Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 1 of 106 PageID 23473 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 2 of 106 PageID #: 23474 From: Sent: To: Subject: Mackowiak, Joseph C - MSHA Tuesday, March 16, 2010 1:40 PM Adkins, Chris UBB Low air on the headgate section again, despite last week's shut down. I called Bill Ross and he is on another project right now. I think they could use some help. Good Luck. 1 USA00000071 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 3 of 106 PageID 23475 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 4 of 106 PageID #: 23476 From: Sent: To: Subject: Mackowiak, Joseph C - MSHA Friday, January 18, 2008 9:22 AM Sigmon, Keith A - MSHA UBB Seal Submittal Importance: High Just to give you a heads up. The alternative protocol plan for ingassing seals submitted by UBB has been recommended for denial, by me, based on the following: The method of sampling proposed does not provide an effective means to evaluate the • atmosphere contained within the sealed areas. • The affected areas referenced on page 4 of the submittal are not shown as indicated. • The submittal contains water elevations, but the mine map does not show the impounded water or seam elevations. Therefore the impact of the impounded water on the sealed areas cannot be determined. No action is required on your part, I will handle it. Thanks for the concern though. USA00000072 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 5 of 106 PageID 23477 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 6 of 106 PageID #: 23478 From: Sent: To: Subject: Agyemang, Tracy - MSHA Thursday, December 08, 2011 10:00 AM Smith, Marcus A - MSHA RE: Ex-Massey chief has started mining company in Kentucky, records show I The Couner-Journal I courier-journal.com Oh boy. The Grinch that stole safety is back. Tracy Agyemang Trial Attorney U.S. Department of Labor Office of the Solicitor 1100 Wilson Blvd, 22nd Floor Arlington, Virginia 22209-2296 Telephone:(202)693-9332 Facsimile: (202)693-9361 Email: agyemang.tracv@dol.gov This message may contain information that is privileged or otherwise exempt from disclosure under applicable law. Do not disclose without consulting the Office of the Solicitor. If you think you received this email in error, please notify me i mmediately by email or telephone. Original Message----From: Smith, Marcus A - MSHA Sent: Thursday, December 08, 20117:35 AM To: Agyemang,Tracy - MSHA Subject: FW: Ex-Massey chief has started mining company in Kentucky, records show I The Courier-Journal I courierjournal Blankenship is operating a new coal company. Marcus A. Smith CMSH Accident Investigations, Analysis and Prevention Union Agency Vice President (AFL-CIO, AFGE, Local 12) Mine Safety and Health Administration 1100 Wilson Blvd, Arlington, VA Office - (202)693-9547 Cell - (703) Redacted - Privacy Original Message From: Pon, Melinda - MSHA Sent: Thursday, December 08, 2011 7:19 AM To: zzMSHA-Coal Administrators Office; zzMSHA-Coal Al Office; zzMSHA-Coal Health Division; zzMSHA-Coal. Management Office ; zzMSHA-Coal Safety Division; zzMSHA-Coal District Managers; zzMSHA-Coal Assistant District Managers; zzMSHA-Coal Staff Assistants; zzMSHA-Coal District Managers Secretaries Subject: Ex-Massey chief has started mining company in Kentucky, records show I The Courier-Journal I courierjournal.com USA00000073 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 7 of 106 PageID #: 23479 http://www.courier-journal.com/article/20111207/N EWS01/312070118/Don-Blankenship-Masseycoal?odyssey=nav%7Chead USA00000074 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 8 of 106 PageID 23480 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 9 of 106 PageID #: 23481 Stricklin, Kevin G - MSHA Wednesday, October 19, 2011 8:13 PM Thomas, Charles J - MSHA; Bentley, Terry L - MSHA Fw: Mine Operators Notice, Rock Dust Definition 30 C.F.R. § 75,2 From: Sent: To: Subject: wur., <.• nr From: Stricklin, Kevin G - MSHA Sent: Wednesday, October 19, 2011 08:11 PM To: Cornett, Bob E - MSHA; Fetty, Gregory W - MSHA; Mosley, Carlos T - MSHA Cc: Brenegan, Robyn V - MSHA Subject: Fw: Mine Operators Notice, Rock Dust Definition 30 C.F.R. § 75.2 Big issue here. Where did you get it from and who told you to send it out? t swe. From: Main, Joseph A - MSHA Sent: Wednesday, October 19, 2011 06:25 PM To: Stricklin, Kevin G MSHA; Zeiler, Linda F - MSHA; Wagner, Gregory - MSHA; Silvey, Patricia - MSHA Subject: Fw: Mine Operators Notice, Rock Dust Definition 30 C.F.R. § 75.2 See below. Need pib and other actions completed tomorrow. Also stakeholder calls need made as it goes out. From: Watzman,Bruce [mailto:BWatzman©nma.org] Sent: Wednesday, October 19, 2011 04:05 PM To: Main, Joseph A - MSHA Subject: Fw: Mine Operators Notice, Rock Dust Definition 30 C.F.R. § 75.2 Isn't this one of the issues you wanted to discuss? Guess the word is out. Bruce Watzman Sr. VP. - Regulatory Affairs. National Mining Association (0)202-463-2657 © 202-: Redacted - Privacy I From: John Gallick <3Gallick©alphanr.com> To: Watzman,Bruce Sent: Wed Oct 19 15:54:41 2011 Subject: FW: Mine Operators Notice, Rock Dust Definition 30 C.F.R. § 75.2 We've been hearing about this for a while. John M Gallick VP Safety and Health Alpha NR PO Box 1020 158 Portal Road. Waynesburg, PA 15370 ("724)627-2258 (Office) 1 USA00000075 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 10 of 106 PageID #: 23482 d •edvatY1MObilg) " (724)1 Red (724) Ag2:S8155-frax) From: Brian Keaton Sent: Wednesday, October 19, 2011 3:19 PM To: Berman Cornett; Bill Ross; Brandon Pack; Brian Keaton; Bruce Hamrick; Chris Presley; Chris Ray; Christine Rhoades; Clark McCoy; Danny McGlothlin; David Brown; David Schoolcraft; David Varney; Doug Blankenship; Doug Robinson; Forrest Sammons; Gary Frampton; Gary Steele; Greg Fernett; Jack Lovins; James Hancock; James Murray; James Oster; James Walker; Jason Castle; Jason Jude; Jason Strickland; Jeff Bennett; Jim Pablic; Joe Wyatt; John Gallick; John Patrick; Julie Legg; Kenneth Perdue; Kevin Deaton; Kevin N. Hatfield; Marci C. Young; Michael A Vaught(CH) 2510; Michael Sowdon; Paris Charles; Perry Whitley; Joe Pervola EM (2211); Rages Matney; Ram Tankersley; Randy Taylor; Richard Williamson; Rick Triplett; Robert Bohach; Roger Gilliam; Steve Endicott; Terry Keen; Terry Lambert; Terry Theys; Tom Asbury; Vernondia Adams; Wayne Persinger Cc: Michael R. Peelish; Mick Risdon; Bill Mullins; Macs Hall; Suzan Moore; Stephanie Ojeda; Mark Schuerger; Mike Snelling; Eddie Bateman; Jim Bryja Subject: FW: Mine Operators Notice, Rock Dust Definition 30 C.F.R. § 75.2 FYI From: Brenegan, Robyn V - MSHA [mailto:brenegan.robyn@DOLGOV] Sent: Wednesday, October 19, 2011 3:11 PM To: zzMSHA-Coal 03 All AR's Subject: Mine Operators Notice, Rock Dust Definition 30 C.F.R. § 75.2 Bat All B Seat reT eholders Bob Cornett Hello Folks MSHA and the National Institute for Occupational Safety and Health (NIOSH) have identified possible quality problems with the rock dust used in underground coal mines. In random samples collected from over 270 underground coal mines over 40% of the samples were found to contain rock dust that did not meet the minimum specification of 70% passing through a 200-mesh sieve. Noncompliant rock dust was found at over 50% of the mines sampled. Further analysis of the rock dust samples revealed an excessive quantity of very fine particles. Such particles, in addition to being respirable, increase the tendency of rock dust to agglomerate or cake when exposed to high moisture conditions. Rock dust is defined in 30 C.F.R. § 75.2 as pulverized limestone, dolomite, gypsum, anhydrite, shale, adobe, or other inert material, preferably light colored, 100 percent of which will pass through a sieve having 20 meshes per linear inch and 70 percent or more of which will pass through a sieve having 200 meshes per liner inch; the particles of which when wetted and dried will not cohere to form a cake which will not be dispersed into separate particles by a light blast of air; and which does not contain more than 5 percent combustible matter or more than a total of 4 percent free and combined silica (Si02), or, where the Secretary finds that such silica concentrations are not available, which does not contain more than 5 percent offree and combined silica. As you are well aware, mine operators have a responsibility to use rock dust that conforms to the definition of rock dust as contained in 30 C.F.R.§ 75.2. Therefore, mine operators should inform their suppliers and rock dust manufacturers that they will only purchase and use quality-assured conforming rock dust. To verify this, mine operators should send samples of 2 USA00000076 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 11 of 106 PageID #: 23483 each lot of rock dust received to a laboratory for analysis to ensure that it conforms to the rock dust definition. Rock dust that does not meet the definition of 30 C.F.R.§ 75.2 is considered noncompliant. Information pertaining to this issue will be published in a Program Information Bulletin (PIB) in the near future. Please confirm that this information is conveyed to all underground coal mine operators by October 26, 2011. 3 USA00000077 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 12 of 106 PagelD 23484 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 13 of 106 PageID #: 23485 From: Sent: To: Subject: Ward, William J - MSHA Monday, December 06, 2010 1:36 PM Pon, Melinda - MSHA RE: Don Blankenship Is an Evil Bastard Here is the actual link to the article: http://www.drist.ord/article/2007-12-19-don-blan kensh ip-is-an-evil-bastard From: Pon, Melinda - MSHA Sent: Monday, December 06, 2010 1:34 PM To: Ward, William J - MSHA Subject: RE: Don Blankenship Is an Evil Bastard this appears that you wrote it ???? From: Ward, William J - MSHA Sent: Monday, December 06, 2010 1:32 PM To: Pon, Melinda - MSHA Subject: Don Blankenship Is an Evil Bastard Get a load of the title of this one.. . William J. Ward Program Analyst Coal Mine Safety and Health Office of the Administrator Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, VA 22209 Phone: (202) 693-9762 Fax: (202) 693-9501 USA00000078 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 14 of 106 PagelD 23486 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 15 of 106 PageID #: 23487 From: Sent: To: Subject: Pon, Melinda - MSHA Monday, December 06, 2010 1:37 PM Ward, William J MSHA RE: Don Blankenship Is an Evil Bastard that's better. From: Ward, William 3 - MSHA Sent: Monday, December 06, 2010 1:36 PM To: Pon, Melinda - MSHA Subject: RE: Don Blankenship Is an Evil Bastard Here is the actual link to the article: http://www.crist.orq/article/2007-12-19-don-blankenship-is-an-evil-bastard OUT From: Pon, Melinda - MSHA Sent: Monday, December 06, 2010 1:34 PM To: Ward, William J - MSHA Subject: RE: Don Blankenship Is an Evil Bastard this appears that you wrote it ???? From: Ward, William 3 - MSHA Sent: Monday, December 06, 2010 1:32 PM To: Pon, Melinda - MSHA Subject: Don Blankenship Is an Evil Bastard Get a load of the title of this one.. . OUT William 3. Ward Program Analyst Coal Mine Safety and Health Office of the Administrator Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, VA 22209 Phone: (202) 693-9762 Fax: (202) 693-9501 USA00000079 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 16 of 106 PagelD 23488 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 17 of 106 PageID #: 23489 From: Sent: To: Subject: Stricklin, Kevin G - MSHA Tuesday, October 05, 2010 12:59 PM Gardner, George H - MSHA Fw: Particle Size Results Original Message From: Watkins,Timothy R - MSHA To: Stricklin, Kevin G - MSHA CC: Page, Norman G - MSHA Sent: Mon Oct 04 21:40:15 2010 Subject: FW: Particle Size Results Kevin, Not sure if you are aware of our preliminary rock dust analysis but I thought you should know before the 8:00 a.m. conference call. These are the samples collected at the rock dust manufacturer and at UBB. As you well know 30 cfr requires 70% to pass though a 200 mesh screen. Four samples were analyzed from each source. From: Caudill, Steaven 1 - MSHA Sent: Monday, October 04, 2010 8:46 PM To: Watkins, Timothy R - MSHA Subject: FW: Particle Size Results From: Montgomery,Terry - MSHA Sent: Monday, October 04, 2010'5:52 PM To: Caudill, Steaven D - MSHA Subject: Particle Size Results Steve, 1 USA00000080 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 18 of 106 PageID #: 23490 Here are the preliminary results for the particle size analysis on the UBB samples. PE-0318 PE-0318 (A): 67.7% PE-0318 (B): 70.5% Samples collected from Manufacturer's 40 pound bag. PE-0318 (C): 68.1% PE-0318 (D): 69.6% PE-0319 PE-0319 (A): 67.4% PE-0319 (B): 69.6% Samples collected from Manufacture's bulk bag. PE-0319 (C): 68.8% PE-0319 (D): 68.9% PE-0320 PE-0320(1A): 61.2% PE-0320 (1B): 64.1% Samples collected from UBB track duster. PE-0320(2A): 62.0% PE-0320 (213): 61.4% PE-0321 PE-0321(1A): 68.3% PE-0321 (1B): 68.1% Samples collected from UBB bulk bag. PE-0321 (2A): 68.7% PE-0321 (2B): 66.4% PE-0322 PE-0322(1A): 70.2% PE-0322 (1B): 69.7% Samples collected from UBB 40 pound bag. PE-0322 (2A): 69.6% PE-0322 (2B): 69.4% 2 USA00000081 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 19 of 106 PageID #: 23491 Please not that these are preliminary results, and a final report will be delivered upon completion of the silica analysis. Please let me know if you have any questions. Thanks. Terry G. Montgomery, Supervisory Chemist MSHA National Air and Dust Laboratory 100 Bluestone Road Mount Hope, WV 25880 304-877-3900 ext. 162 304-877-3927 (fax) Montgomery.Terry@dol.gov 3 USA00000082 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 20 of 106 PagelD 23492 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 21 of 106 PageID #: 23493 From: Sent: To: Subject: Bentley, Terry L - MSHA Monday, April 14, 2008 4:34 PM Pon, Melinda - MSHA FW: MSHA Honors Massey Energy Affiliates for Safety Achievements: Awards for Green Valley and Aracoma Coal Companies Importance: High This won't play well with certain parties From: Farad, Matthew L - MSHA Sent: Monday, April 14, 2008 4:25 PM To: Murray, Kenneth A - MSHA; Stricklin, Kevin G - MSHA; Stickler, Richard - MSHA; Mattos, Jay P - MSHA; Pallasch, John - MSHA; Madden, Andrew - MSHA; Ladik, Jeffrey J - MSHA; Bentley, Terry L - MSHA; Clair, Edward P - MSHA; Bullock, Kenneth A - MSHA; Friend, Robert M - MSHA Cc: James, David - OPA Subject: MSHA Honors Massey Energy Affiliates for Safety Achievements: Awards for Green Valley and Aracoma Coal Companies Importance: High FYI MSHA Honors Massey Energy Affiliates for Safety Achievements: Awards for Green Valley and Aracoma Coal Companies April 14, 2008: 01:09 PM EST CHARLESTON, W.Va., April 14 /PRNewswire-FirstCall/ -- The Mine Safety and Health Administration (MSHA)has selected the Green Valley Preparation Plant and two mines operated by the Aracoma Coal Company to receive Pacesetter Awards for outstanding safety achievements. (Photo: http://www.newscom.com/cgi-binipmh/20071031/114ASSEYENERGYLOGO ) Green Valley and Aracoma are operating units of Massey Energy Company(NYSE: MEE). The federal mine safety agency will formally present Pacesetter Awards to the Green Valley plant and Aracorna's Alma Mine and Hernshaw Mine at a May 9 ceremony at Oglebay Resort in Wheeling, WV. The awards honor operations with exceptionally low lost-time accident rates. In 2007, workers at Green Valley logged 64,000 hours without a lost time accident and a NFDL rate of zero. Non-fatal days lost(NFDL)rates are the benchmark used by the coal industry to measure safety. The miners at Aracoma Coal Company had no lost time accidents in 2007 therefore a 0.00 NFDL rate. During 2007, the miners at Aracoma worked over 574,000 hours. 