BP is Not the Only Responsible Party

Posted on May 25, 2010. Filed under: BP, Deepwater Horizon, Dispersants, Federalize, Oil Pollution Act, Oil Spill, Responsible Party, supertanker, USCG |

BP is Not the Only Responsible Party

By Brian J. Donovan

May 24, 2010

INTRODUCTION

The U.S. Coast Guard has named both BP (owner of the well) and Transocean (the owner and operator of Deepwater Horizon) as “responsible parties” in the oil spill that resulted from the explosion on April 20, 2010 and subsequent sinking of the oil rig Deepwater Horizon on April 22, 2010. Cameron (the company that manufactured the blowout preventer that failed to function after the explosion) and Halliburton (which performed drilling services like cementing) may also be found to be legally responsible. Since April 20, 2010, “BP is the responsible party” has been repeated so many times by President Obama, Secretary Salazar, Secretary Napolitano, Admiral Allen, and NOAA Administrator Lubchenco that it has become the truth. The truth is, in addition to Transocean and possibly Cameron and Halliburton, the Minerals Management Service (MMS), the National Oceanic and Atmospheric Administration (NOAA), and the U.S. Coast Guard (USCG) are also responsible, although not legally liable, for heavy crude oil entering the Louisiana wetlands and the loop current.

Recently Renergie, Inc. submitted unsolicited proposals to U.S. Senator Bill Nelson (D-FL), the Governor of Louisiana, and the USCG for the purpose of: (a) collecting the BP oil spill in the Gulf of Mexico with three Panamax crude tankers; (b) separating the oil and water onboard the tankers; and (c) transporting the separated crude oil to a shoreside facility. The three tankers employed by Renergie, Inc. would be capable of collecting 1,419,000 barrels of the BP oil spill; and, via a series of onboard skid-mounted three-stage oil/water separators, be able to separate a combined total of 432,000 barrels/day of the BP oil spill. 

To date, U.S. Senator Bill Nelson (D-FL) has not responded.

The Office of the Governor of Louisiana forwarded Renergie’s proposal to BP and the USCG for their review.

The USCG response, sent via three emails, stated, “The Coast Guard is not currently hiring contractors.  BP, the responsible party, continues to handle all contracting requirements.” and “Unfortunately, the Coast Guard does not currently have a mission and is not hiring contractors. However, if BP requests names, I will recommend and forward your company.” As the BP oil spill continues to wash ashore in Louisiana, USCG futher explained, “I am the POC for unsolicited proposals for the Coast Guard. A valid unsolicited proposal must be an innovative and unique product or service that is not commercially available to the Government. Federal Acquisition Regulation (FAR) 15.603 provides the specific criteria that must be met before an unsolicited proposal can be submitted. It appears that your product better fits the description of a commercial item offer, which is therefore not suitable for submission as an unsolicited proposal. We appreciate your interest in U.S. Coast Guard requirements.”

This article briefly discusses how MMS, NOAA, and USCG have abdicated their responsibility; reviews current oil response efforts; presents an overview of the Oil Pollution Act; and suggests a viable strategy for moving forward.

MMS

Background
The MMS, a bureau in the U.S. Department of the Interior, is the federal agency that manages the nation’s natural gas, oil and other mineral resources on the outer continental shelf (OCS). The agency also collects, accounts for and disburses an average of $13.7 billion per year in revenues from federal offshore mineral leases and from onshore mineral leases on federal and American Indian lands. The MMS is comprised of two major programs: Offshore Energy and Minerals Management (OEMM) and Minerals Revenue Management (MRM).

OEMM
The MMS plays a key role in America’s energy supply by managing the mineral resources on 1.7 billion acres of the OCS. The OCS is a significant source of oil and gas for the nation’s energy supply. The approximately 43 million leased OCS acres generally accounts for about 15 percent of America’s domestic natural gas production and about 27 percent of America’s domestic oil production. The MMS’s oversight and regulatory framework are meant to ensure that drilling and production are done in an environmentally responsible manner, and done safely.

The offshore areas of the United States are estimated to contain significant quantities of resources in yet-to-be-discovered fields. MMS estimates of oil and gas resources in undiscovered fields on the OCS (2006, mean estimates) total 86 billion barrels of oil and 420 trillion cubic feet of gas. These volumes represent about 60 percent of the oil and 40 percent of the natural gas resources estimated to be contained in remaining undiscovered fields in the United States.

MRM
The MRM collects, accounts for and distributes revenues associated with offshore and onshore oil, gas and mineral production from leased federal and Indian lands.

How MMS Abdicated its Responsibility
MMS fell well short of its own policy that safety inspections be done at least once per month, an Associated Press investigation shows. Since January 2005, MMS conducted at least 16 fewer inspections aboard the Deepwater Horizon than it should have under the policy, a dramatic fall from the frequency of prior years, according to the agency’s records. Under a revised statement recently given to the AP, MMS officials said the last infraction aboard the Deepwater Horizon occurred in August 2003, not March 2007 as originally stated.

The inspection gaps and poor recordkeeping are the latest in a series of questions raised about the agency’s oversight of the offshore oil drilling industry. Members of Congress and President Obama have criticized what they call the cozy relationship between regulators and oil companies.

NOAA has said on repeated occasions that drilling in the Gulf affects endangered species and marine mammals, but since January, 2009 MMS has approved at least three huge lease sales, 103 seismic blasting projects and 346 drilling plans. MMS records also show that permission for those drilling projects was granted without getting the permits required under federal law.

Earlier AP investigations have shown that the Deepwater Horizon was allowed to operate without safety documentation required by MMS regulations for the exact disaster scenario that occurred; that the BOP which failed has repeatedly broken down at other wells in the years since regulators weakened testing requirements; and that regulation is so lax that some key safety aspects on rigs are decided almost entirely by the companies doing the work.

MMS set aside requirements for documentation outlining what companies would do if a “worst-case scenario” spill were to happen. This documentation, which includes the disclosure of blowout scenarios and response plans, is required by law before exploratory offshore drilling is approved.

