In numerous public statements, press events and documents, officials at Massey mining have attempted to shift blame for the safety records in their mines by asserting that MSHA forced changes to the Upper Big Branch's ventilation plan, over the vigorous objections by Massey, and have implied that those changes may have caused the April 5, 2010, explosion that killed 29 miners. In short, Massey claims MSHA forced it to adopt a ventilation plan at UBB that MSHA created, and implies that as a result of that plan, there was not enough fresh air to ventilate the face of the longwall, where it speculates the explosion occurred after a methane release from a floor crack. This memo compares the public allegations made by Massey Energy with the facts based upon the official records of the mine's ventilation system. The facts simply do not support Massey's assertions. First, as you know, MSHA doesn't draft ventilation plans, but only reviews plans to determine whether or not the submitted plan meets the minimum standards under the regulations. If we did draft mine ventilation plans, we certainly would not have drafted this particular plan which was minimally adequate, but not ideal. Second, Massey's actions, the ventilations plan it submitted, and its representations to MSHA did not indicate that the company expressed or held any serious concerns about the volume of air at the longwall. Third, this is a mine that had serious and varied ventilation problems for a number of years, and in the months leading up to the explosion. Because of the concern about this particular mine, MSHA conducted two unannounced ventilation sweeps that uncovered serious ventilation issues, including air flowing backwards near the longwall less than a month before the explosion. In addition, between September 2009 and the April 5, 2010, explosion, MSHA cited Massey 23 times for failing to follow the ventilation plan on file. It appears that Massey's public relations and legal teams are trying to position Massey as a company deeply committed to safety, desperately trying to make the mine safer, thwarted by MSHA's insistence on lower levels of mine safety. My guess is that this strategy is to deflect the blame to make the case that the company was acting within the legal standard of reasonableness, and was not culpable for the conditions at the mine when the explosion occurred. Massey's Narrative Massey CEO Don Blankenship claims "MSHA required several changes since September 2009 that made the ventilation plan significantly more complex [and] significantly reduced the volume of fresh air to the face of the longwall mining operation." [Blankenship Testimony to Senate Appropriations Subcommittee, 5/20/10]. The Charleston Gazette reported that Massey Board Member Stanley Suboleski participated in a press conference and claimed that "MSHA had forced Massey -- over the objections of company engineers -- to make airflow changes in the longwall section of the mine," and that those changes "included MSHA ordering the company to stop using the controversial practice of using a conveyor belt tunnel to bring fresh air into the mine." [Charleston Gazette, April 26, 2010]. Massey also released two internal MSHA memoranda documenting two releases of methane from cracks in the floor in 2003 and 2004, and a number of mitigation techniques including increased airflow across the working longwall sections [Massey Release, June 15, 2010]. Massey also reported that the mine rescue teams saw a crack "between 20 and 100 feet long" at the tailgate of the longwall section. Suboleski called the crack "the number one culprit" in terms of the cause of the explosion in a local TV interview [WOWK-TV, June 16, 2010]. Massey seems to be pushing the narrative that a massive amount of methane was released due to the crack in the floor, and that MSHA, against Massey's strenuous objections, ordered changes to the mine's ventilation plan that prevented an adequate amount of air to flow across the longwall face. Massey want to portray itself as a good corporate actor, passionately committed to the safety of its employees, that was thwarted in providing a safe environment for its miners by MSHA. Why Push This Story? Outside of the fact that all publicly traded companies spend resources and energy to burnish their corporate image and their company's brand, Massey has reason to quickly shift blame from their managers and their corporate leadership. Federal and state officials are investigating the cause of the disaster, and any tragedy of this magnitude will undoubtedly result in civil litigation with the potential for multimillion dollar judgments. But more importantly, as has widely been reported, the Justice Department confirmed the existence of a criminal investigation into Massey Energy in a letter to DOL on May 14, 2010. Summary of the Facts Under federal law, mine operators are required to submit ventilation plans to the agency to determine whether or not those ventilation plans meet the standards established by the regulations. MSHA's sole job is to determine whether or not a mine meets the standards. If the plan meets the regulatory standards, MSHA is required to approve the plan. If it does not meet the standards, MSHA cannot approve the plan. MSHA doesn't draft plans, and MSHA can only insist that a plan meet the minimum standards. Massey Energy has had a number of problems with its ventilation plans, particularly at this mine. Our ventilation staff reports that a very large percentage of Massey's ventilation submissions, when first presented, did not meet the technical requirements or the standards laid out in the regulations. Even those plans eventually approved by MSHA usually required technical assistance by our experts to help bring the submissions in to compliance with the rules. Remarkably, during a conversation about meeting the regulatory requirements on belt air, the Massey engineer drafting the ventilation plans indicated that he did not have a copy of the regulations. Subsequently, MSHA staff provided him a copy of the regulations to aid his efforts to draft a plan that would meet the minimum legal standards. District staff indicates that Massey's mines throughout the region had difficulty with ventilation - both in its submitted plans, and