B. Motion to Strike Rebuttal Testimony of Stottlemyer and Mazyck

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1 October 17, 2016 Ingrid Ferrell Executive Secretary Public Service Company 201 Brooks Street Charleston, WV Re: 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 Response of Advocatesfor a Safe Water System to W A WC 's Pre-Hearing Motions. Please contact me if you have any questions regarding this filing. Enclosure cc: Service List

2 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA West Virginia American Water Company Case No W-GI RESPONSE OF ADVOCATES FOR A SAFE WATER SYSTEM TO WVAWC S PRE-HEARING MOTIONS West Virginia American Water Company (WVAWC) has filed four Pre-Hearing Motions, to which Advocates for a Safe Water System (ASWS) here responds. A. Continuance of the Evidentiary Heariog WVAWC s renewed request that the evidentiary hearing be continued has since beer, granted by the Commission. B. Motion to Strike Rebuttal Testimony of Stottlemyer and Mazyck WVAWC has renewed its motion that the Rebuttal testimony of Fred Stottlemyer and David W. Mazyck be stricken. ASWS opposes this Motion. As support for its original Motion to Strike the Rebuttal Testimony, WVAWC cited Hope Gas. Inc., Case Nos. OX-1761-G-PC and 08-17x3-6-42T (Commission Order dated November 20,2009) at 44. This order seemed to be addressed more to the situation where a party had waited until the rebuttal stage to put forward its case. In this cited order the As an example of the abuse it is addressing, this Order notes that the utility in question had filed substantially more testimony on a variety of topics from more witnesses as rebuttal testimony than its direct testimony. Hope Gas. Inc., Case Nos G-PC and T (Commission Order dated November 20, 2009) at 44. ASWS attempts nothing ofthis kind. Ironically, this seems to describe the rebuttal testimony filed by WVAWC, which involved twice as many witnesses as it had to provide direct testimony.

3 Commission urged the parties to refrain from filing substantial new testimony as rebuttal. It goes on to say that a party which refuses to substantially file its case as its direct testimony, whether from a lack of initial preparation of an attempt to gain tactical advantage, risks a motion to exclude. Here there can be no claim that the rebuttal testimony of Fred Stottlemyer is compensation for a lack of initial preparation, as it draws upon sources of information, namely the sworn testimony of WVAWC s plant operators, which did not exist until after the deadline for the submission of ASWS s direct testimony. Similarly, there can be no claim that this rebuttal testimony is offered as an attempt to gain tactical advantage. This is not an instance where information has been held until rebuttal to prevent the opposing party fiom being able to respond to it. This testimony fairly and efficiently puts pertinent information before the Commission for its due consideration. WVAWC claims that the offered testimony of Fred Stottlemyer is not true rebuttal. Noting the obvious similarity of this testimony to ASWS s proposed Supplemental Direct Testimony, WVAWC asserted that ASWS is [rlepackaging supplemental testimony as rebuttal in an attempt to evade the Commission s [earlier] ding.. WVAWC s Motion to Strike the Rebuttal Testimony of Fred D Stottlernyer and David ct-: Muzyck, p. 2. This misconstrues the Commission s earlier ruling. ASWS would submit that given the nature of some of this evidence, the most appropriate way to bring it into this proceeding is less than obvious. This is certainly so for a party and counsel which is relatively inexperienced in this forum. Notwithstanding Indeed, by first offering this evidence as Supplemental Direct Testimony, ASWS put WVAWC on notice of the nature of the evidence prior to WVAWC s rebuttal testimony deadline, affording it more than ample opportunity to address it. 2

4 ASWS s unsuccessful attempt to have it admitted as Supplemental Direct Testimony, it is admissible as Rebuttal Testimony pursuant to the Commission s rules and rulings. In denying the Motion of Advocates For A Suje Water System To File Supplemental Testimony, by Order entered on September 2, the Commission gave instruction on the admissibility of additional evidence at this stage of these proceedings. Thus, at the risk of repetition, ASWS may use pertinent information from any source, including the Good litigation, for any proper purpose during the evidentiary hearing in this proceeding, in compliance with the Commission s Procedural Rules. The procedural schedule permits all parties to file simultaneous rebuttal testimony by September 9,2016. The options available to ASWS therefore are to submit pertinent information through pre-filed rebuttal testimony, the scope of which is limited to responding to direct testimony. E.Z., Eaele Manufacturing Co. v. Mononeahela Power Co., Case No E-C, Commission Order of May 24, 2016 at 6, Conclusion of Law No. 2. Alternatively, ASWS may use pertinent information in connection with cross-examination of UTAWC witnesses w-ha appear at the evidentiary hearihig. September 2,2016 Order at p. 43 ASWS has carefully heeded these instructions in submitting the Rebuttal Testimony oj Fred D. Sfottlemyer. As the Commission has noted, the Procedural Order called for simultaneous rebutta! testimoxy to be sabmitted on September 29, which is when &e Rebuttal Testimony of Fred Stortlemyer was submitted The Commission has further stated that the scope of the rebuttal testimony is limited to responding to direct testimony. September 2, 2016 Order at p. 4. Fred Stottlemyer s testimony is responding to direct testimony which has been submitted in this case. He has ASWS notes that the additional legal authority cited in the September 2 d Order in this case, that is Manufacturing Co. v. Mononrahela Power Co., Case No E-C, Commission Order of May 24, 2016, is listed on the Public Commission s web page as a restricteddocument and is unviewable. 3

