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Feds looking into report MSHA tipped off Massey

CHARLESTON, W.Va. -- Federal prosecutors are investigating whether U.S. Department of Labor inspectors may have tipped off Massey Energy officials about inspections at the company's Upper Big Branch Mine prior to the April 2010 explosion that killed 29 miners.

U.S. Attorney Booth Goodwin said his office is looking into testimony by a former Upper Big Branch superintendent that federal Mine Safety and Health Administration inspectors regularly told company officials when they planned to visit the Raleigh County mine.

"It goes without saying that government officials have to follow the law like everyone else, and if we get leads that raise questions about whether they have, we investigate," Goodwin said Thursday. "I can't comment on the status of specific leads, but we obviously pay close attention to what a defendant says at a plea hearing."

Asked if that means he and his team are looking into allegations made by former Massey superintendent Gary May about MSHA providing advance notice of its own inspections, Goodwin said, "Yes, of course."

Two weeks ago, May made his assertion when he pleaded guilty as part of a deal that has him cooperating with the sprawling federal criminal investigation of the Upper Big Branch Mine Disaster. May admitted to a one-count felony charge that he conspired to violate mine safety standards and cover up the resulting unsafe conditions.

Among other things, May 43, of Bloomingrose, admitted he took part in a scheme to provide advance warning of government inspections and then hide or correct violations before federal agents could make it into working sections of the sprawling mine.

During a March 29 plea hearing in Beckley, U.S. District Judge Irene Berger asked May to explain who took part in that conspiracy with him.

"It started, you know, from the MSHA inspectors coming on the property," May testified under oath. "Sometimes they would tell us, you know, they'd be back tomorrow or where they were going. And it went from there to telling everybody that was outside, you know, just scatter word by mouth on the phone, and they would tell whoever was underground.

"It's just something that happened from the time I got there until after I left and happened at every mine I've ever been to," May told Berger.

Berger pressed May on the matter, and asked him after May conferred with his lawyer, "When you said earlier that it began with inspectors coming onto the property and saying, 'We'll be back tomorrow,' was it or was it not your intention to indicate that these inspectors were part of the conspiracy that you've told me about Mr. May?"

May responded, "I don't believe it's a conspiracy, but I think, in my opinion, if they would let me know that [an inspection was planned], I would let everyone else know that."

The federal Mine Safety and Health Act makes it clear that, in carrying out its inspection duties, MSHA is not to provide advance notice of inspections to anyone. Agency policy mandates that "any information relating to inspection and investigation schedules" be restricted solely to MSHA personnel who have a need for such information.

Federal law also makes it a crime for anyone to give advance notice of any MSHA inspection. Anyone convicted of doing so can face up to six months in jail and a $1,000 fine.

In the wake of Upper Big Branch, MSHA officials have focused on what they say was Massey's intentional program of security guards giving underground crews advance notice of inspections. MSHA concluded that such warnings allowed Massey to cover up unsafe conditions at Upper Big Branch, and were a major contributing factor in the April 5, 2010, explosion.

An internal team looking at MSHA's own performance at Upper Big Branch did not examine the question of whether agency inspectors tipped off the company -- either on purpose or inadvertently -- about upcoming inspection schedules, at least according to the report MSHA made public.

The internal review team reported that Massey's advance notices "interfered with MSHA's ability to identify and require abatement of hazardous conditions" at Upper Big Branch.

But anther team, appointed by the National Institute for Occupational Safety and Health to examine MSHA's internal review, concluded that advance notice and other "concealment activities" by Massey "did not, and could not, conceal readily observable violative conditions" such as the huge amounts of coal dust that fed the Upper Big Branch explosion.

In a prepared statement issued Wednesday, MSHA said that last month's plea hearing "was MSHA's first opportunity to hear from Mr. May about events at UBB." The agency noted that May had previously asserted his 5th Amendment right and refused to answer questions from mine disaster investigators.

"We anticipate that if the Department of Justice obtains evidence of misconduct by MSHA employees, it would either investigate the matter, share the information with MSHA so we could take appropriate action, or both," MSHA said in its statement.

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


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