CHARLESTON, W.Va. (AP) — 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 Inc.

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Online:

Court filings in Bragg & Hatfield vs. U.S.: http://bit.ly/Tullv9

Follow Lawrence Messina at http://twitter.com/lmessina

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  • Upper Big Branch

    Twenty-nine <a href="http://www.facesofthemine.com/faces-of-the-mine-upper-big-branch-memorial-page/" target="_hplink">miners</a> died in an explosion at the Upper Big Branch mine on April 5, 2010. The mine, located in Montcoal, W.Va., was owned and operated by the Performance Coal Company, a subsidiary of Massey Energy.<br><br>The Mine Safety and Health Administration <a href="http://wvgazette.com/News/montcoal/201009170861" target="_hplink">has said</a> that sparks from a worn-out piece of machinery combined with a buildup of coal dust caused the accident. Massey Energy has <a href="http://blogs.wvgazette.com/coaltattoo/2011/01/28/massey-continues-to-dispute-msha-on-ubb-cause/" target="_hplink">continued to say</a> that a buildup of methane gas caused the explosion.<br><br>At a public meeting detailing the federal investigation, Kevin Stricklin, coal administrator for mine safety and health at MSHA, said that there were two sets of books on mine conditions kept by Massey workers -- an accurate log that included safety problems, and a separate, watered-down version for federal and state inspectors to see.<br><br>The Upper Big Branch explosion was the <a href="http://online.wsj.com/article/SB10001424052702304450604576415683464733192.html?KEYWORDS=upper+big+branch" target="_hplink">worst</a> U.S. coal mining disaster in 40 years.

  • Crandall Canyon Mine

    On Aug. 6, 2007, six miners were trapped in the Crandall Canyon Mine in Huntington, Utah, after roof-supporting pillars <a href="http://www.msha.gov/genwal/ccSummary.asp" target="_hplink">failed</a> and ejected coal over a half-mile area. Ten days later, three more people were killed by a subsequent collapse during the rescue effort.<br><br>According to the <a href="http://www.msha.gov/genwal/ccSummary.asp" target="_hplink">official</a> accident investigation summary released by the Mine Safety and Health Administration, the catastrophe was the result of "an inadequate mine design." Unsafe pillar dimensions and an poor engineering management review contributed to the collapse.<br><br>In the above photo, family and friends carry the the body of Dale Black -- one of the rescue team members -- to his burial site at Huntington City Cemetery.

  • Darby Mine No. 1

    On May 20, 2006, five miners were killed in an explosion at Darby Mine No. 1 in Holmes Mill, Kentucky. According to information <a href="http://www.usmra.com/saxsewell/darby.htm" target="_hplink">released</a> by the United States Mine Rescue Association, the explosion was the result of methane gas that was ignited by the cutting of a metal roof strap.<br><br>The miner who was working on the roof strap with a cutting torch had a functional methane detector tucked away in his pocket, a sign that it was not being used to check continuously for the potentially lethal gas. The USMRA also says a cutting torch should not have been used at the time.

  • Sago

    On Jan. 2, 2006, an <a href="http://www.msha.gov/sagomine/sagomine.asp" target="_hplink">explosion</a> at a mine in Sago, W.Va., killed 12 workers and severely injured one. The 13 miners were <a href="http://www.msha.gov/Fatals/2006/Sago/ftl06C1-12.pdf" target="_hplink">forced</a> to barricade themselves within the mine after the explosion -- caused by elevated levels of carbon monoxide and methane -- destroyed 10 seals used to separate a closed area of the mine.<br><br>Ben Hatfield, CEO of the International Coal Group, which owned the Wolf Run Mining Company that ran the Sago Mine, received criticism when the families of the fallen miners were falsely informed that the 12 men had lived. In an interview with NPR, workers and family members who were present when Hatfield broke news of the deaths <a href="http://www.npr.org/templates/story/story.php?storyId=5134307" target="_hplink">described</a> the scene as "chaos."

  • Scotia

    In March 1976, a succession of explosions at the Scotia Mine in Oven Fork, Ky., claimed a total of 26 lives.<br><br>The first blast happened on March 9, killing 15 men. During rescue efforts on March 11, a second explosion killed 11 more.<br><br>Investigators <a href="http://www.usmra.com/saxsewell/scotia.htm" target="_hplink">concluded</a> that both explosions were caused by the ignition of a methane-air mixture inside the mine.

  • Consol No. 9

    An explosion at the Consol No. 9 mine in Farmington, W.Va, killed 78 people on Nov. 20, 1968. The explosion was followed by raging <a href="http://www.wvculture.org/history/disasters/farmington02.html" target="_hplink">fires</a> that brought rescue operations to a halt.<br><br>A <a href="http://www.npr.org/templates/story/story.php?storyId=97115205" target="_hplink">memo</a> from a federal investigator that surfaced in 2008 revealed that a safety alarm on a ventilation fan had been deliberately disabled before the explosion. The alarm, which hadn't been working for as long as 90 minutes before the blast, could have saved the lives of the 78 miners.<br><br>The tragedy at Farmington led to the <a href="http://www.msha.gov/mshainfo/mshainf2.htm" target="_hplink">passage</a> of the federal Coal Mine Health and Safety Act in 1969. That act paved the way for the <a href="http://www.msha.gov/REGS/ACT/ACTTC.HTM" target="_hplink">Federal Mine Safety and Health Act of 1977</a>, the legislation that currently governs the Mine Safety and Health Administration's activities.

  • Cherry Mine

    On Nov. 13, 1909, a fire killed hundreds of workers in a coal mine in Cherry Hill, Illinois.<br><br>According to <a href="http://www.usmra.com/saxsewell/cherry.htm" target="_hplink">reports</a> from the United States Mine Rescue Association, kerosene torches were used that day after the mine's electrical system broke down. Hay brought into the mine to feed mules that worked underground caught fire after being parked under one of the torches.<br><br>The fire quickly spread, causing the deaths of 259 men and boys who worked in the mine.

  • Monongah Nos. 6 And 8

    On Dec. 6, 1907, explosions occurred at a pair of nearby mines in <a href="http://www.msha.gov/disaster/monongah/monon1.asp" target="_hplink">Monongah</a>, West Virginia, killing 362 men and boys. The blast could be felt as far as eight miles away.<br><br>It wrecked the mine's ventilation system, allowing toxic gas to fill the area and hinder rescue efforts. Though investigators aren't certain of the <a href="http://www.usmra.com/saxsewell/monongah.htm" target="_hplink">cause</a> of the explosion, it was probably started by the ignition of firedamp -- combustible gas made up mostly of methane -- and coal dust within the mine.