(Scroll down for several updates and the document prosecutors filed today.)
Federal prosecutors in Charleston, W.Va., have filed the most serious criminal charges yet in the April, 2010, coal mine explosion that left 29 mine workers dead.
The conspiracy charges reach into the management ranks of Massey Energy and signal an effort to seek evidence against higher-level executives.
A "criminal information" accuses Gary May, a former superintendent of Massey's Upper Big Branch coal mine, of conspiring "with others known and unknown" to "hamper, hinder, impede, and obstruct the lawful enforcement ... of mine health and safety laws" at the mine.
As a superintendent, May was one of two top Massey managers at the mine and was responsible for day to day operations for portions of Upper Big Branch. He took on the superintendent's job five months before the explosion, which multiple investigations have blamed on numerous safety failures. The specific allegations against May include:
— Warning miners underground with "code phrases" when federal regulators arrived for surprise safety inspections, leading to concealment of violations.
— Falsifying "examination record books" at the mine, which identify safety problems, provide notice to federal inspectors and list needed fixes.
— Deliberately altering the air flow underground when federal safety inspectors arrived "in order to conceal and cover up the quantity of air that normally reached that area of the mine."
— Disabling a malfunctioning methane monitor on a mining machine "allowing the continuous mining machine to be operated for several hours without a functioning methane monitor."
Prosecutors do not directly link any of these allegations with the explosion two years ago, which was the worst mine disaster in the United States in 40 years. Instead, they suggest an alleged pattern of behavior that put production over safety and placed miners at risk.
"Mine safety and health laws were routinely violated" at Upper Big Branch, the charging document says, "in part because of a belief that following those laws would decrease coal production."
May is the most senior mining company official charged criminally in a mine disaster in at least 10 years. The conspiracy charges are part of a rare if not unprecedented strategy to seek charges against higher level managers and executives at Massey Energy.
Using a "criminal information" document for charges bypasses a federal grand jury and indicates the defendant has accepted a plea agreement and is ready to testify against others.
Documents released in earlier investigative reports about the tragedy show that the mine was micro-managed by senior Massey officials, including former CEO Don Blankenship. The internal company records and Blankenship's own deposition in another case describe the tracking of coal production minute by minute and foot by foot.
May is the third former Massey employee charged in an ongoing federal criminal probe.
Hughie Stover, a former security chief at the Upper Big Branch mine, was convicted in October of attempting to destroy evidence and lying to investigators about the practice of warning miners when federal regulators arrived for surprise inspections. Stover is scheduled for sentencing next week and prosecutors say they want a 25-year jail term, which is close to four times the term calculated in federal sentencing guidelines.
Last April, former mine foreman Thomas Harrah pleaded guilty to faking his official credentials and then lying about that to investigators.
The methane monitor incident involving May was first reported and documented by NPR. A number of witnesses told NPR that a few months before the explosion, May ordered an electrician to disable the device, which is used to detect explosive levels of the gas.
Methane occurs naturally in coal mines and the monitors shut down mining machines before they can spark an explosion. Operating a mining machine without a working monitor is illegal and puts miners at risk.
The April 5, 2010, explosion was sparked by a different mining machine in another part of the mine.
Prosecutors say May faces as much as five years in prison if convicted but they won't discuss any possible plea agreement or whom else their investigation targets.
Massey Energy was purchased by Alpha Natural Resources last year.
Update at 3:30 p.m. ET. The Important Distinction Between "Criminal Information" And An Indictment:
Later today on All Things Considered we'll have more. One important point: It's clear that prosecutors are looking beyond Gary May because they filed charges in what is called a criminal information and not an indictment. Former federal prosecutor David Uhlmann says a defendant "would wave indictment if he or she were going to cooperate with prosecutors and testify against other individuals. That almost always means officials who are higher up within the company."
U.S. Attorney Booth Goodwin hints at a plea agreement and cooperation. "Without commenting specifically on this case," he says, "I can tell you that a defendant can only be charged by information if he agrees to waive his constitutional right to indictment. And information typically indicates that an agreement has been reached with the defendant and that he's cooperating with the government's investigation."
That's welcome news to Gary Quarles, whose son Gary Wayne died in the Upper Big Branch explosion. "I think it's past time for them to put people like this in jail," he says. "I hope [May] can talk and maybe get some more people that's involved in this ... [and] put some of them in jail. That's what I want."
Update at 11:45 a.m. ET. More Analysis:
Ken Ward of The Charleston Gazette writes on his Coal Tattoo blog about the significant role May played at Massey Energy and says that "as best I can tell, the last time a coal-mining disaster criminal probe got anywhere near charges against a mine superintendent, it was after the deaths of eight workers at Southmountain Coal Co. in Virginia back in 1992."
Update at 9:45 a.m. ET. The Court Document:
We've posted a copy of the document filed in court today by the U.S. Attorney. You can see it here or in the box below. Just click on the headline "Charging Document" to pop up a larger version.
May, from Bloomingrose, W.Va., is 43-years-old. If convicted, he faces a possible jail sentence of five years.