Trial Reopens for BP and U.S. on Well Control

     NEW ORLEANS (CN) – Proceedings resume today to determine how much oil spilled into the Gulf of Mexico after the 2010 Deepwater Horizon disaster, and whether BP was negligent in its failure to contain the blown-out well for almost three months.
     This is the second of a three-phase trial brought against BP by the Department of Justice, Gulf Coast states, and individuals and businesses harmed by the spill.
     U.S. District Judge Carl Barbier is presiding over the federal trial without a jury.
     Phase I of the trial sought to apportion blame among BP, Transocean and Halliburton for the April 20, 2010, explosion and sinking of the Deepwater Horizon rig off the coast of Louisiana that killed 11 people and set off the worst offshore oil spill in U.S. history.
     This second phase is to determine how much oil was spilled and how responsible BP was in its several attempts at capping the broken well.
     Plaintiff attorneys will argue before the judge that deepwater drilling carries a well-known potential for catastrophe of the sort that took place following the explosion and sinking of the Deepwater Horizon, and that BP could have capped the broken well sooner had it been prepared for a potential blowout.
     In court documents filed this month BP said its preparedness was consistent with government and industry standards for deepwater drilling, and that plaintiff attorneys “misstate and omit material efforts of BP” with regard to BP’s capabilities at containing the well.
     “BP could not, and did not, execute source control procedures without federal government approval,” lawyers for BP wrote. “And federal responders were embedded in every step of the source control process, from brainstorming through final approval and implementation.”
     The oil company finally capped the well July 15, 2010 – an event that plaintiff attorneys will argue coincided with the timing of a criminal plea agreement struck between the federal government and BP.
     BP’s document says there is no “causal nexus” between plaintiff attorneys’ claims and the actual timing of the well being capped.
     Source Control Issues
     Plaintiff lawyers argue that BP’s attempt to minimize oil pollution fines by lowballing its own oil flow estimates led the oil company to attempt closing the well with the “Top Kill” method at the end of May 2010 even while it knew the procedure would not work because too much oil was coming out of the well.
     BP refuted these accusations in the court document, again arguing that it was the federal government, not it, responsible for deciding how to cap the well, and that the flow-rate estimates used in determining how to cap the well also came from the U.S.
     “No one wanted to close the Macondo well more quickly than BP, but BP was faithful to the key principals that guided the entire source control effort, which was to proceed with caution and to obey the direction of the federal leadership,” BP’s document states.
     Clean Water Act Fines
     In addition to arguing with the U.S. over how much oil actually spilled, lawyers for BP will attempt to convince the judge that BP for its part was merely “negligent,” as opposed to “grossly negligent” in an attempt to keep down fines under the Clean Water Act.
     Clean Water Act fines are assessed on a per-barrel basis as well as on a valuation of negligence versus gross negligence.
     Mere negligence carries a maximum $1,110 fine per barrel of oil spilled, while gross negligence could cost BP as much as $4,300 per barrel.
     BP says all told 2.45 million barrels of oil gushed from its broken well. The Department of Justice says the figure is actually 4.1 million barrels. Both figures exclude the nearly 810,000 barrels that were collected during cleanup and which Judge Barbier has agreed not to count.
     In all, if Barbier agrees with the Department of Justice’s figure for spilled oil, BP could face up to $17.6 billion dollars in fines for the discharge.
     This phase of the trial is slated to last 14 days.
     Sabrina Canfield can be reached at

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