UBB Superintendent Pleads Guilty To Conspiracy

Gary May, 43, of Bloomingrose, W.Va., pleaded guilty today in federal court before United States District Judge Irene C. Berger to conspiracy to impede MSHA’s enforcement efforts at Massey Energy’s Upper Big Branch mine between February 2008 and April 5, 2010.

Signaling that the case is far from over, May has agreed “to be named as an unindicted co-conspirator and unindicted aider and abettor, as appropriate, in subsequent indictments or informations,” and will also appear again before a grand jury. He faces up to five years’ imprisonment and a $250,000 fine when he is sentenced on August 9, 2012.

In commenting on May’s guilty plea, U.S. Attorney for W.Va., Booth Goodwin said, “People who run coal mines have a fundamental obligation to be honest with mine regulators.  When mine operators resort to tricks and deceit to keep government officials in the dark, our mine safety system unravels and miners are put in harm’s way. The least we can do for coal miners is protect the integrity of the laws designed to keep them safe.”

Under the conspiracy charge, “May, together with others known and unknown, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed together with each other to defraud the United States and an agency thereof, to wit, to hamper, hinder, impede, and obstruct by trickery, deceit, and dishonest means, the lawful and legitimate functions of DOL and its agency, MSHA, in the administration and enforcement of mine health and safety laws at UBB,” according to court documents.

May has stated to the court that he and others gave advance notice of MSHA inspections, “knowing and intending that the persons receiving this advance notice would conceal and cover up violations of mine health and safety laws that otherwise would result in citations and orders issued by MSHA.” May and others used code phrases to underground miners to try and conceal and cover up MSHA violations before the MSHA inspectors got down into their section of the mine. May also admitted that he would hang or rehang ventilation curtains to direct additional air to the area where the inspection was to take place or if there were going to be respirable dust samples taken for that particular area. May would also rock dust areas when he knew MSHA was coming.

May pleaded guilty to falsifying and authorizing the falsification of examination record books at UBB and ordered an employee to omit from the record book conditions of high water that made it unsafe to travel in parts of the mine. He also admitted to having a methane monitor rewired so a continuous miner would not automatically shut-off when excessive methane was detected.

May has stated that during his entire employment at UBB, “health and safety laws were routinely violated at the mine, in part because of a belief that following those laws would decrease coal production …and
also would result in monetary penalties.” May also knew that additional citations would bring the mine that much closer to a “potential patten of violations,” resulting in “increased scrutiny of the mine by MSHA and in MSHA’s issuance of additional serious citations and orders.”


Gary May was charged and pleaded guilty to violating 18 U.S.C. § 371, also known as the “general conspiracy statute.”

The following is from the U.S. Attorneys Criminal Resource Manual on the legal definition and case law relied upon for such a charge.

The general conspiracy statute, 18 U.S.C. § 371, creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose. (emphasis added). See Project, Tenth Annual Survey of White Collar Crime, 32 Am. Crim. L. Rev. 137, 379-406 (1995)(generally discussing § 371).

The operative language is the so-called “defraud clause,” that prohibits conspiracies to defraud the United States.

Although this language is very broad, cases rely heavily on the definition of “defraud” provided by the Supreme Court in two early cases, Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

Hass, 216 U.S. at 479-480.

In Hammerschmidt, Chief Justice Taft, defined “defraud” as follows:

To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

Hammerschmidt, 265 U.S. at 188.

The general purpose of this part of the statute is to protect governmental functions from frustration and distortion through deceptive practices. Section 371 reaches “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Tanner v. United States, 483 U.S. 107, 128 (1987); see Dennis v. United States, 384 U.S. 855 (1966).

The “defraud part of section 371 criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another statute.” United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989).

The word “defraud” in Section 371 not only reaches financial or property loss through use of a scheme or artifice to defraud but also is designed and intended to protect the integrity of the United States and its agencies, programs and policies. United States v. Burgin, 621 F.2d 1352, 1356 (5th Cir.), cert. denied, 449 U.S. 1015 (1980); see United States v. Herron, 825 F.2d 50, 57-58 (5th Cir.); United States v. Winkle, 587 F.2d 705, 708 (5th Cir. 1979), cert. denied, 444 U.S. 827 (1979).

Thus, proof that the United States has been defrauded under this statute does not require any showing of monetary or proprietary loss. United States v. Conover, 772 F.2d 765 (11th Cir. 1985), aff’d, sub. nom. Tanner v. United States, 483 U.S. 107 (1987); United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826 (1975); United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied, 414 U.S. 821 (1973).