Reacting to the latest disclosures, House Natural Resources Committee Chairman Nick J. Rahall, D-W.Va., said while he applauded Interior Secretary Ken Salazar’s remedial actions, it seems “MMS has been asleep at the switch in terms of policing offshore rigs.” He said the committee, slated to hold hearings May 26-27, will examine these issues “in the context of what our offshore leasing program will look like in the future.”

In response to a Freedom of Information Act request filed by AP, the agency has released copies of only three inspection reports, from Feb. 17, March 3 and April 1. According to the documents, inspectors spent two hours or less each time they visited the massive rig. Some information appeared to be “whited out,” without explanation.

MMS also routinely overruled its staff biologists and engineers who raised concerns about the safety and the environmental impact of certain drilling proposals in the Gulf and in Alaska, according to a half-dozen current and former agency scientists. These scientists said they were also regularly pressured by agency officials to change the findings of their internal studies if they predicted that an accident was likely to occur or if wildlife might be harmed. In a September, 2009 letter, obtained by The New York Times, NOAA accused the MMS of a pattern of understating the likelihood and potential consequences of a major spill in the Gulf and understating the frequency of spills that have already occurred there. The letter accuses the agency of highlighting the safety of offshore oil drilling operations while overlooking more recent evidence to the contrary. The data used by the agency to justify its approval of drilling operations in the Gulf play down the fact that spills have been increasing and understate the “risks and impacts of accidental spills,” the letter states. NOAA declined several requests for comment.

“You simply are not allowed to conclude that the drilling will have an impact,” said one scientist who has worked for the MMS for more than a decade. “If you find the risks of a spill are high or you conclude that a certain species will be affected, your report disappears and they find another scientist to redo it or they rewrite it for you.”

Another biologist who left the agency in 2005 after more than five years said that agency officials went out of their way to accommodate the oil and gas industry. He said, for example, that seismic activity from drilling can have a devastating effect on mammals and fish, but that agency officials rarely enforced the regulations meant to limit those effects. He also said the agency routinely ceded to the drilling companies the responsibility for monitoring species that live or spawn near the drilling projects. “What I observed was MMS was trying to undermine the monitoring and mitigation requirements that would be imposed on the industry,” he said.

NOAA

Background
The mission of NOAA is “to understand and predict changes in Earth’s environment and conserve and manage coastal and marine resources to meet our nation’s economic, social, and environmental needs.”

On NOAA’s website, NOAA Administrator Jane Lubchenco further explains, “NOAA is an agency that enriches life through science. Our reach goes from the surface of the sun to the depths of the ocean floor as we work to keep citizens informed of the changing environment around them. NOAA’s dedicated scientists use cutting-edge research and high-tech instrumentation to provide citizens, planners, emergency managers and other decision makers with reliable information they need when they need it. NOAA’s mission touches the lives of every American and we are proud of our role in protecting life and property and conserving and protecting natural resources.”

How NOAA Abdicated its Responsibility
A. Allowing MMS to Grant Permission to Oil Companies for Drilling Projects Without the Permits Required Under Federal Law

NOAA has said on repeated occasions that drilling in the Gulf affects endangered species and marine mammals. NOAA knew that MMS was granting permission for drilling projects to oil companies without the permits required under federal law. “MMS has given up any pretense of regulating the offshore oil industry,” said Kierán Suckling, director of the Center for Biological Diversity, an environmental advocacy group in Tucson, which filed notice of intent to sue the agency over its noncompliance with federal law concerning endangered species. “The agency seems to think its mission is to help the oil industry evade environmental laws.”

B. Failure to Accurately Estimate the Amount of Oil Being Released

It has been estimated that approximately 5,000 barrels a day (bbl/day) of oil is being released into the Gulf of Mexico. Repeated endlessly in news reports, this figure has become conventional wisdom. However, the 5,000 bbl/day estimate was hastily produced in Seattle by a NOAA unit that responds to oil spills. It was calculated with a protocol known as the Bonn convention that calls for measuring the extent of an oil spill, using its color to judge the thickness of oil atop the water, and then multiplying. Alun Lewis, a British oil-spill consultant who is an authority on the Bonn convention, said the method was specifically not recommended for analyzing large spills like the one in the Gulf of Mexico, since the thickness was too difficult to judge in such a case.

Ian R. MacDonald, an oceanographer at Florida State University who is an expert in the analysis of oil slicks, said he had made his own rough calculations using satellite imagery. They suggested that the leak could “easily be four or five times” the government estimate, he said. Steven Wereley, an associate professor of mechanical engineering at Purdue University, analyzed videotape of the seafloor gusher using a technique called particle image velocimetry.  A computer program simply tracks particles and calculates how fast they are moving. Wereley put the BP video of the gusher into his computer. He made a few simple calculations and came up with an astonishing value for the rate of the oil spill: 70,000 bbl/day.

Dr. MacDonald believes NOAA  had been slow to mount the research effort needed to analyze the leak and assess its effects. Sylvia Earle, a former chief scientist at NOAA and perhaps the country’s best-known oceanographer, said that she, too, was concerned by the pace of NOAA’s scientific response.

The government has made no attempt to update its estimate since releasing it on April 28th. “I think the estimate at the time was, and remains, a reasonable estimate,” said Dr. Lubchenco, the NOAA administrator. “Having greater precision about the flow rate would not really help in any way. We would be doing the same things.”

Scientists have come down hard on BP for refusing to take advantage of methods available to measure the oil. The New York Times reported that BP was planning to fly scientists from the Woods Hole Oceanographic Institute to Louisiana to conduct volume measurements. The oceanographers were poised to use underwater ultrasound equipment to measure the flow of oil and gas from the ocean floor when BP canceled the trip.

An accurate measurement of the flow of oil could change the way people remember this spill and their opinion of BP.  Once the leak is plugged and the oil is dispersed throughout the Gulf, who’s to say for certain whether BP’s blown well gushed 5,000 or 80,000 barrels of oil a day? By allowing BP to obscure the spill’s true magnitude, NOAA seems to agree.

