Deepwater Horizon Cleanup Crew Wash Away B3 Claims

Good news for those who respond to and engage in oil spill clean up efforts. In a ruling released on February 16, 2016, the U.S. District Court for the Eastern District of Louisiana, in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, dismissed, with prejudice, the “B3 Claims Against the Clean-Up Responder Defendants” engaged by the federal government to respond to and clean up the Deepwater Horizon oil spill. Thousands of claims were filed on behalf of boat captains and crew, workers involved in decontaminating vessels, clean-up workers and beach personnel involved in on-shore clean-ups, and residents who live and work in close proximity to coastal waters or who otherwise allege they were exposed to oil and/or dispersants. The defendants, and the manufacturer of the dispersants used, moved to dismiss the claims asserted, arguing, among other things, that they are entitled to derivative immunity under the Clean Water Act, 33 U.S.C. § 1321(j)(8) (CWA), entitled to discretionary function immunity under the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (FTCA), and that plaintiffs’ claims are preempted as a matter of law. The District Court ruled in the defendants’ favor under each theory.

Plaintiffs alleged that they were, through the defendants’ negligence or gross negligence, injuriously exposed to toxic materials. The defendants’ response activities “included skimming oil from the surface of the water, conducting controlled burning of oil, placing containment and sorbent boom, onshore and beach clean-up, decontaminating vessels that engaged in various response efforts, and the application of dispersants to the surface of the Gulf of Mexico.” The “dispersants” were “chemical agents that emulsify, disperse, or solubilize oil into the water column or promote the surface spreading of oil slicks to facilitate dispersal of the oil into the water column,” as contemplated by 40 C.F.R. § 300.5; dispersants are used to reduce the impact of the spill.

In deciding this case, the District Court reviewed the scale and scope of the federal clean-up and response actions undertaken pursuant to the CWA, the Oil Pollution Act, and CERCLA’s National Contingency Plan. The Federal On-scene Coordinator had the final word on all cleanup activities, including the use of authorized dispersant chemicals. If the federal government validly conferred its authority upon these contractors, the District Court held they were entitled to derivative immunity under the CWA and “discretionary function immunity” under the FTCA. Moreover, to the extent the federal response conflicted with state laws or marine law, the “implied conflict preemption” doctrine also applies requiring the dismissal of these claims. The plaintiffs had ample opportunities to rebut any prima facie defense available to the defendants, but the District Court held that they did not do so.