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Old 06-11-2010, 02:36 PM   #321
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I would have to disagree with you here. Probable cause either exists or it doesn't. But there are plenty of instances in which arrests are made and charges brought in which later investigation discloses that there is insufficient evidence to successfully prove that the defendant committed the crime for which he has been charged.
Your correct, either PC exists or it doesn't. If you only complete a partial investigation something that might look like decent PC turns out to be nothing. Which is why the investigation must be complete, especially in high profile cases like the one we are discussing. Typically the investigations I've done where this is the case, it turns out I was interviewing one side of the story then the other. If I stopped after finishing half of the investigation then it would appear to be great PC, when in fact none exists.

Having the charges dismissed after the investigation is complete would probably be more of a statement on the evidence not being sufficient to be able to prove guilt beyond a reasonable doubt. Sometimes (more often than I'd like to admit) it can also mean the prosecutor or investigator doesn't know what they are doing.
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Old 06-11-2010, 04:53 PM   #322
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World's biggest spill:

  1. Kuwait - 1991 - 520 million gallons
    Iraqi forces opened the valves of several oil tankers in order to slow the invasion of American troops. The oil slick was four inches thick and covered 4000 square miles of ocean.
Anyone know what that area is like now?
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Old 06-11-2010, 09:22 PM   #323
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Your correct, either PC exists or it doesn't. If you only complete a partial investigation something that might look like decent PC turns out to be nothing. Which is why the investigation must be complete, especially in high profile cases like the one we are discussing. Typically the investigations I've done where this is the case, it turns out I was interviewing one side of the story then the other. If I stopped after finishing half of the investigation then it would appear to be great PC, when in fact none exists.

Having the charges dismissed after the investigation is complete would probably be more of a statement on the evidence not being sufficient to be able to prove guilt beyond a reasonable doubt. Sometimes (more often than I'd like to admit) it can also mean the prosecutor or investigator doesn't know what they are doing.

OFGS you have to show probable cause to get a warrant to search a place as part of an investigation. It is usually a tactical prosecutorial decision whether you arrest a person early or late. . One other tactic is to arrest a person when you have probable cause in order to conduct a search incident to the arrest. Finally in the regulatory environment investigations are conducted using inspection warrants under the reduced standard of probable cause articulated in CAMARA and SEE
You are perhaps confusing probable cause for a warrantless arrest with the probable cause needed to secure an arrest warrant. But even on a warrantless arrest there is no need for a complete investigation. From a very recent case

1. False Arrest


Defendants contend that Wubnig had probable cause to arrest Johnson, and, therefore, that any claim for false arrest fails as a matter of law. The Court agrees. Probable cause to arrest exists "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Curley v. Village of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001) (quotations, citations omitted)......In evaluating probable cause, courts look to the information available to the law enforcement officer at the time of the arrest and consider the "totality of the circumstances." ......
Here, Officer Wubnig arrested Johnson based on information she obtained through her interview of Deegan, who told her that he had seen Johnson in front of Deegan's open locker, holding Deegan's wallet, and thumbing through the cash section of it. Moreover, the record contains nothing--other than Johnson's own unsupported denials--to cast doubt on Deegan's account. Accordingly, Wubnig had "reasonably trustworthy information" that was "sufficient to warrant a person of reasonable caution" believing that "an offense"--specifically, larceny--"ha[d] been committed by the person to be arrested." See, e.g. Curley, 268 F.3d 65, 70 ("When information is received from a putative victim or an eyewitness, probable cause exists, unless the circumstances raise doubt as to the person's veracity."); ......
Plaintiff does not seriously dispute any of the above, arguing instead that because he was acquitted at his criminal trial, the City defendants should be precluded from "re-litigating" the issue of his guilt. ..... More importantly, an acquittal has no bearing on the issue of whether probable cause existed for the arrest which must determined based on the totality of the circumstances at the time of the arrest, including the information available to the arresting officer at that time. ...... once Wubnig, based on Deegan's statements, "ha[d] a reasonable basis for believing" that "probable cause existe[d]," she was "not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."........

