West Virginia Record

Sunday, October 13, 2019

Investigators can interview UBB witnesses privately, Berger says

By Steve Korris | May 25, 2010


CHARLESTON – Federal investigators can privately interview witnesses to the Upper Big Branch mine explosion, U.S. District Judge Irene Berger decided on May 20.

She ruled she lacked jurisdiction over a complaint the United Mine Workers and estates of two dead miners filed against the U. S. Mine Safety and Health Administration.

The union and the estates sought an injunction requiring MSHA to include their representatives at interviews. They also wanted Berger to order public hearings.

Assistant U.S. attorney Carol Casto of Charleston argued for MSHA that the complaint provided no basis for federal court jurisdiction, and Berger agreed.

Moving at lightning speed by court standards, Berger closed the case in 10 days.

She would have moved faster if the union and the estates had filed their briefs on time.

She rejected a claim that the complaint deserved unique treatment because it alleged misconduct in the agency.

She wrote that the complaint did not involve allegations of misconduct, and to prove her point she identified four paragraphs that vaguely hinted at misconduct.

Twenty-nine miners died in the explosion on April 5.

Although the United Mine Workers does not represent miners at Upper Big Branch for collective bargaining, miners chose the union as their representative in the investigation.

On May 10, as MSHA investigators prepared to begin interviewing witnesses, union lawyer Grant Crandall sued the agency at federal court in Charleston.

Rachel Moreland of Charleston joined the suit on behalf of the estates of William Griffith and Ronald Maynor.

Crandall wrote, "Without the participation of miners' representatives in the accident investigative interviews, MSHA's analysis of its own role, if any, will remain secretive and inherently suspect."

He wrote that the agency has an inherent conflict of interest to the extent its conduct may be implicated in what happened.

He invoked federal jurisdiction under a provision of the national Mine Act of 1977 and a rule of civil procedure.

Casto moved to dismiss on May 17. "Government investigations are not conducted for the benefit of private litigants," she wrote.

She wrote that authorities responsible for identifying potential criminal actions would gather and share information from the investigation.

"It is entirely unprecedented and unacceptable that law enforcement officers conducting law enforcement activities could be required to coordinate their investigations with plaintiffs and others, including those who may be criminally responsible," she wrote.

"Plaintiffs are not being denied participation in the process, only in the investigative interviews," she wrote.

Casto wrote that neither the Mine Act nor a procedural rule conferred jurisdiction.

Berger agreed and wrote, "The Court observes that public hearings are not mandated by the statute."

She wrote that the procedural rule sets forth requirements for obtaining injunctive relief where jurisdiction exists, but does not provide an independent basis for jurisdiction.

She observed that when the union and the estates responded to Casto's brief, they didn't address her arguments against jurisdiction under the Mine Act or the rule.

MSHA has promised open hearings and release of information, in the future.

Public affairs director Amy Louviere wrote on May 6 that, "Ultimately, this investigation will represent the most open process the agency has ever established."

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