Southern West Virginia Citizen groups have been after the state Department of Environmental Protection for a long time to address concerns they have about Massey Energy’s Brushy Fork impoundment in Raleigh County.

So, it certainly got my attention when a WVDEP news release showed up in my Inbox just a little bit ago with the headline, “WVDEP Issues Notice of Violation to Massey Energy’s Marfork Coal Subsidiary.” The release announced:

The West Virginia Department of Environmental Protection has issued a notice of violation to Massey Energy’s Marfork Coal subsidiary for failure of an upstream expansion of its Brushy Fork Impoundment to meet the engineering factor of safety of 1.5 required for coal dams.

And, it assured the public:

The violation is limited to the area of the upstream expansion on the pool side of the dam. The existing structure at Brushy Fork, including the downstream face of the dam, complies with the required factor of safety.  There is no risk to the community downstream of the impoundment.

But the most interesting part to me (so far, that is, I’m still looking into this story and will probably have more to report later) was this:

The DEP received a 10-day notice from the Office of Surface Mining, Reclamation and Enforcement, which notified the agency that it was aware of the safety factor issue and will take action against Massey if the DEP does not take its own action.

Does this means that WVDEP discovered this violation only after federal OSMRE inspectors brought it to their attention?

Remember that the Obama administration is trying to gear up OSMRE’s  oversight of state agencies, including starting federal inspections that are not announced to state regulators. Coal state political leaders and the mining industry, of course, are opposing these reforms.

On the Brushy Fork situation, the WVDEP news release says:

A factor of safety is the measure by which the strength of a structure’s design exceeds the maximum stresses it will endure.  A 1.5 factor of safety requires a structure be capable of withstanding 50 percent more force than the maximum force that is expected to be placed on it. The safety factor of the recent upstream expansion of the impoundment has been calculated to be 1.32, meaning it is capable of withstanding about 1/3 more force than is expected to be exerted on it.  

 DEP engineers and inspectors trained in impoundment inspection closely monitor the Brushy Fork and other impoundments throughout the state.  Marfork has submitted an application to WVDEP for a permit revision that is intended to remedy the situation.  The notice of violation will require the company to continue to pursue corrective action to achieve the required safety factor.  Massey has the right to appeal the notice of violation. 

“While the upstream expansion of the dam is at a factor of safety of 1.32 and it is capable of withstanding forces well in excess of those that are expected to be placed on it, I directed the staff to issue a violation out of caution and because we are sensitive to the concerns of the communities nearby the impoundment,” said Tom Clarke, director of the Division of Mining and Reclamation for the DEP.