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Published by marcus1265

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Published by: marcus1265 on Feb 08, 2011
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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF WEST VIRGINIA  AT CHARLESTONDELORICE BRAGG,as Administratrix of theEstate of Don Israel Bragg, and FREDA HATFIELD,as Administratrix of the Estate ofEllery Hatfield,Plaintiffs,v. Civil Action No. 2:10-0683 UNITED STATES OF AMERICA,Defendant. MEMORANDUM OPINION AND ORDER Pending is the motion to dismiss of defendant United States of America (“United States”), filed June 25, 2010. Thestatement of facts set forth in Part I below is taken from the plaintiffs’ complaint.I.Plaintiffs are representatives of the estates of theirrespective deceased husbands Don Israel Bragg (“Bragg”) and Ellery Hatfield (“Hatfield”). Bragg and Hatfield were two miners who died during a fire at Aracoma Coal Company’s Alma Mine (“Alma Mine” or “the mine”) on January 19, 2006. (See Compl. ¶¶ 9-41).
!ase 2:10-cv-00683 Document 15 Filed 02/07/11 Page 1 of 30 PageID #: 335
Bragg and Hatfield worked in “2 Section” of the mine as roof bolt machine operators. (Id. 16). While Bragg and Hatfield were onduty the evening of January 19, 2006, a fire broke out. (Id. ¶19). The mine facilities were ill-equipped to handle the blazedue to various inadequate safety measures implemented by AracomaCoal Company (“Aracoma Coal”). (See id. 43). Afterunsuccessfully attempting to extinguish the fire, various miners were forced to evacuate. Early attempts to warn the 2 Section workers failed due to telephone malfunctions (id. ¶¶ 30-31), butthose workers were eventually notified and began their evacuationas well.The 2 Section workers encountered a number of obstaclesin attempting to escape Alma Mine. (Id. ¶¶ 32-34). Due to afaulty ventilation system, smoke from the fire flooded the escaperoute and reduced visibility within the mine. (Id. 36). Although the workers attempted to utilize breathing devicescalled Self-Contained Self-Rescuers to deal with the smoke, theylacked the training necessary to operate these devices. (Id. ¶37).Ultimately, ten miners emerged from Alma Mine safely;Bragg and Hatfield were not among them. (Id. 40). On January21, 2006, two days after the fire, rescuers found their bodies.2
!ase 2:10-cv-00683 Document 15 Filed 02/07/11 Page 2 of 30 PageID #: 336
(Id.). The medical examiner’s report for Bragg attributes hisdeath to suffocation and carbon monoxide intoxication. (Id. 41). The medical examiner’s report for Hatfield cites carbon monoxide intoxication as the cause of death. (Id. 41).On January 26, 2006, the Mine Safety and Health Administration (“MSHA”), began investigating the Alma Mine fire.(Id. ¶ 42). MSHA determined that numerous violations of the MineSafety and Health Act (“the Mine Act”), 30 U.S.C. § 801, et seq. by Aracoma Coal contributed to the cause and severity of thefatal fire. (Id. 43). Among Aracoma Coal’s violations were“inadequate training; inadequate firefighting and emergencyevacuation procedures . . . [and] failure to conduct an immediateevacuation of miners working in 2 Section.” (Id. ¶ 44 (citingCompl., Ex. A, Internal Review of MSHA’s Actions at the Aracoma Alma Mine #1 (“MSHA Review”) 2-3)). MSHA’s investigation also revealed the inadequacies ofits own previous inspections of Alma Mine. Indeed, the MSHA Review is aptly characterized as a comprehensive and stingingassessment of the Agency’s multiple failures to properly policethe mine. For example, by late 2005, MSHA inspectors issued 95citations to Aracoma Coal for safety violations but failed to“identify and cite numerous violations that were in existence,3
!ase 2:10-cv-00683 Document 15 Filed 02/07/11 Page 3 of 30 PageID #: 337

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