[Senate Hearing 111-1244]
[From the U.S. Government Publishing Office]




                                                       S. Hrg. 111-1244
 
                   ASSESSING NATURAL RESOURCE DAMAGES
            RESULTING FROM THE BP DEEPWATER HORIZON DISASTER

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON WATER AND WILDLIFE

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 27, 2010

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
  
  
  
  
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                     ONE HUNDRED ELEVENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             MIKE CRAPO, Idaho
AMY KLOBUCHAR, Minnesota             CHRISTOPHER S. BOND, Missouri
SHELDON WHITEHOUSE, Rhode Island     LAMAR ALEXANDER, Tennessee
TOM UDALL, New Mexico
JEFF MERKLEY, Oregon
KIRSTEN GILLIBRAND, New York
ARLEN SPECTER, Pennsylvania

                    Bettina Poirier, Staff Director
                 Ruth Van Mark, Minority Staff Director
                              ----------                              

                   Subcommittee on Water and Wildlife

                 BENJAMIN L. CARDIN, Maryland, Chairman
FRANK R. LAUTENBERG, New Jersey      MIKE CRAPO, Idaho
SHELDON WHITEHOUSE, Rhode Island     JOHN BARRASSO, Wyoming
TOM UDALL, New Mexico                LAMAR ALEXANDER, Tennessee
JEFF MERKLEY, Oregon                 JAMES M. INHOFE, Oklahoma (ex 
BARBARA BOXER, California (ex            officio)
    officio)
    
    
                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JULY 27, 2010
                           OPENING STATEMENTS

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland     1
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     6
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     7
Merkley, Hon. Jeff, U.S. Senator from the State of Oregon........     8

                               WITNESSES

Dohner, Cynthia, Regional Director, Southeast Region, U.S. Fish 
  and Wildlife Service...........................................     9
    Prepared statement...........................................    11
    Responses from Ms. Dohner and Mr. Penn to additional 
      questions from Senator Cardin..............................    19
    Responses to additional questions to Ms. Dohner from:
        Senator Cardin...........................................    28
        Senator Inhofe...........................................    32
Penn, Tony, Deputy Chief, Assessment and Restoration Division, 
  Office of Response and Restoration, National Oceanic and 
  Atmospheric Administration.....................................    34
    Prepared statement...........................................    36
    Responses to additional questions from:
        Senator Cardin...........................................    47
        Senator Inhofe...........................................    49
Pell, Eva J., Under Secretary for Science, Smithsonian 
  Institution....................................................    51
    Prepared statement...........................................    53
    Response to an additional question from Senator Inhofe.......    60
Spies, Robert B., President, Applied Marine Sciences; former 
  Chief Scientist, Exxon Valdez Trustee Council..................    71
    Prepared statement...........................................    73
Senner, Stanley, Conservation Science Director, Ocean Conservancy    82
    Prepared statement...........................................    84
    Response to an additional question from:
        Senator Cardin...........................................    94
        Senator Inhofe...........................................    95
Rifkin, Erik, Interim Executive Director, National Aquarium 
  Conservation Center............................................    96
    Prepared statement...........................................    98
Young, John F., Jr., Chairman, Jefferson Parish Council..........   121
    Prepared statement...........................................   124
    Responses to additional questions from Senator Inhofe........   130


  ASSESSING NATURAL RESOURCE DAMAGES RESULTING FROM THE BP DEEPWATER 
                            HORIZON DISASTER

                              ----------                              


                         TUESDAY, JULY 27, 2010

                               U.S. Senate,
         Committee on Environment and Public Works,
                        Subcommittee on Water and Wildlife,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m. in 
room 406, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin (Chairman of the Subcommittee) presiding.
    Present: Senators Cardin, Inhofe, Lautenberg, Vitter, 
Whitehouse, and Merkley.

         OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. The Subcommittee will come to order.
    Today's hearing is on assessing natural resource damages 
resulting from the BP Deepwater Horizon disaster. We welcome 
everyone to our Committee room on this very important subject 
of assessing the damage to the environment from the BP oil.
    On April 20 of this year the BP Deepwater Horizon exploded 
and began this Nation's greatest manmade environmental 
disaster. The catastrophe claimed 11 lives and has left 
thousands of others in turmoil across Louisiana, Texas, 
Mississippi, Alabama, and Florida. Our hearts and prayers go 
out to the families of those who died in the BP Deepwater 
Horizon explosion and to the fishermen and other hard working 
Americans whose jobs and way of life are threatened.
    The first priority in this disaster has been to stop the 
flow of oil from the well. We are heartened by recent progress 
and hope that the well will be sealed for good soon. We must 
ensure our responders have the resources and organization they 
need to remove the oil that is in the water and to protect the 
Gulf Coast.
    But even when the oil is removed to the extent possible it 
will not be enough to fully restore water and wildlife or 
compensate the public for the loss of these natural resources. 
BP and its partners are responsible for repairing this 
environmental destruction, in addition to the economic 
devastation they caused.
    As all of America has seen in the morning newspapers and 
the nightly television news, the current $75 million limit on 
oil spill liability damages represents but a small fraction of 
the actual economic and environmental costs. Senator Menendez's 
bill that this Committee adopted will make sure that BP is 
legally bound to honor its pledge to pay all legitimate claims, 
including those to our natural resources. I am proud to be a 
co-sponsor, and I look forward to that bill being considered by 
the full Senate.
    But just as critical for recovering compensation for 
damages to natural resources and the water and wildlife that 
sustain regional economies, our cultural heritage and treasured 
ways of life is the natural resources damage assessment. This 
is a legal process conducted by the Federal and State agencies 
to identify how natural resources have been injured, the best 
method for restoring them, and the type and amount of 
restoration needed to compensate the public.
    The answers developed through the natural resource damage 
assessment determine the size of the bill presented to BP and 
its partners. They shape the scale and scope of the restoration 
work done to repair the damage. If we are going to get the 
restoration work done right, and if we are going to hold BP and 
its partners accountable for the true extent of the natural 
resources damages they caused, then we need to get an accurate 
and complete assessment of the damage.
    We have already seen in efforts to stop the leak at the 
bottom of the sea what happens when we don't get good 
information. Without an accurate assessment of the flow rate 
from the wellhead, early containment efforts failed. Once a 
loose cap was placed on the well, BP wasn't prepared to capture 
all the oil it could through the containment system. We can't 
afford to have the same incomplete approach when it comes to 
cleaning our waters and restoring our fishing stock and bird 
population or any of the other critical ecosystem restoration 
tasks that lie ahead.
    We are here today to shine a light on the important process 
of assessing natural resource damages, learn any lessons from 
the past efforts, especially Exxon Valdez, and be sure that our 
Federal agencies have the tools they need for the best 
assessment possible.
    I want to thank today's witnesses for being here to help us 
shine light on this very, very important issue. As Chairman of 
the Senate Environment and Public Works Water and Wildlife 
Subcommittee, I have been to the Gulf and seen first-hand the 
environmental and economic impacts of the BP oil disaster. What 
I saw was devastating. I saw colonies of oiled pelicans huddled 
with their young. I saw mile upon mile of oiled shoreline along 
the beaches of Grand Isle, a barrier island off the coast of 
Louisiana and a popular summer resort.
    On that day, the water was closed. And I thought what I 
would be doing if this was in Maryland with Ocean City with the 
beach community closed during the summertime. Obviously, we 
need to do everything we can to help the people of the region, 
and we need to make sure that we do everything we can to get a 
restoration plan that repairs the damage that has been done.
    During today's hearing, I hope we will have a chance to 
talk about whether there is adequate funding so that the 
assessment that is being done will be done as accurately as 
possible; whether the limit of $75 million, how that should be 
modified; whether we have a commitment to the long-term impact.
    We might find information, as we did in Exxon Valdez, that 
suggests to us that the current assessments need to be flexible 
enough to deal with the long-term impact of restoration; 
whether we have objectivity in the assessment, knowing full 
well that we need to work with BP as we do the assessment now, 
is there necessary objectivity? Do we have transparency? Do we 
have peer review? Are we coordinating the efforts between the 
Federal Government and the local governments and the private 
entities that can help us in this effort?
    In short, there are a lot of questions I think we need to 
review during this hearing, and I appreciate the cooperation 
that I have received from my Republican colleagues as we start 
this process in the Subcommittee.
    With that, let me turn to Senator Inhofe, the Ranking 
Republican Member of the full Committee.
    [The prepared statement of Senator Cardin follows:]

                 Statement of Hon. Benjamin L. Cardin, 
                U.S. Senator from the State of Maryland

    On April 20 of this year the BP Deepwater Horizon exploded 
and began this Nation's greatest manmade environmental 
disaster. This catastrophe claimed 11 lives and has left 
thousands of others in turmoil across Louisiana, Texas, 
Mississippi, Alabama, and Florida. Our hearts and prayers go 
out to the families of those who died in the BP Deepwater 
Horizon explosion and to the fisherman and other hardworking 
Americans whose jobs and ways of life are threatened.
    The first priority in this disaster has been to stop the 
flow of oil from well. We're heartened by recent progress and 
hope the well will soon be sealed for good.
    We must ensure our responders have the resources and 
organization they need to remove the oil that's in the water 
and to protect the Gulf Coast.
    But even when the oil is removed to the extent possible it 
will not be enough to fully restore water and wildlife or 
compensate the public for the loss of these natural resources.
    BP and its partners are responsible for repairing this 
environmental destruction in addition to the economic 
devastation they've caused.
    As all of America has seen in the morning newspaper and 
nightly television news, the current $75 million limit on oil 
spill liability damages represents a small fraction of the 
actual economic and environmental costs.
    Senator Menendez's bill, S. 3305, that this Committee 
adopted, will make sure that BP is legally bound to honor its 
pledge to pay ``all legitimate claims'' including those for 
natural resource damages. I am proud to be a co-sponsor, and I 
look forward to its adoption by the full Senate.
    But just as critical for recovering compensation for 
damages to natural resources--those waters and wildlife that 
sustain regional economies, our cultural heritage, and 
treasured ways of life--is the Natural Resource Damage 
Assessment.
    This is a legal process conducted by Federal and State 
agencies to identify how natural resources have been injured, 
the best methods for restoring them, and the type and amount of 
restoration needed to compensate the public.
    The answers developed through a Natural Resource Damage 
Assessment determine the size of the bill presented to BP and 
its partners. They shape the scale and scope of the restoration 
work done to repair the damage.
    If we are going to get that restoration work done right, 
and if we are going to hold BP and its partners accountable for 
the true extent of the natural resource damage they've caused, 
then we need to have an accurate and complete assessment of the 
damage.
    We've already seen in efforts to stop the leak at the 
bottom of the sea what happens when we don't have good 
information. Without an accurate assessment of the flow rate 
from the wellhead, early containment efforts failed. Once a 
loose cap was placed on the well BP wasn't prepared to capture 
all the oil it could have through its containment systems.
    We can't afford to have the same incomplete approach when 
it comes to cleaning our waters and restoring our fishing 
stocks or bird populations or any of the other critical 
ecosystem restoration tasks that lie ahead.
    We are here today to shine a light on the important process 
of assessing natural resource damages, learn any lessons from 
past assessment efforts, especially the Exxon Valdez, and be 
sure that our Federal agencies have the tools they need to do 
the best assessment possible.
    I want to thank our witnesses for being here today to 
provide their insight into this critical process and the 
efforts going on in the Gulf. I am grateful for the work 
they've done and are doing to make sure polluters like BP pay 
for the damage they've done and to ensure that the public is 
made whole for what they've lost.
    As Chairman of the Senate Environment and Public Works 
Water and Wildlife Subcommittee, I have been to the Gulf and 
seen first-hand the environmental and economic impacts of the 
BP oil disaster. What I saw was devastating.
    I saw colonies of oiled pelicans huddled with their young. 
I saw mile upon mile of oiled shoreline along the beaches of 
Grand Isle, a barrier island off the coast of Louisiana and a 
popular summer resort. That day the water was closed to fishing 
and swimming, and the town that should have been full of 
tourists was empty. Worst of all I know that what I saw was 
just the most visible and short-term effects of this disaster.
    My colleagues and I are committed to doing everything we 
can to right the wrongs that have happened to the Gulf. We hope 
we can assist the Administration in this assessment work and 
its other critical efforts to restore the health of the Gulf 
Coast region and a cherished way of life to its people.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Senator Cardin, and I thank you 
for scheduling Subcommittee hearing today because these have 
been some things that we really need to get into.
    I would like to briefly mention that I am working on a 
report on the Administration's response to the BP incident thus 
far. To date we have discovered numerous bureaucratic delays to 
mitigation and containment caused by Federal entities, and I 
look forward to a thoughtful discussion on some of these issues 
today.
    After the tragic Exxon Valdez spill, which was 20 years 
ago, and I recall that I was up there shortly after this and we 
helped work diligently to pass the Oil Pollution Act of 1990 to 
help address many of the legislative gaps and shortcomings 
highlighted by that incident.
    The OPA was created with the important goals of 
strengthening Federal authority over oil spill removal actions, 
creating a Federal liability scheme for addressing oil spills, 
and addressing the issues of removal costs and damages. OPA 
established a solid framework for response that was missing 
during the Exxon Valdez spill.
    This hearing can help us examine this process of the 
natural resource damage assessment currently underway and 
hopefully give us necessary guidance to improve any 
inadequacies.
    As I have stated before several times, when it comes to the 
BP disaster our focus should be on mitigating and containing 
the environmental impacts, providing assistance to the victims 
in the Gulf, and investigating the causes so we can prevent a 
disaster like this, or any kind of disaster, from happening 
again.
    Today, our Committee is fortunate to have a distinguished 
group of witnesses that have diverse, unique experiences to 
share. I would like to especially thank John Young, the 
Chairman of the Jefferson Parish Council, which is the Grand 
Isle area that you are talking about, Mr. Chairman. I am glad 
he is here today to testify. Mr. Young has experience both in 
working on the aftermath of Hurricane Katrina as well as the 
current BP spill. He has valuable insight in the ongoing 
response effort during this current tragedy and has first-hand 
knowledge of the coordination and relief efforts on the ground.
    And while we still do not know the full extent of the 
devastating effect of the BP Deepwater Horizon spill, we owe it 
to the people of the Gulf region and the American people as a 
whole to carefully examine the effectiveness of the Federal 
response, as well as the potential legislation that Congress 
can offer.
    What I would guard against is using this. I remember so 
well when I went up to the Exxon Valdez, there were a lot of 
environmentalists, a lot of them with their own agenda up there 
actually celebrating and stating that they were going to parlay 
this into stopping the exploration of the North Slope. My 
response at that time, Mr. Chairman, is well, that was a 
transportation accident. And if you stop that production, that 
is going to increase transportation and increase the 
possibility of something like this happening again. And they 
didn't really care.
    So there are some, I am sorry to say in this case, who are 
trying to parlay this into something to advance a personal 
agenda doing away with all drilling, with all of our ability, 
then, to be able to produce our own energy here in America. And 
I hope that doesn't happen, and this hearing is going to be I 
think instrumental in focusing on what the real problem is and 
the solutions that are out there.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Inhofe follows:]

