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Massey pays $2.1 million in 2008 mining death

CHARLESTON, W.Va. -- At about 11 p.m. on Oct. 8, 2008, Steven Cain was about an hour away from ending his shift deep inside Massey Energy's Justice No. 1 Mine in Boone County.

Cain and other miners were hauling a load of supplies -- conveyor belt parts, cinder blocks and plastic pipe -- on an underground mine train.

But the supply cars were overloaded. A high-voltage cable was hanging low, blocking the train's route. And the supply crew needed to navigate a tight turn in a narrow mine tunnel.

Cain got off the train, squeezed himself into that corner, and held the energized power cable over his head so the supply train could pass under.

As the train rounded the bend, the overloaded supplies pressed too close to the mine wall. Cain was caught between a supply car and the wall, or rib. He was crushed to death.

Federal inspectors found that Cain had "little mining experience" and "minimal training," and criticized Massey for overloading the supply cars.

"Adequate clearance was not provided," said the June 2009 report signed by Robert Hardman, district manager of the U.S. Mine Safety and Health Administration's Southern West Virginia office. "The supplies also hindered the motor operator's visibility."

Despite those problems, MSHA didn't fine Massey or its subsidiary, Independence Coal Co., a cent. Instead, MSHA inspectors issued "safeguard orders" that require improved practices, but carry no monetary penalties.

Last month, Massey settled a wrongful death lawsuit brought by Cain's family, agreeing to pay $2.1 million to make the case go away, according to public records on file in Boone Circuit Court.

In the wake of the Upper Big Branch Mine Disaster, top federal officials -- from President Obama to Labor Secretary Hilda Solis and MSHA chief Joe Main -- have blasted the non-union, Richmond, Va.-based company as a renegade mine operator that won't follow the rules and puts coal production over profits.

Just last week, Main's old boss, United Mine Workers President Cecil Roberts, said in a congressional hearing that "shortcomings in existing laws" have made it hard for MSHA to protect miners at Massey's operations.

"Clearly, the status quo isn't good enough," Roberts told a House committee. "MSHA's efforts have failed to motivate at least some operators, like Massey, to do what is necessary to operate their mines safely each and every day."

Massey CEO Don Blankenship has vigorously defended his company's record and practices.

"Massey does not place profits over safety," Blankenship told a Senate committee in late May. "We never have, and we never will."

But a look back at Steven Cain's death provides more details about Massey's troubled safety record, including new concerns from former Massey miners about practices at the coal giant's mines.

At the same time, Cain's death raises questions about whether MSHA always takes strong enough enforcement action against Massey, even in a case where serious safety problems led to the death of a miner.

'Unwarrantable failure to comply'

Massey's Justice No. 1 Mine is a large operation, located near Uneeda. From 1999 to 2003, the mine produced an average of 2.5 million tons of coal a year, with about 130 workers.

Even back then, long before Cain's death, Justice No. 1 had its share of safety problems.

On Oct. 30, 2000, shuttle car operator Ricky Dale Vance was killed when a 7-foot-by-4-foot piece of rock from the mine roof fell on him.

Federal inspectors found that Massey mine management did not comply with their approved roof-control plan. Roof bolts were spaced too far apart, and inspectors issued three enforcement orders alleging "unwarrantable failure to comply" with safety regulations.

MSHA fined the company $55,000 for each of the three orders -- among the highest penalties then allowed by law -- but then settled the case for $37,500, a reduction of more than 77 percent.

On Jan. 2, 2002, continuous miner operator Danny Adkins was killed when a similarly sized piece of mine roof fell on him at Justice No. 1.

Federal investigators ruled that Adkins had accidentally sheared off parts of several key roof bolts, but that Massey management was to blame for not installing reflectors that would have helped Adkins position himself safely underground.

MSHA issued two "serious and substantial" citations, but fined Massey only $1,595 for each one. The company paid the $3,190.

'A beloved husband, father, son and brother'

Steven Cain was just 32 when he died. He had a wife, Becky. Their son Izek was 6 when his father died. Their daughter Megan was 3.

An obituary said Cain was a member of the Peytona Baptist Church and a former Eagle Scout. "He was a beloved husband, father, son and brother, and will be missed by his entire family, including aunts, uncles, cousins and many friends," the notice said.

Cain didn't start his mining career until May 17, 2008. He attended a two-week course at Coal River Training, where he received an 80-hour certificate that allowed him to start working underground. Then, he started work for Mountaineer Labor Solution, a Massey contractor at Justice No. 1, on June 5, 2008.

