Frankfort, Kentucky 40602
(502) 875-2845 fax
June 12, 2001
By Fax Only
General James Bickford, Secretary
Natural Resources and Environmental
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
William Kovacic, Director
Office of Surface Mining
Reclamation and Enforcement
2675 Regency Road
Lexington Kentucky 40504
Re: Stone Mountain Experimental Practice
I am writing to express my deep concern regarding the current status and disposition of the Grant's Branch Slurry Impoundment, also known as the Stone Mountain Experimental Practice. I have reviewed the report authored by Jeff Vansant, formerly with the Department for Surface Mining Reclamation and Enforcement, and the extensive documentation provided in support of the report, and I believe that the documentation raises several significant technical and policy questions as well as legal issues regarding the processing, review and approval of this request that a high-hazard coal slurry impoundment located atop underground mine workings be left unreclaimed and transferred to the ownership and control of a county government.
According to a description provided by OSM, the Grant's Branch Impoundment includes a 21-acre, 1043 acre-foot waterbody atop 571 acre-feet of coal slurry, within a 327 acre watershed, with a 144-foot high coal waste dam. The coal waste dam was built over an existing underground coal mine, owned by the Eastern Coal Corporation and located approximately 150-feet below the base of the structure and last mined in the mid-1950's by room-and-pillar methods.
The Grant's Branch Impoundment is classified as a high hazard potential slurry disposal facility, according to MSHA's September 6, 1995 review of the proposed abandonment of the impoundment. As part of Major Revision #6 to the mining permit, the impoundment, which was formerly proposed for closure on abandonment, was instead proposed to be transferred "live" to Pike County government as a "recreational facility."
MSHA noted, in passing, that the impoundment was a "large high hazard" structure and that the agency's regulations "envisioned that the only impounding structures that could be abandoned as live dams would be small, low hazard, earthen structures that do not have the potential for loss of life or substantial property damage." The same MSHA memo noted that the Supplementary Information for the 1992 MSHA rule stated that:
MSHA anticipates that impounding structures constructed of coal mine waste or designed to impound coal mine waste will generally not receive permits to be left in place." The same MSHA memo noted that the company argued that the structure should be classified as Class "A", one in which there is no danger to homes or loss of life, but rejected that proposition, noting that "due to the close proximity of the town downstream and the steep narrow valleys, MSHA should continue considering this a high hazard potential impounding structure unless substantiating calculations and documentation are submitted."
The same memo notes that continual maintenance is essential, including frequent regular inspections by competent personnel. The Wilson memo noted finally that "there is a large abandoned mine located approximately 125 feet below the dam and pool area. The subsidence potential was evaluated by two different methods with similar results (the National Coal Board Method, and the Szwilski Method). These methods are current methods of subsidence prediction in the coal industry. The predicted amount of subsidence will be small and should not adversely affect the safe operation of the dam. If any cracks do develop, however, the proper regulatory agencies should be contacted immediately."
The MSHA memo recommended approval as a technical matter but the memo suggested that before approval the "other considerations" meaning presumably the legal question, must be taken into account.
A second memorandum from Wilson to Carl Boone, MSHA District 6 Manager, dated February 5, 1996, reiterated some of the conclusions of the September 1995 Wilson memorandum but deleted a number of specific concerns and recommendations regarding the structure.
An April 8, 1996 Solicitors Opinion indicated that 30 C.F.R. 77.216-5(b) could be used to approve "live" abandonment of a high hazard slurry impoundment "under certain circumstances;" those being that an engineering certification, certification by the current or prospective owner of willingness and ability to assume responsibility for maintenance of the structure, and a permit or approval of the continued existence from the "Federal or state agency responsible for dam safety."
The Solicitor's memo also emphasized that the preamble to the 1992 rule indicated that MSHA anticipated that the revision allowing structure to be abandoned "live" would "primarily" apply to small low hazard structures.
The same memo noted that OSM would approve and MSHA understood that "OSM Kentucky" would monitor the impoundment for two years after the transfer.
