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MASTER DOCKET NO. 2020 MDL
IN THE DISTRICT COURT
IN RE:
333rd JUDICIAL DISTRICT
ARKEMA, INC., LITIGATION
OF HARRIS COUNTY TEXAS
NO. CV1813081
LIBERTY COUNTY, TEXAS IN THE DISTRICT COURT
Plaintiff,
JUDICIAL DISTRICT
ARKEMA, INC.
Defendant OF LIBERTY COUNTY, TEXAS
LIBERTY COUNTY, TEXAS’ SECOND AMENDED PETITION
NOW COMES Liberty County, Texas, Plaintiff in the above entitled and numbered cause,
and files this Second Amended Petition and respectfully shows the Court as follows:
DISCOVERY CONTROL PLAN
Pursuant to Rules 190.1 and 190.4 of the Texas Rules of Civil Procedure, Plaintiff
files this petition under a Level 3 Discovery Control Plan.
II.
PARTIES
A. PLAINTIFF
2. Plaintiff, Liberty County, Texas.
B. DEFENDANTS
3. Defendant Arkema, Inc. (“Arkema”) is a Pennsylvania Corporation doing business
in the State of Texas. Based upon information and belief, Arkema, Inc. is the owner of the property
and facility located at 18000 Crosby Eastgate Road, Crosby, Texas 77532, hereinafter (“Crosby
facility”). As detailed on its website, Arkema, Inc. maintains a corporate headquarters in Texas,
located at 9502B Bayport Boulevard, Pasadena, Texas, 77507.1 Additionally, Arkema, Inc. is a
subsidiary of Arkema, S.A. Arkema, Inc. has availed itself of the jurisdiction and laws of the State
of Texas. Arkema, Inc., has previously answered and appeared in this action.
4. Defendant Bureau Veritas North America, Inc. (“Bureau Veritas”) is a Delaware
Corporation doing business in the State of Texas. Based upon information and belief, Bureau
Veritas provided air quality monitoring, recording, and reporting of the evacuation zone following
the initial explosion at the Crosby facility and during the Arkema mandatory evacuation. Bureau
Veritas consultants from its 16800 Greenspoint Park Drive, Ste. 3005, Houston Texas, 77060
location tested the air throughout the evacuation zone. Bureau Veritas has availed itself of the
jurisdiction and laws of the State of Texas. Bureau Veritas may be served with process through
its registered agent, C.T. Corporations System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201-
3136.
5. Defendant Arkema, S.A. (“Arkema S.A”) is a publicly traded foreign corporation
having its principal place of business in Colombes, France. Arkema, S.A. is the parent corporation
1
https://www.arkema.com/en/all-arkema-locations/?country=northamerica/usa/.
2
of Defendant Arkema, Inc. Upon information and belief, Arkema, S.A. exercises complete
dominion and control over its wholly-owned subsidiary, Defendant Arkema, Inc. such that they do
not in reality constitute separate and distinct corporate entities, but are, instead, one and the same
corporation for purposes of jurisdiction. Based upon information and belief, Arkema S.A.
exercises and controls the internal business operations and affairs of its subsidiary, Defendant
Arkema, Inc. As a result, Arkema, S.A. is responsible for the damages caused to the Plaintiff by
its subsidiary. Further, Arkema, S.A. is directly responsible for its own conduct, failure to act, and
negligence including but not limited to failing to exercise due diligence when it purchased the
facility that is the subject of this lawsuit and in its failure to properly manage environmental risks,
in its failure to insist that corporate environmental policies be followed and in its failure to properly
capitalize Defendant Arkema, Inc. Arkema, S.A. managed, oversaw, planned, conducted,
participated in, allowed, capitalized and profited from negligent, dangerous, hazardous and/or
ultra-hazardous handling, storage, production and disposal of the toxic chemicals found at the
facility which is the subject of this lawsuit. Defendants Arkema, Inc. and Arkema, S.A. are
referred to herein collectively as “Arkema.” Service upon Arkema, S.A. can be obtained through
the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.
6. Defendant CenterPoint Energy, Inc. (“CenterPoint”) is a Texas corporation and
public utility responsible for providing electricity, electrical transformers, and other electrical
conduits to the Crosby facility. CenterPoint improperly installed, maintained, connected, failed to
elevate, and/or failed to comply with guidelines, best practices, rules, and/or regulations regarding
the provision and maintenance of electrical services/connections within a flood zone.
CenterPoint’s conduct contributed to the failure of the flow of electricity to critical facilities on
the Crosby facility required to prevent the failure of the refrigeration system at issue in this case.
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CenterPoint may be served with process by serving its registered agent CT Corporations System,
1999 Bryan Street, Suite 900, Dallas, Texas 75201.
7. Defendant CenterPoint Energy Houston Electric, LLC (“CenterPoint Houston”) is
a domestic limited liability company and public utility responsible for providing electricity,
electrical transformers, and other electrical conduits to Arkema, Inc. and Arkema, S.A.’s Crosby
facility. CenterPoint Houston improperly installed, maintained, connected, failed to elevate,
and/or failed to comply with guidelines, best practices, rules, and/or regulations regarding the
provision and maintenance of electrical services/connections within a flood zone. CenterPoint
Houston’s conduct contributed to the failure of the flow of electricity to critical facilities on
Arkema, Inc. and Arkema, S.A.’s Crosby facility required to prevent the failure of the refrigeration
system at issue in this case. CenterPoint Houston’s principal office is located in Harris County,
Texas. CenterPoint Houston may be served with process by serving its registered agent CT
Corporations System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201.
8. Defendant Praxair Services, Inc. (“Praxair Services”) is a Connecticut corporation
and it installed, manufactured, sold, maintained, and/or supplied the liquid nitrogen vessel at
Arkema, Inc. and Arkema, S.A.’s Crosby facility. Based upon information and belief, the liquid
nitrogen vessel provided the last backup measure to provide power to the refrigeration system at
issue in this case. Further, based upon information and belief, Praxair Services did not properly
install the liquid nitrogen vessel and/or install/place it at an adequate height for an area located
within a flood zone. Additionally, Praxair Services did not have proper instructions and/or
warnings accompanying the liquid nitrogen vessel regarding its proper installation/placement
within a flood zone and/or failed to comply with guidelines, best practices, rules, and/or regulations
regarding the installation/placement and maintenance of its liquid nitrogen vessel within a flood
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zone. Praxair Services’ conduct contributed to the failure of the flow of electricity to critical
facilities on Arkema, Inc. and Arkema, S.A.’s Crosby facility required to prevent the failure of the
refrigeration system at issue in this case. Praxair Services may be served by serving its registered
agent The Prentice-Hall Corporation System, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
9. Defendant Praxair, Inc. (“Praxair”) is a Connecticut corporation and it installed,
manufactured, sold, maintained, and/or supplied the liquid nitrogen vessel at Arkema, Inc. and
Arkema, S.A.’s Crosby facility. Based upon information and belief, the liquid nitrogen vessel
provided the last backup measure to provide power to the refrigeration system at issue in this case.
Further, based upon information and belief, Praxair did not properly install the liquid nitrogen
vessel and/or install/place it at an adequate height for an area located within a flood zone.
