A victory in the Wheeler v. Arkema Plant Fire Case in Crosby, TX occurred yesterday. Judge Ellison of the Federal District Court for the Southern District of Texas issued an Order certifying a class of approximately 28,000 people (over 10,000 properties). The full 111-page order can be read here: Arkema Ruling on Class Certification and Daubert Motions
Arkema’s Impact on the Community
The litigation stems from massive fires at the Arkema Crosby facility that occurred Labor Day weekend 2017 as Hurricane Harvey was approaching. Arkema’s facility was built in a flood plain and was known to flood. Despite this, Arkema continued to manufacture heat sensitive and highly combustible products as Hurricane Harvey was predicted to impact the area.
350,000 pounds of combustible and toxic chemicals were threatened when Arkema lost power and its cooling systems. The products began to break down and combust. While some of the materials caught fire on their own, Arkema intentionally ignited the remaining trailers. The result was devastating for the community.
Some impacts were immediate, but the residents remain concerned that their properties are contaminated and their exposure to the toxic pollutants may lead to future health impacts.
Motion for Class Certification
Plaintiffs proposed a class which included “All residents and real property owners located within a 7-mile radius of the Crosby, Texas, Arkema Chemical Plant” to ensure that the full extent of Arkema’s impact was accounted for.
Plaintiffs presented evidence on dispersion and deposition showing where the plume reached and fallout occurred. Additionally, Plaintiffs presented evidence from over 20,000 lab analyses run from the Arkema facility and within the class area. Live testimony from Plaintiffs’ experts Dr. Marco Kaltofen and Marc Glass also helped with the presentation of evidence demonstrating a class impact and class remedies. Experts also testified about the potential health risks from exposure to the various chemicals emitted.
Class for Plant Fire Impacts
Judge Ellison certified an injunctive class under Rule 23(b)(2) for “All residents and real property owners located within a 7-mile radius of the Crosby, Texas, Arkema Chemical Plant.” The proposed injunctive relief sought on behalf of the class includes a full CERCLA style characterization and remediation as well as a medical surveillance program to study the novel exposures and educate the community of the risks.
What does this mean for the Community?
Having a class for a plant fire case helps the community get relief that individual lawsuits simply cannot accomplish.
Property Characterization and Remediation
Here, investigating and cleaning up an individual property in the class area simply won’t limit the hazards from the overall increase in contaminants in the area. Instead, a class-wide program to evaluate the contamination and clean it up will provide peace of mind and assurances that the environmental impact in the community is resolved.
The same is true for the medical surveillance class. The exposures from Arkema are novel and the combined health impacts have yet to be studied. Class relief will ensure that the community impact is studied and used to inform the individuals from the impacted area.
The next step is to proceed on the merits and demonstrate Arkema’s liability. If successful on the merits, the entire class will reap the benefits. Arkema will have to implement these programs to remedy the environmental disaster it caused.
Arkema Plant Fire Class Counsel
Judge Ellison appointed Michael G. Stag and Ashley Liuzza and the law firm of Stag Liuzza, LLC; Van Bunch and the law firm of Bonnett Fairbourn Friedman & Balint, P.C.; Mark F. Underwood and the law firm of Underwood Law Offices; and Kevin W. Thompson and the law firm of Thompson Barney as Co-Lead Class Counsel.