BP oil spill case goes to judge

HEARING: Feds say pipeline rupture violated '07 probation.

Anchorage Daily NewsDecember 7, 2011 

The question of whether the circumstances surrounding a 2009 BP oil spill on Alaska's North Slope amount to another environmental crime by the corporation -- justifying new penalties -- now is before U.S. District Judge Ralph Beistline.

Prosecutors and lawyers for BP gave closing arguments Wednesday in a hearing that began Nov. 29.

A pipeline feeding into BP's Lisburne Production Center froze, then ruptured in November 2009, spilling more than 15,200 gallons of crude oil. That's a slightly higher figure than even prosecutors initially used but, according to a BP spokesman, includes oil recovered from the snow and tundra as well as what likely evaporated. BP has been on criminal probation since 2007 for an earlier, much bigger spill and was under order not to commit any new environmental crimes.

The hearing took almost seven days and included five lawyers, giant binders of exhibits, and videos of federal agents tromping through wetlands. One BP lawyer wondered the probation revocation case set a record, considering the underlying conviction was a misdemeanor. BP hasn't been charged criminally for the 2009 spill, but a criminal investigation is ongoing, prosecutors said.

Ten times in the summer and fall of 2009, a temperature sensor on the Lisburne pipeline triggered a cold alarm that sounded like a train whistle and flashed on a control room monitor. But operators at the Lisburne Production Center failed to act on the alarm beyond acknowledging it, which turned off the sound and blinking signal, assistant U.S. Attorney Aunnie Steward said in her closing argument. They never investigated why it kept going off, she said. By August, the pipeline stayed cold, according to a government analysis of the alarms.

"After that point, the alarm latched in and became buried on the board," Steward said. A buried alarm is so deep on the alarm list, operators no longer see it.

As temperatures dropped into the fall, ice plugs formed in the pipe, which carried a mix of natural gas, water and crude. When the ice expanded, excess pressure built from the gas and the thick metal pipe blew open with a two-foot hole.

"From operators all the way up to the area manager, it was agreed that had the plug been discovered prior to the freezing temperatures, it would not have been a problem and much easier to address," Steward said.

But BP operators testified that they didn't use the cold temperature alarms to warn that the pipeline was improperly cooling down, but rather to indicate a slug of natural gas moving through, information that would be conveyed to the drill site.

The operators did nothing wrong by simply acknowledging an alarm intended to be informational and not warning of something critical, BP lawyer Jeff Feldman said. He said the prosecution case was thin and said the two main witnesses against BP were an expert who had never been to the North Slope, and a special agent with the Environmental Protection Agency who focused on BP's own investigation of the spill.

"The government gave us no one who had, I will submit, a credible understanding of the plant, the lines and the operations that were at issue, or most significantly, the industry practices that define the standard of conduct that applies here," Feldman said.

BP executives who testified said that the company's operations followed industry standards, he noted.

Still, Steward noted that BP's investigation concluded that the failure of operators to recognize and respond to the alarms was a root cause of the spill.

BP failed to apply lessons learned in 2001, when a pipe froze, then cracked open, Steward said. That time, BP says 10,000 gallons of oil and methanol spilled during an ill-fated attempt to thaw the line.

"Despite the highly technical nature of the evidence at times, this case really boils down to common sense. The oil spill at issue in this case was both predictable and preventable," Steward argued to the judge. "Because BP failed to learn from its earlier experiences, BP's failure in this regard is a gross deviation from the standard of care."

In fact, BP didn't even believe it was possible for the Lisburne line to freeze and rupture, according to a required safety analysis of the Lisburne center it did in 2009 pre-spill. Never before had a large diameter pipeline like the 18-inch Lisburne line frozen and ruptured, BP says.

Troubles were masked because the line was paired with a bigger pipeline that still carried oil, natural gas and water to the processing center, where they were separated, witnesses testified. Plus, the temperature sensor was positioned on a piece of the pipeline inside the heated module, so the cold alarms didn't reflect just how cold the pipeline really was.

After the 2001 spill, all of the temperature sensors for looped lines that weren't already outside were moved out of their heated modules -- except for the ones at Lisburne, Steward said.

BP can't be faulted now for what wasn't done ten years ago, Feldman argued.

The rupture could have been avoided "if people knew then what they know now," he said. But that's not a fair measure.

The government's theory of the case seems to be "perfect wisdom of 20-20 hindsight," he said.

Prosecutors have called BP a repeat environmental offender. The corporation pleaded guilty to a felony in 2000 for failing to immediately report illegal dumping of hazardous waste by a contractor at its Endicott oil field in Alaska's Beaufort Sea.

In 2007, it pleaded to a federal misdemeanor for a huge spill in 2006. A severely corroded pipeline at Prudhoe Bay leaked about 200,000 gallons. BP was put on three years of probation and had to pay $20 million in fines and penalties plus $25 million to settle a civil lawsuit brought by the federal government. A separate state lawsuit is set for trial in the spring.

After the 2009 spill, BP's misdemeanor probation was extended.

Feldman argued the extra year on probation already served was enough. But if Beistline finds BP in violation of that probation, prosecutors want more fines and another term of probation.

"Do we have to wait until ... anybody else is killed by BP to get them to start paying more attention to safety and the environment and less to their bottom line?" Steward said at the end of her closing argument. "I sure hope not."

BP was convicted of a felony for the 2005 Texas City refinery explosion that killed 15 people. And the company remains under investigation for the Deepwater Horizon explosion in the Gulf of Mexico that killed 11 people and led to a massive oil spill.

The most technical part of the current case is whether the spill occurred in U.S. waters, a necessary element for a violation of the federal Clean Water Act. Witnesses testified about wetlands and water flow, culverts and drainage basins, barriers and tundra polygons.

Neither side knows when Beistline will rule. It may take a while. He told the lawyers he planned to "relisten to this entire trial in the quiet confidence of my chambers, with some limited exceptions."

The ruptured Lisburne pipeline never went back into service.

Reach Lisa Demer at ldemer@adn.com or 257-4390.

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