damage the number one fuel tank. I personally observed a person on-site inspecting then rubbing or scraping at the repair area. I personally observed the salvage crew attempt to break the outer wings off (containing the number on fuel tank), by bendingthesparswithheavyequipment,which Iobserveddamagedthattank." For these reasons, Liberty has shown the fuel tank leak in the number one fuel tank was repaired appropriately and in accordance with accepted methods, techniques, and practices and the applicable Advisory Circular. 3 

### Even if it is concluded aviolation occurredrelated totherepairofthefuel tankleak, Libertythe

3 Thetype certificate data sheetreferences "structuralrepairs" in Note 3. FAA agreed, and itwas a stipulatedfactinthehearing,thatthefuel tanksintheB-17 arenotstructuralcomponents.

### 8 organization is not responsible because it fulfilled all ofits obligations under the F

ARs and the Advisory Circular by utilizing experienced, professional A & 

### P mechanics. The ReplacementoftheBladderFuel TankswithAluminum Fuel Tanks During the 2011 Winter maintenance, the bladder fuel tanks were replaced with aluminumfuel tanks. NeithertheNTSB's probable cause determinationnorits factual report found that the fuel tank replacement was a major alteration (or a majorrepair) notwithstandingitreferencedbothdefinitions ofmajoralterationthat appear in the FARs. Unless the project was a major alteration, no Form 337 was required.4 

### Nevertheless, in the interestofcompleteness, wewill showwhythe fuel tankreplacementprojectwasnotamajor alteration. Theterm "majoralteration"is definedintwo placesintheF ARs

- AppendixA 

### to Part 43 and 14 CFR Section 1.1. The fuel tank replacement project was not a majoralterationunderbothdefinitions. The Fuel Tank Project Was Not A Major Alteration As Defined in AppendixA To Part43 

### "MajorAlteration" is defined in the FARs in Appendix A 

### to Part43. Part43 is entitled "Maintenance, Preventive Maintenance, Rebuilding, And Alteration." Appendix A 

### is entitled "Major Alterations, Major Repairs, And Preventive Maintenance." The only definition of an airframe (as opposed to engine) major alterationthatappearsin Part43 is inAppendixA, andis asfollows:

4 The fuel tank replacement could not have been a major repair since, as noted above, (1) FAA stipulated in the DOT hearing that the fuel tanks are not structural members and (2) there was no evidence of any substantial change in weight, balance, performance, etc., as required by the FARs resultingfromthechangefrom bladdertoaluminumfuel tanks.

### 9 (a) 

### Major alterations- (1) 

### Airframe majoralterations. Alterations ofthe following parts and alterations of the following types, when not listed in the aircraft specificationsissuedbytheFAA, areairframemajoralterations:, (i) Wings (ii) Tail surfaces (iii) Fuselage (iv) Engine mounts (v) Control system (vi) Landinggear (vii) Hull orfloats (viii) Elements ofanairframeincludingspars,ribs, fittings, shock absorbers,bracing, cowling,fairings, andbalanceweights (ix) Hydraulicandelectrical actuatingsystemorcomponents (x) Rotorblades (xi) Changestotheemptyweightoremptybalancewhichresultin anincreaseinthemaximumcertificatedweightorcenterof gravitylimitsoftheaircraft (xii) Changestothebasicdesignofthefuel, oil, cooling,heating, cabin pressurization,electrical,hydraulic, de-icing, orexhaustsystems (xiii) Changestothewingortofixed ormovablecontrolsurfaces whichaffectflutterandvibrationcharacteristics. Emphasis added. There are different standards or criteria as to what constitutes a major alteration depending on the part ofthe airframe involved. Any alteration to the parts listed in items (i)

- (x) is a major alteration. There are no modifying criteria for those parts. Any alteration to the wings, tail surfaces, fuselage, engine mounts, control system, landing gear, hull/floats, certain elements of an airframe, hydraulic and electrical actuating system/components, and rotor blades, is defined

as a majoralteration. The major alterations defined (xi)-(xiii), 

### however, are different, and each requires more than just any alteration, in and of itself, to constitute a "major alteration". For example, item (xi) requires that for an alteration to the empty weight or emptybalance to be a major alteration itmust not only be an alteration,

### 10 but the alteration must also "result in an increase in the maximum certificated weight or center of gravity limits of the aircraft." If an alteration to the empty weightoremptybalance does notresultin anincrease inthe maximum certificated weightorcenterofgravitylimits,the alteration is not, byFAA regulatorydefinition,

amajoralteration. Similarly, item (xiii) requires that for an alteration to the wing or fixed or movable control surfaces to be a major alteration, itmustnotonlybe an alteration, but the alteration must also "affect flutter and vibration characteristics." If 

### an alterationto a wing ora fixed ormovable control surface does notaffectflutter and vibrationcharacteristics,itis not, byFAAregulatorydefinition, amajoralteration. Item (xii) is written in the same manner as items (xi) and (xiii), and very differently from items (i)

- (x). Item (xii) requires that for an alteration to the fuel systemto bea majoralteration,theremustbe analterationandthatalteration must also constitute "changes to the basic design" ofthe fuel system. Ifan alteration to the fuel system does notchange its "basic design," bydefinition it cannotconstitute

a majoralterationofthatsystem. Mr. Schneider described the work performed on the fuel system during the 2010-2011, winter maintenance period. Tr. 4-24-14, p. 159-60 

### (Exhibit 14). The aluminum tanks were removed from the aircraft and the bladders were removed from the aluminum tanks. Upon removing the bladders, the team determined the metal shells were in excellent condition. Later, a determination was made, after consultation with a DER (FAA Designated Engineering Representative), that the aluminum shells could be used as fuel tanks. After the aluminum tanks were

### 11 removed,theyweremediablastedtoremovepaintand corrosion

- none was found. The aluminum tanks were taken to Cobb Industrial Fabricators where the welding

was accomplished. After welding, the tanks were plumbed, leak checked, and then reinstalledintheaircraft. The process ofchanging the vessels that held the fuel was accomplished by notchangingthebasic design ofthe fuel system atall. Mr. Schneiderdescribed this process. Someflexible fuel lineswerereplacedwithidentical newfuel linesthathad the samefuel capacityas the old lines; the samefuel pumpswerere-installed; all of the original plumbingwas re-installed; all ofthe fittings, electrical connections, and plumbingconnectionswerere-installed. Wheretherehadbeenattachpoints onthe rubberbladders,thesewerereplacedwith duplicatednewattachpoints so the same fitting would screw into the aluminum tanks where the old attach points were located so there was no change at all in the plumbing. All of these fittings and attachments were in the same exact places as they were when there were bladder liners within the tanks. The same fuel sensors were re-installed and had the same functionalityTr. 4-24-14, p. 166-168 

### (Exhibit 15). Theventfuel flow connections in thenewsystemwerethe sameequipmenttakenfrom the old system andwerein the sameplaces. Aftertheprojectwas completed,thesystemwas checked for leaks, capacity, and functionality. In terms of the capacity of the aluminum tanks as comparedtothebladderliners, Mr. Schneider statedtheyfound a difference ofonly

### 12 2- 3gallons inthebigtank (a 425 gallontank). The B-17 fuel systemintheLiberty Belleheld 1700gallons, or 10,200pounds. Tr. 4-24-14,pp. 169-70 

### (Exhibit16).5 

### Cullen Underwood, one of Liberty's pilots, further described the fuel tank project. They contacted two DERs (Rocky Howard and TerryBowden), with whom Mr. Underwoodpersonallyhadconversations aboutthe project. A$500.00 retainer check was sent to DER Bowden. Tr. 4-24-14, pp. 241-42 

### (Exhibit 18). Mr. Underwood sentdrawings ofthe shells and their support systems to DER Howard. Ultimately, DER Howard saidthatsince B-17s hadprevious aluminumfuel tanks,he did nothave anissuewithusingthealuminum shells as longas theymaintainedthe attachpoints. Tr. 4-24-14,pp. 242-43,246 

### (Exhibit 19).6 

### David Wilkins is the owner ofCobb Industrial Fabricators, the companythat performed the welding operations on the aluminum tanks. After the tanks were received, they were cleaned and patches were made. Cobb received fittings from Mr. Underwood andwelded all thefittings and pathplates in place. Mr. Wilkins did not personally perform the welding; three welders who each had between twenty andfortyyears ofweldingexperienceperformedthewelding. Mr. Wilkins inspected theweldingand found itwas satisfactorilyperformed. Mr. Wilkins' participationin theprojectwasdirectandpersonal,includingsupervisingtheweldingofthevarious openings on the aluminum fuel tanks. Each vent and fuel flow connection was welded to the tank using AN bung fittings; the fuel caps, boost pumps, and level

5 Thetwomaintankshold425gallons each; twofeedertankshold 213 gallons eachandtwoother feedertankshold 212 gallons each. CX 20,p. 193; Tr. 4-24-14,pp. 231-32 (Exhibit 17). Agallonof aviationfuel weights sixpounds. 6 FAA Inspector Duellmantestifiedlatermodel B-17sweremanufacturedwithaluminumfuel tanks. Tr. 4-23-14,pp. 205-06 (Exhibit20).

### 13

sensor mounts were welded to the tanks in the appropriate and same locations as before. All fittings were madefrom 6061 aluminum and all weldingwas done using the TIG method and the filler rod was 4043, which is whatis recommended by all manufacturers for welding these alloys? No leaks were found and Mr. Wilkins considered the welding normal. Tr. 4-24-14, p. 193 and Wilkins Declaration 

### (Exhibit22). The testimony of Messers. Schneider, Underwood, and Wilkins established therewasno changeinthe "basic design" ofthefuel system. The onlychangewas of thematerialthatholdsthefuel. All ofthehoses,fittings, plumbing, pieces, and parts ofthefuel systemwhenithadbladdertanks, werethe sameandinexactlythe same places, when the fuel-holding vessels were changed to aluminum. FAA's witnesses agreed. Mr. Bourgoine said the purpose ofthe fuel system is to receive and store fuel in a safe mannerand deliver cleanfuel to whereitis needed

- the engines. The systemhasfuel selectorvalves, transferpumps,etc., to accomplishthispurpose. Mr. Bourgoine agreed the new system performed these functions. 8 

### The design ofa fuel system is, axiomatically, to supportits purpose, which is to store and deliver clean fuel to the engines. It does this through a series offuel tanks, fuel lines, fuel pumps, carburetors, filters, vent lines, etc. No FAA witness could or did testify this basic designwas changedorthattheprojectchangedthepurposeofthisfuel system. Liberty also produced a true B-17 expert

- Gary Norville, who testified the changes to the fuel system did not constitute a major alteration. Mr. Norville owns

7 Mr. Bourgoine agreedTIG weldingwasappropriate. Tr. 4-22-14,p. 162 (Exhibit21).

8 Mr. Bourgoine's statementthatthe systemwasnotthe samebecauseiteventuallyleaked, says nothingaboutitsbasicdesign.

### 14 and operates American Aero Services, a warbird restoration and maintenance facility, in New Smyrna Beach, Florida. By "warbird," Mr. Norvile means former militaryaircraft, primarilyWorld War II and KoreanWar vintage aircraft. Tr. 4-24- 14,p. 

### 58 (Exhibit23). Mr. Norville has been in the business ofrestoring and maintainingthese warbird aircraft for approximately 26 years, since 1986-87. Tr. 4-24-14, p. 59 (Exhibit 24). He has anA& 

### Pcertificate and an InspectionAuthorization (IA). Mr. Norville performs ground-up restorations of warbird aircraft in his business

- meaning total disassembly ofthe aircraft, restoring all ofthe systems and bringing the aircraft back to airworthy flying status. Tr. 4-24-14, p. 60 (Exhibit 25). Mr. Norville regularlyperforms maintenance andpreventivemaintenance ontwo B-17s

- oneownedbyTheCollings Foundationand oneownedbyThe FighterFactory. Tr. 4-24-14, pp. 62-3 (Exhibit 26). Mr. Norville has also maintained The Collings Foundation's B-24 aircraft (one oftwo in the world presently flying). DOT Judge Sullivan qualified Mr. Norville as an expert in "aviation maintenance and in B-17 maintenanceandrestoration." Tr. 4-24-14,p. 68 (Exhibit27). Mr. Norville testified the purpose of the fuel system in the B-17 is to provide fuel to the engines so the engines will run. Tr. 4-24-14, p. 81 (Exhibit 28). This is accomplished through fuel tanks, fuel boost pumps, and fuel lines, which send fuel to the carburetors. Based on his 28 years ofexperience maintaining and restoringwarbirdaircraft, Mr. Norville understandstheterm "majoralteration" as it applies to warbird aircraft. As it specifically applies to B-17 aircraft, "major alteration" means changing ofcontrol surfaces, and the gross weight ofthe aircraft.