Additionally, Praxair, did not have proper instructions and/or warnings accompanying the liquid
nitrogen vessel regarding its proper installation/placement within a flood zone and/or failed to
comply with guidelines, best practices, rules, and/or regulations regarding the
installation/placement and maintenance of its liquid nitrogen vessel within a flood zone. Praxair’s
conduct contributed to the failure of the flow of electricity to critical facilities on Arkema, Inc. and
Arkema, S.A.’s Crosby facility required to prevent the failure of the refrigeration system at issue
in this case. Praxair may be served by serving its registered agent The Prentice-Hall Corporation
System, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
10. Defendant Coolsys Energy Design, LLC (“Coolsys”) is a Delaware corporation and
is registered to conduct business in the State of Texas. Based upon information and belief, Coolsys
worked on, maintained, installed, was consulted with or was otherwise involved in the installation
of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby
facility within the five years prior to the incident made the basis of this lawsuit. Coolsys may be
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served with process by serving its registered agent Corporation Service Company d/b/a CSC-
Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
11. Defendant Dacon Corporation (“Dacon”) is a Delaware corporation and is
registered to conduct business in the State of Texas. Based upon information and belief, Dacon
worked on, maintained, installed, was consulted with or was otherwise involved in the installation
of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby
facility within the five years prior to the incident made the basis of this lawsuit. Dacon may be
served with process by serving its registered agent Corporation Service Company d/b/a CSC-
Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
12. Defendant Dashiell Corporation (“Dashiell”) is a Delaware corporation and is
registered to conduct business in the State of Texas. Based upon information and belief, Dashiell
worked on, maintained, installed, was consulted with or was otherwise involved in the installation
of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby
facility within the five years prior to the incident made the basis of this lawsuit. Dashiell may be
served with process by serving its registered agent Corporation Service Company d/b/a CSC-
Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
13. Defendant Infinity Construction Group, LLC (“Infinity Group”) is a Texas
corporation. Based upon information and belief, Infinity Group worked on, maintained, installed,
was consulted with or was otherwise involved in the installation of “electrical connections” and
“electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior
to the incident made the basis of this lawsuit. Infinity Group may be served with process by serving
its registered agent CMF Management, LLC, 26203 Oak Ridge Drive, Suite 200, The Woodlands,
Texas 77380.
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14. Defendant Infinity Construction, LLC (“Infinity”) is a Texas corporation. Based
upon information and belief, Infinity worked on, maintained, installed, was consulted with or was
otherwise involved in the installation of “electrical connections” and “electrical conduits” at
Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made
the basis of this lawsuit. Infinity may be served with process by serving its registered agent
Legalinc Corporate Services, Inc. 10601 Clarence Drive, Suite 250, Frisco, Texas 75033.
15. Defendant Infinity Construction Services, LP (“Infinity Services”) is a Texas
corporation. Based upon information and belief, Infinity Services worked on, maintained,
installed, was consulted with or was otherwise involved in the installation of “electrical
connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within
the five years prior to the incident made the basis of this lawsuit. Infinity Services may be served
with process by serving its registered agent Corporation Service Company d/b/a CSC-Lawyers
Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
16. Defendant Loftin Equipment Company (“Loftin”) is an Arizona corporation and is
registered to conduct business in the State of Texas. Based upon information and belief, Loftin
worked on, maintained, installed, was consulted with or was otherwise involved in the installation
of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby
facility within the five years prior to the incident made the basis of this lawsuit. Loftin may be
served with process by serving its registered agent Bryan Dietert, 61133 Brittmoore Road,
Houston, Texas 77041.
17. Defendant M&I Electric LLC (“M&I”) is a Delaware corporation and is registered
to conduct business in the State of Texas. Based upon information and belief, M&I worked on,
maintained, installed, was consulted with or was otherwise involved in the installation of
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“electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby
facility within the five years prior to the incident made the basis of this lawsuit. M&I may be
served with process by serving its registered agent Gary Court, 109 Gate Drive, League City, Texas
77573.
18. Defendant Seaboard Controls, LLC (“Seaboard”) is a Texas corporation. Based
upon information and belief, Seaboard worked on, maintained, installed, was consulted with or
was otherwise involved in the installation of “electrical connections” and “electrical conduits” at
Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made
the basis of this lawsuit. Seaboard may be served with process by serving itsregistered agent
Phillip Muro, 4870 Highway 90 West, Crosby, Texas 77532.
19. Defendant Service Refrigeration, LLC (“Service Refrigeration”) is a Texas
corporation. Based upon information and belief, Service Refrigeration worked on, maintained,
installed, was consulted with or was otherwise involved in the installation of “electrical
connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within
the five years prior to the incident made the basis of this lawsuit. Service Refrigeration may be
served with process by serving its registered agent Corporation Service Company d/b/a/ CSC-
Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701.
20. Defendant Star Service, Inc. d/b/a Star Service, Inc. of Houston (“Star Service”) is
a Louisiana corporation and is registered to conduct business in the State of Texas. Based upon
information and belief, Star Service worked on, maintained, installed, was consulted with or was
otherwise involved in the installation of “electrical connections” and “electrical conduits” at
Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made
the basis of this lawsuit. Star Service may be served with process by serving its registered agent
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Corporation Service Company d/b/a/ CSC-Lawyers Incorporated, 211 E. 7th Street, Suite 620,
Austin, Texas 78701.
21. Plaintiff specifically invoke the right to institute this suit against whatever entities
were conducting business using the assumed or common names listed above with regard to the
events described in this Petition. Plaintiff specifically invoke their right under Rule 28 of the Texas
Rules of Civil Procedure to have the true name of any party substituted at a later time upon the
motion of any party or of the Court.
III.
VENUE AND JURISDICTION
22. The Court has jurisdiction of the subject matter of this lawsuit and the amount in
controversy is above the minimum jurisdictional limits of this Honorable Court as Plaintiff seeks
aggregate monetary relief over $1,000,000.00.
23. Pursuant to Texas Civil Practice and Remedies Code section 15.002(a)(1), Liberty
County is the proper venue because it is the county in which all or a substantial part of the events
or omissions giving rise to this lawsuit occurred.
IV.
FACTUAL BACKGROUND
Summary of the Case
24. Defendants chose to manufacture and store hazardous, combustible chemicals on
property that was located in an electrified flood zone. Defendants knew that the highly volatile
nature of the chemicals stored in the flood zone required refrigeration, which in turn required
uninterrupted electricity services. Despite the fact that Defendants knew or should have known
that uninterrupted electricity services were necessary to prevent the combustion of hazardous
chemicals that would release harmful pollutants, they did nothing to prevent or avoid the
9
combustion of the dangerous chemicals when a hurricane was slated to hit the Texas Gulf Coast.
Inevitably, Defendants’ negligence resulted in the combustion of these dangerous chemicals,
causing injuries to Plaintiff.
Hurricane Harvey Hits the Texas Gulf Coast.
25. On or about August 25, 2017, Hurricane Harvey struck the coast of the State of
Texas as a Category 4 hurricane. Subsequently, Hurricane Harvey moved slightly inland and
stalled for several days, all the while churning massive amounts of rain into the southeast Texas
area, including east Harris County, where the town of Crosby, Texas resides.
