Was WV American Water required to have a second intake?

Reporter Ken Ward of the Charleston Gazette published an excellent article yesterday on recent developments in “Good vs. WV American Water” – the federal court case against WV American Water, its parent company American Water Works and Eastman Chemical (the manufacturer of MCHM). A number of documents have been filed confidentially in the case that the judge is considering releasing publicly:

U.S. District Judge John T. Copenhaver Jr. had issued an order saying that the “proposed sealing” by the plaintiffs of what the judge said was more than 500 pages of material “is patently inconsistent with binding United States Supreme Court and other precedent, along with the Local Rules of Civil Procedure and the administrative procedures” for the court’s online filing system.

Copenhaver gave the plaintiffs until Thursday [today] to “show cause in writing” why “the entirety of the documents proposed for sealing should not be spread upon the public record.”

 
The information that has been released publicly so far is very interesting.

The Gazette article links to a legal brief in the case that makes this allegation about WV American Water’s lack of a second water source:

As the Court is aware, there exists substantial dispute over the apparent failure of WVAW to build the Kanawha Valley Treatment Plant (“KVTP”) in accordance with the plan approved by the Public Service Commission (“PSC”) in 1969. Those plans called for the continued use of the then-existing source water intake upstream from the Freedom Industries site, which, if followed, would have avoided the impact of the Spill on the water supplied by WVAW.

 
So the original design for the treatment plant allegedly called for the continued use of an intake already in existence further upstream on the Elk River. Is this true? Did WV American Water fail to build its plant in accordance with the design that its regulators approved? Why? And how did this go unnoticed for 40+ years?

This is the sort of allegation that the Public Service Commission should be looking into. Unfortunately it can’t really do that – its general investigation into the water company’s response to the spill has been stalled since December because there aren’t enough commissioners to pursue the investigation. When is Governor Tomblin going to appoint someone so the PSC can do its job?

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