C. Failure to Track and Monitor the Massive Oil Plumes Beneath the Surface

NOAA, whose job it is to assess and track the damage being caused by the BP oil spill that began four weeks ago, is only monitoring what’s visible – the oil slick on the Gulf’s surface – and currently does not have a single research vessel taking measurements below.

The one ship associated with NOAA that had been doing such research is back in Pascagoula, MS, having completed a week-long cruise during which scientists taking underwater samples found signs of just the kind of plume that environmentalists fear could have devastating effects on sea life of all shapes and sizes.

Frank Muller-Karger, an oceanography professor at the University of South Florida who testified before the House Energy Committee, said that testing for oil beneath the surface should be a top priority. “I think that should be one of our biggest concerns, getting the technology and the research to try to understand how big this amorphous mass of water is, and how it moves,” he said. “It’s like an iceberg. Most of it is below the surface. And we just have no instruments below the surface that can help us monitor the size, the concentration and the movement.”

“The fact that NOAA has missed the ball catastrophically on the tracking and effects monitoring of this spill is inexcusable,” said Rick Steiner, a University of Alaska marine conservationist who recently spent more than a week on the Gulf Coast advising Greenpeace. NOAA officials “haven’t picked it up because they haven’t looked in the right places,” he said. “There have to be dozens of these massive plumes of toxic Deepwater Horizon oil, and they haven’t set out to delineate them in any shape or form.” Steiner said, “NOAA is not only failing to fully measure the impact of the spill but, if they rationally want to close and open fisheries, they need to know where this stuff is going.” “And truly, they really need 20 or 30 vessels out there yesterday,” Steiner said. “And I think they know that. And so all the spin – that they have this under control, that there’s no oil under the surface to worry about – they’re wrong, and they know it.”

D. Conflict of Interest in Sample Testing

The question is whether a lab paid by BP can provide an unbiased assessment of the environmental damage from the BP oil spill.

Local environmental officials throughout the Gulf Coast are feverishly collecting water, sediment and marine animal tissue samples that will be used in the coming months to help track pollution levels resulting from the Deepwater Horizon oil spill. Hundreds of millions of dollars are at stake, since those readings will be used by the federal government and courts to establish liability claims against BP. But the laboratory that NOAA officials have chosen to process virtually all of the samples is part of an oil and gas services company in Texas that counts oil firms, including BP, among its biggest clients. Pursuant to OPA, BP is paying for testing the samples, which simultaneously gives BP control over this process. Some people are justifiably questioning the independence of the Texas lab.

USCG

Background
The USCG is one of the five Armed Forces of the United States and the only military organization within the Department of Homeland Security. The USCG protects against hazards to people, maritime commerce, and the environment, defends our maritime borders, and saves those in peril. It responds quickly to disasters to restore the nation’s waterways. It promotes resiliency of the Marine Transportation System. When called upon, it defends the nation at home and abroad alongside the other Armed Forces. In the heartland, in the ports, on the seas, and around the globe, the USCG is Here to Protect, Ready to Rescue.

The USCG is the principal federal agency responsible for maritime safety, security, and environmental stewardship in U.S. ports and inland waterways, along the coasts, on the high seas, and in other regions where our nation’s maritime equities are at stake. As such, the USCG protects our nation’s vital economic and security interests throughout the maritime domain, including the marine transportation system, our natural and economic resources, and our maritime borders.

The USCG provides the primary federal maritime presence to enforce laws, secure the maritime border, conduct response operations, protect the maritime environment (“by responding  to oil and hazardous substance accidents and reducing their impact on the marine environment”), and ensure the resilience of the Marine Transportation System that is vital to the U.S. economy.

How USCG Abdicated its Responsibility
USCG Admiral Thad W. Allen, National Incident Commander, said during a recent visit to Mississippi that he saw no reason for the government to assume control of operations from BP. “BP is the responsible party. They have to be in charge and they have to be accountable and we have to conduct oversight,” he said. “Personally, whenever I have problem I call (BP CEO) Tony Hayward” on his cell phone, Allen said.

USCG responses to unsolicited proposals clearly state,
(a) “The Coast Guard is not currently hiring contractors.  BP, the responsible party, continues to handle all contracting requirements;” and
(b) “Unfortunately, the Coast Guard does not currently have a mission and is not hiring contractors. However, if BP requests names, (USCG) will recommend and forward your company.”

Although USCG has completely abdicated its responsibility, one has to admire the forthright and transparent manner in which it has done so.

OIL SPILL RESPONSE

USCG
The National Oil and Hazardous Substances Pollution Contingency Plan, more commonly called the National Contingency Plan (NCP), is the federal government’s blueprint for responding to both oil spills and hazardous substance releases. The NCP is the result of our country’s efforts to develop a national response capability and promote overall coordination among the hierarchy of responders and contingency plans.

Secretary Napolitano has declared the Gulf Coast incident a “spill of national significance.” A spill of national significance (SONS) means a spill that due to its severity, size, location, actual or potential impact on the public health and welfare or the environment, or the necessary response effort, is so complex that it requires extraordinary coordination of federal, state, local, and responsible party resources to contain and clean up the discharge.

Admiral Allen has explained that the USCG has established four operational priorities:
(a) stop the flow of oil from the well; (b) attack the oil that is in the sea with all available means – mechanical skimming, dispersant delivery, in-situ burning; (c) protect the shoreside resources by deploying boom around the resources; and (d) recover and mitigate the impacted areas.

BP
Source Subsea Control and Containment
In its May 20, 2010 update report on subsea source control and containment, BP stated, “Subsea efforts continue to focus on progressing options to stop the flow of oil from the well through interventions via the blow out preventer (BOP), and to collect the flow of oil from the leak points. These efforts are being carried out in conjunction with governmental authorities and other industry experts.

The volume of oil being collected by the riser insertion tube tool (RITT) containment system at the end of the leaking riser is estimated to be about 3,000 barrels a day (b/d) of oil. The oil is being stored on the drillship Discoverer Enterprise, on the surface 5,000 feet above.

