In January 2014, 10,000 gallons of chemicals leaked from a storage facility into the Elk River, a mile and a half upstream from the drinking water intake for 300,000 West Virginians. People lined up for bottled water amid fear and confusion over the long-term health risks.
The company that owned the facility, Freedom Industries, was blamed for rusty, poorly maintained tanks that allowed the coal-cleaning chemical 4-methylcyclohexane methanol (MCHM) to seep into the waterway. Freedom Industries filed for bankruptcy within days of the spill.
Six company employees were eventually indicted for violating the federal Clean Water Act, after prosecutors argued that they had “put an entire population needlessly at risk” and that the spill was “completely preventable.” Last year, the company’s top executive, Gary Southern, pleaded guilty to environmental violations.
On Feb. 17, more than two years after the chemical spill, a federal judge handed down Southern’s sentence: a month in prison and a mere $20,000 fine.
Many West Virginians are calling that punishment inadequate, considering the damage his company did to the region’s drinking water. The maximum penalty Southern faced was three years in prison and up to $300,000 in fines.
As he handed down the sentence last week, Judge Thomas Johnston of the U.S. District Court in Charleston said he believed this was an issue of negligence, not of criminal action on Southern’s part. Charleston Gazette reporter Ken Ward posted the full transcript online.
“This event, now two years past, clearly had a disruptive effect on people’s lives and, perhaps worst yet, on their trust and safety of the water coming from their pipes,” said Johnston. “But the crisis passed. We have no reason to believe that problems related to the water crisis linger in our taps, and I have no evidence — no evidence before me — that MCHM, while perhaps an immediate irritant, represents a long-term health threat to anyone.”
“The defendant is hardly a criminal,” Johnston continued. “He has no criminal history and has been a businessman most of his life. His crimes are those of careless omission.”
Ward also reported that the judge allowed Southern to fly back to his $1.2 million home in Florida on a friend’s private plane following the sentencing, but that his Bentley, which the government seized, had not yet been returned to him. Southern will also get credit for time served for the one night he spent in a Florida jail following his December 2014 arrest.
Southern’s light punishment has left some in the region furious.
“This was not a victimless crime, but the laws were not written to protect the victims,” said Maya Nye, who served as spokesperson for West Virginia-based People Concerned About Chemical Safety at the time of the spill. Nye is now a graduate student at West Virginia University’s School of Public Health.
Like others in the region, Nye said she was surprised that charges were even brought against the Freedom Industries employees. That most likely happened, she said, because the spill directly affected so many people in the state’s capitol.
“That shows you the difference between when poor communities or communities of color are affected and when communities with more wealth and more political clout are affected,” Nye said.
Angie Rosser, executive director of the West Virginia Rivers Coalition, said locals are reacting to Southern’s sentencing with a mix of anger and cynicism. “I think from the get-go, when the company filed bankruptcy, people felt the writing was on the wall that there wouldn’t be accountability that equates to the suffering and the damage done,” said Rosser.
Some are also frustrated that the state legislature has rolled back some of the progress made on oversight of chemical storage in the immediate wake of the spill. The legislature had passed a new law shortly after the spill that required more monitoring and enforcement for above-ground storage tanks. But in March 2015, the legislature passed another bill exempting the majority of tanks from that oversight.
The question remains: Have we learned anything? Has anything changed?
Angie Rosser of the West Virginia Rivers Coalition
Now, West Virginia lawmakers are considering legislation that opponents say could further undermine water protections. This week, the state Senate advanced the Regulatory Reform Act of 2016, which seeks to root out regulations that might be “overly burdensome” to businesses, potentially including water protections.
“The travesty here is that the governor and many state legislators have not learned from what has happened,” said Mary Anne Hitt, the director of the Sierra Club’s Beyond Coal campaign and a West Virginia resident, via email. “Hundreds of thousands of West Virginia families went weeks without safe water, but too many West Virginia officials are continuing to put polluters ahead of people with light sentencing that lets them off the hook. … We need all of our state leaders and lawmakers to do better and stand up for those who are forced to live with this devastating pollution.”
Rosser has been in the state capitol this week lobbying to block the proposed legislation. She said she hopes West Virginians will remember how empowered they felt right after the spill, when they came together to demand accountability. “We saw immediate change,” she said.
But now, “the question remains: Have we learned anything? Has anything changed?”
“I think the general sentiment is no,” Rosser said. “We’re kind of in the same place — back to the status quo, waiting for the next disaster to happen.”
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