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UNITED STATES OF AMERICA

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION


OFFICE OF ADMINISTRATIVE LAW JUDGES

PERFORMANCE COAL COMPANY, ) CONTEST PROCEEDING


)
Applicant, )
) Docket No. WEVA 2010-1190-R
v. ) Order No. 4642503-66
)
SECRETARY OF LABOR, MINE SAFETY )
AND HEALTH ADMINISTRATION, )
JOSEPH MAIN, ASSISTANT SECRETARY )
OF LABOR (MSHA), and NORMAN G. )
PAGE, MSHA INVESTIGATOR, ) Mine I.D. No. 46-008436
)
) Mine Name: Upper Big Branch Mine –
) South
Respondents. )
______________________________________________________________________________

SUPPLEMENTAL RESPONSE IN SUPPORT OF


EMERGENCY APPLICATION TO MODIFY, OR ALTERNATIVELY
FOR TEMPORARY RELIEF FROM, MSHA’S SECTION 103(k) ORDER

Performance Coal Company (“Performance”) files this supplemental response to the

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

Performance is an outlier that departs significantly from past protocols.


I. The Commission Has the Authority to Provide the Requested Relief.

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

immediately modified to permit Performance:

(i) to conduct its investigation using its own photography;

(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

(iv) to participate meaningfully in any destructive testing of evidence.

(Emergency Application at 3.)

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

section 105(d) . . . .”).

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 to conduct its own accident investigation.

II. Irreparable Injury is Occurring.

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

Performance’s worst fears.

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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

Virginia Office of Miners’ Health Safety and Training. (Id. ¶ 10.)

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

highly suspect from a scientific reliability standpoint.

! 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-

contamination of the samples. (Id.)

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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

packs in the evidence. (Id. ¶ 16(f).)

! 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

determined how much MSHA’s active mapping is disturbing the evidence

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 a result of the current protocol will be potentially irreparable.

III. MSHA’s Current Protocol is Inconsistent with Past Practice.

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

protocol is without precedent.

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

other mine accidents and disasters. (Id. ¶ 24.)

As a factual matter, therefore, the MSHA investigative protocol is unprecedented. Whatever

arguments MSHA might offer to justify its Section 103(k) order, it cannot plausibly argue that its current

protocol even remotely approaches standard agency practice.

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

mine to do precisely what MSHA has demonstrated it is safe to do – conduct an investigation.

Consequently, MSHA’s belief that it can use Section 103(k) to shut Performance out of its own mine

while MSHA conducts an investigation is without any factual or legal basis.

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

mutually agreeable location.

To the extent that the Court is not inclined either to modify Modification 66 to Order No.

4642503 as requested herein, or to order MSHA to modify it accordingly, Performance respectfully

requests that Modification 66 to Order No. 4642503 simply be VACATED.

7
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)

Attorneys for Applicant Performance Coal Company

8
UNITED STATES OF AMERICA
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

PERFORMANCE COAL COMPANY, ) CONTEST PROCEEDING


)
Applicant, )
) Docket No. WEVA 2010-1190-R
v. ) Order No. 4642503
)
SECRETARY OF LABOR, MINE SAFETY AND )
HEALTH ADMINISTRATION, )
JOSEPH MAIN, ASSISTANT SECRETARY OF )
LABOR (MSHA), and ) Mine I.D. No. 46-008436
NORMAN G. PAGE, MSHA INVESTIGATOR, )
) Mine Name: Upper Big Branch Mine - South
Respondents. )
______________________________________________________________________________

DECLARATION OF CHRISTOPHER F. SCHEMEL, PH.D.

Christopher F. Schemel, pursuant to 28 U.S.C. § 1746, submits the following declaration:

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.

2. I am currently employed by Packer Engineering Inc. as a Senior Vice President, a

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.

3. I focus my work on prevention and investigation of catastrophic thermal incidents,

including investigation and analysis of catastrophic explosion and fire events.

4. I have extensive experience investigating, reconstructing, and analyzing explosions

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

comprehensive incident investigations and scientific reconstruction analyses, specifically including

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

the U.S. Environmental Protection Agency (“EPA”).

6. As described more fully in my CV, attached hereto as Appendix A, I have sixteen

years of professional experience in fire and explosion analysis.

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

Florida in Tampa, Florida.

8. I am a Senior Member of the American Institute of Chemical Engineers and a

Member of the Society of Fire Protection Engineers and the International Association of Wildland

Fire.

9. As listed on my attached CV, I have authored or co-authored numerous publications

and presentations on fire and explosion safety, investigation, and analysis.

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

2
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

entirely at MSHA’s direction to this point.

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,

attached hereto at Appendix B (“MSHA Protocols”). I also have reviewed Modification 66 to

MSHA’s Section 103(k) Order, dated June 25, 2010 and attached hereto at Appendix C,

incorporating the MSHA Protocols into the 103(k) Order.

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

specifically in several ways:

a) The exact location of the Explosion is as of yet unknown. The 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.

3
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

from the leak source.

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

conducted to allow for a scientific reconstruction of this incident.

14. Specifically, I have seen no documents detailing consistency of data gathering

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

concerns with respect to the gathering and preservation of evidence.

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

4
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,

indicating a wide discrepancy of precision between the various mapping teams.

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

debris and other evidence to conduct electronic mapping.

e) The absence of a protocol for handling trash has resulted in spoliation of

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

disturb the Mine surfaces being mapped.

17. When conducting an explosion investigation in an area of unknown origin and

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

moved through the complex network that is the mine).

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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.

19. In my professional opinion, MSHA needs to develop a cohesive investigation plan

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

end I propose the following:

a) Photographs be taken of all areas of the Mine before any further evidence is

removed or further mapping takes place.

b) The Flames and Forces teams be allowed to tour and analyze the Mine areas

as soon as possible, and before any further mapping takes place.

c) Procedures be developed that address consistency of mapping methods to be

used team to team.

d) Procedures be developed for preserving the scene as well as possible,

detailing equipment placement, defining walking areas and paths, and the

removal of post accident trash and debris.

e) Total Station and 3D Laser Scanning measurement techniques should be

used for the mapping process to add accuracy and sophistication.

f) The Performance investigation team must be allowed to take its own

photographs. This will ensure quality and perspective and allow the level of

detail required for an accurate reconstruction of this event.

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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

U.S. Department of Labor State of West Virginia


Mine Safety and Health Administration Office of Miners’ Health Safety and Training
1301 Airport Road 1615 Washington Street, East
Beaver, West Virginia 25813-9426 Charleston, West Virginia 25311-2126

Upper Big Branch Mine – South – Accident Investigation Protocols

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

1. The underground investigation will consist of the following teams:

a. Five Mapping Teams;


b. Ten Mine Dust Survey Teams;
c. Three Electrical Teams;
d. Three Photography Teams;
e. One Flames and Forces Team;
f. One Geologic Mapping Team;
g. One Evidence Gathering Team.

MSHA and OMHS&T may add additional teams as necessary.

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.

Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix B


Mapping Protocols

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.

7. The originals will be retained by MSHA.

Mine Dust Survey Protocols

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.

15. Sampling bags and tags will be provided to each Team.

16. Evidence is not to be disturbed during the sampling process.

Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix B


17. Samples are to be taken out of the mine at the end of the shift. All samples are to be transferred to
the custody of MSHA’s investigators on the Evidence Gathering Team. The Evidence Gathering Team
will store all samples in a secure location.
Electrical Protocols

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

Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix B


each shift. Should this not be feasible on particular occasions, MSHA will provide copies within 24 or 48
hours after they have been taken.

Flames and Forces Protocols

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.

Geological Mapping Protocols

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.

Evidence Gathering Protocols

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.

Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix B


37. MSHA and OMHS&T shall maintain custody and control over the items they have received or
taken at all times unless release of the items is necessary for the purpose of allowing testing by an
outside laboratory. In such an event, MSHA and OMHS&T shall agree on the best means to ensure that
adequate custody is maintained. Except as set out below, MSHA and OMHS&T shall also protect and
preserve the items in their custody in the same condition as when the items were received from the
Company.

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.

Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix B


Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix C
Performance Supplemental Response Exhibit 2
Performance Supplemental Response Exhibit 2
Performance Supplemental Response Exhibit 2
Performance Supplemental Response Exhibit 2
Performance Supplemental Response Exhibit 2
Performance Supplemental Response Exhibit 2
Performance Supplemental Response Exhibit 2
David D. Lauriski, C.M.S.P
President

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).

Other areas of expertise include: Operations management – site and executive


levels; Mine safety and health systems and processes; Mine Rescue and
Emergency Preparedness; Government Affairs including regulatory/legislative
matters; Labor/management relations; Strategic planning; and Change Agent.