BP also continues to develop options to shut off the flow of oil from the well through interventions via the failed BOP. Plans continue to develop a so called “top kill” operation where heavy drilling fluids are injected into the well to stem the flow of oil and gas, followed by cement to seal the well. Most of the equipment is on site and preparations continue for this operation, with a view to deployment in the next few days. Options have also been developed to potentially combine this with the injection under pressure of a variety of materials into the BOP to seal off upward flow.

Work on the first relief well, which began on May 2, continues. The DDII drilling rig began drilling the second relief well on May 16. Each of these wells is estimated to take some three months to complete from the commencement of drilling.

Surface Spill Response and Containment
In its May 20, 2010 update report on surface spill response and containment, BP stated, “Work continues to collect and disperse oil that has reached the surface of the sea. Over 930 vessels are involved in the response effort, including skimmers, tugs, barges and recovery vessels. Intensive operations to skim oil from the surface of the water also continued. Some 187,000 barrels of oily liquid have now been recovered. The total length of boom deployed as part of efforts to prevent oil reaching the coast is now more than 1.9 million feet. In total over 19,000 personnel from BP, other companies and government agencies are currently involved in the response to this incident.”

BP’s surface spill and containment strategy primarily involves: (a) the use of dispersants; (b) skimming the oil from the surface of the water; and (c) deploying boom to prevent oil from reaching the coast.

Dispersants: An Out-of-Sight, Out-of-Mind Strategy
To date, 785,000 gallons of oil dispersant has been applied by BP since the April 22 sinking of the Deepwater Horizon rig, an unprecedented application and for a duration and at depths also without precedent.

Dispersants break oil into droplets that decompose more quickly. But scientists worry that extensive use of the chemicals in the BP spill is increasing marine life’s exposure to the toxins in oil. Environmentalists consider their use effective for ridding surface waters of oil but say when the toxins are broken down and become embedded on the sea bed they pose a significant threat to marine life.

BP is using the dispersant “Corexit 9500.” While Corexit 9500 is on the EPA’s approved list, BP is using this dispersant in unprecedented volumes and has been using it underwater at the source of the leak, a procedure that has never been tried before. The EPA has acknowledged that “much is unknown about the underwater use of dispersants.” Moreover, of all the chemicals approved by the EPA for use on oil spills, Corexit 9500 is among the most toxic to certain organisms. It also is among the least effective in breaking up the kind of oil that is prevalent in the area around the spill site, EPA tests concluded. Corexit might also be contributing to the formation of large undersea “oil plumes” thousands of feet below the surface.

Sylvia Earle, the National Geographic’s explorer-in-residence and former chief scientist at NOAA, stated that “the instructions for humans using Corexit warn that it is an eye and skin irritant, is harmful by inhalation, in contact with skin and if swallowed, and may cause injury to red blood cells, kidney or the liver.” “People are warned not to take Corexit internally,” she said, “but the fish, turtles, copepods and jellies have no choice.”

Earle further states, “We don’t know what the effect of dispersants applied a mile underwater is; there’s been no laboratory testing of that at all, or the effect of what it does when it combines with oil a mile underwater.” One problem with breaking down the oil is that it makes it easier for the many tiny underwater organisms to ingest this toxic soup.

Pursuant to NCP Section 300.310, “As appropriate, actions shall be taken to recover the oil or mitigate its effects. Of the numerous chemical or physical methods that may be used, the chosen methods shall be the most consistent with protecting public health and welfare and the environment. Sinking agents shall not be used.” Sinking agents means those additives applied to oil discharges to sink floating pollutants below the water surface. The question is whether BP’s dispersants are “sinking agents” when they are applied a mile underwater at the source of the well leak.

Carl Safina, president and co-founder of Blue Ocean Institute, a New York-based conservation organization, believes BP’s dispersant strategy has more to do with PR than good science. “It takes something that we can see that we could at least partly deal with and dissolves it so we can’t see it and can’t deal with it,” he said. It’s not at all clear to me why we are dispersing the oil at all,” Safina said. “It’s an out-of-sight, out-of-mind strategy. It’s just to get it away from the cameras on the shoreline.

Skimming
Since April 22, only 187,000 barrels of “oily liquid” have been recovered by BP. This equates to collecting a total of only 19,000 to 28,000 barrels of oil. BP  states, “over 930 vessels are involved in the response effort…” By now, BP should realize that small boats are used for small oil spills, but large ships must be used for large oil spills.

The three tankers employed by Renergie, Inc. would be capable of collecting 1,419,000 barrels of the BP oil spill; and, via a series of  onboard skid-mounted three-stage oil/water separators, be able to separate a combined total of 432,000 barrels/day of the BP oil spill. 

Boom: Public Relations in Open Water
The use of the boom strategy is nothing more than “public relations in open water.” Deploying boom may be an effective containment strategy in the calm waters of rivers, lakes, or municipal swimming pools but, as has been demonstrated over the past month, in the open waters of the Gulf of Mexico the boom will be breached. 

THE OIL POLLUTION ACT OF 1990

Pursuant to the Oil Pollution Act of 1990 (OPA), for an offshore facility the total of the liability of a responsible party and any removal costs incurred by, or on behalf of, the responsible party, with respect to each incident shall not exceed the total of all removal costs plus $75,000,000.

However, this limit on liability “does not apply if the incident was proximately caused by gross negligence, willful misconduct of, or the violation of an applicable Federal safety, construction, or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.”

OPA broadened the scope of damages (i.e., costs) for which an oil spiller would be liable. Under OPA, a responsible party is liable for all cleanup costs incurred, not only by a government entity, but also by a private party. In addition to cleanup costs, OPA significantly increased the range of liable damages to include the following:

• injury to natural resources,
• loss of personal property (and resultant economic losses),
• loss of subsistence use of natural resources,
• lost revenues resulting from destruction of property or natural resource injury,
• lost profits resulting from property loss or natural resource injury, and
• costs of providing extra public services during or after spill response.

