West Virginia regulators lack a strong program to protect against falsification of coal company water samples, but could make changes that would improve their oversight of the industry and its laboratories, a state appeals board was told Thursday.
Several state Department of Environmental Protection officials testified that the agency’s current practices would be unlikely to catch laboratories or mine operators that falsify samples used in processing mine permit applications or judging whether existing operations comply with pollution permit limits.
“There are some conversations that need to take place with the laboratory certification program,” said Scott Mandirola, director of DEP’s Division of Water and Waste Management. “We may need to modify our regulations.”
Mandirola was among those who testified Thursday at a state Environmental Quality Board hearing in which a Raleigh County laboratory, Appalachian Laboratories Inc., is appealing DEP’s decision to revoke its state Clean Water Act certification after one of its employees pleaded guilty to falsifying water quality samples.
In October, former Appalachian technician and supervisor John W. Shelton pleaded guilty to conspiracy to violate the federal Clean Water Act. Shelton admitted in U.S. District Court that he diluted water samples, substituted water he knew to be clean for actual mining discharges, and did not keep water samples refrigerated, as required by state and federal rules.
Appalachian Laboratories attorneys and the company’s president, Kenneth Fox, say that Shelton acted alone and that DEP was wrong to punish their company — potentially costing 35 employees their jobs — because of the wrongful actions of one employee.
“This has had real consequences for families and for a business,” said Joe Jenkins, a lawyer for the lab.
No one else has been charged in the case, but Assistant U.S. Attorney Blaire Malkin said at Shelton’s plea hearing that if the case had gone to trial, prosecutors would have presented evidence from “current and former employees” who would describe the role of Shelton and of lab manager John Brewer “in the wrongdoing” and evidence of “the pressure to get good samples to maintain … their coal company customers.”
At Thursday’s board hearing, Brewer testified and said he never falsified samples or directed other laboratory employees to do so. “I did not,” Brewer told board members.
The board did not rule Thursday on the lab’s appeal.
But during the daylong hearing, Mandirola said that Appalachian Labs could take several steps that would help it get its state certification back, such as hiring a new quality control manager and instituting a tough course of ethics training for its employees.
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Tommy Smith, a DEP laboratory auditor, said that the agency doesn’t currently do field inspections to determine if water quality samplers are acting appropriately, so someone doing what Shelton admitted to doing would be difficult for the state to detect.
“We do not have a system in place that checks what goes on with a sample prior to its submittal to a lab,” Smith said.
But, Smith said, laboratories could be required to use GPS technology to track their samplers and help to confirm that samples were taken in the appropriate locations.
Board member Scott Simonton had asked several DEP witnesses what the agency was doing in response to the Appalachian Labs situation to avoid similar problems in the future.
“It’s concerning to me that this is coming from the FBI,” Simonton said, referring to the federal criminal investigation. “And it got through other checks and balances.”
DEP Secretary Randy Huffman said he is generally wary of additional actions by the government to make people be honest if people don’t want to be honest, saying doing so can lead to “creating a bureaucracy that doesn’t have any value.”
“Whatever steps could be taken I would approve cautiously,” Huffman said.
But Huffman also said that DEP had no choice but to revoke Appalachian’s laboratory certification, given the questions it raised about the integrity of the industry self-reporting system that is built into the Clean Water Act.
“This decision was extremely important,” Huffman said. “It just had to be done. To have that data compromised or have the integrity of that data … without that integrity, we don’t have a program.”
Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow @kenwardjr on Twitter.
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