West Virginia PSC Commissioner Ryan Palmer is leaving the PSC in mid-September. At the same time Palmer’s decision was released to the press, Chairman Mike Albert announced that he was removing himself from the PSC’s general investigation of West Virginia American Water Co.’s response to contamination of its water supply by Freedom Industries.
The combination of Palmer’s leaving and Albert’s recusal will not affect other cases before the PSC, but Palmer’s departure is significant for another reason. Commissioner Palmer was the only one of the three commissioners without any ties to large out-of-state corporations doing business in West Virginia. These corporations, such as Akron-based FirstEnergy, St. Louis-based Monsanto Corp. and New Jersey-based American Water Works (owner of West Virginia American Water) have significant impacts on our PSC’s decisions.
Albert, as he described in a recent PSC order, was an attorney at the Jackson Kelly law firm. He personally represented West Virginia American Water Co. for three decades in front of the same PSC he now chairs. In 2007, shortly after he was appointed to his first term as chairman by former Gov. Manchin, Albert also had to recuse himself from the TrAIL transmission line case, because he had personally worked on Allegheny Energy’s application to the PSC for approval of that line. In 2012, Allegheny Energy was swallowed by FirstEnergy in a merger. Jackson Kelly continues to represent FirstEnergy before the West Virginia PSC.
Commissioner Jon McKinney, the only commissioner left to conduct the PSC’s water company investigation, was for many years an executive of Monsanto Corp. at its South Charleston plant. Monsanto, which recently settled a case concerning chemical contamination of the neighborhood around that plant, is a significant player in water quality issues on the Kanawha River. Many of those water issues may have some bearing on West Virginia American Water’s lack of a secondary intake on the Kanawha River.
Back in 2011, when McKinney’s six-year term expired, Gov. Tomblin failed to act to either reappoint him to a new six-year term or to appoint a replacement to a new term. Citizens sent large numbers of letters to Gov. Tomblin in 2011 encouraging him to appoint former PSC general counsel and experienced utility attorney Robert Rodecker to replace Jon McKinney, but Gov. Tomblin ignored those requests. Instead, McKinney has continued on the PSC, and his position has effectively been turned into an at-will seat. Gov. Tomblin now has complete control over whether Commissioner McKinney stays or goes, because Mr. McKinney is now serving on a day-to-day basis.
McKinney’s situation violates the Legislature’s intent in setting six-year terms for PSC commissioners. Once an appointment is made, the six-year term is designed to provide a measure of independence to PSC commissioners, who effectively act as judges in ruling on utility rates and practices. McKinney has lost that independence as a result of Gov. Tomblin’s failure to act as the Legislature requires.
Commissioner Palmer’s term would have ended in June 2015. If Gov. Tomblin acts quickly to appoint a replacement, there is a possibility that the new commissioner would be able to become an effective participant in the water company investigation, which is still in its early stages.
Few candidates are as qualified to serve out the remainder of Palmer’s term as Robert Rodecker. There are other qualified candidates who are not tied in some way to the corporate interests regulated by the PSC. The independence and expertise that Palmer brought to the position should be the governor’s main criteria for the appointment of a new commissioner.
In the past, governors made PSC appointments without public involvement or explanation. Now, and in the future, we need to have open, public discussion of candidates and their qualifications. West Virginia deserves better than back-room deals for a regulatory commission that reaches so deeply into the lives (and pockets) of the people of our state.
Howley is a small business owner in Chloe, West Virginia, and writes The Power Line, the View from Calhoun County about electric system issues in West Virginia.