OPA Section 4201 provides:
(c) FEDERAL REMOVAL AUTHORITY
(1) GENERAL REMOVAL REQUIREMENT
OPA Section 4201(c)(1)(B) amended Section 311(c) of the Clean Water Act of 1972 to provide the President with three options:
(1) perform cleanup immediately (“federalize” the spill);
(2) monitor the response efforts of the spiller; or
(3) direct the spiller’s cleanup activities.

OPA Section 4201(c) further provides:
(2) DISCHARGE POSING SUBSTANTIAL THREAT TO PUBLIC HEALTH OR WELFARE (A) If a discharge, or a substantial threat of a discharge, of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States (including but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the President shall direct all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threat of the discharge.
(B) In carrying out this paragraph, the President may, without regard to any other provision of law governing contracting procedures or employment of personnel by the Federal Government -
(i) remove or arrange for the removal of the discharge, or mitigate or prevent the substantial threat of the discharge.

Oil spill response authority is determined by the location of the spill: the USCG has response authority in coastal waters, and the EPA covers inland oil spills. As the primary response authority in coastal waters, the USCG has the ultimate authority to ensure that an oil spill is effectively removed and actions are taken to prevent further discharge from the source. During response operations, the USCG coordinates the efforts of federal, state, and private parties. USCG response efforts are supported by NOAA. NOAA provides scientific analysis and consultation during oil spill response activities. Assistance can include oil spill tracking, cleanup alternatives, and knowledge of at-risk natural resources. Moreover, NOAA experts begin to collect data to assess natural resource damages during response operations.

A VIABLE STRATEGY

A viable strategy would be to establish three operational priorities: stop the flow of oil from the well, collect the oil that is in the sea, and restore the impacted coastal areas. Each task should be assigned to the entity with the most expertise in that particular area.

I. Stop the Flow of Oil from the Well
BP should perform this task. BP has in-house technical expertise and the ability to assemble a team of outside engineering and offshore oil & gas experts to cap the well. The only viable permanent solution is to drill a relief well. Hopefully, either the “top kill” or “junk shot” procedure will stop the flow of oil while the relief well is being drilled. MMS should merely monitor BP’s efforts.

II. Collect the Oil that is in the Sea
USCG should perform this task. Pursuant to OPA Section 4201, and given that the BP oil spill is a “discharge posing substantial threat to public health or welfare,” President Obama should federalize the collection of the oil that is in the sea. This could be done without having to federalize the operational priority of stopping the flow of oil from the well.

(1) Timecharter Crude Tankers to Collect the Oil
This would involve the following 3-step process: (a) collecting the BP oil spill in the Gulf of Mexico with three Panamax crude tankers; (b) separating the oil and water onboard the tankers; and (c) transporting the separated crude oil to a shoreside facility. Three Panamax tankers would be capable of collecting 1,419,000 barrels of the BP oil spill; and, via a series of  onboard skid-mounted three-stage oil/water separators, be able to separate a combined total of 432,000 barrels/day of the BP oil spill. Since April 22, only 187,000 barrels of “oily liquid” have been recovered by BP.

(2) Discontinue the Use of Dispersants
BP has been using dispersant in unprecedented volumes and has been using it underwater at the source of the leak, a procedure that has never been tried before. The EPA has acknowledged that “much is unknown about the underwater use of dispersants.” Moreover, of all the chemicals approved by the EPA for use on oil spills, Corexit 9500 is among the most toxic to certain organisms. The volume that is being used is creating a toxic soup that is more dangerous than the oil spill. As noted above, BP’s dispersant strategy has more to do with PR than good science. It takes something that we can see that we could at least partly deal with and dissolves it so we can’t see it and can’t deal with it. It’s an out-of-sight, out-of-mind strategy.

(3) Reposition Skimming to the Northern Edge of the Spill
BP claims, “Over 930 vessels are involved in the response effort, including skimmers, tugs, barges and recovery vessels.” USCG should immediately reposition several skimming vessels to the northern edge of the spill to mitigate the oil damage to Louisiana’s wetlands.

(4) Expand Coordination with NOAA
NOAA’s Office of Response and Restoration should provide better scientific analysis of the incident. NOAA’s assistance should include an accurate measurement of the flow of oil from the well, oil spill tracking and monitoring (both surface and underwater), the collection of test samples and data to assess natural resource damages. Accurate information is crucial to our understanding of the true rate of flow, to improving our ability to gauge the amount of oil currently in the Gulf, and to preparing for the impacts this spill may have on our environment, fisheries and coastal communities.

(5) Deployment of Research Vessels
USCG should direct NOAA to immediately deploy 20 research vessels to identify, track and monitor the massive underwater plumes of oil in the sea. The undersea plumes may go a long way toward explaining the discrepancy between the flow estimates, suggesting that much of the oil emerging from the well could be lingering far below the sea surface. Depending on the depth of the plume, USCG could deploy a tanker to collect the underwater oil before it either reaches shore or enters the loop current.

(6) Discontinue Deployment of Boom
BP claims, “The total length of boom deployed as part of efforts to prevent oil reaching the coast is now more than 1.9 million feet.” The use of the boom strategy is nothing more than “public relations in open water.” Deploying boom may be an effective containment strategy in the calm waters of rivers, lakes, or municipal swimming pools but, as has been demonstrated over the past month, in the open waters of the Gulf of Mexico the boom will be breached. The use of boom in the Gulf of Mexico is a waste of time, money, and manpower. Since containment is not possible, all available resources should be used to collect the oil. 

III. Restore the Impacted Coastal Areas
EPA should perform this task. Again, pursuant to OPA Section 4201, and given that the BP oil spill is a “discharge posing substantial threat to public health or welfare,” President Obama should federalize the restoration of the coastal areas impacted by the oil. This could be done without having to federalize the operational priority of stopping the flow of oil from the well.

CONCLUSION

The blowout of April 20, 2010 aboard the Deepwater Horizon was clearly preventable. The fact that the BP oil spill has been allowed to reach coastal Louisiana is inexcusable. BP’s surface spill response and containment efforts would be comical if they were not so devastating. The  environmental and economic damages suffered by victims of the BP oil spill will be enormous and on-going. The livelihoods of all persons whose businesses rely on the natural resources of the Gulf Coast are at risk. Commercial fishermen, oyster harvesters, shrimpers, and  businesses involved, directly or indirectly, in processing and packaging for the seafood industry will experience the end of a way of life that, in many cases, has been passed down from one generation to the next.