                  Statement of Hon. James M. Inhofe, 
                U.S. Senator from the State of Oklahoma

    Thank you, Senator Cardin, for scheduling today's 
Subcommittee hearing to discuss the difficult and extensive 
process of determining natural resource damages stemming from 
BP's Deepwater Horizon disaster.
    I would like to briefly mention that I am working on a 
report on the Administration's response to the BP incident thus 
far. To date we have discovered numerous bureaucratic delays to 
mitigation and containment caused by Federal entities, and I 
look forward to a thoughtful discussion on some of those issues 
today.
    After the tragic Exxon Valdez spill, which occurred over 20 
years ago now, Congress worked diligently to pass the Oil 
Pollution Act of 1990 (OPA) to help address many of the 
legislative gaps and shortcomings highlighted by that tragedy. 
The OPA was created with the important goals of strengthening 
Federal authority over oil spill removal actions, creating a 
Federal liability scheme for addressing oil spills, and 
addressing the issues of removal costs and damages. OPA 
established a solid framework for response that was missing 
during the Exxon Valdez spill. This hearing can help us examine 
the process of natural resource damage assessment currently 
underway and hopefully give us the necessary guidance to 
improve any inadequacies.
    As I have stated before, when it comes to the BP disaster 
our focus should be on:
     Mitigating and containing the environmental impacts;
     Providing assistance to the victims in the Gulf; and
     Investigating the causes so we can prevent a disaster of 
this kind from happening again.
    Today our Committee is fortunate to have a distinguished 
group of witnesses that have diverse and unique experiences to 
share. I would especially like to thank John Young, Chairman of 
the Jefferson Parish Council, for testifying today. Mr. Young 
has experience both in working on the aftermath of Hurricane 
Katrina as well as the current BP spill. He has valuable 
insight into the ongoing response effort during this tragedy 
and has first-hand knowledge of the coordination and relief 
efforts on the ground.
    While we still do not know the full extent of the 
devastating effects from BP's Deepwater Horizon spill, we owe 
it to the people in the Gulf region and the American people as 
a whole to carefully examine the effectiveness of the Federal 
response as well as the potential legislation we in Congress 
can offer to help. I hope that this hearing today will be a 
positive step in that direction.

    Senator Cardin. Senator Lautenberg.

        OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 
           U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Lautenberg. Thanks very much, Mr. Chairman. I am 
here in the nick of time, and I wish that we had been in the 
nick of time with the subject under discussion here.
    It is more than 3 months since the BP oil well blew out. We 
are still waiting for the flow of oil contaminating the Gulf to 
be permanently stopped. But the unfortunate reality is even 
after the well is stilled for good, the damage and devastating 
from this tragedy is going to linger on not just for months, 
but obviously for years.
    And as we have seen from past spills, it can take decades 
before the environment and wildlife recover from these 
disasters. For instance, more than 20 years ago after the Exxon 
Valdez foundered, 19 animal species in Alaska are still 
struggling to recover from the spill, and two, including 
herring, a very important species for their economy and their 
environmental infrastructure, have shown no signs of 
improvement. And as much as 180 million of gallons have poured 
into the Gulf of Mexico since the BP Deepwater Horizon rig 
exploded, 15 times as much as the Exxon Valdez, and it is 
killing hundreds of birds, she-turtles and other marine life.
    And there are lots of chilling scenes coming out of the 
Gulf: black-coated pelicans flapping their wings helplessly, 
the bay crabs with oil lodged under their shells, and clusters 
of dead jellyfish floating on the water.
    But of equal concern is what we don't see. Most animals 
will die far out in the ocean on the water or in the thick of 
coastal wetlands, and they will never be known or counted. 
Species impacted by the spill will likely also include sperm 
whales, bluefin tuna, and precious coral.
    As the clean up and control efforts continue we have to be 
absolutely sure that the work to undo the damage is effective. 
And today in the Gulf some of the remedies being pursued may 
ultimately make matters worse. For example, we simply don't 
know if the powerful chemical dispersants which have been used 
in abundance to break up the oil are really safe for sea life. 
Current law doesn't require adequate testing of these 
dispersants. And because of that relief workers and wildlife 
have become unwitting participants in a dangerous science 
experiment.
    For example, we don't know if breaking down the oil into 
smaller components will make it more likely that the fish will 
eat the oil, which will slowly accumulate in other species up 
the food chain.
    And that is why today, Mr. Chairman, I am introducing a 
Safe Dispersants Act, a common sense bill that will require 
long-term testing and disclosure of all ingredients in the 
dispersant before it can be used in response to a spill.
    Let's be clear. Even as we take every step possible to 
clean up this spill and protect the environment and wildlife, 
we simply cannot wait for the next oil disaster to occur. The 
tragedy in the Gulf has confirmed beyond a shadow of a doubt 
that offshore drilling has inherent dangers. And in fact during 
hearings in May I asked oil executives if any one of them could 
guarantee that another offshore rig disaster of this magnitude 
wouldn't happen. Not one of them could say anything that they 
couldn't guarantee it.
    So we can't leave our fate in the hands of big oil. And 
that is why I am going to continue to insist that we place a 
permanent ban on offshore drilling off the Atlantic Coast. The 
bottom line is this is a time to move away from that oil and 
not encourage new drilling. And it is time to invest in clean 
and safe renewable energy.
    And I thank the Chairman for holding this hearing, and I 
look forward to hearing from our witnesses' insights.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Lautenberg.
    No member of our Committee has been more directly impacted 
by this spill than the Senator from Louisiana, who I had a 
chance to be with when we were at Grand Isle in Louisiana.
    Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Mr. Chairman. Thank you for this 
important hearing, and thank you very much for your visit with 
other members of the Committee several weeks ago. I joined you 
all for the day, and I think it was extremely productive for 
me, and I hope for everybody who was on that visit. Thank you 
for that time. We really do appreciate it.
    I want to make four points real quick. First of all, the 
natural resource damages assessments are imperative for 
cleaning up this mess properly and to ensuring the future 
environmental health of the Gulf. So we need to get this right.
    I have enjoyed working with you and your staff in 
particular on having the National Academy of Sciences take a 
comprehensive look at the best methodologies for assessing 
resource damages, and I appreciate all of that work in that 
ongoing effort.
    But we need to get this right. If we get it wrong, Gulf 
fishermen--recreational and commercial--and everybody else in 
my part of the world could be seriously economically crippled 
in terms of inadequate restoration of our wetlands and 
habitats.
    Second, I certainly completely agree with you that we need 
to ensure that BP takes full responsibility and pays for all of 
the damages without limit. I am concerned that we are not going 
to pass that into law because I believe the Menendez bill is 
not going to pass the Senate anytime soon.
    So again, I urge everyone in the Senate to come together 
around my legislation which would remove any cap for this 
event. That has been cleared on the Republican side. That could 
pass the Senate tomorrow, be passed into law very quickly to 
remove any doubt, any possibility of any cap with regard to 
this event as we continue to debate permanent policy for the 
future. So I would encourage everybody's openness and 
consideration to that.
    No. 3, Mr. Chairman, I know it is not the subject of this 
hearing, but I again want to quickly emphasize my extreme 
concern with the drilling moratorium in the Gulf. It is an 
absolutely consensus in Louisiana that that moratorium is 
crippling us economically and not protecting our environment. 
Everyone there, including fishermen, including coastal 
communities, including those most invested in the environment, 
want immediate safety measures, but want that moratorium 
lifted. I will continue to work with other Members on that.
    And fourth, Mr. Chairman, also want to recognize and thank 
one of our witnesses today, Councilman-at-Large John Young of 
Jefferson Parish, my home parish. He represents me. He 
represents me and my family well. He has been a leader on all 
of these issues on the ground, and I look forward to his and 
others' testimony.
    Thank you.
    Senator Cardin. Thank you, Senator Vitter.
    Senator Merkley.

            OPENING STATEMENT OF HON. JEFF MERKLEY, 
             U.S. SENATOR FROM THE STATE OF OREGON

    Senator Merkley. Thank you, Mr. Chair.
    I think it is critical that we get this right. We know that 
the natural resource damages are going to be enormous in scale. 
There was a ship called the New Carissa that ran aground off of 
the southern coast of Oregon. It killed 2,300 sea birds and 800 
shore birds and it was thought to have killed millions of 
oysters in Coos Bay, causing more or less $10 million of 
damage, all of that from less than 2,000 barrels of oil. By 
contrast, we are talking here about 60,000 barrels per day, so 
a scale several orders of magnitude beyond.
    So I appreciate the hearing. I look forward to the 
testimony.
    Thank you, Mr. Chair.
    Senator Cardin. Thank you very much, Senator Merkley.
    Let me just alert my colleagues, and the witnesses, and 
those that are here. We anticipate a vote on the Senate floor 
at 3 o'clock today. I believe it is only one vote. We will do 
our best to continue the hearing, but it might be necessary to 
take a short recess in order to make sure all the Members have 
an opportunity to vote on that issue.
    So let me welcome our first group of panelists. First, we 
have Cynthia Dohner. She is the Regional Director of the U.S. 
Fish and Wildlife Service in the Southeast Region, overseeing 
the Service's activities in 10 States, including those along 
the Gulf Coast, as well as the Commonwealth of Puerto Rico and 
the United States Virgin Islands. She is also the lead official 
to the Department of Interior for BP Deepwater Horizon natural 
resource damage assessment.
    We also have with us Tony Penn, the Deputy Chief in the 
Assessment and Restoration Division of NOAA. Mr. Penn plays an 
important role in NOAA's damage assessment cases broadly and in 
the work on the BP Deepwater Horizon assessment in particular. 
He was previously a natural resource economist conducting 
damage assessment work primarily in the Gulf and the Caribbean 
regions. I want to thank him for being here today to give us 
insight into this critical process of assessing the damage in 
the Gulf of Mexico.
    And our third witness is Dr. Eva J. Pell, the Under 
Secretary for Science. Dr. Pell directly oversees the 
operations of the National Museum of Natural History, including 
the operations of the Smithsonian Environmental Research Center 
in Edgewater, Maryland, and the Smithsonian Museum Conservation 
Institute in Suitland, Maryland. The Smithsonian holds 
specimens of water quality throughout the Gulf region which can 
be very important in trying to assess the specific damages 
caused to the environment as a result of the BP Deepwater 
Horizon oil spill.
    So I look forward to all three of our witnesses' testimony. 
Your entire statements will be made part of our record, and we 
will start with Ms. Dohner.

