Judge Won’t Recuse Prosecutors on West Virginia Chemical Spill Trial

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A judge will let federal prosecutors keep working on a criminal case over a chemical spill last year in West Virginia, shooting down arguments that prosecutors should be recused from the case because they were among the 300,000 people without clean tap water for days.

In an order in Charleston federal court June 24, U.S. District Judge Thomas Johnston denied a motion to have U.S. Attorney Booth Goodwin’s office removed from the case against former Freedom Industries officials Gary Southern and Dennis Farrell.

Southern and Farrell had contended that because some prosecutors in Goodwin’s were affected by last year’s spill, the entire U.S. attorney’s office should be taken off the case.

Robert Allen, an attorney for Southern, said his legal team is still reviewing the order and determining options.

In January 2014, a Freedom Industries tank in Charleston leaked coal-cleaning chemicals into the Elk River, spurring a ban on using tap water across nine counties for up to 10 days.

Attorneys for Southern and Farrell pointed to a questionnaire that aimed to weigh possible conflicts of interest for prosecutors. The responses showed some prosecutors had to travel to get clean water, had their kids out of school for days and experienced other hardships from the spill.

Johnston wrote that questionnaires showed prosecutors only experienced “trivial economic harms and some inconvenience.” He said prosecutors aren’t expected to benefit from an ongoing class action lawsuit over the spill, bankruptcy claims or any possible criminal restitution.

“In short, the harms suffered by the supervising attorneys do not undermine the Court’s confidence that the prosecution of Southern and Farrell can be conducted in a disinterested fashion,” Johnston wrote.

Johnston also dismissed arguments that Goodwin has a conflict of interest because of his wife’s professional ties. Amy Shuler Goodwin works as state tourism commissioner and was Gov. Earl Ray Tomblin’s spokeswoman during the spill and aftermath.

Southern and Farrell continue to contend that they can’t draw a fair jury in West Virginia. Their attorneys suggested moving the case to North Carolina or South Carolina.

Both men have pleaded not guilty to pollution charges. Southern also pleaded not guilty to fraud in Freedom’s bankruptcy case.

They are slated for an October trial.

Four other former Freedom officials and the company itself have pleaded guilty to pollution charges.