There was a lot of news coverage the week before last about the guilty plea hearing for Gary May, one of the mine superintendents at Upper Big Branch. May is cooperating with prosecutors and reached this plea agreement with U.S. Attorney Booth Goodwin.
But one pretty interesting thing seems to have been missed by most of the media: The hearing raised a question about whether federal inspectors had tipped off Massey mine management about their upcoming inspection plans. This issue was mentioned only in passing in this story in the Beckley paper. (Full disclosure: I was out of town and did not attend the hearing, but read a transcript of the proceedings last week).
Here’s what I’m talking about. At one point during the hearing, U.S. District Judge Irene Berger was asking Gary May to explain exactly what he had done that constituted the crimes to which he was pleading guilty. May told the judge:
When an inspector would show up on the property, I would call underground and let them know that they were on the property, that they were getting read to come underground.
Judge Berger inquired:
And your purpose in telling about an inspector showing up at the mine was what exactly?
Gary May answered:
To inform them underground that there was an inspector coming and was probably doing to do an inspection; didn’t know where he’s doing, or if I did know whee he was going, I would let them know.
The judge wasn’t satisfied, and asked:
And was that — in doing that, was it your intention to prevent MSHA from being able to enforce the laws and regulations it is required to enforce by law?
It was my intention to let them know someone was coming. And it was — when I was section boss — I don’t know what they did exactly — But when I was section boss, if I got that information, I would go make sure my curtains were right and scatter rock dust and make sure everything looked good.
Judge Berger went on with more questions:
And are you telling me — and don’t let me put words in your mouth — that when you either gave or received that advance notice, that you did things that hampered, hindered, or prevented MSHA from being able to enforce the laws that it’s required to enforce?
Gary May, left, of Bloomingrose, W.V., former superintendent of Upper Big Branch Mine, where an explosion killed 29 workers, walks with his defense attorney, Tim Carrico, at the Beckley Federal Courthouse in Beckley W. Va., Thursday March 29, 2012. (AP Photo/Rick Barbero)
And here’s where things started to get more interesting … Judge Berger asked:
Who did you act with in committing these acts?
Who all was involved?
It started, you know, from the MSHA inspectors coming on the property. Sometimes they would tell us, you know, they’d be back tomorrow or where they were going. 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.
Judge Berger homed in on this:
So are you saying — and again — do not let me put words in your mouth, Mr. May — that not only were you and others are the mine involved in this conspiracy to prevent MSHA — to defraud the government by preventing MSHA from performing its lawful duties, are you also saying that there were MSHA inspectors involved to the extent that they would let you know when they were coming or not? And again, don’t let me put words in your mouth. That’s how I understood what you said.
At that point in the hearing, Gary May asked to confer privately with his defense attorney, Tim Carrico, and then Carrico spoke up:
Your Honor, I think he was a little confused about the initial – the question. I think the court was inquiring as to what people within UBB or for the company were involved.
Judge Berger told Carrico:
I did not limit it to UBB. I wanted to know who was involved in the conspiracy with him.
I think that was my question.
He’s prepared to answer that right now.
Then, Gary May said:
Who was involved — the — when I would call underground, all the section foremen. They would call out periodically. They would always ask, “Is there any company outside?” whether it be inspectors, whether it be in-house company and where they were going. They’d call out very periodically.
Judge Berger went back to the issue about MSHA:
All right. And when you said earlier that it began with inspectors coming onto the property and saying, ‘we’ll be back tomorrow,’ 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?
Gary May responded:
I don’t believe it’s a conspiracy, but I think, in my opinion, if they would let me know that, I would let everyone else know that.
Now, keep in mind that the Mine Act is pretty clear about prohibiting advance notice of inspections:
… In carrying out the requirements of this subsection, no advance notice of an inspection shall be provided to any person …
And MSHA’s own policies are clear:
Any information relating to inspection and investigation schedules, including an inspector’s mine assignments, shall be restricted solely to MSHA personnel who have need of such knowledge.
Another section of the Mine Act makes it clear that providing operators with advance notice is a crime (apparently regardless of whether it can be proven that the intent of the notice was to obstruct MSHA):
Unless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by a fine of not more than $1,000 or by imprisonment for not more than six months, or both.
At Upper Big Branch, MSHA officials have pushed very hard their conclusion that Massey’s practice of providing advance notice of federal inspections was a major contributing cause of the April 5, 2010, disaster that killed 29 miners. In response, a NIOSH panel concluded that Massey’s advance notice couldn’t possibly have hidden conditions at the UBB mine from properly done inspections. MSHA chief Joe Main replied with congressional testimony that attempted to defend his agency.
MSHA later issued another press release pushing its believe that advance notice remains a major problem in the mining industry:
Providing advance notice of an inspection is illegal. It can obscure actual mining conditions by giving mine employees the opportunity to alter working conditions, thereby inhibiting the effectiveness of MSHA inspections. Furthermore, it appears that current penalties are not sufficient to deter this type of conduct.
House Democrats definitely have MSHA’s back on this one. They followed up that MSHA press release with a statement of their own:
Recent troubling instances of advance notice of mine inspections outlined by federal mine safety officials show that too many mine operations just don’t get it. As we have seen with the Upper Big Branch mine tragedy, illegal advance notice of an inspection puts miners’ lives in the crosshairs. This dangerous cat and mouse game is unacceptable and must stop. Congress needs to make this type of despicable behavior a felony and those repercussions should be plainly known by everyone from the portal to the corporate headquarters. 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.
Now, the section in the MSHA internal review report on UBB that dealt with the advance notice of inspections issue (pages 73-75) did not appear to me to address the question of whether agency inspectors — for whatever reason — had given mine personnel advance notice of upcoming inspection schedules. After the UBB Disaster, MSHA issued two different policy directives (see here and here) about advance notice of inspections. Neither of those addressed the issue of inspectors providing advance notice.
Last week, I asked MSHA if agency officials had investigated whether any inspectors provided advance notice, and whether any inspectors had been disciplined for such actions or referred to the Justice Department for potential criminal prosecution …
I haven’t gotten an answer from MSHA yet.
UPDATED, April 11, 2012:
MSHA issued this statement earlier today:
“The plea hearing was MSHA’s first opportunity to hear from Mr. May about events at UBB. As you know, May, along with the rest of UBB management, declined to be interviewed during the accident investigations conducted by MSHA and the state of West Virginia. We anticipate that if the Department of Justice obtains evidence of misconduct by MSHA employees, it would either investigate the matter, share the information with MSHA so we could take appropriate action, or both.”
I’m not sure they answered my questions, which were:
Has MSHA investigated whether any of its inspectors were doing this at UBB or elsewhere? Have any inspectors been disciplined or referred to prosecutors?