Experience • 2006-Present – President, Safety Solutions International


Responsible for the day to day management and development of the
Company’s consulting and marketing operations. Primary services
provided are in the areas of leadership, regulatory and government
affairs, and safety and health management systems.
! Management of the Company’s day-to-day operations.
! Provide advisory consulting services to mining operations,
government agencies, legal firms, manufacturers, and trade
associations in all areas of safety management and leadership,
and in regulatory, legal, and legislative matters.
! Principal marketer of the Company’s consulting services and
products.

• 2004-2006 – Executive Director, John T. Boyd Company


Responsible for the day-to-day management and development of the
Company’s worldwide services in safety and health management systems.
! Established the company’s presence in mine safety management
worldwide.
! Provide advisory consulting services to mining operations,
government agencies, legal firms, and trade associations in all areas
of mine safety management and in regulatory, legal, and legislative
matters.
! Marketing of the Company’s services with principal focus in
management and health and safety.

Safety Solutions International

Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A


David2D. Lauriski, 2

• 2001-2004 – Assistant Secretary of Labor, Mine Safety and


Health Administration
Responsible for carrying out the mandates of the Mine Safety and
Health Act of 1977 and in leading the Agency in a manner consistent
with the President’s agenda and standards. In fulfilling these
responsibilities, duties included:

! Management of the Agency’s 2,300 employees and its annual budget


of nearly $300 million.
! Development and management of the Agency’s Strategic Plan.
! Worked closely with the Secretary of Labor, the White House, both
Houses of the United States Congress, and other federal and state
agencies and departments. Key among those Agencies was the
Office of Surface Mining, the National Institute of Occupational Safety
and Health, the Bureau of Land Management, and the Office of
Management and Budget.
! Primary United States government representative with other
governments on mine safety and health matters. Principal among
those governments were the People’s Republic of China, India, Peru,
Mexico, and the Ukraine.
! Executive level decision maker regarding Agency policy and
regulatory initiatives.

• 1999-2001 – President, Lauriski & Associates LLC


Management of an independent consulting firm providing services in
leadership training, management services, regulatory/legislative
affairs, and mine safety and health services.

• 1995-1999 - General Manger, Energy West Mining Company


Responsible for the daily operations for PacifiCorp’s large
underground coal mining company which included two highly
productive longwall mines, a full wash preparation plant, an
exploration department, a large warehousing facility, and a training
center.
! Grew annual production levels by 24% to 8.5 million tons per
annum.
! Successfully implemented and oversaw an effective
labor/management change process which led to significant cost
reductions, and improved productivity levels.
! Led the company to being recognized as the safest underground
coal mining company of the largest 25 coal producers in the
United States.
! Developed and managed the company’s strategic plan.
! Coordinated the Company’s production and other mining activities
with PacifiCorp’s power plants and other end users.
! Effectively oversaw and grew the mining company’s outside coal
markets while providing budgeted production levels to the
Company’s captive market.

• 1992-1995 – Director, Safety and Health, Government and


Environmental Affairs, and Labor Relations, Interwest Mining
Company

• 1984-1992 – Director, Health, Safety and Training, Energy


West Mining Company

Safety Solutions International


Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A
David3D. Lauriski, 3

• 1970–1984 - Engineering Technician, Safety Engineer, Safety


Director, and Industrial Relations Manager, Kaiser Steel
Corporation, Sunnyside Coal Mines

Foreign China
Experience Canada
Chile
India
Mexico
Peru,
Poland
Ukraine
Indonesia
International Labor Organization – Geneva, Switzerland
Spain

Education Business Management, University of Phoenix


Utah State University

Registration and Certified Mine Safety Professional – Registration # 119


Underground and Surface Coal Mine Examiner and Foreman
Certificates MSHA Instructor Certifications

Awards • 2006 Daniel C. Jackling Award, Society of Mining, Metallurgy and


Exploration

• 2005 Guiding Light Recipient, International Society of Mine Safety


Professionals

• 2004 Safety Professional of the Year, Institute of Mining Health &


Safety Research

• 2004 Albert C. Shoemaker Award, Pennsylvania State University

• 2004 Vital Speeches of the Day, “Protecting the Worker”

• 2003 President’s Citation for Excellence in Safety, Society of Mining


Engineers

• 002 Highest Degree of Safety, International Society of Mine Safety


Professionals

• 1996 Gold Circle Award for Contributions to Mining Education,


College of Eastern Utah

• 1994/95 International Labor Organization, U.S. Mining Employer


Representative, Convention 176, Health and Safety in Mines. Ratified
Safety Solutions International
Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A
David4D. Lauriski, 4

by the United States Senate, 2000

• 1987 Safety Professional of the Year, College of Eastern Utah

• 1984 Professional of the Year, Rocky Mountain Coal Mine


Rescue Association

Organizations • Society of Mining, Metallurgy, and Exploration (SME)

• Board of Directors, International Society of Mine Safety Professionals

• Board of Directors, National Mining Hall of Fame and Museum,


Leadville, Colorado

• Rocky Mountain Coal Mining Institute – Founding Member

• National Mining Association

• National Mine Rescue Association

• Past Chairman, United States Coal Mine Safety Committee, former


American Mining Congress

• Past Chairman, Utah Coal Operators Safety Committee

Papers - • Lauriski, D. D. and Guymon, R. M., “Safety Management: What it


Means to Us,” Mining Engineering, October, 1989.
Presentations
• Lauriski, David D., “The State of U.S. Mine Safety,” American
Longwall Magazine, August 2005.

• Lauriski, Dave D., “Protecting the Worker – Improving Mine


Safety,” Vital Speeches of the Day, 2004.

nd
• Lauriski, D. D., “Mine Safety and Health,” 62 Annual Meeting of
the Kentucky Mining Institute, Keynote Address, Prestonsburg,
Kentucky, August 24, 2001.

• Lauriski, D. D., “Mine Safety and Health,” Northwest Mining


Association's 107th Annual Meeting, Keynote Address, December
7, 2001.

• Lauriski, D. D., “Mine Safety and Health,” 2001 National Mine


Rescue Contest Awards Banquet, Keynote Address, Louisville,
Kentucky, September 21, 2001.

• Lauriski, D. D., “Mine Safety and Health,” National Mining


Association's Mining Lawyers Conference, Keynote Address, Key
West, Florida, October 20, 2001.

• Lauriski, D. D., “Mine Safety and Health,” West Virginia Coal


Association
• 29th Annual Mining Symposium, Charleston, WV, January 10,
2002.

Safety Solutions International


Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A
David5D. Lauriski, 5

• Lauriski, D.D., Mine Safety and Health,” Kansas Aggregate


Producers' Association's Annual Safety Awards Luncheon,
Wichita, Kansas, January 18, 2002

• Lauriski, D. D., “Mine Safety and Health,” Knott/Floyd Holmes


Safety Council, Keynote Session, Hindman, Kentucky, January 24,
2002.

• Lauriski, D. D., “Mine Safety and Health,” Salt Institute's 2002


Annual Meeting, Keynote Address, Key Biscayne, Florida, March
9, 2002.

• 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,” 22nd Annual Georgia


Mining Association and Georgia Crushed Stone Association
Safety Workshops, Keynote Address, Macon, GA., May 1, 2002.

• Lauriski, D. D., “Mine Safety and Health,” 2002 Joint National


Meeting of the Joseph A. Holmes Safety Association, National
Association of State Mine Inspection Agencies, and the Mine
Safety Institute of America Awards Banquet, Keynote Address,
Virginia Beach, Virginia, June 6, 2002.

• Lauriski, D. D., “Mine Safety and Health,” Rocky Mountain Coal


Mining Institute Annual Meeting, Keynote Address, Breckenridge,
Colorado, July 1, 2002.

• Lauriski, D. D., “Mine Safety and Health,” Wyoming Mining


Association Safety and Reclamation Luncheon, Keynote Address,
Moran, Wyoming, June 21, 2002.

• Lauriski, D. D., “Mine Safety and Health,” 33rd Annual Institute on


Mining Health, Safety and Research, Keynote Address, Roanoke,
Virginia, August 12, 2002.

• Lauriski, D. D., “Mine Safety and Health,” 2002 National and


International Mine Rescue Contest Awards Banquet, Keynote
Address, Reno, Nevada, August 22, 2002.

• Lauriski, D. D., “Abandoned Mine Safety,” 2002 Annual


Conference National Association of Abandoned Mine Land
Programs, Park City, Utah, Sept. 16, 2002.

• Lauriski, D. D., “Mine Safety and Health,” 76th Annual Sentinels of


Safety Awards Presentation, National Mining Association, Keynote
Address, Washington, D.C. September 19, 2002.

• Lauriski Dave D., “Mining Safety Supervision In the United States,”


st
1 International Forum on Work Safety, Keynote Address, Beijing,
China, October 10, 2002.

• Lauriski, D. D., “A Changing Industry,” National Research Council,


Committee on Earth Sciences, Washington, D.C., November 20,
2002.