JOHNSON, Plaintiff, -against- CITY OF NEW YORK, COMMISSIONER OF THE NYPD o...
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORKJune 7, 2010, Decided



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Old 06-12-2010, 02:11 AM   #324
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This thread is just like Law & Order.
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Old 06-12-2010, 06:14 AM   #325
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OFGS you have to show probable cause to get a warrant to search a place as part of an investigation. It is usually a tactical prosecutorial decision whether you arrest a person early or late. . One other tactic is to arrest a person when you have probable cause in order to conduct a search incident to the arrest. Finally in the regulatory environment investigations are conducted using inspection warrants under the reduced standard of probable cause articulated in CAMARA and SEE

You are perhaps confusing probable cause for a warrantless arrest with the probable cause needed to secure an arrest warrant. But even on a warrantless arrest there is no need for a complete investigation. From a very recent case

1. False Arrest


Defendants contend that Wubnig had probable cause to arrest Johnson, and, therefore, that any claim for false arrest fails as a matter of law. The Court agrees. Probable cause to arrest exists "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Curley v. Village of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001) (quotations, citations omitted)......In evaluating probable cause, courts look to the information available to the law enforcement officer at the time of the arrest and consider the "totality of the circumstances." ......
Here, Officer Wubnig arrested Johnson based on information she obtained through her interview of Deegan, who told her that he had seen Johnson in front of Deegan's open locker, holding Deegan's wallet, and thumbing through the cash section of it. Moreover, the record contains nothing--other than Johnson's own unsupported denials--to cast doubt on Deegan's account. Accordingly, Wubnig had "reasonably trustworthy information" that was "sufficient to warrant a person of reasonable caution" believing that "an offense"--specifically, larceny--"ha[d] been committed by the person to be arrested." See, e.g. Curley, 268 F.3d 65, 70 ("When information is received from a putative victim or an eyewitness, probable cause exists, unless the circumstances raise doubt as to the person's veracity."); ......
Plaintiff does not seriously dispute any of the above, arguing instead that because he was acquitted at his criminal trial, the City defendants should be precluded from "re-litigating" the issue of his guilt. ..... More importantly, an acquittal has no bearing on the issue of whether probable cause existed for the arrest which must determined based on the totality of the circumstances at the time of the arrest, including the information available to the arresting officer at that time. ...... once Wubnig, based on Deegan's statements, "ha[d] a reasonable basis for believing" that "probable cause existe[d]," she was "not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."........


JOHNSON, Plaintiff, -against- CITY OF NEW YORK, COMMISSIONER OF THE NYPD o...
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORKJune 7, 2010, Decided

If Deegan was the only witness then the investigation was complete and probable cause can be determined. If the officer was aware of two, three, 10, 30 other witnesses then the investigation was not complete. A reasonable person could not conclude that Johnson had committed the crime after interviewing only one person, if they are aware of the other witnesses. I've been through this ringer more than once, and my attorney has relayed to me the frustration of the plaintiff's lawyer at my ability to articulate the details and the manner in which I conduct my investigations. As stated in the case you quoted, a determination of probable cause can only be taken based on the totality of the circumstances. If the investigation is not complete then probable cause can not be determined, because the totality of the circumstances is not known. If all reasonable actions are taken to ensure the officer/agency knows all of the details, only then can probable cause be determined.
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Old 06-12-2010, 02:18 PM   #326
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If Deegan was the only witness then the investigation was complete and probable cause can be determined. If the officer was aware of two, three, 10, 30 other witnesses then the investigation was not complete. A reasonable person could not conclude that Johnson had committed the crime after interviewing only one person, if they are aware of the other witnesses. I've been through this ringer more than once, and my attorney has relayed to me the frustration of the plaintiff's lawyer at my ability to articulate the details and the manner in which I conduct my investigations. As stated in the case you quoted, a determination of probable cause can only be taken based on the totality of the circumstances. If the investigation is not complete then probable cause can not be determined, because the totality of the circumstances is not known. If all reasonable actions are taken to ensure the officer/agency knows all of the details, only then can probable cause be determined.
I think I better understand with what you're saying now. My view is slightly different, mostly on the use of the term probable cause.

What you're talking about here is what I would term "quality of case work" rather than "probable cause". Our philosophies about quality police work seem to be very similar as there are few things I despise worse than lazy police work. My goal was always to nail down every angle possible, lay it out in the report in a way that there were no questions not addressed, and then be prepared to battle it out in court. I'm a fast typist, have a decent mind, an affinity for soaking up case law, a tendency to be an over-achiever and a strong desire to always win. My goal always was to have the defense attorney read my report and turn to his client and say, "So, you're going to prison, the only question is how much time we can plea bargain this down to."

Probable cause, to me, is just one of the steps on the road to quality police work. Once I have probable cause nailed down, I know I can make an arrest and bring charges. But the challenge becomes "can I win the case?" It's a challenge because I have to defend the case in court, and I have to overcome the prosecutor's desire to protect his/her win-rate (and their laziness which too often results in an easy plea rather than go for the throat).

