Professional Documents
Culture Documents
Commission’s request for further discussion of issues raised during the parties’ conference call this past
Wednesday, July 30, 2010, which covered the pending emergency application to modify MSHA’s Section
103(k) Order (the “Order”). During the call, the parties discussed Performance’s specific request for
relief, the potential for irreparable harm caused by the Order, and the current investigative protocol
relative to past MSHA protocols. Performance files this supplemental memorandum in order to
reiterate its specific request for relief, set forth the Commission’s authority to grant such relief, update
the record of irreparable harm that has occurred since the filing of the emergency application, and
briefly demonstrate that, contrary to MSHA’s representations, the investigative protocol imposed upon
As stated previously in the emergency application, Performance seeks specific relief that cures
those portions of MSHA’s investigative protocol that violate Section 103(k) of the Federal Mine Safety
and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 813(k), namely, the provisions that prohibit
Performance, in the course of its investigation, from taking its own photographs, (Emergency App.
Mem. P. & A. Ex. 12 ¶¶ 21, 22, 24, 27), conducting mine mapping, (Id. ¶ 6), procuring its own dust
samples, (Id. ¶ 11), taking parallel dust samples with MSHA, (Id. ¶¶ 10, 11, 17, 39), and participating in,
or objecting to, destructive testing, (Id. ¶ 39). (Emergency App. Mem. P. & A. at 5-6.)
Performance, therefore, respectfully asks the Commission to modify the Order so that it
conforms to the law. Specifically, Performance requests that Modification 66 to Order No. 4642503 be
(ii) to conduct its investigation using its own electronic mine mapping;
(iii) to conduct its own dust sampling or parallel dust sampling with MSHA; and
Federal law fully empowers the Commission to fashion such relief whenever MSHA, as it has
done here, strays beyond its statutory boundaries. The Commission derives its authority from Section
105(d) of the Mine Act, which provides, in pertinent part: “[T]he Commission shall afford an
opportunity for a hearing . . . and thereafter shall issue an order, based on findings of fact, affirming,
modifying, or vacating the Secretary’s . . . order, . . . or directing other appropriate relief.” 30 U.S.C. § 815(d)
(emphasis added); see also 30 U.S.C. § 814(h) (“Any . . . order issued under this section shall remain in
effect until . . . modified, terminated or vacated by the Commission . . . pursuant to section 815 . . .”);
Secretary of Labor v. Consolidation Coal Co., 4 FMSHRC 1791, 1793-94 (1982) (explaining that Mine Act’s
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“broad terms” “expressly authorize” the Commission to modify MSHA orders); United States Steel Corp.
v. Secretary of Labor, 5 FMSHRC 322, 362 (ALJ 1983) (recognizing that Section 105(d) “expressly
authorize[s]” Commission to modify orders); Secretary of Labor v. Consolidation Coal Co., 4 FMSHRC 1791,
1796 (ALJ 1982) (describing “the broad power to modify granted the Commission and its judges in
The section 103(k) order that MSHA has imposed on Performance presents a suitable occasion
for the Commission to exercise its broad authority to modify an unlawful order or otherwise to “grant
appropriate relief.” As argued previously, the specific relief sought here is neither far reaching, nor
complex; it is instead a modest request to perform photography, map the mine, and sample mine dust.
It also does not require MSHA to perform additional tasks; indeed, by upholding Performance’s right to
investigate, the requested relief would reduce MSHA’s workload. Furthermore, Performance does not
ask the Commission to authorize any mining activity or order MSHA to approve any mining plan, like a
ventilation change or a new roof bolt control plan; rather, the requested modification would simply lift
restrictions on an activity that is already being performed by MSHA underground. Consequently, there
is nothing in the Mine Act to prevent the Commission from modifying the Order to permit
Performance previously explained that because twenty-four investigation teams will flood the
accident site for months of investigation the availability of evidence or the opportunity to observe
conditions in the Mine is temporary and, if lost, is potentially lost forever. The harm to Performance
caused by MSHA’s protocol, therefore, is likely to be irreparable. For that reason, Performance seeks
immediate relief. As detailed below, the events of the past several days unfortunately have confirmed
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Christopher F. Schemel, an engineer from Packer Engineering’s Fire Science and Explosion
Analysis Group who serves on the Company’s accident investigation team, (Ex. 1 ¶ 2), has witnessed the
deterioration of the accident site. Dr. Schemel has expertise in investigating, reconstructing, and
analyzing explosions and fires in mining operations, specifically including coal mines. (Id. ¶¶ 4, 5.) In
the case of the Upper Big Branch mine accident investigation, Dr. Schemel has traveled underground as
Performance’s representative on mapping and photography teams organized by MSHA and the West
In the course of his recent participation in the underground investigation at Upper Big Branch,
Dr. Schemel has concluded that the MSHA investigative protocol, as written and as applied, will
jeopardize certain evidence and data that is critical to forming conclusions as to the accident’s cause and
origin. In a declaration attached to this memorandum, Dr. Schemel offers the following observations:
• On June 29, 2010, some mapping teams mapped only two cross-cuts of a mine entry, while
other teams mapped as many as ten cross-cuts during the exact same timeframe. (Id.
