Witnesses
Panel 1
Cynthia Dohner
Regional Director, Southeast Region, U.S. Fish and Wildlife Service
Tony Penn
Deputy Chief, Assessment and Restoration Division, Office of Response and Restoration, National Oceanic and Atmospheric Administration

 

Panel 2
Donald Boesch
Professor of Marine Science and President, University of Maryland Center for Environmental Science
Member, National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling
Margaret Leinen
Vice-Chair, Gulf of Mexico Research Initiative Research Board
Executive Director, Harbor Branch Oceanographic Institute
Associate Provost, Marine and Environmental Initiatives, Florida Atlantic University
Erik Rifkin
Interim Executive Director, National Aquarium Conservation Center, National Aquarium
Garret Graves
Chair, Coastal Protection and Restoration Authority
Cooper Shattuck
Chairman, Executive Committee, Natural Resource Damage Assessment Trustee Council
Legal Advisor to the Governor of Alabama

 

Subcommittee Members Present
Benjamin Cardin, Chairman (D-MD)
Jeff Sessions, Ranking Member (R-AL)
Sheldon Whitehouse (D-RI)
David Vitter (R-LA)

 

The Senate Committee on Environment and Public Works Subcommittee on Water and Wildlife held a hearing on June 28, 2011 to assess the status of the Natural Resource Damage Assessment (NRDA) process of the April 2010 BP Deepwater Horizon oil spill. The NRDA process was created through the Oil Pollution Act (OPA) that resulted from the Exxon Valdez oil spill of 1989.

 

Subcommittee Chairman Benjamin Cardin (D-MD) began the hearing with an opening statement outlining the impacts of the spill, which released 4.9 billion barrels of oil over 87 days, making it 20 times greater than the Exxon Valdez oil spill. Ranking Member Jeff Sessions (R-AL) explained the economic impact that the spill has had on his home state. The seafood industry, which brings $1 billon per year into Alabama, was shut down for several months. One study found that oyster beds could take 10 years to recover while dirty beaches continue to hurt the tourism industry. 

 

Senator David Vitter (R-LA) cited several grievances with the way that the incident has been handled. He stated that the federal response of a moratorium on drilling in the Gulf of Mexico has hurt Louisiana. He requested that, consistent with suggestions in the U.S. Navy’s report America’s Gulf Coast: A Long Term Recovery Plan After the Deepwater Horizon Oil Spill, 80 percent of the fines levied on BP under the Clean Water Act be applied to restoration costs. This notion was reiterated in the testimonies of Donald Boesch and Garret Graves.  

 

Cynthia Dohner of the U.S. Fish and Wildlife Service and Tony Penn of the National Oceanic and Atmospheric Administration (NOAA), both of whom are working on the NRDA process, outlined the progress of the assessment. Dohner explained that 24 private non-governmental agencies are involved as well as leading university researchers. The process includes three phases: pre-assessment activities, injury assessment and restoration planning, and restoration implementation, with the second phase currently underway. Tony Penn asserted that the process has been one of the most transparent damage assessments in history, thanks to the NOAA Gulf Spill Restoration web site and the Environmental Response Management Application (ERMA) web site. He added that the NRDA field research has been more extensive than that of any single oil release in history with 115 study plans approved, 21,000 laboratory analyses conducted, and 90 oceanic cruises undertaken.

 

Senators Cardin, Sessions, Vitter and Sheldon Whitehouse (D-RI) were all interested in the speed of the NRDA process. Vitter said that the cleanup process, estimated to last one decade, will take far too long. Sessions stated that there needs to be someone who is making sure that it is moving forward. Penn responded that the process is not moving slowly and that restoration will begin well before it has with other oil spills. Sessions noted that there is concern that BP might hesitate to proceed with restoration while the initial response phase is still occurring due to legal issues. Penn assured the subcommittee that this has not caused any delays. Whitehouse asked if there have been any deadlocks between BP and the NRDA team, particularly with regard to finances as BP, the liable party, is responsible for funding the assessment and restoration. Penn explained that there are sometimes “push-and-pull” disagreements but it is assumed that any study that the NRDA team does will be paid for in the future.

 

Sessions and Cardin inquired about the leadership of the study. Cardin noted the importance of an “independent scientific base” that is not controlled by BP. He asked if there is a similar independent assessment panel liked there was with the Exxon Valdez spill. Penn responded that there is currently no independent panel for the BP Deepwater Horizon oil spill. Sessions asked who is in charge of the process. Dohner explained that there is a board of seven co-trustees representing different interests in the region, each having an equal vote in all assessment-related activities.

 

Vitter commented that it is “universally recognized” that NOAA’s baseline stock assessments of fish populations throughout the U.S. are inadequate. Cardin and Penn agreed that the organization needs to improve baselines. Vitter was very interested in restoration plans for the seafood population. He cited reports that red snappers in the region have shown lesions and predictions that the oyster population will suffer for decades. Penn and Dohner said that red snapper and oyster restoration are being addressed.

 

The second panel provided a different perspective on the effectiveness of the NRDA process. Garrett Graves expressed frustration in his testimony, emphasizing that BP has excessive control over the research and that there is a conflict of interest. This has led to cases of insufficient action such as designating contaminated areas as requiring no further treatment. Graves said that BP is not required to begin restoration until the NRDA process is complete and that it is expected to take far too long—15 years or more. Erik Rifkin centered his testimony on the National Aquarium’s concern that the NRDA process is not using a methodological approach that can adequately measure small quantities of petroleum contaminants. 

 
Donald Boesch expressed concern about projects that call for an “equitable” allocation of resources between the impacted states, as Louisiana was significantly more impacted than the other states. Boesch added that legislation to allocate funds from Clean Water penalties to the states has stalled. He mentioned concerns about the fairness of the NRDA trustee board’s project approval process, requiring agreement from four of the seven members. Margaret Leinen’s testimony provided an outline of what is being researched by the Gulf of Mexico Research Initiative, a program independent of the NRDA process but also funded by BP. Cooper Shattuck, one of the seven co-trustees on the NRDA board, presented the group’s progress in a positive light. He said that the response to the spill has shown widespread cooperation between states and responsible parties, created a precedent for action on future oil spills, and has been a “tremendous success.”

 

Cardin asked Shattuck if he feels that the co-trustees have access to adequate resources.  Shattuck responded that although there can never be enough resources, “BP has wisely determined that if they don’t fund it at this point they’ll pay more in the future.” He added that without BP’s financial support, the process will not move forward.

 

Whitehouse brought the conversation back to the inadequacy of baseline data and ocean knowledge in the United States. He asked each of the panelists to provide recommendations on how to improve this. All of the panelists agreed strongly that the nation’s ocean knowledge needs improvement. Boesch recommended that a modest fee be imposed on all offshore energy industries to support ocean research, providing a stable and predictable source of funding. Leinen added that there is a strong understanding of how changes in weather affect the economy but very little understanding of how physical changes in the ocean can do the same. Shattuck reminded the panel and committee that although baseline data would be helpful, everyone must move forward with the knowledge that already exists.

 

Nearly every panelist and Senator made a point to commend BP for their commitment to providing $1 billion towards early restoration. However, with this praise came equal cautioning. Cardin called it a good step but added that the damage could be billions more. Sessions remarked that BP should be held responsible “to the last dollar of their corporate existence” while Whitehouse added that it is important to remain vigilant when there is this much money at stake and one company has “bought up all the science.”