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COpy - The original was filedthe Clerk's Office at Charleston

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF WEST VIRGIN

BECKLEYFEB 222012

TERESA L. DEPPNER, CLERK. U.S. District CourtSouthem District of West VIr lnlaUNITED STATES OF AMERICAv. CRIMINAL NO. ,:i - I ? - OCG ;)0GARY MAY

INFORMATIONThe United States Attorney Charges:

BackgroundAt a l l re levant t imes:1. Performance Coal Company, Inc. ("Performance"), was a

corporation engaged in the business of operat ing an undergroundcoal mine near Montcoal, Raleigh County, West Virgin ia , known asthe Upper Big Branch mine ("UBB" or the "Mine"), the productsand operations of which affected in ters ta te commerce. As such,Performance was an "operator" within the meaning of 30 U.S.C. 802(d), and Performance and UBB and persons employed a tPerformance and UBB were subject to the provisions of theFederal Mine Safety and Health Act of 1977 (the "Mine Act") andto the regulations promulgated thereunder. Performance was awholly owned subsidiary of Massey Energy Company.

2. The Mine Safety and Health Administ ra t ion ("MSHA") wasan agency of the United States and of the United Sta tesDepartment of Labor (DOL), and was responsible fo r the


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enforcement of the Mine Act and the promulgat ion and enforcementof fede ra l r egu la t ions re la ted to mine sa fe t y and hea l th ,codif ied in Ti t l e 30 of the Code of Federa l Regula t ions .

3. Among th e mine safe ty and hea l th requi rementspromulgated and enforced by MSHA and app l icab le to UBB were th efo l lowing:

a . Cer ta in areas of the Mine were required torece ive a quan t i ty of vent i l a t ing a i r (measured in cubic

fee p e r minute) t ha t was s u f f i c i e n t to d i l u t e , renderharmless , and car ry away flammable, explos ive , noxious, andharmful gases , dus t s , smoke, and fumes. 30 CFR 75.325.

b. In any pa r t of the Mine where coa l was ac t ive lybeing ex t rac ted (a "working face") , an approved ve n t i l a t i oncon t ro l device ( typica l ly spec ia l i zed , heavy mater ia lca l l ed \\ l i ne cur t a in , " which i s used to d i r e c t th e flow ofa i r in mines) had to extend to within 10 f e e t of thedeepes t p o in t of mine pene t ra t ion . 30 CFR 75.330. Thisrequirement i s designed in p a r t to ensure t h a t enough a i rreaches th e deepes t p o i n t o f mining to preven t dangerousbui ldups of exp los ive gases and dus t s , as wel l as theinhala t ion of coa l dus t , a hea l th hazard .

c . Cer ta in s ign i f i c a n t changes in th e Mine 'sve n t i l a t i on could be made only if a l l persons not involved

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in making th e change had been removed from th e Mine; andonly if e lec t r i c power had been removed from, andmechanized equipment was shu t down in , th e areas of theMine af fec ted by the change. 30 CFR 75.324. Thisrequirement was in tended , i n p a r t , to prevent explos ionsfrom unexpected e f f e c t s of th e v e n t i l a t i o n change.

d. Coal dus t and loose coa l fragments were requi redto be kept c leaned up and no t al lowed to accumulate . 30 CFR

75.400. This requirement was in tended to preventaccumulat ions o f combustible mater ia l t h a t could fue l anexplos ion .

e . Rock dust - incombust ible , pulver ized l imestonespread in coa l mines to prevent explos ions - was requi redto be appl ied in most areas of the Mine to within a t l e a s t40 f ee t of any working face . 30 CFR 75.402. At everyloca t ion in the Mine where rock dus t was r equ i r ed , a t l e a s t65% of the t o t a l dust p re sen t (rock dust , coa l dus t , andother dust) was requi red to be incombust ib le . 30 CFR75.403. In c e r t a in areas of the mine, a t l e a s t sot of thet o t a l dus t presen t was requi red to be incombust ib le . Id .

f . In a l l p a r t s of the Mine where persons worked o rt r ave led , th e roof of the Mine was requi red to be suppor tedo r con t ro l led in accordance with the Mine 's MSHA-approved

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roof-control plan, to prevent the roof from fa l l ing . 30 CFR75.220. Roof fa l l s can cause ser ious in jury and death.

