Another employee of a Raleigh County laboratory was charged Tuesday with taking part in a scheme to falsify water pollution testing at coal-mining operations across Southern West Virginia.
John Brewer, 62, was charged in a federal grand jury indictment accusing him of conspiracy to violate the Clean Water Act, mail fraud and making false statements as part of his work as a manager at Appalachian Laboratories Inc. in Beckley.
Brewer could face up to 30 years in prison and a $1.5 million fine if convicted of all seven counts outlined in the 15-page indictment. Brewer previously testified before a state appeals board that he had done nothing wrong.
A former lab employee, John W. Shelton, is currently in federal prison serving a 21-month sentence after he reached a plea agreement with prosecutors in which he admitted faking coal company water quality reports. Shelton had admitted 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.
The indictment charging Brewer alleges that Brewer, Shelton "and other employees of Appalachian Labs whose names are known to the grand jury" conspired from 2008 through 2013 to tamper with, cause to be tampered with, falsify and render inaccurate water samples required to be taken as part of coal industry water pollution permits issued by the state Department of Environmental Protection.
"It was a purpose of this conspiracy to maintain and increase the business revenue and profit of Appalachian Labs by: (1) eliminating the work hours that would have been necessary to prepare certain water samples in the manner required by the regulations; (2) shortcutting and omitting certain required storage, preservation, and preparation procedures for water samples, and (3) avoiding the reporting of non-compliant water samples to the DEP," the indictment states.
The indictment alleges water samples were diluted, that clean samples were substituted for actual field samples, that certain mining discharges were systematically not sampled, and that samples were not properly processed. It also alleges that the U.S. Mail was used to send and deliver invoices for falsified water samples and for false applications for recertification from state regulators, and that Brewer made false statements on those applications.
Under the Clean Water Act, companies with water pollution permits are required to take periodic samples and submit reports to the DEP on whether those samples indicate their operations are in compliance with allowed pollution discharge limits. State and federal agencies take some samples themselves, but the majority of sampling is done by companies - often by a lab contracted for that purpose - with results filed with the government for its review.
When Shelton's guilty plea was publicized in October 2014, it caused a brief controversy in which DEP suspended the laboratory's state-issued certification to conduct water sampling and analysis, a move that prompted a legal battle before the state Environmental Quality Board and the Kanawha Circuit Court.
The case also revealed weaknesses in the way the DEP polices water quality labs in West Virginia, including the lack of surprise inspections that could have caught Shelton's actions earlier.
In August, Appalachian Labs got its DEP license back, after agency officials said that the company had made a number of changes, including new ethics training for its employees and improved "data recording practices" to better monitor water quality samples.
Appalachian Labs President Kenny Fox has insisted what happened with Shelton was an isolated incident, and the company in one statement last October said that if then-U.S. Attorney Booth Goodwin's staff had "any additional evidence of criminal wrongdoing, we invite them to charge someone so that they may defend their rights in a court of law."
Through one of its lawyers, Appalachian Labs declined Tuesday to comment on the indictment charging Brewer.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.