Safety Solutions International


Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A
David6D. Lauriski, 6

• Lauriski, D. D., “Mine Safety and Health,” West Virginia Coal


Association, 30th Annual Coal Symposium Keynote Session,
Charleston, W.Va., January 9, 2003.

• Lauriski, D. D., “Mine Safety and Health,” National Stone, Sand


and Gravel Association Annual Convention, Keynote Address,
Orlando, Florida, February 11, 2003.

• 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,” Southeastern Missouri


Mine Safety Association, Keynote Address, Annual State Awards
Banquet, Park Hills, Missouri, March 20, 2003.

• Lauriski, D. D., “Mine Safety and Health,” North Carolina


Department of Labor, Mine and Quarry Bureau, Keynote Address,
26th Mine Safety and Health Conference, Wilmington, North
Carolina, March 27, 2003.

• Lauriski, D. D., “Mine Safety and Health,” Kentucky Coal


Operators & Associates Meeting, Keynote Address, Pikeville,
Kentucky, April 17, 2003.

• Lauriski, D. D., “Mine Safety and Health,” Industrial Minerals


Association - North America Annual Meeting, Keynote Address,
Ponte Vedra Beach, Florida,
April 28, 2003.

• Lauriski, D. D., “Mine Safety and Health,” Southern Regional Mine


Rescue Contest Awards Banquet, Keynote Address, New Iberia,
Louisiana, May 3, 2003.

• Lauriski, D. D., “The Quecreek Rescue,” Quecreek Anniversary


Celebration, Keynote Address, Somerset, Pennsylvania, July 26,
2003.

• Lauriski, D. D., “Safety and Health in Mines,” National Safety


Council 91st Annual Congress and Exposition, Keynote Session,
Chicago, Illinois, September 9, 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,” 77th Annual Sentinels of


Safety Awards Presentation, Keynote Address, National Mining
Association, Washington, D.C., October 2, 2003.

• Lauriski, D. D., “Mine Safety and Health,” 2003 TRAM Conference


and Mine Instructor Seminar, Keynote Address, Beckley, West
Virginia, October 14, 2003.

• Lauriski, D. D., “Mine Rescue and Mine Safety,” 79th Annual


National Mine Rescue Association, Keynote Address, Washington,
Pennsylvania, November 14, 2003.

Safety Solutions International


Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A
David7D. Lauriski, 7

• Lauriski, D. D., “Mine Safety and Health,” Inspector Graduation,


National Mine Health and Safety Academy, Keynote Address,
Beaver, West Virginia, December 18, 2003.

• Lauriski, D. D., “Mine Safety and Health,” West Virginia Coal


Association, 2004 Coal Symposium, Charleston, West Virginia,
January 15, 2004.

• Lauriski, D. D., “Mine Safety and Health,” Blasting Vibration


Technology Conference, Keynote Address, Key West, Florida,
January 19, 2004.

• Lauriski, D. D., “Alliances for Mine Safety and Health,” Signing


Agreement with International Union of Operating Engineers
Annual Meeting, Bal Harbor, Florida, January 20, 2004.

• Lauriski, D. D., “Mine Safety and Health,” Indiana Mineral


Aggregates Association Safety Achievement Awards Luncheon,
Keynote Address, Indianapolis, Indiana, February 5, 2004.

• Lauriski, D. D., “Mine Safety and Health,” Washington Group


International Safety Workshop, Keynote Address, Boise, ID,
February 10, 2004.

• 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., “Creating a Culture of Safety,” 2004 G. Albert


Shoemaker Lecture in Mineral Engineering, Pennsylvania State
University, PA, April 23, 2004.

• Lauriski, D. D., “Mine Safety and Health,” Annual Mine Ventilation


Symposium, Keynote Address, Anchorage, Alaska, May 17, 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.

• Lauriski, D.D., “Mine Safety and Health,” 2004 Metal and


Nonmetal National Mine Rescue Contest, Awards Banquet,
Keynote Address, Reno, NV, July 15, 2004.

• Lauriski, D. D., “Alliances in Mine Safety and Health,” 20th Annual


Ironworkers Training Meeting, Keynote Address, San Diego, CA,
July 18, 2004.

• Lauriski, D. D., “Mine Safety and Health Alliances,” United States


Coal Summit 2004, Keynote Address, Beckley, WV, July 22, 2004.

• Lauriski, D. D., “Mine Safety and Health,” 2004 Georgia Mining


Association Annual Convention, Keynote Address, Hilton Head,
SC, July 24, 2004.
Safety Solutions International
Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A
David8D. Lauriski, 8

• Lauriski, D. D., “Mine Safety and Health,” Mine Inspector


Graduation Ceremony, Keynote Address, MSHA Academy,
Beckley, WV, July 27, 2004.

• Lauriski, D. D., “Enforcement Strategies: Targeting Resources,


Measuring Results,” United State Department of Labor Senior
Executive Service Leadership Training, Washington, D.C., July 28,
2004.

• Lauriski, D. D., and Correll, J. C., “Safety and Health in Mining,”,


2004 National Safety Congress, Keynote Session, New Orleans,
LA, September 14, 2004.

• Lauriski, D. D., “Getting to Zero: Stakeholders Role in Making an


Industry Free of Fatalities and Injuries,” 2004 World MINExpo, Las
Vegas Convention Center, Las Vegas, NV, September 28, 2004.

• Lauriski, D. D., “Mine Safety and Health,” 78th Annual Sentinels of


Safety Awards Presentation, Keynote Address, MINExpo 2004,
Las Vegas, NV, September 28, 2004.

• Lauriski, D. D., “Mine Safety and Health,” 2004 TRAM-National


Mine Instructor's Seminar, Keynote Address, National Mine Health
and Safety Academy, Beckley, WV, October 13, 2004.

• Lauriski, D. D., “Mine Safety and Health Issues of the Day,”


International Mine Safety Professionals Annual Meeting, Keynote
Address, Clearwater, FL, June, 2006.

• Lauriski D. D., “The State of Mine Safety Today,” Rocky Mountain


Coal Mining Institute, Annual Meeting, Steamboat Springs, CO, June
2006

Safety Solutions International


Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab A
Performance Coal Company
Upper Big Branch Mine-South
Accident Investigation

U.S. Department of Labor State of West Virginia


Mine Safety and Health Administration Office of Miners’ Health Safety and Training
1301 Airport Road 1615 Washington Street, East
Beaver, West Virginia 25813-9426 Charleston, West Virginia 25311-2126

Upper Big Branch Mine – South – Accident Investigation Protocols

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

1. The underground investigation will consist of the following teams:

a. Five Mapping Teams;


b. Ten Mine Dust Survey Teams;
c. Three Electrical Teams;
d. Three Photography Teams;
e. One Flames and Forces Team;
f. One Geologic Mapping Team;
g. One Evidence Gathering Team.

MSHA and OMHS&T may add additional teams as necessary.

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.

Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab B


Mapping Protocols

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.

7. The originals will be retained by MSHA.

Mine Dust Survey Protocols

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.

15. Sampling bags and tags will be provided to each Team.

16. Evidence is not to be disturbed during the sampling process.

Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab B


17. Samples are to be taken out of the mine at the end of the shift. All samples are to be transferred to
the custody of MSHA’s investigators on the Evidence Gathering Team. The Evidence Gathering Team
will store all samples in a secure location.
Electrical Protocols

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

Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab B


each shift. Should this not be feasible on particular occasions, MSHA will provide copies within 24 or 48
hours after they have been taken.

Flames and Forces Protocols

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.

Geological Mapping Protocols

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.

Evidence Gathering Protocols

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.

Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab B


37. MSHA and OMHS&T shall maintain custody and control over the items they have received or
taken at all times unless release of the items is necessary for the purpose of allowing testing by an
outside laboratory. In such an event, MSHA and OMHS&T shall agree on the best means to ensure that
adequate custody is maintained. Except as set out below, MSHA and OMHS&T shall also protect and
preserve the items in their custody in the same condition as when the items were received from the
Company.

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.

Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab B


Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab C
Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab D
Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab D
Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab D
Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab D
Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab D
EXHIBIT 1
UNITED STATES OF AMERICA
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

PERFORMANCE COAL COMPANY, ) CONTEST PROCEEDING


)
Applicant, )
) Docket No. WEVA 2010-1190-R
v. ) Order No. 4642503
)
SECRETARY OF LABOR, MINE SAFETY AND ) Mine I.D. No. 46-008436
HEALTH ADMINISTRATION, )
)
Respondent. ) Mine Name: Upper Big Branch Mine - South
)
______________________________________________________________________________

DECLARATION OF MICHAEL J. LAWLESS, P.E., C.M.S.P.

Michael J. Lawless, pursuant to 28 U.S.C. § 1746, submits the following declaration:

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.

2. As described more fully in my CV, attached hereto as Appendix A, I am a Certified

Mine Safety Professional and have over forty years of mining industry experience in various

capacities with coal companies and with the Mine Safety and Health Administration (“MSHA”). I

am a registered Professional Engineer in the State of West Virginia and I hold a Masters Degree in

Industrial Hygiene.

