June 2,2016

Ingrid Ferrell
Executive Secretary
Public Service Company
201 Brooks Street
Charleston, WV 25301

Re: 14-0872-W-GI

Dear Ms. Ferrell:
I enclose for filing in the above referenced proceeding the original and twelve copies of

Advocates For A Safe Water System 's Petition For Reconsideration Of Order Declining
To Reopen Discovery.
Please contact me if you have any questions regarding this filing,

Sincerely,

Paul R. Sheridan
Enclosure
CC:

Service List

 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

West Virginia American Water Company

Case No. 14-0872-W-GI

ADVOCATES FOR A SAFE WATER SYSTEM’S
PETITION FOR RECONSIDERATION OF
ORDER DECLINING TO REOPEN DISCOVERY

Pursuant to Rule 150-1-19.3 of The Rules of Practice and Procedure of the Public Service
Commission, Advocates for a Safe Water System (ASWS) asks the Commission t o reconsider its
decision t o not permit further discovery in this matter.

By Order entered on May 23, 2016, the Commission announced its decision to proceed
with the General Investigation, and established a schedule for further testimony and for a
hearing. In this Order the Commission also denied ASWS’s Motion to Reopen Discovery.
ASWS respectfully suggests that t o proceed t o hearing without the benefit of some
further discovery risks that the Commission will come t o the end of this Investigation willfully
blind t o some details which are highly important t o the inquiry before this Commission. ASWS
believes that additional discovery need not cause any further delay in the proceedings.’ 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
1

Even if it did, the advantages of a swift completion of the investigation have already been lost, and are no longer a
factor against which t o trade off thoroughness.

 Commission, and b y o t h e r agencies, b y t h e public and even b y WVAWC. There is information

within easy reach which offers t h e likely prospect of a significantly more complete picture of
events. For t h a t reason, ASWS brings this Petition.

In November, 2015, a t a point when t h e Commission had scheduled a status conference
which had signaled a n e n d to t h e suspension of t h e General Investigation, ASWS moved for an
order reopening discovery. The Motion was very brief, in light of its expectation that t h e
appropriateness of further discovery would b e taken up a t t h e status conference.

ASWS pointed out in its one-page Motion t h a t when t h e previously scheduled discovery
period ended, a year before, t h e r e were still pending discovery motions which t h e Commission
had yet to resolve.’

As its second grounds for re-opening discovery, and one which ASWS

labeled as more significant, ASWS pointed out that during t h e time that t h e General
investigation had been suspended “there has been additional information that has come to

2

There had been repeated discovery conflicts during the discovery period. In spite of the Commission’s
admonition t o the parties that they should conduct discovery in a spirit of cooperation to avoid the
expenditure of lots of resources in discovery fights (See the Commission’s Order of August 5, 2014, at
page 9, and the Commission’s Order of August 22,2014 a t p 8 ), and repeated efforts by ASWS to adhere
t o this Order, the ASWS ultimately expended much time in trying t o obtain the discovery responses
which the Commission permitted, and the Commission repeatedly had t o remind WVAWC t o use a light
touch in redacting materials provide in responses. (See the commission’s Order of November 25, 2014
at p. 14 and the Commission’s Order of December 23,2014 a t p. 7)
See footnote 3 of Aug 22,2014 Order a t p 8: “In our August 5,2014 Order, we emphasized that the Commission
was not inclined to spend the Parties’ or its resources engaged in discovery disputes. We stated, and have stated in
numerous prior Commission Orders that parties should attempt to resolve disputes among themselves and that
‘only the most intractable discovery issues should be brought to the attention of the Commission. When we issued
our order we stated that we were not convinced that the parties held to that standard.’ August 5, 2014 Order a t 9.
Notwithstanding this direction, counsel for WVAWC stated a t the discovery hearing on August 18,2014, that he
was frustrated and perplexed by the Commission not simply ruling on the motions to compel and did not
understand the reluctance of the Commission t o do so. August 18, 2014, transcript a t 30-3 1.What was made clear
a t that hearing was that WVAWC had made no effort to discuss or otherwise attempt to resolve discovery disputes
with the other parties.”

 light regarding the Freedom Industry spill and the water crisis that resulted.” ASWS was n o t
specific regarding this new information, nor was it specific regarding what additional discovery
it would propose t o conduct.

