On April 25, 2010, BP assured the Gulf Coast that a disaster wasn't unfolding.
Five days earlier, the Deepwater Horizon, a BP-leased rig in the Gulf of Mexico, had suffered a massive blowout, killing 11 men and seriously injuring 17 others. The floating platform burned for two days, then sank in 5,000 feet of water. Less than 48 hours later, BP discovered a leak from its deep-sea well.
BP knew that the well, tapping a reservoir of at least 50 million barrels, could release vast amounts of crude oil, dwarfing tanker-sized spills. But the company's experts quickly calculated that the well was releasing just 1,000 barrels a day, an estimate it provided to the Coast Guard shortly after the leak was found. The Coast Guard made BP's figure public on April 24.
At a press conference the next day, a New Orleans reporter asked whether the leak could produce a spill on par with the Exxon Valdez disaster. Doug Suttles, an engineer and BP's chief operating officer for exploration and production, told him it could not.
There were "many, many restrictions" within the well and other drilling equipment on the seafloor, Suttles said, dramatically slowing the release of oil. "This is a long way away from something more significant."
Events soon proved Suttles' reassurances to be terribly misplaced. The leak rate at the time was far, far higher than BP portrayed to the Coast Guard -- more than 50,000 barrels per day from the moment the rig went down until the well was capped 87 days later, a government-led panel of physicists and engineers would conclude that August. At that rate, the leak had produced an Exxon Valdez-sized spill at least every five days.
Today, more than a year after the spill ended, serious questions remain about BP's role in estimating the size of the undersea gusher.
What is clear is that BP failed, throughout the event, to produce an accurate estimate of the size of the leak to the federal government or the public. Also readily apparent is the company's strong vested interest in downplaying the size of the spill: federal pollution laws stipulate fines as high as $4,300 for every barrel of oil unlawfully discharged into U.S. waters.
Less obvious is precisely how and why the multinational energy giant fell so short in its efforts to determine the scale of the disaster. BP officials have adamantly denied deliberately lowballing the size of the spill, arguing that the company was overwhelmed by the technical challenge of measuring the deep-sea leak and claiming that the government shares equal responsibility for the early flow estimates.
Yet a review by The Huffington Post of thousands of pages of documents, along with interviews with dozens of engineers, scientists and government officials, has uncovered new information challenging BP’s portrayal of its efforts to measure the leak -- and found the company may have withheld crucial data on the well’s flow rate from federal responders during the spill.
According to federal officials, BP was solely responsible for producing the very first spill estimate of 1,000 barrels per day, a figure which led to a sense of complacency about the seriousness of the event among some federal and state responders at the outset of the disaster, the presidential commission on the oil spill concluded in January 2011. BP has never publicly acknowledged generating this figure and even the commission’s investigators could not determine the methodology used to produce it.
Documents and interviews also indicate that BP, using reservoir data, computer modeling and imagery of the leaking pipe, may have had the ability to calculate a far more accurate estimate of the well's flow rate early on in the spill than it provided to the government. The company either never fully ran those calculations or their results were not disclosed to federal responders.
"There was no lack of highly-coordinated work going on on that topic right from the beginning," said an oil industry consultant directly involved in the effort to stop the leak, who requested anonymity because he may be called to testify in criminal and civil litigation related to the spill. “If all of those calculations were run, the flow rate could be fairly accurately predicted.”
Through a spokeswoman, BP declined to answer any questions from The Huffington Post about the company's efforts to measure the leak. Current and former BP officials either did not respond to requests for comment or declined to be interviewed.
BP's attorneys, however, recently acknowledged in public filings that questions over the flow rate have become a "critical" issue for the company in litigation over the spill. In a document filed in a New Orleans federal court in July, they noted that the company faces at least a half-dozen lawsuits alleging that it deliberately downplayed the size of the leak in order to prop up the company's plunging share prices and to reduce the company's per-barrel exposure to fines.
