Updated: 1:53 PM- WASHINGTON - The U.S. Attorney for Utah says he will review a congressional request for a criminal investigation into whether the Crandall Canyon mine general manager "willfully misled" federal officials.
A spokeswoman for Brett Tolman, the state's top federal law enforcement official, says he takes the request "very seriously" and will review the materials submitted by House Education and Labor Committee Chairman George Miller.
"As with other referrals that come to our office, we will carefully screen the material provided to us, work with agents to conduct further investigation as needed, and consider whether criminal charges are appropriate based on evidence in the case," Melodie Rydalch said in a statement.
Rydalch also said Tolman is "aware" of a previous request for a general criminal probe of the Crandall Canyon tragedy by Sen. Edward M. Kennedy, D-Mass.
On Thursday, Miller asked the Justice Department to review whether charges are warranted against Laine Adair, who headed the Crandall Canyon mine for Genwal Resources, which operated the mine for Murray Energy. Six miners were trapped - and ultimately entombed - in the Crandall Canyon mine after a collapse on Aug. 6, and three would-be rescuers were killed and six others injured 10 days later in a second cave in.
In his letter, dated April 28, Miller said prosecutors should probe whether Adair "individually or in conspiracy with others, willfully concealed or covered up" or made "false representations" to federal officials about the conditions in the mine, a violation of federal law.
Adair's attorney, Gregory L. Poe, said in a statement that Adair finds the call for a criminal investigation "deeply disappointing and utterly unjustified."
"Mr. Adair has earned an impeccable reputation through decades of service in the Utah mining industry," Poe said. "The facts will show that Mr. Adair's conduct was entirely proper. We are confident that the Justice Department will agree that a prosecution is wholly unwarranted."
Adair, along with mine co-owner Bob Murray and three other officials from Murray Energy or its subsidiaries declined to be deposed by committee investigators, asserting their constitutional right against self-incrimination, the report says.
The president and a former principal of Agapito Associates, the engineering firm that advised Murray Energy on the mine plan, also were subpoenaed to testify but invoked their Fifth Amendment right as well, according to the report.
Miller's memorandum to fellow committee members, issued at a Washington news conference, says that mine officials did not properly notify federal authorities about a March collapse, called a bump, and that Adair may have "significantly downplayed" the extent of the damage. The March bump occurred some 900 feet from where the August collapse would trap the miners some 1,900 feet deep in the mountain in rural Utah.
"Adair and others at Genwal may have purposefully misled MSHA about the severity of the March bump fearing MSHA would close the mine, and [they] continued to adhere to the mischaracterization after the August incidents in an effort to downplay the foreseeability of the August incident," Miller's report says.
Kevin Anderson, legal counsel for Genwal, blasted Miller for "his zeal to create a political sensation before the completion of the official investigation" by MSHA.
Anderson said Miller's claims were "unfounded conclusions [meant to] concoct a criminal referral."
Anderson further dismissed Miller's "reckless allegations" as mere "political grandstanding" that would be rejected by any "impartial investigator."
"Laine Adair is an honest and plain-speaking man whose integrity and professionalism are well-established in the Utah mining community where he has worked for over 30 years," Anderson said. "Genwal Resources stands behind Mr. Adair."
An independent engineering consultant hired by the House committee chairman says the mining plan submitted by Murray Energy subsidiary UtahAmerican Energy would have been successful if the pillars in the area were in pristine condition. However, the analysis shows it was "unlikely" the pillars were strong enough to hold up the ceiling, and notes from the Bureau of Land Management indicated deterioration in the pillars as far back as 2004.
"The conclusion I have come to, therefore, is that UtahAmerican Energy should never have submitted its retreat mining plan for the South Barrier in the first place," Miller told reporters. "More importantly, [MSHA] should never have approved the plan."
Ed Havas, an attorney who represents the families of all six of the trapped miners and most of the killed or injured rescuers, said Miller's findings echo what Havas alleged in his lawsuit against Murray Energy.
"There were lots and lots of red flags and signals of what was going on should not have been happening in August," Havas said. "It compounds the tragedy to see how foreseeable and how completely avoidable it was to have this happen."
The House chairman's review is the third scathing report about the operations at the Crandall Canyon Mine. The Senate Health, Education, Labor and Pensions Committee also called for a criminal probe and the Labor Department's independent Inspector General said the Mine Safety and Health Administration was negligent in its responsibility to oversee safety of miners there.
Investigators for the House Education and Labor Committee said they reviewed some 400,000 pages of documents, some obtained under subpoena. While the report does take MSHA to task for approving the plan, it largely avoids blaming the agency for the tragedy.
Patrick Findley, an investigator for the committee, said the report by the engineering consultant hired by the panel, Norwest Corp. of Salt Lake City, was "highly critical of MSHA."
MSHA spokesman Matthew Faraci said the agency's own accident investigation team will determine the root causes of the disaster. "Until this report is released, it would be premature and speculative to comment on Congressman Miller's review," Faraci said.
Adair has played a minor role in the public story of the mine tragedy, while Bob Murray, who initially held news conferences after the disaster, was the public face of the mine operation. But Miller said his request for a criminal probe of Adair was because he was the primary contact between the mine and MSHA officials.
Miller quickly added that his letter to the Justice Department included the question of whether there was a "conspiracy" between Adair and others to mislead MSHA.
"How much higher up it may have gone, we don't know," Findley said.
Thursday's report was issued as a memorandum and the probe did not have the support of all committee members.
The panel's ranking Republican, Rep. Howard P. McKeon, said Miller's report offers "little in the way of new information" to the families of the Crandall Canyon victims, and that while Congress has an oversight duty, it should ensure its probes don't hamper those by "proper authorities."
"When Congress seeks to exercise investigatory power in the immediate aftermath of an accident, even before official investigations are complete, it raises serious questions," said McKeon, of California. "That's why I have urged caution at every turn - recognizing that even one misstep by Congress could inadvertently jeopardize our ability to uncover the truth or properly assign responsibility."