PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA
CHARLESTON
At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA in
the City of Charleston on the 20“ day of July 2016.
CASE NO. 14-0872-W-GI
GENERAL INVESTIGATION PURSUANT TO W.VA.
CODE §24-2-7 INTO THE ACTIONS OF WVAWC IN
REACTING TO THE JANUARY 9, 2014 CHEMICAL
SPILL.
COMMISSION ORDER
The Commission denies the June 2, 2016 petition for reconsideration filed by the
Advocates for a Safe Water System.
INTRODUCTION
The Commission takes its responsibilities seriously. We also are cognizant of the
high level of public interest in this matter. Consequently, when intervenor Advocates for
a Safe Water System (ASWS) filed its petition for reconsideration, urging that the
Commission would be “willfully blind” if it did not re-open discovery to accommodate
“new information,” we naturally took note. We undertook a comprehensive review of the
issues raised in the ASWS petition, but at the end of the day found that the “new
information” was not new at all and did not otherwise justify re-opening discovery. We
therefore decline to delay the general investigation and will deny the ASWS petition.
BACKGROUND
The Commission has described on numerous occasions the issue to be addressed
in this general investigation, initiated following a leak of crude 4-methylcyclohexane
methanol (MCHM) from Freedom Industries, Inc. that made its way into the raw water
intake system and finished water supply of West Virginia-American Water (WVAWC) at
its Kanawha Valley Treatment Plant. Commission Orders of May 21, 2014; July 10,
2014; August 5,2014; August 22, 2014; May 23,2016.’ Without repeating the substance
yet again, our orders have identified the areas that will and will not be addressed in the
general investigation.
Specifically, the Commission has emphasized that the
investigation will focus on the WVAWC reaction to the spill and that it will not address,

’

Without characterizing what happened as a “spill,” for ease of reference we have referred to the leak as
the “spill.”

 among other things (i) determinations of fault, liability or damages, which are the
province of the courts, or (ii) whether prior WVAWC certificate projects might have been
designed differently.
Nor will (or may) the Commission make a determination that a
particular practice, act or service by WVAWC was unreasonable without also fixing a
reasonable practice, act or service for WVAWC to follow in the future. Commission
Orders of August 22, 2014; December 31, 2015. We also recently confirmed that the
scope of the general investigation has not changed. Commission Order of May 23,2016.
The relevant procedural history pertains to the discovery process. The parties
engaged in extensive written discovery, which resulted in the production of reams of
documents and information. See generally discovery requests and discovery responses,
filings June 16, 2014 - January 16,2015. The parties also brought discovery disputes to
the Commission for resolution. The Commission modified the procedural schedule on
several occasions to accommodate those disputes, including by extending the discovery
period and giving the parties the opportunity to supplement previously filed testimony.
See Commission Orders of May 21, 2014; August 5, 2014; August 27, 2014;
November 25, 2014; May 23, 2016. The deadline for issuing discovery requests passed
on November 20, 2014. See Commission Orders of August 27, 2014; November 25,
2014.

On November 25, 2015, intervenor Advocates for a Safe Water System (ASWS)
filed a motion to re-open discovery. ASWS asserted that discovery should be re-opened
for two reasons: (i) to permit “follow up discovery” based on the outcome of discovery
motions pending before the Commission, and (ii) because new information had emerged
from the related federal litigation and other sources over the past year. No party filed a
response to that motion.
On May 23, 2016, the Commission issued an Order addressing several pending
issues, and specifically denying the ASWS motion to re-open discovery. Therein, the
Commission noted that (i) it had already extended the deadline for discovery requests
once due to the parties’ discovery disputes, (ii) granting the motion to compel production
of an additional document did not necessitate additional discovery, (iii) the remedy
sought and received in an earlier joint motion (in which ASWS participated) was
sufficient to redress any asserted prejudice arising from the late production of that
document, and (iv) ASWS had not identified any new information or provided any other
justification for re-opening discovery.

