The Times West Virginian

West Virginia

October 18, 2012

State mine widows bring fight to Supreme Court

CHARLESTON — Federal inspectors must share the blame — and therefore face a lawsuit — for a 2006 West Virginia coal mine fire that killed two miners, a lawyer for their widows argued at the state Supreme Court on Wednesday.

Lawyer Bruce Stanley cited how flammable shavings from a misaligned conveyor belt at Massey Energy’s Aracoma Alma No. 1 mine were allowed to build up into a four- to five-foot pile. MSHA inspectors had a duty to catch that and other safety failings at the Logan County mine before Don Israel Bragg and Ellery Elvis Hatfield died, Stanley argued.

“We had (MSHA) District 4 inspectors who obviously got too cuddly with the Massey folks, who were in repeated contact with these very miners over an extended course of time,” Stanley said. “It’s that course of conduct that allowed this mine to get in the shape that it did.”

A U.S. Justice Department attorney urged the justices to consider the criminal negligence guilty pleas from a Massey subsidiary and five mine supervisors. Massey and its subsidiary also agreed to pay $4.2 million in criminal fines and civil penalties.

“MSHA acknowledges that it could have done better here, it regrets what happened, its report goes through in detail all the things it can try to do better,” said Benjamin Kingsley, a lawyer in the department’s Civil Division. “But that doesn’t mean that we’ve taken the duty from the mine and the miners.”

The Supreme Court must decide whether a private inspection firm under the same circumstances could be found liable under state law. Under federal law, meeting that standard would allow widows Delorice Bragg and Freda Hatfield to pursue an appeal of their lawsuit against MSHA.

The U.S. 4th Circuit Court of Appeals has asked the state court to answer that question as it considers the appeal of the lawsuit’s dismissal by U.S. District Judge John Copenhaver Jr. The widows had previously settled in 2008 with the company for undisclosed terms.

Stanley argued Wednesday that MSHA’s inspectors allowed for the deplorable safety conditions later cited by the agency’s investigation of the fire.

“Clearly, the condition of the mine worsened as a result of the lack of overall inspection and attention to general mine policies,” Stanley said. “Nothing was ever done to make this mine safer in those last two years up until this fire.”

Kingsley cited federal court decisions and similar laws in other states that he said shield MSHA from the lawsuit. He also said prior rulings involving the aircraft industry and a landlord’s duty to tenants support MSHA’s stance that it did not have the special relationship required to satisfy the legal standard sought by the widows.

Ruling in favor of the widows would also allow Aracoma to sue the government, Kingsley warned.

“That to me is an insane proposition,” Kingsley told the justices.

Cabell Circuit Judge Paul T. Farrell heard the case in the place of Justice Brent Benjamin. A 2009 U.S. Supreme Court decision bars Benjamin from hearing any cases involving Massey after its then-chief executive, Don Blankenship, spent more than $3 million to help Benjamin win election in 2004. Massey has since been acquired by Virginia-based Alpha Natural Resources.

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