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BP supervisors are ‘scapegoats,’ defense says

November 19, 2012 // BP, BP, Business, Law, News and Views

Steven Mufson,The Washington Post

BP’s former rig supervisors Robert Kaluza and Donald Vidrine are the mystery men of the Deepwater Horizon oil drilling disaster that killed 11 workers and triggered the largest offshore oil spill in U.S. history. 

They were the two most senior BP officials on the well, and an hour before the blowout they made a fateful call — allegedly dismissing a key test of well pressure that should have been a warning sign of trouble. When asked to testify before a government board of inquiry, Kaluza invoked the Fifth Amendment and Vidrine cited a medical reason for not testifying.

Now they have been singled out by the Justice Department, indicted for manslaughter to show that individuals must be held accountable for lethal mistakes made by corporations.

But their attorneys say that isn’t fair, that Kaluza and Vidrine are “scapegoats” and that they had nothing to do with creating the BP corporate culture that the Justice Department calls a key cause of the rig disaster.

On Thursday, Assistant Attorney General Lanny Breuer said, “The explosion of the rig was a disaster that resulted from BP’s culture of privileging profit over prudence; and we allege that BP’s most senior decision makers on board the Deepwater Horizon negligently caused the explosion.”

Said Shaun Clarke, one of the defense attorneys for Kaluza: “If this is about profits over safety, why didn’t you go after people who set corporate policy?”

“If the government were really interested in finding out who was responsible for creating that corporate culture, they could have done the hard work of investigating,” he added. “But the only two guys indicted were 70 miles out in the gulf working on the rig who had no role in corporate policy and no ability to influence corporate policy on safety.”

Robert N. Habans Jr., a defense attorney for Vidrine, also said that his client was unfairly singled out.

The Justice Department, he said, “exercised exceedingly poor judgment,” adding that “it is almost inconceivable that any fair-minded person would blame this hardworking and diligent man for one of the most catastrophic events in the history of the oil business.”

Clarke said that Kaluza and Vidrine discussed the well’s pressure test by phone with an engineer at BP’s Houston office, where the well’s progress was being monitored. That engineer was not charged.

Some people were also surprised that the Justice Department singled out David Rainey for lying to Congress about the rate at which oil was gushing into the Gulf of Mexico. Rainey, the second-highest-ranking BP person on the government’s unified command for spill response, was not the only BP official who quoted the estimate that eventually turned out to be one-tenth the actual rate. More senior people did, too.

Earlier, another low-level BP official, Kurt Mix, was indicted for obstruction of justice for deleting two strings of e-mails about the accident.

The Justice Department did not reply Friday to a request for comment about the defense team’s assertions.

But Jane Barrett, an environmental law professor at the University of Maryland and a former prosecutor for environmental criminal cases, said that singling out individuals is good public policy.

She said it was a mistake not to indict individuals from BP in earlier cases of errant corporate behavior. At the time of the Gulf of Mexico oil spill, BP was already on probation for criminal violations related to the 2005 explosion at its Texas City refinery that killed 15 people. The company has paid fines to settle charges over price fixing and an Alaska oil pipeline leak.

“One of the things you have to do is hold accountable those who have the power to make decisions and implement decisions made by the company,” Barrett said. “If these two guys on the rig have the power to make the calls and were negligent in the performance of their duties, and their negligence led to the death of 11 people, then they’re culpable under the criminal law.”

It may be true that other more-senior BP executives had equal culpability, Barrett said — and the Justice Department said Thursday that its investigation was continuing.

She said that criminal charges against individuals were “imperfect.” But, she added, “this is an indictment that marries up corporate enforcement with individuals. That’s really important for a

deterrent effect. . . . You want other people on rigs in those positions to know that if they decide to gamble and ignore safety standards, that they could face criminal prosecution, too.”

Brent Coon, a plaintiffs’ attorney in the Texas City refinery explosion case, praised the indictments.

“In past instances such as the 2005 Texas City refinery explosion, the Alaskan pipeline failure and propane price fixing in Oklahoma, BP was allowed to settle its criminal charges with nothing more than a fine, essentially buying its way out of trouble time and time again and protecting its corporate officers,” Coon said in a statement Thursday.

“Fines are not a deterrent to a corporation the size of BP.”

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