BP 2011 Annual Report Download - page 235

Financial statements
BP Annual Report and Form 20-F 2011 233
Notes on financial statements
Following the proposed settlement agreement entered into with the PSC, subject to final written agreement and court approvals, BP reviewed
the amount of the provision for the items covered by the proposed settlement based upon information available at the time that the consolidated financial
statements were approved. The provision for these items at 31 December 2011 is now $7.8 billion which represents a reliable best estimate of the
liability under the proposed settlement agreement which, under accounting standards, is the amount that BP would rationally pay to settle the obligation.
Substantially all of this amount is included as payable from the trust fund under Litigation and claims in the table above. Future claims administration
costs are expected to be paid from the trust fund. However, at this time, the provision for these costs is shown as payable from outside the trust fund,
consistent with how the administration costs associated with the GCCF were treated, as the proposed settlement is subject to final written agreement
and court approvals. Further information on the proposed settlement with the PSC is included in Legal proceedings on pages 160 to 164.
The provision is in addition to the $6.3 billion of claims paid in total ($2.9 billion in 2011 and $3.4 billion in 2010). Of this total paid, $6.1 billion is
included within utilization of provision in the table ($2.9 billion in 2011 and $3.2 billion in 2010), and the remaining $0.2 billion was a period expenditure
prior to the recognition of the provision at the end of the second quarter 2010. Also included within the utilization of the provision of $4.4 billion (2010 $4.0
billion) under Litigation and claims in the table are amounts relating to claims administration costs, legal fees and other settlements. Of the total payments
of $6.3 billion, $5.9 billion was paid out of the trust fund ($2.9 billion in 2011 and $3.0 billion in 2010) and $0.4 billion was paid by BP in 2010.
Many key assumptions underlie and influence the reliable best estimates of total expenditures derived for both categories of claims. The amount
provided for Individual and Business Claims is based upon the expected terms of the proposed settlement with the PSC, which is subject to final written
agreement and court approvals. Other key assumptions include the amounts that will ultimately be paid in relation to current claims, the number, type
and amounts for claims not yet reported, the outcomes of any further litigation through potential opt-outs from the proposed settlement and the amount
of administration and other costs associated with the proposed settlement. While BP has determined a reliable best estimate of the cost of the proposed
settlement with the PSC, it is possible that the actual cost could be higher or lower than this estimate.
The outcomes of claims and litigation are likely to be paid out over many years to come. BP will re-evaluate the assumptions underlying this
analysis on a quarterly basis as more information becomes available and the claims process matures.
BP also faces other litigation for which no reliable estimate of the cost can currently be made. Therefore no amounts have been provided for these
items. See Note 43 for further information.
Clean Water Act penalties
A provision has been made for the estimated penalties for strict liability under Section 311 of the Clean Water Act. Such penalties are subject to a
statutory maximum calculated as the product of a per-barrel maximum penalty rate and the number of barrels of oil spilled. Uncertainties currently exist in
relation to both the per-barrel penalty rate that will ultimately be imposed and the volume of oil spilled.
A charge for potential Clean Water Act Section 311 penalties was first included in BP’s second-quarter 2010 interim financial statements. At the
time that charge was taken, the latest estimate from the intra-agency Flow Rate Technical Group created by the National Incident Commander in charge
of the spill response was between 35,000 and 60,000 barrels per day. The mid-point of that range, 47,500 barrels per day, was used for the purposes
of calculating the charge. For the purposes of calculating the amount of the oil flow that was discharged into the Gulf of Mexico, the amount of oil that
had been or was projected to be captured in vessels on the surface was subtracted from the total estimated flow up until when the well was capped on
15 July 2010. The result of this calculation was an estimate that approximately 3.2 million barrels of oil had been discharged into the Gulf. This estimate
of 3.2 million barrels was calculated using a total flow of 47,500 barrels per day multiplied by the 85 days from 22 April 2010 through 15 July 2010 less an
estimate of the amount captured on the surface (then estimated at approximately 850,000 barrels).
This estimated discharge volume was then multiplied by $1,100 per barrel – the maximum amount the statute allows in the absence of gross
negligence or wilful misconduct – for the purposes of estimating a potential penalty. This resulted in a provision of $3,510 million for potential penalties
under Section 311.
In utilizing the $1,100 per-barrel input, BP took into account that the actual per-barrel penalty a court may impose, or that the Government might
agree to in settlement, could be lower than $1,100 per barrel if it were determined that such a lower penalty was appropriate based on the factors a court
is directed to consider in assessing a penalty. In particular, in determining the amount of a civil penalty, Section 311 directs a court to consider a number
of enumerated factors, including ”the seriousness of the violation or violations, the economic benefit to the violator, if any, resulting from the violation,
the degree of culpability involved, any other penalty for the same incident, any history of prior violations, the nature, extent, and degree of success of any
efforts of the violator to minimize or mitigate the effects of the discharge, the economic impact of the penalty on the violator, and any other matters as
justice may require.” Civil penalties above $1,100 per barrel up to a statutory maximum of $4,300 per barrel of oil discharged would only be imposed if
gross negligence or wilful misconduct were alleged and subsequently proven. BP expects to seek assessment of a penalty lower than $1,100 per barrel
based on several of these factors. However, the $1,100 per-barrel rate was utilized for the purposes of calculating a charge after considering and weighing
all possible outcomes and in light of: (i) BP’s conclusion that it did not act with gross negligence or engage in wilful misconduct; and (ii) the uncertainty as
to whether a court would assess a penalty below the $1,100 statutory maximum.
On 2 August 2010, the United States Department of Energy and the Flow Rate Technical Group had issued an estimate that 4.9 million barrels
of oil had flowed from the Macondo well, and 4.05 million barrels had been discharged into the Gulf (the difference being the amount of oil captured by
vessels on the surface as part of BP’s well containment efforts).
It was and remains BP’s view, that the 2 August 2010 Government estimate and other similar estimates are not reliable estimates because
they are based on incomplete or inaccurate information, rest in large part on assumptions that have not been validated, and are subject to far greater
uncertainties than have been acknowledged. As BP has publicly asserted, including at a 22 October 2010 meeting with the staff of the National
Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, BP believes that the 2 August 2010 discharge estimate and similar estimates are
overstated by a significant amount, and that the flow rate is potentially in the range of 20–50% lower. If the flow rate is 50% lower than the 2 August 2010
estimate, then the amount of oil that flowed from the Macondo well would be approximately 2.5 million barrels, and the amount discharged into the Gulf
would be approximately 1.6 million barrels. If the flow rate is 20% lower than the 2 August 2010 estimate, then the amount of oil that flowed from the
Macondo well would be approximately 3.9 million barrels and the amount discharged into the Gulf would be approximately 3.1 million barrels, which is not
materially different from the amount we used for our original estimate at the second quarter of 2010.
36. Provisions continued