A former BP engineer deleted text messages about the amount of oil pouring into the Gulf of Mexico after the Macondo well blew out in 2010, the federal government alleged Tuesday in the first criminal case arising from the deadly spill.
Kurt Mix, 50, of Katy, was named in a criminal complaint filed in New Orleans containing two charges of obstruction of justice. He was freed on $100,000 bail after appearing Tuesday afternoon before U.S. Magistrate Judge Stephen Smith in Houston, who ordered Mix to stay in Texas or Louisiana and to appear in a New Orleans federal district court May 3.
No one answered the door Tuesday night at a Katy residence listed as Mix’s.
Mix is accused of deleting records relating to the amount of oil flowing from the Macondo well after the April 20, 2010 blowout and explosion of the Deepwater Horizon drilling rig that killed 11 workers and led to a three-month spill. The government estimates nearly 5 million barrels of crude poured into the Gulf.
The charges allege acts after the blowout, rather than ones by BP or its contractors leading up to the disaster, which also are the subjects of civil and criminal investigations.
“The Deepwater Horizon Task Force is continuing its investigation into the explosion and will hold accountable those who violated the law in connection with the largest environmental disaster in U.S. history,” U.S. Attorney General Eric Holder said in a news release announcing the criminal charge.
Mix, a drilling and completions project engineer for BP, worked on a team trying to estimate the amount of crude flowing from the well and to stop it. This included a procedure called a “top kill,” an unsuccessful attempt to plug the leak by forcing material into the wellhead. The charges against Mix allege that he deleted 200 text messages, despite orders from the company to save them. Some of the messages included reports that the top kill was failing, the government alleges.
Joan McPhee, a partner at the law firm Ropes & Gray who is representing Mix, in a statement called the charges “startling government overreaching” and predicted her client will be exonerated.
“The government says he intentionally deleted text messages from his phone, but the content of those messages still resides in thousands of emails, text messages and other documents that he saved,” McPhee said. “Indeed, the emails that Kurt preserved include the very ones highlighted by the government.”
Texts the government alleges were deleted include one sent the evening of May 26, 2010, after the first day of the top kill attempt. In that message, Mix reported that the well was flowing at a rate of more than 15,000 barrels a day, at a time when the company’s public estimate was 5,000 barrels a day. BP engineers had concluded that the top kill would fail if the flow were greater than 15,000 barrels per day, the Justice Department said.
A former government prosecutor who has followed the BP litigation closely said the allegations against Mix raise questions about whether BP had information that more oil was fouling the Gulf than the company initially acknowledged, and about what might have motivated Mix’s alleged deletions of text exchanges.
“If Mr. Mix was acting alone, BP may be able to avoid criminal charges for his behavior, but if other employees were also destroying evidence, it’s likely that BP would face obstruction of justice charges,” said David Uhlmann, a University of Michigan law professor who formerly headed the Justice Department’s Environmental Crimes Section.
BP said in a statement it would have no comment on the charges against Mix, that it is cooperating with investigations and that “BP had clear policies requiring preservation of evidence in this case and has undertaken substantial and ongoing efforts to preserve evidence.”
Legal experts speculated that the charges may be the first step in a strategy by prosecutors to begin with lower-level employees as they seek to strengthen their case against higher-level decision makers.
“It seems to me the government has started with what appears to be a very provable case,” said Chick Foret, a former federal and state prosecutor. “Often it will take the lay up as its first shot.”
On Wednesday, a federal judge in New Orleans is expected to consider a motion to approve a multibillion-dollar civil settlement between BP and a committee representing thousands of private plaintiffs who suffered economic damages because of the spill.
Blaine LeCesne, a tort law professor at Loyola University who has closely followed the case, said the criminal charge Tuesday puts more pressure on BP to settle with the government as well, since fines could be based on how much oil spilled.
“If BP management influenced Mix, it may well be that they intentionally misled the government on the rate of the spill to save money,” LeCesne said. “This could be the link to possible criminally negligent manslaughter charges, if the spill was similarly caused by fiscally motivated behavior.”
Reporter James Pinkerton contributed to this story.