BP should remain in charge of stopping the flow of oil from the well. Pursuant to OPA Section 4201, and given that the BP oil spill is a “discharge posing substantial threat to public health or welfare,” President Obama should federalize the collection of the oil that is in the sea and the restoration of the coastal areas impacted by the oil. Both of these activities could be done without having to federalize the operational priority of stopping the flow of oil from the well.

Under OPA, BP, as the responsible party, is liable for all cleanup costs incurred, not only by a government entity, but also by a private party. In addition to cleanup costs, OPA significantly increased the range of liable damages to include the following: injury to natural resources, loss of personal property (and resultant economic losses), loss of subsistence use of natural resources, lost revenues resulting from destruction of property or natural resource injury, lost profits resulting from property loss or natural resource injury, and costs of providing extra public services during or after spill response.

Pursuant to OPA, trustees for natural resources can collect “the cost of restoring, rehabilitating, replacing or acquiring the equivalent of the damaged natural resources.” Such resources include land, fish, wildlife, wetlands, groundwater and drinking water. If a resource can’t be rehabilitated, the defendant has to provide something of equal value, for instance by creating a new wetland.

Given BP’s documented violation of federal safety regulations aboard the Deepwater Horizon, e.g., using an improper cementing technique to seal the well, failing to adequately test and maintain blowout prevention equipment and drilling deeper than BP’s federal permit allowed, there will be no limitation on BP’s liability.

However, now is not the time for finger pointing or litigation. It is now time to implement a viable strategy.

APPENDICES

References
EPA: http://www.epa.gov/oem/content/lawsregs/opaover.htm

Marine Log: http://www.marinelog.com/DOCS/NEWSMMIX/2010may00011.html

MMS: http://www.mms.gov/

National Contingency Plan

NOAA: http://www.noaa.gov/

Oil Pollution Act of 1990

USA Today: http://content.usatoday.com/communities/greenhouse/post/2010/05/how-responsible-is-us-government-for-gulf-oil-spill/

USCG: http://www.uscg.mil/

About the Author
Brian J. Donovan is an attorney and marine engineer with over thirty-four years of international business experience.

Mr. Donovan, a member of The Florida Bar, The U.S. District Court, Middle District of Florida and The United States Court of Appeals for the Eleventh Circuit, holds a J.D. from Syracuse University College of Law (where he was recipient of the “Global Law & Practice Award” as the outstanding graduate in the areas of International Law and International Business Law) and a B.S., with honors, in Marine/Mechanical and Nuclear Engineering from the United States Merchant Marine Academy.

Mr. Donovan, with deep family roots in southern Louisiana, has first-hand knowledge of the catastrophic devastation of the Louisiana Gulf Coast caused by hurricanes Katrina and Rita. He fully appreciates that the damage caused by Katrina and Rita may pale in comparison to the massive and potentially unprecedented environmental and economic impact of the BP oil spill of April, 2010.

 

 

Further Reading
Is The BP Oil Spill Victim Compensation Fund Legitimate?

Will Victims of the BP Oil Gusher Also Be Victims of Class Action Lawsuits and the BP Oil Spill Victim Compensation Fund?

BP’s Strategy to Limit Liability in Regard to Its Gulf Oil Gusher

Why BP Does Not Want an Accurate Measurement of the Gulf Oil Spill

The Oil Pollution Act Provides for the Federalization of the BP Oil Spill

BP Oil Spill of April, 2010: Why Class Action Lawsuits May Not be in the Best Interests of Potential Plaintiffs

 

 

UPDATE No. 1

Oil Flow Rate Estimates

On May 27, 2010, USGS Director Dr. Marcia McNutt announced that the National Incident Command’s Flow Rate Technical Group (FRTG) has developed an independent, preliminary estimate of the amount of oil flowing from BP’s leaking oil well. Based on three separate methodologies, the independent analysis of the FRTG has determined that the overall best initial estimate for the lower and upper boundaries of flow rates of oil is in the range of 12,000 and 19,000 barrels per day. Measurement of the flow of oil is extremely challenging, given the environment, unique nature of the flow, limited visibility, and lack of human access to BP’s leaking oil well. As the FRTG collects more data and improves their scientific modeling in the coming days and weeks ahead, they will continue to refine and update their range of oil flow rate estimates, as appropriate.

UPDATE No. 2

Undersea Oil Plumes

On May 15, 2010, The New York Times reported that scientists are finding enormous oil  plumes in the deep waters of the Gulf of Mexico, including one as large as 10 miles long, 3 miles wide and 300 feet thick in spots. Researchers from the University of Georgia, University of Southern Mississippi, University of South Florida and Louisiana State University have added to this preliminary body of evidence suggesting that some of the oil – no one knows what proportion – is dissolving into the water and forming huge plumes of dispersed oil droplets beneath the surface. This is worrisome because it raises the possibility that sea life, including commercially important species of fish, could be exposed to a greater load of toxins than conventional models of oil spills would suggest. The undersea plumes may go a long way toward explaining the discrepancy between the flow estimates, suggesting that much of the oil emerging from the well could be lingering far below the sea surface.

UPDATE No. 3

Dispersants: An Out-of-Sight, Out-of-Mind Strategy

Pursuant to NCP Section 300.310, “As appropriate, actions shall be taken to recover the oil or mitigate its effects. Of the numerous chemical or physical methods that may be used, the chosen methods shall be the most consistent with protecting public health and welfare and the environment. Sinking agents shall not be used.” Sinking agents means those additives applied to oil discharges to sink floating pollutants below the water surface. The question is whether BP’s dispersants are “sinking agents” when they are applied a mile underwater at the source of the well leak.

Invisible Threat

On May 28, 2010, Reuters reported that the toxic dispersants applied underwater by BP may work their way up the food chain.

