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8/9/2019 Massey Energy's Supplemental Response Against MSHA Order
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UNITED STATES OF AMERICAFEDERAL 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 SAFETYAND HEALTH ADMINISTRATION,
))
JOSEPH MAIN, ASSISTANT SECRETARYOF LABOR (MSHA), and NORMAN G.PAGE, MSHA INVESTIGATOR,
))))
Mine I.D. No. 46-008436
)
)
Mine Name: Upper Big Branch Mine
SouthRespondents. )
______________________________________________________________________________
SUPPLEMENTAL RESPONSE IN SUPPORT OFEMERGENCY APPLICATION TO MODIFY, OR ALTERNATIVELY
FOR TEMPORARY RELIEF FROM, MSHAS SECTION 103(k) ORDER
Performance Coal Company (Performance) files this supplemental response to the
Commissions 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 MSHAs Section
103(k) Order (the Order). During the call, the parties discussed Performances 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 Commissions 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 MSHAs representations, the investigative protocol imposed upon
Performance is an outlier that departs significantly from past protocols.
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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 MSHAs 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 Secretarys . . . order, . . . or directingother 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 Acts
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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 Performances right to
investigate, the requested relief would reduce MSHAs 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 MSHAs 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
Performances worst fears.
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Christopher F. Schemel, an engineer from Packer Engineerings Fire Science and Explosion
Analysis Group who serves on the Companys 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
Performances 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 accidents 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, whileother 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. Schemels team map afterhehad 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 thetime 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 Mines travelways and walking on debrisfields. (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 scenewith water bottles, food wrappers, and other trash. (Id. 16(e).)
Investigators have been sitting down on evidence, and similarly have been laying down theirpacks 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 MSHAs active mapping is disturbing the evidence
The above events make clear that Performances 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. MSHAs 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, MSHAs counsel attempted to justify the Section 103(k)
order by claiming that the current protocol is the agencys standard arrangement. Putting aside for a
moment the principle that an unlawful practice cannot be justified simply because it has not been
challenged previously, MSHAs 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 MSHAs standard accident investigation practices. (Id. 26.) Furthermore, MSHAs
prohibitions on Performances 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 MSHAs Investigation.
MSHAs startling suggestion that Performance must await the conclusion of MSHAs
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, MSHAs 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, MSHAs 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.
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PATTON BOGGS LLP
__________________________________
Robert D. LuskinPatrick J. SlevinBenjamin D. WoodPeter S. Gould2550 M Street NWWashington, DC 20037202-457-6190 (Telephone)202-457-6315 (Facsimile)
Attorneys for Applicant Performance Coal Company
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UNITED STATES OF AMERICA
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSIONOFFICE 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 OFLABOR (MSHA), andNORMAN G. PAGE, MSHA INVESTIGATOR,
))))
Mine I.D. No. 46-008436
) Mine Name: Upper Big Branch Mine - SouthRespondents. )
______________________________________________________________________________
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, aposition I have held continuously since 2003. I am a member of Packer Engineerings 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 explosionsand 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.
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5. I also have significant experience serving as a multi-disciplined team leader incomprehensive 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 sixteenyears of professional experience in fire and explosion analysis.
7. I hold a Ph.D. from the School of Engineering and Electronics, Building ResearchEstablishment 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 aMember 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 publicationsand 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 Companys (Performance) Upper Big Branch Mine-South
(the Mine). My involvement has included traveling underground in the Mine as Performances
representative on investigative mapping and photography teams organized under the direction of
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MSHA and the West Virginia Office of Miners Health Safety and Training (OMHST). MSHA
has restricted my participation to that of observer only, and accordingly I have been proceeding
entirely at MSHAs direction to this point.
11. I have read and am familiar with the document entitled Performance CoalCompany 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
MSHAs 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 investigationmust be conducted from the start with a very high degree of coordination, and under the conditions
that currently exist in the mine. A wide range of force and thermal indicators currently exist in the
mine as a result of the explosion, and those need to be documented as evidence. These indicators
will be used to establish the near and far field regions of the explosion debris field of the Mine,
relative to the area of origin of the Explosion. This requires carefully working backward, using the
forensic data, to establish force vectors and thermal indicators to reconstruct the Explosion
behavior. The systematic evaluation of these indicators will lead to areas of the Mine where
explosive gas concentrations could have accumulated and the Explosion may have ignited.
