© n/aSpraying chemical dispersant Corexit in the Gulf of Mexico
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.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.
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.
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 continued to use the toxic dispersant despite the fact that the federal government had recommended against it. And as Judge Barbier notes in his summary of the complaint: "The CWA and its corresponding regulations require government authorization before any dispersants are used." The EPA - less than month after the spill began - directed BP to stop using Corexit and to switch to a less toxic dispersant (of which there are many). More from Judge Barbier's complaint summary:
On or about May 19, 2010, the U.S. Environmental Protection Agency (EPA) Administrator directed BP within 24 hours of issuance to identify and to change to chemical dispersants that are less toxic than Nalco's Corexit® dispersants BP had been using.BP continued to direct third parties to apply Corexit for several months after the EPA's initial order to stop, posing untold health risks to cleanup workers and subjecting the Gulf ecosystem to potentially irreparable damage.
On May 20, 2010, BP objected to changing dispersants and notified the EPA that it would continue using Nalco's Corexit.
BP and clean-up defendants used and, upon information and belief, continue to use the dispersants Corexit® 9500 and 9527 (more than 1.8 million gallons to date) to disperse the crude oil...
As for the effects on human health, consider this from an Oct. 3 Al Jazeera report:
...[S]ince July 2010, Al Jazeera has spoken with scores of Gulf residents, fishermen, and clean-up workers who have blamed negative health effects on the chemicals from BP's oil and dispersants.I have heard many - too many - similar accounts. Independent scientists have said that Corexit is four times as toxic as the oil itself. And it's important to note that BP had plenty of other less-toxic dispersants at its disposal - and they happen to be more effective than Corexit in breaking down Louisiana sweet crude. Consider this from a May 13, 2010, report from the New York Times environmental blog Greenwire:
... Al Jazeera recently spoke with Steven Aguinaga, a 33-year-old father of three who confirmed that he acquired "critically high levels of chemicals" in his body after swimming with his friend Merrick Vallian at Fort Walton Beach, Florida, in July 2010.
"At the time I had no knowledge of what dispersants were, but within a few hours, we were drained of energy and not feeling good," said Aguinaga. "I've been extremely sick ever since."
So far, BP has told federal agencies that it has applied more than 400,000 gallons of a dispersant sold under the trade name Corexit and manufactured by Nalco Co., whose current leadership includes executives from BP and Exxon. And another 805,000 gallons of Corexit are on order, the company said, with the possibility that hundreds of thousands of more gallons may be needed if the well continues spewing oil for weeks or months.As noted in the Greenwire post, BP has strong ties to Nalco. A BP board member who worked at the company for more the 40 years also sits on Nalco's board. According to Richard Charter from the nonprofit Defenders of Wildlife, Corexit is "a chemical that the oil industry makes to sell to itself..." With millions of dollars of product potentially on the line, the "overlapping" interests plumb new depths of impropriety.
But according to EPA data, Corexit ranks far above dispersants made by competitors in toxicity and far below them in effectiveness in handling southern Louisiana crude.
Of 18 dispersants whose use EPA has approved, 12 were found to be more effective on southern Louisiana crude than Corexit, EPA data show. Two of the 12 were found to be 100 percent effective on Gulf of Mexico crude, while the two Corexit products rated 56 percent and 63 percent effective, respectively. The toxicity of the 12 was shown to be either comparable to the Corexit line or, in some cases, 10 or 20 times less, according to EPA.
I have been concerned about the use of Corexit since the very early days of the BP spill. The health risks to both humans and marine life are undeniable. In fact, members of my research team were part of the independent group of scientists that called for the "immediate halt" to the use of Corexit last summer. From a July 30, 2010, NBC News report:
Amid growing concern about the use of dispersants in the Gulf of Mexico, a group of scientists working for law firms suing BP says their testing indicates that the dispersants being used to break up the oil are making this spill even more toxic to marine life.You may now notice how the findings from the two academic studies I referenced at the top may be tied to Corexit. The developmental and reproductive problems of the killifish could very well be tied to the dispersant's high level of toxicity. And the fact that the oil BP strategically sunk to the seafloor with Corexit isn't breaking down goes to the point that this particular kind of dispersant isn't as effective as others in degrading Louisiana sweet crude.
Dr. William Sawyer, a toxicologist, is part of a team of scientists hired by law firms - led by Smith Stag of New Orleans - that are representing Louisiana fishermen and environmentalists.
The scientists collected and analyzed globs of oil, sand, and water from more than a dozen sites in four states along the Gulf.
Sawyer told NBC News that the findings are troubling. "We now have compelling evidence that the dispersant has enhanced and increased the toxicity from the spill," he said.
Last week, a group of independent scientists called for an "immediate halt" to the use of dispersants. In what was called a "consensus statement," they warned that dispersants pose "grave risks to marine life and human health."
Enough said. Check back soon as we'll continue to stay all over the developing Nalco story.
Read my previous post on how the oil BP sunk to the seafloor with Corexit isn't degrading.
Read my previous post on the spill-induced developmental and reproductive problems of the Gulf's killifish.
Read the full Courthouse News report here.
Here's a compelling report on the escalating liability surrounding spill defendants.
Read the full NBC News report on dispersants here.
See video on the dangers of Corexit here.
Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
But the lawsuits seem like a band-aid over a gaping wound.
This incident has raised so many questions. And most of them have barely been explored.
We have a situation that seems to indicate the need for a complete reevaluation of some of our most basic assumptions about benefits versus costs of deep water oil drilling, how we grant permissions for such work, how we designate responsibility for making the right technical decisions. And yet I hear that BP is quite eager to get back to work in the Gulf. And that our federal government may go along with it.
To me, this disaster was a game changer in a decade of game-changing disasters. Those who want to continue to play the old way need to get the message: That game's over. It's a new game now.