1 USA00000083 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 22 of 106 PageID #: 23494 Aracoma also received Massey Energy's prestigious Bradbury Safety Award in March in recognition of their outstanding safety achievements. "Safety is our top priority at Massey, and we are pleased that MSHA has again recognized our members' unwavering commitment to working safely everyday. Our Aracoma members had a very difficult year after the tragedy in 2006, but they responded by pulling together to create a culture of safety," said Don L. Blankenship, Chairman and CEO. "All of us at Massey Energy are proud ofthe accomplishments of the members at Green Valley and Aracoma." The stellar safety records at Green Valley and Aracoma helped Massey Energy achieve its best safety performance in the company's history in 2007. Massey recorded a NFDL rate of 2.05 for the year, far below the industry average of 3.31. Massey Energy Company, headquartered in Richmond, Virginia, with operations in West Virginia, Kentucky and Virginia, is the fourth largest coal producer by revenue in the United States. SOURCE Massey Energy Company Matthew Faraci Public Affairs Mine Safety & Health Administration U.S. Department of Labor 202-693-9406 Direct 202-693-4676 Office 202-693-9401 Fax faraci.matthew@dol.gov 2 USA00000084 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 23 of 106 PagelD 23495 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 24 of 106 PageID #: 23496 From: Sent: To: Subject: McKinney, Ray - MSHA Thursday, October 08, 2009 10:10 AM Rasnick, Nicholas D - MSHA; Meikle, Gregory B - MSHA. FW: Coal News - Thursday, October 8, 2009 You think Blankenship has not put together that Byrd and Main are very tight. Could make for interesting business. From: echafin [mailto:echafin©suddenlink.net] Sent: Wednesday, October 07, 2009 10:59 PM To: Nadzadi, George M - MSHA; Adkins, Paul; MSHA-Tabor, Nancy; MSHA-Pyles, John; Whitaker, Gregory S - MSHA; Haynes, Michael - MSHA; Hooker, Irvin T - MSHA; Page, Norman G - MSHA; McMasters, Gerald W - MSHA; Stricklin, Kevin G - MSHA; McKinney, Ray - MSHA; Marcum, Ernest H - MSHA; Hays, Rhonda B - MSHA; Harmon, Danny D - MSHA; Cornett, Bob E - MSHA; Cook, Sharon A - MSHA; Mullins, Vicki L - MSHA; Boone, Carl E - MSHA; Deel, Danny R - MSHA; Pon, Melinda - MSHA; Gates, Richard A - MSHA; Bentley, Terry L - MSHA; Nicolau, Vincent L - MSHA; Bane, William H MSHA Subject: Coal News - Thursday, October 8, 2009 Byrd blasts Massey 'arrogance' over Marsh Fork school Charleston Gazette - October 8, 2009 CHARLESTON,W.Va.-- Sen. Robert C. Byrd on Wednesday blasted Massey Energy for what he called "disregard for human life and safety," following the company's refusal to help fund a new school so Marsh Fork Elementary students could move away from a Massy coal processing plant and slurry impoundment. "Such arrogance suggests a blatant disregard for the impact of their mining practices on our communities, residents and particularly our children," Byrd said in a statement. "These are children's lives we are talking about." Byrd issued his harshly worded statement in response to news reports that Massey would not consider a request from the Raleigh County Board of Education to help finance relocation of Marsh Fork Elementary. The 225-student school, located near Sundial, sits less than 300 feet from a Massey coal processing plant and just down the hollow from a huge coal-slurry waste impoundment. Environmentalists and some local citizens say the school isn't safe because of pollution from the coal preparation facility and the risk -- no matter how remote -- that the slurry impoundment could fail. 1 USA00000085 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 25 of 106 PageID #: 23497 "If Massey were not operating near Marsh Fork Elementary, we would not be debating what to do about moving these young students someplace safer," Byrd said. "This is not the taxpayers' burden to remedy. This is Massey Energy's responsibility to address." Massey officials could not immediately be reached for comment Wednesday evening. But in a story published Saturday in the Beckley Register-Herald, company spokesman Jeff Gillenwater said Massey would not donate to help relocate the school. "Massey pays millions of dollars in taxes each year that are available for projects such as this," Gillenwater told the newspaper. "In fact,just the mines in the Marsh Fork area pay nearly $5 million per month in severance, property and other state taxes." That $5 million figure was the price that school board members had estimated for building a new school. Marsh Fork's location has been debated before state environmental boards and in the courts, the subject of a four-year battle between citizen groups, Massey and the state Department of Environmental Protection. The simmering controversy increased in July 2005, after The Charleston Gazette revealed that DEP had approved permits for a new coal silo at the site, despite the fact that company permit maps showed the silo off the legal mining boundary. Earlier this year, the state Supreme Court cleared the way for that silo. Justices ruled that an on-the-ground permit marker, not the maps submitted for public review to DEP,were the official permit boundary. And in June, Marsh Fork was the site of a huge anti-mountaintop removal protest where actress Daryl Hannah and NASA climate scientist James Hansen were arrested. Slurry impoundments like the one Massey operates near Marsh Fork Elementary have been a major concern for coalfield residents for decades, since the February 1972 collapse at Buffalo Creek in Logan County killed 125 people. Six years before Buffalo Creek, a similar disaster in Aberfan, Wales, killed 144 people, including 116 students at Pantglas Junior School, located just down the mountain from the failed mining waste dam. "Let me be clear about one thing -- this is not about the coal industry or their hard-working miners," Byrd said. "This is about companies that blatantly disregard human life and safety because of greed. That is never acceptable." Byrd added,"At a time when coal is under such close scrutiny, coal companies operating in West Virginia should be working together to put their best foot forward. "For the sake of the entire coal industry, Massey Energy should strive to be a better and more responsible corporate citizen," Byrd said. And in language that played on the name of Massey Energy Don Blankenship's former political action group, Byrd concluded,"And for the sake of the kids, they should address these serious environmental concerns at Marsh Fork Elementary immediately." 2 USA00000086 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 26 of 106 PageID #: 23498 200 gather for pro-coal rally Charleston Gazette - October 8, 2009 CHARLESTON,W.Va. -- About 200 people turned out Wednesday to protest the Obama administration's efforts to more closely examine permits for mountaintop removal coal mining. Protesters also complained about pending legislation to limit greenhouse gas emissions and more generally about "big government" interfering with the coal industry and with their way of life. The event, sponsored by the West Virginia Conservative Foundation,focused on the U.S. Environmental Protection Agency's continuing review of 79 coal-mining permits proposed for West Virginia and three other states. "Every coal miner in the state is under attack by EPA," West Virginia Coal Association President Bill Raney told the crowd, which gathered for the noontime rally at the coal miner statue on the Capitol grounds. The rally aimed to put more political pressure on EPA and on the state's Democratic elected officials, especially Rep. Nick J. Rahall, who has said EPA is just "doing its job" by more closely examining the mining permits. Other speakers included a worker at a Massey Energy surface mine, coal association publicist Bryan Brown,who launched the industry group FACES of Coal, and Delegate Troy Andes, R-Putnam,who works as a media spokesman for Massey. Gov. Joe Manchin has criticized EPA's permit review as "cruel and inhumane," while a United Mine Workers leader, Roger Horton, told West Virginia Public Broadcasting the EPA action "is nothing short of state-sponsored terrorism." This summer, the Obama administration announced it would take "unprecedented steps" to reduce the environmental impact of mountaintop removal. EPA officials say they want to work with the U.S. Army Corps of Engineers and mine operators to address "potentially significant water quality and environmental issues" related to the 79 permits. They have stressed the review doesn't mean the permits will be denied, especially if changes are made to reduce the impacts. Overall, the permits EPA wants to more closely review cover more than 60 square miles in West Virginia, Kentucky, Tennessee and Ohio. The permits would bury or otherwise affect more than 170 miles of streams, including 14 miles of larger, perennial streams that flow year-round. The permits propose mining of nearly 300 million tons of coal. USA00000087 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 27 of 106 PageID #: 23499 In a related matter, Department of Justice lawyers this week asked a federal judge for 30 more days so that EPA can consider whether to veto a Corps of Engineers decision to approve the largest mountaintop removal permit in West Virginia history. EPA officials had asked the corps to suspend or revoke the nearly 2,300-acre permit for Arch Coal Inc.'s Spruce No. 1 Mine in Logan County. EPA cited a variety of problems with the permit and "dear evidence" of likely environmental damage. Corps officials re-examined the permit, but concluded they disagreed with EPA about the impacts. Now, the EPA is weighing whether to exercise its legal authority to override the corps and block the permit. Arch Coal lawyers want U.S. District Judge Robert C. Chambers to dismiss a citizen group legal challenge that also seeks to block the permit. Administration officials want Chambers to delay ruling for 30 days while EPA decides what action it plans to take. Related Story: Standing Up for Coal MetroNews - October 7, 2009 Dozens of West Virginians gathered in the shadow of the miner's statue on the grounds of the state capitol Wednesday to protest cap and trade. Coal supporters carried signs reading,"I'm proud to be a coal miner's daughter!" and "Say no to cap and trade!" Kathy Cochran from Belle made her voice heard. She says the federal government is out of touch and West Virginia faces a real danger if the current cap and trade bill becomes law. "We're not tourism. We're not lottery. 1 mean it helps but coal is what we are. It's a Godgiven natural resource and we need to use it," Cochran said. Protesters made it known they're upset with the attitude of Third District Congressman Nick Rahall. Responding to last week's announcement that the EPA is holding up approval on 23 4 USA00000088 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 28 of 106 PageID #: 23500 surface mine permits in West Virginia while they're reviewed again, Rahall said the agency was simply doing its job. Troy Andes, a Putnam County delegate who works for Massey Energy,says Rahall needs to support his constituents, not the Washington elite. "Call Nick Rahall," Del. Andes said. "Tell him to start standing up for jobs and our values and quit defending the Washington status quo! We want officials that will say Yes" to coal and more jobs, not more government and more unemployment!" Chants of"Rahall must go!" came from the crowd. A handful of cap and trade supporters showed up at the rally leading to several verbal confrontations. "Do you breathe?" asked one coal supporter. The answer from a young environmentalist, Yes." "Do you turn on the lights at night? Do you turn your TV on? Do you turn your air conditioning on?" The coal supporter asked. "I do, but I wish it was with clean energy," countered the environmentalist. Cap and trade protesters say they can't sit by and watch coal become a fossil fuel of the past. They said, "It's about time we stand up and do something!" 5 USA00000089 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 29 of 106 PageID #: 23501 Mining Companies Hit Wall on Mountaintop Blasting Wall Street Journal - October 8, 2009 WHITESVILLE, W.Va.—The coal-mining industry is trying to regroup in the wake of a move by the Obama administration to curtail mountaintop mining to extract coal. Last week, the Environmental Protection Agency said it was holding up 79 permit applications for mining projects in Central Appalachia due to concerns the projects would damage water quality in nearby streams and violate the Clean. Water Act. Another 180 applications are pending. The companies can resubmit the applications, but uncertainty around permit- approval makes planning risky. "They're trying to find a way to kill us a little bit at a time—death by a thousand cuts," said Michael Snelling, head of surface operations for Richmond,Va.,-based Massey Energy Co., 6 USA00000090 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 30 of 106 PageID #: 23502 which had five permits delayed by the EPA last week. Mr. Snelling said EPA requirements to protect streams might be too burdensome for other projects. Mountaintop mining involves blasting off the tops and dumping unused rock and dirt into valleys and streams. The EPA has long had oversight authority over permits that relate to mining's impact on waterways but has challenged few of them--until this year. Hal Quinn,CEO of the National Mining Association, said more delay and study is "at crosspurposes with our nation's need for affordable energy, investments and secure jobs." The EPA's move comes as the industry struggles on economic and legislative fronts. The recession cut demand from utilities and steelmakers, driving down prices and earnings, and pushing some utility stockpiles to a 25-year high. Meanwhile, pending federal climate legislation and efforts to boost renewable fuel like solar and wind threaten coal's long-term prospects. Consol Energy Inc. of Pittsburgh could ultimately benefit, even though five of its permits have been delayed. It mainly mines coal underground, rather than from mountaintops, and could pick up market share if rivals' production is restricted. "It's too soon to say how this could work out," Consol spokesman Tom Hoffmann said. By some estimates, he said, cutting mountaintop mining would reduce U.S. production by 50 million tons, or 5%,which could boost coal prices. 7 USA00000091 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 31 of 106 PageID #: 23503 That,in turn, could raise prices for electricity consumers, as nearly 50% of U.S. electricity production relies on coal, said Paul Forward, an analyst with Stifel, Nicolaus & Co. Some coal-dependent utilities would be forced to tap natural gas. The harder line from the EPA could also shift production from the Central Appalachian states of West Virginia, Kentucky and Virginia, where mountaintop mining is more common, to states where mountaintop mining is less common,including Illinois, Indiana, Pennsylvania and Wyoming. Until about three decades ago, miners in coal-rich Central Appalachia tunneled into mountains. In the 1970s, they found it was more efficient in some cases to remove the mountaintop to expose coal seams. At a typical mountaintop site, a mining company clears miles of hardwood forest. It then drills holes and packs them with explosives to blast rock, reducing the elevation of a mountain by as much as 800 feet, according to mining companies. Nearly three million pounds of explosives are used each day in West Virginia, most for coal mining, the U.S. Geological Survey says. When mining is completed, companies are required in some cases by federal law to rebuild a mountain to within 50 feet of its original contour, unless they receive permission to leave land flat for housing, shopping centers or airports. Mining opponents say the projects are eyesores that foul views, streams and nearby towns. Rocks from blast sites can fall into populated valleys. 8 USA00000092 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 32 of 106 PageID #: 23504 Massey says it works to restore landscapes, and limits dust with street sweepers and plant enclosures."We live here. We care about doing a good job with the environment," says Massey's Mr. Snelling,. The industry-or-environment calculation is particularly stark in this town in West Virginia's western mountains. Whitesville's bowling alley and movie theater closed years ago. In a town of300 residents, 30% live below the poverty line. Rising just outside town is. Coal River Mountain,one of the few unmined major peaks in a landscape of flattened or reconstructed mountaintops. Massey, which controls the mountain's mineral rights, awaits approval on several permits. Some locals want to preserve it. Lorelei Scarbro's husband,father, grandfather and son-in-law all worked, or still work,in underground mines. But the 54 year old, who lives on 10 acres with a stream below Massey's proposed mining site, worries about the stream's health and her property's value. "It's a very peaceful place," said Ms. Scarbro, who has protested Massey's mining plans. "There are a lot of peaceful places being destroyed to remove coal." Some local miners resent efforts to block mountaintop mining. Lee Price, 62, works at a mountaintop mine nearby in Boone County, where poverty stands at 18.2% He earns about $52,000 with overtime, driving a Massey truck. "I couldn't tell you a higher paying job around," said Mr. Price, whose father and grandfathers mined coal. 9 USA00000093 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 33 of 106 PageID #: 23505 Hearing on mountaintop removal mining set for Pittsburgh Pittsburgh Post-Gazette - October 8, 2009 CHARLESTON,W.Va.