Prosecutors improperly withheld evidence prior to opening arguments in a criminal trail accusing Arkema Inc. and its executives of recklessly misrepresenting the danger that a chemical release during Hurricane Harvey represented to emergency responders, a state district judge ruled Monday.
Judge Belinda Hill issued a three-day continuance before opening arguments. She also warned that further sanctions against the prosecution may be possible.
The defense charged that a one-time witness for the prosecution contradicted the state’s case on several key points during a recent deposition in a related civil trial. In that case David Wade, industrial liaison for the Harris County’s Office of Emergency Management, testified that:
● As early as Aug. 29, 2017, Arkema notified emergency responders that trailers containing organic peroxides on-site lacked refrigeration and one was floating in water, unable to be cooled.
● By 5 p.m. Aug. 30, Arkema shared with responders that the decomposition of products in certain trailers was imminent within the next six to 12 hours.
Prosecutors had earlier removed the witness’ name from its case when these and other contradictions became apparent, the defense charged. Judge Hill found that prosecutors improperly withheld evidence that might have benefited the defense’s case.
The Arkema chemical plant in Crosby manufactures organic peroxides used to produce consumer goods such as solid surface countertops and polystyrene cups and plates. Some of these organic peroxides must be kept below 32 degrees Fahrenheit to prevent them from igniting.
When extensive flooding caused by heavy rainfall from Hurricane Harvey caused the plant to lose all power to its low temperature warehouses workers moved 350,000 pounds of the volatile organic peroxides to refrigerated trailers. However, refrigeration in three of these trailers failed due to flooding.
Smoke from the burning trailers sickened two Harris County sheriff’s deputies on duty enforcing a 1.5-mile perimeter around the plant.
Arkema CEO Richard Rowe and former plant manager Leslie Comardelle, charged with felony air pollution, face up to five years in prison. Retired vice president of logistics Michael Keough is charged with felony assault carrying a sentence of two to 10 years.
The charge of felony assault against Arkema carries a fine of up to $10,000.