massey energy's supplemental response against msha order

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 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.

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


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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


30/56Performance Supplemental Response Exhibit 2


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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.

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


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David D. Lauriski, 2


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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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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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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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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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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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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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.

Performance Supplemental Response Exhibit 2 Declaration of David D. Lauriski - Tab 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 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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massey energy's supplemental response against msha order

Documents