Short Wave - Fueled By Climate Change, Hurricanes Are Causing Industrial Accidents. Who's Liable?

Episode Date: September 29, 2020

Fueled by climate change, hurricanes are becoming stronger and more frequent. Those storms have repeatedly led to spills and fires at chemical manufacturing plants along the Gulf Coast. But can companies — and the people who work for them — be held responsible or even sent to prison for failing to adequately prepare for climate change? NPR's Rebecca Hersher reported on that question, which is at the center of a recent lawsuit. Email the show at [e-mail] pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.NPR Privacy Policy

You're listening to Shortwave from NPR. Maddie Safaya here with NPR science reporter Rebecca Herscher. Hey, Becky. Hey. So you just got back from the Gulf Coast where you were covering Hurricane Laura. How was your trip? The hurricane damage was really bad. You know, a lot of people down there have lost their homes, which is hard to see.

Yeah. And just to remind everybody, Laura was the one that hit the Texas-Louisiana border in August. You know, this storm is clearly roaring and you're reaching that critical moment here. This now joins an elite group. It's in the top 10. A small elite group of the most dangerous hurricanes to ever make landfall into the U.S. Residents along the Gulf Coast are bracing for potential devastation. Hurricane Lara. And that area is so flat. It is so full of petrochemical facilities, too. There are these refineries, a lot of new natural gas infrastructure. There are count. plants that manufacture all sorts of things, like plastics and solvents. Actually, even the raw materials for PPE, a lot of them are manufactured down there, like rubber gloves and surgical masks.

So what happened when the hurricane kind of hit all of that? A lot of them shut down. And when petrochemical facilities shut down, they usually release a lot of pollution. Right. Stuff that can't safely sit in pipes. So it has to be either released or burned. And preliminary estimates just in Texas showed that more than four million, extra pounds of pollution were released. That was actually before the storm even made landfall. But the reason I wanted to talk to you is because one chemical plant caught fire because of the storm. That is a look at I-10, which has now been shut down as these plumes of smoke emerged about an hour ago. The governor now is confirming this is a chemical fire. Hasmat and emergency crews responded to the inferno at BioLab in Lake Charles, which manufactures pool supplies. Okay, so we've talked about this on the show before.

Didn't a chemical plant in Texas catch fire after another hurricane, Hurricane Harvey, a few years ago? Yes. And we talked about it on this very podcast because that fire in Texas started this totally new kind of legal battle, a climate change criminal lawsuit. And I have to say, so far there is no indication that this most recent fire will lead to similar litigation. But with this really active hurricane season that we're having and the super hot water in the Gulf of Mexico helping to spawn these strong storms that head right for America's petrochemical centers, I thought it might be a good moment to revisit that story and the questions that it raises. So this episode, we're going to hear that story. It's a story that asks this question. Can companies and the people who work for them be held responsible, even sent to prison, for failing to add.

adequately prepare for climate change. You're listening to Shortwave, the Daily Science Podcast from NPR. Okay, Becky, take us back to the beginning of this story. So it's a story that happened in 2017 at a chemical plant near Houston, Texas, and it's when this major hurricane struck. We are coming on the air for breaking news. This is Hurricane Harvey. Hurricane Harvey barreling into the Texas coastline as a category four storm with 130-mile-an-hour winds.

Yeah, I remember Harvey was kind of, you know, unique because it made landfall and then it just kind of stopped and sat on top of Texas, just dumping and dumping rain. Yeah, some places got as much as 60 inches of rain. There was a lot of flooding. Obviously, our primary layer of protection was our power supply. When the storm hit, we lost our primary power. You're hearing a guy who was a division president at one of those petrochemical companies

that was overwhelmed by the flooding. His name is Richard Renard. And the company he helped run is called Arkima. We brought in emergency generators to provide backup power. So what he's describing is in the aftermath of the storm... Those generators were compromised. There's this intense effort to keep the power on at the Arkima plant outside Houston. The plant is near a major highway.

