MSHA lawyers scold Upper Big Branch miners’ families for trying to take part in investigation

May 17, 2010 by Ken Ward Jr.

MSHA chief Joe Main has filed his response to the efforts by his former employers at the United Mine Workers of America union and families of two miners killed at Upper Big Branch to force a more public investigation of the worst U.S. coal-mining disaster in 40 years.

I’ve posted a copy here, so you can read for yourself.

MSHA lawyers have filed a motion to dismiss — arguing that the families have no case that a court could possibly rule on — and also filed a response to the request for a temporary restraining order filed by the families and the UMWA.

For all of the talk from Labor Secretary Hilda Solis about increased transparency, for all of President Obama’s moving words at the miners’ memorial — and despite Main’s own long history of working to involve miners and miners’ families in accident investigations — now the real position of the government becomes clear. Basically, it goes something like this: We’re the real experts here, so leave us alone to investigate. We’ll show you our report when we’re done. And we’ll have a scripted public hearing that includes only the witnesses and only the testimony we want.  But until then, we don’t need your help.

Here’s a few samples from the legal brief filed this morning on Joe Main’s behalf:

— There is nothing in the Mine Act or anywhere else that permits Plaintiffs to second-guess the Secretary’s judgment as to how best to conduct such investigations.

— Plaintiffs will be entitled to civil discovery if and when they file private civil proceedings … government investigations are not conducted for the benefit of private litigants.

—  … Plaintiffs have already attempted to disrupt this process by the initiation of this action without legal authority …

— To force MSHA to conduct public interviews and require MSHA to coordinate investigative activities with Plaintiffs and others would necessarily impede the progress of this investigation

— Finally, giving private lawyers and litigants control over MSHA’s investigation is a slippery slope. Subordinating MSHA’s investigative powers to private interests would be disastrous to the investigative process and make a mockery of Congress’ mandate to MSHA.

Is MSHA now in an adversarial court process with at least two of the miners’ families? Yes. And sometimes the tone takes off from there. But you have to wonder if Joe Main would look those families in the eye and accuse them of trying to “disrupt the process” …

5 Responses to “MSHA lawyers scold Upper Big Branch miners’ families for trying to take part in investigation”

  1. Bob Kincaid says:

    To say that “There is nothing in the Mine Act or anywhere else” that affords the victims’ families relief is disingenuous, at best. The “anywhere else” part is precisely untrue.

    As I understand it, the plaintiffs are seeking injunctive relief, which is a an equitable remedy, or writ. It exists specifically BECAUSE the remedy at law is incomplete and inadequate.

    A court may take note of such situations and issue a writ upon a specific set of findings, many of which MSHA seems to be providing almost as if it was trying so to do.

  2. Krsk says:

    MSHA needs to be monitored to assure they leave no witness testimony behind. To allow them to conduct closed door interviews is like letting the fox guard the hen house.

    MSHA is a potential defendant in the explosion. Family and former coal miners are always discussing how coal companies get away with breaking regulations and how regulators look the other way.

    UMW and at least one counsel from the plaintiffs need to witness the interviews, not take part in them. They can observe by video or through one-way glass. Most of all, the interviews must be recorded and transcribed.

    The original goal of Workers Comp. was to provide for a non-adversial way of discovering the cause of injury. This was accomplished by cooperation between the employee, the employer, and the investigating entity. It is obvious the original goal has been replaced by employers and investigators and regulators (in this case MSHA) who wish to hide malfeasance and nonfeasance.

  3. James says:

    As Krsk says, MSHA has some very real potential conflicts here. It will be interesting to see how much they use NIOSH in this investigation as well. MSHA’s main conflict is that they will be investigating a ventilation plan that was MSHA approved and which decreased the air flow to the face and was opposed by Massey. Massey will claim that the accident was a direct result of being forced to adopt a ventilation plan that they did not approve of and had real concerns about (npr had an interview that was partially about this today on WV public radio – not from the state but was passing through).

    Not sure if this is helpful, but MSHA is on a hiring spree. they have been actively recruiting mining engineers at the mining schools. Main appears to have recognized that MSHA is weak in this area – not nearly enough mining engineers for mine plan approvals, vent plans, etc.

  4. This is very confusing – how and why should MSHA be investigating a series of failures they allowed to happen.

  5. […] their responses (posted here and here) to the U.S. Mine Safety and Health Administration’s earlier motion to have the case thrown out without a decision on the […]

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