“The district attorney could get a grand jury to indict a ham sandwich if he wanted to.” Judge Sol Wachtler
Arkema is a ham sandwich.
A year ago, in the aftermath of Hurricane Harvey and the flooding that followed, we got to watch trailers loaded with organic peroxide go up in flames and billowing clouds of black smoke. It was a television news director’s dream: dramatic footage, predicted in advance, even scheduled, so cameras could be in position and reporters could speak gravely about “toxic chemicals,” giving their viewing audience in the Houston area a place to focus their anger and frustration at being lashed by yet another hurricane.
Apparently, it was a district attorney’s dream as well. On September 29, 2017, less than a month after the fires at Arkema had burnt out and the community had returned home from their evacuation, Harris County District Attorney Kim Ogg’s office announced that Arkema was under criminal investigation. It should have been no surprise, then, when Kim Ogg’s office announced an indictment on August 3, 2018.
Arkema, a French company with extensive operations in North America, is a ham sandwich, with cheese, lettuce, tomatoes, mayo, and mustard—Dijon mustard.
Safety and the Law
Professionally, I care about making the world a safer place. Personally, I also care about the law, as any citizen should, but I’m no lawyer. As far as I can tell, the legal system is a game, more about winning and losing than about truth and justice. The rules are complex and arcane, and most of us can only hope that it’s a game we are not invited to play.
What the legal system does not do is make the world a safer place.
With its backwards-looking focus on blame, criminalizing the impact of Hurricane Harvey not make anyone safer. Instead, it will discourage companies from talking about how to prepare for the next hurricane. This indictment is encouraging other companies to redirect resources away from being safer and toward avoiding legal liability. Resources spent on lawyers are resources not spent on safety.
Depending on who you talk to, there are a few ways to fill in the blank in ____ corporation. “Big.” “Powerful.” If you were playing Family Feud, you would probably find “Evil” at the top of the list. But no matter how big, powerful, or evil someone may think corporations are, there is no corporation with the ability to control the weather.
Photo credit: from Austin Powers: International Man of Mystery, New Line Cinema, 1997
No one—not even the Harris County District Attorney’s Office—disputes Arkema’s claim that in its 57 years of operation it has never had an issue with flooding before the rains that came with Harvey. To insist that Arkema “should have known and planned accordingly” is to deny a fundamental principal of risk assessment: risk assessment consists of assessing the consequences of a hazard and of assessing how likely those consequence are. Arkema’s position as a corporation gave its employees no special powers to see into the future.
“Should Have Known”
All incident investigators are cautioned against hindsight bias: knowing the outcome in hindsight, assigning significance to events or decisions that didn’t seem especially significant at the time. It is important that any investigation consider what was understood at the time of the event or decision. There are three assertions being made in the reporting of the flooding event at Arkema that are only meaningful with the application of hindsight.
- The Chemical Safety Board (CSB) observed in its investigation of the Arkema flooding that Arkema’s insurance company noted that the facility was susceptible to flooding since it was in the 100-year flood plain, and by extension, in the 500-year flood plain. Yet, it didn’t make any recommendations or suggestions about what the Crosby plant should do to deal with the possibility of flooding. To say, in hindsight, that Arkema should have known that it was going to be five feet underwater within a year or two based on that report is not reasonable.
- The Houston ABC affiliate, KTRK-ABC13, quoted Mark Winger, the chief investigator, as saying “‘You really need to understand what your worst-case scenario is. Relying on the last 40 or 50 years of experience’ is not good enough with extreme weather.’” So, what “worst-case” scenario is good enough? The flooding at Arkema was 2 feet over the 500-year flood plain. The CSB quotes the National Oceanographic and Atmospheric Administration (NOAA) as estimating that the likelihood of the amount of rainfall associated with Harvey was less than one in a thousand years. Not that an one-off estimate was available to the hazard assessment team at Arkema or would be available to any other hazard assessment team considering with the whole portfolio of hazards at their plant.
- Then there is the statement from ABC13, scoffing at the idea that the amount of rainfall was unprecedented and unpredictable. They reported that “the record rainfall did not surprise meteorologists like ABC13’s Tim Heller, who had sounded the warning since at least Tuesday, August 23, predicting ‘crazy amounts of rainfall.’” Really? Crazy amounts? Would that be a metric crazy amount, or would those be English units of crazy amounts? What is anyone supposed to do with a statement like that, full of drama and devoid of information? Tim Heller made his prediction on August 23. Hurricane Harvey made landfall on August 24. After fighting the flooding for five days, the team at Arkema called for the evacuation of the community to a distance of 1.5 miles. To be of any use, a prediction that something bad is going to happen must be credible, actionable, and timely.
Much is going to be made of the Harris County District Attorney’s use of the term “reckless”. I understand that Kim Ogg’s office was compelled to do this if they want to make a case, because recklessness is a necessary element of criminal prosecutions for environmental crimes.
When I consider Arkema’s “recklessness,” this is what I notice. They installed back-up generators to account for the possibility of a power-outage. At the onset of the hurricane, they had moved their organic peroxides to refrigerated warehouses on higher ground. Later, when rising waters threatened the new locations, they moved those same chemicals to refrigerated box trailers. As the waters continued to rise, they warned local authorities of the impending explosions with plenty of time to implement an evacuation. Finally, as a last resort and in concert with local authorities, they conducted a controlled burn of the trailers.
It is hard for me to describe anything they did as reckless. That won’t be for me to decide, though, or even for the district attorney. That will be up to a jury.
The Impact on Safety
Regardless of the verdict, however, this indictment is already having a negative effect on safety. There is less willingness to discuss unlikely events during Process Hazards Analyses (PHAs), or to document the discussions that do occur. No one wants to leave a paper trail for a zealous prosecutor to follow, in case a hazardous event considered to be purely speculative actually comes to pass.
Worse, people are less willing to discuss mistakes. They don’t want to see their discussion and efforts to improve thing in the future taken as evidence of criminal behavior in the past.
Resources are being diverted to lawyers, whose role in “risk management” is to reduce legal risk, not process risk.
There is also discussion of not notifying authorities when something is going wrong. I’ve heard over and over that there were lots of incidents during and following Hurricane Harvey, many with more severe impacts than those at the Arkema plant in Crosby. The difference is that they didn’t happen in front of cameras accompanied by commentary from talking heads in New York and uninformed “experts” offering opinions.
Companies large and small all complain bitterly about how difficult it is to get local fire departments and other emergency responders to engage in discussions when the skies are blue and they are overwhelmed with budget cuts. Then, when the emergency is underway, these same emergency responders complain that “no one told them what the hazards were.”
Keep at It
I will be following the case in Harris County. I believe that even bringing the case is bad public policy, and that a guilty verdict will do nothing to make the world a safer place. Whether Arkema, Leslie Comardelle, the plant manager, and Richard Rowe, CEO of Arkema North America are exonerated or not, the legal system has already begun to exact its punishment.
There were 88 deaths because of Hurricane Harvey. None were because of the flooding and fires at the Arkema plant in Crosby. Estimates of the number of homes damaged or destroyed by Hurricane Harvey range, but 100,000 is commonly quoted. None were because of the flooding and fires at the Arkema plant in Crosby.
I encourage everyone to keep doing the best they can to identify hazards and to estimate the risk of those hazards—both in terms of consequences and in terms of likelihood. Then, without fear of the legal system looking over your shoulder, address the hazards with high risk with appropriate safeguards and layers of protection. Diverting resources to deal with low risk hazards because it is fashionable will divert resources away from other hazards that need the attention more.