In addition to being a required step, PC is also a nice hammer sitting in the toolbox of an investigator. Just because you have PC doesn't mean you have to make an arrest at that moment. You can hang on to it and use it when the time is ripe to make an arrest that will lead to byproducts that will enhance the case. On the other hand, sometimes the case forces you to make the arrest as soon as you think you have PC because you don't want to lose evidence, or the bad guy.

And then there are the times when you have PC and you have to admit that this is about as good as it is going to get. You believe the crime was committed by the defendant, but there are holes, or potential holes, that you just can't get filled. Those are the times you just have to have some faith in the prosecutor, judge and jury to make good decisions.

Getting PC is like the traffic light turning from red to green. Technically, you can go, but smart people always look both ways to make sure it's really safe to go.

So, steering this thing back to the topic at hand. Discounting a politically motivated prosecution, if criminal charges are brought in the Deepwater Horizon case, the investigators and the prosecutors will almost certainly have done everything they think they need to do in order to nail everything down and close all the holes.

The major potential weaknesses to any prosecution on this is going to be that this will be a difficult case to make because there are so many people involved, the corporations involved will hire attorneys by the building full, everybody will put forth major efforts to protect their asses, a literal boat-load of physical evidence sank to the bottom of the ocean, judgment will be an issue, and the technical aspects might be hard to explain to a jury.

The two sided sword of the case will be that it is a federal prosecution. Federal laws, especially conspiracy cases, are very sweet and can be made easily. The side that cuts the other way is found in this old saying, "Federal conspiracy cases are easy to make so federal agents and prosecutors can make them." Maybe I'm a bit jaded, having been a local cop my entire career but having spent 5 years in a GS-14 job in a three-letter fed agency. But given my choices between an ADA with 5-years experience who comes to work looking to lock up some bad guys vs. an AUSA with 20-years experience who comes to work praying he doesn't screw up today; I know who I want prosecuting my case.
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Old 06-12-2010, 04:05 PM   #327
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[/LEFT]

If Deegan was the only witness then the investigation was complete and probable cause can be determined. If the officer was aware of two, three, 10, 30 other witnesses then the investigation was not complete. A reasonable person could not conclude that Johnson had committed the crime after interviewing only one person, if they are aware of the other witnesses. I've been through this ringer more than once, and my attorney has relayed to me the frustration of the plaintiff's lawyer at my ability to articulate the details and the manner in which I conduct my investigations. As stated in the case you quoted, a determination of probable cause can only be taken based on the totality of the circumstances. If the investigation is not complete then probable cause can not be determined, because the totality of the circumstances is not known. If all reasonable actions are taken to ensure the officer/agency knows all of the details, only then can probable cause be determined.
I've posted the case, there are lots more
Read it.
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Old 06-14-2010, 11:36 AM   #328
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TromboneAl:
I was working as a geologist in Saudi when Saddam invaded Kuwait and was actually diving the reefs of Jana Island on the Kuwaiti/Suadi border the day of the invasion. I remained there during the war, and was a volunteer involved with the clean-up of the oil spill over there. The slick hugged the western coast of the Arabian Gulf (intent was to shut down the Saudi desalination plants) contaminating the breeding grounds for shrimp and fish. It shut down all fishing for about a year, but the following year the seafood industry was up and running. They declared the shrimp and fish safe for consumption (always wondered abut that....) about six months after they capped the last well. I do know that when I returned to the offshore reef islands a year later I was surprised that there was not much obvious damage to the coral compared to before war.
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Old 06-14-2010, 01:42 PM   #329
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Another case of the earth having soooo much oil it just squirts out all over - this from 100 years ago in California.
California's legendary oil spill - Los Angeles Times
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Old 06-14-2010, 03:55 PM   #330
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I do know that when I returned to the offshore reef islands a year later I was surprised that there was not much obvious damage to the coral compared to before war.
Wow, interesting experience. I wonder, do you think the coral may have thrived because the oil killed the algae and other competitors to the coral?

One thing I've heard about the Persian Gulf spill is that the heat really mitigated the spill because so much of the oil evaporated. The GOM is not quite as warm but is much warmer than Alaska of course. So perhaps the environmental damage will not be as bad as it could have been.

But I will not be eating GOM shrimp or seafood for many years...and yes I will check. I realize the contamination may not be so bad but there are alternatives so why risk it?
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Old 06-14-2010, 03:57 PM   #331
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Wow, interesting experience. I wonder, do you think the coral may have thrived because the oil killed the algae and other competitors to the coral?

