Fingerprinting the Spill


In what amounts to a win for BP spill victims, a federal court in Louisiana Tuesday (July 27) ordered the oil company to preserve oil samples it has taken from its gusher and work with environmental groups and others to figure out what testing procedures are appropriate moving forward.

I participated in this action on behalf of clients because I consider it an important part of holding BP responsible for the spill. We’ve noted that BP officials have often referenced (a bit too often, if you follow me) all the “natural” or “from other sources” seepage into the Gulf, and that leads you to wonder if someday they’ll deny certain pollution is in any way tied to their spill.

So, we want to “fingerprint” the BP spill oil, which really means preserving it so we can match its chemistry.

There are credible experts, like EPA senior strategist Hugh Kaufman, who feel that BP has been working very hard to hide the spill all along, using dangerous dispersants, withholding video footage and low-balling flow estimates. This would be consistent with later arguing that there’s no telling if the oil came from BP’s well or other sources.

We’re in a bind because BP controls access to many of the areas where we might get appropriate samples, like the spill source. And as we say in the court filing, BP “… has displayed a lack of enthusiasm for collecting samples in order to preserve evidence. Indeed, BP refuted the initial reports and denied the existence of the spill for as long as possible. BP and NOAA also denied the reports of submerged oil by researchers for as long as possible, despite basic physics suggesting that oil would be entrained in the water column and that monitoring should have occurred from the very beginning; BP delayed and the initial opportunities to recover information was lost. BP has attempted to block or delay Plaintiffs’ access to information from the start, and will continue to do so for as long as they are able.”

We also argued that there’s no reason to expect BP to change, and that government oversight is far from adequate. For the testing, we said that “… BP will not change the protocol without court order, nor do the government agencies involved provide adequate protection. BP and the government have displayed in the past with the flow calculations and reports of submerged oil in the water column that BP will cling to inadequate testing protocol to maintain conservative numbers that benefit them. The flow calculations did not change until congressional subpoenas were involved and the agencies’ control over BP seems tenuous when taking into account BP’s insufficient analysis in the face of past EPA directives.”

As it often happens, we didn’t get everything we wanted from the court. But if BP acts in bad faith, we’ll be back in court … and it’s often been noted that judges can get a bit testy when they say “work it out” and lawyers don’t follow up.

© Smith Stag, LLC 2010 – All Rights Reserved

Memo Collect Preserve Samples [Doc 358-1] 7-22-2010

Mot To Collect And Preserve Samples [Doc-358] 7-22-2010

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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