- A large chemical producer harmed the health, environment, and property of the largely poor communities surrounding one of its manufacturing plants when it failed to prepare for the effects of Hurricane Harvey.
- Weak oversight of chemical facility safety has allowed the chemical industry to cut corners on safe production and storage practices, increasing the likelihood of catastrophes that put fenceline communities, which are often home to low-income residents and people of color, in danger.
- Residents and injured first responders have brought lawsuits seeking compensation for personal injuries and property damage. If successful, these suits could spur other chemical companies to improve safety measures at their plants.
Early in the morning of August 31, 2017, just a few days after Hurricane Harvey made landfall near Houston, a series of explosions rocked the Arkema chemical manufacturing plant, releasing a noxious cloud of smoke and gaseous chemicals into the surrounding fenceline communities. A few hours earlier, the storm’s heavy rainfall and ensuing floodwaters had knocked out the plant’s last backup generators, leaving it without any power to keep the highly volatile chemicals stored onsite safely stabilized. The deteriorating situation prompted company officials to abandon the plant and the local fire marshal to evacuate everyone within a 1.5-mile radius.
Police officers stationed along the perimeter of the evacuation zone were the first to be hit by the dangerous fumes. According to witness accounts, the officers doubled over and began vomiting and struggling to breathe. Emergency first responders soon arrived to assist the police officers there, and they, too, were immediately overcome by the smoke and chemical gases. In the end, more than a dozen police and first responders required medical treatment.[i] The industrial catastrophe at the Arkema chemical plant continued to play out in slow motion over the next several days. Plant employees set off a series of intentional explosions to get rid of the remaining volatile chemicals at the site, releasing still more smoke and gas into the air.
Air pollution was not the only problem. During the height of the storm, Hurricane Harvey’s floodwaters overran chemical wastewater tanks located at the Arkema plant, washing an estimated 23,000 pounds of contaminants into the surrounding communities.[ii] Later, water and soil testing at nearby homes found worrisome levels of several highly toxic chemicals, including volatile organic compounds, polycyclic aromatic hydrocarbons, dioxins, and furans.[iii] During the recovery efforts in the weeks after the storm, residents of the areas bordering the plant began experiencing a wide variety of health issues, including rashes and other skin maladies, intense headaches, and persistent breathing problems.
The Arkema chemical plant is located in Crosby, Texas, one of the many communities that make up an industrial corridor that runs along the Houston Ship Channel east of the city’s downtown area. As compared to other parts of Houston, these communities are home to a greater share of people of color and people living at or below the poverty line.[iv] Such is the case in the fenceline neighborhoods bordering facilities like the Arkema chemical plant.[v]
|These communities are home to a greater share of people of color and people living at or below the poverty line.|
The storm and its aftermath exposed how poorly prepared many of the refineries, petrochemical plants, and other industrial facilities in the Houston area are for such events, despite the region’s long history with major hurricanes and tropical storms. A weak set of regulations implemented by the Environmental Protection Agency (EPA) imposed vague mandates on chemical facilities like the Arkema plant to develop plans aimed at averting such industrial catastrophes. While Arkema’s plan identified some of the potential hazards that a massive storm like Hurricane Harvey might bring, it failed to specify the actions the facility would actually take when faced with circumstances like high floodwaters or extended periods without power – even though the facility housed chemicals likely to explode in the absence of adequate refrigeration. The EPA had been working on a set of reforms that would modestly strengthen those planning mandates, but the Trump administration squelched those efforts just a few months before Hurricane Harvey struck.[vi]
Prior to the Hurricane Harvey catastrophe, the Arkema plant had already built up a troubling safety record. In the months leading up to the storm, federal and Texas regulators had taken several enforcement actions against the facility for various regulatory violations.[vii] Despite this history of noncompliance, regulatory oversight of the facility was uneven; records reveal that the EPA last inspected Arkema plant for compliance with applicable chemical facility safety standards in 2003, 14 years before the hurricane-triggered explosions.[viii]
In the months following the Arkema plant disaster, a group of police and other first responders injured by the first series of explosions, along with several nearby homeowners, joined a lawsuit in Texas state court against the company. The suit claims that Arkema should have known about the risks a massive hurricane posed to its operations and taken adequate precautions to address those risks, including measures to properly secure its stock of volatile chemicals and to protect critical equipment, such as backup power supplies, against damage from floodwaters. It also claims that the 1.5-mile evacuation zone was insufficient to protect the surrounding area and that the company misled them and the residents of the fenceline communities about the potential health hazards posed by the chemicals released in the explosions.[ix]
The police and other first responders are seeking compensation for their medical costs and other losses caused by Arkema’s chemical leak. For their part, the homeowners claimed that the chemical releases damaged their property and that they and their families suffered personal injuries in the form of various health ailments after returning to their homes following the rescission of the evacuation order.[x] The case is still pending.
Separately, another group of fenceline residents initiated a class action lawsuit against the company in federal court.[xi] Similar to the state lawsuit, the second group of plaintiffs raised claims of personal injury, failure to warn, and property damage arising from the explosion at the Arkema plant and the release of toxic chemicals from the facility’s wastewater tanks. Their case also remains pending.
