Federal prosecutors are investigating a suggestion by the former superintendent of the Upper Big Branch mine that U.S. Mine Safety and Health Administration inspectors sometimes told Massey Energy employees when they were coming.
An April 2010 explosion at the southern West Virginia operation killed 29 men in the worst U.S. coal mine disaster in four decades. The revelation about possible early warnings from MSHA inspectors came in testimony at Gary May’s recent plea hearing, under questioning by a judge.
Under federal law, anyone who gives advance notice of an MSHA inspection could get up to six months in jail and a $1,000 fine.
“We’re following up on it to determine what the facts are, surrounding that statement,” Assistant U.S. Attorney Steve Ruby said. “We really can’t get into the specifics of what we’re doing or where that stands.”
Ruby has been a lead prosecutor in the investigation of Upper Big Branch by U. S. Attorney Booth Goodwin, who first told the Charleston Gazette about his office’s interest in the statement.
In a prepared statement, MSHA said it had never heard from May until his plea hearing because he refused to testify during several investigations of the blast. MSHA said it will take appropriate action if the U.S. Justice Department obtains and shares evidence of misconduct.
While questioned by U.S. District Judge Irene Berger last month, May suggested that MSHA inspectors may have told Upper Big Branch workers about their plans, either deliberately or inadvertently.
“Sometimes they would tell us, you know, they’d be back tomorrow or where they were going,” he said. “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,” he said.
Berger tried to press the issue, but according to a hearing transcript, May’s attorney interrupted.
“When you said earlier that it began with inspectors coming onto the property and saying, ‘We’ll be back tomorrow,’” the judge said when she resumed, “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?”
“I don’t believe it’s a conspiracy,” May answered, “but I think, in my opinion, if they would let me know that, I would let everyone else know that.”
May will be sentenced in August on one count of conspiracy to defraud the federal government for his actions at the former Massey Energy mine, now owned by Virginia-based Alpha Natural Resources. May, the highest-ranking mine official charged in the blast so far, is cooperating with federal prosecutors in a continuing investigation.
Former security chief Hughie Elbert Stover, meanwhile, is appealing his conviction and a three- year sentence for lying to investigators and ordering a subordinate to destroy documents.