Texas Chemical Plant Sued For Millions, First Responders Charge Gross Negligence

Seven first responders filed a lawsuit Thursday against a chemical company whose Houston-area facility exploded after Hurricane Harvey. The lawsuit against Arkema and three of the company’s executives is seeking over $1 million in monetary relief, and alleges that the company did not adequately warn law enforcement and public health agencies about hazardous materials at the chemical plant. Those allegations come after Arkema and its lobbying group, the American Chemistry Council, lobbied to kill a federal rule designed to require companies to better coordinate and inform first responders about the toxic compounds at chemical plants. The rule would have taken effect in March.

The EPA’s rule, which included a series of other safety provisions, was ultimately delayed to February 2019 by the Trump administration, with the support of top Texas Republican lawmakers — many of whom received large campaign donations from the chemical industry.

The suit filed in Harris County court asserts that after explosions at the Arkema’s Crosby plant emitted a cloud of gas, company officials “repeatedly denied that the chemicals were toxic or harmful in any manner to the people, and first responders, in the community.” Yet, the complaint says the fumes sickened the first responders, and charges Arkema with “gross negligence” and “malice.”

“Immediately upon being exposed to the fumes from the explosion, and one by one, the police officers and first responders began to fall ill in the middle of the road,” says the lawsuit, which was filed by members of local agencies including law enforcement and the fire department. “Calls for medics were made, but still no one from Arkema warned of the toxic fumes in the air. Emergency medical personnel arrived on scene, and even before exiting their vehicle, they became overcome by the fumes as well. The scene was nothing less than chaos. Police officers were doubled over vomiting, unable to breathe. Medical personnel, in their attempts to provide assistance to the officers, became overwhelmed and they too began to vomit and gasp for air.”

In a statement, Arkema said its employees did "everything they could to protect the public."

"We reject any suggestion that we failed to warn of the danger of breathing the smoke from the fires at our site, or that we ever misled anyone," the company said. "To the contrary, we pleaded with the public, for their own safety, to respect the 1.5 mile evaucation zone imposed by the unified command well prior to any fire. We will vigorously defend a lawsuit that we believe is gravely mistaken."

The American Chemistry Council, which counts Arkema as a member, said in a statement to IBT that “industry had significant concerns with many of the modifications because it was not clear that they would improve the safety and security of chemical facilities or neighboring communities.”

The first responders’ complaint concludes that the company did not properly store its chemicals, did not “have adequate procedures in place to protect the safety and welfare of the community in the event of a catastrophe” and failed “to provide the public and first responders accurate information on the chemicals at risk of exploding.”

Company Pushed To Block Rule Requiring More Information Sharing With First Responders

The allegations about information are particularly relevant to Arkema and its lobbying group’s successful effort to kill the EPA’s chemical plant safety rule, just months before the disaster in Texas.

Under that rule, which was originally proposed by the Obama administration in 2013 in response to a deadly explosion at a West, Texas, fertilizer plant, owners of chemical plants would have had to increase coordination with local first responders. In particular, the rule stated companies would have to ensure that “local response organizations are aware of the regulated substances” at plants covered by EPA rules once a year.

Companies, like Arkema, operating plants covered by the laws would have also had to annually disclose to local emergency responders the amounts of the chemicals, the risks from the plant, and the “resources and capabilities at the facility to respond to an accidental release of a regulated substance.”

After several years of development, the EPA finalized the rule in January in the last days of the Obama administration, with final implementation of the rule scheduled for March 14. But after a petition from a coalition of chemical and fossil fuel companies, as well as years of lobbying, EPA administrator Scott Pruitt delayed implementation of the rule to June 2017, and then delayed implementation again until February 2019.

Plant operators would have had one year to implement parts of the rule that would have improved coordination with local emergency responders. It is unclear whether the first responders who filed the lawsuit Thursday would have had improved knowledge of the toxic chemicals they allege caused them physical injury. However, enactment of the rule would have prompted companies to begin the process of complying with its first responder provisions.

“Never Heeded The Warnings”

The Crosby facility has a history of safety violations. In 2006, the Texas Commission for Environmental Quality fined Arkema $3,950 for failing to appropriately store a pallet of organic peroxide, which led to a warehouse fire. In 2011, the company paid a $16,240 penalty for failing to maintain equipment at proper temperatures.

The new lawsuit against Arkema also raises questions about the company’s preparation for natural disasters, arguing that “Arkema, Inc. never heeded the warnings and ignored the foreseeable consequences of failing to prepare” for the kind of storms that regularly hit the Houston area. Indeed, a fter the explosions, Arkema Vice President Daryl Roberts claimed, “We’ve never experienced anything that would have given us any indication that we could have that much of water.” But in the company’s 2014 Risk Management Plan and a 2013 hazard analysis, Arkema identified concerns including “equipment failure; loss of cooling, heating, electricity; floods (flood plain); hurricane; other major failure identified: power failure or power surge.”

The company also warned its investors of the risk of chemical explosions in its 2016 annual report, warning that “facilities may be subject to risks of accidents, fires, explosions and pollution due to the very nature of their operations and to the level of hazard, toxicity or flammability of certain raw materials.”

One thing the company may have already prepared for: lawsuits from sickened first responders.

In its 2016 financial filings, the company declared that its operations may “present significant risks to the health or safety of neighboring communities and to the environment” -- and that the company “could be held liable following injury or damage to property or people, notably due to exposure to hazardous substances being used, produced or destroyed” at its facilities.

UPDATE 5:42 p.m. —This story was updated to include a statement from Arkema, sent by the company after the story was published.