Thursday’s guilty plea and plea agreement from the former superintendent of the Upper Big Branch coal mine in West Virginia is a key step in the effort to seek criminal charges further up the corporate ladder at Massey Energy, according to court documents and the U.S. Attorney for the southern district of West Virginia.
“I’m pleased that Mr. May is cooperating with our investigation,” said U.S. Attorney Booth Goodwin in a written statement. “We hope he can give us a better picture of what was going on at this company.”
But Gary May, 43, did not admit to any acts that are directly related to the massive explosion that took 29 lives on April 5, 2010. Instead, his crimes involve other sections of the Upper Big Branch mine, which May supervised as one of at least two superintendents at the sprawling underground complex.
Still, May admits to a conspiracy at the mine “with others known and unknown” which deceived federal mine safety inspectors, put coal miners in danger and thwarted mine safety law to prevent interruptions in coal production, according to the plea agreement.
And most of the incidents cited as part of the conspiracy mirror the deception, safety violations and shortcuts that existed in and around the longwall mining section that was the source of the disastrous explosion.
1. The Inspection Dodge — May admits to deceiving federal regulators by warning miners underground when inspectors arrived for surprise inspections. Former Massey employees told state, federal and independent investigators that this was a common practice throughout the mine. The Mine Safety and Health Administration (MSHA) insists that its inspectors would have spotted the extremely dangerous conditions that contributed to the explosion without these illegal advance warnings.
2. Manipulating Airflow — May admits to suddenly shifting airflow underground during inspections to fool regulators into thinking ventilation was robust enough to sweep away explosive methane gas and coal dust. Investigators concluded that anemic airflow was a significant factor in the explosion.
3. Falsifying Records — May admits to falsifying legally-mandated “examination record books” so that flooding underground, which can obstruct and diminish airflow, was kept from federal inspectors. Similar flooding is cited as another factor in the restricted airflow that led to the explosion.
4. Cutting Corners — May admits to ordering the disabling of a methane monitor in an incident first documented and reported by NPR. The monitor on a continuous mining machine is designed to shutdown the machine when excessive amounts of explosive gas seep into the area. May ordered an electrician to “bridge” the device because it was malfunctioning and causing the machine to repeatedly shutdown unnecessarily. He then ordered crews to continue mining without the monitor, an illegal and dangerous act.
Upper Big Branch miners told investigators about other shortcuts aimed at keeping coal production going despite safety threats, including continued operation of the longwall mining machine with water sprays missing and malfunctioning. The water sprays help temper explosive coal dust and methane gas and insufficient water on the longwall is cited as another major factor in the explosion.
Miners and mine records also provide evidence of shortcuts in the control of rock dust. Massey failed to neutralize coal dust in vast areas of the mine by applying crushed limestone or rock dust. That allowed a buildup that helped turn a relatively small methane ignition into a massive blast that coursed several miles underground and increased in force even after turning corners.
In short, the plea agreement says, the conspiracy that includes May kept MSHA from issuing orders and citations that would have halted coal production. May and his un-named co-conspirators were also trying to avoid a special designation for the mine, a “pattern of violations” status, which would have subjected it to more intense regulatory scrutiny and more shutdowns.
“When mine operators resort to tricks and deceit to keep government officials in the dark, our mine safety system unravels and miners are put in harm’s way,” Goodwin added.
Mine disasters rarely result in serious criminal prosecution of mining company officials. It’s even rarer for charges at the superintendent level or above. Prosecutors won’t talk about it but they’re clearly aiming higher. May’s sentencing isn’t scheduled until August, giving prosecutors several months for testimony that could lead up the corporate chain. The plea agreement requires May to provide sworn statements and grand jury and trial testimony.
Production documents found in this and other cases indicate that former Massey CEO Don Blankenship closely managed production at all the company’s mines, receiving detailed reports of how much coal was mined and how much production time was lost every half hour. Blankenship left the company six months before it was sold to Alpha Natural Resources last year and received a departure package worth $86.2 million in cash and other benefits.
Several relatives of the 29 miners killed have called for prosecution of Blankenship and other executives.
They “need to be accountable,” said Gary Quarles, whose son Gary Wayne died in the tragedy. Quarles spoke last month after a former Massey security chief was sentenced for lying to prosecutors and attempting to destroy evidence. “It’s past time that they got evidence to put people like this in jail,” he added.
One unexpected element of May’s plea agreement is the U.S. Attorney’s pledge not to prosecute May’s wife Kim. The agreement refers to “offenses she may have committed relating to…a fraudulent claim for damage to real and personal property” involving a power company in the region.
Assistant U.S. Attorney Steve Ruby declined to provide details but said the case involving Kim May “has nothing to do with Upper Big Branch.”
May testified last month about the inspection dodge at the sentencing hearing for Hughie Stover, the former Massey Energy security chief. But MSHA says the practice continues at other mines and mining companies. The agency says it discovered the deception during three surprise inspections in three different counties in West Virginia in just the last two months.
“Advance notice continues to occur too often in the coalfields,” said Joe Main, the assistant secretary of labor for mine safety and health. “Upper Big Branch is a tragic reminder that operators and miners alike need to understand advance notice can prevent inspectors from finding hazards that can claim miners’ lives.”
Proposed federal legislation would make the warnings and other violations felonies and make criminal prosecution easier, but the bill failed to pass when Congress was dominated by Democrats and when House control shifted to Republicans.
“This dangerous cat and mouse game is unacceptable and must stop,” said George Miller, a California Democrat who is the ranking minority member of the House Education and the Workforce Committee. “This is but one lesson learned from the Upper Big Branch tragedy and Congress should be able to work together to fix this weakness in the not too distant future.”