¶ 16(a).) This suggests an alarmingly wide discrepancy of precision between the teams and
renders those maps unreliable for purposes of performing an explosion analysis. (Id.)
• On June 29, 2010, MSHA investigators made changes to Dr. Schemel’s team map after he
had signed and dated it, without asking him to approve that change or to sign and date it
again after the change had been made. (Id. ¶ 16(b).) This renders the entire mapping process
• At a June 15, 2010 examination of one of the mantrips that was in used at the Mine at the
time of the explosion, Dr. Schemel observed MSHA investigators collecting multiple dust
samples using the same brush and pan. (Id. ¶ 16(c).) This careless technique risks cross-
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• Investigators have been routinely trampling the Mine’s travelways and walking on debris
fields. (Id. ¶ 16(d).) This compromises the integrity of the accident scene in the Mine by
permanently compressing the mine dust on the floors, thus destroying its utility for testing
or analysis.
• The absence of a protocol for handling trash has resulted in spoliation of the accident scene
with water bottles, food wrappers, and other trash. (Id. ¶ 16(e).)
• Investigators have been sitting down on evidence, and similarly have been laying down their
• MSHA investigators on the mapping teams have been laying down their measuring tapes and
making chalk marks in the mine dust and on top of other evidence without first
photographing the scene. (Id. ¶ 16(g).) This is changing the dust and debris of the scene
and impairs the ability to determine a timeline of events. (Id.) Consequently, it cannot be
The above events make clear that Performance’s ability to perform an accident investigation is
deteriorating daily. Without immediate relief from the Commission the harm sustained by Performance
As previously mentioned, the current MSHA protocol is an outlier. Nevertheless, during the
course of the parties’ recent teleconference, MSHA’s counsel attempted to justify the Section 103(k)
order by claiming that the current protocol is the agency’s standard arrangement. Putting aside for a
moment the principle that an unlawful practice cannot be justified simply because it has not been
challenged previously, MSHA’s contention is wholly without a factual basis. According to David D.
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Lauriski, the former Assistant Secretary of Labor for Mine Safety and Health, (Ex. 2 ¶¶ 4-7), the current
Mr. Lauriski, who oversaw numerous MSHA investigations, including fatal accident
investigations at underground coal mines, describes the protocol as “extraordinary,” stating flatly that
the restrictions on photography, mine mapping, dust sampling and destructive testing are, to his
knowledge, “unique to this investigation.” (Id. ¶¶ 4, 10, 14.) During his tenure as Assistant Secretary of
Labor from 2001 to 2004, he does not believe that MSHA ever imposed such restrictions on any mine
operator during an accident investigation nor would he have authorized such restrictions if they were
not related to miner health or safety. (Id. ¶ 15.) Prior to reviewing the current protocol, he had never
seen a Section 103(k) order that effectively precluded a mine operator from carrying out its statutory
mandate to investigate an accident. (Id. ¶ 17.) Mr. Lauriski affirms that the MSHA protocol is “a
departure from MSHA’s standard accident investigation practices.” (Id. ¶ 26.) Furthermore, MSHA’s
prohibitions on Performance’s ability to take photographs, to map and to collect dust samples are
restrictions that MSHA, to his knowledge, has never attempted to impose on any other mine operator
during an accident investigation. (Id. ¶ 28.) On the other hand, the protocol recommended by
Performance is consistent with those used by MSHA and mine operators during the investigations of
arguments MSHA might offer to justify its Section 103(k) order, it cannot plausibly argue that its current