One thing I've heard about the Persian Gulf spill is that the heat really mitigated the spill because so much of the oil evaporated. The GOM is not quite as warm but is much warmer than Alaska of course. So perhaps the environmental damage will not be as bad as it could have been.

But I will not be eating GOM shrimp or seafood for many years...and yes I will check. I realize the contamination may not be so bad but there are alternatives so why risk it?
There's always fish from the Great lakes..........
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Old 06-14-2010, 04:31 PM   #332
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I have no idea why the corals weren't affected. My hypothesis at the time was that dispersants weren't being used, so the majority of the oil stayed at the surface and largely bypassed them, but it's a weak explanation to me, at best.
The environmental conditions in the Arabian Gulf are different than the GOM is several aspects - as you noted, the ambient temperature is much higher (it was 110 degrees+ when we were on the clean-up crews) which will help volitalize the oil, the shoreline is largely sand, vs. the mud/silt based shoreline along the Louisina coast. Having said that, the crude coming out of MC 252 is ~35 API, which is slightly lighter than the crude from the Burgan field, which may offset some of the temperature differences.
And as much as I love shrimp and crab boils here in Louisiana, I think I'll be sticking to crawfish for a while.
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Old 06-15-2010, 12:25 AM   #333
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Old 06-15-2010, 02:38 AM   #334
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that does not preclude thinking that BEFORE the explosion BP took risks in the name of making money
I don't want to quibble about semantics, but I do want to point out that taking risks to make money is what ALL resource companies do. That's their business. Drilling oil wells is not risk-free, mining is not risk-free... heck, fishing and logging are not risk-free. They're not risk-free in terms of making money, in terms of their impact on the environment, in terms of personal safety, or in terms of having adverse effects on other segments of the population. The key is understanding and intelligently managing the risks (while making money). To my way of thinking, BP's culpability for compensating the victims' families and cleaning up the mess is not in question. However, their criminality is not determined by the fact that the spill occurred....rather it's determined by the behavior that led up to the spill. Every decision that is made on a drilling rig is has an economic side to it. Please don't oversimplify by saying that BP took risks for the sake of profit, therefore they are evil and criminal. Let those who understand the risks, actions, and their consequences decide whether the behavior was criminal (or instead was only stupid, or reckless, or within the "normal" range but with very unlucky consequences). Let's not let the media sensationalists and their "sound-bite experts" run our courts.
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Old 06-15-2010, 07:16 AM   #335
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I don't want to quibble about semantics, but I do want to point out that taking risks to make money is what ALL resource companies do. That's their business. Drilling oil wells is not risk-free, mining is not risk-free... heck, fishing and logging are not risk-free. They're not risk-free in terms of making money, in terms of their impact on the environment, in terms of personal safety, or in terms of having adverse effects on other segments of the population. The key is understanding and intelligently managing the risks (while making money). To my way of thinking, BP's culpability for compensating the victims' families and cleaning up the mess is not in question. However, their criminality is not determined by the fact that the spill occurred....rather it's determined by the behavior that led up to the spill. Every decision that is made on a drilling rig is has an economic side to it. Please don't oversimplify by saying that BP took risks for the sake of profit, therefore they are evil and criminal. Let those who understand the risks, actions, and their consequences decide whether the behavior was criminal (or instead was only stupid, or reckless, or within the "normal" range but with very unlucky consequences). Let's not let the media sensationalists and their "sound-bite experts" run our courts.
Exactly, I'd be willing to bet decisions made prior to the accident were not in conflict with industry standards and had probably been done many times before by most if not all drillers. It is when you have a confluence of abnormal events happen, things go wrong, such as, cement job not holding, BOP malfunctioning, not correctly reading sampling analysis correctly, etc., etc. Hindsight is always 20/20 though. The news media is making this very bad event even worse by sensationalizing anything and everything related to it. They alone have done more to damage the tourism industry than the oil spill.
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Old 06-15-2010, 07:58 AM   #336
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I don't want to quibble about semantics, but I do want to point out that taking risks to make money is what ALL resource companies do. That's their business. Drilling oil wells is not risk-free, mining is not risk-free... heck, fishing and logging are not risk-free. They're not risk-free in terms of making money, in terms of their impact on the environment, in terms of personal safety, or in terms of having adverse effects on other segments of the population. The key is understanding and intelligently managing the risks (while making money). To my way of thinking, BP's culpability for compensating the victims' families and cleaning up the mess is not in question. However, their criminality is not determined by the fact that the spill occurred....rather it's determined by the behavior that led up to the spill. Every decision that is made on a drilling rig is has an economic side to it. Please don't oversimplify by saying that BP took risks for the sake of profit, therefore they are evil and criminal. Let those who understand the risks, actions, and their consequences decide whether the behavior was criminal (or instead was only stupid, or reckless, or within the "normal" range but with very unlucky consequences). Let's not let the media sensationalists and their "sound-bite experts" run our courts.
When I or BP risk my money it's business. when I risk your money it may be criminal. Part of the purpose of both criminal and civil law is to make sure that risk takers internalize the true risk cost. And no it's not up the the risk takers. Its up to the victims.
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Old 06-15-2010, 08:58 AM   #337
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Leads in the press are that Exxon execs will testify before Congress that BPs actions on that hole were not the industry standard for that condition.
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Old 06-15-2010, 09:23 AM   #338
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I don't want to quibble about semantics, but I do want to point out that taking risks to make money is what ALL resource companies do. That's their business. Drilling oil wells is not risk-free, mining is not risk-free... heck, fishing and logging are not risk-free. They're not risk-free in terms of making money, in terms of their impact on the environment, in terms of personal safety, or in terms of having adverse effects on other segments of the population. The key is understanding and intelligently managing the risks (while making money). To my way of thinking, BP's culpability for compensating the victims' families and cleaning up the mess is not in question. However, their criminality is not determined by the fact that the spill occurred....rather it's determined by the behavior that led up to the spill. Every decision that is made on a drilling rig is has an economic side to it. Please don't oversimplify by saying that BP took risks for the sake of profit, therefore they are evil and criminal. Let those who understand the risks, actions, and their consequences decide whether the behavior was criminal (or instead was only stupid, or reckless, or within the "normal" range but with very unlucky consequences). Let's not let the media sensationalists and their "sound-bite experts" run our courts.
Ok, I'll grant you that if I sign up to work for an oil company working on rigs I agree to a risk. But that risk is constrained by laws regulating worker safety and . We don't know if BP violated those laws in this incident but we do know they have a miserable safety record. There are resouce companies with good records that work hard to ensure workplace safety.

