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United States v. Kaluza

United States District Court, E.D. Louisiana

September 26, 2013

UNITED STATES OF AMERICA
v.
ROBERT KALUZA and DONALD VIDRINE CRIMINAL

         SECTION K

          David Gerger, Shaun Clarke, T.A. (La. Bar. No. 24054) Dane Ball, David Isaak, GERGER & CLARKE Attorneys for Defendant Robert Kaluza

          Robert N. Habans, Jr., T.A. (La. Bar No. 6395) Habans & Carriere and Jan K. Frankowski (La. Bar No. 23080) Barkley & Thompson, L.C. Attorneys for Defendant Donald Vidrine

          MEMORANDUM SUPPORTING MOTION TO DISMISS ALL COUNTS: THE UNDERLYING CRIMINAL STATUTES ARE UNCONSTITUTIONALLY VAGUE AS APPLIED

          STANWOOD R. DUVAL, JR. JUDGE

         Table of Contents Page No.

         1. INTRODUCTION .................................................................................................... 1

         2. THE STANDARD FOR NEGATIVE TESTS ON APRIL 20, 2010 ...................... 2

         A. The Success Criterion That Was Given for April 20, 2010 .......................... 2

         B. There Was No Contrary Regulation .............................................................. 4

         C. There Was No Contrary Industry or BP Procedure ....................................... 7

         D. The Government's Standard of Care Sources ............................................... 8

         1. 30 C.F.R. § 250.401 ........................................................................... 8

         2. BP Drilling and Well Operations Practice ......................................... 9

         3. BP's Well Control Response Guide ................................................. 10

         4-5. Sources cited in discovery ................................................................ 10

         3. THE STATUTES AND REGULATIONS AT ISSUE HERE ARE VAGUE AS APPLIED TO NEGATIVE TESTING AT THE RELEVANT TIME .................. 11

         A. Fair Warning ................................................................................................ 12

         B. Cabining Enforcement Discretion ............................................................... 19

         4. CONCLUSION ...................................................................................................... 23

         1.

         INTRODUCTION

         In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court explained the constitutional values reflected in the vagueness doctrine:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Id., 408 U.S. at 108-09. As set forth herein, the laws charged here are unconstitutionally vague as applied in this case.

         This Superseding Indictment alleges that Defendants Kaluza and Vidrine negligently and grossly negligently interpreted a “negative test” during temporary abandonment of the Macondo well on April 20, 2010. Superseding Indictment, Doc. 7, at 5-7. To act negligently, a defendant must breach an established standard of care. On April 20, 2010, the defendants had only one established standard governing the negative test on the Deepwater Horizon: no flow for “thirty minutes” on the “kill line.” Messrs. Kaluza and Vidrine did not establish this standard. It was written by BP shore-based engineers and approved by the U.S. Department of Interior Minerals Management Service (“MMS”) for this test. The April 20 negative test indisputably satisfied that success criterion: the rig crew monitored the kill line for thirty minutes and observed no flow. There was no contrary statutory, regulatory, or other standard of care for the Deepwater Horizon to follow on April 20, 2010.

         This case involves a highly technical field, in which courts should be particularly suspicious of second-guessing under “standards” that have been developed after the fact. Defendants complied with the only success criterion that the MMS approved and that they were given for the negative test. To the extent the government now contends that the statutes and regulation required more, those laws lacked an “ascertainable standard of guilt” and thus are void for vagueness as applied to this case. United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921); State v. Dousay, 378 So.2d 414, 417-18 (La. 1979).

         2.

         THE STANDARD FOR THE APRIL 20, 2010 NEGATIVE TEST

         On April 20, 2010, Messrs. Kaluza and Vidrine interpreted a negative test according to the criterion given by shore and approved by MMS: 30 minutes of no flow on the kill line. No regulation or industry or company policy provided any contrary standard.

         A. The Success Criterion That Was Given for April 20, 2010

         BP obtained an initial MMS permit to drill the Macondo well on May 26, 2009, based on a drilling plan submitted to the agency. The initial permitted plan contained no negative test, and MMS regulations did not require one. See Ex. 1 (initial “Application for Permit to Drill”).

         On April 16, 2010, four days before the explosion, BP sent the MMS a modification to the plan that, for the first time, mentioned a negative test. The revised plan provided: “Negative test casing to seawater gradient equivalent for 30 min. with kill line.” Ex. 2 at BP-HZN-OSC00001438 (application for permit to modify) (emphasis added). Less than 30 minutes after receiving the modification request, the MMS approved it. Ex. 3 & Ex. 4 (April 16, 2010 emails between BP contractor Heather Powell and MMS official Frank Patton). On April 20, a BP engineer in Houston emailed instructions to the Well Site Leaders. Ex. 5, April 20, 2010 email from BP engineer Brian Morel to Vidrine, Kaluza and others (“With seawater in the kill close annular and do a negative test”).[1]

         In plain English, the procedure called for the rig workers to displace about 3, 000 feet of heavy drilling mud in the casing below the wellhead with lighter seawater, open the kill line (which ran from the rig to the wellhead), and monitor for thirty minutes to see if any seawater flowed out of the kill line. If seawater flowed from the kill line, that could suggest that hydrocarbons were entering the casing from below and pushing the seawater out. On the other hand, if no seawater flowed from the kill line for thirty minutes, the negative test passed. In accordance with these procedures, the workers displaced the mud in the casing with seawater, opened the kill line, and observed no flow for thirty minutes. The test was thus deemed a success.

         The government maintains that, notwithstanding compliance with the specified success criterion, the well site leaders committed negligence-a breach of the standard of care so clear and so grave that they now face felony manslaughter charges. But as of April 20, 2010, no MMS regulations or any industry practice or BP internal procedure even suggested (much less established) the standard of care the government advances.

         B. There Was No Contrary Regulation

         The MMS regulations in effect on April 20, 2010 did not even mention-much less require-negative testing. A regulation titled “What are the requirements for pressure testing casing?” provided specifications for positive testing (where pressure is increased inside the casing from above to determine if the casing leaks). 30 C.F.R. §250.423 (2009); see id. § 250.425 (standards for positive testing liners). The defendants satisfied the “positive” test earlier on April 20. See Ex. 6, National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Chief Counsel's Report at 145 ...


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