26. Over the course of those several days, Hurricane Harvey dropped in excess of fifty
inches of rain in and around Crosby, Texas. While Hurricane Harvey did cause massive
devastation as a result of the rain, residents and businesses in southeast Texas were given several
days’ notice a major rain event was coming.2 Moreover, this was not the first time Houston has
seen massive amounts of rain, nor was it the first time that widespread areas of Houston and
surrounding areas have suffered from flooding as a result of massive amounts of rain. As a matter
of fact, this had happened so many times before that most industries, private businesses, and even
governmental agencies had put in place physical structures and written procedures to prevent harm
and damage to their properties and the people in their communities. Unfortunately for Plaintiff
Defendant Arkema failed to heed the warnings and ignored the foreseeable consequences of failing
to prepare.
2
Hurricane Harvey traveled through the Gulf of Mexico for days before making landfall on August 25, 2017. On
August 24, 2017, it was clear that the storm would make landfall in southeast Texas. Hurricane Harvey spawned off
the west coast of Africa on August 12, 2017, and by August 19, 2017, it moved over the central Caribbean Sea. By
August 22, 2017, Hurricane Harvey moved towards the Gulf of Mexico, hovering over the Yucatan Peninsula,
intensifying in strength.https://www.nhc.noaa.gov/data/tcr/AL092017_Harvey.pdf.
10
“Arkema—Innovative Chemistry”
27. Defendants Arkema and Arkema S.A. are specialty chemicals manufacturers that
“supports the chemical industry by developing intermediate products which are essential to
manufacturing processes. Its products are also used in the operating processes of industrial
facilities.”3 Worldwide, Defendants Arkema and Arkema S.A. have annual sales of EUR 5.7
billion (US $7 billion) and 15,200 employees, eighty industrial sites in more than forty countries
and six research and development centers.
28. Defendants Arkema and Arkema S.A. own and operate plants and facilities
throughout the world, including facilities in Bayport, Texas, Beaumont, Texas, Clear Lake, Texas,
Houston, Texas, and Crosby, Texas. Its Crosby facility is located 18000 Crosby Eastgate Road,
Crosby, Texas 77532. The site, at 18000 Crosby Eastgate Road, is located in a floodplain/flood
zone and has experienced flooding in the past.
29. Defendants Arkema and Arkema S.A. contend its Crosby facility “is in a rural area
with no hospitals, schools, correctional facilities or recreational areas or industrial/commercial
areas in the vicinity” yet Crosby High School and Crosby Middle School are a mere five miles
away; Crosby Church is less than three miles away; Newport Elementary is less than six miles
3
https://www.arkema.com/en/markets-and-solutions/solutions/plastics-and-additives/.
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away; and hundreds of homes are within 1.5 miles of the plant. When the radius is expanded to
five miles, well over one-thousand Crosby residents live within the immediate vicinity.
30. The Crosby facility produces liquid organic peroxides that are primarily used in the
production of plastic resins, polystyrene, polyethylene, polypropylene, PVC and polyester
reinforced fiberglass, and acrylic resins.4 By its own admission, organic peroxides are unstable
and must be maintained and stored in refrigerated temperatures to avoid their deterioration. Thus,
safe handling of these volatile chemicals is required.
Arkema Has a Long History of Mishandling the Volatile Chemicals it Produces.
31. According to its June 2014 Risk Management Plan for the Crosby facility,5
Defendant Arkema “is committed to employee, public, and environmental safety by conducting
its operations in a safe and responsible manner.” Its history, however, says otherwise.
32. Despite the volatility of its products, in recent history, Defendants Arkema and
Arkema S.A. have been repeatedly cited for mishandling the chemicals it produces. For example,
in 2006, the Crosby facility was cited and subject to penalties by the Texas Commission on
Environmental Quality (“TCEQ”) because of a fire caused by Defendants’ failure to appropriately
store organic peroxides. Records show a pallet of organic peroxide was poorly stored, resulting in
the fire, and causing more than a ton of volatile organic compounds to be discharged. Three-
thousand two-hundred pounds of volatile organic compounds along with other harmful pollutants
4
According to Arkema, the following raw materials are maintained on site: 2-ethylhexanoyl chloride distilled; acetic
acid 84%; acetone; aromatic 100; benzoyl chloride; caustic potash 45%; caustic soda 50%; cumene hydroperoxide;
dimethyl hexadiene; dimethyl hexane diol DH-S; Epsom salts;hexane; hydrogen peroxide 70%; isoamylene;
isobutylene; isopropryl alcohol; mineral oil, white; mineral spirits odorless; monosodium phosphate; neodecanoyl
chloride; pivaloyl chloride 95-100%; propylene glycol; sodium bicarbonate; sodium bicarbonate anhydrous light;
sodium chloride; sodium sulfate anhydrous; sodium sulfite anhydrous; sulfur dioxide; sulfuric acide 93% reagent
ACS; T-butyl hydroperoxide 70%. https://www.arkema-americas.com/en/social-responsibility/incident-page-
2/products-and-raw-materials/
5
Arkema’s risk management plans (“RMP”) are subject to a five year update, pursuant to 40 FR 68.190(b)(1). Its
most recent RMP was filed 6/11/2014.
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were released.
33. Just five years later, in 2011, the facility was again cited and penalized for failure
to maintain proper temperatures of the thermal oxidizer. The TCEQ found that Defendants Arkema
and Arkema S.A. had failed to keep thermal oxidizers, used to decompose hazardous gases, at high
enough temperatures over the course of several months. In a 2012 letter, the Occupational Safety
and Health Administration (“OSHA”) said Defendant Arkema’s storage plants lacked “design
calculations for the worst case scenario.”
34. A 2015 report by the Center for Effective Government focused on Defendant
Arkema and six other chemical plants and found that those plants sometimes led the nation in
safety violations, according to a compilation of government inspection records from 2012 to 2014.
Per the report, during that time period, Arkema accumulated nearly eighty violations at its various
U.S. facilities.
35. In 2016, OSHA originally fined Defendant Arkema $100,000, but the fine was later
reduced to $91,724. OSHA cited and fined Defendant Arkema after finding ten violations at the
Crosby facility, many involving the mishandling of hazardous materials. Environmental Protection
Agency (“EPA”) records as recent as 2016 revealed Defendant Arkema stores a number of
suspected or known carcinogens at its Crosby facility, including cumene and benzoyl chloride.
Eight of the ten violations fall under the category of “process safety management of highly
hazardous chemicals,” meaning Defendant Arkema was breaking rules meant to prevent the
“catastrophic releases of toxic, reactive, flammable, or explosive chemicals.”
36. And while Defendant Arkema purportedly maintains “an accidental release
prevention program” to “minimize the risk of hazardous chemical releases,” those programs have
clearly failed. Defendants Arkema and Arkema S.A. and their Crosby facility have racked up over
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a dozen violations and “informal enforcement actions” over safety and environmental problems
over the past five years, according to records from the EPA and OSHA.
37. Records indicate Defendants Arkema and Arkema S.A. have had a history of
utilizing equipment when safety systems were not working properly. Those records further indicate
that Defendants Arkema and Arkema S.A. failed to inspect and/or test as recommended.6 In one
unit, the company also failed to ensure equipment there was safe and/or failed to keep its nearly
sixty employees up to date on their training.
38. In short, while Defendant Arkema contends “there have been no accidental releases
of applicable RMP chemicals from [its] facility” from 2009-2014, that simply is not the truth.