On June 2, 2016, ASWS filed a petition to reconsider denial of its motion to reopen discovery. ASWS acknowledged that it had failed to identify in its motion any
specific “new information” as grounds for re-opening discovery or what additional
discovery it proposed to conduct. ASWS then identified three areas of “new
information” that it asserted would justify re-opening discovery: (i) the installation of
new monitoring equipment at the Kanawha Valley Treatment plant after the spill, (ii) a
2

 paint spill on November 13, 2014 that resulted in closure of the intake valve at the
Kanawha Valley Treatment plant, and (iii) discovery produced in federal cases that were
filed in response to the spill.
On June 14, 2016, WVAWC filed its response to the ASWS petition for
reconsideration. WVAWC stated that the petition should be denied because (i) the
petition does not satisfy the standard for reconsideration, (ii) re-opening discovery would
conflict with and disrupt the current procedural schedule and (iii) the federal cases differ
substantively from this proceeding and re-opening discovery is not necessary in any event
since ASWS could seek to use relevant information from any source developed outside
the general investigation, including those cases, at the evidentiary hearing in this
proceeding.

DISCUSSION
We will deny the ASWS petition for reconsideration.
We do not disagree with WVAWC’s assertion that the petition fails to satisfy the
standard for reconsideration. WVAWC Response at 1. ASWS concedes that it did not
include in its underlying motion the “new information” or additional discovery on which
it now relies to support the petition for reconsideration. ASWS Petition at 3-4.’ As we
have explained, “[r]econsideration offers an opportunity to point out matters which the
Commission overlooked, but is not for the purpose of presenting new arguments or
evidence not in the record.” Beech Ridge Energy, LLC, Case No. 05-1590-E-CS,
Commission Order of January 11,2007 at 52, Conclusion of Law 11.
We do not rest denial of the ASWS petition on procedural shortcomings, however,
but on the substantive basis that the information identified by ASWS in its petition is not
“new” and otherwise fails to support the request to re-open discovery.
The primary ground for denying the petition is that almost none of the information
ASWS identifies in its petition is actually “new.” The most obvious example is the paint
spill that resulted in closure of the intake valve at the Kanawha Valley Treatment plant.
AS WS argues that the paint spill supports re-opening discovery because “[qluestions
related to why” the intake valve could be closed for that event, but could not be closed at
the time of the spill, “have not been developed in the record of this case.” ASWS
Petition at 4-5.
ASWS justifies the decision not to provide that information in its original motion based on its
assumption that the motion “was for the purpose of putting the question on the table” and that the
Commission would consider the motion at a subsequent hearing. ASWS Petition at 2-3. That assumption
is not consistent with Commission practice generally or with Commission Rules of Practice and
Procedure 150 C.S.R. 1 (Procedural Rules). Motions should set forth not only the relief the moving party
requests, but also a complete explanation of the basis therefor.

3

 As ASWS points out, the paint spill occurred on November 13, 2014, and was
The deadline for issuing
reported by news media in stories published the next day.
discovery requests was November 20, 2014. Commission Order of August 27, 2014.
The paint spill therefore occurred before, not after, “the point ASWS was in a position to
explore its significance through discovery. . . .” Id.at 4.
The discovery requests ASWS posed to WVAWC earlier in the discovery period
concerning two other intake closures underscore that conclusion. ASWS asked the same
types of questions about those events that it asserts are pertinent with respect to the paint
spill. Specifically, ASWS asked what differences in conditions existed on the dates of
those events that allowed closure of the intake valve then, but not on the date of the spill
at issue here. ASWS First Request for Information, Request Nos. 10-11, July 11, 2014;
ASWS Second Request for Information, Request Nos. 16-18, September 25, 2014;
ASWS Third Request for Information, Request Nos. 3-4, October 14, 2014. ASWS
witness Stottlemyer considered the WVAWC responses significant enough to address one
of those closures in his pre-filed testimony, which ASWS submitted just a week before
the paint spill. Stottlemyer Direct Testimony at 9-10 & n.15.
ASWS’ failure to pose the same requests to WVAWC concerning the paint spill
before discovery closed, or to seek relief from the Commission shortly thereafter based
on proximity to the discovery deadline, therefore cannot be explained satisfactorily on the
basis that ASWS lacked sufficient time to do so. It would be inappropriate to re-open
discovery simply because a party changes its mind and later desires to investigate
additional areas. We decline to do so here.
The information ASWS identifies from the federal cases suffers from a similar
problem. Although some of the federal case documents cited by ASWS bear dates after
discovery closed in this proceeding, the information discussed in those documents was
neither unavailable nor unexplored during discovery here. The pre-filed testimony and
discovery in this case are replete with references to the same subjects.
The decision to continue to operate the Kanawha Valley Treatment Plant on the
date of the spill, rather than to close the intake valve, again presents a prime example.
ASWS attaches to its petition a one-page excerpt from a deposition taken in the federal
cases in January 2016, where the deponent discussed his involvement in that decision.
ASWS asserts that the deposition supports re-opening discovery because the deponent
did not submit pre-filed testimony in this case and provided “further detail on these
decision points than has been provided” in WVAWC’s direct testimony here. ASWS
Petition at 6-7 & Exhibit 1.
The decision not to close the intake valve was one of the areas the Commission
required WVAWC to address in its pre-filed direct testimony.
4

