Water company could have closed intake, court filing argues

AP file photo
The West Virginia American Water Co. intake facility on the Elk River in Charleston. In documents unsealed as part of a lawsuit in federal court, lawyers allege that the water company could have avoided depletion of its water reserves in the days leading up to the Freedom Industries chemical spill in January 2014, which would have allowed the company to close the Elk River intake.

West Virginia American Water Co. could have avoided the depletion of its treated water reserves during a cold spell in January 2014, a move that would have allowed the company to close its Elk River drinking water intake to allow chemicals from the Freedom Industries spill to pass the plant that serves hundreds of thousands of people across the region, lawyers for residents and businesses argue in newly unsealed court filings in a lawsuit against the water company.

Operators at West Virginia American’s plant could have increased the amount of water the facility treated and stored in response to higher demand, as the cold weather — with residents letting faucets drip to avoid frozen pipes — continued in the region in the days prior to the Jan. 9, 2014 spill of crude MCHM and other chemicals from Freedom’s facility just 1.5 miles upstream from the water company’s intake near downtown Charleston, the filings argue.

The ability to produce and store more drinking water, lawyers for the residents and businesses argue, undercuts West Virginia American’s public argument and legal defense that depleted water reserves caused by the cold weather left the company with no way to shut down its intake pump and keep contaminated water from the Elk from entering its plant and being distributed through the regional system to homes and businesses.

“WVAW has offered no evidence that the depletion of its storage reserves in response to the cold weather event preceding the January 9, 2014, spill was unavoidable,” the lawyers for residents and businesses argue in their filing. “The undisputed evidence is that it simply was not producing as much water as it could have been producing while its treated water reserves were dropping steadily over the days before the spill.”

Lawyers for residents and businesses outline their new arguments in a motion and a legal brief, along with hundreds of pages of new documents and testimony, that were made public Thursday in U.S. District Court in Charleston.

The motion, the legal brief and about 400 pages of exhibits were originally filed under seal two weeks ago. The Charleston Gazette-Mail sent U.S. District Judge John T. Copenhaver a letter objecting to the secrecy, and on Thursday, plaintiffs’ lawyer Kevin Thompson withdrew the sealed filing and submitted new public versions, with some material redacted.

Laura Jordan, a spokeswoman for West Virginia American, said Thursday that the water company “disagrees with the characterization of the events and the law in the filings by the plaintiffs’ attorneys.” Jordan said that the company’s lawyers would respond to the filing consistent with the court’s schedule. That schedule calls for responses to be filed by June 3.

Copenhaver is presiding over a class-action suit in which residents, businesses and wage earners in the area affected by the spill allege the water company did not properly prepare for such a spill or respond appropriately to the incident. The case also targets Eastman Chemical, which made Freedom’s MCHM, alleging the company violated chemical safety laws by not disclosing information about the chemical’s health effects and its potential to corrode Freedom’s storage tanks.

A July trial has been delayed, but no new date has been scheduled yet.

On the day of the spill, at about 5 p.m., state officials and the water company advised everyone served by West Virginia American’s Elk River plant not to drink, cook with or bathe in their tap water. That “do not use” order remained in effect for some areas for up to a week, until officials said that the distribution system had been adequately flushed of any contamination.

Among other things, the case against West Virginia American argues the company breached its contractual duty to provide customers with a reliable supply of potable water after the chemical spill.

Water company critics have argued since the incident that West Virginia American should have turned off its intake pumps to allow the chemicals to pass the facility. Water company President Jeff McIntyre has responded that doing so would have quickly depleted the water needed for firefighting and sanitation, and required a month or more to get the entire system back up and running.

But in the new court filings, lawyers for the plaintiff class argue that ratepayer-funded improvements to the water plant increased its production capacity, allowing, for example, for more water to be treated and stored during times of heavy demand. Despite heavy demand in the days before the chemical spill, though, the plant operators continued to produce drinking water at below the facility’s new capacity, the court filings argue.

The new filings also argue that West Virginia American has shut down its intake pumps during other chemical spills, and that a shutdown for a few hours — the time needed for the worst of the contamination to pass the facility — “is very far from an unforeseen or unforeseeable event.” The facility’s pumps also are closed during power outages, the legal filings say.

“When storage levels have not been depleted, customers never even know a four-hour shutdown happened,” the court filings argue.

The court filings also reveal that a water company expert witness was unable to say if the plant could have produced water with safe levels of MCHM if it had shut down intake pumps for a brief period on Jan. 9. The expert said he lacked the evidence needed to make such a conclusion “because of the absence of samples” collected by the water company intake tap in the hours immediately following the spill, the filings said.

The court filings reveal that West Virginia American did not collect — or at least did not “acknowledge collecting” — a single sample from its raw water tap or treated water tap at the plant until 5 p.m. on Jan. 9, after learning of the spill at about noon. The company did not collect a second sample until 10:25 p.m., and no other raw water samples were collected on Jan. 9, the court filings said.

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

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