David Hollander, a University of South Florida oceanographer, headed a research team that discovered a six-mile (10-km) wide “oil cloud” while on a government-funded expedition aboard the Weatherbird II, a vessel operated by the university’s College of Marine Science. “We were collecting samples down to two miles (3 km) below the surface,” Hollander told Reuters in an interview on Friday.

Hollander said the contaminants – which could eventually be pushed onto the continental shelf before shifting slowly down towards the Florida Keys and possibly out to the open Atlantic Ocean – raised troubling questions about whether they would “cascade up the food web.” The threat is that they will poison plankton and fish larvae before making their way into animals higher up the food chain, Hollander said.

The underwater contaminants are particularly “insidious” because they are invisible, Hollander said, adding that they were suspended in what looked like normal seawater. “It may be due to the application of the dispersants that a portion of the petroleum has extracted itself away from the crude and is now incorporated into the waters with solvents and detergents,” he added. He said dispersants, a cocktail of organic solvents and detergents, had never been used at the depth of BP’s well before, and no one really knows how they interact physically and chemically under pressure with oil, water and gases.

Roughly 850,000 gallons (3.2 million litres) of dispersant had been used by BP to combat the Gulf oil spill as of May 27, 2010, including 150,000 gallons (570,000 litres) released below sea level.

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36 Responses to “BP is Not the Only Responsible Party”

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I could have sworn that the private sector was completely able to regulate itself. Nice to see people finally admit we need regulation :D

Thank you for such a thorough article on the many factors that could have prevented the spill and how utterly mismanaged the response has been thus far. I will forward this link to everyone I know, per your permission of course, since everyone needs to know what went wrong and how we might be able to avert another such catastrophe in the future. Thanks again!

Alex,

Please feel free to share this information as you see fit.

Best regards,
Brian

Back on May 30th I wrote a 4 page letter to the Mobile Press Register entitled “Who is in charge, and what is the plan” for the defense of Baldwin County, AL. My letter was never published- too long, I suspect. Must all concerns be reduced to the equivalent of 30 second sound bites (or bytes)? Your presentation above is excellent and well researched but apparently isn’t being applied. Too bad.

Mike,

Thank you. I certainly understand that it is sometimes frustrating dealing with the media. However, don’t give up. On a separate note, you may be interested in this article:

http://donovanlawgroup.wordpress.com/2010/06/05/the-oil-pollution-act-provides-for-the-federalization-of-the-bp-oil-spill/

Best regards,
Brian

______________________
Comment:
Back on May 30th I wrote a 4 page letter to the Mobile Press Register entitled “Who is in charge, and what is the plan” for the defense of Baldwin County, AL. My letter was never published- too long, I suspect. Must all concerns be reduced to the equivalent of 30 second sound bites (or bytes)? Your presentation above is excellent and well researched but apparently isn’t being applied. Too bad.

Nice read. It is hard for our goverment to take control when BP controls our goverment. They just continue to suppress anything that gets in the way of there profits.

There is a much efficient solution than the “cap” one to at least stop spilling in the seawater by using a very common bottom Moineau pump worked from the surface in a hanged riser with its bottom connected by hoses to the kill and choke lines. We proposed this solution that can work even in storm conditions to the Horizon Team without much result so far.
Pierre DEVAUX
FRANCE

Great information. Thank you.

Brian, I sent your article to Salon, Slate,Michal Moore and Huffington Post. How about you sending it to the New York Times as an op ed? I would like someone to pick up on hiring the tankers ourselves. What would it take to do that?

Sally,

Thank you. Unfortunately, the New York Times is not interested. Since May 17, 2010, Renergie has submitted unsolicited proposals for the purpose of using three Panamax class crude tankers for the collection and onboard separation of the BP oil spill to every federal agency, state agency, state elected official and federal elected official with even a remote interest in the BP oil spill. The USCG response to Renergie’s proposal stated, “Unfortunately, the Coast Guard does not currently have a mission and is not hiring contractors. However, if BP requests names, I will recommend and forward your company.”

At this point, the timecharter of tankers requires a grassroots effort. Neither USCG nor BP will do so until it is too late. Please feel free to share the information as you see fit.

Best regards,
Brian

Brian, Do you have experts who can corroborate your info? I am going to bat for this, and hopefully a reporter or an eco group will jump on it. Let me know who contacts you, so I know what’s happening. Can you post, not to me but to the blog so that all interested parties have the same info? Thank you for what you have done.

Sally,

Yes, all information can be corroborated and I will keep you and other interested parties updated.

You may want to also visit: http://donovanlawgroup.wordpress.com/2010/06/05/the-oil-pollution-act-provides-for-the-federalization-of-the-bp-oil-spill/

Thank you for your efforts.

Brian

What entity has salvage rights to the spilled oil? Does the fact that the floating drill rig was registered as a ocean going vessel (FofC-Marshall Islands) play any part in establishing salvage rights? Presently the northern edge of the spill has one large, and two smaller “islands of oil” with a total length of about 125 miles. You have stated the daily capacity of the 3 Panamax crude tankers, but how about their ability to cover and effectively capture oil at the northern flank. And of course, the $ question? What will be the mobilization cost and daily charge, assuming all three tankers are at work? And of course, does the captured, dewatered crude have value?

I do not agree with your statement that
“the only viable permanent solution … is to
drill a relief well” ……I do have a diferent
definitive solution to plug the 21″ pipe spill,
and still use the oil coming out from the same
well, without drilling new ones.

excellent cogent write-up. this should be sent to the white house.

thank you!

Thank you. Please feel free to share the information as you see fit. Unfortunately, I am unable to get through to the White House.

Best regards,
Brian

Excellent article! This article provides so many answers. With your permission, I would like to post this on our website.

I had been wondering why tankers were not being used and had been trying to research all this. Could you please address this answer from Adm. Allen asked by Jake Tapper on June 6th why the super tankers weren’t being used? “We’ve actually talked to those folks. There are a couple of issues with that. Number one, the tankers actually have to be modified. They are not ready to go right now. Number two, we don’t know what those modifications will do to the stability of the vessels and how they operate and number thee, the area of operations is very, very different. We’ve got anywhere from 20 to 30 vessels within one square mile over the top of that well at any particular time, managing remotely operating vehicles, doing the drilling of the relief well and so forth, so I’m not sure it’s the right application of that right now.”

