Coal Tattoo exclusive: Massey mine failed dust-control standards in 79 percent of samples

September 17, 2010 by Ken Ward Jr.

Not so long ago, Massey Energy General Counsel Shane Harvey had this to say when The Associated Press asked him about the rock-dusting at his company’s Upper Big Branch Mine:

[The mine] appears to have been very well rock dusted, with rock dust still in place.

Well, not so much — at least according to data that the U.S. Mine Safety and Health Administration presented to families of the 29 miners who died in that April 5 explosion at Upper Big Branch. During a closed-door meeting last evening in Beckley, MSHA officials gave told the families of these results:

— 1,803 samples taken

— 78.92 percent out of compliance

Several sources who attended last evening’s meeting described the rock-dusting data to me, and it seems likely that MSHA officials will confirm these results during a media briefing scheduled for later this morning.

Remember that “rock-dusting” — spreading crushed limestone on the surfaces of the underground mine tunnels — is a key ingredient in controlling any ignitions or explosions that occur during the mining process. MSHA rules require that dust collected from those surfaces have a certain percentage of incombustible materials (rock-dust) in order to prevent small ignitions from turning into big disasters.

Also at last night’s meeting, family members were told that Massey Energy mine managers from Upper Big Branch are challenging the right of federal investigators to sit in on witness interviews being conducted under the authority of subpoenas issued by the West Virginia Office of Miners’ Health Safety and Training. Readers may recall that the state office has general subpoena power, while MSHA can only compel witnesses to appear for interviews if federal officials call a public hearing.

Stay tuned for more following this morning’s MSHA media briefing …

22 Responses to “Coal Tattoo exclusive: Massey mine failed dust-control standards in 79 percent of samples”

  1. understand says:

    MSHA of all institutions should understand that the dust samples that were taken are compromised. One would think that the sample needed to be taken before dust, ash, and debris were spread througout the mine by the explosion.

    SHAME on MSHA for releasing data that would be misunderstood by the general public. SHAME on CoalTattoo for releasing data without explaining the fact that these samples are tainted (by the explosion itself).

    If they are not tainted – maybe someone from MSHA can explain their theory on why they are not.

    The samples may have failed the requirements, but UNDERSTAND why they failed and then report the news.

  2. Ken Ward Jr. says:

    understand,

    Certainly, if MSHA ends up citing Massey based on these samples, that is exactly what the company will argue.

    In fact, MSHA lost such a case following the Jim Walter disaster in Alabama in 2001 … you can read that ruling here:

    http://www.fmshrc.gov/decisions/alj/se2003-160.html

    (There is a follow-up Commission order here, http://www.fmshrc.gov/decisions/commission/se2003-160-08302006.html

    This case may be somewhat different, given that the entire Jim Walters mine was flooded after the explosion, and that may be a different factual situation.

    The argument MSHA will make is that the explosion burned up some of the combustible comment of the dust samples, meaning that the samples would actually over-estimate the incombustible content and thus the compliance rate.

    Ken.

  3. Ellen says:

    According to MSHA’s Kevin Sticklin, part of the combustible content of rock dust samples is actually “used up” when an explosion occurrs. So, the samples are not necessarily representative of the conditions — but this would be in the operator’s favor since some of the combustible content blew up when the explosion occurred, and therefore cannot be measured.

  4. joe says:

    Coal Tatto = Massey Haters

    Get the fact straight before you slander peoples names!

  5. Phil Smith says:

    I’ve read this post several times and have yet to see where anyone or any entity has been slandered. Ken did his job and reported what MSHA has said. As Ken and other journalists have told me on more than one occasion when I have complained about something they wrote, the fact that I don’t like it doesn’t mean they’re not going to report it. Those who want “news” reported in a way that they can comfortably agree with all the time need to stick with Fox News.

  6. Ken Ward Jr. says:

    As I predicted, here’s Massey’s response, just issued by their PR firm:

    This is not the first time MSHA has attempted to use unproven or faulty coal dust claims in their investigation efforts. In the 2005 legal proceeding MSHA v. Jim Walter Resources, Inc., federal investigators had their coal dust theories rejected when they used contaminated, two-month-old post-accident dust samples and falsely asserted they were representative of non-compliant coal dust levels immediately preceding a mine explosion. In the UBB investigation, MSHA’s is using the same dust specialist from the Jim Walter Resources, Inc. case, Clete Stephan, and employing the same dust collection techniques that were rejected by an administrative law judge in that proceeding. Unfortunately, MSHA has failed to learn the lessons from its prior investigative mistakes.

    MSHA’s narrow-minded focus on compromised coal dust evidence is doing a disservice to those UBB families entitled to concrete answers unequivocally supported by accurate scientific findings and the facts. Sadly, MSHA appears to be more interested in proving itself right, even if the evidence suggests the agency’s presumptions are wrong.

    Ken.

  7. Ken Ward Jr. says:

    Readers … in case folks aren’t clicking through the links, I wanted to post the portion of the ALJ decision from the Jim Walter case above. I normally don’t like comments this long that simply quote a court ruling or something … but this is pretty important and folks should read it.