Again, ASWS assumed that this Motion was for the purpose of

putting the question on the table for the Status Conference, and that the question would get
attention there.

There were n o objections filed t o ASWS’s Motion t o reopen discovery.

The status conference was delayed,3 and then before the status conference was
rescheduled t h e Commission issued a detailed Order requesting further briefing on the
question of whether the General Investigation should proceed a t all. At the Status Conference
held on January 22, 2016 the Commissioners made it clear that the ASWS’s request t o reopen
discovery was pending but not on the table for argument or discussion a t the Status
Conference.

4

In its Order of M a y 23, 2016, in which it decided t o proceed with the GI and set a
schedule for doing so, the Commission also declined ASWS’s request for a reopening o f
discovery. The Commission noted that “ASWS provides no explanation as t o what ‘follow up
discovery’ it contends would be necessary. ASWS likewise provides no detail regarding the
‘new information’ in i t s motion.” Order p 14. “The reasons offered t o re-open discovery do not
persuade us t o alter [the] decision [rendered on November 25, 2014, t o the effect that
discovery in t h e GI was over]. ASWS has identified no particular ‘new information’ in the

This was done a t the request of ASWS, to accommodate a scheduling conflict.
Transcript of January 22, 2016 hearing a t p. 8. It is also worth recalling that the Status Conference
occurred on the day of a major snow storm, and there was pressure on the Commission and the parties
to finish the Status Conference and not become stranded bv the snow.
4

 federal litigation or otherwise, that would justify re-opening discovery. Nor has there been any
explanation why information developed in the federal cases would support re-opening
discovery in this proceeding, which - a s the Commission repeatedly has explained - differs
substantively from the federal litigation.”
We would like t o take this opportunity to be more specific about some of the “particular
‘new information’ that would justify re-opening discovery,” and explain “why information
developed in the federal cases would support re-opening discovery in this proceeding.”
First, WVAWS has announced publically since the closing of the discovery in this case
that it has installed new monitoring equipment in the Elk River Plant.’ One of the points made
by ASWS witness Fred Stottlemyer in his direct testimony was that the lack of monitoring
equipment in the plant on January 9, 2014 was a contributing factor in WVAWC‘s failure t o
prevent contamination of the system. Direct Testimony of Fred Stottlemyer a t p. 3-4. Recently
installed monitoring equipment may affect the points made by Mr. Stottlemyer in his
testimony, and in any event we should expect that WVAWC will discuss new monitoring
equipment in its rebuttal testimony. ASWS should have the ability to discover the details
regarding any new monitory equipment so that the Commission will not be put in a position of
accepting the representations of WVAWC a t face value.
A second event which occurred a t the very end of the discovery period, after the point
ASWS was in a position to explore its significance through discovery, was the Elk River
contamination event which occurred on or about November 13, 2014. On November 14, 2014,

~

’http //www.amwater

com/files/Kanawha%2O-%200ne%20Year%2OUpdate%20 %2001-2015 pdf

 just days before the end of the discovery cut off, the Charleston Gazette reported that WVAWC
had closed i t s Elk River intake in response t o a spill. The article indicated that a broken sewer
line which had been filled with yellow paint contaminated the Elk River, that WVAWC had “shut
d o w n its Elk River treatment plant a t about noon, after being notified by Kanawha County
M e t r o 911” and “returned [the plant] t o regular service a t 4:30 p m 8 I 6This event reveals that it

is not inherently impractical t o close the intake t o contaminants in the raw water as a way to
avoid contaminating the system. Questions related t o why this could be accomplished in
November 2014 but not January 2014 have n o t been developed in the record of this case.

