doj filing on csb subpoenas to to

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 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

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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


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


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


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


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


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


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


http://www.deepwater.com/fw/main/Contact_Info-42.html.

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


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


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


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


j: Interrogatory Subpoena Item 3 (entitled TR-1SUBINT3) requested “Please


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


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


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


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


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


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.

12


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


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.

14


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

15


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

20


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.

21


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


mailto:[email protected]







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