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UBB superintendent seeks light sentence

CHARLESTON, W.Va. -- A former Upper Big Branch Mine superintendent is asking a federal judge for leniency after admitting that he plotted to skirt safety rules and cover up the resulting hazards at the Raleigh County operation where 29 miners died in an April 2010 explosion.

Gary May asked U.S. District Judge Irene Berger to consider sentencing him to home confinement and probation, or at least to less than the 15 to 21 months in jail recommended by federal sentencing guidelines.

Tim Carrico, May's attorney, cited his client's lack of a previous criminal record and his ongoing cooperation with the federal investigation of the Upper Big Branch Mine Disaster.

"The underlying investigation relates to perhaps the worst mining tragedy in the history of this state, and the United States," Carrico wrote in a legal memorandum filed Monday. "Mr. May expresses sympathy and is deeply sorry for victims who lost their lives along with their respective family members and friends."

Carrico suggested that information regarding May's "important cooperation" with prosecutors could be provided to Berger privately for the judge to consider as part of her sentencing decision.

In a separate legal memo, Assistant U.S. Attorney Steve Ruby urged Berger to issue a sentence for May at the high end or even above the advisory guideline range, citing "the risk to human life and health" from criminal mine safety violations like those cited in May's plea agreement. Ruby said prosecutors could eventually ask for a reduction in May's sentence, but that it's too early to do that.

"It is true that Defendant has cooperated with the United States' investigation of conduct at the former Massey Energy Company," Ruby wrote.

"Defendant's cooperation has been valuable, and it is entirely possible that before the investigation is concluded, the value of his cooperation will warrant a motion for downward departure for substantial assistance," Ruby wrote. "At this stage, though, the value of Defendant's cooperation cannot be properly assessed for purposes of such a motion."

Carrico and Ruby had both sought unsuccessfully to convince Berger to delay May's sentencing. The judge refused, and a sentencing hearing is scheduled for Jan. 17. May faces a maximum sentence of five years in prison for one felony count.

May pleaded guilty to plotting "with others known and unknown" to put coal production ahead of worker safety and to conceal the resulting hazards on numerous occasions at Upper Big Branch. May admitted that he took part in a scheme to provide warning of government inspections and then hide or correct violations before federal agents could make it into working sections of the mine.

Among other violations, May admitted that he "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. Also, May admitted he ordered an unidentified person to falsify mine examination records by omitting a hazardous condition -- high water that could endanger workers and interfere with the flow of fresh air through underground tunnels -- required to be reported and then repaired.

Carrico argued in court filings that "there does not appear to be a link between Mr. May's conduct ... and the subject explosion." But a U.S. Mine Safety and Health Administration investigation concluded that Massey's "regular practice" of giving underground employees advance notice of inspections contributed to the disaster.

May "acknowledges the wrongfulness and seriousness of his own acts, behavior and decision constituting the basis for his conviction," Carrico wrote.

Carrico said May should have "disassociated" with what Carrico said a U.S. Probation Department pre-sentence report -- a confidential document in most federal criminal proceedings -- describes as "the corporate-wide company policy" at Massey Energy.

In late November, prosecutors revealed that a longtime Massey official, David C. Hughart, had agreed to plead guilty to two criminal charges and provide testimony to assist with the investigation.

Court records indicated Hughart admitted that he conspired "with others known and unknown" to obstruct MSHA in the enforcement of federal mine safety standards at Massey's White Buck Coal subsidiary and "other coal mines owned by Massey." But when the Hughart plea deal was announced, U.S. Attorney Booth Goodwin said he did not want to describe the conspiracy as "corporate-wide" -- at least not yet.

"I'm not sure how far I want to go with that," Goodwin said at the time. "We just aren't saying that yet."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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