in following their plans once they've been approved. For all mine ventilation plans, for example, operators are required to provide air readings for all submitted changes. Between September and April, Massey submitted eight plan changes at UBB that failed to provide air readings - a basic requirement that applies to all ventilation plan submissions. Perhaps even more importantly, even after MSHA approved UBB's ventilation plan, Massey had serious problems following their plan. Between September 2009 and April 5, 2010, MSHA cited Massey 23 times at UBB for either failing to follow the approved plan or for making intentional changes without approval by MSHA. Summary of Timeline of Relevant UBB Ventilation Plan In August 2009, Massey received approval of a ventilation plan for the longwall section that was in operation at the time of the explosion in April 2010. This plan required changes to the existing ventilation plan, and Massey submitted a plan that was to go in effect on September 1, 2010 [should be 2009]. Because of our ventilation team's experiences and history with the Massey's Upper Big Branch mine, MSHA sent a team to sweep the mine on September 1, 2010, [should be 2009] to determine Massey's compliance with the plan. At that time, MSHA found a number of violations, including the fact that Massey was making material changes to the mine's ventilation system while miners were working in the mine - a clear violation of the law. MSHA ventilation inspectors also found air flowing backwards across the longwall face. Amazingly, the inspectors found a mine foreman present at the longwall, standing in the reversed air flow. As a result, MSHA cited the mine for failing to follow its plan, and for making changes to its plan without approval, and shut the mine down until Massey fixed the problems and fully implemented its ventilation plan change. It took Massey four days to solve these problems, at which point, the mine reopened. When it reopened, Massey reported 189,000 cubic feet per minute (cfm) of fresh air reaching the tailgate evaluation point. The regulations require 30,000 cfm of fresh air to flow across longwall faces like this mine. When the ventilation was properly followed, more than six times the minimum air volume was flowing through the longwall ventilation circuit. On September 1, 2009, UBB was operating on a base ventilation plan that contained a large number of revisions. MSHA asked Massey to create a single new base plan with all of the approved changes incorporated in that plan. This was approved on September 11, 2009, and was the base plan in effect at the time of the explosion. MSHA requested this action to make the plan more understandable and easier to follow. This ventilation plan and all subsequent changes were approved because they met the minimum standards set forth under the regulations. There were a number of plan components submitted by Massey management that were approved as meeting the minimum standards even though MSHA would have preferred a different approach. For example, instead of using overcasts, which allow for continual airflow at locations where miners are required to cross an aircourse, Massey used double doors that, if left open inappropriately, will cause air to stop reaching the working sections of the mine. Doors are easier and cheaper to construct than overcasts, but they can completely rob the working sections of air when they are left opened. The regulations do not require overcasts, and so MSHA ventilation specialists do not require them. The approval of a valid ventilation plan does not mean there are not issues as to how a company approaches safety in adhering to its plan. For example, a mine may choose to use doors instead of overcasts in its ventilation plan, but it is required to ensure that the doors are used properly to ensure continual and adequate air flow. Massey had problems following the plans it submitted. For example, on September 16, 2009, five days after the new base plan was implemented, MSHA inspectors found that Massey was not following the approved plan at UBB, and issued a number of citations. The problems at the mine continued throughout the year, with MSHA continuing to inspect the mine and finding problems with ventilation. Massey submitted numerous changes to the ventilation plan, many of which were denied because the company failed to provide basic information, such as air flow readings, as required under the law. Given the history of ventilation problems at the mine, a District team of ventilation specialists made another unannounced sweep of the mine on March 9, 2010. Again, although the teams found sufficient air flowing through the mine (107,000 cfm at the longwall), Massey was not following the approved plan, because air at the outby side of the tailgate of the longwall was actually flowing backwards. In other words, less than a month before the explosion, the inspectors found that the mine had an adequate quantity of air but that Massey was failing to properly allocate the air to assure proper ventilation and adherence to the approved ventilation plan. As a consequence air was flowing the wrong way at critical areas of the working section of the mine. An additional troubling point -- mine management is required by law to conduct examinations of air flow. If properly conducted mine management would have identified, reported, and corrected the hazard before MSHA inspectors discovered the problem. Volume of Air Controversy Blankenship and Suboleski are presenting a case that Massey was trying to get increased amounts of fresh air to the longwall face, but was thwarted by MSHA. In fact, the problems with ventilation at this mine had less to do with the volume of air, and more to do with Massey's inability to properly manage the air it had and to follow its approved ventilation plan. In fact, Massey made two requests to marginally increase the amount of air on the longwall face, and MSHA approved both of those requests. The regulations required this kind of longwall face to have 30,000 cfm of fresh air flowing across the face. On September 4, 2009, as this panel was starting, Massey reported 189,000 cfm at the tailgate evacuation point. But, as you may recall, three days earlier, MSHA had shut the mine down because