g. Every machine used to extract or load coal wasrequired to be equipped with a methane monitor tha tmonitored levels of explosive methane gas and tha tautomatical ly de-activated the machine i f a methaneconcentrat ion of 2% or more developed. The methane monitoralso was required to de-act ivate the machine i f the monitorwas not operat ing properly. 30 CFR 75.342.

h. Mine personnel were required to examine variousareas of the Mine a t regular in tervals to confirm, amongother things, that vent i la t ion requirements were being metand that no hazardous conditions exis ted . Any hazardousconditions discovered were required to be corrected, withboth the hazard and the corrective action recorded in anexamination record book that was available for MSHAoff ic ia l s to inspect . 30 CFR 75.360-64.

i . Levels of respirable dust were required to betested in various locations a t regular in te rva ls in orderto determine compliance with legal l imits on such dust . 30CFR 70.100-.200. Respirable dust can cause black lungdisease.

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4. As par t of MSHA's regulatory and enforcement effor ts ,and pursuant to i t s s ta tutory author i ty , MSHA mine inspectorsmade per iodic , unannounced inspect ions of the Mine to ensurecompliance with mine heal th and safe ty laws and to imposepenal t ies for violat ions of those laws. Violators were subjectto c i v i l and criminal penal t ies under the Mine Act. During theseinspect ions, MSHA mine inspectors would and did issue c i ta t ions ,which penalized a violat ion of mine heal th and safety laws butallowed the Mine to continue operating, and orders , which werera re r than c i ta t ions and, in addi t ion to penal iz ing a violat ionof mine heal th and safety laws, required the Mine or a par t ofthe Mine to stop operat ing un t i l the violat ion was corrected. I twas prohibi ted fo r any person to give advance notice of an MSHAinspect ion.

5. Mine safety and heal th laws were rout inely viola ted a tUBB, in par t because of a bel ie f tha t tha t following those lawswould decrease coal production. These violat ions includedviola t ions of the laws described in paragraph 3. I f theseroutine mine safety and heal th v iola t ions were detected by MSHA,the resul t ing c i ta t ions and orders could resul t in coalproduction being stopped unt i l the violat ions were corrected, inaddit ion to monetary penal t ies . Furthermore, the issuance ofc i ta t ions and orders by MSHA, par t icu la r ly cer ta in kinds of

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serious c i ta t ions and orders, moved the Mine c loser to beingc lass i f ied as a mine with a pat tern or poten t ia l pattern ofviolat ions. That c lass i f ica t ion would have resul ted in increasedscrutiny of the Mine by MSHA and in MSHA's issuance ofaddit ional serious c i ta t ions and orders.

The Defendant6. Defendant GARY MAY ("MAY") began working a t DEB in or

about February 2008 as a Mine Foreman. In or about October 2009,MAY was promoted to Mine Superintendent, and he held tha tposi t ion through and including Apr i lS , 2010. During h is time asMine Foreman a t DEB, MAY exercised control and author i ty over,a t various times a t l eas t three room-and-pillar mining sectionsand a longwall mining section. During his time as Superintendenta t DEB, MAY exercised contro l and authori ty over a port ion ofthe Mine tha t included l a t various times two room-and-pillarmining sections and an area that was being prepared fo r longwallmining on or around Apr i lS , 2010, when an explosion a t DEBinterrupted tha t preparation.

The Conspiracy7. Beginning no l a t e r than February 2008 and continuing

through and including Apri l 51 2010, MAY, together with othersknown and unknown, unlawfully, wil l ful ly , and knowinglycombined, conspired, confederated, and agreed together with each

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other to defraud the United Sta tes and an agency thereof, towit, to hamper, hinder, impede, and obstruct by t r ickery,decei t , and dishonest means, the lawful and legi t imate functionsof DOL and i t s agency, MSHA, in the administrat ion andenforcement of mine heal th and safety laws a t UBB.

Object of the Conspiracy8. The objec ts and purposes of the conspiracy were to

hamper, hinder, impede, and obstruct the lawful governmentfunctions of DOL and MSHA in the administrat ion and enforcementof mine heal th and safety laws a t UBB.