I would be most appreciative of your answer! Thank you!

Vickie,

Thank you. Please feel free to post this article on your website and share the information via any other media.

(1) “Number one, the tankers actually have to be modified. They are not ready to go right now.”

The only modifications to the tankers that would be deployed by Renergie are to the suction side of the vessel’s pumps, the fabrication and installation of a floating suction manifold pontoon platform and the installation of onboard oil/water separators. Basically, the vessels are “ready to go” right now.

(2)”We don’t know what those modifications will do to the stability of the vessels and how they operate.”

These modifications will not have any effect on the stability of the vessels and how they operate. A Panamax tanker is a tanker ranging in size from 60,000 dwt to 80,000 dwt. The Panamax crude tankers that will be used for this project by Renergie have the following general specifications:

Length Overall: 750 feet
Breadth: 109 feet
Draft: 43 feet
Cargo Capacity: 473,000 bbls.
Speed: 14.9 knots

(3) “The area of operations is very, very different. We’ve got anywhere from 20 to 30 vessels within one square mile over the top of that well at any particular time, managing remotely operating vehicles, doing the drilling of the relief well and so forth, so I’m not sure it’s the right application of that right now.”

Tankers were used after the Persian Gulf War in 1991 to collect the largest oil spill in history. The BP oil spill is more challenging in that it originates from the seafloor at a depth of approximately one mile. The temperature (approximately 42 degrees F) and pressure, combined with the underwater use of dispersants, causes the formation of underwater plumes which apparently do not reach the surface of the water. The BP oil spill must be collected from on the surface and underwater. This project will be a first-of-its-kind. There is no doubt that it will succeed with the proper modification to the suction side of the vessel’s pumps and utilization of floating suction manifold pontoon platforms.

Most of the oil has not stayed within a mile of “the top of that well.” Therefore, vessel congestion, ROV operation, etc. are not factors. Admiral Allen is probably only considering using tankers to offload oil that has been captured by the containment system that BP has installed.

Since May 17, 2010, Renergie, Inc. has submitted unsolicited proposals for the purpose of using three Panamax class crude tankers for the collection and onboard separation of the BP oil spill to every federal agency, state agency, state elected official and federal elected official with even a remote interest in the BP oil spill. BP/USCG will eventually have to use tankers to collect the Gulf oil spill. There is only so much dispersant that can be applied to keep the oil below the surface of the water. Unfortunately, this decision will be made after the devastation of many coastal communities.

I hope this answers your questions.

Best regards,
Brian

Brian:

Thank you so much for your response! Yes, you definitely answered my questions about Adm. Allen’s response. Although Adm, Allen’s entire response sounded more like excuses, the third point didn’t make any sense. Thank you for clearing this up! Excellent response! I sure do wish you had been on Tapper’s show and could have followed up on his question!!
Thank you, Vickie
Vickie

I came here following your comments on the Alaska Dispatch web page.

I have to say–this is far and away the most informative series of articles on the Gulf spill I have seen anywhere–and I have been obsessed with the spill since April 20th.

Heartfelt thanks.

The following may help . . .

Introduce Congressional bill states oil companies BP and associated companies related to well and well blow out will directly release some of their company stocks directly to all U.S. Citizens on a daily basis.

The amount of company stocks that are to be released daily will be in direct proportion to the amount of oil and hydrocarbons that are being released daily into the ocean. A greater amount of company stocks will be given over to those that are going through the greater suffering. All people, citizens of the U.S. shall receive company stocks as all people in the U.S. will suffer from the oil spill in one way or another, whether that be through contaminated food consumption or ___________ .

Express the above to your Congressional Representative and state that the company stocks are to go to the people on a direct basis and not to the government. Also express that your vote counts! Since the oil and hydrocarbons are a cause of ill health “to the people” then direct compensation is needed “for the people” in this war on hydrocarbons.

[...] Many other countries offered help but our government declined their offers. They did the same thing after Katrina and we declined that too. Much of this is the government's fault, they are responsible for creating and enforcing regulations. They failed miserably. If you or I got 700+ traffic fines we would lose our drivers license. BP got that many fines yet were still allowed to proceed business as usual. Take a look at this blog I found, it sheds some light on the various CYA tactics that various companies and government agencies are using. Lots of resources and time being spent on the PR machine instead of the oil spill itself. BP is Not the Only Responsible*Party [...]

why is there no mention of the third leak? why would they want to hide it ? is it the elephant behind the mouse?

our group of scientist have designed a fail safe cap that would stop the oil at it’s source. We have tried senator Karry’s office and have submitted a white paper to the USCG. We have tried calling BP,emailing to every one we can get a hold of with no luck.When you start a class action suit please include our group

We do not know the scientists group David Rossi is writting about but, as a french drilling expert group, we arrived at a similar conclusion about a relatively simple capping and top killing solution that could be tested without risk. We also tried many times from half May to suggest it to BP/USCG (by emails, phone calls, white papers…) without success so far.

Thank you for the truth. Sad to say I had to search for it(isn’t it always the case?) because the BP/US spill is now relegated to the back page behind the fascinating WAGs of the world cup…

can any entity which [who] is not or are not force the right changes to be made? I live in Orlando, but I care about this state-we have had enough with the economy-now the rest is going south.

Earthjustice recently filed suit in federal court on behalf of Sierra Club and Gulf Restoration Network against the U.S. Minerals Management Service, challenging the agency’s arbitrary approval of BP’s oil spill clean-up plan. You may want to give them a call.

Contact information is available at:
http://action.sierraclub.org/site/MessageViewer?em_id=179945.0


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    Renergie created “field-to-pump," a unique strategy to locally produce and market advanced biofuel (“non-corn fuel ethanol”) via a network of small advanced biofuel manufacturing facilities. The purpose of “field-to-pump” is to maximize rural development and job creation while minimizing feedstock supply risk and the burden on local water supplies.

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