Getting Away With It In West Virginia: Your Sunday Morning Conversation

CHARLESTON, WV - JANUARY 10:  Leaking MCHN tanks at Freedom Industries are being off loaded into tanker trucks on January 10,
CHARLESTON, WV - JANUARY 10: Leaking MCHN tanks at Freedom Industries are being off loaded into tanker trucks on January 10, 2014 in Charleston, West Virginia. West Virginia American Water determined Thursday MCHM chemical had 'overwhelmed' the plant's capacity to keep it out of the water from a spill at Freedom Industries in Charleston. An unknown amount of the hazardous chemical contaminated the public water system for potentially 300,000 people in West Virginia. (Photo by Tom Hindman/Getty Images)

You know, if I were to walk out of my office right now with a couple of cans of spray paint and a ball peen hammer, and set about vandalizing the local Citibank branch across the street, those actions would carry some natural consequences. It's pretty much a given that I'd be arrested on the spot, earn a no-brainer arraignment, and get convicted in a fairly open-and-shut case. I'd have to make legal and financial restitution, and maybe do a little time. I'd certainly be stripped of a lot of privileges. It would be really hard for The Huffington Post to continue to extend the courtesy of continued employment to me. My life, in other words, would get a lot harder to live, and deservedly so. Those sorts of actions bring a dose of unwanted misery to a lot of hard-working people.

Of course, it's not lost on me that while destroying the edifice of a local bank branch would earn me a set of tangible penalties, it's an entirely different matter if I were to say ... poison the entire Gulf of Mexico through my negligence. Or, say, destroy the global economy, through actions that only in the most charitable terms could be called "negligent." For that sort of destruction, the wheels of justice grind much slower and with a greater degree of indifference. Heck, if you play your cards right, it can even end up being profitable.

I guess the difference between getting brought to justice and getting away with it entirely boils down to whether you were willing to dream big. A question, then: Were the folks at Freedom Industries dreaming in sufficiently large terms when they allowed their uninspected chemical storage tanks to poison the West Virginia water supply? Looks like we are going to find out.

The big news this week in l'affaire Freedom Industries is that the polluter has filed for Chapter 11 bankruptcy. You wouldn't be faulted if, at first blush, the receipt of that news tweaked your schadenfreude gland just a little bit. After all, bankruptcy is bad, right? It's preferable not to be in bankruptcy, one imagines. And to a certain extent, that is true, so for a second, you feel like maybe Freedom Industries is getting some dose of just desserts, having to file for bankruptcy protection.

But the operative word here, of course, is "protection," and as it turns out, Freedom Industries needs a lot of it. According to the Charleston Gazette, which broke the news on Jan. 18, the company "owes $3.6 million to its top 20 unsecured creditors," as well as "$2.4 million in unpaid taxes to the Internal Revenue Service," dating back to 2000. (The IRS has multiple liens on Freedom Industries property as a result.) Bankruptcy protection halts the process of payback to creditors -- which include you and me, per the IRS. As Bloomberg Businessweek's Paul M. Barrett -- who has done all sorts of spadework on Freedom Industries -- reports, it's now up to a "bankruptcy judge to sort out whose claims go first."

On top of all of these past debts now come the potential legal liabilities that arise, as a natural consequence, of having put the lives of 300,000 people at risk through incompetence. Some 20 lawsuits against Freedom Industries have already been filed. As Barrett notes, Chapter 11 isn't just helping Freedom Industries shelter-in-place against the claims of creditors and plaintiffs -- it's allowing the company's lawyers to float a particularly unique theory about who is really to blame for the Elk River chemical spill.

The company's bankruptcy attorneys, led by Mark Freedlander of the Pittsburgh office of McGuire Woods, used Chapter 11 to float a theory designed to ease Freedom's liability: "It is presently hypothesized that a local water line break [caused] the ground beneath a storage tank at the Charleston facility to freeze in the extraordinary frigid temperatures in the days immediately preceding" what Freedlander delicately termed "the incident." Freedom further hypothesized that "the hole in the affected storage tank" was caused by "an object piercing upwards through the base" of the tank.

It seems the idea is that water turning to ice expanded, pushing that mystery "object" through the floor of the tank. Hard to say if the court will buy that. Shouldn't steel tanks containing dangerous chemicals be able to withstand the consequences of winter weather?

Maybe the court will accept this theory, maybe it won't. One hopes that one thing the court will take away from the discovery of this steel-penetrating "object," however, is that Freedom Industries really can do a bang-up on-site inspection of its facilities when feeling inspired. Unfortunately, this is the first time since 1991 that the spirit has moved the company to do so.

More broadly, the strategy here is to shift the responsibility for the spill from Freedom Industries to American Water Works Co., which runs the local water utility and is a "co-defendant in many of the liability lawsuits." For its part, American Water Works has responded to this accusation by insisting that Freedom's game here is nothing more than an attempt to maintain its grip on "those parts of the business that it deems valuable, abandoning the rest, taking the going concern value from the debtor, and leaving the debtor and its many creditors 'holding the bag.'"