In its report on his death, MSHA incorrectly listed Cain as an "experienced miner." Federal regulations specify that to be an "experienced miner," a worker must have completed a training course and have at least 12 months of underground experience.

Still, MSHA concluded that Cain's death "occurred because a miner with little mining experience and minimal training was assigned work duties in an area of close clearance with inadequate communication.

"In addition," the MSHA report said, "supplies loaded on the supply cars hindered the motor operator's visibility."

MSHA inspectors issued two "safeguard" orders, requiring Massey to provide enough clearance for supply trains and to not load supply cars in a way that blocks the train operator's view.

Initially, such orders carry no financial penalties. MSHA inspectors issue them to spell out additional safety practices -- steps required above those in existing regulations -- they believe are needed related to transportation of materials and workers. Once a safeguard order is issued at a particular mine, inspectors can then cite the operator and impose a fine if the safety practices outlined aren't being followed in later inspections.

Amy Louviere, a media spokeswoman for MSHA, said the two safeguards issued after Cain's death were the first instance of those problems being pointed out by agency inspectors, and therefore would not involve monetary fines.

"MSHA conducted a comprehensive investigation and issued the appropriate enforcement actions based on all of the information and evidence gathered during the course of the investigation," Louviere said last week.

West Virginia state inspectors took a different view.

The state Office of Miners' Health, Safety and Training cited Massey for overloading the supply cars, and also for not properly supervising Cain, who was an inexperienced, "red hat" miner at the time of his death.

A state report concluded that Cain was wrongly "allowed to work in an unsafe area" where four mine supply cars were passing around the narrow corner of the mine tunnel. It also said Massey management failed to ensure there was adequate clearance between the supply cars and the high-voltage cable overhead.

State inspectors fined the company $10,000 each -- the maximum allowed by West Virginia law -- for four serious citations issued in Cain's death. One of those was overturned on appeal, but Massey paid the other $30,000, said state mine safety spokeswoman Leslie Fitzwater.

'$600 a minute'

In March 2009, Cain's family sued Massey Energy and its Independence Coal subsidiary. The wrongful death case in Boone Circuit Court was filed on the family's behalf by Charleston lawyer R. Edison Hill and Chloe attorney Deirdre Purdy.

Because a Massey contractor, Mountaineer Labor Solution, technically employed Cain, the lawsuit would not have to prove "deliberate intent," but was a more straightforward wrongful death case.

The suit noted that, as Cain stood in the corner holding up the power line, he was not within "sight and sound" -- a requirement for "red hat" workers -- of the two more experienced miners he was working with, Curtis Ball and Rocky Osborne.

Company officials "failed to ensure that apprentices were kept within sight and sound of experienced miners, effectively supervised with regard to safety practices and instructed in safe mining practices," the lawsuit alleged.

"Contract miners and employees were not properly trained, in particular, in oversight of apprentice miners such as [Cain]," the suit said.

The suit also alleged the company allowed workers to use supply cars unsafely "in that the supply cars were loaded to a height that obstructed visibility." It alleged the company "failed to maintain a 12-inch clearance between the supply cars" and the high-voltage cable.

Massey officials did not respond to a request for comment for this story.

In a sworn statement given in February as part of the Cain family's suit, Osborne recalled that mine inspectors had cautioned Massey six months earlier about the tight corner where Cain was killed.

"I remember the inspectors getting onto them about, you know, about not have enough clearance there," Osborne said.

Osborne said he talked with the mine's safety director, David Brown, after Cain's death. "He looked at me and he said, it was not your fault. It was ours."

In a separate sworn statement, given on April 6 -- the day after the Upper Big Branch explosion -- Cain co-worker Curtis Ball recalled that Blankenship kept very close watch on production at Justice No. 1. Ball said mine managers made clear their feelings about anything that slowed down production.

"When you are down on production, they have signs or stickers on their hats -- $600 or $800 a minute," Ball said. "So they're actually calculating that to the point to where they make stickers to put on hats.

"They take their hat and [say], 'Yeah, you see that right there? We ain't got time for you to be fumbling around or you to be blah, blah, blah.'"

The petition to settle the case, filed by the Cain family lawyers, noted that Massey and Independent Coal "expressly deny any liability in this matter," but "wish to achieve an amicable settlement and resolution of all disputes, and to avoid the expense of protracted litigation."

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


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