Process Safety: Investigations and Prosecutions

“Rather than a prosecutor saying, ‘You have nothing to fear if you have done nothing,’ a more accurate portrayal would be ‘If I decide you have done nothing wrong, you have nothing to fear.’ ”  — Sidney Dekker

I hate it when a prosecutor, especially a politically ambitious prosecutor, decides that the best way to prevent process safety incidents in the future is to punish someone for a process safety incident that has already occurred in their jurisdiction. Preventing future incidents depends on understanding what happened in previous incidents and why. A prosecutor’s investigation is not about understanding what happened and why; it’s about collecting evidence that will allow the prosecutor to prove in a court of law that a crime was committed.

Not only does a prosecutor’s investigation not care about understanding, but their criminal investigation takes precedence over, and delays, the safety investigation, so those of us who do care about understanding don’t get to. Worse, a criminal investigation staunches the free flow of information from those who probably have the best information: the accused. After all, “what you say can and will be used against you in a court of law.”

So, when the elected Orange County, California District Attorney, Todd Spitzer announced on May 23 that his office had launched a criminal investigation into GKN Aerospace in response to their incident with a methyl methacrylate (MMA) storage tank, all I could think was, Well, that’s that. Now we’ll never know what happened.

What We Know About the Methyl Methacrylate Storage Tank

GKN Aerospace is a British aerospace components manufacturer. Their plant in Garden Grove, California uses MMA monomer to make the acrylic plastic for the aircraft canopies and windows that have been produced at the site since David Swedlow first built his plant there in 1963.

Personnel at the facility notified the Orange County Fire Authority (OCFA) on Thursday, May 21, 2026, that one of their MMA storage tanks containing about 7,000 gallons of the monomer was overheating. Normally at 50°F (10 C), the temperature in the tank was 77°F (25 C). The safety systems activate. A relief valve lifted to vent the pressure, and sprinkler systems automatically began spraying water to cool the tank, but they weren’t enough.

The OCFA decided to evacuate people in the vicinity and over the course of two days, expanded the evacuation zone. Officials later reported that a failure of a valve in the tank cooling system led to the overheating. In the absence of internal cooling, the OCFA began applying fire water to the tank surface to cool the tank and its contents.

During the course of the event, the tank developed a crack that increased the venting rate. That, combined with the external spray, succeeded in reversing the temperature trend and by Memorial Day, Monday, May 25, the external spray had managed to begin cooling the tank. The OCFA allowed some of the 50,000 people under their mandated evacuation orders to return home.

The First Criminal Investigation

On Saturday, May 23, while the event was still unfolding and with 50,000 people under mandatory evacuation orders, Orange County District Attorney, Todd Spitzer did what any publicity-seeking politician with the power to do so would do: he announced a criminal investigation into GKN Aerospace. “I am going to be right there, front and center.”

His was an investigation in search of a crime. During his announcement, he said, “I am indicating to employees who work at GKN: If you want to come forward and you want to be interviewed and you want to tell us what you know, now is the time. When we launch an investigation and we get to the bottom of what happened and why the system failed, if you haven’t come forward, you’re not going to be treated the same as if you come forward early and tell us what you know.”

The Second Criminal Investigation

The federal government was more patient. It wasn’t until three weeks after the incident began that FBI agents and USEPA personnel showed up the GKN facility to execute federal search warrants. Again, it was an investigation in search of a crime. ABC News quoted First Assistant U.S. Attorney Bill Essayli as saying “Obviously, we want to know exactly what happened and determine whether any federal laws were violated.”

While the incident involved the storage of MMA, the search warrant apparently instructed federal agents to seize documents and records related to the use or disposal of MMA, as well as the storage. The search warrant also authorized taking samples “of the substance within any tank, tote, drum, vat, vessel, or container suspected of containing or having previously contained methyl methacrylate and/or ANY hazardous substance.”

Essayli’s insistence notwithstanding that “We’re here to get to the bottom of exactly what happened,” the search and investigation are not consistent with understanding what happened and why. If we learn how better to prevent similar incidents in the future, it will be fluke.

A Cautionary Tale for Prosecutors

Hurricane Harvey dumped an unprecedented 55 inches of rain on parts of the Houston area during the last week of August 2017. The Arkema plant in Crosby, Texas was one of the locations drenched by the rain. Arkema manufactured organic peroxides at the Crosby plant, materials well-known to be temperature sensitive and so stored in refrigerated warehouses. Knowing that they were dependent on power to operate the refrigeration systems, Arkema had back-up generators on site in case of a power outage. Unfortunately, the flooding that came with Hurricane Harvey knocked out the back-up generators.

Knowing that the unrefrigerated organic peroxides were unstable, Arkema notified emergency response personnel. In effect, they gave the press advance notice that there would be a fire and perhaps explosions. The Harris County Fire Marshal’s Office and local unified command ordered the mandatory evacuation of a 1.5-mile radius around the plant, affecting 200 residents.

Following the predicted fire, 21 people sought medical evaluation or treatment. They were all first responders and emergency personnel.

Harris County District Attorney Kim Ogg filed charges against Arkema, CEO Richard Rowe and Plant Manager Leslie Comardelle for “recklessly releasing chemicals into the air,” and charges against Arkema and V.P. of Logistics Michael Keough for “felony assault for misrepresenting the danger that the organic peroxides at the plant posed to the community.”

When the case went to trial, Harris County prosecutors were sanctioned by the judge for withholding evidence and other prosecutorial misconduct. The assault charges against Keough were dismissed, and the judge directed an acquittal of Rowe and Comardelle for lack of evidence. Arkema did agree to a $1.1 million settlement with Harris County, a $1 million settlement to the State of Texas, and a $24 million settlement with area property owners for chemical testing and decontamination.

While Kim Ogg was re-elected to Harris County District Attorney in 2020, she lost her primary race in 2024 and is now in private practice.

Criminal Investigations of Unintentional Incidents

When an incident occurs, people want to know what happened so we will know what to do to prevent it from happening again. Criminal investigations are not a way to do this. As Sidney Dekker said in his book, Just Culture, “The chances that a legal system will tease out a meaningful and just account of what happened are actually remote. It is not its charter and even if it were, it is not particularly good at it.” (2^nd Ed., p. 108)

As long as there are incidents that impact the public, as well as district attorneys that want to be re‑elected and U.S. attorneys interested in seeking political office, we can expect this sort of grand-standing. It’s too bad that nothing useful will come of it.

Where is the Chemical Safety Board when we really need them?