From The New York Times (Environment)

Conflict of Interest Worries Raised in Spill Tests

Patrick Semansky/Associated Press

Workers built a dam Thursday to keep oil from entering wetlands on Elmer’s Island, La.

By IAN URBINA

Published: May 20, 2010

Hundreds of millions of dollars are at stake, since those readings will be used by the federal government and courts to establish liability claims against BP. But the laboratory that officials have chosen to process virtually all of the samples is part of an oil and gas services company in Texas that counts oil firms, including BP, among its biggest clients.

Some people are questioning the independence of the Texas lab. Taylor Kirschenfeld, an environmental official for Escambia County, Fla., rebuffed instructions from the National Oceanic and Atmospheric Administration to send water samples to the lab, which is based at TDI-Brooks International in College Station, Tex. He opted instead to get a waiver so he could send his county’s samples to a local laboratory that is licensed to do the same tests.

Mr. Kirschenfeld said he was also troubled by another rule. Local animal rescue workers have volunteered to help treat birds affected by the slick and to collect data that would also be used to help calculate penalties for the spill. But federal officials have told the volunteers that the work must be done by a company hired by BP.

“Everywhere you look, if you look, you start seeing these conflicts of interest in how this disaster is getting handled,” Mr. Kirschenfeld said. “I’m not a conspiracy theorist, but there is just too much overlap between these people.”

The deadly explosion at the Deepwater Horizon oil rig last month has drawn attention to the ties between regulators and the oil and gas industry. Last week, President Obama said he intended to end their “cozy relationship,” partly by separating the safety function of regulators from their role in permitting drilling and collecting royalties. “That way, there’s no conflict of interest, real or perceived,” he said.

Critics say a “revolving door” between industry and government is another area of concern. As one example, they point to the deputy assistant secretary for land and minerals management at the Interior Department, Sylvia V. Baca, who helps oversee the Minerals Management Service, which regulates offshore drilling

She came to that post after eight years at BP, in a variety of senior positions, ranging from a focus on environmental initiatives to developing health, safety and emergency response programs. She also served in the Interior Department in the Clinton administration.

Under Interior Department conflict-of-interest rules, she is prohibited from playing any role in decisions involving BP, including the response to the crisis in the gulf. But her position gives her some responsibility for overseeing oil and gas, mining and renewable energy operations on public and Indian lands.

Officials in part of what will remain of the Minerals Management Service, after a major reorganization spurred by the events in the gulf, will continue to report to her.

“When you see more examples of this revolving door between industry and these regulatory agencies, the problem is that it raises questions as to whose interests are being served,” said Mandy Smithberger, an investigator with the nonprofit watchdog group Project on Government Oversight.

Interior officials declined to make Ms. Baca available for comment. A spokeswoman said Ms. Baca fully disclosed her BP ties, recused herself from all matters involving the company and was not currently involved in any offshore drilling policy decisions.

Patrick A. Parenteau, a professor at Vermont Law School, said that concerns about conflicts of interest in the cleanup are cropping up for reasons beyond examples of coziness between the industry and regulators.

He noted that because of the Oil Pollution Act of 1990, which was passed after the Exxon Valdez spill, polluters must take more of a role in cleanups.

“I do think the law brings the polluter into the process, and that creates complications,” Professor Parenteau said. “That doesn’t mean, however, that the government has to exit the process or relinquish control over decision-making, like it may be in this case.”

Dismissing concerns about conflicts of interest at his lab, James M. Brooks, the president and chief executive of TDI-Brooks International, said his company was chosen because of its prior work for the federal government.

“It is a nonbiased process,” he said. “We give them the results, and they can have their lawyers argue over what the results mean.” He added that federal officials and BP were working together and sharing the test results.

Federal officials say that they remain in control and that the concerns about any potential conflicts are overblown.

Douglas Zimmer, a spokesman for the United States Fish and Wildlife Service, said the agency simply did not have the staff to handle all the animals affected by the oil spill. BP has more resources to hire workers quickly, he said, and letting local organizations handle the birds would have been impractical and costly.

“I also just don’t believe that BP or their contractor would have any incentive to skew the data,” he said. “Even if they did, there are too many federal, state and local eyes keeping watch on them.”

But Stuart Smith, a lawyer representing fishermen hurt by the spill, remained skeptical, saying that federal and state authorities had not fulfilled their watchdog role.

Last month, for example, various state and federal Web sites included links that directed out-of-work fishermen to a BP Web site, which offered contracts that limited their right to file future claims against the company.

This month, a federal judge in New Orleans, Helen G. Berrigan, struck down that binding language in the contracts.

Collaboration between industry and regulators extends to how information about the spill is disseminated by a public affairs operation called the Joint Information Center.

The center, in a Shell-owned training and conference center in Robert, La., includes roughly 65 employees, 10 of whom work for BP. Together, they develop and issue news releases and coordinate posts on Facebook and Twitter.

“They have input into it; however, it is a unified effort,” said Senior Chief Petty Officer Steve Carleton, explaining BP’s role in the shared command structure.

He said such coordination in oil spill responses was mandated under federal law.

But even if collaboration were not required, Mr. Zimmer said, it would be prudent because federal and state authorities could only gain from BP’s expertise and equipment.

“Our priority has been to address the spill quickly and most effectively, and that requires working with BP — not in some needlessly adversarial way,” he said.

In deciding where to send their water, sediment and tissue samples, state environmental officials in Florida and Louisiana said NOAA instructed them to send them to BB Laboratories, which is run by TDI-Brooks.

Though Florida has its own state laboratory that is certified to analyze the same data, Amy Graham, a spokeswoman for the Department of Environmental Protection there, said the state was sending samples to B & B “in an effort to ensure consistency and quality assurance.”

Scott Smullen, a spokesman for NOAA, said that two other labs, Alpha Analytics and Columbia Analytical Services, had also been contracted, but officials at those labs said B & B was taking the lead role and receiving virtually all of the samples.

The samples being collected are part of the Natural Resource Damage Assessment, which is the federal process for determining the extent of damage caused by a spill, the amount of money owed and how it should be spent to restore the environment.

The samples are also likely to be used in the civil suits — worth hundreds of millions of dollars — filed against the companies and possibly the federal government.

While TDI-Brooks and B & B have done extensive work for federal agencies like NOAA and the E.P.A., TDI-Brooks is also described by one industry partner on its Web site as being “widely acknowledged as the world leader in offshore oil and gas field exploration services.”

The Web site says that since 1996, it has “collected nearly 10,000 deep-water piston core sediment samples and heat flow stations for every major oil company.”

Hundreds of millions of dollars are also likely at stake in relation to the oil-slicked animals that are expected to wash ashore in coming weeks.

While Fish and Wildlife Service officials say that BP’s contractor will handle virtually all of the wildlife and compile data about how many — and how extensively — animals were affected by the spill, they add that they will oversee the process.

The data collected will likely form the basis for penalties against BP relating to the Migratory Bird Treaty Act. In the case of the Exxon Valdez spill, Exxon was fined more than $100 million, partly for violations of that federal law.


John M. Broder, Andrew W. Lehren and Michael Luo contributed reporting.