 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.
Commission Order of May 21, 2014, at 10. See also McIntyre Direct Testimony at 1016,41; Suder Direct Testimony at 4-10.
Consequently, both the decision not to close the intake valve and the pre-filed
testimony concerning that decision were the subject of numerous discovery requests,
including a number from ASWS. &, Business Intervenors First Requests for
Information, June 27, 2014; ASWS First Requests for Information, July 11, 2014; ASWS
Second Requests for Information, September 25, 2014. WVAWC’s responses to the
ASWS requests identified the individual who gave the deposition testimony attached to
the ASWS petition. Responses to ASWS First Requests For Information, July 22, 2014,
Request No. 7. ASWS issued two further requests concerning his involvement in the
decision, to which WVAWC responded. WVAWC Responses to ASWS Second
Requests for Information, October 6, 2014, Request Nos. 14-15. Any lack of “further
detail” therefore does not arise because such information is “new,” k,
because it was
unavailable during the discovery period.
The same is true of the issues ASWS identifies concerning standards for water
production at the Kanawha Valley Treatment Plant and the alleged development of a plan
for a second intake for that plant. ASWS Petition at 7-8. Storage levels and WVAWC
management of water supply are the subject of pre-filed testimony, including in particular
by ASWS witness Stottlemyer. &, Stottlemyer Direct Testimony at 7-10 (testimony
captioned “WVAWC did not operate its system in the days prior to January 9h to
maintain adequate storage levels in accordance with standard industry practice”). The
specific information that ASWS contends was newly developed in the federal case,
operational standards for water prod~ction,~
also was the subject of discovery in this case.
Business Intervenors First Requests for Information, June 27, 20 14, Interrogatory
NOS.28-29.

ASWS describes the information as “statements by KVTP treatment plant operators. . .that there are no
written procedures or formal training outlining when operators should increase water production at the
plant,” but does not cite to any document in the federal cases. ASWS Petition at 7. WVAWC provided
the names of employees working at the treatment plant at various times during this proceeding. &,
McIntyre Direct Testimony at 11, 41; Suder Direct Testimony at 7-9; WVAWC Responses to ASWS
First Requests for Information, July 22, 2014; WVAWC Supplemental Responses, September 2, 2014;
WVAWC Responses to ASWS Second Requests for Information, October 6,2014.