### 15

As it applies to the B-17's fuel system, "major alteration" "would be changing the flow of the fuel pump to a lessor or higher value, re-routing the fuel lines, and adding extrafuel tanks." As itrelatestothegross weightoftheaircraft, Mr. Norville testified merely changing the gross weight ofthe aircraft in the fuel system would notchangethebasicdesign ofthefuel system. Tr. 4-24-14,p. 86 (Exhibit29). 

### Mr. Norville further explained the B-17 has a large andverylong CG envelope. Tr. 4-24-14, p. 98 

### (Exhibit 

### 30). As B-17s are operated today, they are well within their CG envelope and well under their maximum allowable gross weight. In wartime, B-17s would go on missions carrying full fuel, 12 fifty caliber machine guns, and 10,000 pounds ofbombs. Theywould comeback, obviouslymuch lighter sincetheyweremuchloweron fuel, haveno bombs and muchless ammunition, and still be within their allowable CG envelope and weight envelope. Given Mr. Norville's maintenance credentials and his extensive experience (22+ years) maintaining and restoring warbird aircraft, including regularly maintaining two B17s, his opinion that the work performed on the Liberty Belle was not a major alterationshouldbegivengreatweight. Liberty believes the record amply establishes the fuel tank project was not a "major alteration" as defined in Appendix Ato Part 43 for the reasons set out in detail above.9

9 Further,Item (a)(xii) requires**"change~**tothebasicdesignofthefuel systemto constitutea major alteration. Even ifthe change to aluminum is consideredto be a major alteration, changing onlythe material ofthevesselsthatholdthe fuel is justone change. Therewere no other changes tothe fuel systemdesign.

### 16 The Fuel TankProjectWas Not AMajor Alteration As Defined In FAR Section 1.1 

### FARSection 1.1,

### entitled "General Definitions" providesinpertinentpart: As used in Subchapters A through K of this chapter, unless the context requires otherwise (emphasis added): Major alteration 

### means an alteration not listed in the aircraft, aircraft engine, or propellerspecifications

- - (1) That might appreciably affect weight, balance, structural strength, performance, power plant operation, flight characteristics, or other qualities affecting airworthiness; or (2) Thatis notdoneaccordingto acceptedpractices orcannotbedonebyelementary operations. Emphasis added. The very general and undefined terms used in this definition of"major alteration," such as "might appreciably affect," "accepted practices," and "elementary operations" contrast sharply with the precise definition of "major alteration" in Appendix Ato Part 43 discussed above. Therefore, reading Section 1.1 in context withAppendixAto Part43 stronglysuggests giving preferencetothemore detailed and specific definition in Appendix A 

### In further support ofthis interpretation, the secondparagraphofFAR43.9(a)(4) states: "In additiontotheentryrequiredbythis paragraph [relatingto alterations, etc.], majorrepairs andmajoralterations shall be entered on a form, and the form disposed of, in the mannerprescribed in Appendix 

## B. [to Part43], bythe person performingthe work." Emphasis added. There is no similarreferencetoadherencetoSection 1.1.10

10 To the same effect, Inspector Soerens testified he prepared FAA's Enforcement Investigative Report (EIR) inwhich,whenreferencingmajoralterations,hereferencedonlyAppendixAtoPart43, butmadenoreferencewhatsoevertoSection 1.1. Tr. 4-23-14,pp. 99-100 (Exhibit 31).

### 17 FAA's claimthattheworkperformedonthefuel tankswas a "majoralteration"

as defined in Section 1.1 relies on Timothy Bourgoine's testimony. The applicable portions ofthatAffidavit (as well as Mr. Bourgoine's testimony), paragraphs 20-22,

are a series of conjectures, guesses, and hypotheticals which are not sufficient to supportaplausibleexpertopinion. In paragraph 20, Mr. Bourgoine opines as a reasonthe alterationwas a major ' 

### alteration, that one of the welds resulted in a crack several months later. This reasoning would mean any alteration or repair that subsequently fails, is a major alteration. This cannotbethe meaningintendedbythe FARs, especiallywhenread in context with Appendix A 

### It clearly contradicts the more precise definition of major alteration in Appendix A to Part 43, discussed above. The two definitions cannotlogicallybereadharmoniouslytogether. In paragraph21 ofhisAffidavit, Mr. Bourgoinefurtherconjecturestheremoval ofthebladder tanks "could" have had an appreciable effect onthe airworthiness of the aircraft and its fuel system. There is no fact-based support in Mr. Bourgoine's Affidavit, orin his testimony, which comes even close to establishingthis assertion anditis directlycontradictedbyMr. Norville's testimony. Mr. Bourgoine goes onto conjecture that "the alteration increased the fuel capacity ofthe aircraft." Again, there is zero factual supportin therecord for this claim (otherthanthe 2-3 gallons mentionedbyMr. Schneider) and itis contrarytothe Declarations andtestimonyof Mr. Schneider and Mr. Underwood who have personal, first-hand knowledge ofthe workperformed.

### 18 Adding conjecture upon conjecture, Mr. Bourgoine stated the increased fuel capacity "affec[ted] weight and balance and possible stresses placed on the wing structure." Emphasis added. Not only does Mr. Bourgoine not supporthis claim of

an increase in fuel capacity, he does not

### say, becausehe cannot

### say, howmuch fuel capacity was increased, nor does he provide engineering or technical supportthat the alleged increase in fuel capacity had any effect whatsoever of stresses on the wing structure. These guesses were directly contradicted by Mr. Norville's testimony discussed above as well as by Inspectors Soerens and Duellman, who conceded this aircraft (and all aircraft) have center ofgravity (CG) and weight and balanceenvelopes and solongas theaircraftis operatedwithinthoseenvelopes,the aircraft is safe and airworthy. Inspector Soerens did not know the difference in weight, if any, resulting from the project and did not know if any such difference caused the aircraftto ever operate outside its CG orweight and balance envelopes. Tr. 4-23-14,pp.129-31 (Exhibit 

### 32). Nor did heevenknowtheCG numbersfor the Liberty Belle. Inspector Duellman agreed aircraft can be operated at various weights and still be within their CG and weight limits. Tr. 4-23-14, pp. 205-06 (Exhibit

### 20,above). Mr. Bourgoine then says these added stresses (which he does not support with facts) made the aluminum tanks "more susceptible to vibrational stresses in waysthatabladderfuel tankwas

### not." This conclusionwasreachedwith absolutely

no supportingbasesinfact and Mr. Bourgoineneveroffered anyevidenceregarding "vibrational stresses" onbladdervis-a-vis aluminum fuel tanks. IfMr. Bourgoine or the FAA had access to datato supportthese claims, theywouldhave presentedthat

### 19 data atthehearing. In the samevein, Mr. Bourgoine asserts "an aluminum fuel tank would notrespondthe samewaytothe stresses ofthein-flightmotionofthousands ofpoundsofaviationfuel as a semi-rigidbladdertankwould." Mr. Bourgoine makes this unsupported claim applicable to all aluminum tanks as he does notrefer to as thealuminumtanksin N390TH, butto "an" aluminumtank. 11 

### Mr. Bourgoine concedes in his Affidavit the newly fabricated fixtures and attachments "mayormay nothave been ofequal qualitywiththe components they

were replacing." This guess is directly contraryto the direct-knowledge testimony of Mr. Schneider and Mr. Underwood that the fixtures, fittings, and other components were either the same parts taken out or, in the case ofattach points, exact duplicates. Assuming they were of equal quality, Mr. Bourgoine goes on to speculate,becausetheywereattachedto analuminumtankas opposedto a bladder tank "could impact how they responded to stress during flight." Emphasis added. As with all ofMr. Bourgoine's assertions in paragraph 21 and in his testimony, FAA failed to provide anybasis in fact to supportits claims, such as engineering data or testresults. Appropriately, Mr. Bourgoine concludes paragraph 21 emphasizing the nonfoundational bases ofhis claims: "All ofthese potential issues were ways in which the alteration might have affected the qualities affecting the airworthiness ofthe aircraft

...". Emphasisadded.

11 In this regard, FAA continued in its unsupported statement that the bladder tanks had baffles within them, thus supposedly making them less susceptible to "stresses" of some sort than the aluminum tanks which FAA claims did nothave baffles. Thatthe bladders did not have baffles was confirmed byMr. Schneiderwho actually sawthatthey had no baffles. Tr. 4-24-14, p.169 (Exhibit 16,above).

### 20

In paragraph 22 ofhis Affidavit and in his testimony, Mr. Bourgoine reaches the unsupported conclusion that "the fabrication of new fuel tanks out of the aluminum shells was a major alteration because fabricating components and welding of this nature are not an "elementary operation." Neither FAA, nor Mr. Bourgoine, provide a definition of "elementary operations" other than Mr. Bourgoine's testimony that the welding would notbe an elementary operation for mostA& 

### Ps. Tr. 4-22-14, p. 122 (Exhibit 

### 33). He does notsayhowthework done

on the aluminum tanks was not an elementary operation. Moreover, his unsupported conclusion was contradicted by Mr. Wilkins who testified thewelding

was non-complex and simple and thatthe materials used were appropriate for the project. Tr. 4-24-14, p. 196 (Exhibit 34). 

### Mr. Bourgoine conceded on cross examination that it was good the welding was accomplished by professionals ("I thinkitwas [a] simple, non-complexjob for a professional welding agency"). Tr. 4- 22-14, p. 

### 157 (Exhibit35). 

### FAA is required to produce evidence, not guesses, that satisfies the evidentiary requirements ofthe regulations. FAA's attempt to rely on FAA Order 8900.1 is misplaced. FAA agreed that Order is a guide, is notregulatory (Tr. 4-23- 14, pp. 112-13, Exhibit 36), 

### and is not binding on owners/operators. The clear language ofAppendixAto Part43 discussed in detail abovetrumpstheinconsistent "guidance" of

# ex 23.12

12 The OrderclearlycontradictsAppendixAtoPart43whichrequires "changes"tothebasicdesign. It also contradicts the modifying language in Section 1.1. To elevate the Order overthe Regulations requiresre-writingAppendixAandSection 1.1 andeliminatingtheinconsistentlanguage of8900.1.

### 21

For all of the above reasons, Liberty respectfully suggests the fuel tank replacement project was not a major alteration. Accordingly, no Form 337 was required. It is important to note, when viewing Liberty's own maintenance submissions,thehistorical datafor N390TH depicts no fewerthantwelve (12) Form 337s had been either approved or accepted, including one approved alteration utilizing DER approved data. In this regard, attached hereto as Exhibit 

### 37 is a listing ofthose Form 337s. The document also shows five (5) Form 337s obtained by Liberty since itbegan operating N3703G. This proves Liberty always strives to operatewithintheFederalAviationRegulations andassociatedguidance.

Respectfullysubmitted, The LibertyFoundation

# By:bJa~ StuartA. 

### Goldstein StuartA. 

### Goldstein, P. A. 

### Counselfor TheLibertyFoundation 7300 North Kendall Drive, Suite 380 Miami, FL 33156 Tel: (305) 670-1222 Fax: (305) 400-0685 stuartgoldsteinpa@att.netDECLARATION OF RAYMOND FOWLER 1. My name is Raymond Fowler. I reside at 3501 Jones Mill Road, Carrolton, GA. I make this Declaration upon my personal knowledge. 2. I hold an Airline Transport Pilot Certificate and am employed as a pilot by Delta Air Lines where I have worked for 14 years. I am also a rated Captain on the B-17. 3. During the weekend of June 11-12, 2011, I was in Aurora, Illinois flying the Foundation's P40 aircraft. 4. On June 13, 2011, following the off-airport landing on N390TH, I personally notified Inspector Greer Parramore of the Atlanta FSDO of the accident, to include known details of the fuel leak, fire and engine shut down. In addition, I contacted Inspector Ray Stitchcomb to inform him of the accident. 5. I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 10 day of June, 2015.

