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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA, ))
Petitioner, ))
v. ) Civil Action No.: 4:11-cv-3638 )
TRANSOCEAN DEEPWATER DRILLING, INC., ))
Respondent. )__________________________________________)
PETITION TO ENFORCE UNITED STATES CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD ADMINISTRATIVE SUBPOENAS
Case 4:11-cv-03638 Document 1 Filed in TXSD on 10/12/11 Page 1 of 28
TABLE OF CONTENTS AND INDEX OF ATTACHMENTS
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. JURISDICTION AND VENUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III. THE PARTIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV. THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The April 20, 2010 Incident And Initiation of CSB’s Investigation. . . . . . . . . . . . 4
B. The Five Subpoenas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. The Two November 24, 2010 Subpoenas. . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. The March 9, 2011 Subpoena. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3. The Two April 7, 2011 Subpoenas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. Efforts And Negotiations To Seek Compliance And Obtain The Required Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
V. GENERAL ALLEGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
VI. CAUSE OF ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
VII. PRAYERS FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ORDER TO SHOW CAUSE
EXHIBIT ONE Sworn Declaration of Donald Scott Holmstrom, CSB Investigator-In-Charge With Attachments
EXHIBIT TWO July 8, 2010 Letter From CSB To Transocean
EXHIBIT THREE November 24, 2010 Record Subpoena
EXHIBIT FOUR November 24, 2010 Interrogatory Subpoena
i
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EXHIBIT FIVE March 9, 2011 Record Subpoena
EXHIBIT SIX April 7, 2011 Record Subpoena
EXHIBIT SEVEN April 7, 2011 Interrogatory Subpoena
EXHIBIT EIGHT July 7, 2011 letter from the United States Attorney For The Southern District Of Texas To Transocean
ii
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TABLE OF AUTHORITIES
CASES PAGE
Burlington Northern Railroad v. Office of Inspector General of the Railroad Retirement Board, 983 F.2d 631 (5th Cir. 1993)..........................................18, 21
Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943)..........................................................1, 19
F.T.C. v. Jim Walter Corp., 651 F.2d 251 (5th Cir. 1981).............................................................21
In re Ramirez, 905 F.2d 97 (5th Cir. 1990)...............................................................................1, 19 Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946)................................................21
United States v. Chevron U.S.A., Inc., 186 F.3d 644 (5th Cir. 1999)......................................20, 21
United States v. Davis, 636 F.2d 1028 (5th Cir. 1981)..................................................................19
United States v. Powell, 379 U.S. 48 (1964)...........................................................................18, 21 United States v. Texas Heart Institute, 755 F.2d 469 (5th Cir. 1985)...........................................18
United States v. Wilson, 864 F.2d 1219 (5th Cir. 1989)................................................................19
Winters Ranch Partnership v. Viadero, 123 F.3d 327 (5th Cir. 1997)..........................................21
STATUTES AND ACTS
28 U.S.C. § 1345..............................................................................................................................1
28 U.S.C. § 1391(b).........................................................................................................................1
42 U.S.C. § 7412(r)(2)(A)................................................................................................4, 5, 19, 20
42 U.S.C. § 7412(r)(6).............................................................................................................19, 20
42 U.S.C. §§ 7412(r)(6)(A)-(S)...........................................................................................1, 18, 21
42 U.S.C. §§ 7412(r)(6)(A)-(C).......................................................................................................5
42 U.S.C. § 7412(r)(6)(C)..................................................................................................2, 4, 5, 21
iii
Case 4:11-cv-03638 Document 1 Filed in TXSD on 10/12/11 Page 4 of 28
42 U.S.C. § 7412(r)(6)(E)............................................................................................................2, 5
42 U.S.C. § 7412(r)(6)(G)................................................................................................................4
42 U.S.C. § 7412(r)(6)(L)(i)..................................................................................................1, 3, 21
42 U.S.C. § 7412(r)(6)(M)...........................................................................................................1, 3
42 U.S.C. § 7607(a).........................................................................................................1, 3, 18, 20
Clean Air Act Amendments of 1990, 42 U.S.C. § 7412(r)(6); Pub. L. 101-549, Title III, § 301, 104 Stat. 2399, 2531 (November 15, 1990)...............................................2
iv
Case 4:11-cv-03638 Document 1 Filed in TXSD on 10/12/11 Page 5 of 28
I. INTRODUCTION
1. The United States of America, on behalf of its agency, the United States Chemical
Safety and Hazard Investigation Board (“CSB” or “Board”), by and through its attorney, Kenneth
Magidson, the United States Attorney for the Southern District of Texas (Adam Laurence
Goldman, Assistant United States Attorney, appearing), petitions this Court to require
Respondent Transocean Deepwater Drilling, Inc. (“Transocean” or “Respondent”), to fully
comply with five CSB administrative subpoenas, with which it was properly served. In support
of this Petition, the United States avers to this Court as follows:
II. JURISDICTION AND VENUE
2. This is a proceeding brought pursuant to the provisions of 42 U.S.C.§§
7412(r)(6)(A)-(S) and 42 U.S.C. § 7607(a) to judicially enforce five CSB subpoenas, three of
which are record subpoenas and two of which are interrogatory subpoenas. This Court possesses
jurisdiction under 28 U.S.C. § 1345, 42 U.S.C.§§ 7412(r)(6)(A)-(S) and 42 U.S.C. § 7607(a), and
CSB possessed jurisdiction to issue the subpoenas pursuant to 42 U.S.C. §§ 7412(r)(6)(L)(i),
(M), and 7607(a). In reviewing jurisdiction, it is noted that a district court may not inquire into
an agency’s jurisdiction in an action for enforcement of an administrative subpoena so long as
the material sought by subpoena is not “plainly incompetent or irrelevant to any lawful purpose”
of an agency. Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943); In re Ramirez, 905
F.2d 97, 98-99 (5th Cir. 1990).
