Arkema Incident Indictments

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 31^st, 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 31^st, 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 29^th. 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.