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Justice News

Department of Justice
U.S. Attorney’s Office
Southern District of West Virginia

Thursday, February 4, 2016

Freedom Industries and former Freedom Industries plant manager sentenced for roles in chemical spill

CHARLESTON, W.Va. – Freedom Industries, Inc., and a former plant manager at Freedom Industries were sentenced today for environmental crimes connected to the 2014 Elk River chemical spill, announced Acting United States Attorney Carol Casto. Freedom Industries (Freedom) was sentenced to a fine of $900,000, to be paid after all other claims against Freedom are satisfied, for negligently discharging a pollutant, unlawfully discharging refuse matter, and knowingly violating an environmental permit. Freedom has been in bankruptcy since shortly after the chemical spill. Michael E. Burdette, of Dunbar, was sentenced to three years of probation and a $2,500 fine for negligently discharging a pollutant. Both Freedom and Burdette previously pleaded guilty in March 2015. Burdette is one of six former officials of Freedom Industries, in addition to Freedom Industries itself as a corporation, to be prosecuted for federal crimes associated with the chemical spill.

On January 9, 2014, a major chemical leak was discovered in Charleston at the above-ground storage tank area owned and operated by Freedom Industries (Freedom) on the Elk River. Freedom used these storage tanks to keep and process chemicals, and the leak consisted primarily of 4-methylcyclohexane methanol (MCHM), a chemical used in the coal mining industry as a cleansing agent. A significant amount of MCHM leaked into the Elk River, flowed into a water treatment plant, and contaminated the water supply of Charleston and the surrounding areas for several days. Freedom did not have a permit required by law that would have allowed the company to discharge MCHM into the Elk River.

Freedom had a permit issued by West Virginia’s Department of Environmental Protection (DEP) that allowed for the discharge of storm water and groundwater subject to monitoring and reporting requirements. However, this permit did not allow for the discharge of MCHM, and required the development and maintenance of a storm water plan and a groundwater plan. Generally, storm water and groundwater plans identify potential sources of pollution and outline steps to prevent, contain, and reduce pollutants.

Freedom admitted that it should have taken reasonable steps to ensure that MCHM did not leak into the Elk River. Freedom did not maintain the containment area that was supposed to prevent a chemical spill from reaching the Elk River. Freedom also failed to inspect and maintain the storage tank holding MCHM. In spite of the permit requirements, Freedom also failed to implement and maintain a storm water and groundwater plan. Furthermore, Freedom did not conduct the necessary training to ensure all personnel were working in compliance with environmental laws. When the chemical spill occurred, Freedom did not have adequate spill prevention material on hand and instead, had on hand a mere two bags of absorbent material and no booms or other materials to stem the flow of MCHM. Freedom admitted that its failure in all of these essential areas was a proximate cause of the chemical spill.

Burdette worked as a plant manager for Freedom’s facility on the Elk River. In that role, Burdette was responsible for operating and maintaining Freedom’s facility in a safe manner and in compliance with environmental laws. He was also responsible for making sure the employees he supervised were properly trained in environmental compliance. Burdette admitted he should have known Freedom was required to implement and maintain a storm water and groundwater plan as required by the permit. He also admitted he knew the measures Freedom had in place to handle a chemical spill were inadequate, and that Freedom should have had proper containment structures to contain a spill from the largest storage tank for 72 hours. Burdette further admitted that his failure to implement these required safety measures was a proximate cause of the chemical spill. 

Including Freedom and Burdette, four defendants have been sentenced as part of the investigation into the chemical spill. Robert J. Reynolds, of Apex, North Carolina, who worked as an environmental consultant with Freedom, was sentenced on Monday for negligently discharging a pollutant. Charles E. Herzing, of McMurray, Pennsylvania, a former owner and vice president of Freedom, was sentenced on Tuesday for unlawfully discharging refuse matter.

William E. Tis, of Verona, Pennsylvania, a former owner of Freedom, pleaded guilty in March 2015 to the unlawful discharge of refuse matter. Tis is scheduled to be sentenced on February 8, 2016.

Dennis P. Farrell, of Charleston, a former Freedom president and owner, pleaded guilty in August 2015 to violating the federal Refuse Act and violating a permit by failing to have a pollution prevention plan. Farrell is scheduled to be sentenced on February 11, 2016.

Gary Southern, of Marco Island, Florida, the president of Freedom at the time of the spill, pleaded guilty in August 2015 to violating the Clean Water Act, unlawfully discharging refuse matter in violation of the Refuse Act, and violating a permit by failing to have a pollution prevention plan. Southern is scheduled to be sentenced on February 17, 2016.

The investigation of the chemical spill was conducted by the Federal Bureau of Investigation and the Environmental Protection Agency’s Criminal Investigation Division. Assistant United States Attorneys Philip H. Wright, Larry R. Ellis, and Eric P. Bacaj, as well as the Environmental Protection Agency’s Regional Criminal Enforcement Counsel Perry D. McDaniel, are handling the prosecutions. United States District Judge Thomas E. Johnston imposed the sentence, and will preside over the remaining sentencing hearings associated with the chemical spill.

Updated February 4, 2016