WEST VIRGINIA RECORD

CLARKSBURG – The U.S. Department of Labor has won a default judgment against the owner of a coal slurry impoundment accused of violating federal mine safety laws.

U.S. District Judge John Preston Bailey, of the Northern District of West Virginia, granted the Department of Labor’s request for a default judgment on May 3. The judgment orders Energy Marketing and owner Dominick LaRosa to pay $13,587.80 and also grants injunctive relief.

Energy Marketing and LaRosa, of Potomac, Md., never responded to a complaint filed Feb. 11 and other motions.

“As the defendants continue to ignore this civil action, the court finds good cause to grant plaintiff’s motion,” Bailey wrote.

The complaint, filed by the U.S. Attorney’s Office in Wheeling, alleged the Century 101 North Hollow Coal Refuse Impoundment in Barbour County was a safety risk.

In 2011 and 2012, the defendants did not submit an annual safety certification for the impoundment, the Department of Labor said. The complaint also said the Mine Safety and Health Administration has classified it as a “High Hazard Potential Impoundment.”

“This designation means that, in the event of failure, fatalities are likely,” the complaint said.

“Since the annual certifications have not been completed, without the court’s intervention, the conditions could be very dangerous and remain dangerous indefinitely.”

U.S. Attorney William Ihlenfeld, in his memorandum supporting an injunction there is no known or obvious danger known but a failure to have it examined by a professional engineer means that there could be.

“MSHA’s inspections are not an acceptable substitute for the certification of an independent professional engineer,” he wrote.

“MSHA inspectors generally are not qualified to perform such a review and their inspections are generally focused on conditions as they exist at that time.”

Bailey’s order granting the preliminary injunction prevents the defendants from operating the impoundment and requires them to submit the required annual certification within 30 days of the order.

The impoundment is 130 feet tall and has a maximum capacity of 504,996,260 gallons. It is classified by the Department of Environmental Protection Division of Mining and Reclamation as a Class C Dam, which means a failure could cause a loss of human life or serious damage to homes, utilities, commercial buildings and roads.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.