In its announcement on Friday, the agency did say that it would hold two public hearings, two public forums and a public comment period as part of its overall federal investigation, in hopes of encouraging “transparency”

“This approach is being driven by a commitment to learn what caused the explosion that claimed 29 miners’ lives, a commitment to transparency and openness, and a commitment to ensure that MSHA’s investigation does not impede any potential or ongoing criminal investigations into the blast,” assistant secretary of labor for mine safety and health Joseph Main said.

The public hearings will provide an opportunity for miners, contractors, mine officials and other parties to testify regarding any knowledge they have of the mine’s workings. If necessary, Main said MSHA would utilize its subpoena power.

A public hearing would also examine the technical issues surrounding the theories about the cause of the UBB blast. Included would be a presentation by MSHA investigators as well as third-party testimonies to test theories.

MSHA said the public forum would be an opportunity for the victims’ families to express their thoughts about the explosion, response, investigation and any potential mine safety and health law reforms. It is also planning a town hall meeting to promote the exchange of ideas on developing safety cultures at operations as well as recommendations for future mine safety improvements.

Finally, the federal agency is organizing a public comment period that will permit any interested individuals to offer comments and have that input considered during the investigation period.

“At all times, however, MSHA will take steps to ensure that its activities do not risk interfering with any potential or ongoing criminal investigation and may have to adjust its proceedings accordingly,” Main said.

Secretary of labor Hilda Solis said: “I am confident that from the wide range of public meetings and internal and independent investigations, we will learn what happened at the Upper Big Branch mine so that we can prevent another such tragedy from occurring.”

To prepare for the public portions of the investigation, MSHA will work privately with the state of West Virginia to physically examine the mine and conduct private interviews of miners, officials, and other individuals with knowledge of the explosion.

“The contents of these investigative interviews will be made public at the conclusion of the interview process, unless an interviewee requests confidentiality or it would otherwise jeopardize a potential criminal investigation,” federal officials said.

“In addition, MSHA has established a confidential hotline to allow those with information relevant to the investigation to provide it to investigators.”

Industry responds

MSHA’s decision to keep the initial portions of the UBB blast investigation closed was met with disappointment and anger from across the industry, beginning with UBB mine owner Massey Energy.

“MSHA is choosing to repeat past mistakes of coal mine investigations by refusing due process and failing to build the public’s confidence that the hearings will be fair and develop a complete and balanced public record,” a spokesperson said.

West Virginian governor Joe Manchin said that he appreciated MSHA opening a large portion of the process to the public via hearings, forums and a comment period, but had other reservations.

“I wished that MSHA would have completely opened the overall investigation and that our state officials would have had more involvement in MSHA’s UBB investigation decision yesterday,” he said.

Manchin had not spoken directly with federal officials since the decision was made, but did have discussions with individuals that possessed knowledge of the process in hope of “trying to understand their decision-making and thought process”

“These individuals suggested that MSHA might have concluded that a closed interview process was the best way to achieve an open dialogue, collect the most accurate information and move this investigation as expediently as possible,” he said.

“I hope that as MSHA goes through this process, if they sense that they are not getting the most accurate information as quickly as possible then I urge them to stop the process and immediately open the entire investigation.”

The nation’s largest industry union, the United Mine Workers of America, responded Friday afternoon that it was “extremely disappointed” with the closure of the investigation’s initial stages, and said it would file a legal challenge.

"[It is] extremely disappointing and contrary to the goal of getting all the evidence possible in this investigation," UMWA president Cecil Roberts said.

He pointed out that the decision meant MSHA would not have the power to subpoena witnesses to appear in any of the closed interviews.

"Some would want us to believe that the process of this investigation will be completely open and public," Roberts said.

"And although there will be some level of public participation in this investigation that we haven't seen before, this will not be the open, transparent process we and others called for.”

The UMWA said that people “from all sides of this issue” wanted a fully and completely open investigation, from the families to the union to the media – and even mine owner Massey Energy.

“The only people who don't want this to be completely open are the government agencies, and that, frankly, continues a bad practice that we expected would change under this administration," Roberts said.

He did say that he had confidence MSHA and federal officials wanted to determine the blast’s cause and identify responsible parties.

"We represent the people who will have to go back to work in that mine when this investigation is over," Roberts said.

"They have a right to know all the information possible about what happened and who was responsible. The interview process is the first and most critical step in finding that out, but the workers are effectively going to be frozen out of that.”

It is this step that the union feels is wrong, and contrary to Congress’s intent in passing the Mine Safety and Health Act some four decades ago.

“I have directed our legal department to file a challenge to MSHA's plan for closing the interview phase of this investigation … [which] will be filed very soon,” Roberts announced.

"This is not an action we wanted to take … but have been left with little choice. If we are to fully serve those who have designated us to be their representative in this investigation, then we must hold to our demand to be included in all parts of the investigation … [and] do whatever we can to ensure that all the facts are known.”