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

Friday was the deadline for officials from the West Virginia Department of Environmental Protection to respond formally to the 10-day notice issued by the federal Office of Surface Mining Reclamation and Enforcement over concerns about “liquefaction” at the Brushy Fork coal slurry impoundment now owned by Alpha Natural Resources.

The response apparently came in pretty late in the day, and it’s just being received and reviewed by OSMRE officials. I’ve gotten a copy of it and have posted it here.

The letter is just short of 1,200 words long, and most of it consists of DEP’s continued insistence that there are absolutely no safety concerns at the impoundment, located in Raleigh County upstream from Whitesville. For example, DEP’s Harold Ward wrote:

During the course of this investigation, you and your staff met with the design engineer for the facility and were provided direct response to any questions about the design and construction of this facility. Specifically at this meeting it was explained that the design of this impoundment was based on residual strength concept and assumed the worst case for liquefaction and the design still resulted in a factor of safety exceeding the 1.2 requirement required by regulation. There is no reason to believe the impoundment has not been constructed as designed. Consequently, regulatory compliance has been achieved.

But what about the elevated “pore pressures,” of liquids held within the solid particles in the dam, an important indicator of the dam’s strength and stability?  Readers may recall that WVDEP officials initially said in about a month ago that these pressures were “slightly elevated,” but later upgraded that description to “elevated.”

In the agency’s latest letter, Harold Ward says:

Pore pressure is the pressure exerted by the water present in the pore spaces of a rock or soil mass. Generally, an elevated pore pressure is any pressure that is above the desired elevation considered in the design. In the case of Brushy Fork, the piezometer with the elevated pressure is in the area of future additional phases and the purpose of the location is to ensure the fines that may serve as the foundation for these additional stages are acceptable to prevent liquefaction. This area does not currently serve as a load-bearing portion of the dam structure and will not permitted to become a load-bearing portion of the dam structure until pore pressures there drop into the appropriate ranges as contemplated in the design. It is expected that as loading increases, that is coarse refuse being placed, pore pressures will show an increasing trend initially before stabilizing and then begin to decrease over time. As you are aware, this is exactly why both my office and MSHA had put a hold on any additional stages until the pore pressures are suitable to accept additional loading and we are confident the construction designs can be achieved. No part of the current dam structure is located in the area of increased pore pressure and there is no indication that liquefaction or any other condition exist that would pose any threat of failure at this facility.

But the most interesting thing is the WVDEP response is this:

To buttress our determination that there is not a liquefaction potential, my office requested that Marfork submit a plan to affirmatively demonstrate liquefaction safe guards exist in the entire upstream push out area. They readily agreed and have provided this plan to us for consideration. Our regional dam control engineer had discussed this plan with the design engineer before formal submittal and agreement was reached that the information is more than adequate verify that liquefaction is not occurring at the facility.

The letter says this plan includes three kinds of testing:  Standard Penetration Testing (SPT) on 10-foot centers through the coarse refuse and into the fine refuse, vane shear testing, and Shelby Tube Piston Sampling. The letter doesn’t say when the testing will be done, how long it will take, or whether the results will be made public. The state’s letter does add:

If needed, additional stability analyses will be performed based on the results of the new testing.

What’s interesting here is that WVDEP issued an order on May 26 that requested this sort of a testing plan. The plan was supposed to be provided to WVDEP within 30 days.

But remember back when some coalfield residents and activists gathered outside of the OSMRE office in Charleston in early July to pressure federal officials to take stronger action about Brushy Fork? At the time, as I reported:

But at a meeting last week, company officials told DEP and OSM that they already had some new data that would support their contention that the dam was safe. Company officials, though, did not bring the data to the meeting, and OSM extended the deadline until early August for the company to provide the data and for federal officials to review the matter.

Roger Calhoun, director of OSMRE’s Charleston field office, told residents during a meeting last week that his agency hasn’t seen any of those test results or data. And now, WVDEP is sending a letter to OSMRE saying that the company plans to do new testing.

Remember, now — the matter at hand here concerns a 10-day notice that Roger Calhoun issued in January … A 10-day notice is supposed to require a detailed state response within 10 days. Roger has been extending that time period, to the point that WVDEP has now had more than six months to respond and avoid a federal violation being issued.

But WVDEP isn’t waiting for the results of this new testing … In their letter Friday to Calhoun, WVDEP officials asked OSMRE to lift its 10-day notice, which would end any federal involvement in the situation:

With the information that we have provided to your office we have clearly demonstrated that the regulatory requirements of the West Virginia Surface Mining Reclamation Rules, specifically 38-2-22.3.j which you alleged had been violated, have been fully complied with and no violation exist. Therefore, it is requested that you determine that our response to the TDN be determined appropriate and this matter be resolved.

Activist Joe Stanley, a former coal miner who has been investigating the Brushy Fork site, told me this morning that he hopes OSMRE doesn’t do that — and instead takes stronger action to ensure the impoundment’s safety:

I don’t understand how they can just continue to delay this. I think OSM should issue a cessation order. I don’t think they can continue to operate this impoundment. That doesn’t make sense.