Plaintiffs in these suits include the state of Louisiana and the state employee pension funds of New York and Ohio. The cases are scheduled for trial in February 2012, where they will be tried in conjunction with hundreds of other civil suits, including one that the federal government filed against BP.
The flow rate also continues to be a focus of a Justice Department criminal probe into the spill, according to federal officials, defense attorneys and a corporate executive involved in the response effort, all of whom spoke with The Huffington Post on condition of anonymity because of their proximity to the investigation.
The investigation, which Attorney General Eric Holder announced in June 2010, is examining whether BP officials or employees committed criminal offenses by withholding data or providing false or misleading information to the government or investors about the size of the leak, according to sources with knowledge of the inquiry.
The federal criminal probe is "alive and ongoing," said the executive, who was briefed on elements of the investigation. "There are definitely a couple of BP issues. One is flow rate."
The federal criminal investigation now includes a grand jury, a crucial step before bringing indictments, according to a July regulatory filing by Halliburton, which conducted work on the well before the rig explosion. "The DOJ has convened a grand jury in Louisiana to investigate potential criminal conduct in connection with the Macondo well incident," the company wrote.
A spokeswoman for the Justice Department would not confirm or deny the existence of a grand jury or discuss specific elements of the investigation, saying only that the criminal probe into the spill remained active.
Federal criminal charges against BP and the other companies involved in the Deepwater Horizon disaster are likely, many legal experts said, and will almost certainly include misdemeanor or felony violations of the Clean Water Act and other environmental statutes.
Criminal negligence and manslaughter charges could also be brought if evidence is found that the rig explosion was a result of reckless indifference to safety by managers or executives. But such charges are far more likely to be brought against the corporations as a whole, not individuals.
Criminal charges based on deceptive acts, on the other hand, are more typically brought against individuals.
"Anybody who lied or misled the government could face charges, there's no question of that," said Sam Buell, a law professor at Duke University and former federal prosecutor. "When they charge those cases, they usually charge individuals."
In the case of the flawed flow estimates, what prosecutors might learn about any cover-ups -- if they existed at all -- is unclear. Such evidence could take the form of email records or other documents, or in testimony from BP personnel involved in the early response efforts.
"Was it incompetence or was it deliberately premeditated? It's one or the other," said Rep. Edward J. Markey (D-Mass.), who as chairman of a House energy subcommittee used his subpoena power to force BP to reveal internal documents on its efforts to measure the flow and to share a video feed of the undersea leak with the public.
"What did BP know and when did they know it? That's exactly the challenge," Markey said.
A RIG GOES DOWN
Rear Adm. Mary Landry was nodding off to sleep on the evening of April 20, 2010, when she received the call that a deepwater drilling rig in the Gulf of Mexico had been rocked by a series of explosions and was engulfed in flames.
As commander of the Coast Guard's 8th district, which encompasses much of the Gulf of Mexico, responsibility for responding to the accident rested squarely on Landry's shoulders, and she would spend much of the night issuing orders, taking reports from officers in the field and passing information on to other government agencies and up her chain of command.
In an exclusive interview with The Huffington Post, Landry recalled that one of her first actions was to send Coast Guard investigators into the field to begin unraveling the cause of the accident.
"One thing I remember specifically was saying, 'Get the investigators out there quickly, before the company can lawyer up,'" she said. "I wanted the survivors to be interviewed as soon as possible."
Within hours, a tally of those rescued indicated that 11 men had not escaped the raging inferno on the rig. Those men would be declared lost at sea after an intensive 24-hour search that turned up no bodies. Another 17 men had been seriously injured.
As the search for survivors came to an end, responders' attention fixed on the possibility that the rig disaster could unleash a catastrophic oil spill.
Early reports were clear that the rig had suffered a major blowout, as a powerful surge of gas and oil burst through a concrete plug designed to shut in a newly completed well, then overcame thousands of gallons of heavy drilling fluid and seawater as it streamed up 5,000 feet of pipe to the water's surface.
