HOUSTON (CN) – A petrochemical company’s criminal trial over air pollutants released during Hurricane Harvey that sickened first responders was pushed back three days Monday when a state judge sanctioned prosecutors.
It’s a rare case in business-friendly Texas: Harris County prosecutors persuaded a grand jury to return a felony air pollution indictment against Arkema Inc., its CEO Richard Rowe and former plant manager Leslie Comardelle in summer 2018 for which the company could be fined $1 million, and Rowe and Comardelle could be sentenced to up to five years in prison.
That was followed by a felony assault indictment in April 2019, which carries a possible sentence of two to 10 years for Arkema’s now-retired vice president of logistics, Michael Keough, and a $10,000 fine for the company.
The charges stem from an incident in August 2017 when Hurricane Harvey flooded Arkema’s plant in the northeast Houston suburb of Crosby and knocked out power needed to cool volatile organic peroxides in warehouses where Arkema stored them.
The chemicals ignited after Arkema workers moved them to refrigerated trailers. The first batch went up in flames around 2 a.m. on Aug. 31.
The assault indictment mentions two Harris County sheriff’s deputies, Bryan Sweetman and David Klozik, who reportedly doubled over vomiting and struggling to breathe, and got bad headaches, after they were exposed to the fumes.They were two of 21 emergency responders briefly hospitalized from the chemical exposure.
Prosecutors claim in their assault charging documents that Arkema and the indicted company officials “did … recklessly, by misrepresenting the danger of a chemical release associated with trailers storing temperature sensitive organic peroxides, cause bodily injury” to Sweetman and Klozik.
Besides the criminal case, Arkema is facing more than 20 lawsuits over the incident. And it was in a Feb. 7 deposition for one of the lawsuits that a witness gave testimony proving the state’s basis for the prosecution “is a total lie,” Arkema’s defense attorney Rusty Hardin said in a sanctions hearing Monday morning.
As the disaster unfolded at the plant, authorities set up an incident command made up of law enforcement officers and employees of state and federal environmental agencies.
David Wade, industrial liaison for the Harris County’s office of emergency management, was part of that team and he listened in on every conference call Arkema officials had with incident command about the organic peroxides set to catch fire at the plant.
Prosecutors had planned to use Wade as a key witness but removed his name from the indictments, deeming him unreliable after he told Harris County Assistant DA Alexander Forrest in a September 2019 interview he could not recall what had happened at the Arkema plant.
But Wade told a totally different story when Arkema’s attorneys deposed him early this month. He said two days before the first peroxides ignited at the plant, Arkema employees had provided him and other unified command officers with information about the chemical makeup of the peroxides and advised them that first responders should wear protective gear, according to a defense motion.
Wade also testified in the deposition that Arkema officials told command officers at 5 p.m. on Aug. 30, 2017, that ignition of peroxides in two trailers at the plant was imminent and could occur within the next six to 12 hours.
After the chemicals in the first trailer combusted around 2 a.m. the next morning, Wade testified that he was not surprised given Arkema’s warning.
White smoke wafting from the plant that night sickened deputies Sweetman and Klozik, who had been exposed within a 1.5-mile perimeter authorities had set up around the plant to keep people out.
Wade said in his deposition he did not know the Harris County Sheriff’s Office had stationed deputies within the evacuation zone.
Arkema’s criminal defense team seized on Wade’s suddenly clear memory in their Feb. 14 motion, asking Harris County Judge Belinda Hill to sanction the prosecution for not disclosing evidence that could prove the defendant’s innocence.
“Based on Mr. Wade’s detailed, sworn deposition testimony, it is impossible to believe that Mr. Wade had not previously revealed some of the same information to the state,” the motion states.
Defense attorney Hardin, who has blasted Harris County prosecutors for “trying to criminalize a natural disaster,” said in court Monday that Wade’s deposition testimony is the “biggest silver bullet I’ve ever seen before a criminal trial” and he believes both indictments should be tossed out.
Judge Hill declined to dismiss the charges at Monday’s hearing, but she did agree with the defense that prosecutors had committed a so-called Brady violation by not pressing Wade on whether he had any evidence that could help Arkema’s defense when he said he could not remember the events surrounding the chemical meltdown at Arkema’s plant.
Opening arguments were set for Monday afternoon, but Hill rescheduled them to Thursday at 9 a.m. to give the defense time to review discovery documents the prosecution gave them on the eve of trial Sunday night.