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 kw...@wvgazette.com or 304-348-1702.