Raymond Fowler



# 1In the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 130 1 Q. About noon, did you say? 2 A. I believe so, yeah. 3 

### Q. What did you do after you got there? 4 A. Well, they already had the airplane, the 5 access panel opened up underneath the tank. And, we 6 looked at it, put a little bit of fuel in it just to 7 see what was going on, maybe two or three gallons. 8 And, saw where it was coming out and

... 9 Q. Had the tank been emptied of fuel by the 10 time you got there? 11 A. Yes. 12 Q. So, what did you discover? 13 A. We found a crack in the weld seam on the 14 inboard end of the number one main tank, down near the 15 bottom. It was about, as I recall, somewhere between 16 three and five inches long. 17 Q. Were there any other A&P mechanics that you 18 were working with, with regard to this fuel leak? 19 A. Yeah, there were two others. John Hess and 20 Chuck Giese. 21 

### Q. Were the three of you and anyone else 22 working on a plan to repair the leak? 23 A. Yeah, once we saw where it was, we were 24 starting to discuss, you know, what would be the best 25 way to fix this.

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800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CounIn the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 131 1 Q. Was Mr. Underwood involved in that process? 2 A. Yes, he was. 3 Q. What plan did the four of you devise to fix 4 the leak? 5 A. We finally decided to do the weld that was 6 cracked on the edge of a flange where two pieced 7 joined together and previously it had some bolt holes 8 that had been plug welded up. We decided to drill out 9 some of those bolt holes so we could install some 10 fasteners through the flange to help pinch it together 11 and keep the crack, hopefully, from spreading. We 12 also packed the crack externally with the sealer that 13 I had brought. Put the bolts in, we would pack the 14 crack first, put the bolts in to squeeze it together, 15 got some squeeze out. And, then took an aluminum U16 channel extrusion that was a tight fitting extrusion, 17 to the edge of the seam, packed it with sealer and put 18 it on, just as a kind of a backup, to try to make sure 19 we didn't have any problems. 20 Q. That extrusion you referred to has 21 previously been referred to as a C-channel. Is that 22 the same thing you're talking about? 23 A. Yeah. 24 Q. So, as I understand it, there were several 25 layers of protection that you had put on to the, to

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# ~2~allT~~g~i~~!~o~?' Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL " 540.667.6562 FAX • CountyCourtReporters.comIn the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 132 1 repair the leak. Is that correct? 2 MR. STEVENSON: Objection, leading. 3 THE COURT: Sustained. 4 Q. Were 

### there several layers of protection that 5 you put on to repair the leak? 6 A. Yeah, I believe at least two. 7 Q. Was it improper to place the sealant on the 8 outside of the tank? 9 MR. STEVENSON: Objection. This 10 witness has not been qualified as an expert. 11 THE COURT: Sustained. 12 MR. GOLDSTEIN: I proffer Mr. Schneider 13 as an expert in areas of general aviation and airline 14 maintenance. 15 MR. STEVENSON: Given the breadth of 16 that proffer, I would like to voir dire the witness 17 18 THE COURT: You may. 19 MR. STEVENSON: as to his 20 expertise. Thank you, Your Honor. 21 VOIR DIRE EXAMINATION 2 2 BY MR. STEVENSON: 23 Q. Mr. Schneider, opposing counsel has asked 24 you right now about something about a repair but he's 25 making a broader proffer as to your expertise. So, do

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# ~2~a~T~~g~l2~c!~o~?' Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 129 1 sealer that we had gotten the night before down at 2 Delta. I'd asked to get some sealer from them, they 3 had no problem with that. 4 Q. What, why did you get the kind of sealer 5 that you got? 6 MR. STEVENSON: Objection, Your Honor. 7 Before this witness testifies about, I will, I 8 withdraw the objection. 9 THE COURT: So noted. You may answer 10 the question. 11 A. Could you repeat it? 12 Q. I keep ending questions in preposition 13 instead of, but why did you get the kind of sealer 14 that you took with you? 15 A. The sealer that we got was the same kind we 16 use at Delta to seal fuel leaks. 17 Q. You arrived at Aurora at about what time on 18 Sunday? 19 A. It was Saturday, let's see, was it Saturday? 20 I can't remember what day we got there. 21 Q. Whatever day it was ... 22 A. Yeah, we got there in the early afternoon. 23 Q. The day that you got there was the day 24 before the last flight of the aircraft? 25 A. Okay, that would have been Sunday, yeah.

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# 3In the Matter of: Liberty Foundation April22, 2014 CCR# 016895-4 Page 157 1 would need some type of engineering to show that 2 they're appropriate in size, shape and, you know, in 3 the way they would be welded on. So I disagree that it 4 can easily be said that they were of equal, of equal 5 quality. And then number eight says the welding that 6 was done on the aluminum tanks was not complicated at 7 all. It was a simple, non-complex job. I disagree 8 with that. I think it was simple, non-complex job for 9 a professional welding agency, but it wasn't an 10 elementary type of operation that normally we can do 11 or maybe Rod had done. Under number nine it says that 12 there was no evidence that the repair failed. I just 13 have no knowledge about that. I don't know what 14 occurred there so I can't support that or contest it. 15 Q. You don't disagree with it, you just don't 16 know. 17 A. Right. FAA's claim that the repair was 18 improper because the sealant was packed from the 19 outside is wrong. Packing the sealant from the outside 20 was an improvement. Well, I guess that, I can't argue 21 with that either. And number ten is kind of a general 22 statement about methods and practices. It, I don't 23 agree with it because I don't agree with turning that 24 shell into a tank without having proper engineering 25 and specifications to work from. But the actual

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# 4In the Matter of: Liberty Foundation April23, 2014 CCR# 016895-5 Page 211 1 

### Q. Do you know if after the February 2 maintenance it was ever operated in excess of its 3 weight limitation? 4 

### A. No, I don't know that either. 5 

### Q. Thank you. Do you know if there's anything 6 in writing that requires the seal that Mr. Schneider 7 applied to the tank in June be applied on the inside 8 of the tank as opposed to the outside? 9 

### A. No, there's nothing in writing except the 10 instructions of the manufacturer that manufactures the 11 sealant. 12 

### Q. And what, but they don't say it must, they 13 say it should be, right? 14 

### A. Yeah. 15 

### Q. So not mandatory. 16 

### A. No. But it does a much better job if it's 17 inside. 18 

### Q. But it's not mandatory. Now, isn't that 19 correct? 20 

### A. Yeah. Yes. Sorry. 21 

### Q. Thank you. Thank you. You testified a 22 little bit about methods, techniques and practices. 23 Do you recall that, sir? 24 A. Yes, sir. 25 

### Q. Are all methods, techniques and practices

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# 5In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 134 1 Q. Do you know for a fact whether or not it was 2 every operated over its maximum certificated takeoff 3 weight between June, I'm sorry, between February of 4 2011 and June of 2011? 5 A. I do not. 6 

### Q. Is every method, technique and practice, let 7 me strike that. Is every maintenance, method, 8 technique and practice specified in the Federal 9 Aviation Regulations? 10 A. As a physical practice? 11 

### Q. Do you know the term methods, techniques and 12 practices? You're familiar with that term? 13 A. Yes, sir. 14 Q. Okay. Is every, those terms are in 43.13, 15 correct? 16 A. Yes, sir. 17 Q. Okay. Is every method, technique and 18 practice that's acceptable to the Administrator set 19 forth in the Federal Aviation Regulations? 20 A. The regulation references the manufacturer's 21 document 22 Q. It's a yes or no question, sir. 23 A. Okay, then it would be no. 24 Q. Is every method, technique and practice, 25 maintenance, method, technique and practice that is County •

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# 66/7/11 AC 120-16ECHG 1

CHAPTER2. AIRWORTHINESS RESI>ONSIBILITY 200. RESPONSIBILITY FORAIRCRAFTMAINTENANCE. 

# I a. Part 119 CertificateHolderResponsibilities. Consistentwith §§ 121.363 and 135.413, you, as a part 119 certificate holder. are primarily responsible for (1) the airworthiness ofyour aircraft. and (2) the performance ofall ofthe maintenance or alterations on youraircraft. Your air carriercertificate makes you a maintenance entity. Underyouraircarriercertificate, you accomplishyourown maintenance, preventive maintenance, or alterations, or you can use otherpersons who are not directemployees to accomplish that work. Consistentwithour regulations in§§ 121.l(b)and l35.l(a)(2), the part 121 or 135 regulations govern each person thatyou usc orthat you employ for any maintenance, preventive maintenance, oralteration of youraircraft. Each ofthesepersonsthatyou use must be underyour direction and control and mustfollow yourmaintenance program. 

# I b. Maintenance Responsibilities. Forany workdone onyour aircraft, youretain direct and primary responsibility for performingand approving all maintenance and alterations, whetheryouaccomplish that work orwhethersomeoneelse does itforyou (for example, a maintenance provider such as a repair station). However. you always retain primary responsibility for the performanceand approval ofthe maintenance done by that maintenance provider.



# I 201. DIFFERENCES BETWEEN PROGRAMS.Thefollowing tableprovides a comparison ofthe differences between air carriermaintenance programs and part 91 general aviation inspection programs. Table2-1. Maintenance Program and Inspection Program Differences Element Part 

### 121 and 135 AirCarriers Part

### 91 Owners/Operators Use ofa Required to use a maintenance Required to use aninspectionprogram. maintenance or program for its aircraft. an inspection program. Responsibilities Responsible for the performance Responsible for maintaining the aircraft withinthe ofmaintenance inaccordance in an airworthy condition relevant with its maintenance program and (14 CFRpart 91, 

### §91 .403). program. manual, as well as the airworthiness ofits aircraft, includingairframes, aircraft engines, propellers, appliances, and partsthereof. NOTE: The wording inpart91 is deliberately differentfrom the wordingin 14 CFRparts 121 and 135 and is consistent withthe difference between air transportationand otherair commercedescribed in49U.S.C. 

### §44701. Responsible torthe development Responsible forthe selection ofan anduse ofthe maintenance existinginspectionprogram and the

Par200 

# 7AC 120-16E 9/11/08



### program and manual. determining schedulingofaircraft for the inspections, the method ofperforming and for ensuring that discrepanciesthat maintenance. a required occurbetween scheduled inspections are inspection list, a continuous repaired. analysis and surveillance system, a maintenance organization that can exercise operational control overmaintenance operations, and other items that collectively and systematically serve to ensure each aircraft has been properly maintained for operations in air transportation and is Airworthy. Must determinewhat Must make the airplane availableto maintenance is required, how to authorized and certificatedperson(s) do it, whento do it, perform that who accomplish inspections and other maintenance, and approve its own maintenance. aircraftfor return to service. May authorize anotherpersonto accomplish the maintenance work, but the maintenance must be carried outaccordingto the air carrier'smaintenanceprogram and manual. The aircarrier still retains the responsibility for the propercompletion of maintenance (part 121 

### § 121.363 orpart 135**~** 

### 135.413). Along with FAAoversight, is the The authorized and cet1ificatedperson(s) primary authority withregard to hasthe responsibility toperformthe its maintenanceprogram. Holds maintenance properly inaccordancewith the primary responsibility for the the manufacturer'smanual andto performance ofmaintenance in approvethe aircraftforreturnto service. accordancewith itsmaintenance The owner/operatordoesnothavethis program and manual, as well as responsibility. However,the the airworthiness ofits aircraft, owner/operatoris responsiblefor including airframes, aircraft ensuringmaintenancepersonnelmake engines, propellers, appliances, appropriate entries

### in the aircraft andpartsthereof. maintenance records indicatingthe aircraft hasreceived approvalforreturn to service.In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 157 1 Hess. 2 

### Q. Thank you. Did all of the, I think you 3 mentioned this, did all the A&P there agree that this 4 was an appropriate repair? 5 A. Yes. 6 

### Q. Did you make a log entry after completion of 7 this repair and the testing and so forth that you 8 testified to earlier? 9 A. Yes. 10 Q. Where did you make that log entry? 11 A. Actually, there were two. The first was on 12 the onboard discrepancy log we keep on the airplane. 13 When we're out on the field, we don't bring the log 14 books with us so we use the discrepancy form to write 15 up squawks and also to sign off corrective actions. 16 And, then when I returned home, about a day or so 17 later, I made an entry in the main aircraft flight log 18 or maintenance log. 19 

### Q. The discrepancy log form that you signed off 20 the discrepancy on, did you sign that and put you're 21 a&P number on it? 22 A. Yes. 23 

