While MSHA cited a variety of serious violations that led to the deaths - and Massey subsidiary Aracoma Coal Co. pledged 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. A suit against Massey was settled, with the terms being kept confidential.
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 held 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 2012, the 4th U.S. Circuit Court of Appeals said it found "no clear controlling West Virginia precedent" on the issue, and asked the state Supreme Court to consider the matter.
In a 24-page ruling, Davis disagreed with federal government lawyers, who argued that, to continue their case, Bragg and Hatfield would have to prove that third-party inspectors - whether private or governmental - had "unreasonably created or increased the risk of injury to their decedent husbands."
Davis wrote that, "a safety inspector owes a duty of care to the employees whose safety the inspection is intended to secure. That is to say, that it is foreseeable that harm is likely to come to such employees if a safety inspection is negligently performed."
Justice Brent Benjamin, whose campaign for the court in 2004 was aided by independent expenditures by then-Massey CEO Don Blankenship, recused himself from the case. Cabell Circuit Judge Paul T. Farrell replaced him.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.