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Monday - evening drive time
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Gulf spill fund adviser being paid with BP cash but is his real job less advice on general administration and more with doing an end-around for BP to limit their liability and shortchange the victims who need a part of the BP funds most?

NEW ORLEANS -- A law professor being paid $950 an hour with BP's money has declared that the czar of the $20 billion claims fund for Gulf oil spill victims is independent of the oil giant.

Fund administrator Ken Feinberg said Thursday he has agreed to pay New York University professor Stephen Gillers for his advice. Since being hired, Gillers has written a letter stating that Feinberg is neutral and not subject to BP's direction or control.

Feinberg said the Gulf Coast Claims Facility, created to administer payments from the fund to people and businesses, is billing BP for Gillers' services.

But that is only the proverbial tip of the iceberg. Questions continue to come up as to whether Feinberg may be far too snug with BP. Some victims of the aftermath of the BP spill - plus their lawyers and some state officials - have suggested that Feinberg's ability to fairly administer the funds is questionable, and he is being used by BP to limit their liability. A statement Thursday from the Gulf Coast Claims Facility said Feinberg asked Gillers for advice about a Nov. 24 letter from Louisiana Attorney General James "Buddy" Caldwell questioning the independence of the fund and Feinberg's role as the independent administrator.

In a letter to Feinberg, Gillers wrote: "You are not in an attorney-client relationship with BP. You are an independent administrator and owe none of the attributes of the attorney-client relationship (e.g., loyalty, confidentiality) to BP. By 'independent' I mean (and I think the context is clear) that you are independent of BP. You are not subject to its direction or control."

The total amount Gillers will be paid is unclear. He told The Associated Press he is billing $950 an hour for his services and an assistant is billing $475 an hour. Gillers said he and the assistant have not calculated exactly how many hours they spent on the work, which Gillers said is now finished.

Both Gillers and Feinberg said they don't believe there is anything wrong with using BP money to pay for the advice.

"Is he being paid by BP money? Yes," Feinberg said. "Who else is going to pay for the entire cost of this program? You can't ask claimants to pay, you can't ask states and federal governments to pay. The buck stops with BP and BP has agreed to pay the entire cost of the infrastructure of this program."

But the mayor of Orange Beach, Alabama, Anthony Kennon, still has questions about how closely Feinberg and BP may be linked.

"He can proclaim independence as much as he wants," said Kennon, whose community was hard hit by the oil spill. "The only thing that will show true independence is if he makes those people whole who were harmed by the oil spill. We have not been made whole by a long shot."

Accepting a final payment from the BP fund through Feinberg's administration currently requires claimants to agree not to sue BP or any other responsible party, including Transocean, Halliburton and other service companies working on the rig.

The lawyers for the plaintiffs in the more than 300 lawsuits filed so far say people should only have to give up the right to sue BP for compensatory damages, but they should still be allowed to go after BP in court for punitive damages, and accepting final payments from the fund should not restrict any future claims to other connected entities for both compensatory and punitive damages.

So far, the fund has paid out roughly $2.6 billion, and money left over in the fund is expected to be returned to BP.


Transocean refuses to honor oil spill subpoenas, challenging the company's involvement in monitoring the testing of a key piece of equipment that failed to stop the disaster.

Transocean said the U.S. Chemical Safety Board does not have jurisdiction in the probe, so it doesn't have a right to the documents and other items it seeks. The board told The Associated Press late Wednesday that it does have jurisdiction and it has asked the Justice Department to intervene to enforce the subpoenas.

Last week, the board demanded that the testing of the failed blowout preventer stop until Transocean and Cameron International are removed from any hands-on role in the examination. It said it's a conflict of interest. The request is pending.

Testing at the Michoud facility in New Orleans is expected to resume Jan. 10, according to officials monitoring the tests.

Besides documents, the board said Transocean has also denied it access to witnesses - specifically a half-dozen of the rig company's employees the board wants to question.

The jurisdiction dispute surrounds whether the Deepwater Horizon rig was a stationary unit or a mobile vessel.

The board's primary jurisdiction to investigate serious chemical accidents and make recommendations involves hazardous releases to the air by fixed industrial facilities. The board's managing director, Daniel Horowitz, asserted in an interview that the rig was tethered and not functioning as a moving vessel at the time of the accident, making it a stationary site.

Transocean argued in a Dec. 2 letter to the Chemical Safety Board that because its rig was a mobile offshore drilling unit, it was a vessel, and not fixed.

Horowitz said the Interior Department indicated months ago that it thought the board had jurisdiction, and he noted that the well that blew out was a fixed unit and that his agency has been allowed to monitor the blowout preventer testing. But he also acknowledged that more recently the board has heard contradictory statements about its jurisdiction from aides to the director of the Bureau of Ocean Energy Management, Regulation and Enforcement.

BOEMRE declined to comment. The Interior Department did not immediately respond to requests for comment.

The BOP was removed from the wellhead and raised on Sept. 4, transportd to the Michoud facility, and forensic testing began Nov. 16.

The safety board complained in a letter to the BOEMRE last week that having Transocean, which maintained the blowout preventer, and Cameron, which made it, involved hands-on in the forensic analysis undermines the investigation's credibility.

An employee of Transocean has been removed as a consultant for the Norwegian firm conducting the testing, but the ocean energy bureau has said that otherwise the companies have provided their expertise appropriately. The safety board claims conflicts still exist. Transocean has said the accusations are "totally unfounded."

A Joint Investigation Team that includes BOEMRE personnel is leading the blowout preventer probe along with the U.S. Coast Guard.


And yes, it's still out there, and it's still coming ashore... and continues to foul miles of Louisiana coastline.

