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Freedom Industries files for bankruptcy

CHARLESTON, W.Va. -- Freedom Industries, the company that fouled thousands of West Virginians' water with a chemical leak into the Elk River last week, filed for Chapter 11 bankruptcy Friday.

Freedom owes $3.6 million to its top 20 unsecured creditors, according to bankruptcy documents. The company also owes more than $2.4 million in unpaid taxes to the Internal Revenue Service, and the IRS has placed at least three liens on Freedom's property, demanding payment.

The unpaid taxes date back to at least 2000, according to a lien filed in 2010.

Under the bankruptcy code, Chapter 11 permits a company to reorganize and continue operating.

The filing also puts a hold on all of the lawsuits filed against Freedom Industries. Since the leak last week, about a mile and a half upriver from West Virginia Water American's plant in Charleston, about 25 lawsuits have been filed against Freedom in Kanawha Circuit Court. The company also faces a federal lawsuit.

The company's assets and liabilities are each listed as between $1 million and $10 million in the bankruptcy filing. Chemstream Holdings Inc. is the sole owner of Freedom Industries, according to the filing. Gary Southern, who is identified as Freedom's president, signed all of the bankruptcy documents.

On Thursday, a source close to Freedom Industries, who asked to remain anonymous because of pending lawsuits, told The Charleston Gazette that Chemstream Holdings is owned by J. Clifford Forrest of Kittanning, Pa.

Forrest is listed as "manager" of Freedom affiliates Etowah River Terminal and Poca Blending in a merger filing from Dec. 31, 2013.

About an hour after its bankruptcy filing, Freedom filed an emergency motion for what's called "debtor-in-possession," or DIP, financing, which would allow it to secure up to a $5 million loan to continue to function in some capacity. The loan would, according to the filing, "provide additional liquidity to [Freedom] in order to allow it to continue as a going concern."

The lender in a debtor-in-possession case generally gets first priority when it comes time for the debtor, in this case Freedom, to pay money back.

"Under the bankruptcy code, when there is DIP financing from a DIP lender, 99 percent of the time, they get priority over all the other creditors," said Bob Simons, a prominent bankruptcy lawyer with the Pittsburgh firm Reed Smith. "You're putting your money in at risk, and the debtor is not going to have a lot of options, so the bankruptcy clerk permits the DIP lender to get priority over all the other lenders."

Freedom's proposed lender is a company called WV Funding LLC. That company does not exist in West Virginia, according to business records on file with the West Virginia secretary of state. Pennsylvania's secretary of state also has no records online for it.

The DIP agreement has places to sign for Freedom Industries and for WV Funding "by Mountaineer Funding LLC."

Mountaineer Funding was incorporated with the West Virginia secretary of state on Friday. Its one listed member is J. Clifford Forrest, Freedom Industries' owner.

The DIP agreement states that the terms "were negotiated by the parties in good faith and at arm's length."

The West Virginia Bureau of Employment Programs has placed at least two liens on Freedom's property, for about $4,000 in unpaid unemployment compensation insurance. Those liens were filed in 2002 and 2003.

On Jan. 9, the day the leak contaminating the Elk River was discovered, Freedom and its subsidiary, Etowah River Terminal, also owed nearly $93,000 in Kanawha County property taxes, about half of which was due on Oct. 1, 2013, and had become delinquent.

Freedom paid the full amount, $92,694.98, to Kanawha County on Jan. 10, the day after the leak was discovered. Of that amount, $47,618.87 had been overdue since Oct. 1.

A Freedom spokesman said Friday that, on the advice of legal counsel, the company would make no comment. Mark Freedlander, of McGuireWoods LLP in Pittsburgh, is representing Freedom.

Topping the list of Freedom's unsecured creditors, at $648,221, is Atlanta-based FloMin Coal Inc. Freedom owes Silverlake Holding LLC, of Evansville, Ind., $615,954.

Eastman Chemical, the maker of "Crude MCHM," the chemical that spilled into the Elk River, is owed $127,474, documents show.

Eastman, headquartered in Tennessee, is named, along with Freedom and West Virginia American Water, in the federal lawsuit filed this week.

Charleston-based Liberty Tank Lines is owed $117,812, according to the bankruptcy documents.