The result was a geyser of drilling fluid and seawater arcing high above the drilling floor, followed by a haze of highly explosive gas that quickly engulfed the platform. A spark ignited the gas and explosions tore through the decks, causing widespread havoc and destruction. When desperate attempts to stop the flow from the well were unsuccessful, the rig was abandoned.
The Deepwater Horizon, an floating drilling rig leased by BP, burns in the Gulf of Mexico. The rig exploded on the night of April 20, 2010, and sank two days later, setting off the largest offshore oil spill in U.S. history.
A river of oil streams from BP's ruptured well at the bottom of the Gulf of Mexico. BP would initially estimate that 1,000 barrels per day were flowing from the well, but the government would eventually conclude that the actual flow from the well was more than 50,000 barrels per day. BP faces fines of as much as $4,300 for each barrel the well released under federal pollution laws.
Former House Energy and Environment subcommittee Chairman Rep. Edward Markey, D-Mass., was one of the foremost critics of BP's failure to provide an accurate estimate of the well's flow rate and used his subpoena power to compel the company to make video of the leak public.
Rear Adm. Mary Landry of the U.S. Coast Guard was the lead federal official in charge of the oil spill response at the beginning of the disaster. She said an initial 1,000 barrel per day estimate of the leak was generated by BP.
A slick from the BP oil spill in the Gulf of Mexico meets freshwater from the Mississippi River in May 2010. BP originally estimated that its leaking well was releasing just 1,000 barrels per day, but the federal government would ultimately conclude that the well had released more than 50 times that amount, a total of more than 5 million barrels.
An oiled brown pelican floats in Barataria Bay June 6, 2010 near Grand Isle, Louisiana. Thousands of birds would be killed after exposure to oil from BP's leaking well.
Steven Wereley, a professor of engineering at Purdue University, produced an independent calculation of the leak from BP's well after Congress pressured the company to release video of the undersea leak. Wereley determined that the well was releasing more than 10 times more oil than BP was estimating at the time. He recently confirmed to The Huffington Post that he is providing expert assistance to Justice Department prosecutors investigating the spill.
Millions of gallons of oil from BP's leaking well would eventually coat marshes and beaches from Louisiana to Florida.
Doug Suttles, BP's chief operating officer for exploration and production at the time, initially told the public that the leak from the company's well in the Gulf of Mexico was small -- just 1,000 barrels per day -- because of restrictions and obstructions within drilling equipment on the seafloor. The estimates he provided would prove to be highly inaccurate.
An internal BP document provided to a House energy subcommittee by Rep. Ed Markey in June 2010, reveals that BP calculated flow rates on the well of up to 40,000 barrels per day. The company publicly claimed until late May 2010 that its best estimate of the flow was no more than 5,000 barrels per day.
An estimated 4.9 million barrels are believed to have been released from BP's ruptured well in the Gulf of Mexico, which flowed for 87 days before being capped on July 15, 2010. The company faces tens of billions of dollars in fines related to the spill, as well as potential criminal charges from a Justice Department probe. The long-term environmental damage from the spill remains a subject of scientific study and debate.
Even as the platform burned, technicians with BP and Transocean, the rig's owner and operator, used undersea robots called remotely operated vehicles, or ROV's, in a futile attempt to activate the blowout preventer, a 500-ton steel behemoth resting on the seafloor that served as a final failsafe to secure an out-of-control well.
"The ROV has made several attempts to shut in the well," an internal Coast Guard log noted the morning of April 22. "All attempts have failed."
A Coast Guard log the previous day noted that the well was releasing as much as 8,000 barrels of oil per day, but the source of that estimate remains unclear.
At mid-day on April 22, the 32,000-ton Deepwater Horizon, still engulfed in flames, slipped beneath the waves. As it sank, the riser -- a roughly 20-inch diameter pipe connecting the well to the rig -- sheered off the bottom of the platform and crumpled to the seafloor, still attached to the blowout preventer -- and to the gushing well.