Many of the key themes related to the role of civil litigation in promoting economic fairness are on display in this case as well. First, the class action lawsuits arose from a deliberate refusal by a multinational chemical manufacturer worth billions of dollars to take even the most basic of precautions to ensure that the highly dangerous chemicals it used and produced were safely stored. Even when faced with the realistic prospects of a historic hurricane, Arkema chose to protect its bottom line by failing to properly safeguard surrounding communities from the risks caused by its business activities.
Second, inadequate regulatory oversight of chemical storage and worker safety helped to create conditions in which companies like Arkema felt free to disregard the safety of these communities.
Third, if the pending state and federal lawsuits are successful, they will help promote economic fairness for the many victims of the Arkema plant disaster by compensating them for their injuries and by providing much-needed deterrence against reckless chemical storage practices that pervade the industry. The compensation would be an important source of strength and opportunity to the residents of the fenceline communities next to the Arkema plant. A disproportionately large number of these residents are poor or persons of color. Left uncompensated, the personal injuries and property damage they suffered might serve to reinforce existing causes of social and economic inequality. Instead, provided that they function effectively in this case, civil courts can help these individuals by restoring them as closely as possible to the position they were in prior to being harmed. In this way, civil litigation would promote equality and fairness for the victims of the Arkema plant disaster by helping to ensure that injuries do not end up denying them a chance to achieve their full potential.
In addition, civil litigation offers the only real mechanism for deterring reckless chemical storage practices. It is unlikely that agencies like the EPA or the Occupational Safety and Health Administration (OSHA) will address the hazards associated with the chemical manufacturing industry during the Trump administration. If the lawsuits result in sufficient damage awards for the first responders and residents, however, at least some chemical companies might be compelled to better plan for foreseeable risks.
[i] Brady Dennis & Steve Mufson, In Scathing Lawsuit, First Responders Describe Vomiting, Gasping at Texas Chemical Plant Fire, Wash. Post, Sept. 7, 2017, https://www.washingtonpost.com/news/energy-environment/wp/2017/09/07/in-scathing-lawsuit-first-responders-describe-vomiting-gasping-at-texas-chemical-plant-fire/?utm_term=.076c4889389c (last visited July 11, 2018).
[ii] Dianna Wrap, Arkema Released Thousands of Pounds of Chemicals in Air and Water, New Lawsuit Says, Houston Press, Oct. 5, 2017, http://www.houstonpress.com/news/arkema-residents-say-they-were-hit-by-chemical-releases-in-both-air-and-water-during-hurricane-harvey-9847626 (last visited July 11, 2018).
[iii] Ada Carr, Texas Residents Sue Chemical Plant That Flooded, Exploded During Harvey After Tests Find Toxic Chemicals, Weather Channel, Oct. 4, 2017, https://weather.com/news/news/arkema-inc-flooding-explosion-lawsuit-crosby-texas-residents-hurricane-harvey (last visited July 11, 2018).
[iv] Jordan Blum, Harvey Exposes Another Gap Between Rich and Poor, Houston Chron., Jan. 5, 2018, https://www.houstonchronicle.com/business/energy/article/Harvey-exposed-another-gap-between-rich-and-poor-12475880.php (last visited July 11, 2018).
[v] Andrew Buncombe, Hurricane Harvey Was a Natural Disaster, But a Man-Made Catastrophe That Will Hurt the Poor the Most, Independent, Sept. 3, 2017, http://www.independent.co.uk/news/world/americas/harvey-texas-houston-impact-poor-natural-disaster-man-made-catastrophe-environmental-justice-a7926261.html (last visited July 11, 2018).
[vi] Ben Lefebvre & Alex Guillén, Houston Left with a Toxic Mess as Trump Relaxes Rules, Politico, Aug. 31, 2017, https://www.politico.com/story/2017/08/31/toxic-hurricane-harvey-chemicals-242237 (last visited July 11, 2018).
[vii] Steven Mufson, Brady Dennis, & Joel Achenbach, In Texas Chemical-Plant Fire, Failure of Backup Measures Raises New Fears, Wash. Post, Sept. 1, 2017, https://www.washingtonpost.com/business/economy/in-texas-chemical-plant-fire-failure-of-backup-measures-raises-new-fears/2017/08/31/91c91098-8e7a-11e7-8df5-c2e5cf46c1e2_story.html?utm_term=.c31a19243093 (last visited July 11, 2018).
[viii] Sam Pearson, EPA Last Inspected Flooded Arkema Plant in 2003, Bloomberg BNA, Sept. 6, 2017, https://www.bna.com/epa-last-inspected-n73014464222/ (last visited July 11, 2018).
[ix] Dennis & Mufson, supra note 47.
[x] Emma Platoff, Homeowners Join Lawsuit Against Crosby Chemical Plant That Burned After Hurricane Harvey, Texas Trib., Sept. 20, 2017, https://www.texastribune.org/2017/09/20/homeowners-join-lawsuit-against-chemical-plant-fire/ (last visited July 11, 2018).
[xi] Stephanie Kuzydym & Scott Noll, Crosby Residents File Second Lawsuit Against Arkema Following Crosby Plant Explosion, KHOU11, Oct. 3, 2017, http://www.khou.com/article/news/local/crosby-residents-file-second-lawsuit-against-arkema-following-crosby-plant-explosion/480592060 (last visited July 11, 2018).