Breaking news: Upper Big Branch superintendent charged with ‘conspiracy’ in mine disaster probe

February 22, 2012 by Ken Ward Jr.

We broke the news earlier this morning on the Gazette’s website that federal prosecutors have charged one of the superintendents of the Upper Big Branch with conspiracy in what appears to be the next step toward moving up the chain of Massey Energy management personnel that played a role on the conditions that led to that terrible April 5, 2010, explosion that killed 29 miners.

As we reported:

U.S. Attorney Booth Goodwin alleged that Gary May plotted “with others known and unknown” to put coal production ahead of workers protection and then cover up serious safety violations on numerous occasions during the two years prior to the April 5, 2010, explosion that killed 29 miners.

May is accused of taking part in a scheme to provide advance warning of government inspections and then conceal violations before federal agents could make it into working sections of the sprawling Raleigh County mine.

Also, May is alleged to have ordered an unnamed person to falsify mine examination records by omitting a hazardous condition required to be reported and then repaired.

Prosecutors further allege that May, after learning that federal Mine Safety and Health Administration inspectors were about to sample the level of coal dust in the mine, “surreptitiously redirected” additional fresh air to the area to conceal actual working conditions in the mine.

Goodwin and Assistant U.S. Attorney Steve Ruby also allege that May “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.

Goodwin said in a statement:

Today’s charge is a significant step in the investigation of events at the Upper Big Branch mine. Our investigation of those events remains ongoing.

You can read the charges against May yourself here. But who is Gary May and how important is this development in the sprawling criminal probe of the worst U.S. coal-mining disaster in nearly 40 years?

Well, let’s be clear that this prosecution isn’t exactly like bringing criminal charges against then-Massey CEO Don Blankenship. Investigators certainly don’t believe that May was the final word on working conditions, safety problems, or the push to put production first at Upper Big Branch.

At the time of the disaster, May was one of two mine superintendents at Upper Big Branch, and he wasn’t in charge of the areas of the mine where the explosion is believed to have occurred. Here’s how this morning’s court filing describes him:

Defendant GARY MAY (“MAY”) began working at UBB in or about February 2008 as a Mine Foreman. In or about October 2009, MAY was promoted to Mine Superintendent, and he held that position through and including April 5, 2010. During his time as Mine Foreman at UBB, MAY exercised control and authority over, at various times, at least three room-and-pillar mining sections and a longwall mining section. During his time as Superintendent at UBB, MAY exercised control and authority over a portion of the Mine that included, at various times, two room-and-pillar mining sections and an area that was being prepared for longwall mining on or around April 5, 2010, when an explosion at UBB interrupted that preparation.

A management chart prepared by U.S. Mine Safety and Health Administration investigators (See page 13) put May and his fellow superintendent, Everett Hager, below Performance Coal Co. President Chris Blanchard, vice president Jamie Ferguson and mine general manager Wayne Persinger in the mine’s supervisory structure. And of course, those Performance Coal officials were all below the level of corporate officers and executives at the Massey Energy parent company.

But that hardly means that May is a nobody. And certainly, the federal criminal prosecution after the deaths of two miners at Massey’s Aracoma Alma No. 1 Mine in 2006 never got above the section foreman level. After the terrible disaster at the Crandall Canyon Mine in Utah, no criminal charges have ever been brought, despite reports from Congress outlining how such prosecutions could have been handled (see here and here).

As best I can tell, the last time a coal-mining disaster criminal probe got anywhere near charges against a mine superintendent, it was after the deaths of eight workers at Southmountain Coal Co. in Virginia back in 1992.  Mine operator William Ridley Elkins was sentenced to six months in jail. Elkins pleaded guilty to lying on an MSHA legal identify form to conceal his own role in running the Southmountain No. 3 Mine.  Mine superintendent Freddie Carl Deatherage was sentenced to serve 60 days of community confinement, followed by 12 months of supervised release, and pay a $3,000 fine.

United States District Attorney R. Booth Goodwin II, left, announces a $210 million agreement with Alpha Natural Resources Inc., in Charleston W.V.,  Tuesday Dec. 6, 2011,  in connection with the criminal investigation of events surrounding the April 5, 2010 explosion at the Upper Big Branch mine that killed 29 men. It is the biggest settlement ever reached in a U.S. mining disaster. Assistant U.S. Attorney Steve Ruby, right, looks on. (AP Photo/The Charleston Gazette, Chris Dorst)

But the record made public so far in the Upper Big Branch Mine Disaster contains some interesting things about Gary May, and he wasn’t some low-level section or shift foreman.

