A grand jury has indicted Arkema as well as one of its executives for causing bodily injury to two sheriffs’ deputies, a felony offense. 

Harris County District Attorney Kim Ogg indicted the plant and the executive, identified as Arkema’s Vice President of Logistics Mike Keough, because critical information was withheld from first responders needed to protect themselves and the community from chemicals released from the company’s Crosby Plant, according to a statement released Wednesday.

“The facts show Arkema knew of the dangers, withheld vital information, and unleashed harm on first responders and the community,” Ogg said. “This felony indictment is a wake-up call to companies that would pollute our air and waterways, ignore best practices in safety, and put our communities at risk.”

According to the grand jury’ indictment, Arkema and Keough misrepresented the danger faced by the community outside their gates, leading to the injury of two deputies.

In August 2017, a fire broke out the Crosby Arkema plant after Hurricane Harvey struck the area. In the days leading up to the incident, an unprecedented amount of rain fell at the plant due to the hurricane, causing equipment to flood and fail. As a result, chemicals stored at the plant decomposed and burned, releasing fumes and smoke into the air. 

In Ogg’s statement, she said Arkema told emergency personnel the company was keeping track of its chemicals with off-site, real-time monitoring and would notify emergency personnel before they would be at risk of exposure to toxic chemicals from its plant. 

“The evidence shows that while reassuring emergency personnel several of the chemical containers were completely unmonitored,” Ogg said in the statement. 

Deputies were able to capture a toxic cloud on dash-cam video. Then, the deputies and EMT personnel were exposed to the toxins. They were then ordered to report to San Jacinto Methodist Hospital for decontamination.

The felony assault charges carry a punishment of two to 10 years as a third-degree felony.

Rusty Hardin, an attorney representing Arkema, released his own statement.

“Harris County prosecutors are doubling down on an unprecedented and outrageous attempt to criminalize a natural disaster,” Hardin said. “They have filed more charges trying to prosecute a company for the act of God that was Hurricane Harvey. We can only conclude that with a May trial date looming, prosecutors realize they can’t prove the previous charges and are grasping at straws. This is a political prosecution in search of a theory.” 

Hardin said many citizens, businesses, including Harris County courthouses, have yet to recover from Hurricane Harvey.

“Yet the DA’s office persists in trying to place criminal blame on Arkema and its employees despite their remarkable and heroic efforts amid the six feet of water no one predicted,” Hardin said. “The Harris County Flood Control District concluded that in the area of Arkema’s Crosby plant, Harvey was a 5,000- to a 20,000-year rainfall event. That our county prosecutor persists in desperately seeking a way to criminally blame a company for the ravages of this storm should give us all pause. Arkema stands by its employees and will fight this unwarranted political action.”

Dan Cogdell, a lawyer representing Keough, referred to the indictment as “absurd.”  

“Mike was in Pennsylvania during Hurricane Harvey, and he gathered the correct list of chemicals from our team and sent it to the command center on the scene,” Cogdell said. “Mike provided needed safety information hours before the first fire occurred that, if followed, would have enhanced the safety of emergency responders. He communicated with the Unified Command to provide them with the best information possible to allow the best and safest decisions to be made. He did all of those things in large part to assist and protect the very people he is now charged with ‘recklessly assaulting.’ It is absolutely beyond rational thought that he is charged at this late date with assault.”

Cogdell said there has never been a prosecution like this.

“It is for one for one singular reason - what Mike did wasn’t a crime,” Cogdell said. “Arkema and its employees had a crisis plan for a 500-year-storm, but no one had a plan for the 5,000-year or worse storm that hit the company in Crosby. Every major Harris County official recognized this during the historic nature of the flooding and its aftermath. The flooding that occurred at Arkema and across Harris County was unforeseeable. To blame someone for correctly doing his job so the DA can look tough or chase political favor turns our system of justice on its head.

Quite simply, I am appalled that the DA’s office has chosen this path of charging Mike. It’s wrong, it’s legally and factually unsound, and we look forward to immediately clearing his name in a jury trial as soon as possible.”

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