Gov. Earl Ray Tomblin will soon be faced with filling another vacancy on the West Virginia Public Service Commission. Commissioner Jon McKinney is resigning, effective Dec. 31, the Governor’s Office confirmed Friday.
“The governor is aware of the upcoming vacancy and will name a replacement once he determines the best person for the position,” said Tomblin spokesman Chris Stadelman.
McKinney, a former Monsanto executive, has been on the PSC since August 2005. His term actually expired in June 2011, but he had been serving since then under a state law that allows him to do so unless he’s officially replaced.
Just last month, Tomblin appointed former state senator Brooks McCabe to the commission to replace Ryan Palmer, who resigned to take a position with the Federal Communications Commission.
The resignations come at a time when the PSC is wrestling with a controversial investigation of West Virginia American Water Co.’s response to the Jan. 9 chemical leak from Freedom Industries, which contaminated the water company’s Elk River intake that serves hundreds of thousands of people in Charleston and surrounding communities.
Further complicating the commission’s handling of that probe is that PSC Chairman Michael Albert in August recused himself from the case, citing his longtime work as a lawyer for West Virginia American, including on some matters regarding the company’s Kanawha Valley treatment and distribution plant on the Elk, about 1.5 miles downstream from Freedom Industries.
Once McKinney’s resignation takes effect, and until the governor appoints a replacement, that leaves only McCabe — who took office in mid-November — as the only commissioner able to consider any matters regarding the chemical leak investigation.
Earlier this week, the PSC’s Consumer Advocate Division asked the commission to schedule a hearing to consider arguments over West Virginia American’s motion to preclude certain testimony offered by other parties about the water company’s planning for response to emergencies like the chemical leak.
The consumer advocate — along with citizen groups, businesses and the PSC staff — argue that lawyers for West Virginia American are wrongly trying to narrow the scope of the PSC’s investigation so that any lack of planning or preparation by the water company for such a chemical leak can be considered by the commission.
“The company wants the commission to look only at events and decisions made on January 9th, ignoring decisions made by the company before January 9th which may have profoundly and decisively limited the options available on that date,” wrote Paul Sheridan, a lawyer for the group Advocates for a Safe Water System.
“The commission needs to look beyond the day of January 9, 2014, and recognize that the circumstances which existed on that day were the result of actions and decisions, or the lack of them, taken or made by the company in the past,” Sheridan wrote. “All of the company’s options on that day were shaped by its actions and decisions of the past, and all of the company’s perceptions and perspectives on that day were likewise determined by the past actions and decisions.
“And since the water-consuming public deserves better options for avoiding the next crisis, it is critical that past decisions which determined the January 9th crisis be examined, whether they were made days before or years before,” he wrote.
Laura Jordan, a spokeswoman for West Virginia American, said the company has not asked the PSC to “narrow the scope of the investigation,” as the other parties have alleged.
“West Virginia American Water submitted testimony that addresses every issue the commission directed it to address when it opened the proceeding, and when it also specified issues that it did not want to address,” Jordan said. “The motion we filed concerns some of the submissions by other parties that fall outside the scope of the proceeding as defined by the commission.”
For example, the water company has asked the PSC not to consider testimony from Joseph Cotruvo, an Ohio State University chemist hired by businesses that intervened in the case, about the type of water testing equipment and methods that West Virginia American had on site at the time of Freedom’s leak of MCHM into the Elk River. The company also wants to preclude testimony by consumer advocate consultant Evan Hansen about issues such as the water company’s failure to — prior to the leak — compile adequate information about MCHM and other potential threats to its source-water supply.
Water company lawyers urged the commission not to allow its investigation to be a “hindsight-laden negligence inquiry” by forbidding such testimony.
Jonathan Marshall, a lawyer for businesses that intervened, told commissioners that, in order for the PSC to judge the water company’s response to the leak, it must look at “facts and conduct that predate, but are implicated in” the response. Testimony challenged by the water company, Marshall said, “discusses conditions and planning existing or in effect on January 9, 2014, and suggested improvements, and therefore goes to the core” of the PSC’s investigation.
Reach Ken Ward Jr. at email@example.com, 304-348-1702 or follow @kenwardjr on Twitter.