Thus, if the defendant and others have engaged in dishonest practices in connection with a program administered by an agency of the Government, it constitutes a fraud on the United States under Section 371. United States v. Gallup, 812 F.2d 1271, 1276 (10th Cir. 1987); Conover, 772 F.2d at 771. In United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990), the defendants’ actions in disguising contributions were designed to evade the Federal Election Commission’s reporting requirements and constituted fraud on the agency under Section 371.

The intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government. It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made. The government is not required to prove the statements ultimately resulted in any actual loss to the government of any property or funds, only that the defendant’s activities impeded or interfered with legitimate governmental functions. See United States v. Puerto, 730 F.2d 627 (11th Cir.), cert. denied, 469 U.S. 847 (1984); United States v. Tuohey, 867 F.2d 534 (9th Cir. 1989); United States v. Sprecher, 783 F. Supp. 133, 156 (S.D.N.Y. 1992)(it is sufficient that the defendant engaged in acts that interfered with or obstructed a lawful governmental function by deceit, craft, trickery or by means that were dishonest”), modified on other grounds, 988 F.2d 318 (2d Cir. 1993).

Two Indicted for Lying

Timothy Allen Hurd, 32, was indicted today by a Kentucky grand jury for falsely certifying that he was a mine foreman and Paul Jaston Arnett was indicted by another Kentucky grand jury for claiming he was a certified underground mine instructor. More in Mine Safety and Health News, Vol, 19, No. 7

Vol. 19, No. 6

  • Accidents:
    • Bursting tire injures three at Vulcan’s Savannah Quarry (168)
    • Incorrectly fastened lanyard fails miner at Mammoth Coal’s Alloy Powellton mine (169)
    • Mechanic falls unconscious in Jerritt Canyon’s truck shop (169)
    • Miner slips off elevated screen area at Conklin Quarry in Iowa (170)
    • Miner hurt at unregistered sand pit in El Paso County, Texas (170)
  • Civil Penalties: Labor Dept. goes after Kentucky operator for $1.6 million in unpaid penalties and interest (171)
  • Criminal Proceedings:
    • Crandall Canyon charges filed, guilty plea entered, case closed (171)
    • Safety director agrees to guilty plea for forging miners’ signatures on training documents (173)
    • UBB security chief files appeal with 4th Circuit (173)
  • Electrical Equipment:
    • ALJ affirms $1 penalty for record keeping violation (173)
    • Keep intrinsically safe circuits apart, MSHA warns (174)
  • Fatalities:
    • W.Va. Foreman killed by rib fall at Alpha’s Kingston No. 2 Mine (175)
    • Foreman fatally caught between mobile surface machines at Ohio American Salt Run Mine (176)
    • Responders recover owner who perished in old Colorado mine (176)
    • Gem mine owner killed in ground fall (177)
    • Upturned slab of rock failed to block against fatal motion in machinery repair (178)
    • Failure to protect Kensington Mine Blasters was unwarrantable, MSHA reports (180)
  • Freedom of Information Act: Court rules that MSHA properly exempted documents as “work product” (182)
  • Inspections: Frequent hazard complaints lead list for impact inspections (184)
  • Investigations: Inspectors missed conditions at UBB; systemic problems remain since JWR disaster (184)
  • Liability: Agents of LLCs treated same as corporations for purposes of 110(c) under the Mine Act (186)
  • On the Move: MSHA gets new Standards director (188)
  • Review Commission, ALJ Decisions & Settlements (189)
  • Quarterly Case Review (193)

Genwal Gets $500,000 Fine For Disaster


Genwal Coal Gets $500,000 Fine for Crandall Canyon Disaster

Mine Safety and Health News

A two-count Information, filed in U.S. District Court in Salt Lake City Friday afternoon, charges Genwal Resources, Inc., the corporate owner of a coal mine at Crandall Canyon, with two criminal violations of mandatory health and safety standards under the Federal Mine Safety and Health Act. The company has agreed to plead guilty to both charges in the Information and to pay a $500,000 fine.

The first count of the Information charges Genwal for failing to timely report to MSHA that a significant coal outburst occurred on March 10, 2007, that disrupted regular mining activity for more than one hour and caused the permanent withdrawal of miners from the area. Regulations require mining operators to contact MSHA within 15 minutes once they know that an accident has occurred.

The second count of the Information alleges the company violated a health and safety standard in an area of the mine known as Main West South Barrier by mining in an area that the MSHA-approved roof control plan expressly prohibited. Specifically, the Information alleges that Genwal mined the barrier pillar on or about Aug. 3, 2007, in the No. 1 entry between crosscuts 142-139, in violation of the roof control plan.

As a part of the plea agreement, the U.S. Attorney

Training Makes a Difference

In the early 1990s, we saw a great number of criminal/misdemeanor cases for dust violations and cheating on dust sampling. These past couple of years brings criminal convictions for training violations — and for good reason.

