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500 LEE S X E T EAST * SUITE 1600 -PO. BOX 553 -CHARLESTON.WESTVIRGINIA25322 * TELEPHONE 3M-34O-lWO TELECOPIER: 304-340.1 I30
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Direct Dial No. (304) 340-1251
Fax No. (304) 340-1080
e-mail: ccallas@jacksonkelly.com
State Bar ID No. 5991

July 20,2016

Via Hand Delivery
Ingrid Fenell, Director
Executive Secretary Division
Public Service Commission of West Virginia
201 Brooks Street
Charleston, WV

Re:

Case No. 14-0872-W-GI - West Virginia-American Water Company

Dear Ms. Fenell:
Enclosed for filing are an original and twelve copies of the Company’s Motion to Modify
Procedural Schedule. Copies have been served on counsel of record.
Please date stamp the extra copy of this letter, and return it with our messenger. As
always, we appreciate your assistance.

sm
Christopher L. Callas

CLCImrv
Enclosures
Jacqueline Lake Roberts and Tom White, Esqs. (w/enc)
c:
William V. DePaulo, Esq. (wienc)
Paul R. Sheridan, Esq. (wienc)
Anthony J. Majestro, Esq. (wienc)
Timothy C. Bailey, Esq. (wienc)
Jonathan Marshall, Esq. (wienc)
David A. Sade, Esq. (wienc)

 PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA
CHARLESTON
CASE NO. 14-0872-W-GI
GENERAL INVESTIGATION PURSUANT TO W. VA.
CODE 8 24-2-7 INTO THE ACTIONS OF WVAWC IN
REACTING TO THE JANUARY 9,2014 CHEMICAL SPILL

WEST VIRGINIA-AMERICAN WATER COMPANY’S
MOTION TO MODIFY PROCEDURAL SCHEDULE
West Virginia-American Water Company asks the Commission to extend the procedural
schedule to avoid overlap with the Cwstal Good trial’ and benefit from the Bureau for Public
Health’s review of the Company’s source water protection plan for the Kanawha Valley District.
Conflict between GI and Good Evidentiary Presentations
1.

The Commission’s May 23, 2016 order scheduled an evidentiary hearing for

November 15-17, 2016, along with substantial pre-hearing activity during the preceding month
(pre-hearing motions and responses in early to mid-October, and a pre-hearing conference on
October 28.). At the time of that order, Judge Copenhaver had recently vacated the July 12,

2016 trial date in the Good case. No new trial date had been set, and it was not possible to know
whether and to what extent the GI pre-hearing activities and evidentiary hearing might conflict
with a future trial date.

2.

At a status conference on July 7, Judge Copenhaver informed the parties that the

trial on fault issues would be rescheduled to begin October 25, 2016, with a final pre-trial
conference the preceding day. The district court has yet to enter a formal procedural order, but

I

Good v. American Water Works Co. Inc.. et al., C.A. No. 2:14-01374 (S.D.W. Va.)
1

 we expect one to be entered soon that also will establish multiple other pre-trial deadlines.
Based on the Court’s previous schedule, it is expected that those deadlines will include major
submissions due in early to mid-September (including motions in limine, pre-trial order
submissions, and supporting materials) that require substantial resources and efforts to prepare.
The Good trial is expected to last at least four to six weeks, resulting in a complete overlap with
the November 15-17 evidentiary hearing in the GI.

3.

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.

4.

The Good trial will require the intense involvement of several Company lawyers

and witnesses.

The Company’s president, Jeffrey L. McIntyre, likely will serve as the

Company’s corporate representative at the trial. and his presence will be expected during the
entire four-to-six week trial. Mr. McIntyre will also serve as a witness in the Company’s casein-chief (quite possibly during the week now scheduled for the GI evidentiary hearing). Mr.
McIntyre has been the Company’s public representative and lead witness in the GI thus far, and
obviously expected to have the same roles at the GI evidentiary hearing as in the Good trial - to

2

 serve as the Company’s main representative before the Commission, and as a witness subject to
cross-examination.

5.

Brett W. Morgan and Billie Jo Suder, while not serving as a formal corporate

representative at either proceeding, are nonetheless expected to be involved in significant
portions of each proceeding. Their direct testimony has been filed in the GI, and they will
prepare rebuttal testimony as well.

Like Mr. McIntyre, Mr. Morgan and Ms. Suder can

reasonably be expected to testify in the Company’s case-in-chief in Good. Although the
Company has not yet determined what expert and fact witnesses it may call as rebuttal witnesses
in the GI, it is nearly certain that most if not all of those witnesses would also testify in the Good
case. At this point, there is no way to know when these witnesses will actually need to appear;
much will depend on how the trial proceeds. Beyond the real potential for conflicting witness
appearance times, the Good trial will involve witness preparation efforts during the trial itself,
which almost certainly will coincide with GI evidentiary hearing and GI witness preparation
efforts.

6.

Scheduling constraints are not limited to the Company’s witnesses. Although the

Company does not expect complete overlap among the lawyers expected to represent it in the

Good and GI evidentiary presentations, the prospect of partial overlap is real, particularly for
lawyers comprising the core of the Company’s legal team on the Freedom Industries chemical
spill2 and others in supporting roles. The Commission has correctly observed that the GI differs
substantively from the Good litigation (May 23 Order at 14). However, aspects of the civil case
draw heavily on the Company’s regulatory obligations and status as a regulated public utility,
and the Company’s regulatory counsel can be expected to play an important supporting role at
2

These would include Christopher L. Callas and L. Jill McIntyre, who has already appeared before
the Commission in the GI.
3

 the Good trial for those reasons. The same conflicts will also affect American Water internal
counsel, who are involved in managing both proceedings, and a range of Company employees in
supporting roles.
7.