3. Pursuant to 28 U.S.C. § 1391(b), venue is proper in that Respondent Transocean
is a corporation that conducts business and has its United States principal place of business and
United States headquarters located in the Houston Division of the United States District Court of
1
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the Southern District of Texas. Specifically, Respondent Transocean’s United States principal
place of business and United States headquarters are located at 4 Greenway Plaza, Houston,
Texas 77046 and 1311 Broadfield Boulevard, Suite 400, Houston, Texas 77084.
See http://www.deepwater.com/fw/main/Contact_Info-42.html.
III. THE PARTIES
4. CSB is an independent federal investigative and safety agency of the United States
government which was created by Congress in the Clean Air Act Amendments of 1990 and
became operational in January, 1998. See 42 U.S.C. § 7412(r)(6); Pub. L. 101-549, Title III, §
301, 104 Stat. 2399, 2531 (November 15, 1990). CSB is authorized by law to “investigate (or
cause to be investigated), determine and report to the public in writing the facts, conditions, and
circumstances and the cause or probable cause of any accidental release resulting in a fatality,
serious injury or substantial property damages.” 42 U.S.C. § 7412(r)(6)(C)(i). “In no event shall
the Board forego an investigation where an accidental release causes a fatality or serious injury
among the general public, or had the potential to cause substantial property damage or a number
of deaths or injuries among the general public.” 42 U.S.C. § 7412(r)(6)(E). In support of this
mission, CSB:
a: “upon authority of the Board, any member thereof, any
administrative law judge employed by or assigned to the Board, or any
officer or employee duly designated by the Board, may for the purpose of
carrying out duties authorized by subparagraph (C)(i) hold such hearings,
sit and act at such times and places, administer such oaths, and require by
subpoena or otherwise attendance and testimony of such witnesses and the
2
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production of evidence and may require by order that any person engaged
in the production, processing, handling, or storage of extremely hazardous
substances submit written reports and responses to requests and questions
within such time and in such form as the Board may require.” 42 U.S.C. §
7412(r)(6)(L)(i) (emphasis added).
b: “may use any information gathering authority of the Administrator
under this chapter, including the subpoena power provided in [42 U.S.C.
§] 7607(a)(1).” 42 U.S.C. § 7412(r)(6)(M). 42 U.S.C. § 7607(a) states, in
pertinent part, that the “Administrator may issue subpoenas for the
attendance and testimony of witnesses and the production of relevant
papers, books and document . . . [and] [i]n case of contumacy or
refusal to obey a subpoena served upon any person under this
subparagraph, the district court of the United States for any district in
which such person is found or resides or transacts business, upon
application by the United States and after notice to such persons, shall
have jurisdiction to issue an order requiring such person to appear and give
testimony before the Administrator to appear and produce papers, books,
and documents before the Administrator, or both, and any failure to obey
such order of the court may be punished by such court as a contempt
thereof.”
c: Like the National Transportation Safety Board, upon which it was
modeled, the CSB’s investigations are not intended for regulatory
3
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compliance, or civil or criminal enforcement, purposes. Rather, the CSB
has a broad public safety mission focused on recommending measures to
prevent and minimize the risk of industrial chemical accidents. See 42
U.S.C. § 7412(r)(6)(C)(ii). Further, “[n]o part of the conclusions, findings
or recommendations of the Board relating to any accidental release or the
investigation thereof shall be admitted as evidence or used in any action or
suit for damages arising out of any matter mentioned in such report.” 42
U.S.C. § 7412(r)(6)(G).
5. Respondent, Transocean is a corporation that conducts business and has its United
States principal place of business and United States headquarters located within the Houston
Division of the United States District Court for the Southern District of Texas. See pp. 1-2, ¶ 3,
supra.
