Back in April 2006, officials from West Virginia American Water told state regulators they were planning to review the Elk River watershed to find out what potential contamination sources were upstream from their Kanawha Valley water treatment plant.
Water company officials told the state Bureau for Public Health the same thing in August 2006, and again in March 2008, state records show.
Three times over a two-year period, West Virginia American officials marked a “P” — meaning “Planning to do” — next to a question about whether the company was going to “review” the treatment plant’s watershed “for potential contaminant sources.”
The review was not completed — and it still hasn’t been.
So, in January, when Freedom Industries leaked a mixture of Crude MCHM and other chemicals into the Elk River from its tank farm just 1.5 miles upstream from the water plant intake, West Virginia American officials knew next to nothing about the material that had contaminated the source of drinking water for 300,000 people across the region.
“The company did not have familiarity with MCHM before January 9, 2014,” lawyers for West Virginia American said in new documents filed last week with the state Public Service Commission. “The company did not assess MCHM before January 9 nor did it maintain at the plant a copy of the [material safety data sheet] for MCHM.”
When the leak occurred, West Virginia American lawyers said, company officials “had to obtain this, and additional information about MCHM, via the Internet and through requests to the [Bureau for Public Health] and Freedom.”
West Virginia American “did not initially have a way to test for MCHM in raw or filtered water,” the company lawyers said. Some samples were sent to the company’s Huntington laboratory for testing the night of Jan. 9, the lawyers said, but the company “was limited in its testing efforts to taste and odor evaluation.”
The new West Virginia American comments were included in disclosures filed by company lawyers and attorneys for the PSC’s Consumer Advocate Division and business and consumer groups as part of a commission investigation into West Virginia American’s response to the Jan. 9 leak and the water crisis that followed.
West Virginia American and the other parties are embroiled in a dispute over what sorts of documents the water company should have to turn over to those other parties, and the outcome of the matter likely will decide just how broad of an investigation the PSC ends up doing. Water company lawyers want a narrow review that considers only what the company did or didn’t do after Jan. 9. Consumer advocates, business intervenors and citizens want a broader probe that examines what kind of planning West Virginia American did — or didn’t do — to prepare for an incident like the Freedom leak.
“Only by maintaining the temporal and topical limitations on the [investigation] scope in its discovery and testimonial aspects, and evaluating the company’s reaction to the spill at the time and under the circumstances presented on January 9, can the commission create a record that will enable appropriate findings on issues that it has said will be addressed in this docket,” the water company’s lawyers argue.
While some documents about these planning issues have already come out in the investigation, the water company is fighting requests that it turn over more specific emergency planning documents. Water company officials say those records are irrelevant and, if made public, could reveal information meant to be kept secret under a 2002 anti-terrorism law. Consumer advocates and others say records about water company planning provide needed context for the PSC investigation, and concern response plans for accidental chemical spills upstream, not delibarate sabotage of the water system.
“CAD is interested in what steps the company took to anticipate, prepare, and plan for the possibility of such a contamination event which is directly relevant to how the company reacted to the spill,” wrote Tom White, a lawyer for the PSC Consumer Advocate Division.
Anthony Majestro, a lawyer for local businesses that intervened in the PSC case, said understanding what sort of emergency plans the company had is critical.
“Had a plan been in place, in compliance with industry standards, WVAWC should not have lost critical minutes and hours while it fumbled through the identification of the chemical, how to treat it, what to tell the public, and whether to close the intake or not,” Majestro said in a PSC filing.
Paul Sheridan, a lawyer for Advocates for a Safe Water System, told the PSC in a separate filing, that his group “firmly believes that issues of the company’s ability to know of, monitor for, and develop emergency response plans for chemicals manufactured and stored upstream of its intake is within the scope of this proceeding.”
A PSC hearing on the dispute is scheduled for 9:30 a.m. Monday at the commission’s headquarters in Charleston.
Laura Jordan, spokeswoman for West Virginia American, said the water company did have an emergency response plan. She said it was in place prior to the completion in 2002 of a “Source Water Assessment Susceptibility Report” for the Kanawha Valley facility.
That report was completed by the state Bureau for Public Health, and it listed the Freedom site — then owned by Pennzoil — as among seven upstream industrial sites that “may have large volumes of potential contaminant stored.” The report recommended that the water company develop a written plan for protecting its water source from those kinds of contaminants.
Last week, Jordan said source water protection plans were completed for seven of her company’s nine West Virginia treatment plants, with funding and contracts secured by the Bureau for Public Health and “with the help of a contractor.” However, Jordan said, the company’s two largest systems — Kanawha Valley and Huntington — “were left to prepare source water protection plans without state funding.”
Jordan said the bureau completed the company’s other source water protection plans between July 2010 and February 2011, but then “communicated to the company that it did not have the funding to complete the plans for the two largest systems.”
Allison Adler, a spokeswoman for the bureau, said state officials had about $1.25 million in federal funding for source water protection plans. Money was distributed based on a number of criteria, including the need for financial and technical support. “The attempt was to fund as many systems as possible with the limited amount of funding available,” Adler said Friday.
Jordan said that after the state said it wouldn’t fund the Kanawha Valley plan, the water company “began assessing further” the 2002 report, including “an attempt to review Freedom.”
Under a bill passed after the Freedom leak, public water systems in West Virginia are now required to complete source water protection plans.
Reach Ken Ward Jr. at firstname.lastname@example.org, 304-348-1702 or follow @kenwardjr on Twitter.