West Virginia American Water Co. lawyers are objecting to requests for information related to January’s water crisis, in a move that consumer advocates at the state Public Service Commission say would wrongly narrow a PSC investigation of the company’s response to the chemical leak that occurred just upstream from its regional drinking water intake.
On Monday, the commission’s Consumer Advocate Division filed a motion to compel water company responses to questions about what sort of planning West Virginia American performed prior to the leak, which contaminated the drinking water for 300,000 people in Charleston and surrounding counties.
“The CAD believes it has the responsibility to inquire into what sort of planning the company did to prepare for and anticipate the possibility of such a catastrophe,” wrote consumer advocate lawyer Tom White. “Certainly, the company’s planning for such a crisis will affect how the company could and did respond to this crisis.”
West Virginia American lawyers are engaged in similar disputes with attorneys for local businesses and citizens who intervened in the PSC investigation, and with attorneys for Advocates for a Safe Water System, a citizen group that was formed after the leak and also joined in the commission case.
Faced with a “significant” number of complaints from area residents and water company customers, the PSC announced in late May that it would conduct a “general investigation” of how West Virginia American handled the contamination of its Elk River drinking water supply with chemicals from the Freedom Industries tank farm just 1.5 miles upstream.
“The issue before the commission is relatively simple — at the time of and under the circumstances that existed with the spill, did the actions of WVAWC in reacting to the spill and the presence of MCHM in its raw water or finished water supply constitute unreasonable or inadequate practices, acts or services,” the PSC said in a 20-page order announcing its probe.
Christopher Callis, a lawyer for the water company, wrote in several filings in the PSC case that requests for information from the company go beyond the scope of the investigation as outlined in that commission order.
“These requests do not inquire about the company’s activities in reaction to the spill, are not limited to the time at or after the spill, and do not relate to the circumstances presented by the spill,” Callis wrote in a response to the consumer advocate’s request for information.
But consumer advocates say the water company’s interpretation will keep the PSC from really understanding how well West Virginia American responded to the leak. They say that information about what preparations were made in advance for such incidents is a key part of the probe.
For example, the consumer advocate division wants to know what steps the water company took to implement the recommendations of an April 2002 Source Water Assessment Report that options be considered to “evaluate and manage” all potential sources of contamination for the Elk River supply, including the Freedom Industries site.
Among other things, the consumer advocate office wants the investigation to include information about what West Virginia American Water knew about the chemicals at Freedom prior to the leak and whether it specifically planned for releases of those materials.
“The thrust of these discovery questions is to determine what sort of spill, contamination or emergency preparation the company had in place in order to adequately respond to a chemical contamination event,” the consumer advocate’s Monday motion said. “Surely, this type of information is material and relevant to the commission’s investigation.
“Whether any planning could have prevented the spill or resulted in a different outcome may be unknowable at the present,” the consumer advocate said. “But certainly, planning for such a possibility — even simply trying to determine what contamination risks lay upstream — might have resulted in a very different outcome.”
The consumer advocate argued that information about the water company’s planning matters to ratepayers because, at some point, West Virginia American may be asking for rate increases to pay for leak costs. So far, the company has reported $5.9 million in “spill remediation costs” to its shareholders, the consumer advocate said.
“If the company took little or no steps to anticipate and plan for such a catastrophe, it suggests that the company was taking a risk that such a spill would never happen,” White wrote in Monday’s motion to compel. “CAD suggests that this is the type of risk that should be borne by shareholders, not ratepayers. In other words, this is the type of risk-taking that is an ‘unreasonable practice’ and ratepayers should not be asked to pay for it.”
Jacqueline Lake Roberts, director of the PSC’s consumer advocate office, said, “Whether the water company engaged in any crisis planning is clearly relevant to whether their actions after the spill were reasonable. I take great umbrage at West Virginia American Water’s attempts to limit the jurisdiction and scope that this commission has permitted.”
Reach Ken Ward Jr. at email@example.com, 304-348-1702 or follow @kenwardjr on Twitter.