IV. THE FACTS
A. The April 20, 2010 Incident And Initiation of CSB’s Investigation
6. CSB is conducting an investigation of the blowout and explosion that occurred on
April 20, 2010, at the Macondo lease site on the U.S. Outer Continental Shelf in the Gulf of
Mexico. See Exhibit One, Sworn Declaration of Donald Scott Holmstrom, CSB Investigator-In-
Charge. That incident involved the release of hazardous liquid hydrocarbons, flammable gas,
and other regulated substances or extremely hazardous substances (see 42 U.S.C. §
7412(r)(2)(A)), into the ambient air. See Exhibit Two; Macondo Well Incident: Transocean
Internal Investigation, ch. 3, appx. P, available at http://www.deepwater.com/fw/main/Public-
Report-1076.html; http://www.oilspillcommission.gov/final-report;
4
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http://www.bp.concerts.com/gom/deepwater_horizon_report_long_htm;
http://www.nytimes.com/interactive/2010/12/26/us/20101226-deepwater-horizon-rig-video-
diagram.html. The release led to explosions and fires that destroyed the drilling facility, resulted
in eleven fatalities, many other serious injuries, and substantial property, environmental, and
economic damage. See id.
7. At the time of the blowout and explosion on April 20, 2010, Transocean was
under contract to British Petroleum (“BP”), the leaseholder and legal operator of the Macondo
site, to drill an oil and gas exploration well at the site. See Exhibit One, ¶ 15.
8. Pursuant to 42 U.S.C. §§ 7412(r)(6)(A)-(C), CSB is investigating the accidental
release of regulated substances or other extremely hazardous substances (see 42 U.S.C. §
7412(r)(2)(A)) from the Macondo lease site into the ambient air. See id. Indeed, due to the
resulting and potential fatalities, serious injuries, and substantial property damage, CSB is
required by 42 U.S.C. § 7412(r)(6)(C)(i) to investigate this incident. See id. CSB is not
investigating the subsequent marine oil spill. See 42 U.S.C. § 7412(r)(6)(E).
9. Transocean is in possession and control of documents, information, and tangible
evidence that are relevant to the above-described investigation. See id.
10. On July 8, 2010, CSB informed Transocean of the abovementioned investigation
and instructed it to ensure that all relevant evidence be preserved, unaltered, and not destroyed.
See Exhibit Two, July 8, 2010 Letter From CSB To Transocean. A copy of this letter was sent to
Transocean’s counsel via email and a copy was mailed to Eric B. Brown, Senior Vice President,
General Counsel, Transocean. See id. In addition, from July 13, 2010 to August 13, 2010, CSB
served two subpoenas on Transocean, and although Transocean failed to fully comply with those
5
Case 4:11-cv-03638 Document 1 Filed in TXSD on 10/12/11 Page 10 of 28
two subpoenas, the United States is not seeking to enforce them in the instant action.
B. The Five Subpoenas
11. From November 24, 2010 to April 7, 2011, CSB issued five administrative
subpoenas (three subpoenas for records and two requiring answers to interrogatories) to
Transocean to obtain evidence relevant to its investigation. See Exhibit One, ¶ 21; Exhibit
Three, November 24, 2010 Record Subpoena; Exhibit Four, November 24, 2010 Interrogatory
Subpoena; Exhibit Five, March 9, 2011 Subpoena; Exhibit Six, April 7, 2011 Record Subpoena;
Exhibit Seven, April 7, 2010 Interrogatory Subpoena. Transocean has failed to fully comply with
all five subpoenas. See Exhibit One, ¶¶ 23, 35. Indeed, as of this date, Transocean has provided
no response or an insufficient response to a total of thirty-eight (38) specific demands for
documents or answers to interrogatories. See id. Some of these demands are more than ten
months old. See id. Transocean’s ongoing failure to provide information has impeded and
delayed the CSB’s investigation. See id.
1. The Two November 24, 2010 Subpoenas
12. On November 24, 2010, CSB served Transocean with the first and second of the
five subpoenas at issue. See Exhibits Three and Four. Javier Nava swore and affirmed under
penalty of perjury that he delivered a copy of the subpoenas to Julie Stanger, who is an Associate
Counsel with Sutherland, Asbill and Brennan, LLP (“Sutherland”), 1001 Fannin Street, Suite
3700, Houston, Texas 77002-6760, on November 24, 2010. See id. Sutherland agreed to accept
service of the subpoenas as Transocean’s counsel. See Exhibit One, ¶ 40.
13. The record subpoena directed Transocean to respond to seven separate items by
December 16, 2010, and the interrogatory subpoena directed Transocean to respond to six
6
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interrogatories by December 16, 2010. See Exhibits Three and Four. None of the record
subpoenas have been satisfied by Transocean, and, with the exception of Interrogatory Subpoena
Item 5 (entitled TR-1SUBINT5), none of the interrogatory subpoenas have been satisfied by
Transocean. See Exhibit One, ¶¶ 27, 29. In pertinent part:
a: Record Subpoena Item 1 (entitled TR-3SUBDOC1) requested “[w]ork
schedules and similar documentation that provide projected employment
times, dates, and locations until February 28, 2011, for each individual
identified in response to CSB interrogatories TR-1SUBINT1 and TR-
1SUBINT2, which were served on Transocean in a companion subpoena
to this one.” Exhibit Three.
b: Record Subpoena Item 2 (entitled TR-3SUBDOC2) requested “[a]ny and
all document requests that Transocean sent to any other company,
including by not limited to BP, following the April 20, 2010 incident.