   STATEMENT OF CYNTHIA DOHNER, REGIONAL DIRECTOR, SOUTHEAST 
             REGION, U.S. FISH AND WILDLIFE SERVICE

    Ms. Dohner. Chairman Cardin and members of the 
Subcommittee, I am Cynthia Dohner, Regional Director of the 
U.S. Fish and Wildlife Service's Southeast Region, Department 
of Interior's authorized official for the natural resource 
damage assessment restoration process in the BP Deepwater 
Horizon oil spill.
    I appreciate the opportunity to appear before the 
Subcommittee today to testify on the process for assessing 
damages to natural resources.
    Before I begin my statement, I would first like to extend 
my condolences to the families of those who lost their lives, 
to those injured in the explosion and sinking of the Deepwater 
Horizon oil rig, and to those whose livelihood and communities 
are being devastated by this oil spill.
    The magnitude of the BP Deepwater Horizon oil spill is 
unprecedented in the United States and could result in 
unparalleled injury to the Gulf of Mexico's ecosystem and its 
vast and diverse natural resources. Assessments are underway to 
quantify impacts to numerous species and populations across 
five States and along thousands of miles of shoreline and 
hundreds of thousands of acres of coastal and marine habitat.
    The nature and extent of injuries to natural resources, 
especially in the coastal and marine environment, remains 
uncertain and the full impact of the oil spill will likely not 
be known for decades. The natural resource damage assessment 
and restoration process, or NRDAR, focuses on identifying 
injured natural resources, determining the extent of the 
injuries, recovering damages from responsible parties, and 
planning and carrying out natural resource restoration 
activities to achieve pre-spill conditions.
    The process involves Federal and State agencies and tribal 
governments acting as trustees for those natural resources 
under their legal jurisdiction. Lands and natural resources 
under the trusteeship of the Department of Interior are among 
the resources most impacted by the BP Deepwater Horizon oil 
spill. To guide the NRDAR process through the preliminary 
stages, the trustees have formed the Trustee Steering Committee 
to facilitate cooperation and coordination among the 
participating Federal and State agencies.
    The steering committee includes representatives from Texas, 
Louisiana, Mississippi, Alabama, Florida, the Department of 
Commerce, and the Department of the Interior. The Departments 
of Defense and Agriculture, along with affected tribes in the 
Gulf, may also participate in the NRDAR action.
    Thirteen technical working groups have been established by 
the trustees based on broad resource categories. Each group is 
developing studies to assess injuries pertaining to its 
resource areas, taking into account impacts from the oil spill 
and response actions.
    In addition to these studies, the trustees are reviewing 
and as appropriate incorporating vast amounts of monitoring 
data on the Gulf of Mexico to better understand and assess 
injuries that may potentially result from the BP Deepwater 
Horizon oil spill. Trustees are also actively seeking 
scientific information and data from sources inside and outside 
the Government. Data generated by experts outside the NRDAR 
process are often invaluable in establishing baseline 
conditions, accurately quantifying the full extent and 
magnitude of injuries, and developing properly scaled 
restoration activities.
    At the beginning of this incident, Interior bureaus, 
including the U.S. Fish and Wildlife Service, the National Park 
Service, and the U.S. Geological Survey, immediately deployed 
personnel and resources to collect pre-spill or baseline data 
necessary for a NRDAR claim. The Bureau of Land Management and 
Bureau of Indian Affairs later joined in these efforts.
    To date Interior bureaus have received approximately 
$900,000 in funding from the Departmental NRDAR Fund. In 
addition, Interior obligated more than $1.5 million of its $4.7 
million request from the U.S. Coast Guard-managed Oil Spill 
Liability Trust Fund to support initial baseline data 
collection along with agency and State coordination work.
    Finally, individual bureaus have also spent some of their 
base funding to support initial work. In May 2010 BP provided 
$45 million to Federal and State trustees for the beginning 
phases of the injury assessment process. The Department of 
Interior and NOAA were allocated a total of $20 million in 
advance funding.
    So far, Interior has obligated most of its $10 million for 
personnel costs, equipment, and supplies and contracts with 
outside experts to implement assessment plans. In addition the 
U.S. Fish and Wildlife Service recently established a specific 
account through our reimbursable process for these NRDAR 
activities. The establishment of this account will ensure that 
the damage assessment activities that we determine are needed 
will be able to continue moving forward in a timely fashion.
    The scope and magnitude of natural resource injuries and 
other impacts resulting from the BP Deepwater Horizon oil spill 
are unprecedented. We do not know at this time the extent of 
the injuries, but we believe that they will affect fish, 
wildlife, and plant resources in the Gulf and possibly in other 
areas across the country for years and decades to come. This 
spill has illuminated the need for additional information about 
wildlife, fisheries, and habitat as we try to quantify the 
damage and understand the cumulative effects of the stressors 
that act on the Gulf Coast ecosystem.
    Finally, I would like to underscore how proud I am of our 
employees and volunteers and the extraordinary effort they are 
putting forth to respond to this unprecedented event and their 
continuing work and dedication to protect and restore America's 
natural resources.
    Mr. Chairman and members of the Subcommittee, thank you for 
the opportunity to testify. I will be happy to answer any 
questions.
    [The prepared statement of Ms. Dohner follows:]
    
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    Senator Cardin. Thank you for your testimony.
    We know this is difficult. All of the individuals who are 
involved in the day to day work here to try to get this right, 
so we appreciate the work of your employees and your agency, 
and same thing with NOAA.
    Mr. Penn.

     STATEMENT OF TONY PENN, DEPUTY CHIEF, ASSESSMENT AND 
   RESTORATION DIVISION, OFFICE OF RESPONSE AND RESTORATION, 
        NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

    Mr. Penn. Thank you, Chairman Cardin and members of the 
Subcommittee, for the opportunity to testify on NOAA's role in 
assessing natural resource damages from the Deepwater Horizon 
oil spill.
    My name is Tony Penn. I am the Deputy Chief of the 
Assessment and Restoration Division in NOAA's Office of 
Response and Restoration. I appreciate the opportunity to 
discuss the critical roles NOAA plays during and following oil 
spills and the importance of our contributions to protect and 
restore the natural resources, communities, and economies 
affected by oil spills.
    Before I discuss NOAA's efforts I would first like to 
express my condolences to the families of the 11 people who 
lost their lives in the explosion and sinking of the Deepwater 
Horizon platform.
    NOAA is deeply concerned about the immediate and long-term 
environmental, economic, and social impacts to the Gulf region 
from the Deepwater Horizon oil spill. Over the past 3 months 
NOAA has provided sustained scientific support to the Unified 
Command and carried out our trustee responsibilities. We are 
fully mobilized and working tirelessly to address spill impact 
on the Gulf region, and we will continue to do so until the 
release is fully controlled, the oil is cleaned up, the natural 
resource damages are assessed, and the restoration of those 
natural resources is complete.
    My testimony today will briefly mention NOAA's role in oil 
spill response and focus on NOAA's role in natural resource 
damage assessment.
    NOAA has three critical roles during spills. We serve as a 
scientific adviser to the Coast Guard to provide trajectory 
predictions on the fate and transport of oil, conduct 
overflights and mapping, identify sensitive environmental 
resources, and conduct shoreline surveys to guide clean up.
    Second, we represent the Department of Commerce in spill 
response decisionmaking activities of the National Response 
Team. We also assess and restore natural resources injured by 
the spill and their lost human uses through a process called 
natural resource damage assessment, or NRDA.
    Natural resource damage assessment restores natural 
resources injured by the spill. It is conducted by several 
Federal agencies, States, and tribal trustees who share 
decisionmaking authority equally through consensus. NOAA, 
acting on behalf of the Secretary of Commerce, is the lead 
trustee for many of the Nation's coastal and marine resources.
    NOAA and the co-trustees are authorized by the Oil 
Pollution Act, or OPA, to recover damages from the responsible 
party on behalf of the public for injuries to and lost use of 
trust resources resulting from an oil spill. OPA requires 
compensation in the form of restoration, and the appropriate 
compensation is determined through the NRDA process.
    At the outset of the Deepwater Horizon spill NOAA quickly 
mobilized staff to collect a variety of data that are critical 
to help inform the damage assessment. NOAA and co-trustees 
continue to collect data in the Gulf of Mexico and across fives 
States that will help us determine what natural resources have 
been injured and what human uses have been affected due to the 
spill.
    Technical working groups composed of State and Federal 
trustees and representatives from BP are gathering historical 
information and developing and implementing field studies for a 
variety of natural resources. Resources being assessed include 
fish and shellfish, birds, marine mammals, turtles, and 
sensitive habitats such as wetlands, sea grasses, beaches, mud 
flats, deep and shallow corals, and water column and bottom 
sediments.
    Currently NOAA and the co-trustees are in the early stages 
of the damage assessment and are documenting exposure of 
resources and habitat for oil. The data and information being 
collected now from baseline, and exposure studies will be used 
to determine what further studies to pursue to document injury.
    It is too early in the process to know what the full scope 
of the injury studies will be. Although the concept of 
assessing injuries may sound relatively straightforward, 
understanding complex ecosystems, the services those ecosystems 
provide, and the injuries caused by oil and hazardous 
substances takes time, often years.
    The effects of the Deepwater Horizon oil spill on natural 
resources are dependent on multiple factors, including the type 
and quantity of oil, what life stages of animals are exposed, 
where, and for how long.
    Ultimately, the trustees will determine how best to restore 
the injured natural resources and will develop the most 
appropriate restoration projects to compensate the public for 
lost resources and services. Those projects will be paid for or 
implemented by the responsible parties, and trustees will 
monitor the projects to make sure the natural resources are 
successfully restored.
    We intend to complete this process as efficiently and 
quickly as we are able because our goal is to restore the 
natural resources of the Gulf. In the wake of such an event we 
are reminded of the importance of the coastal ecosystems and 
the dependence of human livelihoods on the health and 
prosperity of our seas.
    I would like to assure you that we will not relent in our 
efforts to restore natural resources affected by this 
unprecedented oil spill. We will fully compensate the public 
for its natural resource and service losses.
    Thank you for allowing me to testify on NOAA's damage 
assessment efforts. I am happy to try and address any questions 
that you may have.
    [The prepared statement of Mr. Penn follows:]
    
 
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    Senator Cardin. Thank you very much, Mr. Penn.
    Dr. Pell.

    STATEMENT OF EVA J. PELL, UNDER SECRETARY FOR SCIENCE, 
                    SMITHSONIAN INSTITUTION

    Ms. Pell. Thank you, Chairman Cardin and distinguished 
members of the Subcommittee, for the opportunity to provide 
testimony today on the role the Smithsonian Institution might 
play in assisting in the aftermath of the oil spill in the Gulf 
of Mexico.
    I, too, wish to express my condolences to all the victims 
of this disaster.
    My name is Eva Pell. I joined the Smithsonian Institution 
in January of this year after a long career as a plant 
scientist and academic administrator. I now have the privilege 
of serving as the Under Secretary for Science at the 
Smithsonian where I oversee 500 scientists and the operation of 
all the science-based museums and institutes.
    The Smithsonian Institution, through its vast collections, 
its outstanding research capacity, and its highly skilled 
service providers, is poised to contribute to the long-term 
understanding and management of the Deepwater Horizon oil 
spill. As others have pointed out, this oil spill is probably 
the worst manmade ecological disaster in U.S. history. 
Understanding the impact will benefit from facts. Hard data on 
the pre-spill environment will be critical.
    For the last 30 years, the National Museum of Natural 
History has collaborated with the Bureau of Ocean Energy 
Management, Regulation and Enforcement to archive the 
collections from the Bureau's Environmental Studies Program. 
These collections are housed at the Museum's Support Center in 
Suitland, Maryland. Most of the collections focus on the Gulf 
because that was where most drilling occurred.
    I would like to emphasize and acknowledge the foresight of 
the Bureau in collecting these quantitative baseline 
collections. In total the Bureau collections amount to more 
than 330,000 samples. Of these, more than 93,000 came from the 
Gulf of Mexico. They were collected at over 500 different 
depths, some as deep as 2 miles and at 1,000 different places.
    The map on display in your packet gives you some idea of 
the geographic coverage. The red dots are the Bureau's 
quantitative samples. Each one of those red dots is a place 
that may have yielded hundreds of species and thousands of 
specimens. The yellow dots represent additional Smithsonian 
marine collections from other sources.
    The Smithsonian is committed to long-term studies of 
ecosystems and biodiversity. These collections play a crucial 
role in assessing environmental disasters. For example, in 1986 
more than 50,000 barrels of oil impacted the coast of Panama, 
including the habitats adjacent to the Galeta Marine Laboratory 
of the Smithsonian Tropical Research Institute. Because the 
Smithsonian had already studied the site for many years the 
Bureau chose the Smithsonian to assess the impact of the spill. 
This study was one of the first to clearly document the long-
term effects of oil on soft bottom marine habitats such as are 
found along the U.S. Gulf Coast.
    I also call your attention to near-shore survey research 
conducted by SERC, the Smithsonian Environmental Research 
Center in Edgewater, Maryland. Our researchers have developed 
an extensive baseline data set of both native and non-native 
fouling organisms in four major bays in the Gulf of Mexico. 
Again, these data will help inform adverse changes in species 
composition in near-shore environments impacted by the 
Deepwater Horizon oil spill.
    Since 1999 SERC is also home to the National Ballast 
Information Clearinghouse, which has been collecting 
information on ship arrivals and ballast water discharges as 
vectors of invasive species. The ballast water data base 
provides a means to assess the risk that shipping might serve 
to spread toxic oily water beyond the Gulf.
    Thinking also of the service arm of the Smithsonian 
Institution, I am pleased to report that the veterinarians from 
the Smithsonian National Zoological Park are working on a 
rotating basis assisting veterinarians from other Federal 
agencies to oversee the logistics and release of recovering 
wildlife, primarily birds, from the affected region.
    To conclude, one of the great contributions of the 
Smithsonian is its long-term commitment to collections and its 
capacity to make them available to understand the past, explain 
the present, and predict the future.
    I have brought with me a specimen from the Gulf of Mexico 
collection which I hope is going to be brought forward now. It 
is a deep sea stony coral, one of the 90 species that form the 
superstructure needed for many organisms that live in the 
depths of the Gulf of Mexico.
    Thank you for the opportunity to testify, and I look 
forward to answering any questions you may have.
    [The prepared statement of Ms. Pell follows:]
    
