Responding to the Freedom Industries chemical spill
Over the past two months, twenty six WV American Water customers in the Charleston area have filed formal complaints at the WV PSC concerning WVAW’s billing for contaminated water after the Freedom Industries Spill. Many more customers have filed informal complaints at the PSC. Over that same time period, a number of citizens and legislators have contacted the WV PSC to ask for a general investigation to investigate all aspects of WV American Water’s actions following the contamination of the company’s Elk River water supply with coal industry chemicals.
Individual complaint cases were necessarily focused on billing issues, and did not have the scope to include many other issues that have not been studied or addressed to date concerning WVAW’s actions. The Legislature and the DEP have focused on regulating above ground storage tanks, SB 373 begins the process of protecting drinking water sources across the state and WVTAP and the Kanawha Charleston Health Department have looked at health impacts. Only the WV PSC can order a utility to make changes to improve its operation. Here is the Commission’s authority under its legal mandate set out by the Legislature in the WV Code in Chapter 24-2-7:
Whenever, under the provisions of this chapter, the commission 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.
One of the PSC’s most effective tools is the general investigation. In a general investigation, the PSC requests a full accounting of a particular situation from the relevant utility, and other parties to the case can request information of the utility and make recommendations to the PSC about how to resolve problems. The three Commissioners review the information presented in the case and order the utility to make changes.
Yesterday, the PSC issued an order initiating a general investigation into WVAW’s response to the January 9 Freedom Spill. The Commission says specifically that the investigation will not review past investment decisions by WVAW and that it will not deal with issues of water quality standards which are set by the state Bureau of Public Health. It does appear, however, that the PSC is willing to investigate all other aspects of WVAW’s response and suggestions for future improvement in safety and emergency response.
The Commissioners ordered WV American Water to present direct testimony in five specific areas:
In addition to any testimony that WVAWC believes is responsive to the scope, as described above, of this general investigation, the Commission requires WVAWC to provide the following content:
1. A chronological description of the pertinent actions taken by WVAWC personnel beginning when any employee of WVAWC, its parent company, or service company became aware of the spill, through March 31, 2014.
2. A chronological listing of the measurements of MCHM taken by WVAWC and the locations where those measurements were obtained, through March 31, 2014. WVAWC should provide updated measurements once it has completed replacement of its filters.
3. A narrative describing the process and factors used to decide whether to close the intake structure. The testimony should include which, if any, outside agencies were consulted or otherwise had a role in making the decision, the factors contemplated in making the decision, and who ultimately made the decision regarding the continued intake of raw water from the Elk River.
4. A detailed description of the involvement of all agencies or entities external to WVAWC that were consulted or otherwise involved in developing or implementing protocols used by WVAWC from the first indications of the spill through March 31, 2014.
5. A description of alternatives for water treatment or alternative or supplemental sources of treated or finished water that were considered by WVAWC after it became aware of the MCHM spill.
The Commissioners also ordered that all of the 26 current pending formal billing cases will be suspended until after the general investigation is completed. This makes sense, because the facts about whether WVAW’s response to the Freedom Spill was reasonable have a direct bearing on whether it was permissible under the company’s rate tariff to charge its customers for contaminated water.
Here is the case schedule as set out by the Commission in its order:
WV American Water is obviously a party to the case. The PSC staff will participate in the case as well. The three Commissioners will act more or less as judges in the case, but the staff will put on its own evidence as a separate party in the case. The PSC’s Consumer Advocate Division may or may not join the case as a party. Organizations, individuals and businesses can also participate as full parties, with the right to present evidence and cross examine witnesses as “intervenors.” Individuals may represent themselves without an attorney, but businesses and organizations must be represented by lawyers. Note that if you want to intervene, you must file a petition to intervene, with 12 copies, with the PSC’s Executive Secretary. If you plan to intervene, you should read the PSC’s order carefully first.
If you don’t want to participate directly in the case, you can follow all of the evidence presented by subscribing to the PSC’s email system at this link. Insert the case number 14-0872-W-GI as your choice for case subscription. You can always find the documents filed in the case at this link, where, again, you will need to enter the case number. When you get to the general case page for 14-0872-W-GI, click on the Activities link to see the case documents.
A lot of information will come out in the testimony and discovery in this case. The public has not had access to much of this information until this investigation, so want to learn more about WVAW’s response to the spill, this will be a great place to do it. You can always mail or email comments in the general investigation on an informal basis. Always be sure to include the case number in your comment.