Louisiana's coastline continues to be smeared with significant amounts of oil and oiled material from the BP Deepwater Horizon disaster, with cleanup teams struggling to remove as much as possible of the toxic material by the time migratory birds arrive at the end of February, said the program manager of the Shoreline Cleanup and Assessment Teams, which are working for BP and the federal government. There are 113 miles of Louisiana coastline under active cleanup, with another 55 miles awaiting approval to start the cleanup process, according to SCAT statistics. Teams have finished cleaning almost 72 miles to levels where oil is no longer observable or where no further treatment is necessary.

But that's not the whole story for the state's coastline. According to SCAT statistics, there's another 2,846 miles of beach and wetland areas where oil was once found but is no longer observable or is not treatable. Gary Hayward, the Newfields Environmental Planning and Compliance contractor who oversees the SCAT program, said that large area will be placed into a new "monitor and maintenance" category, once Louisiana state and local officials agree to the procedures to be used for that category.

"With rare exceptions, most of the marshes still have a bathtub ring that we have all collectively decided we aren't going to clean any more than we already have because we'd be doing more harm to the marshes than the oil is going to be doing to them," Hayward said.

"The reality is we still have hundreds of miles of oiled shoreline today," said Garret Graves, chairman of the Coastal Protection and Restoration Authority. "We still have oilings on a regular basis in areas of Jefferson and Plaquemines Parish, and there's still a lot of oil buried back in the marshes where it was carried during high water events.

"The threat is absolutely still there and the oil is absolutely still there," he said.

Graves says he knows that his work is not finished, and Hayward does not disagree.

"We know we're not done. We're still working," he said. "We have some challenges ahead of us, including winter weather that will slow us down a bit. But we've made a lot of progress." Hayward said that the aim is for the cleanup to evolve into a long-term monitoring program for both beaches and marshes by the end of April all along the coast, but that could depend on shoreline re-evaluations scheduled for April and May.

"We'll be assisted by very low tides in April and May, where we can really see how things have worked out in the winter," he said.

Hayward says the biggest problem remains in many bays and inlets where, in late June, oil was pushed in by the storm surge from Hurricane Alex.

"There was enough high water in the tide surge and enough oil on top of the water that it came down on the marsh surface and flattened the grass along a 40- or 50-foot swath along the marsh front," he said. "And when it did that, it pushed the grass over and left an oily mat on the surface. That has since dried and has become a very crusty surface, underneath which there is still gooey oil."

Cleanup contractors have found removing the sludge - without damaging the marshes even more - to be very difficult.

"We tried burning and that didn't work," Hayward said. "We tried various methods of cutting the marsh and raking the black tarry mat up, and met with some success. We've tried four different ways to cut the marsh and let the young sprouts come through.

"But oddly, what we saw was that even though that marsh was quite heavily impacted, before the growing season stopped, the marsh sprouts were coming up through that stuff," he said. "So we feel pretty confident that even though it looks like hell, that area will recover in the spring when things start to green up again."

Cleanup completion is targeted for February, when migratory birds begin to arrive from Central and South American wintering grounds, but there is also a push to have clean beaches along the Mississippi and Alabama coasts, and the panhandle of Florida before the beginning of the tourist season.

"There's a lot of pressure to get it done because of the loss of the last tourist season, and they want to get open for the winter months and they want to get open for spring breakers," he said.

Spring breakers. Oh, joy...

Hayward also says the contamination is tougher to remove from the finer-grained sand on Alabama and Florida beaches, and the cleanup plan is still struggling with tar balls and other material washing ashore from mats of weathered oil that are located in the surf zone just off several key beach areas, including Pensacola, Fla.; Bon Secour National Wildlife Refuge at Gulf Shores, Ala.; and the barrier islands off Mississippi's coast. Officials are concerned submerged tar mats may also be the source of tar balls that continue to be spotted along Grand Isle, Elmer's Island and Fourchon Beach.

"These tar mats can be three or four or five yards wide and a couple hundred meters long, and they're discontinuous," he said. "They're being found in 2 or 3 feet of water, just below the low-tide line."

"These are areas where tar balls keep washing ashore," Hayward said. "The shallow water (where the tar mats are believed to be located) precludes a lot of vessel activity. It's a very turbulent area."


Don't forget the New Year's Eve Block Party... is someone doing a Block Party tonight? Anyone? Bueller? Well, we can wait and be surprised. I'm not going out on New Year's Eve - too many amateur drinkers...

PLEASE visit Pam LaPier's diary to find out how you can help the Gulf now and in the future. We don't have to be idle! And thanks to Crashing Vor and Pam LaPier for working on this!

Previous Gulf Watcher diaries:

12-29-10 06:01:43Gulf Watchers Wednesday - Imperiled Bluefin Tuna Threatened by BP Spill - BP Catastrophe AUV #447peraspera
12-26-10 13:57:31Gulf Watchers Sunday - New Evidence BP Aided Release of Lockerbie Bomber - BP Catastrophe AUV #446Yasuragi
12-23-10 18:31:03GW Special Christmas Block Party -- FaLaLa, La, La, LaPhil S 33
12-22-10 06:00:36Gulf Watchers Wed. - Commission Slams Jindall's $360 Million Boondoggle - BP Catastrophe AUV #445peraspera
12-19-10 08:05:22Gulf Watchers Sunday - Near-Identical Accident by BP in Azerbaijan, 2008 - BP Catastrophe AUV #444Yasuragi

The last Mothership has links to reference material.

Previous motherships and ROV's from this extensive live blog effort may be found here.

Again, to keep bandwidth down, please do not post images or videos.

Originally posted to Lorinda Pike on Fri Dec 31, 2010 at 05:25 AM PST.

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