3. I currently provide consulting services in the field of mining health and safety.

4. I previously served in several capacities at MSHA for over 30 years. Most recently, I

served as the Deputy Administrator for MSHA’s national office from December 1999 to July 2002.

I was the Deputy Administrator in charge of field operations. In that role, all Coal Mine Safety

district managers reported to me. My duties as Deputy Administrator required me to coordinate the

activities of the eleven MSHA districts, as well as coordinating their interpretation of the regulations.

OTMTD and/or Reply or STNOC Exhibit 1


I had final approval authority for petitions for modification, and also was involved in MSHA’s

responses to mine fires, fatal accidents, and other life- and property-threatening occurrences at

underground coal mines. During my tenure as Deputy Administrator, there were three mine fires, a

major impoundment spill, and a mine explosion, and I was involved in MSHA’s actions in response

to these incidents.

5. From October 1998 to December 1999, I served as both the Acting Director and

Deputy Director of MSHA Technical Support. I provided advice and assistance to managers of the

Coal and Metal inspection divisions, as well as to the Assistant Secretary for MSHA whenever there

was a disaster or unusual inspection problem in the field requiring technical expertise, specifically

including mine fires and explosions. During my tenure in that position, there were three significant

mine fires that required Headquarters technical oversight.

6. I served as an MSHA District Manager in three separate MSHA districts from 1990

to 1998. I was charged with evaluating and approving all mine engineering plans submitted to the

District, including particular attention to the engineering aspects of ventilation and roof control

measures, and determining whether they complied with applicable regulations. In addition to

approving mine plans, I also supervised the District’s enforcement of all elements of the mine safety

and health regulations.

7. While I was serving as MSHA District Manager for District 5 based in Norton,

Virginia, the Southmountain Mine explosion occurred in December 1992. As District Manager, I

was in charge of the attempts to recover the miners trapped underground and, later, the recovery of

the victims. These rescue and recovery operations involved intensive mine rescue, mine fire

analysis, and disaster response activities.

8. While an MSHA District Manager for District 5, I served on a three-person

committee charged with interviewing and selecting candidates for MSHA enforcement supervisory

2
OTMTD and/or Reply or STNOC Exhibit 1
positions. In that role, I was involved in the selection of a majority of the MSHA inspection

supervisors. I also served as a member of a steering committee to develop a national policy

regarding the ventilation of bleeders and gobs.

9. I also served as District Manager for District 4, based in Mt. Hope, West Virginia.

District 4 contains multiple large underground coal mines, including Performance Coal Company’s

(“Performance”) Upper Big Branch Mine – South (the “Mine”), and is characterized by numerous

coal seams with varying conditions and problems, all requiring a broad understanding of different

mining techniques and designs.

10. I also served as District Manager for District 11, based in Birmingham, Alabama.

District 11 is notable for its large, deep, and very gassy coal mines. During my tenure as District

Manager, I oversaw and approved fire-fighting efforts to control a four-month mine fire caused by

spontaneous combustion in the Jim Walter Resources No. 5 Mine.

11. Prior to my tenure as District Manager, I served as a subdistrict manager for MSHA.

In that position, I was in charge of the inspection of all coal mines in northern West Virginia, and in

western Maryland.

12. From 1976 to 1989, I served as the Chief of Engineering Services for MSHA District

3. I was in charge of evaluating and recommending for approval or disapproval all engineering plans

required by the federal regulations for all coal mines in northern West Virginia, Maryland, and Ohio.

I also was in charge of accident investigations in the district and served on several national

committees focused on industrial hygiene, ventilation, and roof control.

13. As demonstrated in detail in my attached CV, I am familiar with the policies and

procedures of MSHA and the applicable federal and State of West Virginia statutes and regulations.

I have inspected mines as an Authorized Representative of the Secretary of Labor and have

supervised enforcement personnel as they have enforced the requirements of the Mine Act.

3
OTMTD and/or Reply or STNOC Exhibit 1
14. I am generally familiar with the tragic accident that occurred at the Mine on April 5,

2010 (the “Accident” or “Explosion”). Also, from my experience as District Manager for District 4,

I am generally familiar with this Mine, with the Eagle Seam of coal mined at this Mine, and the

general conditions and characteristics of the Eagle Seam and the other coal seams in that area.

15. I have reviewed and am familiar with the document entitled “Performance Coal

Company Upper Big Branch Mine-South – Accident Investigation Protocols,” dated June 24, 2010,

attached hereto at Appendix B (“MSHA Protocols”). I also have reviewed Modification 66 to

MSHA’s Section 103(k) Order, dated June 25, 2010 and attached hereto at Appendix C,

incorporating the MSHA Protocols into the 103(k) Order.

16. I also have reviewed MSHA’s 2004 reports on methane floor outbursts at the Upper

Big Branch Mine – South, entitled Evaluation of Controls on Floor Bursts at Performance Coal Company,

Upper Big Branch Mine – South, MSHA I.D. No. 46-08436 and Methane Floor Outbursts at Performance

Coal Company’s Upper Big Branch Mine – South, MSHA I.D. 46-08436, dated March 4, 2004 and July 15,

2004, respectively (“Outburst Reports”).

17. I also have reviewed the Declaration of Norman G. Page, dated July 1, 2010 (“Page

Declaration”), which I understand has been submitted in this matter.

18. I have reviewed gas readings taken at various points of the Mine over the course of

the several months since April 5, 2010.

19. As set out more fully below, it is my professional opinion that MSHA’s refusal to

permit Performance to: (i) take photographs during the underground investigation; (ii) use accurate,

modern mapping techniques; (iii) take parallel dust samples; and (iv) be present during the

destructive testing of dust samples, cannot be justified by safety concerns or the current condition of

the Mine. There are easily implemented, reasonably tailored measures sufficient to address the

4
OTMTD and/or Reply or STNOC Exhibit 1
identified safety concerns without precluding Performance from performing its statutorily mandated

accident investigation under Section 103(d) of the Mine Act.

20. The concerns set out in the Page Declaration are not well-grounded, are exaggerated,

and do not support the restrictions imposed by the MSHA Protocols.

21. To my knowledge, MSHA has never imposed such wide-ranging restrictions on any

mine operator during an accident investigation. Typically, in my experience, MSHA accident

investigations are collaborative efforts between the agency and the operator in which MSHA often

relies on photographs taken by the operator and on the operator’s maps and surveys. This

collaboration typically results in a more efficient and thorough investigation. Indeed, in my

experience, MSHA’s final accident investigation reports normally incorporate and attach

photographs taken by the operators and include maps and surveys produced by the operators.

22. I am familiar with numerous complex, high-profile investigations, including the

multi-fatality investigations of the Sago Mine disaster and the Jim Walter Resources double

explosion, where MSHA permitted operators to actively investigate alongside the MSHA

investigators. These investigations were collaborative, safe, and produced more reliable findings and

conclusions than would an investigation that excludes the operator and relies solely on MSHA

photography and MSHA manual mapping.

Conditions of the Mine

23. I have reviewed the sections of the Page Declaration regarding the condition of the

Mine and the history of methane outbursts at the Mine. I also have reviewed the Outburst Reports

and the gas readings taken at the Mine since the Explosion. The concerns expressed in the Outburst

Reports related to, and were limited to, conditions existing at the Mine during active longwall

mining. Thus, the concerns expressed in the Outburst Reports are not implicated by this

underground investigation because the Mine is not currently producing coal and instead has been

5
OTMTD and/or Reply or STNOC Exhibit 1
idle for more than three months. Because methane outbursts can occur where changes in strata

pressure arise from mining activity and cause breaks in the strata, such outbursts would not likely

occur in a mine that has been idle for three months. These historical methane outbursts or

inundations therefore should not be a factor in crafting the accident investigation protocol for the

Upper Big Branch explosion. No circumstances described in the Outburst Reports warrant or

support the extreme position MSHA has taken in the MSHA Protocols restricting Performance’s

photography, mapping, and dust sampling.

24. The gas readings obtained at the Mine since the Explosion reveal a stable mine gas

environment, with predictable straightline methane liberation, that in my professional opinion is safe

for a thorough and comprehensive underground accident investigation, including use of digital

photography and electronic mapping and surveying equipment. The gas readings do not support the

limitations placed on the operator by the MSHA Protocols.

Photography Protocols

25. I am unaware of any previous accident investigation in which MSHA purported to

limit the operator’s right to take photographs during the underground investigation. In my

experience, it is routine for MSHA photographers and the operator’s photographers to work side by

side during an accident investigation. This ensures that the accident site is recorded in the most

complete and accurate way possible.

26. In other high profile accident investigations, including investigations where methane

was a concern, MSHA has permitted operator representatives to take photographs.

