Massey, union team up against MSHA

Steve Korris May 13, 2010, 10:59am


CHARLESTON, W.Va. (Legal Newsline) - Owners of Massey Energy and leaders of the United Mine Workers seldom agree, but an explosion that killed 29 miners has united them in mistrust of the U. S. Mine Safety and Health Administration.

On May 10, the United Mine Workers asked U. S. District Judge Irene Berger for an injunction halting private interviews the agency planned to start that day.

Union lawyer Grant Crandall wrote that "the entire community has called for a full and open public hearing process, not closed door private interviews."

He wrote, "Even Massey has called for a public hearing."

Massey called for a public hearing on May 5.

The union represents miners at Massey's nonunion Upper Big Branch mine for health and safety purposes in the wake of the April 5 disaster.

"Allowing MSHA to begin its investigative interviews in secret instead of in public will jeopardize the entire investigation process," Crandall wrote.

He wrote that the agency has an inherent conflict of interest to the extent its conduct may be implicated in what happened.

"National Public Radio has reported about a criminal investigation involving bribes of MSHA representatives," he wrote.

If the allegation holds any truth, he wrote, the public has reason to question whether the agency can conduct a thorough and fair investigation.

"Public confidence in the entire investigation will be undermined if MSHA conducts key interviews in private, as it plans immediately to do," he wrote.

"Without the participation of miners' representatives in the accident investigative interviews, MSHA's analysis of its own role, if any, will remain secretive and inherently suspect," he wrote.

"MSHA has already indicated that it will consider its own conduct and its own possible role in the Upper Big Branch mine only in a separate proceeding and as a separate matter, but not as part of the accident investigation," he wrote.

Rachel Moreland of Charleston joined the union's application for an injunction, as counsel for the estates of miners William Griffith and Ronald Maynor.

Judge Berger ordered the agency to respond by noon Monday, May 17.

MSHA has promised a public investigation after a private one.

Public affairs director Amy Louviere wrote on May 6 that investigators would conduct initial interviews privately.

She wrote that private interviews would "protect the confidentiality of witnesses and avoid impeding any potential criminal investigation by the Justice Department."

She wrote that the agency would hold multiple public hearings and would release the information it has gathered.

"Ultimately, this investigation will represent the most open process the agency has ever established," she wrote.

For the moment, the agency draws fire from the union and the owners.

On April 26, Massey director Stanley Suboleski said the agency required changes that reduced the volume of fresh air to the area that exploded.

"The longwall at Upper Big Branch was not operating with the same ventilation system that it began with in September," he said.

He said Massey engineers resisted the changes.

On May 5, Massey chairman Don Blankenship asked agency chief Joe Main to stop requiring miners to turn off dust scrubbers on continuous mining machines.

Blankenship wrote that a scrubber can remove up to 98 percent of harmful dust from the atmosphere.

He wrote that "we remain bewildered by a course of action that includes turning off equipment that permanently removes dust from the atmosphere."

He wrote, "I will add that at least a few of your field inspectors have also expressed puzzlement."

He wrote that 62 of Massey's 132 continuous mining machines are not permitted to run with their scrubbers operating.

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