CHARLESTON,W.Va. – Governor Earl Ray Tomblin issued an executive order requiring Freedom Industries to remove all remaining materials and dismantle all 17 storage tanks at the company’s Etowah River Terminal on the Elk River in Charleston.

Tomblin’s order came in the wake of a tank leak on the site January 9, 2014. The incident allowed more than 7,000 gallons of Crude MCHM to escape into the Elk River and an unknown quantity of the chemical PPH. The leak, located a mile and a half upstream from West Virginia American Water’s Charleston water treatment facility, contaminated the drinking water of 300,000 West Virginia residents in a nine county area.

Tomblin’s order require the remaining materials be transported off site to another storage facility with adequate secondary containment. Furthermore, Freedom is required to install measures to insure secondary containment at the Etowha Terminal prior to removal of any chemicals present.

A lack of adequate secondary control is identified as one of the problems which allowed the original leak.

Once empty, the governor ordered all 17 tanks on the site dismantled along with associated piping and machinery on site.

Tomblin’s order is part of a consent order issued Friday by the West Virginia Department of Environmental Protection and signed by Freedom Industries. Governor Tomblin and Environmental Protection Secretary Randy Huffman began discussions about the elimination of the tank farm January 10th a day after the leak.

The site currently has 17 tanks, three of which contained Crude MCHM. Those three are now empty. The remaining 14 tanks contain Calcium Chloride and Glycerin. The DEP said all of the tanks have an inadequate secondary containment.

Freedom Industries must begin the process by March 15, 2014. The company must also provided the West Virginia DEP with detailed reports of the disposition of all materials removed.The company also must provide the WVDEP with reports detailing the disposition of the materials removed from the tanks.

Tomblin’s order further requires Freedom to adequately demonstrate any delay in the process is beyond their control.

An administration press release detailing the order explain the action does not relieve Freedom of further obligations to comply with all laws governing the removal process.

 

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Comments

  • Ron "from Morgantown"

    On Jan 13 , 2014 Judge James Stucky granted a temporary restraining order ordering Freedom to preserve evidence at the site . According to the order Freedom "must not alter or modify in any manner any structure , tank , or equipment ... -it is appropriate that (Freedom Industries ) be in as close as possible to their condition at the time of the chemical spill ". It seems to me that Tomblins EXECUTIVE ORDER conflicts with the Judges order . I don't think an executive order trumps a RESTRAINING ORDER from a Judge .

    • BH

      I agree. In the interest to be "politically correct" loss of evidence will be destroyed and any investigation would be compromised.

  • blugldmn

    Let's hope they are not south of the Kanawha hayseeds whose wife with his help milked the state for millions breeding greyhounds over the years getting payments no other breeder got.

    The government is every bit as culpable as freedom industries in some regards.

    It's probably cheaper to demo the tanks than repair them but the site has rail access.

    The governor doesn't have this power despite what he or Manchin believe.

  • Mason County Contrarian

    Finally the governor is demonstrating some leadership and backbone. My thanks go to Senator Manchin, who suggested this days ago.

    It has finally been established that this governor, when prompted, can lead--though it seems from way, way behind. He still doesn't emit the confidence and assurance that is needed in any state's chief executive, especially in times of crisis and public doubt.

    Let's hope there are better choices during the next gubernatorial election cycle.

    • Shadow

      You don't know how to spell "Communist"! Were you aware that we are a Constitutional Government and the El Supremo just trashed it?

      • Mason County Contrarian

        Sorry, Shadow. It was not my intention to touch a nerve by making my observation. I was just expressing my opinion, which the last time I checked The Constitution, is still permitted in the Republic.

        The Governor has the authority to issue executive orders under the state constitution whenever the situation warrants. It is a power that is seldom used because a situation like this has rarely (and thankfully) presented itself. It is no different than the "declaration of a state of emergency" due to weather-related events or an ordered coalmine safety stand-down by Governor Manchin a few years ago.

        My point and opinion was that he waited what seems an inordinate amount of time to do so.

        Can we graciously agree to disagree without resorting to McCarthy-era labeling and demagoguery?

        If an apology is necessary on my part, consider it given.

        • Aaron

          The problem with his leadership Shadow is that in addition to violating a state judges court order, it also violates the due process clause of the Constitution.

