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Massey officers invoke the Fifth in UBB mine disaster inquiry

CHARLESTON, W.Va. -- Massey Energy's top safety officer and at least five other company officials have refused to answer questions from government investigators who are trying to determine the cause of the worst U.S. coal-mining disaster in 40 years.

Elizabeth Chamberlin, Massey's vice president for safety, and the other five officials invoked their Fifth Amendment rights and will not appear for interviews with state and federal investigators, according to documents obtained under the West Virginia Freedom of Information Act.

Attorneys for the Massey officials formalized their plans in letters submitted between Oct. 6 and Oct. 20 to the state Office of Miners Health, Safety and Training.

The other officials who have declined to testify were Jamie Ferguson, vice president of Massey subsidiary Performance Coal; Wayne Persinger, a general manager at Upper Big Branch; Rick Nicolau, a maintenance chief at the mine; and mine foremen Rick Foster and Gary May.

Lawyers for all six officials said in letters to the state that their clients have done nothing wrong, but do not believe the investigation interviews are being conducted properly.

A deal between Massey officials and the Manchin administration allowed company employees to invoke their Fifth Amendment rights by letter, instead of being compelled by subpoena to appear for interviews and do so in person.

An interview schedule obtained by the Gazette indicates that at least five additional Massey officials have invoked their Fifth Amendment rights, but so far state regulators have refused to release the letters in which they formally confirmed that decision.

The refusal of Massey management personnel to answer questions could be another stumbling block in the government's investigation of the April 5 explosion that killed 29 miners in the Raleigh County mine.

The development also further fuels the ongoing Massey campaign to discredit the U.S. Mine Safety and Health Administration, and adds the independent investigation team appointed by Gov. Joe Manchin to those Massey officials say are acting improperly in the disaster inquiry.

Chamberlin's letter to the state, for example, alleges that MSHA is using its investigation to "divert attention and blame from itself and onto others" and charges that members of Manchin's independent team have "bullied and abused" some witnesses.

Philip Inglima, Chamberlin's lawyer, declined in a brief phone interview Thursday to provide any examples of bullying or abuse by the independent team, and longtime mine safety advocate Davitt McAteer, appointed by Manchin to lead that team, flatly denied the allegation.

"We have been respectful of all of the people who have come before us," McAteer said. "There are some things that are difficult, because we have lost 29 individuals. It's unfortunate that we are in this circumstance, but we're trying to get to the truth."

Joe Main, assistant Labor secretary for mine safety and health, did not respond directly to the criticism of his agency or its investigation, but issued a short statement pledging to get to the bottom of the disaster.

"MSHA is confident that the government will find the cause of this horrible accident, whether or not certain Massey witnesses refuse to talk by invoking their Fifth Amendment constitutional right against self-incrimination," Main said.

Last month, Chamberlin and the six other officials went to court in Raleigh County to block subpoenas issued by state mine safety director Ron Wooten that would compel their appearance for investigative interviews.

MSHA, the state mine safety office and McAteer's independent team are investigating the disaster, and have been taking part in closed-door witness interviews held at MSHA's training facility near Beckley.

Subpoenas for Massey management personnel were being issued under the authority of the state mine safety office. MSHA does not have subpoena power unless it investigates through a public hearing, and agency officials so far have declined to use that format for witness interviews.

Additionally, federal prosecutors are conducting a criminal investigation, looking into the explosion and examining hundreds of violations that occurred at Upper Big Branch up to four years ago.

James Cagle, a lawyer for Persinger, complained that criminal investigators were being given copies of the civil investigation interviews, which "requires that attorneys must make decisions which are in the best legal interests of their clients" regarding whether to testify.

Nick Preservati, a lawyer for Ferguson, argued that MSHA and the McAteer team do not have legal authority to compel testimony in private interviews.

"It is particularly improper to allow MSHA to participate in the interview in light of its conflict of interest," Preservati said. "MSHA cannot be trusted to play a neutral or objective role in any review of this matter, because it is an interested party in the investigation and has repeatedly prevented discovery regarding its possible role in the accident."

Shane Harvey, Massey's general counsel, said Massey encourages employees to cooperate with government inspectors and investigators, but understands that some employees were advised by their lawyers not to give interviews in the Upper Big Branch investigation. Harvey said Massey is paying for its employees' lawyers, but that "their representation is totally independent."

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


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