In a case with potentially far-reaching implications for environmental criminal prosecutions, Arkema and three of its employees will go on trial in Houston the week of Feb. 17 over fires at the firm’s plant in Crosby, Texas, during Hurricane Harvey.
The plant produces organic peroxides, which become unstable if not kept at temperatures well below freezing. In August 2017, Harvey dumped 150 cm of rain on the facility. As floodwaters rose, workers moved the peroxides to refrigerated trailers on higher ground. The entire facility eventually lost power, and the peroxides combusted. Twenty-one people were treated for chemical exposure.
A year later, Harris County, Texas, district attorney Kim Ogg announced the unusualgrand jury indictment of Arkema, North American CEO Richard Rowe, and plant manager Leslie Comardelle for causing a release of air pollution. The two employees face up to 5 years in prison, and the firm could be on the hook for a $1 million fine.
In 2019, Harris County levied additional charges against Mike Keough, Arkema’s vice president of logistics, for causing bodily injury to two sheriff’s deputies who were treated for chemical exposure. The district attorney’s office says Arkema told first responders it was tracking storage conditions for the chemicals but that in fact some containers were unmonitored.
Arkema attorney Rusty Hardin laid out the company’s defense strategy in a 2018 report. He argued that Harvey, the largest rainfall event in US history, should qualify as an act of God under Texas law. Moreover, he said, Arkema’s plan to deal with severe flooding at the facility demonstrates that the firm did not act recklessly.
“Harris County prosecutors are making an unprecedented and outrageous attempt to criminalize a natural disaster,” Hardin says in a recent statement about the impending trial.
Walter D. James III, a Texas environmental attorney, says Arkema is probably confident about its defense, given that the case is going to trial. “I would have been very surprised if Arkema had folded and accepted some sort of plea deal,” he says. “Everybody did what they were supposed to do, and sometimes it’s hard to counteract an act of God.”