27. To my knowledge, during the 2006 Sago explosion investigation MSHA permitted

the operator’s representatives (including professional photographers) to take photographs without

restriction. Likewise, during the 2001 Jim Walter Resources explosion investigation, MSHA placed

no restrictions on the operator’s ability to take photographs during the underground investigation.

6
OTMTD and/or Reply or STNOC Exhibit 1
28. MSHA’s final accident investigation reports frequently include photographs that

were taken by the operator’s representatives during the investigation.

29. The MSHA Protocols place certain conditions on MSHA’s own photography,

including (i) communications between the photography teams and the outside; (ii) continuous

methane monitoring; and (iii) restricting photography from any area of the Mine in which methane

concentrations reach 1%. Those conditions are reasonable and narrowly tailored means sufficient to

control the environment and eliminate the risk of underground photography during the accident

investigation, including any purported increased risk from permitting a company representative on

each photography team to take photographs. In other words, those same conditions make it equally

safe for both Performance and MSHA representatives on the photography teams to take

photographs, and are far more reasonable than an outright ban on operator photography.

30. Mr. Page’s expressed concern regarding permissibility does not justify the

photography prohibition in the MSHA Protocols. First, applicable federal regulations only require

use of permissible equipment in certain areas of the mine, principally at the working faces and in the

return air courses. Because this Mine is idle, there are no working faces and, therefore, no return air

in the Mine. More generally, as described above, the conditions MSHA has placed on its own

photography are sufficient to control the environment and address any concerns over non-

permissible photography equipment. Mr. Page’s reliance on the concept of permissibility to justify

the unprecedented restrictions in the MSHA Protocols is misplaced.

Mapping Protocols

31. Traditionally, to the best of my knowledge, MSHA has not restricted operators from

using their own electronic mapping and surveying methods during accident investigations, and in

some instances has adopted and incorporated the resulting operator maps and surveys into its final

accident investigation reports. In my experience, MSHA has at times simply made preliminary notes

7
OTMTD and/or Reply or STNOC Exhibit 1
and drawings in order to verify the results of the operator’s more detailed and more accurate

mapping and surveying. Operators have been permitted to conduct their mapping and surveying at

the same time MSHA makes its preliminary drawings—drawings and notes that are taken on

operator-produced maps—so there is no delay whatsoever resulting from this simultaneous operator

and MSHA mapping.

32. The MSHA Protocols are the first I am aware of in which MSHA has restricted the

use of electronic survey equipment. Detailed surveys are critical because it is vitally important to

map the exact location of everything underground, particularly in the event of an explosion. As an

example, the exact location of items such as stopping blocks, cap lights, or lunch pails can assist in

determining the strength and direction of the explosive forces. The electronic mapping and

surveying technology commonly used today is much more accurate and much faster and more

efficient than the manual mapping methods MSHA employs. In addition, the MSHA reference

points for their surveying techniques already rely on the operator’s surveys and operator’s supplied

mine maps.

33. In my experience, MSHA has relied on the operator for detailed electronic surveying

and mapping because it does not have the equipment or the expertise to perform accurate electronic

surveys. To my knowledge, MSHA has no mechanism to do survey work, does not have a transit

station or other electronic mapping equipment, and has no personnel that are trained to operate

surveying equipment. MSHA cannot obtain sufficiently accurate measurements by its manual

mapping method alone, which is why those manual preliminary drawings are used only to confirm

the operator’s electronic maps and surveys. Standing alone, the manual maps are insufficiently

detailed and insufficiently accurate for use in an important accident investigation. In fact, the Page

Declaration recognizes the superior capability and accuracy of electronic mapping. See Page

Declaration at ¶ 20.

8
OTMTD and/or Reply or STNOC Exhibit 1
34. MSHA’s refusal to permit electronic mapping here is inconsistent with the Page

Declaration’s professed concern for limiting the amount of time individuals must spend

underground. MSHA’s chosen manual method of mapping is extremely inefficient and time

consuming. The operator’s proposed electronic methods are faster, more accurate, and limit

individuals’ total man-hours of time underground. Though operation of the electronic mapping

equipment conceivably might require the addition of one operator underground per mapping

excursion, the increased speed and efficiency of the electronic surveying and mapping would

significantly reduce the overall time required for mapping, thus reducing the number of mapping

excursions and reducing the total number of man-hours required to complete the mapping project.

35. Mr. Page’s statement that a mapping team would not be able to conduct manual and

electronic mapping activities simultaneously reflects a fundamental misunderstanding of the

electronic mapping technology and methodology. Best practices for detailed and accurate surveying

and mapping include using photography, electronic mapping, and manual drawing simultaneously

and in conjunction with one another. Mr. Page is incorrect to suggest that such activities would be

performed consecutively or independently.

36. For the same reasons stated above in connection with permissibility and

photographic equipment, the Page Declaration’s reliance on permissibility as a basis for prohibiting

electronic mapping is erroneous and misplaced.

Dust Sampling Protocols

37. During past MSHA accident investigations of which I am aware, operators have

been permitted to take parallel dust samples during the investigations. Either during or after these

investigations, I never received any reports through the supervisory chain that this parallel sampling

created any problems or delays for the MSHA investigators.

9
OTMTD and/or Reply or STNOC Exhibit 1
OTMTD and/or Reply or STNOC Exhibit 1
Michael J. Lawless, P.E.
Curriculum Vitae

Personal Data

Name: Michael J. Lawless, P.E.

Address: 184 Daniel Road


Kingston, TN 37763

E-mail: mjlawless@bellsouth.net

Phone: Home (865) 717-0439


Cell (865) 591-8157

Professional History

06/05- Present Mining Health and Safety Consultant

07/02 – 05/05 Corporate Director of Safety, Murray Energy Corporation

In this position, I gave corporate oversight and direction regarding all matters
relating to safety and compliance with state and federal regulations for a major coal
producer with approximately 2500 employees, producing about 26 million tons of coal
annually. Murray Energy Corporation had five mines in Kentucky, Ohio, Illinois, and
Pennsylvania using longwall and conventional underground mining techniques. I advised
mine managers on plan development for ventilation, roof control, and other areas needing
regulatory approval. I gave advice and counsel to the Owner/CEO of the company and
was the corporation’s authority in all matters dealing with the regulatory agencies,
including engineering plans submitted for approval, and compliance issues. I had direct
supervision of an assistant, and safety directors at each of the five separate companies
within the corporation.

12/99—07/02 Deputy Administrator, MSHA, Arlington, Va

As the Deputy in charge of field operations, all the Coal Mine Safety district
managers reported to me. I gave them guidance and direction in all areas relating to
enforcement of federal mine safety regulations. This included direction in the application
of inspection policy, hiring and development of inspectors and engineers, and the
administration of the budget. I had final approval authority for Petitions for
Modification. I maintained daily contact with the field managers, and was involved in
MSHA’s actions in response to mine fires, fatal accidents, or other life and property

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix A


threatening occurrences at underground or surface coal mines. During this period, there
were three mine fires, a major impoundment spill, and a mine explosion. As a response
to the impoundment spill, the National Academy of Sciences was commissioned to study
the disaster and develop a report of suggested research and means to prevent a similar
occurrence. I served as the MSHA liaison to the group chosen for the study. In this role,
I participated in the public hearings, and coordinated the development of MSHA’s
response to the Academy’s report.

08/99—12/99 Deputy Director, MSHA Technical Support

As the Deputy Director of Technical Support I was the supervisor of the two
Center Chiefs, located at the Approval and Certification Center at Triadelphia, West
Virginia, and the operations facility at Bruceton, Pennsylvania, as well as the
headquarters staff, consisting of staff engineers and administrative personnel. The
Approval and Certification Center had responsibility for testing and approval of the
electrical components on mining equipment used in the United States, as well as the fire
resistance qualities of certain materials such as conveyor belting. The Bruceton Center
had the responsibility for providing technical expertise to the mining industry and the
federal inspection force on all engineering subjects. They were staffed with engineers
and specialists in the areas of roof control, ventilation, impoundment design, electrical
safety, and explosives. They also had expertise in mine fires and explosions.
I provided advice and assistance to the managers of the Coal and Metal
inspection divisions, as well as to the Assistant Secretary for Mine Safety and Health
whenever there was a disaster or unusual inspection problem in the field requiring
technical expertise. I provided leadership and direction to the Chiefs regarding the
technical assistance provided to MSHA metal and coal inspection personnel, as well as
the technical assistance and engineering expertise provided to the mining industry.
During this period there were three mine fires that required Headquarters oversight. In
this regard, I provided guidance and advice to the field personnel of Technical Support as
well as the Coal Mine Safety headquarters personnel and field managers.

10/98—08/99 Acting Director, MSHA Technical Support

As the Acting Director, I was responsible for the overall direction of the
Technical Support organization, including policy development, priority of field
initiatives, budgeting and personnel. I began the practice in Technical Support of using
the data from fatality investigations to serve as the roadmap for Technical Support
initiatives. In this way, the engineering expertise of the engineers and other technical
persons with Technical Support could be better applied to assisting the industry in
solving existing safety and health problems. One such initiative was the design of
reinforced cabs for dozers working on preparation plants. I directed the development of
the mine rescue robot, and made a presentation to the Secretary of Labor regarding
funding for the robot prototype.

