Referring repeatedly to Mine Safety and Health Administration's inquiry as a "law enforcement investigation," the department said it had "grave concerns" about a request from the commission that it be allowed to participate in the investigation.
Permitting the commission access to information it gathers "may inherently compromise the integrity of the investigation and potentially jeopardize MSHA's ability to enforce the law," Labor Department Solicitor Jonathan Snare wrote to commission Chairman Scott Matheson Jr.
The department also said it would be inappropriate for the commission to have access to the investigative information because David Litvin, president of the Utah Mining Association, is a member of the state commission. The trade association's membership includes UtahAmerican Energy Inc., the operator of the mine.
Matheson had not seen the letter Wednesday and could not respond.
The MSHA investigative team for Crandall Canyon was announced Aug. 30, and work is already well under way. Investigators have had access to documents relating to the mine and have interviewed the mine's owner, management, miners and MSHA employees, according to the department's letter.
Separately, Snare wrote to The Tribune's attorney, Michael O'Brien, that it "cannot acquiesce" to the paper's request to be present for witness interviews.
Premature public access to testimony and documents, Snare wrote, could influence testimony, lead to witness intimidation, damage reputations of innocent parties, and alert potential civil and criminal violators they are under investigation. It also could lead to confusion for the families of the miners.
The Tribune had asked to be allowed to observe the interviews, based on a federal court ruling stemming from the 1984 Wilberg mine disaster. The ruling held that the MSHA investigation should be open to the public. However, the interviews were completed by the time of the ruling, and an appeals court vacated the order. Transcripts of the interviews, however, were released shortly thereafter.
That was different, Snare wrote, because mine representatives, union representatives and others were also permitted to attend those interviews.
Tribune editor Nancy Conway said the paper is considering its next step, which could be a lawsuit.
"This was a public disaster. It's important to understand how it happened, why it happened, so it doesn't happen again," she said. "We clearly see these as proceedings that should be open to the public."
A Labor Department spokesman said such press participation would be unusual and counter-productive.
"Reporters do not sit in crime labs or prosecutors' offices, so why would the attorneys for The Salt Lake Tribune think this case is any different as an ongoing investigation?" said spokesman David James.
Tony Oppegard, a former MSHA official and Kentucky mining regulator, said the Labor Department letter is curious in that it repeatedly refers to the Crandall Canyon investigation as a law enforcement matter, which is not how MSHA has typically approached accident investigations.
"How can it be a valid law enforcement investigation if the witnesses are all there voluntarily, can terminate the interviews at any time, and can refuse to answer any question?" he says. "It's ludicrous. That's not how a law enforcement investigation would be conducted."
But he agreed that allowing a trade association representative to have access to the investigative information would be problematic.
