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Former UBB superintendent receives maximum sentence in federal case

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Former Upper Big Branch mine superintendent Gary May was sentenced Jan. 17 to 21 months in prison, the maximum sentence available, for hindering a federal investigation into the disaster.

U.S. Attorney Booth Goodwin said the investigation is ongoing but was mum on how many others could be prosecuted. 

"This sentence will send the message to mine managers and other managers that if you put profit over safety, you will go to jail."

May pleaded guilty to the charges last year. He was sentenced Jan. 17 by U.S. District Judge Irene Berger in Beckley.

According to his testimony, May would tell underground foremen when an MSHA inspector was on the grounds. 

"I would inform them that an inspector was going underground, and I didn't know where, but they would be there," May explained at a court appearance last year. "And if I did know where they would be, I would let them know." 

According to an information filed with the court, May would attempt to conceal violations such as inadequate air quantity, failure to extend the line curtain or other ventilation controls to within 10 feet of the deepest point of mining, excessive piles of coal dust and inadequate rock dust in various areas. 

Federal prosecutors also said May ordered a known person to falsify an examination book by omitting the fact that water was more than 18 inches deep in an area of the mine. 

According to the information, May also ordered the electrical wiring in the methane monitor to be altered to prevent the auto shut-off.

This allowed the machine to operate for several hours "without a functioning methane monitor while cutting rock out by the working face in a track entry to prepare for mining in a new section of the mine," the information stated.

Assistant United States Attorney Steve Ruby said although May cooperated with authorities, the court should take into consideration the seriousness of the offense. He said the court should impose the maximum of the sentencing guidelines. 

"A significant sentence would have an effect of deterring these types of offenses in the future," he told the court. 

May's attorney Tim Carrico mentioned May's cooperation with government authorities in their investigation. 

"He wasn't like many others who hung out and continued working during the investigation," he said. "He didn't want to hang out. He wanted to cooperate with the government." 

"He was in a situation where he was influenced by the people around him," Carrico later told the court. "He could have got out but he didn't. ... He has no criminal history and his work history is superb. He probably will never work at a coal mine again." 

Carrico said May has been driving a truck, "not making much more than minimum wage" to support his family. 

May made a short statement during the hearing apologizing for his conduct. 

"I know what I did was wrong and criminal," he said. "I apologize to my family and the court for my actions." 

Berger said she found the maximum advisory guideline sentence appropriate, noting that she took into account his cooperation with the government, his lack of a criminal history and the seriousness of the crime. 

In addition to his sentence, Berger also imposed a fine of up to $20,000. She did not set restitution saying his action did not directly result in the injury or death of a person. 

"You have been a law abiding productive member of society for a number of years, but your actions could have caused catastrophic harm," she said, later adding, "That concealment related to the ventilation, air quality, covering up excess coal dust and inadequate rock dust and ordering the falsification of a record are all serious, serious actions, which could have had serious results." 

Berger said there was no indication that his actions lead to serious results. 

"This sentence should serve as a deterrence to others. It should deter business interest of mining coal and making money before the safety of miners," she said. 

However, some like Clay Mullins, of Pax, did not think the sentence was sufficient. Mullins wore a shirt with the phrase "forever in our hearts," on the front and the names of those who died in the Upper Big Branch disaster on the back. 

He lost his brother Rex in the Upper Big Branch explosion. 

"I don't think he got a very bad sentence. He got 21 months and three years of probation and he will be close to his family for 29 murders," he said. "The closest we can get to our family is the cemetery." 

Mullins said May should have received a higher sentence.

"It didn't send a good message to the mine industry. You can kill as many as you want and spend a year or two in jail with a couple of years probation," he said, later adding, "I just want this country and its people to never forget the miners who gave their life to providing energy for this nation."