Houston Chronicle

Arkema defense demands dismissal

- By Samantha Ketterer STAFF WRITER

Arkema Inc.’s attorneys are calling for a judge to dismiss a high-profile trial about the chemical company’s handling of organic peroxides during Hurricane Harvey, again alleging prosecutor­s withheld vital informatio­n from the defense.

The lawyers referenced a “pattern of prosecutor­ial misconduct” in the case against Arkema, which faces rare environmen­tal charges over emissions that took place during the historic storm. Judge Belinda Hill will hear the company’s motion on Sept. 10, according to court documents.

“Time and time again, the prosecutor­s’ actions have violated the law and applicable ethical standards,” Arkema’s attorneys wrote. “The terminatio­n of this prosecutio­n, without retrial, is the remedy that Defendants seek here. Justice requires no less.”

The jury trial, which began in February, has been on hold since March closures and lockdowns triggered by the global pandemic. Proceeding­s had already been tense until that point, with earlier allegation­s of prosecutor­ial misconduct – also based on claims of withholdin­g informatio­n – leading to a delay of the trial’s first start date.

In the latest complaint, defense attorneys Rusty Hardin and Derek Hollingswo­rth alleged that state lawyers and a special prosecutor withheld evidence about how the only other producer of cold-storage organic peroxides in Houston, AkzoNobel, responded to Hurricane Harvey. They say Akzo took actions similar to those taken by Arkema, but that informatio­n was kept from them.

The trial centers on Arkema Inc. and its executives’ decision to not move the dangerous chemicals offsite as the storm approached the Crosby plant, which sits on a 100-year and 500year floodplain. The organic peroxides eventually combusted as the property flooded, causing 23 people to be briefly hospitaliz­ed and more than 200 nearby residents to be evacuated. Two sheriff’s deputies were counted among the injured.

Prosecutor­s say the core of Arkema’s motion is false. Arkema’s attorneys acknowledg­ed as far back as August 2019 that Azko moved some and not all of its chemicals, they said in a re

sponse to the motion.

“The State gave Defendants all the documents that relayed all the informatio­n well ahead of trial,” said Alexander Forrest, chief of the district attorney’s office’s environmen­tal crimes division. “Defendants simply cannot show that any prejudice resulted from a delay in disclosure even had one actually happened.”

The Harris County District Attorney’s Office in April 2019 charged Arkema and its then-vice president for logistics, Michael Keough, with reckless assault on a peace officer. Prosecutor­s had earlier brought another felony reckless charge against the company, CEO Richard Rowe and plant manager Leslie Comardelle for the release of toxic chemicals.

During the trial, prosecutor­s held up AkzoNobel as a standard of responsibl­e chemical production, the defense said, despite knowing that “Arkema and AkzoNobel engaged in nearly identical hurricane response.”

AkzoNobel had initially declined interviews with the defense, meaning the lawyers had to rely on informatio­n that prosecutor­s provided, Hardin and Hollingswo­rth said.

Arkema’s attorneys eventually spoke with AkzoNobel’s logistics manager during Harvey, hearing that the two companies had similar disaster plans. The defense then concluded that prosecutor­s knew facts that were different from what they stated, Hardin and Hollingswo­rth said, because they learned from prosecutor­s’ “cryptic” notes that AkzoNobel had shared exculpator­y informatio­n with the state prior to the trial.

“The State sat on this informatio­n and did not disclose it to Defendants,” they said.

Forrest disagreed. The state released the informatio­n they held, including the amount of storage that Akzo moved off site.

The opposing teams’ disagreeme­nts also go beyond the latest motion. While Arkema’s attorneys claim that prosecutor­s have consistent­ly withheld or delayed informatio­n, the state, led by Forrest and special prosecutor Mike Doyle, have voiced concerns about the defense’s handling of the case.

In June, Doyle filed a motion for an inquiry into possible jury tampering, fearing that an Arkema-sponsored ad on Google could have influenced jurors during the months-long hiatus.

The ad is the first result in a search of “Arkema trial” and leads to a webpage with “facts” of the case, some of which had been determined as inadmissab­le evidence in court, prosecutor­s said.

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 ?? Melissa Phillip / Staff photograph­er ?? CEO Richard Rowe, left, and attorneys Letitia Quinones and Rusty Hardin allege DA misconduct.
Melissa Phillip / Staff photograph­er CEO Richard Rowe, left, and attorneys Letitia Quinones and Rusty Hardin allege DA misconduct.

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