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Owners of Chemical Firm Charged in Elk River Spill in West Virginia

The Freedom Industries plant on the banks of the Elk River in Charleston, W.Va., after the spill in January, caused by a cracked containment wall in one aging tank.Credit...Tom Hindman/Getty Images

A federal grand jury on Wednesday indicted four owners and operators of the company whose toxic chemical spill tainted a West Virginia river in January, forcing a prolonged cutoff of drinking water to nearly 300,000 residents in and around Charleston.

Each was charged with three counts of violating the Clean Water Act, which bars discharges of pollutants without a permit. Their company, Freedom Industries, and its owners and managers did not meet a reasonable standard of care to prevent spills, the indictment stated.

One of those indicted, Gary L. Southern, the company’s president, was also charged with wire fraud, making false statements under oath and bankruptcy fraud. Freedom declared bankruptcy days after the spill.

Freedom operated a chemical tank farm on the Elk River, just upstream of Kanawha County’s municipal water intake. The spill on Jan. 9 of 10,000 gallons of an industrial chemical known as MCHM left parts of nine counties without water for days and even weeks.

Government officials pronounced the water safe to drink on Jan. 13, but some continued to abstain, saying it carried a chemical smell, and on Jan. 20 the governor, Earl Ray Tomblin, told citizens it was “their choice” whether to drink it.

A survey by two state agencies and the Centers for Disease Control and Prevention later concluded that a fifth of the area’s households that were surveyed had individuals who experienced symptoms consistent with exposure to the chemical.

Besides Mr. Southern, of Marco Island, Fla., the indictment named three other owners and operators: Dennis P. Farrell, 58, of Charleston; William E. Tis, 56, of Verona, Pa.; and Charles E. Herzing, 63, of McMurray, Pa.

Two others were also charged: Robert J. Reynolds, 63, of Apex, N.C., and Michael E. Burdette, 63, of Dunbar, W.Va. Mr. Reynolds was Freedom’s environmental consultant, and Mr. Burdette managed the tank farm. Mr. Herzing, Mr. Tis and Mr. Farrell sold the tank farm to a Pennsylvania company about a month before the accident.

All six were charged with the negligent discharge of a pollutant, negligent discharge of a refuse matter and violating an environmental permit. The violations carry a maximum penalty of three years in prison, according to a statement issued by the United States attorney for the Southern District of West Virginia.

Mr. Southern’s lawyer, Robert B. Allen of Charleston, expressed surprise at the charges, noting that he had asked the court on Monday to recuse the district attorney’s office from the case.

“I don’t see how they can be unbiased with regard to any prosecution of Gary Southern,” Mr. Allen said.

“The chemical spill affected 300,000 people in this area, including everyone in the federal building,” he said. “The people who worked in the U.S. attorney’s office couldn’t drink the water, they couldn’t cook with the water, they couldn’t bathe in the water.”

A Pittsburgh lawyer representing Freedom Industries, Paul K. Vey, could not be reached for comment. But Steve Jory, a lawyer for Mr. Tis and Mr. Herzing, said in a statement that the charges were baseless. The two men hired Mr. Southern and other experts “to ensure compliance with all safety and environmental standards for Freedom Industries.”

“So to say my clients were criminally negligent in their responsibilities simply does not pass legal muster,” Mr. Jory said.

According to the indictment, Mr. Southern and Freedom’s three owners spent money only to increase business and repair broken or worn equipment, and “failed to make repairs, upgrades and improvements to equipment and systems necessary for environmental compliance.”

In particular, it stated, they failed to develop and carry out a plan to contain pollution should a tank leak. A cracked containment wall in one aging tank was the source of the chemical leak into the river. The tank farm has since been dismantled.

A correction was made on 
Dec. 20, 2014

An article on Thursday about indictments in a West Virginia chemical spill misidentified the lawyer for William E. Tis and Charles E. Herzing, two of the men charged. He is Steve Jory — not Matthew Benyon, who was the public relations consultant who released a statement by Mr. Jory.

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A version of this article appears in print on  , Section A, Page 25 of the New York edition with the headline: Chemical Company Owners Are Charged in Spill That Tainted West Virginia Water. Order Reprints | Today’s Paper | Subscribe

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