    B. The Citation and Orders Relating to the Incombustible Content of Mine Dust

    Citation No. 7328081 charges a violation of 30 C.F.R. § 75.403 in that, of 123 dust samples collected during the accident investigation throughout 3 East, 4 East, the No. 4 Section, the No. 6 Section, and the connecting entries of Shaft 5-9, 121 of the samples did not meet the regulatory requirements for incombustible content of the combined coal dust, rock dust, and other dust. The citation also specifically notes that none of 31 band samples taken in an area of the No. 4 Section inby the previously flooded area (“inby the toe of the water”) met the requirements of the regulation.40 The citation contains an S&S finding. It also asserts that the 13 miners were fatally injured as a result of the violation, that the violation was due to JWR’s unwarrantable failure to comply with section 75.403, and that the company’s negligence was high. Gov’t Ex. 1.

    Section 75.403 states in part:

    Where rock dust is required to be applied, it shall be distributed upon the top, floor and sides of all underground areas of the coal mine and maintained in such quantities that the incombustible content of the combined coal dust, rock dust, and other dust shall be not less than 65 per centum, but the incombustible content in the return aircourses shall be no less than 80 per centum.

    30 C.F.R. § 75.403.

    Order No. 7328088 charges a violation of 30 C.F.R. § 75.360(b)(3) in that an adequate preshift examination was not conducted in the No. 4 Section for the afternoon shift of September 22, because inadequate rock dust was not identified by the examiner.41 The order contains an S&S finding. It also asserts that the 13 miners were fatally injured as a result of the violation, that the violation was due to JWR’s unwarrantable failure to comply with section 75.403, and that the company’s negligence was high. Gov’t Ex. 5.

    Section 75.360(b)(3) in part requires preshift examinations in:

    Working sections and areas where mechanized mining equipment is being installed or removed, if anyone is scheduled to work on the section or in the area during the oncoming shift. The scope of the examination shall include the working places.

    30 C.F.R. § 75.360(b)(3).

    Order No. 7328104 charges a violation of 30 C.F.R. § 75.362(a)(1) in that an adequate on- shift examination was not conducted for the afternoon shift of September 22, because inadequate rock dust was not identified by the examiner on the No. 4 Section where two mechanics were assigned to work.42 The order contains an S&S finding. It also asserts that the 13 miners were fatally injured as a result of the violation, that the violation was due to JWR’s unwarrantable failure to comply with section 75.403, and that the company’s negligence was high. Gov’t Ex. 6.

    Section 75.362(a)(1) states in part:

    At least once during each shift or more often if necessary for safety, a certified person designated by the operator shall conduct an on-shift examination of each section where anyone is assigned to work during the shift and any area where mechanized mining equipment is being installed or removed during the shift. The certified person shall check for hazardous conditions.

    30 C.F.R. § 75.362(a)(1).

    Order No. 7328105 charges of violation of section 75.360(b)(3) in that an adequate preshift examination was not conducted for the day shift on September 23, because: (1) the examiner did not inspect the areas where miners were scheduled to perform maintenance and to roof bolt on the No. 4 Section but rather limited the examination to electrical installations; and, (2) the examiner did not identify obvious and widespread inadequate rock dust.43 The order contains an S&S finding. It also asserts that the 13 miners were fatally injured as a result of the violation, that the violation was due to JWR’s unwarrantable failure to comply with section 75.360(b)(3), and that the company’s negligence was high. Gov’t Ex. 7.

    Order No. 7328106 charges a violation of section 75.360(b)(3) in that an adequate preshift examination was not conducted for the afternoon shift of September 23, because the examiner did not identify obvious and widespread inadequate rock dust.44 The order contains an S&S finding. It also asserts that the 13 miners were fatally injured as a result of the violation, that the violation was due to JWR’s unwarrantable failure to comply with section 75.360(b)(3), and that the company’s negligence was high. Gov’t Ex. 8.

    1. Citation No. 7328081

    Section 75.403 requires rock dust to be distributed on the top, floor, and sides of all underground areas of a coal mine and maintained in such quantities that the incombustible content of the combined coal dust, rock dust, and other dust is not less than 65%, and the incombustible content in the return aircourses is not less than 80%. The regulation, which restates section 305(d)(2) of the Mine Act (30 U.S.C. § 865(d)(2)), first was set forth as section 304(d)(2) of the Federal Coal Mine Health and Safety Act of 1969 (the “Coal Act”). 30 U.S.C. § 864(d)(2) (1976).

    Because the Coal Act established numerical minimal levels for the incombustible content of the combined dust, it was an axiom of coal mine safety law that a violation of section 304(d)(2) and/or its implementing regulation could be established only by numerical results from valid dust samples results that proved the required minimum level of incombustible content had not been reached. In one of its earliest decisions, the Commission’s predecessor, the Interior Board of Mine Operations Appeals, found that:

    Since Congress specifically delineated percentages . . . [a violation of section 304(d)(2)] must be supported by more than the mere visual observation of an inspector. Unless samples support an alleged violation . . . it cannot be sustained.

    Hall Coal Co., Inc., 1 IBMA 175, 178 (Aug. 22, 1972); see also Newsome Brothers, Inc., 1 IBMA 190, 192-93 (Sept. 29, 1972) (invalidating alleged violation based “solely upon the visual observation of the inspector”).