And BP did NOT have the right to take risks that endangered the environment. They had a right to drill...following a plan they submitted in advance...with specific backup resources in place to contain a spill if it happened. They apparently disregarded the plan and did not have the agreed resources in place. Quite simply, they did not have the authority to deviate from the plan. No person at BP had the authority to take the risks they did or to make some of the decisions made. When those individuals, whether drilling foremen on the deck, the COO waiving part of the plan to speed things up, or even teh chairman, made certain decisions they set in motion a sequence of events that led to multiple deaths, billions in economic damage, and mass environmental catastrophe. If we cannot find a crime to lock them up for 20+ years for there is something wrong. Note: I do not want to lock up the innocent. But as teh facts come out it is quite clear to me that a crime was committed. The only question is which individuals committed them.
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Old 06-15-2010, 09:26 AM   #339
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Exactly, I'd be willing to bet decisions made prior to the accident were not in conflict with industry standards and had probably been done many times before by most if not all drillers. It is when you have a confluence of abnormal events happen, things go wrong, such as, cement job not holding, BOP malfunctioning, not correctly reading sampling analysis correctly, etc., etc. Hindsight is always 20/20 though. The news media is making this very bad event even worse by sensationalizing anything and everything related to it. They alone have done more to damage the tourism industry than the oil spill.
Many industries are appallingly negligent. Industry standard is the cheapest crappiest garbage that they can get past an inspector who is not well educated, well paid or looking too closely

Think of taxi drivers in New York and you understand "industry standard"
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Old 06-15-2010, 09:28 AM   #340
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Exactly, I'd be willing to bet decisions made prior to the accident were not in conflict with industry standards and had probably been done many times before by most if not all drillers. It is when you have a confluence of abnormal events happen, things go wrong, such as, cement job not holding, BOP malfunctioning, not correctly reading sampling analysis correctly, etc., etc. Hindsight is always 20/20 though. The news media is making this very bad event even worse by sensationalizing anything and everything related to it. They alone have done more to damage the tourism industry than the oil spill.
Industry standards are irrelevant. BP submitted a specific plan that involved specific contingencies. It was also subject to (lax) MMS standards for operations. There are many industry standards in many different industries that are unsafe or illegal! That's why we have regulations that protect the workers and the environment.

But let's assume they did follow industry standard. That's a good reason to STOP the entire industry immediately until they can develop safe procedures that don't kill people and pollute the oceans!
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