Case Alleges Chemical Companies Should Prepare For Unprecedented Storms

Aug 30, 2018
Originally published on August 31, 2018 8:57 am
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ARI SHAPIRO, HOST:

During Hurricane Harvey last year, a chemical plant near Houston caught fire and burned for days. Now the company that owns the plant and two of its employees are facing criminal charges. As NPR's Rebecca Hersher reports, this case is raising big questions about who should be held responsible in the era of climate change.

REBECCA HERSHER, BYLINE: The plant made a type of chemical that bursts into flame if you don't keep it cold. When Hurricane Harvey arrived, thousands of pounds of these chemicals were sitting in refrigerated warehouses. As heavy rain kept falling and the water kept rising, employees were desperately moving this stuff from warehouse to warehouse. The generators flooded. The forklifts flooded. They were running out of options. There was this one crazy night where they were carrying individual jugs of highly flammable chemicals through chest-high water to get it to refrigerated trailers to keep it cool, but the water kept rising.

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UNIDENTIFIED PERSON: Welcome to the Hurricane Harvey conference call. At this time...

HERSHER: Five days after Harvey made landfall, Arkema's CEO, Richard Rowe, held a press conference with reporters. He said the trailers were flooding, the temperatures were rising and the chemicals could start burning at any moment.

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RICHARD ROWE: The materials could now explode and cause a subsequent intense fire. The high water that exists on the site and the lack of power leave us with no way to prevent it.

HERSHER: All of the trailers burned. At least 20 people said they got sick or hurt from the smoke and ash. There were multiple civil suits against the company. And that seemed like the end of it until a few weeks ago when the district attorney announced criminal charges against Rowe, the plant manager, who had been at the plant during the storm, and the company itself, which means they could go to prison.

KIM OGG: The charges are environmental. They are reckless emission of an air contaminant and endangerment of persons.

HERSHER: Kim Ogg is the Harris County district attorney. To her, it's clear that the fires happened because people at Arkema ignored the risk of flooding.

OGG: I support responsible companies. It's the conscious disregard that was shown by Arkema executives in this case that has led to their indictment.

HERSHER: She points out that the Arkema plant is in a flood plain, although it's never gotten anywhere near the amount of water it got last year. Still, she says, there were signs that flood risk was increasing before Harvey in part because of climate change.

OGG: We've had a new normal in Houston. We've had three 500-year floods in just a short period of time. And so it was a risk that was unjustifiable.

RUSTY HARDIN: Trying to find scapegoats and calling individuals felons - are you kidding me? This is outrageous. It's morally, legally, ethically wrong.

HERSHER: Rusty Hardin is the attorney representing the Arkema chemical company.

HARDIN: Arkema did everything they were supposed to do here.

HERSHER: What they were supposed to do under current regulations is have a hurricane preparedness plan and a broader emergency plan, both of which at least noted the risk of flooding. But following existing regulations may not be enough. A U.S. Chemical Safety Board investigation into what happened at Arkema found that there is little or no guidance for chemical companies to actually minimize the risk from floods. And companies may need clearer rules about, for example, storing volatile chemicals in flood plains during hurricane season. From Hardin's point of view, the conversation should be about regulations, not crimes.

HARDIN: I get really, really frustrated of people wanting to use the criminal justice system to respond to bad things that happen. Sometimes bad things happen that - there's no crime. There's no responsibility. It's not anyone's fault. We need to look forward to the future and make sure that we are prepared for these kinds of things if this is going to be the new norm, and many think it is.

HERSHER: Climate change is driving more big, wet, slow-moving storms like Harvey. Last year's disaster is a vision of the future. And in some ways, this case is testing whether the effects of climate change will play out, in part, in criminal court. Can companies and the people who work for them be held responsible, even sent to prison, if they fail to prepare for storms that are bigger than anything in the past? David Uhlmann is a law professor at the University of Michigan and the former top environmental prosecutor for the Department of Justice.

DAVID UHLMANN: Today already we expect companies to be prepared to handle what I might call ordinary rainfall. What climate change is going to do, among other things, is change our definition of what is ordinary rainfall.

HERSHER: As Harvey shows, the extraordinary is becoming more commonplace. And regulations and legal definitions may not be able to keep up.

UHLMANN: In a world where climate change is accelerating at rapid and terrifying speed, you know, we could say you need to be prepared for storms like Hurricane Harvey in the future. And if you fail to do so and something terrible happens, you could be held criminally responsible.

HERSHER: Whether that reasoning is already true will be tested by this case. Rebecca Hersher, NPR News, Houston.

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