A citizen watchdog group wants the state Public Service Commission to reopen the gathering of information for the PSC's long-delayed hearings - now scheduled for November - into West Virginia American Water Company's preparation for and response to the January 2014 Elk River chemical spill that contaminated the company's regional drinking water intake serving hundreds of thousands of people in Charleston and surrounding communities.
Late last week, Advocates for a Safe Water System asked the commission to allow additional discovery that would allow the group to explore what it said are several key issues that should be addressed in the PSC's investigation of West Virginia American's actions related to the Freedom Industries spill.
Paul Sheridan, a lawyer for the group, wrote in a motion filed with the commission that "to proceed without the benefit of some further discovery risks that the commission will come to the end of the investigation willfully blind to some details which are highly important to the inquiry."
"A more fully developed record will significantly increase the likelihood that the important lessons will be learned from the investigation, which can inform subsequent decisions by the commission, and by other agencies, by the public, and even by WVAWC," Sheridan wrote.
The advocates organization made its request about a week after the PSC issued a long-awaited order announcing that it would not - as the citizen group and consumer advocates had feared - abandon its spill investigation and would instead proceed to a three-day formal evidentiary hearing in mid-November in Charleston.
The investigation has been stalled for more than 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 action.
In October, Tomblin appointed Kara Cunningham Williams, a former Steptoe & Johnson lawyer, to fill McKinney's seat.
In the case, pre-filed testimony from PSC staff, consumer advocates and citizen groups has alleged that the water company did not prudently plan for a toxic leak, despite knowing the proximity of Freedom Industry's chemical storage facility to its 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 into the Elk River.
In his motion, Sheridan said that the advocates want permission to further explore issues such as the new monitoring equipment that West Virginia American has said it has installed at its Elk River treatment and distribution plant. The advocates argue that the lack of better monitoring equipment at the facility was a contributing factor in the contamination of the regional water system following the Freedom spill.
Also, Sheridan wants to examine an incident in November 2014 in which the water company shut down its Elk River intake pumps following a spill, as part of a review of why the company did not do so after the Freedom incident.
Sheridan said that new information coming out in a federal court case against West Virginia American should also be considered by the PSC. Among other things, Sheridan said, some of that information elaborates on an earlier decision by West Virginia American Water - prior to a "joint decision" by the water company and the state Bureau for Public Health - not to close its Elk River intake during the Freedom incident.
In addition, Sheridan said, the federal court lawsuit has revealed information that suggests the water company did not have a clear plan to increase water production at the plant in response to incidents such as the snap of cold weather that West Virginia American maintains reduced its stored water and made closing the intake impractical when the Freedom spill occurred.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.