Also include all documents received in response to these requests.” Id.
c: Record Subpoena Item 3 (entitled TR-3SUBDOC3) requested “[a]ny and
all reports, drafts of reports, or work products written or created by the
internal Transocean investigation team following the April 20, 2010
incident.” Id.
d: Record Subpoena Item 4 (entitled TR-3SUBDOC4) requested
“[a]ll records gathered by the Transocean internal investigation team. If
some documents responsive to this item have already been provided to the
CSB, please identify the title and Bates number of such documents.” Id.
7
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e: Record Subpoena Item 5 (entitled TR-3SUBDOC5) requested “[a]ny and
all surveys Transocean personnel, including but not limited to Lloyd’s
Register Group’s surveys and reports, over the past five years.” Id.
f: Record Subpoena Item 6 (entitled TR-3SUBDOC6) requested “[a]ny and
all Transocean policies or procedures addressing the THINK and START
plan.” Id.
g: Record Subpoena Item 7 (entitled TR-3SUBDOC7) requested “[a]ny and
all documents generated or received by Transocean as a result of the
December 23, 2009, Bardolino well control incident, including but not
limited to incident reports, and documents that describe recommendations
and follow-up corrective actions.” Id.
h: Interrogatory Subpoena Item 1 (entitled TR-1SUBINT1) requested “Please
list updated (to be current as of November 1, 2010) contact information –
including the names, job titles, residential addresses, residential/personal
cell phone numbers, and employment status – of all Transocean employees
working on the Deepwater Horizon MODU at the time of the April 20,
2010 incident.” Exhibit Four.
i: Interrogatory Subpoena Item 2 (entitled TR-2SUBINT2) requested “Please
list the names, job titles, residential addresses, residential/personal cell
phone numbers, and employment status of all Transocean employees who
were working on the Deepwater Horizon MODU, but were not on hitch at
the time of the April 20, 2010 incident.” Id.
8
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j: Interrogatory Subpoena Item 3 (entitled TR-1SUBINT3) requested “Please
list the names, job titles, residential addresses, residential/personal cell
phone numbers, and employment status of all Transocean personnel
working onshore in relation to the Macondo well, including but not limited
to managers and technical personnel.” Id.
k: Interrogatory Subpoena Item 4 (entitled TR-1SUBINT4) requested “Please
list the names, job titles, residential addresses, residential/personal cell
phone numbers, and employment status of all Transocean employees
working on the Deepwater Horizon MODU during the months of March
and April, 2010 who were not employed by Transocean during the April
20, 2010 incident.” Id.
l: Interrogatory Subpoena Item 6 (entitled TR-1SUBINT6) requested “Please
list the names, job titles, residential addresses, residential/personal cell
phone numbers, and role of all members of the internal Transocean
investigation team.” Id.
14. Transocean did not provide CSB with any of the requested documents in Record
Subpoena Items 1, 2 and 4 and did not respond to any of the interrogatories in Interrogatory
Subpoena Items 2, 3 and 4. See Exhibit One, ¶ 28. Transocean also did not provide CSB with
any of the requested documents in Record Subpoena Item 3 and indicated that it would only
produce CSB with its final internal investigative report once it is completed. See id.
Transocean’s response to Record Subpoena Item 5 consisted of only a portion of the Lloyd’s
Register, and the remainder, including the portion that specifically pertained to the Deepwater
9
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Horizon, was removed. See id. With respect to Record Subpoena Item 6, Transocean has not
submitted a complete response directly to this item. See id. Transocean’s response to Record
Subpoena Item 7 failed to provide any documents describing recommendations and follow-up
corrective action from the December 23, 2009 incident referenced therein. See id. Transocean’s
response to Interrogatory Subpoena Item 1 failed to provide the addresses, phone numbers and
employment status of the Transocean employees working on the Deepwater Horizon at the time
of the April 20, 2010 incident. See id. Transocean refused to respond to Interrogatory Subpoena
Item 6 by stating that to do so would lead to a potential privacy violation and would violate its
internal policy of not releasing information about ongoing internal investigations. See id.
2. The March 9, 2011 Subpoena
15. On March 9, 2011, CSB served Transocean with the third of five subpoenas at
issue. See Exhibit Five. Javier Nava swore and affirmed under penalty of perjury that he
delivered a copy of the subpoenas to Julie Stanger, who is an Associate Counsel with Sutherland,
1001 Fannin Street, Suite 3700, Houston, Texas 77002-6760, on March 11, 2011. See id.
Sutherland agreed to accept service of the subpoena as Transocean’s counsel. See Exhibit One, ¶
40. This record subpoena directed Transocean to respond to seven separate items by April 1,
2011. See Exhibit Five. None of the subpoena items have been satisfied by Transocean. See
Exhibit One, ¶ 29. Specifically, Transocean has provided no information or responsive
documents to CSB regarding any of the Subpoenaed Items from the March 9, 2011 Subpoena.
