Elk River Pollution Indictments Announced in West Virginia

Last month, the U.S. Attorney General's office indicted four owners and operators of a chemical company that was accused last January of polluting the drinking water of 30,000 residents in Charleston, West Virginia.

Freedom Industries CEO Gary Southern was charged with 13 counts of violation of the Clean Water Act and intent to defraud and give false oath, while three other executives, Dennis P. Farrell, William E. Tis and Charles E. Herzing, each were charged with three counts of violating U.S. environmental laws. All four were indicted for failing to ensure that the facility was operated in a "reasonable and environmentally sound manner when they knew or should have known of the facts and circumstances constituting Freedom's negligence."

Elk River pollution charges

The indictments relate to a chemical leak that was discovered on Jan. 9 of last year. It was determined that some 10,000 gallons of the toxic chemical 4-methylcyclohexane (MCHM) had leaked out of a holding tank, breached a dike and flowed into the Elk River. The breach forced the state to impose a "do not use" ban for customers of the adjacent American Water Co., which sourced its water from the Elk River.

According to a 37-page indictment, the company's negligence included:

• failing to properly maintain the containment area at the Etowah County facility and to make necessary repairs;


• failing to maintain suitable spill prevention materials and equipment available; and


• failing to ensure stormwater and groundwater pollution plans were maintained, both of which were required by law.

The indictment also found that the corporate officers had approved funding for "only those projects that would result in increased business revenue for Freedom or to make immediate repairs to equipment ..." The Environmental Protection Agency was able to show that, in one instance, repairs were done only because the EPA had made an unexpected visit and ordered the repairs to be done.

The four defendants have been charged with

1. The violation of the Clean Water Act


2. Unlawful discharge of refuse matter


3. Negligent violation of permit condition

Scheme to defraud in bankruptcy

Southern was also charged with 10 counts of scheming a) to defraud creditors following Freedom's bankruptcy filing last January b) to defraud by interstate wire and c) by making a "materially false oath and account" to investigators about the length and role of his involvement in Freedom Industries.

If convicted, Farrell, Tis and Herzing face a maximum sentence of three years in federal prison, while Southern could face as many as 68 years in prison. All four were arrested and have pleaded not guilty to the charges. Farrell, Tis and Herzing each posted bail of $10,000, while Southern posted bail of $100,000. Trial is to begin March 10.

Residents still wary of effects of spill

Last Friday, the city of Charleston marked the one-year anniversary of the water crisis with a city-wide celebration of workshops, film screenings and a candlelight vigil. The message of the celebration could be said to be as much for the rest of the country as for the residents whose city had effectively been closed by the tap ban: Charleston's crisis is over and business is back to normal.

And for many it is. Only seven months earlier, a resident survey suggested that as many as two-thirds were still afraid to drink the water, troubled by water tests that suggested the chemical MCHM was capable of breaking down into carcinogenic substances like formaldehyde in water pipes. While other experts discounted the test results, none had been able to explain why formaldehyde was appearing in tap water days after the spill.

Today, however, residents' faith in the water system seems to be improving. Restaurants in the Charleston area, which less than a year ago were operating off of bottled water and struggling financially, are now reporting higher sales. Like many residents in the area, they admit that the crisis taught them a valuable, if not unsettling, lesson: Tap water or no tap water, they now keep a healthy supply of bottled water in storage -- just in case.

Image credits: WV National Guard