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    Senator Cardin. Let me thank all three of you for your 
testimony.
    Ms. Dohner and Mr. Penn, your agencies are trustees in 
regards to the natural resource damage assessment. As such, I 
think you have a particularly important role in the view of 
protecting the public interest.
    The law requires that the natural resource damage 
assessment do a preliminary assessment as to the damages, to 
develop a restoration plan, and to monitor the restoration 
implementation. To get this right you have to have an accurate 
assessment going in. And I have been concerned as to whether 
particularly U.S. Fish and Wildlife has adequate resources in 
order to move forward with the assessment.
    NOAA has a little bit better flexibility as far as funding, 
and I wrote Secretary Salazar as to whether he needed help on 
funding. If I understand the law properly, you have two 
choices. You either fund the assessment and then seek 
reimbursement from BP, or you get BP's approval to do an 
assessment project which may or may not be coming or may be 
delayed or could cause the concern as to its objectivity as to 
the scope in which BP agrees to the funding request. So it is 
important that you have your own independent funding sources in 
order to be able to do an accurate assessment.
    So my first question to you is whether you have adequate 
resources. You talked, Ms. Dohner, about I think a little over 
$1 million has been committed through DOI or Fish and Wildlife 
that BP has made available, I thought you said somewhere around 
$50 million, if you said correctly, toward these assessments?
    Ms. Dohner. $45 million.
    Senator Cardin. $45 million. And then there have been press 
accounts that BP has committed as much as $500 million for its 
own independent review of the damages, hiring a lot of the top 
scientists in the Nation under nondisclosure agreements where 
they may very well have information that is important for us, 
but in a way, BP is preventing that from being reviewed 
publicly.
    Do we have adequate resources to do this assessment?
    Ms. Dohner. Sir, thank you for the letter. We do know about 
the letter, and we are going to address that and get a response 
back to you.
    At this time we were able to start what we needed to do. At 
the very beginning we started within days to do these pre-
assessments, and the funding was adequate. And we have been 
able to fund all the different pre-assessment studies that we 
needed to date. And we are working with BP on additional funds 
that will help us go forward with this damage assessment. And 
then we also have funds available through the Department of 
Interior, the NRDAR funding mechanism. And then we can also go 
to the oil spill liability trust fund.
    So to date we have had funds available to continue with the 
studies that we need to go forward with the pre-assessment.
    Senator Cardin. Are you concerned by the reports that BP is 
hiring a significant amount of academic talent under 
nondisclosure agreements?
    Ms. Dohner. Sir, there is some concern, but we also are 
exploring and looking out to experts and providing the 
opportunity to those experts to get involved in the different 
studies that we are developing for pre-assessment and 
assessment. So we believe within the Department of Interior and 
the U.S. Geological Survey and NOAA, the different universities 
that we are able to reach out to for help with the development 
of these studies, that we, too, have the expertise that we need 
to go forward.
    Senator Cardin. As trustees I believe you really have a 
fiduciary responsibility to make sure that you are satisfied 
for the purposes of the people of this Nation, representing 
them, that there is independence and objectivity on these 
assessments. Do you feel that that is your responsibility, to 
be able to ensure us that these assessments are being done to 
the standard of independence that we should expect? And if it 
is not, that you will come forward and let us know?
    Ms. Dohner. I do agree that we need to make sure that we 
have the studies that are rigorous and that they will ensure 
that we have the proper assessments going forward. And we do 
believe that at this time we have been able to develop pre-
assessment studies. And as we go into the assessment stage, we 
will be able to reach out to researchers that we need to make 
sure we have the proper studies. And if there are issues, we 
will make sure that we reach out when needed.
    Senator Cardin. That is not exactly my question. On behalf 
of this Committee, do we have your assurance that if the 
independence and objectivity is not at the standard you think 
is right to protect the public, that this Committee will be 
notified so that we are aware of the concerns that you are 
experiencing?
    Ms. Dohner. Sir, I can make the commitment that we will 
make you aware of any concerns that we would have as we go 
forward.
    Senator Cardin. Thank you. I appreciate that.
    One last point, and I will turn it to my colleagues, and 
that is transparency is important here. There is a lot of 
interest with peer review. Can either one of you tell us what 
procedures are being put in place in the assessment process so 
that there is an openness that the public can review and that 
the experts in this area will have a chance to review? And 
whether you are encouraging peer review?
    Mr. Penn. Thank you. I will take that. Yes, we are also 
very interested in transparency. We are very interested in 
doing the right science, making sure it is objective science. 
At this stage in the process our review has been occurring 
within our co-trustee groups. We have had different levels of 
review on our study plans.
    We have recently posted our pre-assessment plans on our Web 
site. We are trying to be proactive in getting information out 
there about what is in our study plans, as well as we are 
getting information data back from some of these studies. We 
are moving forward with posting some of that information as 
well.
    That is, I don't want to say unprecedented for our natural 
resource damage assessment work, but I think we have been very 
up front and focused on that transparency here.
    In terms of opening up the assessment to a full public 
process, we have a number of things that are required in OPA in 
terms of engaging the public. We provide notice of intent. We 
let the public know that we are going to be doing a damage 
assessment. We engage their comments on our damage assessment 
and restoration plans.
    In this case we will be doing much more than that. We will 
be going above and beyond the minimum requirements in the OPA 
NRDA regulations. In terms of how exactly we will engage 
external peer review throughout this process, I think that is 
something that we need to talk about in our co-trustee group. 
Again, we are doing some of that internally. How much we open 
that up to the outside will be a co-trustee consensus decision.
    I guess the one thing I would want to raise here is that, 
yes, we want to be transparent, and we are interested in 
getting good feedback on our work. At the same time we are 
trying to protect the Government's interest in this claim. And 
so there may come a point where we have to be guarded about how 
much we are saying publicly.
    Senator Cardin. And I certainly understand that, but I 
would ask that this Committee be kept informed as those 
decisions are being made.
    Mr. Penn. OK.
    Senator Cardin. Senator Vitter.
    Senator Vitter. Thank you, Mr. Chairman.
    Ms. Dohner and Mr. Penn, I want to direct a couple of 
questions to you in particular. Certainly I agree with everyone 
here that natural resource damage assessments are extremely 
important. There is one thing I would rank as more important, 
particularly over the last couple months, which is natural 
resource damage prevention. In that category, my experience 
directly has been the same as most Louisianians that Federal 
agencies have been great at raising objections, dragging feet 
with regard to practical initiatives put forward at the State 
and local level.
    And in particular I am thinking of the emergency dredging 
barrier island plan which took weeks and weeks to get a small 
portion of it approved. And I am also thinking of various 
proposals to block the oil from entering Barataria Bay.
    Can each of you tell me what your agency's role in that 
process was? Because from a Louisiana perspective, what the 
Federal agencies were best at was raising countless objections, 
slowing things down to an impractical pace, and blocking what 
seemed to be a lot of good, practical emergency solutions being 
put forward.
    Ms. Dohner. Senator, speaking as the Regional Director for 
the Southeast Region, our field staff are involved in the 
review, working with the Corps to review those permit 
proposals. They worked with the Corps to review the different 
proposals on both the berm and the rock berms. And they 
provided permit measures and different things as part of that 
permit review.
    We do need to make sure that we go through all the 
environmental processes that we have to do as we go forward 
with those types of projects to make sure that we minimize 
impacts to the environment and the different legal requirements 
we have.
    Senator Vitter. Well, first of all, specifically in those 
two cases, what was U.S. Fish and Wildlife Service's input?
    Ms. Dohner. The U.S. Fish and Wildlife Service reviewed 
each one of those permit proposals and provided information 
back to the U.S. Army Corps of Engineers on permit conditions 
as they went forward.
    Senator Vitter. I understand that. What I am asking is, 
broadly speaking, what was the information? What was the input?
    Ms. Dohner. Sir, I don't know the specifics so I would have 
to go back and get that information and get back to you with 
the specific measures.
    Senator Vitter. OK. Can your agency get that in some detail 
to my office?
    Ms. Dohner. Yes, sir.
    Senator Vitter. OK. Second, in response to your general 
answer, let me just point out that while you are taking your 
time, quite frankly, doing these environmental assessments, oil 
is going into Louisiana marshes. This isn't a non-emergency 
situation. This is a clear emergency situation, and clear 
environmental damage was happening every hour of every day. So 
I think that is the universal perspective on the ground in 
Louisiana.
    Mr. Penn, what about NOAA?
    Mr. Penn. Yes, we also provided comments on the plans. I 
think at the end of the day our comments were that we wanted to 
monitor. We didn't stand in the way of the berms. We wanted to 
monitor what was happening because of the berms. We wanted to 
evaluate the effectiveness of the berms from the standpoint of 
ecological benefits. But at the same time we were also looking 
at would there be any potential harm because of these projects.
    And so from a damage assessment perspective if there were 
response-related impacts because of these actions those 
injuries would be coverable under our natural resource damage 
assessment process.
    So I think from those perspectives we were supportive. We 
wanted to monitor what was happening out there environmentally, 
and then we would look at that from a natural resource damage 
assessment perspective to see if there were any injuries caused 
by this response action that we would have to pursue.
    Senator Vitter. And then what about the separate proposals 
to try to block oil more effectively from going into Barataria 
Bay?
    Mr. Penn. I am sorry, sir. I am not familiar with that 
particular proposal. That was separate from the berm?
    Senator Vitter. It was. Again, if you could have NOAA 
respond more specifically to me, I would appreciate it.
    Mr. Penn. We will. Thank you.
    Senator Vitter. OK. Also final question, concern has 
obviously been raised about the dispersants. What specifically 
is each of your agencies doing with regard to monitoring 
dispersant damage or assessing dispersant damage?
    Mr. Penn. Sir, I will start. This is a real concern. 
Dispersants have been used in this spill unlike any other spill 
that I am aware of. And used in a way that is different from 
what we have seen in the past, using dispersants at depth, 
unprecedented volume of dispersants applied at the surface.
    We are very much concerned about the dispersant effects on 
all of the water column as these dispersants go from the 
surface down and from the bottom of the ocean up through the 
water column.
    Through our different technical working groups we are 
looking at different effects of both oil and dispersed oil, so 
oil including the dispersants. Right now, we have a deep coral 
cruise ongoing, documenting exposure of the deep corals to oil 
and dispersed oil. And all the details here I may have to get 
back to you on, sir, but we are looking at toxicity tests with 
fish and the impacts of dispersants and dispersed oil. I 
mentioned we are looking at exposure of the coral reefs to 
dispersed oil.
    Our first step in this process--and this is where we are 
now is really looking at exposure. And once we identify that we 
have exposure of resources to oil, dispersed oil, then we will 
pursue the assessment of the impacts. We are moving forward on 
that. We are looking at impacts to fish. We are looking at some 
toxicity tests, but we have a long way to go.
    Senator Cardin. Thank you.
    Senator Lautenberg.
    Senator Lautenberg. Mr. Chairman, thanks for the 
opportunity to review this. I don't want to get off track here, 
but do any of you think that we can do deep sea or deep 
drilling in the search for oil and never expect any accidents 
or spills to accompany that? Would you say we could do that, 
Ms. Dohner?
    Ms. Dohner. Senator, I think you have to evaluate the risks 
on whether or not----
    Senator Lautenberg. No, no. That is not the question. The 
question is do you think that we can expect a clear sail that 
will never have a spill or an accident when we are doing these 
things?
    Mr. Penn, while Ms. Dohner thinks that over. Do you think 
that we can?
    Mr. Penn. I don't think we can assure that accidents don't 
happen.
    Senator Lautenberg. Ms. Pell.
    Ms. Pell. I think history speaks for itself.
    Senator Lautenberg. Well, that being the case, then how 
could the use of dispersants that might carry their own danger 
be allowed to just be introduced into the picture? I don't 
understand that. Do any of your agencies--all of you represent 
a scientific view of what is happening there; how is it that 
suddenly we have awakened to the fact that these dispersants 
may be dangerous unto themselves?
    Mr. Penn. I think we have in region VI, the regional 
response team, and this really is a response decision in terms 
of whether or not to apply dispersants. I think from the damage 
assessment perspective we understand what the response 
decisions are. We look at what they are, and then we try and 
assess, OK, what are the impacts or the result of the response 
decisions.
    So in this case the regional response team for that region 
had preapproved use of dispersants beyond the 3-mile State 
water limit. So that is sort of preapproved. I think the 
Unified Command, as they are making these decisions, has to 
weigh the tradeoffs.
    Senator Lautenberg. So then I take it that you are agreeing 
that there was an understanding that there might be some 
dangers in the use of this.
    Mr. Penn. Absolutely. It is a trade-off. It is do you 
disperse the oil further out at sea and fight it that way? Or 
do you have the oil on the surface that can potentially come 
ashore and impact the resource there?
    Senator Lautenberg. So we might be introducing a cure that 
enlarges the danger that we have from the spill.
    You heard me say that I am introducing the Safe Dispersants 
Act. It requires advance testing and disclosure of the 