See id. In pertinent part:
a: Item 1 (entitled TR-4SUBDOC1) requested “[a]ll records provided to the
JIT not yet supplied to the CSB.” Exhibit Five.
10
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b: Item 2 (entitled TR-4SUBDOC2) requested “[a]ll original design,
construction, and as-built documentation of the DWH.” Id.
c: Item 3 (entitled TR-4SUBDOC3) requested “[a]ll records, related to codes
and standards used and implemented in the design and construction of
DWH.” Id.
d: Item 4 (entitled TR-4SUBDOC4) requested “[a]ll records related to the
implementation and use of API 521, Pressure-relieving and Depressuring
Systems, in the design, construction, and any subsequent modification of
the DWH.” Id.
e: Item 5 (entitled TR-4SUBDOC5) requested “[a]ll records related to the
implementation and use of ANSI/ISA – 84.00.01 (IEC 61511) in the
design, construction and any subsequent modification of the DWH).” Id.
f: Item 6 (entitled TR-4SUBDOC6) requested “[a]ll records related to the
implementation and use of API 770, “A Manager’s Guide to Reducing
Human Errors,” in the design, construction, operation, and any subsequent
modification of the DWH.” Id.
g: Item 7 (entitled TR-4SUBDOC7) requested “[a]ll records related to the
implementation and use of ASTM F1166-95, “Standard Practice for
Human Engineering Design for Marine Systems, Equipment, and
Facilities,” in the design, construction, operation, and any subsequent
modification of the DWH.” Id.
11
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3. The Two April 7, 2011 Subpoenas
16. On April 7, 2011, CSB served Transocean with the fourth and fifth of the five
subpoenas at issue. See Exhibits Six and Seven. Hector Salas swore and affirmed under penalty
of perjury that he delivered a copy of the subpoenas to Julie Stanger, who is an Associate
Counsel with Sutherland, 1001 Fannin Street, Suite 3700, Houston, Texas 77002-6760, on April
7, 2011. See id. Sutherland agreed to accept service of the subpoenas as Transocean’s counsel.
See Exhibit One.
17. One of these aforementioned subpoenas was a record subpoena and the other was
an interrogatory subpoena. See Exhibit Six and Seven. The record subpoena directed
Transocean to respond to fourteen separate items by April 20, 2011, and the interrogatory
subpoena directed Transocean to respond to five interrogatories by April 20, 2011. See id. None
of the Record Subpoena Items or Interrogatory Subpoena Items have been satisfied by
Transocean. See Exhibit One, ¶¶ 32-33. Specifically, Transocean has provided no information
or responsive document to the following subpoenaed items (see Exhibit One, ¶ 32):
a: Record Subpoena Item 3 (entitled TR-5SUBDOC3) requested “[a]ll
records associated with the Lloyd’s Register EMEA Aberdeen Energy
March 12-16, 2010 assessment, “Safety Management and Safety
Culture/Climate Reviews” of the Deepwater Horizon asset for Transocean,
of which the cover sheet is bates stamped TRN-HCEC-00090674
including notes, email referencing the Lloyd’s review, spreadsheets,
survey submissions, analyses, conclusions, and recommendations.”
Exhibit Six.
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b: Record Subpoena Item 4 (entitled TR-5SUBDOC4) requested “[c]ompany
policy documentation in effect on March 12, 2010 on the THINK Plans
relevant to workers on the Deepwater Horizon, as referenced on the page
bates stamped TRN-HCEC-00090589 in the Lloyd’s Register march 12-
16, 2010 assessment of the Deepwater Horizon asset.” Id.
c: Record Subpoena Item 5 (entitled TR-5SUBDOC5) requested “[c]ompany
policy documentation in effect on March 12, 20-10 on the TSTPs relevant
to workers on the Deepwater Horizon, as referenced on the page bates
stamped TRN-HCEC-00090589 in the Lloyd’s Register March 12-16,
2010 assessment of the Deepwater Horizon asset.” Id.
d: Record Subpoena Item 6 (entitled TR-5SUBDOC6) requested “[c]ompany
policy documentation in effect on March 12, 2010, that explains and
described the Prompt cards relevant to workers on the Deepwater Horizon,
as referenced on the page bates stamped TRN-HCEC-00090589 in the
Lloyd’s Register March 12-16, 2010 assessment of the Deepwater Horizon
asset.” Id.
e: Record Subpoena Item 7 (entitled TR-5SUBDOC7) requested “[t]he
company policy that outlines and describes the standardized twenty-one
day on/twenty-one day off (three and three) work schedule for deepwater
rigs that was adopted in early Summer of 2009.” Id.
f: Record Subpoena Item 8 (entitled TR-5SUBDOC8) requested “[a]ny
fatigue prevention analyses, studies, or reviews of the potential impact on
13
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Transocean drilling rig personnel from the standardized twenty-one day
on/twenty-one day off (three and three) work schedule for deepwater rights
that was adopted in early Summer of 2009.” Id.
