Freedom Industries, Inc. and six former Freedom officials are now facing criminal charges for various federal crimes related to the January 2014 Elk River chemical spill in Charleston, WV, federal officials said.
“Just a mile and a half upstream from Charleston’s primary source of drinking water, the conditions at the Freedom Industries facility were not only grievously unacceptable, but unlawful. They put an entire population needlessly at risk. As these actions make clear, such conduct cannot, and will not, be tolerated,” said Attorney General Eric Holder. “These law enforcement actions send an unambiguous message: That compliance with environmental safety standards is an obligation, not a choice. The Department of Justice is committed to vigorously enforcing the Clean Water Act and other natural resource protections. And we will never rest in our efforts to protect the American people – and our environment – from harm.”
“It’s hard to overstate the disruption that results when 300,000 people suddenly lose clean water,” said U.S. Attorney Booth Goodwin. “This is exactly the kind of scenario that the Clean Water Act is designed to prevent. This spill, which was completely preventable, happened to take place in this district, but it could have happened anywhere. If we don’t want it to happen again, we need to make it crystal clear that those who engage in the kind of criminal behavior that led to this crisis will be held accountable.”
On January 9, a Freedom Industries tank storing 4-methylcyclohexane methanol (MCHM) leaked more than 7,000 gallons of the black licorice-scented chemical used to clean coal into the Elk River in West Virginia. The chemical leaked into the Elk River, which supplies the city of Charleston with water. A do-not-use order ended up issued to 300,000 residents, some of whom could not drink or bathe in their water for more than a week. MCHM is not directly lethal but can cause nausea, vomiting, dizziness, headaches, diarrhea and skin rashes. A month after the spill, tap water tests in 10 homes detected MCHM still in the water supply, albeit at levels within the state’s legal limit.
Former Freedom President Gary L. Southern, 53, currently of Marco Island, FL, along with former Freedom owners and officers Dennis P. Farrell, 58, of Charleston, William E. Tis, 60, of Verona, PA, and Charles E. Herzing, 63, of McMurray, PA, ended up indicted by a grand jury sitting at Beckley, WV. Freedom environmental consultant Robert J. Reynolds, 63, of Apex, NC, and tank farm plant manager Michael E. Burdette, 60, of Dunbar, WV, ended up charged by Goodwin in charging documents known as “informations.” Freedom Industries, Inc. also ended up charged in an information.
Southern faces charges of negligent discharge of a pollutant in violation of the Clean Water Act, negligent discharge of refuse matter in violation of the Refuse Act, and violating an environmental permit. Southern also faces charges of wire fraud and various bankruptcy fraud charges. If Southern ends up convicted of all the charges contained in the indictment, he could get a statutory maximum of 68 years in prison.
Farrell, Tis and Herzing also face charges of negligent discharge of a pollutant in violation of the Clean Water Act, negligent discharge of refuse matter in violation of the Refuse Act, and violating an environmental permit. If convicted of those charges, Farrell, Tis and Herzing could get a statutory maximum of three years in prison.
During the time they were corporate officers for Freedom, Farrell, Tis, Herzing and Southern approved funding only for those projects that would result in increased business revenue for Freedom, or that were immediately necessary for required equipment maintenance, according to the indictment.
The U.S. Attorney’s Office said they failed to take action to fund other repair and upkeep projects for equipment and systems necessary for environmental compliance at the Elk River facility, including repairing defects in a containment wall, addressing drainage problems in the containment area, and developing and implementing proper protection plans.
An attorney for two former executives of Freedom Industries has released a statement on behalf of his clients in connection with their federal charges from the January 2014 chemical spill.
Steve Jory, issued the following statement Wednesday for his clients Tis and Herzing:
“While I cannot speculate as to the motives of the prosecutorial team, we believe today’s indictment to be an example of faulty legal conclusions.
“Recently, U.S. Attorney Booth Goodwin charged Gary Southern on the basis that he was singularly responsible for Freedom Industries’ operations from the date he became Freedom’s Chief Operating Officer in 2009. Goodwin’s allegations against Southern are, in point of fact, my client’s defense which, by virtue of the charges against Southern, are baseless. He cannot have it both ways.
“Not only were my clients not the owners of Freedom at the time of the spill, but four and one half years prior to the spill in 2009, Southern was hired as Freedom Industries’ Chief Operating Officer to operate Freedom Industries. In addition to Southern, additional experts were retained by my clients, to ensure compliance with all safety and environmental standards for Freedom Industries. So to say my clients were criminally negligent in their responsibilities simply does not pass legal muster and is not supported by Goodwin’s own charges against Southern,” Jory said.