    The Commission’s judges long have followed the same principle in Mine Act cases. See, e.g., Consolidation Coal Co., 22 FMSHRC 455, 466 (Mar. 2000) (ALJ), rev’d on other grounds, 23 FMSHRC 588 (June 2001). The Secretary also has recognized the principle. Reiterating that observation alone is insufficient to support a violation, she has instructed her inspectors to “[c]ollect samples to substantiate the violation when citing inadequate rock dust.” Coal General Inspection Procedures Handbook, 4-12 (Apr. 1, 1969).45

    In most instances when the agency collects and analyzes dust samples, its purpose is to determine the incombustible content of the dust as of the moment the samples are collected. After analysis of the samples, if a sufficient percentage of the samples indicates the dust content does not meet required minimum levels, a citation charging a violation of section 75.403 is issued. The alleged violation relates back to the time of sampling.

    The citation at issue presents a very different scenario. The agency is not alleging the sample results indicate a violation as of the time the samples were collected. Rather, it is alleging the results indicate a violation that existed almost 2 months before the samples were taken, that is to say, immediately before the roof fell on September 23.46 In other words, the Secretary is asserting that the sample results represent pre-existing conditions. There is nothing wrong with such an assertion, provided the Secretary can prove that conditions relating to the mine dust did not change between the time of the alleged violation and the samples’ collection; or, alternatively, provided the Secretary can prove that although conditions changed, the sample results nonetheless are sufficiently representative of results that would have been obtained had the samples been collected at the time of the alleged violation.

    In the context of this case, for the sample results to be sufficiently representative, the samples must reflect the particular characteristics they would have had if they had been taken immediately prior to the roof fall. They need not consist of identical amounts of combined moisture, coal dust, rock dust, and other dust that then existed. If that were required, the changing conditions to which all miners are subject would ensure that post-event samples rarely perhaps never could establish a violation. But to carry her burden of proof, the Secretary must be able to show by a preponderance of the evidence that no intervening events fundamentally changed the samples’ contents and, thus, that the samples are sufficiently like those that would have been collected at the time the violation allegedly occurred.

    The Secretary argues that she has established the reliability of the dust samples and that JWR has failed to show how “changed conditions in the mine would have altered the percentage of incombustible content in the relevant areas overall.” S. Br. at 79. She asserts that, “In the absence of evidence demonstrating . . . changes in the mine site would render the dust samples meaningfully dissimilar to the conditions before the explosion, the samples establish a violation” of the cited standard. Id. at 80.

    Not surprisingly, JWR counters that the Secretary has failed to furnish the proof necessary to show that the company did not maintain the mine in compliance with section 75.403. JWR Br. II-1. JWR maintains the Secretary has failed to meet her burden because the post-explosion samples have no probative value. Rather than reflect conditions existing immediately prior to the roof fall, they are “samples of a mine environment so radically and materially different from pre- explosion conditions that are legally at issue … [they] lack any legal relevance.” Id. at II-14. The company also sets forth a systematic and concerted evaluation of what it claims are manifold inadequacies in the testimony of the Secretary’s expert witness on the dust issue, Clete Stephan. Id. at II-38-54.

    a. Changed Conditions

    The testimony is replete with descriptions of the rock dusting and coal dust reduction program that was in effect at the No. 5 Mine and of its use on the No. 4 and No. 6 Sections. See Tr. 4 at 322-23; Tr. 5 at 210-13, 234-35, 312-13; Tr. 6 at 399; Tr. 12 at 188-92; Tr. 13 at 15, 60; Tr. 15 at 982. While the adequacy of the rock dust applications is at issue, there is really no dispute that most parts of the areas were in fact rock dusted.

    In addition to this testimony, the general visual appearance of the areas indicated the presence of varying amounts of rock dust. The descriptions of the areas ranged from “white” (Tr. 3 at 495, 512 miner Joe Phillips describing the roof and ribs of the No. 6 Section on September 21 and 23; Tr. 13 at 27-30 foreman Mike Buchanan describing entries in the No. 4 Section on September 22) to “dark grey” and “black” (Tr. 3 at 339-40 miner Eddie Maxwell describing areas on the No. 4 Section on September 21).

    However, following the explosions a visually dramatic change in these conditions was noted by every witness who saw the sampled areas. Whatever had been their look and condition prior to the explosions, everything in the affected areas the ribs, the floor, the roof, and the equipment was covered with a coating of soot and/or coal dust. Fresh coal littered the floors and was exposed on many ribs. No rock dust was visible. The result was that the affected areas, and especially the No. 4 Section, were blacker than night, and without digging into the floor or taking away surface dust from the roof and ribs, rock dust could not be seen.

    The testimony describing this change was compelling. Dale Byram, JWR’s manager for safety and training who went underground approximately 3 hours after the second explosion, stated that, as the rescue team he was leading proceeded inby, he began to see light grey dust on the track. The closer the team came to the No. 4 Section, the darker in color the mine surfaces became and debris from the explosion became noticeable. Tr. 12 at 395, 397. For example, at the 3 East turnout he saw a significant amount of debris, including a large pod duster that had been blown from one side of the track to the other. Id. at 398-99. As the crew arrived at what would have been the entrance to the No. 6 Section, the debris on the track forced the crew to abandon the manbus and proceed on foot. Id. at 399. Everything from 3 East inby was “solid black.” Id.

    Approximately 42 days later, after the mine had been flooded and the water had been removed, Byram was able to view all of the No. 4 Section. The changed conditions were even more dramatic than they had been immediately following the explosions. In addition to the “consistent blackness everywhere” and “total destruction” (Tr. 12 at 422), Byram could see that coal had been scoured from the pillars and that metal doors were wrapped around steel pipes “much like you see in a tornado.” Id. at 423. A ram car was mangled. Stoppings were blown out. Everything was covered with a sooty layer of black. The only evidence of rock dust was seen when the black layer was broken through and scraped away. Id. at 424.

