The underground investigation will consist of several different teams with specific expertise: mapping, dust survey, electrical, photography, flames and forces, geologic and evidence gathering.  The federal agency, along with West Virginia’s Office of Miners’ Health Safety & Training (OMSH&T), outlined specific protocols to ensure the preservation of evidence. All team members will follow these protocols to ensure the integrity and confidence of the evidence collected in the mine.

All evidence will be identified by MSHA and OMSH&T investigators and collected by the Evidence Gathering Team. After a Photography Team photographs the designated evidence, the Evidence Gathering Team will place the evidence in containers for removal from the mine. Upon removal, the evidence will be placed in a secure location on the surface area of the mine for transport to storage or testing facilities. All parties will be notified of any tests to be conducted on evidence and given an opportunity to attend the testing.

Shortly after the investigation began, MSHA dismissed MSHA staffer, Stephen Gigliotti, from the UBB mine probe due to inherent conflict of interest issues. Apparently he had been involved in in the agency’s response to previous “methane outbursts” at the mine.

During late June, Massey Energy announced it would sue MSHA over its improper use of regulatory authority to control the design of ventilation systems and to limit the use of scrubbers in underground mines. Massey Energy also filed a legal challenge to an order issued by MSHA that prohibits Massey from taking its own photographs and coal dust samples and hinders Massey’s efforts to have experts evaluate the conditions underground.

MSHA claims the order preventing Massey investigators from taking pictures and samples during the UBB inquiry were put in place to ensure that evidence is not disturbed. “You cannot disturb evidence by taking photographs of it,” said Massey Energy General Counsel Shane Harvey. “MSHA never raised these concerns before and its after-the-fact justification is not credible.”

“We are increasingly concerned that MSHA will only gather and share information that does not reflect poorly on the agency or discredit its theories. From the very beginning of our discussions with MSHA, Massey has offered to share immediately the results of any tests we perform, any photographs we’re permitted to take, and any other data we collect with MSHA and the U.S. Attorney.  We have nothing to hide and everything to gain by ensuring the factual record is fully developed,” said Harvey.

Taking advantage of an initial invitation extended by Massey Energy CEO Don Blankenship for MSHA to bring experts underground, the agency invited the leaders of the other organizations participating in the investigation, including Cecil Roberts, president, United Mine Workers of America.  “It is unheard of for MSHA to parade non-technical political operatives through critical areas of the UBB mine without first having key pieces of evidence in these sections properly secured,” said Harvey. “Having the leader of the United Mine Workers, whose agenda and rush to judgment desires are well known, tour the mine as nothing more than a gawker before evidence is protected interferes with an investigation that should be based on facts and science.”