IV. MSHA Cannot Force an Operator to Wait for the Conclusion of MSHA’s Investigation.
MSHA’s startling suggestion that Performance must await the conclusion of MSHA’s
investigation before the operator is free to conduct its own investigation is so far-fetched that it warrants
a response. The contention that MSHA has the authority under Section 103(k) to cast Performance
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aside while it roots around the mine is wholly without a factual or legal basis. First, MSHA’s authority to
close the Upper Big Branch mine to all underground activity was purportedly exercised under Section
103(k), which requires a safety related basis. Second, once the mine is made safe, there is no longer a basis
under Section 103(k) to restrict lawful underground activity. Third, for the past several months the
parties have worked to make the mine safe for an accident investigation and, in fact, MSHA has
concluded this past week that the Mine is safe enough to conduct an investigation. Fourth, by conducting
an investigation underground, MSHA demonstrates tangibly its belief that the mine is safe enough to
proceed with an investigation. Fifth, if MSHA has determined that the mine is safe enough for an
investigation, MSHA has no basis under Section 103(k) to prevent Performance from entering its own
Consequently, MSHA’s belief that it can use Section 103(k) to shut Performance out of its own mine
V. Conclusion
For all of the reasons stated above and in the Emergency Application and Memorandum of
Points and Authorities filed on June 28, 2010, Performance respectfully renews its request that the
Application be afforded expedited consideration and that Modification 66 to Order No. 4642503 be
immediately MODIFIED to conform lawfully to Section 103(k), including but not limited to permitting
Performance to conduct its investigation using photography, electronic mine mapping and dust
sampling and to participate meaningfully in any destructive testing of evidence, or, in the alternative, that
Modification 66 to Order No. 4642503 be so MODIFIED after a hearing forthwith on the merits at a
To the extent that the Court is not inclined either to modify Modification 66 to Order No.
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PATTON BOGGS LLP
__________________________________
Robert D. Luskin
Patrick J. Slevin
Benjamin D. Wood
Peter S. Gould
2550 M Street NW
Washington, DC 20037
202-457-6190 (Telephone)
202-457-6315 (Facsimile)
8
UNITED STATES OF AMERICA
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1. I am over eighteen (18) years of age, am competent to make this Declaration and,
except where explicitly stated otherwise, have personal knowledge of the facts below. I would testify
truthfully to the facts and opinions set forth herein if called upon to do so.
position I have held continuously since 2003. I am a member of Packer Engineering’s Fire Science
and Explosion Analysis Group, and I also lead its Chemical and Petrochemical Group.
and fires in mining operations, specifically including coal mines. This reconstruction analysis
provides critical information on issues such as fire behavior, explosion dynamics, smoke and gas
movement, ventilation and inerting systems, material properties, fuel properties, vapor cloud
explosions, source terms, vapor cloud dispersion, ignition mechanisms and blast energy estimates.
5. I also have significant experience serving as a multi-disciplined team leader in
use of multi-disciplined and state-of-the-art approaches and technologies for data and evidence
gathering, site evaluation, and data analysis. These investigations have been conducted in
conjunction with multiple agencies investigating on behalf of the federal government, including the
Federal Mine Safety and Health Administration (“MSHA”), the Occupational Safety and Health
Administration (“OSHA”), the U.S. Chemical Safety and Hazard Investigation Board (“CSB”), and
7. I hold a Ph.D. from the School of Engineering and Electronics, Building Research
Establishment Center for Fire Safety Engineering, at the University of Edinburgh in Edinburgh,
Scotland. I also hold Masters of Science and Bachelor of Science degrees in Chemical Engineering
and a Bachelor of Arts degree in Social and Behavioral Sciences from the University of South
Member of the Society of Fire Protection Engineers and the International Association of Wildland
Fire.
10. I have been involved directly in the investigation of the April 5, 2010 fatal explosion
(the “Explosion”) at Performance Coal Company’s (“Performance”) Upper Big Branch Mine-South
(the “Mine”). My involvement has included traveling underground in the Mine as Performance’s
representative on investigative mapping and photography teams organized under the direction of
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MSHA and the West Virginia Office of Miners’ Health Safety and Training (“OMHST”). MSHA
has restricted my participation to that of observer only, and accordingly I have been proceeding
11. I have read and am familiar with the document entitled “Performance Coal
Company Upper Big Branch Mine-South – Accident Investigation Protocols,” dated June 24, 2010,
MSHA’s Section 103(k) Order, dated June 25, 2010 and attached hereto at Appendix C,
12. The activity taking place at the Mine is an important explosion investigation.
Explosion investigations require a systematic approach to all aspects of the investigation with a high
degree of coordination of efforts to maximize the amount of information that can be gathered and
minimize the degradation of evidence during the investigation process. All investigation activities
must be conducted with respect for the idea that very important evidence could be found in almost
any location of the mine. This general concept applies to the Upper Big Branch investigation
must be conducted from the start with a very high degree of coordination, and under the conditions
that currently exist in the mine. A wide range of force and thermal indicators currently exist in the
mine as a result of the explosion, and those need to be documented as evidence. These indicators
will be used to establish the near and far field regions of the explosion debris field of the Mine,
relative to the area of origin of the Explosion. This requires carefully working backward, using the
forensic data, to establish force vectors and thermal indicators to reconstruct the Explosion
behavior. The systematic evaluation of these indicators will lead to areas of the Mine where
explosive gas concentrations could have accumulated and the Explosion may have ignited.
