Source: The Charleston Gazette (WV), January 23, 2016
Posted on: http://www.advisen.com
Members of the state Public Service Commission tried Friday morning to sort out if, how and when they would continue a long-stalled investigation into West Virginia American Water Co.’s response to the January 2014 chemical spill that contaminated the drinking water supply for hundreds of thousands of the company’s customers in the Kanawha Valley and surrounding communities.
Commissioners held a hearing to quiz lawyers for the water company, PSC staff, consumer advocates, citizen groups and business owners about the commission’s concern that any action it could take as a result of its investigation would overlap with reforms the Legislature already ordered be overseen by the state Bureau for Public Health as part of a bill passed after the spill.
“This is a tough issue,” said Commissioner Kara Cunningham Williams. “We haven’t yet determined how we are going to resolve this issue.”
Cunningham presided over Friday’s hearing, with an empty seat for Chairman Michael Albert left between her and Commissioner Brooks McCabe.
Albert, a longtime water company lawyer, recused himself from the case in August 2014. The investigation remained stalled after the resignation of Commissioner Jon McKinney. The recusal and resignation — and the lack of an appointment by Gov. Earl Ray Tomblin to replace McKinney — left the commission with just one member, McCabe, not enough under the law for it to take any action. In October 2015, Tomblin appointed Kara Cunningham Williams, a former Steptoe & Johnson lawyer, to fill McKinney’s seat.
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 Industry’s chemical storage 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 River.
During Friday’s hearing, water company lawyer Chris Callas argued that there was little the commission could do in the case that wasn’t already addressed by the legislation passed after the spill to require water utilities to prepare source-water protection plans. Callas also complained that any findings by the commission might be used by lawyers for area residents and businesses in civil lawsuits filed against West Virginia American over its handling of the spill.
“We believe there is nearly complete overlap and the commission ought to take that overlap into account,” Callas told commissioners.
Lawyers for area business owners and for the group Advocates for a Safe Water System suggested that the commission might consider splitting the investigation into two parts: One that dug into exactly what West Virginia American did — and didn’t do — before and after the spill, and a second part that would try to find potential remedies to any problems identified in the first phase.
Paul Sheridan, a lawyer for the advocates group, said that it’s important for the commission to get to the bottom of what went wrong and what the water company could do better, and that a full hearing — where witnesses from all sides face cross-examination — is a key to doing that.
“We can focus on the issue of what happened and learning the lessons,” Sheridan said. “We shouldn’t be arguing about what the remedy should be before we know what happened.”
Tony Majestro, a lawyer for business owners who intervened in the PSC case, agreed.
“At the stage we’re in now, the identification of remedies is difficult,” Majestro said.
Jackie Roberts, director of the PSC’s Consumer Advocate Division, and David Sade, a lawyer for the PSC staff, said they didn’t think the probe needed to be divided into parts, but also argued that the commission needs to allow the parties another round of discovery — the process of obtaining documents from the other parties — and then move forward to a hearing.
In response to questions from McCabe, Roberts agreed that the commission could help inform itself by looking at whatever source-water protection plan West Virginia American files with the health department later this year, and at the health department’s response to it. Part of the PSC’s role should be to keep up with whether, as part of acting as a reasonable utility, West Virginia American is complying with such mandates from other agencies, Roberts said.
Sade said that if the PSC cuts off its investigation at this point, it’s “going to leave customers without any idea of what happened and that should be one of this commission’s paramount concerns.”
“Customers of West Virginia American didn’t learn what happened during the legislative process,” Sade said. “Who knows what they’re going to learn when the civil litigation runs its course? I think the public and the customers of this company are entitled to some answers long before we wait for that process to run its course.
“If not this commission, then who, if not now, then when?”