ingredients in these dispersants. Now, EPA Administrator 
Jackson has already testified that such a change in the law is 
necessary. Does NOAA agree?
    Mr. Penn. Senator, we would be happy to look at the bill 
and look forward to providing comments. I can say generally 
that absolutely we agree that we need to know more about 
dispersants and that that information can better inform our 
decisions on when we use dispersants and whether or not it is 
appropriate to disperse oil or leave it on the surface and 
fight the spill that way.
    Senator Lautenberg. Ms. Dohner, we don't know how to 
prevent an oil spill from happening. So far, we haven't come up 
with a day to keep that from happening. We talk about the two 
most obvious damage moments, the Exxon Valdez and now the Gulf 
of Mexico, but we also know about the spill off the coast of 
Australia. These things have been happening for years.
    Now, we don't know how to prevent an oil spill from 
happening, and we don't know how to stop it, apparently, 
quickly once it has begun. And based on the 500 miles of oil-
soaked coastline in the Gulf, I say we don't really know how to 
keep a spill from reaching shore where much of the damage 
occurs.
    Do you think Congress should consider putting some areas 
off limits to new offshore drilling?
    Ms. Dohner. Senator, I have worked with fish and wildlife 
resources for a very long time, and I think that the American 
public treasures these resources. And I think that there are 
areas that you need to look at, including what areas are 
sensitive, and then how you go forward in those certain areas. 
And I think it depends on the particular area that you are 
looking at.
    Senator Lautenberg. Yes, but it does--I take it from your 
words, it should be looked at.
    Ms. Dohner. I think that we need to evaluate that and see 
how it would impact those resources, shoreline resources, and 
the communities that could be impacted.
    Senator Lautenberg. Yes. I just wanted to confirm that.
    Mr. Chairman, there are many other questions, but I will 
forego it in the interest of time and expect that the record 
will be kept open.
    Senator Cardin. The record will be kept open for questions.
    As our guests may have observed, there is a vote currently 
on in the Senate. Some of our colleagues went over to vote in 
an effort to try to keep the hearing moving as efficiently as 
possible.
    Dr. Pell, let me return to you, if I might. The work that 
was done in collecting these specimens could be extremely 
valuable in trying to assess damages done as a result of the 
spill. It seems to me--and I am not a scientist, but it seems 
to me having specimens showing the condition of not only water 
but other related entities would be extremely important in 
analyzing the long-term impact caused by BP Oil.
    My question is the resources. If I understand how your 
collections work, much of it is there but hasn't truly been 
fully analyzed. I want you to respond first as to what 
resources you need. And then second, to our trustees, our two 
representative agencies that are trustees, as to how you would 
see having these specimens would assist in trying to assess the 
damage that has been done to our natural resource.
    Ms. Pell. Thank you for that question, Senator. Indeed, if 
you want to understand the impact of any event of this sort or 
any other sort, you always have to know what happened before. 
And I think my colleagues made reference to that. And so you 
need a baseline.
    It was with that in mind that the Bureau for Ocean Energy 
Management began to take these surveys in the Gulf, knowing 
that there might be drilling, to know what was going on. And 
contractors have been contracting for almost four decades with 
the Smithsonian for us, not only to maintain these collections 
but to make them available. When we started there was no such 
thing as a digital record, but there is today, and 57,000 of 
the 93,000 lots, and the lots are big jars out in Suitland, 
Maryland, that are filled with samples in little vials. And so 
for 57,000 of those we have digital records that have the 
identities of the specimens, biological properties, chemical 
properties, physical properties of the water, and the GIS 
record of exactly where those samples came from.
    We have another roughly 35,000 for which we are still 
putting the digital records together, which will make those 
samples accessible. We have a contract with the Bureau for 
Ocean Energy Management. We get $200,000 a year, which is 
extremely helpful. And we are working through those samples. 
But we can do just so much in a year and until this emergency 
that was sufficient.
    And it is going to be a matter for my colleagues as they do 
their assessment to know how quickly do they need that 
baseline. And if they need the baseline more quickly, then we 
would need to hire more individuals.
    I should also say that in addition to all those samples, 
the Smithsonian has roughly another 129,000 lots that have been 
collected from the Gulf region that go beyond just the 
invertebrates, but are fish and mammals. And an even smaller 
number of these records are in the digital form at this time.
    So these collections are enormously valuable and will be 
available to everybody in the public, of course. I don't mean 
only in the public, but they will be publicly available to 
anyone that wants to do an assessment.
    Senator Cardin. One of the reasons I want transparency is 
that I just want an honest assessment of the damages that have 
been done and do our best to get a restoration plan that 
protects the natural resources for the public as best as we 
can. And that is what we are all trying to do.
    It seems to me what you have is extremely valuable. You say 
you have a $200,000 annual budget. BP is committing it looks 
like $500 million to an independent assessment, for what 
purposes I am not exactly sure they want this independent 
assessment for, if in fact they are going to be party to the 
assessment that is being done by the trustees.
    It would seem to me that it makes sense to have this 
baseline in a format that is available for verification as to 
the findings that may come out of this assessment or the 
findings that BP is doing independently on its own. Is this a 
valuable tool to have?
    Ms. Dohner. Senator Cardin, I would agree that it is a 
valuable tool, and the baseline data sets that the Smithsonian 
has are vital to the case as we go forward with the assessments 
of pre-spill versus post-spill, and what we need to do going 
forward with this natural resource damage assessment.
    Mr. Penn. I would agree. We have downloaded data from 
Smithsonian, and we will start looking at it to see just how it 
can inform our damage assessment going forward. But clearly it 
is a source of baseline information that we just don't have in 
many of our other cases, so we will take advantage of it.
    Senator Cardin. I would just urge that it might be 
worthwhile to talk to BP about helping us accelerate the 
digitizing of the material you are using, so that it is not 
only available for your purposes, but BP. I am not opposed to 
this being available to the public. It seems to me it just 
gives us all a common set of objective information that could 
help save some perhaps disagreements later on in the process. 
So it seems to me BP should have an interest in trying to 
expedite this process. You might want to just urge them to help 
us here.
    We have talked about this issue, but let me just get it 
onto the record as far as the limit of liability. Clearly the 
damage that was done, and in Exxon Valdez I think the damages 
far exceeded $75 million to the natural resources. Here the 
amount of money being spent--it is obvious that this $75 
million limit is going to be exceeded.
    But I think it is important for us to get an early 
assessment as to the range in which we are talking about. As 
Congress is looking toward liability limit changes we might 
accept Senator Vitter's and remove it altogether. But I think 
it is important to get some range of the type of damages that 
have been done and the restoration costs, similar to what 
Senator Lautenberg was suggesting as to if we are doing this 
deep water drilling, we can expect that there are going to be 
oil spills, and we need to understand the damage so we have a 
better cost-benefit analysis before these drilling permits are 
issued.
    So what is the timeframe on all of this? Any thoughts?
    Mr. Penn. I guess I would like to follow up your point on 
the liability limit first, if I could. Clearly the liability 
here for damage assessment costs and the restoration costs will 
exceed $75 million.
    In terms of how long will it take us to determine what that 
ultimate liability is, I don't want to speculate. I don't think 
it will be this year. I wouldn't want this to extend 10 years, 
20 years. Obviously our goal in this process is to get to 
restoration, and we want to do that as quickly as we can, 
bearing in mind that we have to have a strong assessment that 
tells us what the right restoration amount is.
    So we will be balancing that or walking that line of 
getting enough information versus getting to restoration as 
quickly as we can.
    Senator Cardin. Let me interrupt you at this point because 
we are down to--oh, Senator Merkley has arrived. Perfect timing 
for Senator Merkley.
    I am going to ask Senator Merkley to inquire of the 
witnesses, take as much as he needs, and we will then dismiss 
this panel and go on to the next panel.
    And I know that Ms. Dohner, you wanted to respond a little 
bit further. I am going to let Senator Merkley take the answer.
    Ms. Dohner. Yes, sir. Thank you.
    I just wanted to add that we need to make sure as we go 
forward that we are assessing all of the injuries. As we go 
forward that is one of the things that we are working on right 
now. And I agree with what Tony said. We are not sure how long 
it will take, but we need to make sure that we look at all the 
different things and make sure that we restore this to the pre-
spill and make sure we have the right restoration going 
forward.
    Senator Merkley [presiding]. Thank you all very much for 
your testimony. This may have been asked while I was running to 
vote, but if it has, feel free to be very brief, and we will 
all just check the record.
    But in terms of the underwater plumes and the currents 
moving them about, how do we really track how those plumes are 
moving in order to do damage assessment? And how do we get a 
grip on the amount that is consumed by various types of 
wildlife at various levels in the sea column in order to 
understand the impact? And I will just add onto that, is there 
any potential impact here on the ability to consume some of the 
species that are in those plumes?
    Mr. Penn. I will start, I guess, with response to your last 
question. There is a group in NOAA that is very concerned about 
seafood safety. There is closure throughout the Gulf, and has 
been. Some of those areas are starting to reopen now, and they 
are looking at PAHs and other contaminants. They need to make 
sure that they are at appropriate levels so that the seafood is 
safe.
    With respect to the underwater plumes, I think we have a 
multi-tier approach to try and understand what is going on 
under the water. First, we are actually getting water samples. 
So we are dating and analyzing what is in that water in terms 
of oil, dispersed oil and actually having observational data on 
what is in the water.
    Another approach that is helping us think about what is 
happening underwater is we do have expertise on our team in 
modeling. There is a model that we have used as trustees to 
understand what is going on with oil in the water, surface 
spill, sub-surface spills. That is certainly informing how we 
think about where the oil is going.
    And then ultimately we can use the model to actually 
attribute effects of oil in the water column. We will also be 
looking at actual toxicity tests to also tell us what in 
reality we are seeing because of exposure to oil and dispersed 
oil as well.
    So a combination of water samples, modeling, and then doing 
some toxicity tests to see how some of these critters are 
responding to those concentrations.
    Senator Merkley. Does anybody want to add anything to that?
    I will just note then that I think that this is really 
important because we need to make sure the public feels that 
they can completely trust the food supply because if there are 
mistakes made that reduce that trust, then the viability of the 
livelihood of folks who are operating in areas that the seafood 
is absolutely fine would be affected as well as the fact that 
the livelihoods affected of those folks whose fishing has been 
shut down. And that would be the worst of all worlds.
    Thank you very much for your contribution to this 
discussion and bringing your expertise to bear. We appreciate 
your appearance today. And with that we will dismiss this panel 
and bring up the next panel.
    I want to go ahead and start the introductions while the 
panel is getting seated. I will start that in the order of the 
panel, starting with Dr. Robert Spies. Dr. Spies conducts 
scientific field research around the United States on 
contaminants in marine ecosystems. He has particular expertise 
on oil spill impacts. He investigated the effects of oil spills 
in the San Francisco Bay and served as Chief Scientist on the 
Exxon Valdez Trustee Council from 1990 to 2001. We look forward 
to hearing what lessons he learned from that experience that 
are of use to the trustees addressing the disaster unfolding in 
the wake of the BP Deepwater Horizon disaster.
    Our second member of the panel is Stanley Senner. As 
Conservation Science Director Mr. Senner oversees the science 
programs for the Ocean Conservancy. He was the State of 
Alaska's Restoration Program Manager following the Exxon Valdez 
spill. He later coordinated the post-spill science program for 
the State and Federal trustees that administered the $900 
million civil settlement between the Government and Exxon. We 
value Mr. Senner's experience and guidance to the Committee's 
oversight of the BP Deepwater Horizon natural resource 
assessment and restoration process. And if I might add, I 
believe you call Portland, Oregon, home, and we are very proud 
to have you involved and bringing your expertise to bear on the 
challenge.
    Our third witness is Dr. Eric Rifkin. As Interim Executive 
Director of the National Aquarium Conservation Center, Dr. 
Rifkin is leading the Aquarium's efforts to conduct 
conservation research to understand aquatic ecosystems and to 
advocate for ocean health. Dr. Rifkin is here to describe the 
research partnership among the National Aquarium, Johns Hopkins 
University, and the Mote Foundation to gather baseline 
ecological information about Sarasota Bay, Florida. Dr. 
Rifkin's team will provide critical data that could help 
scientists demonstrate the impacts of the BP Deepwater Horizon 
spill on this ecosystem. And we look forward to his testimony.
    I will turn to my colleague, Senator Vitter, for our fourth 
introduction.
    Senator Vitter. Thank you, Senator.
    And I want to welcome Councilman-at-Large John Young. John 
represents all of Jefferson Parish, which is a suburban New 
Orleans parish, our word for county. That includes Lower 
Jefferson Parish, including the communities of Grand Isle and 
Lafitte and the water body, Barataria Bay. All of those areas 
have been dramatically impacted by this spill, and those are 
areas Senator Merkley and Senator Cardin and others joined me 
in visiting. And John has been a leader in efforts on the 
ground, trying to be as proactive and aggressive as possible in 
terms of battling the impact of the oil on our marshes.
    So thank you for being here, Councilman.
    Senator Merkley. With that, Dr. Spies, we will start with 
your testimony.

