2

CLAIM SUMMARY / DETERMINATION

Claim Number: N13024-0001 

Claimant: Taylor Energy Company LLC 

Type of Claimant: RP

Type of Claim: Affirmative Defense 

Claim Manager: n

Amount Requested: $353,881,719.70 

Action Taken: Denied

EXECUTIVE SUMMARY:

 On or about September 16, 2004, the Taylor Energy MC-20A platform sank and discharged 

oil into the Gulf of Mexico, a navigable waterway of the United States. The MC-20A platform 

was located on tract 66-110 of lease OCS-G 04935, Mississippi Canyon Block 20 of the Gulf of 

Mexico. Taylor Energy Company, LLC, (Taylor or Claimant) owner and operator of the MC20A platform made notification to the National Response Center on September 17, 2004.1

 

Taylor responded, assumed responsibility for the incident and has participated in a series of 

events in an effort to stop the continuing discharge of oil from its site and to comply with the 

plugging and abandonment requirements as required for Outer Continental Shelf lessees and 

operators. On November 16, 2018, Taylor presented an act of God defense claim to the National 

Pollution Funds Center (NPFC) for $353,881,719.70.2 The NPFC thoroughly reviewed all 

documentation submitted with the claim, analyzed the applicable law and regulations, and 

concluded that Taylor had failed to demonstrate an entitlement to an act of God defense.3 On 

July 12, 2019, Taylor timely sought reconsideration and provided additional material in support 

of its request.4 

 Requests for reconsideration are considered de novo. The NPFC has thoroughly reviewed the 

original claim, the request for reconsideration, all information provided by Taylor, information it 

obtained independently, and the applicable law and regulations. Upon reconsideration, the 

NPFC concludes that the facts established by this record do not support Taylor’s claim of an 

entitlement to an act of God defense for the reasons as outlined in the original determination and 

below. 

 

I. CLAIM HISTORY

 On November 16, 2018, Taylor presented an act of God defense claim to the NPFC for 

$353,881,719.70.5 The NPFC thoroughly reviewed the original claim, all information provided 

 

1 National Response Center Report #735409, reported on September 17, 2004.

2 Taylor Energy Company, LLC, claim submission cover letter dated November 15, 2018, page 2. The sum certain 

represents costs through August 31, 2017. Taylor asserts that it has incurred additional costs since August 31, 2017, 

and will submit an updated sum certain at a later date. 3 NPFC determination issued to Taylor Energy Company, LLC, dated May 14, 2019. 4 Letter from Taylor Energy Company, LLC, to the NPFC dated July 12, 2019, requesting reconsideration of the 

NPFC’s initial denial determination dated May 14, 2019.

5 Taylor Energy Company, LLC, claim submission cover letter dated November 15, 2018, page 2. The sum certain 

represents costs through August 31, 2017. Taylor asserts that it has incurred additional costs since August 31, 2017, 

and will submit an updated sum certain at a later date. 

(b) (6)
3

by Taylor or obtained independently, the relevant statutes and regulations, and ultimately denied 

the claim because Taylor failed to prove an entitlement to an act of God defense.6 The NPFC’s 

initial determination is hereby incorporated by reference.7 

II. REQUEST FOR RECONSIDERATION

The regulations implementing OPA require requests for reconsideration of an initial 

determination to be in writing and include the factual or legal grounds for the relief requested, 

along with any additional support for the claim.8 The claimant has the burden of providing all 

evidence, information, and documentation deemed necessary by NPFC’s Director to support the 

claim.9 When analyzing a request for reconsideration, the NPFC performs a de novo review of 

the entire claim submission, including any new information provided by the Claimant in support 

of its request for reconsideration. The written decision by the NPFC is final.10

On July 12, 2019, Taylor timely requested reconsideration of the NPFC’s initial 

determination.11 In its request for reconsideration, Taylor asserts that the NPFC misinterpreted 

or misapplied the definition of an act of God under OPA and that the NPFC’s interpretation is 

overly restrictive and inconsistent with the definition of an act of God as intended by Congress. 

Taylor also asserts that the NPFC should adhere to the common law definition of an act of God 

and cites to numerous maritime law decisions in which the courts have found that a natural 

phenomenon qualified as an act of God. Taylor further asserts that the NPFC’s reliance on Mr. 

James Pettigrew as a subject matter expert was misguided as he didn’t have the background or 

qualifications to proffer his opinions expressed in geotechnical engineering and geology. To 

support this position, Taylor provided numerous reports and declarations by its subject matter 

experts disputing the findings of Mr. Pettigrew. Moreover, Taylor reiterated that the waves and 

exerted seafloor pressures resulting from Hurricane Ivan meets the definition of an act of God as 

those events were a grave natural phenomenon, exceptional and unanticipated, inevitable, 

irresistible, and the effects of which could not have been prevented by the exercise of due care or 

foresight. Lastly, Taylor restated its opinion that its costs undertaken as required by the Oil and 

Gas Regulations for Operations in the Outer Continental Shelf as lessee and operator of Lease 

OCS-G 04935 should be considered removal costs as defined in the OPA.

III. METHODOLOGY EMPLOYED BY THE NPFC IN REVIEW OF TAYLOR’S CLAIM

To properly adjudicate Taylor’s claim, the NPFC hired subject matter experts (SMEs) to 

conduct independent reviews and analyses of several of Taylor’s key positions. Experts in 

meteorology, oceanography, geotechnical engineering, geology and hydrographic/geophysical 

surveys reviewed Taylor’s exhibits and obtained information independently to provide the NPFC 

an objective analysis of the information relied upon by Taylor in its claim submission. NPFC 

tasked the SMEs to review Taylor’s information for accuracy and to conduct independent 

analyses of the materials and opinions submitted with the overall objective of providing impartial 

 6 NPFC determination issued to Taylor Energy Company, LLC, dated May 14, 2019. 7 Id. 8 33 C.F.R. 136.115(d). 

9 33 C.F.R. 136.105(a).

10 33 C.F.R. 136.105(a). 11 Taylor Energy Company, LLC, Request for Reconsideration dated July 12, 2019.
4

and unbiased opinions on the information presented by Taylor in support of its claim submission. 

The SMEs contracted by the NPFC along with a summary of their findings are below:

1. Mr. James Pettigrew, Director of Operations, Ocean Energy Safety Institute, Texas A&M 

University12 was contracted to review the report prepared by Dr. Joseph Suhayda as Dr. 

Suhayda had provided Sohio Petroleum Company (Sohio) the 100-year storm design 

wave for the fixed oil platform MC-20A as well as the expected bottom pressures that 

would be exerted by the 100-year design storm at and around the MC-20 Platform site.13 

In addition, Mr. Pettigrew was tasked to conduct an independent analysis of the 

Mississippi Canyon Block 20, the weather associated with Hurricane Ivan, the weather 

associated with hurricanes prior to Ivan, and the experts relied upon by Dr. Suhayda in 

the preparation of his report.14 Mr. Pettigrew’s report was cited in the NPFC’s initial 

determination and is hereby incorporated by reference.15 Additionally, Mr. Pettigrew was 

provided the opportunity to respond to the objections raised by Taylor in its request for 

reconsideration and are addressed in the NPFC’s Analysis of Taylor’s Request for 

Reconsideration.16

2. Norwegian Technical Institute (NGI) was contracted to review and provide opinion to the 

design and subsequent failure of the MC-20A platform during Hurricane Ivan.17 To 

assist in its tasking, NGI subcontracted the American Bureau of Shipping Group 

Consulting, Inc. (ABS) to review the MC-20A jacket structure and provide an opinion on 

whether the structure would have stayed intact under the action of Hurricane Ivan 

hindcast loadings (independent from any consideration of foundation failure), and to 

evaluate the fatigue life of the MC-20A jacket structure after its 20 years in service. NGI 

also reviewed the weather associated with all of the hurricanes/tropical storms that passed 

through the Gulf of Mexico during calendar years 2001-2004, that could have caused any 

significant sediment movement in the areas upslope of the MC-20 platform site or 

significant sediment accumulation on the mudlobe crests off the platform, including 

Hurricane Ivan.

NGI performed an independent analysis of slope stability and capacity of the MC-20A 

platform pile foundation with a review team that included a professional senior 

consultant, a senior geotechnical engineer, a technical director and the president of NGI’s 

Houston office.18 NGI reviewed and relied upon several documents provided by Taylor 

 12 Resume for Mr. James Charles Pettigrew. 13 Exhibit 20 of Taylor Energy Company, LLC, act of God claim submission dated November 15, 2018, pages 8-9. 14 NPFC Task Order 1 Analysis of Wave Conditions at Mississippi Canyon Block 20 during Hurricane Ivan undated 

and provided in an email to CG contracting dated March 26, 2019. In follow-up correspondence with CG 

contracting, this task order was renamed from task order 1 to task order 8.

15 NPFC determination issued to Taylor Energy Company, LLC, dated May 14, 2019. See also, NPFC Task for the 

Analysis of Wave Conditions at Mississippi Canyon Block 20 during Hurricane Ivan prepared by Mr. James 

Pettigrew dated April 1, 2019.

16 NPFC Task Order 14 Response to comments made by Taylor Energy specific to the Analysis of Wave Conditions 

at Mississippi Canyon Block 20 prepared by Mr. James Pettigrew dated August 9, 2019. 17 NPFC Task Order 2 Design and Analysis Failure of the MC-20A Platform during Hurricane Ivan undated and 

provided in an email to CG contracting dated February 12, 2019. In follow-up correspondence with CG contracting, 

this task order was changed from task order 2 to task order 9. 18 Platform MC-20A Platform Failure prepared by NGI dated June 25, 2019, page 7.
5

in support of its claim submission19 as well as information obtained independently to 

complete its tasking. NGI concluded that the MC-20A platform toppled because the 

supporting piles were over-loaded laterally by a deep mudslide caused by wave loading 

of the slope located on the northwest side of the platform location. An overrunning 

mudslide that started at the top of the slope and added extra soil weight near the slope 

bottom, might have acted in combination with the above mechanism and contributed to 

slope instability and pile failure at the platform site.20 NGI’s conclusion was consistent 

with the information provided by Taylor in support of its claim submission. 