It is also clear that the discovery developed by the plaintiffs in the Federal Court

litigation contains information which could shed important light on, or reveal inconsistencies

with, other important issues in the General Investigation, and for this reason, the Commission
should authorize the incorporation of this discovery into the General investigation.’This couid
b e accomplished most simply and quickly by allowing ASWS t o discover from WVAWC all of the
depositions and discovery answers provided by WVAWC t o the Plaintiffs in the federal case.

8

David Gutman, “Yellow Paint in EIK River Came from Sewer Line,” Charleston Gazette-Mail, November 14, 2014.
http://www.wvgazettemail.com/apps/pbcs.dII/article?AlD=/20141114/GZ01/141119537/1419
7
In the Commission’s Order of August 22, 2014 in this case, a t page 8, the parties were reminded that:
“The Commission allows broad discovery under our rules.” Wetzel County SWA, Case No. 08-2129SWF-GI Commission Order, p.5 (‘November 30,2011). The Commission has consistently held that
“information is discoverable if the discovery requests appear t o be reasonably calculated to lead
t o the discovery of admissible evidence. The fact that the specific information being requested
may not, itself, be admissible at a hearing is not grounds for objection if the information appears t o
be reasonably calculated to lead t o the discovery of admissible evidence.” See, “Order Adopting
New Procedural Schedule“, BFI Wastewater Systems of North America, Case No. 30448-99-FC
(April 20,2000) citing Commission Order, Mountaineer Gas Company, Case No. 93-0005-G-42T
(July 9, 1993);and Appalachian Power Company, Case No. 85-276-E-GI (September I, 1985).
6
Such a request is certainly reasonably calculated t o lead t o the development of evidence admissible in this
General Investigation, as indicated below. To the extent that large portions of this material might be duplicative or
otherwise unnecessary as evidence in this case, it is likely that only limited parts of it would ultimately be offered
as evidence in this case. ASWS recognizes that some parts of this discovery, because of security and other
concerns, has been handled in Federal Court under a protective order which excludes it from the public. ASWS

 This material provided by WVAWC to the Plaintiffs in the Federal Case clearly contains
statements by WVAWC which are potentially relevant to this proceeding. There are instances
of this discernible from the publically available portions of the Federal case.
For example, a t the s t a r t of the General Investigation the Commission asked WVAWC to
respond t o five questions in its Direct Testimony. Questions Number 3 and 4 were as follows:
3. A narrative describing the process and factors used to decide whether to close
the intake structure. The testimony should include which, if any, outside agencies
were consulted or otherwise had a role in making the decision, the factors
contemplated in making the decision, and who ultimately made the decision
regarding the continued intake of raw water from the Elk River.
4. A detailed description of the involvement of all agencies or entities external to
WVAWC that were consulted or otherwise involved in developing or implementing
protocols used by WVAWC from the first indications of the spill through March 31,
2014.

Information which has been developed in the Federal Court trial, through the deposition of
WVAWC personnel who did not provide testimony in the General Investigation, provides
further detail on these decision points than has been provided in direct testimony to the PSC. In
his direct testimony t o the PSC, WVAWC President Jeffrey Mclntire was asked, “DID THE
COMPANY MAKE THE DECISION TO CONTINUE OPERATING THE PLANT ON ITS OWN?” to which
he replied, “No, it did not. The Company and the BPH reached a joint decision to continue to
operate the Plant and issue the “DO Not Use” order, and while I was on a call with the
Governor’s office, Homeland Security and the West Virginia National Guard, they were
subsequently informed of an concurred in that decision.” Direct Testimony of Jeffrey L.
Mclntyre a t p 15, lines 10-15.
anticipates that comparable protections would likely be necessary for the inclusion of this information in the
General Investigation; however this type of protection is not difficult to put in place, and need not be different
from the protections which have been used for other material in the GI.

