Advocacy groups say litigation concerns shouldn't cloud efforts - WOWK 13 Charleston, Huntington WV News, Weather, Sports

Advocacy groups say litigation concerns shouldn't cloud efforts to understand WVAWCs disaster preparedness

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Three advocacy groups involved in the West Virginia Public Service Commission’s general inquiry into West Virginia American Water Company’s disaster preparedness have filed motions to compel the company to answer their questions.

WVAWC balked at answering a number of questions raised by the Consumer Advocates Division, the West Virginia Sustainable Business Council, and Advocates for a Safe Water System since the inquiry began in May, suggesting the information either falls outside the scope of the general investigation, is needlessly burdensome given the investigation’s limited scope or could be used against them in court.

The three advocacy groups, however, say they need the answers to gauge whether WVAWC was properly prepared to handle an emergency of the magnitude of the Jan. 9 chemical spill at Freedom Industries’ Etowah terminal.

That spill sent several thousand gallons of 4-methylcyclohexane (MCHM,) a chemical used in the coal cleaning process, into the Elk River just about a mile from the WVAWC water intakes. By the time it was detected, WVAWC’s water transmission, distribution and storage system had been contaminated.

A ‘do not use’ order was issued, affecting WVAWC customers in a nine-county swathe of Southern West Virginia for weeks. The crisis spawned dozens of civil suits.

In objecting many of  the questions, WVAWC Attorney Christopher Callas of Jackson Kelley said the PSC “should not permit its processes to be used to garner discovery responses to support civil claims that would be outside the Commission’s own jurisdiction.”

Callas had pointed out the PSC’s General Inquiry order spelled out the boundaries of its probe, and many of the Business Interveners questions, particularly, “violate (PSC’s) limitations on the scope of this proceeding by seeking information about the Company’s facilities, operations, activities, practices, and/or compliance with applicable regulatory standards ... before the spill and/or the adequacy of those regulatory standards before the spill.”

“These requests do not inquire about the Company’s activities in reaction to the spill, are not limited to the time at or after the spill, and do not relate to the circumstances presented by the spill,” he stated. “They are outside the scope of the general investigation, irrelevant to the purposes of the general investigation, and thus objectionable.”

CAD counsel Tom White said his group “in no way takes the position that WVAWC caused the Jan. 9, 2014 chemical spill and the resulting water crisis.”

“However, the CAD believes it has the responsibility to inquire into what sort of planning the Company did to prepare for and anticipate the possibility of such a catastrophe,” he said. “That is the thrust of the discovery questions that are in dispute here. Certainly, the Company’s planning for such a crisis will affect how the Company could and did respond to this crisis.”

Anthony Majestro of Powell & Majestro, PLLC, said WVAWC’s concerns that the Sustainable Business Council would use their answers against them in court “is irrelevant.”

“The Commission should have little doubt that were this investigation to result in findings favorable to WVAWC, WVAWC would attempt to introduce those findings in pending civil litigation related to the January 9,2014 spill,” he said, suggesting that WVAWC “holds all the information and wants to keep it that way.”

“WVAWC’s goal is clear: keep all the information so that no one will discover a basis for fault in its response to the spill, and thereby render the commission’s investigation a rubber stamp on its activities that day,” Majestro wrote. “The problem for WVAWC is that there appear to have been serious deficiencies in its response to the spill, and the information sought will assist the Commission in thoroughly investigating this likelihood.”

Advocates for a Safe Water System, meanwhile, pointed out that there are some points “which would be relevant to both the PSC’s concerns and to the civil litigation.”

“The Company would have the PSC willfully overlook any facts which might be of some relevance in another proceeding,” DePaulo wrote. “Indeed, the Company seems to have invoked this ‘civil litigation’ objection almost reflexively, virtually everywhere details are sought, and has done so in response to numerous information requests which are not only relevant to the PSC’s General Investigation ... but critical to the GI, if this GI is to have any hope of ascertaining a clear and detailed picture of what occurred on and after January 9. If it were actually a legitimate objection that an information request ‘will develop evidence that could be used in pending civil litigation,’ then it would be pointless to proceed with this General Investigation at all.”

DePaulo argues they and the PSC need to understand what WVAWC knew about potential hazards in its service territory and the company’s emergency preparedness.

“But apparently it is the Company’s position that whether or not the Company was completely unprepared on January 9, 2014 for what occurred on or before that date is of no concern to the West Virginia Public Service Commission,” he said. “ It is the position of Advocates that this is a matter of central concern to the commission and must be an important aspect of its General Investigation. There are undoubtedly lessons to be learned related to this, and it is of the utmost importance that they be learned, and that the lessons guide future decisions related to this and all water utilities in the state.

 

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