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MSHA case sent to W.Va. Supreme Court

CHARLESTON, W.Va. -- A federal appeals court has asked West Virginia's Supreme Court to decide a key issue in a case in which widows of the 2006 Aracoma Mine fire are suing the U.S. Mine Safety and Health Administration.

On Tuesday, the 4th U.S. Circuit Court of Appeals asked state justices to determine if such lawsuits are generally allowed under West Virginia law.

In an unsigned, 11-page order, the 4th Circuit asked the state court to decide a key legal issue by answering a "certified question," or a formal request from one court to another.

"We find no clear controlling West Virginia precedent to guide our decision," the 4th Circuit said. "The question presented is a pure question of state law, which has not been squarely addressed by the West Virginia Supreme Court of Appeals."

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 deaths of 29 miners at Massey's Upper Big Branch Mine in an explosion four years after the Aracoma fire.

"The widows are very grateful to have the opportunity to argue such an important public policy question to the West Virginia Supreme Court," said Bruce Stanley, a lawyer for the families of miners Don Bragg and Ellery Hatfield.

"Coal miners are heavily dependent upon MSHA doing its job, and when it flat out ignores its duty to those miners, MSHA ought to be held accountable for the resulting damages just the same as any private citizen under similar circumstances would be," Stanley said.

During the Jan. 19, 2006, fire, a crew of workers ran into thick, black smoke in their primary escape tunnel, and had to try to find another way out of the mine. Two workers, Bragg and Hatfield, became separated from the group, got lost, and eventually succumbed to the smoke.

Massey's Aracoma Coal Co. subsidiary and five mine foremen pleaded guilty to criminal charges stemming 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 in MSHA's inspection of the mine and enforcement of safety standards intended to protect miners.

Citing MSHA's failures, the Bragg and Hatfield families sued the agency 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.

The Bragg and Hatfield families appealed, and the 4th Circuit asked the state Supreme Court to decide if a private party conducting mine inspections is liable for the wrongful death of a miner that results from that private party's negligent inspection.

In its ruling, the 4th Circuit quoted extensively from government reports that documented MSHA's failings at Aracoma, including not identifying serious violations and requiring them to be fixed. The 4th Circuit also noted that MSHA's own internal review raised questions about "conflicts of interest" among MSHA officials charged with enforcing safety requirements at Massey operations.

The three-judge panel that heard the case consisted of Judges G. Steven Agee, Andrew M. Davis, and James A. Wynn Jr. Agee was appointed by President George W. Bush. Davis and Wynn were appointed by President Obama.

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


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