          The 5th Amendment states that no person shall be denied life, liberty or property without due process of the law.

          As such, the governments executive order which you deem long overdue is in conflict with the Constitution and that doesn't even begin to consider the rights of those affected by Freedom's Actions that this order violates.

          Yes, you are permitted to express your opinion although I'm not sure it's a constitutional right in all cases but none the less, you are entitled to it.

          No matter how wrong it may be.

          • Mason County Contrarian

            Respectfully agreeing to disagree would seem to be an unwelcome notion on yet another website.

          • Ron "from Morgantown"

            Oh you woke up and now acknowledge Judge Stucky order from Jan 13 , 2014 . A week ago when I informed you of his decision you suggested that my facts were not accurate .

          • Aaron

            What is there about the 5th Amendment to disagree on?

        • Shadow

          I may have overstated your position but private property is an important part of our Government and the governor overreached his authority. Your comment was in support of the unilateral decision to destroy private property. What we don't know is what was in the consent order and how that approval from Freedom was gathered. I could understand his authority to cease operations and clear the site of any potential dangers but to destroy what were several functioning tanks is confiscation of private property without compensation which is prevented by the Constitution although we have many instances where the Government has violated that Amendment. As to McCarthy era, i resort to Harry's: If it walks like a duck, quacks like a duck, it must be a duck.

  • Bruiser

    I am still in shock of "WHY" they did not have inspections, even short handed that many years without a citation of secondary containment should have been issued. That should also be investistigated.

    • Aaron

      While above ground storage tanks were regulated, there was no mandatory inspections required by any government agency as was the case with those involved in a manufacturing environment.

      That certainly did not prevent various agencies from visiting the site if there were problems as seems to be the case from reports that cite the odor at other times.

      I would also think the sale of such an aged facility would require some sort of inspection but apparently that was not the case.

  • Hillbilly Tea

    Tyranny is always the last resort of an inept government. Tomblin has the IQ of a gerbil. Will the DEP flunkies be held accountable for their ineptitude? Didn't think so.

    We get the government we deserve. God help us all.

    • Todd

      Hillbilly, government is never held accountable for anything.

  • ...

    Calcium chloride in the water would be just as bad and ask anyone from nitro what glycerin can make.

  • first time caller

    Are you serious? Blame the government much? How can you defend freedom industries when pregnant charlestonians can't drink their tap water? Please leave our town. You and the water are toxic.

    • Aaron

      The recommendation for pregnant women to not drink the water is a standard recommendation by the CDC anytime there's a potential risk as a precaution to the fetus. Does that not make sense?

      • ...

        You mean anytime there is a "standard" toxic chemical spill into a community water source?

        • Aaron

          According to the CDC spokesman, anytime there is a question as to what is in a water supply regardless of how it gets there, the standard recommendation is for pregnant women to refrain from ingesting the water. Seems logical to me.

    • Todd

      First time caller, the government is as much to blame as Freedom Industries. Those tanks have been sitting on the banks of the Elk River for years and have never drawn the attention of the DEP. Present and past administrations have fault in this as well.

      • first time caller

        Don't blame law enforcement for crime.

    • Nose of the Camel

      Andrew? Gov. Cummo, is that you?

  • Brian

    Now the DEP cites lack of secondary containment. Where were they with inspections and oversight before the spill?

  • Jim N Charleston

    Brilliant move by Freedom Industries. They declare bankruptcy, close up shop, & walk away pretty much scott free after an "order" from the DEP & others in government.

    The Gov & other pols all look real tough to the typical WV voter even though Freedom Industries has donated to their campaigns multiple times.

    Meanwhile the employees at the place get nothing (except 6 months unemployment at at most1/2 pay) and all the lawsuits will only bring benefit to the ambulance chasing lawyers.

    God Bless America
    I'm Jim N Charleston & it's too cold

  • WV PATRIOT

    If my memory serves me right the tank farm was there before the water company intake. JOBS, the last I heard there are over 55 good paying jobs with benefits. TAXES -where is mayor jones on this
    OTHER TANK FARMS-- are the other tank farms on the river going to have to dismantle their tanks????? I have driven by the other tank farms are their containment systems are totally INADEQUATE also.
    It sounds as if the DEP, DNR, Machin and the governor are trying to cover up the job that they were supposed to be doing!!!
    It appears that this was an ACCIDENT /ACT of GOD, so let's just tear down all the tank farms at the other chemical plants cause cab of the chemical plants in charleston dump more than 10.000 gallons of chemicals in the river each day but citizens aren't informed of that. Ask any boater on the kanawha river what they see and smell . The other plants use the river as their own sewer an people are drinking the chemicals being dumped in the river.