Manner and Means9. I t was a par t of th is conspiracy tha t MAY, together

with others known and unknown, would and did give and authorizeand cause to be given to persons a t UBB advance notice of MSHAinspect ions, knowing and intending that the persons receivingth is advance notice would conceal and cover up violat ions ofmine health and safety laws tha t otherwise would re su l t inci ta t ions and orders issued by MSHA. MAY, together with othersknown and unknown, would and did use code phrases to give th isadvance notice of MSHA inspect ions, in order to conceal fromMSHA the fac t tha t such advance notice was being given.

10. I t was fur ther a par t of th is conspiracy tha t MAY,together with others known and unknown, upon receiving advance

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not ice of MSHA i n spec t ions a t UBB, would and d id conceal andcover up, and au thor i ze and cause th e concea l ing and covering upo f , v io l a t i o n s of mine hea l th and sa fe ty laws t h a t otherwisewould r e s u l t i n c i t a t i o n s and orders i s sued by MSHA.

11. It was fu r t h e r a p a r t of t h i s consp i racy t h a t MAY,toge ther with o ther s known and unknown, d id f a l s i f y andau thor ize and cause th e f a l s i f i ca t i on of examinat ion recordbooks a t UBB.

12. It was fu r the r a p a r t of t h i s consp i racy t ha t MAY,toge ther with o ther s known and unknown, upon l ea rn ing t h a t anMSHA inspec t ion was about to take p lace in a c e r t a in area of theMine, would and d id a l t e r , and author ize and cause th ea l t e r a t i on o f, th e ve n t i l a t i on system of the Mine to d i r e c tadd i t iona l a i r to the a rea where the in spec t ion was to takep lace , in orde r to conceal and cover up the quan t i ty of a i r t ha tnormal ly reached t h a t a rea of the Mine.

Overt Acts13. In fur therance of the consp i racy , and to e f f e c t the

i l l e g a l ob jec t s the reof , the fo l lowing over t a c t s , among o ther s ,were committed in th e Southern Di s t r i c t of West Virg in ia :

a . On many occas ions on var ious da te s betweenFebruary 2008 and A p r i l S , 2010, MAY, toge ther with othe rsknown and unknown, gave and author ized and caused to be

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given to persons a t UBB advance notice of MSHA inspections,knowing and intending that the persons receiving th i sadvance notice would conceal and cover up viola t ions ofmine heal th and safety laws that otherwise would resul t inc i ta t ions and orders issued by MSHA.

b. On many occasions on various dates betweenFebruary 2008 and Apr i lS , 2010, MAY, together with othersknown and unknown, upon receiving advance notice of MSHAinspections a t UBB, concealed and covered up , andauthorized and caused the concealing and covering up of,violat ions of mine heal th and safety laws tha t otherwisewould resul t in c i ta t ions and orders issued by MSHA.

c. On numerous occasions between around February2008 and Apr i lS , 2010, MAY, together with others known andunknown, ins t ructed persons working a t UBB regarding codephrases tha t were to be used to give advance notice of MSHAinspections a t UBB, and regarding the meanings of thosephrases.

d. On an occasion between February 2008 and Apr i lS ,2010, MAY ordered a known person to fa ls i fy examinationrecord books by omitting from the record books a hazardouscondition, to wit , water of a depth tha t made it unsafe tot ravel a certa in area of the Mine.

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e . On an occasion between February 2008 and A p r i l S ,2010, MAY, knowing t ha t MSHA was about to sample th e l ev e lo f r esp i rab le d u s t in a c e r t a i n a rea o f th e Mine,s u r r e p t i t i ous ly r ed i rec ted add i t iona l a i r to t h a t a rea o fth e Mine to conceal and cover up th e quan t i ty o f a i r t h a twould have reached t h a t area of th e Mine under normalcondi t ions .

f . In o r around February 2010, th e l e ga l ly mandated

methane moni tor on a cont inuous mining machine a t th e Minestopped ope ra t ing proper ly , which caused th e cont inuousmining machine to be automat ica l ly deac t iva ted as requi redby law. MAY caused and ordered the e l e c t r i c a l wiring in th emethane moni tor to be a l te red to de fea t th e l e ga l lymandated automatic shu t -o f f mechanism, a l lowing thecont inuous mining machine to be opera ted fo r s evera l hourswithout a func t ioning methane moni tor .

In v io la t ion o f Ti t l e 18, United Sta tes Code, Sect ion 371.UNITED STATES OF AMERICAR. BOOTH GOODWIN I IB y , ~ S t ~

-STEVEN R. RUBYAss is tan t United Sta tes Attorney

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