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b) In explosions such as this, the initial source of methane may not be the areawhere it collected and mixed with the mines 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 theMine 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 gatheringtechniques 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
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route causes for the explosion. At the current time, and after four days of mapping, less than 4,500
linear feet have been mapped. Photographs should be taken of the entire mine before any other
activity gets started in order to preserve, as well as possible, the post-explosion condition.
b) The explosion dynamics and thermal effects (Flames and Forces) teamsshould have access to the mine with photographers priorto 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. Tapemeasures 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.
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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. Performances 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 MSHAProtocols include:
a) On June 29, 2010, some mapping teams mapped only two cross-cuts of amine 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 signand date the map at the conclusion of a daily mapping shift, on June 29, 2010 MSHA investigators
made changes to my teams map afterI 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 atthe 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.
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d) Investigators have been routinely trampling the Mines 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 ofthe accident scene with water bottles, food wrappers, and other trash.
f) Investigators have been sitting down on evidence, and similarly have beenlaying 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 theirmeasuring 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 andhaving 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 andvalidated 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 planthat 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 isremoved or further mapping takes place.
b) The Flames and Forces teams be allowed to tour and analyze the Mine areasas soon as possible, and before any further mapping takes place.
c) Procedures be developed that address consistency of mapping methods to beused 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 beused for the mapping process to add accuracy and sophistication.
f) The Performance investigation team must be allowed to take its ownphotographs. 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
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Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
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Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
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Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
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Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
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Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix A
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Performance Coal CompanyUpper Big Branch Mine-South
Accident Investigation
U.S. Department of Labor State of West VirginiMine Safety and Health Administration Office of Miners Health Safety and Trainin1301 Airport Road 1615 Washington Street, EaBeaver, West Virginia 25813-9426 Charleston, West Virginia 25311-212
Upper Big Branch Mine South Accident Investigation Protocols
The underground portion of the investigation being conducted at Upper Big Branch Mine South of theApril 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 Governors Independent Investigation Panel
(GIIP); Performance Coal Company, including Massey Energy and any of its related entities (theCompany); and duly recognized representatives of the miners of the Upper Big Branch Mine, includingthe 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 oneOMHS&T representative. One Company representative, one GIIP representative, and one minersrepresentative 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 byMSHAs 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
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Mapping Protocols
6. One map only shall be produced by each Mapping Team for each area of the mine. All teammembers shall sign and date the map when completed. It is anticipated that copies will be made at theconclusion 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 bythe explosion have been partitioned into 22 separate sections. Each of the Mine Dust Survey Teams willbe 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 toeach Mine Dust Survey Team. The provided package also contains one or more individual section mapsthat are applicable to each individual Mine Dust Survey Team. The section maps clearly indicate thesample locations where that particular team is responsible for taking samples.
10. Only MSHA representatives will take samples. MSHA anticipates that on many occasions, it willobtain excess materials in its samples; in such cases, it will share this excess with the parties so that theymay 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, itis acceptable to relocate the sample to within 20 feet of the original location on either side of thecenterline of the pillar. This provides for a length of 40 feet along each pillar in which an acceptablesample can be obtained. The MSHA and OMHS&T representative(s) will decide where to precisely takeeach sample.
12. Sample tags shall be filled out at each sample location. The tag must indicate the sample locationand the type of sample taken.
13. If no acceptable sample can be obtained within the 40 feet length, a sample tag shall still becompleted that includes the location identification. Also, the reason for no sample shall be designated onthe tag.
14. If any Mine Dust Survey Team completes the sampling requirements for their assigned section orsections, 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.
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17. Samples are to be taken out of the mine at the end of the shift. All samples are to be transferred tothe custody of MSHAs investigators on the Evidence Gathering Team. The Evidence Gathering Teamwill store all samples in a secure location.
Electrical Protocols
18. The primary purpose of the Electrical Teams will be to analyze circuits and equipment inproximity 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/ortaken into custody by MSHA for further testing.
20. Electrical equipment and circuits not in proximity to the point of origin will be examined byMSHA and OMHS&T electrical specialists to collect evidence and to assess compliance with therequirements of 30 CFR and state law.
Photography Protocols
21. No photographs other than the official team photographs will be taken by any party. Only MSHAor OMHS&T representatives will take photographs for each team.
22. The MSHA and OMHS&T persons on each Photography Team are responsible for determiningwhich photographs to take. GIIP, Company, and Miners Representatives may request additionalphotographs. 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 forinvestigative 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 takephotographs of any item designated by the MSHA or OMHS&T representatives on the Flames andForces Team.
25. A Photography Team will be responsible for taking photographs of damage to ventilationcontrols, equipment, and other items of interest in the extended area affected by explosion forces, asdetermined by the Accident Investigation Team.
26.
From the time that any Photography Team enters the mine, methane will be continuouslymonitored at their location. In the event that the methane concentration reaches 1% or greater, allcamera equipment will be moved to a location with less than 1% methane and all photography work wilcease until the methane concentration is reduced to less than 1%.
27. All photographs will be retained by MSHA. While underground, GIIP, Company, and MinersRepresentatives Photography Team members may spend a reasonable time reviewing photographstaken on the digital screen after they are taken. MSHA anticipates providing GIIP, the Company, andMiners Representatives copies of each photograph on a disk (or via similar method) at the conclusion of
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each shift. Should this not be feasible on particular occasions, MSHA will provide copies within 24 or 48hours 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; ande. Assist in identifying the source of ignition.
Geological Mapping Protocols
29.
Locations for photographs will be annotated on the map, and a Photography Team willaccompany the Geologic Mapping Team upon completion of the geologic mapping to collectphotographs in annotated areas. Photograph collection will be at the direction of the MSHA andOMHS&T geologic mapping team member.
30. Geologic mapping will be performed by the MSHA and/or OMHS&T representative. One maponly shall be produced by the Geological Mapping Team for each area of the mine. All team membersshall sign and date the map when completed. It is anticipated that copies will be made at the conclusionof each shift. They will be distributed to each investigation team.
31. Individual members on the Geological Mapping Team are responsible for their own notesregarding observations and interpretations of geologic or stress features, which may be kept separatefrom the map.
Evidence Gathering Protocols
32. Evidence will be identified by MSHA and OMHS&T investigators and tagged with reflectivemarkers, if necessary.
33. Only the Evidence Gathering Team will gather evidence. Other teams may identify and flagevidence for referral to the Evidence Gathering Team.
34. After a Photography Team photographs the designated evidence, the Evidence Gathering Teamwill 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 ofCustody sheets to be completed.
36. Upon removal from the underground areas of the mine, evidence will be placed in a securelocation on the surface area of the mine for transport to storage or testing facilities.
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37. MSHA and OMHS&T shall maintain custody and control over the items they have received ortaken at all times unless release of the items is necessary for the purpose of allowing testing by anoutside laboratory. In such an event, MSHA and OMHS&T shall agree on the best means to ensure thatadequate custody is maintained. Except as set out below, MSHA and OMHS&T shall also protect andpreserve 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 accessshall 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) ofany tests to be conducted on evidence, the locations and dates where evidence testing is to occur, andany other relevant information, and given an opportunity to attend the testing. The parties will beprovided with testing protocols relating to the particular evidence at issue prior to the testing wheneverpossible, 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 overany item returned to it pursuant to the same conditions listed above for a period of time to be specifiedby MSHA or the OMHS&T.
41. Team members shall consult with each other prior to the removal of physical evidence. MSHA orOMHS&T shall map the area prior to the removal of physical evidence.
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Performance Supplemental Response Exhibit 1 Declaration of Christopher F. Schemel - Appendix C
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Safety Solutions International
David D. Lauriski, C.M.S.PPresident
Summary ofExpertise
Recognized as a pre-eminent industry expert in the mine health and safetyfield. Experienced in all aspects of health and safety including safety systems
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 Organizations 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
Companys 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 Companys day-to-day operations.
