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 kw...@wvgazette.com or 304-348-1702.