HOUSTON (AP) — A judge on Monday dismissed two of the charges a chemical manufacturer and one of its former executives were facing during an ongoing trial over a fire at the company’s suburban Houston plant during Hurricane Harvey that sent toxic smoke into the air in 2017.
Harvey’s historic flooding overwhelmed power systems at Arkema Inc.’s chemical plant in Crosby, northeast of Houston, eventually causing organic peroxides made at the facility to catch fire and explode. The blaze forced the evacuation of more than 200 residents from the area and sent 21 people, including first responders, to the hospital.
Arkema said the fire was caused by an act of God, Harvey, which dumped nearly 50 inches (127 centimeters) of rain in parts of the Houston area and caused 36 deaths locally. But prosecutors say Arkema bears criminal responsibility for the toxic blaze because it failed to properly prepare for the storm.
Arkema, a subsidiary of a French chemical manufacturer, and its now retired vice president of logistics, Michael Keough, each faced a felony assault charge related to two injured deputies for allegedly misrepresenting the danger that the unstable chemicals at the plant posed to the community.
But prosecutors last week filed motions to dismiss the assault charges. State Judge Belinda Hill accepted the motions on Monday.
“Prosecutors always have a duty to seek justice; in this case, a prosecutor felt that there was enough evidence for a criminal charge, but that he could not prove that charge beyond a reasonable doubt at this time, so he requested it be dismissed,” Dane Schiller, a spokesman for the Harris County District Attorney’s Office said in a statement.
Dan Cogdell, an attorney for Keough, said the case against his client should have never been filed.
“And for him to have to suffer through weeks of trial and a ton of expenses and the angst and the worry of a possible conviction is outrageous ... He was an innocent man that should have never been prosecuted," Cogdell said.
Rusty Hardin, an attorney for Arkema, declined to comment.
If convicted of the assault charge, Keough could have faced up to 10 years in prison and the company could have been fined up to $10,000.
Arkema, CEO Richard Rowe and ex-plant manager Leslie Comardelle are still being tried on charges of reckless emission of an air contaminant. If convicted, Arkema faces up to a $1 million fine while Rowe and Comardelle each faces up to five years in prison.
The trial, which began in February but has been on hold since March due to the coronavirus pandemic, was set to resume Sept. 21.
The U.S Chemical Safety Board said Arkema worked to keep equipment that stabilized its organic peroxides, used to make such things as plastic resins, from losing power. But Arkema didn’t consider flooding of safety systems “a credible risk,” even though the plant was inside flood zones.
Ahead of next week’s resumption of the trial, a hearing was held Monday over claims by Arkema’s attorneys prosecutors have continued to withhold evidence that could benefit the defense. Prosecutors have denied such claims. The hearing was set to continue later this week.
Opening statements in February were delayed after Hill sanctioned prosecutors for withholding some evidence.