Within hours, the ROVs, equipped with a high-definition camera and wired to transmit video to the surface via a fiber optic cable, were back at work, scouting the seafloor for the rig and assessing the condition of the well and the riser.
An early report from BP on the morning of April 23 was positive, declaring that the ROVs had determined that the well had been sealed and that there was no leak. Landry immediately relayed the good news to the public in appearances on all the major network morning shows.
“There is no crude oil at this time leaking from the wellhead. There is no crude oil leaking from the riser,” she told one interviewer.
Shortly after informing the nation that the well was secure, Landry received a call from Doug Suttles, BP's chief operating officer for global exploration and production. Suttles was one of the first senior BP executives on the scene after the rig explosion and, during the initial days of the spill, was BP's public face for its response to the disaster.
Suttles had bad news: the ROVs had discovered a leak at the end of the riser, where it had ripped off the bottom of the rig.
Soon after sharing news of the leak, BP provided the Coast Guard with an estimate of how many barrels of oil per day were flowing out of the well, according to Landry. "They estimated that it was a thousand," she said.
Landry was uncertain exactly who at BP provided the number to the Coast Guard, but said she believed it had come from Suttles. "It would have been Doug Suttles," she told HuffPost. "Somebody was giving Doug numbers."
Doug Suttles, who retired from BP earlier this year, did not respond to several messages left at his home in Texas.
At an afternoon press conference on Saturday, April 24, Landry announced BP's 1,000 barrel per day estimate to the public. In the eyes of the media, the number represented the first official estimate of the size of the leak and was largely repeated without skepticism.
The next day, at a press conference at the Coast Guard's spill response headquarters in Robert, La., Landry, Suttles and other officials and company representatives fielded questions on the spill. One reporter, Glynn Boyd, with ABC 26 News in New Orleans, asked Landry to quantify the size of the spill as she understood it. "Valdez -- we all remember that," Boyd said. "If you don't cap this thing, what are we talking about here?"
Landry was quick to assure him that the spill would not be a repeat of the Valdez disaster.
"Let's differentiate between the 1,000-barrels-per-day and what the well, if it were completely open, would be releasing," Landry said. "That's the serious incident. That's the really serious spill response that would be necessary."
(Joel Achenbach, a reporter for the Washington Post, would note Landry's misplaced optimism about the spill at this early press conference in his April 2011 book "A Hole at the Bottom of the Sea," where this quote first appeared.)
Doug Suttles then stepped to the podium. He explained to Boyd that the flow from the well was far less than it had been while the rig was still floating and engulfed by flames. "The rate we're seeing today is considerably lower, considerably lower than what was occurring when you saw the rig on fire," Suttles said. "So as a sense of reference, this is many, many, many times smaller than that."
Suttles then confidently noted that BP had been able to determine that restrictions within the well, the blowout preventer and the riser -- which had bent during the collapse of the rig -- were holding back virtually all of the potential flow from the underlying reservoir.
"There are many, many restrictions in this flow as it's coming out, and that's why the rate is much lower than it was before," Suttles said. "This is a long way away from something more significant."
Reporters largely took the 1,000-barrel-per-day estimate -- and Landry's and Suttles' assurances that the spill was not poised to become a major catastrophe -- at face value.
A former senior Obama administration official, who was closely involved in the federal response to the spill, said in an interview that Landry had erred by publicizing BP's initial estimate without first subjecting it to scientific scrutiny.
"These early assessments were simply accepted by Mary," said the official, who requested anonymity because of the administration's ongoing involvement in criminal and civil litigation related to the spill. "We had to own the 1,000 barrel number because we had already gone public with it."
Landry forcefully defended her handling of the early estimates. “You go with the information you have at the time,” she said.