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b) In explosions such as this, the initial source of methane may not be the area
where it collected and mixed with the mine’s air to create an explosive mixture. The actual area
where a flammable cloud formed and where it met an ignition source may well be some distance
13. Because of this, a very detailed collection and analysis of the physical evidence in the
Mine is required. I have seen nothing in the existing MSHA Protocols that indicates a coordinated
effort for evidence collection is taking place that accounts for the degree of resolution required to
accurately reconstruct the release of gas, dispersion of that gas and the ignition of the explosion. I
see no procedure from MSHA detailing the overall methodology for how this investigation is to be
techniques for the mapping process. These procedures would generally address how items will be
mapped, the level of detail that will be mapped, and because multiple mapping teams are being used,
some form of quality assurance is required to insure the information being gathered is detailing data
collected across all teams. The consistency of the terminology and level of detail must be spelled out
and team members must be trained as to the procedure being used. These are essentially quality
control and process concerns. To date, I have seen no evidence that MSHA has provided for these
15. Some general problems I have observed with the investigation plan are:
a) Mapping of debris fields is taking place before these fields have been
photographed. Once the large teams (at least two teams of 4 to 5 people each) enter an area to map
it, the degree of physical disruption is extensive. There are approximately 22,000 linear feet of mine
entries that are highly sensitive to evidentiary findings, and an additional 125,000 linear feet of mine
entries that will also be mapped, all of which may contain critical information in determining the
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route causes for the explosion. At the current time, and after four days of mapping, less than 4,500
linear feet have been mapped. Photographs should be taken of the entire mine before any other
activity gets started in order to preserve, as well as possible, the post-explosion condition.
b) The explosion dynamics and thermal effects (Flames and Forces) teams
should have access to the mine with photographers prior to the general debris mapping. A great deal
of the Flames and Forces data could easily be destroyed by the mapping process. Just as critical, the
time delay currently ongoing as mapping is being done ahead of Flames and Forces analysis is clearly
resulting in the degradation of evidence. Much of the data used to establish explosion dynamics and
thermal information is based on dust agglomeration (deposits), dust compositions and fragile articles
that were moved by the explosive forces. This data exists on the ceilings, floors and walls of the
mine, as well as, equipment surfaces. Visible signs of degradation due to time and traffic exist in
various locations of the mine. Once compromised, this data is lost forever.
c) The mapping methods being used by MSHA are simplistic in nature. Tape
measures are being used to measure a linear distance down an entry and a second tape measure is
used to measure the distance from that centerline. This method will lead to a very large propagation
of measurement error as it progresses through the mine. In place of this method, a Total Station
measurement device can be used and the evidence points can be mapped with great accuracy
throughout the mine. The Total Station data can be tied directly to the existing mine location
system and allow the evidence to be very accurately placed on CAD drawings of the Mine. In
addition, the use of 3D Laser Scanning devices in critical areas once they are identified would greatly
increase the accuracy of the measurements of evidence. The use of these systems is commonplace
in most investigation of this scale. Frankly, the techniques for measuring and mapping being
employed by MSHA are antiquated and, given the scale of this investigation, not appropriate.
5
d) Any investigation team should be allowed to take its own photographs.
Photography is essential for documenting and understanding any evidence in a fire or explosion
analysis of a scene, especially of this magnitude. The quality of the photographs produced by
MSHA are limited by the sophistication of the equipment that they use. Lighting, perspective and
the use of clearly identifiable measurement indicators in the picture greatly enhance the investigative
value. Upon review of the MSHA photographs taken on July 1, 2010, much of the lighting effects
made reading the measurement devices hard to read. Performance’s investigation would greatly
benefit from using its own photography equipment and forensic techniques to insure the needed
quality and number of pictures required for the analysis techniques intended for use in this
investigation. Not allowing my investigation team to take our own photographs using our judgment,
high quality equipment, skills and training greatly reduces our ability to conduct this investigation. I
can think of no reason to prohibit a second set of high quality pictures to be taken.
16. Some specific examples of problems with the implementation of the MSHA
Protocols include:
a) On June 29, 2010, some mapping teams mapped only two cross-cuts of a
mine entry, while other teams mapped as many as ten cross-cuts during the exact same timeframe,
b) Though the MSHA Protocols require all mapping team members to sign
and date the map at the conclusion of a daily mapping shift, on June 29, 2010 MSHA investigators
made changes to my team’s map after I had signed and dated it, without asking me to approve that
change or to sign and data again after the change had been made.
c) At a June 15, 2010 examination of one of the mantrips that was in use at
the Mine at the time of the Explosion, I observed investigators collecting multiple dust samples
using the same brush and pan, which obviously risks cross-contamination of the samples.
