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DEP order: Dismantle Freedom tank farm

CHARLESTON, W.Va. -- The Freedom Industries tank farm responsible for the Elk River chemical contamination is going to be shut down and dismantled, according to an order from the West Virginia Department of Environmental Protection that was announced Saturday by Gov. Earl Ray Tomblin.

All chemicals must be removed from the facility by March 15.

Freedom must begin the process of dismantling, removing and disposing of all of its above-ground tanks and all associated piping and machinery by that same day, according to the order.

All 17 tanks at the Freedom facility are in inadequate secondary-containment areas, according to a news release from Tomblin's office that was issued with the order. Fourteen of those tanks still have chemicals in them.

The release says that those chemicals include calcium chloride and glycerin, both of which are common additives to household products. DEP Secretary Randy Huffman said three smaller tanks contain a semi-solid substance that is "like fatty acids." Huffman said none of the tanks contain any harmful or hazardous substances.

"During the dismantling of the tanks, Freedom Industries is ordered to install measures that ensure that secondary containment is adequate to contain any potential spills resulting from the work," the release states.

Huffman said workers from the company and the DEP are digging cutoff trenches and taking other remediation efforts to protect the river, should there be another leak before the chemicals can be moved. He also said just having people on the site is a help.

The release states that Tomblin ordered the dismantling of the tank farm, although his signature does not appear on the order. It is a "consent order," meaning the company agreed to the terms. That also means the company cannot appeal the order.

The release states that Tomblin and Huffman began discussing the option of dismantling the tanks on Jan. 10, the day after the leak was discovered.

"The DEP's authority is being used, obviously, but I've been in a lot of conversations with the governor over the last couple weeks over what's next, what authority do we have, how can we use that authority?" Huffman said Saturday night.

Freedom previously had moved its Crude MCHM, the coal-processing chemical that leaked into the river, to its sister facility in Nitro. However, the company was cited afterward by the DEP because that facility also did not have adequate secondary containment.

A woman who answered the phone Saturday at Freedom Industries said company officers would have no comment.

The initial chemical leak contaminated the drinking water of 300,000 West Virginians in Charleston and eight surrounding counties.

The order requires Freedom to provide weekly written reports to the DEP, describing how the company is dismantling the tanks and disposing of the materials.

The order states that Freedom has not brought any additional chemicals to its Elk River facility -- Etowah River Terminal -- since the leak was discovered Jan. 9. By Jan. 20, Freedom had removed nearly 270,000 gallons of chemicals from its facility, about 20 percent of its Jan. 9 inventory, the order says.

That would mean that, as of Monday, there were still about 1.3 million gallons of chemicals in Freedom's Elk River tanks.

The order states that Freedom must, "either sell the material to its customers, return the material to the original vendor, or store the material in an off-site area which provides adequate secondary containment."

Freedom previously had written to the DEP, saying that all materials would be moved off-site by March 30. The DEP told Freedom that date was unacceptable and ordered the chemicals moved as soon as possible.

The order cites two long articles of state code, the Water Pollution Control Act and the Groundwater Protection Act, as authorizing the DEP to close down Freedom.

On Thursday Sen. Joe Manchin, D-W.Va., had called for Freedom's entire facility to be torn down, to "start from scratch."

The order is signed by Gary Southern, Freedom's president, and it states that Freedom will not contest the government's jurisdiction regarding the order.

Complying with the order does not relieve Freedom from any other laws, permits or requirements.

The order is subject to a 30-day public-comment period.

On Friday, Freedom wrote a letter saying that the facility would be shut down. It did not say all tanks would be dismantled, just the one that leaked.

"You are likely to have heard that the Etowah River Terminal facility of Freedom Industries is going to be decommissioned," Paul Vey, a lawyer representing Freedom, wrote to lawyers involved in lawsuits against the company. "It is anticipated that tank number 396, which appears to have leaked MCHM, will be removed from the site."

The letter, obtained by the Sunday Gazette-Mail, was faxed Friday evening to 39 law firms and private attorneys involved in litigation against Freedom. It also was sent to lawyers representing Freedom executive Dennis Farrell; the West Virginia DEP; Eastman Chemical Co., which makes Crude MCHM; and West Virginia American Water and its parent company, American Water Works.

Prior to the release issued by Tomblin, DEP officials did not respond to requests for comment Friday night and Saturday about Freedom's letter.

The letter says the plaintiffs lawyers, who have filed more than two dozen class-action lawsuits against Freedom and West Virginia American, will have access to the site to investigate some time early next week.

All civil lawsuits against Freedom are on hold as it negotiates its way through bankruptcy, but the site will be opened up to lawyers before big changes are made.

"Because it is apparent that the current configuration of the site will be changing significantly over the next few weeks, Freedom Industries . . . intends sometime early in the week of Feb. 3, 2014 to make the site available for a visual inspection by counsel in the civil actions," Vey; of the Pittsburgh law firm Pietragallo, Gordon, Alfano, Bosick & Raspanti; wrote.

The site also will be open to experts retained by lawyers, but no sampling or testing of soil or water will be permitted, the letter states.

A temporary restraining order, to preserve evidence, has been in effect at the tank farm since Jan. 13, four days after the chemical leak was discovered. That order was extended at a bankruptcy hearing last week.

Freedom's letter states that the company is attempting to "balance competing interests" of a number of regulatory agencies interested in cleaning up the site and also in evaluating and analyzing it.

The federal Chemical Safety Board began an investigation of the site almost two weeks ago. CSB officials said Friday they expect the investigation to take about a year.

Harry Bell, a Charleston lawyer whose firm has filed a class-action lawsuit against Freedom and West Virginia American, said he has hired a number of experts who are doing preliminary research before they can go on-site.

"The normal standard is, you end up with a preservation order that tells everyone: save everything, secure everything, make mirror images of all electronic data," Bell said. "Then, once you've secured everything, you start talking about physical examination and inspection."

Freedom's letter states that the company aims to fully preserve all evidence, but if there's another emergency it will respond appropriately.

"The debtor has every intention of preserving documentary, electronic and physical evidence and appropriate litigation holds have been placed," the letter states. "If any additional emergency response is required, every effort will be made to document, as practicable, any changes to the site that result from such a response."

Vey did not respond to repeated requests for comment.

A spokeswoman for West Virginia American Water confirmed that its legal counsel received the letter, but declined further comment.

Staff writer Ken Ward Jr. contributed to this report.

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


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