Environmental Crimes—BP

BP has received a subpoena from a federal grand jury asking for a “variety of documents from BP Alaska concerning the transit line [near Prudhoe Bay, Alaska] and certain other operational limits.”^[1] The Financial Times reports that, according to a confidential email distributed to employees at BP Alaska, the President of that division, Steve Marshall, is committed to “co-operating and told staff they may be contacted to assist in helping the company answer the subpoena.”^[2] A spokesman for the company confirmed the existence of the email, and told the FT that “the information we provide will show that the actions of BP Alaska were, at all times, proper.”^[3]

There are few federal environmental criminal investigations into pipeline leaks, and BP has “denied claims that it failed to maintain the transit line, saying it had ‘manageable corrosion rates’ in the pipeline.”^[4]

At issue is an oil spill that occurred in the transit line near Prudhoe Bay, which leaked up to 270,000 gallons of crude into the bay.^[5] It occurred in March, in a 34-inch diameter pipeline “in the tundra about 250 miles above the Arctic Circle.”^[6] BP and Alaska investigators “found that a pipeline leak-detection system sounded warnings on four straight days in the week leading up to the spill, but field workers interpreted the signals as false alarms.”^[7] The leak, which was located and plugged on March 2, went “undetected for at least five days ‘and probably much longer.’”^[8] According to separate BP spokesman, it is “clear that a criminal investigation has been under way for some time.”^[9]

If BP is ultimately indicted, it will likely be done under the Clean Water Act^[10] Under the CWA, it is the “policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States.”^[11] “Discharge” is defined by a non-exclusive list of acts, including spilling, leaking, pumping, pouring, emitting, emptying and dumping.^[12] There are certain exceptions for those who have obtained a special permit.^[13] Thus, the discharge of oil or hazardous substances into the navigable waters of the United States is prohibited under the Clean Water Act.^[14] The person in charge of an onshore facility is under a duty to notify the federal government immediately upon having knowledge of an oil discharge; failing to do so can result in a fine, imprisonment for up to five years, or both.^[15] The penalty for the actual discharge is civil in nature.^[16]

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[1] Sheila McNulty, BP Facing Criminal Probe into Oil Spill, Fin. Times, Jun. 8, 2006, at 1 (subscription only).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] BP Confirms Receiving Subpoena in Alaska, AP (via Houston Chronicle), Jun. 8, 2006.
[7] Id.
[8] Id.
[9] Mark Tran, BP Under Criminal Investigation for Alaska Spill, Guardian (UK), Jun. 8, 2006.
[10] 33 U.S.C. § 1251 et seq.
[11] Id. § 1321(b)(1).
[12] Id. § 1321(a)(2).
[13] Id. § 1321(a)(2)(A).
[14] Id. § 1321(b)(4).
[15] Id. § 1321(b)(5).
[16] See id. § 1321(b)(6) & (7).