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Temporary Restraining Order Sought to Stop Upper Big Branch Closed-Door Interviews

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The United Mine Workers and two families who lost family members in the Upper Big Branch Mine disaster have asked the U.S. District Court of the Southern District of West Virginia at Charleston for a temporary restraining order to stop MSHA's witness interviews.

"We sincerely wish we did not have to take this action," UMWA International President Cecil E. Roberts said. "But we have been left with no choice. We believe it is imperative for the families of the victims of this tragedy to be able to hear the evidence that will be gathered in these interviews for themselves," Roberts said. "We also believe that the workers -- who will have to go back to work in that mine -- must be allowed to have their designated representative in the interviews, asking questions and hearing testimony firsthand. The only way that can be accomplished is by MSHA holding an open and transparent investigation," Roberts said.

Massey Coal Co., as well as the Charleston Gazette, Mine Safety and Health News, Reporter's Committee for Freedom of the Press, American Society of News Editors, Capitol Reporters and Editors, Radio Television Digital News Assn., National Newspaper Assn., the Society of Environmental Journalists and the Society of Professional Journalists have all called on MSHA for a public hearing under 103(b) of the Federal Mine Safety and Health Act.

Mine Safety and Health News called for a UBB hearing to be structured like the Gramercy Plant explosion hearing, which was open to the press and public.

That hearing involved the July 5, 1999 plant explosion at Kaiser Aluminum's Gramercy Works in Louisiana. During the hearing, the public was permitted to submit questions. All questions were part of the public record. In addition, MSHA made available its book of exhibits used to question the witnesses.

The guidelines for that public hearing are below.

Gramercy Works Alumina Plant Explosion
PROCEDURAL GUIDELINES FOR KAISER PUBLIC HEARING 1.

(Footnote 1: 1.Procedural guidelines numbered 1, 6, 7 and 9 are promulgated pursuant to an Order of U.S. District Court Judge Carl Barbier and are in effect for the duration of his Order during the conduct of the hearing.)

  1. All witnesses shall be given at least fourteen days advance notice of the date and time of their appearance at the hearing. Once notice has been given, rescheduling for a later date or a mutually agreed upon earlier date may be necessary.
  2. The names of testifying witnesses will not be released prior to the time of their testimony.
  3. Witnesses are entitled to be represented by an attorney or other representative with whom they may consult or confer during their testimony.
  4. Counsel for a testifying witness may raise any recognized and applicable legal privilege on behalf of the witness during the course of the questioning.
  5. Counsel for witnesses are not entitled to ask questions of the witnesses during the hearing or to raise objections to questions, other than to assert a privilege.
  6. MSHA will provide each witness who is called to testify a list of the questions that it plans to ask him or her or a brief synopsis of the specific areas of testimony that will be covered. During questioning of the witness, however, MSHA will not be limited to matters contained within the list of questions or the synopsis.
  7. If a witness believes that his or her answer to any of the questions or areas of questioning supplied by MSHA may incriminate him or her, he or she may claim the privilege against self-incrimination and refuse to answer the question he or she believes to require an answer that could be incriminating. The claim of privilege must be made in writing for each question or area of testimony that the witness believes to require an answer that could be incriminating. In addition, the witness should prepare a written response to all questions for which the responses are non-privileged. Witnesses will have at least two business days to respond to MSHA's questions or synopsis.
  8. The witness' written assertion of the privilege against self incrimination will be made part of the official record of the investigation.
  9. Once MSHA has received notice that a witness intends to claim the privilege against self incrimination in accordance with paragraph 7 above, MSHA may: end the inquiry with respect to that witness; call the witness to testify about the areas as to which no privilege has been asserted; arrange with the Department of Justice to offer the witness immunity to testify; or seek an order from the U.S. District Court to compel the witness' testimony, if MSHA believes that the privilege has not been properly invoked.
  10. Witnesses may claim the privilege against self incrimination with regard to any question asked during the hearing, even if the claim was not previously raised in writing.
  11. Witnesses who testify may offer written statements to be filed into the official record of the investigation.
  12. Normally privilege assertions will only be made by the attorney representing the testifying witness. MSHA does not expect that attorneys who are not the representative of the testifying witness will have a need to assert privileges. However, if an attorney has a valid privilege objection pertaining to his or her client which is not addressed by the witness or his or her counsel, the attorney may assert the privilege. If an attorney persists in interrupting the proceedings with privilege assertions on matters which have already been ruled upon, or if an attorney asserts privileges frivolously or in a disruptive fashion, MSHA will require that privilege assertions by anyone other than the testifying witness or his or her counsel be made in writing only.
  13. MSHA's book of exhibits which is used to question the witnesses will be available for review by witnesses, counsel for witnesses, and members of the public at the St. James Parish Courthouse, Council Chambers, 2nd Floor, Convent, Louisiana during the hours that the hearing is taking place. To make arrangements to review the exhibit book call (703)235-1565.
  14. Witnesses may not attend the public hearing until after their testimony is concluded. On the day of their testimony witnesses will be required to wait in a separate witness room until they are called to testify. The only persons who will be allowed to enter the witness room are the witnesses, the witnesses' counsel and family members, and MSHA officials. Once the witness' testimony has been concluded and he or she has been excused, he or she may attend the hearing as a member of the audience if he or she wishes to do so.
  15. Witnesses should not discuss their testimony with any of the other witnesses.
  16. Public observers may suggest questions for the MSHA panel to pose to the witnesses. Suggested questions should be written down and submitted to the panel. A file will be kept of all questions that are submitted by the public, whether they have been asked or not.
  17. Public observers, attorneys, and members of the press may not disrupt or interfere in any way with the hearing proceedings. Anyone who violates this rule may be removed from the hearing room and barred from reentry for the remainder of the hearing.
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