HOUSTON (CN) — The criminal case against chemical maker Arkema over an August 2017 fire at its Houston-area plant that forced 200 residents to evacuate their homes ended Thursday when a judge found there was not enough evidence to find the company and its plant manager guilty.
Industrial accidents are a common occurrence for Houston’s petrochemical industry and lawsuits invariably follow.
But state criminal charges over such incidents were unheard of until Harris County District Attorney Kim Ogg announced in summer 2018 a grand jury had returned a felony air pollution indictment against Arkema Inc., a subsidiary of a French chemical company, as well as its CEO Richard Rowe and plant manager Leslie Comardelle.
Arkema was facing a $1 million fine and Rowe and Comardelle were looking at up to five years in prison if they were convicted.
But Belinda Hill, a senior judge specially assigned to the case, tossed the charges against Rowe on Wednesday, and did the same Thursday morning for Arkema and Comardelle. She dismissed the charges through a directed verdict, finding there was not sufficient evidence for a jury to reach a different conclusion.
Hurricane Harvey flooded Arkema’s plant in Crosby, a small town northeast of Houston, in late August 2017 and knocked out power to warehouses where the company stored organic peroxides, chemicals used to make plastic and rubber that must be kept cool or they will burst into flames.
Some of the chemicals caught fire after Arkema moved them to refrigerated trailers, forcing 205 residents to evacuate their homes, and sending 21 first responders to the hospital after they breathed in the fumes.
The prosecution claimed Arkema should have moved the chemicals out of the area ahead of the storm and it had no intention of doing so, no matter how much flooding Harvey caused at its plant.
Arkema’s defense, led by prominent Houston attorney Rusty Hardin, claimed Ogg was trying to criminalize an act of God.
They said no one could have prepared for Harvey, the worst storm in recorded U.S. history, and forecasts in the days before the storm stalled over Houston were predicting it would drop just 10 to 15 inches of rain over five days. But Harvey dumped 20 inches of rain within 24 hours, so much that a “ride-out crew” Arkema assigned to man the plant during the storm had to abandon their pickups and use a boat to get around the property.
Prosecutors claimed Arkema officials had not kept a unified command set up near the plant, made up of law enforcement, fire marshal’s office and state and federal environmental agents, updated about the status of the chemicals after they were moved to the trailers.
But Arkema cited numerous emails showing its officials had warned the first responders around 5 p.m. on Aug. 30 an explosion was imminent, and the chemicals could decompose and catch fire within six to 12 hours.
The chemicals caught fire around 2 a.m. the next day, after which Harris County sheriff’s deputies drove their patrol cars into a 1.5-mile evacuation zone first responders had set up to keep people away from the plant.
Harris County sheriff’s lieutenant David Klozik reportedly doubled over and vomited after breathing fumes from the fire and suffered permanent lung damage.
The reckless emission indictments said Arkema, Rowe and Comardelle had placed Klozik in imminent harm of death or serious bodily injury by choosing to keep the organic peroxides on site rather than remove them from the plant in the face of the impending hurricane.
But in tossing the charges, Judge Hill said from the bench evidence on the record did not support the indictments.
Arkema said it was pleased to see the end of the trial, which it believes should never have taken place.
“This trial sought to criminalize the impact of a natural disaster that Harris County itself was not prepared for,” company spokesman Janet Smith said in a statement.
She said Arkema had prepared for a 500-year flood at the plant, but Harvey was a 5,000-to-20,000-year rainfall event.
“Our plant employees went to heroic lengths to protect the public, and when flooding overwhelmed their every effort, we proactively notified emergency responders and the public, days before the first fire started,” Smith said.
“We communicated extensively with the unified command that coordinated emergency response,” she added, “and explicitly warned that emergency responders should wear respirators if they might be exposed to smoke from the fires. We cannot fathom why they did not do so, but it certainly was not for lack of warning.”
Arkema and its now-retired vice president of logistics, Michael Keough, had also been facing felony assault charges over the incident, but they were dismissed on Sept. 15 after the prosecution said they could not prove them beyond a reasonable doubt.
The trial started in late February. It went for a few weeks before it was postponed in March due to the pandemic. The proceedings picked back up in August with the defense making claims of prosecutorial misconduct against the state.
Judge Hill twice found the prosecution, led by the civil attorneys Michael Doyle and Grant Harvey, who Ogg assigned to the case, had committed misconduct.
The second time she offered to declare a mistrial without prejudice. But Arkema’s attorneys declined to accept it because it would have allowed the state to pursue the charges a second time.
The Harris County DA’s Office said it was disappointed the case did not make it to a jury verdict.
“Today’s ruling by a judge doesn’t change the fact that dangerous chemicals on Arkema property ignited and were belched in a cloud of toxic smoke over the surrounding communities, and a first responder there protecting people is now on a lung-transplant list,” spokesman Dane Schiller said in a statement.