NGI reviewed the MC-20A jacket structure as well as the documents relied upon 

Taylor’s experts, in its assessment of the MC-20A platform.21 NGI concluded that the 

global strength analysis under Hurricane Ivan showed that the MC-20A jacket structure 

had the capacity to withstand the storm load induced by Hurricane Ivan and was 

consistent with the information provided by Taylor in support of its claim submission.22 

NGI researched the hurricanes and tropical Storms that passed through the Gulf of 

Mexico for calendar years 2001-2004 including Hurricane Ivan that could have caused 

any significant sediment movement in the areas upslope of the MC-20 platform site or 

significant sediment accumulation on the mudlobe crests off the platform. NGI 

concluded that there were at least seven storms that could have contributed to significant 

sediment movement in the areas upslope of the MC-20 platform site or significant 

sediment accumulation on the mudlobe crests in the area of the platform. Specifically, in 

the Gulf of Mexico tropical cyclone population of 2001-2004, there was at least one 

instance a season that a storm could have impacted the sedimentation conditions of the 

Mississippi Canyon region; one storm in 2001 (Allison), four storms in 2002 (Bertha, 

Hanna, Isidore, Lili), one storm in 2003 (Bill), and one storm in 2004 (Ivan). Further, in 

 19 The documents provided to NGI in support of this task order included Taylor Exhibits 25-27 - Geology & 

Engineering Analysis Block 20 Mississippi Canyon Area Studies prepared by Woodward-Clyde Oceaneering 

Volumes 1-3; Taylor Exhibit 38 - Assessment of Seafloor Movements MC-20A Structure, MC-20 Gulf of Mexico 

Report #020-5381-1 prepared by Fugro McClelland Marine Geosciences dated January 24, 2005; Taylor Exhibit 39 

- Geotechnical Investigation Platform A MC-20 Gulf of Mexico Report #020-5381-2 prepared by Fugro McClelland 

Marine Geosciences dated January 7, 2005; Exhibit 44 - Seafloor Failure Analysis Platform A MC-20 Gulf of 

Mexico Report #020-5381-7 prepared by Fugro McClelland Marine Geosciences dated February 21, 2006; Exhibit 

51 - Platform Capacity Assessment with Original Design Soil prepared by FuryConsult, LLC, Revision 1 dated 

October 28, 2016; Exhibit 28 - Assessment of Design and Analysis of Failure for Mississippi Canyon 20 Platform 

prepared by Gilbert and Nodine dated February 15, 2018.

20 Platform MC-20A Platform Failure prepared by NGI dated June 25, 2019, page 3. 21 The documents provided to ABS in support of this task order included Taylor Exhibits 25-27 - Geology & 

Engineering Analysis Block 20 Mississippi Canyon Area Studies prepared by Woodward-Clyde Oceaneering 

Volumes 1-3; Taylor Exhibit 38 - Assessment of Seafloor Movements MC-20A Structure, MC-20 Gulf of Mexico 

Report #020-5381-1 prepared by Fugro McClelland Marine Geosciences dated January 24, 2005; Taylor Exhibit 39 

- Geotechnical Investigation Platform A MC-20 Gulf of Mexico Report #020-5381-2 prepared by Fugro McClelland 

Marine Geosciences dated January 7, 2005; Exhibit 44 - Seafloor Failure Analysis Platform A MC-20 Gulf of 

Mexico Report #020-5381-7 prepared by Fugro McClelland Marine Geosciences dated February 21, 2006; Exhibit 

51 - Platform Capacity Assessment with Original Design Soil prepared by FuryConsult, LLC, Revision 1 dated 

October 28, 2016; Exhibit 28 - Assessment of Design and Analysis of Failure for Mississippi Canyon 20 Platform 

prepared by Gilbert and Nodine dated February 15, 2018. Additionally, the documents relied upon by Fury Consult 

in the preparation of their report were provided to the NPFC by Taylor on May 21, 2019.

22 Assessment of Design and Fatigue Analysis for Mississippi Canyon 20 Platform prepared by ABS dated July 16, 

2019, page 5.
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this demonstrated environment of subaqueous sediment instabilities, the annual 

interaction of tropical cyclones only further increases the uncertainty of bottom 

conditions throughout this dynamic deltaic region. In the fifteen years since Hurricane 

Ivan, there have only been six seasons when a tropical cyclone did not affect the 

Mississippi River delta region.23

3. GZA GeoEnvironmental, Inc. (GZA) was contracted to review the weather (metocean) 

conditions that existed during Hurricane Ivan at the location of the MC-20A oil platform 

to include Hurricane Ivan wave characteristics, Hurricane Ivan wave parameter 

probabilities, wave characteristics of pre-1983 Gulf of Mexico hurricanes, and failure 

mechanisms.24 GZA utilized a review team that included SMEs in hurricane 

meteorological parameter statistics for the Gulf of Mexico, wind-wave generation 

associated with Gulf hurricanes, wind-wave conditions associated with Hurricane Ivan 

and prior hurricanes, prediction of wave-induced bottom stresses, geomorphology and 

geology of the Mississippi Canyon, and submarine mass failures.25 GZA conducted 

extensive independent research and relied upon documents provided by Taylor in support 

of its claim submission or provided by Taylor at the request of the NPFC.26 While many 

of GZA’s conclusions were consistent with the information provided by Taylor in support 

of its claim submission, there were several areas in which GZA’s conclusions varied from 

Taylor’s. These included Hurricane Ivan’s recurrence intervals, the relevance of 

Hurricane Camille in the design of the MC-20A platform, the ability to successfully 

hindcast the waves associated with Hurricane Ivan, and the reliability of Dr. Suhayda’s 

design storm wave and wave period used in the design of the MC-20A platform; all of 

which are further addressed below.

In addition to its reports, GZA provided a presentation to the NPFC in which its results 

were explained and questions were answered specific to the findings in its report.27

 23 NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 during Hurricane Ivan, Task 

1, item (i), and Task 2, item (d) prepared by Mr. James Pettigrew dated May 15, 2019, page 27.

24 NPFC Task Order 10 Analysis of Weather Conditions at Mississippi Canyon Block 20 during Hurricane Ivan 

undated and provided in an email to CG contracting dated April 4, 2019.

25 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August, 2019, Part 1 page 3.

26 The documents provided to GZA in support of this task order included Taylor Exhibit 20 - Dr. Joseph Suhayda 

dated February 5, 2018; Dr. George Forristal hindcast data specific to the computed wave heights, periods, and 

bottom pressure amplitudes that occurred at MC-20 during Hurricane Ivan provided by Taylor Energy Company, 

LLC, on April 25, 2019; Taylor Exhibits 25-27 - Geology & Engineering Analysis Block 20 Mississippi Canyon 

Area Studies prepared by Woodward-Clyde Oceaneering Volumes 1-3; Taylor Exhibit 38 - Assessment of Seafloor 

Movements MC-20A Structure, MC-20 Gulf of Mexico Report #020-5381-1 prepared by Fugro McClelland Marine 

Geosciences dated January 24, 2005; Taylor Exhibit 39 - Geotechnical Investigation Platform A MC-20 Gulf of 

Mexico Report #020-5381-2 prepared by Fugro McClelland Marine Geosciences dated January 7, 2005; Exhibit 44 -

Seafloor Failure Analysis Platform A MC-20 Gulf of Mexico Report #020-5381-7 prepared by Fugro McClelland 

Marine Geosciences dated February 21, 2006; Exhibit 51 - Platform Capacity Assessment with Original Design Soil 

prepared by FuryConsult, LLC, Revision 1 dated October 28, 2016; Exhibit 28 - Assessment of Design and Analysis 

of Failure for Mississippi Canyon 20 Platform prepared by Gilbert and Nodine dated February 15, 2018

27 GZA power point entitled “Mississippi Canyon Block 20 Hurricane Ivan Surface Weather Conditions” dated and 

presented August 14, 2019.
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4. David Evans and Associates (DEA) was contracted to review and compare sonar data and 

reports from field investigations conducted in and around the MC-20A platform between 

2004 and 2019 with a tasking to provide an expert opinion as to the actual source of 

discharge from the MC-20 and to objectively interpret sonar survey data and reports 

generated by field investigations conducted in and around the MC-20 between 2004 and 

2019.28 DEA conducted extensive independent research and relied upon several surveys 

funded by Taylor and submitted as part of its claim submission or provided at the request 

of the NPFC.29 In addition, DEA coordinated with NOAA’s National Center for Coastal 

Ocean Science Laboratory (NCCOS) to review sonar surveys conducted or funded by 

other Federal agencies associated with the Taylor response.30 Coordinating with NCCOS 

allowed DEA the opportunity to analyze raw sonar data to better provide a 

comprehensive and unbiased opinion as to the source of discharge at the MC-20 and to 

objectively compare those surveys to the surveys conducted by Taylor.31 However, 

NPFC did not closely analyze these expert reports and the underlying data in this act of 

God determination because it is undisputed that discharges of oil from Taylor’s platform 

amounted to an incident under OPA. 

IV. LEGAL ANALYSIS OF TAYLOR’S REQUEST FOR RECONSIDERATION32

 As a preface to the more detailed discussion below, NPFC would like to address a couple of 

general concerns Taylor raises in its request for consideration and to clarify the record. One 

concern is that NPFC did not consider certain facts or legal arguments that Taylor raised in its 

original submission. This is not accurate. NPFC diligently reviewed and considered the over 

13,200 pages of material that comprised Taylor’s original claim submission. As NPFC explained 

 

28 NPFC Task Order 11 Taylor Energy Sonar Survey Comparison provided in an email to CG contracting dated 

April 26, 2019.

29 The documents provided to DEA in support of this task order included Taylor Exhibit 37 - Oceaneering 

International, Inc. / Fugro Chance, Inc. MC-20 Partial Debris Survey map sheet dated September 29, 2004; Taylor 

Exhibit 46 - Fugro Excavation Project Report #0201-6235-1 dated December 14, 2007; Taylor Exhibit 64 - C&C 

Technologies Downed “A” Platform Survey Report #150477 dated June 5, 2015; C&C Technologies, Inc. Side Scan 

Sonar Site Survey Report dated July 30, 2010 with Side Scan Sonar Mosaic Maps, Fugro Side Scan Sonar Survey 

Report #2412-1075 dated August 31, 2012, and Navistry Corporation power point presentation dated October 31, 

2012, provided by Taylor on February 27, 2019; and C&C Technologies, Inc. Site Specific Survey Report dated 

November 15, 2006 with Side Scan Sonar Mosaic Map dated November 3, 2006, provided by Taylor on May 30, 

2019. The NPFC independently obtained the Oceaneering International, Inc. / Fugro Chance, Inc. MC-20 Mass 

Spectrometry Survey Project Sector Scanning Sonar Survey map sheet dated August 28, 2008, from Mr. 

, BSSE, on March 12, 2019. 30 The information provided by NOAA NCCOS to DEA included the raw multibeam sonar bathymetry data, raw 

multibeam and split-beam sonar water column data, and raw subbottom profiler data acquired by NOAA research 

vessel OKEANOS EXPLORER on April 19-20, 2012, during Leg 3 of mission EX1202 as well as processed sonar 

images; the available reports associated with a Bureau of Safety and Environmental Enforcement (BSEE) survey 

conducted in and around the MC-20A platform in October 2017; the raw and processed multibeam sonar bathymetry 

data, subbottom profiler data, and seismic data associated with a United States Geological Survey (USGS) survey 

conducted in and around the MC-20A platform in May 2017; the raw and processed multibeam sonar and split-beam 

echosounder data associated with a NOAA National Center for Coastal and Ocean Science (NCCOS) survey 

conducted in and around the MC-20A platform in September 2018; and the processed and georeferenced point cloud 

data associated with a Couvillion Group survey conducted in and around the MC-20A platform in May 2019. 31 Taylor Energy MC-20A Sonar Survey Comparison prepared by David Evans and Associated dated June 2019. 32 The legal analyses provided in the original determination remain valid and applicable to this determination and are 

incorporated herein. 

