Texas is a place where chemical companies tend to get away with, well, everything. Serious environmental spills usually warrant only a slap on the wrist, and accidents that lead to injury—even death—are often punished by fines that amount to mere pocket change for most companies.

So last August, environmentalists and industry types alike were shocked when a Harris County grand jury indicted chemical company Arkema North America, its CEO, Richard Rowe, and plant manager Leslie Comardelle for the “reckless” release of toxic chemicals at Arkema’s Crosby outpost during Hurricane Harvey.

“It doesn’t happen very often around here, but then, Kim Ogg is a different kind of district attorney than we’ve had before,” says longtime Houston environmental lawyer Jim Blackburn. “She’s making a point.”

While Arkema itself only faces fines of up to $1 million for allegedly violating the Texas Water Code, Rowe and Comardelle each could receive up to five years in prison. And the case, which is expected to go to trial during the first part of this year, could have massive implications.

“This is one of the first cases where a facility owner, operator, and its CEO are being personally held accountable,” says Tracy Hester, an environmental law professor at UH. “Certain things are an act of God. Getting struck by lightning is an act of God. But failing to put up a lightning rod is on you. The Harris County DA’s office seems to be saying that Arkema should have anticipated this happening and didn’t.”

Rusty Hardin, the famed Houston defense attorney representing the company, contends that no one should be blamed. “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,” he said in a statement shortly after the indictments were handed down, a stance echoed by Arkema and the American Chemistry Council.

Technically the Arkema facility was following all the rules when Harvey rolled in on August 25, 2017. The France-based company had met requirements for handling large quantities of organic peroxide—a highly volatile chemical that must be kept very cold to avoid instability and spontaneous combustion—including having backup generators in case the power went out, and fuel-tank-powered, refrigerated trailers in case the generators broke down.

But Arkema had failed to address a key problem: Its main power transformers, emergency generators, and backup system were all placed too low to the ground. As a result, each component flooded, according to a report issued by the federal Chemical Safety Board.

And so, over a period of days, the organic peroxide burned, spouting plumes of thick black smoke laced with acetone, nitrogen dioxide, carbon monoxide, and other chemicals, sickening more than two dozen first responders and residents in the area, according to multiple civil lawsuits. Ogg opened a criminal investigation within weeks of the explosions. “Companies should be on notice,” she stated at the time, “that we care when they pollute our air, our water, our environment.”

However the case plays out, a lot of people will be watching. “If the court rules these things are acts of God, that will take us one direction,” says Blackburn. “But if they rule the other way, companies will have to step up and take this seriously.”

Arkema’s Muddy History

  • 1960: Total, Arkema’s former parent company, purchases property in Crosby, about 30 miles southeast of Houston, and constructs a chemical plant over the next decade.
  • 1994: The facility floods during Hurricane Rosa.
  • 1996: A Harris County judge orders the plant to alert residents within a mile of the facility when possible dangers arise, two years after a 5-year-old girl is burned by a sulfuric acid release.
  • 2001: The facility floods during Tropical Storm Allison.
  • 2004: Total restructures its chemical business, creating Arkema.
  • 2007: FEMA’s new flood-insurance rate map shows that the entire Crosby site sits on a floodplain.
  • 2015: Arkema floods during an unnamed storm.
  • Sept. 2016: Arkema’s then-insurer, FM Global, warns about flood risks at the property.
  • Feb. 2017: The U.S. Occupational Safety and Health Administration fines Arkema $91,724 for violations regarding general safety and maintenance.
  • Aug. 24, 2017: Hurricane Harvey is projected to hit the Texas Gulf Coast.
  • Aug. 25: 2017: Arkema shuts down and prepares.
  • Aug. 28, 2017: The plant begins to flood and lose power. The ride-out crew starts moving organic peroxide to 9 refrigerated trailers on the property.
  • Aug. 29, 2017: Backup generators and fuel tanks powering the 9 trailers fail because of flooding, and the skeleton crew is evacuated. Local, state, and national law enforcement evacuate residents in the 1.5-mile radius surrounding the plant.
  • Aug. 31, 2017: The first container erupts into flames. Two more trailers catch fire in the following days.
  • Sept. 3, 2017: The HPD bomb squad does a controlled burn, destroying the remaining trailers.
  • Sept. 29, 2017: The Harris County DA’s Office opens a criminal investigation into the plant.
  • Aug. 3, 2018: A Harris County grand jury indicts Arkema North America, its CEO, and a facility manager for “reckless” release of toxic chemicals during Harvey.

Source: The Chemical Safety Board Report

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