A former co-owner and officer of Freedom Industries on Monday became the fourth official from the company to avoid being sentenced to any jail time, despite playing a role in the January 2014 chemical spill that contaminated the drinking water supply for hundreds of thousands of people in the Kanawha Valley and surrounding communities.
U.S. District Judge Thomas E. Johnston sentenced William E. Tis, a former Freedom director and secretary, to three years' probation and ordered Tis to pay a $20,000 fine.
Tis had pleaded guilty to one misdemeanor count of causing an unlawful discharge of refuse matter, and faced a statutory maximum of one year in prison. The charges related to Freedom's spill of MCHM and other chemicals into the Elk River just 1.5 miles upstream from West Virginia American Water's regional drinking water intake.
As he had with three previous Freedom defendants, Johnston said that Tis was "hardly a criminal." The judge cited the misdemeanor nature of the charge against Tis and what he said was a lack of any previous criminal record.
"I never intentionally hurt anyone in my life," Tis told the judge at Monday's hearing. "I am sorry this happened."
Johnston said his sentence for Tis was also based on a motion from Acting U.S. Attorney Carol Casto's office asking for a lighter sentence based on Tis having provided "substantial assistance" to the government's investigation of the spill and of two top Freedom officials, Gary Southern and Dennis Farrell.
Farrell is scheduled to be sentenced on Thursday and Southern on Feb. 17, as part of a three-week series of sentencing hearings for bankrupt Freedom Industries and for six of the company's former owners, officers and managers. Farrell and Southern were both former presidents of Freedom.
Prior to Tis, Johnston had sentenced to probation - and no jail time - former Freedom officials Robert Reynolds, Michael Burdette and Charles Herzing. The judge has imposed fines that total $52,500 for the four individuals sentenced to date. Johnston fined Freedom Industries the maximum of $900,000, but acknowledged the bankrupt company would likely never pay.
At Monday's hearing, Johnston again said that, while the spill was "traumatic" for the community, the incident was long over and while MCHM was "an immediate irritant," he had been presented with no evidence that exposure posed any long-term health threats to residents. Prosecutors again on Monday presented no witnesses or other evidence about the spill or its effects on residents or businesses in the region.
Assistant U.S. Attorney Phil Wright said that the Jan. 9, 2014 incident caused a "significant public disruption" and required "substantial cleanup efforts," but that a sentence within the range recommended by the advisory federal sentencing guidelines - zero to six months - was appropriate for Tis.
The sentence recommend by the guidelines for Tis was reduced to that zero-to-six-month range because Johnston granted Wright's motion for a lesser sentence because of assistance Tis provided to investigators. Wright said that Tis was "very helpful" in preparing the government's case against Southern and Farrell, and provided investigators a "fuller picture" of the "inner workings" of Freedom during two "very lengthy debriefing sessions."
The criminal cases focus on a permit that the state Department of Environmental Protection had granted Freedom to regulate the handling of stormwater runoff at the Elk River site. The DEP-issued permit - had it been followed by Freedom or enforced by DEP - required the company to prepare stormwater and groundwater control plans. Those plans, federal officials note, would have in turn required inspections and maintenance of the facility's tanks and spill-control dikes that, if performed, would have prevented the spill or at least contained it from reaching the Elk.
Johnston noted that Tis had pleaded guilty to a Refuse Act violation as a "responsible corporate officer" under what's called a "strict liability statute," meaning that prosecutors would not have had to prove any specific criminal intent if the case had gone to trial. The judge also noted that the sentencing guideline he used to calculate a recommended range for Tis was written to apply to "knowing" violations of water pollution law, which would have produced a felony charge like one of the three counts to which Freedom Industries, the company, pleaded guilty.
At the same time, though, Johnston on Monday unsealed the "substantial assistance" motion that prosecutors had filed to help Burdette receive a lighter sentence. In that filing, Wright said that Burdette had provided investigators "key information" about Farrell, Tis and Herzing. Among other things, Wright wrote, Burdette had provided evidence that Farrell, Tis and Herzing had "been informed of certain tank inspections that were performed in 2008."
"Burdette had prepared a summary of those inspections and sent it to them," Wright wrote. "That summary made clear that the dike wall was badly in need of repair."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.