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4th Circuit rejects further delay in Aracoma fire case

CHARLESTON, W.Va. -- A federal appeals court on Tuesday rejected a government effort to further delay consideration of a lawsuit against the U.S. Department of Labor over lax enforcement of mine safety laws at a Massey Energy operation where two miners died in a 2006 fire.

The 4th U.S. Circuit Court of Appeals turned down a Department of Justice motion to allow further legal briefing on the meaning of a state Supreme Court ruling that paved the way to reopening the case brought by Delorice Bragg and Freda Hatfield.

A three-judge panel ruled that the state court's decision made it clear that U.S. District Judge John T. Copenhaver Jr. was wrong to dismiss the case against the federal Mine Safety and Health Administration.

In a 5-0 ruling issued in February, the state justices had said West Virginia law holds a private party conducting mine inspections liable for the wrongful death of a miner resulting from that private party's negligent inspection. Under the law, that finding allows Bragg and Hatfield to pursue their case against MSHA if they can prove the federal agency's negligence played a role in their husbands' deaths.

Continuation of the Bragg-Hatfield suit could allow their lawyer, Pittsburgh attorney Bruce Stanley, to subpoena MSHA records and interview agency officials about the fire. Questions about MSHA's enforcement practices at Aracoma -- which the agency has already admitted were seriously flawed -- could also reveal more information about what led to the deaths of 29 miners at Massey Energy's Upper Big Branch Mine in an April 2010 explosion.

During oral argument last October, Stanley told the state Supreme Court that MSHA inspectors had become "too cuddly" with Massey officials and may have "looked the other way" when they found safety violations at Aracoma.

The Aracoma case stems from the Jan. 19, 2006, fire at Massey Energy's Aracoma Alma No. 1 Mine in Logan County. A crew of workers trying to evacuate the underground tunnels ran into thick black smoke in their primary escape tunnel, and was forced to try to find another way out. Two workers, Don Bragg and Ellery Hatfield, became separated from the group, got lost, and eventually succumbed to the smoke.

While MSHA cited a variety of serious violations that led to the deaths -- and Massey subsidiary Aracoma Coal Co. pleaded guilty to criminal violations -- an agency "internal review" report also documented major lapses by MSHA officials.

Among other things, the internal review concluded MSHA officials did not identify serious violations or require them to be fixed. The review also raised questions about "conflicts of interest" among MSHA officials charged with enforcing safety requirements at Massey operations.

"The team members are unaware of a similar situation in which health and safety hazards were so prevalent, and conditions in the mine so deplorable, yet MSHA personnel at so many levels failed to follow established agency policies and procedures which are designed to provide that coal mines be fully and effectively inspected," said the MSHA internal review, release in June 2007.

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

The 4th Circuit panel consisted of Judges G. Steven Agee, Andrew M. Davis and James A. Wynn Jr. Agee was appointed by President George W. Bush and Wynn by President Obama. Davis was appointed to a federal district court by President Bill Clinton and to the 4th Circuit by Obama.

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


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