By Ken Ward Jr., cross-posted from Coal Tattoo
Sometime this morning, investigators from state and federal agencies are expected to gather at the Mine Safety and Health Academy outside Beckley to begin planning their probe of the explosion one week ago that killed 29 coal miners at a Massey Energy mine in Raleigh County, W.Va.
Investigators will start examining maps and mine files. They’ll divvy up tasks and chart a course for how to get started on a massive and enormously complex investigation that could take many months.
But there are a few things they won’t do …
They won’t be open to the public … Almost certainly, the investigative interviews will occur behind closed doors. Members of the press and the public will be shut out from this terribly important government task. Despite the efforts of the Salt Lake Tribune, which has sued unsuccessfully in federal court previously to try to open such proceedings, the U.S. Mine Safety and Health Administration has staunchly insisted on secrecy in these proceedings.
Why not Web cast the interviews? Why not quickly make transcripts available publicly on the Internet. And why not hold periodic press briefings where detailed information about what has been found so far is made public?
All of the secrecy might make sense, if MSHA and state officials didn’t almost always allow coal company lawyers to sit in on the interviews. The only good argument for secrecy in these interviews is that allowing openness tips off the company to the direction investigators are headed, allowing them to thwart things like potential criminal prosecution down the road.
But if the company lawyers are in the room, well, what’s the point of the secrecy?
And how do the government lawyers get in the room? Well, miners who are being interviewed are allowed to be accompanied by a personal representative. And coal companies have gotten very good over the years at convincing miners and mine foremen to appoint company lawyers as their personal representatives. This happens despite the fact that — as happened in one case I covered involving Massey — investigators end up trying to get miners or foremen to testify against the company, putting the lawyer in a bit of a tough spot … Who is their client? The miner? The company? What if the interests of the two conflict?
One way around that is for MSHA to invoke its authority under federal law to conduct the investigation through a public hearing. In addition to cutting out this issue with the lawyers — and having the positive benefit of being open and transparent — this route has the advantage of giving MSHA something it doesn’t otherwise have: Subpoena power to get documents and force witnesses to come and testify (or at least show up and take the 5th).
But MSHA has seldom ever used this authority. Gov. Joe Manchin ordered public hearings — though in a different format than MSHA could under federal law — into the Sago Mine Disaster. But Manchin has backed off his initial promise for hearings into Upper Big Branch, and isn’t expected to announce his firm plans for the state’s investigation until later this week.
The other thing that it’s not entirely clear that this investigation will do in any meaningful way is involve the families of the miners who died. That did happen during the Sago hearings. We’ll have to wait and see what — if anything — MSHA and the state do in that regard this time.
Finally, will there be a standard “internal review” — in which MSHA employees investigate each other — or will there be a true independent examination of whether government officials did all they could to avoid a disaster like this?
I put that question to Secretary of Labor Hilda Solis, and her response in an e-mail message to me was:
That has not yet been decided. When it has, I will announce it immediately and explain why we made the decision we made.
It’s worth noting that the S-MINER Act, which stalled in Congress, included a provision for independent investigations, and required MSHA to cooperate with them.
President Barack Obama has promised to get answers to what caused this mine disaster, and his administration has made a very big deal about its commitment to transparency. Stay tuned …