(b) (b) (6)

(6)
8

in its original determination, “Taylor raises other issues in its claim that NPFC considered but 

determined did not warrant discussion in this determination.” For example, Taylor provided a 

detailed history of offshore oil and gas development. While NPFC considered that information, 

it did not believe it warranted discussion in its claims determination on whether the act of God 

defense applied. Another concern Taylor raises is that the NPFC impermissibly added elements 

such as “unprecedented” to the statutory definition of “act of God”. NPFC acknowledges its use 

of “unprecedented” in its determination but notes it only did so in response to Taylor’s 

arguments. Taylor uses the term “unprecedented” on 22 separate occasions in its original claim 

submission to describe the winds, waves, and other characteristics associated with Hurricane 

Ivan. In responding, the NPFC uses the term three times, and on each occasion to either quote a 

judicial decision or explain a case or a series of cases that preceded it. To be clear, the NPFC did 

not impermissibly add any elements to the statutory defense when it adjudicated the original 

claim. 

Background

The Oil Pollution Act of 1990 (OPA) established a strict liability scheme for owners and 

operators of vessels that discharge oil into or upon the navigable waters and adjoining shorelines 

of the United States.33

OPA designates vessel owners and operators as “responsible parties” for the discharges.34 A 

“responsible party” is liable for removal costs and damages except under very narrow 

circumstances.35 One such circumstance is an “act of God”; a “responsible party” is not liable 

for removal costs or damages if the “responsible party” establishes, by a preponderance of the 

evidence, that the discharge of oil and resulting damages or removal costs were caused solely by 

an “act of God.”36 An “act of God” means an “unanticipated grave natural disaster or other 

natural phenomenon of an exceptional, inevitable, and irresistible character the effects of which 

could not have been prevented or avoided by the exercise of due care or foresight.”37

In order to be successful under an act of God claim, Taylor must establish, by a 

preponderance of the evidence, that the discharge of oil and resulting damages or removal costs 

were caused solely by an “act of God.”38 More specifically, it must establish that each of the 

elements of the definition of act of God have been met by a preponderance of the evidence. The 

NPFC has determined after a careful review of the materials submitted by Taylor, its 

independent review of other relevant materials, and upon application of the statutes and case law, 

that the facts of this case do not support an act of God defense under OPA.

Taylor’s general legal positions

 33 See 33 U.S.C. § 2702(a); Cf. Reliance Insurance Co. v. United States, 677 F.2d 844, 849 (Ct. Cl. 1982)(Congress 

decided in the Clean Water Act that a system of strict liability with specified limits best served the public interest by 

properly placing the cost for an oil spill on the responsible party).

34 33 U.S.C. § 2701(32). 35 33 U.S.C. § 2703(a). 36 33 U.S.C. § 2703(a)(1) (emphasis added). 37 33 U.S.C. § 2701(1). 38 33 U.S.C. § 2703(a)(1) (emphasis added)
9

Taylor suggests several ways for the NPFC to interpret the OPA act of God defense in its 

submissions to the NPFC. It primarily argues the common law and general maritime law should 

be used to analyze the statute, not the precedent under OPA, nor the case law under any other 

similarly worded environmental remediation statute. In defense of this position, it suggests that 

the jurisprudence interpreting the OPA act of God language is incorrect. Taylor further argues 

that, notwithstanding the current case law, the NPFC should not consider legislative history 

when analyzing the statute. NPFC disagrees and generally addresses Taylor’s positions below. 

Applicability of Common Law

Taylor claims that common law and general maritime law precedents should control NPFC’s 

interpretation of the “act of God” defense under OPA. NPFC disagrees. Because an act of God 

defense under the common law or general maritime law arises in a different context than this 

OPA claim, Taylor’s cases do not control here. Unlike the common law and general maritime 

law, OPA only allows for three exceptions to its strict liability. Importantly, OPA’s defenses are 

exclusive.39 For example, principles of equity should not lessen the scope of a responsible 

party’s liability under OPA. If a responsible party cannot satisfy the statutory elements of an 

OPA defense, then the responsible party is strictly liable for the oil spill and any act of God 

claim against the OSLTF under 33 U.S.C. § 2708 must be denied.

Taylor’s argument that the NPFC should construe the OPA “act of God” defense to liability 

under general maritime common law is misplaced. All three environmental statutes are strict 

liability schemes in which the responsible party for an oil spill must pay removal costs, subject to 

narrow defenses.40 Exceptions to liability for pollution incidents must be narrowly 

 39 Should there be any doubt about the fact that Congress intended OPA’s statutory defenses to be exclusive, OPA's 

legislative history explicitly emphasizes the rule: “The Committee emphasizes that the defenses specifically 

enumerated are intended to be the only defenses available to a responsible party and no other defenses are 

allowed to the strict, joint and several liability which is established in the bill. ... [d]efenses available to a responsible 

party are limited to those specifically enumerated in the bill.” House Report 101-242, Part 1, pp. 32, 39, Committee 

on Public Works and Transportation (September 18, 1989) (emphasis added). See also e.g., Cal. ex rel. Cal. Dept. of 

Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 672 (9th Cir. 2004) (“Every court of appeals that has 

considered the precise question whether [CERCLA] permits equitable defenses has concluded that it does not, as the 

statutory defenses are exclusive.”); B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir. 1996) (defenses in strict 

liability environmental statutes like CERCLA are deemed to be the exclusive defenses available under the statute); 

Town of Munster Ind., v. Sherwin-Williams Co., 27 F.3d. 1268, 1270 (“CERCLA does not permit equitable 

defenses); Blasland, Bouck & Lee, Inc. v. City of North Miami, 283 F.3d 1286, 1304 (11th Cir. 2002)(finding 

CERCLA does not permit equitable defenses because the defenses permitted are exclusive); Velsicol Chem. Corp. v. 

Enenco, Inc., 9 F.3d 524, 530 (6th Cir. 1993)(same); United States v. Timmons Corp., No. 103-cv-00951, 2006 WL 

314457, at *10 (N.D.N.Y. Feb. 8, 2006) (same); Richmond, Fredericksburg and Potomac R.R. v. Clarke, No. 90-cv00336, 1991 WL 321033, at *5 (E.D. Va. Jan. 22, 1991) (“defenses to CERCLA actions are limited to those 

defenses that the statute itself specifies.”). Cf., Hall Street Assocs., L.L.C v. Mattel, Inc., 552 U.S. 576 

(2008) (finding that the enumerated statutory grounds for vacatur and modification under the Federal Arbitration Act 

were exclusive). 

40 United States v. Mizhir, 106 F. Supp. 2d 124, 126 (D. Mass. 2000) (absent any defense, OPA imposes strict 

liability upon the responsible party for oil removal costs) citing MetLife Capital Corp. v. M/V Emily S., 132 F.3d 

818, 820-1 (1st Cir. 1997); Reliance Insurance Co. v. United States, 677 F.2d 844, 849 (Ct. Cl. 1982) (Congress 

decided in the CWA that a system of strict liability with specified limits best served the public interest by properly 

placing the cost for an oil spill on the responsible party); United States v. Stringfellow, 661 F. Supp. 1053, 1061 

(C.D. Cal. 1987) (CERCLA imposes strict liability on responsible parties subject only to affirmative defenses).
10

construed.41 As NPFC explained in its original determination, the act of God defense is more 

broadly applied in the common law tort and maritime contexts because generally the issue du 

jure in those cases is whether the court should find fault, or should it absolve fault because of the 

alleged “act of God”. In the environmental liability context, the act of God defense is construed 

narrowly because fault is generally of no moment to the courts; and thus, often the only question 

for the court is whether an otherwise responsible party should be absolved of all liability by a 

Congressionally-consciously enacted, very narrowly tailored, exception in the law. Thus, in the 

context of this OPA act of God claim, the NPFC does not view the case law cited by Taylor as 

persuasive authority. 

Additionally, OPA preempts or displaces both the federal common law the general maritime 

law during NPFC’s adjudication of this claim against the OSLTF.42 When it imposes liability 

against a responsible party, like Taylor, OPA explicitly controls notwithstanding any federal 

common law or general maritime law that would otherwise limit or restrict its strict liability.43 A 

review of the Sabine Towing44 case is particularly enlightening. Sabine Towing involved the 

Clean Water Act, whose liability standard and limited remedies OPA borrows. Similar to Taylor, 

the plaintiff in that case claimed entitlement to act of God defense. At the outset of the litigation, 

the trial court, similar to Taylor, suggested that the proper way to analyze the act of God defense 

was under the common law.45 However, while the case was progressing, the Supreme Court 

issued an opinion directly related to this issue.46 Ultimately, based on the Supreme Court 

jurisprudence, the Sabine court reversed the trial court and decided that it was not appropriate to 

use common law when analyzing the act of God defense under the Clean Water Act.47 In 

keeping with the Supreme Court’s decision in City of Milwaukee, both the Second and Fifth 

Circuits echoed similar positions as the Sabine court, in that “we are to conclude that federal 

 41 Kyoei Kaiun Kaisha. Ltd. v. M/V BERING TRADER, 795 F. Supp. 1054 (W.D. Wa. 1991) (“The clear intent of 

Congress was to impose liability on the polluting vessel except in very rare circumstances.”) citing United States v. 

West of England Ship Owner's Mut. Protection & Indem. Ass'n, 872 F.2d 1192, 1200 (5th Cir. 1989). 42 Preemption” and “displacement” are often used interchangeably. See, e.g., Conner v. Aerovox, Inc., 730 F.2d 835, 

841 (1st Cir.1984) (using “preempt” and “displace” interchangeably in concluding that the Federal Water Pollution 

Control Act displaced federal maritime law). Technically, however, preemption refers to whether federal statutory 

law supersedes state law, while “displacement” applies when, as here, a federal statute governs a question previously 

governed by federal common law. Although in the preemption scenario, we assume that “the historic police powers 

of the States were not to be superseded by [federal law] unless that was the clear and manifest purpose of Congress,” 

displacement analysis assumes that “it is for Congress, not the federal courts, to articulate the appropriate standards 

to be applied as a matter of federal law.” City of Milwaukee v. Illinois, 451 U.S. 304, 316–17 (1981). United States 

v. American Commercial Lines, 759 F.3d 420, 426 n.1. 43 33 U.S.C. § 2702 (a) (Notwithstanding any other provision or rule of law, and subject to the provisions of this 

Act, each responsible party ... is liable for the removal costs and damages specified in subsection (b) that result 

from such incident.”)(emphasis added); See also, 33 U.S.C. § 2752 (e) (“Except as otherwise provided for in this 

Act, this Act does not affect – (1) admiralty and maritime law;”)(emphasis added); Gabarick v. Laurin Maritime 

Inc., 623 F. Supp. 2d 741, 747 (citing Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 

U.S. 1 (1981); and City of Milwaukee v. Illinois, 451 U.S. 304 (1981). 44 Sabine Towing & Transp. Co. Inc. v. United States, 666 F.2d 561 (Ct. Cl. 1981). 45 Id. at 564. (“[t]he order cited in the first paragraph of this opinion suggested resort to the common-law meaning of 

“act of God” to help in determining how the phrase should be applied in section 1321 cases.”).