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix A


1990—1998 MSHA District Manager

During this time period, I was the district manager in three separate districts, each
with unique mining conditions, and each with unique engineering problems. As the
district manager, I was responsible for the administration and enforcement of all aspects
of the federal mine safety and health regulations, including the approval of all
engineering plans required of mine operators by the Mine Act. The following
summarizes my work as a District Manager:

Norton, Virginia (District 5)


This district had both large, extremely gassy mines, and many small, short-lived,
hilltop mines. It was challenging geologically because of the major faults traversing the
mining areas. It also included some of the most gassy mines in the world. Since my
responsibility included approval of all mining plans submitted by the mine operators in
this district, I had to give particular attention to the engineering aspects of ventilation and
roof control measures.
In this district, the Southmountain Mine explosion occurred in December of 1992.
As the district manager, I was the official in charge of the attempts to recover the miners
trapped underground, and later, the recovery of their bodies. These activities involved
intensive mine rescue, mine fire analysis, and disaster response actions.\
In this district I improved the plan approval and inspection process by developing
a Mine Profile system that was used to provide data and analysis to mine operators and
inspection personnel regarding the inspection history at each of the mines. This system
was later put in place in several other MSHA districts.
Also during this time period I was chosen to participate as a member of a team of
health and safety experts to travel to Albania and assess the health and safety conditions
of the coal and metal mines and mills in that country. The report that was developed after
the mission was used by the Agency for International Development to determine the type
of support needed by that country.
During this period I served on a three person committee to interview and select
candidates for MSHA enforcement supervisory positions. About thirty persons were
chosen to participate in an extensive supervisor training program at the Mine Health and
Safety Academy. I served on this committee for three years and was involved in the
selection of the majority of the MSHA inspection supervisors.

Mt. Hope, West Virginia (District 4)


MSHA’s District 4 is the largest district because of the number of mines and the
number of federal mine inspectors stationed in southern West Virginia. It is also one of
the most diverse districts because it contains large and small underground coal mines,
large and small surface coal mines and several coal seams with varying conditions and
problems. My evaluation and approval of operators’ ventilation and roof control plans
required a broad understanding of different mining techniques and design.
In this district I made several organizational changes including consolidating and
eliminating Subdistrict offices, and realigning field offices and mine assignments for
more efficient use of manpower. I also incorporated the Mine Profile system into the

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix A


inspection and plan approval process similar to the system I had implemented in the
previous district.
I served as a member of a steering committee to develop a national policy
regarding the ventilation of bleeders and gobs.

Birmingham, Alabama (District 11)


All the coal mines in this district are large, very deep, and very gassy. This required
a comprehensive understanding of ventilation, roof control, and related subjects to
evaluate and approve the mining plans submitted by mine operators. Shortly after I
became district manager there, a mine fire caused by spontaneous combustion occurred in
the Jim Walter No. 5 Mine. The fire lasted four months with varying degrees of
intensity. During that period I had to evaluate mine fire data to approve the operator’s
fire-fighting activities.

1989—1990 Subdistrict Manager, Fairmont, West Virginia

While a subdistrict manager, I was in charge of the inspection of all coal mines in
the northern West Virginia area, as well as coal mines in western Maryland. I managed
four MSHA field offices, and directed the work of seven field office supervisors. The
field offices inspected both large and small underground and surface mines. The
underground coal mines in this area used both conventional and longwall mining
methods. Many of the mines were large, complex, gassy operations.
In response to the needs of the industry in this area, I developed the Repeat
Violation Reduction Program, which is a process of providing assistance to the mine
operators in reducing the incidence of noncompliance at their mines. It involves a means
to systematically analyze the root causes leading to violations of the regulations. This
course is presently taught at the MSHA Academy.
Also during this period I taught a night course in Ergonomics at Fairmont State
College.

1976—1989 Chief, Office of Engineering, MSHA District 3, Morgantown, W.Va.

As Chief, Office of Engineering for District 3, I was in charge of evaluating and


recommending for approval or disapproval all engineering plans required by the federal
regulations for all coal mines in northern West Virginia, Maryland, and Ohio. This
involved managing the work of several engineering groups with responsibility for,
ventilation, roof control, health, electrical, and impoundments. I also was in charge of
accident investigations in the district, and served on several national committees,
including those focused on industrial hygiene, ventilation, and dust control.

1970—1976 Mining Engineer, Morgantown, West Virginia

My work with MSHA began primarily as a ventilation and roof control engineer.
I was involved extensively in helping coal mine operators adapt to the new Coal Mine
Health and Safety Act, and assisting federal inspectors (U.S. Bureau of Mines inspectors
at that time) in understanding and applying relevant engineering principles. In this regard,

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix A


I made numerous ventilation studies to assess the ventilation systems in effect at the
district mines, including pressure/quantity studies, and gob ventilation effectiveness.
These studies were used to assist mine operators in adapting to the recently enacted
ventilation regulations. I also was the principal fatal accident investigator, and I served
on several national committees to develop regulations and policy to implement the Mine
Act.
During this time I was chosen to serve on a team of engineers to assess the
feasibility of storing oil in abandoned mines. This initiative was in response to the Oil
Embargo of 1973 and had national importance and priority. A salt dome in Louisiana
was eventually selected as the site for the storage, and the facility is in operation today.
The project was completed in 1978 and I was awarded the Secretary of Labor’s
Recognition Award for my work on the project.

Education

West Virginia University—graduated with Honors, 1970


Bachelor of Science: Mining Engineering

University of Pittsburgh, Graduate School of Public Health, 1973


Master of Science: Industrial Hygiene

Professional Registration

Registered Professional Engineer (P.E.), West Virginia No. 9094


Certified Mine Safety Professional (CMSP)

Honors and Awards

1995—Distinguished Career Service, U.S. Department of Labor


1986—Engineer of the Year, Mine Safety and Health Administration
1976—Secretary of Labor’s Recognition Award for work on the Strategic Oil Reserve

Professional Memberships

National Mine Rescue Association


Tau Beta Pi Engineering Honorary
International Society of Mine Safety Professionals

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix A


Publications

M.J. Lawless, Particle Size Determination Using Sedimentation in Non-Ionic, Non-Polar


Liquids, Masters Thesis, University of Pittsburgh, Graduate School of Public Health
(1973).

M. J. Lawless, J. Tisdale, et.al. Piping Methane in Underground Coal Mines, IR 1094,


(U.S. Bureau of Mines 1978).

References

References are available upon request

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix A


Performance Coal Company
Upper Big Branch Mine-South
Accident Investigation

U.S. Department of Labor State of West Virginia


Mine Safety and Health Administration Office of Miners’ Health Safety and Training
1301 Airport Road 1615 Washington Street, East
Beaver, West Virginia 25813-9426 Charleston, West Virginia 25311-2126

Upper Big Branch Mine – South – Accident Investigation Protocols

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

1. The underground investigation will consist of the following teams:

a. Five Mapping Teams;


b. Ten Mine Dust Survey Teams;
c. Three Electrical Teams;
d. Three Photography Teams;
e. One Flames and Forces Team;
f. One Geologic Mapping Team;
g. One Evidence Gathering Team.

MSHA and OMHS&T may add additional teams as necessary.

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.

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix B


Mapping Protocols

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.

7. The originals will be retained by MSHA.

Mine Dust Survey Protocols

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.

15. Sampling bags and tags will be provided to each Team.

16. Evidence is not to be disturbed during the sampling process.

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix B


17. Samples are to be taken out of the mine at the end of the shift. All samples are to be transferred to
the custody of MSHA’s investigators on the Evidence Gathering Team. The Evidence Gathering Team
will store all samples in a secure location.
Electrical Protocols

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

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix B


each shift. Should this not be feasible on particular occasions, MSHA will provide copies within 24 or 48
hours after they have been taken.

Flames and Forces Protocols

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.

Geological Mapping Protocols

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.

Evidence Gathering Protocols

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.

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix B


37. MSHA and OMHS&T shall maintain custody and control over the items they have received or
taken at all times unless release of the items is necessary for the purpose of allowing testing by an
outside laboratory. In such an event, MSHA and OMHS&T shall agree on the best means to ensure that
adequate custody is maintained. Except as set out below, MSHA and OMHS&T shall also protect and
preserve the items in their custody in the same condition as when the items were received from the
Company.

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.

OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix B


OTMTD and/or Reply or STNOC Exhibit 1 M. Lawless Declaration - Appendix C
EXHIBIT 2
UNITED STATES OF AMERICA
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

PERFORMANCE COAL COMPANY, ) CONTEST PROCEEDING


) Judge Margaret Miller
Applicant, )
) Docket No. WEVA 2010-1190-R
v. ) Order No. 4642503-66; 04/05/2010
)
SECRETARY OF LABOR, MINE SAFETY AND )
HEALTH ADMINISTRATION (MSHA), )
) Mine I.D. No. 46-08436
Respondents. ) Mine Name: Upper Big Branch Mine - South

DECLARATION OF ANDREW J. NEUHALFEN Ph.D, P.E.

I, Andrew J. Neuhalfen, declare under penalty of perjury that the following statements are

true and correct to the best of my knowledge, information, and belief:

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.

2. I own, and am presently employed by, Neuhalfen Engineering Corporation

(“Neuhalfen Engineering”), where I have worked continuously as the firm’s President and Chief

Technical Officer since I founded it in 2008. Neuhalfen Engineering is a professional engineering

consulting and technical services firm. We provide engineering and technical services in the areas of

electrical failure analysis, electrical-related fires, electrical engineering, electronic engineering,

computer systems and materials science.

3. My primary responsibilities as President and Chief Technical Officer include

providing expertise for the investigation, analysis, evaluation, and management of electrical-related

and materials-related product and process performance issues; including electrical arc fault incidents,

electrical shock and electrocution incidents, electrical-related fire incidents, product liability issues,

OTMTD and/or Reply or STNOC Exhibit 2


and intellectual property assessments and evaluations. Additionally, I perform assessments of:

applied research, manufacturing process control and optimization, failure analysis of microelectronic

components and processes, and product development programs in power and energy production

and industrial distribution systems, the mining and milling industries and in the telecommunications,

transportation, and computer industries.

4. As described more fully in my CV, attached hereto at Tab A, I have over thirty years

of electrical engineering experience, have published a number of electrical engineering research

papers and hold eight U.S. patents.

5. I received a Ph.D. in Materials Science and Engineering from Northwestern

University in 1992, and I received a Bachelor’s of Science in Electrical Engineering from the

University of Illinois at Urbana-Champaign in 1983.

6. I am a licensed Professional Engineer in the State of Illinois.

7. I have investigated, and performed failure analysis for, a number of underground and

surface mining and milling-related electrical arc blast incidents, electrical shock and electrocution

occurrences, and electrical-related fire incidents. In several cases, I have worked closely and

collaboratively with Federal Mine Safety and Health Administration (“MSHA”) (and also

Occupational Safety and Health Administration (“OSHA”)) electrical technical personnel from the

very early stages of the accident investigations and routinely have been able to come to terms with

MSHA (or OSHA) on issues related to evidence collection, testing, photography, handling, custody,

documentation and storage.

8. I have participated in and led over one thousand (1,000) inspections, investigations

and examinations, with a variety of other interested parties, including MSHA, and have always been

able to agree with other parties on a proper and reasonable inspection protocol. In fact, I participate

2
OTMTD and/or Reply or STNOC Exhibit 2
in approximately ten (10) inspections, artifact examination or incident investigations on average each

month.

9. At all such inspections, investigations and examinations, I take photographs.

Accordingly, I am a professional photographer in my areas of specialty.

10. A proper investigation protocol, which provides that stakeholders have the ability

and discretion to take photographs, is critically important to a proper investigation.

11. I am generally familiar with the tragic accident that occurred at Performance Coal

Company’s (“Performance” or the “Company”) Upper Big Branch Mine-South (the “Mine”) on

April 5, 2010 (the “Accident”).

12. I have read the Declaration of Norman G. Page, in which he describes the June 15,

2010 inspection of mantrip no. 6 at a building at the Mine (the “Mantrip Inspection” or the

“inspection”). (See Page Declaration ¶ 29.)

13. I attended and participated in the June 15, 2010 Mantrip Inspection, which

continued though June 16, 2010. Day one included between 15 and 20 representatives from

MSHA, the West Virginia Office of Miners’ Safety Health and Training (“WVOMHS&T”), the

United Mine Workers of American (“UMWA”) and Performance at any given time. Approximately

5 to 10 individuals participated in day two of the Mantrip Inspection on June 16, 2010. Mr. Page

does not reference the second day of the Mantrip Inspection in his Declaration; nor did he attend.

(Id. ¶ 29.) The Mantrip Inspection began at approximately 9:15 a.m. EDT on June 15, 2010 and

proceeded collaboratively and cooperatively until Mr. Page and his assistant Mr. Watkins arrived at

approximately 10:12.

14. Prior to Mr. Page’s arrival and during his very brief period of observation, and contrary

to his Declaration, only one Performance representative was taking photographs; that representative was

I. Neither I, nor any other person, had climbed on top of the subject mantrip, and the Mantrip

3
OTMTD and/or Reply or STNOC Exhibit 2
Inspection was proceeding orderly, properly and pursuant to MSHA’s June 8, 2010 letter protocol,

attached hereto at Tab B. Further, none of the five MSHA representatives, which included several

senior MSHA officials, or anyone else, complained to any Performance representatives about any aspect

of the Mantrip Inspection or Performance’s conduct prior to Mr. Page’s arrival.

15. In short, Mr. Page’s description of the Mantrip Inspection contained in Paragraph 29 of

his Declaration is untrue and inaccurate.

16. First, Mr. Page did not “observe the latter part of the inspection.” As previously stated,

Mr. Page arrived at the Mantrip Inspection at 10:12 a.m. on June 15, 2010, less than one hour after it

began; Mr. Page left the Mantrip Inspection approximately thirty minutes later. Also as previously stated,

I was the only Performance representative taking photographs at the Mantrip Inspection. A team of two

MSHA personnel was taking and logging photographs also, but appeared to take far fewer photographs

than I.

17. I took the photograph attached hereto at Tab C-1 at 9:20:16 a.m. on June 15, 2010. This

photograph depicts the inby end of the mantrip covered by a tarp and a number of attendees observing

the covered artifact from a distance in an orderly manner. A WVOMHS&T inspector is shown

photographing the mantrip as well. I took the photograph from a distance of several feet.

18. I took the photograph attached hereto at Tab C-2 at 9:28:14 a.m. on June 15, 2010. This

photograph depicts the outby end of the mantrip and a number of attendees observing the artifact from

a distance in an orderly manner. The four individuals furthest to the left are Performance

representatives, shown observing the artifacts from afar. I also took this photograph from a distance of

several feet. The scene depicted in this photograph is indicative of the calm and order that both

preceded Mr. Page’s arrival and resumed after his departure.

19. I took the photograph attached hereto at Tab C-3 at 9:29:10 a.m. on June 15, 2010. This

photograph depicts the inby end of the mantrip and a number of attendees observing the artifact from a

4
OTMTD and/or Reply or STNOC Exhibit 2
distance in an orderly manner. I took the photograph from a distance of several feet. The scene

depicted in this photograph is also indicative of the calm and order that both preceded Mr. Page’s arrival

and resumed after his departure.

20. I took the photograph attached hereto at Tab C-4 at 9:55:10 a.m. on June 15, 2010. This

photograph depicts a passenger area of the mantrip and a WVOMHS&T representative. An MSHA

photographer and another MSHA representative are shown on the left side of the photograph. I took

this photograph from a distance of several feet.

21. While I cannot speak for other attendees, at no point during the Mantrip Inspection, did

I become impatient or climb on the mantrip, as described by Mr. Page. Nor did I observe any other

photographer or Performance representative in attendance acting impatiently or climbing on the

mantrip. In fact, I was in the midst of taking the photograph attached hereto at Tab C-5 when Mr. Page

arrived at the Mantrip Inspection at 10:12:01 a.m. The photograph depicts a piece of coupling

equipment on the outby end of the mantrip, and contrary to Mr. Page’s assertion in Paragraph 29 of his

Declaration, the photograph proves that my feet are clearly on the ground and no part of my body is

touching the mantrip itself.

22. I did not physically manipulate any parts of the mantrip during the Mantrip Inspection.

23. After I took the photograph attached at Tab C-5, Mr. Page scolded me in front of all

the other attendees, presumably for taking photographs (which were expressly allowed according to

his letter attached hereto at Tab B) and announced that Performance would not be permitted to take

further photographs until the Mantrip Inspection was over. After some discussion, Mr. Page

seemed to agree to permit further photography by Performance prior to the end of the Mantrip

Inspection.

24. The next photograph I took is the one attached at Tab C-6. I took this photograph

at 10:15:29 a.m. on June 26, 2010 because an MSHA representative was removing and disrupting

5
OTMTD and/or Reply or STNOC Exhibit 2
evidence from the mantrip, as shown in the photograph. I was not sure MSHA photographers had

captured this disruption and believed doing so was critical to a proper inspection and investigation.

25. I took the photograph attached at Tab C-7 at 10:23:09 a.m. on June 15, 2010. The

photograph depicts MSHA and WVOMHS&T representatives placing evidence taken from the

mantrip into a bag. Again, all removal of evidence must be photographed and documented to

ensure a proper inspection and investigation.