If you look for May’s name in published media reports so far, about the only reference you’ll find is a mention in stories based on testimony cited in the detailed report by an independent team headed by longtime mine safety advocate Davitt McAteer. Here’s what one of our stories, based on the McAteer report, said about May:

At about 3 p.m., dispatcher Adams Jenkins got a call from James Woods from the Tailgate 22 crew. Woods was driving a mantrip and asked Jenkins to confirm he had a clear road to the surface.

A couple of minutes later, “that’s when it happened,” Jenkins told investigators.

“All the dust started, just a white smoke pouring out of the portals, and it sounded like thunder,” he said. “It was constant, and I didn’t know what happened. And [mine superintendent] Gary May, he said, ‘Oh, Lord … something bad’s happened.'”

May was also among the mine managers who heroically raced into the Upper Big Branch Mine immediately after the blast, to try to rescue any survivors. May was among those who discovered some of the victims and tried to get as many as possible out alive. As described in the McAteer report, through testimony of foreman Pat Hilbert:

“I could hear Wayne working with Woodsey,” he said. “I could hear Gary May talking to … Steve. But, then all of a sudden, I hear something strange. I thought I heard Steve moan. I turned around and that’s when I guess we lost him because Gary May started CPR on him then.”

But the charging documents filed this morning indicate that May was involved in a fairly well publicized event at Upper Big Branch. It was about two months prior to the explosion and, as reported by NPR and the Pittsburgh Post-Gazette, involved a then-unnamed mine manager ordered an electrician to disable a methane detector on a continuing mining machine.  NPR summarized that incident this way:

On Feb. 13, an electrician deliberately disabled a methane gas monitor on a continuous mining machine because the monitor repeatedly shut down the machine. Three witnesses say the electrician was ordered by a mine supervisor to “bridge” the automatic shutoff mechanism in the monitor.

Readers may recall that, at the time, Massey Energy issued a statement saying there really wasn’t anything wrong with what happened:

The supervisor did not order an electrician to bridge a methane monitor on a continuous miner “to keep the mining machine from shutting off while operating.” The methane monitor was bypassed in order to move the miner from the area that did not have roof support to a safer area for repair.

But here’s one of the allegations prosecutors outlined against Gary May:

In or around February 2010, the legally mandated methane monitor on a continuous mining machine at the Mine stopped operating properly, which caused the continuous mining machine to be automatically deactivated as required by law. MAY caused and ordered the electrical wiring in the methane monitor to be altered to defeat the legally mandated automatic shut-off mechanism, allowing the continuous mining machine to be operated for several hours without a functioning methane monitor.

Interestingly enough, we can now read the sworn testimony of the Upper Big Branch electrician who was involved in this incident.  MSHA made public a transcript of electrician George Holtzapfel’s testimony to investigators when it issued its report on the disaster back in December. Among other things, Holtzapfel’s testimony seems to indicate that, after May told him to disable the methane detector, mining continued without that important piece of safety equipment:

Well, I walked away from it and they fired it back up and chewed them belt channels.

May has also come up in other aspects of the Upper Big Branch investigation. For example, Gina Jones told investigators that her husband, explosion victim Dean Jones, complained to Gary May about ventilation problems in the mine. Rock duster Nathaniel Jeter told investigators that May didn’t like him complaining about safety problems and was aware of problems getting the Upper Big Branch Mine properly rock-dusted to control explosive coal dust. Among other things, Jeter indicated in his sworn testimony that Gary May was among the mine managers who would only ensure proper rock-dusting when federal inspectors — “company” — were expected underground:

When he knew we had company come by, the entries, like the drift mouth and stuff like that on either parts of the mine, would be dusted. And I would be wondering, how did this get white because I don’t remember dusting this. And I’d hear from one of the guys that Gary May or either one of his guys that he had on his team dusted the drift mouth …

And certainly, some of the allegations against May, outlined in the charging document filed this morning, are very serious things. For example, prosecutors alleged:

On an occasion between February 2008 and April 5, 2010, May, knowing that MSHA was about to sample the level of respirable dust in a certain area of the mine, surreptitiously redirected additional air to that area of the mine to conceal and cover up the quantity of air that would have reached that area of the mine under normal circumstances.

