Coal Tattoo

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Massey Energy continues to promote the notion that the company wants a thorough, complete and open investigation of the April 5 explosion that killed 29 miners at the company’s Upper Big Branch Mine in Raleigh County.

But we’ve confirmed through a public records request that Massey’s top safety officer — Vice President of Safety Elizabeth Chamberlin (above photo) — and five other management personnel have informed the state they were invoking their 5th Amendment rights to not answer any questions about the disaster.

I’m posting here a copy of a document that Managing Deputy Attorney General Tom Smith titled “Supplement to Case Resolution Statement,” which includes 5th amendment “assertion letters” from Chamberlin and from Massey officials Rick Foster, Rick Nicolau, Gary May, Jamie Ferguson and Wayne Persinger.

Readers may recall that these were the six Massey employees who filed suit in Raleigh Circuit Court last month to try to block subpoenas issued to them by the West Virginia Office of Miners Health, Safety and Training.   The Manchin administration settled that litigation by agreeing to allow these six officials to invoke their 5th Amendment rights by letter, rather than showing up and doing so in person on the record — a situation that could have forced them to repeatedly cite their rights in refusing to answer multiple questions from government investigators.

The state mine safety office released that previous litigation settlement in response to a Freedom of Information Act request only because I reminded them of a 1986 state Supreme Court case, Daily Gazette v. Withrow, that requires state agencies here to maintain a copy of litigation settlements available for public review.

Interestingly, the Manchin administration is now saying that other “assertion letters” — submitted by Massey employees other than those who were direct parties to that litigation — will not be released under FOIA and are being withheld as secret law enforcement documents.

All six of the assertion letters released thus far complain that the ongoing government investigation is being conducted in an unfair manner, by allowing MSHA and Gov. Manchin’s independent team, headed by Davitt McAteer, to take part in interviews. They also note that transcripts from those interviews are being turned over to the U.S. Justice Department, which is conducting a criminal investigation of the disaster and events prior to it at the Upper Big Branch Mine. All of the letters assert that the Massey officials who are taking the 5th did nothing wrong, but simply are refusing to take part in what they view as an unfair investigation.

As you can see, most of the letters are short, but Elizabeth Chamberlin’s written by Crowell & Moring attorney Philip Inglima, offers this more detailed explanation of the decision to refuse to testify:

After receiving the subpoena, I explored available information about the course of this joint investigation to date. I was alarmed to learn that the process had been dominated by MSHA and that some witnesses had been bullied or abused by some of the questioners — particularly by representatives of the Governor’s task force.

… The conduct of MSHA and the Governor’s task force in this joint investigation had created an atmosphere that was biased, abusive to the witnesses, and dedicated not so much to discovering facts pertinent to those offices’ legitimate missions as to advancing a parallel criminal investigation for self-serving reasons.

It goes on:

… Any process in which MSHA and the Governor’s task force coat-tail upon the authority of the state affords those parties an opportunity to employ the practices and to advance the improper objectives that stoked our concerns.

In sum, nothing that has happened during the past month has abated our concern with MSHA’s aberrant and improper behavior during the course of this investigation. Simply put, MSHA knows that its own past decisions and conduct are very much at issue in this investigation, and it is acting accordingly at this time, trying to divert attention and blame from itself and onto others.

In such a climate, Ms. Chamberlin has reluctantly accepted our advice that … we cannot envision a circumstance in which the joint investigation testimony … would be free from the many pitfalls and defects that we have summarized above …

Ms. Chamberlin is blameless in this terrible tragedy that occurred at Upper Big Branch Mine. We will not subject her to the perils of this extraordinary and hostile process.

We’ll have to see what happens now, and how this will affect the government investigation at Upper Big Branch. And we’ll wait to see if the Manchin administration decides to allow the public to know what’s going on with other witnesses who are taking the 5th.

A schedule of October interviews listed at least five other Massey officials who were refusing to testify, including Massey senior vice president Chris Adkins, vice president of underground operations Jason Whitehead, and Massey compliance officer Gary Frampton, who calls for a “focused and honest investigation” of the Upper Big Branch Disaster in this recent video posted on Massey’s Web site:

VIDEO: UBB Update From Gary Frampton from MasseyEnergyCo on Vimeo.