### Q. Did you describe the work that you did? 24 A. Yes. 25 MR. GOLDSTEIN: Sorry, Your Honor, I County •

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# 8In the Matter of: Liberty Foundation April24, 2014 CCR # 016895-6 Page 121 1 welcomed to ask another question. 2 CONTINUING DIRECT EXAMINATION 3 BY MR. GOLDSTEIN: 4 

### Q. Captain Hess, before you flew on the 13th, 5 well, first of all, did you fly the aircraft on the 6 13th? 7 A. Yes. 8 

### Q. Before you flew it on the 13th, did you 9 review any sort of a maintenance discrepancy log? 10 A. Yes. 11 

### Q. Can you describe what that discrepancy form 12 or log is? 13 A. In our log book, we keep a sheets or 14 available to deal with, make any entries as to a 15 discrepancy that needs to be corrected. And, before 16 any flight, particularly the first flight of the day, 17 you review that to make sure that anything that's been 18 done is signed off correctly and that's what I did. 19 

### Q. Had there been, as you recall, had there 20 been a discrepancy written on that form regarding a 21 leak? 22 A. Yes. 23 Q. Do you know who wrote that? 24 A. By Rod Schneider, yes. 25 

### Q. I'm sorry?

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# 9In the Matter of: Liberty Foundation April24, 2014 CCR# 016895-6 Page 121 1 welcomed to ask another question. 2 CONTINUING DIRECT EXAMINATION 3 BY MR. GOLDSTEIN: 4 Q. Captain Hess, before you flew on the 13th, 5 well, first of all, did you fly the aircraft on the 6 13th? 7 A. Yes. 8 Q. Before you flew it on the 13th, did you 9 review any sort of a maintenance discrepancy log? 10 A. Yes. 11 Q. Can you describe what that discrepancy form 12 or log is? 13 A. In our log book, we keep a sheets or 14 available to deal with, make any entries as to a 15 discrepancy that needs to be corrected. And, before 16 any flight, particularly the first flight of the day, 17 you review that to make sure that anything that's been 18 done is signed off correctly and that's what I did. 19 Q. Had there been, as you recall, had there 20 been a discrepancy written on that form regarding a 21 leak? 22 A. Yes. 23 Q. Do you know who wrote that? 24 A. By Rod Schneider, yes. 25 Q. I'm sorry?

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# 10 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCouIn the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 122 1 A. By Rod, yes. 2 

### Q. He wrote the discrepancy? 3 A. Mm-hmm (Indicating affirmatively.) 4 Q. And who wrote the fix to the discrepancy? 5 A. Rod also did the sign-off. 6 

### Q. Based on your experience, not only as an 7 airline captain but as an A&P mechanic, did, what do 8 you recall that fix said? That writeup of the fix 9 said? 10 MR. STEVENSON: Objection, Your Honor. 11 I think that the opening to that question of based on 12 your experience as an A&P mechanic and a pilot, tells 13 us that we are now asking for some sort of expert 14 opinion from this witness. 15 MR. GOLDSTEIN: Well, it's a fact 16 question. 17 THE COURT: Well, it's a fact question 18 combined with a request for an expert opinion attached 19 so I'll sustain the objection based on the form of the 20 question. You're welcomed to rephrase the question so 21 that it's soliciting fact only from this witness. 22 CONTINUING DIRECT EXAMINATION 2 3 BY MR. GOLDSTEIN: 24 Q. What do you recall the writeoff or the sign 25 off of the discrepancy said, Captain? County •

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# ~£~a~T~~~i~~c!~o~~,,nc. 800.262.8777 TOLL.-FREE " 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 22, 2014 CCR # 016895-4 Page 146 1 written up by a pilot who found a discrepancy with the 2 airplane and he would write it up. 3 A. Yes, sir. 4 

### Q. Was there a form that the Foundation 5 provided for writing up such discrepancies? 6 A. Yes. 7 

### Q. What was that form? 8 A. I don't recall what it was called, but it 9 was kept in the flight log and that's where 10 discrepancies would be noted. 11 

### Q. Where was the flight log kept? 12 A. Right behind the pilot's seat there's a, 13 there was a compartment there and it was usually kept 14 there. 15 

### Q. And so if there was a discrepancy written up 16 by a pilot and you as a mechanic saw it and you made a 17 repair to that discrepancy or, that may not be the 18 right word repair, but if you resolved that 19 discrepancy, what would you do with regard to that 20 form? 21 A. You would sign it off that it was corrected. 22 

### Q. And then that stayed in there. 23 A. Yes. 24 

### Q. Did it ever get transferred back to the 25 logbooks, the airframe and engine logbooks?

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# 11In the Matter of: Liberty Foundation April22, 2014 CCR # 016895-4 Page 150 1 much. 2 MR. 

### GOLDSTEIN: Thank you, Your Honor. 

### 3 CONTINUING CROSS EXAMINATION 4 

### BY MR. 

### GOLDSTEIN: 5 

### Q. Mr. Bourgoine, I'm showing you a copy of 6 Exhibit R-14 for identification. Is that a copy of 7 discrepancy forms that you were just referring to? 8 A. Yes. 9 MR. 

### GOLDSTEIN: I would move the 10 admission of R11 14. 12 MR. 

### STEVENSON: No objection. 13 

### THE COURT: Exhibit R-14 is hereby 14 admitted. 15 

### Q. You testified about the repair that was done 16 to the fuel tank in 

### June of 2011, Mr. Bourgoine? 17 A. The repair? 18 

### Q. Yes. Do you have any information that would 19 indicate that Mr. Schneider did not complete a 20 discrepancy form for that repair? 21 A. I have no information. 22 

### Q. You also testified about the logbooks and 23 that you reviewed the logbooks. I'm not sure when you 24 did that. Was it when you first became Director of 25 Maintenance? Or maybe you can tell us when you did

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## B-17 

## Discrep r l,a.,e of 

### ""---



## ---- Corrective Action

Date: Hobbs: Date: Corrected By: Cer-tificate #: Correctivc Action

D11tc: Hobbs: Discovert.>d Uy: !)ate: Corrected B)·: Ccrtilicate#: Correctivc

. \ction

Date: Hobbs: l)iscovered By: Date: Correctt'd**H~:** Certificate II: Corrective .\l'lion 

# 12DECLARATION OF JOHN HESS 1. My name is John Hess. I reside at 130 Fox Run, Fayetteville, GA. I make this Declaration upon my personal knowledge. 2. an Airline Transport Pilot Certificate and an FAA Airframe and Powerplant certificate. I am an airline captain employed by Delta Air Lines where I have \lllnr"'""'n for 22 years. I am also a rated Captain on the B-17. 3. During the weekend of June 11-12, 2011, I was in Aurora, Illinois as a crew member on 4. """"''"'"'''11 N390TH as pilot-in-command on June 13, 2011, and I remained with the aircraft after the off-airport landing and observed the fire destroy most of the aircraft. following day, June 14, 2011, I personally observed that the number one fuel tank was intact and that the repair was completely intact I personally observed there was no fuel leaking from the site ofthe repair. I personally observed the wrecker crew significantly destroy the left wing and seriously damage the number one fuel tank. I personally observed a person on-site inspecting then rubbing or scraping at the repair area. 1 no•·<>nnol observed the salvage crew attempt to breakthe puterwings

one fuel tank), by bending the spars with heavy equipment, that tank. When this was unsuccessful (the spars would not fuel tanks with chains and a steerskid loader (Bobcat) and cut off (containing the which I observed break), they extracted the spars. 5. I declare under the penalty of perjury under the laws ofthe United States of America that the foregoing is true and correct.**~!..._** Executed on this_.;:._.:___ day ofJune, 2015.



# 13'! I 'f'hH&J ••[ 1**t:UIIF~,.** 1!17

'i 0 'JJ!III!!!iJIF I

. T I ••• MIII!!Cil§:CSI J IS C& III.IC&PPJ.Wii?, .,41ic[i.b £ f[ ijf · rdmie!?@\l.In the Matter of: Liberty Foundation April 24, 2014 CCR# 016895-6 Page 159 1 was to have the tanks, take the liners out of the 2 tanks and just use the aluminum. Actually, we were 3 going to build new tanks, to begin with. Take these 4 tanks out and build brand new ones from scratch. 5 During that discussion, I know that in talking with 6 Cullen, we had gotten a gentleman, I believe by the 7 name of Rocky Howard involved. I never actually met 8 the man but he, I believe, is an engineering 9 representative. 10 Q. A DER? 11 A. DER, I believe. And we had taken the tanks 12 out of the airplane. We had removed the liners and 13 when we did, we discovered that the tanks themselves, 14 the metal shells, looked to be in excellent condition. 15 And, I couldn't tell you who it was but somebody 16 brought up the idea that, why make new ones when we 17 know these old ones fit the airplane. 18 Q. And the old ones being? 19 A. The metal shells that we had taken out. The 20 tanks that we'd taken out. And, I was not personally 21 involved in making that decision but it was decided 22 that yeah, this would be the way to go. It would be 23 much easier than trying to fabricate new tanks from 24 scratch, as far as the amount of work involved. And, 25 the determination was made that these tanks would be

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# 14In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 160 1 suitable. 2 

### Q. And by these tanks, you mean the aluminum 3 shells? 4 A. Yeah, the aluminum shells minus the bladder 5 liners. So, at that point, the decision was made to go 6 ahead and do the welding on them to make fuel type. 7 

### Q. Was that decision, that is the way to make 8 the change, was that basically you and Cullen and was 9 it anyone else or basically you and Cullen? 10 A. Most of my discussions were with Cullen. 11 I'm not sure who all he may have talked to during that 12 same time period. Since we had, we were face to face 13 most of the time during that, so most of my 14 discussions were directly with him. 15 

### Q. Did you personally consult with any DER's or 16 DAR's with respect to the fuel tank change project? 17 A. No, sir. 18 

### Q. Do you know a gentleman named Dave Alderman? 19 A. Yes, I do. 20 

### Q. And, do you know a gentleman named Dave 21 

### Miller? 22 A. Yes, I do. 23 

### Q. Who are they? 24 A. They are, well, in the case of Dave Miller, 25 he's retired now but they are FAA employees who also

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### Q. In this process, did you use different 2 component parts? By that I mean, did you use, well let 3 me break up. Did you use different fuel lines? 4 A. We replaced some flexible fuel line with the 5 same kind of line but brand new so it wouldn't be 6 deteriorated. 7 Q. Did they have the same or different capacity 8 as the fuel lines that you removed? 9 A. The same. 10 Q. What about the fuel pumps? 11 A. Same fuel pumps went back on the tanks. 12 Q. Were there other components to the fuel 13 system that were removed and then replaced? Or, I 14 should say, removed and then reinstalled? 15 A. All of the originally plumbing was 16 reinstalled, as far as the hard lines go. We did 17 replace all the flex lines with new identical flex 18 line. But, all of the fittings, electrical 19 connections, plumbing connections were the same. The 20 same identical ones that were in the airplane or 21 identical replacements. 22 

### Q. By fittings, what do you mean? 23 A. For instance, the vent line was an AN flare 24 fitting. The fuel transfer line on the number two main 25 feeder tank was a barbed fitting with the hose flipped County •

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# 15In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 167 1 over with a clamp on it. We had the same kinds of 2 fittings back on the tanks as we had before we took 3 the tanks out. 4 

### Q. Were some attach points created where they 5 were no longer usable from the rubber bladders? 6 A. Yes. Yeah, there were several of those. 7 

### Q. What 

### is an attach point? 8 A. An attach point, sometimes call it a bung 9 fitting, it's a, the original bladder had metal 10 fittings cast or bonded in with the rubber that 11 another fitting would screw into. And, so we 12 duplicated that with metal fittings on the tank, on 13 the tank shell that the same kind of fitting would 14 screw into so the plumbing wasn't changed from the 15 point of exit on the tank outwards. 16 

### Q. Were these various fitting and attachments 17 that you put on to the aluminum, now fuel tanks, in 18 the same exact place as they were when there were 19 bladder liners within the tanks? 20 A. Yes. 21 

### Q. Or, within the shells? 22 A. Yes. 23 

### Q. Were there sensors in the tanks that would 24 send information to the cockpit with regard to how 25 much fuel was in the various tanks?