On the front lines of the spill response, the 1,000-barrel estimate aroused almost immediate suspicion in some quarters. Cleanup ships and skimmers were rapidly converging on the well site, and airplanes and satellites were tracking the appearance of oil on the sea. According to one early satellite analysis, slick and sheen from the spill already covered more than 800 square miles of ocean as early as Sunday, April 25.
Among the most vocal doubters was Charlie Henry, a marine scientist with the National Atmospheric and Oceanic Administration. Henry was the Coast Guard's chief scientific adviser for oil spill response for the Gulf of Mexico region. But despite his lead scientific role, Henry had not approved the initial 1,000-barrel estimate.
In an interview, Henry said that observers flying over the spill were reporting back ever-growing amounts of oil on the sea surface, suggesting that the 1,000-barrel figure was far too low. "The feedback that I was getting from the field was that there was a lot of oil," he said.
"These numbers," he recalled thinking at the time, "just weren't working out."
Without consulting with BP or the Coast Guard, Henry sent field data on the spill to a NOAA colleague in Seattle, who hastily produced a rough estimate that the flow rate from the well had to be at least 5,000 barrels per day.
With those numbers in hand, Henry made a forceful presentation to Landry, urging her to revise the Coast Guard’s flow rate estimate upwards to at least 5,000 barrels per day. Landry, in turn, said that she brought the new NOAA calculations to Doug Suttles.
Suttles then initiated what was apparently BP's second internal attempt to measure the size of the leak.
"Doug went to work with his person in Houston," Landry said.
Soon, armed with fresh figures from BP's headquarters in Houston, Suttles pushed back against the new, higher NOAA estimate. In a room at the spill response command post in Robert, La., he made a presentation, using figures and diagrams on an easel, arguing that a better estimate of the flow from the well would be 2,500 barrels per day.
BP's only marginally higher second estimate appeared to be based on an analysis of pressures within the underlying reservoir, and the condition of equipment on the seafloor, including the drill pipe, the riser and the blowout preventer, or BOP, Landry said.
"They were doing the diameter of the pipe, and they were doing the casing thing, and they were doing an estimate of what they thought had happened with the parts of the BOP that had closed," she said. "They were estimating a certain amount about what they thought was working in the BOP."
Despite the presentation by Suttles, Landry called a press conference late in the evening on April 28, and announced that the official estimate for the leak was now 5,000 barrels per day.
Suttles initially refused to embrace the new figure, maintaining in several interviews the following day that the best estimate remained “between 1,000 and 5,000 barrels per day.”
The revised estimate caused a sensation in the media, sparking a flurry of reports that the size of the spill had grown five-fold overnight. The new figure also triggered an enhanced response by the Obama administration, which declared the leak a “Spill of National Significance,” an official designation that allowed responders to mobilize resources from anywhere in the country.
Whether the new estimate, and the national spill declaration, would meaningfully change the tenor of the response remains a topic of controversy. But at the very least, the declaration would result in the appointment of Admiral Thad Allen, the Coast Guard commandant, to the position of "National Incident Commander," to replace Landry as the chief federal officer in charge of the spill response.
The presidential commission investigating the oil spill would also conclude that the higher flow rate estimate heightened the urgency surrounding the battle against the spill and may have accelerated the deployment of resources such as boom and skimmers to the Gulf Coast.
Eventually, BP would cast aside its previous objections and embrace the 5,000-barrel-per-day estimate. And for nearly month, even as the scale of the spill response grew virtually exponentially, company officials would repeatedly declare to the public and the government that this figure was the company’s best estimate of the leak rate.
But it would not take long for the new 5,000-barrel estimate to itself come under withering criticism from a number of outside experts. One of the first objections to gain traction in the press came from John Amos, a former oil industry consultant and president of SkyTruth, an non-profit group that tracks environmental problems using satellite imagery.
