BP To Pay BIG

Story first appeared on NYTimes.com.

BP, the British oil company, said on Thursday that it had agreed to pay $4.5 billion in fines and other penalties and to plead guilty to 14 criminal charges related to the rig explosion two years ago that killed 11 people and caused a giant oil spill in the Gulf of Mexico.

In a rare instance of seeking to hold individuals accountable for company misdeeds, the Justice Department also filed criminal charges against three BP employees in connection with the accident.

The government said that BP’s negligence in sealing an exploratory well caused it to explode, sinking the Deepwater Horizon drill rig and unleashing a gusher of oil that lasted for months and coated beaches all along the Gulf Coast. The company initially tried to cover up the severity of the spill, misleading both Congress and investors about how quickly oil was leaking from the runaway well, according to the settlement and related charges.

While the settlement dispels one dark cloud that has hovered over BP since the spill, it does not resolve what is potentially the largest penalty related to the incident: the company could owe as much as $21 billion in pollution fines under the Clean Water Act f it is found to have been grossly negligent. Both the government and BP vowed to vigorously contest that issue at a trial scheduled to begin in February.

Under its deal with the Justice Department, BP will pay about $4 billion in penalties over five years. That amount includes $1.256 billion in criminal fines, $2.394 billion to the National Fish and Wildlife Foundation for remediation efforts and $350 million to the National Academy of Sciences. The criminal fine is one of the largest levied by the United States against a corporation.

BP also agreed to pay $525 million to settle civil charges by the Securities and Exchange Commission that it misled investors about the flow rate of oil from the well.

In addition, the company will submit to four years of government monitoring of its safety practices and ethics.

A broader settlement that would have resolved the Clean Water Act claims failed to win agreement from some parties, in particular the state of Louisiana. BP and the government now intend to go to trial on those claims in February.

The government charged the top BP officers aboard the drilling rig, Robert Kaluza and Donald Vidrine, with manslaughter in connection with each man who died, contending that the officials were negligent in supervising tests to seal the well.

Prosecutors also charged David Rainey, BP’s former vice president for exploration in the Gulf of Mexico, with obstruction of Congress and making false statements for understating the rate at which oil was spilling from the well.

As part of its plea agreement, BP admitted that, through Mr. Rainey, it withheld documents and provided false and misleading information in response to the House of Representatives’ request for information on how quickly oil was flowing. While Mr. Rainey was publicly repeating BP’s stated estimate of 5,000 barrels of oil a day, the company’s engineering teams were using sophisticated methods that generated significantly higher estimates. The Flow Rate Technical Group, consisting of government and independent scientists, later concluded that more than 60,000 barrels a day were leaking into the gulf during that time.

Lawyers for all three men charged denied that their clients had committed any criminal wrongdoing.

Mr. Holder, the attorney general, said that the government’s investigation was continuing and that other criminal charges could be filed. 

Under the settlement announced on Thursday, BP agreed to plead guilty to 11 felony counts of misconduct or neglect related to the deaths in the explosion. The company pleaded guilty to one misdemeanor violation of the Clean Water Act and one misdemeanor violation of the Migratory Bird Treaty Act. It also agreed to plead guilty to one felony count of obstruction of Congress over its statements about the flow rate.  

Shelley Anderson, whose husband, Jason, died in the Deepwater Horizon disaster, said she was happy to hear about the settlement.But Ms. Anderson said the agreement did not change her own situation.

BP has repeatedly said it would like to reach a settlement of all claims against it if the terms were reasonable. The unresolved claims have been weighing on the company’s share price.

On Thursday, BP’s American shares closed at $40.30, up slightly on the day and down about 34 percent since the accident.

The settlement is one less thing to be negative on BP about and a minor step in the right direction toward the rehabilitation of BP.

As part of Thursday’s announcement, BP said it was increasing its reserve for costs and claims related to the spill to about $42 billion.

Brian Gilvary, BP’s chief financial officer, said in a conference call with analysts that the board weighed the settlement struck with the government against the prospect of a much wider criminal indictment that would have involved more people in the company.

BP said that before Thursday’s announced payments, it spent more than $14 billion on operational response and cleanup costs and $1 billion on early restoration projects, and paid out more than $9 billion to individuals, businesses and government entities.

In March, BP agreed with the lawyers for plaintiffs to settle claims of economic loss, including from the local seafood industry, and medical claims stemming from the oil spill. The company said it expected that settlement to be an additional $7.8 billion, which it will pay from a trust it set aside to cover such costs.

Until this week, the only BP employee to be arrested and indicted was a low-level engineer, Kurt Mix, who has been charged with obstruction of justice for deleting text messages about company estimates of the flow rate from the spill. The government has asserted that in October 2010, Mr. Mix, of Katy, Tex., deleted from his smartphone a string of more than 200 messages with a supervisor about the flow rate estimated at the time of a failed effort to contain the spill. He is also accused of deleting a second string of messages with a contractor in August 2011.

Mr. Mix has pleaded not guilty to both counts of impeding a grand jury investigation, saying that the deletions were routine and that other records of the communications still existed.

David Yarnold, chief executive of the National Audubon Society, said Thursday’s settlement matches the unprecedented offense BP committed.

But BP needs to compensate the Gulf Coast in the form of civil damages, he said.

The company could still face billions of dollars in penalties under the Oil Pollution Act or the Clean Water Act. This possibility has spurred political jockeying between the Obama administration and Gulf Coast politicians who want to maximize the amount of money the states receive to help local communities affected by the spill.

Under the Clean Water Act, fines could range from $1,100 for every barrel spilled through simple negligence to as much as $4,300 a barrel if the company were found to have been grossly negligent. With an estimated 4.9 million barrels of oil spilled in the accident, the company faces liabilities of as much as $5.4 billion to $21 billion.

Gulf Coast lawmakers passed legislation called the Restore Act last summer under which 80 percent of fines paid by BP under the Clean Water Act would go to gulf communities.

The Justice Department could also levy fines under a provision of the Oil Pollution Act, in which case BP would face a bigger penalty — more than $31 billion — to repair damages. But BP would be allowed to take a tax deduction for damages paid, and federal agencies would control how the fine money was spent.

While the government will no longer be able to hold the threat of criminal charges over BP in negotiations about a civil fine, its quiver is not empty.

Brandon L. Garrett, a law professor at the University of Virginia who studies corporate prosecutions, said the government could still invoke the threat of “debarment,” or disqualification from getting federal contracts. Although debarment is rare, he said, that could be a very large blow both to reputation and to business BP does with the federal government.

Two other companies involved in the Gulf of Mexico accident, the rig operator Transocean and the cement contractor Halliburton, also face potential civil and criminal liabilities.