    STATEMENT OF ROBERT B. SPIES, PRESIDENT, APPLIED MARINE 
 SCIENCES; FORMER CHIEF SCIENTIST, EXXON VALDEZ TRUSTEE COUNCIL

    Mr. Spies. Senators, thank you for inviting me to testify 
with regard to the impact of the Deepwater Horizon oil spill in 
the Gulf of Mexico. I was Chief Scientist for the Exxon Valdez 
Oil Spill Trustee Council from 1990 to 2001 during the damage 
assessment and restoration programs.
    Those of us who participated in these programs learned much 
from this experience, and I hope we can pass some of this on to 
those that are dealing with the current spill.
    While every oil spill varies with the circumstances--and 
this is certainly an unusual one--large, damaging spills share 
enough characteristics to be notable, especially in the human 
response.
    To provide a little context to you, following the Exxon 
Valdez spill in 1989 a large number of studies were initiated 
to determine the damage from the spill, many of which lasted 
several years or more. Then in 1991 a settlement was reached 
with the Exxon Corporation for damage to public resources. The 
settlement initiated the restoration program, with annual 
payments from the Exxon Corporation of $900 million a year for 
10 years.
    A final restoration plan was approved by the trustees in 
1994. Some damage assessment was carried forward into 
restoration phase, and it became apparent that there was an 
unanticipated lack of recovery of injured species and some 
lingering damage. This unanticipated damage resulted in a claim 
by the State and Federal Governments for further compensation 
in 2006 under a reopener clause in the original settlement. 
That claim has not been resolved.
    In the course of assessing the impact of the Exxon Valdez 
spill we were able to evolve our approach to achieve a 
relatively efficient and effective scientific program in damage 
and especially in restoration. It took some time to achieve 
this, and because the present spill is so much larger and 
involves so many more agencies and interests it will be an 
immediate challenge to make the scientific work comprehensive 
and integrated.
    In my written testimony I have 10 major points to make, and 
I will only have time today in oral testimony to talk about 3 
of those that I think are perhaps the most important.
    The first of those is the value of an ecosystem-based 
approach. Because many State and Federal Government natural 
resource agencies are organized and operated based on 
individual species it is not easy to implement ecosystem-based 
approaches organizing spill studies around individual species 
or groups of species at the expense of a broader ecosystem-
based view.
    For example, study impacts on sea birds and their recovery 
independent of the ecological conditions that sustain them, 
such as food supply, habitat quality, et cetera, make it 
difficult to achieve an overall assessment of the health of the 
Gulf ecosystem.
    Ultimately, however, the health of the system, more so than 
the individual species, should be the yardstick by which we 
judge success of a large-scale restoration program.
    Several years after the Alaska spill when affected 
populations were not meeting recovery objectives we launched a 
series of ecosystem-based studies of fish, birds and mammals 
that case a much larger net in Prince William Sound, taking 
into account food supply, reproduction, disease, predators, as 
well as any lingering oil exposure.
    These studies were very effective in achieving a better 
understanding of the individual species for which the main 
agencies were responsible and also gave us insight into the 
trajectory of an ecosystem that is so important to the people 
of Alaska.
    In addition, these multidisciplinary and multi-
institutional studies helped break down artificial barriers 
that inevitably grew up as a result of dividing up the 
responsibility for the ecosystem among various agencies when no 
such divisions actually occur in nature.
    The second point I would like to make is the value of the 
complete damage assessment. It is important not to end a damage 
assessment too soon, as subtle and indirect effects may not 
emerge for a while. We must understand the entirety of damage 
to know when the ecosystem has been made whole.
    For example, detailed laboratory experiments carried out on 
pink salmon years after the Alaska spill showed that damage 
could be done to developing embryos and expressed later in poor 
survival of adults returning to their natal streams. And this 
was a result of exposure to parts per billion, not parts per 
million of oil which was previously found.
    The third point I would like to make is how studies now 
will help in the future. Beyond knowing the full impact of a 
large spill, a rigorous and robust scientific program pays 
long-term dividends in advancing our knowledge of ecosystems so 
that we may more intelligently manage marine activities in the 
future.
    For example, pink salmon management in Prince William Sound 
was advanced greatly by the detailed studies during the damage 
assessment and restoration work following the Exxon Valdez 
spill. No one likes to see a tragedy like this, but I think 
there is a potential silver lining in that the amount of 
information gathered about affected species and the ecosystem 
will help in future management.
    Senators, that concludes my oral comments for today.
    [The prepared statement of Mr. Spies follows:]
    
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    Senator Merkley. Thank you very much.
    Mr. Senner.

  STATEMENT OF STANLEY SENNER, CONSERVATION SCIENCE DIRECTOR, 
                       OCEAN CONSERVANCY

    Mr. Senner. Thank you, Senator Merkley, and I am proud to 
call Oregon home.
    And Senator Vitter, I am getting to know your wonderful 
State much better than I ever thought I would. So I am enjoying 
that as well.
    I am Stan Senner, Director of Conservation Sciences for 
Ocean Conservancy.
    Welcome back, Mr. Chairman.
    A comprehensive damage assessment is essential to 
restoration of the Gulf of Mexico following the BP Deepwater 
Horizon disaster, and it could serve as a cornerstone to a 
broader restoration plan such as the President has called for.
    The NRDA Program in the Gulf is still in a pre-assessment 
phase to determine whether there has been damage to publicly 
owned natural resources. Presumably they will next move to 
injury quantification and finally to a plan and a claim for the 
cost of restoring, replacing, rehabilitating, or acquiring the 
equivalent of the natural resources injured by the spill and 
the lost services.
    It is too soon to evaluate this NRDA Program in the Gulf, 
but drawing on the Exxon Valdez experience we offer the 
following comments.
    First, restoration is the goal, but we should learn the 
whole story of impact and recovery which requires comprehensive 
and long-term research. Without such an approach following the 
Exxon Valdez, we would, for example, not have known that still 
toxic oil would linger on Prince William Sound beaches 20 years 
later and that that oil could compromise salmon reproduction 
and waterfowl survival.
    Given that the Exxon Valdez is well studied, why invest 
more in Gulf research at this time? First, it is necessary to 
know what the injury is in order to seek full restoration. 
Second, in Alaska we repeatedly heard from the public that they 
want to know what harm was caused and when recovery is 
achieved. Third, Prince William Sound and the Gulf of Mexico 
are very different environments, and the conditions of the 
spills are different. The contrasting information we can learn 
in the Gulf of Mexico is critical to helping us all assess 
risks of offshore drilling and to improve responses to future 
spills. Regardless of whether restoration funds are obtained 
through a strict NRDA process or through a settlement, we 
should fully document the long-term injury and if necessary 
seek additional restoration funds.
    Second, damage assessment studies must be carried out 
rigorously, as Dr. Spies has mentioned. NRDA trustees should 
call on outside experts to review individual studies. And most 
importantly, those experts need to look at the whole array of 
studies so they can view this as one large program and make 
sure that there are no gaps in that overall effort. Besides 
weeding out ineffective studies, peer review helps promote 
integration and coordination among agencies and across studies.
    Third, part of restoration is sharing information about the 
damage assessment with people. It is part of making people 
whole following this disaster. We appreciate that the trustee 
agencies are doing more in regard to transparency, such as 
posting pre-assessment study plans on the Internet, but we 
don't think that at present they have a clear plan for public 
communication and stakeholder engagement, and we would like to 
see that outlined.
    Following the Exxon Valdez the Government maintained strict 
confidentiality about impact studies for 2 and a half years 
prior to the settlement with Exxon. While the need for that 
secrecy can be debated, in Alaska it left a legacy of 
bitterness that continues to this day.
    Fourth, there are concerns that BP's participation may 
influence the scope and nature of NRDA studies and in some way 
limit funding.
    And Senator, you addressed that with some of the previous 
witnesses. All I will say is that any delays in obtaining funds 
may compromise time-sensitive research, and that will only make 
it more difficult to achieve full restoration.
    Beyond the Gulf spill per se we encourage the Subcommittee 
to explore the readiness of trustee agencies to carry out NRDA 
work. Budgets for damage assessment and restoration activities 
have declined, and trustee agencies are drawing on valued staff 
from throughout the country to respond to the Gulf. That is 
good, but we need to consider what this does to their capacity 
to work on dozens of ongoing restoration projects and to 
respond to new disasters should they arise. Being prepared to 
conduct damage assessments should be part of the cost of doing 
business.
    Finally, ecosystems are dynamic, and harm from various 
environmental incidents tends to accumulate, making it hard to 
tease out the effects from any one event. Similarly it may be 
difficult, or it is difficult to restore just one resource from 
one event without addressing the underlying causes of 
degradation. This is one reason why the President's call for a 
broad approach to restoration in the Gulf makes sense.
    This concludes my oral statement, and I will be happy to 
respond to your questions.
    [The prepared statement of Mr. Senner follows:]
    
    
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    Senator Cardin [presiding]. Thank you very much.
    We will now turn to Dr. Rifkin. Let me just say, if I 
might, Dr. Rifkin represents the National Aquarium, which in 
Maryland we take a great deal of pride. The National Aquarium 
is a wonderful asset in Baltimore, but it also has an 
incredible Conservation Center which Dr. Rifkin is the Acting 
Director.
    So it is a pleasure to have you here, and we welcome your 
testimony. Your entire statement will be made part of the 
record, as will all of the witnesses'. You may proceed as you 
wish.

