Now that the testimony of Phase Two of the Deepwater Horizon trial is done, it is possible to cull the transcripts and depositions for the truth. Having already settled with the majority of the private plaintiffs and with BP, Transocean and Halliburton all having entered into criminal plea agreements with the Department of Justice, the remaining issues to be decided in Phase Three will be which parties pay how much, for what share, of the fines for the environmental damage.

Phase Two focused on the size of the spill and the issue of ordinary versus gross negligence. The government's consistent claim has been that 4.9 million barrels of oil leaked out of the formation of which about 0.8 million barrels was collected, leaving a net amount of 4.1 million barrels spilled. The maximum fines are $1,100 per barrel for ordinary negligence or $4,300 per barrel for gross negligence. The government made its case for the maximum of nearly $18 billion but the facts only support 2.1 million barrels at $1,100, or $2.31 billion. How does one arrive at that conclusion? Let us accept arguendo the testimony of the FEDERAL EMPLOYEE OF THE YEAR, Paul Hseih.

On page 1538 of the trial transcript (pg. 32 of the pdf) he testified as follows:

Q. And what was the total cumulative flow that you came up withwhen you used 6 microsips?

A. The total cumulative flow reported on July 30th in that meetingwas 2.9 million barrels with a starting flow rate at 3.8 or38,000 barrels per day dropping down to 32,000 barrels per day.

Q. So the effect of going from 12 microsips, which you used, down to 6 microsips is almost 2 million barrels of estimated cumulative flow?

A. That's correct. If 6 microsips were used -- I did use 6 microsips as a bounding calculation, and using 6 microsips I would get 2.9 million stock-tank barrel.

So there we have it, 2.9 million barrels that leaked out less 800,000 barrels collected equals 2.1 million barrels spilled into the environment. Now the question is how did Dr. Hseih come up with his prior estimate of 4.9 million barrels? The short answer is he used a rock compressibility of 12 microsips. The same scientist, using his same computer model but with a different input value for compressibility, overestimated the size of the total leak by 69%. To be fair, he made this projection before the inspection of the blowout preventer was done. But his model assumed the flow rate was basically free and unobstructed with a constant initial rate starting high and then dropping as the oil reservoir depleted. BP introduced evidence taken from a rock core retrieved from the well before the blowout showing a rock compressibility of 5.61 microsips (page 1540:5 of the transcript). So what we have is BP's "rock solid" physical evidence versus a government assumption. Score one in BP's favor.

The issue of ordinary versus gross negligence revolves around what would a 'reasonable man' think about the conditions down hole when the crew was making their decisions. If the equal justice under the law principle applies, the government's cluelessness in understanding what was going on down hole militates for ordinary negligence. If the wise and all-knowing government scientists, including the FEDERAL EMPLOYEE OF THE YEAR can't figure it out, how could a mere mortal be expected to do so? Which brings us to the curious question, "Where was the missing 3,000 feet of drill pipe"?

All those government rhetoricians, whether scientist or lawyer, have missed an important factual detail. Before the blowout, there was 3,300 feet of drill pipe inside the well from the sea floor (the mud line) at 5,067 feet down to the tip of the "stinger" at the end of the drill pipe at 8,367 feet. Yet when they pulled off the blowout preventer to take it ashore it did not have a 3,300 foot tail hanging down. Buried in all the depositions we find that after the well had been killed with the static kill on August 3, 2010 and then cemented the next day, it was possible to remove the blowout preventer. So much for Admiral Thad Allen's refrain that the relief well was the "ultimate solution"! When they went down inside the well to remove the production casing hanger, they found only a 300 foot piece of pipe. With the benefit of hindsight that is unsurprising. We all saw that there were two pieces of pipe atop the blowout preventer because the drill pipe had been put under compression from above and buckled and broke. Similarly, as the well blew out, the viscous drag exerted a compressive force on the drill pipe which buckled and broke it from below. Left without support against the relentless force of gravity, the broken drill pipe segment would have fallen. Our old friend Kurt Mix suggested this scenario, which explains why the cowboy-booted thugs of the Obama Administration, such as Ken "Boot on the Throat of BP" Salazar, would be so intent on criminally prosecuting him.

Follow the money. $17.6 billion in fines or only $2.3 billion, which did the government want more? Truth or money, I report, you decide. With a bent 5.5" outside diameter drill pipe stuck in the crossover in the 9-7/8" by 7" production casing at 12, 487.64 feet, it would create a major flow restriction. That restriction would mean that the flow through the well was much less than the theoretical maximum unrestricted flow. It explains why the total flow was only 2.9 million barrels. It helps explain why the top kill failed. But we also know now that the top kill could have succeeded, if Steven Chu had not chickened out. The government admits the well had mechanical integrity throughout, even to the point that Tom Hunter wrote that after the static kill they conducted a successful positive pressure test to 10,000 psi. A Transocean employee admits that they could have pumped the 109 barrels per minute of 16.4 pounds per gallon mud that the government's experts said would have succeeded in the Tyagi Report.

It is very likely that if the top kill had been designed to deliver more than 109 bpm of 16.4 ppg drilling fluid below the BOP stack for a sustained period, the Macondo blowout could have been stopped between May 26-28, 2010. Given that the well was successfully shut-in with the capping stack in July, and that the subsequent bullhead (static) kill was successful, certainly a higher rate top kill would have been successful at that time.

If the government is so smart, why didn't they kill the well in May, rather than August??

Bruce Thompson publicly offered a call to proceed with the real "ultimate solution," the static kill, on July 20, 2010.