46 City of Milwaukee v. Illinois, 451 U.S. 304 (1981). 47 Id. (“We now believe that common-law cases on acts of God, to the extent that they embody judicial decisions on 

allocating the burden of mishap, should not be used in determining the allocation that Congress intended in section 

1321.”) citing the inappropriateness of using judicially created rules of decision in areas where Congress has 

legislated. City of Milwaukee v. Illinois, 451 U.S. 304 (1981)(emphasis added).
11

common law has been preempted as to every question to which the legislative scheme spoke 

directly, and every problem that Congress has addressed.”48 Consistent with these authorities, the 

NPFC declines to rely on the common law and general maritime law case law cited by Taylor. 

Interpretation and Application of the OPA “act of God” Provision

The first step in interpreting a statute is examining the statutory language.49 When the 

meaning of statutory language is plain, the reviewing court must abide by it; the court may 

depart from the plain meaning only to avoid a result “so bizarre that Congress ‘could not have 

intended’ it.”50 Under OPA, an “act of God” means “an unanticipated grave natural disaster or 

other natural phenomenon of an exceptional, inevitable, and irresistible character the effects of 

which could not have been prevented or avoided by the exercise of due care or foresight.”51 Apex 

Oil Company v. United States was the first case to analyze this defense specifically under OPA.52 

When interpreting various OPA provisions courts have routinely looked to interpretations of 

similar Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)53

and the Clean Water Act (CWA)54provisions.55 Not surprisingly, the Apex court did the same. 

The court construed the statutory language of OPA’s act of God defense in the context of similar 

defenses56 in CERCLA and the CWA. In doing so, it concluded:

Section 101(1) of CERCLA identically defines the term “act of 

God” as “an unanticipated grave natural disaster or other natural 

phenomenon of an exceptional, inevitable, and irresistible character, 

 48 United States v. M/V BIG SAM, 681 F.2d 432, 442 (5th Cir. 1982)(quoting In re Oswego Barge Corp., 664 F.2d 

327, 344 (2nd Cir. 1981). 49 Uniroyal Chemical Co., Inc. v. Safewav Transportation. Inc., 160 F.3d 238, 244 (5th Cir. 1998) citing Greyhound 

Corp. v. Mt. Hood Stages. Inc., 437 U.S. 322, 330, (1978)). 50 Id. 51 33 U.S.C. § 2701(1). 52 208 F.Supp.2d 642 (E.D. La. 2002). 53 42 U.S.C. §§ 9601-9675. 54 33 U.S.C. §§ 1251-1387. 55 See, e.g., International Marine Carriers v. Oil Spill Liability Trust Fund, 903 F. Supp. 1097, 1102-3 (S.D. Tex. 

1994) (looking to CERCLA to interpret third-party defense to liability in a cost-recovery action under 

OPA); Plantation Pipeline Co. v. Oil Spill Liability Trust Fund, 47 E.R.C. 1598, 1602 (N.D. Ga. 1998) (adopting 

CWA definition of “waters of the United States” to determine whether spill threatened navigable waterway under 

OPA); United States v. Mizhir, 106 F. Supp. 2d 124, 126 (D. Mass. 2000) (adopting the CWA definition of 

“navigable waters” to determine applicability of OPA); United States v. J.R. Nelson Vessel, 1 F. Supp. 2d 172, 176 

n.2 (E.D.N.Y. 1998) (OPA “Act of God” language described as analogous to CERCLA language), citing U.S. v. 

Barrier Indus., Inc., 991 F. Supp. 678 (S.D.N.Y. 1998) (prolonged cold spell not “Act of God” under CERCLA). 56 The “act of God” provision under OPA is very similar to the “act of God” provision under the CWA and is 

exactly the same as the “act of God” provision under CERCLA. An “act of God” under OPA is an “unanticipated 

grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character the 

effects of which could not have been prevented or avoided by the exercise of due care or foresight.”56 Under the 

CWA, an “act of God” is “an act occasioned by an unanticipated grave natural disaster.”56 Like OPA, a CERCLA 

“act of God” is an “unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, 

and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care 

or foresight.”
12

the effects of which could not have been prevented or avoided by 

the exercise of due care or foresight.”57

. . . . 

Although there have been few, if any, cases construing the OPA 

definition of “act of God,” there is a substantial body of law 

interpreting that term pursuant to the CWA, 33 U.S.C. § 1251 and 

CERCLA, 42 U.S.C. § 9607.58

Moreover, the Apex court looked to the legislative history to ensure it was interpreting the 

statute as Congress had intended:

Congressional intent is clearly that the “exceptional natural 

phenomenon” (i.e., the “act of God”) defense be construed as much 

more limited in scope than the traditional common law “act of God” 

defense. The discharger's burden of proof on the defense of 

“exceptional natural phenomena” is much more onerous than that 

required for common law or traditional “act of God” defense. The 

legislative history of CERCLA includes the following explanation 

regarding the singular “defense for exceptional natural phenomena”: 

The defense for the exceptional natural phenomenon is similar to, 

but more limited in scope than, the traditional ‘act of God’ defense. 

It has three elements: the natural phenomenon must be exceptional, 

inevitable, and irresistible. Proof of all three elements is required for 

successful assertion of the defense. The ‘act of God’ defense is 

more nebulous, and many occurrences asserted as ‘acts of God’ 

would not qualify as ‘exceptional natural phenomenon.’ For 

example, a major hurricane may be an ‘act of God,’ but in an 

area (and at a time) where a hurricane should not be 

unexpected, it would not qualify as a ‘phenomenon of 

exceptional character.’59

 57 42 U.S.C. § 9601(1). See, United States v. Barrier Industries, Inc., 991 F.Supp. 678 (S.D.N.Y.1998) (spills of 

hazardous substances caused by bursting pipes following unprecedented cold spell not an “act of God” within the 

meaning of CERCLA so as to absolve principal of bankrupt corporate owner of waste site from liability for response 

costs given other factors antedating cold weather which contributed to the spills); United States v. M/V SANTA 

CLARA I, 887 F.Supp. 825 (D.S.C.1995) (“loss of containers of arsenic trioxide overboard resulting from storm not 

‘act of God’ within the meaning CERCLA where weather predicted by weather service was known to captain and 

crew prior to their departure, and in light of bad weather crew was directed to take extra precautions to insure vessel 

and cargo were secure for rough seas”); United States v. Stringfellow, 661 F.Supp. 1053 (C.D.Cal.1987) (heavy 

rainfall not an exceptional natural phenomenon within the meaning of CERCLA's “act of God” defense to payment 

of response cost incurred as a result of release of hazardous waste from toxic waste disposal site, where rains were 

foreseeable based on normal climactic conditions, and where harm caused by rain could have been averted by 

properly designed drainage canals).

58 Apex Oil Co. v. United States, 208 F. Supp. 2d 642, 652-54 (E.D. La. 2002). 59 Id. at 653 (citing H.R.Rep. 99–253(IV), reprinted in 1986 U.S.C.C.A.N. 3068, 3100 (emphasis added). 
13

Of note, the court in Apex found that the NPFC had correctly interpreted the OPA act of God 

defense when adjudicating the claim that formed the basis of the lawsuit. Additionally, it 

provided detailed analysis regarding the context in which to view the defense in OPA by 

comparing the intent, language, and defenses in OPA with those found in the CWA and 

CERCLA as well as reviewing the intent of Congress at the time OPA was enacted. NPFC 

considers this approach sound as these three statutes comprise the major federal environmental 

statutes that occupy the law in this area, and are necessarily intertwined in their application. 

A synopsis of the elements of the defense60

a. Grave Natural Disaster or Other Natural Phenomenon.

An “act of God” defense requires a natural disaster or phenomenon to be of grave 

proportions. As defined in Sabine Towing, a disaster is “a sudden calamitous event bringing great 

damage, loss, or destruction.”61 In Sabine Towing, there was no “act of God” defense where a 

vessel struck debris that entered the water because of a spring flood (i.e., an annual event). 

“Congress restricted its definition to ‘grave’ disasters making clear that the occurrence must be 

of great magnitude before it falls within the liability exception of section 1321” of the CWA.62

Congress intended that shippers absorb the costs of cleaning up oil spilled when they decide to 

conduct normal navigation in conditions known to be dangerous.63

In United States v. Stringfellow, extremely heavy rains were not a CERCLA “act of God.” 

Water from heavy rains on several occasions flooded acid pits to overflow, releasing 

contaminated water into a nearby community. The heavy rains and floods were not a natural 

disaster or ‘exceptional’ phenomena to which the narrow “act of God” defense applied.64

b. Unanticipated

To constitute an act of God an event or occurrence must be unanticipated. An “act of God 

encompasses ... [o]nly those acts about which the owner could have had no foreknowledge, could 

have made no plans to avoid, or could not predict.”65 In Liberian Poplar Transports, a severe 

thunderstorm was not a CWA “act of God.” Weather forecasters provided a warning one-half 

hour before the storm passed over a vessel. The storm could have been anticipated if the crew 

had monitored the weather broadcast. Whether the crew actually anticipated the storm was 

irrelevant because they clearly could have anticipated it and taken necessary precautions.66

 60 A more comprehensive analysis of the elements of the defense is found in the original determination. For 

efficiency, only a brief synopsis is included here. 

61 666 F.2d 561, 565, n.5 (Ct. Cl. 1981). 62 Id. at 565. 63 Id. 64 661 F. Supp. 1053, 1061 (C.D. Cal. 1987). 65 Liberian Poplar Transports, Inc. v. United States, 26 Cl. Ct. 223, 226 (1992). 66 Id. (The court noted that “the [CWA] and the legislative history do not subscribe to a subjective test for 

anticipation.”)
14

Travelers Indemnity Co. v. United States discussed issues of third-party liability67 and taking 

precautions against a known hazard - vandals - at a facility.68 The discharge of oil at issue, the 

result of vandals knocking over diesel fuel pumps, could have been prevented had the facility 

owner taken better precautions against vandals.69 “[C]onditions being unfortunately what they 

are today, vandals must always be expected.”70 The facility owner's omission of precautions that 

could have prevented the discharge precluded recovery of removal costs under the CWA.

Both Liberian Poplar Transports and Travelers Indemnity Co. are similar to the platform at 

MC-20A in that the victimized vessel and facility were passive (the vessel was moored) - the 

alleged “disaster” came upon them. And despite the fact that neither the vessel nor facility was 

able to move to avoid the incident, neither in Liberian Poplar Transports nor Travelers 

Indemnity Co. did the discharger qualify for a defense to liability. 

c. Exceptional, Inevitable and Irresistible Character, the Effects of Which Could Not Have 

Been Prevented or Avoided by the Exercise of Due Care or Foresight.

An “act of God” must be of exceptional, inevitable and irresistible character, the effects of 

which could not have been prevented or avoided by the exercise of due care and foresight. This 

portion of the statute creates an especially high hurdle for a discharger to prove entitlement to the 

“act of God” defense. Because of the strict liability scheme of environmental statutes, courts 

have typically focused upon the foreseeability71 of the event rather than the due care of the 

discharger.72

A demonstration of due care or the absence of negligence on behalf of the discharger does 

not give rise to an “act of God” defense. The defense of “act of God” leaves open the possibility 

that a faultless owner or operator will nevertheless be held liable because of the inapplicability of 

the narrow defense.73

 67 Under the CWA (and OPA), third-party liability operates as a complete defense for the responsible party similar 

to the “act of God” defense. 