Amos, along with Ian MacDonald, an oceanographer with Florida State University, analyzed a series of NASA images of the spill, and used a calculation of the spill’s thickness provided by BP itself to produce a far higher estimate for the spill rate, of roughly 20,000 barrels per day. That estimate was published on the SkyTruth blog on April 28, the very day the Coast Guard revised the spill estimate upward -- to 5,000 barrels per day. It would take several days before these dissenting figures appeared in the mainstream media.
In an interview, Amos said that he found it "extremely hard to believe" that BP lacked the technical know-how and basic geology and engineering knowledge to calculate a reasonably accurate well-flow number.
"I've worked with tech people at BP and they're some of the sharpest people I've ever been around," he said. “Any reservoir engineer worth their salt would have known that the potential flow rate from a blowout would have been much higher.”
In early May, another outside scientist would again use information provided by BP to challenge the flow estimates. Under pressure from Congress and the media, the company released a brief video clip revealing a roiling cloud of dark oil billowing from the broken riser.
The quality of the clip was poor and it was just 30 seconds long. But it contained sufficient visual data to allow Steven T. Wereley, a professor of mechanical engineering at Purdue University, to produce an independent flow rate estimate using a 25-year-old geophysical technique known as particle image velocimetry.
By tracking the movement of pixels in the video image, Wereley was able to determine the velocity of oil and gas as it exited the broken pipe. That figure, when combined with a measurement of the volume of the pipe, produced a staggeringly higher estimate for flow rate than the one BP was disseminating.
Wereley’s figures were broadcast by National Public Radio, which had commissioned him to perform the analysis, on the morning of May 14. He estimated that the main leak at the end of the riser was releasing between 56,000 and 80,000 barrels of fluid per day. Wereley noted that the fluid emanating from the well was not all oil -- at one point in the video, it appears to be largely composed of lighter-colored gas.
Yet even after taking the presence of large amounts of gas into account, the video indicated a far, far larger spill than had previously been recognized, Wereley said.
The following week, the professor would appear before Markey's House Subcommittee on Energy and the Environment. "I don't see any possibility, any scenario under which their number is accurate," Wereley testified.
BP executives again pushed back hard. In an afternoon interview with MSNBC’s Andrea Mitchell on May 14, BP's chief executive, Bob Dudley, dismissed Wereley’s figures as “a little bit of exaggeration, a little bit of scaremongering.”
The far higher estimates “don't match the many, many experts and scientists that are involved in this,” Dudley said. “Five thousand barrels a day, while inexact, is the best estimate of the industry experts,” he concluded.
Dudley’s claim that “many, many experts and scientists” from BP and the federal government had been hard at work in a collaborative effort to calculate the flow rate of the well was deeply misleading, however.
To the contrary, at the time that Wereley’s calculations appeared, BP had provided the Coast Guard virtually no documentation of the company's attempts to measure the flow rate. “They didn’t produce a written independent calculation to me until mid-May,” Landry said.
That written estimate would rely on surface observations of the oil slick, despite public warnings by prominent oil spill experts that this method was ill-suited to measure the flow of a deep-sea discharge. BP again concluded that its best estimate for the flow rate was approximately 5,000 barrels per day.
And the day after Dudley declared that “many, many experts and scientists” were working to determine the flow rate, a BP spokesman told The New York Times that the company had abandoned any further efforts to measure the flow of oil on the seafloor.
“We’re not going to take any extra efforts now to calculate flow there at this point," Tom Mueller, a BP spokesman, told the Times on May 15. "It’s not relevant to the response effort, and it might even detract from the response effort.”
Doubts about BP's math were already well-formed among some senior government officials, according to a Department of Energy official involved in the federal government's effort to measure the flow rate.
On May 20, the Coast Guard announced the formation of the Flow Rate Technical Group, a government-led panel of scientists tasked with assessing the actual flow rate using a variety of scientific techniques. Wereley was among a group of physicists and top-flight engineers who used particle image analysis to gauge the leak volume.