It's in a relatively residential area. So why were they fighting so hard to keep the power on? Basically because the plant was full of chemicals that have to be refrigerated. Otherwise, they catch fire. We do have that breaking news that we've been bringing you through. throughout the 5 o'clock hour, this brand new explosion and a fire burning as we speak at the Archima plant in Crosby. You can see that plume of black smoke billowing into the air.

In fact, you can see it from miles and miles away. So they make organic peroxides, which are volatile chemicals. They're used to manufacture plastics and other stuff. And organic peroxides are pretty hazardous because they can catch fire if they get warm. Right. And they don't even need a spark, right? So organic peroxides contain both fuel and oxygen. And when they become unstable, they heat up on their own and catch fire.

Yeah, I can really hear that Ph.D. Coming through strong for you right now. So the Arkma plant, it had a lot of refrigerated warehouses and buildings to keep these chemicals cold. And they also have a bunch of refrigerated trailers outside those warehouses. Okay. So talk me through it. What happened that resulted in the accident? So Harvey was stalled over the Houston area, just dumping rain.

for days. And the refrigerated warehouses, the buildings, they were flooding. As the warehouses flooded, the employees were using forklifts to move containers of these chemicals from one refrigerated warehouse to another to try to keep them dry and cool. And the water just kept getting higher and higher. And the electrical generators for the buildings started to flood. That's not good. And then the forklift flooded. Okay. So what do you do when your forklift floods? So according to the U.S. Chemical Safety Board investigation, employees at the plant started carrying individual jugs of these highly flammable liquids in the dark through chest high water while it was still raining to get it to the refrigerated trailers we talked about because only the trailers still had power. Yeah, I read this report and it was terrifying.

Like I can't imagine being one of those people still there as they're in like chest deep water trying to move these chemicals. At one point, one of the trailers started to turn over on their side. It was really, like, super scary. Yeah, and you might be able to guess what happens next. The trailers flooded. They weren't refrigerated anymore. The chemicals got warmer and warmer until they caught fire. So did people get hurt when the fires started in the plant?

Well, the plant had been evacuated, so the employees were okay that we know of. But there were some first responders who say they were injured while they were patrolling the area that had been evacuated. specifically that their eyes and respiratory tracks were irritated by air contamination. And there were some people who live nearby who also say they were injured by the smoke and the ash from the fires. So I know the chemicals themselves can be toxic. Was the smoke from them toxic as well? That's a good question. So when the chemicals burned, they actually just turned into carbon dioxide and water.

But I talked to multiple organic chemists, and they explained that the problem is actually the containers that were being burned. A chemist at Brinmore College named Michelle Fransell explained it this way. Everything from the labels on things to whatever plastic or metal that the containers are made out of. All that stuff is going to absorb other chemicals that didn't burn entirely. So the ash is nasty. The ash is nasty. So that ash is made up of container junk and chemicals that didn't totally burn. And that's the stuff that potentially could have harmed the first responders and the people close by.

And it's not something you ideally want in the air or water, right? So much so that in 2018, the district attorney's office for Harris County, Texas, announced criminal charges against the plant manager, who was actually one of the people carrying those chemicals through the water that night. And Archaima's North American CEO. And later, they also filed charges against a third person, an executive at the company. Which was really surprising to a lot of people, because in general, the criminal courts aren't used to punish companies

and their employees for polluting the air and water, especially when it happens during big storms. And I went down to Houston and interviewed the district attorney about it. Her name is Kim Ogg. The charges are environmental. They are reckless emission of an air contaminant and endangerment of persons. Reckless emissions of an air contaminant. It feels like a bunch of words that mean polluting. Yeah, lawyers like big words.

So why did she say she was filing these charges? You mentioned that there were a lot of petrochemical plants around here. Houston that flooded and leaked stuff during Hurricane Harvey. Is there something about these fires that was worse? Yeah, I asked her that. And one argument she made is that the fires happened because people at Arkima ignored the risk of flooding. Like, they should have known that their plant could flood like that and prepared better. For example, the Arkima plant is in a floodplain. And even though Harvey dumped more rain than any U.S. storm on record, the argument the county is making is that there were signs that flood risk was increasing before Harvey because of climate change.

