On August, 3, 2018, a grand jury in Harris County, Texas indicted the French chemical company Arkema, including its CEO Richard Rowe and plant manager Leslie Comardelle, for reckless emission of an air contaminant under the Texas Water Code. See TX Water Code §7.182. The charge carries a penalty of up to five years in prison for the individuals, and a fine of up to $1 million for the corporation.

The Arkema facility in Crosby, Texas was flooded during the historic rainfall brought on by Hurricane Harvey, a Category 4 hurricane, which made landfall in southern Texas on August 25, 2017. The multiple day deluge caused the plant to lose power and backup power, and disabled the plant's refrigeration system. Organic peroxides lost critical refrigeration and eventually decomposed, sparking multiple fires and explosions, and resulting in the evacuation of approximately 200 people. Twenty-one people, including rescue personnel, were treated for injuries due to chemical exposure.

The U.S. Chemical Safety Board ("CSB") conducted an investigation following the incident, and published a report, available here. The agency noted that Arkema's insurer identified flood risks to the Crosby facility based on a 2007 floodplain map, which placed the facility in the 100-year and 500-year floodplain. The CSB observed that this information was not widely known at the facility and that current regulations do not explicitly require this information to be compiled and maintained as part of the facility's process safety information. The CSB was also critical of the hazard analyses conducted by Arkema, which did not appropriately consider the fact that the plant's safeguards all shared loss of power as common failure mode. The report suggested that because protection layers were not sufficiently independent, the site was not protected against peroxide decomposition. The CSB did acknowledge, however, that even if Arkema had fully appreciated the flooding risk, industry standards would not have provided sufficient or actionable flood prevention guidance. The CSB was also critical of Harris County's emergency response efforts, and recommended that the county's emergency operations training and protocols be updated "to help ensure that personnel enforcing evacuation perimeters are not harmed by exposure to hazardous chemical releases."

According to the Harris County District Attorney's Office, the disaster could and should have been prevented. "As the hurricane approached, Arkema was more concerned about production and profit than people," said Alexander Forrest, chief of the Environmental Crimes Division at the Harris County District Attorney's Office. The company  has called the indictment "outrageous," noting that the county Flood Control District reported the volume and duration of rain that fell in the area around the chemical plant had a probability of occurring once every 5,000 to 20,000 years. "It is hard to believe anyone would seek to criminalize the way in which one facility was impacted by such a crushing natural disaster," the statement said. Further, the American Chemistry Council called the charges alarming and unreasonable.

The Arkema indictment continues a long running trend of the criminalization of major industrial incidents. It also underscores the importance of considering as part of process hazard analyses ("PHA") the potential for natural disasters, including storm events and associated flooding, to serve as initiating events for process safety incidents. Employers should also adequately consider the potential for the loss of electrical power because of a storm or other cause. Such planning is especially urgent along the U.S. Gulf Coast as the area is again in the midst of Hurricane Season