26. I took the photograph attached at Tab C-8 on June 15, 2010 at 12:01:52 p.m, well

after Mr. Page departed the Mantrip Inspection. The photograph depicts MSHA, WVOMHS&T

and Performance representatives working collaboratively to inspect the mantrip.

27. Mr. Page’s additional assertion in Paragraph 29 is wrong; MSHA did not have

difficulty restraining the actions of any individuals during the Mantrip Inspection, either prior to or

after Mr. Page’s arrival. Indeed, until Mr. Page’s arrival, neither MSHA nor any other party

expressed any concern over any party’s behavior or conduct at the Mantrip Inspection. Similarly, no

one expressed a need, or attempted, to restrain the actions of any individual. This collaborative and

cooperative dynamic resumed upon Mr. Page’s departure.

28. The Mantrip Inspection continued through June 16, 2010. I took the photograph

attached hereto at Tab C-9 on June 16, 2010 at 9:48:57 a.m.; this photograph depicts a collaborative

inspection. I took the photograph attached hereto at Tab C-10 on June 16, 2010 at 10:52:54 a.m.;

this photograph depicts a piece of evidence and is indicative or the quality and type of photographs

necessary for a proper accident inspection and investigation.

29. MSHA photographers did not attend the second day, and thus the photographs I

took during day two of the Mantrip Inspection may be the only ones, or some of the very few, that

exist and as such are important pieces of evidence. This underscores the need for multiple

photographs taken by multiple parties during an inspection or investigation. It appeared clear to me

6
OTMTD and/or Reply or STNOC Exhibit 2
OTMTD and/or Reply or STNOC Exhibit 2
A ndrew J. Neuhalfen, Ph.D., P. E .
President and C hief T echnical O fficer
PR O F ESSI O N A L E X P E R I E N C E
2008 - Present NEUHALFEN ENGINEERING CORPORATION, INC. - Algonquin, Illinois

Projects and expertise provide for the investigation, analysis, evaluation, and management of
electrical-related and materials-related product and process performance issues; including
electrical arc fault incidences, electrical shock and electrocution incidences, electrical-related
fire incidences, product liability issues, and intellectual property assessments and
evaluations. Additionally, projects and expertise include the assessment of applied research,
manufacturing process control and optimization, failure analysis of microelectronic
components and processes, and product development programs in the power,
telecommunications, transportation, and computer industries.

1998 - 2008 Packer Engineering, Inc. - Naperville, Illinois

Senior Vice President and Head of the Electrical Engineering Department responsible for
performing and managing electrical-related accident investigations, electrical shock and
electrocution issues, electrical-related fire investigations, product liability issues, intellectual
property evaluations, applied research, manufacturing process analysis, failure analysis of
microelectronic components and processes, and product development programs in the power,
telecommunications, automotive, and computer industries.

1992 - 1998 Littelfuse, Inc. - DesPlaines, Illinois

Engineering Manager responsible for the direction of activities associated with the
research/development, selection, application, and analysis of materials, products, and
technologies incorporated into company operations and products. Led the efforts to develop
and implement electrical circuit protection devices for the industrial, electronic,
telecommunications, automotive, and computer industries.

1983 - 1988 Motorola, Inc. - Schaumburg, Illinois


Development Engineer responsible for the design and manufacturability of electronic
technologies for industrial, telecommunications, and automotive applications.

ACADEMIC
Ph.D. Northwestern University, Evanston, Illinois - Materials Science and
Engineering (1992)

B.S. University of Illinois at Urbana-Champaign - Electrical Engineering (1983)


Page 1 of 3

OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab A
A F F I L I A T I O NS
Institute of Electrical and Electronics Engineers (IEEE)
American Society of Materials (ASM)
International Microelectronics and Packaging Society (IMAPS)
National Fire Protection Association (NFPA)

H O N O RS A N D A W A R DS
Tau Beta Pi - National Engineering Honor Society
Eta Kappa Nu - Electrical Engineering Honor Society
Sigma Alpha Mu - Materials Science Honor Society
Optical Society of America - Research Award 1989-1990
Newport Research Award - Research Award 1990-1991
Cabel Fellowship – Northwestern University 1991 - 1992

A PP O I N T M E N T
Vice-Chairman, Planning and Zoning Commission; Village of Algonquin, IL

PU B L I C A T I O NS and P A T E N TS

PU B L I C A T I O NS

1. A.J. Neuhalfen and B.W. Wessels, “Photoluminescent Properties of Er-Doped


In1-xGaxP Prepared by Metalorganic Vapor Phase Epitaxy,” Appl. Phys. Lett. 59, 2317
(1991).

2. A.J. Neuhalfen, D.M. Williams, and B.W.  Wessels,  “Photoluminescent  Properties  of 
Yb-Doped InAsP Alloys,” Materials Science Forum, edited by G.Davies, G.G.DeLeo,
M.Stavola (Trans Tech Publications, Aedermannsdorf, Switzerland), vol. 83-87, p.689
(1992).

3. A.J. Neuhalfen and B.W. Wessels, “Electronic and Photoluminescent Properties of InP 


Prepared by Flow Modulation Epitaxy,” Appl. Phys. 71, 281 (1992).

4. A.J. Neuhalfen and B.W.  Wessels,  “Rare-Earth Doped In1-xGaxP Prepared by


Metalorganic  Vapor  Phase  Epitaxy,”  Advanced III-V Compound Semiconductor
Growth, Processing and Devices, edited by S.J. Pearton, D.K. Sadana, J.M. Zavada
(Mater. Res. Soc. Proc., Pittsburgh, PA), vol. 240, p. 195 (1992).

5. A.J. Neuhalfen and B.W. Wessels, “Thermal Quenching of Er3+-Related Luminescence


in In1-xGaxP," Appl. Phys. Lett. 60, 2657 (1992).
Page 2 of 3

OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab A
6. I.A. Buyanova, A.J. Neuhalfen, and B.W.  Wessels,  “Symmetry  Properties  of  Er3+-
Related Centers in In1-xGaxP  with  Low  Alloy  Compositions,”  Appl. Phys. Lett. 61,
2461 (1992).

7. A.J. Neuhalfen, “Miniaturization of Circuit Protection Devices to Meet Surface Mount 
Applications,” Surface Mount International Symposium Proceedings, p. 784 (1995).

P A T E N TS

1. Patent No. 6,043,966; March 28, 2000; “Printed Circuit Board Assembly Having An
Integrated Fusible Link”

2. Patent No. 6,023,028; February 8, 2000; “Surface-Mountable Device Having A Voltage


Variable Polymeric Material For Protection Against Electrostatic Damage To
Electronic Components”

3. Patent No. 5,974,661; November 2, 1999; “Method Of Manufacturing A Surface Mount


Device For Protection Against Electrostatic Damage To Electronic Components”

4. Patent No. 5,943,764; August 3, 1999; “Method Of Manufacturing A Surface Mount


Fuse”

5. Patent No. 5,923,239; July 13, 1999; “Printed Circuit Board Assembly Having An
Integrated Fusible Link”

6. Patent No. 5,844,477; December 1, 1998; “Method of Protecting A Surface Mount Fuse
Device”

7. Patent No. 5,790,008; August 4, 1998; “Surface Mounted Fuse Device With
Conductive Terminal Pad Layers And Groove On Side Surfaces”

8. Patent No. 5,552,757; September 3, 1996; “Surface Mounted Fuse Device”

Page 3 of 3

OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab A
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab B
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab B
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-1
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-2
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-3
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-4
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-5
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-6
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-7
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-8
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-9
OTMTD and/or Reply or STNOC Exhibit 2 Dr. A. J. Neuhalfen, P.E. Declaration - Tab C-10
EXHIBIT 3
UNITED STATES OF AMERICA
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

PERFORMANCE COAL COMPANY, ) CONTEST PROCEEDING


)
Applicant, )
) Docket No. WEVA 2010-1190-R
v. ) Order No. 4642503
)
SECRETARY OF LABOR, MINE SAFETY AND ) Mine I.D. No. 46-008436
HEALTH ADMINISTRATION, )
)
Respondent. ) Mine Name: Upper Big Branch Mine - South
______________________________________________________________________________

DECLARATION OF JEREMY MCCLUNG

Jeremy McClung, pursuant to 28 U.S.C. § 1746, submits the following declaration:

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.

2. I am currently employed by Massey Coal Services, Inc. as a Mine Rescue Team

Member, a position I have held continuously for approximately five years. I have been employed by

subsidiaries or affiliates of Massey Energy Company for approximately six years.

3. I have extensive experience in mine safety and mine rescue. My position as Mine

Rescue Team Member requires that I have intimate knowledge of mine hazards, safety, rescue

equipment and mine clearing. I have received many hours of extensive training in these areas.

4. 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 on almost every

mine entry during both the clearing and investigation phases.

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