g: Record Subpoena Item 9 (entitled TR-5SUBDOC9) requested “[a]ll
records addressing the issue of the impacts to Transocean employees, the
company and its customers from a standardization of work schedules
based upon twenty-one days on/twenty-one days off as referenced in the
second paragraph of Rachel Clingman’s September 13 2011, letter to
Chairman Henry A. Waxman and Bart Stupak.” Id.
h: Record Subpoena Item 10 (entitled TR-5SUBDOC10) requested “[a]ny
Transocean fatigue prevention policy or procedure applicable to drilling
rig personnel in the Gulf of Mexico in effect on April 20, 2010.” Id.
i: Record Subpoena Item 11 (entitled TR-5SUBDOC11) requested “[a]ny
Transocean fatigue prevention policy or procedure applicable to drilling
rig personnel in the North Sea (in the jurisdiction of Norway or the UK) in
effect on April 20, 2010.” Id.
j: Record Subpoena Item 12 (entitled TR-5SUBDOC12) requested “[a]ny
Transocean fatigue prevention analyses, studies, or reviews of the impact
on Transocean drilling rig personnel from the standardized twenty-one day
on/ twenty-one day off (three and three) work schedule for deepwater
rights that have been conducted since its implementation in the summer of
2009.” Id.
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k: Record Subpoena Item 13 (entitled TR-5SUBDOC13) requested “[a]ll
records addressing recommendation or corrective action proposed and/or
implemented as a result of the Lloyd’s Register March 12-16, 2010
assessment of the Deepwater Horizon asset.” Id.
l: Record Subpoena Item 14 (entitled TR-5SUBDOC14) requested “[a]ll
records related to the implementation of the standardized twenty-one day
on/twenty-one day off (three and three) work schedule for deepwater rigs
that conducted since its implementation in the summer of 2009, including
decision-making, communication to management, the announcement,
training of employees and policies or procedures related to the new
schedule.” Id.
m: Interrogatory Subpoena Item 1 (entitled TR-2SUBINT1) requested “[d]id
Transocean assess the impact of the 21-day on/off “three and three”
schedule on employee fatigue and performance” If yes, how? Please
provide documentation that supports your response. For example, if a
study was conducted, please provide the study, the results, analysis, and
the conclusions.” Exhibit Seven.
n: Interrogatory Subpoena Item 2 (entitled TR-2SUBINT2) requested “[p]rior
to the implementation of the 21-day on/off “three and three” schedule, did
Transocean examine recent fatigue research into the potential negative
performance effects to its employees working 21 consecutive days of 12-
hour shifts? If yes, please provide that research and/or full citation
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information.” Id.
o: Interrogatory Subpoena Item 3 (entitled TR-2SUBINT3) requested
“[p]lease describe any and all steps taken by Transocean to manage
employee fatigue prior to April 20, 2010, on the Deepwater Horizon and
provide documentation/records that support your response.” Id.
p: Interrogatory Subpoena Item 4 (entitled TR-2SUBINT4) requested “[d]id
Transocean hire a fatigue management consultant to assist in the decision
to implement a 21-day on/off “three on three” work schedule? If yes,
whom? Please provide full contact information and any study, analysis or
assessment conducted by the consultant.” Id.
q: Interrogatory Subpoena Item 5 (entitled TR-2SUBINT5) requested
“[p]rovide the full contact information for all of Lloyd’s Register
employees and contractors that worked on the Lloyd’s Register EMEA
Aberdeen Energy March 12 - 16, 2010 assessment, “Safety Management
and Safety Culture/Climate Reviews” of the Deepwater Horizon asset for
Transocean, including but not limited to Garry Moon, Amy Annand, and
the project supervisor.” Id.
18. In addition, Record Subpoena Item 1 (entitled TR-5SUBDOC1) and Record
Subpoena Item 2 (entitled TR-5SUBDOC2) were not satisfied by Transocean. See Exhibit One,
¶ 32.
a: Record Subpoena Item 1 (entitled TR-5SUBDOC1) requested from
Transocean, “[a] full and complete, legible copy of the cost analysis
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conducted to determine financial savings of modifying deepwater rig
personnel’s schedule from the “two and two” schedule (14 days on, 14
days off) to the “three and three schedule (21 days on, 21 days off) that
was submitted by Scott McKaig to Larry Mills on Monday, May 4, 2009,
referenced in an email bates stamped TRN-HCEC-00116008 and of which
at least 3 pages of the analysis’ findings were provided on TRN-HCEC
00116009 - TRN-HCEC-00116011. Please include any and all
attachments referenced in the email and cost analysis.” Exhibit Six.