6
d) Investigators have been routinely trampling the Mine’s travelways,
compressing the mine dust, and walking across debris fields. This is occurring because the
investigation protocols have not defined pathways or routed them around debris fields, as they
should. Total Station Surveying would reduce this risk, as there would be no need to walk through
the accident scene with water bottles, food wrappers, and other trash.
f) Investigators have been sitting down on evidence, and similarly have been
laying down their packs in the evidence. To avoid such spoliation, staging areas must be carefully
defined, with input from all interested parties, to minimize disturbance to potentially important
evidence.
g) MSHA investigators on the mapping teams have been laying down their
measuring tapes and making chalk marks in the mine dust and on top of other evidence without first
photographing the scene. This activity changes the dust and debris of the accident scene, and
ultimately impairs the ability to determine a timeline of the events. Use of Total Station Surveying
would avoid this spoliation, because it uses electronic mapping that does not physically contact or
having a complex and intensive network of hallways that are interconnected, the use of
reconstruction tools becomes essential. These tools consist of computer-based simulation models
that employ computational fluid dynamics codes and are used to develop credible scenarios for
source terms (methane leaks) near and far field dispersion (how the methane moves around the
mine given the prevailing ventilation) and explosion propagation (how the hot gasses and pressure
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18. These computer-aided tools are very sophisticated and have been developed and
validated over many years. Once credible release, dispersion and explosion propagation scenarios
have been developed using the physical evidence found and recovered in the mine, models will be
run using the computer tools. The computer simulations will need to be compared to the carefully
collected evidence from the mine to determine validity of the models. This emphasizes the
importance of the precision collection of all physical evidence from the mine.
that accounts for all aspects of evidence collection. This plan must allow for appropriate staging of
the evidence gathering so one phase does not destroy the artifacts needed by the next phase. To this
a) Photographs be taken of all areas of the Mine before any further evidence is
b) The Flames and Forces teams be allowed to tour and analyze the Mine areas
detailing equipment placement, defining walking areas and paths, and the
photographs. This will ensure quality and perspective and allow the level of
8
Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
Performance Coal Company
Upper Big Branch Mine-South
Accident Investigation
The underground portion of the investigation being conducted at Upper Big Branch Mine – South of the
April 5, 2010 explosion accident will be conducted pursuant to the following investigation protocols.
The parties involved in the underground portion of the investigation include: The Department of Labor,
Mine Safety and Health Administration (MSHA); the State of West Virginia, Office of Miners’ Health,
Safety and Training (OMHS&T); the State of West Virginia Governor’s Independent Investigation Panel
(GIIP); Performance Coal Company, including Massey Energy and any of its related entities (the
Company); and duly recognized representatives of the miners of the Upper Big Branch Mine, including
the United Mine Workers of America (UMWA).
General Protocols
2. Each investigation team will consist of at least one MSHA representative and at least one
OMHS&T representative. One Company representative, one GIIP representative, and one miner’s
representative may accompany each team. Additional members may accompany the team at the
discretion of the MSHA and OMHS&T representative(s).
3. The members of each team will remain together at all times while inside the mine.
4. Prior to traveling underground each day, specific assignments will be given to each team by
MSHA’s Accident Investigation Team, in consultation with the OMHS&T team.
5. The members of each team may take notes during the investigation.
6. One map only shall be produced by each Mapping Team for each area of the mine. All team
members shall sign and date the map when completed. It is anticipated that copies will be made at the
conclusion of each shift. They will be distributed to each investigation team.
8. For purposes of the mine dust survey, the underground workings in or near the area affected by
the explosion have been partitioned into 22 separate sections. Each of the Mine Dust Survey Teams will
be assigned one or more of these sections of the mine to take MSHA compliant mine dust samples.
9. All 22 section locations are marked on a single map that is included in the packages provided to
each Mine Dust Survey Team. The provided package also contains one or more individual section maps
that are applicable to each individual Mine Dust Survey Team. The section maps clearly indicate the
sample locations where that particular team is responsible for taking samples.
10. Only MSHA representatives will take samples. MSHA anticipates that on many occasions, it will
obtain excess materials in its samples; in such cases, it will share this excess with the parties so that they
may perform their own tests should they so desire.
11. Samples are to be taken at each location near to the center of the pillar. In the event that water,
debris, or other obstruction prevents an acceptable sample from being taken at the center of the pillar, it
is acceptable to relocate the sample to within 20 feet of the original location on either side of the
centerline of the pillar. This provides for a length of 40 feet along each pillar in which an acceptable
sample can be obtained. The MSHA and OMHS&T representative(s) will decide where to precisely take
each sample.
12. Sample tags shall be filled out at each sample location. The tag must indicate the sample location
and the type of sample taken.
