Uhlmann, an expert in criminal enforcement of environmental and worker safety laws, said Goodwin worked out an "impressive settlement" in terms of civil penalties, restitution to victims and the steps Alpha will take to enhance safety. But he said the case was more than an appropriate one in which to bring criminal charges against the company.
"The bottom line is that the law authorizes those charges and, if the law is not going to be used in a case that is this egregious, when is it going to be used?" Uhlmann said in an email interview. "If you cannot bring a criminal case against the companies involved when there are years of violations and numerous deaths, when will criminal charges be brought?"
Other critics of the Alpha deal, like Rachel Moreland, a lawyer for several miners' families, complained that the company was getting credit for safety improvements it would eventually have to make anyway.
But longtime mine safety advocate Davitt McAteer, whose independent team's recommendations formed the basis for many of the safety reforms in the Alpha settlement, disagrees. McAteer, a former MSHA chief, said it takes agency officials years to implement new safety requirements, especially in the face of industry opposition and cries of over-regulation by coal's friends in Congress.
Joe Main, a former longtime United Mine Workers safety director who now runs MSHA, admitted as much during the press conference where his agency released its Upper Big Branch report.
"It's pretty clear to everyone that the U.S. Attorney can move more swiftly than we can," Main said.
At that same press conference, chief Labor Department lawyer Patricia Smith tried to argue that many of the changes Alpha has promised to implement would need an act of Congress for MSHA to require, but Main appeared to agree MSHA could -- and should -- take action itself through rulemaking proposals. "These are issues that one would believe we will be focusing attention on going forward," Main said.
It is far from certain that the mining industry will be moving quickly to adopt Alpha's reforms on its own. Carol Raulston, a spokeswoman for the National Mining Association, said last week, "Many of NMA's members, including Alpha, are already investing in safety efforts and equipment not specified, required by MSHA.
"We have not read the agreement between Alpha and the U.S. Attorney, so I cannot comment on any specific provision including the equipment stipulations," Raulston said. "As such, I am reluctant to speculate about future actions of NMA members at this time."
Other critics have argued that the total cost of the settlement -- $209.5 million -- isn't really that much money to a major coal producer.
For Alpha, the settlement amounts to about three quarters' worth of earnings, based on last quarter's results as reported to the U.S. Securities and Exchange Commission. But it's also 50 times what Massey paid to resolve civil violations and criminal charges related to the Aracoma fire.
The Upper Big Branch settlement is hardly the first time that federal prosecutors or regulators tried to figure out a way to clean up environmental and workplace violations at Massey Energy operations.
In the years before Upper Big Branch, at least four Massey subsidiaries pleaded guilty in criminal cases that called for improved operations. And the U.S. Environmental Protection Agency worked out a $20 million deal agency officials touted as the end of Massey's Clean Water Act violations, only to have citizen groups find continued problems that prompted another lawsuit.
Goodwin told reporters last week that he never would have agreed to the Alpha settlement if he were not "absolutely convinced that Alpha is committed to safety and to following the law."
But in the last year, Goodwin's office has prosecuted an Alpha miner who faked foreman's credentials for more than a year and an Alpha contractor who admitted lying to investigators about training practices at the company.
And Goodwin was very clear last week in stating that he would not make public periodic reports Alpha is required to file with his office outlining its progress in meeting the terms of the settlement.
Still, some mine safety advocates aren't jumping to join the Upper Big Branch families in criticizing the Alpha settlement. In holding their tongues, those safety advocates are putting a lot of faith in Goodwin, saying they believe his office is committed to bringing more charges in the disaster.
Pat McGinley, a West Virginia University law professor who served on McAteer's Upper Big Branch investigation team, said he's "confident" that Goodwin's investigators "will continue to pursue every lead" and "bring to justice any and all Massey corporate managers who they find have engaged in criminal conduct leading to the horrendous deaths of 29 UBB miners.
"Coal company managers and executives whose willful conduct causes the death of even one coal miner need to be held criminally accountable and if criminal prosecution and jail time becomes a real possibility for those corporate officials who place profits above miners' lives, I can guarantee that the nation's coal mines will quickly become significantly safer."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.