Provide advisory consulting services to mining operations,government agencies, legal firms, manufacturers, and tradeassociations in all areas of safety management and leadership,and in regulatory, legal, and legislative matters.
Principal marketer of the Companys consulting services andproducts.
2004-2006 Executive Director, John T. Boyd Company
Responsible for the day-to-day management and development of the
Companys worldwide services in safety and health management systems.
Established the companys presence in mine safety managementworldwide.
Provide advisory consulting services to mining operations,government agencies, legal firms, and trade associations in all areasof mine safety management and in regulatory, legal, and legislativematters.
Marketing of the Companys services with principal focus inmanagement and health and safety.
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David D. Lauriski, 2
Safety Solutions International
2001-2004 Assistant Secretary of Labor, Mine Safety andHealth Administration
Responsible for carrying out the mandates of the Mine Safety andHealth Act of 1977 and in leading the Agency in a manner consistentwith the Presidents agenda and standards. In fulfilling theseresponsibilities, duties included:
Management of the Agencys 2,300 employees and its annual budgetof nearly $300 million.
Development and management of the Agencys Strategic Plan.
Worked closely with the Secretary of Labor, the White House, bothHouses of the United States Congress, and other federal and stateagencies and departments. Key among those Agencies was theOffice of Surface Mining, the National Institute of Occupational Safetyand Health, the Bureau of Land Management, and the Office ofManagement and Budget.
Primary United States government representative with othergovernments on mine safety and health matters. Principal amongthose governments were the Peoples Republic of China, India, Peru,Mexico, and the Ukraine.
Executive level decision maker regarding Agency policy andregulatory initiatives.
1999-2001 President, Lauriski & Associates LLCManagement of an independent consulting firm providing services inleadership training, management services, regulatory/legislativeaffairs, and mine safety and health services.
1995-1999 - General Manger, Energy West Mining Company
Responsible for the daily operations for PacifiCorps largeunderground coal mining company which included two highlyproductive longwall mines, a full wash preparation plant, an
exploration department, a large warehousing facility, and a trainingcenter.
Grew annual production levels by 24% to 8.5 million tons perannum.
Successfully implemented and oversaw an effectivelabor/management change process which led to significant costreductions, and improved productivity levels.
Led the company to being recognized as the safest undergroundcoal mining company of the largest 25 coal producers in theUnited States.
Developed and managed the companys strategic plan.
Coordinated the Companys production and other mining activitieswith PacifiCorps power plants and other end users.
Effectively oversaw and grew the mining companys outside coalmarkets while providing budgeted production levels to theCompanys captive market.
1992-1995 Director, Safety and Health, Government andEnvironmental Affairs, and Labor Relations, Interwest MiningCompany
1984-1992 Director, Health, Safety and Training, EnergyWest Mining Company
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David D. Lauriski, 3
Safety Solutions International
19701984 - Engineering Technician, Safety Engineer, Safety
Director, and Industrial Relations Manager, Kaiser Steel
Corporation, Sunnyside Coal Mines
Foreign
Experience
China
Canada
Chile
India
Mexico
Peru,
Poland
Ukraine
Indonesia
International Labor Organization Geneva, Switzerland
Spain
Education Business Management, University of PhoenixUtah State University
Registration and
Certificates
Certified Mine Safety Professional Registration # 119Underground and Surface Coal Mine Examiner and ForemanMSHA Instructor Certifications
Awards 2006 Daniel C. Jackling Award, Society of Mining, Metallurgy andExploration
2005 Guiding Light Recipient, International Society of Mine SafetyProfessionals
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 Presidents Citation for Excellence in Safety, Society of MiningEngineers
002 Highest Degree of Safety, International Society of Mine SafetyProfessionals
1996 Gold Circle Award for Contributions to Mining Education,College of Eastern Utah
1994/95 International Labor Organization, U.S. Mining EmployerRepresentative, Convention 176, Health and Safety in Mines. Ratified
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David D. Lauriski, 4
Safety Solutions International
by the United States Senate, 2000
1987 Safety Professional of the Year, College of Eastern Utah
1984 Professional of the Year, Rocky Mountain Coal MineRescue 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, formerAmerican Mining Congress
Past Chairman, Utah Coal Operators Safety Committee
Papers -
Presentations
Lauriski, D. D. and Guymon, R. M., Safety Management: What itMeans to Us, Mining Engineering, October, 1989.
