NEW ORLEANS (CN) – A Thursday hearing focused on motions to dismiss claims in the Gulf of Mexico oil spill, including claims from cleanup workers who say they are sick from exposure to toxic chemicals.
Thousands of plaintiffs have filed hundreds of claims for personal injuries, property damages and other causes stemming from the April 20, 2010 explosion of BP’s Deepwater Horizon drill rig that killed 11 people and dumped millions of barrels of oil into the Gulf of Mexico.
Almost all of the claims have been consolidated in New Orleans Federal Court under U.S. District Judge Carl Barbier.
Because the issues vary widely, the lawsuits have been divided into pleading bundles. The Thursday hearing concerned bundles B1, B3 and D1.
BP, Transocean, Halliburton, Cameron International, Nalco – the manufacturer of the dispersant Corexit – and numerous other defendants filed motions over the past months challenging claims in the three pleading bundles.
Bundle B1 concerns economic damages, B3 health issues related to oil exposure and oil spill cleanup, and D1 is from plaintiffs challenging regulatory actions under the Clean Water Act, the Endangered Species Act, the Emergency Planning and Community Right to Know Act, the Comprehensive Environmental Restoration, Cleanup and Liability Act, and maritime and state laws.
A motion filed by the plaintiff steering committee states that B3 bundle plaintiffs “are individuals who worked in the Vessels of Opportunity (‘VoO’) program, other vessel captains and crew not involved in the VoO program who were nonetheless assisting in clean-up efforts and were exposed to the oil’s and/or chemical dispersants’ harmful effects, and beach clean-up workers and residents who live in close proximity to the shore. …
“The chemicals to which they were exposed – hydrocarbons from oil and in situ burning and chemical dispersant, including Corexit – can cause a wide array of health problems, such as respiratory ailments, disruption of the nervous system, impairment of liver and kidney function, and interference with the reproductive system.”
The steering committee says “the defendants had the means, ability and opportunity to protect people who participated in the clean-up effort, as well as shoreline residents, from toxic exposure. Consequently, the defendants could have prevented their illnesses and diseases. But, instead, the defendants cavalierly failed to take even the minimum of safety measures to ensure the health and welfare of workers and the community at risk of exposure to the chemicals. As a result, thousands of people are ill and/or have been exposed to chemicals in a manner that puts them at risk of becoming ill in the future.”
The plaintiffs want BP and the other oil spill defendants to pay for medical monitoring – the defendants say they don’t have to.
Nalco, which made Corexit, which was dumped in quantity onto the Gulf to sink and disperse the oil slicks, “moves to dismiss the B3 Master Complaint on the grounds that plaintiffs’ products liability claims are ‘conflict preempted’ because the federal government has approved the use of dispersants, including Corexit, for oil spill response generally and specifically for the BP oil spill response,” the plaintiffs’ document states.
“To prevail on its motion, defendant Nalco would have to show as a matter of law that plaintiffs’ injuries stem from defendants’ compliance with federal law and that it was physically impossible to use a less toxic dispersant,” the motion states.
Cleanup workers say they were not given appropriate gear to shield them from contact with the oil and dispersants. They say that at times dispersants were sprayed onto them from planes as they worked.
In a complaint filed a week ago, Paul Hebert says he worked aboard a boat for a company that BP hired to help contain the oil spill at the site of the Macondo well. Hebert’s complaint says the job put him in constant exposure to oil and other toxic chemicals, but he was not provided a respirator. He says he “developed a seizure disorder, memory problems, toxic poisoning, respiratory problems, skin rashes, stomach complications, and other long term health effects not yet known.” Hebert seeks $25 million in damages.
The plaintiffs’ motion in opposition to dismissing the B3 bundle says the defendants have claimed immunity to lawsuits under the federal Clean Water Act.
The plaintiffs say that reasoning is erroneous: “Congress expressly immunized the federal government from liability for ‘any damages arising from its actions or omissions relating to any response plan required by’ the Clean Water Act. 33 U.S.C. 1321 (j) (8). This limitation on liability inures only to the benefit of the federal government for the specified activity. Defendants are not the federal government; they are private entities. Nothing in the language of the Act suggests that this provision extends to any other party or entity. …
“The statutory and regulatory sections cited to by plaintiffs in the B3 bundle master complaint are not a mysterious web of laws existing in the ether – they are the very heart of the laws that prohibit water pollution, in particular from spills, and set forth the clean-up responses and obligations to workers required in the unfortunate instances in which such a spill occurs.”
The defendants’ objections to claims filed under the B1 master complaint focus on the Oil Pollution Act.
BP claims that none of the plaintiffs in the B1 master complaint are eligible for the claims they make under the Oil Pollution Act (OPA) because the plaintiffs must file an OPA claim through the Gulf Coast Claims Facility (GCCF) and wait to either be denied or for the 90-day negotiation period to pass before they may file suit against BP.
BP says that “every court considering the issue has held that dismissal is mandatory for a plaintiff who failed to comply with OPA’s claim presentment requirement.”
Attorneys for defendants did not immediately return phone calls.