Grand jury indicts Arkema for toxic cloud during Hurricane Harvey

CROSBY, Texas - A grand jury has indicted Arkema North America, a French-made major chemical manufacturer, along with its CEO and plant manager, prosecutors announced Friday.

The jury concluded Arkema was responsible for the release of a toxic cloud over the Crosby community during Hurricane Harvey.

Arkema North America, its CEO Richard Rowe, and plant manager Leslie Comardelle, are named in the indictment.

“Companies don’t make decisions, people do,” Harris County District Attorney Kim Ogg said. “Responsibility for pursuing profit over the health of innocent people rests with the leadership of Arkema.”

“Indictments against corporations are rare,” Ogg said.  “Those who poison our environment will be prosecuted when the evidence justifies it.”

The indictment charges they all had a role in “recklessly” releasing chemicals into the air, placing residents and first responders at risk of serious bodily injury.

The charge carries penalties of up to five years in prison for the persons and up to a $1 million fine for the corporation.

Statement by Arkema Inc.:

Today we were informed that a Harris County Grand Jury issued an indictment against Arkema Inc., Rich Rowe and Leslie Comardelle for events that took pace as a result of Hurricane Harvey.  These criminal charges are astonishing, especially since the U.S. Chemical Safety Board concluded that Arkema behaved responsibly. 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 Chemical Safety Board found:

• The Arkema 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.
• Arkema’s 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 was transparent, notifying 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.

It is also worth noting that 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.

Arkema employees in Crosby performed heroically before and during Hurricane Harvey.  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.

Statement by Rusty Hardin of Rusty Hardin & Associates, LLP:

There has 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.

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.  The Harris County Flood Control District has concluded that, in the area of Arkema’s Crosby plant, Harvey was a 5,000-year storm to a 20,000-year storm.   It was only when faced with the worst tropical rainfall event ever recorded in U.S. history  - one that overwhelmed an entire region - that the Arkema facility was overcome.  It’s hard to imagine any reasonable, objective person calling that 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.  In fact, federal investigators have said repeatedly that 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.