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$1 Billion Claim Against BP Hangs in Balance

GALVESTON, Texas (CN) - BP needs more evidence to prove that workers' compensation satisfies the claims of 315 workers who say they were injured by a chemical release from its refinery, a federal judge ruled.

BP sold its Texas City refinery to Marathon Petroleum on Feb. 1, 2013 for $2.4 billion .

But the sale did not insulate BP from liability for its operations at the refinery.

Two months after the sale, more than 500 plaintiffs sued BP Products North America in Galveston County Court, claiming they were exposed to a stew of toxic chemicals BP released from the refinery in November 2011.

"From November 10, 2011 through possibly early December 2011, BP reportedly released sulfur dioxide, methyl carpaptan, dimethyl disulfide and other toxic chemicals into the atmosphere," the complaint stated. "Despite that the leak had been reported, BP denied the dangerousness of the leak, or that any harm could be caused from it."

Seeking more than $1 billion in punitive damages, the plaintiffs claimed the refinery released so much sulfur dioxide an alarm at a neighboring Dow Chemical plant picked up a hazardous level of the chemical on Nov. 12, 2011.

Dow shut down most its plant in response, and gave essential workers respirators while a few dozen other workers were taken off site for medical treatment, the lawsuit stated.

Plaintiffs consist of two groups: workers at the refinery or the Dow Chemical plant, and Texas City residents who lived near the refinery.

After the case was removed to Federal Court, BP moved to dismiss the claims of 315 plaintiffs who were contractors or subcontractors at the refinery during the time of the alleged chemical release.

BP argued that workers' compensation is the only recourse for those workers.

In a Jan. 6 ruling, U.S. District Judge Keith Ellison acknowledged that BP is on the right track with this argument.

"Under Texas law, the assertion that a workers' compensation policy provides the exclusive remedy for a plaintiff's injuries is an affirmative defense," Ellison wrote.

But to rely on this defense, Ellison noted, BP must prove the workers' injuries were "work-related."

BP provided the court only with "fact sheets" signed by the workers that contain their names, their workplace and position in November 2011, and Ellison said that is not enough.

"Nothing in the fact sheet excerpts indicates where or when plaintiffs believe they were exposed to BP's alleged chemical release," Ellison wrote in a 4-page order.

But Ellison said he would "look favorably on a renewed motion for summary judgment on claims that may be subject to the exclusive remedy of workers' compensation" after BP digs into the circumstances of the workers' reported injuries.

In the lawsuit, the plaintiffs cite BP's checkered safety history at the refinery, where a series of explosions and fires in March 2005 killed 15 workers and injured more than 1,000, resulting in a $21 million fine and an OSHA settlement agreement.

Four more people died at the refinery in succeeding years: one each in 2006 and 2007 and two more in 2008, according to the lawsuit.

Plaintiffs' attorney Anthony Buzbee said he does not think BP will try to get the Texas City residents' claims dismissed.

"If BP tries to do so, it will fail. There is no bar to these claims by community members," Buzbee told Courthouse News in an email.

He said he "absolutely" expects the case to go to trial.

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