    I say again, tear down all the tank farms , close all the impoundments that hold all the chemicals from coal mines and power plants, put tens of thousands out of work!!!
    PLEASE REMIND THE LAST WEST VIRGINIAN OUT TURN OUT THE LIGHTS
    Our government leaders are a disgrace, I'm selling my house I just built at a loss just to get away from all this and open my business where I can get paid besides my employees. The only real winners in this is the moving companies.
    By the way, what is the number to Mayflower Movers.
    Goodbye and good luck West Virginia, a place I called home for over sixty years.

  • JulianJet

    Is this legal? If the governor or EPA can decree this without due process then be very afraid. The next decree may be directed at you!

    • squad

      yeah. make sure you look out for the corps like this stellar citizen, Julian. You must be what sean hannity calls a real "Koch Brothers" American ..as if the very drinking water isn't a compelling state interest..
      boy the right wing media has made some of you guys downright nutso

      • WV Redneck

        It's not a right wing nutso issue bud. It's about our rights as citizens of this country under our Constitution. Regardless of what happened, as bad as it was and yes, I was personally effected, that is still private land owned by a private owner and a private business.

        It would be within the governments authority to fine, penalize, force restitution and shut down until ordered repairs and measures to insure compliance are completed but it is not within his authority to do what he just did.

        Maybe you left wingers are ok with your rights being stomped on, eroded and executive ordered out of existence but the rest of us are not.

      • Aaron

        Unless I've missed something, there's been no cause for the ruptured tank yet we're supposed to accept in the name of security a heavy handed government shutting a business down?

        Every citizen is afforded due process under the law. It's a constitutional right. Some might be big on giving yours up in the false name of security but I'm not.

        • The bookman

          Aaron, and others,

          It appears from the story that this process is part of the consent order signed by both Freedom and the State on January 9th. The State has no ability to unilaterally compel anyone to dismantle personal property without due process, and although I'm sure the State is getting what they want, Freedom is not in any position to dictate terms. And given their gross neglect in this affair, they really should just follow the signs out of town.

          • The bookman

            The consent order was signed on Friday, the 24th, not the 9th. My mistake.

          • Aaron

            Did you miss the judges order Bookman that prevents Freedom from tearing down the tanks? Perhaps Freedom could have waived their due process rights without that order but the last time I checked, the judicial branch of the government was not trumped by the executive branch thus Freedoms agreement to the the Governors executive order is not valid.

            While I agree Freedom has is at fault for the condition of the containment dike and thus responsible for the chemical entering the Elk River, unless I've missed something, a reason for the initial tank leak has not been established.

            For all we know, that leak may have been well beyond Freedom's control and while the breach of the containment dike certainly justifies a serious fine from the state and the lawsuits that are sure to come, it hardly justifies this type of action.

            I believe the public would be better served in ensuring the truth comes out regarding this entire fiasco and any and all who hold responsibility, including previous owners, are held accountable.

            Hopefully Judge Stucky will put a halt to the Governors excessive reach.

          • The bookman

            Aaron,

            Who requested the injunction, as it was a temporary injunction? Do you think Judge Stucky acted unilaterally in imposing the injunction? Were the prerequisites of the temporary injunction met between the two parties and the injunction lifted? If the Judge feels that his authority has been trampled on by Tomblin, he most surely will respond. The point is that I don't think we are privy to all the back and forth between all the parties involved, and it appears Tomblin out of the blue decided to rise to the occasion. I doubt that is the case.

          • Aaron

            I agree we are not privy to all the information, which is what bothers me so much. There are far too many unanswered questions to just have this site dismantled and the whole issue swept under the rug.

