Trial near for Arkema, leaders
Company is accused of releasing pollution, harming deputies during Hurricane Harvey
The criminal trial of the French chemical company Arkema and several of its top employees accused of releasing pollutants and assaulting two deputy sheriffs during Hurricane Harvey is set to start this week in Harris County.
The Harris County District Attorney’s Office charged the company and its then-vice president for logistics, Michael Keough, last April for allegedly telling county emergency officials that Arkema had real-time monitoring data of all the trailers holding hazardous organic peroxides at its Crosby plant when that wasn’t the case. About nine months earlier, the state had brought another felony reckless charge against the company, CEO Richard Rowe and plant manager Leslie Comardelle for releasing toxic chemicals.
At the center of the state’s case is why Arkema didn’t move its organic peroxides, which are used to make plastics and must often be kept at temperatures at or near freezing to prevent the chemicals from self-combusting, as it prepared for the landfall of Hurricane Harvey. Also, the DA’s office says the company misrepresented how closely it could monitor the temperature of the hazardous material remotely to be able to warn emergency responders to safely evacuate.
But the defense argues that Harvey was an “act of God” and that it was impossible to foresee that it would stall and dump historic amounts of rainfall in some areas of Southeast Texas. Also, the attorneys question how Ke
ogh can be charged with a felony of reckless assault on public servants when he was in Pennsylvania during the hurricane.
Harvey and its aftermath killed nearly 70 people and flooded more than 300,000 structures, forcing about 40,000 people to evacuate from their homes.
District Attorney Kim Ogg took many by surprise when she filed criminal charges both against the company, which experts say is on its own somewhat unusual, and against individuals, especially going after a top executive for reckless assault, which defense attorneys said was a first in Texas.
During a news conference, Ogg said she wanted to send a message to polluters who hadn’t been swayed by financial penalties. The Houston area had just been hit by three chemical fires in as many weeks.
“The facts show Arkema knew of the dangers, withheld vital information and unleashed harm on first responders and the community,” Ogg said then. “This felony indictment is a wake-up call to companies that would pollute our air and waterways, ignore best practices in safety and put our communities at risk.”
But attorneys for Arkema and its employees assailed the newest charges as an example of prosecutorial overreach.
“Harris County prosecutors are making an unprecedented and outrageous attempt to criminalize a natural disaster,” Rusty Hardin, a lawyer for Arkema, said in a written statement posted on the company’s website ahead of the trial. “This is a political prosecution in search of a theory, and Harris County taxpayers will have to foot the bill for this very political attempt to stretch the meaning of our
laws.”
Tim Johnson, lawyer for Rowe, added: “Houston still has not recovered from Harvey’s flooding more than two years ago. The fact that prosecutors persist in trying to blame a company and its employees in criminal court for the ravages of this unprecedented storm should concern us all.”
As Harvey bore down Aug. 25, 2017, Arkema’s hurricane preparedness plans had gone into gear, even though the Crosby plant was initially not projected to be in the direct path of the storm, according to a Chemical Safety Board investigation of the incident. The board is a federal agency that investigates root causes of some industry incidents and offers recommendations.
The company halted production, secured loose materials and equipment, got a boat and forklift that could operate in floodwater, staged sandbags and made sure there was adequate reserve fuel. But based on what some of its longtime employees had experienced, the CSB said, Arkema officials didn’t think much of the plant would be under water, as it turned out to be. The Crosby facility is within the 100year and 500-year floodplain.
Investigators found that Arkema’s main power transformers and backup generators were not high enough off the ground. The plant’s last line of defense also failed when floodwaters inundated the fuel tanks that power freezer trucks.
This led to the first fire in the middle of the night Aug. 31, with fumes from one trailer containing organic peroxides sweeping over the evacuation zone, where sheriff’s deputies were patrolling. Law enforcement officers manning the perimeter and responding medical staff reported vomiting and gasping for breath, according to a civil lawsuit filed against Arkema by first responders, including David Klozik and Bryan Sweetman, the two sheriff ’s deputies named in the April criminal indictment. In all, 23 people were briefly hospitalized.
The state alleges that first responders were told that Arkema’s products were being continuously monitored but that the company’s managers, including Keough, knew that several trailers were unmonitored and no warnings could be given.
Over the next week, more than 350,000 pounds of organic peroxide combusted, the CSB said, sending pillars of fire and thick plumes of black smoke into the air. As a result, more than 200 residents living within 1.5 miles evacuated and could not return home for a week.
In 2016, Texas A&M University and the Houston Chronicle conducted an analysis and concluded that the Arkema Crosby site posed a high potential for harm if a chemical incident occurred on site. This analysis was based on the chemicals it had on site, its regulatory history and the number of people within a 2mile radius of the facility.
The emission charges against Arkema, Rowe and Comardelle carry a penalty of up to five years in prison for the individuals and a fine of up to $1 million for the corporation. The reckless assault felony charge against Keough carries a penalty of up to 10 years. The case will be heard before state District Judge Belinda Hill.
The last time a chemical company faced criminal charges for a major incident in Texas was in 2005. BP paid $50 million in fines for an explosion at the Texas City refinery that killed 15 workers and injured almost 200, but no one from the company served prison time.