Although Transocean provided to CSB a cost-analysis, emails regarding
the roll-out of the 21-day hitch schedule to Transocean employees, a
power point presentation entitled “Discover Deep Seas Business Review
May 13, 2009 – which described to North American management
personnel the company change to the 21-day hitch schedule for all GoM
rigs, and “3 on 3 crew schedule FAQ” documentation, Transocean did not
provide the remainder of the requested information to CSB contained in
Record Subpoena Item 1 (entitled TR-5SUBDOC1). Exhibit One, ¶ 32.
b: Record Subpoena Item 2 (entitled TR-5SUBDOC2) requested “[a] full and
complete legible copy of the Lloyd’s Register EMEA Aberdeen Energy
March 12-16, 2010 assessment, “Safety management and Safety
Culture/Climate Reviews” of the Deepwater Horizon asset for Transocean,
of which the cover sheet is bates stamped TRN-HCEC-00090574.”
Exhibit Six. Transocean’s response to CSB has failed to include any
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portions of the March, 2010 safety culture that pertained
specifically to the Deepwater Horizon. See Exhibit One, ¶ 32.
C. Efforts And Negotiations To Seek Compliance And Obtain The Required Information
19. The United States has attempted through reasonable, good faith negotiations to
secure Transocean’s compliance with all of CSB’s subpoenas. See Exhibit One, ¶ 25. This
included a final demand letter seeking full compliance by the United States Attorney for the
Southern District of Texas, which was sent on July 7, 2011. See Exhibit Eight, July 7, 2011
letter from U.S. Attorney to Transocean. Transocean failed to provide any additional responses to
CSB’s subpoenas following these efforts and has maintained that it need not comply. See
Exhibit One, ¶ 35.
V. GENERAL ALLEGATIONS
20. This Court is authorized to enforce the subpoenas under 42 U.S.C.§§
7412(r)(6)(A)-(S) and 42 U.S.C. § 7607(a), and in accordance with the standard set forth in
United States v. Powell, 379 U.S. 48, 57-58 (1964). Under Powell, the United States must
establish four elements: (1) there must be a legitimate purpose of the investigation; (2) the
specific inquiry must be relevant to that purpose; (3) the information sought must not already be
in the CSB’s possession; and (4) all internal administrative procedures must have been followed.
See Powell, 379 U.S. at 57-58.
21. The Powell standard is intended to be “a minimal burden” and one “which may be
met by a simple affidavit filed with the petition to enforce.” United States v. Texas Heart
Institute, 755 F.2d 469, 474 (5th Cir. 1985); see also Burlington Northern Railroad v. Office of
Inspector General of the Railroad Retirement Board, 983 F.2d 631, 637 (5th Cir. 1993) (“It is
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settled that the requirements for judicial enforcement of an administrative subpoena are
minimal.”). See also Endicott Johnson Corp., 317 U.S. at 509; Ramirez, 905 F.2d at 98-99.
22. If this Court determines that the United States has established its prima facie case
under Powell, the burden of going forward shifts to Respondent. See United States v. Wilson,
864 F.2d 1219, 1222 (5th Cir. 1989). The Court may order Respondent to “show cause” why it
is not required to comply with the subpoenas. Wilson, 864 F.2d at 1222; United States v. Davis,
636 F.2d 1028, 1034 (5th Cir. 1981). Respondent may meet its “show cause” burden by: (1)
“disprov[ing] one of the four elements of the United States prima facie showing” under Powell;
or (2) “demonstrat[ing] that judicial enforcement of the summons would otherwise constitute an
abuse of the court’s process. Davis, 636 F.2d at 1034.
23. Respondent Transocean has not fully complied with the two November 24, 2010,
one March 9, 2011, and two April 7, 2011 subpoenas. See Exhibit One, ¶ 35. Respondent
Transocean’s refusal to comply with the subpoenas continues to the date of this petition. See id.
24. There is a legitimate purpose to the current investigation in that CSB is statutorily
authorized and mandated to investigate and report to the public in writing the facts, conditions,
and circumstances and the cause or probable cause of the release of hazardous liquid
hydrocarbons, flammable gas and other regulated substances or extremely hazardous substances
(see 42 U.S.C. § 7412(r)(2)(A)), into the ambient air from the April 20, 2010 blowout and
explosion at the Macondo lease site that resulted in fatalities, serious injuries and substantial
property damage. See Exhibit One; 42 U.S.C. § 7412(r)(6).
25. The books, papers, records, documents, response to interrogatories, or other data
sought by the subpoenas are not already in the actual or constructive possession of CSB. See
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Exhibit One, ¶ 39. Transocean has also failed to identify with reasonable specificity the location
of the subpoenaed information, such that CSB lacks prompt, certain, and full access. See id. In
addition, alleged unidentified production of some of the subpoenaed information in other
litigation involving the United States and Transocean does not relieve Transocean of its duty to
produce the requested documents as it is necessary for the independently operating CSB and
required by 42 U.S.C. § 7412(r)(6). See United States v. Chevron U.S.A., Inc., 186 F.3d 644, 647
(5th Cir. 1999). It is also not the duty or burden of CSB to sift through all documents and
discovery in litigation involving the United States and Transocean to determine if adequate
responses can be found to CSB’s lawful subpoenas. See Chevron, supra, at 650.