          • The bookman

            Aaron,

            Can't imagine it getting swept under the rug...regardless of the findings, the facts we can all agree to are:

            Freedom did not exercise due diligence in preventing a leak, protecting the Elk in the event of a leak, and timely notifying the DEP if a discharge. In the absence of a video showing a Freedom employee drilling a hole in the side of the tank, I think it is safe to say the tank suffered a catastrophic failure of some kind and the lack of a suitable secondary containment resulted in the contamination of the water supply.

            The DEP should have done more, as well as WVAW and city, county and state leaders. But in the end it was a crisis that by every estimation could have been demonstrably worse had the chemical been highly toxic.

            If Tomblin has acted outside his parameters as set forth by Judge Starky's temporary injunction order, he will step up and so state it. Ever tick off a judge?

            You seem to imply a cover up. I don't see it here. Too many eyes!

          • Ron "from Morgantown"

            The restraining order was sought by plaintiff attorneys who want to engage Freedom in discovery to collect evidence that the company was negligent. It doesn't matter who asked for the restraining order , it only matters that the Judge granted the request and it must me adhered to by everyone , including the Gov office.

          • The bookman

            Ron,

            Who are the plaintiffs? What were the terms of the injunction? Has it been lifted by Judge Starky? If not, where is Starky's outrage? All questions that point to gaps in this story.

          • Aaron

            What motivation is there for Freedom Industries to agree to this order bookman? Do they suddenly have a conscience?

          • The bookman

            Aaron,

            As I read the story, they signed off on the consent order and this executive order from Tomblin stems from that agreement. Which is why I am at a loss as to why the uproar over the Governor's action, as it appears it is with the blessing of the Judge and Freedom. No conflict here as I can see.

          • Aaron

            I can't speak for others but my uproar stems from what I perceive to be a complete lack of adherence to due process.

            I strongly believe that everyone is protected by rights afforded under the Constitution regardless of what public opinion is.

            To me, this actions smacks of heavy handed coercion with no logical reason for tearing down the tanks in such a quick time period.

            I cannot see how this action is in anyone's best interest and I think the public has a right to know why it is being taken.

          • The bookman

            Whose due process, Aaron? Freedom's? Do you really believe they could ever continue to do business in that location after this incident? Do you think they want to continue to operate there? They want to crawl under a rug. I agree the scene needs protected for the collection of evidence, and I'm sure that is being done by the proper authorities, Feds included. Tearing down that facility is in the public's interest as it will remain a symbol of the crisis until it is gone. As for their due process rights, I think they've waived them. Both parties are getting what they want. Freedom wants to leave and the state wants them to go. My opinion of course. Hope you and your family are doing ok through this as I know you were directly affected. Easy for me to not get angry or be untrusting as my drinking water was not tainted. I can only imagine your frustration.

            Good luck and God Bless all in the Valley. Hopefully something good can come of this, and those responsible have the light shone upon them, and are punished for their negligence.

        • Jason412

          Aaron, it was reported a nearby water main break had caused the ground under the tank to freeze and that's what lead to it rupturing and leaking. I'd guess there reasoning is now it could happen to any of the tanks, since all the second containment on all of them are faulty.

          Bookman, are you still not in favor of them being criminally charged? When this first happened and we were discussing criminal/accidental I didn't imagine it would turn out this bad.

          • The bookman

            Goodwin's office will determine if it rises to the level of criminal negligence. Hard to prove, and who to charge? If there is any thing there, he will prosecute. The problem is that the crude MCHM is not real toxic, the tanks were largely unregulated, and they were in plain view of any agency who wanted to question their safety. Hard to prove criminal intent to harm the public.

          • Aaron

            That is what has been reported. Has it been established?

            And if it could happen again, why wouldn't the water company be responsible for ensuring their main doesn't break again.

            I'm sorry but this all seems too convenient and too quick to me, particularly given that the current owners were in control for such a short time.

            My first question is, how did the previous owners sell the property with the problems that were present in the containment dike.

            After all, as long term owners that understood the regulations regarding those dikes and with rumors of previous leaks, surely they had to know something was up. As such, do they hold responsibility?

            I could ask a dozen questions as that would justify a completion to this investigation that this order would prevent from ever coming to light.

            As I said above, hopefully Judge Stucky will place the best interest of the community above those of the State and Freedom and this issue will see the light of day regardless of how long it takes or who it shows erred in regards to this site.

