Sustained Outrage

Water company seeks another delay in PSC probe

water intake

There’s a new filing out this morning in the state Public Service Commission’s general investigation of the January 2014 Freedom Industries chemical spill and the water crisis that followed.

In the new filing, posted here, lawyers for West Virginia American Water Co. are asking the PSC to again delay the commission’s formal hearing into the water company’s handling of the crisis.

Basically, water company lawyers are pointing out that the current PSC hearing dates — Nov. 15-17, 2016 — create a pretty serious conflict with the scheduled start of trial in the “Good case” — the water crisis class-action suit pending in federal court. U.S. District Judge John T. Copenhaver has that trial set to begin on Oct. 25.

The water company lawyers explain:

The Company believes that holding the GI evidentiary hearing during the Good trial will be virtually impossible for the Company and its witnesses to manage, and at the very least will impair and prejudice the Company’s ability to participate attentively and fully in both proceedings. The timing overlap is complete, and extends not only to the November 15-17 evidentiary hearing, which should occur during the fourth week of the Good trial, but to the October 28 pre-trial conference in the GI, at which pre-hearing motions presumably will be argued. The overlap also extends to the deadline for rebuttal testimony on September 1, which will compete for many of the same witness and lawyer resources already committed to preparing for the federal trial.

They outline scheduling concerns for both West Virginia American witnesses — including company President Jeff McIntyre — and attorneys, and conclude:

These actual scheduling conflicts will adversely affect the Company’s participation in both cases to its detriment and prejudice, and they constitute good cause to move the remainder of the GI procedural schedule into 201 7. The Commission should acknowledge the demanding federal court processes facing the Company and make reasonable accommodations to minimize the impact of scheduling constraints. There is no deadline for the Commission’s decision in the GI, and none of the other parties is likely to be prejudiced by an extension of the procedural schedule into 2017.

Also, water company lawyers argue that the current PSC schedule conflicts with the review by the state Bureau for Public Health of West Virginia American’s new “source-water protection plan” for its Kanawha Valley treatment and distribution plant, which was put together under the requirements of state legislation passed after the water crisis.

Recall that the PSC (which has for months and months delayed its investigation into the spill and even appeared ready to ditch the probe altogether) has said that it worries that there are overlaps and conflicts between its review of the water company’s actions — and any potential reforms the commission might order — and changes in water company requirements put into place by the Legislature through the new source-water protection plans.

Now, water company lawyers  say that the Bureau is set to “approve, modify or reject” the company’s plan by Dec. 23, 2016 — after the PSC’s hearing as well as after “pre-hearing determinations of the existence and impact of the conflict” between PSC authority and the Bureau’s authority through the source-water protection plan.

Ultimately, the water company lawyers argue:

The Company asks the Commission to evaluate the undue burden and potential for prejudice that the overlap between the Good fault trial and the GI evidentiary hearing would present, and determine that the remainder of the procedural schedule should be rescheduled for 2017. Doing so would also allow the Commission and the parties a full opportunity to consider the impact of the BPH Response on the Commission’s continuation of the GI and, if necessary, the presentation of evidence at hearing.