LEONARD GRAY / L’Observateur / September 15, 1999

CONVENT – The federal hearings, which began last week on the July 5 Kaiser Aluminum plant explosion, hit a snag Monday when seven subpoenaed Kaiser management witnesses failed to appear.

However, federal court may yet compel those witnesses to testify, according to the investigatory panel’s chairman.

Originally, the hearings were expected to last at least two weeks, but now there is no definite end in sight. A final written report could take “sixweeks or six months,” according to the panel chairman Tony Oppegard.

The panel for the Mine Safety and Health Administration convened to hear witnesses from plant administrators, plant workers now on strike and replacement workers on duty at the time of the incident, and witnesses began testimony last Wednesday.

However, Kaiser administrators so far have failed to honor the subpoenas and two have filed for protective orders to keep them from appearing, Oppegard continued. MSHA, for its part, has filed in U.S. District Court tocompel them to appear.

“It slows down the process, but we’re going to continue,” Oppegard added.

“We’re under no deadline.”Three witnesses testified before the panel last Wednesday, including strikers and replacement workers. On Thursday, two more replacementworkers and a striker testified, those witnesses including Terrance Hays, a replacement worker now legally blind from a caustic splash.

There was no hearing on Friday and Monday’s hearing included four more Kaiser administrators, three of whom failed to appear. The fourthwitness, Timothy White, appeared but when told he could consult an attorney, conferred briefly with a Kaiser attorney in attendance during a 15-minute recess, then left the hearing.

With no witnesses, the Monday hearing adjourned.

Kaiser Aluminum and supervisor Terry Denova filed in the Fifth District U.S. District Court in New Orleans on Sept. 3 for a court shield againsttestifying or providing company documents or records. He was due totestify on the first day of hearings and failed to appear.

The argument was based on “the work product privilege and/or the self- critical analysis privilege.” This means, according to Fifth Circuit JudgeLance M. Africk’s findings issued Friday, that Kaiser wants to protecttheir attorneys in preparing cases without worrying that their work product will be somehow used against their clients.

Africk’s written opinion states: “However, it is readily apparent that many of the documents were generated because of safety, rather than litigation, issues.”Kaiser’s own documents further showed that the “primary purpose” of its system review was to evaluate safety as well as regulatory and legal implications.

Africk likewise rejected the self-critical analysis privilege and said that privilege is “largely undefined and courts have been reluctant to recognize or enforce the same.”Additionally, Africk’s written opinion continued: “Courts have refused the application of the self-critical analysis privilege, to the extent it exists, when documents have been sought by a government agency.”Africk continued: “Kaiser has an incentive to avoid lawsuits resulting from unsafe conditions and it does not want a reputation for having an unsafe plant. Nothing stated on the documents reviewed specificallyindicates that the documents were to remain confidential, although admittedly, this may have been expected.”Finally, Africk concluded: “Citizens have a compelling interest in knowing what steps Kaiser believes could be taken to improve the safety of the plant and protect the safety and well-being of the community. Kaiser’sincentive to continue such self-evaluation, especially with regard to safety concerns, is outweighed by the alleged harm that might result if the documents were not disclosed.”MSHA Assistant District Manager Lee Ratliff, serving on the panel, pointed out the purpose of the hearings is “to find out what happened so we can protect other miners.”Ratliff continued that Kaiser was lucky there were not a lot of fatalities in the July 5 explosion and stressed: “We’re mandated to find out what happened, and we will.”If federal safety violations are discovered, Kaiser could face fines of up to $55,000 per violation and, Ratliff affirmed, the hearings are not adversarial and not to determine Kaiser’s liabilities.

Meanwhile, strikers who have testified affirm that established safety procedures were in place. “You’ve got to know how to react in any type ofemergency,” Stanley Folse testified on the first day. Folse began workingfor Kaiser in August 1967, served on the Safety Committee since 1968 and the committee’s chairman since the mid-1970s. His job, until the Sept. 30,1998 walkout, was to train new hires in plant safety and provide refresher safety training.

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