On August 3, 2018 a Houston, TX grand jury returned
indictments against Richard P. Rowe, Leslie Comardelle, and Arkema, Inc for the
chemical
releases that occurred as a result of the flooding from Hurricane
Harvey. While there have been news reports about the indictments (see
here,
here,
and
here
for example) I have held off commenting on the situation because I did not have
access to copies of the indictments. A long-time reader has provided me a copy
(without links, unfortunately) of the indictments, so here goes.
The Indictments
Each of the indictments includes four counts of:
“… failing to remove temperature
sensitive organic peroxides from the Arkema facility located at 18000 Crosby
Eastgate Road, Crosby, TX before the arrival of rainfall and / or flooding
associated with Hurricane Harvey, recklessly caused the emission of an air
contaminant, namely organic peroxides and / or byproducts of organic peroxides
and / or petroleum distillates and / or soot and / or particulate matter on or
about August 31st, 2017 thereby placing name in imminent danger of death or serious bodily injury,
and said release was not in strict compliance with Chapter 382 of the Health
and Safety Code, or a permit, variance or order issued by the Texas Commission
on Environmental Quality.”
The four counts differed only by the names listed. Those
names are:
• David Klosik (count #1);
• Shannon Wheeler (count #2);
• Christy Graves (count #3); and
• Steve Schreiber (count #4)
The Chemical Safety Board’s “Arkema Inc. Chemical Plant
Final Investigation Report” notes (pgs 59-60) that on August 31st,
five police officers and two emergency medical technicians were exposed to a
black-smoke cloud as they drove down Highway 90 outside of the Arkema Plant.
This section of road was well within the 1.5-mile evacuation zone around the
plant established on August 29th. This route remained open to
emergency response personnel because it was the only available route traversing
the area that was not flooded. It was closed after the five police officers
were exposed. Presumably, the four victims named in the indictments came from
this pool of seven people.
The Law
The law cited in the indictments is
Chapter 382
of the Texas Health and Safety Code, also known as the Texas Clean Air Act.
While the indictment does not specify the section of the chapter that was
violated by the three defendants, it would appear that it was
§382.085, Unauthorized
Emissions Prohibited. That section states in part: “a person may not cause,
suffer, allow, or permit the emission of any air contaminant or the performance
of any activity that causes or contributes to, or that will cause or contribute
to, air pollution” {
§382.085(a)}.
Typically, the Texas Commission on Environmental Quality
(TCEQ) enforces the provisions of Chapter 382. The TCEQ has established
provisions for enforcement of environmental rules under
Title
30, Chapter 70 of the Texas Administrative Code. Two provisions of
that chapter are probably specifically applicable to this case,
§70.7 (
Force
Majeure) and §70.206 (Factors Considered in the Criminal Enforcement
Review Process).
Section 70.7 provides that:
“If a person can establish that an event that would otherwise be a violation of
a statute, rule, order, or permit was caused solely by an act of God, war,
strike, riot, or other catastrophe, the event is not a violation of that
statute, rule, order, or permit”.
Section 70.206(a) sets
forth the considerations that the TCEQ will include when determining whether or
not a criminal enforcement action is necessary. The most pertinent one for this
case would probably be §70.206(a)(2)(B); “the degree of culpability, including
whether the violation was attributable to mechanical or electrical failures and
whether the violation could have been reasonably anticipated and avoided”.
Arkema Preventive
Activities
The CSB final report on the Arkema incident lays out in some
detail the activities that Arkema undertook to prevent this incident, both in
their process safety planning process and in their response to Harvey (before
and during the storm). A full review of the process hazard assessment (PHA) of
for the organic peroxide storage is contained in Appendix C to the report.
The CSB reports reminds us that there is no requirement for
the conduct of a PHA for organic peroxides either under the OSHA Process Safety
Management program or the EPA Risk Management Plan program because neither
regulatory program addresses the chemical risks associated with reactive
chemicals like organic peroxides.
While the Report takes issue with the common failure mode
(flooding) of the protective measures put into place by Arkema to protect the
organic peroxide storage from high temperatures, the report does note that “even
if Arkema had applied this [the available flood protection] guidance before
Hurricane Harvey, the incident likely would not have been averted” (pg 88).
Commentary
It is interesting that the indictments specifically fault
Arkema for not “removing temperature sensitive organic peroxides” from the
facility before the “arrival of rainfall and / or flooding” and not for having
inadequate protective measures in place to prevent the overheating and
subsequent fires that were seen at the facility. While removing the material
from the facility would certainly have prevented this incident, the CSB report
notes (pgs 86-7) that three previous hurricanes {Rosa (1994), Rita (2005) and
Ike (2008)} that hit the facility did not have any effect on the storage of
organic peroxides at the facility even though Rosa and a non-tropical storm in
2015 produced significant flooding at the site.
What concerns me most about these indictments is that the
four counts each rely on the injuries to personnel who were operating within
the evacuation zone at the orders of public officials. While I may agree that
the maintenance of the Highway 90 route was of significant importance to public
safety officials, requiring personnel to navigate that route without providing
them with adequate personal protective equipment (PPE) when there was a
distinct probability of a predicted exposure to organic peroxides and their
combustion products was really the proximate cause of the injuries to these
personnel. Responsibility for the exposure of these personnel does not rest
with Arkema, it rests on the head of the public servants who failed to provide
these individuals with the appropriate PPE and the training in its use before
sending them into a probable exposure situation.
This is not an uncommon situation. Law enforcement personnel
are routinely called to enter potential contamination zones to make
notifications for evacuations and shelter-in-place during chemical release
incidents. And almost as routinely they are injured by exposures to those
releases because they have not been provided either chemical protective equipment
nor detection equipment to identify and avoid contaminated areas. In many
instances, and certainly in this case, the wearing of a filtered full-face respirator
[like those worn during the employment of riot control agents] would have
provided adequate protection of the personnel involved.
Furthermore, requiring law enforcement personnel to conduct
what was in essence a chemical detection patrol of the route near the Arkema
site without providing them with chemical detection equipment was a recipe for
disaster if subsequent equipment convoys were cleared to pass through the area
based upon a visual failure of detection of contamination.
The reckless action in this incident was not the failure to
remove the organic peroxides from the facility; Arkema made a series of decisions
based upon reasonable assumptions that ultimately failed due to the inadequacies
of those assumptions. That happens frequently with assumption. The reckless
behavior was the requiring of public safety personnel to enter an area of known
risk without providing them with reasonable and readily available protections
against that risk. The wrong people have been indicted.
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