The Donovan Law Group

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

Posted in BP, Clean Water Act, dispersants, measurement, oil spill, OPA 90, responsible party by renergie on June 14, 2010

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

By Brian J. Donovan

June 13, 2010


The amount of oil that will ultimately be released into the waters of the Gulf of Mexico as a result of  the Deepwater Horizon blowout of April 20, 2010 may never be known.

On April 24, BP reported that approximately 1,000 barrels of oil per day (bbl/day) were being released into the Gulf.

On April 28, it was estimated that approximately 5,000 bbl/day were being released into the Gulf of Mexico. Repeated endlessly in news reports, this figure became 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 which 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.

On May 27, USGS Director Dr. Marcia McNutt, Chair of the National Incident Command’s Flow Rate Technical Group (FRTG), announced that the amount of oil flowing from BP’s leaking oil well was estimated to be 12,000 to 19,000 bbl/day.

On June 3, BP sawed off the riser pipe that had been kinked near the seafloor, constricting the flow of oil from the leak. The clean cut allowed the company to secure a containment cap to the pipe, capturing some of the escaping oil and funneling it to ships at the surface.

On June 10, is was guesstimated that the well was gushing 20,000 to 40,000 bbl/day. This latest figure is for the size of the leak prior to June 3, when BP sawed off a bent riser pipe, potentially increasing the amount of crude escaping by as much as 20 percent. According to Marcia McNutt, director of the U.S. Geological Survey, a projection for the current rate of oil flow has not been developed. Preliminary figures from a team of Woods Hole Oceanographic Institution scientists suggest the well could be leaking as much as 50,000 barrels a day, McNutt said.

According to Dr. McNutt, the “most credible estimate” for the size of the leak before the riser pipe was cut is 20,000 to 40,000 bbl/day. Based on the midpoint (30,000 bbl/day) of the latest approximation, from April 22 when the Deepwater Horizon rig sank until June 3 the well gushed 1.26 million barrels of oil, or 52.9 million gallons. The midpoint guesstimate of 30,000 bbl/day is six times more than the figure that BP and the federal government used from April 28 to May 27.

BP alleges that it is capturing about half of the new estimated flow rate from the Deepwater Horizon well, almost a mile down on the seabed of the Gulf of the Mexico, and siphoning it to ships on the surface.  BP reportedly collected 15,520 barrels of crude at the surface between noon on June 9 and noon on June 10, the last 24-hour period for which data is available. According to the midpoint of the latest estimates from the group of scientists, this means at least  15,500 bbl/day of crude oil are currently being released into the waters of the Gulf of Mexico.

BP does not want an accurate measurement of the Gulf oil spill for two reasons:
(a) the Oil Pollution Act of 1990; and (b) the Clean Water Act.


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.

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. (Oil Pollution Act of 1990, 33 U.S.C. 2704).

BP may be liable to the United States and to Louisiana for damages resulting from lost royalties. Pursuant to Section 2702 of OPA 90, “Notwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) of this section that result from such incident…”, including revenue losses such as “taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by the Government of the United States, a State, or a political subdivision thereof.” (Oil Pollution Act of 1990, 33 U.S.C. 2702(b)(2)(D)).


BP also faces uncapped liability under a little-known Clean Water Act (CWA) civil damages provision.

Pursuant to Section 1321 of the CWA, “Any person who is the owner, operator, or person in charge of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3), shall be subject to a civil penalty in an amount up to $25,000 per day of violation or an amount up to $1,000 per barrel of oil or unit of reportable quantity of hazardous substances discharged. In any case in which a violation of paragraph (3) was the result of gross negligence or willful misconduct of a person described in subparagraph (A), the person shall be subject to a civil penalty of not less than $100,000, and not more than $3,000 per barrel of oil or unit of reportable quantity of hazardous substance discharged.” (Clean Water Act, 33 U.S.C. 1321).

