Deepwater Horizon -- The Government's InvolvementBy Bruce Thompson
The first week of Phase Two of the BP oil spill trial pitted the "aligned parties" against BP regarding Source Control. The aligned parties include the private claimants represented by the Plaintiffs' Steering Committee, the States, Transocean, and Halliburton. The second segment of Phase Two is the so-called Quantification segment. In that part of the case, the parties are the United States on one side versus BP and Anadarko on the other side. Judge Barbier has allowed 12 days, a total of 45 hours for each side, for quantification. How big was the spill? For this segment, the Department of Justice is making the government's case.
How are they doing? To this point, the DoJ has had it easy. There was a spill and the law makes the Responsible Party, BP, the default villain. But the law also provides that in the case of an oil spill, the Federal Government shall step in and assume command through the appointment of a Federal On Scene Commander (FOSC). Admiral Mary Landry assumed command on April 21, 2010. The feds became an active player in this play very early on. And they bore responsibilities as regulators even before the spill began. Now we all get a chance to evaluate the performance of the government throughout. This will be helpful in making a determination as to whether this was a dreadful accident due to negligence, or a case where BP and/or others were guilty of gross negligence. That decision will impact the size of the fines under the Clean Water Act, with simple negligence punishable by fines up to $1,100 per barrel spilled, whereas gross negligence can be fined at up to $4,300 per barrel. The feds have a monetary interest in that decision, but that makes them a party in interest. They do not get to make the determination.
The general principle of determining gross negligence is built around the "reasonable man" doctrine. Would a reasonable man know that what he was doing would cause the disaster that occurred? If so, there is gross negligence, a crime; if not then it was simply a negligent act, an accident. So the overarching question is how did the real-time acts of the government officials compare or contrast with the others? The DoJ would look ridiculous to claim that legally appointed and responsible national level government officials are not "reasonable". This is likely to present a major hurdle for the DoJ's arguments. Once the level of negligence has been determined, it can be combined with the determination of the size of the spill for Judge Carl Barbier will to decide the total size of the fines.
Phase Two has seen a lot of debate regarding two seminal activities, the Top Kill with Junk Shot, and the Static Kill. Right off the bat we can see that a huge serving of crow is order for pretty much all the interested parties, not least the federal government. The fed's position all along, right up through the completion of the relief well was that the bottom kill via the relief well was the "ultimate" solution. WRONG! The well was killed on August 3, 2010 via the static kill from the top. Even unreasonable or naive observers ought to be able to distinguish between those two stark alternatives, top and bottom. Even a kindergarten child can make that distinction.
Put to the test, Thomas Hunter, the then recently retired Director of Sandia National Lab, a key member of Nobel Prize Winning Physicist and Energy Secretary Steven Chu's Science Advisory Team, admitted that the well was killed by the static kill, not the bottom kill in Exhibit 9919.
Disagreement was with the capping stack and whether to keep it shut:
a. Every six hours had a meeting to review the data and check itcarefully to assure the well was not leaking somewhere
b. Went on from July 15th to end of August ) no released oil
c. Concerned that oil would find its way to surface through rock and could not control later
d. Disagreement of whether it should be shut or not
e. Stayed shut the whole time
f. Depletion was significant enough that it could work
i. Concluded it should be done and determined a way to monitor the pressures with BP
ii. Worked effectively to lower the pressure and eventually went to 10.000 PSI
iii. At this point everything in terms of collection were completely shut off
k. Cement or not?
i. Agreed that cementing should take place and went into it on August 5m
1. WeIl top was allowed to be taken off to 9-718" casing
2. Put on a new BOP
3. Agreed to do some fishing -- take out junk from the well; can go 4,000 feet below the BOP
ii. Drill pipes in the BOP still
With regard to the total flow estimate, he wrote (Exhibit 9687)
Flow estimates... primary source of the penalty... our calculations will be heavily involved in that. Based on the assumed depletion and that 87 day curve 4% increase/decrease measure w/r/t riser cut is the best.
Will be to BP's advantage to argue that BOP was suppressing flow, but then there was erosion. They'd say it started smaller, got bigger. No data to support it either way, don't have data on it.
Or consider that the leader of the Flow Rate Technical Group (FRTG), Marcia McNutt, sent an email, Exhibit 9926, to Tom Hunter on October 17, 2010 (more than three months after the last drop of oil flowed out of the well and 10 weeks after the well was killed by the static kill) asking...
That does not seem to be an extremely competent bunch, even operating after the fact. But it will get even tougher for them. You see, during the Top Kill operation, Steven Chu commanded BP to "STOP". We have the New York Times' word on it.
Didn't the Co-Chairman of the Joint Investigation Team, Captain Hung Nguyen of the Coast Guard, tell a Transocean executive who acted in the heat of battle trying to organize the Abandon Ship drill to save lives something to the effect that once you start giving orders you own it? Does Steven Chu "own it" for his actions in the Top Kill incident? Of course even the Huffington Post thinks Capt. Nguyen is a bully. And didn't Chu's conferees from Exxon Mobil work for the company that started all this stuff with the Exxon Valdez oil spill? Don't get me started on Chevron's and Transocean's Frade spill off Brazil. Even a "banana republic" like Brazil had a judge throw out the $18 billion civil complaint and the criminal charges and accept a $135 million settlement in compensatory activities in that case. Is American justice now second-rate to Brazil's?
All this is very easy for me to say, I suggested the Static Kill. Now if the government wants to change the subject, let's talk about the BP engineer who wrote that he could have made the Momentum Kill phase of the Top Kill work if he could get 23.4 pound per gallon, but did not know of a source for such a dense mud. Anyone ever heard of the successful 1980 Top Kill in Canada using Galena mud? A cementer from Canada with the screen name "onfreq" seems to have some relevant experience with very dense muds that he shared at 2:46 AM CDT on June 1, 2010 (in other words, in real time)...
You mean a knowledgeable government overseer relentlessly seeking suggestions from the public, like President Barack Obama, could have killed the well using the Momentum Kill technique in very early June of 2010? OMG!!!!
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