-- Six public hearings across the Appalachian coalfields next week, including one in Pittsburgh,figure to be the latest battleground in the fight over the future of a practice known as mountaintop removal mining. The environmental community and pro-coal forces say they're pushing for big turnouts at the hearings, which will focus on a streamlined process coal companies have used to obtain permits to fill valleys with material left over from mountaintop removal mines. The Army Corps of Engineers is mulling an outright ban on using streamlined or temporary permitting processes for Appalachian surface mines. Environmental groups want mountaintop removal mining banned as too destructive, while the industry argues it should be allowed to continue the highly efficient method of extracting coal. The corps says one proposal would bar issuing valley fill permits in the region using the streamlined process known as nationwide permitting. Coal companies would have to obtain individual permits, which also are under fire. The Environmental Protection Agency has been giving Clean Water Act permits for surface mines closer scrutiny and recently held up 79 applications. 10 USA00000094 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 34 of 106 PageID #: 23506 The other proposal would merely suspend the streamlined process while the corps evaluates changes. Both options stern from a decision by the Obama administration in June to try eliminating the streamlined process as part of a broader effort to curb surface mining in the region. The Sierra Club, which is organizing carpools to help boost turnout at the hearings,says the corps is on the right track by proposing an outright ban. "Mountaintop removal has had a devastating impact on local communities, the economy,and our environment, and the nationwide permits should never have been issued," Sierra Club spokeswoman Mary Anne Hitt said in a statement. Coal industry supporters are pushing for a big turnout too. At a pro-coal rally in Charleston today, attorney Mike Stuart urged some 200 people to attend. "Coal miners don't want a bailout. They simply want a work permit," Mr. Stuart said at the rally put on by the West Virginia Conservative Foundation. "Today,surface mining is under attack. The thousands ofjobs we've had for decades are under attack." The corps hearings are set for Tuesday in Charleston, Pikeville, Ky., and Knoxville, Tenn., and Thursday in. Pittsburgh, Cambridge, Ohio, and Big Stone Gap, Va. Capito Sends Letter To EPA Chief If730Y TV News - October 7, 2009 Rep. Shelley Moore Capito, R-W.Va., called today on U.S. Environmental Protection Agency Administrator Lisa Jackson to clarify her agency's actions regarding delays in the coal mine permitting process. 11 USA00000095 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 35 of 106 PageID #: 23507 Capito sent her concerns in a letter to Jackson about uncertainty in the Appalachian coalfields, saying continued ambiguity and delays in the permitting process will cost West Virginia miners jobs and slow economic investment in the state. "Further delay of mining permits creates enormous uncertainty that's forcing mines to delay investment, halt production and lay off workers across the region," she wrote."It is imperative that the EPA clarify the process for approving or rejecting permits — hardworking West Virginians depend on it." Capito also asked the EPA to reconcile its stated commitment to an expedient resolution to the 79 outstanding permit applications in Appalachia. "While we were promised that permits would be reviewed deliberately, but expeditiously, what we have is a process with no apparent end in sight," Capito said. Capito's office said the EPA has pointed to a 60-day clock for approving permits, but the clock begins only when the Corps is able to officially "pick up" the application. It is unclear whether any of the permits have even been released by the EPA,her office said. "It's certainly appropriate to have legitimate oversight and review of all proposed permits, but the EPA's most recent statement is only the latest in a series which have created uncertainty and ambiguity for mines across our state and region," Capito wrote. 12 USA00000096 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 36 of 106 PageID #: 23508 AEP President Supports Cap and Trade MetroNews - October 7, 2009 The President of American Electric Power says cap and trade will eventually drive up the price of electricity, but Mike Morris says it's a necessary step for the United States and countries around the world when it comes to dealing with climate change. "We think that it's probably the best way to go about addressing the issue of global warming and I underline the phrase 'global warming' because, at the end of the day, that's the challenge," Morris said on Wednesday's MetroNews Talkline. The U.S. House of Representatives has already approved the massive climate change bill that is now being considered in the U.S. Senate. "We are trying to get the very best piece of legislation that we can which gives us an opportunity to move forward and do it," he says of the ongoing cap and trade debate. If the cap and trade provision is approved as part of the bill, the federal government will bring down the amount of carbon released into the atmosphere gradually over time by issuing credits. Companies that produce more carbon than allowed will have to buy more credits. Those that have not used all of their carbon allowances can sell their remaining credits. Morris says global warming is real and cap and trade is the best option being considered to address it. 13 USA00000097 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 37 of 106 PageID #: 23509 However, he says, it is an option that will cost you more. "The cost of electricity is going to go up to address this issue of global warming," Morris says. "It's a technology challenge and the technology is being developed." AEP is currently testing out a carbon sequestration project at the Mountaineer Plant in New Haven. Morris says in order to have an impact on the climate, though,it cannot be just the United States making these changes. If the U.S. stands alone, Morris says it will only be the U.S. economy that'll be impacted. "Clean coal is going to be as cheap or cheaper than any of the alternatives that you continue to hear people talk about." American Electric Power serves five million customers in eleven stAtes. It is the largest coal powered utility in the United States. Feds issue safety, health warnings to 10 US mines Charleston Gazette - October 8, 2009 CHARLESTON,W.Va.(AP)- The operators of 10 U.S. mines, including the largest privatesector coal company in the world, have been warned they must improve health and safety conditions or face stricter enforcement and penalties, the federal Mine Safety and Health Administration said Wednesday. Half the mines are in West Virginia, the nation's second-largest coal producer. One is a lead and zinc mine in Missouri and the rest are coal operations in Kentucky,Indiana and Virginia. Inspectors found high levels of violations that could cause serious injuries or illnesses at each of the operations, MSHA said. For instance, Massey Energy Co.'s Tiller No. 1 underground mine in Virginia received citations for serious violations at 222 percent of the national average, according to MSHA. 14 USA00000098 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 38 of 106 PageID #: 23510 The agency hopes the notification will encourage the operators to make improvements, MSHA deputy director Gregory Wagner said in a statement. MSHA didn't identify specific violations in the letters, giving only numbers and rates of violations. MSHA has issued similar warnings four times since June 2007. Operators have 90 days to reduce the number of violations, and will face closer scrutiny if they don't. MSHA also can order mines evacuated until violations are fixed. Tiller No. 1 was one of three Massey mines identified for persistent problems. The other two are underground mines in West Virginia. The Richmond, Va.-based company said it will take corrective action at the mines and noted it has done so in the past when MSHA notified itof excessive violations at other operations. "Massey's safety record is consistently better than the industry average," the company said. "Massey will take all necessary steps to ensure that these operations notified of the potential pattern of violations meet Massey Energy's standards." In Missouri, Bob Roscoe, vice president of mining at The Doe Run Co., said the company was surprised at MSHA's notice about the Buick Mine and Mill near Viburnum, one of the company's six underground mines. Roscoe said the company is taking the MSHA notice "extremely seriously." "Safety has been and will always be an important priority for Doe Run," Roscoe said. "In the meantime, we will continue to equip, train and work with all of our employees to deliver on our commitments to keep each other safe." The list also included mines operated by coal industry giant Peabody Energy in Indiana, Richmond, Va.-based James River Coal in Kentucky, St. Louis-based Patriot Coal in West Virginia and New York-based Renco Group,as well as three smaller operators. A Peabody spokeswoman had no immediate comment,while representatives of James River, Patriot and Renco did not immediately respond to requests for comment. Black Beauty Coal Co. McCoy Elkhorn Coal Corp. Pleasant View Mining Co., inc. Doe Run Co. Knox Creek Coal Corp. Air Quality # 1 Mine Mine #15 Richland No.9 Buick Mine/Mill Tiller No. 1 Coal Ind. Coal Ky. Coal Ky. Lead-Zinc Mo. Coal Va. Mountain Reclamation & Construction Coal Anna Branch W.Va. 15 USA00000099 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 39 of 106 PageID #: 23511 Spartan Mining Co., Inc. Ruby Energy Coal W.Va. Pine Ridge Coal Co., LLC Big Mountain No.16 Coal W.Va. Laurel Coal Corp. Winifrede 12 Mine Coal W.Va. Mammoth Coal Co. Slabcamp Coal W.Va. Related Story: Feds issue safety, health warnings to 10 Us mines Courier Journal - October 8, 2009 The operators of 10 U.S. mines, including the largest private-sector coal company in the world, have been warned they must improve health and safety conditions or face stricter enforcement and penalties, the federal. Mine Safety and Health Administration said Wednesday. Half the mines are in West Virginia, the nation's second-largest coal producer. One is a lead and zinc mine in Missouri and the rest are coal operations in Kentucky,Indiana and Virginia. Inspectors found high levels of violations that could cause serious injuries or illnesses at each of the operations, IVISIIA said. For instance, Massey Energy Co.'s Tiller No. 1 underground mine in Virginia received citations for serious violations at 222 percent of the national average, according to MSHA. The agency hopes the notification will encourage the operators to make improvements, MSHA deputy director Gregory Wagner said in a statement. The Kentucky mines are McCoy Elkhorn Coal Corp. Mine #15, Kimper, Ky. and Pleasant View Mining Co. Inc. Richland No. 9, Madisonville, Ky. Both mines are operated by James River Coal, where a representative did not immediately respond to a request for comment. MSHA has issued similar warnings four times since June 2007. Operators have 90 days to reduce the number of violations, and will face closer scrutiny if they don't. MSHA also can order mine's evacuated until violations are fixed. Tiller No. 1 was one of three Massey mines identified for persistent problems. The other two are underground mines in West Virginia. 16 USA00000100 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 40 of 106 PageID #: 23512 The Richmond, Va.-based company said it will take corrective action at the mines and noted it has done so in the past when MSHA notified it of excessive violations at other operations. "Massey's safety record is consistently better than the industry average," the company said. "Massey will take all necessary steps to ensure that these operations notified of the potential pattern of violations meet Massey Energy's standards." Supreme Court hears case on justice's e-mails Charleston Gazette - October 8, 2009 CHARLESTON, W.Va. — Arguments over a former state Supreme Court justice's e-mails to a prominent coal company executive have come down to what constitutes a public document. Patrick McGinley, a lawyer representing The Associated Press, told the Supreme Court on Wednesday that all offormer Chief Justice Elliot "Spike" Maynard's e-mails to Massey Energy chief executive Don Blankenship should be released. The AP is appealing a 2008 circuit court decision that released five of 13 e-mails between the two. The judge in that case ruled the eight others didn't involve public business. The Supreme Court's administrator is also appealing, arguing that none of the documents are public and should be exempt from the state's Freedom of Information Act. Related Story: Public or Not? MetroNews - October 7, 2009 The state Supreme Court is considering whether emails between former Justice Spike Maynard and Massey Energy President and CEO Don Blankenship are public documents. The appeal filed by the Associated Press in connection with the Freedom of Information Act was argued before the High Court Wednesday. AP won a lower court case that required some of the emails to be released, but the wire service appealed because Kanawha County Circuit Judge Duke Bloom ruled eight emails 17 USA00000101 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 41 of 106 PageID #: 23513 were no longer public documents after Justice Maynard decided to remove himselffrom Massey cases. "The Associated Press does not believe that the public record created can subsequently be rendered not a public record," AP attorney Patrick McGinley argued. Attorney Ancil Ramey,who represents Supreme Court Administrator Steve Canterbury in the case, told the Court none of the emails, 13 in 22 months, meet the requirements of public documents. "You look at the contents of the entails," Ramey said. "If the content of the email doesn't have to do with the performance of the official's duties it's not a public record." Ramey says none of the emails had to do with Supreme:Court cases. Maynard's relationship with.Blankenship became the focus of criticism during Maynard's reelection bid in 2008 including pictures that surfaced of the two vacationing together. Maynard was defeated in the Democratic Primary Election. Justice Robin Davis said Wednesday the argument by the Associated Press isn't a new one. "The press in most of these cases has asserted the same argument that they've asserted here and not one court in this country has adopted it," Davis said. The state Supreme Court will issue a written opinion on the emails later this year. New MSHA chief approved by Senate panel Courier Journal - October 8, 2009 WASHINGTON — The nation's mine safety agency is one step away from getting a new boss. The Senate Health, Education, Labor and Pensions Committee approved Joseph Main's nomination to be head of the federal Mine Safety and Health Administration on Wednesday. The nomination now goes to the full Senate for confirmation. Main's nomination, by President Barack Obama in July, produced no controversy. So the Senate panel dispensed with a formal confirmation hearing, and Main did not appear at the meeting. 