In an interview, the Department of Energy official said that federal scientists had begun doing preliminary calculations on the flow rate in early May, roughly two weeks before the announcement of the technical group.
“It’s fair to say that we felt the number was higher than 5,000 before we started,” said the official, who requested anonymity because of his office’s likely involvement in criminal or civil litigation related to the spill.
Just days after the formation of the federal flow rate panel, BP began its most ambitious attempt to stop the undersea leak. BP dubbed the operation “top kill” and it involved the pumping of tens of thousands of barrels of heavy fluid, called "drilling mud," into the well through the blowout preventer.
After several days of pumping drilling mud it became clear that the effort was failing. BP then attempted a “junk shot,” pumping golf balls and other debris into the blowout preventer in order to bolster the flow of mud against the outpouring of oil and gas from the well.
The junk shot also failed, and on May 29 the effort to kill the well from above was abandoned. As before, vast clouds of oil again billowed out of BP’s well into the gulf.
According to Landry, who took part in discussions on the top kill approach, BP’s calculations for the operation were based on the assumption that the best estimate for the flow rate from the well was just 5,000 barrels per day.
"Top kill, if you look at the design of how much mud they were putting down -- it was based on an estimate of 5,000 barrels,” she said.
If BP had suggested at that point that the well was flowing at a considerably higher rate, she would have immediately presented those figures to the public, Landry recalled.
“If they did, I would have said, 'What is it? And let's go out and tell the whole world,'" she said.
An oil industry consultant who was directly involved in the effort to plug the well at BP’s U.S. headquarters in Houston told The Huffington Post that, contrary to BP's representations to the Coast Guard, BP and third party engineers in Houston had data in early May indicating that the well flow rate was “much higher” than 5,000 barrels per day.
“Our calculations suggested to us that it was much higher than the number that was being talked about,” said the consultant, who requested anonymity because of his proximity to pending litigation over the disaster.
The top kill and junk shot had a “very, very low likelihood of working based on the volumes we were seeing from the well,” he added.
An internal BP document, which Rep. Edward J. Markey provided to the House Energy and Environment subcommittee in late May as part of a congressional investigation into the company’s effort to measure the size of the leak, also indicates that higher flow rates were examined by BP.
"Expected range of possible flow rates is 5,000 to 40,000 BOPD," or barrels per day, the undated document states.
By late May, BP had officially handed responsibility for estimating the flow rate to the technical group, and thereafter deferred to the federal government on flow rate matters. The federal process was not without hiccups, however, and the new flow group's initial estimates would have to be revised upwards more than once.
When a pressure gauge was installed directly on the containment cap that ultimately sealed the well, the readings allowed the government to confidently announce its best estimate for the flow: between 53,000 and 62,000 barrels per day since the beginning of the spill, with a margin of error of plus or minus 10 percent.
LITIGATING THE SPILL
On June 1, 2010, more than five weeks into the disaster, Attorney General Eric Holder traveled to the Gulf of Mexico to survey to inspect the damage and make an unexpected announcement: the Justice Department, he said in a New Orleans press conference, was beginning a criminal investigation into the sinking of the Deepwater Horizon and the oil spill.
"If we find evidence of illegal behavior, we will be extremely forceful in our response," Holder warned. "We will be meticulous. We will be comprehensive. We will be aggressive."
Soon, a team of federal prosecutors moved into offices in the Texaco building, across the street from the federal courthouse in New Orleans. They were going to be there for the long haul -- 15 months and counting.
The litigation surrounding the sinking of the Deepwater Horizon and the oil spill is already shaping up as one of the most sprawling and complex legal matters in U.S. history, experts said.
"The effort to find a comparable is an exercise in futility," said David Uhlmann, a former senior prosecutor for the Justice Department's environmental crimes division and a law professor at the University of Michigan. "It will be the biggest criminal case that will ever be brought."