 Information from the Federal Court trial suggests that this "joint decision" made by
WVAWC and the BPH and referred to by Mr. Mclntyre, was a t least the second time that
WVAWC considered whether or not to close the intake and decided not to. Current indications
are that a t an earlier occasion, before the chemical was known to have breached the filtration
system and a t a point in time when the closing of the intake might actually have prevented the
contamination of the system, WVAWC personnel, acting alone, considered and rejected the
option of closing the intake a t this point when the "decision" was a meaningful one? (See
Attachment 1, excerpt from deposition of Sean Graves).
Additionally, the currently available documents from the federal court case reflect that
WVAWC may have lacked a clear protocol on how t o respond to a number of situations which it
might have expected, and which appear to have a direct bearing on the "unreasonable
practices" which the GI is focused on identifying and correcting. Specifically, KVTP treatment
plant operators have stated in the federal case that there are no written procedures or formal
training outlining when operators should increase water production a t the plant. The failure to
increase production in the days leading up to the spill, which resulted in low storage levels in
some critical tanks, appears to have been a major factor in WVAWC's decision not to shut off its
intake during the spill. The publically available information is enough to see that there is a
problem which may need t o be addressed by the Commission.

'This decision point was down-played by Mr. Mclntyre's statement (Direct Testimony a t 11)that "it was the
professional judgment of our water quality and operations managers that our treatment processes would
effectively prevent MCHM from entering the distribution system," a comment which may refer to the same
discussion between plant personnel elaborated upon in more detail in the depositions.

 There i s also information in the Federal case which indicates that some portion of a plan
to construct a second intake for the Elk River treatment plant was implemented; but that the
second intake was never completed.” ASWS is acutely aware of the PSC‘s admonition that this
investigation “is not intended to re-litigate past certificate proceedings regarding the intake”
Commission’s Order of May 21, 2014 a t p 7. We have no intention of questioning the PSC‘s
judgment in the 1969 certificate case, which appears to have approved a design for a plant with
a second intake. The question instead appears t o be why the plans for a second intake were

never completed and whether this has any implications for potential remedies in the current
proceeding involving construction of a second intake.
For the forgoing reasons, ASWS respectfully requests that the Commission reconsider its
previous decision upholding the previously declared end of discovery, and allow discovery as
described above.
Respectfully submitted,
ADVOCATES FOR A SAFE WATER SYSTEM
By Counsel

Paul R. Sheridan, Esq.‘
WV Bar No. 3373
429 McKinley Ave.
Charleston, WV 25314
Tel: 304-543-6557
paulsheridan99@yahoo.com

10

Plaintiffs’ Surreply t o WVAW and AWWSC‘s Motion to Dismiss the First Amended ConsolidatedClass
Action Complaint, Case No. 2:14-CV-01374, May 18, 2015.
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Case 2 14-cv-01374 Dociiment 796-19 Filed 05126115 Page 1 of 13 PageiG r: 18055

In The Matter Of:
Crystal Good, et al. v.
American Water Works, Inc, et al.

Sean Graves
January 21, 201 6

Charleston City Reporters
We cover most of West Virginia

Original File Sean graves final non confidential txt

 Case 2 14-cv-01374 Document 796-19 Filed 05/26/16 Page 12 of 13 PayeiD * 160$ian

Gra\es

January 21,2016
Page 117

circumstances he is referring to, you believe?
A. 1 believe that's what -3
Q. And storage was low?
a
A. --he's saying here.
5
Q. Okay.
6
A. Right.
7
Q. And this is his testimony to Congress,
8
right? You didn't prepare it for him, did you?
9
A. Ididn't.
o
Q. All right.
1
And then the sentence goes on:
2
Our best judgment based on these circumstances was
3 that shutting down the plant, do yoti see that?
4
A. Yes.
5
Q. So when he's referring to "these
.6 circumstances," circumstances that you described,
7
he is talking about the time that the water company
.8
exercised its judgment as to whether or not to shut
.9 down the Kanawha Valley Treatment Plant. Do you
, o agree with that'?
:i
A. O u r best judgment under these, based on
: 2 these circumstances, was that shutting down the
: 3 plant -:4
Q. Riglit.

