(7c) Legal Liability Issues for Chemical Engineers Facing Extreme Weather Events

With Hurricane Harvey’s devastation, including flooding and fire resulting in criminal indictments against Arkema’s plant manager and CEO, in the context of new trends in civil litigation from citizen suits to common law actions, defining causes of action, including new claims attributed to climate change, and redefining the scope of defenses and immunities, there is greater concern among engineering and management professionals regarding litigation risk and potential liability arising from individual or managerial actions undertaken on behalf of an employer or client. These concerns are exacerbated by greater ability to forecast anticipated impacts from storm events in hurricane prone areas, particularly considering the conclusions reached by the Chemical Safety Board in its Arkema Final Report, which also suggested further action by AIChE’s Center for Chemical Process Safety.

This presentation, developed specifically for AIChE members by an AIChE Fellow and senior environmental attorney, will review the following issues relevant to individual, managerial and professional liability: classes of defendants including managers, employees, licensed and unlicensed professionals, independent contractors; types of civil and criminal claims; standing and threshold issues; general defenses and immunities. Ms. Ternes will then review scenarios where litigation risk may arise, and the legal and factual bases upon which a finding of civil or criminal liability may turn, illustrated by case studies including: the Arkema air pollutant releases during Hurricane Harvey, reviewing the State of Texas indictments, and the Chemical Safety Board Arkema Final Investigation Report, “Organic Peroxide Decomposition, Release, and Fire at Arkema Crosby Following Hurricane Harvey Flooding” (Aug. 31, 2017); the citizen suit litigation styled Conservation Law Foundation v. Exxon Mobil Corp., Case 1:16-cv-11950-MLW (Mass. D. Ct.); and time permitting, the Gold King Mine event, including a review of the EPA’s After-Action Review (Jan. 13, 2017), and related litigation, New Mexico v. U.S. EPA, 310 F. Supp. 3d 1230 ( Feb. 12, 2018).

Ms. Mary Ellen Ternes, B.E. (ChE), J.D., is a former EPA On-Scene Coordinator for Superfund Emergency Response (HAZWOPER, incident response, mitigation and treatment methods, chemical safety audits, sampling and risk assessment, managing over 15 removal actions and over 5 major emergency responses), EPA hazardous waste incinerator permit writer and permitting/compliance manager for commercial hazardous waste incineration and Superfund on-site incineration projects. Building on her hazardous waste and combustion work, over the past twenty-three years as environmental counsel, Ms. Ternes has advised industry regarding environmental regulation, compliance strategies, remediation, transactions and litigation, particularly regarding chemical plant, air pollutant and hazardous materials regulation, response and remediation. Ms. Ternes is an AIChE Fellow, and a Fellow of the American College of Environmental Lawyers.