Former Freedom president sentenced to prison for role in chemical spill

CHARLESTON, W.Va. – The former president of Freedom Industries was sentenced today to 30 days in federal prison, to be followed by a six-month term of supervised release, and a $20,000 fine for environmental crimes connected to the 2014 Elk River chemical spill, announced Acting United States Attorney Carol Casto. Gary Southern, of Marco Island, Florida, previously pleaded guilty in August 2015 to negligently discharging a pollutant, unlawfully discharging refuse matter, and negligently violating an environmental permit by failing to have a pollution prevention plan. Southern 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.

Southern became associated with Freedom in 2009 and joined its board of directors in March 2010. He became president of Freedom in December 2013, and was serving as Freedom’s president at the time of the chemical spill. In these capacities, Southern was a responsible corporate officer of Freedom from at least March 2010 through January 9, 2014, with the responsibility and the authority to ensure that Freedom and its facility on the Elk River complied with the law.

Freedom had a permit issued by West Virginia’s Department of Environmental Protection 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 implementation 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.

Southern admitted that he was aware of the permit and that he should have known that Freedom was required to have a storm water plan. He further admitted that he had the responsibility and authority to ensure that Freedom complied with the permit by having a storm water and groundwater plan in place. During Southern’s tenure as a responsible corporate officer, Freedom never developed or implemented a storm water or groundwater plan. Southern’s negligence in failing to ensure that Freedom developed and implemented a storm water and groundwater plan was a proximate and contributing cause of the chemical spill.

“We are pleased to bring these cases to conclusion,” said Acting United States Attorney Carol Casto. “Many thought that those responsible for contaminating our water would never see the inside of a courtroom, but six individuals and Freedom Industries now stand convicted and have been sentenced for the offenses that they committed. It is my hope that these prosecutions will serve as a message to others that we will follow the evidence, charge the cases that are developed, and hold those responsible accountable to the extent permitted by law.” 

Southern is one of seven defendants that 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 February 1, 2016, for negligently discharging a pollutant. Charles E. Herzing, of McMurray, Pennsylvania, a former owner and vice president of Freedom, was sentenced on February 2, 2016, for unlawfully discharging refuse matter. Freedom, as a corporation, was sentenced on February 4, 2016, for negligently discharging a pollutant, unlawfully discharging refuse matter, and knowingly violating an environmental permit. Michael E. Burdette, of Dunbar, a former plant manager for Freedom’s facility on the Elk River, was sentenced on February 4, 2016, for negligently discharging a pollutant. William E. Tis, of Verona, Pennsylvania, a former owner and secretary of Freedom, was sentenced on February 8, 2016, for unlawfully discharging refuse matter. Dennis P. Farrell, of Charleston, a former Freedom president and owner, was sentenced on February 11, 2016, for unlawfully discharging refuse matter and violating a permit by failing to have a pollution prevention plan.

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, handled the prosecutions. United States District Judge Thomas E. Johnston imposed the sentences for each of the defendants.

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