May's attorney, Tim Carrico of Charleston, did not immediately return a phone call Wednesday. Ted Pile, a spokesman for Alpha Natural Resources, which acquired Upper Big Branch in its June 2011 purchase of Massey Energy, did not respond to a request for comment.
May was one of the mine superintendents at Upper Big Branch, having started at the operation in February 2008 as a mine foreman.
At the time of the disaster, May was superintendent of the southern portions of the sprawling mine, which included areas being prepared for longwall coal production, but not the active longwall mining area where the explosion occurred.
May was among the management employees at Upper Big Branch who asserted their Fifth Amendment rights and refused to answer questions from government investigators about the disaster.
Just after the explosion, May was one of the mine managers who rushed underground and tried to rescue any survivors. But records show that investigators have also been told that May often ignored their concerns about safety problems, and sometimes only took action about such issues when he learned inspectors were headed underground.
According to a management chart put together by MSHA investigators, May and another mine superintendent, Everett Hager, were on the fourth row down among Upper Big Branch officials. Above them were Performance Coal Co. President Chris Blanchard, Vice President Jamie Ferguson and general manager Wayne Persinger. Those officials were all below the level of corporate officers and executives at the Massey Energy parent company.
The criminal investigation of the fire that killed two miners at Massey Energy's Aracoma Alma No. 1 Mine in 2006 never got above the section foreman level. The last prosecution of a mine superintendent was following the Southmountain disaster in Virginia in 1992.
So far, May is the third person to be charged in the sprawling federal criminal investigation at Upper Big Branch.
A former miner at the site was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009 and to then lying to investigators about his actions.
Next week, former Massey Energy security director Hughie Elbert Stover faces up to 25 years in prison when he is sentenced by U.S. District Judge Irene Berger after being convicted of lying to investigators and trying to destroy evidence about Massey's practice of warning underground workers of impending government inspections.
In December, Goodwin and his team secured a $209.5 million settlement with Alpha Natural Resources, which acquired the Upper Big Branch Mine when it bought Massey Energy.
Goodwin agreed not to prosecute the company for any Upper Big Branch criminal liabilities, but required Alpha to spend $80 million over the next two years on mine safety improvements and create a $48 million mine safety research trust fund. Alpha also agreed to pay $46.5 million in restitution to families of the disaster victims and $35 million to resolve pending Massey safety fines, including $10.8 million levied for violations related to the Upper Big Branch explosion.
The settlement with Alpha, however, did not prohibit prosecutors from pursuing charges against any individuals -- including Massey officers, employees or agents -- who played a role in the mine disaster.
Wednesday's charges were announced just one day before Thursday morning's planned release to Upper Big Branch families and the public of a report on the state Office of Miners Health, Safety and Training's investigation of the disaster.
Shirley Whitt, whose brother Boone Payne died in the explosion, heard about the charges against May when a reporter called her for comment on them.
"I hope it's really the beginning," Whitt said. "I don't think May and Stover are where the problem was. It starts at the top. I want to see the people who caused this prosecuted."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.