County •

### ~

# ~2~a~T~~g~l~~c!~o~?'Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL 0 540.667.6562 FAX • CountyCourtReporters.comIn the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 168 1 A. Yes. Each tank had a level transmitter in 2 it. 3 

### Q. Were they, what was the status of those 4 devices before and after this project? 5 

### A. Before and after, they had the same 6 functionality. 7 

### Q. Did you use the same equipment or did you 8 9 A. We used the same. 

### 10 

### Q. Same. 11 

### A. Same ones. 

### 12 

### Q. After the project was completed, was the 13 fuel system checked? 14 A. Yes. We did a leak check on each tank. 15 

### Q. Were the engines started? 16 

### A. Engines were started and run, everything was 17 pressurized either through the boost pumps or through 18 engine pumps and we ran all four engines. We checked 19 everything. 

### 20 

### Q. Were the pressure, various pressures, 21 required pressures, the same after the project as 22 before? 23 A. Yes. 

### 24 

### Q. Were there vent a fuel flow connections 25 before, as well as after the project was completed? 

# County

.**~**

# ~2~~J~~g~~~~c!~o~?,lnc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 24, 2014 CCR# 016895-6 Page 169 1 A. Yes. 2 Q. Were they in the same or different places? 3 A. They were in the same places. 4 Q. Was it the same equipment, before and after? 5 A. Yes. 6 Q. After the project was completed, what was 7 different about the fuel system? 8 A. The tanks were metal shells and they did not 9 have their bladder in. 10 

### Q. Did the rubber bladders have baffles in 11 them? 12 A. No. 13 Q. How do you know that? 14 A. When we took them out, they readily 15 collapsed. And, no evidence from what we could see 16 through the filler necks of any bladders, of any 17 baffles. 18 Q. You personally observed that? 19 A. Yes. 20 Q. Do I understand your testimony then, Mr. 21 Schneider, that when you had a question as to the 22 writeup, you went to FAA inspectors for guidance? 23 A. Yes, sir. 24 Q. With respect to the capacity of the tanks, 25 the fuel tanks. Do you know if there's any difference

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# ~2~a~T~~g~i~~c!~~o~~~ Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourt 

# 16In the Matterof: Liberty Foundation April 24, 2014 CCR# 016895-6 Page 170 

### 1 between the capacity of the aluminum tanks as compared 2 to the bladder tanks? 3 A. The only difference we found was about a two 4 or three gallon change on the big tank. 5 

### Q. When you say on the big tank, you mean the 6 

### four hundred and twenty-five gallon 

### ... 7 A. The four hundred and twenty-five gallon 8 tank. 9 

### Q. There would have been two of those? 10 A. Two of those. Number one main and number 11 four main. 12 

### Q. Out of a seventeen hundred gallon system? 13 A. Yes, roughly. 14 

### Q. Based on your experience, consistent to what 15 the Court is allowing you to testify about, were the 16 methods, techniques and practices, materials and tools 17 that were used in the fuel tank project, methods, 18 techniques, practices, materials and tools that you 19 had used previously, in your experience? 20 A. Yes. 21 

### Q. And again, consistent with your experience 22 as Judge Sullivan has allowed you to testify about, 23 were the techniques, methods, practices, tools and 24 materials that were used to repair the fuel leak, 25 consistent with techniques, materials, practices,

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# ~2~af!T~~g~l~~c!~o~?' Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comRESTRICTED AN OI-20EG-2 Section IV Paragraph 6

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VALV( UNOU lOW ,.RfSSUIIIf..R(GULAUNG f£MPf.RAfU'It OH OUHfT Figure 198·-0if Temperature Regulator Valve flow. If concentrated hydrochloric arid is used, it off as soon as pracrical. Test the oil temperature lawr again as in paragraph l. 4. FINAL TREATMENT Afrer fwal test and our with hot water and then steam for 1/2 hour, allowing ondensare to leave from rh<• borwm of dH' regu· Thoroughly dry the od cooler by hearing rr in an for approximately one hour ar 121-l))°C (2'){). F) until all rnoisrure**ha~** evaporated and then re· II oil remperature regulator. If an oven is not avail· or if swrage of the oil coolt•r is desired, perform

oil treatment ro remove moisrure and grve cor·

protective oil coating rn accord;rnce wHh fo[- insrrucrions:

a. Immerse rhe oil cooler in a tank of dean, neutral lubricaring oil (SAE 20), Federal SpeciliNo. VV-0-496, at approximately I21 °C (250°F) ake rhe oil cooler until all bubbling ceases, indirhar the water has complerely evaporated and the ring is complete. b. Drain the oil cooler and then either reinthe airplane or place in srock. fc) ADJUSTMENTS.-See figure 198. (d) ASSEMBLY AND INSTALLATION.-Rethe removal procedure. h. FUEL SYSTEM. (I) GENERAL.-The fileI**sy~tem** is compost?d of four indepcndem fuel supplies, each feeding one engine. Each outboard engine is fed from a ·125 U. S. 054 Imperial) gallon tank and each inboard engine is fed from a 213 U. S. (177.4 Imperial) gallon tank having in addition a feeder rank of 212 lJ. S. (1766 Imperial) gallons, making 425 gallons for each engine. B-17G airplanes have a supplemental fuel supplycarried in collapsible self-sealing fuel cells installed in the wing between the ribs outboard of rhe exist· ing main tanks. The installation includes nine cells with permanent aromatic resistant liners in each wing, providing additional capacity of approximately 1,080 gallons or an increase of 270 gallons per engine. Thecells ineach wing aredivided into rwo groups,each of which acrs.as a feeder rank for one of the main ranks. The four inboardcells tie inro the feeder tanks through a 1-1/4-inch inside diameter self-sealing hose and an E-5 or D-5 valve. This valve is controlled from the rear bulkhead of the bomb bay compartment or the forward bulkhead of the radio comparrmenr by a self-contained hydraulic sysrem. When the valve is OFF, accidental loss of hydraulic fluid or pressure will cause the valve ro open, permitting delivery of fuel from the mHer wing tanks. The five outboard cells are provided with a similar connection to the engine No. 1 and No. 4 tanks. Venting is accomplished by interconnecting the out· RESTRICTED 

# 17In the Matterof: Liberty Foundation April24, 2014 CCR # 016895-6 Page 231 

### 1 suddenly start describing a fuel design system for the 2 B-17 as a whole, then I think that you may still have 3 some problems with what's in the record at this point. 4 MR. GOLDSTEIN: 

### I did ask him about the 5 function, I said how does it work. But, did ask him, 6 I didn't ask him about the design in the question. 7 THE COURT: 

### Okay. 8 CONTINUING DIRECT EXAMINATION 9 BY MR. GOLDSTEIN: 

### 10 Q. So, with the clarification made by Judge 

### 11 Sullivan, can you tell us what questions you were 

### 12 asked about the function of the fuel system and how 

### 13 you answered those questions, as best you can recall. 

### 14 A. 

### It's been a while with regards to what was 15 asked but basically what's asked is, of course, 16 quantity. There's seventeen hundred gallons, 17 depending on the aircraft. I mean, for the way with 18 the Liberty Belle, we had six tanks total. We did not 19 have the Tokyo tanks, which were outboard tanks that 20 would increase capacity. The, every engine has a 21 boost pump that is mounted to the bottom of the main 22 tanks. There's a main tank for number two and number 23 three and there's a tank that feeds those. And, 24 there's a main tank for engines one and four. The 25 boost pumps are operated from the cockpit. We turn

County •

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# ~2~a~T~~!!~~~c!~o~?' Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 24, 2014 CCR# 016895-6 Page 232 1 those on for takeoff and landing and for priming the 2 engine. The engine driven fuel pump is what maintains 3 the flow of fuel to the engine during flight. The 4 boost pumps are, like I said, for, they're for a 5 backup purpose as well. If the engine driven were to 6 fail, you could run the boost pumps and there's 7 basically four hundred and twenty-five gallons total 8 behind each engine. That's kind of the basics of the 9 fuel system. 10 Q. Did you have to know the location of the 11 fuel tanks? 12 A. Yes, sir. For fueling purposes and where 13 they are in relationship inside the wing. 14 

### Q. Did you have to know, did you answer 15 questions about the flow of fuel provided by the fuel 16 pumps? 17 A. Yes. With regards to my recollection, the 18 exact number is not readily off the top of my head. 19 But there were answers on, questions with regards 20 mainly to the transfer pump between the sides and how 21 many gallons per minute that, that would do. I 22 believe that's thirteen, if I'm correct. 23 Q. Do you recall any other areas that you were 24 asked about and would answered on your oral in regard 25 to the fuel system?

County •

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# ~2~a~T~~~~~~I~~o~?'Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 241 1 A. We had discussions, you know, amongst me, 2 Mr. Schneider, Mr. Fowler and it was in the 3 organization directly that those are, pretty much, the 4 three principals. Other than discussions amongst 5 pilots and other mechanics that are involved in the 6 organization. 7 

### Q. What ultimately was decided? 8 A. We decided we needed to replace the tanks. 9 The availability of new bladders or bladders that are 10 new old stock, which are unusable, knowing that, you 11 know, in years past B-17's had aluminum tanks in them 12 as well, you know, we all discussed and wanted to 13 proceed to see about using the shells that are in the 14 aircraft for the fuel tanks. 15 

### Q. So what did you all do in that regard. 16 A. In that regard, the first thing we did was, 17 we started the initiation contact with Mr. Rocky 18 Howard and Mr. Terry Bowden, who are both, I'm not 19 sure exactly their designation, DER, DAR, with regards 20 to what we would like to do and get general 21 discussions on opinions from them. 22 

### Q. Did you personally have conversations with 23 

### them? 24 A. Yes, I did. 25 

### Q. Can you describe those conversations,

County

## ~ COURT**~EPORTERS,1nc.** Videography Litigation**Technology~** 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCour: 

# 18In the Matter of: Liberty Foundation April 24, 2014 CCR# 016895-6 Page 242 1 please? 2 A. With Mr. Bowden, he basically initially 3 wanted a retainer to start, kind of, his process with 4 regards to evaluating what we were wanting to do for 5 his time. And with Mr. Rocky Howard, we had worked 6 with Rocky in the past on other projects and we sent 7 him the Boeing manufacturing drawings of the shells 8 and the support systems from the wing structure itself 9 to have him look and evaluate what we were talking 10 about doing. 11 Q. Do you know if a check was also sent to Mr. 12 Bowden? 13 A. Mr. Bowden was a check sent, yes, sir, but 14 not to Mr. Howard. 15 Q. Do you know how much the check was? 16 A. I believe Mr. Bowden was $500.00. 17 Q. So, you were, you all were 

### in conversations 18 with two DEA, DER's or the DAR's or a combination? 19 A. Yes. 20 Q. What resulted as the project went on, what 21 did you learn from them? Let's talk about Mr. Howard. 22 A. With what Mr. Howard said what he had, and 23 this also was culmination with conversations that I 24 had with David Miller within the FSDO, that back and 25 forth with Mr. Howard, with him looking at it and

County •

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# ~2~a~T**~~g~~~c!~o~?'** Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matterof: Liberty Foundation April 24, 2014 CCR# 016895-6 Page 242 1 please? 2 A. With Mr. Bowden, he basically initially 3 wanted a retainer to start, kind of, his process with 

### 4 regards to evaluating what we were wanting to do for 5 his time. And with Mr. Rocky Howard, we had worked 6 with Rocky in the past on other projects and we sent 7 him the Boeing manufacturing drawings of the shells 8 and the support systems from the wing structure itself 9 to have him look and evaluate what we were talking 10 about doing. 11 Q. Do you know if a check was also sent to Mr. 12 Bowden? 

