CHARLESTON – Whether a Raleigh County laboratory can continue operating, despite allegations of employees falsifying coal industry water quality samples, is up to the West Virginia Environmental Quality Board.



The board held a hearing Monday.


On Thursday, Appalachian Laboratories Inc.’s lawyer, Joseph Jenkins of Charleston law firm Lewis Glasser Casey & Rollins PLLC, filed a notice of appeal and motion for stay in the case.


He is asking the board to stay a West Virginia Department of Environmental Protection order while the company pursues an appeal.


On Oct. 21, the state DEP issued an order revoking the lab’s certification after a former employee told a federal judge earlier this month that he and others at the lab faked samples so the company wouldn’t lose the coal companies’ business.


John W. Shelton, who was a field technician and then a field supervisor for Appalachian, testified before Judge Irene Berger at an Oct. 9 hearing that the coal companies put pressure on the water companies to “get good water data.” The hearing was part of an ongoing federal criminal investigation.


Shelton, who signed a plea agreement with prosecutors in late August, left his job at Appalachian in September. He is set to be sentenced in February. He could face up to five years in jail and a fine of up to $250,000.


In his motion for stay to the board, Jenkins said the DEP’s order “has and will result in an unjust hardship to Appalachian (Laboratories) and its employees.”


Jenkins argued that the revocation order “lacks substantial evidence.”


“It fails to explain or show how the alleged wrongful conduct caused inaccurate data and tests to be submitted,” he wrote in the motion. “The revocation order also fails to mention which category of Appalachian’s certification – inorganic nonmetals, microbiology and trace metals – was affected by the alleged wrongful conduct.


“Given the limited information in the revocation order and the timing of its issuance, it appears WVDEP has conducted no independent investigation of the allegations raised by the former employee.”


Jenkins also argued that the alleged illegal activity took place from 2008 until July 2013 – as mentioned in Shelton’s plea agreement. However, there is “no mention of ongoing concerns or wrongful conduct beyond July 2013,” he wrote.


Also, the state conducted a compliance audit in June, renewing the lab’s certification in August, Jenkins noted.


He called the order a “kiss of death” for Appalachian and its employees.


“Appalachian is a substantial business, provides jobs and pays taxes and provides countless other benefits to the local community,” Jenkins wrote.


But a coalition of environmental groups contend the DEP was right in issuing the revocation order.


On Thursday, Appalachian Mountain Advocates, Sierra Club, Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch filed a petition to intervene.


The groups said they are affected by the order at issue because they rely on “accurate effluent and stream monitoring data in their daily work.”


“Falsified laboratory data threaten to undermine entirely the implementation and enforcement of the Clean Water Act,” attorney Derek Teaney wrote in the group’s petition to the board. Teaney is with Lewisburg-based Appalachian Mountain Advocates.


Companies with water pollution permits, including coal companies, are required by law to take samples and submit reports to the state DEP to ensure they are in compliance with pollution discharge limits.

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