West Virginia’s Freedom Industries Charade

Paul Butler

Writing Intern

On January 9th, people living near Charleston, West Virginia began complaining of a black licorice-like smell coming from the nearby Elk River.  Government officials quickly discovered a four-foot-wide stream of leaked chemicals designed to purify coal running into the river from a facility belonging to Freedom Industries.

Just one day earlier, in his annual State of the State address, West Virginia’s Democrat Governor Earl Tomblin proudly declared that he would “never back down from the EPA because of its misguided policies on coal.” In a place where sweeping opposition to environmental regulation is a virtual requirement for election to statewide office, this kind of defense of an unfettered coal industry is a regular occurrence.   But it nonetheless stands as a telling reference point as those affected by the spill continue to ponder how their state could have been caught so unprepared for such a seemingly avoidable disaster.

The leak occurred a mile and a half upstream from a major intake for West Virginia American Water, contaminating the water supply for three hundred thousand people in the area.  Freedom Industries originally claimed the spill involved five thousand gallons of the chemical MCMH; since then, the number has been doubled, and they have admitted another chemical, PPH, also leaked.

What has been so frightening about the spill is that no one – scientists, the government, or even Freedom Industries – has any clear idea of the danger MCMH poses to humans.  Because the chemical was already in use when Congress passed the Toxic Substances Control Act in 1976, it is exempt from regulation.  Government officials claim that it is safe to drink water with less than one part per million of MCMH, a determination based solely on an unpublished study conducted on rats by Eastman, the manufacturer of the chemical.   On Eastman’s safety data sheet for MCMH, “no data available” is listed under a alarming number of categories, including “symptoms and effects,”  “explosive properties,” “carcinogenicity,” and “reproductive toxicity.” Regarding the other leaked chemical, PPH, Freedom Industries has been even less transparent, calling its full identity “proprietary” information.

More than two thousand people have since called the state’s poison center to complain of symptoms, including upset stomachs and itchy skin, and over five hundred individuals have been treated at hospitals.  Several days after the spill, Governor Tomblin told residents that “It’s your decision” whether to drink the water, calling it safe for consumption. Most local doctors and health experts have pointed to the lack of scientific data on the chemicals to advise affected citizens to use bottled water instead.  Even Dr. Rahul Gupta, director of the largest health department in West Virginia, is refusing to drink from the tap, explaining in an interview that “It’s difficult for people to drink water that still has a licorice smell and has an aftertaste.”

Following the spill, Freedom Industries, a company whose name and questionable past seem too bizarre to be true, has come under increased scrutiny.   As the satirical website Wonkette has written, “Verdict: Artifice! Fiction! This story has broken the fourth wall. Julia Roberts will star, Steven Soderbergh will direct… in this theater of the absurd that we’re supposed to believe is a real thing happening.”

Freedom Industries was founded in 1992 by Carl Lemley Kennedy II, a two-time convicted felon who five years earlier had been charged with conspiring to sell up to twelve ounces of cocaine in a scandal that brought down Charleston Mayor Mike Roark.  His primary business partner was Dennis Farrell, a friend from college and fellow co-owner of a sports bar, who took over the company after Kennedy was sentenced to 40 months in jail for tax evasion, “using corporate funds for his personal benefit, and writing corporate checks to cash for his personal enrichment.” The money funded a series of extravagant purchases, including a private plane and an island in the Bahamas.   Inexplicably, following his arrest, Kennedy sued Freedom Industries and netted an additional settlement of eight hundred thousand dollars.

The company struggled under Farrell’s leadership, and by his own account would have gone bankrupt were it not for a 2009 river dredging project funded by federal stimulus money.  Following the January 9th chemical spill, Farrell’s fiancé (who is also Kennedy’s ex-wife) posted on her Facebook page a plea for sympathy for Freedom executives, stating that she “Showered and brushed my teeth this morning [with the contaminated water] and I am just fine!”  Gary Southern, the final major player in Freedom’s team of leadership, has acted as the public face of the company since the disaster, introducing himself in his single brief press conference by saying “I would appreciate it if we could wrap this thing up” and making headlines earlier this week for skipping a congressional hearing on the spill.

To add insult to injury, citing creditors’ demands for payments and the more than twenty-five lawsuits launched against the company, Freedom Industries recently declared bankruptcy.  Business owners and individuals who claim injury from the spill will understandably have trouble receiving monetary damages from a company undergoing bankruptcy proceedings.  In addition, bankruptcy will shift the costs of cleanup to the state and federal governments, effectively meaning that the very taxpayers harmed by the spill will be forced to further bear the brunt of a mistake that wasn’t theirs.

Considering the near-complete lack of oversight of the Elk River facility (the last government inspection was conducted in the early 1990s), it is more than troubling that such an inept cast of individuals was essentially left to self-regulate an operation with the potential to contaminate drinking water.  West Virginia certainly hasn’t escaped its share of environmental disasters, including a 2010 explosion at a mine in Raleigh County that killed twenty-nine people.  And amazingly, just two days ago, over one hundred thousand gallons of a “coal slurry” containing MCMH spilled into a different West Virginia river from a processing plant belonging to the equally absurdly-named Patriot Coal.

Time and time again, though, the state’s public figures defend the coal industry against regulation.  From Senator Joe Manchin, who many experts believe sealed his reelection in 2010 by airing a commercial in which he shot a bullet through a copy of the cap-and-trade bill, to Representative Shelley Moore Capito, who sits on the House Subcommittee on Water Resources and Environment and claimed on the day of the spill that the EPA is trying to “devastate West Virginia’s economy,” to Governor Tomblin, who has repeatedly argued that the coal industry deserves no blame for the Freedom chemical leak, the bipartisan state consensus seems to be that little to environmental oversight is needed. (Interestingly, these three politicians received direct campaign contributions from J. Clifford Forrest, a coal magnate residing in Fox Chapel, Pennsylvania who purchased Freedom Industries several weeks before the incident)

All of this leaves one glaring unanswered question:  Why does West Virginia’s working class continue to vote in overwhelming numbers for politicians who effectively represent an industry that opposes unions, fights against minimum wage increases, detests environmental protection, and benefits from the current state of high unemployment?  Traditionally, political scientists have argued that conservative cultural values on issues such as guns and abortion hold more sway than economic concerns for such voters.  However, as former Secretary of Labor Robert Reich contends in a recent op-ed, perhaps this isn’t the entire picture:  “People are so desperate for jobs they don’t want to rock the boat. For them, a job is precious – sometimes even more precious than a safe workplace or safe drinking water… But in order to summon the political will to achieve [a strong middle class], we have to overcome the timidity that flows from economic desperation.”

As a result, the solution is far from simple.  Conservative legislators are engaged a race to out-deregulate each other to entice Big Oil, gun manufacturers, coal companies, and other corporations to relocate to their states.  Perhaps justifiably, West Virginians already struggling to get by are worried that any effort to restore an ounce of responsibility to the coal industry will lead those companies to look at other states where they can get away with paying their workers dirt-poor wages with little to no government oversight.  It’s all a self-reinforcing process that has contributed to the high unemployment and economic anxiety upon which many corporations have built record profits.