68 230 Ct. Cl. 867 (1982). 69 Id. at 869. 70 Id. 71 “The term ‘act of God’ is defined to mean an act occasioned by unanticipated grave natural disaster... [O]nly those 

acts about which the owner could have had no foreknowledge, could have made no plans to avoid, or could not 

predict would be included. Thus, grave natural disasters which could not have been anticipated in the design, 

location, or operation of the facility or vessel by reason of historic, geographic, or climatic circumstances, or 

phenomena would be outside the scope of the owner's or operator's responsibility.” Conf. Rep. No. 91- 940, 91st 

Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 2722. 72 West of England Ship Owner's Mut. Protection & Indem. Assoc., 872 F.2d at 1199, n. 13. See also, Senate Comm. 

Report, S. Rep. No. 351, 91st Cong., 1st Sess. 5-6 (1969). Although the Senate Report used the phrases “no control” 

and “beyond the control of” to refer specifically to an act of war and an act of God, the phrases give some guidance 

to the word “caused” and to the exceptions as a whole. The Senate Report further defined “beyond the control of,” 

when referring to an act of God, by stating “[a]nother area which the committee believed to be beyond the control of 

an owner or operator would be any discharge caused solely by an act of God about which the owner could have no 

foreknowledge, could make no plans to avoid, or could not predict.” This language - “no foreknowledge,” “make no 

plans to avoid,” and “could not predict”- supports the use of foreseeability as a means of setting the parameters of 

the term “caused” as used in section 1321(f)(1). 73 United States v. Tex-Tow, Inc., 589 F.2d 1310, 1315 (7th Cir. 1978) (affirming assessment of CWA civil penalty 

even though facility owner/operator exercised all due care).
15

Even if without fault, the responsible party is still “responsible” in a strict liability scheme. 

In United States v. Alcan Aluminum Corp., when two million gallons of hazardous wastes found 

their way into the Susquehanna River in Pennsylvania, the District Court determined that 

Hurricane Gloria and the associated torrential rains were not solely at fault.74 Even though 

hurricanes were unusual as far north and inland as Pennsylvania, the effects of the hurricane 

“could have been prevented or avoided by the exercise of due care or foresight.”75 

V. FACTUAL ANALYSIS OF TAYLOR’S REQUEST FOR RECONSIDERATION

When adjudicating claims against the OSLTF, the NPFC acts as the finder of fact. In this 

role, the NPFC considers all relevant evidence, including evidence provided by claimants and 

evidence obtained independently by the NPFC, and weighs its probative value when determining 

the facts of the claim. The NPFC is not bound by the findings of fact, opinions, or conclusions 

reached by other entities.76 If there is conflicting evidence in the record, the NPFC makes a 

determination as to what evidence is more credible or deserves greater weight, and finds facts 

and makes its determination based on the preponderance of the credible evidence.

In adjudicating Taylor’s claim, the NPFC has spent countless hours analyzing Taylor’s 

voluminous submissions. In order to ensure a diligent review of the information and ensure its 

understanding of the incident surrounding MC-20A, the NPFC contracted with several experts to 

provide their independent analyses of the event. NPFC carefully weighed the materials 

submitted by Taylor, the information it independently gathered and what it received from the 

contracted experts to ensure its determination was based on the preponderance of the credible 

evidence. In addition to the information discussed previously in its original determination the 

NPFC has reviewed and analyzed the following information in its determination on 

reconsideration.

Taylor’s claims of exceptional and unanticipated

Taylor asserts that the waves at the MC-20 were exceptional and unanticipated. Taylor states 

that “the waves constituted an unanticipated grave natural phenomenon of an exceptional, 

irresistible and inevitable nature that Taylor could not have reasonably anticipated waves with 

those characteristics, or taken reasonable measures to prevent or avoid the effect that those 

waves had on the seafloor.77

Taylor argues that the waves generated by Hurricane Ivan at MC-20 were exceptional 

because of the confluence of two characteristics. It states that it was the combination of the 

height of the waves and their long periods that made them exceptional and those parameters 

combined to create extraordinary pressures on the seafloor sediments at and around block MC-20 

that caused the MC-20A to fail. 

 74 United States v. Alcan Aluminum Corp., 892 F. Supp. 648, 658 n.1 (M.D. Pa. 1995). 75 Id. at 658. 76 See, e.g., Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center, 71 Fed. Reg. 

60553 (October 13, 2006) and Use of Reports of Marine Casualty in Claims Process by National Pollution Funds 

Center 72 Fed. Reg. 17574 (concluding that NPFC may consider marine casualty reports but is not bound by them). 77 Taylor Energy Company, LLC, Request for Reconsideration dated July 12, 2019, page 11.
16

In support of its argument, Taylor relies upon Dr. Suhayda's reports in which he contends 

that combined height and length of the waves created pressures on the seafloor that were more 

than twice those that the 100-year design storm wave would have produced and had a return 

interval exceeding 2,000 years. Taylor criticizes the NPFC for speculating that if more wave 

measuring devices had been in place prior to Ivan then its waves would not be considered 

exceptional and questions the NPFC for relying on scientific papers which reported that 

Hurricane Ivan did not generate "freak" waves that could not be explained by hindcasting models 

used in 2004 and refers to Dr. Suhayda's rebuttal report in which he states that in fact, none of 

those models accurately predicted the worst of Hurricane Ivan's waves. Taylor refers to Cooper 

and other authors cited by the NPFC who stated that Ivan could have been predicted using their 

models and point out that those same authors also stated that Hurricane Ivan's waves had return 

intervals measured in the thousands of years. Taylor claims that the NPFC improperly 

discredited Dr. Suhayda's 1983 design storm wave and declared that design storm waves do not 

have factors of safety because they are only one parameter employed by models to assess the 

capacity of the seafloor to withstand wave-generated bottom pressures. Taylor took exception to 

the NPFC’s claim that Dr. Suhayda did not consider the failure of the seafloor beneath Shell Oil 

Companies platform at SP70 during Hurricane Camille and questioned the NPFC’s reference to 

mudflow deposition in and around the MC-20 area before the MC-20A platform was built citing 

that the NPFC was confusing a mudflow with a seafloor failure. Lastly, Taylor criticizes the 

NPFC for citing the statistics regarding the frequency of hurricanes in the Gulf of Mexico as 

Taylor did not dispute that hurricanes were an anticipated occurrence in the Gulf of Mexico but 

refer to Hurricane Ivan as producing the tallest and longest waves ever measured in the Gulf of 

Mexico.78

Independent Subject Matter Expert Analysis

Hurricane Ivan was not a rare event in terms of its intensity (maximum winds and/or 

minimum central pressure) and other standard meteorological parameters within the Gulf of 

Mexico which is considered to be one of the most conducive environments in the world to 

generate severe tropical cyclones. A calculated recurrence interval for a storm with intensity 

similar to Hurricane Ivan within the entire Gulf of Mexico is approximately 5 to 10 years. A 

calculated recurrence interval for a storm with intensity similar to Hurricane Ivan within an 80 

nautical mile radius of the MC-20A platform is approximately 25 to 50 years. And a calculated 

recurrence interval for a storm with intensity similar to Hurricane Ivan in the general vicinity 

(i.e., per degree or 60 nautical miles) of the MC-20A is approximately 70 to 140 years.79 

Similarly, GZA refutes Dr. Suhayda’s claim that the recurrence interval of Hurricane Ivan waves 

exceeded 2,000 years as their hindcast calculations revealed that recurrence intervals of 

Hurricane Ivan generated wave conditions at the MC-20 were estimated to be on the same order 

of magnitude of 100 years based on the post-Ivan wave statistics for the Gulf of Mexico.80 GZA 

elaborated by stating that the largest observed waves and the observed and hindcast Hurricane 

Ivan wave heights at the MC-20A platform location were not unpredictable nor exceptional as 

 78 Taylor Energy Company, LLC, Request for Reconsideration dated July 12, 2019, pages 12-20. 79 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix G – Gulf of Mexico Hurricane Statistics page 1. 80 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix J – Predicted Annual Recurrence Interval of Design Wave and 

Wave Conditions at MC-20A during Hurricane Ivan page 4.
17

their hindcast modeling of Hurricane Ivan predicted wave characteristics at the MC-20A 

platform location with results that indicated maximum wave heights at MC-20A of 

approximately 93 feet to 95 feet. Analysis of observed wave data (up to approximately 2004, 

including Hurricane Ivan) by Berek et al., 2007 indicates that wave heights in similar water 

depths (as former MC-20A) of around 86 feet have recurrence intervals of about 100 years and 

wave heights similar to Hurricane Ivan’s waves have recurrence intervals on the same order of 

magnitude of 100 years. Cooper et al. (2005) concluded that... “[while] Ivan generated the 

highest waves ever measured or hindcast in the Gulf of Mexico... [it] does not appear to have 

generated any ‘freak’ conditions unexplainable by present hindcast methods or physical 

understanding of hurricane winds and waves. ... [h]ence, the extreme waves generated by Ivan 

do not appear to be an unexpected event.”81

Additionally, when Dr. Suhayda selected his design wave height and period values for the 

MC-20A, he assumed that these could be drawn from independent statistical distributions for 

wave height and wave period. Based upon these assumptions, Dr. Suhayda selected a design 

wave period and combined it with a pre-determined 100-year maximum wave height and used 

the combination to compute maximum bottom pressure during the storm. However, when he 

combined the probabilities of 2 random variables assumed to be independent to estimate their 

combined probability of occurrence, Dr. Suhayda ignored the fact that wave height and period 

are statistically dependent, which has been well known since Longuet-Higgins (1975).82 Dr. 

Suhayda’s original design analysis only considered a single wave condition, the design wave 

without consideration of the associated wave spectrum or joint probability parameter 

dependence. In a given sea state, there are many waves (as combinations of wave height and 

wave period) which have an equal probability of occurring but will cause much larger bottom 

pressures (up to nearly twice) than the original design wave. Bea et al. (1983) identified this 

through data collected during Hurricane Camille at the Gulf of Mexico South Pass 62 in which 

he stated that “due to the generally shorter periods associated with the maximum wave heights, 

they generally are not the waves that result in maximum bottom pressures”.83 While the 

combination selected by Dr. Suhayda might have been a good choice to compute extreme forces 

on the MC-20A platform, which is more sensitive to wave height, to conservatively estimate the 

maximum wave-induced bottom pressures, longer periods should have been selected associated 

with smaller wave heights in order to find the maximum bottom pressure during a given storm 

segment. At the time Dr. Suhayda selected his design wave and period values, all of the 

elements to make this adequately conservative design decision were available, such as the strong 

effect of the wave period on bottom pressures through pressure depth attenuation factor, linear 

 81 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Part 1 Conclusions, page 1.