          • Ron "from Morgantown"

            Bookman , look at my post at the top of the page , I quote the judge . Read the terms as spoken by the judge . I don't know who the plaintiffs are , it could any one of 300000 people . That's why is will not doubt be certified by the Supreme Court as a "mass litigation " case . We have judges who already sit on the mass litigation panel designed to handle cases like this . And , just to make a point , judges don't get "outraged " - . In this case the Supreme Court of wv may get involved . I doubt it though . Judge Stucky scheduled a second hearing on the matter on Jan 23 . I don't know how that hearing went . Remember Freedom has until March 15 and the restraining order is temporary not permanent , so it could be lifted at any time .

          • The bookman

            I read your post, and the point is the judges order and Tomblins order are only in conflict if the judge has left his injunction in place. And since when does a judge not become outraged when any one thumbs their nose at an injunction. In the absence of a statement from the judge, or back peddling by Tomblin, I can conclude nothing other than the judge has permitted this action. If not, then could not the Governor be held in contempt?

          • Jason412

            I would agree with Bookman in the fact that Freedom probably waved their rights. I'm not sure how it works in a situation like this, they may have cut some kind of "deal" and agreed to waive their rights to avoid further fines/criminal charges.

            Just speculating, but it may be similar to criminal charges where as they were presented 2 options something like either to fight it and risk losing the trial and lose everything, or waive their rights tear down the tanks and leave town.

      • JulianJet

        Why so angry and violent squad? I am not FOR poisoned water as you have accused. But neither am I FOR ceding my rights or property to a government that is " just here to help". Due process. Individual property rights. Don't think it could never happen to you! Spit that Rachel Maddow Kool Aid out that you've been drinking and wake up!

        • Ron "from Morgantown"

          Bookman , the judge won't hold the gov in contempt because nobody wants a high profile disagreement between two branches of government . Neither side wins in that case and judges usually show professional courtesy especially when we are talking about the governor's office. Plaintiff attorneys have the most to lose if the tank farm is razed before they get to evaluate the evidence . So they may go before the Judge to ask for an explanation . I suspect the Gov office will be there also .Then all sides can work it out quietly . The Gov could be allowed to keep the executive order but it be delayed for a certain time suitable for the evidence to be gathered . Remember nobody wants another spill and I'm sure the Judge is cognizant of this so the restraining order won't last too long . .

          • Ron "from Morgantown"

            Actually if the Gov signed the order on the 24th it makes sense because Judge Stucky held a second hearing on the 23rd . Perhaps the Judge lifted the order on that date clearing the way for the executive order . This is just speculation on my part but it makes sense .

          • The bookman

            Which was my point all along. Thanks for finding it. Gooooo eeeeers!

      • Nose of the Camel

        Just has the main stream media--ooops, I mean the left wing media--- has made all you BRAINLESS

  • joe

    Any dentists out there care to donate a new set of choppers to Tomblin?

    • BigMo

      Joe I thought I was the only one that noticed! Take some lottery funds and get our governors missing teeth replaced!

  • Aaron

    I'm not aware of any power our governor has in ordering a business to shut down and dismantle their operations. At the very least, any cease and desist order by the EPA allows the business to appeal the decision. If Freedom is complying, they must have motivation to do so. I will be greatly interested in "the rest of the story."

    • Fentanyl Bomb

      Freedom Industry has a compelling reason to comply with this.

      Corporations are only people when they flood the political process with money.

      When it appears that they may be criminally inept, such as this case, they can retreat to the maze of Corporate law that makes sure that the CEOs and other Officers are untouchable.

      I guess you really can have it both ways, if you spread the cash wide enough.

      • Aaron

        Seems to me the only way those officers become untouchable by buying their way out is if someone's for sale.

        The problem in WV is the law of supply and demand comes into play. Excessive supply of those for sale drastically reduces the price.

  • Jonus Grumby

    Now that the horses have run away, better close the barn door.

  • Shadow

    Tomblin is sounding like Obama with his Executive Orders. It will be interesting to see where he gets his authority to destroy the site when a lack of secondary control is the only reason cited. Particularly, when a Bankruptcy Request is in the Courts. This will be a long story.

    • Interested

      Who is going to pay for the demolition

      • Fentanyl Bomb

        As the poker adage goes:

        "Look around the table. If you don't see a sucker, get up, because you're the sucker."