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.