The former environmental manager of Freedom Industries was sentenced Monday to three years probation and a $10,000 fine - but no prison time - for his role in the January 2014 chemical spill that contaminated the drinking water supply for hundreds of thousands of residents in the Kanawha Valley and surrounding communities.
U.S. District Judge Thomas Johnston noted that prosecutors had allowed Robert J. Reynolds to plead guilty to a misdemeanor and that Reynolds had provided "substantial assistance" to the government in investigating the Freedom spill and pursuing charges against other company officials.
"This defendant is hardly a criminal," Johnston said, noting that Reynolds had no criminal history prior to being charged after the Jan. 9, 2014, spill from a leaky chemical storage tank at Freedom's Etowah River Terminal, located just upstream from West Virginia American Water's regional drinking water intake on the Elk River.
Monday's hearing for Reynolds was the first of seven chemical spill sentencings - others are for Freedom the company and five other individuals - scheduled before Johnston over the next three weeks.
Reynolds was the first of six former Freedom officials to reach a deal with prosecutors, and Johnston said he had "provided very useful information" to prosecutors, helping them win additional cooperation from Freedom plant manager Michael Burdette and, eventually, bring charges against four other Freedom owners and officers, including top company officials Gary Southern and Dennis Farrell.
Just before he was sentenced, Reynolds stood in the courtroom and apologized for his role in the spill and the water crisis that followed.
"There were things that I could have done to perhaps prevent the spill," Reynolds said. "I am deeply sorry for my inactions in this situation."
In his deal with then-U.S. Attorney Booth Goodwin, Reynolds pleaded guilty in March 2015 to one count of causing an unlawful discharge of refuse.
Under the law, the charge carried a maximum sentence of one year in prison and a fine of up to $25,000 per day of violation or a fine of $100,000 or twice the financial gain or loss from the offense. But based on a motion from Assistant U.S. Attorney Phil Wright, Johnston decreased the recommended range under the advisory Federal Sentencing Guidelines for Reynolds from the 12-month statutory maximum to a range from zero to six months in prison. The judge then opted to go with the lower end of that range, granting a request from Reynolds to avoid any prison time.
Wright told the judge that what happened at Freedom was a "significant crime," but that the government believed that either some prison time within the guideline range or no prison time at all would be "appropriate" for Reynolds.
The government's motion outlining the assistance provided by Reynolds was submitted privately to the court. Johnston said that was standard policy because of security concerns for defendants who are cooperating with the authorities. But, after receiving no objection from the government or the defense, Johnston said he would place Wright's motion regarding Reynolds in the public file for the Freedom cases.
Before Monday's hearing, Johnston unsealed a sentencing recommendation memorandum filed by defense lawyers for Reynolds. That document, initially filed publicly, was sealed by court officials because it contained information from a pre-sentence investigation report a probation officer prepared about Reynolds.
Sentencing in federal criminal cases is determined, at least in part, on the advisory Federal Sentencing Guidelines and by confidential pre-sentencing investigation reports prepared by the U.S. Probation and Pre-trial Services Office.
In calculating the recommended sentencing range for Reynolds, Johnston said he disagreed with a decision by the parties and the probation officer to consider the Freedom spill to be an "ongoing, continuous, or repetitive discharge," a classification that would increase Reynolds' "offense level," the number used in the sentencing guidelines to come up with a potential sentencing range.
"That's really not what happened here," the judge said. "We had one episode."
In a preliminary report on Freedom, the U.S. Chemical Safety Board actually said it believed the tank in question was leaking prior to Jan. 9, but that agency investigators had not yet determined how long MCHM and other chemicals had been leaking.
Johnston and Wright agreed that this part of the sentencing calculation would not affect the eventual guidelines range for Reynolds but that it could be an important factor in upcoming sentencings for Farrell and Southern. Wright said he "has some briefing" on the issue, but would not cite the case law because he "didn't anticipate it would be an issue." Johnston encouraged Wright to provide the court with his arguments on the matter before the sentencings for Farrell and Southern, scheduled for Feb. 11 and Feb. 17.
The judge said that what happened at Freedom was "appalling," considering the variety of environmental protection laws and regulations now in place.
"This was 2014," the judge said, "not 1964."
Johnston said that, while the incident led many in the region to lose "trust" in the water supply, he drinks coffee many days with tap water from the courthouse and no longer wonders if it is safe. The judge said no evidence has been presented in court that MCHM presents any "long-term health" threats.
While one review, by the National Toxicology Program, reported last year that scientists there believed they had found evidence of potential long-term health effects only at exposures greater than the government's 1-part-per-million MCHM health advisory, a later report from the program raised more questions about the spill's potential health effects, finding some evidence that leaked chemicals could affect neurological function or be related to genetic mutations. Another study, a peer-reviewed paper by researchers at Northeastern University, in Boston, found that Crude MCHM - the main chemical in the spill - could be more toxic than previously known, citing evidence of cancer-causing effects, DNA damage potential and reproductive toxicity.
At Freedom, Reynolds had been one of the officials in charge of environmental compliance since 2002, according to court records. He described himself as the company's "regulatory and environmental manager," although his defense lawyers later argued that he was merely an "independent consultant" and a victim of Freedom's "loosely run management style."
Freedom hired an engineering firm in 2002 to develop a stormwater pollution control plan, a requirement of a state-issued permit the violation of which is at the heart of the criminal cases against Reynolds and five other Freedom officials. A draft of the plan was prepared, but never finalized, court records show.
In 2004 and 2009, the company applied to the West Virginia Department of Environmental Protection to renew its permit, and the DEP approved the request.
Reynolds had prepared the 2009 application for renewal and stated in that application that the company had a stormwater pollution control plan, without ever verifying that the statement was correct. In May 2013, Reynolds took part in a review of the 2009 stormwater permit documents, an exercise that should have "made it very obvious" to Reynolds that the company didn't have the required plan," according to a "stipulation of facts" that Reynolds agreed to as part of his plea deal.
Johnston said that, while Reynolds could have ensured that Freedom put pollution control plans in place, the judge wasn't sure that, in his position as environmental manager, Reynolds had the power to approve spending the money to fix problems like the facility's inadequate spill-containment wall.
The judge went along with a recommendation from Wright that ordering Reynolds to pay restitution to victims of his crime would "unduly complicate" the sentencing proceeding because of the large number of people whose drinking water was affected. Wright said the U.S. Attorney's Office provided information about the case and other assistance to anyone who claimed they were a victim but did not try to determine which of those individuals were or weren't victims.
Neither the judge nor Wright explained why a community-based restitution project - such as an organization working on public health or water quality issues - was not being ordered in the case, as was urged by two local citizen groups, People Concerned About Chemical Safety and the Ohio Valley Environmental Coalition in letters previously submitted to the court.
Assistant U.S. Attorney Clint Carte, a spokesman for acting U.S. Attorney Carol Casto, said he could not explain why the office didn't seek restitution for such a project and would have to get back to a reporter about the matter.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.