Just short of a year after the January 2014 Elk River chemical spill, then-U.S. Attorney Booth Goodwin stood behind a podium at the federal courthouse in Charleston and announced the filing of criminal charges against Freedom Industries and six former Freedom officials, alleging a collection of water pollution crimes that caused the spill.
Surrounded by assistant prosecutors, agents from the FBI and investigators from the U.S. Environmental Protection Agency at that Dec. 17, 2014, press conference, Goodwin said that the charges - a rare prosecution of top corporate officers for environmental pollution - would send a strong message to industry officials around West Virginia.
"If you place our water at risk, you face prison time," Goodwin, who resigned last month to run for governor, said later.
Things haven't worked out quite the way Goodwin suggested they would. Five of the six Freedom defendants have been sentenced, and just one of them has been ordered to serve any jail time. And that sentence, to former Freedom President and co-owner Dennis Farrell, is for just 30 days.
U.S. District Judge Thomas Johnston has given the other four Freedom officials - Robert Reynolds, Michael Burdette, William Tis and Charles Herzing - to probation and fines, but no time behind bars. Johnston has cited the misdemeanor nature of the water pollution crimes each of the men has pleaded guilty of, and commented during each sentencing hearing that the defendant in question was "hardly a criminal."
It's true that the plea agreements, completed while Goodwin was still the district's top prosecutor, limited the potential maximum sentences for Freedom officials. Felony charges, if brought and proven, could have produced longer potential jail time - something Johnston has also noted in each sentencing hearing. And in the end, the ultimate decision on sentencing, at least up to the statutory maximum, is still an area left entirely to the judge's discretion.
But also playing a role in the process is a somewhat mysterious, and in many ways unknown to the public, set of advisory standards, called the U.S. Sentencing Guidelines, that the federal courts use to at least give judges, prosecutors and defendants some sort of recommendations about sentencing for various crimes.
The guidelines basically work like this: Categories of crimes are assigned a basic "offense level." The offense level is then increased - or potentially decreased - based on a variety of specific characteristics of the particular crime in question. Eventually, a total offense level is calculated, and that's plugged into a "sentencing table" that gives a range of potential prison time for judges to consider. Judges don't have to follow the recommendations, but they are at least supposed to calculate it. And during sentencing hearings, judges will often explain why they are following or not following the recommendations. The guidelines can also help judges justify their sentences, and insulate their decisions from appeals.
In the Freedom cases, the judge, prosecutors, defense lawyers and the U.S. Probation Office have all agreed that a particular guideline for "mishandling of other environmental pollutants," should be their starting point. That guideline assigns a "base offense level" of six.
Other parts of the guidelines - for "mishandling of hazardous or toxic substances" and for "knowing endangerment resulting from mishandling hazardous or toxic substances," would have started the Freedom officials out with higher base offense levels of eight and 24.
But the individual Freedom defendants didn't plead to knowing violations of environmental laws. And while MCHM was listed on Freedom's own documents as being "hazardous" under U.S. Occupational Safety and Health Administration standards, Acting U.S. Attorney Carol Casto said that her office didn't think the "hazardous or toxic" sentencing guideline should be used because MCHM wasn't specifically listed as hazardous under various environmental laws or included specifically on an OSHA table of hazardous materials.
Last week, during a sentencing hearing for Farrell, former Kanawha Valley activist Maya Nye questioned the use of the "other environmental pollutants" guideline for the Freedom cases. Johnston did not respond or explain his thinking on the matter.
The guideline the judge is using allows for an increase in the offense level for several reasons, such as if the crime involved the disruption of a public utility or if it "resulted in substantial likelihood of death or serious bodily injury."
The court has not applied, and prosecutors have not publicly advocated for, some potential increases in offense levels. For example, no one has publicly talked about including the 11-level increase that can be applied if the spill "resulted in a substantial likelihood of death or serious bodily injury."
Assistant U.S. Attorney Clint Carte, a spokesman for the U.S. Attorney's office, said officials there didn't think that enhancement should apply. They cited a report by the state Bureau for Public Health that concluded that, while hundreds of people sought medical attention after to MCHM from the spill, the symptoms involved "appeared to be mild and resolved with minimal treatment." Johnston has dismissed MCHM exposure as being "an immediate irritant" and said no evidence has been presented to him showing any long-term effects.
So far, prosecutors in the sentencing hearings have not presented witnesses or evidence - whether from spill victims or scientific experts - about the impacts of the exposure. During Farrell's sentencing, Nye described some of the research that so far raises questions about whether MCHM exposure does involve long-term effects, and told Johnston stories about serious impacts from short-term exposure. The judge said he didn't consider Nye's comments "evidence" in the case. Johnston refused to read a letter from another local resident that also detailed scientific findings, saying it had been provided to the court too late in the process.