Lauriski, David D., The State of U.S. Mine Safety, AmericanLongwall Magazine, August 2005.
Lauriski, Dave D., Protecting the Worker Improving MineSafety, Vital Speeches of the Day, 2004.
Lauriski, D. D., Mine Safety and Health, 62nd Annual Meeting of
the Kentucky Mining Institute, Keynote Address, Prestonsburg,Kentucky, August 24, 2001.
Lauriski, D. D., Mine Safety and Health, Northwest MiningAssociation's 107th Annual Meeting, Keynote Address,December7, 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 MiningAssociation's Mining Lawyers Conference, Keynote Address, KeyWest, Florida, October 20, 2001.
Lauriski, D. D., Mine Safety and Health, West Virginia CoalAssociation
29th Annual Mining Symposium, Charleston, WV, January 10,2002.
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David D. Lauriski, 5
Safety Solutions International
Lauriski, D.D., Mine Safety and Health, Kansas AggregateProducers' Association's Annual Safety Awards Luncheon,Wichita, Kansas, January 18, 2002
Lauriski, D. D., Mine Safety and Health, Knott/Floyd HolmesSafety Council, Keynote Session, Hindman, Kentucky, January 24,2002.
Lauriski, D. D., Mine Safety and Health, Salt Institute's 2002Annual Meeting, Keynote Address, Key Biscayne, Florida, March9, 2002.
Lauriski, D. D., The U.S. System for Mine Safety and Health,Mining Safety Institute of Peru, Sixth International Mining SafetySeminar, Keynote Address, Lima, Peru, April 23, 2002.
Lauriski, D. D., Mine Safety and Health, 22nd Annual GeorgiaMining Association and Georgia Crushed Stone AssociationSafety Workshops, Keynote Address, Macon, GA., May 1, 2002.
Lauriski, D. D., Mine Safety and Health, 2002 Joint NationalMeeting of the Joseph A. Holmes Safety Association, NationalAssociation of State Mine Inspection Agencies, and the MineSafety Institute of America Awards Banquet, Keynote Address,Virginia Beach, Virginia, June 6, 2002.
Lauriski, D. D., Mine Safety and Health, Rocky Mountain CoalMining InstituteAnnual Meeting, Keynote Address,Breckenridge,Colorado, July 1, 2002.
Lauriski, D. D., Mine Safety and Health, Wyoming MiningAssociation Safety and Reclamation Luncheon, Keynote Address,Moran, Wyoming, June 21, 2002.
Lauriski, D. D., Mine Safety and Health, 33rd Annual Institute onMining Health, Safety and Research, Keynote Address, Roanoke,Virginia, August 12, 2002.
Lauriski, D. D., Mine Safety and Health, 2002 National andInternational Mine Rescue Contest Awards Banquet, KeynoteAddress, Reno, Nevada, August 22, 2002.
Lauriski, D. D., Abandoned Mine Safety, 2002 AnnualConference National Association of Abandoned Mine LandPrograms, Park City, Utah, Sept. 16, 2002.
Lauriski, D. D., Mine Safety and Health, 76th Annual Sentinels ofSafety Awards Presentation, National Mining Association, KeynoteAddress, Washington, D.C. September 19, 2002.
Lauriski Dave D., Mining Safety Supervision In the United States,1st 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.
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David D. Lauriski, 6
Safety Solutions International
Lauriski, D. D., Mine Safety and Health, West Virginia CoalAssociation, 30th Annual Coal Symposium Keynote Session,Charleston, W.Va., January 9, 2003.
