February 26, 2013 12:02 am

BP case told of ‘Swiss cheese’ theory

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At the heart of the dispute over whether or not BP acted with gross negligence and wilful misconduct in the 2010 Deepwater Horizon disaster is the “swiss cheese” model of complex accidents.

Hazardous activities are guarded against by multiple barriers and so long as any failures are scattered through them, like holes in Swiss cheese, the system as a whole will avoid an accident. It is only if the holes are all lined up that disaster strikes.

In its own report on the accident in 2010, BP presented a diagram illustrating this model, which was presented in court in New Orleans on Monday by Michael Underhill, the lead lawyer for the US Department of Justice.

He argued that the multiple failures that led to the disaster were evidence of “a long series of missteps and reckless decisions by BP that taken together point towards wilful misconduct”.

The trial will determine liability for civil damages and penalties over the explosion on the Deepwater Horizon rig, in which 11 men were killed and up to 4.1m barrels of oil spilled into the Gulf of Mexico.

Leading the case for BP, however, Mike Brock argued that the model “demonstrates precisely the opposite”. The fact that the company had multiple barriers in place showed that it was acting with “due care”, he said, and that the accident was the result of multiple failures by multiple parties, including Transocean and Halliburton as well as BP.

In Mr Brock’s version, the oil and gas leak from the well that caused the fatal explosion on the rig and the huge spill in the Gulf of Mexico could have been stopped at four points: the cement used to seal the well; the tests used to determine whether the cement was secure; the flow of oil and gas towards the rig, and the decision to use the blowout preventer, the stack of valves designed to seal the well in an emergency.

In all of those four phases, other companies played central roles, Mr Brock said. The cement was supplied by Halliburton. Transocean’s rig crew had responsibility for monitoring the well for flows of oil and gas, and for shutting it in with the blowout preventer if necessary.

Mr Brock accepted that BP’s staff had been involved in the negative pressure test, the critical test used to determine whether the well had been sealed, which was misinterpreted as showing that it was secure. However, he said they had been working together with Transocean’s crew, not calling the shots.

“There are no dictators in the group. They are working collaboratively to get to a conclusion,” he said.

He also argued that the story of the negative pressure test disproved the government’s allegation that corner-cutting by BP, in order to save costs running at $1m per day, was a cause of the disaster. BP and Transocean staff had spent several hours working on the tests and debating its confusing results, he said.

“This is not a situation . . . that reflects a want of care or an intentional act to hurt someone,” Mr Brock said. “It was a mistake.”

The US, on the other hand, argues that the mistakes made by other companies are an irrelevance.

Mr Underhill highlighted a call between Mark Hafle, a BP engineer on shore in Houston, and Don Vidrine, one of BP’s “well site leaders” – supervising engineers – on the rig, which took place on the evening of April 20 when oil and gas were already rising up from the well towards the rig.

Mr Hafle has exercised his rights under the Fifth Amendment to the US constitution, and will not be giving evidence at the trial, while Mr Vidrine has declined to testify on health grounds.

A report of the conversation taken for BP’s internal inquiry, however, shows that Mr Vidrine reported some anomalous results, which Mr Hafle suggested did not mean the test had been successful. After some further discussion, however, possibly at cross purposes, the call ended with Mr Hafle believing Mr Vidrine thought the test was fine.

Just 47 minutes later, the first explosion hit the rig.

Mr Underhill argued that Mr Vidrine’s failure to raise concerns about the test after that call “alone constitutes wilful misconduct.”

Combined with other evidence, such as BP’s knowledge of a previous problem with what its staff described as “the well from hell”, it pointed to “a corporate culture of disregard for safety”.

Judge Carl Barbier’s decision on whether he is right will make a difference of many billions of dollars to BP.

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