DEP Order: Dismantle Freedom Tank Farm
Chemicals must be out by March 15
25 January 2014
By David Gutman
CHARLESTON, W.Va. -- The Freedom Industries tank farm responsible
for the Elk River chemical contamination is going to be shut down
and dismantled, according to an order from the West Virginia
Department of Environmental Protection that was announced Saturday
by Gov. Earl Ray Tomblin.
All chemicals must be removed from the facility by March 15.
Freedom must begin the process of dismantling, removing and
disposing of all of its above-ground tanks and all associated
piping and machinery by that same day, according to the order.
All 17 tanks at the Freedom facility are in inadequate
secondary-containment areas, according to a news release from
Tomblin's office that was issued with the order. Fourteen of those
tanks still have chemicals in them.
The release says that those chemicals include calcium chloride and
glycerin, both of which are common additives to household
products. DEP Secretary Randy Huffman said three smaller tanks
contain a semi-solid substance that is "like fatty acids." Huffman
said none of the tanks contain any harmful or hazardous
"During the dismantling of the tanks, Freedom Industries is
ordered to install measures that ensure that secondary containment
is adequate to contain any potential spills resulting from the
work," the release states.
Huffman said workers from the company and the DEP are digging
cutoff trenches and taking other remediation efforts to protect
the river, should there be another leak before the chemicals can
be moved. He also said just having people on the site is a help.
The release states that Tomblin ordered the dismantling of the
tank farm, although his signature does not appear on the order. It
is a "consent order," meaning the company agreed to the terms.
That also means the company cannot appeal the order.
The release states that Tomblin and Huffman began discussing the
option of dismantling the tanks on Jan. 10, the day after the leak
"The DEP's authority is being used, obviously, but I've been in a
lot of conversations with the governor over the last couple weeks
over what's next, what authority do we have, how can we use that
authority?" Huffman said Saturday night.
Freedom previously had moved its Crude MCHM, the coal-processing
chemical that leaked into the river, to its sister facility in
Nitro. However, the company was cited afterward by the DEP because
that facility also did not have adequate secondary containment.
A woman who answered the phone Saturday at Freedom Industries said
company officers would have no comment.
The initial chemical leak contaminated the drinking water of
300,000 West Virginians in Charleston and eight surrounding
The order requires Freedom to provide weekly written reports to
the DEP, describing how the company is dismantling the tanks and
disposing of the materials.
The order states that Freedom has not brought any additional
chemicals to its Elk River facility -- Etowah River Terminal --
since the leak was discovered Jan. 9. By Jan. 20, Freedom had
removed nearly 270,000 gallons of chemicals from its facility,
about 20 percent of its Jan. 9 inventory, the order says.
That would mean that, as of Monday, there were still about 1.3
million gallons of chemicals in Freedom's Elk River tanks.
The order states that Freedom must, "either sell the material to
its customers, return the material to the original vendor, or
store the material in an off-site area which provides adequate
Freedom previously had written to the DEP, saying that all
materials would be moved off-site by March 30. The DEP told
Freedom that date was unacceptable and ordered the chemicals moved
as soon as possible.
The order cites two long articles of state code, the Water
Pollution Control Act and the Groundwater Protection Act, as
authorizing the DEP to close down Freedom.
On Thursday Sen. Joe Manchin, D-W.Va., had called for Freedom's
entire facility to be torn down, to "start from scratch."
The order is signed by Gary Southern, Freedom's president, and it
states that Freedom will not contest the government's jurisdiction
regarding the order.
Complying with the order does not relieve Freedom from any other
laws, permits or requirements.
The order is subject to a 30-day public-comment period.
On Friday, Freedom wrote a letter saying that the facility would
be shut down. It did not say all tanks would be dismantled, just
the one that leaked.
"You are likely to have heard that the Etowah River Terminal
facility of Freedom Industries is going to be decommissioned,"
Paul Vey, a lawyer representing Freedom, wrote to lawyers involved
in lawsuits against the company. "It is anticipated that tank
number 396, which appears to have leaked MCHM, will be removed
from the site."
The letter, obtained by the Sunday Gazette-Mail, was faxed Friday
evening to 39 law firms and private attorneys involved in
litigation against Freedom. It also was sent to lawyers
representing Freedom executive Dennis Farrell; the West Virginia
DEP; Eastman Chemical Co., which makes Crude MCHM; and West
Virginia American Water and its parent company, American Water
Prior to the release issued by Tomblin, DEP officials did not
respond to requests for comment Friday night and Saturday about
The letter says the plaintiffs lawyers, who have filed more than
two dozen class-action lawsuits against Freedom and West Virginia
American, will have access to the site to investigate some time
early next week.
All civil lawsuits against Freedom are on hold as it negotiates
its way through bankruptcy, but the site will be opened up to
lawyers before big changes are made.
"Because it is apparent that the current configuration of the site
will be changing significantly over the next few weeks, Freedom
Industries . . . intends sometime early in the week of Feb. 3,
2014 to make the site available for a visual inspection by counsel
in the civil actions," Vey; of the Pittsburgh law firm
Pietragallo, Gordon, Alfano, Bosick & Raspanti; wrote.
The site also will be open to experts retained by lawyers, but no
sampling or testing of soil or water will be permitted, the letter
A temporary restraining order, to preserve evidence, has been in
effect at the tank farm since Jan. 13, four days after the
chemical leak was discovered. That order was extended at a
bankruptcy hearing last week.
Freedom's letter states that the company is attempting to "balance
competing interests" of a number of regulatory agencies interested
in cleaning up the site and also in evaluating and analyzing it.
The federal Chemical Safety Board began an investigation of the
site almost two weeks ago. CSB officials said Friday they expect
the investigation to take about a year.
Harry Bell, a Charleston lawyer whose firm has filed a
class-action lawsuit against Freedom and West Virginia American,
said he has hired a number of experts who are doing preliminary
research before they can go on-site.
"The normal standard is, you end up with a preservation order that
tells everyone: save everything, secure everything, make mirror
images of all electronic data," Bell said. "Then, once you've
secured everything, you start talking about physical examination
Freedom's letter states that the company aims to fully preserve
all evidence, but if there's another emergency it will respond
"The debtor has every intention of preserving documentary,
electronic and physical evidence and appropriate litigation holds
have been placed," the letter states. "If any additional emergency
response is required, every effort will be made to document, as
practicable, any changes to the site that result from such a
Vey did not respond to repeated requests for comment.
A spokeswoman for West Virginia American Water confirmed that its
legal counsel received the letter, but declined further comment.
Staff writer Ken Ward Jr. contributed to this report.
Reach David Gutman at david.gut...@wvgazette.com or 304-348-5119.