    Terry Eulenstein, a company roof bolter, who participated in the collection of dust samples, also described the No. 4 Section as “black” and a place of “total destruction.” Tr. 11 at 277. Eulenstein’s testimony was echoed and supplemented by union safety committeeman Ricky Parker, who took part in the post-accident investigation. Parker noted that the roof, ribs, and floor were so black that light from his and others’ cap lamps was simply swallowed up and absorbed by the darkness. Fresh coal was everywhere in the area, including coal from sloughed ribs. Tr. 6 at 334-35, 351.47 Parker thought that conditions before and after the explosions were as different as night and day. Id. at 349.

    Another union safety committeeman, Eric Barnes, who had been on the No. 4 Section on September 21 and who revisited it on November 1, also thought the section was “totally different.” Tr. 2 at 520. Like many others, Barnes noted that equipment was destroyed, ribs were blown away, and particles of coal of all sizes littered the section. Id. at 520-22. Roof bolter David Terry, who was on the No. 4 Section and in the affected areas before and after the explosions, agreed as to the totality of the change, and he stated that hardly “a grain” of rockdust was visible anywhere. Tr. 5 at 78. In fact, conditions on the No. 4 Section were so different, John Puckett, the day shift foreman who was last on the section on September 23, stated if the mine had looked on September 23 as it did following the explosions and flooding, his crew “would have probably called . . . [MSHA] and the [union] safety committee before we got to the section, if I had even tried to make them go.” Tr. 4 at 252.

    Trent Thrasher, who was the deputy mine manager at the time of the explosions, and who went underground during the course of the investigation, saw that the ribs had sloughed and rolled out into the entries and that coal was scattered everywhere from the intake shaft to the faces. Tr. 12 at 187-88. Gary Toxey, then a member of the union, who was part of the team collecting dust samples, described the rib sloughage on the No. 4 Section, both in the area that had been flooded and in the area inby the toe of the water as “astronomical.” Tr. 12 at 683, 705.48 Some of the equipment on the section was buried in 18 to 24 inches of rubble. Tr. 12 at 353-54.

    MSHA Inspector Donald Greer, who was underground before and after the explosions, stated that the mine looked like nothing he had seen before. He noted the absence of observable rock dust and the fact that in some places, the ribs had been blown away near their tops so that the entry cross sections were trapezoidal rather than rectangular. Tr. 12 at 599-600.

    Given the overwhelming testimony of these eyewitnesses, I find that the conditions in which the samples were collected following the explosions were fundamentally different from those that existed immediately prior to the roof fall. However, this finding does not doom the alleged violation, providing the Secretary can show by a preponderance of the evidence that despite the changed conditions the sample results are sufficiently representative of what they would have been had the samples been collected immediately prior to the roof fall.

    b. The Representative Nature of the Samples

    After a thorough review of the record, I conclude that the Secretary has not made such a showing. In fact, she has not even come close. Rather, the record establishes beyond doubt that forces unleashed by the explosions, water that was pumped into and out of the mine, and the sloughing of the Blue Creek Seam changed the content of the dust that was sampled so that the collected mix of rock dust, coal dust, and other dust was different after the explosions than it was immediately before the roof fell. The record also confirms that the Secretary failed to show, as was her burden, that despite these changes the results were fundamentally the same as they would have been if the samples had been collected prior to the roof fall. Indeed, as will be discussed, the testimony and exhibits offered by the Secretary fail to provide a basis for answering with a requisite degree of certainty many critical questions regarding the effect of the events on the samples, and the resulting inconclusive nature of the Secretary’s case defeats her efforts to prove the violation.

    To understand what happened to the rock and coal dust included in the samples, it is necessary to review what is known about the effects of the events that occurred during and following the explosions. First, it is indisputable that existing rock dust on the No. 4 Section and elsewhere in the sampled areas was moved by the explosions’ forces and by the flow of water when the mine was flooded. In addition, it is indisputable that draining the water from the mine also moved and removed rock dust from the formerly flooded and sampled areas.

    Second, it is indisputable that forces from the explosions, the flooding of the mine after the explosions, and the sloughing of the coal ribs after the explosions moved existing coal dust and added new coal dust to the sampled areas. It is equally indisputable that draining the water moved and removed coal dust from the formerly flooded and sampled areas.

    Clete Stephan was the Secretary’s primary witness regarding the samples. Stephan was instrumental in the agency’s decision to cite JWR for the violation of section 75.403 based on the post-accident samples. See Tr. 7 at 223-24. With regard to rock dust, Stephan agreed that the shaking of the ribs that accompanied the explosions would have redistributed “some” rock dust located on the surface of the ribs. Tr. 10 at 293-95. Further, he agreed that during the first explosion, rock dust on the section was lifted and moved, but he maintained that because the forces generated by the first explosion were “small,” “very little” of the rock dust was moved off of the No. 4 Section. Tr. 11 at 158-59, 161-62. He also believed that although forces of the second explosion lifted more rock dust, “the dust lifted in the vicinity of the face [was] left within about two hundred feet of where it was initially picked up.” Id. at 162.