### 13 A. Mr. Bowden was a check sent, yes, sir, but 14 not to Mr. Howard. 15 Q. Do you know how much the check was? 16 

### A. I believe Mr. Bowden was $500.00. 17 Q. So, you were, you all were in conversations 

### 18 with two DEA, DER's or the DAR's or a combination? 19 

### A. Yes. 20 Q. What resulted as the project went on, what 21 did you learn from them? Let's talk about Mr. Howard. 22 A. With what Mr. Howard said what he had, and 23 this also was culmination with conversations that I 24 had with David Miller within the FSDO, that back and 25 forth with Mr. Howard, with him looking at it and

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# S2~!!J**~~g~i~~c"fn~o~?'** Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • Coun·In the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 243 1 knowing, you know, the B-17's had previous aluminum 2 fuel tanks and him having the shells in front of him 3 with what was there, he did not see an issue with 4 using what we had, as long as we maintained the attach 5 points. 6 Q. When you say ... 7 MR. STEVENSON: Your Honor, I'm going 8 to move to strike that last answer. There's a certain 9 amount of this that I think is acceptable as scene 10 setting but this witness now, on multiple occasions, 11 testified at length at the supposed opinions of, I 12 think it was Mr. Howard. Those witnesses are not 13 here. If the respondent had wanted to call them to 14 testify about their opinions, they could have done so 15 and they have not and I do not believe that this level 16 of testimony is necessary to simply do the appropriate 17 stage setting. 18 THE COURT: Mr. Goldstein

... 19 MR. GOLDSTEIN: I don't understand the 20 objection. It's hearsay? Hearsay is obviously 21 allowable. 22 THE COURT: Your objection is noted and 23 respectfully overruled. Heresay is specifically 24 allowable and the FAA benefitted from that rule during 25 its prima facie case. The respondent has the same

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# ~2~a~T~~~~~~c!~o~?' Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 246 1 what you said but, as long as the fittings and 2 something were the same, he didn't see a problem with 3 using the aluminum shells. Can you elaborate on that? 4 A. With our discussions and, you know, the 5 items that I sent to Mr. Howard, he reviewed those, 6 over, it was probably a week, week and a half time 7 period before he got back to me. And, he basically 8 said that, you know, with what's here, is the B-17 9 fuel tanks minus the rubber bladders. He did not see 10 an issue being, that we're not going to war anymore. 11 We're not needing a self-sealing fuel tank and he 12 expressed his opinion that he wouldn't have to do 13 anything with regards to that if everything was 14 returned to its original mounting positions and 15 takeoff points. 16 Q. You had mentioned you'd sent him some 17 drawings, etcetera. What did you send him? 18 A. I sent him Boeing prints of the shells and 19 the Boeing drawings of the attachment structures and 20 the internal portions of the wing and in the manner 21 that the tanks are held. 22 Q. Where did you get these documents? 23 A. These documents came from the Liberty 24 Foundation. We have a complete set of manufacturing 25 prints for B-17's.

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# ~2~a~T**~~g~~~c!~o~?~**

# Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April23, 2014 CCR # 016895-5 Page 205 1 slightly different format. Let me just stand over 2 here if I may, Mr. 3 THE COURT: Would that be acceptable, 4 Mr. Stevenson, to share

... 5 MR. STEVENSON: Yes, Your Honor. 6 THE COURT: the one document? 7 Okay. Thank you. 8 MR. GOLDSTEIN: Ready? 9 CONTINUING CROSS EXAMINATION 10 BY MR. GOLDSTEIN: 11 

### Q. Beginning at line seventeen. Question. 12 Okay, what else did you look at it in performing your 13 review of the case at anytime? Answer. I, I gathered 14 as much information as I could on the B-17 fuel 15 system. Question. That's, that's what I'm asking. 16 What did you look at? Answer. I looked at how the 17 tank was, how, how the tanks were constructed. Now, I 18 know in my experience from my, from my experience that 19 there are three different sets of tanks that can be 20 used, can be used in the B- 17. The A, Band C models 21 had metal tanks of much less capacity than the D, Es 22 and Fs, okay? The D, Es and Fs, the Ds, Es, Fs and Gs 23 all had bladder tanks, all had the same capacity as 24 this aircraft. The late model, the very, very late 25 model Gs reverted back to the metal tanks because they

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# ~£~af!T~~g~~~~c!~o~f?,

# tnc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • Count) 

# 20In the Matterof: Liberty Foundation April 23, 2014 CCR# 016895-5 Page 206 

### 1 were no longer in a, in a position where they had to 2 worry about**Ge~an** 

### fighters and flack, so that's why 3 they got rid of the self-sealing tanks and went back 4 to a metal tank. Do you recall that? 5 A. Yes, I do. 6 MR. STEVENSON: Having had that portion 7 of the declaration spoken I would like to read into 8 the record the rest of Inspector Duellman's answer 9 during that deposition. 10 THE COURT: You're welcome to do that 

### 11 during your redirect. 

### 12 MR. STEVENSON: Okay. 13 CONTINUING CROSS EXAMINATION 14 BY MR. GOLDSTEIN: 15 

### Q. And you recall when I took your deposition 16 that you were not aware of the fact that the airplane 17 had been severely damaged in a tornado? 18 A. That's correct. You told me that. Or you 19 provided that information to me. 20 

### Q. So my question is 

### do you know for a fact, 21 not a guess, whether the wings that were on the 22 airplane that we're talking about in this case were 23 manufactured in 1945 or 1944 or 1943 or when they were 2 4 manufactured? 25 A. No, I can't. 

# County

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# Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 22, 2014 CCR # 016895-4 Page 162 1 extremely significant, but the fact that Mr. Schneider 2 addressed a discrepancy in the discrepancy log and 3 that's where he signed off for return to service. And 4 then under section four in talking about how the tanks 5 were prepared, that they had been removed and that, 6 and inspected for corrosion and damage. 7 Q. You already knew they'd been removed though, 8 right? 9 A. Yes. They talked about what material was 10 used. They talk about that they were abrasively 11 sandblasted or blasted inside and out to remove paint, 12 surface imperfections to prepare them for welding. It 13 wasn't significant to me but, you know, they talked 14 about the fact they used TIG welding which I kind of 15 suspected but I didn't know that anywhere for sure. 16 Q. You think TIG welding would be appropriate 17 for this kind of work? 18 A. Most likely. I'm not a super experienced 19 welder, but I often see TIG used in aluminum. I 20 learned that the welding was done by Cobb Industrial 21 Fabricators. Before that I had no idea and I think I 22 had said earlier today I think that was a wise 23 decision to use a professional welder. I don't know 24 if they're aircraft certified and if that needs to be 25 I'm sure. That's all I note on Mr. Schneider's.

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# Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • County( 

# 21In the Matter of: Liberty Foundation April24, 2014 CCR# 016895-6 Page 193 1 no trying to make it fit in there. 2 Q. Did you work with Mr. Underwood in this, in 3 the project that your company worked on? 4 A. Yes. 5 Q. Was Mr. Underwood there on a regular basis? 6 A. Yes. 7 Q. What exactly, did your company do with the 8 aluminum tanks? 9 A. We received the tanks, we cleaned the tanks, 10 made patch plates. We received the fittings that 11 Cullen provided and then welded all the fittings and 12 patch plates in place. 13 Q. Did you personally do the welding? 14 A. No, I did not. 15 Q. Did you inspect the welding afterwards? 16 A. Yes. 17 Q. Was it done satisfactory to you? 18 A. Yes. 19 Q. The persons that did the actual welding, 20 what kind of experience did they have? 21 A. They ranged from forty years of experience 22 to twenty years experience. Three different people. 23 Q. I want to show you 24 MR. GOLDSTEIN: May I approach the 25 witness, Your Honor?

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# ~£~~T~~g~~~~c!~o~?~ Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • County 

# 22

### U.S. DEPARTMENT OfTRANSPORTATION OfficeofHearings Washington, D. C.

The Liberty 

### Foundation, Inc. FAA DOCKET NO. 2012-0477 (EIR 2011-GL-03-0070)

(Civil PenaltyAction) Hon. 

### J. E. Sullivan, Administrative LawJudge



### DECLARATION OF DAVID WILKINS My name is David Wilkins. I am President of Cobb Industrial Fabricators, 1394 Cobb Industrial Way, Marietta, GA, 30666. I make this Declaration upon my personal knowledge. Cobb Industrial Fabricators is in the business of sheet metal fabrication of steel and aluminum products. We are welders and fabricators of steel, stainless steel and aluminum. We have been inthis business since 1972. During theWinterof2011, atthe request ofCullen Underwood, Iparticipated inthe processofwelding aluminumfueltanks that had been removed from a 8-17 known as The Liberty Belle - N390TH. My participation was direct and personal and included supervising the welding of various openings on the aluminum fuel tanks. I was assisted in this process by Mr. Underwood wi""o supplied drawingsand information from Boeing and by David Owen ofmycompany. The aluminum tankswere made of 1100 series aluminum. The old designation is 25and the markings from Alcoa were still visible on the inside ofthe tanks.



# R-Jo

### Each**\an~**

# nada

### 'oo\\edendca?

### \nat'Nas'He\ded\n**~\ace.** 

### E.ach'Jentandfue\flow connection was welded to thetank using AN bung fittings. The fuel caps, boost pumps, and level sensor mounts were copied from the original fittings and welded to the tanks in the appropriate, and same locations. All fittings were madefrom 6061 aluminum and all weldingwas done using the TIG method ofwelding and thefiller rod was 4043. 

### Thisfiller rod is what is recommended by all manufacturers for welding these alloys. The welds were inspected visually 

### arJd::tt:tet8nks=were

### fille(j with

### ft1el

### toverify 

### anypos8i0fe=feaks. No leakswerefound. Thewelding was normal. I declare under penalty of**pe~ury** 

### under the laws ofthe United States ofAmerica \na\\he

### 'otlaClO\Nl

### \-a\rueand

### conect Executed on this 271h 

### day ofJanuary, 2014In the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 58 1 

### Q. Tell Judge Sullivan please, your current 2 employment. 3 A. Current employment is with American Aero 4 Services in New Smyrna Beach, Florida. 5 

### Q. What is the business of American Aero 6 Services? 7 A. We are a warbird restoration and maintenance 8 facility, along with other artifacts. 9 Q. When you say warbird, what do you mean? 10 A. Former military aircraft. Our business is 11 mainly World War II vintage aircraft and Korean 12 vintage aircraft. 13 Q. What, first of all, how long have you been 14 employed by American Aero Services? 15 A. Twenty-plus years. 16 

### Q. And, are you the owner of the business? 17 A. Yes. 18 Q. Have you been employed by the business, were 19 you employed by the business before you were the 20 owner? 21 A. Yes. I started employment there with George 22 Baker, who was the owner at that time, and worked with 23 him until 1998 when I took the business over. 24 

### Q. So, when did you first start working at 25 American Aero Services for Mr. Baker? County •

### ~

# ~2~a~J**~~g~l~~c!~o~?'**Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • Coun' 

# 2.3In the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 59 1 A. 

### About 1986, '87. 

### 2 

### Q. So that's twenty-six or seven years, right? 3 

### A. Yes. Yes. 

### 4 Q. Okay, I'm not doing the math very well but, 5 okay. So, for that period of time, twenty-six**year~** 

### 6 or so, you've been in the business of restoring and 7 maintaining World War II warbird and other aircraft? 8 

### A. Yes. 9 

### Q. What licenses to you hold that are issued by 10 the FAA? 11 A. 

### I have an airframe and powerplant license 12 and an inspection authorization. 13 

### Q. What does the inspection authorization allow 14 you to do? 15 A. 

### Allows me to perform annual inspections and 16 sign them off and to go ahead and sign off Form 337's 17 on behalf of the FAA. 18 

### Q. So, you're designated by the FAA to perform 19 

### that function? 20 

### A. Yes. 21 

### Q. And, do you recall with you received you're 22 a&P Certificate? 23 A. 

### My A&P, I 

### believe, was probably 1985. 24 

### Q. And, when do you recall when you received 25 

### your Inspection Authorization? County •

# .If!.**~2~a~T~~g~i~~c!~o~~~**Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • Count 

# 24In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 60 1 A. The Inspection Authorization was 1998. 2 Q. And, briefly, what is your educational 3 background? 4 A. Didn't finish high school but went to 5 Spartan School of Aeronautics in Tulsa, Oklahoma, 6 where I got, received my airframe and powerplant 7 ratings. 8 Q. When you say you restore warbird aircraft, 9 what do you mean by that? 10 A. We have aircraft that customers bring by 11 that come in on a trailer, they're non-flying. It 12 might be damaged or have missing parts and we do what 13 we call a ground-up restoration. Totally disassemble 14 the aircraft, redo all the systems, bring it up to a 15 flying aircraft again. 16 Q. And, does that include aircraft such as 17 B-17 's? 18 A. We haven't done a ground-up restoration on a 19 B-17 but we have maintained two. Annual maintenance 20 and preventative maintenance. 21 Q. Sticking with the restoration for a moment, 22 what kinds of aircraft have you done restorations on? 23 A. We've restored a Chance Vought Corsair. 24 Q. And what, I'm going to interrupt you 25 probably, as you go along. Would you tell the judge