18 USA00000102 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 42 of 106 PageID #: 23514 Sen. Tom Harkin,D-Iowa, the committee's chairman, said he was eager to see. Main confirmed. Harkin is the son of an Iowa coal miner and has played a major role in enacting mine-safety legislation. "I hope that we can continue to have an open dialogue, both in our committee and with the Department of Labor, to ensure that America's miners receive better protection on the job," Harkin said. Main was a teenager when he first worked in the coal mines in the late 1960s. He worked his way up through the United Mine Workers union to become the administrator of its Occupational Health and Safety Department. From that post, he was a vocal critic of some of the policies of the agency he soon will head. He frequently testified before congressional committees on behalf of the UMW and was involved in investigations of many fatal mining accidents, both in union and non-union mines. A native of Pennsylvania who now lives in Virginia, Main most recently has been a consultant on mine safety issues. MSHA regulates underground and surface coal mines, metal and non-metal mines and other operations that together employed about 270,000 in 2007,the latest year for which data is available. Kentucky has nearly 17,000 coal miners, second only to West Virginia's 20,000„ Kentucky produces more coal east of the Mississippi River than any state except West Virginia. In seeking state money,Pike County flexes environmental muscles Lexington Herald Leader - October 8, 2009 PIKEVILLE — Touting Pike County as a leader in not only coal but greener energy technology, businessmen and local officials made presentations to the General Assembly's joint committee on energy Wednesday. The county seeks state money to develop an ethanol plant on its landfill site, county leaders have attended national meetings about wind power, and officials pushed to ensure the 19 USA00000103 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 43 of 106 PageID #: 23515 courthouse being built in Pikeville will be the state's first that meets Leadership in Energy and Environmental Design standards, Judge-Executive Wayne T. Rutherford said. Legislators should help the region diversify its energy resources and protect the atmosphere from carbon spewed by coal, Rutherford said — a departure from earlier speeches by officials who urged protectionism of surface mines and low electricity prices. The county's energy plan is one reason it was honored recently by the National Association of Counties, Rutherford said. "Kentucky needs to know and the nation needs to know what Pike County can contribute to the energy situation in this country," he said. Coal, of which Pike County is one of the state's leading producers, is part of the plan. Rutherford called coal-to-liquids fuel for cars "the answer to transportation" in the country. He outlined plans for a coal gasification plant north of Pikeville and said he rejected offers from companies that couldn't ensure carbon sequestration to limit environmental impact. Natural gas also is being developed. EQT, Appalachia's largest natural gas producer, recently located its regional headquarters in Pike County. Environmentalists see natural gas as a bridge fuel to lead away from coal-fired power plants. Some of Pike's efforts have faced setbacks. The landfill biofuel plant did not get funding sought in Congress, and private funding dried up. Agresti Biofuels, an Indiana company,scaled back its plans and is seeking $8 million in state money to supplement its investment of $5 million to build a demonstration plant. Only then can private funding of$200 million be secured to build the full-scale plant, said Agresti Program Director Zbigniew "Zig" Resiak. Collecting carbon credits in a cap-and-trade situation, bringing in "tipping" fees for dumping at the landfill, as well as selling any ethanol or butanol produced are the plant's economic benefits, Resiak said. "Pike County certainly should be commended," said Rodney Andrews, director of the University of Kentucky's Center for Applied Energy Research."One of the problems we have in energy development is poor planning." Andrews and Rutherford attended a conference in Virginia to learn about the viability of wind energy in Appalachia. Studies have shown that the only area of Kentucky with enough wind to make windmills feasible is southeast Kentucky. Rutherford touted this potential Tuesday, along with the hydro-electric potential of Fishtrap Dam and the Big Sandy River, though experts say biomass energy made from wood and other crops, not wind and water, are better investments in Eastern Kentucky. Rutherford has pushed to have county buildings retrofitted with wind and solar powergenerating panels, he said, but he hasn't found the money for it. 20 USA00000104 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 44 of 106 PageID #: 23516 Nevertheless, the county is "certainly being very aggressive in trying to make sure these projects are located in the county," Andrews said. Senators seek job creation, protection in climate bill Lexington Herald Leader - October 7, 2009 WASHINGTON — A Senate Democrat who's been worried about the impact ofimpending climate and energy legislation on manufacturing said Wednesday that he'd back the historic legislation if it contains enough investment incentives and protection for American businesses. Sen. Sherrod Brown of Ohio said those provisions, combined with limits on greenhouse gas emissions, would unleash private capital and create new businesses and a vast number of new jobs. "Once we do that," he said, "we'll spark a new industry in this country like we haven't done in a long time." Support from Brown and other Democrats from industrial states that are heavily dependent on coal is crucial to muster enough votes to pass the bill in the Senate. In August, Brown led a group of 10 senators who wrote President Barack Obama to say that a climate bill had to protect American manufacturing to win their support. He said on Wednesday that the Obama administration is helping to craft a plan to protect energyintensive industries that would face competition from countries with no climate rules. Six industries fit that profile -- glass, aluminum, cement, chemicals, paper and steel -- and Ohio has them all. The impact of climate and energy legislation on business will be a key part of the debate on a proposed bill, set for later this fall. Opponents charge that mandatory limits on greenhouse gas emissions will devastate the economy and kill jobs because it will make coal, oil and natural gas more expensive. On the contrary, Brown, clean energy business executives and administration officials said Wednesday, the bill would advance U.S. competitiveness in a new global clean-energy industry. Brown said that climate legislation should include provisions to prevent disadvantages for U.S. manufacturers, provide long-term investment tax credits, put a price on carbon 21 USA00000105 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 45 of 106 PageID #: 23517 emissions, require a portion of electricity to be generated from renewable energy and help workers transition to new jobs. Obama and Sens. John Kerry,D-Mass., and Barbara Boxer,D-Calif., the bill's sponsors, "understand ... that climate legislation simply doesn't work for reducing carbon dioxide emissions if a company closes down in Findlay, Ohio, and moves to Shanghai, because carbon emissions will get worse, not to mention job loss," Brown said. Part of that protection would be tariffs on goods from countries with no similar climate laws, Brown said. He said that White House officials were helping senators "develop all the information we need to decide what to do at the border." Earlier Wednesday, Carol Browner, the top White House energy adviser, said the White House wants the energy and climate bill to contain protection for energy-intensive industries that face global competition. She also listed other elements the administration wants: a national requirement to generate some electricity from renewable energy, an economy-wide system of emissions cuts and tradable pollution permits, support for nuclear energy and consumer protection. Bill Keith, a self-described conservative businessman from Indiana who was in Washington to promote green jobs, said the new energy policy wouldn't result in job loss. "There's a jobs gain," he said. Keith, the president of SunRise Solar Inc. of St. John,Ind., met with Browner and Brown and other senators on Wednesday along with dozens of clean-energy business executives from around the country who were lobbying for the bill. Ten years ago, Keith said, he was hauling shingles up ladders to replace roofs and sweating in attics to install ventilation. He said he came up with the idea for a solar-powered ventilation system, built it in his garage, borrowed money against his house when banks refused to lend him enough money, and built a company that expects $4 million in revenue this year. Keith said he buys almost everything for his business in the U.S. except the solar panels, which he said he can't get domestically and imports from Hong Kong. He said the supplier said it would make the panels in Indiana if the U.S. passed a climate and energy bill that encourages investment. 22 USA00000106 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 46 of 106 PageID #: 23518 Consol cleans Naugatuck slurry spill Williamson Daily News - October 7, 2009 Consol Energy, located at Naugatuck, had a coal slurry break last week. Crews are currently working to clean up the damage caused by the break by dredging the creek located by the roadway to the mines. Mingo County OES Director Jarred Fletcher said the spill was small, as it leaked for a short amount of time. Fletcher explained that a slurry line that traveled back to the impoundment broke apart. Fletcher said Consol is going through the proper arrangements with his office and the West Virginia Department of Environmental Protection. Crews were dredging the creek beside the roadway to the mines yesterday. 23 USA00000107 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 47 of 106 PagelD 23519 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 48 of 106 PageID #: 23520 From: Sent: To: Subject: Montoya II, Stephen W (Steve) Friday, July 23, 2010 10:49 AM Del Duca, Peter A. - MSHA RE: quote of the day Wow,just Wow. I think Cord tried to join this tribe.. Turn down your volume, there is some annoying-ass music in the background. http://lrivera0327.tri pod-.com/ Stephen Montoya El Paso Corporation 1001 Louisiana Houston, TX 77002 Office:(713)420-4638 From: Del Duca, Peter A. - MSHA [mailto:delduca.peter@DOLGOV] Sent: Friday, July 23, 2010 9:09 AM To: Montoya II, Stephen W (Steve) Subject: RE: quote of the day I would buy the DVD, and it would make me sexually aroused. From: Montoya II, Stephen W (Steve)[mailto:Stephen.W.Montoya©ElPaso.com] Sent: Friday, July 23, 2010 10:05 AM To: Del Duca, Peter A. - MSHA Subject: RE: quote of the day I m not gay, but I would pay money to see glen beck de.ephorn a rhino ' Stephen Montoya El Paso Corporation 1001 Louisiana Houston, TX 77002 Office:(713)420-4638 From: Del Duca, Peter A. - MSHA [mailto:delduca.peter@DOLGOV] Sent: Friday, July 23, 2010 8:52 AM To: Montoya II, Stephen W (Steve) Subject: RE: quote of the day Ahh yes, rhino face-sitting. I've heard of this fetish. From: Montoya II, Stephen W (Steve)[mailto:Stephen.W.Montoya@EIPaso.com] Sent: Friday, July 23, 2010 9:47 AM To: Del Duca, Peter A. - MSHA Subject: RE: quote of the day I think that a rhino can double penetrate)although there will be some facesitting involved 1 USA00000108 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 49 of 106 PageID #: 23521 Stephen Montoya El Paso Corporation 1001 Louisiana Houston, TX 77002 Office:(713)420-4638 From: Del Duca, Peter A. - MSHA [mailto:delduca.peter@DOL.GOV] Sent: Friday, July 23, 2010 8:39 AM To: Montoya II, Stephen W (Steve) Subject: RE: quote of the day I hope that him and Glenn Beck get raped by a rhinoceros. Horn end. From: Montoya II, Stephen W (Steve)[mailto:Stephen.W.Montoya©ElPaso.com] Sent: Thursday, July 22, 2010 4:22 PM To: Del Duca, Peter A. - MSHA Subject: RE: quote of the day saw that, what q fuck face. I wish someone wouldbreak him in half and then goat-fuck him. Stephen Montoya El Paso Corporation 1001 Louisiana Houston, TX 77002 Office:(713)420-4638 From: Del Duca, Peter A. - MSHA [mailto:delduca.peter©DOLGOV] Sent: Thursday, July 22, 2010 3:20 PM To: Montoya II, Stephen W (Steve) Subject: quote of the day Don Blankenship, CEO of Massey energy said the following quote in reference to the UBB explosion: "It's impacting production in that people are trying to make sure they're in compliance with every rule," he said in the interview. 2 USA00000109 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 50 of 106 PagelD 23522 1O Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 51 of 106 PageID #: 23523 THIS E-MAIL AND ANY MATERIALS TRANSMITTED WITH IT MAY CONTAIN CONFIDENTIAL OR PROPRIETARY MATERIAL FOR THE SOLE USE OF THE INTENDED RECIPIENT. ANY REVIEW, USE, DISTRIBUTION OR DISCLOSURE BY OTHERS IS STRICTLY PROHIBITED. IF YOU ARE NOT THE INTENDED RECIPIENT, OR AUTHORIZED TO RECEIVE THE INFORMATION FROM THE RECIPIENT, PLEASE NOTIFY THE SENDER BY REPLY E-MAIL AND DELETE ALL COPIES OF THIS MESSAGE. 4 USA00000111 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 52 of 106 PageID #: 23524 ****************************************************************** THIS E-MAIL AND ANY MATERIALS TRANSMITTED WITH IT MAY CONTAIN CONFIDENTIAL OR PROPRIETARY MATERIAL FOR THE SOLE USE OF THE INTENDED RECIPIENT. ANY REVIEW, USE, DISTRIBUTION OR DISCLOSURE BY OTHERS IS STRICTLY PROHIBITED. 5 USA00000112 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 53 of 106 PageID #: 23525 IF YOU ARE NOT THE INTENDED RECIPIENT, OR AUTHORIZED TO RECEIVE THE INFORMATION FROM THE RECIPIENT, PLEASE NOTIFY THE SENDER BY REPLY E-MAIL AND DELETE ALL COPIES OF THIS MESSAGE. ***************4**************** ***********jt******************** THIS E-MAIL AND ANY MATERIALS TRANSMITTED WITH IT MAY CONTAIN CONFIDENTIAL OR PROPRIETARY MATERIAL FOR THE SOLE USE OF THE INTENDED RECIPIENT. ANY REVIEW, USE, DISTRIBUTION OR DISCLOSURE BY OTHERS IS STRICTLY PROHIBITED. IF YOU ARE NOT THE INTENDED RECIPIENT, OR AUTHORIZED TO RECEIVE THE INFORMATION FROM THE RECIPIENT, PLEASE NOTIFY THE SENDER BY REPLY E-MAIL AND DELETE ALL COPIES OF THIS MESSAGE. THIS E-MAIL AND ANY MATERIALS TRANSMITTED WITH IT MAY CONTAIN CONFIDENTIAL OR PROPRIETARY MATERIAL FOR THE SOLE USE OF THE INTENDED RECIPIENT. ANY REVIEW, USE, DISTRIBUTION OR DISCLOSURE BY OTHERS IS STRICTLY PROHIBITED. IF YOU ARE NOT THE INTENDED RECIPIENT, OR AUTHORIZED TO RECEIVE THE INFORMATION FROM THE RECIPIENT, PLEASE NOTIFY THE SENDER BY REPLY E-MAIL AND DELETE ALL COPIES OF THIS MESSAGE. 6 USA00000113 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 54 of 106 PagelD 23526 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 55 of 106 PageID #: 23527 From: Sent: To Subject: Hughes, Jessica R - MSHA Wednesday, August 05, 2009 3:32 PM Hardman, Robert G - MSHA; Ross, Ernie - MSHA; Hosch, Richard D - MSHA; Hrovatic, Linda G - MSHA Settlement Proposal Recommendation WEVA 2008-1494(Performance Coal) Bob, Ernie, Dana, and Linda, Please find below a discussion of our settlement recommendation in WEVA 2008-1494(Performance Coal/Upper Big Branch Mine South). Unless we hear otherwise from you with any questions or concerns by Monday, August 10, 2009, I will consider it acceptable to MSHA and covey the terms to Operator's counsel. 1. Citation 7261300 (violation of 75.321(a)/air quality). This citation was written for excessive levels of silica in the air. However, after discussion with the lawyers in the MSH Division of the Solicitor's Office (in particular, Mark Malecki), we cannot sustain a violation for excessive silica under this standard and, at this time, we have no other standard under which to cite excessive silica measurements. Accordingly, we understood that if the operator's counsel raised this issue, we would have to vacate the citation. As we expected, operator's counsel has argued that this standard cannot be used to support excessive silica and that we vacate the citation. For the reasons explained above, we agree that this vacation should be vacated. 2. Citation 7278775 (violation of 75.202(a)/protection from roof and rib falls). The citation was written with a gravity of reasonably likely and fatal, with 1 person affected. The negligence was cited as moderate. Specifically, the citation states that the Left Return for the #2 section at spad #21048 had 2 roof bolts that were over 6'from the rib and 2 that were over 8'from the rib. The MSHA inspector, Kevin Lyall, indicates in his notes that the fall of any roof or rib material would be from over 7' in height and that the condition existed for several months. However, nothing in his notes states what evidence existed to prove that this condition had existed for several months. The operator's position is that the condition was the result of sloughage; initially the roof was supported in a 4 x 4 pattern, but a piece of rib came loose. The operator's foreman is supposedly going to testify that the condition was unlikely to cause a serious injury and that the operator had taken appropriate action. Accordingly, the operator seeks a reduction to low negligence, dropping the S&S designation, and a commensurate reduction in penalty. We think it is premature to accept these terms. Rather, we think that we need to develop additional evidence — discussion with Mr. Lyall about his recollection to flesh out his notes — and review of the operator's evidence in support of its position. However, given the lack of information in Inspector Lyall's notes as to how he ascertained that the condition had existed for several months, thereby supporting a finding of moderate negligence, we may need to reconsider our negligence designation. Therefore, we recommend rejecting the terms as it relates to this citation. 3. Citation 7278767 (violation of 77.904/circuit breakers readily identified). The citation was for the failure to label the circuit breaker in the warehouse. Operator's counsel made no proposal on this citation. I will confirm with them that they will accept this citation as written. However, if it was an oversight that operator's counsel did not make a proposal on this citation, we need to be prepared to defend the S&S designation. This will depend on not only the location of the circuit breaker, but what the circuit breaker controlled. 