Judge Berger throws out suit seeking open investigation of Upper Big Branch Mine Disaster

May 21, 2010 by Ken Ward Jr.

U.S. District Judge Irene C. Berger has dismissed a lawsuit that sought to force the Obama administration to conduct its investigation of the Upper Big Branch Mine Disaster through an open, public hearing.

I’ve posted a copy of Judge Berger’s decision here. As Coal Tattoo readers certainly know, the United Mine Workers union and two families of Upper Big Branch victims filed this suit to try to bring some measure of transparency to the ongoing MSHA probe.

The judge did not address the merits of the case, or any of the arguments about whether MSHA should be investigating itself or that an open process would harm the ongoing criminal investigation of safety practices at the Massey Energy Mine.

Instead, Judge Berger sided with the argument made by lawyers for MSHA chief Joe Main that the U.S. District Court did not have jurisdiction to decide the matter, calling that “the foremost issue in this case.”

Basically, Judge Berger ruled that the Administrative Procedure Act — invoked by the UMWA and the miners’ families — does not provide for judicial review of MSHA’s procedures for conducting accident investigations.

2 Responses to “Judge Berger throws out suit seeking open investigation of Upper Big Branch Mine Disaster”

  1. theminerman says:

    so many investigations,,,,,it’ll be the fog of war on this one….I can hear it now,,,”I’m retiring to spend more time with my family”

  2. theminerman says:

    this is like a grand jury, they must gather facts; then it will come out, depends on who report u read for the spin…. One fact already is getting distorted. MSHA must be at mine 30 minutes before shift change, so we are highly visible. word does not need to go out that “the man/woman is here” also, MSHA, must notifiy Mgt. and the work force of their arrival and inspection and the right of miners to go with the inspector….Source; Inspector Procedure manual!!! Only time when MSHA would not tell Mgt and workers, of this…if there is a hot line call about an imminent danger, then MSHA should try to get to that area ASAP. Even if the word got out that ” the man is here” most major viloations could not be sanitized that quick, and fixed. Inspectors showing up very late in the shift? Yes, it happens, and often…this can make it hard on MGT. they tie up there work force, and some inspector shows up an hour or two late, then the saftey dept and even a worker has to be pulled off their jobs to accomadate inspector….so safety is compromise here, by the vary person who is suppose to represent health and Safety…..The Durbin Report in Illinois is good reading, if u can gte your hands on a copy. Which I have, If Ken wants a copy. It will open up some eyes of a troubled Agency.

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