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UBB probe looking at questions about Massey board

CHARLESTON, W.Va. -- As they wrap up their probe of the Upper Big Branch Mine Disaster, federal regulators face unanswered questions regarding what Massey Energy board members were told about persistent safety problems at the mine -- and whether serious explosion hazards were corrected.

In late October, U.S. Mine Safety and Health Administration officials explored the issues in a secret interview with a former MSHA official who conducted safety audits for Massey in the months before the April 5, 2010, disaster.

Joe Pavlovich, a longtime MSHA inspector and supervisor, warned Massey officials at least three times in the year before the disaster that Upper Big Branch wasn't properly cleaning up accumulations of explosive coal dust.

But some reports to Massey board members who served on a special safety committee appear to have downplayed those warnings, according to court documents and other records obtained by the Sunday Gazette-Mail.

The records also indicate that investigators have been given conflicting accounts of whether hazards identified by Pavlovich were ever fixed.

During a meeting Nov. 9, 2009, at The Greenbrier, Massey vice president for safety Elizabeth Chamberlin assured board members that Pavlovich's audits showed safety conditions and practices at Massey mines were improving.

Pavlovich's audits "were positive and compliance was generally good," Chamberlin said, according to minutes of the meeting.

The next day, Nov. 10, Pavlovich made a repeat visit to Upper Big Branch. He'd been there twice before, in April and October, and found poor rock-dusting practices each time.

"The entire longwall section belt needs to be rock dusted," Pavlovich said in a report on the Nov. 10 inspection. That was the last time Pavlovich ever inspected Upper Big Branch.

At their February 2010 meeting, Massey board members were given an "executive summary" of safety audits Pavlovich conducted from September through December 2009.

That summary, dated Jan. 10, 2010, ranked Upper Big Branch as below average for controlling combustible materials on mining sections.

But a chart in the seven-page report left blank a ranking for controlling combustibles in other areas of the mine, such as the long tunnels between active mining areas and the surface. The executive summary made no specific mention of the findings of Pavlovich's Nov. 10, 2009, Upper Big Branch audit.

The report painted the situation at Upper Big Branch as being well under control, saying mine managers "have systems or plans in place to effect changes and improvements in compliance levels."

At 3:02 p.m. on April 5, 2010, the mine blew up. Twenty-nine workers died, making it the worst U.S. coal-mining disaster in nearly 40 years.

Federal regulators, an independent investigation by longtime safety advocate Davitt McAteer, and a probe by the United Mine Workers have all concluded that Massey's failure to properly rock-dust the mine allowed explosive coal dust to build up underground, turning a small methane ignition into a huge and deadly blast.

Even as their investigation wound down, some MSHA officials began quietly asking questions about what Massey's board knew about conditions at the mine -- about what board members were told, who gave them that information and if the reports were accurate.

Some details about Pavlovich's audits were made public six months ago in court documents, including lawsuit records that were unsealed by a legal action filed by the Gazette and National Public Radio. More information about the audits, and the board's knowledge of them, came out in Pavlovich's previously confidential testimony to investigators, a transcript of which was obtained by the Sunday Gazette-Mail.

But MSHA officials interviewed Pavlovich only late last month, and they've talked to no other witnesses since then. It's not clear if agency investigators have gotten answers about the board's involvement or if the agency will continue to probe those issues.

MSHA has scheduled a press conference for Tuesday to make public the report of its Upper Big Branch investigation. Last week, agency officials refused to answer questions about its review of Pavlovich's audits. Amy Louviere, spokeswoman for MSHA, said her agency would not answer questions about its Upper Big Branch probe until Tuesday's press conference.

Investigators from the state Office of Miners' Health, Safety and Training turned down an MSHA invitation to attend the Pavlovich interview. MSHA did not invite anyone from the McAteer independent team to take part.

Asked about the Pavlovich audits and how Massey followed up on them, U.S. Attorney Booth Goodwin said last week, "Any information of that nature that would come to light would be of interest to us.

"We're not limiting the focus of our investigation at all," Goodwin said in an interview.

Goodwin said his office's criminal probe will continue -- and perhaps even intensify -- following Tuesday's release of the MSHA report.

"We are not slowing down at all," Goodwin said. "If anything, certain aspects of our investigation are going into high gear."

Alpha Natural Resources, which bought Massey in June 2011, did not respond last week to a request for comment about the status of its corporate review of the mine disaster.