Lauriski, D. D., Mine Safety and Health, National Stone, Sandand Gravel Association Annual Convention, Keynote Address,Orlando, Florida, February 11, 2003.
Lauriski, D. D., Mine Safety and Health, Joint Mine Safety andHealth Conference South Central District, Keynote Address, NewOrleans, Louisiana, March 11, 2003.
Lauriski, D. D., Mine Safety and Health, Southeastern MissouriMine Safety Association, Keynote Address, Annual State AwardsBanquet, Park Hills, Missouri, March 20, 2003.
Lauriski, D. D., Mine Safety and Health, North CarolinaDepartment of Labor, Mine and Quarry Bureau, Keynote Address,26th Mine Safety and Health Conference, Wilmington, NorthCarolina, March 27, 2003.
Lauriski, D. D., Mine Safety and Health, Kentucky CoalOperators & Associates Meeting, Keynote Address, Pikeville,Kentucky, April 17, 2003.
Lauriski, D. D., Mine Safety and Health, Industrial MineralsAssociation - North America Annual Meeting, Keynote Address,Ponte Vedra Beach, Florida,April 28, 2003.
Lauriski, D. D., Mine Safety and Health, Southern Regional MineRescue Contest Awards Banquet, Keynote Address, New Iberia,Louisiana, May 3, 2003.
Lauriski, D. D., The Quecreek Rescue,Quecreek AnniversaryCelebration, Keynote Address, Somerset, Pennsylvania, July 26,2003.
Lauriski, D. D., Safety and Health in Mines, National SafetyCouncil 91st Annual Congress and Exposition, Keynote Session,Chicago, Illinois, September 9, 2003.
Lauriski, D. D., Mine Safety and Health,2003 National Coal MineRescue, 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 ofSafety Awards Presentation, Keynote Address, National MiningAssociation, Washington, D.C., October 2, 2003.
Lauriski, D. D., Mine Safety and Health, 2003 TRAM Conferenceand Mine Instructor Seminar, Keynote Address, Beckley, WestVirginia, October 14, 2003.
Lauriski, D. D., Mine Rescue and Mine Safety, 79th AnnualNational Mine Rescue Association, Keynote Address, Washington,Pennsylvania, November 14, 2003.
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David D. Lauriski, 7
Safety Solutions International
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 CoalAssociation, 2004 Coal Symposium, Charleston, West Virginia,January 15, 2004.
Lauriski, D. D., Mine Safety and Health, Blasting VibrationTechnology Conference, Keynote Address, Key West, Florida,January 19, 2004.
Lauriski, D. D., Alliances for Mine Safety and Health, SigningAgreement with International Union of Operating EngineersAnnual Meeting, Bal Harbor, Florida, January 20, 2004.
Lauriski, D. D., Mine Safety and Health, Indiana MineralAggregates Association Safety Achievement Awards Luncheon,Keynote Address, Indianapolis, Indiana, February 5, 2004.
Lauriski, D. D., Mine Safety and Health, Washington GroupInternational Safety Workshop, Keynote Address, Boise, ID,February 10, 2004.
Lauriski, D. D., Mine Safety and Health, Mine Safety and HealthAcademy, Keynote Address, Mine Inspector GraduationCeremony, Beaver, WV, March 23, 2004.
Lauriski, D. D., Mine Safety and Health, South Central Joint Mine
Health & Safety Conference, Keynote Address, Albuquerque, NewMexico, March 30, 2004.
Lauriski, D. D., Creating a Culture of Safety, 2004 G. Albert
Shoemaker Lecture in Mineral Engineering, Pennsylvania StateUniversity, PA, April 23, 2004.
Lauriski, D. D., Mine Safety and Health, Annual Mine VentilationSymposium, Keynote Address, Anchorage, Alaska, May 17, 2004.
Lauriski, D. D., The State of Mine Safety and Health, 2004 MineHealth & Safety Conference, Keynote Address, University of Utah,Salt Lake City, Utah, May 24, 2004.
Lauriski, D.D., Mine Safety and Health, 2004 Metal andNonmetal National Mine Rescue Contest, Awards Banquet,Keynote Address, Reno, NV, July 15, 2004.
