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Massey Fatal Mine Blast Said to Be Target in Grand Juries’ Probe

Massey Mine Explosion Said to Be Probed by Two Grand Juries
The blast at Massey’s Performance Coal operation in Montcoal, West Virginia, the worst U.S. mine disaster in 40 years, set off federal and state investigations into its cause, including a criminal probe by the U.S. Justice Department. Photographer: Mark Wilson/Getty Images

The April 5 explosion of a Massey Energy Co. coal mine that killed 29 miners is being investigated by two federal grand juries in West Virginia, according to a person close to the probe.

The blast at Massey’s Performance Coal operation in Montcoal, West Virginia, the worst U.S. mine disaster in 40 years, set off federal and state investigations into its cause, including a criminal probe by the U.S. Justice Department. Performance Coal ran the Upper Big Branch mine for Massey.

The federal Mine Safety and Health Administration, the state mine safety agency and West Virginia’s governor are also conducting investigations.

The two grand juries have divided tasks and are meeting in two West Virginia cities, Charleston and Beckley, the person said. The Charleston grand jury is investigating allegations that some mine inspectors may have accepted bribes from Massey employees so that the company’s mines Would receive preferential treatment when being inspected, said the person, who couldn’t be named because the deliberations are secret. The Beckley grand jury is investigating the explosion itself, according to the person.

“It is not uncommon that an accident of the size and scope of UBB would lead to a comprehensive investigation by relevant law enforcement agencies,” Jeff Gillenwater, a Massey spokesman, said in an e-mail. “Massey has no knowledge of criminal wrongdoing.”

‘Will Respond Aggressively’

The company is “cooperating with all agencies that are investigating the tragedy at UBB,” he said. “Massey does not and will not tolerate any improper or illegal conduct and will respond aggressively as circumstances warrant.”

The U.S. Attorney’s Office in Charleston told investigators at the federal safety agency in May that it was investigating possible “willful criminal activity” at Massey’s Performance Coal unit.

The communication was contained in a letter to federal safety officials asking them to suspend some pending civil actions involving the unit until after the criminal probe was completed, according to the document. The letter didn’t specify which civil actions would be suspended.

The U.S. Attorney’s Office has been receiving copies of the transcripts of interviews being conducted by the West Virginia Office of Miners’ Health Safety and Training, MSHA and a group formed by West Virginia Governor Joe Manchin to investigate the cause of the incident, according to the federal safety agency.

247 Interviews

A total of 247 interviews were conducted as of Oct. 27, the federal agency said on its website. The West Virginia mine safety agency has subpoenaed witnesses and “approximately 15 Massey upper-management employees have pled their Fifth Amendment right not to provide potentially self-incriminating evidence during the interview process,” according to MSHA.

Lawyers for six of these employees asked a West Virginia judge in September to quash subpoenas from the state’s mine safety director requiring them to answer questions about the April explosion. The West Virginia attorney general subsequently agreed that any witness who wanted to invoke the Fifth Amendment if subpoenaed by the Office of Miners’ Health Safety and Training could do so by letter and wouldn’t be compelled to attend a hearing in person.

Lawyers for the employees said the state agency is being used by MSHA, which has limited subpoena power, to force these managers to testify in private, calling it an abuse of process.

Upper Big Branch

The six individuals include Upper Big Branch Mine Manager Wayne Persinger, Massey Energy Vice President for Safety Elizabeth Chamberlin, UBB Mine Foreman Rick Foster, UBB Mine Superintendent Gary May, UBB Chief Electrician Rick Nicolau and Massey employee Jamie Ferguson.

Attorneys for the Massey employees sent letters to the West Virginia attorney general last month declining to testify, contending they were being improperly subpoenaed to give testimony in private. The lawyers said MSHA was trying to deflect its own complicity in the April 5 explosion.

The subpoenas were being used more as a means of “generating public bias against Massey Energy and its personnel than they are in respecting the rule of law and fair process,” Chamberlin’s attorney, Philip T. Inglima of the Washington law firm Crowell & Moring LLP, wrote on her behalf.

The federal agency had “dominated” the joint investigation of the explosion by MSHA, the governor’s task force and the state safety agency, Inglima said.

‘Bullied or Abused’

“Some witnesses had been bullied or abused by some of the questioners -- particularly by representatives of the governor’s task force,” he wrote. MSHA “reportedly was using transcripts of these inquisitions to advance its effort to promote a criminal investigation of the Upper Big Branch tragedy, while affording the witnesses no opportunity to review, much less approve, the content of the transcripts,” he said.

He said his client is “blameless.”

The six employees’ case is In the Matter of Administrative Subpoenas issued by the West Virginia Office of Miners’ Health, Safety & Training, 10-P-22-H, Circuit Court, Raleigh County, West Virginia (Beckley).

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