Feds won’t hold full public hearing in probe of deadly explosion at W.Va. coal mine

W.Va. mine accident probe won’t be fully public

WASHINGTON — Federal regulators have decided not to convene a public hearing in the early stages of their investigation into the deadly explosion at a West Virginia coal mine.

The announcement Thursday from the Mine Safety and Health Administration means officials will not have subpoena power to compel witnesses to testify during the initial part of the probe.

It also means that family members of the 29 miners killed in the April 5 explosion won’t be present for early interviews with mine workers and officials from Massey Energy Co., which owns the mine.

The agency plans to conduct much of its initial investigation behind closed doors, then later hold two public hearings and other forums for public input. MSHA will use its subpoena power to compel witnesses to testify at the later hearings if necessary.

MSHA director Joe Main said the approach is driven by “a commitment to transparency and openness” and an effort to make sure the agency “does not impede any potential or ongoing criminal investigations into the blast.”

He was referring to a separate criminal probe of the explosion in which the FBI is interviewing dozens of current and former Massey employees.

Media organizations, labor unions and even Massey had called on the government to hold a full public hearing into the explosion, the nation’s worst coal mining disaster in 40 years.

Instead, MSHA plans one hearing where mine workers, Massey officials and others with knowledge of the Upper Big Branch mine will testify. A second hearing to discuss the leading theories as to what caused the explosion will include MSHA investigators and outside experts.

Family members of miners who died in the blast would have a chance to comment on the investigation and potential reforms in mine safety during a separate public forum. MSHA also would convene a town-hall meeting to hear ideas on how to create a culture of safety at mining operations.

All the hearings and forums are likely to take place in West Virginia near the site of the accident in Montcoal, but no dates have been set.

In a statement, Massey said the agency “is choosing to repeat past mistakes of coal mine investigations by refusing due process and failing to build the public’s confidence that the hearings will be fair and develop a complete and balanced public record.”

United Mine Workers president Cecil Roberts said he was “extremely disappointed” with the decision.

“The only people who don’t want this to be completely open are the government agencies, and that, frankly, continues a bad practice that we expected would change under this administration,” Roberts said.

Roberts said his union planned to file a lawsuit challenging the decision to close the interview phase of the investigation.

But the Labor Department’s chief lawyer said MSHA had to be “very mindful” of a possible criminal probe happening at the same time.

“From a law enforcement perspective, there can be problems in having witness interviews in public,” said Patricia Smith, who serves as the solicitor of Labor.

Tony Oppegard, a mine safety advocate and former regulator who practices law in Kentucky, called MSHA’s decision unfortunate.

“The bottom line is the process is going to be tainted from Day One with Massey lawyers being the only lawyers in the interviews,” Oppegard said.

A Labor Department official familiar with the investigation said the government is no longer allowing mine company lawyers or managers to be in the room while rank-and-file mine workers are being interviewed, even if a worker requests it. The official requested anonymity because the investigation protocol has not been made public.

Massey lawyers would be permitted at interviews of some senior mine officials and company executives, the official said.

MSHA plans to make the contents of those early interviews public, but not if the person interviewed requests confidentiality or if the agency thinks it would jeopardize a potential criminal investigation.

“If you do interviews privately and even have some supplemental session for the public’s consumption, that’s not a public hearing,” Oppegard said.