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# 25In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 62 1 early Mustang, an extremely rare Mustang. 2 Q. Did it have radial engines like, and when I 3 say like or similar to, the kinds of radial engines 4 that the B-17 has? 5 A. No, this has a V engine. Like your V-8 6 engine would be. Instead, it's a V-12. 7 Q. You mentioned T-28's. What kind of an 8 aircraft is that? 9 A. That's a training aircraft used by the Navy 10 and Air Force, all the way up into the 1980's from the 11 1950's and that has a radial engine in it. 12 Q. And, you mentioned T-6's as well. 13 A. T-6's, again, pre World War II aircraft, 14 used all the way through World War II, Korea and up in 15 South Africa until the mid 1980's. 16 Q. What kind of an engine? 17 A. Radial engine. 18 Q. You also mentioned that you maintained 19 warbird and other aircraft. And when you say 20 maintained, what do you mean by that? 21 A. Do their yearly maintenance inspections or 22 their preventative maintenance, squawks, 23 discrepancies. 24 Q. I'm going to try to get a little bit more 25 detail on that kind of maintenance. First of all, do

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# 26In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 63 1 

### you regularly maintain any B-17 aircraft? 2 A. Yes. We maintain the Collings Foundation's 3 B-17 and until the aircraft was sold, we maintained 4 The Fighter Factory's B-17, which is based out of 5 Virginia. 6 

### Q. And, do you also maintain a B-24 Liberator? 7 A. We've maintained the B-24, which is the only 8 one flying in the world, and that's owned by the 9 Collings Foundation. 10 

### Q. And, what kind of an aircraft is a B-24? 11 

### A. B-24 is a four engine heavy bomber for World 12 War II. This particular one is the only one flying. 13 

### Q. And it has radial engines as well? 14 A. Yes. 15 

### Q. Any other B, I'm sorry, any other World War 16 

### II aircraft that you maintain? 17 A. B-25, which is a North American medium 18 bomber from World War II. 19 

### Q. Two engines? 20 A. Two engines. 21 

### Q. And, radial engines? 22 A. Radial engines. 23 

### Q. And, I 

### don't know if you mentioned, but the 24 

### B-24 has four engines, correct? 25 A. Yes.

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# ~2~~J~~g~~~~cTn~o~?,tnc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matterof: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 68 1 

### MR. STEVENSON: I do not have an, I do 2 not have an objection to that. I don't know that, 3 that, my understanding of that in it's context does 4 not add much beyond the general maintenance, but, I do 5 not have an objection, with the same proviso that 6 should something out of left field be asked, I would 7 reserve the right to object to that particular 8 question as being outside the scope of the established 9 expertise. 10 

### THE COURT: So noted. Mr. Goldstein, 11 this witness is hereby qualified as an expert in 12 aviation maintenance and is in B-17 maintenance 13 expertise. 14 

### MR. GOLDSTEIN: And restoration, Your 15 Honor, as well. 16 

### THE COURT: I didn't hear that part but 17 I'm happy to do that if, is there any objection from 18 the FAA? 19 

### MR. STEVENSON: I don't know that 20 there's any pertinence to that, but no objection. 21 

### THE COURT: There being no objection, 22 so noted and so ordered. Do you have other questions? 23 

### MR. GOLDSTEIN: I have, Your Honor. 2 4 

### REDIRECT EXAMINATION 25 

### BY MR. GOLDSTEIN:

County

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# 27 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX •**Count~**In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 81 1 Q. I think it is, what is the purpose of the 2 fuel system in a B-17 aircraft? 3 THE COURT: Thank you. 4 

### A. The purpose of a fuel system in a B-17 is to 5 provide fuel to the engines so the engine can run. 6 Or, am I missing

... 7 

### Q. And, how does it do that? 8 A. Through tanks, boost pumps, lines. Those 9 lines eventually run to a engine driven pump which 10 goes to the carburetor. 11 

### Q. And, what you've just described, is that the 12 basic design of the B-17 fuel system? 13 MR. STEVENSON: Objection, leading. 14 THE COURT: Objection is sustained, the 15 answer is stricken. Do you have another question? 16 Q. Based on your experience, what is the basic 17 design then, of the B-17 fuel system? 18 

### A. The basic design is a set of tanks in each 19 wing with each tank having its own boost pump and 20 individual lines going to each engine. They're engine 21 driven pumps. Then, the pump line up to the 22 carburetor which eventually brings the fuel air 2 3 mixture into the engine. 24 Q. And in your expert report, you indicated 25 that you had reviewed, I think, let me just look at County •

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# 28In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 86 1 Q. Based on your twenty-eight years or so of 2 experience maintaining and restoring warbirds, do you 3 have an understanding of the term major alteration as 4 it applies to warbird airplanes? 5 A. Yes. 6 Q. And what is your understanding of what a 7 major alteration is, as it applies to B-17 aircraft? 8 A. Major alteration would be changing of 9 control surfaces, changing the gross weight or CG of 10 the aircraft. 11 

### Q. And what about as it might relate to the 12 fuel system? 13 A. Major alteration would be changing the flow 14 of the fuel pump to a lesser or higher value, 15 rerouting fuel lines. 16 

### Q. Anything else that you can think of that 17 might be considered a ... 18 A. Putting in extra tanks, extra fuselage 19 tanks, that's a common practice. 20 Q. You mentioned, I think you mentioned, did 21 you say weight or center of gravity in your last 22 answer? 23 A. Yes. If it is an alteration that changed 24 the gross weight or the center of gravity of the 25 aircraft.

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# 29In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 98 1 is. If you were to draw an imaginary line from wing 2 tip to wing tip, the fuel tanks, the bomb bay, would 3 be all in that center of gravity. I don't know the 4 station numbers but it's a very long CG. 5 Q. And, based on your knowledge and experience 6 of B-17 aircraft, are you familiar with how the 7 aircraft were operated in World War II as it might 8 relate to this large CG envelope? 9 A. We are, right now as B-17's are operated, we 10 are well within the CG envelope and well under gross. 11 We're not carrying twelve fifty caliber machine guns 12 anymore nor the bullets. These aircraft would leave 13 with full tanks and ten thousand pounds of bombs and 14 come back with tanks emptying and no bombs. We don't 15 carry any of the armor anymore so we're well below 16 what our gross weight would be and well within our CG 17 range. 18 Q. And just as a followup to that, so when they 19 would come back much lighter, are you saying they 20 would still be, would they still be within the CG 21 range? 22 A. They'd still be within their CG range. 23 Q. That's all, thank you Mr. Norville. 24 THE COURT: Thank you, Mr. Goldstein. 25 Mr. Stevenson, any final recross?

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# 30In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 99 1 WITNESS: I thought I'd ask. 2 THE COURT: Yeah. 3 Q. Did you prepare the Enforcement 4 Investigative Report in this case? 5 

### A. Yes, sir. 6 Q. And do you recall that you prepared a 7 Section C called i terns of proof? 8 A. Yes, sir. 9 Q. And do you recall that you made reference 10 there to 14 CFR Part 43, Appendix A, parentheses 1, 11 parentheses 1, paren.theses Roman 12? Do you recall 12 that? 13 A. Yes. 14 

### Q. And do you recall you made no reference to 15 FAR 1 . 1 in your i terns of proof? 16 A. I'd have to look at the list. 17 MR. GOLDSTEIN: May I show, I don't 18 have an extra copy. May I show this to ... 19 THE COURT: You're welcome to take, 20 show it to Mr. Stevenson and then if he has an 21 objection. Mr. Stevenson, any objection? 22 MR. STEVENSON: My understanding is' 23 I'm taking this presentation to the witness as a 24 refreshing of his recollection? 25 THE COURT: I have no idea, Mr.

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# 31In the Matter of: Liberty Foundation April 23, 2014 CCR# 016895-5 Page 100 1 Stevenson. 2 MR. STEVENSON: Oh, okay. I'm sorry. 3 That's what I was ... 4 THE COURT: Do you have any objection 5 to the witness being shown this one document that's in 6 Mr. Goldstein's hand? 7 MR. STEVENSON: No, Your Honor. 8 THE COURT: Okay. Mr. Goldstein, 9 please go ahead. 10 MR. GOLDSTEIN: Thank you. 11 THE COURT: I'll note Mr. Goldstein's 12 handing the witness a document. 13 CROSS EXAMINATION 14 BY MR. GOLDSTEIN: 15 Q. So that is part of the, just leave it there 16 for a second. That's part of the Enforcement 17 Investigative Report that you prepared? 18 A. Yes, sir. 19 Q. In this case, is that correct? 20 A. Yes, sir. 21 Q. And am I not correct that there's no 22 reference to FAR 1.1 in your items of proof? 23 A. You are correct. 24 Q. In the last twenty-five years, sir, have you 25 performed any maintenance on any B-17 aircraft?

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# ~£~a~J~~g~~~~cTn~o~?' Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX " CountyCourtReporters.comIn the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 129 1 A. Yes, sir. 

### 2 Q. And you're familiar with a term center of 3 gravity envelope

. 4 A. Yes, sir. 5 

### Q. What is, for the Judge's benefit and maybe 6 for mine, what is the center of gravity, what is a 7 center of gravity envelope? 8 A. Last word, please? 9 

### Q. Yes. Do all aircraft have center of gravity 10 envelopes? 11 A. Yes, sir. 

### 12 Q. Okay. What, for the Judge's benefit and 13 perhaps for mine, what is a center of gravity 14 envelope? 15 A. That would be a loaded configuration for an 16 aircraft depending on where weight, including persons, 17 bomb loading air case fuel is placed within the 18 aircraft where it's been predetermined that the 19 aircraft will have no unusual flight characteristics. 20 

### Q. Well, a center of gravity envelope has a 21 range, does it not, where even though the center of 22 gravity moves it's still within the center of gravity 23 envelope and therefore is legal to fly that airplane 24 like that? 25 A. Yes.

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# 32In the Matterof: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 130 1 

### Q. Okay. Do you have any idea 

### what the center 2 of gravity envelope was for the Liberty Belle? 3 A. I don't know the numbers. 4 

### Q. Okay. Do you know, and I'm asking you 5 specifically, if you know whether the difference in 

### 6 fuel capacity, if indeed there was one, of the 7 aluminum tanks as compared to the bladder tanks 8 affected the center of gravity such that it would have 9 made the aircraft outside the center of gravity 10 envelope? 11 A. Excuse me. 12 

### Q. You're not going to ask'me to repeat that, 13 are you? 14 A. Could you repeat that again, please? 15 

### Q. You've testified, sir, 

### that airworthiness 16 might have been affected because there was a different 17 fuel capacity in 

### the aircraft after the work, the 18 February work as before the February work. Do you 19 recall that? 20 A. Yes, sir. 21 

### Q. Okay. You don't know how much that 22 difference was, do you? 23 A. No, sir. 24 

### Q. Okay. My next question is 

### considering that 25 you also don't know what the center of gravity

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# ~2~a~T~~~~~~c!~o~?' Inc. 800.262.8777 TOLL-FREE " 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matterof: Liberty Foundation April23, 2014 CCR # 016895-5 Page 131 1 envelope was for the Liberty Belle, can you testify as 2 a fact that the difference in fuel capacity, which you 3 haven't identified, affected the center of gravity of 4 the Liberty Belle such that it would have been outside 5 the center of gravity envelope? 6 A. That would have depended on your loading 7 configuration. 8 

### Q. I'm asking you, do you know if

... 9 A. I don't know because I'm not loading. 10 

### Q. Okay. You also testified about the weight 11 and you said the difference in the fuel weight could 12 have affected the airworthiness of the Liberty Belle. 13 Do you recall that? 14 A. Not the fuel weight I don't believe. 15 

### Q. Well, that's what you testified to, sir. 16 A. I believe it was bladder. 17 

### Q. Well, I'm going to ask you the questions 18 anyway because I have it in my notes. Do you believe 19 that there was a difference in the weight of the 20 aircraft based upon the change in the fuel tanks in 21 February of 2011? 22 A. Yes, sir. 23 

### Q. And that difference would have resulted from 24 some difference in the fuel capacity of the two tanks, 25 is that correct?

