Consumer advocates, citizens groups, local businesses and agency staff are all urging the state Public Service Commission not to abandon a long-stalled investigation of into West Virginia American Water Company’s response to the January 2014 Elk River chemical spill’s contamination of its regional drinking water supply.
Lawyers for the PSC staff, the agency’s Consumer Advocate Division, Kanawha Valley residents, and area businesses filed a joint statement this week that says passage of legislation to regulate chemical storage tanks and improve drinking water safety measures does not eliminate the need — or the potential benefits — of a general investigation of the spill response by the PSC, which regulates West Virginia American and other state water utilities.
“The PSC is the only agency with the power to thoroughly investigate the water company’s response to the January 9th, 2014, water crisis with an eye to ensuring that all of the lessons are learned from that crisis,” the statement said.
“The possibility that some adequate remedies have already been taken does not detract from the PSC’s public interest duty in completing the investigation,” the statement said. “It is essential that the commission not abandon this general investigation.”
The statement was filed Wednesday afternoon in response to a commission request for views from parties in the case about any potential conflicts between the PSC’s investigation and actions already taken by the Legislature to require the state Department of Environmental Protection to better regulate chemical storage tanks and the state Bureau for Public Health mandate water utilities develop plans to protect against future contamination. Commissioners had hinted, in an order issued late in the day on New Year’s Eve, that they were considering dropping their investigation because of potential conflicts with the legislative actions.
In its own statement to the commission, also filed Wednesday, West Virginia American told the PSC that the agency should abandon the investigation, citing reforms that lawmakers already mandated be made by the DEP and the BPH, which is part of the state Department of Health and Human Resources.
“Nearly every criticism of the company’s alleged acts and omissions, both before and after the Freedom Industries spill, includes and express or implied recommendation for future operations,” lawyers for West Virginia American said. “Consequently, any commission ruling addressing such a recommendation — either by adopting, modifying or even rejecting it — presents the potential for conflict with ongoing legislative and regulatory programs.”
In the case, pre-filed testimony from PSC staff, consumer advocates and citizen groups has alleged that the water company did not prudently plan for a toxic leak, despite knowing the proximity of Freedom’s facility to its water intake. West Virginia American has been trying to limit the scope of the hearing and to keep out evidence about prior planning — or lack of planning — for a major chemical leak into the Elk. Those parties argued in their new statement to the PSC that commissioners should continue the investigation so that they can more fully examine, among other things, issues about proper monitoring of the drinking water supply and provision of an alternative supply in case of contamination.
The investigation, though, has been stalled for more than a year because of the recusal in August 2014 of PSC Chairman Michael Albert, a longtime water company lawyer, and the resignation of Commissioner Jon McKinney in December 2014. Those moves — and the lack of an appointment by Gov. Earl Ray Tomblin to replace McKinney — left the commission with just one member, Brooks McCabe, not enough under the law for it to take any action. In October, Tomblin appointed Kara Cunningham Williams, a former Steptoe & Johnson lawyer, to fill McKinney’s seat.
The PSC has a hearing scheduled on Friday morning to discuss the investigation.
Reach Ken Ward Jr. at firstname.lastname@example.org, 304-348-1702 or follow @kenwardjr on Twitter.