82 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix K – Joint Probability Distribution of Wave Height and Wave 

Period, page 1. See also, Longuet-Higgins, M. S., 1983, On the Joint Distribution of Wave Periods and Amplitudes 

in a Random Wave Field, Proceedings of the Royal Society of London. Series A, Mathematical and Physical 

Sciences, Vol. 389, No. 1797 (Oct. 8, 1983), pp. 241-258. 83 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix N – Seafloor Bottom Pressure Summary. See also Bea at al 

1983. Bea, R., S. Wright, P. Sircar, and A.W. Niedoroda, Wave-Induced Slides in South Pass Block 70, Mississippi 

Delta, Journal of Geotechnical Engineering, 109(4), 619-644.
18

wave theory since Stokes in the 19th century, and the understanding of the joint distribution 

known since Longuet-Higgins (1975).84

As stated above, Dr. Suhayda’s original analysis only considered a single wave condition, the 

design wave in place of a design wave spectrum to predict bottom stresses. Using a design wave 

spectrum, GZA’s hindcast results indicate that the “design wave spectrum” created bottom 

pressures almost twice of those assumed for the original design of the MC-20A platform.85 In 

fact, GZA found pressures at the MC-20A platform site varying from 288 to 576 psf with an 

average of 333 psf, for wave height and wave period combinations with a 7.5% joint exceedance 

probability.86 

As demonstrated in Monte Carlo simulations, in a sea state with a 40 feet significant wave 

height and a wave period of 16.3 seconds which corresponded to the peak of Hurricane Ivan 

storm conditions, approximately 10% of the waves caused bottom pressures in excess of 400 psf. 

As such, once the correct sea state parameters were selected, none of the weather associated with 

Hurricane Ivan is considered exceptional or an “act of God”, but merely a product of the 

expected distribution of wave heights and periods combined with the definition of bottom 

pressures.87

To be clear, GZA’s Monte Carlo simulations (predicting multiple wave time series records 

based on a computed wave spectrum) based upon standard linear superposition technologies 

were perfectly able to predict the occurrence of waves such as those observed at the Marlin 

Platform and by way of validation, at the MC-20A platform. Hence, wave heights and periods at 

the MC-20A were neither unpredictable nor unprecedented, considering the sea state parameters. 

Those results originated from the wind field expected of a typical Ivan-like hurricane and were 

very similar to the values Dr. Suhayda had estimated in his rudimentary 1980s wind wave model 

had he used the 40 foot significant wave height and 11.8 second wave period as identified in his 

report.88

 In addition to using a design wave spectrum in lieu of a single wave condition design wave, 

Dr. Suhayda should have used longer periods associated with shorter waves in the standard 

distribution in order to find the likely maximum bottom pressures during a given storm. If Dr. 

Suhayda had used the 40 foot significant wave height and 11.8 second wave period as identified 

 84 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix O – Additional Discussion on the MC-20A Design Spectrum, 

page 4. See also Longuet-Higgins, M. S., 1983, On the Joint Distribution of Wave Periods and Amplitudes in a 

Random Wave Field, Proceedings of the Royal Society of London. Series A, Mathematical and Physical Sciences, 

Vol. 389, No. 1797 (Oct. 8, 1983), pp. 241-258. 85 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix N – Seafloor Bottom Pressure Summary 86 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix O – Additional Discussion on the MC-20A Design Spectrum, 

page 6.

87 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix O – Additional Discussion on the MC-20A Design Spectrum, 

page 4.

88 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix O – Additional Discussion on the MC-20A Design Spectrum, 

page 5.
19

in his design storm wave for Hurricane Carmen and properly tried multiple realizations, he 

would have identified much larger bottom pressures that this sea state could generate, based 

upon normal and not exceptional statistics. As such, Taylor’s claim that the wave forecasting 

methodology utilized in the early 1980s could not have anticipated the wave heights and periods 

produced by Hurricane Ivan’s characteristics is incorrect as Dr. Suhayda properly forecast the 

wave heights and periods in 1983 but failed to perform the correct statistical analysis.89 

Mr. Pettigrew also provided opinion on Dr. Suhayda’s single wave condition design wave. 

Specifically, he stated that the 72-foot wave measured during Hurricane Camille, by a wavemeasuring device installed on a platform, which became the deep-water design wave; was a 

single-point measurement in a tropical cyclone. There is extreme risk taken in utilizing a singlepoint measurement to characterize an environment. This is the reason that over the intervening 

years since 1969 that the sensing network within the Gulf of Mexico (and across the U.S. Outer 

Continental Shelf) has been invested in and developed. Taking a single point measurement to 

utilize as the design parameter, inherits significant risk; and we ultimately see that risk 

materialize in 2004 with the interaction of Hurricane Ivan with the environment of MC20. It is 

not a ‘guess’ that higher waves occurred.90 

Mr. Pettigrew went on to question Dr. Suhayda’s Design Environmental Data for Mississippi 

Canyon Block 20 report dated April 1983 by stating that he believed that the process of the 

environmental assessment within the report was incomplete. At the very least there was no 

discussion of the unstable subaqueous nature of the bottom in this region, quite the opposite; his 

only description in the region of his 1983 report is quite favorable; 

Thousands of offshore structures have been successfully placed in the area 

and the experience gained from this long history of operations, plus the 

results of several broad-scale environmental studies, provide a firm 

foundation for accurately determining environmental conditions for the 

design site.91

Dr. Suhayda’s report also fails to mention the loss of the Shell SP70 platform in Camille 

(1969), nor the damage to multiple pipelines throughout the years. There may have been an

assumption that the engineering company would know of these past incidents, but this 

assumption introduces unacceptable risk into the design process. Mr. Pettigrew noted that 

“critical information that could [have] further provide[d] definition to the offshore environment 

[was] not part of [the] report”.92 

GZA further provided opinion as to Hurricane Camille and the design of the MC-20A 

platform when they state that although Hurricane Camille occurred about a decade before the 

 89 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix O – Additional Discussion on the MC-20A Design Spectrum, 

page 5.

90 Response to comments made by Taylor Energy specific to the Analysis of Wave Conditions at Mississippi 

Canyon Block 20 prepared by Mr. James Pettigrew dated August 9, 2019, page 5. 

91 Taylor Exhibit 20 - Analysis of Wave Conditions at the Mississippi Canyon Area Block 20 During Hurricane 

Ivan, prepared by Dr. Suhayda, dated February 5, 2018, page 101 (emphasis added).

92 Response to comments made by Taylor Energy specific to the Analysis of Wave Conditions at Mississippi 

Canyon Block 20 prepared by Mr. James Pettigrew dated August 9, 2019, pages 6-7. 
20

MC-20A design, it was apparent that Woodward-Clyde considered it a rare event even though it 

occurred (along with other intense storms) within a relatively short period of time (14 years prior 

to 1983). As stated in Woodward-Clyde, a mudflow of 70-90 feet of thickness was regarded as a 

consequence of very infrequent, large scale disturbances of the seafloor accompanying very 

extreme surface wave conditions, such as Hurricane Camille.93 However, that failure scenario 

was not considered by Woodward-Clyde during their design of the MC-20A.94 As such, GZA 

shares Mr. Pettigrew’s opinion that Hurricane Camille’s wave characteristics were not explicitly 

taken into account during the design of the MC-20A.95

Lastly, Mr. Pettigrew expanded on his previous comments specific to bottom pressures in 

waters of less than 400 feet and the sediment instabilities of the MC-20. Specifically, he 

clarified that his statements were in relation to the industry belief that significant bottom 

pressures could not be exerted below 400 feet, but that in 1969, three platforms were lost in 325 

feet of water and that belief should be re-examined. He stated that he never meant to imply that 

there is no significant difference in the pressure that a wave would exert on the seafloor at these 

different depths. “Superficial similarities” is a misnomer when referring to the loss of (at least) 

two platforms, whose locations are within sight of each other (~8 miles); both built and operated 

in an area of well-established history of the subaqueous sediment instabilities that exist on the 

shelf off of the Mississippi River delta. The difference between a mudflow and a seafloor failure 

are certainly academically and technically important. However, the operational fact is that they 

are both dynamic movements of the ocean bottom, in this area with a history of subaqueous 

sediment instabilities (repetitiveness intended), that have caused the loss of offshore platforms. 

Enabling alignment of this knowledge across the whole design process should have been 

ensured.96

NPFC’s response

Based upon the above, the waves and resulting wave pressures associated with Hurricane 

Ivan should have been anticipated and were not exceptional. Dr. Suhayda’s methodology and 

analysis using a single wave condition model in his design wave height and period values 

combined with his lack of performing the correct statistical analysis of data have been 

questioned. As a result, experts have concluded that the methodology used in his original 

calculations was flawed. Specifically, had Dr. Suhayda used the proper methodology, the waves 

and resulting wave pressures associated with Hurricane Ivan would have been properly identified 

and provided to Woodward-Clyde for use in the design of the MC-20A platform. Hindcast 

methods as demonstrated by Monte Carlo simulations indicate that Hurricane Ivan was not a rare 

event and the waves associated with Hurricane Ivan were neither unanticipated nor exceptional. 

These simulations properly predicted the waves associated with Hurricane Ivan and confirmed 

that once the correct sea state parameters were selected, none of the weather associated with 

 93 Taylor Exhibit 25 – Geology and Engineering Analysis Block 20 Mississippi Canyon prepared by WoodwardClyde Oceaneering dated March 1983, pages 1-21–1-22. 94 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Part 5, Page 8.

95 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August, 2019, Appendix L – Summary, page 1. 96 Response to comments made by Taylor Energy specific to the Analysis of Wave Conditions at Mississippi 

Canyon Block 20 prepared by Mr. James Pettigrew dated August 9, 2019, pages 7-8. 
21

Hurricane Ivan was exceptional. Lastly, the relevance of Hurricane Camille’s wave 

characteristics were not taken into consideration by either Dr. Suhayda or Woodward-Clyde in 

their design of MC-20A platform. Had these wave characteristics been considered in the design 

criteria, the waves and resulting wave pressures associated with Hurricane Ivan also would not 

have been unanticipated nor exceptional.

In conclusion, the NPFC is persuaded by the foregoing expert analysis and credible 

hypothesis detailed within the footnoted references, which presents a compelling contradiction to 

the claimant’s submission. After completing a comprehensive review of the information 

provided by Taylor and weighing the probative value of all relevant facts, opinions and 

conclusions, including those obtained independently, the NPFC determines that Taylor has not 

demonstrated by a preponderance of the evidence that the waves associated with Hurricane Ivan

were either exceptional or unanticipated. NPFC determines, as a factual matter, that a 

preponderance of the credible evidence in this record establishes that Hurricane Ivan’s waves did 

not satisfy the exceptional or unanticipated requirements of OPA’s act of God defense. 

Taylor’s claim of inevitability and irresistibility

Taylor asserts that the waves and bottom pressure at the MC-20 were inevitable as the MC20A platform and the seafloor for which it was erected could not move out of the way of Ivan or

it’s waves and state that the NPFC's initial determination didn’t take issue with Taylor's position 

that Ivan's waves were inevitable.97 The NPFC did in fact respond to Taylor’s claim of Ivan’s 

inevitability in our original determination98 and further addresses this issue below.