Defendant Arkema has a pattern and practice of cutting corners, failing to properly maintain the
Crosby facility, and failing to properly store and maintain the highly volatile chemicals it produces.
The events following Hurricane Harvey were a forgone conclusion.
39. Defendants Arkema and Arkema S.A. consciously chose to manufacture its
hazardous chemicals in a flood zone. It was on notice that the property could be inundated by flood
waters. In fact, flooding had occurred at the Crosby facility twice before the events giving rise to
this suit. Due to the two prior instances of flooding, the risk of flooding at the Crosby facility was
reasonably foreseeable and the risks associated with flooding should have been addressed prior to
the arrival of Hurricane Harvey.
40. Furthermore, Defendants Arkema and Arkema S.A. knew its chemicals had to be
refrigerated at all times. Yet, with full knowledge of both the risks of flooding and the need for
constant refrigeration, Defendants Arkema and Arkema S.A. decided to maintain unreasonable
6
Yet, in Defendant Arkema’s June 2014 RMP, it contends that “environmental and safety critical equipment is
inspected on a planned, periodic basis to ensure proper operating conditions.”
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and inadequate electrical connections at the site and did not follow Federal Emergency
Management Agency (“FEMA”) guidelines to flood proof the site.
41. When flooding was actually occurring at the Crosby facility, Defendant Arkema
sent all non-essential personnel away. It took no action to neutralize or stabilize their volatile
chemical products. It relied entirely upon an electrical system which was unreasonably designed
and constructed for a known flood zone.
42. When the Crosby facility inevitably flooded, the poorly designed and constructed
electrical systems were compromised and failed. This led to a loss of refrigeration, whereby the
chemicals were allowed to overheat, combust, and openly burn, which released toxic pollutants
into the air for miles.
Electrical Systems at the Crosby Facility Were Negligently Designed, Installed, and
Maintained.
43. Additionally, Defendants CenterPoint, CenterPoint Houston, Coolsys, Dacon,
Dashiell, Infinity Group, Infinity, Infinity Services, Loftin, M&I, Seaboard, Service Refrigeration,
and Star Service (collectively referred to as “Utility Defendants”) knew or should have known that
the provision of electricity at the Crosby facility would be within a flood zone. The Utility
Defendants knew or should have known that there were specific rules, regulations, standards, and
codes governing how electrical equipment, connections, conduits and structures were to be
installed, designed, and maintained in flood zones.
44. Despite having actual and/or constructive knowledge of those codes and standards,
the Utility Defendants knowingly violated, disregarded, and ignored the specific standards/codes
intended and created to avoid the type of loss of electricity Defendants Arkema and Arkema S.A.
contend contributed to the release of the deadly toxins/chemicals from its facility.
45. The electrical connections were located at or below the elevations reasonably
15
necessary to avoid or prevent flood waters from compromising the provision of electricity to the
facility. Furthermore, in other areas where the electrical connections were flooded, the Utility
Defendants constructed the connections in such a manner that the flow of electricity would be
compromised in the event of flooding. For example, electrical transformers were placed no more
than ten inches off the ground in a known flood zone.
46. The National Electric Code and FEMA guidelines have clear standards to minimize
loss of electrical services during flooding. Despite these standards, the Utility Defendants failed to
comply, which caused electrical services at the facility to be lost.
47. Additionally, the electrical systems at the Crosby facility were all tied to a single
point of failure, which meant that a failure at that one point compromised the entire system.
48. All Defendants were negligent in implementing and relying on the compromised
and non-compliant electrical system. They failed to design and install reliable secondary backup
systems not dependent on a single point of failure. Defendants’ negligence in both design,
location, installation, wiring, and maintenance of the electrical systems at the facility caused a loss
of electricity, which in turn caused the refrigeration systems to cease functioning, allowing the
chemicals to rise in temperature and combust, releasing toxic and harmful pollutants.
The Crosby Facility’s Electrical Transformers Were Negligently Designed, Marketed, and Did
Not Have Adequate Warnings When Installed.
49. The electrical transformers at the Crosby facility were negligently designed.
Although the electrical transformers were pad mounted, they were not high enough off of the
ground to be protected against potential flooding. Based upon information and belief, when the
electrical transformers were installed, Defendants Praxair and Praxair Services (collectively
“Electrical/Backup Equipment Defendants”) marketed the electrical transformers to be installed
without considering the relevant topographical and environmental concerns of the installation area.
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Further, there were no warnings on the electrical transformers regarding installing them in a high-
risk flood area.
50. Even after these electrical transformers were serviced and inspected, especially
after previous major rain events such as Hurricane Ike, the Electrical/Backup Equipment
Defendants and/or Utility Defendants never raised or elevated the electrical transformers at the
Crosby facility.
Arkema’s Backup Plan for Electrical Failure Was Ineffective.
51. Defendants Arkema and Arkema S.A.’s backup plan in the event of electrical
failure was ineffective. In the event its electrical transformers failed, two generators were assigned
to power the refrigeration system to keep the organic peroxides from decomposing. The
generators, however, we placed too low to the ground for being within a flood zone. By the time
the generators were needed as a result the electrical transformers flooding during Hurricane
Harvey, the generators were also inundated with water and flooded, rendering them useless.
52. Defendants Arkema and Arkema S.A.’s contingency plan, in the event the
generators failed, was having liquid nitrogen power the refrigeration system. Arkema’s liquid
nitrogen vessel’s delivery system was also too low to the ground. In an area prone to flooding, this
placement was negligent. Defendants Praxair and Praxair Services, as the entities that
manufactured, installed, serviced, and/or inspected Arkema’s liquid nitrogen vessel at the Crosby
facility, should have taken measures to prevent the liquid nitrogen vessel’s nitrogen delivery
system from potential flooding. Further, the liquid nitrogen was Defendants Arkema and Arkema
S.A.’s ultimate safety net to prevent loss of power. Therefore, it should not have been inaccessible
during a flood event.
53. Defendants Arkema and Arkema S.A.’s lack of care and attentiveness to its
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electrical system and backup system during a potential heavy rain and flood event was
unreasonable considering the fact that its Crosby facility was located in a flood plain.
54. Precautions Were Never Taken. In 2008, Hurricane Ike made landfall over
Galveston, killing 103 people and causing more than $50 billion in damage. The following year,
Defendants Arkema and Arkema S.A. identified floods and hurricanes — as well as power failure
and loss of cooling — as threats to its Crosby site. Still, Defendants Arkema and Arkema S.A. did
little to update their contingency plans. The plans, which the company must file with the EPA
every four years, likewise failed to include any measures to raise critical equipment like backup
generators above possible flood levels. Nor did the plans call for isolating hazardous materials
from high wind or water—two very common hazards of any hurricane or tropical storm that could
foreseeably and regularly hit the gulf coast.
55. Thus, it should come as no surprise that as news reports began warning of the
devastating rains that could be expected from Hurricane Harvey—nearly a week before its landfall,
few steps were taken at the Crosby facility to guard against the very threats that Arkema had
identified following Hurricane Ike. Instead, Defendants Arkema and Arkema S.A. transferred
their highly volatile products from its warehouse not off site—despite the fact that the Crosby
facility is in a flood plain—but instead, to diesel-powered refrigerated containers on site. Those
containers were not raised or elevated.