That sounds about right, actually!

Bankruptcy protection turns out to be just one way Freedom Industries is sheltering itself. As the Charleston Gazette reported this week, the "company told investigators that the Crude MCHM that leaked also contained a product called 'PPH,' according to state and federal officials." And what is PPH, exactly? Does the acronym for this special bonus poison in the water stand for "Pretty Potentially Harmless" or "Probably Poisonous Hell?" Well, here's where we find ourselves in one of those "those would say don't know and those who might know won't say" situations:

Freedom Industries disclosed the information to state and federal regulators on Tuesday morning, but health impacts of the chemical remain unclear, and Freedom Industries has claimed the exact identify of the substance is "proprietary."

The good news, I guess, is that the Centers for Disease Control and Prevention has said that the "information thus far indicates that PPH is probably less toxic than Crude MCHM." The bad news is that "data about the potential health effects" of PPH are "very limited." It would be useful to know more, but that would obviously put Freedom Industries' well-honed competitive edge in jeopardy, so pertinent public health information must necessarily be denied.

Chances are it will take less time to figure out the nature of this surprise addition to the West Virginia aquifer than it will to unwind all of the legal complications surrounding Freedom Industries. These entanglements threaten to withhold, if not deny, justice to the hundreds of thousands of West Virginians whose lives were put at risk by Freedom Industries neglect. (It's worth mentioning that the timeline of litigation in the Exxon Valdez disaster spanned two decades, during which time Exxon talked a $5 billion punishment down to $507.5 million.) Fortunately for residents of the Mountaineer State, they have a brave statesman in their corner, in the form of Sen. Joe Manchin (D-W.Va.), who said, empathetically, "You feel like everyone's turned against you."

Ha ha, just kidding! Manchin did say that, but he wasn't actually addressing his constituents -- he was addressing his donors! Per The New York Times:

But in Washington on Wednesday, among friends at an event sponsored by the American Coalition for Clean Coal Electricity, West Virginia's junior senator and former governor, Joe Manchin III, was preaching a familiar gospel of an industry under siege by overzealous regulators.

"You feel like everyone's turned against you," he said. He assured his audience that he would continue to fight back against proposed new Environmental Protection Agency regulations on coal, quoting the state motto in Latin: "Montani semper liberi" -- "Mountaineers are always free."

Some freedom industries are freer than others, I guess.


BUT I REPEAT MYSELF: Forgive the light self-plagiarism, but I've had these thoughts about vandalizing property before. I mused in similar fashion back in October 2010. The occasion? Another poisoned river, in this case the Danube. On that occasion, Hungarian authorities moved swiftly to detain the person in charge of the company that polluted the river, and froze the firm's assets pending investigation. Sounds a little more like an ideal response to these sorts of things, no?

SUNDAY MORNING MEME-WATCH: The State Of The Union address is on the wing, which means you should be on your guard for pundits who allege that the almighty bully pulpit has magic powers that move public opinion and transform political gridlock into lush bipartisan compromises. ALL WRONG.

STUDENTS LEND EXPERTISE TO WEST VIRGINIA: A reader, George, passes along this news story from Local 15 television in Mobile, Ala. University of South Alabama students studying environmental engineering have been on the ground in West Virginia, lending a hand under the direction of their professor, Andrew Welton:

Whelton and students visited homes to help people flush their system safely. The group also sampled water in toilets, near filters, and pipes. All were contaminated according to Whelton. He fears not properly flushing the system leads to more contamination. "To my knowledge the people who are responding to this are not testing people's drinking water inside people's houses and that is where the exposure is happening," said Whelton. [...] Whelton believes what has happened in West Virginia could happen in Mobile if the water supply is not protected.

If you've got a story you want to share on Sunday, feel free to drop me a line!

THIS IS WHAT I'M TALKING ABOUT: Anthonay Badalamenti, formerly of Halliburton, was charged with "destroying evidence in the aftermath of BP's massive 2010 oil spill in the Gulf of Mexico." His penalty? He'll perform 100 hours of community service and pay a fine of $1,000. Hey, at worst, he would have faced a mere year in prison! And that's why people in his position in the future will have no fear of what might happen if they destroy evidence related to a massive environmental disaster.

"I CAN TAKE ANYTHING BUT KIDNAPPING." Foreign Policy offers readers a harrowing read about what it's like to report from war-torn Syria.

PLANETS, HOW DO THEY WORK? Emma Carmichael and Claire Webb attempt to give the good folks over at The New York Times Magazine a few good eighth-grade science lessons.

SHOW ME HOW YOU DO THAT TRICK: I wouldn't have imagined that the dour discography of The Cure would be in such heavy rotation with the makers of romantic comedies, but boy was I wrong!

[You'll find more Sunday Reads and more on my Rebel Mouse page. What stories mattered to you this week? Drop me a line and let us know what you are reading.]

This story appears in Issue 86 of our weekly iPad magazine, Huffington, available Friday, Jan. 31 in the iTunes App store.



West Virginia Chemical Spill