We've had a new normal in Houston. We've had three 500-year floods in just a short period of time. And it's true that flooding is getting more frequent and severe in Houston, as it is in many parts of the country. And it's something that climate models have been predicting for a long time, that extreme rain will get more likely as Earth gets hotter, including rain from hurricanes. So in this case, the county is basically arguing that the company has, had a responsibility to recognize that flood risk was increasing and do more to keep their chemicals from catching fire. So obviously the company doesn't agree or they wouldn't be in the middle of a trial right now. What does the company say? So after the indictments were announced, I interviewed two of the lawyers representing Archima and its employees. One of them is pretty well known in

Houston. He's been working for a really long time. His name is Rusty Hardin. Archema did everything they were supposed to do here. Hardin says the company followed all the regulations it's required to follow. He seemed pretty galled that employees were facing criminal charges. Trying to find scapegoats and calling to individuals felons. Are you kidding me? This is outrageous. It's morally, legally, ethically wrong. And the point he made is that if the current regulations for chemical companies in flood prone areas aren't enough, then the regulations should be changed by legislatures, not by courts. And especially, he argues, not by criminal courts. And especially, he argues, not by criminal courts.

Sometimes bad things happen that there's no crime, there's no responsibility. It's not anyone's fault. We need to look forward to the future and make sure that we are prepared for these kinds of things if this is going to be the new norm, and many think it is. Okay, so Becky, like, what is at stake in this trial? If the county wins and the company loses, will that change how we think about climate change and the law? It could, actually, yeah. I talked to this guy, David Ollman.

He's an environmental law professor at the University of Michigan. And one thing he said that I think is really interesting is that environmental laws and regulations are generally based on this underlying assumption that the future will look like the past. Today already, we expect companies to be prepared to handle what I might call ordinary rainfall. What climate change is going to do, among other things, is change our definition of what is ordinary rainfall. Another way to understand it in a legal context is that you can be, held accountable and punished if you don't prepare for something you should have seen coming. It's the idea of foreseeability. So, like, if you know that climate change is happening, does that mean it's foreseeable?

And you should prepare for it. Yeah, that's the big question, exactly. And how foreseeable extreme weather is hinges, in part, on how businesses inform themselves about the climate science that's available to them, right? Yeah. Like, I talked to an environmental lawyer at the Conservation Law Foundation, Elena That foreseeability isn't just a question of, did you personally know that this could happen? But it's really what kind of maps were available to you?

What kind of experts did you hire to inform yourself about this decision? What kind of modeling is available to you? Okay, Becky. So that was how this story ended up back in March 2020. Where are we now? because I'm guessing it's not completely resolved. Yeah. The trial was put on hold for the pandemic,

and it's recently restarted. So unfortunately, that means very little has resolved itself on this case in the last six months. Story of 2020. Yeah, totally. One development is that the state has actually dropped some of the charges. They told the judge they don't have enough evidence to prove that the company, quote, recklessly endangered public servants, but the other charges are still pending.

And, you know, if anything, the interest in the outcome of the trial has only grown over time. And that goes back to these really active hurricane seasons that we keep having, including this one, right? Like, every time a major hurricane slams into the petrochemical facilities on the Gulf Coast, local officials and residents and company executives are forced to confront how climate change is making their businesses less secure. And if criminal charges, like these ones, are on the table or even possible, possibly on the table as a consequence of not planning ahead, then that's a big deal. So it sounds like we have more to look forward to on this case, huh? Totally. And I will come back in another six months, and hopefully something will have changed.

All right, Becky Herscher, we appreciate you. This episode was produced by Brent Bachman, edited by Jeff Brumfield, and fact-checked by Ariela Zabidi. I'm Maddie Safaya. Thanks for listening to Shortwave from NPR. There are these networks of staunchly pro-gun groups on Facebook, and one of them is run by these three brothers, the Door brothers. But it turns out they don't just do guns. The Door family name has been attached to other causes. Their goal is to eliminate public education and to replace it with Christian schooling.

The roots of the Door family on the No Compromise podcast from NPR.