Judge: Md. Owner Must Certify W.Va. Slurry Dam & Pay $13,500 Fine

MORGANTOWN, W.Va. (AP) -- The operator of a Barbour County coal slurry dam that hasn't been certified by a professional engineer in more than two years has until June 3 to get the job done and to pay federal regulators more than $13,500 in fines, a federal judge says.

For months, Energy Marketing Co. Inc. and its owner, Dominick LaRosa of Potomac, Md., have ignored a civil lawsuit by the U.S. Mine Safety and Health administration. In a ruling issued Friday, U.S. District Judge John Preston Bailey noted that neither has even hired an attorney.

There is therefore no reason to hold a hearing on the government's motion that LaRosa and his company stop operating the potentially dangerous North Hollow dam near Century, Bailey said.

LaRosa did not immediately respond to a message left at his home Monday.

State regulators revoked the impoundment's permit earlier this year. The Department of Environmental Protection is now working to hire an engineering firm that will assess the structure and develop a plan to drain off the soupy wastewater. Part of the task is to determine how much slurry is in the impoundment.

Slurry is the soupy waste created when coal is washed to help it burn more cleanly.

In central Appalachia, companies use impoundments to dispose of "coarse refuse," or larger pieces of rock separated from coal, and "fine refuse," or clay, silt and sand-size particles. Fine refuse is pumped into the reservoir behind the coarse refuse. Over time, the "fines" are supposed to settle to the bottom, compressing and solidifying.

The North Hollow impoundment is no longer in active use, but MSHA has labeled it "high hazard," meaning a failure would likely cause fatalities.

In court documents, the U.S. Department of Labor says MSHA does not believe there is an imminent danger, but it can't be sure because there has been no certification by an engineer.

"MSHA simply does not know with the required degree of professional certainty whether the impoundment is safe," the government wrote. "MSHA is, therefore, hindered in carrying out its enforcement mission."

A ruling for the government, it argued, "is in the public interest."

LaRosa and his company have operated the impoundment twice, from Aug. 31, 2005 through Nov. 2, 2008, and again from January 2009 until now. Yet they have never paid a fine for the violations and orders that have been issued.

They "feel no economic impact from these orders, and therefore have no motivation to comply," the government argued.

"MSHA has exhausted its enforcement mechanisms and has no adequate remedy at law" but to ask the judge to intervene.
Federal laws have "no deterrent effect," the motion notes, unless LaRosa and his company are forced to comply.

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