Calhoun said Tuesday his staff still believes solid coal waste within an upstream portion of the impoundment has shown a potential to liquefy. DEP officials, though, convinced the OSM that the company was taking appropriate steps to avoid that and to minimize any consequences should this "liquefaction" actually occur, Calhoun said.
Areas where waste has shown a high potential to liquefy are in an upstream area "being developed for future additional phases and do not serve as the load-bearing portion of the dam," Calhoun said in a three-page decision letter.
While state regulations don't specify such language, Calhoun said the DEP "is acting reasonably in its interpretation that the area being developed does not have to meet the same standards as the dam already approved as long as any failure in the construction area would not compromise the structural integrity of the dam at the currently approved slurry level," Calhoun wrote.
Tom Clarke, director of the DEP's Division of Mining and Reclamation, said the upstream development at Brushy Fork is not only legal, but also involves "very conservative design elements that will protect public safety and the environment."
However, Calhoun said this upstream construction "by its very nature is not the most conservative approach to dam construction" and that elevated liquid pressures showing up in company tests "are an indication of elevated risks."
Alpha officials did not respond to a request for comment.
Stanley said he had hoped the OSM would take federal enforcement action at the site.
"I'm disappointed, to say the least, that they didn't take a tougher stance on this," Stanley said.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.