NEW ORLEANS (CN) — Arguing before a Fifth Circuit panel Thursday, an attorney for a chemical manufacturer challenged the approval of class certification for 20,000 landowners within a 7-mile radius of the company’s Houston-area plant, which caught fire and exploded in the wake of Hurricane Harvey.
Arkema Inc. attorney Evan Mark Tager, who argued via teleconference before the three-judge panel, said that because the 2017 hurricane was a “2,000-year storm,” the company could not have possibly anticipated its facility would experience a chemical spill and explode. He also said the plaintiffs should not have been granted class-action status because their damages are too varied one plaintiff to the next.
According to the landowners’ lawsuit filed in Houston federal court, officials from Arkema called Harris County Emergency Services in the early morning hours of Aug. 29, 2017, to request that Highway 90 be shut down due to a chemical release into floodwaters across the highway, after Hurricane Harvey made landfall and soaked Houston with a record amount of rain.
Arkema’s plant in the Houston suburb of Crosby produces liquid organic peroxides that are used primarily in the production of resins, PVC, polyester-reinforced fiberglass and other products, according to its website.
By midday that day, National Guard troops were evacuating residents from a 1.5-mile exclusion zone around Arkema’s facility, according to the lawsuit. Residents were not told there had been a chemical spill, only that the chemical plant would likely explode.
Between Aug. 31 and Sept. 3, 2017, a series of explosions did occur, culminating with “the allegedly controlled ignition of six refrigerated trucks reportedly containing plastic containers filled with organic peroxide,” which is highly flammable, the complaint states.
The explosions resulted in thick, rolling plumes of toxic smoke that mixed in the wind to form rain ash, dust and particulate matter that fell throughout the area, according to the lawsuit.
Testing revealed four families of toxins in ash, soil and dust samples taken from the plaintiffs’ properties, all of which correlate to the toxins present in Arkema’s Luperox product line, the landowners claim.
U.S District Judge Keith Ellison noted in his June 2019 order granting class certification that “the costs of bringing an action like this are truly monumental.”
“This case involves huge expert fees, complicated organization and planning, and numerous attorney hours. The court finds that class resolution is a superior method of resolving this case,” the Bill Clinton appointee wrote.
On Thursday, the plaintiffs’ attorney Samuel Issacharoff pushed back on Arkema’s argument that it could not have foreseen the disaster.
“Incidentally, there have been three 2,000-year flood events in Houston in the last three years,” Issacharoff told the Fifth Circuit panel.
“So the question is, did [Arkema] do the right thing?” the attorney asked.
Issacharoff later reiterated his point, saying “every other chemical plant in east Texas shut down in anticipation of this storm.”
Tager, arguing for Arkema, said the “vast majority of samples taken” from the plaintiffs’ properties did not contain contaminants. He also said the contaminants that were found on some properties are those that are “ubiquitous in the area,” and argued the district court ignored this point.
U.S. Circuit Judge Jennifer Walker Elrod, appointed by George W. Bush, asked Tager, “Is your position only that this biased sampling method, as you called it, is that this case is fatally flawed? Or is it that any case is fatally flawed?”
Tager’s reply seemed to imply part of the flaw is the invisibility of the chemicals spilled from Arkema’s plant. He contrasted the situation with an oil spill litigated in the Fifth Circuit, from Murphy Oil in Louisiana following Hurricane Katrina, “where you have a visible substance like oil and it washes up on peoples’ properties and you can see it.”
“Classic pollution cases,” said U.S. Circuit Judge Catharina Haynes, also an appointee of George W. Bush.
“Isn’t there a fear that Arkema can get away with anything if they can get away without class certification?” Haynes asked later.
“Arkema has been here a long time, and they pride themselves on being a good neighbor,” Tager replied, adding the company is quick to inspect when someone calls and says their property has been damaged.
Arkema, a subsidiary of a French chemical manufacturer, did not respond Thursday to an email request for comment.
Senior U.S. Circuit Judge Patrick E. Higginbotham, an appointee of Ronald Reagan, also sat on the panel. The judges did not indicate when or how they will decide on the matter.
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