STATEMENT OF ERIK RIFKIN, INTERIM EXECUTIVE DIRECTOR, NATIONAL 
                  AQUARIUM CONSERVATION CENTER

    Mr. Rifkin. Thank you for the kind statement, Senator. Good 
afternoon.
    I am Erik Rifkin, interim executive director of the 
National Aquarium Conservation Center. I am a marine biologist 
and environmental scientist with over 30 years of experience in 
conducting and interpreting ecological and human health risk 
assessments. I have published articles in peer-reviewed 
journals, and I am the coauthor of a recently published book 
which discusses in part the uncertainty inherent in ecological 
risk assessments.
    I welcome the opportunity to appear before you today and 
discuss assessing natural resource damages resulting from the 
BP Deepwater Horizon disaster. This is an important and timely 
hearing given the likelihood that acute and chronic natural 
resource damages will continue to occur in the wake of this 
devastating oil spill.
    It is essential to ensure that pre- and post-impacts status 
to sensitive aquatic ecosystems is documented as rigorously as 
possible. Understanding the relationship between levels of 
petroleum contaminants in water, sediment, benthic biota, fish, 
and mammals is a prerequisite to effective and objective 
assessment of damages to our natural resources.
    This is why the National Aquarium is conducting an 
independent, comprehensive NRDA in close cooperation with Mote 
Marine Laboratory and Johns Hopkins University in Sarasota Bay, 
Florida, an area which may well be compromised by this oil 
spill. This study is designed to assess causality between the 
release of oil and impacted natural resources.
    The institutions involved in this effort are committed to 
sharing their findings as they become available. This study's 
in-depth, site-specific experimental design should probably be 
considered for other Gulf Coast areas which have been or are 
likely to be affected by the BP spill.
    While we learned valuable lessons from the Valdez spill 
regarding short-term or acute effects on aquatic ecosystems, 
chronic impacts on the organisms within those affected areas 
are not well documented, as has been mentioned earlier. 
Persistent toxic effects were evident in Prince William Sound 
over the years resulting in mortality, lower growth rates, 
decreased reproduction, and compromised immune function for 
plants and animals that call it home.
    This assessment will provide data essential for evaluating 
potential short-term and chronic environmental impacts in 
Sarasota Bay from the Deepwater Horizon oil spill. The approach 
used in this study, as I mentioned a moment ago, could easily 
be implemented in a number of other sites along the Gulf Coast 
which may be impacted by this spill in the future. By doing so 
it would create a consistent, coordinated data set for all 
threatened areas.
    The first phase of this project will involve looking at 
sediment, water found in sediment which is called porewater, 
and the water column by using something called a semi-permeable 
membrane device, the acronym of which is SPMD. This device 
mimics the bio-concentration of petroleum in fish and other 
biota over time.
    Water flow through these virtual fish permits the detection 
of background petroleum concentrations at very low levels. An 
analysis of petroleum in these devices will provide necessary 
quantitative and qualitative information on oil constituents in 
Sarasota Bay before and after any potential impacts. Without 
this kind of data it will be extremely difficult to determine 
potential damages with the necessary level of certainty.
    Research scientists from Mote Marine Laboratory will begin 
deploying these devices this week in approximately 50 locations 
throughout Sarasota Bay. Sampling biota to obtain baseline 
information began on June 28 of this year and will continue for 
a number of months.
    Bottom dwelling organisms like clams and blood and tissue 
samples from spotted eagle rays and bottlenose dolphins will 
also be obtained and analyzed. All of these samples will be 
analyzed for levels of petroleum before the spill and if 
necessary after the oil impacts the bay. This all-inclusive 
effort is necessary since the consequences to Sarasota Bay 
could include substantial long-term damage to beaches, 
estuaries, salt marshes, and the organisms residing there. 
Researchers at Johns Hopkins University will then use this 
evidence to develop mathematical accumulation models.
    We face a daunting task but also an enormous opportunity to 
apply what we have learned from oil spill tragedies as well as 
a range of sampling, analysis, and toxicological assessments 
that allow for a greater ability to evaluate accumulated sub-
lethal chronic impacts.
    Thank you for the opportunity to testify today and to share 
what the National Aquarium Conservation Center and our partners 
are doing in Sarasota Bay. I am encouraged by your interest and 
confident in your oversight, and I urge you to seize the 
opportunity at hand and protect the future of the Gulf of 
Mexico.
    Thank you, and I would be happy to answer any questions.
    [The prepared statement of Mr. Rifkin follows:]
    
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    Senator Cardin. Thank you very much, Dr. Rifkin.
    We will now hear from Mr. Young who has one of the toughest 
jobs, being a local official in an area that I am sure a lot of 
people are very upset.

          STATEMENT OF JOHN F. YOUNG, JR., CHAIRMAN, 
                    JEFFERSON PARISH COUNCIL

    Mr. Young. After four major storms, Senator, and the worst 
oil disaster in U.S. history, I got a little more than I 
bargained for.
    Good afternoon, Mr. Chairman and members of the 
Subcommittee. I am John Young, Chairman of the Jefferson Parish 
Council. Jefferson Parish is the largest and most populous 
parish in the State of Louisiana and includes the coastal 
communities of Grand Isle and Lafitte, two of the communities 
most directly impacted by the BP Deepwater Horizon disaster. It 
is also the hometown of U.S. Senator David Vitter, and we are 
proud to have him as our Senator.
    Mr. Chairman and members of this Subcommittee, let me begin 
by commending you for holding this hearing today to review and 
assess the natural resource damages resulting from the BP 
Deepwater Horizon disaster.
    As we review and examine this disaster--perhaps the worst 
environmental and ecological disaster in U.S. history--let us 
not forget the 11 men who lost their lives as a result of the 
well explosion on April 20, 2010.
    As a local elected official representing approximately 
450,000 people, we marshaled our resources at the local level 
and monitored developments from day one. I participated in a 
meeting in Robert, Louisiana, on Friday, April 30, 2010. 
Secretary Janet Napolitano, Secretary Kenneth Salazar, 
Secretary Lisa Jackson, Admiral Mary Kelly and numerous other 
Federal, State, and local officials, as well as Doug Suttles, 
the COO of BP, participated in that meeting either in person or 
by conference call.
    At that meeting we made recommendations on behalf of 
Jefferson Parish and specifically on behalf of the towns of 
Grand Isle and Lafitte that the Federal Government, in 
coordination with State and local governments, immediately 
implement a plan and mobilize the necessary equipment and 
manpower to execute that plan to protect our coastlines, bays, 
marshes, wetlands, and estuaries, as well as our economy.
    It was also recommended at that meeting that although BP 
was the responsible party and therefore obligated to pay for 
all damages resulting from the disaster, that BP should 
concentrate all of their resources on capping the oil well and 
stopping the flow of oil into the Gulf of Mexico. This 
recommendation was met with silence by the Federal officials 
representing the Obama administration at that meeting.
    On the next day, Saturday, May 1, 2010, the Governor of 
Louisiana, Bobby Jindal, convened a meeting of State and local 
officials for the purpose of coming up with a plan of action to 
protect the Louisiana coast and our coastal communities because 
it was apparent that the Federal Government did not have an 
effective plan, nor had it taken the steps to mobilize the 
necessary manpower and equipment to respond to the disaster.
    Instead, it appeared that the Federal Government was 
relying too heavily on BP. BP, in turn, was clearly overwhelmed 
and not up to the task. The State of Louisiana, together with 
coastal parishes affected by the disaster, including Jefferson 
Parish, have been responsive for initiating and executing plans 
and courses of action that have produced concrete results.
    For example, the Louisiana National Guard under the 
direction of the Governor's office built sand berms at Elmer's 
Island and East Grand Terre Island in early May that prevented 
the oil from getting into our bays, marshes, wetlands, and 
estuaries. You may remember the pictures of brown pelicans 
covered in oil on the beach. They were located just before East 
Grand Terre Island where oil had built up as a result of the 
sand berms blocking it from going any further. In fact I was on 
that island that day with Senator Vitter, and we saw those 
pelicans with our own eyes. The sand berms that were built had 
kept that oil from going back into our bays and estuaries.
    In contrast to the successful State and local efforts, the 
Federal Government in various Federal agencies not only have 
not helped us but in some cases have actually hindered our 
efforts to protect ourselves. For instance, the State and local 
governments have put forth three separate plans. The first plan 
was to block the oil with skimmers and high sea booms. We were 
told by the Federal Government that the necessary quantity of 
equipment was unavailable and could not be mobilized quickly 
enough.
    We put forth a second plan to build 18 sand berms. After 
several weeks this plan was denied as presented, but approval 
to build two sand berms was given. After further delays, an 
additional four berms were approved for a total of six berms. 
However, no sand berms were approved for the five passes near 
Grand Isle, so a third plan was put forth by the State of 
Louisiana and Jefferson Parish to protect these five passes in 
Barataria Bay, one of the richest estuaries in the world.
    The third plan called for blocking the five passes with 
barges on an interim basis and then replacing the barges with 
rock jetties to provide more permanent protection. After weeks 
of delay the U.S. Army Corps of Engineers approved the barge 
plan for only two of the five passes. Additional information 
was requested on the rock jetties.
    The barges were mobilized and proved to be effective at 
blocking the oil. Vacuum trucks were placed on top of these 
barges and were utilized to suck up the oil blocked by the 
barges. Unfortunately, Hurricane Alex became a threat 
approximately 1 week after the mobilization and placement of 
these barges. The wind and seas produced by Hurricane Alex 
required the demobilization of these barges and passes that 
were left unprotected for 5 to 7 days. Oil was allowed in these 
passes for 5 to 7 days.
    Senator, Mr. Chairman, I understand my time is up. Could I 
beg you to have a couple more minutes?
    Senator Cardin. We will give you an additional 2 minutes.
    Mr. Young. Thank you.
    This event further underscored the need for the rock 
jetties which would stay in place and block the oil on a 24/7 
basis during even inclement weather. Unfortunately, on 
Saturday, July 3, the U.S. Army Corps of Engineers denied the 
rock jetties. Since we had applied for an emergency permit, 
there was no right to appeal. We decided to modify the plan and 
resubmit, but to date we have not been provided with the 
necessary permit. This is, in our opinion, completely 
unacceptable.
    Mr. Chairman and Senators, we have put forth three separate 
plans, and what really is disturbing to us is that we have been 
told no, but to date not one alternative acceptable plan or 
alternative has been produced by the Federal Government so that 
we can protect ourselves.
    There are other examples such as OPA. The requirements of 
OPA could be waived so that we could get skimming vessels down 
and mobilize early on when we had 60 days of good weather 
before hurricane season hit. Again, we have 400 down there as 
of 2 weeks ago, but 2,000 available in the United States. Those 
requirements could have been waived on an emergency basis. The 
requirements of the Jones Act, Senators, could have been waived 
on an emergency basis to allow foreign skimming vessels to be 
mobilized. In one case, a French company had to sell their 
vessels to a U.S. company so that they could be mobilized.
    One other example I would like to tell you is in Bay Jimmy, 
which is up in Barataria Bay. We had strapped vacuum trucks 
onto barges and were sucking up thick crude in this bay, and 
the Coast Guard came and shut down the operation for safety 
inspections to inspect the safety equipment and life 
preservers. I have no problem with safety inspections, but they 
could have done that onsite while the operation continued. 
Instead, they forced the barge to go to the dock, and we lost 
24 valuable hours of sucking up oil.
    One last thing I would like to talk about is the 
moratorium. The moratorium is a death blow to Louisiana. We can 
have safe drilling by enforcing existing regulations. We can 
have safe drilling without the moratorium. And Senators, even 
the shrimpers, fishermen, and oystermen who are out of work 
right now because of the oil spill, to a person are opposed to 
the moratorium.
    That $100 million that BP put up will last 4 to 6 weeks at 
most. We are going to lose 10,000 jobs, and that industry 
accounts for about 15 percent of the State of Louisiana's 
economy. We would ask that that moratorium be rescinded.
    And the last thing I would like to talk about is if we can 
accelerate our fair share of those oil royalties, instead of 
them coming into play in 2017, bringing them in immediately, we 
could begin to restore our coastline, bays and estuaries and 
begin to protect ourselves.
    I want to thank you for your time today, and I also want to 
thank you for coming down to Grand Isle. I had the pleasure of 
meeting you and Senator Merkley, together with Senator Vitter 
that day you came down to Grand Isle, and we appreciate you 
traveling down to Grand Isle to see it first-hand. Thank you 
very much.
    [The prepared statement of Mr. Young follows:]
    
