Following up on yesterday’s Coal Tattoo post, Why didn’t MSHA prevent the Upper Big Branch Mine Disaster, we published a story in our print edition this morning with more details about the federal agency’s failure to protect Massey Energy miners from the clear and well-understood dangers of methane leakage from the floor of the Raleigh County mine.

Among other things, the story contained new information from a previously undisclosed transcript of testimony by Bob Hardman, who was MSHA’s Southern West Virginia district manager at the time of the April 5, 2010, explosion that killed 29 miners. Among the more bizarre revelations was that Hardman claimed to have started a project to examine the potential for other mines having similar methane leakages — but MSHA claims to have no records about such an effort.

MSHA hasn’t formally released the Hardman transcript, but the agency did post on its website on Tuesday the transcript of testimony of longtime MSHA employee Steve Gigliotti, who had been acting district manager and was listed as the recipient of one of the two key methane outburst memos that outlined this problem and made recommendations for a fix.

Some readers may recall that Gigliotti was originally appointed by MSHA to its “internal review team” to investigate the agency’s actions — and inactions — at Upper Big Branch.  But just days after we broke news of the earlier methane incidents in 2003 and 2004, MSHA removed him from that team “to avoid the potential for a conflict of interest.”

Well, a reading of Gigliotti’s testimony is certainly interesting …

First, Gigliotti reveals that top MSHA officials at agency headquarters in Arlington, Va., were talking about the earlier incidents — and worrying about what MSHA might have done or not done about them — long before someone slipped the methane outburst memos under Bob Hardman’s door on May 21, 2010. During a previously confidential interview on June 25, 2010, Gigliotti told investigators, when asked about the memos:

… The first time I saw it was after the explosion at Upper Big Branch in April of this year. Charlie Thomas sent an e-mail …

Gigliotti reveals that Charlie Thomas was — and is — acting deputy administrator for MSHA’s coal division, making him to top aide to coal administrator Kevin Stricklin. Gigliotti continued:

… There were a bunch of e-mails flying around, but I remember Charlie sending it. But it was after the explosion. That the first time I saw it … Right after the explosion, you know, a couple days after. So you know, within a week or two, something like that.

Now, keep in mind. Upper Big Branch blew up on April 5, 2010. Top MSHA officials were talking about these previous incidents within days of that happening. Bob Hardman, the local district manager, testified someone stuck the memos under his door on May 21. Hardman, who didn’t come to the district until August 2006, testified that he hadn’t heard about the previous methane incidents until he found them that morning. Hardman was first interviewed by the investigation team on May 27.

It’s not clear when Gigliotti was appointed to the internal review team, but the transcript makes it sound like top MSHA officials had to have known about Gigliotti’s involvement in the earlier incident at the time they appointed him — and Gigliotti himself told investigators he didn’t understand why he was taken off the internal review team. He describes getting that news from Sticklin:

… He told me that you’re going to have to … we’re going to have to remove you from the Internal Review Team, because I was here six years ago and my name showed up on this report. And I was kind of in disbelief, and I sent him an e-mail and said, I was already gone by the time the report even hit my desk. I was gone five — you know — and he said, well, we cannot — you know, I don’t remember his exact words, but we have to … it’s so sensitive a situation because, you know, MSHA is investigating itself, and it’s controversy right there. And to have you — for you to get interviewed about this report or your time at — when you were down here, it wouldn’t be good that you would be a signatory on the Internal Review Report, so we have to move you off.

To be clear: Gigliotti was only acting district manager for a short while, from June 3, 2004, until July 10, 2004. He was not acting district manager when the 2004 incident occurred, back in February, and he had left by the time the memo hit the district manager’s desk on July 15, 2004.

Now, this is where things get really interesting … Gigliotti continues his testimony:

And in that same conversation [Stricklin], he told me that he spoke to the one geologist that was — he may have — I think he wrote the March report, I think, Sandin Phillipson … and Sandin said there’s a chance — I don’t know his exact words, but he said something like you can draw a straight line. There might be a — there’s a fault line or something he can see or something that — you know, that fault line runs right through that area that they were mining at the time. So there’s that possibility that the geology would be similar to what they had six years prior.

Pat McGinley, a WVU law professor working on McAteer’s independent investigation team, tried to continue this line of questioning — about what MSHA officials knew about the methane floor leaks, what they did about it, and what the whole issue could have mean in the context of the Upper Big Branch explosion.

But Derek Baxter, a Labor Department lawyer working as part of MSHA’s disaster investigation team, stepped in:

I don’t think we should go into conversations with the accident investigation team. This is material —

McGinley responded:

Well, this is material to our investigation.

Then, here’s what happened:

Attorney Baxter: Can we go off the record, please?

Mr. McGinley: I’d like to stay on the record.

Attorney Baxter: No, I want to go off the record right now.

Mr. McGinley: No. Just put on the record the reason.

Attorney Baxter: The reason is because you’re starting to go beyond the facts that this witness knows and you’re starting to ask questions of his conversations with team members during our investigation.

Mr. McGinley: Well, we’ve been trying to find out information about these memoranda and what happened now for — it’s going on a month, and his testimony is helpful in that regard.

Attorney Baxter: Can we go off the record, please?

Mr. McGinley: That’s fine.

During the off-the-record discussion that followed, MSHA officials insisted that questions about all of this be limited, and as we reported yesterday, there is still much that the public doesn’t know about how and why federal mine safety regulators didn’t take action to prevent methane floor leakage that they knew was a problem — and that their own report now concludes was a major contributing factor in the worst U.S. coal-mining disaster in nearly 40 years. The new transcript discusses emails between various MSHA officials about all of this, but those were never turned over — despite a specific request — to the McAteer independent team.

After seeing the Gigliotti transcript on MSHA’s website and reading it several times, I called Davitt McAteer this morning and asked him about all of this. Here’s what he told me:

It is a problem, and it is unfortunate. The outcome of the report that was released two days ago by MSHA suggests these were very pertinent questions and a very important line of questioning. It’s absolutely essential that we have independent teams and people who don’t have a stake in this taking a hard look at what happened. It’s truly unfortunate that the agency for whatever reason tried to move away from this line of questioning.