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.

BPH Review of Source Water Protection Plan

8.

The May 23 Order repeatedly stressed the potential for conflict between the

Commission’s required action to address “unreasonable practices” under §24-2-7 and the BPH’s
response to the Company’s source water protection plan (“SWPP”) for the Kanawha Valley
distribution system (“BPH Response”). It has also found that there is substantive overlap
between the SWPP subject matter and Staffhtervenor recommendations in the GI. May 23
Order at 10. Although the Commission characterized the potential for inter-agency conflict as
“high,” it found that this potential had not yet become “certain” and thus its authority to act had
not yet been impaired. Id. at 2, IO. The Commission said it would “continue to monitor
developments” related to the SWPP and BPH’s review of the SWPP. Id. at 10, 16.
9.

When the parties addressed the potential for conflict in filings responsive to the

December 31,2015 Order and at the January 22, 2016 hearing, the Company’s tiling of SWPPs
for each of its distribution systems would not be made for months, and the deadline for the BPH
4

 Response was nearly a year away. Today, the Commission and the parties are presented with an
evidentiary hearing in mid-November, just weeks before the BPH must act to “approve, modify
or reject” the SWPP in the BPH Response, the effective deadline for which is December 23,
2016.3

Although the content of the BPH Response is unquestionably relevant to the

Commission’s continued processing of the GI:

under the current schedule the Commission’s

pre-hearing determinations of the existence and impact of the conflict likely would be made in
October and early November 201 6, without the benefit of the BPH Response.
10.

A logical Commission approach would be to reschedule the remainder of the

current procedural schedule for 2017. Doing so would allow the parties to evaluate the BPH
Response, refer to it in pre-hearing advocacy, and address its impact at the pre-hearing
conference. It would also allow the Company to incorporate the BPH Response in its prefiled
rebuttal testimony, where it will be relevant to the myriad claims advanced by Staff and
intervenors that the Company’s pre-spill source water protection and water monitoring efforts
constitute unreasonable practices5

Providing for full development of this evidence would

3

Under W. Va. Code §16-1-9c(d), the BPH is to issue this determination within 180 days of
receiving the utility’s plan. The Company filed the SWPP on June 29, 2016; 180 days from this date is
Monday, December 26, which is a State holiday. Thus the effective deadline is Friday, December 23.

4

The Company suggests, however, that a conflict exists now, and is only likely to become more
apparent when the BPH reviews the SWPP. The BPH’s exclusive authority to regulate source water
protection planning and water quality monitoring should be the salient consideration in determining the
existence of a conflict, and not only whether the BPH has taken formal action on an SWPP pursuant to
that authority in the BPH Response. See the Company’s January 19, 2016 Statement at 1-2 and the
Commission’s August 22,2014 order in this docket at 2, n.1.
5

See the 90 distinct allegations derived from the Staff and intervenor testimony, as presented at
Appendix A to the Company’s January 19, 2016 filing. For example, three ofthe six witnesses sponsored
by Staff and intervenors contend that the Company’s source water protection plans and planning were
inadequate and failed to meet the minimum requirements for such plans. Id. at 1 , item 1 (citing Hansen,
Mazyck, Dove testimony). The parties’ claims were not all so general and conclusory, however: CAD
witness Evan Hansen, for example, contended that the Company failed to conduct a long list of very
5

 benefit the Commission’s consideration of the “conflict” issue, improve the presentation of that
issue in pre-hearing motions, facilitate the presentation of evidence in any evidentiary hearing,
and not least, respect the Company’s due process rights at this stage of the GI.

Conclusion and Request for Relief
11.

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.
12.

The current procedural schedule provides for supplemental direct testimony by

the Staff and intervenors on the Vulnerability Assessment to be filed by August 1. Advancing
the entire procedural schedule into 2017 would not necessitate the filing of that testimony on that
day. For that reason, the Commission may wish to address this motion at its first opportunity.

WEST VIRGINIA-AMERICAN WATER COMPANY
By Counsel

John Philip Melick (WV #2522)
Nicklaus A. Presley (WV #12293)
JACKSON KELLY PLLC
Post Office Box 553
Charleston, WV 25322
304-340-1 000

specific inventory, quantification, and investigation tasks relating to potential contaminants, both within
and outside the “zone of critical concern.” See, e.g., id.at 2-4, items 10-14, 19-26.
6

 CERTIFICATE OF SERVICE

I certify service of this MOTION TO MODIFY PROCEDURAL SCHEDULE on July
20, 2016, by United States First Class Mail, postage prepaid, or by hand delivery to Ms.
Braswell, upon:
Jacqueline Lake Roberts, Esq.
Tom White, Esq.
David A. Sade, Esq.
Consumer Advocate Division
700 Union Building
723 Kanawha Blvd., East
Charleston, WV 25301

Anthony J. Majestro, Esq.
Powell & Majestro, PLLC
405 Capitol Street, Suite P1200
Charleston, WV 25301
“Business Intervenors”

Timothy C. Bailey, Esq.
Bucci Bailey & Javins, LC
2 13 Hale Street
Charleston, WV 25301
“Business Intervenors’’

Jonathan Marshall, Esq.
Bailey & Glasser, LLP
209 Capitol Street
Charleston, WV 25301
“Business Intervenors”

William V. DePaulo, Esq.
179 Summers Street, Suite 232
Charleston, WV 25301
Advocates for a Safe Water System

Paul R. Sheridan, Esq.
429 McKinley Avenue
Charleston, WV 25314
Advocates for a Safe Water System

Wendy Braswell, Esq.
Public Service Commission of WV
201 Brooks Street
Charleston, WV
Commission Staff

eChristopher L. Callas