air was flowing backwards through the mine, and the mine had not yet fully implemented the plan. On March 9, 2010, less than a month before the explosion, an MSHA inspector found 107,310 cfm of air flow at the longwall. That same inspector also found, and cited Massey for, air flowing backwards at the tailgate entry. Both the September and March inspections were a result of surprise inspections by ventilation experts, and both found air flowing the wrong way at the longwall. In the nine months that this panel was being worked, MSHA cited Massey 23 times for failing to follow its ventilation plan. Massey clearly had a problem properly directing the air in its mine, and had a problem following the approved ventilation plan. In addition, on January 7, 2010, and contrary to its post-explosion public positioning, Massey actually proposed dramatically reducing the amount of air on the longwall face by using the air from the existing ventilation plan to ventilate a proposed section near the Ellis Portal. Massey had hoped to begin mining the older section of the mine, allowing it to produce more coal. According to Massey, this plan would have reduced the amount air at the longwall face and Headgate 22 by 150,000 cfm. 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 fact that Massey proposed to reduce the volume of air in those sections by 150,000 cfm so it could mine more coal in another area of the mine. As for the comments of Blankenship and Suboleski regarding MSHA's "forced change" to their plan, those appear to be a mischaracterization of MSHA's request that UBB comply with regulations limiting the use of belt air that became effective in 2009. Ironically, those regulations were promulgated, in part, as a response to the fire at Massey's Aracoma Mine that killed two miners. The presumption is against belt air because of the potential in the event of a fire for belt air to carry contaminants and smoke from a burning conveyer belt to the working face of a mine. The regulations give mine operators a choice: either a) discontinue the use of belt air, or b) provide justification to MSHA for its continued use. Because the UBB plan, which provided for the use of belt air prior, was approved prior to the new belt air rules, MSHA provided the company with a significant amount of time to either stop using belt air, or to document the need to continue to use belt air. There were difficulties getting Massey to take action either way. In fact, on December 9, 2009, MSHA sent a copy of the relevant regulations to Massey's ventilation engineers after MSHA was informed that the engineers did not have a copy of the regulations they were supposed to following. A week or so after the courtesy copy of the regulations were handed to a Massey engineer, Massey submitted a plan to stop using belt air to ventilate the working sections of the mine. MSHA approved that plan. Five days later, Massey returned to MSHA and reported that the ventilation plan was not working, and requested to use belt air because it was not able to get its initial plan to properly function. Massey's request provided that belt air would be used up to the crossover at the 29 Break, and noted that Massey would provide a long term plan to deal with belt air within 30 days. MSHA approved the request, and specifically asked if Massey thought it needed belt air beyond the 29 Break. Massey said it was confident that the plan it submitted would work. Incidentally, Massey never filed its long term plan. At the time of the explosion, the longwall operations had passed the 29 break, but it is not clear whether or not Massey was using belt air at the time of the explosion. In any event, after Massey stopped using belt air in mid-December it discovered that its new plan wasn't working as predicted. So Massey requested that MSHA allow it to continue to use belt air , for an interim period. When Massey made the case that belt air was necessary, MSHA approved its use. Massey had the opportunity to justify the continued use of belt air past the interim period, but did not submit a request for its use. And Massey's claim that they were vigorously trying to get more air to the working sections is not consistent with their request, made less than a month after their belt air request, to divert 150,000 cfm of air so that a new section could be mined. Contrary to Massey's post-explosion public positioning, a request for a ventilation plan revision was submitted prior to the explosion to MSHA to mine additional entries off of the longwall tailgate. The request states that approximately 60,000 cfm of ventilating air would be directed from the longwall intake to this section. The request was waiting to be reviewed by District ventilation specialists when the disaster occurred. Like every other underground coal mine, Massey was required at UBB to document and certify that adequate amounts of air were flowing to working sections of the mine every working day, on every shift. If an inspection had indicated that air volume or flow was inadequate, the company would be required to fix the problem before work may begin. If, at any point, it determined that an inadequate amount of air was flowing to any working section, Massey is obligated under the law to halt mining operations until the ventilation problems were resolved. Every day, for every shift, Massey supervisors signed a document indicating there was an adequate amount of air in the working sections of their mine. Falsifying those records is a felony. Finally, if Massey believed that this particular mine posed unique threats to miner safety and health that required actions to be taken beyond the statutory or regulatory minimums, it had a duty under the law to take the steps necessary to provide a safe workplace for its miners. Prior to the explosion at UBB, Massey did not indicate a belief that this mine required extraordinary steps, and 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. In fact, the record shows the opposite - a company that requested to reduce the amount of air flowing to the working sections of the mine, a company that routinely submitted plans that did not meet regulatory requirements, and a company that had serious problems following its plans and managing the air flowing underground.