UBB DISASTER ; Mine Official Gets 21 Months; Superintendent Violated Safety Regulations

Article excerpt

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 news 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. …