The company has also sued MSHA in federal court, alleging the agency "indirectly forces mine operators to design a ventilation plan the way MSHA wants by refusing to approve the operator's plan.''
But Wagner's memo blames Massey for its "inability to properly manage the air it had and to follow its approved ventilation plan.'' He claims Massey had "serious problems'' following its ventilation plan, resulting in MSHA citing the Upper Big Branch mine 23 times between September 2009 and April 5, 2010.
The memo says Massey submitted many changes to the plan -- many of which were denied -- because the company failed to provide basic information such as air flow readings that are required under the law. During one conversation in December 2009 about meeting regulatory requirements, the Massey engineer drafting the ventilation plan "remarkably'' didn't even have a copy of the regulations. Wagner says MSHA later provided him a "courtesy copy.''
On Jan. 7, 2010, Massey proposed to dramatically reduce the amount of air on the longwall face by using air from the existing ventilation plan to ventilate an older section of the mine, allowing it to produce more coal, the memo says. MSHA denied this request because it was not clear that the system would work as planned.
"Massey's recent professed concern with the amount of air at the longwall and on the headgate is entirely at odds with the fact that Massey proposed to reduce the volume of air in those sections,'' Wager states in the memo.
The memo concludes that if at any point Massey determined there was an inadequate amount of air flowing to any working section, the company was required by law to stop mining operations until the problem was solved.
"Prior to the explosion at UBB, Massey did not indicate a belief that this mine required extraordinary steps,'' the memo says. "Its mine ventilation plan and mine ventilation practices are not reflective of a company showing extraordinary concern about the safety of the miners working underground.''