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State makes deal to resolve Massey subpoenas

CHARLESTON, W.Va. -- State investigators have reached a deal to resolve litigation filed by a half-dozen Massey Energy officials who sued to block subpoenas that would have forced them to appear for questioning about the Upper Big Branch Mine Disaster.

Under the deal, Massey officials who choose to invoke their Fifth Amendment rights would be able to do so in writing and would not have to appear for interviews and invoke that right in person.

Lawyers for the West Virginia Office of Miners Health, Safety and Training released a copy of a two-page "Case Resolution Statement," in response to a public records request filed by The Charleston Gazette.

Tom Smith, a managing deputy attorney general, said in the statement that the agency's goal was "getting the interviews back on track as quickly as possible." Smith said agency officials also determined "that it was a waste of resources to subpoena witnesses and set aside time for them to appear when they were going to assert anyway."

Nearly a month ago, interviews into the worst coal-mining disaster in 40 years ground to a halt when investigators began to move from questioning mostly hourly workers to interviewing corporate agents and top mine managers.

Six Massey officials - including corporate vice president for safety Elizabeth Chamberlin - filed a motion in Raleigh Circuit Court on Sept. 22 to try to block subpoenas to compel their appearance at interviews conducted by the state and by the U.S. Mine Safety and Health Administration. Lawyers for the six officials alleged legal defects, such as inadequate notice, with the subpoenas.

The six company officials also said they do not trust MSHA, and alleged the state did not have legal authority to allow MSHA to take part in the interviews. Massey has been conducting a high-profile public relations and legal campaign critical of MSHA and the agency's Upper Big Branch investigation.

Under state law, West Virginia regulators can compel witnesses to appear for questioning about mining accidents regardless of whether interviews are conducted in public or private, but federal law gives MSHA authority to subpoena witnesses only if the agency investigates through a public hearing, something the Obama administration has refused to do.

MSHA is leading the civil investigation of the explosion, and the disaster also is the subject of another federal criminal investigation.

The state's settlement document lists four lawyers whose clients have indicated they would take advantage of the arrangement. Those lawyers represent Massey officials Jamie Ferguson, Wayne Persinger, Gary May and Rick Foster.

Interviews with Chamberlin and the other Massey official who challenged a subpoena, Rick Nicolau, were scheduled for this week, but also have been canceled, according to records obtained by the Gazette. Interviews with five other Massey officials, including corporate vice presidents Chris Adkins and Jason Whitehead, have been canceled, as well, those records show.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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