Coal Tattoo

Mine Explosion

It’s being argued that we in the media are  “just silly” to be demanding that federal and state investigators open their probe of the disaster at Massey Energy’s Upper Big Branch to the press and the public.

Let’s put aside for a moment the crucial question of why MSHA chief Joe Main doesn’t respond to requests from the widows of Upper Big Branch miners that they be allowed into the investigation to find out the truth about why their husbands died.

The argument being put forth is that letting the press into the investigation interviews or making the contents of those interviews available in real time will hamper the investigation and help Massey Energy — by giving Massey lawyers real-time information about the direction investigators are headed.

OK … there’s just one little problem with this theory: One way or another, Massey is going to get into these interviews. That’s the way mine death investigations have pretty much always worked.

State officials generally let the company lawyers sit in. And if they don’t, the company lawyers slip in under the guise of being the “personal representatives” of individual workers or foremen. If the company wants in, it gets in. So regardless of whether the press, the public and the families find out what’s going on, Massey will.

Let me give a couple of examples …

First, there’s the investigation by MSHA and the state Office of Miners’ Health, Safety and Training a couple years ago of the deaths of Massey miners Don Bragg and Ellery Hatfield in the January 2006 fire at the Aracoma Alma No. 1 Mine.

Massey lawyers got into the interviews. They showed up with miners and foremen who are being questioned by government investigators, said they were representing those men, and were allowed to listen and take notes.

Interestingly, MSHA’s lead investigator in that case, Kenny Murray, almost always asked the miners when they had met these lawyers … and it turned out it was almost always right before the interview. Some of the miners even revealed that Massey had said they would send a company lawyer to the interview to help out.

One instance I especially remember from reading the Aracoma interviews (which, by the way, have never been officially made public by the government), Massey lawyer Dave Hardy (yes, the Kanawha County Commissioner) threatened to end an interview with a miner when investigators began to narrow their questions to figure out exactly which ventilation walls were missing prior to the fire:

It’s a voluntary interview … The voluntary interview is over until we go out in the hall and talk a minute … Thank you. How about that?

Another case I recall from recent years involved Massey’s White Buck Coal Co., which was being investigated and eventually pleaded guilty to a criminal charge that it did not perform a required pre-shift safety check at a mine in Nicholas County.

A foreman at the mine was entering into a plea deal with prosecutors, and was expected to testify against White Buck if the case against the company went to trial. But another Massey lawyer, Mark Heath, had represented both the foreman and Massey during MSHA’s civil investigation. Once the case went criminal, prosecutors questioned whether it was a conflict of interest for Heath’s firm, Spilman Thomas & Battle, to represent White Buck. After all, the foreman was going to testify against Massey’s White Buck subsidiary … should the same law firm be then defending White Buck in the criminal case?

At the time, I quoted longtime mine safety lawyer Tony Oppegard commenting on the common practice of company lawyers also representing miners during MSHA investigations:

It is a widespread problem, and I think it’s a shady legal practice on the part of the company lawyers to do that. They know the individual miners can’t afford an attorney, so the individual miners think they’re getting free legal help. But the trade-off is they’re not going to want you to say anything that is contrary to the company’s best interests.

In the end, U.S. District Judge John T. Copenhaver ruled that the Spilman firm had a clear conflict of interest. Still, the judge allowed Spilman to represent White Buck — as long as lawyers from the firm did not try to cross-examine the foreman they had formerly represented.

An interesting thing is that Copenhaver noted that the foreman and Massey had “diametrically opposed” version of events at the Grassy Creek No. 1 Mine

The foreman insisted that his supervisors “instructed him to conduct his pre-shift duties in an unlawful manner,” the judge wrote. At the same time, White Buck “has engaged in determined efforts to pin all fault upon Wine for the violation.”

In any event, the suggestion that the media and the public need to be kept out of this investigation to avoid tipping off Massey about what investigators are learning and what direction the probe is headed simply doesn’t hold water, given that Massey’s going to be in the room one way or the other.

Of course, it appears that the United Mine Workers will also get in the room, and that provides some check on the company lawyers … but what if questions start narrowing to mistakes made by MSHA under the watch of the union’s former safety director, Joe Main?  Allowing the press and the public — let alone the widows — into the room would ensure a proper investigation. To his credit, UMWA President Cecil Roberts has joined in the call for a public investigation.

We all await an answer from MSHA …