Under the CWA, the basic fine is $1,100 per barrel spilled. But the penalty can rise to $4,300 a barrel if a federal court rules the spill resulted from gross negligence. As noted above, the fines were originally set at $1,000 to $3,000 but that was raised in 2004 to keep up with inflation. Accordingly, the number of barrels of oil being released from the well is going to be critical.

If the government pursues civil fines based on the volume of oil spilled, it would take into consideration whether BP has made its best effort to mitigate the spill, its prior history of offenses, if any, and whether BP can bear the cost of fines, among other factors. Interestedly, BP received the third-largest criminal penalty, of $50 million, for an environmental offense in U.S. history for a Texas City refinery fire in 2005. BP subsidiaries remain under federal probation for prior offenses in Texas and Alaska.

Under the CWA alone, gross negligence penalties based upon a discharge rate of 30,000 barrels per day would total $129 million per day. BP’s net profits in the first quarter of 2010 were approximately $6.7 million per day.

It is obvious why BP, despite having the ability to obtain a very accurate flow rate through ultrasound, does not want a more accurate measurement. It is also very obvious why BP does not want to collect a great deal of the oil spill. Since April 22, 2010, BP admits that it has been able to recover only approximately 475,000 barrels of “oily liquid.” This equates to collecting a total of only 47,000 to 71,000 barrels of oil.


BP’s strategy, to systematically underestimate the rate of the oil that’s being spilled into the Gulf of Mexico, involves: (a) prohibiting independent measurement of the rate of oil flow from the well by unbiased third party scientists and engineers by denying direct access to the Deepwater Horizon well; and (b) applying an unprecedented amount of dispersant to the oil spill both on the surface and underwater.

Denying Direct Access to the Deepwater Horizon Well
Dr. 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  has 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.

Prior to May 27, BP and the federal government had made no attempt to update its estimate of 5,000 bbl/day 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. On May 13, 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.

On June 8, in responding to a question regarding the rate of the flow of oil from the BP well, Admiral Thad Allen told ABC News, “Everything we know and everything we see is through either the remote sensors or remote-operated vehicles that are like looking through a particular keyhole at a particular time.” Access to that keyhole is still completely controlled by BP.

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 oceans of the world, who’s to say for certain whether BP’s oil well blowout gushed an average of 5,000 or 80,000 bbl/day of oil? By allowing BP to obscure the spill’s true magnitude, the federal government appears to support BP’s strategy.

Dispersants: An Out-of-Sight, Out-of-Mind Strategy
To date, more than 1,000,000 (one million) gallons of dispersant have been poured into the Gulf of Mexico 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. BP has an additional 805,000 gallons of dispersant on order.

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. Experiments by John Nyman of Louisiana State University indicate that the combination of Louisiana crude and the dispersant used on the current spill is more toxic to marsh-dwelling invertebrates than oil alone would be.

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. 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.

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. “The effort should be in recovering the oil, not making it more difficult to recover by dispersing it,” says Earle. The chemical assault appeared geared, she says, “to improving the appearance of the problem rather than solving the problem.”

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.

Sinking Agents
The National Oil and Hazardous Substances Pollution Contingency Plan, more commonly called the National Contingency Plan or NCP, is the federal government’s blueprint for responding to both oil spills and hazardous substance releases. The National Contingency Plan 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.

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.


BP is knowingly and systematically underestimating the size of the spill to limit the financial impact on the company. Under the CWA, the company faces fines of up to $4,300 for each barrel spilled. Furthermore, pursuant to Section 2702 of OPA 90, BP may be required to pay royalties (18.75%) owed to the federal government for the oil gushing from the well.


Bhattacharyya, S., P.L. Klerks, and J.A. Nyman. 2003. Toxicity to freshwater organisms from oils and oil spill chemical treatments in laboratory microcosms. Environmental Pollution 122:205-215.

BP is Not the Only Responsible Party, available at:

Clean Water Act



National Contingency Plan


Oil Pollution Act of 1990

USA Today:




About the Author
Brian J. Donovan is an attorney and marine engineer with thirty-five 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.


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