4. Citation 7278779 (75.400/accumulation of combustible materials). The citation states that the North beltline between the #7 and #8 breaks had 2 bottom belt rollers turning in loose coal and float coal dust. The citation was written with a gravity of reasonably likely and fatal, with 1 person affected. The negligence was moderate, and it was marked S&S. The operator wants to modify the citation to unlikely and drop the S&S designation, with an appropriate reduction in penalty, due to the lack of an ignition source. The operator's theory is that there was no methane, the belts were not frozen, and the belts were not hot to the touch or 1 USA00000114 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 56 of 106 PageID #: 23528 smoking. Or, if they were, that is not indicated in the inspector's notes. However, our evidence is that the belts were turning in loose coal; this causes friction and could be an ignition source. Just because there was no imminent danger, does not mean the S&S designation is unwarranted. Accordingly, we recommend rejecting the offer on this citation. As always, thank you for your assistance. Best regards, Jessica Thank you for your assistance with this matter. Best regards, Jessica Jessica R. Hughes, Esq. U.S. Department of Labor Office of the Solicitor 1 100 Wilson Boulevard 22nd Floor West Arlington, VA 22209 (202)693-9336 (direct) (202)693-9392(fax) This email may contain information that is privileged or otherwise exempt from disclosure under applicable law. Please do not disclose this message or any information herein without consulting with the Office of the Solicitor, U.S. Department of Labor. If you believe you received this email in error, please notify me immediately by email or telephone. 2 USA00000115 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 57 of 106 PagelD 23529 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 58 of 106 PageID #: 23530 United States Department ofJustice United States Attorney Southern District of West Virginia Robert C. Byrd United States Courthouse 300 Virginia Street, East Suite 4000 Charlestotr, WY 25301 140045594726 Mailing Address Post Office Box MA Charleston, WY 25326 304-343-2200 FAX:304-347-5104 BY FEDERAL EXPRESS ebrilary lilt 2017 William W. Taylor, III, asq. Zuckerman Spaeder LLP 1800 M Street, NW, SUite 1000 Washington, DC 20036 Re: Tinited States v. Donald L. Blankenship Criminal No. 5:14-cr-00244 Dear Mr. Taylorz A$ a result of OUrOngOing review of the R7ankenship file, we are providing the following memoranda of interview, designated by the name of the per.ton interviewed and the date of the interview: NAME Larry Adams Chris Blanchard PATE OF' INTERVIEW 1/28/2015 (3. pages) 04/02/2015 (4 pages) i 09/12/2015 (4 pages) 1 09/21/2015 (2 pages) PREVIOUSLY PROVIDED '2/24/11 grand jury transcript PCC-GJ-TRANS-000766 - 000780 (15 pages) 6/30/10 MSHA transcript ' (92 pages) FBI 302 11/11/14 MOI-001285 - 001291 (7 pages) . 11/12/14 grand. Jury transcript (official) DBL-GJ-TR--000089 - 000167 (79 pages) USA00000116 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 59 of 106 PageID #: 23531 10/18/2015 (4 pages) 11/12/14 grand jury transcript (unofficial) I DBL-GJ-TR-000001 - 000031 (31 pages) Immunity Agreement IMM-AGMT-000005 Andy Coalson 01/16/2015 (2 pages) Voluntary Production (Notebook) Original Bates: VP-CB-000001 000077 ReBates: VP-KP-000001 - 000077 1FBI 302 4/29/10 MO1-000028 - 000032 (5 pages) FBI 302 9/14/10 MOI-000453 (1 page) FBI 302 8/24/11 MO1-000858 - 000870 (13 pages) 9/13/11 grand jury transcript PCC-W-TRANS-000921 - 000941 8/6/10 MSHA transcript (45 pages) Immunity Agreement IMM-AGMT-000012 - 000013 Jamie Ferguson 01/21/2015 (1 page) Voluntary Production named "Notebook notes - provided 2011.09.07" Original Bates: VP-AC-000001 000009 ReBates: USAO-OLB-00011485 000114 FBI 302 2/15/11 MO1-000608 - 000617 (10 pages) FBI 302 5/10/11 MOI-000672 - 000678 (7 pages) FBI 302 8/31/11 MOI-000871 - 000874 (4 pages) FBI 302 8/23/13 MOI-001205 - 001208 (4 pages) USA00000117 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 60 of 106 PageID #: 23532 . • . FBI 302 2/15/14 MOI-001259 (1 page) - . 9/13/11 grand jury transcript PCC-GJ-TRANS-000942 - 00095.2 (11 pages) 11/13/14 grand jury transcript (official) CC-GJ-TRANS-000315 - 000327 (13 pages) 11/13/14 grand jury transcript (unofficial) PCC-Gj-TRANS-000045 - 000052 (8 pages) Immunity Agreement I IMM-AGMT-00.0018 - 000019 • —., RiCk Butchens 01/28/2015 pages) (3 . I --11301 12/8/11 MO1-001057 - 001062 (5 pages) ' BI 302 5/11110 [ MOI-000119 - 000122 (4 pages) 2/24/11 grand jury transcript 000796 [PCC-GJ-TRANS-000781 page). [ (16 Bill Rost 05/04/2015 (5 pages) 05/12/2015 (6 pages) 05/29/2015 (14 pages) 07/27/2015 (4 pages) i 7/12110 MSHA transcript J (86 pages) FBI 3.02 5/12/10 -7140I466E85 I 1000188 (3 pages) 9/13/11 grand jury transcript PCC-GJ-TRANS-001.001 - 001007 (7 pages) i Voluntary Production 5/12/15 (12/14/10 Ross email to ! Blankenship rel Retirement) 1 VP-BR-000001 08/28/2015 (2 pages) 01/30/2015 (7 pageS) Stanley Stewart II 1 USA00000118 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 61 of 106 PageID #: 23533 As I stated in my previous correspondence, by simply providing these additional memoranda, the United States is taking no position on Whether they were required to be provided pre-trial Or whether the defendant suffered any prejudice because they Were not provided previously. Thank you for your attention to this matter. Again, if you have any questions, please do not hesitate to contact me. Si ncerel y, CAROL A. CASTO United States Attorney ^ By: R. Gregory McVey Assistant United States Attorney RGM/Vid Enclosure USA00000119 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 62 of 106 PageID #: 23534 Page 1 of 1 0 SIZINIMISERMAIIIMMIS 11.1111111=111111181111MINIMI IMMINIONINIMInaneri c) C 0) 62iitMWS2SM96462telattanagg0 simeielKosRolicteaaMMINOMINI.1.2, IN> CD >, otiD 3 a, b3ON3S 119 NI 0.1/01N101-1.1. SIVNOVSG d00:£ 83A SI,- OBAA C) c96£ aLZ V91.1. >l< 4171041111111u. 546.1103K1630 After printing this label: 1. Use the 'Print' button on this page to print your label to your laser or inkjet printer. 2. Fold the printed page along the horizontal line. 3. Place label in shipping pouch and affix it to your shipment so that the barcode portion of the label can be read and scanned for shipping Using a photocopy of this label for shipping purposes is fraudulent and Warning. Use only the printed original number result in additional billing charges. along with the cancellation of your FedEx Use of this system constitutes your agreement to the service conditions in the current FedEx Service Guide, available on fedex.com.FedEx will not be responsible for any claim in excess of $100 per package, whether the result of loss, damage, delay, nondelivery,misdelivery,or misinformation, unless you declare a higher value, pay an additional charge. document your actual loss and file a timely ctaim.Limitations found in the current FedEx Service Guide apply. Your right to recover from FedEx for any loss. including intrinsic value of the package, loss of sales, income interest, profit, attorney's fees, costs, and other forms of damage whether direct. incidental,consequential, or special is limited to the greater of $100 or the authorized declared value. Recovery cannot exceed actual documented loss.Maximum for items of extraordinary value is $1.000, e.g. jewelry, precious metals, negotiable instruments and other items listed in our ServiceGuide. Written claims must be filed within strict time limits, see current FedEx Service Guide. account https://www.fedex.com/shipping/html/en//Printl Frame.html 2/14/2017 USA00000120 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 63 of 106 PagelD 23535 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 64 of 106 PageID #: 23536 United States Department ofJustice United States Attorney Southern District of West Virginia Robert C. Byrd il,ridted States Courthouse 300 Virginia Street. East Suite 4000 Charleston, WV 25301 1-800-659-8726 Mailing Address Post Office Sox 1713 Charleston, WV 25326 304-345-2200 FAX:304, 347-5104 BY FEDERAL EXPRESS January 31, 2017 William W. Taylor, III, Esq. Zuckerman Epaeder LLP 1800 M Street, NW, Suite 1000 Washington, DC 20036 Re:. United. States v, Donald L. Blankenship Criminal No. 5:14-cr-00244 Dear Mr. Taylor: On January 19, 2017, we received notice that a number of memoranda of interview were not provided to you prior to the trial in United States v. Slankenship. We immediately began a review of the file and are providing additional memoranda tO you, in addition to the 347 memoranda which were previously provided to you in discovery. This disclosure includes the following, designated by the name of the person interviewed and the date of interview: Charlie Bearse Chris Blanchard Mark Clemens Andy Coalson Andy Coalson Gary Frampton John Ryan Patrick Steve Sears John Segsworth Jason Whitehead 02/0512014 10/22/2014 11/10/2011 01/25/2012 09/18/2014 08/14/2014 11/27/2012 11/10./2011 03/11/2014 06/04/2014 Please note that simply by providing these memoranda, the United States is taking no position on whether they were required to be provided pre-trial or whether the defendant suffered any prejudice because they were not provided previously. VAMSIMZSSOSVAWSWISAMVSSMSMAM USA00000121 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 65 of 106 PageID #: 23537 William W. Taylor, III, Esq. January 31, 2017 Page 2 Steve Ruby is no longer with our office. Therefore, because review of the file is our ongoing, you may direct any correspondence concerning this matter directly to me. Sincerely, CAROL A. CAST() United States Attorney By R. Gregory McVey Assistant United States Attorney RGM/vld Enclosure USA00000122 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 66 of 106 PagelD 23538 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 67 of 106 PageID #: 23539 United States Department ofJustice United Slates Attorney Southern District of West Virginia Robert C. Byrd United States Courthouse 300 Virginia Street, East Suite 4000 Charleston, W1'25301 1-800-659-8726 Mailing Address Post Office Box 1713 Charleston, WV 25326 304-345-2200 FAX; 304-347-5104 BY FEDERAL EXPRESS February 2, 2017 William W. Taylor, III, Esq. Zuckerman Spaedex LLP 1800 M Street, NW, Suite 1000 Washington, DC 2.0036 Re: Unites States v. Donald L. Blankenship Criminal No. 5:14-cr-00244 Dear Mr. Taylor: As a follow-up to our letter of January 31, 2017, the chart below outlines what our ongoing search of the file reveals with regard to the following individuals listed: NAME Chris Blanchard PROVIDED IN PRE-TRIAL DISCOVERY 10/22/2014 FBI 302 11/11/14 memorandum (9 pages) M01-001285 - 001291 (7 pages) PROVIDED JANUARY 31, 2017 11/12/14 grand jury transcript (official) DBL-GJ-TR-000089 -. 000167 (79 pages) 11/12/14 grand jury transcript (unofficial) DBL-GJ-TR-000001 =mu (31 pages) USA00000123 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 68 of 106 PageID #: 23540 Immunity Agreement IMM-AGMT-000005 Voluntary Production (Notebook) Original Bates: VPCB-000001 - 000077 ReBates; VP-KP000001 - 000077 t Andy Coalson 01/25/2012 : memorandum (2 Pag0s); 09/18/2014 memorandum 0 pages) FBI 302 4/29/10 MO1-000028 - 000032 (S pages) FBI 302 9/14/10 M01-000453 (1 page) FBI 302 8/24/11 MO1-000858 - 000970 (13 pages) 9/13/11 grand jury transcript PCC-GJ-TRANS-000921 - 000941 8/6/10 MSHA transcript (45 pages) Immunity Agreement IMM-AGMT-000012 000013 Voluntary production named "Notebook notes - provided 2011.09.07" Original Bates: VPC-000001 - 000009 ReBates: USAO-DLB00011485 - 00011493 Gary Frampton 08/14/2014 memorandum (2 pages) FBI 302 6/19/12 MO1-001215 - 001227 (13 pages) John Segsworth 03/11/2014 memorandum (4 pages) FBI 302 12/18/12 MOI-001181 - 001193 (13 pages) USA00000124 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 69 of 106 PageID #: 23541 Jason Whitehead 06/04/2014 memorandum (4 pages) FBI 302 11/16/11 MO1-001095 - 001117 (23 pages) FBI 302 809/13 MOI-001209 - 001214 (6 pages) Immunity Agreement MM-AGMT-000034 As I stated above, our review is. ongoing and we will provide any additiOnal documents warranted by that review. Again/ the United States takes- no position on whether what was provided to you on January 31, 2017, were. required to be provided pre-trial or whether the defendant suffered any prejudice because they were not provided previously. Sincerely, CAROL A. CASTO United. States Attorney BY: (3 2 R. Gregory McVe Assistant United States Attorney RGM/vid USA00000125 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 70 of 106 PagelD 23542 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 71 of 106 PageID #: 23543 United States Department ofJustice United States Attorney Southern District of West Virginia Robert C Byrd United Slates Courthouse 300 Virginia Street, East Suite 4000 Charlestan, WV 25301 1-800-6594726 'Wailing Address Post Office Box 1713 Charleston, WV 25326 304-345-2200 FAX:304-347-5104 BY FEDERAL EXPRESS February 3, 2017 William W. Taylor, III, Esq. Zuckerman Spaeder LLP 1800 M Street, NW, Suite 1000 Washington, DC 20036 Re: United States v. Donald L. Blankenship Criminal No, 5:14-Cr-00244 Dear Mr. TaylOr: We are providing an additional memorandum of intetview based on our search of the file in this case. Again, if you have any questions Or Comments, please do not hesitate to contact me. Sincerely, CAROL A. CASTO United States Attorney By: R. Gregory McVey Assistant United States Attorney RGM/vld Enclosure USA00000126 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 72 of 106 PageID #: 23544 Report of Interview U.S. Department of Labor Office of Inspector General Office of Investigations Page 1 of OIG Form 103(01-1198) 3 Investigation on: 11/21/2014 , . r By:Special Agent Jeffrey Carterf J At: Charleston, WV File: 31-0862.0001 PC Date Prepared: 11/24/2014 On November 21, 2014,Tommy Davis accompanied by attorneys Michael Russ and Pat Jacobs was Interviewed at the United States Attorney's Office in Charleston, WV. Present and participating in the interview were Booth Goodwin, United States Attorney, Steve Ruby, Assistant United States Attorney, and Special Agents Jeffrey Carter, U.S. Department of Labor, Office of Inspector General and Jim Lafferty, Federal Bureau of Investigation. Davis provided the following information: Davis was working at the Upper Big Branch Mine (UBB)for approximately 50 days prior to the explosion. He started working at UBB In February of 2010. Davis was employed at UBB by Dave Stanley as a contract laborer. Davis was paid $10 hourly. Prior to his employment with Dave Stanley, Davis spent seven to eight years running a high wall miner at one of Massey's operations. Davis worked on a track crew with Ralph Plumley, supervisor, and Jackson (first name unknown)installing rail in the area where the long wall was going to mine next. They were installing track at head gate 22 area where Boone Payne worked. Davis reported to Plumley and Keith Stanley for daily direction. Davis explained that he was assigned to the track crew, but he moved around a lot doing different jobs. He was responsible for getting the man trips ready daily and working around the bathhouse. Afterwards, Davis would travel underground to lay track. Davis explained that one day he may set sand jacks and the next he would install rail or do maintenance. Davis stated that he was never assigned to clean up work or rock dusting. He did not observe anyone dusting while at UBB. Davis explained that the UBB side of the mine had pod dusters sitting in the shop or inside where supplies were stored. There was a miner in his mid-thirties with a long ponytail that worked the midnight shift assigned to the pod dusters. Davis recalled that the miner always complained about the d usters. Davis stated that he believed Johnny Morris was also assigned to the dust crew. Davis recalled areas on the south side dusted, but not on the UBB side of the mine. The deeper you traveled into the mine the darker it was. The closer you were to the outside the whiter the mine walls were. Two men were assigned to the rock dust crew. Davis was not sure who they reported to. Davis did not recall ever transporting rock dust into the mine, Davis gave the example of a hole in your yard. If you walk around it enough you begin to ignore it. Some areas of the mine were 10 to 11 miles away that could take one and a half hours to get to. There were a number of doors to travel through. Davis stated that It was the red hats job to operate the switch at the doors. Some of the doors were in had shape. The doors were supposed to be automatic but did not work. When the doors did not operate automatically you had to constantly get in and out of the buggy to open. Some of the doors on the long wall section were in good shape. The deeper you traveled in the mine the better the doors were. More of the outby doors were in bad shape because they were constantly getting bumped by the buggies and then the buggies traveled through and let the wind close the doors. MO1-001346 VIONSI819898,MWOMEaftestroseassmexamns.m......mot........,«,..... . USA00000127 