5

 With regard to the secondary intake, several witnesses, including witness
Stottlemyer, recommended the development of backup water supply or an alternate intake
as a potential future remedy. Stottlemyer Direct Testimony at 14-15; Mazyck Direct
Testimony at 17. ASWS acknowledges that this investigation will not re-litigate past
certificate proceedings regarding the intake, but asserts that the relevant question is “why
plans for a second intake were never completed and whether this has any implication for
potential remedies in the current proceeding involving construction of a second intake.”
ASWS Petition at 8. Without addressing the accuracy of that assertion, the plans to
which ASWS refers were discussed at length in several federal court filings.4 Those
filings make clear that the plans are publicly available documents related to construction
of the Kanawha Valley Treatment Plant, which WVAWC submitted to this Commission
and the Bureau for Public Health in 1969. & Good v. American Water Works Co., Inc.,
C.A. No. 2:14-01374 (S.D.W.Va.), Document Nos. 227, 238, 362, 372-1. They
accordingly do not constitute “new information.”
We also will address the ASWS suggestion that the Commission should
incorporate into this general investigation all depositions and discovery answers provided
by WVAWC in the federal cases. ASWS Petition at 5. That suggestion is devoid of
merit. Procedural Rule 13.6.b requires that discovery requests must be “pertinent to
substantial issues in the proceeding” ASWS has not come close to making that showing
for the entirety of the discovery taken from WVAWC in the federal cases. Even a
cursory review of the docket, which currently lists over 900 entries, reveals that it would
encompass tens of thousands of pages on subjects ranging far afield from the issues to be
addressed in this proceeding. & generallv Good v. American Water Works Co., Inc.,
C.A. No. 2:14-01374 (S.D.W.Va.).
Furthermore, as we have repeatedly explained, while there naturally is some
overlap between the subject matter of the federal cases and this general investigation
since both concern the spill, the two are not substantively co-extensive. In particular,
unlike the courts, the role of the Commission is not to determine liability or fault or to
assess damages. Commission Orders of May 21, 2014; August 22, 2014. We have
emphasized that distinction with an example from a prior discovery dispute:
The Commission is compelled to continue to stress the difference between
its function and mission contrasted to that of a trial court. Some of the
parties seem to blur that distinction. For example, during the [August 18,
20 141 discovery hearing, counsel for Business Intervenors stated it was
We again note that to the extent the Commission determines that WVAWC engaged in unreasonable
acts or practices, the Commission’s ability to enter a final order establishing future acts or practices as
required by W.Va. Code $24-2-7 could be affected by actions the West Virginia Bureau for Public Health
may take pursuant to the authority conferred on it by the Legislature in 2014 Senate Bill No. 373 (S.B.
373).
Commission Orders of August 22, 2014; December 31, 2015; May 23, 2016. See also W.Va.
Code $$16-1-9c and 24-2G-1 and -2 (codification of S.B. 373).

6

 important for the Commission to get involved with the planning issues and
the question was simple: did WVAWC have plans and, if so, did they
follow them. August 18, 2014 hearing, transcript at 19-20.That statement
illustrates what a trial court and jury would consider in determining
whether possible acts or inactions constituted negligence and what were
[the] resulting damages.
Commission Order of August 22,2014 at 2 n.2.
The discovery excerpts ASWS cites from the federal cases illustrate the same
point. The fact that the parties to this general investigation and the parties to the federal
cases examined some of the same subject matter but chose to develop the evidence
differently, is largely reflective of the different roles of the two tribunals and the different
legal standards governing the respective proceedings. Thus, while ASWS may utilize
pertinent information from any source (including the federal cases) for any proper
purpose during the evidentiary hearing in this proceeding, the fact that information
developed outside this investigation may not be identical to what the parties developed
here simply does not justify a wholesale re-opening of discovery, on the grounds that it is
“new information” or o t h e r ~ i s e . ~
Finally, we also address the ASWS assertion that installation of new monitoring
equipment at the Kanawha Valley Treatment Plant supports re-opening discovery.
We caution, however, that not only must the information be pertinent and offered for a proper purpose,
but also that the parties must comply with the Commission’s Procedural Rules in presenting it. As we
recently explained,
[Tlhe Commission requires that all parties who wish to present factual information on the
issues in this case must do so through written, pre-filed direct and rebuttal testimony.
Rule 13.3. January 13, 2016 Order at 2. That requirement arises from the complex,
technical and financial nature of much of the testimony filed at the Commission. It
provides all parties with prior notice and knowledge of the positions of the other parties,
affords the opportunity to prepare appropriate cross-examination, and allows for a more
efficient and expedited presentation of evidence at the hearing.
Pre-filed testimony and any related exhibits therefore must contain the entirety of a
party’s affirmative, evidentiary case. Parties should not attempt to supplement the record
by submitting new information for the Commission’s consideration at the hearing.
Specifically, it is improper for a party to submit documents, articles, or other written
materials that they that they wish the Commission to treat as evidence, except (i) as part
of the pre-filed testimony of a witness sponsored by that party, (ii) as part of crossexamination of an opposing party’s witness, or (iii) as otherwise ordered by the
Commission.
Jefferson County Public Service District, Case No. 15-1338-PSD-42R-PC, Commission Order of April 8,
2016, at 4-5.