56. Defendants Arkema and Arkema S.A. then abandoned ship. One employee was
evacuated on Monday, August 28, 2017. Eleven other employees were evacuated the very next
day when the nitrogen refrigeration in the back-up containers also began to fail. By 7:00 PM on
August 29, 2017, the Crosby facility had been completely abandoned—there was no “ride out”
crew remaining. There were no monitors or means of preventing a catastrophic release and
18
Defendants Arkema and Arkema S.A. knew it.
57. After directing its employees to abandon the facility,7 Defendants Arkema and
Arkema S.A. and governmental officials established an arbitrary 1.5-mile radius was drawn around
the Crosby facility, and all residents in that radius were mandatorily evacuated from their homes
and businesses. Defendant Bureau Veritas was charged with monitoring the air quality of the
evacuation zone and worked hand-in-hand with Defendants Arkema and Arkema S.A. employees
in doing so.
58. Defendants Arkema, Arkema S.A., and Bureau Veritas failed to properly disclose
and warn Plaintiff of the dangers associated with the chemicals at the Crosby facility. Information
obtained post-incident indicates that
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MASTER DOCKET NO. 2020 MDL IN THE DISTRICT COURT IN RE: 333rd JUDICIAL DISTRICT ARKEMA, INC., LITIGATION OF HARRIS COUNTY TEXAS NO. CV1813081 LIBERTY COUNTY, TEXAS IN THE DISTRICT COURT Plaintiff, JUDICIAL DISTRICT ARKEMA, INC. Defendant OF LIBERTY COUNTY, TEXAS LIBERTY COUNTY, TEXAS’ SECOND AMENDED PETITION NOW COMES Liberty County, Texas, Plaintiff in the above entitled and numbered cause, and files this Second Amended Petition and respectfully shows the Court as follows: DISCOVERY CONTROL PLAN Pursuant to Rules 190.1 and 190.4 of the Texas Rules of Civil Procedure, Plaintiff files this petition under a Level 3 Discovery Control Plan. II. PARTIES A. PLAINTIFF 2. Plaintiff, Liberty County, Texas. B. DEFENDANTS 3. Defendant Arkema, Inc. (“Arkema”) is a Pennsylvania Corporation doing business in the State of Texas. Based upon information and belief, Arkema, Inc. is the owner of the property and facility located at 18000 Crosby Eastgate Road, Crosby, Texas 77532, hereinafter (“Crosby facility”). As detailed on its website, Arkema, Inc. maintains a corporate headquarters in Texas, located at 9502B Bayport Boulevard, Pasadena, Texas, 77507.1 Additionally, Arkema, Inc. is a subsidiary of Arkema, S.A. Arkema, Inc. has availed itself of the jurisdiction and laws of the State of Texas. Arkema, Inc., has previously answered and appeared in this action. 4. Defendant Bureau Veritas North America, Inc. (“Bureau Veritas”) is a Delaware Corporation doing business in the State of Texas. Based upon information and belief, Bureau Veritas provided air quality monitoring, recording, and reporting of the evacuation zone following the initial explosion at the Crosby facility and during the Arkema mandatory evacuation. Bureau Veritas consultants from its 16800 Greenspoint Park Drive, Ste. 3005, Houston Texas, 77060 location tested the air throughout the evacuation zone. Bureau Veritas has availed itself of the jurisdiction and laws of the State of Texas. Bureau Veritas may be served with process through its registered agent, C.T. Corporations System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201- 3136. 5. Defendant Arkema, S.A. (“Arkema S.A”) is a publicly traded foreign corporation having its principal place of business in Colombes, France. Arkema, S.A. is the parent corporation 1 https://www.arkema.com/en/all-arkema-locations/?country=northamerica/usa/. 2 of Defendant Arkema, Inc. Upon information and belief, Arkema, S.A. exercises complete dominion and control over its wholly-owned subsidiary, Defendant Arkema, Inc. such that they do not in reality constitute separate and distinct corporate entities, but are, instead, one and the same corporation for purposes of jurisdiction. Based upon information and belief, Arkema S.A. exercises and controls the internal business operations and affairs of its subsidiary, Defendant Arkema, Inc. As a result, Arkema, S.A. is responsible for the damages caused to the Plaintiff by its subsidiary. Further, Arkema, S.A. is directly responsible for its own conduct, failure to act, and negligence including but not limited to failing to exercise due diligence when it purchased the facility that is the subject of this lawsuit and in its failure to properly manage environmental risks, in its failure to insist that corporate environmental policies be followed and in its failure to properly capitalize Defendant Arkema, Inc. Arkema, S.A. managed, oversaw, planned, conducted, participated in, allowed, capitalized and profited from negligent, dangerous, hazardous and/or ultra-hazardous handling, storage, production and disposal of the toxic chemicals found at the facility which is the subject of this lawsuit. Defendants Arkema, Inc. and Arkema, S.A. are referred to herein collectively as “Arkema.” Service upon Arkema, S.A. can be obtained through the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. 6. Defendant CenterPoint Energy, Inc. (“CenterPoint”) is a Texas corporation and public utility responsible for providing electricity, electrical transformers, and other electrical conduits to the Crosby facility. CenterPoint improperly installed, maintained, connected, failed to elevate, and/or failed to comply with guidelines, best practices, rules, and/or regulations regarding the provision and maintenance of electrical services/connections within a flood zone. CenterPoint’s conduct contributed to the failure of the flow of electricity to critical facilities on the Crosby facility required to prevent the failure of the refrigeration system at issue in this case. 3 CenterPoint may be served with process by serving its registered agent CT Corporations System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201. 7. Defendant CenterPoint Energy Houston Electric, LLC (“CenterPoint Houston”) is a domestic limited liability company and public utility responsible for providing electricity, electrical transformers, and other electrical conduits to Arkema, Inc. and Arkema, S.A.’s Crosby facility. CenterPoint Houston improperly installed, maintained, connected, failed to elevate, and/or failed to comply with guidelines, best practices, rules, and/or regulations regarding the provision and maintenance of electrical services/connections within a flood zone. CenterPoint Houston’s conduct contributed to the failure of the flow of electricity to critical facilities on Arkema, Inc. and Arkema, S.A.’s Crosby facility required to prevent the failure of the refrigeration system at issue in this case. CenterPoint Houston’s principal office is located in Harris County, Texas. CenterPoint Houston may be served with process by serving its registered agent CT Corporations System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201. 8. Defendant Praxair Services, Inc. (“Praxair Services”) is a Connecticut corporation and it installed, manufactured, sold, maintained, and/or supplied the liquid nitrogen vessel at Arkema, Inc. and Arkema, S.A.’s Crosby facility. Based upon information and belief, the liquid nitrogen vessel provided the last backup measure to provide power to the refrigeration system at issue in this case. Further, based upon information and belief, Praxair Services did not properly install the liquid nitrogen vessel and/or install/place it at an adequate height for an area located within a flood zone. Additionally, Praxair Services did not have proper instructions and/or warnings accompanying the liquid nitrogen vessel regarding its proper installation/placement within a flood zone and/or failed to comply with guidelines, best practices, rules, and/or regulations regarding the installation/placement and maintenance of its liquid nitrogen vessel within a flood 4 zone. Praxair Services’ conduct contributed to the failure of the flow of electricity to critical facilities on Arkema, Inc. and Arkema, S.A.’s Crosby facility required to prevent the failure of the refrigeration system at issue in this case. Praxair Services may be served by serving its registered agent The Prentice-Hall Corporation System, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 9. Defendant Praxair, Inc. (“Praxair”) is a Connecticut corporation and it installed, manufactured, sold, maintained, and/or supplied the liquid nitrogen vessel at Arkema, Inc. and Arkema, S.A.’s