DEP: Freedom Industries Inc. Bankruptcy Will Not Stop Fines

Morgantown Dominion Post
22 January 2014
By David Beard

CHARLESTON –— As part of its coverage of the Kanawha Valley water crisis, The Dominion Post spoke with Department of Environmental Protection (DEP) Secretary Randy Huffman on various topics. Here are highlights.

DEP investigation

At least six investigations into the incident are under way, including one by the DEP.

“Our investigation is a routine part of any situation like this,” Huffman said. It involves apparent violations of the state Clean Water Act. The DEP probe will address civil violations and penalties connected with the act.

The process and goal is to gather information, to learn as much as possible about what happened, and determinations from there.

Freedom Industries Inc. filed for bankruptcy protection in the wake of the various civil suits filed following the spill. Huffman said the bankruptcy won’t deter the DEP from leveling appropriate fines. “Collecting money may be another story.”

Site visits

There’s been much public outcry that the Freedom site fell through the regulatory cracks and wasn’t inspected since 1991. Some pointed out that DEP staffers have been on site since then, but this incident still occurred.

Huffman said that the site and about 1,000 others like it require general stormwater permits. But stormwater registration isn’t intended to lead to inspections. The company should have a response plan, but the DEP doesn’t approve the plan’s.

There was “not a presumption of routine inspections of this site,” he said. Staff might go to site relative to air quality permits — for odors — but not for facility inspections. “It’s the nature of this type of permitting and the reason for the new legislation. … Therein lies some of those weak regulatory controls.”

At a Tuesday House Judiciary Committee hearing on the crisis, Morgantown-based Downstream Strategies president Evan Hansen took issue with Huffman’s view. He said the National Pollution Discharge Elimination System stormwater permit allowed DEP to inspect and enforce spill-related issues and that Freedom failed in its duty, under the permit, to report the spill to the state spill response hotline.


The director of the West Virginia Water Research Institute told legislators last week that the Freedom site may have been subject to the Environmental Protection Agency’s Spill Prevention, Control and Countermeasure (SPCC) Rule, which could have prevented this spill if enforced.

When asked about this by The Dominion Post last week, the EPA did not say if the rule applied in this case. Huffman said there was no requirement for the facility to have an SPCC plan.

The U.S. Chemical Safety Board, which is also investigating the spill, told The Dominion Post last week that, in 2011, following the 2008 Bayer Crop-Science pesticide plant explosion, it issued a series of recommendations that h ave n’t been followed.

The CSB recommended to the Kanawha-Charleston Health Department “establish a Hazardous Chemical Release Prevention Program to enhance the prevention of accidental releases of highly hazardous chemicals, and optimize responses in the event of their occurrence.” The DEP was supposed to assist with that process.

The health department told The Dominion Post last week it never established that plan. Asked about this, Huffman said, “the Health Department at that point decided not to do it.”

Did the DEP urge the department to do anything? “They were the lead agency on that.”

Would it have helped? “I don’t know if that would have impacted the structural integrity of this facility or not.”

Two things went wrong, Huffman said. The secondary containment structure failed, and the company’s response was inadequate. “There was an opportunity to respond earlier and they didn’t. There is a good argument [the problem could have been] minimized or prevented after the leak occurred if the response had been more swift.”