The memo concluded that, notwithstanding the clear intent of the regulation to primarily apply the rule to small low hazard impoundments, a high hazard structure could be abandoned live if additional safety measures were taken, including coordination with OSM, a schedule of regular inspections by Pike County Fiscal Court, and periodic monitoring by the county.
OSM draft comments on the June 25, 1995 resubmission of the proposed Experimental Practice indicated these concerns:
* Regarding the requirement for complete geotechnical review of the stability of the foundation, "the plan submitted did not contain sufficient information for a complete analysis of the subsidence potential of areas beneath the coarse refuse dam and proposed impoundment or adjacent areas."
Among the reviewers concerns were that the percent of coal extraction appeared to be 70%, not 60% as calculated by the applicant, and the pillar size was smaller and entry spacing were wider than the applicant assumed.
The reviewer noted that according to his calculation using different numbers for pillar size, entry size and percent extraction, "[a]ll give a Safety factor of less than 1.8 . . . and most are nearly 1.0. If the area has not subsided it is very likely to subside in the future. This is critical as bedrock dips towards populated areas and if a major leak occurs because of subsidence the water will drain toward numerous abandon (sic) mine entries in the vicinity of the populated areas."
The reviewer noted also that the underground mine working map for workings underlying the coarse refuse dam and proposed impoundment and adjacent areas were "not readable in critical areas of the area covered by the proposed lake."
The reviewer noted also that detailed geologic information concerning strata in the hillsides adjacent to the dam and impoundment area and the overburden above the underground mine workings and beneath the impounded areas, and a geologic structure map of the Pond Creek seam, had not been completely supplied.
When the initial review had been conducted, OSM had asked for drill logs or borehole video records of the current underground mine beneath the dam and proposed impoundment, specifically addressing "collapsed rooms, standing voids, pillar conditions, flooding, dry, etc."
The company had responded by stating that the information was not necessary because "no subsidence has occurred."
In response, the OSM reviewer wrote:
How do they know without actual drilling Profile Function Calculations show 1.5 feet of subsidence possible with 75% Extraction and 60% hardrock. More important however is the high potential of developing a fracture system in the overburden that will say open and allow water to drain into the underlying mine. The greater amount of hardrock the greater potential for this to develop. All of the mine entries down dip from the dam should be investigated and details of entry conditions documented. A monitoring program should also be established
The review also noted that the applicant had not submitted information adequately addressing the ability to decant 90% of the probable maximum flood event within 2 days, and that the applicant had not adequately addressed the landslide potential of the slopes above the dam and impoundment.
Among the many pages of comments concerning the plan, the review also noted that the subsidence calculations didn?t verify that "no potential fracturing due to subsidence exists."
By letter dated September 29, 1995, Kentucky DSMRE wrote to the consultant for Stone Mining, including within the letter much of the textual discussion from OSM?s draft memorandum concerning the foundational analysis deficiencies and low safety factor concerns, and requesting the same drill log and borehole video records showing actual current underground mine conditions and the geologic structure map on the coal seam and overlying strata.
The final version of the OSM comments to the state Division of Permits was dated October 12, 1995, and reiterated these same concerns.
Concerning the condition of the underground mine, OSM reviewed the concerns regarding the safety factor and noted that "[t]he potential for subsidence may result in fracture systems in the overburden and allow the impoundment to drain into the underlying mine. This drainage may result in a blow-out at those mine seals [located down-dip of the impoundment.]"
An April 1, 1996 DSMRE deficiency letter indicated that "[t]he review of the subsidence potential and its effect on the structure has been deferred pending review by the Army Corps of Engineers, Waterway Experimental Station (WES) in Vicksburg Mississippi. Their
Technical staff will evaluate and make recommendations as to the structure?s ability to withstand subsidence. This issue is tabled until WES provides comments. Additional investigation and analysis by the company may be required."
On March 19, 1996, OSM requested Army Corps of Engineers Waterways Experiment Station to review the permit application package and subsidence calculations. The letter from OSM noted that the mine condition are unknown but that OSM assumes probable collapse or crushing of pillars, and that without "an expensive drilling program, there is no way for OSM to verify the current mine condition" so that OSM instead requested of the company a "worst-case" subsidence prediction evaluation.