Crosby facility. Based upon information and belief, the liquid nitrogen vessel provided the last backup measure to provide power to the refrigeration system at issue in this case. Further, based upon information and belief, Praxair did not properly install the liquid nitrogen vessel and/or install/place it at an adequate height for an area located within a flood zone. Additionally, Praxair, did not have proper instructions and/or warnings accompanying the liquid nitrogen vessel regarding its proper installation/placement within a flood zone and/or failed to comply with guidelines, best practices, rules, and/or regulations regarding the installation/placement and maintenance of its liquid nitrogen vessel within a flood zone. Praxair’s conduct contributed to the failure of the flow of electricity to critical facilities on Arkema, Inc. and Arkema, S.A.’s Crosby facility required to prevent the failure of the refrigeration system at issue in this case. Praxair may be served by serving its registered agent The Prentice-Hall Corporation System, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 10. Defendant Coolsys Energy Design, LLC (“Coolsys”) is a Delaware corporation and is registered to conduct business in the State of Texas. Based upon information and belief, Coolsys worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Coolsys may be 5 served with process by serving its registered agent Corporation Service Company d/b/a CSC- Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 11. Defendant Dacon Corporation (“Dacon”) is a Delaware corporation and is registered to conduct business in the State of Texas. Based upon information and belief, Dacon worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Dacon may be served with process by serving its registered agent Corporation Service Company d/b/a CSC- Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 12. Defendant Dashiell Corporation (“Dashiell”) is a Delaware corporation and is registered to conduct business in the State of Texas. Based upon information and belief, Dashiell worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Dashiell may be served with process by serving its registered agent Corporation Service Company d/b/a CSC- Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 13. Defendant Infinity Construction Group, LLC (“Infinity Group”) is a Texas corporation. Based upon information and belief, Infinity Group worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Infinity Group may be served with process by serving its registered agent CMF Management, LLC, 26203 Oak Ridge Drive, Suite 200, The Woodlands, Texas 77380. 6 14. Defendant Infinity Construction, LLC (“Infinity”) is a Texas corporation. Based upon information and belief, Infinity worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Infinity may be served with process by serving its registered agent Legalinc Corporate Services, Inc. 10601 Clarence Drive, Suite 250, Frisco, Texas 75033. 15. Defendant Infinity Construction Services, LP (“Infinity Services”) is a Texas corporation. Based upon information and belief, Infinity Services worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Infinity Services may be served with process by serving its registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 16. Defendant Loftin Equipment Company (“Loftin”) is an Arizona corporation and is registered to conduct business in the State of Texas. Based upon information and belief, Loftin worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Loftin may be served with process by serving its registered agent Bryan Dietert, 61133 Brittmoore Road, Houston, Texas 77041. 17. Defendant M&I Electric LLC (“M&I”) is a Delaware corporation and is registered to conduct business in the State of Texas. Based upon information and belief, M&I worked on, maintained, installed, was consulted with or was otherwise involved in the installation of 7 “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. M&I may be served with process by serving its registered agent Gary Court, 109 Gate Drive, League City, Texas 77573. 18. Defendant Seaboard Controls, LLC (“Seaboard”) is a Texas corporation. Based upon information and belief, Seaboard worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Seaboard may be served with process by serving itsregistered agent Phillip Muro, 4870 Highway 90 West, Crosby, Texas 77532. 19. Defendant Service Refrigeration, LLC (“Service Refrigeration”) is a Texas corporation. Based upon information and belief, Service Refrigeration worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Service Refrigeration may be served with process by serving its registered agent Corporation Service Company d/b/a/ CSC- Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 20. Defendant Star Service, Inc. d/b/a Star Service, Inc. of Houston (“Star Service”) is a Louisiana corporation and is registered to conduct business in the State of Texas. Based upon information and belief, Star Service worked on, maintained, installed, was consulted with or was otherwise involved in the installation of “electrical connections” and “electrical conduits” at Arkema, Inc. and Arkema, S.A.’s Crosby facility within the five years prior to the incident made the basis of this lawsuit. Star Service may be served with process by serving its registered agent 8 Corporation Service Company d/b/a/ CSC-Lawyers Incorporated, 211 E. 7th Street, Suite 620, Austin, Texas 78701. 21. Plaintiff specifically invoke the right to institute this suit against whatever entities were conducting business using the assumed or common names listed above with regard to the events described in this Petition. Plaintiff specifically invoke their right under Rule 28 of the Texas Rules of Civil Procedure to have the true name of any party substituted at a later time upon the motion of any party or of the Court. III. VENUE AND JURISDICTION 22. The Court has jurisdiction of the subject matter of this lawsuit and the amount in controversy is above the minimum jurisdictional limits of this Honorable Court as Plaintiff seeks aggregate monetary relief over $1,000,000.00. 23. Pursuant to Texas Civil Practice and Remedies Code section 15.002(a)(1), Liberty County is the proper venue because it is the county in which all or a substantial part of the events or omissions giving rise to this lawsuit occurred. IV. FACTUAL BACKGROUND Summary of the Case 24. Defendants chose to manufacture and store hazardous, combustible chemicals on property that was located in an electrified flood zone. Defendants knew that the highly volatile nature of the chemicals stored in the flood zone required refrigeration, which in turn required uninterrupted electricity services. Despite the fact that Defendants knew or should have known that uninterrupted electricity services were necessary to prevent the combustion of hazardous chemicals that would release harmful pollutants, they did nothing to prevent or avoid the 9 combustion of the dangerous chemicals when a hurricane was slated to hit the Texas Gulf Coast. Inevitably, Defendants’ negligence resulted in the combustion of these dangerous chemicals, causing injuries to Plaintiff. Hurricane Harvey Hits the Texas Gulf Coast. 25. On or about August 25, 2017, Hurricane Harvey struck the coast of the State of Texas as a Category 4 hurricane. Subsequently, Hurricane Harvey moved slightly inland and stalled for several days, all the while churning massive amounts of rain into the southeast Texas area, including east Harris County, where the town of Crosby, Texas resides. 26. Over the course of those several days, Hurricane Harvey dropped in excess of fifty inches of rain in and around Crosby, Texas. While Hurricane Harvey did cause massive devastation as a result of the rain, residents and businesses in southeast Texas were given several days’ notice a major rain event was coming.2 Moreover, this was not the first time Houston has seen massive amounts of rain, nor was it the first time that widespread areas of Houston and surrounding areas have suffered from flooding as a result of massive amounts of rain. As a matter of fact, this had happened so many times before that most industries, private businesses, and even governmental agencies had put in place physical structures and written procedures to prevent harm and damage to their properties and the people in their communities. Unfortunately for Plaintiff Defendant Arkema failed to heed the warnings and ignored the foreseeable consequences of failing to prepare. 