13. If no acceptable sample can be obtained within the 40 feet length, a sample tag shall still be
completed that includes the location identification. Also, the reason for no sample shall be designated on
the tag.
14. If any Mine Dust Survey Team completes the sampling requirements for their assigned section or
sections, then they can provide assistance to any other Team that has not yet completed their sampling.
18. The primary purpose of the Electrical Teams will be to analyze circuits and equipment in
proximity to the point of origin in order to identify potential ignition sources.
19. Machine mounted methane monitors from all working sections will be tested in place and/or
taken into custody by MSHA for further testing.
20. Electrical equipment and circuits not in proximity to the point of origin will be examined by
MSHA and OMHS&T electrical specialists to collect evidence and to assess compliance with the
requirements of 30 CFR and state law.
Photography Protocols
21. No photographs other than the official team photographs will be taken by any party. Only MSHA
or OMHS&T representatives will take photographs for each team.
22. The MSHA and OMHS&T persons on each Photography Team are responsible for determining
which photographs to take. GIIP, Company, and Miner’s Representatives may request additional
photographs. MSHA and OMHS&T will make good faith efforts to take these requested photographs.
23. A Photography Team will specifically photograph evidence to be removed from the mine for
investigative purposes. The MSHA representative(s) on this Photography Team will also act as the
MSHA representative(s) on the Evidence Collection and Testing Team.
24. When requested, a Photography Team will travel with the Flames and Forces Team and will take
photographs of any item designated by the MSHA or OMHS&T representatives on the Flames and
Forces Team.
25. A Photography Team will be responsible for taking photographs of damage to ventilation
controls, equipment, and other items of interest in the extended area affected by explosion forces, as
determined by the Accident Investigation Team.
26. From the time that any Photography Team enters the mine, methane will be continuously
monitored at their location. In the event that the methane concentration reaches 1% or greater, all
camera equipment will be moved to a location with less than 1% methane and all photography work will
cease until the methane concentration is reduced to less than 1%.
27. All photographs will be retained by MSHA. While underground, GIIP, Company, and Miner’s
Representatives Photography Team members may spend a reasonable time reviewing photographs
taken on the digital screen after they are taken. MSHA anticipates providing GIIP, the Company, and
Miner’s Representatives copies of each photograph on a disk (or via similar method) at the conclusion of
28. The primary purpose of the Flames and Forces Team is to:
a. Determine the extent of flame;
b. Determine the magnitude and direction of the primary forces;
c. Determine the location of the origin of the explosion;
d. Determine the fuel consumed in the explosion; and
e. Assist in identifying the source of ignition.
29. Locations for photographs will be annotated on the map, and a Photography Team will
accompany the Geologic Mapping Team upon completion of the geologic mapping to collect
photographs in annotated areas. Photograph collection will be at the direction of the MSHA and
OMHS&T geologic mapping team member.
30. Geologic mapping will be performed by the MSHA and/or OMHS&T representative. One map
only shall be produced by the Geological Mapping Team for each area of the mine. All team members
shall sign and date the map when completed. It is anticipated that copies will be made at the conclusion
of each shift. They will be distributed to each investigation team.
31. Individual members on the Geological Mapping Team are responsible for their own notes
regarding observations and interpretations of geologic or stress features, which may be kept separate
from the map.
32. Evidence will be identified by MSHA and OMHS&T investigators and tagged with reflective
markers, if necessary.
33. Only the Evidence Gathering Team will gather evidence. Other teams may identify and flag
evidence for referral to the Evidence Gathering Team.
34. After a Photography Team photographs the designated evidence, the Evidence Gathering Team
will place the evidence in containers to be removed from the mine.
35. All evidence tagged, photographed, and removed from the mine property will require Chain of
Custody sheets to be completed.
36. Upon removal from the underground areas of the mine, evidence will be placed in a secure
location on the surface area of the mine for transport to storage or testing facilities.
38. While at any MSHA or OMHS&T facility, each and every item shall be kept secure and access
shall be limited to only those persons necessary to conduct tests and examinations of the items.
39. All parties will be notified within 48 hours (or another reasonable time frame if not possible) of
any tests to be conducted on evidence, the locations and dates where evidence testing is to occur, and
any other relevant information, and given an opportunity to attend the testing. The parties will be
provided with testing protocols relating to the particular evidence at issue prior to the testing whenever
possible, and will be given an opportunity to provide input into the testing procedures to be followed.
This provision shall not apply to testing on rock dust samples.
40. Should MSHA or the OMHS&T so request, the Company will maintain control and custody over
any item returned to it pursuant to the same conditions listed above for a period of time to be specified
by MSHA or the OMHS&T.
41. Team members shall consult with each other prior to the removal of physical evidence. MSHA or
OMHS&T shall map the area prior to the removal of physical evidence.
