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Massey managers sue to block disaster interviews

Read the court filing

CHARLESTON, W.Va. -- Six Massey Energy management personnel -- including the company's corporate safety director -- have filed suit challenging subpoenas that would force them to answer questions about the April 5 explosion that killed 29 workers at Massey's Upper Big Branch Mine.

Lawyers for Massey vice president of safety Elizabeth Chamberlin and five other mine managers allege the state Office of Miners Health, Safety and Training is wrongly using its subpoena power to help federal Mine Safety and Health Administration officials force them to appear for interviews with investigators.

"It is apparent that MSHA has inveigled OMHST to serve as MSHA's stalking horse in this matter, a role the state of West Virginia neither has nor could assign to the state agency," the lawyers wrote in papers filed in Raleigh County Circuit Court.

The court filing sets up another legal battle between Massey and government investigators over the ongoing probe of the worst U.S. coal-mining disaster in 40 years.

"It is unprecedented in the history of mining accidents in this country for a substantial group of mine management to refuse to provide information which will help to prevent this kind of accident from occurring in the future," said longtime mine safety advocate Davitt McAteer, who is conducting an independent probe of the disaster for Gov. Joe Manchin.

In their court filing, the Massey officials object specifically to MSHA investigators taking part in any witness interviews conducted under the authority of state mine safety office subpoenas.

Under state law, West Virginia regulators can compel witnesses to appear for questioning about mining accidents regardless of whether interviews are conducted in public or private. But federal law gives MSHA authority to subpoena witnesses only if the agency investigates through a public hearing, something the Obama administration has refused to do.

MSHA is leading the civil investigation of the explosion, and the disaster is also the subject of a separate federal criminal investigation.

The Massey officials' court filing repeats the company's allegations that MSHA is conducting an unfair and dishonest investigation, rushing to conclusions and attempting to shift blame from any agency role in the disaster.

"MSHA has made relentless and entirely self-serving efforts to impugn Massey Energy and [subsidiary] Performance Coal ever since the accident itself," the court filing said. "At a time of great tragedy and confusion, MSHA immediately sought very publicly to assign blame and to distance itself from its own responsibility for the conditions that may have caused or contributed to the disaster."

MSHA officials have not responded to requests for comment about Massey managers fighting the state's subpoenas, but federal officials issued a news release Wednesday to tout a federal administrative law judge's decision to reject Massey's challenge to MSHA investigation procedures.

"Massey's complaints about the investigation were unfounded, and the company was not disadvantaged in any way," said MSHA chief Joe Main.

Also Wednesday, The Associated Press reported that Massey CEO Don Blankenship had revealed what Blankenship said was evidence that several Upper Big Branch victims knew before their deaths that explosive methane was pouring into the mine just moments before the explosion. Blankenship said there's evidence that miners cut off electricity to the cutting head of the mine's main mining machine and stopped its conveyor belt.

In early August, state mine safety director Ron Wooten had revealed that the mine's longwall mining machine was turned off about 98 seconds before the explosion was believed to have occurred.

And during a media briefing on Aug. 11, MSHA officials confirmed that information, and said that further investigation was needed to determine exactly what it meant.

"The machine was not mining coal when this occurred," said Kevin Stricklin, MSHA's coal administrator. "We're not sure if someone hit an emergency stop button or if the person who had remote control ... if you walk so far away, it also shuts down."

In the AP story, Blankenship also revealed that there was what regulators call a "methane outburst" from the Upper Big Branch Mine floor in 1997, prior to previously reported outbursts in 2003 and 2004.

Investigators are examining whether a methane outburst played a role in the April disaster. Neither Massey nor MSHA has explained publicly what -- if anything -- was done after the earlier incidents to prevent a recurrence.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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