Raleigh Co. lab can stay open; hearing set for December

CHARLESTON – A Raleigh County laboratory can continue to operate, despite allegations of employees falsifying coal industry water quality samples, the West Virginia Environmental Quality Board ruled Wednesday.

The board held a hearing on the matter Monday.

In its five-page order granting motion for stay, the board majority sided with Appalachian Laboratories Inc., saying it “sufficiently demonstrated that irreparable harm will occur if a stay is not afforded.”

On Thursday, Appalachian’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.

The West Virginia Department of Environmental Protection had issued an order Oct. 21 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 argued that the DEP’s order lacked “substantial evidence” and would “result in an unjust hardship to Appalachian (Laboratories) and its employees.”

The board, in its order Wednesday, agreed with Jenkins that there was “insufficient evidence” provided that the likelihood of harm to the DEP and a coalition of environmental groups could result from granting the stay.

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

The groups contend they are affected because they rely on “accurate effluent and stream monitoring data in their daily work.”

“The Appellant offered testimony that the laboratory was recertified after the removal of the employee who admitted to falsifying and/or tampering with laboratory samples from February 2008 to approximately July 2013. Additionally, testimony was provided that since the removal of this employee, the Appellant’s laboratory was audited and changes were made to its standard operating procedures and other aspects of its operation,” the board wrote in its order.

“Finally, there was no data, documents, or other tangible evidence offered that showed that the laboratory engaged in any practices that violate the law since the removal of the employee who falsified and/or tampered with laboratory samples. The only evidence provided in support of revoking the Appellant’s certification was oral argument stating that the above referenced employee admitted to falsifying and/or tampering with laboratory samples from February 2008 to approximately July 2013, plead guilty to the allegations in Federal Court, and implicated additional employees currently working in the laboratory.”

The board majority also found there was “insufficient evidence” that the public interest will be harmed by granting the stay.

“The Appellant provided testimony that it will not be able to test water samples for its clients, which consist primarily of coal operators, if its certification is revoked immediately. The majority of the Board believes that this would result in a lack of ability for many coal operators to get water properly tested in a timely fashion, which would be detrimental to the public interest,” it wrote.

“Though it is understandable, as pointed out by the Appellees and lntervenors, that the public interest could equally be compromised if continuing problems of falsification and/or tampering with laboratory samples currently taking place or culpable parties were still employed at the laboratory. However, the Appellee and lntervenors offered no evidence to support this contention.”

The board said in its order that the appeal is set for an evidentiary hearing Dec. 11. At that time, the parties will have an opportunity to present evidence “in support of their respective positions,” it wrote.