As the leaseholder and majority owner of the Macondo well, BP holds sole civil liability for the impacts of the oil spill. But all of the other companies involved in drilling the well, including Halliburton and Transocean, which owned and operated the doomed rig, could ultimately be charged with criminal wrongdoing.
In a federal regulatory filing in July, Halliburton noted that the Department of Justice's criminal and civil investigation into the explosion of the rig and the oil spill was ongoing, and now included a federal grand jury seated in Louisiana.
"As of July 21, 2011, the DOJ has not commenced any civil or criminal proceedings against us," the filing states.
A Halliburton spokeswoman said the company had no further comment on the criminal investigation other than what was contained in the filings.
Transocean similarly noted in a filing with financial regulators in April 2011 that the explosion and sinking of the Deepwater Horizon rig was under criminal and civil investigation by the Justice Department and said that it "cannot predict the ultimate outcome of the investigations" or "to what extent, if any, we could be subject to fines, sanctions or other penalties."
A spokesman for Transocean did not respond to a request for comment by time of publication.
Attorneys defending rig workers involved in the disaster said they don't know what kind of case prosecutors are building.
The length of time prosecutors have waited to bring charges should not be seen as a signal that the government is struggling to build a case, said Dick DeGuerin, a Houston defense attorney who specializes in complex white-collar criminal cases and has defended large energy corporations in similar situations.
"The criminal case is coming," DeGuerin said. "They're taking their time."
Whether the indictments include charges related to BP's faulty flow rate estimates is another matter, however. Prosecutors need compelling evidence that company officials or personnel deliberately withheld material information about the size of the leak or provided estimates they knew were unreliable.
"It's not enough to show that BP was wrong about how much oil was flowing from the well," said Uhlmann.
Details of the investigation are tightly held, but senior officials at the Justice Department did confirm a change in leadership over the probe earlier this year. When first formed, the inquiry was under the control of the Department of Justice’s environmental crimes unit, and led by Howard Stewart, a seasoned environmental prosecutor.
This March, however, the DOJ said that it had replaced Stewart with John Buretta, a Brooklyn prosecutor known for his tenacious prosecution of organized crime figures and his handling of complex white-collar fraud cases.
A spokeswoman for the department said in a statement that the change was designed to “avoid duplication of effort.”
Federal prosecutors have enlisted at least one flow rate expert to assist in their investigation: Steven Wereley, the Purdue University scientist whose flow rate analysis undermined BP's claim that it was impossible to estimate the size of the spill from observations of what was occurring on the seafloor.
"The only thing I can tell you about the Department of Justice case is that I'm involved," Wereley said. "I'm one of the experts."
Even if federal prosecutors ultimately choose not to indict individuals for false statements or fraud, any evidence that emerges during a criminal or civil trial indicating that BP was less than fully forthcoming to the government about what it knew about the size of the leak could still prove costly to the company.
A report by the staff of the presidential oil spill commission last December concluded that the low early estimates may have led to a sense of complacency by the Coast Guard and other federal agencies.
"The mobilization of resources to combat the spill lagged," the commission concluded. "For the first ten days of the spill, it appears that a sense of over-optimism affected responders."
For Rep. Ed Markey, the criminal and civil cases against BP are of crucial importance in part because Congress has so far failed to address the regulatory shortfalls that contributed to the disaster.
"It’s important that there be accountability. That’s the only way there will be a sufficient deterrent to this ever happening again," Markey said.
"This is a historic battle," he added. "This is the kind of a case where the government can't be wrong."
Admiral Mary Landry, who as the initial federal on-scene coordinator transmitted BP’s inaccurate first leak estimate to the public, said that it's up to the DOJ to determine whether BP deliberately provided the government with unreliable information. "I am confident that justice will be served," she said.
But she said that as the lead federal responder on previous, far smaller spills, she had seen companies mislead the government about the scale of an oil or chemical release and pay the price in criminal court.
"Companies know that what has historically been a problem is if you lie to the federal government," Landry said. "You mess with us at your peril."