Documents in the bankruptcy filing allege that a water line break adjacent to the Barlow Drive facility might have contributed to the ground beneath a storage tank freezing during frigid temperatures in the days immediately preceding the incident.

"The debtor and investigative authorities have taken note of the hole in the affected storage tank that appears to have come from an object piercing upwards through the base of the affected storage tank. Investigations by multiple agencies are ongoing with full cooperation by the debtor," bankruptcy documents state.

Freedom and its Etowah subsidiary own four parcels of land along the Elk River, with a total appraised value of about $1.6 million, according to Kanawha County tax filings.

Freedom and Etowah own personal property -- in the form of machinery and equipment -- with a total appraised value of about $3.7 million, according to tax filings.

A full account of filings that Freedom and its subsidiaries have made with the West Virginia secretary of state helps reveal a little bit more of the company's opaque corporate history. Since 1992, Freedom and its associates have made 12 filings, to found companies, dissolve companies, merge companies and change officers.

The company, as currently constituted, has existed for less than three weeks. On Dec. 31 2013, four companies merged under the umbrella of Freedom Industries: Freedom Industries Inc., Etowah River Terminal LLC, Poca Blending LLC and Crete Technologies LLC.

Of those four companies, Freedom was the oldest. It was founded by Carl L. Kennedy II, a longtime Charleston businessman, on Feb. 10, 1992. Its listed address at that time was 8 Capitol St.

Seven years later, on Oct. 13, 1999, Kennedy was listed as the incorporator of Poca Blending, with partners listed as Freedom Industries and SD Asset Partners. Poca Blending is the facility in Nitro where chemicals were moved a few days after the leak on the Elk River was discovered.

Four years after that, on Sept. 27, 2001, Etowah River Terminal was founded by Dennis P. Farrell. Etowah River Terminal is the tank farm on the Elk River where the leak occurred. The facility was formerly owned by Pennzoil-Quaker State.

On July 27, 2005, Kennedy, the founder of Freedom and Poca, pled guilty to federal income tax evasion for not paying the government more than $1 million he had withheld from employee paychecks.

A week later, on Aug. 3, 2005, Etowah and Poca Blending had their licenses revoked by the secretary of state for failing to file annual reports.

Two months after that, on Oct. 5, 2005, Farrell replaced Kennedy as president of Freedom Industries.

On March 1, 2007, Andrew G. Fusco, a Morgantown partner in the law firm Bowles Rice, was listed in a secretary of state filing as "agent of service of process" for Freedom Industries.

Six months after that, on Oct. 8, 2008, Crete Technologies was established as a limited liability corporation in Delaware. Dennis P. Farrell was listed as the organizing agent, and Freedom Industries was the sole owner of Crete.

On Nov. 15, 2011, Etowah River Terminal, which had its license revoked six years earlier, was reorganized as an LLC for the purposes of "providing investment advice" and "acting as owner of a river terminal facility." Dennis P. Farrell was listed as the organizer.

Just two months ago, on Nov. 26, 2013, Poca Blending reorganized as an LLC. The manager was Dennis P. Farrell and the organizer was Daniel J. Cohn, an attorney with Bowles Rice in Charleston.

There is no record of Chemstream Holdings, the company listed as Freedom's owner on the bankruptcy filing, with the West Virginia secretary of state.

Freedom owed federal taxes for the years 2000, 2001, 2003, 2004, 2005, 2006, 2007 and 2008.

The total amount owed to the IRS is $2,433,449.15, according to the three liens.

Harry Bell, whose law firm has filed lawsuits on behalf of plaintiffs, said Freedom's bankruptcy filings puts all the lawsuits on hold.

"[The filing] stays the litigation until bankruptcy court addresses the matters involved," Bell said.

West Virginia Department of Environmental Protection Secretary Randy Huffman said Friday night: "At this point, Freedom has committed to continuing its cleanup effort. Any contingency to that would consist of a plan developed by many parties, including [the] DEP.  Funding determination would be part of that planning process.

"While details have not yet been fully developed regarding how to fund the remediation in such a scenario, the remediation efforts will still continue as long as necessary."

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.

Reach David Gutman at david.gutman@wvgazette.com or 304-348-5119.


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