Also in the Freedom cases, none of the corporate officers or owners have been subject to an offense level enhancement for "abuse of a position of trust," that is often applied to individual defendants who had "professional or managerial discretion."
Prosecutors and defense lawyers in the Freedom cases have argued over how an potential increase in offense level for the type of discharge should be applied. If the crime resulted in an "ongoing, continuous or repetitive discharge, release or emission of a pollutant into the environment," the offense level is to be increased by six points. Other kinds of discharges increase the offense level by four points.
Johnston said he believed the discharge was not "ongoing, continuous or repetitive." Defense lawyers agreed. Assistant U.S. Attorney Phil Wright argued that the discharge began on Jan. 9 and continued until at least Jan. 23 and perhaps until Jan. 30. Wright did not raise the findings of the U.S. Chemical Safety Board, which said the release likely started before Jan. 9, but that board investigators weren't sure how long before. The judge stuck with his view, and included only the four-point increase in offense level.
In the end, the judge calculated total offense levels of 15 for Reynolds, Burdette, Tis and Herzing. Each started with a base level of six and added four points for a discharge, four points for disrupting a public utility, and four points for a permit violation. Each got three points taken off for acceptance of responsibility.
The offense level of 15 produced a recommended sentence range of 18 to 24 months for each of the four men.
But that number ended up not really mattering that much, if at all. Casto and Wright made motions in each case asking Johnston for a lower offense level - of eight - to give the defendants credit for providing "substantial assistance" to investigators. Wright said that Tis, Burdette, Herzing and Reynolds had helped the government to prepare cases against Farrell and former Freedom President Gary Southern.
The offense level of eight produced a recommended sentence range for the four men of zero to six months in jail.
Johnston went with the lowest end of that range. In doing so, though, the judge referred back to the guidelines. He noted that the specific "offense characteristics" - public utility disruption, violation of a permit - that bumped up the offense range for each of the men were really mean to be applied to "knowing" crimes. For negligence offenses that implied no criminal intent, the judge noted, a decrease in offense level may be warranted under the guidelines, the judge said.
That provision for a decrease became more important last week, when Johnston sentenced Farrell. Farrell was the "last one in," or the final of the six Freedom officials to enter into a plea agreement. Prosecutors didn't ask for a decrease in his offense level for helping them in the investigation. That left Farrell at an offense level of 15, with a recommended sentence of 18 to 24 months in prison.
When Johnston sentenced Farrell to 30 days in jail, he said that in doing so he was departing from the guideline recommendation based on the idea that the increases in Farrell's offense level should only apply to knowing offenses, not the misdemeanor counts included in Farrell's plea agreement.
On Wednesday, Johnston is scheduled to sentence Southern, who pleaded guilty to three misdemeanors.
Defense lawyers are making the same arguments as in the Farrell case - that Southern's offense level should not be increased because he did not admit to knowing offenses. Southern's lawyers also predict that he will get a motion from prosecutors indicating that he, like four other Freedom defendants, provided "substantial assistance" to investigators. Defense lawyers say Southern helped them go after Farrell and assisted in an unrelated - but not identified in court records - case in another jurisdiction.
Marquette University criminal law professor Michael O'Hear has studied how the sentencing guidelines are used in environmental crime cases. O'Hear concluded that environmental law "criminalizes a wide range of conduct, from the minimally culpable to the highly culpable" and that the sentencing guidelines for such crimes "are designed to put 'green-collar' offenders behind bars, even if only for a relatively brief period of time."
Still, O'Hear found and federal data show, that's seldom what happens. Nationwide, nearly two-thirds of environmental case defendants are sentenced to probation only.
That happens for a variety of reasons, O'Hear has found. For one thing, defendants in pollution cases rarely have any criminal history, and that's a factor that plays heavily in the sentencing guideline calculations. Defendants in such cases often see reductions in their sentences because of a variety of mitigating factors, most often because they cooperated with government investigations of other offenders.
O'Hear also concluded, though, that the sentencing guidelines - for whatever use judges make of them - sometimes don't take all of the potentially relevant factors about environmental crimes into account. For example, he wrote, the guidelines do not require significant sentence enhancement for ecological damage, no matter how serious. They also don't take into account the disruption of businesses other than public utilities. Also, O'Hear concluded, the guidelines do not really distinguish between the scale of harm from environmental crimes or take into account very well the threat of harm from such offenses.
"To be sure, there is a lively theoretical debate over the question as to whether the actual infliction of harm increases a defendant's culpability in comparison with a mere attempt to inflict harm," he wrote. "Yet, with respect to some categories of harm, the guidelines have taken the odd position of incrementally punishing only the actual occurrence of the harm, no matter how freakish, and never the threat of harm, no matter how imminent."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.