5 responded to WVAWC witness Jeffery McIntyre's Direct Testimony that.'the plant was running at near full capacity," and that stored water was nevertheless low '-because of line breaks and the common customer practice of running taps to prevent freezing." Direct Testimony of Jeffery Mclntyre, p 15 lines 3-5. In addition, Mr. Stottlemyer's testimonj rebuts the claim of Jeffery McIntyre, made in direct testimony, that the decision to continue operating the plant was not made by WVAWC alone. Mr. Stottlemyer also responded to Staffwitness David Dove, who testified inhis direct testimony to the overall lack of system storage (p. 32, lines 5-15), but did not make the connection to the shortfall in the 850 gradient tanks. The additional criteria for rebuttal testimony is that it be 'pertinent information." WVAWC has not here asserted that the offered information is not pertinent, since it so clearly is. Accordingly, WVAWC's Motion to Strike should be denied. C. Motion to exclude previously submitted evidence and to otherwise constrain the evidence at the hearing. Although it is set within the context of a broader complaint that the Commission has failed "to give practical and evidentiary effect to the GI's limited scope," WVAWC"s third Pre-Hearing Motion is essentially a renewed motion to exclude certain previously objected-to testimony. This motion was already made, and has already been considered by the Commission and denied. The issue of the objected-to testimony, which is the only specific relief sought in this third motion, was clearly addressed by the Commission in its May 23,2016 Order, at 4

6 pp Our reading of the Commission s order on this point is that it left room for a reconsideration of this motion, but only following the presentation of all of the evidence. May 23,2016 Order, at p. 9. For all the same reasons, ASWS urges that this motion again be denied. D. Overlap between GI recommendations and BPH VvVAWC s forth pre-hearing motion is also an attempt to get reconsideration of an issue which the Commission has already addressed. WVAWC has moved for a determination of the presence and the -impact of rhe overlap between GI recommendations and BPH exercise of Legislative authority. This is an issue to which the Commission invited specific briefmg and conducted a hearing, at which WCAWC argued that the combination of S.B. 373 and the potential manipulation of the Commission s process to gain advantage in civil litigation either wholly preempted the Commission from proceeding with the general investigation, or should result in a decision to substantially constrain the scope. May 23, 2016 Order, pp The Commission has already appropriately rejected WVAWC s argument as overreaching, and there is no legitimate basis to reverse course. The Commission carefully considered and ruled on the presence of an overlap, if the term overlap refers to a potential for inter-agency conflict. May 23, 2016 Order, pp The Commission has articulated its concern about this potential, and its intent to proceed cautiously, especially WVAWC s position is too restrictive. As observed earlier in the context of a discoverj dispute, not..all> any and every discovery effort directed at events or situations occurring before the date of January is inappropriate or improper.. Transcript, August Hearing at!g. That obsemation applies to the submission oftestimony as well, particularly at this juncture when the record has not yet closed. May order at 10. 5

7 when moving beyond investigation to actions such as recommendations and remedies, in order to avoid such conflict. The Commission stated: There appears to be a high probability of conflict between the actions the Commission could take in this proceeding and those that the Bureau for Public Health could take in discharging the obligations conferred on it by the West Virginia Legislature with regard to source water protection plans. W.Va. Code , Because there is no existing conflict, however, the general investigation may proceed at this time. May 23,2016 Order, p 16, Conclusion of Law No. 2 (emphasis supplied.) Regarding an assessment of the '5mpact" of GI recommendations, which are not currently under consideration by the Commission as the record in this case is not yet closed, this is prematnre. Respectfully submitted, ADVOCATES FOR A SAFE WATER SYSTEM By Counsel Paul R. Sheridan, Esq. WV Bar No McKinley Ave. Charleston, WV Tel: ,~ai,,~s~-:er.i~.;a'.~'; - 7;x, ai".4->(? <.:.: 6

8 CERTIFICATE OF SERVICE I hereby certify that a copy of Advocates For A Safe Water Sy~slzm s Response of Advocates for a Safe Water System to VbAWC s Pre-Hearing Motions was served on tne 17th day of October, 2016, on the parties and/or counsel OF record in the proceeding as Follows: Via Hand Delivery Wendy Braswell, Esq. Public Service Commission of West Virginia 201 Brooks Street Charleston, WV Counsel for Commission Stofl Via U. S. Mail Christopher L. Callas, Esq. John Philip Melick, Esq. JacksonKelly PLLC PO Box 553 Charleston. WV Jonathan R. Marshall, Esq Bailey & Glasser LLP 209 Capitol Street Charleston, WV Anthony J. Majestro, Esq. Powell & Majestro PLLC 405 Capitol Street, Suite PI200 Charleston. WV Timothy C. Bailey, Esq. Bucci Bailey & Javins, LC 213 Hale Street Charleston, WV Jacquline Lake Roberts, Esq. Tom White, Esq. Consumer Advocate Division 700 Union Building 723 Kanawha Boulevard, East