Transcript of the Testimony of Kevin Brown Date: May 22, 2010 Case: Printed On: May 26, 2010 Sargent's Court Reporting Services, Inc. Phone: 814-536-8908 Fax: 814-536-4968 Email: [email protected] Internet: www.sargents.com Page 1 STATEMENT UNDER OATH OF KEVIN BROWN taken pursuant to Notice by Brett Steele, a Court Reporter and Notary Public in and for the State of West Virginia, at the National Mine Health and Safety Academy, 1301 Airport Road, Room C-123, Beaver, West Virginia, on Saturday, May 22, 2010, beginning at 5:50 p.m. Any reproduction of this transcript is prohibited without authorization by the certifying agency. SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 2 1 A P P E A R A N C E S 2 3 DEREK J. BAXTER, ESQUIRE 4 U.S. Department of Labor 5 Office of the Regional Solicitor 6 1100 Wilson Boulevard 7 22nd Floor West 8 Arlington, VA 22209-2247 9 10 TERRY FARLEY 11 West Virginia Office of Miners' Health, 12 Safety and Training 13 1615 Washington Street East 14 Charleston, WV 25311 15 16 NORMAN PAGE 17 Mine Safety and Health Administration 18 20 21 BETH SPENCE 22 West Virginia Independent Investigation 23 25 SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 3 1 I N D E X 2 3 OPENING STATEMENT 4 By Attorney Baxter 5 - 9 5 WITNESS: KEVIN BROWN 6 EXAMINATION 7 By Mr. Farley 10 - 30 8 EXAMINATION 9 By Mr. Page 30 - 48 10 EXAMINATION 11 By Ms. Spence 49 12 DISCUSSION AMONG PARTIES 50 - 51 13 RE-EXAMINATION 14 By Mr. Farley 51 - 56 15 RE-EXAMINATION 16 By Mr. Page 57 - 69 17 CLOSING STATEMENTY 18 By Attorney Baxter 69 - 70 19 CERTIFICATE 71 20 21 22 23 24 25 SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 4 1 EXHIBIT PAGE 2 PAGE 3 NUMBER DESCRIPTION IDENTIFIED 4 1 Map 65* 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 *exhibit not attached SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 5 1 P R O C E E D I N G S 2 ------------------------------------------------------ 3 ATTORNEY BAXTER: 4 My name is Derek Baxter. Today is May 5 22nd, 2010. I'm with the Office of the Solicitor, 6 U.S. Department of Labor. With me is Norman Page, an 7 accident investigator with the Mine Safety and Health 8 Administration, MSHA, an agency of the U.S. Department 9 of Labor. Also present are two people from the State 10 of West Virginia, I ask that they state their 11 appearance for the record. 12 MS. SPENCE: 13 I'm Beth Spence, with the Governor's 14 independent team. 15 MR. FARLEY: 16 I'm Terry Farley with the West Virginia 17 Office of Miners Health, Safety and Training. 18 ATTORNEY BAXTER: 19 There are also several members of the 20 investigation team present here in the room today. 21 All members of the Mine, Safety and Health Accident 22 Investigation team and all members of the State of 23 West Virginia accident investigation team 24 participating in the investigation of the Upper Big 25 Branch mine explosion shall keep confidential all SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 6 1 information that's gathered from each witness who 2 voluntarily provides a statement until the witness 3 statements are officially released. MSHA and the 4 State of West Virginia shall keep this information 5 confidential so that other ongoing enforcement 6 activities are not prejudiced or jeopardized by a 7 premature release of the information. Confidentiality 8 requirement shall not preclude investigation team 9 members from sharing information with each other or 10 with other law enforcement officials. Your 11 participation in this interview constitutes your 12 agreement to keep this information confidential. 13 Government investigators and specialists 14 have been assigned to investigate the conditions, 15 events and circumstances surrounding the fatalities 16 that occurred at the Upper Big Branch Mine-South on 17 April 5th, 2010. The investigation is being conducted 18 by MSHA under Section 103(a) of the Federal Mine, 19 Safety and Health Act and the West Virginia Office of 20 Miners' Health, Safety and Training. We appreciate 21 your assistance in this investigation. 22 You may have your personal attorney 23 present during the taking of the statement or another 24 personal representative if MSHA has permitted it. You 25 may consult with your attorney or the representative SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 7 1 at any time. Do you have a personal representative 2 here today? 