There’s an important paragraph buried in U.S. Attorney Booth Goodwin’s Upper Big Branch Mine Disaster non-prosecution agreement with Alpha Natural Resources. Here’s what it says:
For a two-year period commencing on the date of the execution of this Agreement, Alpha will report its compliance with this Agreement to the Office at no less than six-month intervals. Each report to the Office will detail Alpha’s compliance with this Agreement, will provide a current list of financial expenditures made in connection with this Agreement, and will provide any other non-privileged information requested by the Office. Alpha will certify in its reports that it is in compliance with its 30 C.F.R. Part 48 [miner training] requirements. Alpha will also provide any other non-privileged information or records with respect to compliance with this Agreement requested by the Office at other times.
On Wednesday, Alpha lawyers provided this report to Goodwin and to Steve Ruby (above), his office’s lead Upper Big Branch prosecutor and a central architect of the non-prosecution agreement. I asked politely for a copy, and then I filed a formal Freedom of Information Act request for a copy. So far, I haven’t seen the report or been told what’s in it.
Steve Ruby told me in an email message:
Alpha’s given us the report and we’re reviewing it. We’ll respond further after we’ve finished the report and had a chance to discuss it with Alpha.
When I tried to press Goodwin today for a copy, or at least an answer about whether they planned to release the document, I was told that his office would have something to say about it next week, and not until then. Goodwin left me a polite voice-mail message:
We’re not going to comment on the matter until we have an opportunity to review [the report]. We’re not going to comment on it in any respect.
Keep in mind that this non-prosecution agreement is quite a different animal that a plea agreement. Alpha was allowed to avoid any corporate criminal charges against the Massey subsidiaries responsible for the 29 deaths at Upper Big Branch. A plea agreement would have required approval by a judge, providing some court oversight and — because it would happen in open court — more transparency than a non-prosecution agreement. Families of the Upper Big Branch victims, for example, would have had an opportunity to object — as the widows of Don Bragg and Elvis Hatfield did when Goodwin’s predecessor, Chuck Miller, let Massey Energy and its executives off the hook following the January 2006 fire at the Aracoma Alma No. 1 Mine. Continuing questions about whether that was the right decision in the Aracoma case make transparency by Goodwin’s office in its dealings with Alpha all the more important.
Goodwin and his staff have shown far more willingness than previous prosecutors to try to work the Upper Big Branch probe up the corporate chain of command, to bring criminal charges against individuals responsible for Massey’s production-over-safety way of doing business. Just as important as that ongoing investigation is the matter of whether, going forward, Alpha is operating in a manner that ensures no other families have to go through what the Upper Big Branch families have.
And remember that serious questions have been raised in recent weeks about Alpha’s own safety performance, and its success in cleaning up problems at the Massey legacy operations (see here, here, here and here). One recent incident at Alpha’s Road Fork No. 51 Mine was serious enough to prompt Goodwin’s office to start its own investigation, and despite a mandate in the non-prosecution agreement, Alpha has most certainly not achieved compliance with the standards for control of explosive dust in underground mines.
Ted Pile, Alpha’s press spokesman, has said that his company considers its reports to Goodwin’s office “private correspondence between the two parties.“
Does Booth Goodwin think the public deserves to know what Alpha has done to avoid a repeat of Upper Big Branch? I guess we’ll find out.