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