3 MR. BROWN: 4 No. 5 ATTORNEY BAXTER: 6 Your statement's completely voluntary. 7 You may refuse to answer any question. You may 8 terminate your interview at any time or request a 9 break at any time. Since this is not an adversarial 10 proceeding, formal Cross Examination will not be 11 permitted, however, your personal legal representative 12 may ask clarifying questions as appropriate. 13 Your identity and the content of this 14 conversation will be made public at the conclusion of 15 the interview process and may be included in the 16 public report of the accident, unless you request that 17 your identity remain confidential or if your 18 information would otherwise jeopardize a potential 19 criminal investigation. If you request us to keep 20 your identity confidential, we will do so to the 21 extent permitted by law. That means that if a Judge 22 orders us to reveal your name or if another law 23 requires us to reveal your name, or if we need to 24 reveal your name for other law enforcement purposes, 25 we may do so. SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 8 1 We request that you refrain from 2 discussing your statement with others who may be 3 interviewed. Also, there may be a need to use the 4 information you provide to us or other information we 5 may ask you provide in the future in other 6 investigations into and hearings about the explosion. 7 Do you understand or have any questions? 8 MR. BROWN: 9 I understand. 10 ATTORNEY BAXTER: 11 After the investigation is complete, MSHA 12 will issue a public report detailing the nature and 13 causes of the fatalities in the hope that greater 14 awareness about the causes of accidents can reduce 15 their occurrence in the future. Information obtained 16 through witness interviews is frequently included in 17 these reports. Since we'll be interviewing other 18 individuals, we request that you do not discuss your 19 testimony with any person aside from your personal 20 representative or counsel. 21 A court reporter will record your 22 interview. Please speak loudly and clearly. If you 23 do not understand a question asked, please ask us to 24 rephrase it. Please answer each question as fully as 25 you can, including any information you've learned from SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 9 1 someone else. 2 I'd like to thank you in advance for your 3 appearance here. We appreciate your assistance in 4 this investigation and your cooperation is critical in 5 making the mines safer. 6 After we've finished asking the 7 questions, you'll have an opportunity to make a 8 statement and provide us with any other information 9 that you believe to be important. If at any time 10 after the interview you recall any additional 11 information that you believe might be useful, please 12 contact Norman Page at the telephone number or the e- 13 mail address provided to you. 14 Any statements given by miner witnesses 15 to MSHA are considered to be an exercise of statutory 16 rights and protected activity under Section 105(c) of 17 the Mine Act. If you believe any discharge, 18 discrimination or any other adverse actions taken 19 against you are as a result of your cooperation with 20 this investigation, you are encouraged to immediately 21 contact MSHA and file a complaint under Section 105(c) 22 of the Act. Please swear in the witness. 23 ------------------------------------------------------ 24 KEVIN BROWN, HAVING FIRST BEEN DULY SWORN, TESTIFIED 25 AS FOLLOWS: SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 10 1 ------------------------------------------------------ 2 EXAMINATION 3 BY MR. FARLEY: 4 Q. Kevin, I'm going to start it off here. Norman and 5 I will probably bounce it around a little bit. I'm 6 going to ask you to begin with you stating your full 7 name, and spell your last name, please. 8 A. Kevin Chadwick Brown, B-R-O-W-N. 9 Q. Okay. Would you please give us your home address 10 and phone number? 11 A. 14 Q. Are you here voluntarily today? 15 A. Yes. 16 Q. Would you tell us how many years of mining 17 experience you have? 18 A. Five in July. 19 Q. Five? 20 A. Five years, yes. 21 Q. Okay. Can you give us a brief description of your 22 coal mine experience? Where did you work before you 23 came to UBB? 24 A. I was at Peabody. I was at Harris No. 1 Mine in 25 Boone County. SARGENT'S COURT REPORTING SERVICES, INC. (814) 536-8908 Page 11 1 Q. Uh-huh (yes). 2 A.