Testimony to Public Service Commission reveals serious planning failure

On Thursday, all of the parties to the Public Service Commission’s investigation of West Virginia American Water’s response to the Freedom Industries leak – including the PSC Staff, the Consumer Advocate Division, the West Virginia Sustainable Business Council, and Advocates for a Safe Water System – filed the testimony of their expert witnesses with the Commission. In hundreds of pages of testimony, the witnesses collectively paint a detailed picture of West Virginia American Water’s lack of preparedness for the sort of chemical contamination that occurred and the insufficiency of the utility’s response. West Virginia American Water will have the opportunity to file additional testimony to rebut these witnesses on January 20th. All of the witnesses will be cross-examined at a hearing currently scheduled for Feb 10-12.

(Note that the Public Service Commission’s Staff is a separate arm of the Commission from the Commissioners themselves and the Staff’s testimony gives no indication of what the Commissioners themselves are thinking about the case).

According to state code (Ch. 24 Section 2-7a):

Whenever … the [Public Service C]ommission shall find any regulations, measurements, practices, acts or service to be unjust, unreasonable, insufficient or unjustly discriminatory, or otherwise in violation of any provisions of this chapter, or shall find that any service is inadequate, or that any service which is demanded cannot be reasonably obtained, the commission shall determine and declare, and by order fix reasonable measurement, regulations, acts, practices or services, to be furnished, imposed, observed and followed in the state in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory, inadequate or otherwise in violation of this chapter, and shall make such other order respecting the same as shall be just and reasonable.

In other words, through this general investigation, the Commission has the power to order WV American Water to fix any of its unreasonable or insufficient practices.

The testimonies filed Thursday broadly cover four different aspects of the Company’s response: (a) the lack of emergency preparedness, which limited the ability to respond effectively; (b) the lack of appropriate monitoring and testing equipment; (c) poor operations in the days leading up to the spill; (d) and decisions on the day of the spill. We are preparing a series of blog posts covering these four topics, with today’s focusing on the company’s lack of emergency preparedness.

The Consumer Advocate Division’s witness Evan Hansen (president of Downstream Strategies and an expert in source water protection) goes into the most detail about the Company’s failures on this score.

Mr. Hansen notes that the company was aware, in 2002, that the Bureau for Public Health had identified the Elk River intake as “highly susceptible” to contamination. He noted that this BPH report had identified 27 potentially significant contaminant sources in the “zone of critical concern” upstream of the intake, but that the company had only ever collected information on three of them.

Mr. Hansen notes that the lack of a source water protection plan directly impacted the Company’s response on January 9th:

Through proper inventorying and management planning, WVAWC would have known (1) which chemicals were stored upstream; (2) the quantities and locations of those chemicals; (3) the characteristics of those chemicals, including whether the chemicals’ toxicities had been fully researched; and (4) laboratory testing methods for those chemicals. If appropriate testing methods had been identified and, if necessary, created in advance of the leak, WVAWC would not have had to rely solely on the water’s taste and odor to determine whether it had been contaminated on January 9.

If the company had done due diligence to learn what the potential significant contaminant sources were and had collected the Tier II forms and permits associated with those facilities, WVAW would have learned that the Freedom site had never been inspected under the Department of Environmental Protection’s Clean Water Act NPDES program. They could have requested the DEP to inspect the site, potentially averting the entire leak in the first place.

Mr. Hansen states that it is entirely reasonable to expect that a water utility would engage in this sort of source water protection activity. Indeed WVAWC had completed source water protection plans for all of its systems in West Virginia except for the Kanawha Valley and Huntington systems, which were excluded – paradoxically – “because of their population size and the complexity of threats to these systems …”

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