Mounting Liability on Gulf Coast: Corexit Maker Will Not Get Immunity from Thousands of Personal Injury Claims

Treating the oil spill in the gulf with Corexit: Spraying chemical dispersant Corexit in the Gulf of Mexico.

Treating the oil spill in the gulf with Corexit: Spraying chemical dispersant Corexit in the Gulf of Mexico.

Stuart H. Smith
Story originally published on Stuart Smith Blog

It’s been a brutal few weeks for BP and the other companies involved in last year’s Gulf oil spill. BP in particular has been throttled by a barrage of bad news as the date looms for the massive multi-district liability trial to begin in New Orleans.

A highly critical government report released last month blasts BP for egregious safety lapses and reckless cost-cutting efforts – opening the door to hefty punitive-damage awards and greatly increasing the likelihood that criminal charges will be brought.
At the same time, two academic studies signaled that BP’s liability could be much farther-reaching than the company and its attorneys predicted. One study focuses on the spill-related developmental and reproductive problems of the Gulf’s killifish while the other reveals that the oil BP sunk to the seafloor with dispersant isn’t breaking down as expected (see links to my previous posts below).

Well, if the defendants thought it couldn’t get any worse, they need to think again – and those who thought they were immune from prosecution should go ahead and lawyer up if they haven’t already.

You see, up to this point, the bulk of the liability had been tied to the 200 million gallons of oil that BP’s Macondo Well spewed into the Gulf. But now, according to an Oct. 3 report from Courthouse News, a federal judge has ruled that the “companies involved in the use of the dispersant Corexit during the Deepwater Horizon spill last year cannot get immunity from what may be hundreds of thousands of personal injury claims.”

As the magnitude of the disaster came into view shortly after the deadly April 20, 2010, explosion on the Deepwater Horizon rig – with thousands of gallons of oil belching into the Gulf each day – BP began directing third-party cleanup crews to apply the toxic dispersant Corexit both by subsea injection and aerial surface spraying. By the end of the spill response, an unprecedented 1.8 million gallons of the dispersant had been applied.

To bring everybody up to speed, Corexit is a solvent known to be potentially harmful to red blood cells, the kidneys and the liver. It’s also known to irritate the eyes and skin. Experts became familiar with these symptoms more than 20 years ago. According to the Alaska Community Action on Toxics, the use of Corexit during the Exxon Valdez oil spill caused people “respiratory, nervous system, liver, kidney and blood disorders.” There are peer-reviewed studies that detail what happens when people are exposed to these dispersant chemicals – and many on the Gulf Coast are now suffering the consequences of that exposure.

The federal government, BP and Nalco (maker of Corexit) all knew the risks. From the Oct. 3 Courthouse News report:

Early on, the Environmental Protection Agency told BP to stop using Corexit because of the dispersant’s known toxicity, but BP objected and continued to use the chemical.

Part of the massive multidistrict litigation for the oil spill involves claims by those who have allegedly suffered injuries from exposure to Corexit.

The dispersant’s manufacturer, Nalco, tried to dismiss these claims by noting that it merely followed orders passed down from the President of the United States in distributing the highly toxic chemical. Corexit is banned in several countries including the U.K. because of its known toxicity. If Nalco had been following federal orders, it could have sought immunity under two separate rules: the government contractor defense and a provision of the Clean Water Act (CWA) that protects any private contractor following orders from the federal government.

In a major victory for spill victims, Nalco will not be able to hide behind the federal government. U.S. District Judge Carl Barbier, who is overseeing the spill litigation, ruled last Friday that the Corexit maker was following orders not from the government but from BP – and consequently can be held liable for damages associated with the chemical dispersant.

The judge’s ruling covers all claims contained in what is known as the “B3 pleading bundle.” More from the Courthouse News report:

B3 claims pertain to post-explosion oil spill-related personal injuries. Because even Gulf Coast residents who suffered injuries from oil or Corexit are named generally as plaintiffs in some of the complaints, B3-related claims could potentially number in the hundreds of thousands.

That’s catastrophic news for Nalco. The company is now bracing for what could be a catastrophic hit to its bottom line. According to the master complaint:

[The B3 pleading bundle] alleges the oil and/or dispersants caused some plaintiffs headaches, nausea, vomiting, respiratory problems, eye irritation, rashes, lesions, and burns. …Moreover, it is claimed that exposure ‘may lead to serious problems, disease, and medical conditions’ and plaintiffs are at a ‘significantly increased risk of contracting serious latent disease.’

The B3 master complaint alleges that BP…

Continue reading story here.

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