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had to exercise its judgment as to whether or not
to shut the plant down was over at 4:OO p-m., by
4:OO p.m. Do you agree with that?
MS. MCINTYRE: Object to the form
A. No.
Q. Do you think that even after it's been
running for a while and the MCHM has been in the
raw water that's been taken in, that West Virginia
American can still decide to shut down the plant?
A. No, I believe that we --Jeff, Joe and 1
talked, and that was part of our conversation then
was to we assessed the distribution system and
decided that, you know, it wasn't an option to shut
the plant down -Q. When did you get -A. -- based upon this information that we
weregiven.
Q. And I am sony about that. I apologize
for interrupting you there.
That conversation Jeff, Joe and you talked
about it, and you talked about the storage system
and the levels and whether or not shutting down the
plant was a viable option, right?
A. Right.

Page 118

A. Okay.
Q. So he's saying our bestjudgment, based on
3 these circumstances at the time, these were the
4
circumstances that existed at the time that we
5 exercised our judgment as to whether or not to shut
6 down the plant. Do you agree?
7
A. I d o .
Q. And at the time -- the time that West
8
3
Virginia American had to exercise its judgment as
.o to whether or not to shut down the plant was
;i between roughly noon and 2:OO p.m. on January 9th.
L Z Do you agree with that?
L3
MS. MCINTYRE: Object to the form.
14
A. I don't know the exact time. So it was -15
Q. Around noon that you learned about the
16
spill?
t7
A. Around noon that we learned about the
La spill. And then I was out in the field and there
t9
was -10
Noon to afternoon, yeah.
21
Q. And the spill was in the water, in the raw
water, by 4:OO p.m. Do you agree with that?
22
23
A. Itwas.
24
Q. So the time that West Virginia American

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Q. That conversation occurred in the early
afternoon on January 9th, right?
A. Itdid.
Q. Okay. And you had misinformation, you
believe, about the -- about what?
A. Misinformation about that, you know, Joe
was armed with information that Jon had given him,
and, you know, and that this was a tlocculent and
about the volume, aiid, you know-, w-e were -- ihe
plant was well equipped with PAC and GAC to treat
for a flocculent.
And under the conditions, the distribution
system demand, we didn't shut, you know, the
decision was made to continue treatment.
Q. What I am getting at is that that
decision -- that shutting down the plant was not a
viable option and that you could possibly or
probably treat w~hateverwas coming down the stream
that decision was made in the early afternoon on
January 9th, correct?
A. W e decided, the three of us, that a t -between Jeff, Joe, and I, that we could treat, and
that's what we were going to do.
Q. That was the early afternoan on

Charleston City Reporters
SO45634399

(SO) Pages 117 - 120

 CERTIFICATE OF SERVICE

I hereby certify that a copy of the Advocates For A

Safe Water System s Petition For
Reconsideralion Of Order Declining To Reopen Discovery was served on t h e 2nd day of June,
2016, o n t h e parties and/or counsel of record in t h e proceeding as follows:
Via Hand Delivery
Wendy Braswell, Esq.
Public Service Commission of West Virginia
201 Brooks Street
Charleston, WV 25301
Counselfor Commission Stoff

Via U. 5. Mail
Christopher L. Callas, Esq
John Philip Melick, Esq.
JacksonKelly PLLC
PO BOX 553
Charleston, WV 25322
Jonathan R. Marshall, Esq.
Bailey & Glasser LLP
209 Capitol Street
Charleston. WV 25301
Anthony 1. Majestro, Esq.
Powell & Majestro PLLC
405 Capitol Street, Suite PI200

Charleston. WV 25301
Timothy C. Bailey, Esq.
Bucci Bailey & Javins, LC
213 Hale Street
Charleston, WV 25301
Jacquline Lake Roberts, Esq.
Tom White, Esq.
Consumer Advocate Division
700 Union Building
723 Kanawha Boulevard, East
Charleston, WV 25301

Paul R. Sheridan