7

 ASWS asserts that WVAWC announced the installation of that equipment publicly after
the close of discovery and that since the new equipment may affect previously-filed
testimony of ASWS witness Stottlemyer, “ASWS should have the ability to discover the
details regarding any new monitory [sic] equipment. . . .” ASWS Petition at 4.
WVAWC provided details regarding the new monitoring equipment in a report to
the West Virginia Legislature due on January 1, 2015, publicly available at
httv://~~~.le~i~.state.wv.~s/legisdocs/reports/a~ency/W19
CY 2014 2676.pdf (Report).
WVAWC also correctly observed in the Report that it was required to install the new
equipment by W.Va. Code 5524-26-1 and 24-2G-2, both enacted as part of S.B. 373 and
applicable only to WVAWC. Report at 2. Again noting that the Commission’s ability to
enter a final order establishing future acts or practices as required by W.Va.
Code 524-2-7 may be affected by the requirements of S.B. 373, we conclude that it is not
appropriate to re-open discovery based on the installation of such equipment.

FINDINGS OF FACT
1.
ASWS seeks Commission reconsideration of the May 23, 2016
Commission decision to deny the ASWS motion to re-open discovery.
2.
ASWS did not provide support for its motion to re-open discovery until
after the Commission denied the motion. ASWS Motion; ASWS Petition at 3-4.
3.
Information regarding the paint spill that led to closure of the intake valve
at the Kanawha Valley Treatment Plant in November 2014 was available to ASWS prior
to the close of discovery. ASWS Petition at 4-5 & n.6.
4.
ASWS issued discovery requests and submitted pre-filed testimony
concerning other intake closures. AS WS First Request for Information, Request
Nos. 10-11, July 11, 2014; ASWS Second Request for Information, Request Nos. 16-18,
September 25, 2014; ASWS Third Request for Information, Request Nos. 3-4, October
14,2014; Stottlemyer Direct Testimony at 9-10.
5.

Discovery in this proceeding closed November 20,2014.

The areas identified by ASWS in the discovery materials it cited from the
6.
federal cases were the subject of discovery and pre-filed testimony in this proceeding.
The alleged “plans for a second intake” cited by ASWS in its petition are
7.
publicly available documents concerning construction of the Kanawha Valley Treatment
Plant, submitted by WVAWC to the Commission and the West Virginia Bureau for
Public Health in 1969. Good v. American Water Works Co., Inc., C.A. No. 2:14-01374
(S.D.W.Va.), Document Nos. 227,238,362,372-1.
8

 8.
WVAWC provided details regarding the new monitoring equipment
referenced in the ASWS petition, in a report to the West Virginia Legislature due on
January 1,2015. The report is publicly available at:
http://www.legis.state.wv.us/legisdocs/re~orts/agency/W19CY 2014 2676.pdf.
WVAWC was required to install the new monitoring equipment by W.Va.
9.
Code $524-2G-1 and 24-2G-2, enacted as part of 2014 Senate Bill No. 373 and
applicable only to WVAWC.

CONCLUSIONS OF LAW
Although some of the materials identified by ASWS in support of its
1.
petition to reconsider may be appropriate for use during the evidentiary hearing in this
proceeding, they do not support re-opening discovery.
The ASWS petition for reconsideration of the Commission decision to deny
2.
the ASWS motion to re-open discovery should be denied.

ORDER
IT IS THEREFORE ORDERED that the June 2, 2016 petition for reconsideration
filed by Advocates for a Safe Water System is denied.
IT IS FURTHER ORDERED that the Executive Secretary of the Commission
serve a copy of this order by electronic service on all parties of record who have filed an
e-service agreement, by United States First Class Mail on all parties of record who have
not filed an e-service agreement, and on Staff by hand delivery.
Chairman Michael A. Albert is recused.
A l r u e Copy, Teste,

Ingrid Fenell
Executive Secretary

JJWism
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