Gigliotti had initially been appointed to the agency's "internal review" team. He was removed from that team several days after the Gazette revealed previous methane incidents at Upper Big Branch and memos surfaced that listed Gigliotti as acting Southern West Virginia district manager at the time. But Gigliotti had only been acting district manager for a month, had taken the post after the 2004 methane incident and left the job before a report on it hit the district manager's desk.
McGinley tried to ask Gigliotti questions about discussions among MSHA officials after the explosion, about the earlier methane incidents, what the agency knew about them, and any possible connections to the disaster.
Baxter jumped in, telling McGinley, "I don't think we should go into conversations with the accident investigation team."
McGinley responded, "Well, this is material to our investigation."
Baxter asked McGinley to go "off the record," so the court reporter would stop taking down every word that was said.
McGinley said, "I'd like to stay on the record," and Baxter responded, "No, I want to go off the record right now."
McGinley insisted that Baxter state for the record his reasons for wanting the court reporter to stop transcribing their discussion.
"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," Baxter said.
McGinley reminded Baxter, "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."
McGinley then agreed to go off the record, and McAteer said MSHA officials then insisted that questioning of Gigliotti be limited and not focus on questions about MSHA's discussions or actions regarding the earlier methane incidents.
About a month before interviewing Gigliotti, investigators had questioned Bob Hardman, who was MSHA's local district manager at the time of the Upper Big Branch explosion.
During interviews that began on May 27, 2010, Hardman told investigators that someone slipped copies of memos regarding the 2003 and 2004 methane incidents under his office door a week earlier, on May 21.
But Gigliotti testified that top MSHA officials -- including deputy coal administrator Charlie Thomas -- were discussing the incidents via e-mail message just days after the April 5 explosion.
Other records made public this week, along with some confidential documents obtained by the Gazette, indicate a variety of MSHA and Massey personnel were well aware of the previous methane incidents long before the Upper Big Branch Mine blew up.
For example, records show that mine ventilation expert Bill Ross was one of the MSHA staff who investigated the 2004 methane incident. Ross later left MSHA and went to work in Massey's ventilation department. Employee time sheets from Massey subsidiary Performance Coal Co. also show that Chris Adkins, who became a top vice president at Massey Energy, was underground at Upper Big Branch at the time of the 2004 methane incident.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.