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Court hears Aracoma widows' case against MSHA

CHARLESTON, W.Va. -- The two widows from Massey Energy's Aracoma Mine fire asked the state Supreme Court on Wednesday to pave the way for their lawsuit against the federal agency charged with enforcing coal-mine safety rules.

"If a coal miner can't rely on a mine inspector to keep a mine safe, who can they rely on?" asked Bruce Stanley, a lawyer for Delorice Bragg and Freda Hatfield, whose husbands died in the 2006 fire at the Logan County mine.

Stanley wants justices to rule that a private party conducting mine inspections is liable for the wrongful death of a miner resulting from that private party's negligent inspection.

Such a ruling would allow Bragg and Hatfield to pursue their lawsuit against the U.S. Mine Safety and Health Administration, which has publicly conceded major lapses in inspections at Aracoma and of enforcement of safety standards meant to protect miners.

"If I turn a blind eye, I invite a disaster," Stanley told justices during oral arguments Wednesday morning. "[MSHA] did wrong here, and they know they did wrong."

Benjamin Kingsley, a lawyer for MSHA, admitted mistakes by agency inspectors, but said a ruling in the widows' favor could open up a variety of government agencies to suits when inspections and enforcements don't prevent problems.

"MSHA wants to do better," Kingsley said. "There's no need to impose liability here. MSHA wants to do its inspections. That's its job."

The case stems from the Jan. 19, 2006, fire at Aracoma, when a crew of workers ran into thick black smoke in their primary escape tunnel and had to try to find another way our of the mine. Two workers, Don Bragg and Ellery Hatfield, became separated from the group, got lost, and eventually succumbed to the smoke.

Massey's Aracoma Coal Co. subsidiary and five foremen pleaded guilty to criminal charges from the fire, but then-U.S. Attorney Chuck Miller did not seek to prosecute Massey or Massey officers.

While MSHA cited a variety of serious safety violations that led to the deaths, an agency "internal review" report also documented major lapses by agency officials.

Citing MSHA's failures, the Bragg and Hatfield families sued MSHA under the Federal Tort Claims Act, alleging federal officials were partly responsible for the deaths.

In February 2011, U.S. District Judge John T. Copenhaver threw out the case, concluding that it wasn't allowed because under West Virginia law a private person in circumstances similar to MSHA's would not have been liable. Under the FTCA, the federal government is liable in the same manner, and to the same extent, as private individuals would be in similar situations.

Then, in July, the 4th Circuit said it found "no clear controlling West Virginia precedent" on the issue, and asked the state Supreme Court to consider the matter.

State Supreme Court Justice Brent Benjamin recused himself from the case. Cabell Circuit Judge Paul T. Farrell replaced him.

Farrell and Chief Justice Menis Ketchum pressed Stanley about whether MSHA had made conditions worse at Aracoma, and Justice Thomas E. McHugh questioned whether a ruling in the widows' favor would open up other agencies to lawsuits.

Stanley said that conditions at Aracoma at the time of the fire were "deplorable" and had worsened over time as MSHA did not perform adequate inspections or force the company to fix violations. Stanley also urged justices to focus on the narrow issue raised by the 4th Circuit: Whether a private party in the same position as MSHA would be liable in a similar case.

If the suit is eventually allowed to move forward, the legal investigation involved could also reveal more information about serious MSHA problems related to the fire and to the deaths of 29 miners at Massey's Upper Big Branch Mine in an April 2010 explosion.

Stanley told the justices that MSHA inspectors "got too cuddly" with Massey officials and may have "looked the other way" when they found safety violations at the Aracoma operation.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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