Lauriski, D. D., Alliances in Mine Safety and Health, 20th AnnualIronworkers Training Meeting, Keynote Address, San Diego, CA,July 18, 2004.
Lauriski, D. D., Mine Safety and Health Alliances, United StatesCoal Summit 2004, Keynote Address, Beckley, WV, July 22, 2004.
Lauriski, D. D., Mine Safety and Health, 2004 Georgia MiningAssociation Annual Convention, Keynote Address, Hilton Head,SC, July 24, 2004.
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David D. Lauriski, 8
Safety Solutions International
Lauriski, D. D., Mine Safety and Health, Mine InspectorGraduation Ceremony, Keynote Address, MSHA Academy,Beckley, WV, July 27, 2004.
Lauriski, D. D., Enforcement Strategies: Targeting Resources,Measuring Results, United State Department of Labor SeniorExecutive 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 anIndustry Free of Fatalities and Injuries, 2004 World MINExpo, LasVegas Convention Center, Las Vegas, NV, September 28, 2004.
Lauriski, D. D., Mine Safety and Health, 78th Annual Sentinels ofSafety Awards Presentation, Keynote Address, MINExpo 2004,
Las Vegas, NV, September 28, 2004.
Lauriski, D. D., Mine Safety and Health, 2004 TRAM-NationalMine Instructor's Seminar, Keynote Address, National Mine Healthand Safety Academy, Beckley, WV, October 13, 2004.
Lauriski, D. D., Mine Safety and Health Issues of the Day,International Mine Safety Professionals Annual Meeting, KeynoteAddress, Clearwater, FL, June, 2006.
Lauriski D. D., The State of Mine Safety Today, Rocky MountainCoal Mining Institute, Annual Meeting, Steamboat Springs, CO, June2006
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Performance Coal CompanyUpper Big Branch Mine-South
Accident Investigation
U.S. Department of Labor State of West VirginiMine Safety and Health Administration Office of Miners Health Safety and Trainin1301 Airport Road 1615 Washington Street, EaBeaver, West Virginia 25813-9426 Charleston, West Virginia 25311-212
Upper Big Branch Mine South Accident Investigation Protocols
The underground portion of the investigation being conducted at Upper Big Branch Mine South of theApril 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 Governors Independent Investigation Panel
(GIIP); Performance Coal Company, including Massey Energy and any of its related entities (theCompany); and duly recognized representatives of the miners of the Upper Big Branch Mine, includingthe 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 oneOMHS&T representative. One Company representative, one GIIP representative, and one minersrepresentative 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 byMSHAs Accident Investigation Team, in consultation with the OMHS&T team.
5. The members of each team may take notes during the investigation.
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Mapping Protocols
6. One map only shall be produced by each Mapping Team for each area of the mine. All teammembers shall sign and date the map when completed. It is anticipated that copies will be made at theconclusion 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 bythe explosion have been partitioned into 22 separate sections. Each of the Mine Dust Survey Teams willbe 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 toeach Mine Dust Survey Team. The provided package also contains one or more individual section mapsthat are applicable to each individual Mine Dust Survey Team. The section maps clearly indicate thesample locations where that particular team is responsible for taking samples.
10. Only MSHA representatives will take samples. MSHA anticipates that on many occasions, it willobtain excess materials in its samples; in such cases, it will share this excess with the parties so that theymay 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, itis acceptable to relocate the sample to within 20 feet of the original location on either side of thecenterline of the pillar. This provides for a length of 40 feet along each pillar in which an acceptablesample can be obtained. The MSHA and OMHS&T representative(s) will decide where to precisely takeeach sample.
12. Sample tags shall be filled out at each sample location. The tag must indicate the sample locationand the type of sample taken.
13. If no acceptable sample can be obtained within the 40 feet length, a sample tag shall still becompleted that includes the location identification. Also, the reason for no sample shall be designated onthe tag.
14. If any Mine Dust Survey Team completes the sampling requirements for their assigned section orsections, 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.
