Plaintiffs: BP unprepared for Gulf spill, misled US officials

NEW ORLEANS – BP, back in federal court Monday, is fending off allegations it misled U.S. officials on how much oil gushed into the Gulf of Mexico from a blown out well in 2010, during the worst offshore oil spill in U.S. history.

Attorneys for spill victims, the Justice Department and BP’s contractors on the Deepwater Horizon rig also argued if the company had been more prepared to respond to an emergency, the Macondo well could have been sealed long before a capping stack stemmed the flow on July 15, 2010.

“Eighty-seven days,” said plaintiffs’ attorney Brian Barr.

The first words in Barr’s opening statements, which launched the second phase of BP’s civil trial, referenced the nearly three-month period during which millions of barrels of oil escaped from the offshore well. BP’s plan for source control procedures before the spill was nothing more than “lip service,” he said.

Barr argued before U.S. District Judge Carl Barbier that BP had never conducted response drills in deep water and the company’s employees “were asked to do a job they had not been taught to do.”

“BP actually believes its response plan worked,” Barr said. “BP believes it was acceptable to wait until the midst of a crisis to design a source control plan.”

Mike Brock, an attorney for BP, said that immediately after the spill, the company set up several teams of well control experts in Houston to work parallel to plan different methods of capping the well. Brock argued that BP’s response plan for an oil spill met industry standards, which included quickly starting relief-well drilling and forming teams of experts to analyze the problem.

“Critical source control decisions had to be made in the face of significant uncertainty,” Brock said. “The quality and scale of the work carried out by BP, industry and the government were unprecedented.”

The second phase of the BP’s oil spill trial centers on the company’s effort to stop the gusher and questions of how much oil spilled into the Gulf in 2010.

Starting next week, the court will hear arguments about how much BP should pay in fines under the Clean Water Act, which could run as high as $18.1 billion under government estimates of spilled hydrocarbons. BP has pegged its overall spill tab at $42 billion to-date, but that figure could grow significantly.

The law says fines could be between $1,100 to $4,300 per barrel, depending on whether the court rules the company was negligent or grossly negligent. The court also could set the fines lower than those levels.

Barbier said the trial will continue if the U.S. government shuts down Monday night, but the U.S. court system is only prepared to last 10 days after a shutdown. Phase two of the civil trial is slated to run 16 days.

BP and the U.S. officials disagree on the number of barrels that spilled out of the Macondo well. The government estimates 4.2 million barrels escaped into the Gulf of Mexico; BP contends the number is 2.45 million.

The difference in question: flow rate, or the measure of how fast oil flowed out of the well.

Citing internal documents and emails, plaintiffs attorneys on Monday alleged BP’s public flow rate estimate of a 5,000 barrels per day — which it had referenced several times in the press and to officials — was much lower than what some internal models were telling BP engineers.

Some within BP estimated the flow rate could have been as high as 100,000 barrels per day, according to emails presented in the trial.

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In May 2010, BP tried and failed to cap the well using a method known as “top kill.” Brad Brian, another plaintiffs’ attorney, said the company knew the procedure would fail if the flow rate was above 15,000 barrels per day, thus prolonging the spill.

The well was ultimately sealed off after the company deployed capping stacks to the site in July.

“What the success in July shows is that it could have been done earlier,” Brian said. “It would have been done earlier but for BP’s concealment. There were worse consequences than there should have been that lie at the feet of BP.”

But Brock, the attorney for BP, argued several government officials said they did not rely on the company’s flow rate estimates during the effort to stop the spill, and it “defies common sense” to suggest BP would exacerbate the spill by pursuing multibillion-dollar procedures simply to avoid admitting it had misrepresented flow rates, which were unreliable.

“Now, in the usual fraud case, where someone says there’s a misrepresentation, they usually come to court and says it was a material misrepresentation and I relied on it to my detriment,” Brock said. “You’re not going to hear in this case that the U.S.” claims BP misrepresented the flow rate, he said.

The 5,000 barrel-per-day flow rate came from Bill Lehr, a senior scientist at the National Oceanic and Atmospheric Administration, Brock said.

And before officials made their initial 5,000-barrel-per-day flow rate announcement, emails between BP and the U.S. officials show that the company had shared flow rate estimates higher than that, he said.

“The government may not have had every single flow-rate estimate, but they knew they were not going to be relied on,” he said.

Barbier is not expected to make a ruling on the case until after a third phase of the trial, which could be next year.