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Federal investigators again try to question BP spill witnesses

By David S. Hilzenrath
Washington Post Staff Writer
Monday, August 23, 2010; A04

A federal investigative panel will begin its next round of hearings Monday into the Deepwater Horizon disaster and call witnesses who can address alleged shortcuts in the drilling of the BP oil well, problems with the failed blowout preventer and the confused scene after an explosion on the rig.

Whether all of those witnesses testify remains to be seen.

After challenges to the investigative board's authority and competence, the hearings are shaping up as a test of the panel as well as the parties under investigation.

At the previous round of hearings last month, some witnesses canceled at the last minute. One invoked his Fifth Amendment right to remain silent. Lawyers for other witnesses accused the board -- a joint panel of the U.S. Coast Guard and the Bureau of Ocean Energy Management, Regulation and Enforcement -- of ignoring their clients' legal rights and the rules governing the proceedings.

Toward the end of the last day of testimony, July 23, the Coast Guard officer presiding over the hearings, Capt. Hung Nguyen, implied that the board could put aside federal rules of evidence. The comment appeared to provide ammunition to the board's critics.

Referring to the federal rules of evidence, Nguyen said: "It's possible we can use it. It's possible we don't have to use it."

"It doesn't say you don't have to. It says they should be followed . . . . ," said Transocean lawyer Edward F. Kohnke IV.

"Should, not shall," Nguyen replied, according to recordings and a privately commissioned transcription.

But in the official transcript released by the panel, Nguyen's response is: "Sure. Sure."

A Coast Guard spokeswoman said that nothing in the transcript had been changed and that it is possible the person transcribing the hearing misheard the statement.

On Thursday, the Coast Guard and the Bureau of Ocean Energy Management added two legal professionals to what had been a six-member board, a move that followed complaints that the panel lacked legal expertise.

The new members are Wayne R. Andersen, a retired federal judge, and Capt. Mark R. Higgins, a Coast Guard staff judge advocate.

"They will assist us with some of the legal and procedural issues . . . and allow the other members of the team to continue to focus on gathering the facts," board co-chairman J. David Dykes of Ocean Energy Management said in a news release.

The board members are responsible for investigating the performance of their own agencies, the Coast Guard and Ocean Energy Management, along with that of BP, Transocean and other parties involved in the drilling operation, which led to the deaths of 11 workers and a catastrophic oil spill in the Gulf of Mexico.

The schedule of witnesses for the coming week includes:

-- Andrea Fleytas of Transocean, who was on the bridge after the blowout.

-- Brett Cocales, a BP drilling engineer who wrote an e-mail about BP's decision to use six devices known as centralizers to center the pipe in the well. Halliburton, a contractor on the project, advised BP to use 21. In part, Cocales's e-mail said, "who cares, it's done, end of story, will probably be fine," according to a document compiled by the House Energy and Commerce Committee.

-- Jesse Gagliano, a Halliburton technical adviser who wrote a report two days before the blowout saying that, with seven centralizers -- the number the company used to run a model -- the well had the potential for "a SEVERE gas flow problem."

-- Brian Morel, a BP drilling engineer who wrote an e-mail about the use of six centralizers saying it was "too late to get any more" on the rig and "hopefully the pipe stays centralized due to gravity." Morel also wrote e-mails cited by the Energy and Commerce Committee supporting their conclusion that a BP decision about the design of the well appears to have been driven by financial considerations. The design "saves a good deal of time/money," Morel wrote.

Donald Vidrine, one of BP's top men on the rig, was slated to testify. He declined based on medical reasons, as he did during earlier rounds, according to the board.

The board moved the upcoming hearings from Kenner, La., to Houston to be able to enforce subpoenas of Houston-based witnesses.

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