In re Oil Spill by the Oilrig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010

In 2010, the Deepwater Horizon (DWH) oilrig spilled 210 million gallons of crude oil into the Gulf of Mexico. The DWH spill was classified as a substantial spill, also called a spill of national significance; therefore, under the Clean Water Act (CWA), the federal government had sole control over cleanup and recovery efforts. The Federal On-Scene Coordinator (FOSC) implemented the National Contingency Plan (NCP), the controlling plan for oil spills, which included authorizing the use of Corexit, a chemical dispersant manufactured by Nalco (defendant). Chemical dispersants make oil more soluble to encourage dispersion of oil spills. Corexit was listed and preauthorized for use under the NCP Product Schedule. Nalco had no decision-making authority or control over the FOSC’s choice to use Corexit for the DWH spill cleanup. The DWH spill and associated recovery efforts prompted a multidistrict litigation (MDL). Claims under the DWH MDL were organized into pleading bundles, one of which was the B3 bundle. The B3 Steering Committee (B3) (plaintiff), largely comprised of cleanup workers and coastal residents, sued Nalco under state and maritime law, arguing that the use of Corexit caused exposure-related injuries because it was toxic and defective. Nalco moved to dismiss, arguing that B3’s claims against it were preempted by the NPC and the CWA because the FOSC had sole, unchallengeable authority to direct the use of Corexit.