2 Hurricane Harvey traveled through the Gulf of Mexico for days before making landfall on August 25, 2017. On August 24, 2017, it was clear that the storm would make landfall in southeast Texas. Hurricane Harvey spawned off the west coast of Africa on August 12, 2017, and by August 19, 2017, it moved over the central Caribbean Sea. By August 22, 2017, Hurricane Harvey moved towards the Gulf of Mexico, hovering over the Yucatan Peninsula, intensifying in strength.https://www.nhc.noaa.gov/data/tcr/AL092017_Harvey.pdf. 10 “Arkema—Innovative Chemistry” 27. Defendants Arkema and Arkema S.A. are specialty chemicals manufacturers that “supports the chemical industry by developing intermediate products which are essential to manufacturing processes. Its products are also used in the operating processes of industrial facilities.”3 Worldwide, Defendants Arkema and Arkema S.A. have annual sales of EUR 5.7 billion (US $7 billion) and 15,200 employees, eighty industrial sites in more than forty countries and six research and development centers. 28. Defendants Arkema and Arkema S.A. own and operate plants and facilities throughout the world, including facilities in Bayport, Texas, Beaumont, Texas, Clear Lake, Texas, Houston, Texas, and Crosby, Texas. Its Crosby facility is located 18000 Crosby Eastgate Road, Crosby, Texas 77532. The site, at 18000 Crosby Eastgate Road, is located in a floodplain/flood zone and has experienced flooding in the past. 29. Defendants Arkema and Arkema S.A. contend its Crosby facility “is in a rural area with no hospitals, schools, correctional facilities or recreational areas or industrial/commercial areas in the vicinity” yet Crosby High School and Crosby Middle School are a mere five miles away; Crosby Church is less than three miles away; Newport Elementary is less than six miles 3 https://www.arkema.com/en/markets-and-solutions/solutions/plastics-and-additives/. 11 away; and hundreds of homes are within 1.5 miles of the plant. When the radius is expanded to five miles, well over one-thousand Crosby residents live within the immediate vicinity. 30. The Crosby facility produces liquid organic peroxides that are primarily used in the production of plastic resins, polystyrene, polyethylene, polypropylene, PVC and polyester reinforced fiberglass, and acrylic resins.4 By its own admission, organic peroxides are unstable and must be maintained and stored in refrigerated temperatures to avoid their deterioration. Thus, safe handling of these volatile chemicals is required. Arkema Has a Long History of Mishandling the Volatile Chemicals it Produces. 31. According to its June 2014 Risk Management Plan for the Crosby facility,5 Defendant Arkema “is committed to employee, public, and environmental safety by conducting its operations in a safe and responsible manner.” Its history, however, says otherwise. 32. Despite the volatility of its products, in recent history, Defendants Arkema and Arkema S.A. have been repeatedly cited for mishandling the chemicals it produces. For example, in 2006, the Crosby facility was cited and subject to penalties by the Texas Commission on Environmental Quality (“TCEQ”) because of a fire caused by Defendants’ failure to appropriately store organic peroxides. Records show a pallet of organic peroxide was poorly stored, resulting in the fire, and causing more than a ton of volatile organic compounds to be discharged. Three- thousand two-hundred pounds of volatile organic compounds along with other harmful pollutants 4 According to Arkema, the following raw materials are maintained on site: 2-ethylhexanoyl chloride distilled; acetic acid 84%; acetone; aromatic 100; benzoyl chloride; caustic potash 45%; caustic soda 50%; cumene hydroperoxide; dimethyl hexadiene; dimethyl hexane diol DH-S; Epsom salts;hexane; hydrogen peroxide 70%; isoamylene; isobutylene; isopropryl alcohol; mineral oil, white; mineral spirits odorless; monosodium phosphate; neodecanoyl chloride; pivaloyl chloride 95-100%; propylene glycol; sodium bicarbonate; sodium bicarbonate anhydrous light; sodium chloride; sodium sulfate anhydrous; sodium sulfite anhydrous; sulfur dioxide; sulfuric acide 93% reagent ACS; T-butyl hydroperoxide 70%. https://www.arkema-americas.com/en/social-responsibility/incident-page- 2/products-and-raw-materials/ 5 Arkema’s risk management plans (“RMP”) are subject to a five year update, pursuant to 40 FR 68.190(b)(1). Its most recent RMP was filed 6/11/2014. 12 were released. 33. Just five years later, in 2011, the facility was again cited and penalized for failure to maintain proper temperatures of the thermal oxidizer. The TCEQ found that Defendants Arkema and Arkema S.A. had failed to keep thermal oxidizers, used to decompose hazardous gases, at high enough temperatures over the course of several months. In a 2012 letter, the Occupational Safety and Health Administration (“OSHA”) said Defendant Arkema’s storage plants lacked “design calculations for the worst case scenario.” 34. A 2015 report by the Center for Effective Government focused on Defendant Arkema and six other chemical plants and found that those plants sometimes led the nation in safety violations, according to a compilation of government inspection records from 2012 to 2014. Per the report, during that time period, Arkema accumulated nearly eighty violations at its various U.S. facilities. 35. In 2016, OSHA originally fined Defendant Arkema $100,000, but the fine was later reduced to $91,724. OSHA cited and fined Defendant Arkema after finding ten violations at the Crosby facility, many involving the mishandling of hazardous materials. Environmental Protection Agency (“EPA”) records as recent as 2016 revealed Defendant Arkema stores a number of suspected or known carcinogens at its Crosby facility, including cumene and benzoyl chloride. Eight of the ten violations fall under the category of “process safety management of highly hazardous chemicals,” meaning Defendant Arkema was breaking rules meant to prevent the “catastrophic releases of toxic, reactive, flammable, or explosive chemicals.” 36. And while Defendant Arkema purportedly maintains “an accidental release prevention program” to “minimize the risk of hazardous chemical releases,” those programs have clearly failed. Defendants Arkema and Arkema S.A. and their Crosby facility have racked up over 13 a dozen violations and “informal enforcement actions” over safety and environmental problems over the past five years, according to records from the EPA and OSHA. 37. Records indicate Defendants Arkema and Arkema S.A. have had a history of utilizing equipment when safety systems were not working properly. Those records further indicate that Defendants Arkema and Arkema S.A. failed to inspect and/or test as recommended.6 In one unit, the company also failed to ensure equipment there was safe and/or failed to keep its nearly sixty employees up to date on their training. 38. In short, while Defendant Arkema contends “there have been no accidental releases of applicable RMP chemicals from [its] facility” from 2009-2014, that simply is not the truth. Defendant Arkema has a pattern and practice of cutting corners, failing to properly maintain the Crosby facility, and failing to properly store and maintain the highly volatile chemicals it produces. The events following Hurricane Harvey were a forgone conclusion. 39. Defendants Arkema and Arkema S.A. consciously chose to manufacture its hazardous chemicals in a flood zone. It was on notice that the property could be inundated by flood waters. In fact, flooding had occurred at the Crosby facility twice before the events giving rise to this suit. Due to the two prior instances of flooding, the risk of flooding at the Crosby facility was reasonably foreseeable and the risks associated with flooding should have been addressed prior to the arrival of Hurricane Harvey. 40. Furthermore, Defendants Arkema and Arkema S.A. knew its chemicals had to be refrigerated at all times. Yet, with full knowledge of both the risks of flooding and the need for constant refrigeration, Defendants Arkema and Arkema S.A. decided to maintain unreasonable 6 Yet, in Defendant Arkema’s June 2014 RMP, it contends that “environmental and safety critical equipment is inspected on a planned, periodic basis to ensure proper operating conditions.” 