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 73 of 106 PageID #: 23545 Interview —Tommy Davis November 21, 2014 Page 2 of 3 Davis stated that the only reason he went to UBB was because his son worked there. Davis said five family members were at the mine, Davis, his brother, son and two nephews. Davis explained that the morning of the explosion the mine was really hot and the air was stale. Davis stated that he was sweating profusely. Signs and the markers on survey stakes on a normal day in the mine would whip back and forth from the ventilation. The day of the explosion the signs and survey markers were not moving and dust was in the air. You could see dust in the air well before the Ellis punch out. A lot of dust in the air that day wasn't normal air, Davis worked on rail the day of the explosion, near the end where Boone Payne's crew was working. Davis was working with Plumley and Jackson and recalled that he saw Everett Hagar. Davis explained that he had worked underground for a short period of time and was still learning. The long wall area was wet and muddy. There was a bad water problem. Corey Davis complained a lot about the water, because he was always buying boots. Corey also complained about the work and the long hours. Davis stated that it was P1 (production) and S2 (safety) not S1 and P2. All pressure at the mine rolled down hill. There was pressure on the long wall. Davis Explained that Timmy Davis carried three or four note pads with him. if the long wall was down Timmy made a note. Timmy logged outby procedures. Timmy logged everything to make sure Timmy was covered. He even kept a personal notebook. You radioed if the long wall was stopped. Everyone felt the pressure that came from the top. Davis was aware when inspectors were coming. They would get a call and were told to grab your stuff, gloves and glasses. Inspectors had to travel 11 miles to the area and it would take an hour and a half. They would get word that Inspectors were coming. It was a common practice. Davis recalled that code phrases were used and it was also just stated that inspectors were coming at UBB. The whole time Davis was at UBB he felt production was the priority, safety first was just talk. Don Blankenship knew what was going on at UBB. Davis believed that Blankenship could have made changes at the mine. Davis stated that he never saw a safety person in the mine, Timmy Davis and Rick Lane conducted safety briefings and daily safety sheets were read. Davis was aware of two fire bosses at UBB. Davis saw MSHA, but never safety personnel from UBB. As long as you were mining coal everything was fine. When you weren't mining coal pressure went from Blankenship to Chris Adkins to Chris Blanchard on down. Davis would see coal accumulation as he traveled out of the mine. Davis did not recall seeing any written violations at UBB or discussions about violations that were written. Davis lost three family members In the explosion. Davis stated that he was approximately six to eight breaks underground when the explosion occurred. Davis believed that it was his first day on day shift since the explosion Davis has worked at Kelley Creek, Alloy and the Stockton mines. Davis stated that it was tough working alone after what happened. Davis ran a pod duster at the Stockton mine. Davis stated that at Stockton he shoveled the belts and rock dusted. He wanted to do that after what happened, because it didn't get done at UBB. Davis has seen Atkins, Jason Whitehead and also has dealt with Craig Boggs at the Stockton mine. This document contains neither recommendations nor conclusions of the Office of Inspector General(01G). It is the property of the OIG and is loaned to gear egeng; It end its contents era not to be distributed outside your agency. MO1-001347 USA00000128 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 74 of 106 PageID #: 23546 Interview -Tommy Davis November 21, 2014 Page 3 of 3 Davis stated that he has filled out cards for Alpha and was told if you don't like it there Is the door. He was told by Jamie (last name unknown)who is a boss at the Alloy mine where Davis has worked for the past six or seven months. Davis stated that if you take care of what you are supposed to, nothing should happen. Davis suggested talking with the following individuals; Cody Davis-worked on the long wall three to four years, ran the shear. Ralph Plumley-he laid the first piece of track at UBB. Harold Lilly worked on the long wall. Delbert Baily was the individual who shook Blankenship's hand in court. Davis described Baily as a man of God. Baily worked at UBB and currently works in the shop at Alpha. This document conteins neither mcommenclations your 0aency; It and Its contents ore not to he dlstrI ucluslons of the Office ot inspector General(COG). It Is the property of the 016 end is loaned to d outside your agency. M01-001348 USA00000129 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 75 of 106 PagelD 23547 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 76 of 106 PageID #: 23548 United States Department ofJustice United States"IttOney Southern District of West Virginia Rohm C. Byrd United States Courthouse 300 F'irginia Street, East. Suite 4000 Charleston, WY 25301 Telephone: 304-345-7200 Post Office Box 1713 Charleston, WV 25326 FAX:304-347-510.4 1-800-659-8726 By U.S. Mail and Email April 6,2018 Benjamin L. Hatch McGuireWoods LLP World Trade Center 101 West Main Street, Suite.9000Norfolk, VA 23510-1655 Re: United States v. Donald L. Blankenship Criminal No. 5:14-cr-00244 Dear Mr. Hatch: Please find enclosed documents for which I became aware of this morning. As best as I can ascertain, these documents have not previously been disclosed to your client. To the best of my knowledge,this office was not aware ofthe documents or subject matter until late yesterday. If you have any questions or comments, please let me know. MICHAEL B.STUART United States Attorney Enclosures cc: Howard C. Vick, Jr., Esq.(with enclosures) USA00000130 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 77 of 106 PagelD 23549 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 78 of 106 PageID #: 23550 U.S. Department of Labor Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, Virginia 22209-3939 a 09 au MEMORANDUM FOR CHARLES J. THOMAS Deputy Administrator al Mine Safety and Health'FROM: ICIA W.SILVEY Deputy Assistant Secretary for Op”ns SUBJECT: Decision Letter By letter dated December 4, 2012, Ernest Cameron, Director, Administration and Management, proposed to suspend you from pay and duty status for seven (7) calendar days from your position of Deputy Administrator, ES-1822, in Coal Mine Safety and Health. The proposal advised you of your right to respond orally and/or in writing. On December 21, 2012, you submitted your written reply to the proposed suspension. On January 10, 2013, you presented your oral reply. Also in attendance at the oral reply were Executive Assistant Monique Molina, MSHA, and Donna Kramer, Supervisory Human Resources Specialist, Office of the Assistant Secretary for Administration and Management. I have considered the proposed suspension issued to you by Mr. Cameron, and all supporting documentation, as well as your written and oral replies. Considering the record as a whole, including your willingness to work with a mentor, I have determined that the seven (7) day suspension shall be reduced to a Letter of Reprimand, which will be issued separately. This decision is taken to promote the efficiency of the Federal Service and is based on your failure to carry out your official duties. If there is anything in this decision letter that you do not understand and wish to have explained, you may contact Donna L. Kramer, Supervisory Human Resources Specialist, Employee and Labor Relations, at 202-693-7686. You can now file your MSHA forms online at www.MSHA..gov. It's easy, it's fast, and it saves you money! USA00000131 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 79 of 106 PagelD 23551 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 80 of 106 PageID #: 23552 U.S. Department of Labor Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, Virginia 22209-3939 APR 09 20131 MEMORANDUM FOR CHARLES J. THOMAS Deputy Administrator Coal Mine Safety and Health FROM: W.SILVEY Deputy Assistant Secretary for Operati•ns SUBJECT: Letter of Reprimand This memorandum is issued to you as an official reprimand for failure to carry out your official duties. This action is initiated for such cause as it will promote the efficiency of the Federal Service. By way of background: On April 5, 2010, an explosion occurred at the Upper Big Branch (UBB) Mine killing 29 miners and injuring two. As is MSHA's usual practice, the Assistant Secretary directed that an Internal Review (IR)of the Agency's performance before the explosion be conducted. The details in this letter of reprimand are derived from issues identified in the IR report. Critical standards that field staff must enforce deal with the review and approval of certain mine plans. The IR identified several instances where District 4 management failed to follow CMS&H policies and procedures applicable to the plan approval process. 1. District 4 management did not follow the provisions of CMS&H Memo No. HQ08-058-A when approving the UBB roof control plan. The Administrator for CMS&H issued this memorandum to provide guidance for review and approval of complex and non-typical roof control plans and amendments following the August 2007 fatal coal outbursts at the Crandall Canyon mine. 2. District 4 management did not implement the checklists specified by CMS&H Memo HQ-08-059-A when reviewing roof control plans and revisions. Instead, the roof control department continued to use its own checklists. 3. District 4 management did not revise the roof control plan approval SOP to comply with the Program Policy Manual as recommended by the Office of Inspector General in its 2008 Audit report. 4. District 4 management did not follow national guidance outlined in Procedure Instruction Letter No. 109-V-03, which specified that separate ventilation and dust control plans were to be consolidated into a single mine ventilation plan subject to a single review date. You can now file your MSHA forms online at www„M_SHA,goy. It's easy, it's fast, and it saves you money! USAOUOU01:32 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 81 of 106 PageID #: 23553 2 At the time of the UBB accident, you were detailed to the Deputy Administrator position. In that position, you shared the responsibility with others in the National Office to see that criteria and methods for ensuring compliance with safety and health standards are properly and uniformly applied by all Coal Mine Safety and Health (CMS&H) Districts. However, you focused your management oversight on Districts 7, 8, and 9. In reading my decision to issue this letter of reprimand, I have considered the factors established by Merit System Protections Board case Douglas v. VA,5 MSPB 313 (1981) I considered the nature and seriousness of your actions. Failing to carry out your official duties is one of the most serious infractions that can be committed. Although you were the Acting Deputy Administrator at the time of the IR report, you were assigned direct responsibility for all CMS&H districts. The Deputy Administrator for CMS&H is a very prominent position. You are recognized by the public, mine operators, miners, representatives of miners, and MSHA personnel as having an in-depth knowledge of the Mine Act, MINER Act, implementing standards and regulations, and IVISHA policies and procedures. You were on notice of the Agency policies and procedures. In your position of record as the Director, Office of Accountability, you determined compliance with MSHA policies and procedures. Yet, as Acting Deputy Administrator you did not always to take timely corrective action when your subordinate managers were not carrying out their official duties in an effective manner. As a management official you are tasked with setting a positive example for subordinate employees. You were and still are assigned direct responsibility for all CMS&H districts, including review of the work of the management and inspection personnel. If you are unable to enforce agency policies, the inspectorate may be held to a lower standard of quality work which could jeopardize the safety of the miners MSHA is tasked with protecting. In reaching my decision, I also considered that the District 4 District Manager, Assistant District Manager, and field office supervisors in your management chain were reluctant to raise areas of concern to your attention; thus limiting your ability to correct all infractions. Although you are responsible for the quality and quantity of work produced by your subordinates while ensuring agency policies are adhered to, I considered that you may have been precluded from taking all necessary corrective action due to your limited knowledge of all matters occurring in every district. USA000001 33 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 82 of 106 PageID #: 23554 3 Your "Highly Effective" performance ratings for Fiscal Years(FY)2010 and 2011, your "Exemplary" performance rating for FY 2009, the lack of any prior disciplinary action in your personnel file, and your approximate 22 years of federal service were also considered. It is my belief that you will not commit these same or similar infractions in the future. I am confident that you can be successful in carrying out all of your upcoming official duties. Your dedication to MSHA and the safety and health of all miners during your career is appreciated. However, these mitigating factors do not outweigh the seriousness of your actions. I have determined that a letter of reprimand will promote the efficiency of the service. As a supplement to this letter of reprimand, I will identify a veteran member of the Senior Executive Service to serve as a mentor for you during the period that this letter of reprimand remains in your file. I will also identify training that must be completed. I believe these actions are appropriate. This Letter of Reprimand is a matter of record and a copy will be placed in your Official Personnel Folder(OPF), where it will remain for no longer than one(1) year. If you believe that your actions are due to personal problems, I would like to remind you of the Department's Employee Assistance Program (EAP). The EAP is designed to provide counseling and assistance to any employee who is experiencing personal problems of any kind and services are strictly confidential. You may contact EAP directly by calling 202-693-8888. NOTICE OF RIGHTS: You have a right to file a grievance under DPR Chapter 771, Administrative Grievance System, dated October 1, 2008. You must present the grievance directly under the formal procedure within ten (10) workdays of your receipt of this action. A formal grievance must: (1) be in writing;(2)contain sufficient detail to clearly identify the matter being grieved; and (3) specify the personal relief being requested. Your grievance must be filed with: John K. Moran Deputy Assistant Secretary Veterans' Employment and Training Services 200 Constitution Ave., NW Room S 1325 Washington, DC 20210 USA00000134 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 83 of 106 PageID #: 23555 4 The time limit for filing a grievance may be extended for good cause by mutual agreement between you and Mr. Moran. If you believe this action was taken in reprisal for whistieblowing, you may raise the matter by filing a complaint with the Office of Special Counsel. The Office of Special Counsel will investigate your complaint and will either file an action on your behalf or notify you of your right to file an Individual Right of Action appeal to the MSPB. A complaint may be filed electronically at www.osc.gov, or may be filed in writing by filling out Form OSC-11, and faxing or mailing the completed form to the Office of Special Counsel at the following address or fax number: Complaint Examining Unit Office of Special Counsel 1730 M Street NW, Suite 218 Washington, DC 20036-4505 Fax: 202-254-3711 If you feel that you have been discriminated against because of race, religion, color, age, sex, national origin, or disability, you may file an equal employment opportunity (EEO)complaint with the U.S. Department of Labor. If you file an EEO complaint with the U.S. Department of Labor, you should submit it to the Civil Rights Center, Room N4123,200 Constitution Avenue, N.W., Washington, DC 20212. You have the right to be represented by an attorney or other representative of your choice so long as there is no conflict of interest to the agency. However, you must designate your choice of representative in writing to Mr. Moran. Any choice must include your representative's name, address, and phone number. You are entitled to a reasonable amount of duty time to