Citing what it said are potential conflicts with legislation passed after the January 2014 chemical spill, the state Public Service Commission is hinting that it could drop its long-stalled investigation into West Virginia American Water Company's response to the spill's contamination of its regional drinking water supply.
Late last week, the PSC ordered all parties in the case to submit statements outlining their views of how issues in the investigation overlap or are separate from matters covered by chemical tank safety and drinking water protection legislation passed by West Virginia lawmakers in response to the spill at the Freedom Industries facility along the Elk River, just upstream from the regional drinking water intake. The water supply of hundreds of thousands of people in Charleston and surrounding communities was tainted as a result.
Commissioners said that they are "troubled by what has developed into a close convergence of subject matter" and that the PSC "must be mindful of potential actions here that might conflict with the process and procedure established by the Legislature in that bill."
The six-page PSC order was issued on Thursday, New Year's Eve.
Earlier last month, the PSC had postponed a status hearing - sought by the agency's own Consumer Advocate Division - on the investigation, which 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.
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.
Commissioners have yet to have a formal evidentiary hearing where lawyers would get to publicly cross-examine witnesses from the other parties.
In their order last week, commissioners said that they have concluded that the issue of potential conflicts between the investigation and the legislative action "looms the largest in terms of the potential impact on this proceeding, and must be addressed before going forward."
The PSC order repeatedly referenced SB 373, the chemical tank and water safety law passed by lawmakers in 2014, just after the Freedom spill and the water crisis that followed. Commissioners did not mention SB 423, the bill passed the following year to roll back some of the original law's requirements for chemical tank safety.
Commissioners said that the "future practices" that consumer advocates and citizen groups are advocating in the spill investigation "appear to track closely" the source-water protection plan that SB 373 requires West Virginia American to submit by July 1, 2016.
"The Legislature has conferred on the Bureau of Public Health the authority to approve, modify or reject source-water protection plans," the commission order said. "While the commission is not, of course, bound to accept the particular recommendations of any party, we are troubled by what has developed into a close convergence of subject matter between this proceeding and SB 373, and the resulting potential for conflict."
Commissioners gave all parties until Jan. 19 to file their comments on the matter, and scheduled a status hearing for 9:30 a.m. on Jan. 22.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.