Lawmaker questions independence of spill probe *updated*

The government’s best chance at finding out why a critical safety device failed to stop the Gulf of Mexico oil spill is being undermined by conflicts of interest, shifting testing protocols and other problems, according to one congressional critic.

Rep. Ed Markey, D-Mass., said the issues threaten the integrity of the forensic examination of the blowout preventer that failed to stop gushing oil as it was supposed to — by slashing through drill pipe and sealing off the hole at BP’s doomed Macondo well.

“I remain deeply concerned that this vital investigation could be compromised by decisions to allow inappropriate corporate access to the testing while simultaneously barring independent government investigators the access they require,” Markey said.

Markey cited photos taken at the testing site and other evidence that representatives from companies with a stake in the examination — including firms that owned and manufactured the device — have been given hands-on access to the equipment and dictated changes in the testing procedures.

The lawmaker, who led congressional inquiries into the oil spill last year, raised his concerns in a letter Friday to Michael Bromwich, the director of the Bureau of Ocean Energy Management, Regulation and Enforcement. A bureau spokesman said the agency was reviewing the letter.

The ocean energy bureau and U.S. Coast Guard are jointly investigating the spill and overseeing the autopsy of the blowout preventer, which began in mid-November and is expected to last until February. The government contracted the forensic analysis firm Det Norske Veritas to lead the testing with advice from a “technical working group” made up of representatives from key stakeholders.

That group includes the Justice Department; BP; the Chemical Safety Board that is separately investigating the blowout and resulting explosion of the Deepwater Horizon drilling rig; Cameron International, which manufactured the blowout preventer; Transocean, which owned the Deepwater Horizon; and plaintiffs in multidistrict oil spill litigation.

Markey accused Bromwich and BOEMRE staff of misleading the public by asserting that federal investigators only recently learned that Det Norske Veritas had contracted a Transocean supervisor on the Deepwater Horizon rig to advise the testing and allowed him to manipulate the blowout preventer.

The government has since instructed DNV to terminate the contract with that Transocean employee, Owen McWhorter, and DNV complied, Bromwich said in a letter to Markey last month.

But Markey said federal officials knew, or should have known, about McWhorter’s involvement and the potential conflict of interest long before that.

Late last year, Markey noted, BP officials raised concerns about McWhorter to a Coast Guard captain. The Coast Guard and ocean energy bureau had separately sought McWhorter as a witness in their joint investigation of the Deepwater Horizon disaster. And a daily access list shows the names of all people who have authorization to enter the secure testing area.

“Given all this, for a BOEMRE official to assert that the (joint investigation team) either didn’t know of Mr. McWhorter or of his involvement with the investigation is patently absurd,” Markey said.

Markey also said he was troubled that government officials insisted employees of Cameron and Transocean — both of which are named defendants in the government’s oil spill lawsuit — had been barred from hands-on access to the blowout preventer, since photos taken at the testing site buck that assertion.

At issue is hands-on work done by a Cameron employee, Ray Fain, who in December flushed components on the blowout preventer so they could continue to be examined.

“The procedure Fain conducted, under the direction of the forensic examiner, is related to the preservation of the BOP control pods and is an operation that requires proprietary Cameron computer equipment and a technician to operate,” said BOEMRE spokeswoman Melissa Schwartz.

Schwartz noted that the procedure’s necessity was the subject of a conference with the federal district judge presiding over the oil spill litigation and BP, Transocean, Cameron and the Department of Justice before it was first conducted in September.

“It was discussed and agreed at that time that the procedure was necessary and may need to be conducted every couple of months to preserve the pods for further examination of the BOP,” Schwartz said.

The Chemical Safety Board’s managing director, Daniel Horowitz, said there is no evidence that the pod flushing could only be performed by a Cameron employee and stressed that “the computer, software and procedure could be provided to a neutral third party for execution.”

“This is the norm for every forensic test the CSB is familiar with, and to suggest otherwise indicates a lack of familiarity with how post-accident forensic testing is properly conducted,” Horowitz added.

“If someone with a conflict of interest is approved for hands-on activity for equipment that is vital for investigations, that is a problem no matter what the specific activity is,” Horowitz said.

Sources familiar with the testing procedure have stressed that employees from Cameron and Transocean are uniquely positioned to provide insight and valuable guidance during the blowout preventer examination, since the companies were involved in building and modifying the device.

The Chemical Safety Board has complained separately that on Dec. 21, DNV adopted a last-minute change to the testing protocol — drafted by Cameron — instead of sticking by an approach previously circulated among the technical working group.

Markey said that undermined the “independent credibility of the protocols used to examine the evidence of the Deepwater Horizon accident,” since it meant some procedures were “developed by a subject of the investigation without allowing independent parties to see them in advance and provide technical input.”

Chemical Safety Board Chairman Rafael Moure-Eraso previously has complained that Cameron and Transocean representatives “have been granted unique access to the testing process.” Moure-Eraso said that CSB representatives have at times been kept out of the testing area, even though other working group members were allowed inside the space.

The CSB’s authority to investigate the Deepwater Horizon explosion has been questioned by Transocean and employees of the drilling contractor, who have refused to comply with Chemical Safety Board subpoenas and testify about the incident.

Photo: The Deepwater Horizon’s blowout preventer is lifted out of the Gulf of Mexico by the Helix Q4000 near the coast of Louisiana in September. (AP Photo/Patrick Semansky)