Judge sides with Raleigh County lab, says DEP must comply with board’s order

By Jessica M. Karmasek | Dec 1, 2014

CHARLESTON – A Kanawha County court judge has ordered the West Virginia Department of Environmental Protection to comply with a state board’s order allowing a Raleigh County laboratory to remain open.

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

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

In its Oct. 29 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 sought a writ of mandamus and injunctive relief in the circuit court to uphold the board’s order.

“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.”

Judge Jennifer Bailey, who was assigned the case, awarded the company a writ in a nine-page order Wednesday.

Bailey said the DEP must comply with the board’s stay order and must treat Appalachian “the same as any other laboratory” certified under state code.

“Although afforded an opportunity, Defendants have not provided any evidence supporting the basis of the revocation beyond the limited allegations in the Revocation Order,” the judge wrote.

“Defendants have a non-discretionary duty to follow the lawfully entered stay order and to accept and use data submitted by Appalachian as it would other laboratories certified.”

The DEP had issued an order Oct. 21 revoking the lab’s certification after a former employee told a federal judge 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.

“Appalachian Laboratories very much appreciates the Court addressing its serious concerns regarding the unequal and illegal treatment of Appalachian by WVDEP and WVDEP’s open defiance of the Environmental Quality Board,” according to a company statement. “Appalachian has played by the rules and so should WVDEP.

“WVDEP’s actions have caused significant damage to Appalachian’s business. And until Appalachian has its day before the Board, Appalachian is still stained with WVDEP’s scarlet letter.

“Appalachian looks forward to December where it will have the chance to prove to the Board that the revocation was illegal and the unsubstantiated accusations of one felon should not be enough to shut down a company that has been in business and a contributing member of its community for over thirty years.”

The named defendants include 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.

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