Summary of Recognized as a pre-eminent industry expert in the mine health and safety
field. Experienced in all aspects of health and safety including safety systems
Expertise
management and leadership, assessments, benchmarking, risk analysis and
management, and litigation support. Served as the United States Assistant
Secretary of Labor for Mine Safety and Health from 2001 to 2004, the safest
years in U.S. mining history. Has also been recognized for his expertise and
knowledge of oil, gas, and mining laws and regulations. Has directed and
assisted local, state, and federal authorities on the development and revisions
to oil, gas, and mining legislation and regulations. Served as one of three
principal drafters of the International Labor Organization’s Convention 176
(Safety and Health in Mines).
Foreign China
Experience Canada
Chile
India
Mexico
Peru,
Poland
Ukraine
Indonesia
International Labor Organization – Geneva, Switzerland
Spain
• Lauriski, D. D., “The U.S. System for Mine Safety and Health,”
Mining Safety Institute of Peru, Sixth International Mining Safety
Seminar, Keynote Address, Lima, Peru, April 23, 2002.
• Lauriski, D. D., “Mine Safety and Health,” Joint Mine Safety and
Health Conference South Central District, Keynote Address, New
Orleans, Louisiana, March 11, 2003.
• Lauriski, D. D., “Mine Safety and Health,” 2003 National Coal Mine
Rescue, First Aid, Bench and Pre-shift Contest Awards Banquet,
Keynote Address, Louisville, Kentucky, September 19, 2003.
• Lauriski, D. D., “Mine Safety and Health,” Mine Safety and Health
Academy, Keynote Address, Mine Inspector Graduation
Ceremony, Beaver, WV, March 23, 2004.
•
• Lauriski, D. D., “Mine Safety and Health,” South Central Joint Mine
Health & Safety Conference, Keynote Address, Albuquerque, New
Mexico, March 30, 2004.
• Lauriski, D. D., “The State of Mine Safety and Health,” 2004 Mine
Health & Safety Conference, Keynote Address, University of Utah,
Salt Lake City, Utah, May 24, 2004.
The underground portion of the investigation being conducted at Upper Big Branch Mine – South of the
April 5, 2010 explosion accident will be conducted pursuant to the following investigation protocols.
The parties involved in the underground portion of the investigation include: The Department of Labor,
Mine Safety and Health Administration (MSHA); the State of West Virginia, Office of Miners’ Health,
Safety and Training (OMHS&T); the State of West Virginia Governor’s Independent Investigation Panel
(GIIP); Performance Coal Company, including Massey Energy and any of its related entities (the
Company); and duly recognized representatives of the miners of the Upper Big Branch Mine, including
the United Mine Workers of America (UMWA).
General Protocols
2. Each investigation team will consist of at least one MSHA representative and at least one
OMHS&T representative. One Company representative, one GIIP representative, and one miner’s
representative may accompany each team. Additional members may accompany the team at the
discretion of the MSHA and OMHS&T representative(s).
3. The members of each team will remain together at all times while inside the mine.
4. Prior to traveling underground each day, specific assignments will be given to each team by
MSHA’s Accident Investigation Team, in consultation with the OMHS&T team.
5. The members of each team may take notes during the investigation.
6. One map only shall be produced by each Mapping Team for each area of the mine. All team
members shall sign and date the map when completed. It is anticipated that copies will be made at the
conclusion of each shift. They will be distributed to each investigation team.
8. For purposes of the mine dust survey, the underground workings in or near the area affected by
the explosion have been partitioned into 22 separate sections. Each of the Mine Dust Survey Teams will
be assigned one or more of these sections of the mine to take MSHA compliant mine dust samples.
9. All 22 section locations are marked on a single map that is included in the packages provided to
each Mine Dust Survey Team. The provided package also contains one or more individual section maps
that are applicable to each individual Mine Dust Survey Team. The section maps clearly indicate the
sample locations where that particular team is responsible for taking samples.
10. Only MSHA representatives will take samples. MSHA anticipates that on many occasions, it will
obtain excess materials in its samples; in such cases, it will share this excess with the parties so that they
may perform their own tests should they so desire.
11. Samples are to be taken at each location near to the center of the pillar. In the event that water,
debris, or other obstruction prevents an acceptable sample from being taken at the center of the pillar, it
is acceptable to relocate the sample to within 20 feet of the original location on either side of the
centerline of the pillar. This provides for a length of 40 feet along each pillar in which an acceptable
sample can be obtained. The MSHA and OMHS&T representative(s) will decide where to precisely take
each sample.
12. Sample tags shall be filled out at each sample location. The tag must indicate the sample location
and the type of sample taken.
