HOUSTON (CN) — The criminal trial of a chemical company and its CEO over a hurricane-triggered meltdown at its Houston-area plant resumed Thursday after the pandemic forced a six-month delay.
Defense attorneys for Arkema Inc. and three company officials have accused Harris County District Attorney Kim Ogg, the chief prosecutor in Houston, of trying to “criminalize a natural disaster,” of conducting a “political prosecution in search of a theory” and presenting a case “dumber than a bucket of hair.”
Hurricane Harvey, the largest storm in recorded history of the continental United States, wreaked havoc on the region’s petrochemical industry when it stalled over Houston in August 2017 and dumped as much as 50 inches of rain in some areas.
ExxonMobil’s 3,200-acre refinery and chemical-production complex in Baytown, an east Houston suburb, spilled 457 million gallons of oily wastewater into a creek.
Magellan Midstream Partners reported to the U.S. Coast Guard that 42,000 gallons of gasoline had spilled from its tank farm in east Houston.
But the incident at Arkema’s plant in Crosby, a small town northeast of Houston, received the most publicity as company officials warned first responders on Aug. 30, 2017 that organic peroxides there would soon combust and an explosion was imminent.
Organic peroxides are used to make plastic, rubber, polyester, silicone and fiberglass and must be kept cool or they will decompose and catch fire. Harvey flooded the plant with 6 to 8 feet of water, knocking out power to air-conditioned warehouses where Arkema stored the chemicals.
Arkema moved them to refrigerated trailers, but some of the trailers lacked telemetry equipment used to remotely monitor the temperature inside them.
A unified command with law enforcement, fire marshal’s office, state and federal environmental agents was set up near the plant and they established a 1.5-mile evacuation zone to keep people away.
Peroxides in one of the trailers burst into flames early the next morning, forcing 205 residents to evacuate their homes and hospitalizing 21 first responders after they were exposed to the smoke.
The U.S. Chemical Safety and Hazard Investigation Board analyzed the incident and its May 2018 report seemed to exonerate Arkema.
The report found “the incident likely would not have been averted” even if Arkema had followed flood-preparation guidelines of the Federal Emergency Management Agency and chemical trade groups.
No company could have prepared for Harvey, the chemical safety board concluded, and even though Hurricane Rita (2005) and Hurricane Ike (2008) had made landfall closer to Arkema’s plant, they had not produced the same amount of flooding on the property. (pg. 86 report)
So Arkema was blindsided in summer 2018 when Ogg announced a grand jury had returned a felony air pollution indictment against Arkema Inc., its CEO Richard Rowe and plant manager Leslie Comardelle.
That was followed by a felony assault indictment in April 2019, against Arkema and its now-retired vice president of logistics, Michael Keough.
Arkema’s defense team says the prosecution makes no sense because Arkema officials did everything right.
They kept emergency responders in the loop about conditions at the plant, even telling them they should wear protective equipment because they may be exposed to hazardous fumes.
The trial started in late February and was postponed in early March due to the coronavirus pandemic.
Jurors returned to the case Thursday and learned the DA’s office had dismissed the assault charges after Ogg’s Environmental Crimes Division Chief, Alex Forrest, decided he could not prove them beyond a reasonable doubt.
After the dismissals, Keough’s attorney Dan Cogdell told reporters the state’s theory was Keough had committed reckless assault against two sheriff’s deputies who suffered lung damage from the incident, by making misrepresentations about Arkema’s ability to monitor the chemicals on conference calls with unified command while Keough was at the company headquarters in Pennsylvania.
“Theory was you can commit assault by not providing info…It’s dumber than a bucket of hair,” Cogdell said.
Given the long break, Belinda Hill, a senior judge presiding over the case by special assignment, let both sides Thursday summarize previous testimony to refresh jurors’ memories.
Though Forrest is overseeing the prosecution, Ogg tapped two civil attorneys, Michael Doyle and Grant Harvey, to present the case.
Doyle told jurors Thursday that despite the fact organic peroxides are so volatile they are classified as potential weapons of mass destruction, Arkema officials had made up their minds they were never going to move the chemicals out of a storm’s path.
They were going to keep them on site, Doyle said, just as they had done through dozens of tropical storms and hurricanes that hit the Houston area going back decades.
Arkema attorney Letitia Quinones, of Quinones & Associates PLLC, said its employees had assumed Harvey would not be a problem as meteorologists were predicting on Aug. 26 it would produce 10 to 15 inches of rain over five days.
So it was not worth it for Arkema to truck the more than 300,000 pounds of organic peroxides at the plant away from it, she said.
Besides, Quinones said, Arkema employees thought it was safer to keep the chemicals at the plant then take them out in trucks that could get stranded on flooded freeways where they would essentially become ticking time bombs.
But Harvey dumped 20 inches of rain over the next 24 hours, and the water rose to the level of stop signs at Arkema’s plant, Quinones said.
“These allegations Arkema was criminally reckless for leaving chemicals on site rather than moving them are ridiculous,” she continued. “It is much safer leaving them on site based on history, through 20 storms Arkema never had an issue with them. But there had never been a 5,000-to-20,000-year storm.”
She said no one at Arkema knew law enforcement was in the evacuation zone when the chemicals caught fire.
The state’s reckless emissions case centers on Harris County sheriff’s lieutenant David Klozik, who Doyle said suffered permanent lung injuries when he drove his patrol car through a gray vapor cloud emitted from Arkema’s plant.
But Quinones said Klozik’s boss was to blame for not being aware the evacuation zone had been set up.
Before the trial restarted, the defense asked Judge Hill to dismiss the remaining charges due to alleged prosecutorial misconduct.
They said Assistant DA Forrest had lied to a grand jury that AkzoNobel, the only other company in the Houston area that produces organic peroxides, had prepared for Hurricane Harvey by trucking all the organic peroxides from its plant to storage in upstate New York.
According to the defense, prosecutors recently revealed AkzoNobel had in fact kept more than 75% of the chemicals at its plant during Harvey because, like Arkema, it had decided it was safer to keep the chemicals on site.
Before she seated the jury Thursday, Hill said she would not dismiss the indictments because “appellate courts look at dismissals by the court as drastic and rare.”
She said she will issue a ruling soon on the prosecutorial misconduct allegations.
The proceedings, expected to last another two weeks, have been moved from the Harris County Criminal Courthouse to the NRG Center to accommodate social distancing. Journalists are not allowed to watch the trial live at NRG Center, but it is being shown via Zoom in two courtrooms at the courthouse.
Comardelle now manages an Arkema plant in Luling, Louisiana. He is represented by Houston attorneys Paul Nugent and Heather Peterson of Nugent & Peterson.
Arkema CEO Rowe is represented by Tim Johnson of Locke Lord LLP.
Arkema is represented by Quinones, Derek Hollingsworth and Rusty Hardin, a legend of the Houston defense bar who has represented numerous professional athletes.