    However, Stephan’s opinions are suspect. Given the totality of the testimony, it is equally plausible that forces from the explosions put much rock dust in the sampled areas into suspension and that this dust traveled out of the sampled areas, in some instances far out of them. I note that miners outby the No. 4 Section following the first explosion invariably commented about dust that soon appeared around them. Benny Franklin, the longwall production supervisor, testified that the dust in the air was so thick he had to find a second phone from which to call out of the mine. As Franklin remembered, visibility was extremely restricted, and it was hazardous to stand in the dust at the first phone. Tr. 3 at 55. In fact, the dust was so thick in the air that those working on the longwall thought miners inby were rockdusting and that the rock dust was traveling outby over them. See, e.g., Tr. 3 at 39, 50. Other miners who were outby the No. 4 Section following the first explosion agreed that, as they got closer to the section, the dust in the air increased. See, e.g., Tr. 2 at 290-91, 311.

    Nor was transportation of the rock dust limited to underground areas. Rock dust was blown completely out of the mine. Section foreman Mike Buchanan described the surface area around the top of the 5-9 Shaft on the day after the explosions as having “rockdust all over the ground where it blew out.” Tr. 13 at 42-43. Chuck Stewart confirmed this and added that some thought it looked as though it had snowed. Tr. 15 at 966-67. According to Buchanan, the rock dust was 1/8- to 1/4-inch deep around the top of the shaft, and 1/8-inch deep to a minimal amount up to 1,000 feet away from the shaft. Tr. 13 at 43-44. There is no testimony disputing Buchanan’s and Stewart’s descriptions of the rock dust, and Martin Hertzberg, an expert witness who appeared on behalf of the company, persuasively testified that the rock dust around the 5-9 Shaft was evidence of how the explosions’ forces could transport dust great distances. Tr. 15 at 863.

    I conclude that the eyewitness testimony of those both underground and above as to the presence of rock dust that appeared soon after the explosions undermined Stephan’s opinion that “very little” dust was moved off the No. 4 Section by the explosions. The rock dust came from somewhere. The record confirms that rock dust in the sampled areas was picked up by the explosions’ forces, yet one searches the record in vain for scientifically reliable evidence establishing how much rock dust was picked up and the distance it was moved. Indeed, Stephan admitted that MSHA did not calculate the explosions’ forces (Tr. 11 at 100), a calculation that would seem to have been critical to any scientific determination of the distance that dust rock and/or coal dust was transported. The fact that it is impossible to determine the amount of rock dust that was put into suspension and the extent that it was moved is one of the unresolved issues that undermines the Secretary’s case.

    The same is true of coal dust. Trent Thrasher believed forces from the explosion blew coal dust out of the areas sampled. See Tr. 3 at 39, 50.49 Stephan agreed that as a mine’s atmosphere expands during an explosion, dust (including coal dust) is picked up off the mine floor, knocked off the surfaces of the mine’s roof and ribs, and put into suspension. Tr. 11 at 95. Once coal dust is placed in suspension it was moved by the atmosphere. Martin Hertzberg logically explained, “the distance that the dust gets thrown . . . depends on how big the explosion is.” Tr. 15 at 438. “[C]oal dust . . . can get transported hundreds of feet to thousands of feet, depending upon the dimensions of the explosion.” Id. at 439; see also JWR Exs. 253, 254 (pictorial and video depiction of coal dust propelled by explosion).

    Stephan did not disagree that dust was in fact raised by the first explosion and that the amount of dust suspended and transported outby by the first explosion depended on the magnitude of the forces created by the explosion. He also did not disagree that MSHA made no calculations regarding these forces. Tr. 11 at 81-84. He testified that to some extent dust located inby the end of the track before each explosion was propelled outby by each explosion. Id. at 87. He agreed during his deposition that the liberation of coal and coal dust from the ribs “would contaminate the area with respect to conditions that existed before the roof fall.” Tr. 10 at 219. He added that, to some extent perhaps to a great extent dust samples “that included . . . dust that’s liberated from the ribs by the first explosion . . . would not be representative of pre-roof fall conditions.” Id. He further agreed that there was no way to know after the explosion how much the liberated dust affected the samples. Id. at 219-20.

    In addition, Stephan acknowledged that the second explosion transported dust a far greater distance than the first explosion (Tr. 11 at 8, 78), and that the dust would have been transported outby in all four entries of the No. 4 Section. Id. at 78. He testified that some dust transported in the second explosion also had been transported in the first explosion, and because the forces from the second explosion were greater, dust not moved by the first explosion was in fact moved by the second. Id. at 81-82. Stephan acknowledged that MSHA made no calculations as to how much dust was transported by either of the explosions. Id. at 83. However, he was of the opinion that some dust inby the end of the track on the No. 4 Section was pushed or propelled outby the end of the track after the second explosion. Id. at 87. The fact that it is impossible to determine from the record the amount of coal dust that was put into suspension and the distance it was moved is yet another unresolved issue that undermines the Secretary’s case.

    In addition to being unable to determine how much rock and coal dust was put into suspension by the explosions and how far it was moved, the government was unable to establish to a reasonable degree of certainty how the dust settled after the explosions. Stephan even conceded the dust could have been in compliance before the first explosion and settled in such a way that it was explosive. Tr. 11 at 7-8.