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17. Samples are to be taken out of the mine at the end of the shift. All samples are to be transferred tothe custody of MSHAs investigators on the Evidence Gathering Team. The Evidence Gathering Teamwill store all samples in a secure location.
Electrical Protocols
18. The primary purpose of the Electrical Teams will be to analyze circuits and equipment inproximity 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/ortaken into custody by MSHA for further testing.
20. Electrical equipment and circuits not in proximity to the point of origin will be examined byMSHA and OMHS&T electrical specialists to collect evidence and to assess compliance with therequirements of 30 CFR and state law.
Photography Protocols
21. No photographs other than the official team photographs will be taken by any party. Only MSHAor OMHS&T representatives will take photographs for each team.
22. The MSHA and OMHS&T persons on each Photography Team are responsible for determiningwhich photographs to take. GIIP, Company, and Miners Representatives may request additionalphotographs. 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 forinvestigative 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 takephotographs of any item designated by the MSHA or OMHS&T representatives on the Flames andForces Team.
25. A Photography Team will be responsible for taking photographs of damage to ventilationcontrols, equipment, and other items of interest in the extended area affected by explosion forces, asdetermined by the Accident Investigation Team.
26.
From the time that any Photography Team enters the mine, methane will be continuouslymonitored at their location. In the event that the methane concentration reaches 1% or greater, allcamera equipment will be moved to a location with less than 1% methane and all photography work wilcease until the methane concentration is reduced to less than 1%.
27. All photographs will be retained by MSHA. While underground, GIIP, Company, and MinersRepresentatives Photography Team members may spend a reasonable time reviewing photographstaken on the digital screen after they are taken. MSHA anticipates providing GIIP, the Company, andMiners Representatives copies of each photograph on a disk (or via similar method) at the conclusion of
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each shift. Should this not be feasible on particular occasions, MSHA will provide copies within 24 or 48hours 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; ande. Assist in identifying the source of ignition.
Geological Mapping Protocols
29.
Locations for photographs will be annotated on the map, and a Photography Team willaccompany the Geologic Mapping Team upon completion of the geologic mapping to collectphotographs in annotated areas. Photograph collection will be at the direction of the MSHA andOMHS&T geologic mapping team member.
30. Geologic mapping will be performed by the MSHA and/or OMHS&T representative. One maponly shall be produced by the Geological Mapping Team for each area of the mine. All team membersshall sign and date the map when completed. It is anticipated that copies will be made at the conclusionof each shift. They will be distributed to each investigation team.
31. Individual members on the Geological Mapping Team are responsible for their own notesregarding observations and interpretations of geologic or stress features, which may be kept separatefrom the map.
Evidence Gathering Protocols
32. Evidence will be identified by MSHA and OMHS&T investigators and tagged with reflectivemarkers, if necessary.
33. Only the Evidence Gathering Team will gather evidence. Other teams may identify and flagevidence for referral to the Evidence Gathering Team.
34. After a Photography Team photographs the designated evidence, the Evidence Gathering Teamwill 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 ofCustody sheets to be completed.
36. Upon removal from the underground areas of the mine, evidence will be placed in a securelocation on the surface area of the mine for transport to storage or testing facilities.
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37. MSHA and OMHS&T shall maintain custody and control over the items they have received ortaken at all times unless release of the items is necessary for the purpose of allowing testing by anoutside laboratory. In such an event, MSHA and OMHS&T shall agree on the best means to ensure thatadequate custody is maintained. Except as set out below, MSHA and OMHS&T shall also protect andpreserve 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 accessshall 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) ofany tests to be conducted on evidence, the locations and dates where evidence testing is to occur, andany other relevant information, and given an opportunity to attend the testing. The parties will beprovided with testing protocols relating to the particular evidence at issue prior to the testing wheneverpossible, 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 overany item returned to it pursuant to the same conditions listed above for a period of time to be specifiedby MSHA or the OMHS&T.
41. Team members shall consult with each other prior to the removal of physical evidence. MSHA orOMHS&T shall map the area prior to the removal of physical evidence.
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Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab C
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Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab D
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