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Upper Big Branch Mine superintendent sentenced

AP Photo
Gary May, a former UBB mine superintendent, (left) walks away from the U.S. District Court in Beckley Thursday, Jan. 17, 2013 with his attorney, Tim Carrico, after his sentence hearing. May was sentenced to 21 months in prison and three years of supervised release. Judge Irene Berger also ordered that May pay a $20,000 fine. (AP Photo/The Register-Herald, Rick Barbero)

BECKLEY -- A former Upper Big Branch Mine superintendent was sentenced to nearly two years in jail for his role in a plot to skirt safety rules and cover up the resulting hazards at the Raleigh County operation where 29 miners died in an April 2010 explosion.

U.S. District Judge Irene Berger on Thursday sentenced Gary May to 21 months in prison, three years of probation and a $20,000 fine for one felony count of conspiracy to thwart the federal government's mine safety efforts.

Berger said the sentence should deter anyone in the coal industry from "putting business interests and mining coal and making money ahead of safety."

May had asked for a lenient sentence, urging Berger to consider sending him to home confinement and probation, or at least to less than the 15 to 21 months in jail recommended by federal sentencing guidelines.

May's crime carried a maximum penalty of five years imprisonment, but May is cooperating with federal prosecutors in their effort to move their probe up the Massey corporate ladder.

"I know what I did was wrong and criminal," May, a 44-year-old Bloomingrose resident and father of two daughters told Berger during a hearing in federal court in Beckley.

Prosecutors had recommended that Berger sentence May to the high end or even above the advisory guideline range, citing "the risk to human life and health" from criminal mine safety violations like those cited in May's plea agreement.

Berger ordered May to serve the high end of the recommended sentence, even after agreeing to a request from May's lawyer, Tim Carrico, to allow prosecutors to privately explain how May's cooperation has and will continue to help their investigation.

The judge heard that information during a huddle with lawyers, who gathered around her bench while a "white noise" system kept spectators and the media from hearing what was said. Berger said those steps were necessary "to protect the integrity of the investigation" and for "reasons of safety," given that May is providing information about alleged criminal activity by other individuals.

U.S. Attorney Booth Goodwin said his office was pleased with the sentence, and warned that prosecutors in Southern West Virginia will not tolerate criminal violations of mine safety laws.

"If you put profits and production ahead of mine safety, you will go to jail," Goodwin told reporters in a press conference after the hearing.

Goodwin said his office's probe is continuing into a "significant conspiracy" to violate mine safety laws at Massey operations, but declined to say yet if prosecutors believe criminal actions extended into Massey's executive suite or corporate boardroom.

"We are going to take our investigation where it goes," Goodwin said. "But at this point, I'm not willing to specify how far that conspiracy went at Massey Energy."

Mine safety advocates and legal experts have noted that Goodwin's investigation, led by Assistant U.S. Attorney Steve Ruby, is utilizing not just criminal provisions of the nation's mine safety laws, but also broader criminal conspiracy statutes.

"It's unprecedented," said longtime mine safety advocate Davitt McAteer, who ran the U.S. Mine Safety and Health Administration during the Clinton administration and organized a team that did an independent investigation at Upper Big Branch. "This hasn't been done in the past."

The last criminal prosecution of a mine superintendent occurred when McAteer was MSHA chief following the Southmountain Disaster in Virginia in 1992. The Southmountain probe also netted a guilty plea by mine operator William Ridley Elkins, who was sentenced to six months in prison.In the Upper Big Branch probe, May is the third person that Berger has so far sent to jail.

A former UBB miner, Thomas Harrah, 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 then lied to investigators about his actions.

The judge sentenced a former Upper Big Branch security director, Hughie Elbert Stover, to 36 months in jail after Stover was convicted of two felonies: Making a false statement and obstructing the government probe of the mine disaster.

And next up in the investigation is a former longtime Massey official, David C. Hughart, who is scheduled to enter a guilty plea in late February to two criminal charges, including taking part in a decade-long scheme involving advance notice of MSHA inspections at various Massey mines. Hughart is also cooperating with investigators.

Last March, May pleaded guilty to plotting "with others known and unknown" to put coal production ahead of worker safety and to conceal the resulting hazards on numerous occasions at Upper Big Branch. May admitted that he took part in a scheme to provide warning of government inspections and then hide or correct violations before federal agents could make it into working sections of the mine. In court records, May's lawyer has said that May was taking part in "the corporate-wide company policy" at Massey.

Among other violations, May admitted that he "caused and ordered" the disabling of a methane monitor on a continuous mining machine at Upper Big Branch less than two months before the deadly blast. Also, May admitted he ordered an unidentified person to falsify mine examination records by omitting a hazardous condition -- high water that could endanger workers and interfere with the flow of fresh air through underground tunnels – which was required to be reported and then repaired.

Investigators blamed the Upper Big Branch deaths on a Massey pattern of violating federal standards concerning mine ventilation and the control of highly explosive coal dust, setting the stage there for a small methane ignition to turn into a huge, coal dust-fueled explosion.

In its report on the disaster, MSHA cited as a major contributing factor Massey's practice of using advance notice of government inspections, saying this practice allowed Massey "to conceal violations from enforcement personnel" and permit hazards to go uncorrected.

But Berger, in sentencing May, ruled that his crimes had no "victims," meaning that under federal law, the judge concluded no one was "directly and proximately harmed" by those crimes.

"There is no evidence upon which to base a finding that your actions directly and proximately resulted in injuries or death to any person," Berger said. "The conduct of giving prior notice of mine inspections is serious and certainly could have resulted in a catastrophic way."

Those comments by the judge drew strong criticism from family members of the mine disaster victims who attended May's sentencing hearing.

"I don't know how she could say that," said Clay Mullins, whose brother Rex died in the mine explosion. "There were 29 victims, and that's not covering the families, the co-workers, all of the people who were involved in this." Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.

 


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