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.

CHARLESTON, W.Va. -- State officials are insisting that a huge Alpha Natural Resources coal-slurry impoundment in Raleigh County is safe, even as new tests that might confirm that analysis have continued to be delayed, records showed Monday.

Department of Environmental Protection officials had ordered the testing plan more than two months ago to resolve federal Office of Surface Mining concerns over the Brushy Fork impoundment upstream from Whitesville.

In a letter released Monday, DEP deputy mining director Harold Ward revealed that the tests still hadn't been conducted.

Ward said the DEP and Alpha had agreed on a plan for three types of testing at the impoundment, but offered no timeline for completion of the work. Ward also urged the OSM not to wait for the results to lift a 10-day notice that could lead to federal enforcement action at the site.

Ward cited previous inspections by the DEP and the federal Mine Safety and Health Administration, as well as reports from an engineering consultant working for the impoundment's former owner, Massey Energy.

"There is no reason to believe the impoundment has not been constructed as designed," Ward said in the letter to Roger Calhoun, director of the OSM field office in Charleston. "Consequently, regulatory compliance has been achieved.

"Therefore, it is requested that you determine that our response to the TDN [10-day notice] be determined appropriate and this matter be resolved," Ward wrote.

Coalfield activists, in a meeting last week with Calhoun, pointed to a string of MSHA citations in 2004 in which federal inspectors found the impoundment was being built with stairlike lifts that were much bigger than allowed under its design specifications and approved permits.

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.