The Register-Herald, Beckley, West Virginia

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June 4, 2011

Massey issues report on its investigation

Alpha Natural Resources says release was inappropriate and plans to conduct its own review

With Alpha Natural Resources’ buyout of Massey Energy complete, a former Massey chairman announced an internal report from the investigation of the Upper Big Branch mine disaster can be released without publicity “that could possibly detract from focus on the impending shareholder votes.”

The report, finished weeks ago, but released Friday morning, largely serves as Massey’s evidence supporting earlier claims that the explosion was the result of a massive buildup of methane. The Massey team says it found excessive coal dust and other poor safety procedures were not the cause of the explosion, which is contrary to an independent investigation commissioned by the West Virginia governor’s office and federal teams from the Mine, Safety and Health Administration.

The report was released just two days after the completion of a merger between Alpha and Massey Energy, a relationship that may already be a little stressed. Alpha officials called the release inappropriate, as they had not had the opportunity to review the report.

“In Alpha’s view, a view it had expressed to Massey prior to the consummation of their merger, it was not appropriate to release any report purporting to contain Massey’s assessment of the cause of the Upper Big Branch explosion before Alpha had an opportunity to fully understand and assess the situation,” a release from Alpha states.

“Alpha will conduct its own review into the events at Massey’s Upper Big Branch mine and intends to fully cooperate with pending government investigations.”

A cover letter accompanying the report from former Massey chairman Bobby Inman is dated June 2, but the report appears to have first surfaced to the public in an article in the Wall Street Journal.

The explosion at the Massey subsidiary Performance coal mine caused the deadliest single-mine incident in four decades and claimed the lives of 29 coal miners.

“At the outset of this investigation, we made a commitment to the UBB families to share with them our findings regarding the underlying causes of the April 5, 2010, mine explosion in Raleigh County, W.Va.,” Inman said. “This report is an accumulation of several months of meticulous evidence collection and thorough data analysis by nationally renowned experts.”

Inman was also heavily critical of the idea that MSHA could independently conduct an investigation when its enforcement efforts may have played a role in the disaster.

“It is unacceptable to expect MSHA to act as the investigator, judge and jury when their direct actions or lack thereof may have contributed to the accident,” Inman wrote in a cover letter accompanying the report. “It is not in the public’s best interest to have a federal agency, in effect, investigating itself.”

MSHA has not yet released its own report of its investigation but has said it is largely in agreement with the independent investigation, which was critical of Massey and MSHA officials. The MSHA report was expected June 29, at a briefing for family members, but an MSHA official recently said the report would likely not be ready by that date.

Inman called on members of Congress to examine the possibility of establishing an independent review committee or agency to investigate mining accidents.

The report concludes that the federal investigation was “flawed” and said a critique of the independent report will be coming within “the next week or two.” For now, Inman said Massey has “significant disagreements” with the independent investigation.

The key finding of the Massey report was that the explosion was the result of a massive inundation of natural gas that most likely originated in Tailgate 21 entries.

Other Massey findings in contrast with MSHA and independent investigations include that UBB was properly rock dusted and the ventilation system did not contribute to the disaster.

Rock dust is used to decrease volatility of the air in a mine by making explosive coal dust more inert.

“If the data supported the conclusion that Performance was at fault, we would have embraced that conclusion and devoted our energies to addressing any shortcomings in process, maintenance, training or safety programs,” the report states.

According to the Massey investigators, air samples captured by MSHA just after the explosion showed “conclusively” that the mine was inundated by a massive amount of gas very different in composition from typical coalbed methane. Massey report authors contend that, in the five hours after the explosion, the mine continued to liberate more than two times the amount of gas ordinarily released during production.

Handheld and equipment-mounted gas monitors also indicated a spike in carbon monoxide and methane just before the explosion, the report said.

Further, the authors state, the explosion’s footprint is indicative of  “hot gas damage” and does not resemble a coal dust explosion. A lack of embedded coal dust particles, accelerated by explosion, is also evidence of a natural gas explosion, Massey’s experts wrote.

The report also claims MSHA-ordered modifications to the ventilation system at Upper Big Branch lowered the efficacy of the system but added ventilation did not contribute to the explosion.

The report goes even further, criticizing MSHA’s investigative process.

“ ... MSHA lured witnesses, sometimes under false pretenses and often without an attorney or representative, to interviews, where it framed questions to induce testimony that only supported MSHA’s conclusions,” the report states. “Because the Mine Act plainly requires compelled testimony to occur in a public forum, MSHA co-opted the state agency’s subpoena authority to haul witnesses into interviews only to subject those individuals to an interrogation conducted largely by MSHA, rather than the state.”

The report also accuses the federal agency of destroying evidence inside the mine after the explosion under the pretext of safety.

“... what MSHA could not gain through a natural degradation of the mine, it sought to achieve more directly by attempting to coerce Performance to destroy evidence,” the report states. “As the record demonstrates, MSHA repeatedly threatened to issue citations against Performance when the company refused to destroy potentially critical evidence, namely, by ordering Performance to apply rock dust or water to areas still under investigation by the company.”

Massey also accuses MSHA of intimidating one of its experts to the point that he feared for his future and went so far as to consider “retaining guards to protect his family and himself.”

At least 13 families of the UBB miners have started litigation against Massey while eight have agreed to settlement offers from the company. The report will likely muddy the water for families seeking compensation, as the report largely serves to reduce Massey’s culpability in the accident.

“In light of the above, the government cannot currently say with any reasonable confidence that Performance management or its members caused the UBB tragedy,” Massey experts wrote. “The overwhelming weight of the scientific data indicates that a massive inundation of natural gas, rather than coal dust, caused the UBB explosion.”

— E-mail: tkuykendall@register-herald.com

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