Arkema is being charged with recklessness, which is very unusual. This is a criminal act, think reckless driving.
Typically, in a case like this, the State agency in charge of environmental regulations will cite the violating firm for criminal violations of State Law for chemical releases. However, this action might not be taken in Texas because the State is controlled by people that prefer to sue the EPA rather than to enforce environmental laws.
The Environmental Protection Agency and the Texas Commission on Environmental Quality also are investigating the incident, though their results have not yet been released.
Sometimes a person's conduct is so reckless that it becomes the basis for a lawsuit or criminal prosecution. If a person acts with such utter disregard for the safety of others -- and knows (or should know) that his actions may cause harm to someone else -- he may be liable for injuries caused by his recklessness.
There are four basic theories of liabilities which, depending on the type of lawsuit, can render a defendant liable for injuries he or she causes.
1. Intent (also called willfulness) means the person acted with the intent to cause harm.
2. Recklessness means the person knew (or should have known) that his or her action were likely to cause harm.
3. Negligence means that the person acted in violation of a duty to someone else, with the breach of that duty causing harm to someone else.
4. Strict liability is reserved for certain specific situations where someone can be held liable for harms they cause no matter what their mental state was.
Recklessness involves conduct that is short of actual intent to cause harm, but greater than simple negligence. Unlike negligence -- which occurs when a person unknowingly takes a risk that they should have been aware of -- recklessness means to knowingly take a risk.
State laws prohibit many reckless behaviors and look upon reckless actors as social dangers because they gamble with other people's safety. A person who has been injured from a civil claim of recklessness of another may recover compensation for any resulting medical expenses, lost wages, rehabilitation, pain, and suffering. In addition, recklessness may also allow recovery from certain people who are typically immune from liability for mere negligence, such as government workers and health care professionals.
Link to recklessness
The Texas Penal Code says someone acts recklessly when: he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. It is possible the documents could help establish the standard of care an ordinary person would exercise.
Prosecutors filed documents from Akzo Nobel's Pasadena plant, including a hurricane preparedness plan, emails that detail the days before and after Hurricane Harvey and packing slips that show the company shipped hundreds of thousands of volatile chemicals to New York before the storm moved in for safekeeping.
Similar to Arkema, Akzo houses chemicals that must be refrigerated at all times or will begin to degrade and catch on fire.
The documents show Akzo plant managers ordered the plant be emptied on Thursday, Aug. 24, twelve hours before Harvey made landfall near Rockport, Texas.
As previously mentioned, Arkema's preparedness plan was
Lawsuits Question Arkema Emergency Preparedness Plan
Arkema Officials Were Warned of Flood Risks a Year Before Hurricane Harvey
The Emergency Response Plan had a one paragraph section on flooding:
"Care shall be taken to be sure water is kept out of equipment, shops, control rooms, offices, etc. These areas are to be checked during severe rainstorms
to prevent damage or personal injuries. Non-essential personnel are to be released when appropriate."
