On August, 3, 2018, Arkema (a French chemical company), Richard Rowe (Arkema CEO) and Leslie Comardelle (Arkema’s plant manager), were indicted by a Harris County grand jury for the reckless emission of an air contaminant in violation of the Texas Water Code. A few friends have already written about the indictment (Mark L. Farley and Paige Gallaspy at Katten Muchin Rosenman LLP and Benjamin H. Patton and Mary M. Balaster at Reed Smith LLP). Here are links to the two blog posts:
https://www.lexology.com/library/detail.aspx?g=d7dbcb23-7887-409d-8966-573a3a50f874&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-08-13&utm_term and https://www.lexology.com/library/detail.aspx?g=7bcf0547-0738-4120-a377-9f228924ac1c&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-08-13&utm_term=
From my perspective, this indictment continues a trend that began shortly after the September 11, 2001, terror attacks: the criminalization of industrial accidents. Could Arkema been better prepared for the after-effects of a hurricane? Perhaps. Was industry as a whole prepared? No. Interestingly, the federal agency responsible for the enforcement of the environmental laws has not criminally investigated Arkema to the point of indictment. And interestingly, the TCEQ was not involved in the investigation either. The investigation was solely that of the Harris County Sheriff’s Office, the Houston Police Department’s Environmental Investigations Unit, and the Harris County District Attorney’s Office Environmental Crimes Division.
The company and the individuals have all retained excellent counsel. And I am sure one of the first things the counsel will do is check and see if the TCEQ was consulted. Section 7.203 of the Texas Water Code requires a peace officer investigating an alleged environmental violation by a person who holds a permit from the TCEQ to refer the case to the commission before a criminal prosecution can begin. Tex. Water Code Ann. § 7.203 (Vernon 2010). In other words, before a peace officer may refer an alleged criminal environmental violation to a prosecuting attorney for criminal prosecution, the peace officer must notify the TCEQ in writing for the TCEQ to determine whether civil or administrative duties will adequately and appropriately address the violations. Id. A peace officer must follow this procedure anytime the alleged criminal environmental violations involve a person, or an employee of a person, who holds a permit issued by the TCEQ and the activity constituting a violation is related to the activity for which the permit was issued. Id.
Time will tell, but if I was a betting man, I am willing to bet that this procedure was not followed.
As always, feel free to contact me at firstname.lastname@example.org