At least 19 top Massey officials asserted their Fifth Amendment rights and refused to answer questions from government investigators about Upper Big Branch. Chamberlin is among those who refused to testify. Last week, through her lawyer, Chamberlin declined a request for an interview.

'Additional care must be taken'

In January 2007, Massey had lured Elizabeth Chamberlin away from CONSOL Energy, a unionized company widely credited with a strong safety record. A mining engineer and lawyer, Chamberlin worked for CONSOL from 1993 to 2007 and was chairwoman of the National Mining Association's safety committee.

At Massey, Chamberlin was among those charged with implementing a lawsuit settlement that called for tougher oversight of Massey's safety and environmental practices. Under the settlement, Chamberlin was supposed to report to a new panel of Massey board members called the Safety, Environmental and Public Policy Committee. But court records indicate she ended up reporting to Massey CEO Don Blankenship.

Chamberlin contacted Pavlovich, a 25-year MSHA veteran, to perform some safety audits for Massey. Pavlovich, who worked on McAteer's independent investigations of the Sago Mine Disaster and the Aracoma Mine fire, was retired from MSHA and working as a mine safety consultant.

During his Oct. 18 interview with Upper Big Branch investigators, Pavlovich explained that he provided audit results to Chamberlin and to Shane Harvey, Massey's general counsel.

From April 2009 through June 2009, Pavlovich visited 15 of Massey's underground mines, seven surface mines, four preparation plants, and five highwall miner operations.

Among other things, he found that, "Rock dusting, especially rock-dusting the roof of several areas, was observed as not being in compliance."

Both methane and coal dust are explosive and are created during the process of mining coal underground. Methane ignitions often can be smaller and less damaging, whereas a coal-dust explosion can rip through huge swaths of underground workings in an instant.

Under federal law, mine operators must spread crushed limestone, called "rock dust" across walls and other surfaces in underground tunnels to keep coal dust from igniting. The law requires operators to regularly "rock dust" to maintain the level of "incombustible" dust underground at a safe level. Some of this work is still done by hand, but the industry has also mechanized it with various types of bulk rock-dusting equipment.

At Massey's mines, Pavlovich found both good and bad rock-dusting practices.

"Sling dusters are provided at all working sections observed, but are not always being used regularly, leaving areas behind the sections not well rock dusted," his report said. "Trickle dusters located at outby belt drives were being used effectively, and their operation and use is to be commended.

"Bulk dusters on track entries are provided, but at some mines tanks to fill the dusters are not available," he wrote. "In general, cleanup of coal is good and rock dusting is fairly adequate, but additional care must be taken to ensure all areas of sections are rock-dusted using the available sling dusters, and that all available cleanup and rock dusting equipment is utilized."

At Upper Big Branch, Pavlovich found problems.

"The section belt conveyor, from the drive to the section was black in color and needed rock dusting," he wrote. A foreman, Rick Foster, told Pavlovich his equipment was ready for rock-dusting, but he got called away to splice a belt.

Pavlovich found the active mining section was clean, but three tunnels were not rock-dusted for a length of three crosscuts headed out of the mine.

In late October 2009, Pavlovich went back to Upper Big Branch. Federal inspectors had issued a series of escalating violations, including many orders that closed parts of the operation until serious problems were fixed.

Pavlovich found two mine tunnels in bad need of rock-dusting, one for a length of more than 300 feet.

"There appeared to be no uniform requirement on when and how the section should be rock-dusted," Pavlovich said in his report. "General consensus was that the day shift would rock dust with the sling duster at the end of the shift, unless they didn't get it done and then maybe the evening shift or the maintenance crew on the third shift would do the rock dusting.

"A more specific system should be established to ensure that accountability is maintained for rock dusting."

'Remedial action'

By May 2011, some information about Pavlovich's audits was beginning to reach the public record.

After the Upper Big Branch Mine blew up, several sets of shareholder groups filed separate lawsuits in West Virginia and Delaware courts, seeking to hold corporate officers responsible for financial losses from the disaster.

The Gazette reported on the audits in its Coal Tattoo blog, explaining in a May 26, 2011, story that Massey lawyers cited the audits in defending the actions of company executives they said had been assured any rock-dusting problems at Upper Big Branch had been fixed.

