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PSC: W.Va. American Water must turn over some records in MCHM case

The state Public Service Commission on Friday ordered West Virginia American Water to turn over many of the documents that consumer advocates, businesses and citizen groups want to review as part of the PSC’s investigation of the water company’s response to the contamination of the Elk River drinking water supply earlier this year.

West Virginia American will have to turn over certain emergency planning documents, some source-water protection records and materials that identify upstream “threats or risks” to the Kanawha Valley water treatment plant, located just 1.5 miles downstream from industrial site that caused the Jan. 9 leak of a mixture of Crude MCHM and other chemicals.

However, the PSC narrowed the scope of some of what the water company must provide, and commissioners said they were hesitant for their investigation to consider source-water protection issues that were addressed in legislation approved by lawmakers in the wake of the leak and the water crisis that followed.

The PSC also said it may allow West Virginia American to keep secret from the public documents the water company believes “may be sensitive and protected” under state or federal anti-terrorism laws. Commissioners said that the water company could mark the records it believes should be kept secret and the commission would decide if those documents would be kept from the public. Parties to the case would have access, but would have to sign an agreement not to publicly disclose them.

“The issue of confidential and sensitive material has been raised by WVAWC,” the commission said in a 16-page order released late Friday afternoon. “This is a significant issue, involving critical utility infrastructure. That issue must be taken seriously by the commission and the parties.”

In their ruling, Commissioners Michael Albert, Jon McKinney and Ryan Palmer sought to resolve an unusually heated dispute between the water company and other parties about not only the specific records West Virginia American must turn over, but also the very scope of what the PSC calls a “general investigation” into the water company’s response to the Freedom Industries leak that contaminated drinking water for 300,000 residents across the Kanawha Valley.

Lawyers from the PSC Consumer Advocate Division, along with attorneys for businesses and citizens who intervened in the case, want to examine documents that would explain what — if any — steps West Virginia American took to learn what potential chemical contaminants were stored upstream from its Elk River intake and to plan how to respond to such an incident.

Water company attorneys argued that the commission had intended a much more narrow probe that would not look at prior planning by the water company, but only at what West Virginia American did after it learned of the Jan. 9 leak. West Virginia American had also pressed the commission not to made public many of the requested records, warning that anti-terrorism secrecy laws mandate that the information “not be loosed heedlessly into the public realm.”

In its order, the PSC said its legal mandate in the investigation is to determine if West Virginia American’s actions in response to the leak “constitute unreasonable or inadequate practices, acts or services” and then to order “reasonable practices, acts or services” for the water company to perform in the future.

However, the PSC noted that lawmakers, in passing SB373 after the leak, required West Virginia’s water systems to prepare new plans to protect their drinking water sources and monitor those water supplies for potential contaminants.

“Because the Legislature has specifically spoken on these two issues, and the commission exercises delegated legislative authority in conducting its proceedings . . . the commission would be concerned whether, under the circumstances, it is appropriate for the commission in a final order to establish future practices, acts or services, for example, that relate to contingency planning or water monitoring that might conflict with the process and procedure established by the Legislature,” the commission stated.

In ruling on specific documents, the PSC ordered West Virginia American to turn over any source-water protection plan that “existed” on the day of the Freedom leak. The water company also must turn over any emergency or contingency plans “in existence and effective” at the time of the leak. Commissioners said a Consumer Advocate Division request for any emergency or contingency plans dating back to 2006 was “unduly burdensome and requests information that is not pertinent to this proceeding.”

West Virginia American officials have admitted that, before the leak, they knew little about the chemicals stored at the Freedom site, had no copies of materials safety data sheets for Crude MCHM, and were not prepared to test their water supply for that chemical, which was the main one leaked by Freedom.

Records previously made public in the PSC probe, and through public records requests to the state Bureau for Public Health, have revealed that West Virginia American told regulators three times from 2006 to 2008 that the company planned to examine what potential chemical contaminants were stored upstream from the Elk River treatment plant.

West Virginia American completed source-water protection plans for seven of its nine treatment plants, with federal funding provided by the bureau. However, the state-funded contractor didn’t do similar reports on the Kanawha Valley plant or on West Virginia American’s second largest facility, in Huntington. The company “has begun work” on a protection plan for the Kanawha Valley plant which, “once completed,” will “address additional assessment of the potential sources of contamination,” including “an attempt to review Freedom,” West Virginia American spokeswoman Laura Jordan has said.

It’s not clear from the PSC’s ruling if documents would be made public that might explain what work West Virginia American had done on a Kanawha Valley source-water protection plan before the chemical leak or if they would detail exactly what efforts the company made before the leak to find out what sorts of chemicals Freedom Industries was storing just upstream.

Commissioners narrowed the scope of what the water company must turn over in several instances.

For example, the water company was asked for details of maintenance issues that were outstanding at the plant. The PSC said that request was too broad and ruled that West Virginia American must turn over only records that “related to treatment of water or distribution issues that impact the ability to meet customer demand.” Commissioners narrowed a request for all information about recommended improvements to the 45-year-old plant to only those recommendations made since 2001. Commissioners said a request for information about customer complaints made to the water company after the leak “is not likely to lead to probative evidence that can aid the commission in this general investigation.”

The PSC order said that if the commission receives any Freedom of Information Act requests for records covered by the protective order, the commission will provide the water company “with prompt notice of such request, in sufficient time” for the water company to take steps to respond to the requested disclosure.

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

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