    To this must be added the fact that the explosive forces in and of themselves resulted in the liberation of coal dust that was not present before the roof fall. Witnesses for both the company and the Secretary agreed that equipment and other objects were hurled by the explosions’ forces into the ribs and that the impacts fractured the ribs and freed coal dust. See, e.g., Tr. 8 at 262-65 (Jim Langley); Tr. 10 at 214-17 (Stephan); Tr. 14 at 603 (Jack Tisdale);50 see also Tr. 11 at 260-61. As MSHA Inspector Jim Langley aptly noted, the friable nature of the Blue Creek Seam virtually ensured coal dust would be liberated. Tr. 8 at 262, 268.

    In addition, the nature of the Blue Creek Seam meant that coal dust was continually added to the sampled areas between the last explosion and the dates the samples were collected. Almost every witness who traveled underground commented upon the presence of post-explosion sloughage in the sampled areas. See, e.g., Tr. 15 at 913-20 (testimony of Chuck Stewart regarding No. 4 Section); Tr. 12 at 683, 705 (testimony of Gary Toxey regarding No. 4 Section); Tr. 9 at 57-58 (testimony of Kenneth Murray regarding No. 4 Section); Tr. 8 at 271-72 (Langley); Tr. 12 at 524-26 (Mabe). True, there was disagreement as to the amount of sloughage. As has been previously noted, Toxey’s description of the sloughage as “astronomical” (Tr. 12 at 683) was at odds with Kenneth Murray’s description of the No. 4 Section as exhibiting a “bit” of sloughage. Tr. 9 at 57-58. However, under either scenario, it is clear that post-explosion sloughage was present in the affected area.

    It is also clear that the post-explosion sloughage produced “sampleable” coal dust. Murray, the MSHA field office supervisor who co-authored the part of the MSHA accident report dealing with dust, thought that most of the dust produced by the sloughage was too large to pass through a 20 mesh sieve and, therefore, was too large to be included as part of the samples. Tr. 9 at 59. Stephan echoed Murray’s opinion and stated that sloughage occurring after the second explosion would not have affected samples because coal usually sloughs in blocks or clumps and not particle sizes that pass through a 20 mesh screen. Id. at 538-39.51

    However, I reject Murray’s and Stephan’s opinions and find for a fact that sloughage occurring after the second explosion liberated coal dust that was included in the samples. Miner Ricky Parker, who was chairman of the union safety committee at the time of the explosions, and who, unlike Murray and Stephan, had experience working with the Blue Creek Seam, described the coal as so soft, it could be dislodged from the ribs with one’s fingers and turned to dust by squeezing. Tr. 6 at 338-39. Even more persuasive was a video offered into evidence by JWR depicting the pulling of ribs at the No. 5 Mine and the collection of resulting dust that was sifted through a 20 mesh screen. JWR Ex. 217. As the supporting testimony of JWR engineer James Jones established and as the video clearly shows, sloughage produces coal dust of a size that can be sampled. Tr. 12 at 778-91. It is logical to conclude that at least some of such dust was included in the samples that were collected following the explosions.

    It is apparent that MSHA had no idea how much coal dust was produced by the sloughage and how much was included in the samples. Stephan agreed that the amount of sloughage between the second explosion and the taking of the samples was “important, relevant and unknown” (Tr. 10 at 212-13), and he conceded in his deposition that, “[t]he liberation of coal and coal dust from the ribs would contaminate the area with respect to conditions that existed before the roof fall.” Id. at 219. He also agreed there was no way to know how much the liberated dust affected the samples. Id. at 219-20.

    From this review of the record, I conclude that measurable coal dust was liberated in the sampled areas during and after the explosions, that some of the dust was included in the samples, and that the Secretary does not know and cannot establish to a requisite degree of certainty how much this dust affected the sample results. It is another unresolved issue.

    The effect of flooding and draining on the samples taken in the formerly flooded area also is unknown. Murray agreed the water coursing in and out of the mine would have moved and rearranged the coal dust and rock dust particles and removed them from areas where they previously existed. Tr. 9 at 180-81. Therefore, coal dust conditions in the flooded areas would have been “different” from those that existed prior to the explosions. Id. at 181. Murray could not say whether the difference was “large,” “small,” or “otherwise.” Id. at 183-84. Kevin Stricklin, a member of MSHA’s investigation team, testified that rock dust and coal dust were pumped out of the mine along with the water. Stricklin did not know if rock dust and coal dust amounts were the same after the water was gone. Tr. 7 at 271, 278-79. Nor did he know if flooding and draining the mine “changed the mine conditions by changing the dust composition of the area.” Tr. 7 at 277-79.

    Stephan agreed there was no evidence as to the content of the water that was pumped from the mine. Tr. 11 at 91-92. However, he maintained that the flooding actually was beneficial to JWR because moisture was added to the incombustible content (Tr. 11 at 153-56) and because the rock dust, being heavier than the coal dust, was more likely to settle out and remain when the water was drained. Tr. 9 at 560.52 But Stephan’s opinions in this regard were not based on any measurements or simulations, on-site or off. As Stephan himself testified, none of the accident investigations in which he participated involved mines that had been flooded following explosions. Tr. 10 at 28-29. To put the matter plainly, MSHA simply did not know and could not tell the extent to which pre-accident dust conditions were altered by the flooding process. True, the Secretary offered guesses, but I cannot find that the samples taken outby the toe of the water are sufficiently representative based on guesses. Thus, the effect of the flooding on the composition of the dust is something that cannot be determined with any requisite degree of certainly. It is another unresolved issue.