The latest conviction is Jason Jones the purported “safety officer” of Western Construction Inc. Mr. Jones admitting forging signatures of six miners — claiming they had received their annual safety training when in fact they had not.

Training is necessary, and not a necessary evil.

Training saves lives.

Training instills confidence on what to do if something does go wrong.

Training is the time to say, “I own this business (or I am the safety manager), and we will do everything by the book.”

Training is what prevents amputated fingers.

Training can prevent strains and injuries from improper lifting or lifting too much.

Using the accident reports in training, as a reminder on what not to do, can instill the mindfulness needed on the job.

One has to ask, who trained Mr. Jones? Why did he think that training was so unnecessary?

Will the recent criminal convictions that we see make a difference? Will training be done because you will get busted if it’s not done, or will training be done to prevent the same accidents that we see over and over again?

The only way that accidents will decrease (along with your worker’s comp and insurance premiums) is if training is embraced as a good thing for workers who are the backbone of the American economy.

For anyone who doesn’t see the value in training — like Mr. Jones who found it more convenient to forge signatures than to properly train the workers under him — get out of the business. I am sure that we can find a reputable, laid-off safety manager to take your place.

UBB Settlement Gets Commission Approval “With Great Caution”

Another phase of the global settlement in the Upper Big Branch mine disaster has reached a conclusion with Chief ALJ Robert Lesnick and ALJ Margaret Miller approving a $19.8 million settlement of Massey Energy “legacy” cases, but “with great caution.”

The settlement motion was filed by Alpha Natural resources on behalf of Performance, as well as the former Massey operators.

The settlement notes that a disproportionate number of the citations and orders in the settlement were characterized by MSHA as high negligence, S&S, unwarrantable failure, and even “flagrant” violations.

Lesnick and Miller said they were assured by Alpha that the Secretary of Labor accurately evaluated the gravity and negligence in proposing a penalty for each docket included in the motion. The ALJs also noted that a number of the citations and orders at issue with UBB before the explosion, and part of the global settlement, were not abated and the mine was issued a significant number of”failure to abate” orders prior to the citations and orders actually being abated. Again, it was Alpha who asserted that the Secretary considered the unprecedented number of failure to abate orders issued in assessing the penalties in each case.

Chief Judge Lesnick and ALJ Miller brought up the Aracoma mine fire, and noted that after that, “Massey contested every single piece of paper issued by MSHA,” and FMSHRC Commission Robert Cohen “decried Massey’s apparent strategy of contesting every citation and order issued by MSHA as an “outrageous” intentional burdening of the administrative judicial system. … Here, Performance has continued the Massey practice with its contest of every citation and order written by MSHA at the mine after April 5, 2010, by filing a separate notice of contest for each. It would appear to be a strategy enlisted by the mine to overwork an already overloaded system. … The burdening of the judicial system was one of the means Massey employed to avoid responsibility for its actions.

“Given that the former Massey mines are now owned by Alpha, we are hopeful that such a strategy will be abandoned,” the ALJs said. In approving this settlement, the ALJs brought up the Aracoma settlement and the fact that it was Lesnick who questioned whether the Aracoma settlement was adequate given the behavior of, and the size of the company. Lesnick was also harshly critical then, and now he and Miller, of the compensation package given to Massey’s former CEO Don Blankenship in light of the Aracoma fire and now the UBB disaster. It was after the Aracoma fire that Blankenship received a compensation package that probably exceeded $23 million. And now, “That same CEO received a package from Massey prior to the buy-out by Alpha that included, among other things, a $12 million golden parachute, potential performance bonuses, and deferred compensation. … Since its purchase of Massey, Alpha has grown significantly larger, and is able to pay a total amount of over $200 million for fines, programs, and restitution, while at the same time continue in business,” the ALJs wrote.

The settlement is part of the

Inspectors Missed Conditions At UBB

Inspectors Missed Conditions At UBB
An MSHA internal review team found that MSHA inspectors missed citing the deadly Upper Big Branch Mine for obvious conditions such as accumulations of coal dust, and the need for supplemental roof support in order to prevent ventilation passageways from collapsing.
In addition, lack of MSHA inspector experience, personnel turnover and lack of funding were among the causes for these and other agency lapses, according to the report released today.
Although MSHA personnel missed some violations, if any MSHA inspector had been present and seen conditions on the longwall section just prior to the explosion, “that mine would have been shut down without question,” MSHA chief Joe Main said in a telephone news conference this afternoon where he announced the findings.
“[P]ractices that were engaged in by the mining company” were “designed to prevent MSHA from finding conditions,” Main stated.
Similarities can be found with MSHA