Massey Mine Explosion: Gary May Asks 4th Cir. to Vacate Sentence

By Aditi Mukherji, JD on March 13, 2014 | Last updated on March 21, 2019

You may recall Gary May, the former Upper Big Branch mine superintendent sentenced to 21 months in federal prison for hindering U.S. Mine Safety and Health Administration investigations into the massive Massey mine explosion back in 2010 that killed 29 miners.

He is now asking the Fourth Circuit Court of Appeals to vacate his sentence. He wouldn't be the first Upper Big Branch exec to turn to the Fourth Circuit.

But what is he claiming?

Massey Explosion and Foul Play

Investigators have said the April 2010 blast was sparked by numerous safety failures, including worn and broken equipment, unchecked accumulations of methane gas and coal dust, and clogged and broken water sprayers, Ghent's WVNS-TV reports.

Federal investigators claimed Massey -- the company later sold to Virginia-based Alpha Natural Resources -- had made "systematic, intentional and aggressive efforts" to hide problems and throw off inspectors, even falsifying safety records. Managers also alerted miners when inspectors arrived, giving them time to disguise or temporarily fix dangerous conditions.

May was one of two top Massey managers at the mine. He took on the superintendent's job five months before the explosion and was responsible for day to day operations for portions of Upper Big Branch.

Petition to Vacate Sentence

May pleaded guilty in March 2012 to fraud charges for conspiring to impede the MSHA's enforcement efforts. But now he has filed a petition to the Fourth Circuit to vacate his sentence, claiming the government misrepresented information to the court and that his counsel was ineffective.

Central to May's argument is his claim that the state distorted the legality of his actions. He admitted to alerting others when inspectors were coming, but claims "the government misrepresented other facts about him and his job in court, suggesting some of the things he did were illegal even though they fell within the confines of what the federal government said he should and could do," WVNS-TV reports.

This argument is tricky given the allegations that were leveled against him during the case. Per NPR, they included:

  • Falsifying "examination record books," which identify safety problems, provide notice to federal inspectors and list needed fixes;
  • Deliberately altering the airflow underground to conceal the quantity that normally reached that area of the mine; and
  • Disabling a malfunctioning methane monitor at the mine, which is designed to prevent explosions.

May also claims his attorney had a material conflict of interest that he only discovered after-the-fact. He specifically alleges his lawyer was "taking orders" from Massey Energy CEO Don Blankenship's personal attorney even after he signed his plea agreement and was no longer affiliated with the company. May also said he was unaware his attorney represented co-defendant David Hugart.

The stakes are moderate considering May still has four months remaining on his sentence.

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