On September 30, the second phase of the of the Deepwater Horizon oil spill Limitation of Liability trial was set to begin against BP and its contractors. Hopefully, it did without interruption. The second phase is separated into two parts, one of which will explore BP’s efforts to control the flow of oil. Secondly, the Court will seek to determine how much oil was actually spilled in the Gulf. Sixteen experts are expected to testify during the second part and, in total, Judge Barbier has set a schedule of 16 days to conclude the entire second phase of the trial.
The second phase promises to be a major showdown between the Justice Department and BP, especially as pertaining to volume of oil spilled in the Gulf. Billions of dollars are potentially at stake depending on the Court’s decision. As we have previously written, Clean Water Act fines are calculated, in part, based on the amount of oil spilled.
Justice Department experts estimate that around 4.2 million barrels of oil (176 million gallons) escaped into the Gulf of Mexico as a result of the spill before BP sealed the well 86 days after April 20, 2012. BP, on the other hand, is contending that the Justice Department’s estimate is flawed, and that the well actually spilled an estimated 2.45 million barrels, or nearly 103 million gallons of oil. In total, BP estimates that the Federal Government overestimated the spill by 26 to 42 percent, while the Justice Department has maintained that BP “abandon[ed] the data from the (spill) response actions and contradicting evidence” from the phase one trial in reaching its conclusion.
As stated, Clean Water Act fines are based on the amount of oil spilled and the culpability of the polluter that spilled it. The Act provides that a defendant can be liable for $1,100 per barrel. But if the defendant is shown to be grossly negligent, a maximum of $4,300 per barrel of spilled oil would have to be paid. Based on what we have learned during the BP litigation, I believe the oil giant will be found to have been grossly negligent.
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