13. If no acceptable sample can be obtained within the 40 feet length, a sample tag shall still be
completed that includes the location identification. Also, the reason for no sample shall be designated on
the tag.
14. If any Mine Dust Survey Team completes the sampling requirements for their assigned section or
sections, then they can provide assistance to any other Team that has not yet completed their sampling.
18. The primary purpose of the Electrical Teams will be to analyze circuits and equipment in
proximity to the point of origin in order to identify potential ignition sources.
19. Machine mounted methane monitors from all working sections will be tested in place and/or
taken into custody by MSHA for further testing.
20. Electrical equipment and circuits not in proximity to the point of origin will be examined by
MSHA and OMHS&T electrical specialists to collect evidence and to assess compliance with the
requirements of 30 CFR and state law.
Photography Protocols
21. No photographs other than the official team photographs will be taken by any party. Only MSHA
or OMHS&T representatives will take photographs for each team.
22. The MSHA and OMHS&T persons on each Photography Team are responsible for determining
which photographs to take. GIIP, Company, and Miner’s Representatives may request additional
photographs. MSHA and OMHS&T will make good faith efforts to take these requested photographs.
23. A Photography Team will specifically photograph evidence to be removed from the mine for
investigative purposes. The MSHA representative(s) on this Photography Team will also act as the
MSHA representative(s) on the Evidence Collection and Testing Team.
24. When requested, a Photography Team will travel with the Flames and Forces Team and will take
photographs of any item designated by the MSHA or OMHS&T representatives on the Flames and
Forces Team.
25. A Photography Team will be responsible for taking photographs of damage to ventilation
controls, equipment, and other items of interest in the extended area affected by explosion forces, as
determined by the Accident Investigation Team.
26. From the time that any Photography Team enters the mine, methane will be continuously
monitored at their location. In the event that the methane concentration reaches 1% or greater, all
camera equipment will be moved to a location with less than 1% methane and all photography work will
cease until the methane concentration is reduced to less than 1%.
27. All photographs will be retained by MSHA. While underground, GIIP, Company, and Miner’s
Representatives Photography Team members may spend a reasonable time reviewing photographs
taken on the digital screen after they are taken. MSHA anticipates providing GIIP, the Company, and
Miner’s Representatives copies of each photograph on a disk (or via similar method) at the conclusion of
28. The primary purpose of the Flames and Forces Team is to:
a. Determine the extent of flame;
b. Determine the magnitude and direction of the primary forces;
c. Determine the location of the origin of the explosion;
d. Determine the fuel consumed in the explosion; and
e. Assist in identifying the source of ignition.
29. Locations for photographs will be annotated on the map, and a Photography Team will
accompany the Geologic Mapping Team upon completion of the geologic mapping to collect
photographs in annotated areas. Photograph collection will be at the direction of the MSHA and
OMHS&T geologic mapping team member.
30. Geologic mapping will be performed by the MSHA and/or OMHS&T representative. One map
only shall be produced by the Geological Mapping Team for each area of the mine. All team members
shall sign and date the map when completed. It is anticipated that copies will be made at the conclusion
of each shift. They will be distributed to each investigation team.
31. Individual members on the Geological Mapping Team are responsible for their own notes
regarding observations and interpretations of geologic or stress features, which may be kept separate
from the map.
32. Evidence will be identified by MSHA and OMHS&T investigators and tagged with reflective
markers, if necessary.
33. Only the Evidence Gathering Team will gather evidence. Other teams may identify and flag
evidence for referral to the Evidence Gathering Team.
34. After a Photography Team photographs the designated evidence, the Evidence Gathering Team
will place the evidence in containers to be removed from the mine.
35. All evidence tagged, photographed, and removed from the mine property will require Chain of
Custody sheets to be completed.
36. Upon removal from the underground areas of the mine, evidence will be placed in a secure
location on the surface area of the mine for transport to storage or testing facilities.
38. While at any MSHA or OMHS&T facility, each and every item shall be kept secure and access
shall be limited to only those persons necessary to conduct tests and examinations of the items.
39. All parties will be notified within 48 hours (or another reasonable time frame if not possible) of
any tests to be conducted on evidence, the locations and dates where evidence testing is to occur, and
any other relevant information, and given an opportunity to attend the testing. The parties will be
provided with testing protocols relating to the particular evidence at issue prior to the testing whenever
possible, and will be given an opportunity to provide input into the testing procedures to be followed.
This provision shall not apply to testing on rock dust samples.
40. Should MSHA or the OMHS&T so request, the Company will maintain control and custody over
any item returned to it pursuant to the same conditions listed above for a period of time to be specified
by MSHA or the OMHS&T.
41. Team members shall consult with each other prior to the removal of physical evidence. MSHA or
OMHS&T shall map the area prior to the removal of physical evidence.