    There are two final points regarding the samples that must be made. Stephan, and thus MSHA, relied in part on two “scientific” principles to confirm the existence of the alleged violation. First, Stephan believed that because some coal and coal dust was burned away by the heat of the second explosion, the incombustible content of the dust sampled in the area affected by the flame of the explosion actually was higher than its pre-explosion content. Therefore, the samples taken within the zone of the flame were even further out of compliance than the results indicated. See Tr. 11 at 165.

    While this theory might have offered some inferential support for the existence of the violation if it was established as scientifically credible, it was not. The record reveals that Stephan and other MSHA officials felt that further research was needed to verify the principal and that Stephan asked for and received the assistance of the National Institute of Occupational Safety and Health (“NIOSH”). See Tr. 10 at 96. As JWR points out, and as Stephan himself recognized, NIOSH experiments on the issue were not conducted under conditions equivalent to those involving the explosions at the No. 5 Mine. Lacking other scientific support the principal remains, on the basis of this record, an unsubstantiated theory, one that can have no effect on my conclusion regarding the existence of the violation. See JWR Br. at II-49-50.53

    Second, Stephan explained that all of the samples were subjected to alcohol coke tests. If the tests revealed the presence of large to extra large amounts of coke, Stephan believed that it was an indication the incombustible content of the samples was less than 50% and therefore indicative of non-compliance. See Tr. 10 at 79, 81; see also Tr. 9 at 275. Stephan felt the alcohol coke test results were “very critical . . . for making decisions about where the incombustible content was prior to an explosion.” Tr. 10 at 79-80.

    However, Stephan also testified that prior to coming to a final conclusion regarding the significance of coke in the samples, he felt that consultation with NIOSH was required. As a result, Kenneth Cashdollar of NIOSH, collaborated with Stephan and others at MSHA on the significance of post-explosion coke. Tr. 10 at 97.

    As part of this collaboration the sample results were reviewed, and it was noted that some samples showing large amounts of coke had incombustible contents above 50%, even above 65%.54 These results surprised Cashdollar, who felt that more testing was needed. Tr. 8 at 358-62, 385-86.

    When Stephan was asked about these “anomalous” results, he conceded that “under some conditions,” coking can occur when the sampled dust has an incombustible content of more than 50% (Tr. 10 at 107), but he maintained that only a few tests showed these results, whereas “the knowledge that [MSHA had] . . . [came] from thousands of experimental tests.” Tr. 10 at 107-08. When questioned further, Stephan admitted, he had no knowledge of the thousands of experimental tests. Id. at 185-87.

    On the basis of the record, I find the Secretary’s theory regarding the presence of coke in the samples is unsubstantiated and it will not influence my conclusion regarding the existence of the violation. See JWR Br. at II-49-50.55

    Accordingly, I conclude that the Secretary has failed to prove: (1) that conditions relating to the incombustible content of the mine dust did not change between the time immediately prior to the roof fall and the samples’ collection; and (2) that the sample results are sufficiently representative of results that would have been obtained at the time of the alleged violation. Therefore, I find that the Secretary has failed to establish the alleged violation.

    In reaching these conclusions I am not ruling on likely causes of the explosions or on culpability for them. I am simply ruling on the issue before me whether the Secretary has proved the alleged violation of section 75.403 by a preponderance of the evidence.

  8. Rob says:

    Before you proceed with dissecting hairs, keep in mind 29 miners were slain in a blast that reportedly extended >12,000 ft. That alone should tell you it wasn’t “well rockdusted”, regardless of the methane-air mixture at the point of ignition. And Joe, don’t be too hard on the Coal Tattoo, they’re justing passing on information received. It’s not unusual to read negative reports given the circumstance.

  9. Ken Ward Jr. says:

    By the way, the ruling I quoted from above is from a Federal Mine Safety and Health Review Commission Administrative Law Judge — MSHA did not appeal the adverse ruling, so the Commission decision I linked to previously doesn’t address this specifically. Ken.

  10. Minerman too says:

    Try to find someone who will confirm this was entirely caused by an ignition of only methane. Methane ignitions happen in many mines, and do not kill 29 miners – many miles away from the ignition source

  11. Danny W. says:

    Since this is written communication, not oral, the tort would be libel, not slander. At a minimum, libel would involve publishing statements which the publisher knew for certain to be false. As I see it, there are three statements presented as true in this story: 1) MSHA presented the quoted sample data to the survivors. 2) The brief definition of “rock-dusting.” 3) MSHA told the families that Massey is challenging the right of federal investigators to sit in on witness interviews. And for the first and third of these, the Gazette is reporting what MSHA said, so the story is true even if the data are false, as long as the story accurately reports the MSHA statements. So we’re left with a newspaper publishing statements made by a government agency. Are you guilty of slander if you stupidly accuse someone of slander? No. That’s free speech, and I am glad we have that in America.

  12. Monty says:

    Having been on the receiving end of corporate wrath many, many times, I tend to gauge the validity of a statement by the swiftness and shrillness of a corporation’s reaction to same. Massey wasted no time in trotting out some heavyweight assertions in this case that, if you will notice, do not directly answer the issues raised. Which leads me to suspect that MSHA hit at least a nice, solid line drive with this one.

  13. Ken Ward Jr. says:

    Monty,

    You might be better off judging the validity of a statement by reading that ruling in the Jim Walter case, and then asking the question: What has MSHA done since then to improve their rock-dust sampling procedures? That’s really the key question there at this point.

    Ken.

