[Updated (July 5, 2012) below]

“We’re still in the dark,” explained one family whose son was killed 27 months ago at Alpha Natural Resources (formerly Massey Energy’s) Upper Big Branch mine (UBB).  That comment came two weeks ago after learning that Alpha, one of the world’s largest coal companies, provided its first progress report to U.S. Attorney Booth Goodwin as required by the December 2011 Non-Prosecution Agreement.  The report was dated June 4, 2012.  The progress report is supposed to describe the firm’s compliance with the agreement, which settled the U.S. Department of Justice’s investigation of corporate wrongdoing related to the massive coal dust explosion that killed 29 coal miners on April 5, 2010 at the UBB mine.  This family member and others feel “still in the dark” because a copy of that report has not been shared with them.

After the Charleston (WV) Gazette’s Ken Ward Jr., reported that Alpha considers the report confidential for Freedom on Information Act (FOIA) purposes, one UBB family member said to me “that wasn’t part of the agreement.”  Indeed it wasn’t.  If fact, the phrases of the FOIA exemption in which Alpha is apparently invoking (i.e., Exemption 4) contains the phrases: “trade secrets,” “commercial or financial information” and “confidential.”  None of those terms appear a single time in the December 2011 Non-Prosecution Agreement.  So what’s Alpha have to hide?  Why the secrecy?

Seven family members who lost loved ones at the Upper Big Branch mine sent a letter on June 20, 2012 to U.S. Attorney Booth Goodwin asking for a copy of Alpha’s progress report.  The group included the parents of 21 year old Adam Morgan, and the wives of Robert Clark, 41, Edward Dean Jones, 50, and Joel Price, 55.  They wrote:

“…we believe we have a right to see for ourselves whether Alpha is making good on its promises.  We learned many hard lessons on April 5, 2010, including this one: government agencies are given responsibility to protect workers’ safety, but we cannot just assume that they will fulfill that duty.  We believe you should release the full Alpha progress report and allow public scrutiny of it.”

The assistant U.S. attorney confirmed the next day in a phone conversation that Alpha Natural Resources had in fact designated their first progress report “confidential” for FOIA purposes.  Whether the entire progress report or even portions of it actually qualified as a “commercial or financial information” or a “trade secret” was being considered by government officials, but that meant DOJ wasn’t going to cough up the report any time soon.  The UBB families needed another route.  I suggested they go to directly to the source.

On June 22, I emailed a letter to Mr. Victor Hou, Esq. of Cleary Gottlieb Steen & Hamilton on behalf of the UBB families.  I provided a copy of the letter these individuals sent earlier in the week to the U.S. Attorney Booth Goodwin.  I noted that we’d learned that Mr. Goodwin’s office was hindered in releasing the report because of Alpha’s request for confidentiality.  Rather than going through the U.S. Attorney’s Office as a middleman, the families decided to ask Alpha’s attorneys directly for the report.  I explained:

“I am writing to request that Alpha Natural Resources, Inc., provide a copy of these documents directly to the families. … Please contact me by email or phone and I would be happy to provide contact information for a family member who will receive the documents on behalf of the entire group.”

Seven phone calls and messages later—one per day—the attorneys for Alpha “Running Right” Natural Resources have yet to respond to the UBB families’ request, or even return a phone.  The secrecy continues.  It makes me wonder what Alpha has to hide.  I wonder if its shareholders feel the same way?

This latest chapter in the Massey Energy/Alpha Natural Resources saga began on June 18, 2012 when U.S. Attorney Booth Goodwin issued a news release applauding Alpha’s safety improvements.  The news release was packed with phrases such as “substantial progress,” “accidents are down,” “injuries are down,” “very positive,” and “great strides.”  But, because Alpha’s report was not made public, all of us, including the UBB victims’ families were forced to take the U.S. Attorney’s word for it.  Among other things, the U.S. Attorney asserted:

“At former Massey mines, the total reportable incident rate, a statistic measuring overall accidents, fell from 5.74 in the quarter just after Alpha assumed control to 3.86 in the quarter after the Agreement, a decline of 32.8%. Non-fatal days lost, a measure of injuries, dropped from 3.23 in the quarter just after Alpha assumed control to 2.45 in the quarter after the Agreement, a decrease of 24%. Alpha reported that accidents are down by nearly one-third at former Massey mines now owned by Alpha, and injuries are down by nearly 25%.”

Within a couple of hours, a cover letter prepared by the coal company’s New York City-based attorneys at Cleary Gottlieb Steen & Hamilton  was released by the Justice Department.  According to the Charleston (WV) Gazette’s Ken Ward Jr., this cover letter is what the U.S. Attorney’s is calling the “public” version of the report.  The trouble was, the vanilla pudding “public” version didn’t include some of the key details that the U.S. Attorney was playing up in his news release.  Moreover, snippets in the “public” version of the report were short on substance.

Does Alpha really think we’ll be impressed when they write:

“Alpha has conducted safety compliance visits at each of its affiliates’ underground mines in the past six months.”

Massey Energy also had a program to conduct safety audits.  We learned how effective those were at changing the organization’s practices.  Why should the UBB families believe anything has changed at this firm, except for the name?  Their secrecy doesn’t help their cause.

And these family members aren’t the only individuals asking Alpha to disclose its progress report.  The ranking Democrats on the House Committee on Education and the Workforce sent a letter to the firm’s CEO Kevin Crutchfield questioning the veracity of company’s “Running Right” safety program.  Congressman George Miller (D-CA) and Congresswoman Lynn Woolsey wrote that the program was

“widely touted as a remedy to the widely discredited Massey safety culture” but it may not be “having the positive impact promised by Alpha.”

The lawmakers, who are on the House congressional committee responsible for oversight of worker safety referred to a recent belt-line fire at Alpha’s  Road Fork #51 mine in Wyoming County, WV.  Besides failing to evacuate the mine when the fire started, MSHA inspectors subsequently found

“accumulations of fine and loose coal up to 18 inches deep at one head drive, and up to 16 inches deep along belt conveyors.”

As long as the UBB families ask, I’ll continue to make my calls to Mr. Victor Hou at Cleary Gottlieb Hamilton & Steen asking for a copy of Alpha’s progress report.  Maybe one of these days, Alpha Natural Resources will not only have the catchy slogan “Running Right, Leading Right, Living Right,” but will actually follow it.

[Update (July 5, 2012): I received in the mail today a letter from Mr. Victor Hou responding to my request on behalf of the UBB families.  It reads in part:

“The contents of the report reflect Alpha’s confidential and proprietary business and financial information, including Alpha and its affiliates trade secrets.  For this reason, Alpha requested that the report  be treated as confidential under the Freedom of Information Act when it was provided to the Office [U.S. Attorney].  There is no requirement under the December 6, 2011 Agreement for Alpha or its affiliates to disclose their proprietary information that may be contained in such reports publicly.   …For the reasons discussed above, Alpha respectfully declines to provide you with a copy of the report.”]