Taylor also asserts that the waves and bottom pressures at the MC-20 were irresistible and 

reminded the NPFC that the MC-20A platform was designed to meet or exceed all industry 

standards for offshore platforms in the Mississippi Delta region of the Gulf of Mexico. Taylor 

criticized the NPFC for stating that the waves and bottom pressures generated by Ivan were not 

irresistible as the designers of the MC-20A platform were not well-informed about the risks 

posed by hurricanes for not taking into account the seafloor failure caused by Hurricane Camille 

at SP70; failed to model the possibility of a seafloor failure on the "most dangerous scenario;” or 

include a factor of safety in their assessment of those risks. Taylor states that those points are 

irrelevant to the question of whether the seafloor at MC-20 could withstand the pressures 

imparted on it by Hurricane Ivan's waves as those pressures caused the seafloor to fail over a 

large area and that the pressure imparted by Hurricane Ivan's waves was far greater than normal 

and that it was irresistible to the seafloor at MC-20.99

Independent Subject Matter Expert Analysis

When Dr. Suhayda selected his design wave height and period values for the MC-20A, he 

assumed that these could be drawn from independent statistical distributions for wave height and 

wave period. Based upon these assumptions, Dr. Suhayda selected a design wave period and 

 97 Taylor Energy Company, LLC, Request for Reconsideration dated July 12, 2019, pages 20-21. 98 NPFC determination issued to Taylor Energy Company, LLC, dated May 14, 2019, page 26. 99 Taylor Energy Company, LLC, Request for Reconsideration dated July 12, 2019, pages 21.
22

combined it with a pre-determined 100-year maximum wave height and used the combination to 

compute maximum bottom pressure during the storm. However, when he combined the 

probabilities of 2 random variables assumed to be independent to estimate their combined 

probability of occurrence, Dr. Suhayda ignored the fact that wave height and period are 

statistically dependent, which has been well known since Longuet-Higgins (1975).100 Dr. 

Suhayda’s original design analysis only considered a single wave condition, the design wave 

without consideration of the associated wave spectrum or joint probability parameter 

dependence. In a given sea state, there are many waves (as combinations of wave height and 

wave period) which have an equal probability of occurring but will cause much larger bottom 

pressures (up to nearly twice) than the original design wave.101 Also, if Dr. Suhayda had used the 

40 foot significant wave height and 11.8 second wave period as identified in his design storm 

wave for Hurricane Carmen and properly tried multiple realizations, he would have identified 

much larger bottom pressures that this sea state could generate, based upon normal and not 

exceptional statistics.102 

Additionally, Hurricane Camille’s wave characteristics were not explicitly taken into account 

during the design of the MC-20A.103 The large sea bottom pressures created by the waves 

associated with Hurricane Camille triggered a mass sediment movement extending to depths up 

to 90 feet below the surface of the seafloor which toppled the Shell Platform “B”. That platform 

had been installed and operated within the South Pass Block of the Mississippi Delta in 325 feet 

of water and was subsequently moved almost 100 feet down slope from its original position as a 

result of the incident.104

NPFC’s response

The effects of the waves and bottom pressures responsible for the failure of the MC-20A 

platform could have been avoided if Dr. Suhayda had used a design wave spectrum in lieu of a 

single wave condition design wave and longer periods associated with shorter waves in the 

standard distribution in order to find the likely maximum bottom pressures during a given storm. 

Similarly, the effects of the waves and bottom pressures responsible for the failure of the MC20A platform could have been avoided if Dr. Suhayda had used the correct statistical analysis in 

his design of wave height and period values. As such, had Dr. Suhayda relied a design wave 

spectrum or performed the correct statistical analysis based upon his 1983 design storm wave for 

 100 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix K – Joint Probability Distribution of Wave Height and Wave 

Period, page 1. See also, Longuet-Higgins, M. S., 1983, On the Joint Distribution of Wave Periods and Amplitudes 

in a Random Wave Field, Proceedings of the Royal Society of London. Series A, Mathematical and Physical 

Sciences, Vol. 389, No. 1797 (Oct. 8, 1983), pp. 241-258. 101 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix N – Seafloor Bottom Pressure Summary. 102 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix O – Additional Discussion on the MC-20A Design Spectrum, 

page 5.

103 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix L – Summary, page 1. 104 Wave Induced Slides in the South Pass Block 70, Mississippi Delta written by Robert B. Bea, Stephen G. Wright, 

Members, ASCE, Partha Sircar and Alan Niedoroda, page 3.
23

Hurricane Carmen, the design and construction the MC-20A platform would have been better 

suited for storm conditions as generated by Hurricane Ivan and could have resisted the waves 

and bottom pressures asserted on the sea floor during Hurricane Ivan.

Additionally, the loss of the Shell Platform “B” in 1969 and the loss of the MC-20A platform 

in 2004 are almost identical in that they occurred in areas within the Gulf of Mexico known to 

contain geohazards and were the result of mass seafloor sediment movements that occurred well 

below the surface of the seafloor resulting from elevated sea bottom pressures produced by 

hurricane force waves. Consideration and planning for mass sediment movement resulting from 

elevated sea bottom pressures associated with hurricane type conditions in a section of the Gulf 

of Mexico known for geohazards should have been paramount in the design and construction of 

the MC-20A. Had Hurricane Camille and the geohazards associated with the MC-20 been better 

considered during the design and construction of the MC-20A, the loss of the platform could 

have been avoided as the platform would have been better constructed to resist the waves and 

bottom pressures asserted on the sea floor during Hurricane Ivan.

In conclusion, the NPFC is persuaded by the foregoing expert analysis and credible 

hypothesis detailed within the footnoted references, which presents a compelling contradiction to 

the claimant’s submission. After completing a comprehensive review of information provided 

by Taylor and weighing the probative value of all relevant facts, opinions and conclusions, 

including those obtained independently, the NPFC determines that Taylor has not demonstrated 

by a preponderance of the evidence that the waves associated with Hurricane Ivan were 

inevitable or irresistible. Instead, NPFC determines, as a factual matter, that a preponderance of 

the credible evidence in this record establishes that the waves and resulting wave pressures 

associated with Hurricane Ivan were neither inevitable nor irresistible for purposes of OPA’s act 

of God defense.

Taylor’s claim of exercise of due care and foreseeability

Taylor asserts that the effects of Hurricane Ivan were not foreseeable and could not have 

been prevented by the exercise of due care of foresight. It states that the 100 year storm design 

wave was the accepted industry design standard and that Sohio retained Woodward-Clyde 

Oceaneering to assess the stability of the MC-20 seafloor, and its capacity to withstand the forces 

that would be imparted on it by a 100 year storm design wave. It disagrees with NPFC’s position 

that Sohio should have assessed the ability of the MC-20 seafloor to withstand the pressures that 

would be imparted by waves generated by a "worst case" hurricane. Taylor argues that if the 

owner of a facility designs and builds the facility to industry standards and codes that have been 

developed to account for the natural phenomenon, then the owner has presumably exercised "due 

care" to guard against the effects of the natural phenomenon and it was undisputed that Sohio's 

analysis of the strength of the MC-20 seafloor, and its subsequent design and construction of the 

MC-20A platform, met or exceeded all applicable industry standards.105

Independent Subject Matter Expert Analysis

 105 Taylor Energy Company, LLC, Request for Reconsideration dated July 12, 2019, pages 21-22.
24

As previously stated, when Dr. Suhayda selected his design wave height and period values 

for the MC-20A, he assumed that these could be drawn from independent statistical distributions 

for wave height and wave period. Based upon these assumptions, Dr. Suhayda selected a design 

wave period and combined it with a pre-determined 100-year maximum wave height and used 

the combination to compute maximum bottom pressure during the storm. However, when he 

combined the probabilities of 2 random variables assumed to be independent to estimate their 

combined probability of occurrence, Dr. Suhayda ignored the fact that wave height and period 

are statistically dependent, which has been well known since Longuet-Higgins (1975).106 Dr. 

Suhayda’s original design analysis only considered a single wave condition, the design wave 

without consideration of the associated wave spectrum or joint probability parameter 

dependence. In a given sea state, there are many waves (as combinations of wave height and 

wave period) which have an equal probability of occurring but will cause much larger bottom 

pressures (up to nearly twice) than the original design wave.107 Additionally, if Dr. Suhayda had 

used the 40 foot significant wave height and 11.8 second wave period as identified in his design 

storm wave for Hurricane Carmen and properly tried multiple realizations, he would have 

identified much larger bottom pressures that this sea state could generate, based upon normal and 

not exceptional statistics.108

The Gulf of Mexico itself is highly conducive to the generation of major hurricanes (i.e., 

hurricanes of Category 3 or greater intensity) and within the Gulf of Mexico, the presence of the 

Loop Current and eddies which provide deep reservoirs of very warm water relative to the 

Mississippi Delta region contributes to a high risk of major hurricanes that track in the vicinity of 

the former MC-20A platform. GZA’s statistical analysis of hurricane intensity, using available 

NOAA hurricane best track data including all hurricanes within the Gulf of Mexico domain, 

indicates that storms with intensities similar to Hurricane Ivan within the entire Gulf of Mexico 

is approximately 5 to 10 years. GZA also considered the recurrence interval of storms with 

similar intensity (i.e., major hurricanes) tracking within an 80 nautical mile radius of the MC20A platform (four times the typical radius of maximum winds and representing an approximate 

zone of significant storm influence) and an approximately 25 to 50 year recurrence interval was 

estimated. Similarly, the recurrence interval of storms with similar intensity (i.e., major 

hurricanes) tracking within the general vicinity of the MC-20A platform as defined by 1 nautical 

degree (60 nautical miles) was estimated to be approximately 70 to 140 years.109 As detailed by 

GZA, the probability of sediment failure, prior to and during the life of the MC-20A platform 

and currently, within this region is high.110 There was also information available that a hurricane 

 106 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix K – Joint Probability Distribution of Wave Height and Wave 

Period, page 1. See also, Longuet-Higgins, M. S., 1983, On the Joint Distribution of Wave Periods and Amplitudes 

in a Random Wave Field, Proceedings of the Royal Society of London. Series A, Mathematical and Physical 

Sciences, Vol. 389, No. 1797 (Oct. 8, 1983), pp. 241-258. 107 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix N – Seafloor Bottom Pressure Summary. 108 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix O – Additional Discussion on the MC-20A Design Spectrum, 

page 5.

