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© Lori Deangelis

New Orleans - Companies involved in the use of the dispersant Corexit during the Deepwater Horizon oil spill last year cannot get immunity from what may be hundreds of thousands of personal injury claims, a federal judge ruled.

After the Deepwater Horizon oil-drilling rig exploded on April 20, 2010, unleashing the worst oil spill in U.S. history, BP directed third-party cleanup workers to spray and inject more than 1.8 million gallons of Corexit into oil in the Gulf of Mexico. 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 counties 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.

But U.S. District Judge Carl Barbier ruled Friday that Nalco was following orders from BP, not orders from the United States, and can therefore be held liable for damages.

Judge Barbier's order relates to all claims belonging to the B3 pleading bundle. 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.

The B3 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 Corexit even though the United States had recommended against the chemical.

"The CWA and its corresponding regulations require government authorization before any dispersants are used," Barbier wrote, summarizing the complaint. "If the government authorized the clean-up defendants to use a particular dispersant, and the clean-up defendants did not exceed the scope of their authorization, then the clean-up defendants would appear to be entitled to immunity. In light of this, the B3 master complaint alleges, in pertinent part:

"'After the disaster, BP began implementing a disaster response plan to prevent oil from escaping the blown out well, to manually contain the oil, and to disperse oil in the water using Nalco's chemical dispersants. ...

"'Upon information and belief, immediately after the Deepwater Horizon disaster, on or about April 23, 2010, BP began subsea and aerial application of chemical dispersants manufactured by Defendant Nalco to the resulting oil slicks and sheens on the surface of the Gulf.

"'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
"'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 ...

'"BP has taken control and directs all aspects of the recovery and relief effort to attempt to contain the Oil Spill, prevent oil from damaging the Gulf of Mexico and the shoreline, and to clean up the damage caused to date."

The defendants can raise this defense involving supposed orders from the U.S. government at another time, the judge added.

"The derivative immunity defenses cannot succeed at this time," Barbier wrote. "Because this decision is not based on the merits of defendants' arguments, however, defendants are not prejudiced from reasserting this defense at a later time."

The judge additionally ruled that Anadarko and MOEX, which co-own the Macondo well, are not liable for damages brought under B3 claims. The companies are still liable for damages brought under other claims in the oil-spill litigation.

Attorneys for the plaintiffs were not available for comment.