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At least six officials at Massey Energy have asserted their Fifth Amendment rights against self-incrimination as they declined to testify in a joint state and federal investigation into the deadly Upper Big Branch mine explosion in April.
The officials include Elizabeth Chamberlin, Massey's vice president for safety, and Gary May, a foreman who worked at the Upper Big Branch mine before the explosion.
Multiple witnesses who spoke with NPR named May as being involved in a February incident at Upper Big Branch in which a methane monitor was deliberately disabled.
The Fifth Amendment pleas are contained in letters that each of the six Massey officials filed with a West Virginia court. The letters were first obtained by the Charleston Gazette. NPR has confirmed their existence and content.
Chamberlin's letter accuses some investigators of abusing and bullying witnesses.
"Ms. Chamberlin is blameless in this terrible tragedy that occurred at Upper Big Branch Mine," Chamberlin's letter asserts. "We will not subject her to the perils of this extraordinary and hostile process."
The allegation that witnesses are abused is denied by Davitt McAteer, a former federal mine safety chief who leads an independent investigative team appointed by West Virginia Governor Joe Manchin.
"The primary driving force of this investigation is to learn what happened so we can prevent more disasters from occurring," McAteer tells NPR. Refusing to testify in the investigation "is a disservice to these 29 [deceased] miners and to finding out what went wrong."
The letters were sent by each individual Massey official and their company-provided attorneys. A spokesman for Massey Energy suggests the company is not involved in the decisions to withhold testimony.
"Certain officials have elected not to participate in an interview process they believe to be unfair," says Shane Harvey, Massey's Vice President and General Counsel. "However, this will not prevent the Company from fully investigating the incident and sharing its findings with the public at large."
All six letters question the integrity of the investigation, which is conducted jointly by the federal Mine Safety and Health Administration, the West Virginia Office of Miners Health, Safety and Training, and McAteer's team. The letters also say West Virginia investigators are improperly exploiting their subpoena power so that federal investigators without that authority can question witnesses who are forced to testify.
The subpoenaed Massey officials also cite the existence of a federal criminal probe and the sharing of interview transcripts with federal investigators as reasons to guard against self-incrimination.
Gazette reporter Ken Ward also obtained a witness interview schedule naming five additional Massey officials who were supposed to testify this month. The schedule includes Jason Whitehead, who is now Massey Vice President for Underground Operations, and Chris Blanchard, an executive at the Massey subsidiary that operates Upper Big Branch.
As NPR first reported, Blanchard and Whitehead spent four hours traveling nine miles underground immediately after the explosion. A Massey spokesman says they were trying to rescue miners but state and federal investigators have expressed concern about possible tampering with evidence.
NPR has independently confirmed the existence and content of the witness interview schedule. Blanchard and Whitehead were listed as witnesses Wednesday (October 27), but sources familiar with the investigation say neither testified.
In a statement, federal mine safety chief Joe Main said, "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 5th amendment constitutional right against self-incrimination."
MSHA also said late Friday that approximately 15 upper level management officials at Massey Energy have exercised their right not to testify. The agency added it intends to use its subpoena power when it holds public hearings into the Upper Big Branch disaster. No hearing dates have been announced.
About 250 witnesses have testified, according to sources, including many rank and file Massey workers. MSHA confirmed Friday that 247 witnesses have testified so far.
A federal grand jury has also taken testimony as federal prosecutors consider possible criminal charges.