109 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix G – Gulf of Mexico Hurricane Statistics page 1. 110 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Conclusions, page iv.
25

with characteristics such as Ivan, could sink the MC-20A platform.111Additionally, WoodwardClyde did not explicitly take Hurricane Camille’s wave characteristics into account during the 

design of the MC-20A.112 The large sea bottom pressures created by the waves associated with 

Hurricane Camille triggered a mass sediment movement extending to depths up to 90 feet below 

the surface of the seafloor which toppled the Shell Platform “B”. That platform had been 

installed and operated within the South Pass Block of the Mississippi Delta in 325 feet of water 

and was subsequently moved almost 100 feet down slope from its original position as a result of 

the incident.113

Lastly, Mr. Pettigrew described the potential effects of hurricanes on the sediments of the 

MC-20 when he concluded that there were at least seven storms that could have contributed to 

significant sediment movement in the areas upslope of the MC-20 platform site or significant 

sediment accumulation on the mudlobe crests in the area of the platform. Specifically, in the 

Gulf of Mexico tropical cyclone population of 2001-2004, there was at least one instance a 

season that a storm could have impacted the sedimentation conditions of the Mississippi Canyon 

region; one storm in 2001 (Allison), four storms in 2002 (Bertha, Hanna, Isidore, Lili), one storm 

in 2003 (Bill), and one storm in 2004 (Ivan). Further, in this demonstrated environment of 

subaqueous sediment instabilities; the annual interaction of tropical cyclones only further 

increases the uncertainty of bottom conditions throughout this dynamic deltaic region. In the 

fifteen years since Hurricane Ivan, there have only been six seasons when a tropical cyclone did 

not affect the Mississippi River delta region.114

NPFC’s response

Taylor made a business decision to purchase the MC20 lease and fixtures knowing that it was 

located in a geomorphic region that consisted of very soft and under-consolidated sediment with 

high moisture content and low shear strength and was inherently unstable and vulnerable to 

sediment failures and mudslides due to surface waves. Taylor either was aware, or should have 

been aware, of the propensity for hurricanes within the Gulf of Mexico and the unstable 

sedimentation conditions within the Mississippi Canyon. In its submission to the NPFC, Taylor 

de-values these risks and conditions and seeks to shield itself from the strict liabilities resulting 

from that decision by citing that the 100 year storm design wave used in the construction of the 

MC-20A was the accepted industry design standard. It heavily relies on the fact that Sohio 

retained Woodward-Clyde Oceaneering to assess the stability of the MC-20 seafloor and that its 

platform had a capacity to withstand the forces that would be imparted on it by a 100 year storm 

design wave as designed by Dr. Suhayda. 

But as previously discussed, the effects of the waves and bottom pressures responsible for the 

failure of the MC-20A platform could have been avoided if Dr. Suhayda had used a design wave 

 111 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix J – Predicted Annual Recurrence Interval of Design Wave and 

Wave Conditions at MC-20A during Hurricane Ivan page 4. 112 GZA Technical Report – NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 

during Hurricane Ivan dated August 2019, Appendix L – Summary, page 1. 113 Wave Induced Slides in the South Pass Block 70, Mississippi Delta written by Robert B. Bea, Stephen G. Wright, 

Members, ASCE, Partha Sircar and Alan Niedoroda, page 3.

114 NPFC Task for the Analysis of Weather Conditions at Mississippi Canyon Block 20 during Hurricane Ivan, Task 

1, item (i), and Task 2, item (d) prepared by Mr. James Pettigrew dated May 15, 2019, page 27.
26

spectrum in lieu of a single wave condition design wave and longer periods associated with 

shorter waves in the standard distribution in order to find the likely maximum bottom pressures 

during a given storm. Similarly, the effects of the waves and bottom pressures responsible for 

the failure of the MC-20A platform could have been avoided if Dr. Suhayda had used the correct 

statistical analysis in his design of wave height and period values. As such, had Dr. Suhayda 

performed the correct statistical analysis based upon his 1983 design storm wave for Hurricane 

Carmen, the loss of the MC-20A platform could have been prevented and avoided by the 

exercise of due care in the form of correct statistical analysis.

In addition, the loss of the Shell Platform “B” in 1969 and the loss of the MC-20A platform 

in 2004 are almost identical in that they occurred in areas within the Gulf of Mexico known to 

contain geohazards and were the result of mass seafloor sediment movements that occurred well 

below the surface of the seafloor resulting from elevated sea bottom pressures produced by 

hurricane force waves. Consideration and planning for mass sediment movement resulting from 

elevated sea bottom pressures associated with hurricane type conditions in a section of the Gulf 

of Mexico known for geohazards should have been paramount in the design and construction of 

the MC-20A. Had Hurricane Camille and the geohazards associated with the MC-20 been 

considered during the design and construction of the MC-20A, the loss of the platform could 

have been prevented and avoided through better planning and the exercise of due care and 

foresight.

Lastly, there were seven named storms in the Gulf of Mexico between 2001 and 2004 that 

could have contributed to sediment movement in the areas upslope of the MC-20A platform. 

These storms, along with the propensity for additional hurricanes and the unstable sediment 

conditions of the MC-20 were essentially dismissed by Taylor when considering the due care of 

their platform. As cited in our original determination, Taylor failed to conduct geophysical 

surveys of the mudflow channels and depositional lobes located above the platform site every 

other year and after major storms as recommended by Woodward and required by the Mineral 

Management Service (MMS). When Taylor was questioned about the frequency of its 

geophysical surveys in, around or upslope of the platform site as well as its geophysical surveys 

of the mudflow channels and depositional lobes located above the platform, Taylor responded 

that it had only conducted one geophysical survey of MC-21 block in 2001 and that survey had 

extended into the MC-20 platform site and areas upslope of the MC-20. Taylor’s failure to 

conduct these surveys calls into question the stability of the mudflow channels, depositional 

lobes and areas upslope of the MC-20 and requires Taylor to speculate on the condition of the 

sediments subject to this claim based upon a geophysical survey conducted three years before the 

casualty and geophysical surveys conducted post casualty as part of Taylor response to plug and

abandon its wells as required for Outer Continental Shelf lessees and operators.

In conclusion, the NPFC is persuaded by the foregoing expert analysis and credible 

hypothesis detailed within the footnoted references, which presents a compelling contradiction to 

the claimant’s submission. After completing a comprehensive review of information provided 

by Taylor and weighing the probative value of all relevant facts, opinions and conclusions, 

including those obtained independently, the NPFC determines that Taylor has not demonstrated 

by a preponderance of the evidence that it exercised due care and foresight against the effects of 

Hurricane Ivan. NPFC determines, as a factual matter, that a preponderance of the credible 
27

evidence in this record establishes that Taylor failed to exercise due care and foresight against 

the effects of Hurricane Ivan. 

Taylor’s claim as to sole cause

Taylor asserts that Hurricane Ivan’s waves were the sole cause of the MC-20 incident. 

Taylor disagrees with NPFC’s original determination that its failure to conduct geophysical 

surveys biennially and following major storms, as recommended by Woodward-Clyde 

Oceaneering in its 1983 report, and as required by the MMS, could have contributed to the 

incident. Finally, Taylor contends that if Hurricane Ivan's waves were an act of God, but its 

winds or other natural phenomenon involved in the chain of causation were not acts of God, then 

it still should be able to assert an act of God defense.115

NPFC’s response

Taylor failed to conduct geophysical surveys every other year and after major storms of the 

mudflow channels and depositional lobes located above the platform site as recommended by 

Woodward-Clyde and required by the MMS. NPFC finds that the failure to conduct these 

surveys could have contributed to the collapse of the MC-20A platform.

Additionally, NPFC determines from the research that Taylor has not provided a 

preponderance of the evidence to support its claim that the waves were the sole cause of the 

incident. At a minimum, there was a chain of causation from the hurricane itself, to winds, to 

waves, to a failure of the subsea floor. It may be more proper to view the hurricane as the cause 

of the incident, but even when viewing this event with that wide-angle aperture, the NPFC is still 

not convinced by a preponderance of the evidence that it was the sole cause of platform failure. 

VI. AMOUNTS CLAIMED BY TAYLOR

Taylor seeks to recover at least $353,881,719.70 from the OSLTF based upon its act of God 

claim. Before NPFC can authorize payment from the OSLTF for any claim, the claimant must 

show that the costs claimed are compensable under OPA. Because NPFC has determined that 

Taylor is not entitled to an act of God defense, NPFC did not analyze whether any of the costs 

claimed by Taylor would be OPA compensable. If this determination is overturned, then NPFC 

will address how much, if any, of the amount claimed by Taylor is actually compensable by the 

OSLTF. 

VII. CONCLUSION

The NPFC reviewed Taylor’s original claim submission, Taylor’s request for 

reconsideration, all of the exhibits and additional information provided by Taylor and additional 

information acquired independently. The NPFC concludes that the facts of this case do not 

support an act of God defense under OPA. 

 115 Taylor Energy Company, LLC, Request for Reconsideration dated July 12, 2019, pages 23-25.
28

Hurricanes are common occurrences, especially in the Gulf of Mexico. In fact, there have 

been over 300 hurricane strikes in the Atlantic and Gulf coast regions since 1851. They are 

certainly not unanticipated. Hurricanes bring with them several known characteristics, including 

high winds, high waves, and high wave pressures. While the intensity may vary from storm to 

storm, it is unquestioned that these characteristics are attendant, in one way or another, with all 

hurricanes. There can be little doubt that Taylor was well-aware of the propensity and intensity 

of hurricanes in Gulf of Mexico. 

The unstable subsea conditions at MC-20 were also well-known. Research was clear far 

before Taylor assumed the lease that the submerged delta apron consisted of thick, very weak 

sediments that are inherently unstable and vulnerable to hurricane wave-induced failure and that 

even a small change in prevailing conditions, such as wave input, can trigger a mudflow. As a 

result, wave-induced bottom pressures accompanying large hurricanes can cause spectacular 

failures of the accumulated sediments. Yet despite this research Taylor made the decision to 

acquire the lease. It cannot later successfully claim that this instability was unanticipated. 

NPFC’s research concluded that the wave pressures should have been anticipated and were 

not exceptional. Specifically, NPFC’s experts questioned the methodology and analysis used in 

the reports that Taylor’s relies upon to support its claim. Examples include the calculation of 

Hurricane Ivan’s recurrence intervals, the relevance of Hurricane Camille in the design of the 

MC-20A platform, the ability to successfully hindcast the waves associated with Hurricane Ivan, 

and the reliability of Dr. Suhayda’s design storm wave and wave period used in the design of the 

MC-20A. Experts have also specifically concluded that the methodology used in the original 

calculations in determining the anticipated wave pressures was flawed. Had the proper 

methodology been used, then the expected wave pressures would have been reported differently 

to the Department of Interior by Woodward-Clyde; and thus, ultimately, Ivan’s wave pressures 

would have fallen into the “expected” range. 

Taylor asserts that the effects of the act of God could not have been prevented or avoided 

because MC-20A was a platform affixed to the seafloor. As outlined previously, Taylor with full 

knowledge of the propensity of hurricanes in the Gulf of Mexico and the historic instability of 

the seafloor at the site still made the business decision to acquire the lease. For several years, 

Taylor was able to capitalize on its decision. However, under the facts of this case, Taylor 

cannot now attempt to escape liability for this oil spill by claiming it could not have avoided this 

incident.

Taylor contends it should not be held liable because MC-20A platform was built to all 

applicable standards and that the MMS approved of the design and installation. However, 

neither the design approval nor the issuance of the lease serves to exonerate Taylor from liability 

resulting from an oil spill. 

Taylor also argues that it was completely without fault for this incident. There is no calculus 

of fault when strict liability applies. However, with respect to the alleged act of God being the 

“sole cause” of the incident as required by OPA, the NPFC notes that Taylor did not comply with 

a mandate of the MMS to conduct geophysical surveys of the site biennially and following major 

storms. Since several storms had affected the region prior to Ivan, it is possible that the 

geophysical surveys could have detected sediment instabilities in and around the MC-20A