In one instance, MSHA inspectors said, the construction problems were left out of Massey's weekly and daily reports on work at the site.
Joe Stanley, a retired miner and activist, said he's worried that the previous construction problems weren't fixed and that future problems weren't properly documented in company reports that the DEP is relying on.
"My concern is who is protecting the citizens of West Virginia?" said Stanley, who has been investigating impoundment safety and raising his concerns with state and federal officials.
Stanley and representatives of Coal River Mountain Watch have been waiting since January for the OSM to determine if the DEP was wrong to decide increased water pressures inside the impoundment are not a safety risk for the facility.
Generally, the OSM is supposed to resolve questions about potentially improper DEP actions within 10 days -- thus the name of the "10-day notice" issued to state regulators. But the OSM and the DEP have gone back and forth several times since January, without federal officials reaching a final decision.
Alpha Natural Resources acquired the 750-foot-tall dam and an impoundment with a capacity of roughly 8 billion gallons last month as part of Alpha's buyout of Massey Energy.
OSM officials have already pushed the DEP to add new limits to control any potential impacts on the Brushy Fork impoundment from surface-mine blasting at Alpha's nearby Bee Tree Mine, which has been the site of repeated citizen protests.
And the OSM got involved again in response to a citizen complaint from Stanley about elevated pressure readings on a monitor meant to keep track of whether liquid wastes were filling voids between solid wastes, potentially leading to dam stability problems.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.