  14. Thomas Rodd says:

    Ken, is there any way you can link to the briefs of MSHA and the company that led to the ALJ’s decision that you quoted at length?

    Here’s an example from another recent Coal Tattoo story of why these sort of decisions should not be given conclusive weight by people interested in forming their own opinions:

    If you were to read the decision of the State Bar panel that “gave the benefit of the doubt” to the lawyer who took the doctor’s opinion out of the miner’s black lung exam report (I did), you might wonder “what’s the problem?”

    However, if you read the briefs of both sides in the Supreme Court case, you will see why the panel’s decision just ignored a lot of important evidence.

    The point is that just because a judge ruled one way, and presented all of the evidence that supports the ruling in a favorable way, does not mean there are not strong arguments that go the other way, too.

    Balanced understanding can perhaps come best by looking at both side’s arguments, if possible, and the judge’s opinion — and making your own evaluation.

  15. Ken Ward Jr. says:

    Tom,

    I appreciate the suggestion.

    But I’m not sure you have an understanding of how some of the agencies and courts involved handle these things … The Federal Mine Safety and Health Review Commission puts on its Web sites only final decisions of ALJ’s and of the Commission … They don’t post briefs or transcripts or exhibits online.

    And, obtaining those from them for a case like this — which no doubt has a very significant record with thousands of pages of documents — is not as simple as a quick phone call and they email you the documents.

    I don’t personally have the briefs or any other records except the two decisions I posted … I’ve tried to get some additional materials today, but it being a Friday afternoon, that’s a tough thing to do.

    And, while also blogging and commenting here, I have a print story to write and some other work to complete. So I only have so much time to spend today trying to get those records and post them. Won’t be getting to that today ….

    I agree with your analysis of how helpful it is to post such materials, but I hope you’ll understand that it’s not as easy as you make it sound.

    Ken.

  16. rhmooney3 says:

    It’s the final rulings that matters — unsuccessful agruments or ignored evidences do not.

    It’s like reviewing the moves in chess matches — the outcomees remains the same.

    Doing such armchair-quarterbacking can be entertaining or even enlightening but it is useless otherwise.

    Of course, when final rulings overturn or reverse prior rulings the basis for those successes are useful in future legal matches.

    Right or wrong, the final decisions by judges (and other game referees) are what matters.

    It is also like contesting how Ken Ward Jr. writes a story — only the editor’s opinion matters on how it is finally done.

  17. Ken Ward Jr. says:

    rhmooney3,

    You’re wrong on both counts …

    It is certainly important for the public to see, read, understand and learn about both sides in a case like this, and to be able to read those arguments for themselves — otherwise, they can’t understand if the ruling was based on strong legal and factual arguments. The public ought to be able to make such decisions, as part of determining if its system of government is working properly.

    Governing otherwise amounts to government in secret, which serves no one.

    Also, this blog’s comment section is proof of how everyone’s view of how I write and article matters … everyone gets their say, and readers can decide if I did a good or a bad job … We might all learn something together.

    Ken.

  18. rhmooney3 says:

    Ken,

    Those are nice thoughts but everything touched by humans has some filtering and biasing, especially so when government is involved. (Much done by prior adiministrations disappears when the next one comes along.)

    Insofar as the comments on this blog, those are filtered.

    By the way, just because something is learned doesn’t mean it gets used. If that weren’t so, the Upper Big Branch Mine disaster and many others yet to come wouldn’t happen.

  19. Ken Ward Jr. says:

    Bob,
    Your last statement is certainly true … no question about it. Anyone who reads the history of the coal industry knows that much that should and could have been learned from past disasters isn’t.

    But I’m not sure what your getting at with your first paragraph.

    And yes, the comments on this blog get “filtered” but only to stop people from calling each other names, yelling and screaming and generally just attacking folks they disagree with in a nasty, hostile way.

    There is plenty of disagreement with how I write stories, and I certainly believe very strongly that I’ve learned a lot from Coal Tattoo readers over this last year and a half.

    One journalism blog recently held up Coal Tattoo as an example of how journalists and their readers can interact in a healthy way that educates us all:

    http://changingnewsroom.wordpress.com/2010/09/16/example-of-how-engaging-with-readers-in-comments-pays-off/

    Ken.

  20. Monty says:

    I happen to think that how a corporation responds to a regulatory body’s assertion is one valid way to measure the validity, or truth, if you will, of the regulatory body’s assertion.

    What sometimes gets lost in the midst of all this frantic spin control by Massey and MSHA is that 29 men died at Upper Big Branch – and that five months later, we still don’t know how, or why, and whether another mine has similar conditions and/or practices that make it ripe for another tragedy.

  21. rhmooney3 says:

    Ken,

    You must know that you have no bigger supporter than me.
    http://groups.google.com/group/bob-mooney/web/ken-ward-jr

    I provide you a lot, both on and off this blog because of your tremendous efforts and results.

    You are a must-read for everyone involved or interested in the coal industry.

    All of us must guard against being too rightful and staying open to thinking and doing differently.

    Lastly, I have no qualms about your filtering even though I have been subject to it probably more so than most.

  22. rhmooney3 says:

    Monty,

    Yes…but Massey Energy has lost hundreds of millions and is fighting to not contiinue losing more. And MSHA is trying to be regulator instead of being industry lapdog.

    That meaningful changes result would be the greatest tribute to the fallen miners.

    I recall Gov. Manchin saying that would happen soon.

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