A Harris County, TX, grand jury has indicted Arkema North America, CEO Richard Rowe and plant manager Leslie Comardelle after concluding they were responsible for the release of a toxic cloud from the chemical facility northeast of Houston after Hurricane Harvey came ashore last summer.

The Crosby plant and the two executives were responsible for “recklessly” releasing chemicals into the air, placing residents and first responders at risk of serious bodily injury, the indictment said. The charge carries penalties for Rowe and Comardelle of up to five years in prison and up to a $1 million fine for the corporation.

In Harvey’s wake, the facility north of Houston notified the Harris County Emergency Operations Center on Aug. 31, 2017 to report two small explosions and black smoke. Because of the impending emergency, local officials already had evacuated residents from an area 1.5 miles from the plant, which lost its primary power and two sources of emergency backup power with the flooding.

Some of Arkema’s organic peroxides products burn if not stored at low temperature, company officials had said. Organic peroxides are extremely flammable, and Arkema officials had said the best course of action was to let the fire burn itself out.

The plant, in a rural area, employed 57 people at the time of the incident. No hospitals, schools, correctional facilities, recreational areas or industrial/commercial areas are in the vicinity. “The plant has never experienced flooding of this magnitude before,” plant officials said last year.

The U.S. Chemical Safety Board (CSB) in May issued a final investigation report about the incident at the plant, which is about 25 miles northeast of Houston.

In the days leading up to the incident, an unprecedented amount of rain fell, which caused Arkema equipment to flood and fail. As a result, chemicals stored at the plant decomposed and burned, releasing fumes and smoke into the air.

“Companies don’t make decisions, people do,” said Harris County District Attorney (DA) Kim Ogg. “Responsibility for pursuing profit over the health of innocent people rests with the leadership of Arkema. Indictments against corporations are rare. Those who poison our environment will be prosecuted when the evidence justifies it.”

Chemicals had to be kept frozen to avoid bursting into flames, but temperatures rose after floodwaters knocked out the plant’s power, according to the CSB. As a result, the chemicals
exploded, causing a fire that resulted in a toxic cloud.

Prosecutors allege the disaster could and should have been prevented.

The Harris County Sheriff’s Office, the Houston Police Department’s Environmental Investigations Unit and the Harris County District Attorney’s Office Environmental Crimes Division contributed to the investigation.

“As the hurricane approached, Arkema was more concerned about production
and profit than people,” said Harris County DA Office’s Alexander Forrest, chief of the Environmental Crimes Division.

“These criminal charges are astonishing, especially since the U.S. Chemical Safety Board concluded that Arkema behaved responsibly,” said Arkema officials in response to the indictments. “At the end of its eight-month investigation, the Chemical Safety Board noted that Hurricane Harvey was the most significant rainfall event in U.S. history, an Act of God that never before has been seen in this country.”

The company noted that the CSB had found that the Crosby site had “plans, procedures and multiple contingency measures to prevent loss of power and refrigeration, and was prepared for a 100-year and a 500-year flood.” The plant “met all requirements related to flood planning, and there simply are no requirements or guidance that would have been enough to prevent the incident in the face of such unexpected flooding.”

Arkema notified emergency responders “well in advance, warning them about potential hazards, sharing information about chemicals at the facility, and communicating with the public through many channels.” The Harris County Flood Control District “reported that the volume of rain that fell on the area around our plant had a probability of occurring only once every 5,000 to 20,000 years…

“With these findings, it is outrageous to assert that Arkema or any of its employees behaved criminally. No one needs a reminder that Hurricane Harvey devastated a wide region. It overcame the preparedness efforts of millions of individuals, and many, many companies and government agencies. It is hard to believe anyone would seek to criminalize the way in which one facility was impacted by such a crushing natural disaster.”

Employees at the facility “performed heroically before and during Hurricane Harvey,” said the company. “We stand by these employees, who like so many others in Harris County are still working hard to recover from Harvey and get back to normal life. We will fight with great determination against this unwarranted action against our company and its leaders.”

Attorney Rusty Hardin, who is representing Arkema, said there had “never been an indictment like this in Texas or any other state. The DA’s office has no legal precedent in Texas courts and there are no cases on point. And they chose to use this unprecedented charge for a tragedy in which the company and its employees were victims of an unforeseen and horrific event just like everyone else in Harris County. All the experts agreed this was an Act of God of biblical proportions, never before seen and never anticipated by anyone.”

Said Hardin, “It would set an ominous precedent if a company could be held criminally liable for impact suffered as a result of the historic flooding of Hurricane Harvey that no one, including Harris County itself, was prepared for. In any event, there’s no foundation for a criminal case against Arkema. Certainly, it would be hard to assert that the company was criminally unprepared, after U.S. government investigators concluded that Arkema’s Crosby site had redundant preparedness measures, and the capability to hold steady in the face of a 500-year flood.”

It’s difficult to imagine, said Hardin, that “any reasonable, objective person” could call the actions by Arkema and its staff criminal.

“Ultimately, in pursuing these charges against Arkema, Harris County will have the daunting task of trying to prove that Arkema anticipated the possibility of six feet of floodwater and then decided not to prepare for it. This will prove to be impossible, because it’s not what happened.” Federal investigators repeatedly said Arkema “did not believe such flooding was possible at its Crosby site. The report issued by those investigators shows very clearly that Arkema went to remarkable efforts to keep the site and community safe in the face of overwhelming flooding.”