By now you’ve heard that Federal Judge Carl Barbier in New Orleans has found that BP was grossly negligent and engaged in reckless and willful misconduct that lead to the world’s worst offshore oil disaster. The finding of gross negligence ratchets up the fines the company may face under the Clean Water Act, from a mere $1,100 per barrel for conduct involving BP’s claimed simple negligence to the now staggering $4,000+ per barrel for British Petroleum’s gross negligence. While Judge Barbier has yet to release his findings on the amount of oil actually released during the spill, the sum of the per barrel fines could exceed $18 billion.
This ruling comes at a time when BP is continuing its dishonest attempts to renege on compensating the businesses and people of the Gulf. The company has asked the Supreme Court to throw out that 2012 Settlement. One cannot imagine that yesterday’s ruling by Barbier will lend much support to BP’s position.
Well from Hell
The Deepwater Horizon rig was known in company circles as the “Well from Hell” because of the challenges involved in operating at such depths and the unusual geologic formations the crew had to wrestle with when drilling. Judge Barbier’s ruling goes into 150+ pages of detail on how deepwater drilling is accomplished in general and the critical (reckless) errors BP made time and time again.
It is a chilling read for anyone who values our oceans, as the complexity of these operations is mind boggling. In fact, former BP CEO Tony Hayward called BP’s deepwater activities similar to outer-space exploration. Operators must be on the very top of their game. BP was very far below that standard – and they knew it. But profits called.
“Totally unsafe” and “on the ragged edge,” BP failed to “exercise even slight care”
Below are paragraph excerpts from Judge Barbier’s ruling. His findings speak for themselves:
65. On April 9, 2010, BP decided to drill the extra 100 feet. Dr. Huffman, whom the Court found to be credible, viewed this decision as “one of the most dangerous things [he] had ever seen in [his] 20 years’ experience” and “totally unsafe.” The Court agrees that the decision was dangerous and further finds that it was motivated by profit.
72. As of April 9, 2010, BP was $60 million (60-70%) over budget and 54 days behind schedule on the well. For each additional day the DEEPWATER HORIZON remained at the well, BP lost approximately another $1 million. Moreover, the DEEPWATER HORIZON was under pressure to get to the Nile well, and then to the Kaskida well, which BP needed to spud by May 16th or face losing those leases.
275. Furthermore, it is inexplicable that Hafle (BP employee on rig) did not take further action given that he believed the design of the cement job was “on [the] ragged edge” and that BP would get a “shittie” cement job.
276. But even if Hafle lacked context, Well Site Leader Don Vidrine (another BP employee) did not. The Well Site Leader already had firsthand knowledge of the negative pressure test that he himself approved an hour before. Furthermore, Vidrine stated in post-incident interviews that the negative pressure test results looked “squirrely” to him and that he was “concerned” about the pressure on the drill pipe.
278. It is also noted that BP’s own Accident Investigation Report did not mention a 8:52 p.m. phone call (minutes before the explosion) between Vidrine and Hafle, and in fact states, “The investigation team has found no evidence that the rig crew or well site leaders consulted anyone outside their team about the pressure abnormality.” This statement is patently false.
280. The Court infers that BP’s investigation team recognized the importance of the 8:52 p.m. phone call and chose to omit it from the BP Accident Investigation Report to avoid casting further blame on BP.
450. The Chief Mate had to physically bring the master outside the bridge and show him the fire in order for the Captain to agree with the Chief Mate that the rig needed to be abandoned. BP’s marine safety expert, Captain Mitchell, commented, “I find that quite inconceivable that somebody who is the captain of the ship and who had been in this situation has to be told the gravity of the situation by his junior officer.”
480. As explained below, the Court finds and concludes that the discharge of oil was the result of BP’s “gross negligence” and “willful misconduct.”
483. Gross negligence is an extreme departure from the care required under the circumstances or a failure to exercise even slight care.
486. According to the Government, willful misconduct is an act, intentionally done, with knowledge that the performance will probably result in injury, or done in such a way as to allow an inference of a reckless disregard of the probable consequences.
FN 194: Indeed, Dr. Tony Hayward, the C.E.O. of BP p.l.c. in 2010 (and who began his career with BP as a geologist), described deepwater mineral exploration as “akin to outer . . . space exploration.” Hayward Deposition, 872:8-11. Dr. Hayward estimated that BP was drilling roughly 20 deepwater wells around the world on April 20, 2010. Id. 873:6. He further estimated that, at most, 5 of these wells were considered “higher risk” due to the nature of their geologic formation. Id. at 875:1-19. BP classified Macondo (Deepwater Horizon) as one of these 5 “higher risk” deepwater wells.
511. BP’s conduct “constitutes an extreme departure from the care required under the circumstances.”
520. BP engaged in a “a conscious disregard of known risks.”