The massive chemical fire that broke out on Saint Patrick's Day at the Intercontinental Terminals Company site near Houston, Texas was finally contained on Friday evening. Last week, fumes from highly toxic chemicals – including naphtha, xylene, and toluene – created a veritable witches' brew of hydrocarbons that filled the air, causing respiratory distress, eye, nose and throat irritation, headaches, nausea, and dizziness.
Chemicals have also been released into the waters of the Houston Ship Channel and nearby wetlands, where benzene concentrations of up to 1000 parts per billion (ppb) have been found (over five-and-a-half times the maximum “safe” level, according to the EPA). So far, there have been more than 3 million pounds of toxic emissions, according to the Texas Commission on Environmental Quality (TCEQ).
As the cleanup and investigations commence, so does legal action. Texas governor Greg Abbot announced on Friday that the TCEQ is “exploring every legal avenue to hold the company accountable.” The state's Attorney General, Ken Paxton, has already filed an environmental lawsuit against ITC for violations of the Texas Clean Air Act.
In an apparent attempt to head off lawsuits from individuals and local businesses, ITC has set up a website for the submission of claims. The company suggests that anyone who has suffered economic losses because of the fire submit a claim directly. According to the website, ITC “will consider reimbursement for property damages, business losses, wage loss and possibly other incurred expenses directly resulting from the incident, if supported by credible evidence.”
Should you file an individual claim directly with the company? Probably not, says environmental litigation attorney Mike Papantonio. By filing a claim with ITC, you will be surrendering your rights to file a lawsuit at a later time. In fact, ITC is quite forthcoming about this: the form clearly states, “No payment will be made by or on behalf of ITC without the claimant executing a release of all claims against ITC and its underwriters.” In other words, if you submit a claim with ITC today and three years from now are diagnosed with a serious illness because of chemical exposure, you will be out of luck.
If there was ever an example of a corporate recidivist, it would be ITC. According to official records, ITC has been guilty of releasing toxic chemicals into the air nearly 40 times in the last 15 years. Since 2015, the company has been in violation of the Clean Air Act nine times.
The Houston Chronicle reports that ITC has violated federal clean air and water regulations on numerous occasions over the last decade, and has been cited for failure to follow proper risk management procedures. In 2017, the company was fined for the release of cyanide into the San Jacinto River at over 10 times the legal limit. The year before, it was sulfide, and in 2015, it was chlorine.
Unfortunately, the penalties assessed against ITC for these violations amounted to little more than pocket change. None of the fines exceeded $65,000. Most were far less. According to the Environment Texas, only 2 percent of emissions over legal limits have ever resulted in fines. It appears that the only way ITC will ever be held truly accountable will be through civil litigation.