Gary May, left, former superintendent of the Upper Big Branch mine in West Virginia, pleaded guilty to conspiring to conceal health and safety violations. (Rick Barbero / Associated Press / March29, 2012)
Washington—A former mine official has pleaded guilty to conspiring to impede mine safety enforcement at the Upper Big Branch mine in West Virginia, where 29 workers died in a 2010 explosion.
Gary May, 43, of Bloomingrose, W. Va., admitted Thursday to concealing health and safety violations, using code phrases to give advance warning of inspections and ordering a mine examination book to be falsified. His actions, while he was superintendent of the mine, were intended to mask safety violations, including poor airflow and accumulation of explosive coal dust, two factors that have been deemed causes of the deadly explosion.
May is scheduled to be sentenced Aug. 9. He faces up to five years in prison and a $250,000 fine.
R. Booth Goodwin II, the U.S. attorney for the Southern District of West Virginia, said May was cooperating with investigators. The conspiracy charge against him suggests other individuals might also be targets in the ongoing investigation into the blast.
“We hope he can give us a better picture of what was going on at this company,” Goodwin said in a prepared statement.
Alpha Natural Resources, the owner of the West Virginia mine, reached a settlement with federal prosecutors late last year, agreeing to pay a record $209 million in compensation and fines. The agreement stopped prosecutors from pursuing criminal charges against the firm, which last June acquired Massey Energy, the company that owned Upper Big Branch at the time of the explosion.
The deal with prosecutors applied only to the company. At the time, Goodwin pledged that “no individuals are off the hook.”
Report: Safety agency failed to enforce laws at deadly mine
A miner's boots, helmet and gloves sit at a makeshift memorial in Whitesville, W.Va., for the miners who died in an explosion at Massey Energy Co.'s Upper Big Branch mine in Montcoal, W. Va. (Amy Sancetta / Associated Press / April 13, 2010)
The federal agency charged with ensuring mine safety failed to enforce laws that might have prevented the Upper Big Branch mine explosion that killed 29 coal miners and seriously injured two others, according to an independent assessment of the 2010 incident.
If the Department of Labor’s Mine Safety and Health Administration had enforced existing safety laws in a timely manner, “it would have lessened the chances of – and possibly could have prevented – the explosion,” a four-person panel of mine safety experts concluded.
The report’s conclusion was disputed by mine safety chief Joseph A. Main at a hearing held Tuesday by the House Education and Workforce Committee.
Main, who has been in charge of MSHA since late 2009, said the agency’s enforcement efforts were hampered by a lack of resources and by mine operator Massey Energy Co.’s efforts to conceal violations.
“We didn’t catch everything; there is no doubt about that,” Main told reporters after the hearing. “But at the end of the day, I don’t place those inspectors on the same level I do [Massey CEO] Don Blankenship’s management of that mine.”
In its investigation, MSHA blamed Massey and subsidiary Performance Coal Company for “systematic, intentional, and aggressive efforts…to avoid compliance with safety and health standards, and to thwart detection of that non-compliance by federal and state regulators.”
A spark is believed to have ignited the deadly blast. Such ignitions occur about 14 times per year in long wall mining, which involves using heavy machinery to take an enormous single slice out of a wall of coal. But the ignitions don’t typically cause deadly blasts because mine operators are required to take safety measures to reduce methane levels and control coal dust.
At Upper Big Branch, methane was allowed to build as airflow was limited by poor ventilation due to a nearby roof collapse. The independent panel faulted MSHA for failing to flag the mine’s lack of roof supports – which were required – despite inspecting that area of the mine four times between December 2009 and April 2010. If regulators “had completed their required enforcement actions during at least one of the four inspections, it is less likely that a roof fall would have occurred,” the panel concluded.
Main said that portion of the roof was inspected just once during that time frame. He believes the inspector was unaware of the requirement for additional support.
The panel said that MSHA also “failed to take appropriate enforcement actions” when regulators saw coal dust building up in the mine. Explosive coal dust is believed to have been the fuel that allowed the blast to roar through the mine’s caverns.
If the agency had acted, “even if a frictional ignition had occurred, there would have been little or no accumulated methane to fuel the gas explosion, and even if a gas explosion had occurred, there would have been insufficient combustible coal dust to fuel a massive explosion,” the report said.
Main suggested the conditions in the mine might have been concealed from inspectors. He said the agency suffered considerable staffing losses from 2001 to 2006 and was still struggling to fulfill its enforcement duties.
“Could we have done better? There’s absolutely no question about that,” Main said. But “if you expect to have an effective enforcement agency, you’ve got to pay for it. I think it’s that simple.”
The panel’s findings led some lawmakers to believe the mine safety agency holds some responsibility for the deadly explosion.
“Some of the inspectors from MSHA failed to catch things that really can’t be written off for lack of experience or a lack of personnel – they just didn’t do their jobs very well,” said Rep. Rob Andrews (D-N.J.). “And I think there should be some consequences in those cases.”
Still, Congress is also responsible “for not giving MSHA all of the tools and resources and personnel that it has needed over time,” Andrews said.
West Virginia Rep. Nick Rahall said, “I do not excuse MSHA’s failures, but the Congress should not withhold effective, life-saving authorities from the agency as some sort of penalty.”
Alpha Natural Resources, the company that acquired Massey after the explosion, reached a settlement late last year with the Department of Justice in which it agreed to pay a record $209 million in compensation and fines, and federal prosecutors agreed not to pursue criminal charges against the company.
The settlement included $46.5 million in criminal restitution to the families of the 29 miners who died and to the two others who were injured. Each will receive $1.5 million.
The agreement did not prevent prosecutors from going after individuals who might have acted criminally. Last month, prosecutors charged the then-superintendent of the mine with conspiring with others to block federal regulators from enforcing safety requirements – a charge that suggests other individuals are likely targets of action as well.
Prosecutors allege that the former superintendent altered the mine’s ventilation system while an inspector was taking an air sample and ordered that a monitor be rewired so that mining could continue despite elevated levels of methane.