Judge orders DEP to appear at hearing over environmental board suit

CHARLESTON – A Kanawha County Court judge has ordered the West Virginia Department of Environmental Protection to appear and explain why a writ of mandamus should not be ordered against it in a lawsuit filed by a Raleigh County laboratory last week.

Appalachian Laboratories Inc. filed its lawsuit against the state DEP in the circuit court Nov. 3. The laboratory alleges that the agency is “openly defying” an order by the state Environmental Quality Board allowing it to remain open.

The board ruled last month that Appalachian could continue to operate, despite allegations of employees falsifying coal industry water quality samples.

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

Appalachian is now seeking a writ of mandamus and injunctive relief in the circuit court to uphold the board’s order.

Judge Jennifer Bailey, who has been assigned the case, issued her two-page order Thursday.

She has ordered the DEP to appear at an 8 a.m. Wednesday hearing to “show cause, if any they can, why a writ of mandamus should not be awarded against them as prayed for in the said complaint.”

The named defendants are DEP Secretary Randy Huffman; Scott Mandirola, director of the DEP’s Division of Water and Waste Management; and Harold Ward, acting director of the agency’s Division of Mining and Reclamation.

“The Defendants have blatantly defied the Board’s order and sought to destroy Appalachian’s business by announcing to regulated community -- and Appalachian’s customers and competitors -- that Defendants will not rely on information provided by Appalachian,” Appalachian’s lawyer, Joseph Jenkins of Charleston law firm Lewis Glasser Casey & Rollins PLLC, wrote in the company’s complaint.

“Instead of obeying the Board’s lawful ruling, Defendants have continued to arbitrarily and capriciously pursue Appalachian and intimidate Appalachian’s customers.”

The DEP 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 its motion for stay to the board, Appalachian argued that the DEP’s order lacked “substantial evidence” and would “result in an unjust hardship” to the company and its employees.

The board, in its Oct. 29 order, agreed with the company 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 have filed a petition to intervene.

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 lain 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.

Appalachian argued in its filing last week that the agency’s actions since have had a “chilling effect,” causing it to lose customers and not be hired.

“Without immediate relief from this Court, Defendants will succeed in their illegal deprivation of Appalachian’s due process and equal protection rights and their pursuit to drive Appalachian out of business,” Jenkins wrote in the complaint.

Specifically, Appalachian is asking the circuit court for an order requiring the DEP to comply with the board’s stay and a preliminary and permanent injunction enjoining the agency from violating the stay order.