14 and inadequate electrical connections at the site and did not follow Federal Emergency Management Agency (“FEMA”) guidelines to flood proof the site. 41. When flooding was actually occurring at the Crosby facility, Defendant Arkema sent all non-essential personnel away. It took no action to neutralize or stabilize their volatile chemical products. It relied entirely upon an electrical system which was unreasonably designed and constructed for a known flood zone. 42. When the Crosby facility inevitably flooded, the poorly designed and constructed electrical systems were compromised and failed. This led to a loss of refrigeration, whereby the chemicals were allowed to overheat, combust, and openly burn, which released toxic pollutants into the air for miles. Electrical Systems at the Crosby Facility Were Negligently Designed, Installed, and Maintained. 43. Additionally, Defendants CenterPoint, CenterPoint Houston, Coolsys, Dacon, Dashiell, Infinity Group, Infinity, Infinity Services, Loftin, M&I, Seaboard, Service Refrigeration, and Star Service (collectively referred to as “Utility Defendants”) knew or should have known that the provision of electricity at the Crosby facility would be within a flood zone. The Utility Defendants knew or should have known that there were specific rules, regulations, standards, and codes governing how electrical equipment, connections, conduits and structures were to be installed, designed, and maintained in flood zones. 44. Despite having actual and/or constructive knowledge of those codes and standards, the Utility Defendants knowingly violated, disregarded, and ignored the specific standards/codes intended and created to avoid the type of loss of electricity Defendants Arkema and Arkema S.A. contend contributed to the release of the deadly toxins/chemicals from its facility. 45. The electrical connections were located at or below the elevations reasonably 15 necessary to avoid or prevent flood waters from compromising the provision of electricity to the facility. Furthermore, in other areas where the electrical connections were flooded, the Utility Defendants constructed the connections in such a manner that the flow of electricity would be compromised in the event of flooding. For example, electrical transformers were placed no more than ten inches off the ground in a known flood zone. 46. The National Electric Code and FEMA guidelines have clear standards to minimize loss of electrical services during flooding. Despite these standards, the Utility Defendants failed to comply, which caused electrical services at the facility to be lost. 47. Additionally, the electrical systems at the Crosby facility were all tied to a single point of failure, which meant that a failure at that one point compromised the entire system. 48. All Defendants were negligent in implementing and relying on the compromised and non-compliant electrical system. They failed to design and install reliable secondary backup systems not dependent on a single point of failure. Defendants’ negligence in both design, location, installation, wiring, and maintenance of the electrical systems at the facility caused a loss of electricity, which in turn caused the refrigeration systems to cease functioning, allowing the chemicals to rise in temperature and combust, releasing toxic and harmful pollutants. The Crosby Facility’s Electrical Transformers Were Negligently Designed, Marketed, and Did Not Have Adequate Warnings When Installed. 49. The electrical transformers at the Crosby facility were negligently designed. Although the electrical transformers were pad mounted, they were not high enough off of the ground to be protected against potential flooding. Based upon information and belief, when the electrical transformers were installed, Defendants Praxair and Praxair Services (collectively “Electrical/Backup Equipment Defendants”) marketed the electrical transformers to be installed without considering the relevant topographical and environmental concerns of the installation area. 16 Further, there were no warnings on the electrical transformers regarding installing them in a high- risk flood area. 50. Even after these electrical transformers were serviced and inspected, especially after previous major rain events such as Hurricane Ike, the Electrical/Backup Equipment Defendants and/or Utility Defendants never raised or elevated the electrical transformers at the Crosby facility. Arkema’s Backup Plan for Electrical Failure Was Ineffective. 51. Defendants Arkema and Arkema S.A.’s backup plan in the event of electrical failure was ineffective. In the event its electrical transformers failed, two generators were assigned to power the refrigeration system to keep the organic peroxides from decomposing. The generators, however, we placed too low to the ground for being within a flood zone. By the time the generators were needed as a result the electrical transformers flooding during Hurricane Harvey, the generators were also inundated with water and flooded, rendering them useless. 52. Defendants Arkema and Arkema S.A.’s contingency plan, in the event the generators failed, was having liquid nitrogen power the refrigeration system. Arkema’s liquid nitrogen vessel’s delivery system was also too low to the ground. In an area prone to flooding, this placement was negligent. Defendants Praxair and Praxair Services, as the entities that manufactured, installed, serviced, and/or inspected Arkema’s liquid nitrogen vessel at the Crosby facility, should have taken measures to prevent the liquid nitrogen vessel’s nitrogen delivery system from potential flooding. Further, the liquid nitrogen was Defendants Arkema and Arkema S.A.’s ultimate safety net to prevent loss of power. Therefore, it should not have been inaccessible during a flood event. 53. Defendants Arkema and Arkema S.A.’s lack of care and attentiveness to its 17 electrical system and backup system during a potential heavy rain and flood event was unreasonable considering the fact that its Crosby facility was located in a flood plain. 54. Precautions Were Never Taken. In 2008, Hurricane Ike made landfall over Galveston, killing 103 people and causing more than $50 billion in damage. The following year, Defendants Arkema and Arkema S.A. identified floods and hurricanes — as well as power failure and loss of cooling — as threats to its Crosby site. Still, Defendants Arkema and Arkema S.A. did little to update their contingency plans. The plans, which the company must file with the EPA every four years, likewise failed to include any measures to raise critical equipment like backup generators above possible flood levels. Nor did the plans call for isolating hazardous materials from high wind or water—two very common hazards of any hurricane or tropical storm that could foreseeably and regularly hit the gulf coast. 55. Thus, it should come as no surprise that as news reports began warning of the devastating rains that could be expected from Hurricane Harvey—nearly a week before its landfall, few steps were taken at the Crosby facility to guard against the very threats that Arkema had identified following Hurricane Ike. Instead, Defendants Arkema and Arkema S.A. transferred their highly volatile products from its warehouse not off site—despite the fact that the Crosby facility is in a flood plain—but instead, to diesel-powered refrigerated containers on site. Those containers were not raised or elevated. 56. Defendants Arkema and Arkema S.A. then abandoned ship. One employee was evacuated on Monday, August 28, 2017. Eleven other employees were evacuated the very next day when the nitrogen refrigeration in the back-up containers also began to fail. By 7:00 PM on August 29, 2017, the Crosby facility had been completely abandoned—there was no “ride out” crew remaining. There were no monitors or means of preventing a catastrophic release and 18 Defendants Arkema and Arkema S.A. knew it. 57. After directing its employees to abandon the facility,7 Defendants Arkema and Arkema S.A. and governmental officials established an arbitrary 1.5-mile radius was drawn around the Crosby facility, and all residents in that radius were mandatorily evacuated from their homes and businesses. Defendant Bureau Veritas was charged with monitoring the air quality of the evacuation zone and worked hand-in-hand with Defendants Arkema and Arkema S.A. employees in doing so. 58. Defendants Arkema, Arkema S.A., and Bureau Veritas failed to properly disclose and warn Plaintiff of the dangers associated with the chemicals at the Crosby facility. Information obtained post-incident indicates that