Most interesting, though, is that May was charged not with criminal violations that are specifically outlined in the federal Mine Safety and Health Act of 1977, but with the more general crime of conspiracy. in a strategy that federal prosecutors have rarely used against bad actors in the coal industry (see here, here and here for a few examples).  This means he wasn’t acting alone. In the words of the charging document, there were “others known and unknown” who “combined, conspired, confederated, and agreed together with each other” to defraud the U.S. government “to wit, to hamper, hinder, impede, and obstruct by trickery, deciet and dishonest means” efforts by MSHA to protect the health and safety of Upper Big Branch’s workers.

And, as the other media reports (see here and here ) have also indicated, the charging of Mr. May through an “information” almost certainly indicates that he’s cooperating with prosecutors, has reached some sort of a plea agreement and — perhaps — is going to be providing testimony that moves this investigation along up the corporate ladder.

I spoke with Davitt McAteer just a few minutes ago, after he had finished reading the charging documents concerning Mr. May, and this is what he had to say:

The nature of the allegations and the fact that Mr. May was a supervisor suggests they are taking a broader look and at the higher levels of the organization. It’s encouraging, especially the fact that Mr. May is cooperating.

5 Responses to “Breaking news: Upper Big Branch superintendent charged with ‘conspiracy’ in mine disaster probe”

  1. Bob Kincaid says:


    Comparing the two statutes, might one say that a charge of “simple” felony conspiracy is less detail-oriented than a criminal MSHA charge? If so, and since this is apparently the front end of a plea deal, then such a plea is less likely to provide advance warning to potential higher-up Grand Jury targets. Looks like a smart move on Mr. Goodwin’s part.

    There are, as you note, several layers of potentially insulative defendants between Mr. May and the one man whom many, myself included, think should bear the ultimate and most severely punitive criminal liability in this ongoing nightmare of greed and corruption and death. One may hope, however, that Mr. Goodwin is working within the scope of that adage that asserts: “the wheels of Justice grind exceeding slow, but also grind exceeding fine.”

  2. Ken Ward Jr. says:


    Criminal charges under the Mine Safety and Health Act of 1977 are limited … actual violations of mine safety standards can be prosecuted only as misdemeanors. The only felony charge under mine safety-specific law is for falsifying the record books.

    My understanding is that there is a five-year statute of limitations involved in this investigation.


  3. Bob Kincaid says:

    That was my understanding, Ken. As such, a felony charge outside the MSHA list is a far better choice for Mr. Goodwin, as it affords him considerably more leeway. It seems to point up another question: why are laws relating to miner safety so utterly toothless?

    Given the nature of the allegations, that machinery was tampered with and rock dusting was done selectively, etc., it all certainly seems to point to evidence of a reckless disregard for human life, which resonates with elements of another felony for those who either ordered or countenanced it in the “Work Like You Mean It” culture.

  4. Ellen Smith says:

    Other criminal cases: KenAmerican Resources Inc. A federal appeals court upheld the convictions and sentences imposed by a lower court judge against KenAmerican Resources Inc. and four management employees for criminal mine safety violations. Both the government and the defendants had appealed aspects of the rulings issued by U.S. District Judge Joseph H. McKinley Jr. of the U.S. District Court for the Western District of Kentucky, sitting in Owensboro. But the 6th U.S. Circuit Court of Appeals upheld McKinley’s decision to dismiss some charges, upheld the convictions on other counts, and upheld the judge’s refusal to increase the defendants’ sentences.

    KenAmerican, mine superintendents Bobby Gibson and William Mallicoat, and mine foremen Andrew Hickerson and Kenneth Tucker were indicted by a federal grand jury in 2002 for improper ventilation practices and the illegal use of two continuous miners at the Paradise No. 9 coal mine in Muhlenberg County, Ky. The indictment charged the defendants with conspiracy, making false statements to MSHA, concealing material facts from MSHA, and violating the Mine Act. A jury convicted the defendants on all counts, but McKinley dismissed some of the convictions, including several felony counts (10 MSHN 366).

    Gibson and Mallicoat were sentenced to two years’ probation with six months of home detention, fined $5,000, and ordered to pay the costs of electronic monitoring. Hickerson and Tucker were sentenced to two years’ probation with four months’ home detention, fined $3,000, and also required to pay the costs of electronic monitoring.

  5. Ken Ward Jr. says:


    Just to be clear, here’s what I wrote:

    “As best I can tell, the last time a coal-mining disaster criminal probe got anywhere near charges against a mine superintendent, it was after the deaths of eight workers at Southmountain Coal Co. in Virginia back in 1992.”

    KenAmerican was not a disaster investigation.

    I was referring to DISASTER investigations, not all coal-mining criminal cases. There are other non-disaster cases since 1992 — Cody Mining and Midland Trail Resources, for two — that targeted mine superintendents.


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