The state Public Service Commission on Friday postponed a key hearing that it had scheduled for next week to begin to sort out the status of its long-stalled investigation of West Virginia American Water Co.'s response to the January 2014 Elk River chemical spill.
Commissioners also again gave lawyers for West Virginia American more time to argue why certain records in the investigation should be not be made public in response to a Freedom of Information Act request from the Charleston Gazette-Mail. The commission issued a 14-page order in the matter on Friday afternoon.
The PSC postponed the hearing, which had been set for Tuesday, in response to a request from Advocates for a Safe Water System, whose lawyer said he was not able to attend on that date. Commissioners did not immediately set a new date, but told lawyers in the case to confer and proposed alternatives.
Pre-filed testimony from PSC staff, consumer advocates and citizen groups has all alleged that the water company did not prudently plan for a possible toxic leak, despite knowing that the Freedom Industries chemical tank facility was located just upstream from its regional drinking water intake. West Virginia American has been trying to limit the scope of the hearing and to keep out evidence about prior planning - or lack of planning - for a major chemical leak on the Elk.
The PSC probe has been stalled for a year because of the recusal in August 2014 of PSC Chairman Michael Albert, a longtime water company lawyer, and the resignation of Commissioner Jon McKinney in December 2014. Those moves - and the lack of an appointment by Gov. Earl Ray Tomblin to replace McKinney - left the commission with just one member, Brooks McCabe, not enough under the law for it to take any actions. In October, Tomblin appointed Kara Cunningham Williams, a former Steptoe & Johnson lawyer to fill McKinney's seat.
Tom White, a lawyer for the PSC Consumer Advocate Division, had asked the commission to set a status hearing to try to get the investigation case back on track.
In its Friday ruling, the commission discussed at length its quandary in trying to deal with a FOIA request filed in September 2014 for records that had not yet been made public in the case. West Virginia American argues that those documents are protected from public disclosure by federal rules meant to prevent terrorist attacks on public water systems.
Commissioners ruled that some documents -- such as the water company's emergency preparedness manual -- are "highly sensitive confidential information" that must be kept secret.
Regarding about a dozen other records that West Virginia American says contain "confidential information," the commission said the FOIA request for those "presents circumstances which, while perhaps contemplated conceptually, have not previously been addressed by the commission in practice."
"More specifically, here we are asked to resolve a motion for permanent protective treatment where the documents that are the subject of the motion are also the subject of a pending FOIA request," the order said. "Given those circumstances, the commission concludes that it is appropriate to provide the parties to this case, as well as other cases where these circumstances could arise, with further direction regarding the applicable legal standards and the corresponding showing that must be made to protect information asserted to be a 'trade secret.'"
The commission ruling then listed previous rulings regarding FOIA requests and said that, "with an appreciation of the potential public safety ramifications inherent" in the documents at issue in the spill investigation, it would give West Virginia American lawyers a chance to file more legal arguments on the issue. Those are due on Dec. 30, the commission said.
Commissioners noted that the water company has previously been given several chances to review the documents and that the company has tried to withhold information such as "position titles and "document identifiers."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.