In response, the company modeled the site using the SDPS software developed by VPI. OSM sent that information to the COE, confessing that "OSM has only limited experience in determining the effects of the projected subsidence-related strains on embankment material and mass stability" and asking the COE for their opinion.
Among the questions asked by OSM was:
If subsidence cracks were to propagate through the overburden and intercept the impoundment area ? either below the slurry line or above the slurry line and below the water line ? what is the probability the impoundment would drain into the mine 150 feet below? Would you expect the slurry material to seal the cracks? Would the shale in the overburden be "self-healing," i.e. effective in restricting water/slurry movement through the overburden.
On June 12, 1996, the COE Geotechnical Laboratory responded that:
If a crack developed providing access for impounded slurry to flow into the mines beneath the dam, we would not count on a self-healing effect to occur.
On July 10, 1996, OSM's Technical Center notified DSMRE that it had received the COE analysis and that OSM had determined that "no additional information or analysis is necessary for the Grant's Branch Slurry Impoundment . . . all deficiencies have been satisfactorily addressed."
On July 24, 1996, the Director of Permits Allen Lutrell wrote to OSM Lexington Field Office providing written findings for approval of the experimental practice for "Development of Recreation Post-Mining Land Use of An Abandoned Slurry Pond," basing the approval on the findings that the "experimental practice will attempt to advance reclamation technology by providing a recreational water impoundment for the local community instead of applying 48" of cover material over the slurry."
It is difficult to understand how not dewatering the slurry impoundment and covering it with cover material advances any technology, reclamation or otherwise. It certainly saved the company a considerable sum of money, since the OSM Environmental Assessment had noted that the cover material was not immediately available on site.
"The experimental practice will also serve as a public use through recreational facilities that support fishing, hiking, basketball, volleyball, and picnicking, etc." "The experimental practice is structured so that the area involved is not larger or more numerous than necessary to determine the effectiveness and feasibility of the experimental practice."
"The monitoring conditions involved will address the stability of the structure as well as the water quality of the Grant's Branch watershed, and does not reduce the protection afforded public health and safety below that provided by promulgated standards."
The state memorandum does not reflect whether a finding was made concerning compliance with 405 KAR 7:060 Section 2(4)(b), which demands that the Cabinet find that:
(b) The experimental practice is potentially more, or at least as, environmentally protective during and after mining operations as would otherwise be required under 405 KAR Chapters 16 through 20[.]
Notwithstanding COE's response to OSM?s questions concerning subsidence and "self healing," OSM by memorandum dated February 4, 1997 OSM, through Allen D. Klein, concurred in the state approval of the experimental practice. The Finding of No Significant Impact included these points:
* "The stability and subsidence analysis of the dam indicated that the dam will not experience a catastrophic failure."
" The ability for water to enter the underground mine due to subsidence or natural fracturing in the 150-feet of overburden is limited due to the shale in the lithology, which is a self-healing material, and the slurry fines lining the impoundment acting as a sealant.
The technical basis for rejecting the COE conclusion in this regard is central to a determination of whether, as a technical matter, the approval of retention of the impoundment is appropriate.
The OSM Environmental Assessment further noted that as a precaution, the company would be required to monitor underground mine portals located down-dip of the impoundment for drainage.
The EA further noted that if the impoundment becomes a public facility that Pike County would be required under the "Operations and Maintenance Plan" to conduct perpetual inspection and do necessary remediation work, and that the facility would have an office and staff and an Emergency Action plan. The report noted that there was no current potential for loss of life because the company had purchased the homes within the Grants Branch hollow but that the dam meet or exceeded the hydrologic and structural stability requirements for a high-risk structure.
The manner of review and approval of this facility as an "experimental practice" raises significant legal and technical questions to which I request a response.
1. To OSM, please answer these questions:
a. What information caused your agency to conclude that no further information or analysis was needed on July 10, 1996?