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# ~2~a~T~~g~~~I~~~~,Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matterof: Liberty Foundation April 22, 2014 CCR# 016895-4 Page 122 1 THE COURT: Thank you. 2 MR. STEVENSON:

... quotes, yeah. 3 CONTINUING DIRECT EXAMINATION 4 BY MR. STEVENSON: 5 Q. In your opinion could the alteration of the 6 fuel system that was performed by the respondent be 7 completed using only elementary operations and why do 8 you believe that? 9 A. I think by in large most aircraft mechanics, 10 A&P or IA, do not possess the skill to weld something 11 of that magnitude as already, well. It is my 12 understanding that a professional shop welded this up 13 and I think that was a good idea if you're going to do 14 welding of that magnitude that you use a professional 15 welder. So it's truly beyond the elemental, 16 elementary operations that a normal A&P would be 17 experienced enough to do. 18 Q. As you addressed in your affidavit there 19 have been questions raised about whether or not the 20 alteration performed was a change in the basic design 21 of the fuel system. In your opinion was this 22 alteration a change in the basic design of the fuel 23 system? 24 A. Yes, it was. 25 

### Q. And why do you think it was a change in the

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# 33In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 196 1 A. Normal would, we did not have to do any, 2 what you would call, out of position welding. We 3 didn't have to, as if we were welding this table 4 together, we didn't have to get underneath it and try 5 to weld upside down. We positioned everything 6 properly to have the optimum position for welding the 7 parts up. 8 MR. GOLDSTEIN: I'm going to argue the 9 introduction to R-10. 10 MR. STEVENSON: With the witness's 11 correction, no objection, Your Honor. 12 THE COURT: R-10 as modified by the 13 witness is hereby admitted. 14 CONTINUING DIRECT EXAMINATION 15 BY MR. GOLDSTEIN: 16 Q. Thank you. Mr. Wilkins, as you understand 17 these words in your business and in your experience, 18 was the welding that you performed on these tanks, 19 simple or difficult, complex or non- complex? 20 A. Be non-complex. 21 Q. Simple or difficult? 22 A. Simple. 23 Q. Was the, sorry, were the materials that were 24 used, appropriate for the project? 25 A. Yes.

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# 34In the Matterof: Liberty Foundation April 22, 2014 CCR # 016895-4 Page 157 1 would need some type of engineering to show that 2 they're appropriate in size, shape and, you know, in 3 the way they would be welded on. So I disagree that it 4 can easily be said that they were of equal, of equal 5 quality. And then number eight says the welding that 6 was done on the aluminum tanks was not complicated at 7 all. It was a simple, non-complex job. I disagree 8 with that. I think it was simple, non-complex job for 9 a professional welding agency, but it wasn't an 10 elementary type of operation that normally we can do 11 or maybe Rod had done. Under number nine it says that 12 there was no evidence that the repair failed. I just 13 have no knowledge about that. I don't know what 14 occurred there so I can't support that or contest it. 15 

### Q. You don't disagree with it, you just don't 16 

### know. 17 A. Right. FAA's claim that the repair was 18 improper because the sealant was packed from the 19 outside is wrong. Packing the sealant from the outside 20 was an improvement. Well, I guess that, I can't argue 21 with that either. And number ten is kind of a general 22 statement about methods and practices. It, I don't 23 agree with it because I don't agree with turning that 24 shell into a tank without having proper engineering 25 and specifications to work from. But the actual

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# 35X900. I ('II(i 71



### rc -'-68, 

### Ma,jor Altcr·ations 

### .Joh Aid NOTE: Aviation Safety Inspectors (ASil should sec guidance in Figure 4-6X to determine when additional coordination with a Designated Engineering Representative (DER) orthe Aircraft Ccrtilication Office (;\CO) may be necessary. ll1c fi.1llowing lists indicate which 

### mcthod(s) may be used for approving**m<~jor** alterations to "d and STCd products. These lists arc noL all-inclusive. and each alteration should he ted on a**cas~.:-by-casc** basis. Consult each section that concerns your product. Additionally. Is should review current 

### bulletins. /\C.s. etc., l(lr specilic types

# orinstallations that have been

ti!icd as**candidat~:s** for 

### !iddapproval. The legend is as ((1llows: 

### hems with the letters 

### STC require an STC. 

### hems with the 

### letters EVL may be 

### eligible for approval by means otherthan an 

### STC. 'ngon the scope aml complexity nf'the alteration. These items will not autornatically 

## Jy !()r

### a field approval; they require evaluation and review of'

### guidance to determine 

### i

### rthe approval process may be used. with the letters ENG may be eligible f(w approval by means otherthan an STC but either DER or ODJ\ approved engineering data orconcurrence 

### ti·01n the ACO J<.)r licld



# 36)18109 

### iligure 4-68, MajorAlterationsJobAid (Continued)

proximity warning systems (GPWS). night instmment systems (EFIS) (see InFO 08047). r:errain Awareness and Warning Systems (TAWS-A) (see InFO 08047). l:errain Awareness and Warning Systems (TAWS-B) (see InFO 08047). inergency Vision Assurance Systems (EVAS).**~lob<li** positioning system (GPS) or Global Navigation Satellite System ( lnFO 08047). lijj0TE: AS!s should also reviewcurrent guidance for speciti Jeen identified as candidates for field approval. Changes that increase the differential pressure limits ofan atmosphe :ontrol systemofaircraft interiorcompartments. 8900.1 CHG 71



### STC

ENG ENG Changes in engine andpropellercombination(vi A.ny alterationthat requires flight testingto 1pplicable to operational flights conducted the regulations (not 

### ENG 91, §9!.407(b)). ,i\nti-terrorism countermeasures, 

### i 

### STC Airworthiness. Changesto landing gear and iength, geometry of such as internal parts ofshock struts, 

### EYL systems, oradditions.

drains, orbattery vents. (Applicable to 

### EVL engine.) (LOX) oronboard generating systems. 

### ENG auxiliary powerunit (APU) ram air, nacelleblowout 

### ENG 

### raulic, Pneumatic, and Fuel Lines, orSystemsThatAffectTheir InstalJation and Flammability Requirements, such as: ofhoses and/or hose fittings that may not meet installation requirements, 

### ENG flow rate and flanunability requirements.

to fuel dump valves. 

### EVL oil/fuel/hydraulic line materialsbeyond the scope ofAC43

### .13-l,Acceptable 

### EVL '"'Tnnn" Techniques, and Practices

- Aircraft Inspection and Repair (currentedition). fi'"-'""""'o'"' to, oradditionof, permanentfuel tanks orfuel systemcomponents, including 

### EVL 

### 22 UNCONTROLLED COPY

### WHEN DOWNLOADED 

### CheckwithFSlMSto verify currentversion before using8900.1 CHG 71 

### 4-68, Mnjor AlterationsJob Aid (Continued)

in Fixed Fire ExtinguisherorDetectorSystemsThat Affect the System's

css or Reliability, such as:**---------------------------------------~-----4** discharge nozzles, detector units, or fixed fire extinguisherbottles. new ordifTcrent detector components.

ing the amount orchanging the type ofextinguishing agents. ges that include substituting airframe materials that affect structural

·ng protection, or flight characteristics. 

### tions orRepairsThat Include: EVL ENG ENG ofsynthetic coatings. ENG ofnew plated coatings. ENG uipment relocation. EVL medical services, sport parachute ENG

with acertificationbasisof 14 

### CFRparts 27, 29, or the

ficated maximum weight limits affecting structural, STC ities, and so forth (forexample, increases in the maximum takeoffweight, or landing weight). centerofgravity range limits (for example, decreasing the STC increasing the aft limit). that increase the operational limits (maximum speed limits such as YA, Yr·E, STC tmum speed limitations suchas stall speed, increases in serviceceiling, and so

Changingprimary structures (structures thatcarry flight, ground, orpressure loads as defined in AC 25.571-1 Damage Tolerance and Fatigue Evaluation ofStructure) as well as the following additional modificationsor structural members: 23 

### UNCONTROLLED COPY WHEN DOWNLOADED CheckwithFSIMS to verify currentversion before using8900. 1CHG 71



### re4-68, MajorAlterations .Job Aid (Continued) terrorism countermeasures, including 

### nares. STC

to Systems,such as: nofexterior fuel ventsorbattery vents.

Icritical access doors, APU ram air. nacelle blowout doors, and fuel



### to 

### Oil, Hydraulic, Pneumatic,and Fuel 

### Lines, or

### Systems or Affect Their 

### Operation or 

### Installation and Flammability types ofhoses and/orhose fittings that may not meet 

### i ENG as those offlow rate and flammability. to fuel dump valves. 

### EVL EVL EVL Affect the System's

ENG ENG ENG materials that affect structural ENG ofrotorcraft, such as loads, vibration, fatigue, 

### STC characteristicsofmain ortail rotor system, veshafts, driveshaft support bearings, and main and

fication ofan existing icingprotection system. ENG 

### STC ng aircraftto an all-cargo orcombination configuration. 

### STC

STC support nightvisiongoggle use, or any approvals 

### STC8900.1 CHCi 71 

### 4-68, MajorAlterationsJob Aid (Continued)

IorTASs (see InFO 08047). 

## EVL STC

InFO 08047). (see InFO08047). (see InFO 08047). 

### STC 

## EVL ASis should 

### also reviewcurrent guidance for specific types fied as candidates for field approval. aHeration that requires flight testing to to operational flights conducted th the regulations (not ENG 

### STC

, such as internal parts ofshock struts, ENG systems, oradditions. 

## EVL generating systems. ENG



### not meet the installation requirements, ENG ENGIn the Matter of: Liberty Foundation Apri123, 2014 CCR # 016895-5 Page 112 1 you concluded that the June repair was a major repair? 2 A. I I d point to paragraph twenty. 3 Q. Paragraph twenty? 4 A. Yes, sir. 5 Q. The job aid that you refer to, Exhibit 23, 6 C-23 7 A. Yes, sir. 8 Q. that is, you described that as something 9 that's issued to inspectors, FAA inspectors, is that 10 correct? 11 A. No, sir. 12 Q. What is 13 A. This is available to everybody. 14 Q. I'm sorry? 15 A. This is available to everybody. 16 Q. It's an FAA order. 17 A. It's an FAA order. 18 Q. What do you mean it's available to 19 everybody? 20 A. Any person can have access to this by going 21 to FAA. gov. 22 Q. Is it issued to FAA inspectors? 23 A. All of our data anymore is online. 24 Q. Is it issued to FAA inspectors? 25 A. Yes, sir. Yes. County •

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# Inc. 800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comIn the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 113 1 Q. It is, okay. It's not regulatory, is it? 2 A. No. 3 Q. Are you familiar with the history of the 4 Liberty Belle airplane? 5 A. Some of it. 6 Q. What are you familiar with? 7 A. I know that it was put together, you know, 8 that there was 9 Q. It's safe to say every airplane was put 10 together

. 11 A. Yeah, every plane is put together. I know 12 that it was a modified aircraft based on the 13 performance document showing that it was a test cell, 14 you know, it was used for research and development for 15 a while. I know that it had an extended fuel system 16 put in it for when the Liberty Foundation went to 17 Europe with it. I know records from, you know, the 18 FAA's database in Oklahoma City of like various stages 19 of the certification and repairs and alterations that 20 have been done to this aircraft. 21 Q. Were you aware of the fact the airplane had 22 been substantially destroyed 

### in a tornado 

### in New 23 England? 24 A. Only after the proceedings here today. 25 Q. Okay. Do you know the extent of that damage

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# Inc. 800.262.8777 TOLL-FREE 0 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.comScott Maher -""'Jl"''''· Liberty Belle Form 337 June 5, 2015 at 1:31 PM Stuart Goldstein

Date Signoff 4/17/2009 Bourgoine/Miller 2/11/2008 Bourgoine/Fredekind 7/27/2006 Reilley/Root 9/8/2005 Electrosonics 6/13/2005 Reilley/Mosleis 6/10/2015 Reilley/Mosleis 4/26/2005 Reilley/Root 4/26/2005 Reilley/Root 4/26/2005 Reilley/Root 4/26/2005 Reilley/Root 4/26/2005 Reilley/Root 12/2/2004 AirAssociates N390TH- Liberty Belle Description New manufacture tail wheel Install ADC oil filters Install two place seat in waist section Mid-Continent attitude indicator and Sigma-Tek directional gyro Install two cockpit seats Install three place seat in waist section Remove tokyo tanks, reworkfuel transfer system. Install radio room floor and seats Install chip detectors, starter lights Recover rudder, elevators, ailerons Pre-oil system Avionics install



# 37