Renewable Energy Update
Board Affirms Certification Revocation for Water Lab in WV
March 27, 2015
By order dated March 11, 2015, the West Virginia Environmental Quality Board (“EQB”) affirmed an earlier order by WVDEP revoking a laboratory certification granted to Appalachian Laboratories (“AppLabs”). WVDEP issued the order on October 16, 2014 in response to press accounts that a former employee of AppLabs (John Shelton) had pleaded guilty to diluting or falsifying water samples analyzed by AppLabs. The analyses were undertaken for customers which needed the data for NPDES permit reporting.
WVDEP did not provide AppLabs with prior notice of its intent to revoke its laboratory certification or provide it with a pre-revocation hearing. Moreover, the revocation had little to do with the actual ability of the lab to analyze samples properly. Instead, it was directed primarily at the sampling services of lab personnel—services not provided by some labs and arguably outside the scope of the laboratory certification statute.
AppLabs secured a stay of the effect of the revocation pending an administrative appeal to the EQB. Before the EQB, WVDEP conceded that it conducted no independent analysis of the statements Shelton made in his plea agreement. AppLabs contended that Shelton’s statements were inadmissible hearsay and that absent further corroboration; it was unreasonable for WVDEP to have relied on them. It also introduced testimony of managerial personnel who denied any participation in or knowledge of sample manipulation.
The EQB had little difficulty rejecting AppLabs’ contentions. It determined that Shelton’s statements were not hearsay because, under Rule 801(d)(2)(D) of the Rules of Evidence, they were statements made by an agent of AppLabs on a matter within the scope of that agency when it existed. The EQB also found no problem with the fact that WVDEP did not probe the accuracy of Shelton’s statements. It determined that Shelton’s statements alone were evidence that samples had been falsified, and implicitly determined that the testimony of AppLabs’ supervisors did nothing to rebut Shelton’s own admissions of wrongdoing. The Board then concluded that “any” falsification of an analytic result is a sufficient basis on which to revoke a lab certification.
It is unclear where AppLabs goes now. Even before the EQB ruling, both the allegations relied on by the WVDEP and the WVDEP revocation order itself caused most of AppLabs’ clients to flee to other labs. Interestingly, WVDEP’s Scott Mandirola testified before the EQB that he had expected AppLabs to contact him after issuing the revocation order to see if something could be worked out—whether that remains an option is unclear.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC.