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, is asking the 4th Circuit Court of Appeals to vacate his sentence.
May is claiming the government misrepresented information to the court. He also claims his counsel was ineffective.
Twenty-nine miners were killed when an explosion ripped through the Upper Big Branch mine in April 2010. Investigators have said the blast was sparked by worn and broken equipment, fueled by accumulations of methane gas and coal dust, and allowed to spread because of clogged and broken water sprayers.
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 had admitted to alerting others when inspectors were coming, but insists 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.
May also claims a conflict of interest on the part of his attorney, saying he found out after-the-fact that 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.
He has about four months remaining on his sentence.