Coal Tattoo

Federal investigators have determined that a page was removed from the “fireboss book” at Massey Energy’s Upper Big Branch Mine, where 29 workers were killed a month ago in the worst U.S. coal-mining disaster in 40 years.

That’s according to a new court filing by lawyers for the families of two of the miners who died in that horrific April 5 explosion in Raleigh County.

U.S. Mine Safety and Health Administration officials revealed this potentially important piece of information to the families of the Upper Big Branch miners during a closed-door meeting last week at Liberty High School in Beckley, according to the court documents.

Rachel Moreland and Mark Moreland, lawyers for the families of William I. Griffith and Ronald Maynor made this revelation public in a legal memorandum filed in the lawsuit in which they and the United Mine Workers seek to force MSHA to conduct its investigation of the disaster through a public hearing. The legal memo, filed today in U.S. District Court in Charleston, says this is what happened at that meeting last week:

After much prodding by miners’ families, MSHA admitted that the investigative team determined that one page of a fire boss book has been removed.

The legal memo does not indicate what date the page covered, or provide any additional details (though I’m told it was from sometime in October 2009).

MSHA officials were not able to comment on the issue when I reached them this evening. Massey officials did not immediately respond to a request for comment.

UPDATED:  MSHA coal administrator Kevin Stricklin confirmed Friday that agency investigators found a page missing from the book where daily ventilation fan examinations were recorded. “We do have a page that was ripped out. It’s something we’re going to look into.”

UPDATED:  Shane Harvey, general counsel for Massey, told me in an e-mail message tonight that he did not know what the Morelands were referring to, and added:

I can say that we are cooperating fully in the investigation and have made and will make every effort to preserve and turn over all official mine records to the investigating agencies. We will not tolerate any effort to alter or hide such evidence.

But in their brief, the Morelands commented:

This disturbing example of mutilation of documentary evidence compels the conclusion that in order to assure evidence is fully produced, and produced unaltered, MSHA must issue subpoenas.

Of course, part of the problem for MSHA is that unless it convenes a public hearing, it can’t issue subpoenas. Congress did not give MSHA subpoena power when agency officials choose — as MSHA chief Joe Main has done — to conduct their investigation behind closed doors.

So we’re all clear … the fireboss book is the place where mine foremen and certified company examiners are required to write down the findings of their safety checks of the underground mine. Falsifying entries in these books is a felony.

In an affidavit filed with their legal brief, Mark Moreland explained:

It is my understanding that MSHA considers removal of any page from a “fireboss book” to be a willful/knowing violation and a potential criminal violation …

Updated: Moreland suggests that, given its violation history, it is possible that a criminal investigation was focused on the Upper Big Branch Mine even before the April 5 explosion — a suggestion that is backed up by this Gazette story we published the week of the disaster.

Moreland also reveals this bit of information:

Prior to the May 5, 2010, MSHA meeting, my partner and I had a conversation with MSHA Director Joe Main  during which I advised him that it was my understanding that it had been reported that ‘another federal agency’ [the FBI] had conducted in excess of two dozen interviews in the community; Mr. Main responded that he was sure that they likely had conducted far more interviews than that by the time of our conversation.

And, Moreland had this to say about whether MSHA was interested in what the families of the miners who died at Upper Big Branch had to say about conditions at the mine prior to the disaster:

While family members attempted to discuss information regarding UBB with MSHA during the MSHA meetings (including, but not limited to, such meaningful information that the mine, or a portion thereof, was evacuated just days before the explosion due to the presence of methane without notification of MSHA by the mine operator), no apparent attempt was made by any MSHA personnel to elicit names or phone numbers of family members who were making such attempts, and to my knowledge, no MSHA personnel has followed up with any of the family members who indicated at the meetings that they had such information.

MSHA has not kept its promises to the families, has not followed the laudable stated positions of Director Main and Secretary Solis in its actions, nor agreed to involve the families in a meaningful way in the investigation of the UBB tragedy that killed the families miners.