Texas Judge Dismisses 20,000 Cases Against BP in Benzene Release Lawsuit

A Galveston County, Texas judge has dismissed nearly half of the cases filed against BP PLC (“BP”) filed on behalf of people who allege they got sick in connection with a 2010 emissions release at a Texas City refinery that caused hundreds of thousands of pounds of chemicals to spew into the air over a forty-day period. Following the dismissal, about 25,000 cases relating to the emissions release remain pending but those are expected to become part of a global settlement with BP.

The litigation arose from a faulty flare at BP’s Texas City refinery. A common sight in Texas, flares intermittently crown refineries and chemical plants like huge Olympic torches. Flares are often used as a last-resort pollution-control measure, burning off excess gases that cannot be recycled. They also are deployed during power outages or when plants are shut down for maintenance.

From April 6 to May 16, 2010, a problem with a compressor on the BP refinery’s ultracracker unit resulted in increased flaring for 40 days as the unit continued to operate. During that time, more than 540,000 pounds of 19 different chemicals, including at least 17,000 pounds of benzene, were released into the air. The International Agency for Research on Cancer (IARC) classifies benzene as “carcinogenic to humans,” based on sufficient evidence that benzene causes acute myeloid leukemia (AML).

A state investigation found that BP’s decision to keep operating the unit and flare led to a violation of the state’s air quality laws, and the company paid a $50 million fine in a comprehensive settlement with the state that included past air emission violations. BP subsequently sold the refinery, the state’s third-largest, to Marathon Petroleum Corp. for $2.4 billion in 2013. BP had acquired the refinery in 1999 when it merged with Amoco.

Separate from the state agency action, more than 45,000 residents of Texas City and neighboring La Marque sued BP, claiming they were exposed to the benzene and other toxic chemical emissions. Due to the volume, the cases were funneled to Galveston County Judge Lonnie Cox by the Texas multidistrict litigation panel, to streamline pretrial proceedings, which is regularly done for asbestos cases. The panel is made up of five judges appointed by the Texas Supreme Court’s Chief Justice.

On September 19, 2016, Judge Lonnie Cox dismissed about 20,000 claimants from the case, granting a motion for summary judgment in which BP claimed the litigants had no evidence of damages caused by the toxins. Judge Cox also noted that the remaining cases will become part of a settlement. A special master appointed by Judge Cox will determine the portion of the sum for each plaintiff. The settlement amount has not been made public.

The summary judgment ruling came after two bellwether trials were conducted to test the case, in which juries found the release did not cause harm. In 2013, the jury found the company was negligent but determined the small group of plaintiffs were not damaged. In 2014, the jurors found the company was not negligent.

[About the Author: Keith M. Kodosky is a partner in the Atlanta office and a member of the Toxic Tort & Environmental Litigation Practice. Keith is the Vice Chair of the Product Liability Section of the State Bar of Georgia, and he has served as National Coordinating Counsel for a global chemical company in benzene litigation since 2005. As the loving owners of four dogs and three (soon to be four) cats, Keith and his wife are vying for the unofficial firm record for number of household pets.]