Photo of the Brushy Fork impoundment, by Vivian Stockman, with flight services provided by SouthWings.

We’ve got more in today’s Gazette about the recent violation cited by WVDEP at Massey Energy’s Brushy Fork coal-slurry impoundment.

After writing yesterday’s brief post, based entirely on the WVDEP news release, I was able to get a copy of an Office of Surface Mining Reclamation and Enforcement report on the problem and talk with Tom Clarke, director of WVDEP’s Division of Mining and Reclamation.

I’ve posted a copy of the OSMRE report here and the WVDEP Notice of Violation here.

The situation yesterday struck me as a little odd … Here you had WVDEP issuing a press release about a violation, but at the same time downplaying the violation — insisting it wasn’t serious at all and nothing for folks who live downstream from Bushy Fork to worry about.

Now, WVDEP issues hundreds — maybe thousands — of NOVs to the coal industry every year. And not very many of those NOVs get their own news releases. Typically, WVDEP news releases are more along the lines of, “Make It Shine Applications Now Available” or “Capitol Market Hosting Christmas Tree Recycling.”

Now, I’m not putting down those programs. And I certainly appreciate the efforts that the WVDEP’s communications staff make to get information to me, answer my questions and put up with my complaining that I haven’t gotten all of the answers I want.

But the fact that WVDEP put out a news release about this thing with Brushy Fork tells me they understand that any sort of problem with that impoundment — any coal-slurry impoundment, really — is something the public wants to know about. We’ve learned very painfully in West Virginia what can happen when a slurry impoundment fails.

So what was going on at WVDEP that the agency did not take any enforcement action at Brushy Fork until it received a Ten-Day Notice that required it to either do something or watch OSMRE inspectors cite Massey themselves?

A little bit of background is necessary:

Currently, Massey is working to expand the disposal capacity of the Brushy Fork site, which involves increasing the height of the impoundment’s existing dam. To do this, Massey is dumping more coal refuse on the upstream side of the dam to widen the dam to hold the increased height. The changes would raise the crest elevation from 2,090 feet to 2,150 feet. It would increase the storage capacity of the dam from 27 million cubic yards to 36.7 million cubic yards.

As my print story explained:

Clarke said Monday that DEP staffers learned in late December or early January that tests on the new construction showed the material was too moist, leading it to not meet state requirements for structural stability. But, Clarke said, his staff was not sure if this should be counted as a violation, because the new construction had not been given a chance to dry out and meet the stability requirements.

Clarke said the worst that could have happened is that the new construction could have sloughed, sending some coal waste from the dam into the impoundment’s pool. Clarke said his staff did not think this would threaten the existing dam’s stability, but had not studied the potential in any great detail.

“From this, there is not risk to the people downstream,” Clarke said. “That’s the kind of thing I’d like to think I’m going to take very seriously.”

So, the story seems to be that folks who work for Clarke didn’t think this was serious enough to cite. But when OSMRE issued its enforcement notice and Clarke learned about that, Clarke told his staff to issue an NOV — and then WVDEP thought it was a big enough deal that they issued a news release.

WVDEP could have told OSMRE it didn’t think enforcement action was warranted. OSMRE might have backed down, or federal officials might have issued their own violation.

And then, there’s this interesting language from the WVDEP news release issued yesterday:

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.

Huh? When did this all happen? And how is it that Massey was able to issue a statement within the hour of the WVDEP news release saying that the problem had already been fixed?

I’m not sure this was WVDEP’s finest hour … Agency officials probably wish they had just issued an NOV when the problem came up. But to their credit, WVDEP wasn’t hiding the fact that it acted only after OSMRE raised the issue. It was right their in their news release:

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.

On the other hand, coalfield residents might sleep a little bit better if WVDEP didn’t bend over backwards to include statements like this in their news releases:

There is no risk to the community downstream of the impoundment.

That struck me the same way it does whenever Kanawha Valley chemical plant managers insist after a leak that there was never any threat to the public’s health or safety. In both situations, the first step toward dealing with a risk is to admit it exists.