Responding to the Freedom Industries chemical spill
Two motions were filed at the Public Service Commission today in the ongoing battle over WV American Water’s lack of transparency.
As you may recall, WV American Water had initially refused to answer many of the questions that parties in the investigation had asked in seeking to bring to light more details about the water utility’s response to the Freedom spill. The Commission ultimately held a hearing on the dispute and ordered WV American Water to disclose much of the information that it had been withholding. The Commission noted that some information might be sensitive (for example, relating to assessing water system vulnerability) and therefore the utility could file this information as confidential with the Commission and the parties; the Commission would rule later on whether such information should be publicly disclosed.
In violation of this order, WV American Water chose to file some information with the Commissioners only and not with any of the parties in the case. The parties (the Consumer Advocate Division, the PSC’s Staff, the WV Sustainable Business Council, and Advocates for a Safe Water System) filed a joint motion today asking the Commission to order the company to make this information available to the parties. They noted that WV American Water’s decision to share information with only the Commission was effectively an “ex parte communication” – a communication between a judge and one of the parties to a case that is not part of the formal evidentiary record in the case.
In addition, Advocates for a Safe Water System and the WV Sustainable Business Council argued in a separate motion filed today that much of the confidential information that the company did provide to the parties didn’t really need to be confidential. Advocates and the Business Council stated that “[t]he Company’s gross over-use of the ‘confidential’ designation … keeps the public in the dark regarding matters of legitimate public concern.” They also argued that WV American Water had attempted a “bait and switch” – even though it had emphasized homeland security concerns in its previous refusals to disclose information before and at the August hearing, the company is now saying that these documents are “trade secrets”, not posing any homeland security risk. The motion states:
While there may be aspects of the operation of even a water utility which involve competitive markets, it seems tremendously cavalier to imply that virtually all of its operations are somehow the subject of a closely guarded trade secret. In the case at hand there is no credible showing that anything that the Company seeks to hide would, if disclosed, give unwarranted business advantage to its competitors. Indeed, there is nothing that would even suggest this.
It is not clear that this issue is going to be resolved any time soon. Both of motions filed today are asking the Commission to take action: to order the company to provide more information to the parties, and to rule that some of the confidential information should be disclosed. But, as the PSC’s General Counsel recently pointed out, “[i]n order to constitute an action of the Commission, the concurrent judgment of two Commissioners is required… Consequently, until another Commissioner is appointed, the Commission is unable to rule.”