- Associated Press - Saturday, August 16, 2014

CHARLESTON, W.Va. (AP) - State utility regulators are deciding how deeply they’ll probe into a water company’s response to a massive January chemical spill, which sullied 300,000 people’s tap water for days.

The Public Service Commission will decide Monday if it will require West Virginia American Water to produce a slew of documents the company doesn’t want to hand over.

The water company says those records, which include emergency response and prevention plans, are beyond the scope of the investigation.

It says some of the requested documents are already being sought in lawsuits against the company.

The utility also says many of the documents are shielded from release under federal anti-terrorism laws.

“Pre-spill planning is not a meaningful or relevant inquiry in the context of this (investigation): once Freedom (Industries) had released thousands of gallons of MCHM into the Elk, the only question was whether to shut down the plant or not,” the water company’s lawyers wrote.

Three groups intervening in the investigation disagree. Businesses temporarily shuttered by the spill, Advocates for a Safe Water System and the PSC’s Consumer Advocate Division think reviewing emergency plans is fair game to determine if the water company did its due diligence after the Jan. 9 spill.

“(West Virginia American Water’s) goal is clear: keep all the information so that no one will discover a basis for fault in its response to the spill, and thereby render the Commission’s investigation a rubber stamp on its activities that day,” attorney Anthony Majestro wrote on behalf of affected businesses.

After the spill, West Virginia American Water kept taking in Elk River water tainted by Freedom Industries’ spill just upstream. The company said shutting down its intake would have deprived the entire nine-county region of running water for 45 days.

Instead, state officials instituted a tap-water ban - except for fighting fires and flushing toilets - that they gradually lifted after four to 10 days.

The Consumer Advocate Division has said ratepayers shouldn’t bear the cost if the water company didn’t plan sufficiently.

“If the Company took little or no steps to anticipate and plan for such a catastrophe it suggests that the Company was taking a risk that such a spill would never happen,” the division wrote. “CAD suggests that is the type of risk that should be borne by shareholders, not ratepayers.”

The commission announced its investigation in May. A hearing is scheduled in October.

The water company faces 58 lawsuits, which it intends to “vigorously contest,” according to its parent company’s quarterly filing.

Investigations by the U.S. attorney, state attorney general and federal Chemical Safety Board are ongoing.

Freedom Industries paid an $11,000 fine to the federal Occupational Safety and Health Administration after its investigation.

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