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MSHA blocked questions about previous UBB methane incidents

CHARLESTON, W.Va. -- U.S. Labor Department officials blocked an independent state team investigating the Upper Big Branch Mine Disaster from digging into questions about the federal government's response to earlier incidents where methane leaked from the Raleigh County operation's mine floor, newly disclosed records show.

Agency lawyer Derek Baxter, a member of the U.S. Mine Safety and Health Administration's disaster investigation team, said the questions were inappropriate and tried to keep his objections to them from appearing in the public record of MSHA's probe of the worst U.S. coal-mining disaster in nearly 40 years.

"I want to go off the record right now," Baxter said when pressed to explain why questions from a member of the independent investigation team about MSHA's actions were improper.

Details of Baxter's actions surfaced this week in investigative interview transcripts made public by MSHA after the release of the agency's long-awaited report on the April 5, 2010, explosion that killed 29 workers.

Investigations by MSHA, the independent team led by Davitt McAteer, and the United Mine Workers have agreed that serious, pervasive and widespread violations of basic safety standards by Massey were the root causes of the Upper Big Branch disaster.

But the MSHA report, released Tuesday, also concluded that methane that ignited the horrific blast likely leaked from the mine floor through exactly the sort of mechanism as three earlier methane incidents at Upper Big Branch in 1997, 2003 and 2004.

MSHA had recommended steps to avoid such incidents, but Massey never implemented them -- and MSHA has admitted it didn't follow up to ensure the company acted.

McAteer, a former MSHA chief who led the independent team appointed by then-Gov. Joe Manchin, said Thursday that it was "unfortunate" that Baxter intervened to stop questions raised by Pat McGinley, a West Virginia University law professor and member of the Governor's Independent Investigation Panel.

"The outcome of the report that was released two days ago by MSHA suggests these were very pertinent questions and a very important line of questioning," McAteer said in an interview. "It's truly unfortunate that the agency for whatever reason tried to move away from this line of questioning."

Kevin Stricklin, MSHA's coal administrator, said Thursday that an agency "internal review" team looking into MSHA's actions at Upper Big Branch is likely to report that his agency should have done more to follow up on the earlier methane incidents and any Massey remedial actions.

"It appears to me that we didn't address it, but I'm going to wait until they tell me that in writing," Stricklin said in an interview.

Stricklin also emphasized that a multitude of Massey violations -- improper safety examinations, worn-out mining machine bits, missing water sprays, inadequate roof support and a pattern of poor rock-dusting -- all contributed to the disaster.

"A hell of a lot of stuff has to go wrong for you to have an explosion," Stricklin said.

In a statement issued Thursday, House Labor Committee Chairman John Kline, R-Minn., said, "The families of the Upper Big Branch miners deserve the whole story of what went wrong. That is why I am interested in the findings of MSHA's internal audit, which should help answer whether enforcement lapses played a role in this devastating disaster.

"If MSHA failed to act on critical information that may have improved the safety of those miners, the people of West Virginia deserve to know why," Kline said in a statement.

MSHA was conducting another in its series of closed-door interviews with witnesses in the Upper Big Branch case -- this one on June 22, 2010, with longtime MSHA employee Stephen Gigliotti -- when Baxter and McGinley clashed several times.

Gigliotti had initially been appointed to the agency's "internal review" team. He was removed from that team several days after the Gazette revealed previous methane incidents at Upper Big Branch and memos surfaced that listed Gigliotti as acting Southern West Virginia district manager at the time. But Gigliotti had only been acting district manager for a month, had taken the post after the 2004 methane incident and left the job before a report on it hit the district manager's desk.

McGinley tried to ask Gigliotti questions about discussions among MSHA officials after the explosion, about the earlier methane incidents, what the agency knew about them, and any possible connections to the disaster.

Baxter jumped in, telling McGinley, "I don't think we should go into conversations with the accident investigation team."

McGinley responded, "Well, this is material to our investigation."

Baxter asked McGinley to go "off the record," so the court reporter would stop taking down every word that was said.

McGinley said, "I'd like to stay on the record," and Baxter responded, "No, I want to go off the record right now."

McGinley insisted that Baxter state for the record his reasons for wanting the court reporter to stop transcribing their discussion.

"The reason is because you're starting to go beyond the facts that this witness knows and you're starting to ask questions of his conversations with team members during our investigation," Baxter said.

McGinley reminded Baxter, "Well, we've been trying to find out information about these memoranda and what happened now for -- it's going on a month, and his testimony is helpful in that regard."

McGinley then agreed to go off the record, and McAteer said MSHA officials then insisted that questioning of Gigliotti be limited and not focus on questions about MSHA's discussions or actions regarding the earlier methane incidents.

About a month before interviewing Gigliotti, investigators had questioned Bob Hardman, who was MSHA's local district manager at the time of the Upper Big Branch explosion.

During interviews that began on May 27, 2010, Hardman told investigators that someone slipped copies of memos regarding the 2003 and 2004 methane incidents under his office door a week earlier, on May 21.

But Gigliotti testified that top MSHA officials -- including deputy coal administrator Charlie Thomas -- were discussing the incidents via e-mail message just days after the April 5 explosion.

Other records made public this week, along with some confidential documents obtained by the Gazette, indicate a variety of MSHA and Massey personnel were well aware of the previous methane incidents long before the Upper Big Branch Mine blew up.

For example, records show that mine ventilation expert Bill Ross was one of the MSHA staff who investigated the 2004 methane incident. Ross later left MSHA and went to work in Massey's ventilation department. Employee time sheets from Massey subsidiary Performance Coal Co. also show that Chris Adkins, who became a top vice president at Massey Energy, was underground at Upper Big Branch at the time of the 2004 methane incident.

Reach Ken Ward Jr. at or 304-348-1702.

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