26. The information requested in the aforementioned subpoenas is relevant and
necessary in order for CSB to properly investigate the April 20, 2010 incident at the Macondo
drilling site in which regulated substances or other extremely hazardous substances (see 42
U.S.C. § 7412(r)(2)(A)) were released into the ambient air from a stationary source. See Exhibit
One, ¶ 38 and Attachment (spreadsheet summarizing relevance of subpoena demands).
27. All administrative steps required by 42 U.S.C. § 7412(r)(6) and 42 U.S.C. §
7607(a) for the issuance of the subpoenas have been taken. Transocean’s counsel agreed to
accept service of each subpoena, and CSB properly completed service for each. See id., ¶ 40.
VI. CAUSE OF ACTION
28. Petitioner re-alleges and incorporates by reference, as is fully set forth herein, the
allegations in paragraphs 1-27 above.
29. This Court should enforce the abovementioned subpoenas as they are well within
the mandate of the CSB to investigate, or cause to be investigated, the facts, conditions, and
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circumstances and the cause or probable cause of any accidental release resulting in a fatality,
serious injury or substantial property damage. See 42 U.S.C. §§ 7412(r)(6)(C)(i) and (L)(i);
Powell, 379 U.S. at 57-58; Burlington Northern Railroad, 983 F.2d at 637. See generally 42
U.S.C. §§ 7412(r)(6)(A)-(S).
30. The subpoenas issued are for a lawful purpose and within CSB’s statutory
authority, the information subpoenaed is relevant and necessary to the purpose for which it was
subpoenaed, the subpoenas are reasonable and not overly broad or burdensome, and the
subpoenas have not been issued for an improper purpose such as harassment. See Oklahoma
Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946); Chevron U.S.A., Inc., 186 F.3d at
647; Winters Ranch Partnership v. Viadero, 123 F.3d 327, 329, 335 (5th Cir. 1997); Burlington
Northern Railroad, 983 F.2d at 631, 638-39, n.3; F.T.C. v. Jim Walter Corp., 651 F.2d 251, 258
(5th Cir. 1981) (“a subpoena is not unreasonably burdensome unless compliance threatens to
unduly disrupt or seriously hinder normal operations of a business.”).
31. Furthermore, relative to Transocean’s size, the compliance cost and effort would
not unduly disrupt or seriously hinder its normal operations. See Chevron, 186 F.3d at 649-50
(quoting Jim Walter Corp., 651 F.2d at 258).
VII. PRAYER FOR RELIEF
WHEREFORE, petitioner respectfully prays:
1. That the Court issue an Order directing respondent Transocean to show cause, if
any, why it should not be required to comply with and obey the aforementioned subpoenas and
each and every requirement thereof, including producing full and complete responses. See
Attached Proposed Order to Show Cause.
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2. That the Court enter an Order directing respondent Transocean to obey the
unsatisfied investigative demands contained in the aforementioned subpoenas and each and every
requirement thereof by order the production of the books, papers, record, documents, response to
interrogatories, or other data as is required and called for by the terms of the subpoenas before
CSB Investigator-in-Charge Donald S. Holmstrom or any other proper officer or employee of the
CSB at such time and place as may be fixed by Investigator-in-Charge Donald S. Holmstrom, or
another proper officer or employee of the CSB. See id.
3. That the United States recover its costs in maintaining this action.
4. That the Court grant such other and further relief as is just and proper.
Dated: October 12, 2011 Respectfully submitted,
KENNETH MAGIDSONUnited States Attorney, Southern District of Texas
By: s/ Adam Laurence Goldman Adam Laurence GoldmanAssistant United States AttorneyAttorney-in-ChargeS.D. Tex. ID No.: 1034195State Bar Nos: NY3038023/DC476521919 Milam Street, Room 1416Houston, Texas 77002Tel.: (713) 567-9534; FAX: (713) 718-3303E-mail: [email protected] for Petitioner
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of October, 2011, I electronically filed this
document with the Clerk of Court using CM/ECF, and served a copy on Respondent and
Respondent’s counsel via overnight express delivery service at the following addresses:
Susan Lafferty, Counsel Rachel G. Clingman, CounselSutherland, Asbill and Brennan, LLP Julie Stanger, Associate Counsel 1275 Pennsylvania Avenue, NW Sutherland, Asbill and Brennan, LLPWashington, DC 20004-2415 1001 Fannin Street, Suite 3700Email: [email protected] Houston, TX 77002-6760Counsel for Respondent Email: [email protected]
Email: [email protected] Counsel for Respondent
Transocean Deepwater Drilling, Inc. Transocean Deepwater Drilling, Inc.4 Greenway Plaza 1311 Broadfield Boulevard, Suite 400Houston, Texas 77046 Houston, Texas 77084Respondent Respondent
s/ Adam Laurence Goldman ADAM GOLDMANAssistant United States Attorney
Case 4:11-cv-03638 Document 1 Filed in TXSD on 10/12/11 Page 28 of 28