Acting U.S. Attorney Carol Casto's office has not determined if it will seek jail time for former top Freedom Industries officials Gary Southern and Dennis Farrell when the men face sentencing for their roles in water pollution crimes that led to the January 2014 Elk River chemical spill, the lead prosecutor in the case said this week.
"We have not decided what we are going to argue," Assistant U.S. Attorney Phil Wright said Tuesday.
U.S. District Judge Thomas E. Johnston has sentenced former company co-owner Charles Herzing and former Freedom environmental manager Robert Reynolds to probation and fines, but no jail time. The judge's decision was based largely by requests from the prosecutors for lighter sentences based on assistance investigators say that Herzing and Reynolds gave during the probe of Freedom.
Sentencing hearings are scheduled today for former Freedom plant manager Michael Burdette and for the company. A hearing for former company co-owner William Tis is scheduled for Monday. Sentencings for Farrell and Southern, both former presidents of Freedom Industries, are scheduled for Feb. 11 and Feb. 17.
Court approval of lighter sentences based on prosecution motions that defendants provided "substantial assistance" accounted for only 11 percent of federal cases nationwide over the last five years, according to U.S. Sentencing Commission data. In Southern West Virginia, such motions have been granted for only 137 defendants out of nearly 1,400 cases since between 2010 and 2014, according to the commission's statistics.
Nationwide, it's not so rare that defendants in environmental crime cases receive probation and no jail time. That happened in about two-thirds of such cases across the country last year, according to commission data that Burdette's attorney, Susan Robinson, cited in her sentencing memo to Johnston. In the federal court's 4th Circuit, which includes West Virginia, though, the share of environmental cases that result in "straight probation" sentences is much lower, about one-third over the last five years.
Casto, in a written response to Gazette-Mail questions, said prosecutors and other investigators "have worked tirelessly to ensure that not only Freedom Industries, but those with individual responsibility for the contamination be held accountable." But, Casto added, "We understand that these are misdemeanor offenses, and that the public may not be satisfied in the end with the sentences imposed."
One of the 12 total criminal counts in the Freedom plea agreements is a felony. That was one of the three counts included in the plea agreement for Freedom Industries, a bankrupt company that has little money to pay a fine and can't be sentenced to prison. Freedom pleaded guilty to a knowing violation of a Clean Water Act permit condition.
Southern and Farrell pleaded guilty to a violation of a permit condition, but their offenses were classified as negligent violations. A negligent violation of a permit carries a maximum sentence of one year in prison. A knowing violation carries a maximum of three years in prison.
David Uhlmann, a University of Michigan law professor, said that "one of the troubling aspects" of the Freedom case was that the company admitted a knowing violation but top officials were allowed to plead guilty to lesser, negligent violations.
"It is not unusual for cooperating defendants to plead guilty to less serious charges but it is fair to ask why the more culpable individuals were not required to plead guilty to the felony violations brought against the company," said Uhlmann, a former chief of the Department of Justice's environmental section.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.