prepare and present a grievance if otherwise in a duty status. You must request and receive approval from your immediate supervisor for the use of duty time for this purpose. If there is anything in this notice that you do not understand or if you have a question about the process used, please contact Ms. Donna Kramer, Supervisory Human Resources Specialist, at 202-693-7686. USA000001 35 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 84 of 106 PagelD 23556 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 85 of 106 PageID #: 23557 U.S. Department of Labor Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, Virginia 22209-3939 APR 09 2013 MEMORANDUM FOR DANIEL R. PETROLE Deputy Inspector General FROM: JOSEPH A. MAIN Assistant Secretary of Labor for Mine Safety and Health SUBJECT: Response to Disciplinary Or AdMinistrative Actions This is in response to your request of April 2, 2013 related to the Mine Safety and Health Administration's(MSHA)disciplinary or administrative action related to MSHA's Internal Review following the Upper Big Branch (UBB) Mine Accident. MSHA has administered disciplinary action related to the UBB accident. If you need additional information please contact Deputy Assistant Secretary Patricia W. Silvey at 202-693-9642. You can now file your MSHA terms online at www,MSHA.gov.It's easy, it's fast, and it saves you money! USA00000136 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 86 of 106 PagelD 23558 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 87 of 106 PageID #: 23559 U.S. Department of Labor Office of Inspector General Washington, D.C. 20210 APR - 2 2013 MEMORANDUM FOR.: JOSEPH A. MAIN Assistant Secretary ofLabor for Mine Safety and Health FROM: DANIEL R.PETROLE Deputy Inspector General SUBJECT: Disciplinary or Administrative Actions related to MSHA's Internal Review following the Upper Big Branch Mine Accident. In June of2012,I requested that MSHA inform the OIG as to whether or not any disciplinary or administrative actions would be taken as a result ofthe March 06,2012,internal review following the Upper Big Branch mine accident. We have not received any information related to this request. Please provide an official response by April 10,2013. Please contact me or Nancy Ruiz-de-Gamboa, Assistant Inspector General for Management and Policy,at(202)693-5100 if you have any questions. cc: Patricia W.Silvey, Deputy Assistant Secretary for Operations, MSHA Workingfor America's WorVorce USA00000137 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 88 of 106 PagelD 23560 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 89 of 106 PageID #: 23561 U.S. Department of Labor JUN -O 2012 Office of Inspector General Washington, D.C.20210 • MEMORANDUM FOR PATRICIA W.SILVEY Deputy Assistant Secretary for Operations Mine Safety and Health Administration FROM: DANIEL PETROLE Deputy Inspector General SUBJECT: Disciplinary or Administrative Actions related to MSHA's Internal Review follo-wing the Upper Big Brand.Mine Accident • report released on March 06,2012 to In early April, you referred the MSHA internal review OASAM and SOL to evaluate whether any disciplinary or administrative actions are warranted • given the findings contained in the report. Once you have received their recommendations,I am requesting that you inform the OIG whether or not MSHA will be taking any disciplinary or administrative action. Please contact me or Nancy Ruiz-de-Gamboa at(202)693.5100 if you have any questions. cc: Joseph A. Main,Assistant Secretary ofLabor for Mine Safety and Health Workingfor America's Workforce USA00000138 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 90 of 106 PagelD 23562 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 91 of 106 PageID #: 23563 U.S. Department of Labor Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, Virginia 22209-3939 APR 03 2A% MEMORANDUM FOR LINCOLN L. SELFE, JR. Supervisory Mine Safety and He Ith Inspector FROM: PATkICIA W. SILVEY Deputy Assistant Secretary for O perati ns SUBJECT: Decision Letter By letter dated December 5, 2012, Ernest Cameron, Director, Administration and Management, proposed to suspend you from pay and duty status for seven (7) calendar days from your position of Supervisory Mine Safety and Health Inspector', GS-1822-14, in the District 4 Office in Mount Hope, WV, of the Mine Safety and Health Administration (MSHA). On December 20, 2012, you presented me with your oral reply to the proposed suspension. Also in attendance at the oral reply were Executive Assistant Monique Molina, MSHA, and Donna Kramer, Supervisory Human Resources Specialist, Office of the Assistant Secretary for Administration and Management (OASAM). During the oral reply you also provided your written reply. An extension was granted until January 18, 2013, to allow you to supplement your written reply, if you so desired. On January 17, 2013, you submitted an e-mail containing additional information for my consideration. I have considered the oral and written replies that you presented to me as well as the proposed suspension issued to you by Mr. Cameron and all supporting documentation. This decision is taken to promote the efficiency of the Federal Service and is based on your failure to carry out your official d uties. This position is referred to as Assistant District Manager. You can now file your MSHA forms online at wwwIVISHA.gov. It's easy, it's fast, and it saves you money! USA00000139 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 92 of 106 PageID #: 23564 2 Discussion on Decision to Suspend Specification 1 of the proposed suspension concerned your failure to provide adequate management oversight by ensuring that inspectors and supervisors under your supervision reviewed potentially flagrant violations in accordance with the procedures established by Procedure Instruction Letter (PM) No. 108-111-02. During your oral reply and in your written reply, you noted that of the two types of flagrant violations, inspectors only had difficulty with the repeated failure criterion. You also stated that at the time of the Upper Big Branch (UBB) mine explosion there was not any mechanism available to assist an inspector in determining whether or not a cited violation was a repeat violation other than the inspector's or his or her supervisor's memory. Both of your replies also reference the issue as being nationwide in scope and your belief that you should not be disciplined for a national problem. Although I have considered your comments, for the purpose of this decision letter, I am focused on your actions regarding lack of adequate management oversight over the review of potentially flagrant violations in accordance with the provisions of the PIL. As stated in the proposed suspension, one of the key responsibilities of your position is to evaluate the results of policy implementation within your area of enforcement responsibility. The Mt. Hope Field Office inspectors issued eight section 104(d)(2) orders for violations at UBB that met the "numbered objective criteria" in PIL No. 108-111-02 for review as potentially flagrant violations. The eight violations were not reviewed as potentially flagrant violations by inspectors or supervisors. During your Interview with the Internal Review (IR) team, you demonstrated a comprehensive understanding of MSHA procedures regarding flagrant violations. Nevertheless, you personally reviewed three of the eight violations at UBB that met the "numbered objective criteria" outlined in PIL 108-111-02 and did not recognize them as potentially flagrant. Therefore, find that this specification is supported by the evidence. Specification 2 of the proposed suspension concerned your failure to provide necessary management oversight to ensure that Right of Entry (ROE) trainees in the Mt. Hope Field Office did not conduct inspection activities apart from Authorized Representatives (ARs). In your oral and written replies you stated you did not have any knowledge that ROE trainees were conducting inspection activities apart from ARs. You USA00000140 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 93 of 106 PageID #: 23565 3 also stated that you had no reason to believe or question that the directives you had issued regarding when an ROE trainee could be apart from the AR were not being followed. You asserted that had you known these actions were occurring you would have taken disciplinary action against those who had failed to follow your directives. Although the IR team determined that for portions of five of the six regular Inspections at UBB, ROE trainees did conduct inspection activities apart from ARs, I cannot find any evidence that indicates you were aware of these occurrences. As such, I am removing this specification. Specification 3 of the proposed suspension cites your failure to effectively use established Agency tools to identify and correct errors on the part of your subordinate inspectors and supervisors regarding Accompanied Activities (AAs) and Field Activity Reviews (FARs). This specification also references supervisors' lack of documentation of required information on many AA and FAR forms such as correct event activity codes, dates of the Uniform Mine File reviews, dates when inspectors were debriefed, and, in some cases, supervisors not accompanying inspectors on all aspects of an inspection or investigation. Your failure to identify apparent deficiencies in two second level reviews you conducted was also cited. Your written response identified an error in Specification 3. The Coal Mine Safety and Health Supervisor's Handbook requires a supervisor to accompany an inspector during all aspects of a mine visit, not all aspects of an inspection or investigation as stated in Specification 3. In the oral and written replies, you did not dispute the fact that Mt. Hope Field Office supervisors did not conduct (or document) several required AAs and FARs. You indicated that the oversights occurred because there were acting supervisors in the Mt. Hope Field Office between May and December 2009. You also stated there was no training on conducting AAs, FARs, and second level reviews provided to acting supervisors, supervisors, and assistant district managers until after the UBB internal review. You asserted that you had identified issues with Ms during your second level reviews and addressed the issues with your subordinate supervisors. Finally, you stated that Specification 3 inappropriately holds you accountable for deficiencies in AAs and FARs that you did not review and were not required to review. After reviewing this specification and your replies, I am removing this specification. Thus, I am sustaining one (1) of the three (3) specifications in the proposed seven (7) day suspension issued to you. USA00000141 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 94 of 106 PageID #: 23566 4 Penalty Selection In reaching my decision to an appropriate penalty, I have considered the factors established by Merit System Protections Board (MSPB) case Douglas v. VA, 5 MSPB 313 (1981). I considered the nature and seriousness of your actions. Failing to carry out your official duties is one of the most serious infractions that can be committed. As a management official you are tasked with setting a positive example for subordinate employees. You were and still are assigned to review the work of the management and inspection personnel under your jurisdiction. If you are unable to enforce agency policies and follow National Office directives, inspectors may be held to a lower standard of quality work which could jeopardize the safety of the miners MSHA is tasked with protecting. A CMS&H Assistant District Manager is a prominent position. You are responsible for the quality and quantity of work produced by your subordinates while ensuring agency policies are adhered to. Additionally, you are recognized by mine operators, miners, miners' representatives, arid MSHA as having an in-depth knowledge of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006. Your responses to the IR team relative to Specification 1 indicated that you were aware of the criteria in PIL No. 108-111-02 for reviewing violations as potentially flagrant. Although, as you indicated in both your oral and written replies, there may be other districts In violation of the Agency policies and directives, you did not acknowledge responsibility for your role in implementing the flagrant violation procedures in your enforcement division. Your statements that every other ADM in the country needs to be disciplined since you are being disciplined and MSHA is using the IR report as a "gotcha" does not indicate your acknowledgement that you could have carried out your official duties better. If other districts have deficiencies, you are responsible for District 4 and must be held accountable. In reaching my decision, I have considered your "Highly Effective" performance ratings for Fiscal Years (FY) 2010 and 2011, the lack of any prior disciplinary action in your personnel file, and your approximate 30 years of federal service. I have also considered your years of dedicated service on the MSHA mine rescue team. It is my belief that you will not commit these same or similar infractions in the future. I am confident that you can be successful in carrying out all of USA00000142 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 95 of 106 PageID #: 23567 5 your upcoming official duties. Your dedication to MSHA and all miners d uring your career is appreciated. However, these mitigating factors do not outweigh the seriousness of your actions. I have determined that a one (1) calendar day suspension will promote the efficiency of the service and is the least action I can take to correct your unacceptable conduct. Your one day suspension will take place on April 9, 2013, during which time you will be in a non-pay status. Paid leave may not be used to offset the loss of pay resulting from suspension. A Standard Form 50, Notification of Personnel Action, will be accessible via your electronic Official Personnel Folder (eOPF). You will officially return to a duty status on April 10, 2013. You will continue in your current position, grade, and salary pending the effective date of this action. Upon request, you may use accrued leave that is properly scheduled and approved before and after the effective date of this action. NOTICE OF RIGHTS You have a right to file a grievance under DPR Chapter 771, Administrative Grievance System, dated October 1, 2008. You must present the grievance directly under the formal procedure within ten (10) workdays of your receipt of this action. A formal grievance must: (1) be in writing;(2) contain sufficient detail to clearly identify the matter being grieved; and (3) specify the personal relief being requested. Your grievance must be filed with: John K. Moran Deputy Assistant Secretary Veterans' Employment and Training Services 200 Constitution Avenue, NW Room S 1325 Washington, DC 20210 The time limit for filing a grievance may be extended for good cause by mutual agreement between you and Mr. Moran. If you believe this action was taken in reprisal for whistleblowing, you may raise the matter by filing a complaint with the Office of Special Counsel. The Office of Special Counsel will investigate your complaint and will either file an action on your behalf or notify you of your right to file an Individual Right of Action appeal to the MSPB. A complaint may be filed electronically at www.osc.gov, or may be filed in writing by filling out Form OSC-11, and USA00000143 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 96 of 106 PageID #: 23568 6 mailing or faxing the completed form to the Office of Special Counsel at the following address or fax number: Complaint Examining Unit Office of Special Counsel 1730 M Street NW, Suite 218 Washington, DC 20036-4505 Fax: 202-254-3711. If you feel that you have been discriminated against because of race, religion, color, age, sex, national origin, or disability, you may file an equal employment opportunity (EEO) complaint with the U.S. Department of Labor. If you file an EEO complaint with the U.S. Department of Labor, you should submit it to the Civil Rights Center, Room N-4123, 200 Constitution Avenue, NW, Washington, DC 20212. You have the right to be represented by an attorney or other representative of your choice so long as there is no conflict of interest to the agency, However, you must designate your choice of representative in writing to Mr. Moran. Any choice must include your representative's name, address, and phone number. You are entitled to a reasonable amount of duty time to prepare and present a grievance if otherwise in a duty status. You must request and receive approval from your immediate supervisor far the use of duty time for this purpose. If there is anything in this notice that you do not understand or if you have a q uestion about the process used, please contact