"After Pavlovich identified a need for improved rock dust application at certain mines, including in certain areas of UBB, the Board was informed that 'remedial action [had been taken] include[ing] [deployment of] additional pod and sling dusters and re-emphasis of existing rock dusting policies and regulatory requirements," the Massey lawyers wrote in a brief in the Delaware suit.

During their Oct. 18 interview, federal officials read the Coal Tattoo post to Pavlovich. MSHA investigator Dean Cripps asked Pavlovich if he made the statement about the rock-dusting problems being fixed.

"Oh, no. Uh-huh," Pavlovich replied, adding that he didn't know who had made those comments.

Cripps told Pavlovich, "I'm trying to find out who made that statement to the board and how they knew that remedial action had been taken."

Pavlovich responded, "I wouldn't have any idea."

Court records, though, include minutes of a Nov. 9, 2009, meeting of the Massey board's Safety, Environmental and Public Policy Committee that attribute to Chamberlin statements identical to those quoted by the company lawyers in the Delaware case.

Citing Chamberlin's report to the committee, the minutes said that Pavlovich's audit had found, "the adequacy of rock dust application was also identified as a weakness." But, the minutes say, "Remedial action included additional track and finger dusters and re-emphasis of existing rock dusting policies and regulatory requirements."

The next day, Nov. 10, Pavlovich went to Upper Big Branch again, and found serious rock-dusting problems in the longwall section.

"No rock dust had been applied to the roof and the ribs had only been rock-dusted by hand," his report said. "The entry had never been machine dusted as the section advanced."

Prior to their interview with Pavlovich, held at the Crowne Plaza Hotel in Lexington, Ky., MSHA investigators had never seen his Nov. 10 audit of Upper Big Branch. They saw it only when he showed it to them on his laptop computer. Investigators asked for a copy of it. Massey lawyer Eric Silkwood, who sat in on the interview, said, "I don't know if they have a business center here to be able to print it off."

'Efforts were being made'

Three months later, at their February 2010 meeting, Massey board members were given an "executive summary" of the mine safety audits Pavlovich conducted in the previous quarter.

The report said Upper Big Branch "had recent management changes and it was evident that efforts were being made to improve compliance levels."

"The Upper Big Branch Mine had instituted internal safety inspections that were being conducted daily on two shifts by experienced safety personnel to help improve compliance issues," the report said.

In his interview with federal investigators, Pavlovich offered conflicting answers when asked if Massey officials had him follow up on problems he found at the company's mines.

At one point, Pavlovich told investigators, "I did have some safety and mine representatives ask me during a particular visit that, you know, on a previous visit I had found some problems at a particular mine, and they said, 'we've been working there and we want you to go back and look at that mine again for us.'

"That was the local people that asked that," Pavlovich said. "And you know, I never had any problem with that. And no one at the company ever seemed to have a problem if someone asked me to go to a place to help out and try to observe what was there. That was fine."

Later in the interview, though, Pavlovich told investigators, "I don't recall ever going back to see if anything had been corrected, OK.

"Basically, my responsibility in this audit was to observe, to discuss, to accumulate information and then to present that information to management, whether it be verbally or in writing, and any corrective actions were their responsibility, as they would be for anybody," Pavlovich said. "But it was not like I went back to check, OK."

Pavlovich also testified that, "I felt like that they probably had a program in place to respond to those audits.

"I do know that there were even some mine superintendents that were terminated as a result of an audit I did," he said. "I didn't feel good about that, but you know, what happens, happens. So there are certainly people looking at them and paying attention to them or that would have never happened."

Chamberlin's report to the board safety committee said one of the company's "remedial actions" for rock-dusting problems was to add more dusting equipment at its mines.

Pavlovich's audits, though, say that having the proper equipment wasn't the problem. Instead, Pavlovich said that Massey provided good rock-dusting equipment, but didn't have an effective system to ensure the work was done in a timely manner. But in its report on Upper Big Branch, the McAteer team documented broken-down rock-dusting equipment that employees assigned to do that work said never functioned properly.

Pavlovich closed his interview with federal investigators by praising Massey workers and the MSHA employees who were conducting the disaster investigation.

"As far as the employees go, I think they had a lot of very good people working at the mines, hard-working people and a lot of people that tried to do things right," Pavlovich said.

"It's certainly an unfortunate accident," Pavlovich told investigators. "I hate that it happened, and I know a lot of people hate that it happened, including you guys. But we've all got a job to do, and I know you'll do a good job, and I appreciate that."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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