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PSC ‘extremely concerned’ about dispute over spill probe’s scope

The state Public Service Commission said Tuesday that it is “extremely concerned” about its investigation of West Virginia American Water Co.’s response to the Elk River chemical spill, citing a growing dispute in which businesses, local citizens and the commission’s own Consumer Advocate Division argue the water company is wrongly trying to narrow the scope of the inquiry.

Saying the dispute is going to “require additional time to unravel,” commissioners temporarily postponed further action in the case and set a hearing -- some of which they said may be held behind closed doors -- to try to resolve West Virginia American’s objections to requests that it turn over records about whatever emergency planning it conducted prior to the January spill.

“The commission had hoped that, by more specifically identifying the key issue in this proceeding, we could shorten discovery, avoid untold discovery disputes and streamline the preparation and prosecution of this case,” the PSC said in a 10-page order. “Even (reasonably) tough-minded administrative bodies can be naive.”

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.

Last week, the separate PSC Consumer Advocate Division filed a motion asking the commissioners to compel West Virginia American to provide responses about what sort of planning the water company had conducted to prepare for potential chemical spills prior to the Freedom incident, which contaminated the drinking water for 300,000 people in Charleston and surrounding communities.

The CAD argued that the information about water company planning -- or lack of planning -- is important to ratepayers, who might at some point be asked to pay higher water rates to pay for West Virginia American’s leak costs. If the company did not properly plan for such an event, the CAD said, it amounts to corporate “risk-taking” that shareholders, not ratepayers, should have to fund.

Lawyers for the water company objected to providing this sort of information. They say it goes beyond the scope of the PSC’s investigation and, in some cases, would disclose emergency planning information West Virginia contends is meant to be secret under a federal anti-terrorism statute.

“The commission understandably wished to preclude second-guessing and conjecture about what the company might have done, instead of evaluating what the company actually did in response to the spill,” West Virginia American lawyers wrote in a legal brief filed last week with the PSC.

Water company lawyers said the consumer advocate’s questions would shift the PSC investigation’s focus “away from the company’s actual decisions, reactions and efforts to address and resolve the actual system contamination challenges caused by the spill, and toward unprovable allegations and speculative hindsight -- none of which would clarify the reasonableness of the company’s spill response efforts.”

“These are not the matters that the commission has said that it wishes to address, and that the company has addressed in its pre-filed testimony and responses to the pertinent discovery,” the company lawyers wrote. “There is already plenty to deal with in this case without, via a discovery dispute, rewriting the commission orders that established it.”

The water company said the CAD’s comments about corporate “risk-taking” were “not only offensive, but unhelpful to the Commission’s inquiry.”

In a reply brief filed last week, the consumer advocate said, “The company can take offense, but the facts in the public domain so far are that the company took no steps to prepare for the possibility of a water crisis such as occurred on Jan. 9, 2014, and how to respond to the same. None.”

“If the company took no steps to investigate what major risks lay upstream and how to respond to a potential contamination event, then it should just say so and be done with it,” Consumer Advocate lawyer Tom White wrote in the CAD filing. “

In a separate filing last week, lawyers for various businesses who intervened in the PSC investigation likewise objected to West Virginia American Water’s view of the scope of the PSC investigation.

“In essence, WVAWC holds all the information and wants to keep it that way,” that filing said. “WVAWC’s goal is clear: Keep all the information so no one will discover a basis for fault in its response to the spill, and thereby render the commission’s investigation a rubber stamp on its activities that day.”

Lawyers for the citizen group Advocates for a Safe Water System also oppose the water company’s refusal to provide its planning documents.

“An understanding of the context of the company’s response necessarily involves some understanding of what knowledge the company had about potential contaminants as of January 9th, what the company had been preparing to do in the event of a spill, what data the company had been accustomed to receiving and acting on regarding water quality, and what the company’s normal practices had been for monitoring and testing its water,” the group said in its filing.

The PSC set a hearing on the discovery dispute for 9:30 a.m. on Aug. 18. The commission said parts of the hearing may closed to the public and the press because the water company claims some of the requested planning documents are exempt from public disclosure under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002.

Reach Ken Ward Jr. at, 304-348-1702 or follow @kenwardjr on Twitter.

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