Your memoranda had previously noted that significant deficiencies existed in the foundational and subsidence analyses, and your agency had repeatedly expressed concern that the company was assuming no subsidence but had failed to provide sufficient data to support the assumption. Yet it does not appear that any additional information or analysis was provided that would have addressed those concerns and have caused your change of position.
Your office specifically noted concerns regarding the safety factor and noted, "[t]he potential for subsidence may result in fracture systems in the overburden and allow the impoundment to drain into the underlying mine. This drainage may result in a blow-out at those mine seals [located down-dip of the impoundment]," and you posed to the Corps of Engineers Waterway Experimental Station the question of whether slurry material would be self-healing, as the company claimed, if subsidence occurred?
Yet when the Corps, from whom you requested advice because of your admittedly "limited experience in determining the effects of the projected subsidence-related strains on embankment material and mass stability" told you in response that "if cracks developed providing access for impounded slurry to flow into the mines beneath the dam we would not count on a self-healing effect to occur[,]"
(Emphasis added) OSM, through Allen D. Klein, chose to ignore the COE response and concluded instead, in a concurrence with the state approval of the experimental practice, that "[t]he ability for water to enter the underground mine due to subsidence or natural fracturing in the 150-feet of overburden is limited due to the shale in the lithology, which is a self-healing material, and the slurry fines lining the impoundment acting as a sealant.
Please provide the technical basis for Mr. Klein's rejection of COE's opinion on this matter, and identify the source(s) of the newfound expertise that underlay the rejection of COE's advice.
b. Please identify the information provided by the applicant after the June 25, 1995 and October 12, 1995 letters from OSM to the state, that caused OSM to reverse its position regarding the insufficiency of the technical information and analysis provided by the company regarding subsidence potential and effects, that led OSM to concur, in February 4, 1997, that "[t]he stability and subsidence analysis of the dam indicated that the dam will not experience a catastrophic failure."
i. Please define "catastrophic."
ii. Would your agency consider uncontrolled release of slurry and water material from the pool area through underground mine workings to be "catastrophic?"
2. For both OSM and the state, what binding conditions were placed on the county concerning monitoring of the stability of the structure, monitoring mine portals for discharges, and other maintenance of the structure? Were all of the recommendations regarding continued monitoring followed as had been recommended?
How are those conditions enforceable, and by whom?
3. In the event of failure, what legal responsibility does the coal company have under your regulatory programs? Have your agencies estimated under worst-case scenario conditions the cost in property damage and reclamation, of a release through mine workings from the pool?
4. Neither the state nor federal memorandum reflect whether a finding was made concerning compliance with 405 KAR 7:060 Section 2(4)(b), which demands that the experimental practice not be approved unless the state can find and the applicant can justify that the proposed practice is "potentially more, or at least as, environmentally protective during and after mining operations as would otherwise be required under 405 KAR Chapters 16 through 20[.]" Please explain, as a matter of fact, whether such a finding was made as required by law, and please explain further how leaving a high hazard coal waste impoundment in place and unreclaimed and deeding it to a local government is more protective of the environment than dewatering and closing that impoundment.
5. Please explain, as a matter of law and fact, the reasoning behind the finding that this experimental practice meets the legal requirement that the "experimental practice will attempt to advance reclamation technology" by providing a recreational water impoundment for the local community instead of applying 48" of cover material over the slurry."?
It is difficult to understand how not dewatering the coal slurry impoundment and covering it with cover material, but instead leaving it unreclaimed, advances any technology, reclamation or otherwise. It certainly saved the company a considerable sum of money, since the OSM Environmental Assessment had noted that the cover material was not immediately available on site. But the position that leaving the high-hazard impoundment rather than dewatering and closing it has anything to do with advancing mining and reclamation technology seems a sham finding for a project that does not fall within the ambit of what an "experimental practice" was intended to allow.
I have outstanding a Freedom of Information Act request to Mr. Klein's office, and may have additional questions after reviewing the documents in his possession.
Thank you in advance for your prompt consideration of and response to these concerns.