Responding to the Freedom Industries chemical spill
Today, the Public Service Commission issued an order requiring West Virginia American Water to turn over documents that it had previously refused to disclose.
On Monday, the Commission held a hearing on the dispute between West Virginia American Water and the other parties to the Commission’s investigation – Advocates for a Safe Water System, the WV Sustainable Business Council, and the PSC’s Consumer Advocate Division. Those parties had all filed “motions to compel” asking the Commission to order WV American Water to provide meaningful answers to questions that those parties have raised in the case. WV American Water has so far refused to provide any documents pertaining to its emergency planning, or lack thereof.
In a document filed with the Commission on Wednesday, the water company insisted that everything having to do with its emergency planning is confidential under the 2002 Bioterrorism Act. The Bioterrorism Act requires all water utilities serving more than 3,300 customers to complete vulnerability assessments, assessing the vulnerability of their system to intentional terrorist acts. Such assessments are indeed confidential. In its filing on Wednesday, WV American Water insisted that all of its emergency planning is somehow derived from its assessment of vulnerability to intentional terrorist acts:
Documents in the Company’s possession that discuss infrastructure (e.g., pipes and conveyances, operation and maintenance), prevention of contamination (e.g., physical barriers, collection, treatment, testing, storage, distribution, automated systems), contingency planning, alternative water sources, and emergency response are either “contained in” or “derive from” the Company’s assessment of system vulnerabilities and should not be loosed heedlessly into the public realm.
There are so many bizarre things about this statement it’s hard to know where to begin. First of all, I would note that West Virginia American Water’s sourcewater protection plan for its Fayette County Regional Water System is publicly available (thanks to a Freedom of Information Act request by Plateau Action Network) and contains information about contingency planning. Secondly, it’s a bit strange to imagine that WV American Water could have an emergency plan or contingency plans that are not shared with local emergency planning officials or local health department officials – how useful could such a plan be?
And finally, nobody was suggesting that sensitive information be “loosed heedlessly into the public realm.” All other parties to the case were willing to sign a confidentiality agreement so that the Commission and parties could make use of confidential information that could not be released publicly.
Fortunately, the PSC did not buy the water company’s insistence on secrecy. The PSC seems to believe that emergency planning and preparedness at the time of the spill are, in fact, relevant to its investigation of the company’s response to the spill. The PSC ordered West Virginia American Water to answer the majority of the questions that it has refused to answer thus far – including questions relating to the company’s emergency plans, contingency plans, and sourcewater protection plans that were in effect as of January 9th. The PSC is allowing the water company to file some of this information as confidential, and the PSC will ultimately make the decision as to whether the information that the company files on a confidential basis actually needs to be withheld from the public.
The PSC also indicated in its order today that it believes that part of its duty in this investigation is to look towards the future and order changes to WV American Water’s operations:
The Commission does not make a determination regarding the reasonableness or unreasonableness of practices, acts or services under W.Va. Code 924-2-7 for the mere purpose of making a determination regarding reasonableness. The statute instructs that if the Commission finds practices, acts or services of a public utility to be unreasonable,
then the Commission must order reasonable practices, acts or services to be followed in the future.