Ms. Donna Kramer, Supervisory Human Resources Specialist, at 202-693-7686. If you believe that your actions are due to personal problems, I would like to remind you of the Department's Employee Assistance Program (EAP). The EAP is designed to provide counseling and assistance to any employee who is experiencing personal problems of any kind, and its services are strictly confidential. You may contact EAP directly by calling 202-693-8888. USA00000144 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 97 of 106 PagelD 23569 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 98 of 106 PageID #: 23570 U.S. Department of Labor Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, Virginia 22209-3939 NOV 29 2012 MEMORANDUM FOR KEVIN G. STRICKLIN Administrator Coal Mine Safety and Health • FROM: CIA W.dIL L4 Deputy Assistant Secretary for0 Mine Safety and Health SUBJECT: Letter of Counseling This is to notify you of my concern regarding your management responsibilities as they relate to the duties of your position. The duties of the Administrator for Coal Mine Safety and Health(CMS&H)require you to exercise management control and direction ofall programs authorized by the Federal Mine Safety and Health Act of 1977 to ensure the safety and health ofthe nation's coal miners. However, your oversight and control of all CMS&H programs has not been as effective as it should be. The issues relating to this matter were raised to my attention when I read the report on the "Internal Review of MSHA's Actions at the Upper Big Branch Mine South." The Internal Review (1R)evaluated MSHA's performance prior to the April 10,2010, explosion at the Upper Big Branch Mine. Accordingly, since I have recently become aware of your actions via the IR.report, I am now addressing your conduct through this Letter of Counseling. • The IR. report revealed that you relied heavily on acting Deputy Administrator Charles Thomas to provide leadership and direction to the District staffin the planning, development, execution, and administration of policies and programs designed to prevent injury, disease, and death in the coal mining industry. You were unaware ofissues that required your experience and attention even though you had regular briefings with Mr. Thomas and the District 4 staff Specifically, you were unaware that District 4 failed to provide the necessary oversight to ensure that the "too wet to sample" rock dust survey computer application was used in the Mt. Hope and Princeton field offices; that District 4 failed to provide adequate oversight to ensure that inspectors reviewed potentially flagrant violations in accordance with Procedure Instruction Letter, No. 108-111-02; and that the District 4 Roof Control Department was not following CMS&H Memo No. HQ-08-058-A when reviewing and approving complex and non-typical roofcontrol plans and amendments. In addition, you did not appreciate that Headquarters memos, which were not incorporated into the centralized Agency directives system, were not being distributed to all appropriate employees. You can now file your MSHA forms online at wm,MSHtboov. It's easy, It's fast, and it saves you money' USA00000145 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 99 of 106 PageID #: 23571 2 I have concerns with your conduct, as described above. Therefore, I must take corrective measures to address this conduct. I am directing you, as an employee under my direct supervision, to complete the following tasks prior to April 30,2013. • Ensure that corrective actions to address IR recommendations related to:(I) enforcement of30 CFR 75.400 and 30 CFR 75.403;(2)review of potentially flagrant violations; and(3)review and approval ofcomplex and non-typical roof control plans and amendments are effectively and timely implemented. • Work with the Director ofthe Office of Assessments, Accountability, Special Enforcement, and Investigations to develop a means for evaluating the effectiveness of corrective actions prescribed in the UBB Internal Review report. • Ensure that new and revised inspection policies and procedures are implemented through the established MSHA Directives System. I believe timely completion ofthe tasks above,in addition to this memorandum, will ensure appropriate future conduct. You are requested to sign and date this memorandum as evidence that you received it. Your signature does not mean you agree with the contents ofthis memorandum. Your failure to sign will not void the contents ofthis memorandum. I acknowledge receipt ofthis memorandum as indicated below: f//2• &Z. el DATE USA00000146 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 100 of 106 PagelD 23572 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 101 of 106 PageID #: 23573 U.S. Department of Labor Mine Safely and Health Administration 1100 IAIkon Boulevard Arlington, Virginia 22209.3939 APR 03 20E3 MEMORANDUM FOR DONALD WINSTON Supervisory Mine Safety and Heith Specialist FROM: PATRI IA W. SILVEY Deputy Assistant Secretary for Op ations SUBJECT: Decision Letter By letter dated December 5, 2012, Ernest Cameron, Director, Administration and Management, proposed to suspend you from pay and duty status for seven (7) calendar days from your position of Supervisory Mine Safety and Health Specialist, GS-1822-13, in the Mount Hope, WV District 4 Office, of the Mine Safety and Health Administration (MSHA). On December 20, 2012, you presented me with your oral reply to the proposed suspension. Also in attendance at the oral reply were Executive Assistant Monique Molina, MSHA, and Donna Kramer, Supervisory Human Resources Specialist, Office of the Assistant Secretary for Administration and Management(OASAM). During the oral reply I granted an extension for submission of arty written reply until January 18, 2013. On January 7, 2013, you submitted your written reply. I have considered the oral and written replies that you presented to me as well as the proposed suspension issued to you by Mr. Cameron and all supporting documentation. This decision is taken to promote the efficiency of the Federal Service and is based on your failure to carry out your official duties. Discussion on Decision to Suspend Specification 1 of the proposed suspension concerned your failure to follow CMS&H Memo No. HQ-08-058A, when you recommended that the District 4 Manager approve the base roof control plan submitted in October 2009 for You can now tile your tyiSHA terms online at www MSHA,gctv• Ws easy, It's fast, and it saves you money! USA00000147 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 102 of 106 PageID #: 23574 2 Upper Big Branch (UBB), without requiring Performance Coal Company to submit a risk assessment specific to the particular mining operation, including the data and evaluation supporting the proposed roof control plan, During your oral and written replies, you noted that CMS&H Memo No. HQ08-058A lists four criteria to be used in determining if a roof control plan is complex and/or non-typical. The fourth criterion concerns other conditions considered unusual by the District Manager, such as retreat mining between two gob areas, mining of high stress areas created by multiple seam interaction, or active mining above or below longwall panels or isolated remnant pillars. After reviewing this specification, I have determined that the Memo does allow District Managers to exercise discretion relative to risk assessments based upon their knowledge and experience with multiple seam mining. Given your experience with multiple seam mining and roof control, I find that you acted within the parameters of the Memo when you recommended that the District Manager approve the base roof control plan for UBB absent a risk assessment. As such, I am removing this specification. Specification 2 of the proposed suspension concerned your failure to implement provisions of CMS&H Memo No. HQ-08-059A when you did not require District 4 Roof Control Department specialists to use the checklists specified by the memorandum when reviewing roof control plans and revisions. Instructions for all roof control personnel to begin using these checklists were e-mailed to District Managers and Assistant District Managers on January 27, 2009. Additionally, the District 4 plan approval records for the October 2009 UBB base roof control plan did not contain the Headquarters or the District 4 checklists as required by the Memo. In both your oral and written replies you stated that prior to CMS&H Memo No. HQ-08-059A being issued, District 4 had developed checklists to be used when reviewing roof control plans. You stated that the District 4 checklists contained a large majority of the items that the CMS&H Memo No. HQ-08059A checklists contained and you thought the District 4 checklists were sufficient. During your replies, you acknowledged that you continued to complete the District 4 checklists even after the Headquarters checklists were disseminated. You also affirmed that the October 2009 UBB base roof control plan file did not contain any checklist, Headquarters or District 4. USA00000 i 48 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 103 of 106 PageID #: 23575 3 In your written reply you stated that it is your understanding that on January 27, 2009, instructions requiring roof control specialists to use the Headquarters checklists were e-mailed to District Managers and Assistant District Managers. However, you stated that the e-mail distribution did not include roof control supervisors; you did not receive the Headquarters checklists; and you were not informed that you had been using the incorrect checklists. During the oral reply, you asserted the same position that your written reply contained regarding the checklists; that you were not on the e-mail distribution list and were not informed that you were using the incorrect checklists. However, during the oral reply, I asked you whether or not you received the Headquarters checklists. Your response was that you could not say and you were not going to lie to me. If you received the checklists, it would have been from Assistant District Manager Richard Kline.' You continued to state that you could only tell me that you were not aware of the Headquarters checklists. Based on the information shared during the oral reply, I find that this specification is supported by the evidence. Thus, I am sustaining one (1) of the two (2) specifications in the proposed seven (7) day suspension issued to you. Penalty Selection In reaching my decision as to an appropriate penalty, I have considered the factors established by Merit System Protections Board (MSPB)case Douglas v. VA, 5 MSPB 313 (1981). I considered the nature and seriousness of your actions. Failing to carry out your official duties is one of the most serious infractions that can be committed. As a management official you are tasked with setting a positive example for subordinate employees. You were and still are assigned to review the work of the specialists under your supervision. If you are unable to enforce agency policies and follow National Office directives, the inspectorate may be held to a lower standard of quality work which could jeopardize the safety of the miners MSHA is tasked with protecting. A Supervisory CMS&H Specialist is a prominent position. You are recognized by the mine operators, miners, miners' representatives, and MSHA as having an in-depth knowledge of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006. You are also recognized by the Office of the Solicitor (SOL) as an I Assistant District Manager Kline has retired. USA00000149 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 104 of 106 PageID #: 23576 4 expert on roof control as they have utilized your expertise on several legal cases in which MSHA received favorable settlements. As a Supervisory CMS&H Specialist you are responsible for the quality and quantity of work produced by your subordinates while ensuring agency policies are adhered to. Although the Internal Review team concluded that the District 4 checklists for reviewing roof control plans were adequate to ensure the plans submitted by Performance Coal Company included the required information, you were unable to explain why neither checklist was present in the October 2009 UBB base roof control plan file. Regardless of what happened to the checklist for the October 2009 UBB base roof.control plan, I find that you failed to exercise due diligence in implementing the checklists in CMS&H Memo No. HQ-08-059A. In reaching my decision, I have also considered your "Highly Effective" performance ratings for Fiscal Years (FY) 2009, 2010, and 2011, the lack of any prior disciplinary action in your personnel file, and your 20 years of federal service. It is my belief that you will not commit these same or similar infractions in the future. I am confident that you can be successful in carrying out all of your upcoming official duties and appreciate the dedication that you have shown to MSHA. However, these mitigating factors do not outweigh the seriousness of your actions. I have determined that a one (1) calendar day suspension will promote the efficiency of the service and is the least action I can take to address your unacceptable conduct. Your one day suspension will take place on April 9, 2013, during which time you will be in a non-pay status. Paid leave may not be used to offset the loss of pay resulting from suspension. A Standard Form 50, Notification of Personnel Action, will be accessible via your electronic Official Personnel Folder (eOPF). You will officially return to a duty status on April 10, 2013. You will continue In your current position, grade, and salary pending the effective date of this action. Upon request, you may use accrued leave that is properly scheduled and approved before and after the effective date of this action. NOTICE OF RIGHTS You have a right to file a grievance under DPR Chapter 771, Administrative Grievance System, dated October 1, 2008. You must present the grievance USA00000150 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 105 of 106 PageID #: 23577 5 directly under the formal procedure within ten (10) workdays of your receipt of this action. A formal grievance must:(1) be in writing;(2) contain sufficient detail to clearly identify the matter being grieved; and (3) specify the personal relief being requested. Your grievance must be flied with: John K. Moran Deputy Assistant Secretary Veterans' Employment and Training Services 200 Constitution Avenue, NW Room S 1325 Washington, DC 20210 The time limit for filing a grievance may be extended for good cause by m utual agreement between you and Mr. Moran. If you believe this action was taken in reprisal for whistleblowing, you may raise the matter by filing a complaint with the Office of Special Counsel. The Office of Special Counsel will investigate your complaint and will either file an action on your behalf or notify you of your right to file an Individual Right of Action appeal to the MSPB. A complaint may be filed electronically at www.osc.gov, or may be filed in writing by filling out Form OSC-11, and mailing or faxing the completed form to the Office of Special Counsel at the following address or fax number: Complaint Examining Unit Office of Special Counsel 1730 M Street NW, Suite 218 Washington, DC 20036-4505 Fax: 202-254-3711. If you feel that you have been discriminated against because of race, religion, color, age, sex, national origin, or disability, you may file an equal employment opportunity (EEO) complaint with the U.S, Department of Labor. If you file an EEO complaint with the U.S. Department of Labor, you should submit it to the Civil Rights Center, Room N-4123, 200 Constitution Avenue, NW, Washington, DC 20212. You have the right to be represented by an attorney or other representative of your choice so long as there Is no conflict of interest to the agency. However, you must designate your choice of representative in writing to Mr. Moran. Any choice must include your representative's name, address, and phone number. USA00000151 Case 5:14-cr-00244 Document 663-6 Filed 04/18/18 Page 106 of 106 PageID #: 23578 6 You are entitled to a reasonable amount of duty time to prepare and present a grievance if otherwise in a duty status. You must request and receive approval from your immediate supervisor for the use of duty time for this purpose. If there is anything in this notice that you do not understand or if you have a question about the process used, please contact Ms. Donna Kramer, Supervisory Human Resources Specialist, at 202-693-7686. If you believe that your actions are due to personal problems, I would like to remind you of the Department's Employee Assistance Program (EAP). The EAP is designed to provide counseling and assistance to any employee who is experiencing personal problems of any kind, and its services are strictly confidential. You may contact EAP directly by calling 202-693-8888. USA00000152