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    Senator Cardin. Mr. Young, thank you for your testimony. I 
know it is extremely difficult.
    We appreciated being there. I think seeing first-hand is 
critically important to try to at least comprehend the 
magnitude of what you are going through in that part of our 
country. So thank you for making yourself available and for the 
manner in which we were received during our visit.
    Let me just at this point make one observation, and that is 
everybody is frustrated that more is not being done, but I 
think back to the initial estimates that BP gave us on the 
amount of oil going into the Gulf, 1,000 barrels a day. That 
may have been off by as much as a hundred-fold. It obviously 
affected the reaction, at least the initial reaction as to the 
seriousness of the spill.
    I want to make sure that we get the assessment of damages 
right. This Committee has responsibility to look into that. 
That is part of our oversight. So I want to make sure that we 
have an accurate assessment as to how much damage has been done 
to our environment as a result of the spill.
    And that is why in the first panel I was very concerned 
about the independence of the information that the trustees are 
using because they are working with BP. BP is signing off on a 
lot of the work, and they are doing their own independent work, 
taking a lot of the expertise of our Nation and hiring it under 
confidentiality agreements, meaning their information may never 
be made public and may not be available for the Government 
assessment, which has me greatly concerned.
    Dr. Rifkin, that is why I am really so pleased that the 
National Aquarium has stepped up to do an independent review 
with Mote Marine, a well known research facility known in 
Sarasota, and Johns Hopkins. I think your work can be extremely 
valuable not just on the species that you are studying but that 
we are concerned about what impact migratory water fowl, 
migratory birds, and fish are going to have, mammals are having 
as a result of the oil spill.
    In Maryland we enjoy the blue tuna. That happens to spawn 
in the Gulf of Mexico. We don't know what impact it is going to 
have on Ocean City, Maryland, on charters to go after sports 
fishing.
    So it is an issue that we need to understand more 
effectively. And I think what you are doing in the study in 
Sarasota Bay could be influential in trying to understand the 
impact of the spill.
    My one request to you is that we are interested to see how 
well you work with the trustees as to how they are using the 
private sector work that is being done. We have asked for peer 
review. Peer review is going to be difficult, as you heard from 
the answers in the first panel. But I do believe your 
information can be very valuable to the work being done under 
the national assessment.
    So as you go through this work we would appreciate sharing 
with this Committee your experiences as to how the product is 
being used. You are funding it independently right now, and we 
applaud you for that. If you run into problems, let us know.
    And to our other two witnesses, I want to ask you a 
question as to your experiences with the Exxon Valdez as it 
relates to reopening the assessment, if after the initial 
review are done, and I know there is going to be a lot of 
desire to get information out as quickly as possible. The 
Government's initial assessment comes out. The trustees have a 
remedial plan. And lo and behold we find that there has been 
additional damage done that we did not know of at the time.
    How easy is it to reopen this process and have a remedial 
plan that is modified and funded in order to deal with damages 
that may be discovered 5 years from now or even 10 years from 
now?
    Mr. Spies. Mr. Chairman, I think that is a very important 
point because there were a number of damages that I mentioned, 
some of those with pink salmon, that the damages lasted much 
longer than we had thought at first based on the toxicological 
information that was available at the time of the spill.
    There was also apparent ongoing damages to harlequin ducks 
and sea otters as late as 2000, 2001. And those became mainly 
their claims for damage. There was also kind of an 
unanticipated persistence of the oil on what looks like very 
rough, very energetic beaches where the oil actually got down 
inside the beach below the layer of rocks and was actually in a 
very low energy environment, which was not fully appreciated. 
And so that oil lasted longer, and that became part of the 
claim for the reopener.
    Senator Cardin. Did Exxon challenge the reopener? Is this a 
legal issue that was amicable, or was there resistance as far 
as trying to close this chapter?
    Mr. Spies. After the claim was filed I wasn't privy to the 
confidential exchanges that were going on between the 
Government and Exxon Corporation, but they have never resolved 
and I don't think publicly have commented on it.
    Senator Cardin. I don't know what BP Oil's position is 
going to be a couple of years from now. And once a remedial 
plan is signed off on, I understand there may be provisions in 
there that provide for reopening, but it becomes more difficult 
as the years go by. And I want to make sure that our 
assessments are as transparent and open as possible today, 
leaving the issue of long-term remedial open so that we are not 
foreclosed if additional damages are discovered and additional 
remedial work is required.
    Would that be naive to suggest that that be part of this 
assessment process?
    Mr. Spies. I agree. I think since OPA 90 there has been 
more emphasis on getting to restoration fairly quickly. I think 
that in the case of a big spill, I think one has to consider 
whether one can actually carry on the damages. Like I said in 
my testimony, I think it is important that you have done as 
thorough a job as possible in looking at the scope of damages 
in order to make the Gulf whole again.
    Senator Cardin. Thank you very much.
    Mr. Senner. Could I comment on the reopener? I think it is 
largely a matter, Senator, of what the agreements are at the 
time of settlement, whether it is through the NRDA process or a 
settlement outside that process. And in the case of Exxon 
Valdez there was a settlement outside the NRDA process, and 
that agreement contained explicit provision for the reopener 
that was agreed to in 1991 at the time of the settlement.
    So the agreement was there on that provision. What Dr. 
Spies has pointed out, however, is that when the Government 
submitted a claim to invoke that reopener clause, which allowed 
up to an additional $100 million, that claim was submitted in 
2006, and there has been no resolution of that claim. I 
consulted with people in the Attorney General's office at the 
State of Alaska. There have been conversations back and forth 
about the claim that the governments have submitted, but there 
has been no resolution to it 4 years after the claim.
    Senator Cardin. Thank you very much.
    I will turn to Senator Vitter.
    Senator Vitter. Thank you, Mr. Chairman.
    Mr. Chairman, I just want to underscore something I said 
before. Natural resource damages assessments are extremely 
important, but like Councilman Young I have been more focused 
on natural resource damages prevention. And in that category, I 
think the entire Federal bureaucracy has been completely 
unprepared to act on the right timetable and unresponsive.
    It maybe goes back to OPA 90. OPA 90 was a reaction to the 
Exxon Valdez. And that was a very different incident than we 
have had in the Gulf. That spill happened beginning to end in a 
few hours, several hours, and obviously the impacts went on far 
longer than that, but the spill was several hours long. This 
spill, this flow was months long. And I am afraid perhaps OPA 
90 had this assessment-restoration model set up, but no 
prevention model, no model to get the bureaucracy to act 
quickly and prevent ongoing damages. And that is the 
frustration you hear not just from Councilman Young and I, but 
virtually anybody you talk to in the State.
    Councilman, going back to your testimony, you describe very 
well the delays and the roadblocks in both the emergency 
dredging barrier island plan and the Barataria Bay plan, 
several versions of it. What additional damage do you think 
that delay and foot dragging and those vetoes or partial vetoes 
had to coastal Louisiana and our marshes?
    Mr. Young. It had devastating and serious damage, Senator, 
because what happened was when we finally got the barge plan 
put into place, then Hurricane Alex threatened, and we had to 
de-mobilize and left it unprotected for 5 to 7 days. We went 
out there, and big clumps of oil had come in because the 
dispersant--which I didn't get a chance to talk about, that 
solution may be worse than the problem because dispersants also 
put the oil underneath the water so the sea booms become 
relatively ineffective, another reason why you need the barges 
and the rock jetties.
    And the rock jetties would have helped because they are 
going to remain there 24/7. We have to mobilize and demobilize 
the barges. We just went through that this weekend with the 
threat of Tropical Storm Bonnie. I am going down to Grand Isle 
on Friday morning by car and boats with Wildlife and Fishery, 
and all the equipment is being taken off the island because of 
the approaching storm. We are left unprotected.
    We had oil come in again this weekend because it was being 
effectively blocked and sucked up by the barges, but the rock 
jetties were out there. And again, we can take the rock jetties 
out.
    What our frustration is is the Federal Government is 
essentially saying we don't know what the adverse effects of 
the rock jetties may be. Well, we do know what the adverse 
effects of the oil are, and it is not good. And we need to be 
able to put those out there.
    And one other thing I need to emphasize. We are not trying 
to do anything other than to restore the size of the coastal 
barriers that were there before coastal erosion. So we are no 
trying to add any additional land mass or rock mass, so to 
speak. But it will in fact block the oil.
    The other frustration we had was with OSHA because cleaning 
up the beaches once the oil comes, they can only work 20 
minutes out of an hour because of OSHA regulations. How many of 
us can get a job where we are paid for a full hour and work 
only 20 minutes? My response is either waive those regulations 
for this emergency or hire triple the work force so we can get 
60 minutes out of an hour.
    But those are the type of regulations and frustrations we 
have. If those rock jetties were there, Senator, we would not 
have additional oil coming into Barataria Bay, which is the 
richest estuary in the world. And to make it a national issue, 
we produce 30 percent of the domestic fisheries consumed in the 
United States. And we also produce 30 percent to 35 percent of 
oil and natural gas consumed by the entire United States of 
America. This is not just a Louisiana issue. This is a national 
issue.
    Senator Vitter. Thank you very much.
    That is all I have.
    Senator Cardin. Senator Whitehouse.
    Senator Whitehouse. Mr. Young, those folks who were working 
20 minutes out of the hour, are those the folks who are out in 
the sunshine on the beaches with no shade wearing a hazmat 
suit?
    Mr. Young. Yes, sir.
    Senator Whitehouse. Doesn't it make sense to give them a 
break during the hour to cool off? Can you stand in the hot 
Louisiana sun in a hazmat suit and work for very long?
    Mr. Young. I agree it is not good conditions, Senator, but 
that is why I suggest maybe we triple the work force so we can 
get people out there working 60 minutes an hour.
    Senator Whitehouse. That is a different question, though, 
tripling the work force. But you are not suggesting that people 
should work straight out nonstop in the hot sun in a hazmat 
suit along your beaches, are you?
    Mr. Young. I think they can work longer than 20 minutes. 
Maybe not a full hour, but certainly I think if we are going to 
approach this, as the President himself has said, as a war, we 
need to fight it 24/7, and we should be fighting it at night as 
well. The vessels and the manpower trying to keep the oil from 
coming ashore is not doing that either.
    Senator Whitehouse. Obviously, there is immense frustration 
and properly so because it is a terrible circumstance. Your 
testimony really focuses on the Federal Government's response. 
I don't know if you have evaluated the State government's 
response itself. As I understand it the State of Louisiana gets 
about $2 billion a year or so in revenues out of the oil and 
gas industry.
    There has been a news report from the New York Times that 
says that the State oil spill coordinator's office shrank by 
half over the last decade; that the Oil Spill Research and 
Development Program had its annual $750,000 in financing cut 
last year. That is the office that signs off on the oil spill 
contingency plans. And that there are two kinds of contingency 
plans and action plans and that both of them are joint planning 
exercises between the State and the Federal Government.
    And so the State has a role in developing those plans, does 
it not?
    Mr. Young. Yes, sir, Senator. And I can tell you haven't 
been there, at least three to four times a day, which is 2 and 
a half hours from the parish seat where I have an office. We 
have been there every day. And the State, in my opinion, and 
the Governor of the State of Louisiana and the National Guard 
have worked 24/7. We have fought every step of the way. We were 
trying to get these rock jetties built. We were told to go back 
and re-tool the plan. And every time we did what we were asked 
to do we were met with another request to re-tool it. And then 
finally on July 3d, we were told no.
    Senator Whitehouse. Well, if the rock jetties and island 
berms had been in the original planning then presumably the 
scientific work about whether they would actually help or not, 
and I believe that was what held things up. There were people 
who were suggesting that these berms could actually make 
matters worse, and presumably that is a question that is worth 
answering. I mean, you wouldn't want to do something that might 
make matters worse. Correct?
    Mr. Young. No, I wouldn't, Senator.
    Senator Whitehouse. You would want to answer that question, 
and the way you would answer that question ordinarily would be 
through the contingency planning in the first instance. You 
would get ahead of it, saying if there is going to be a major 
spill that here is what our plan is. And then people have the 
time through the contingency planning process to look and say, 
yes, berm works, yes, jetty works. And then when it happens, 
you are good to go, as opposed to having to start up and try to 
kind of design a plan over the weekend.
    Mr. Young. Well, I can tell you that as of early May, 
Senator, the State had a plan, and we tried to execute on that 
plan. And the plan that we executed on in Elmer's and Grand 
Terre Island, proof is in the pudding. It worked. It stopped 
the water from getting into bays and estuaries.
    In terms of the sand berms, we have been fighting with the 
Federal Government to try to get those sand berms and restore 
our coastline irrespective of this oil disaster. And they have 
plans. And finally Secretary Mavis came down 2 weeks ago and 
said, we have studied this enough. We are going to do something 
about it. He is the Obama administration's point man on coastal 
restoration. We have been fighting for that, and we have had 
several plans on coastal restoration which would not only 
protect us from natural disasters but would protect us from a 
manmade disaster such as this.
    So we have plans. We have been stymied every step of the 
way by the Federal bureaucracy.
    Senator Whitehouse. It says that, for instance, a draft 
action plan for a worst case is one of many requirements in the 
southeast Louisiana proposal, the plan, that is listed in the 
plan as, ``to be developed.' Is the news wrong that that worst 
case plan wasn't actually developed and was just put down as 
``to be developed' in the contingency plan?
    Mr. Young. What are you referring to, Senator?
    Senator Whitehouse. A New York Times story from June 25th.
    Mr. Young. I would have to defer to the Governor's office 
on that particular question.
    Senator Whitehouse. Do you know how much boom the State had 
set aside for this?
    Mr. Young. How much boom the State had set aside? Certainly 
not enough. In fact, when asked in the original plan for the 
high sea boom from the Federal Government they said they 
couldn't marshal enough sea boom to take care of it. And on 
that conference call, we had Governors from every State. 
Louisiana Governor Jindal was present. The Governor from 
Mississippi was on the phone. The Governor from Alabama was on 
the phone. Governor Crist from Florida was on the phone. And 
were told at that time there wasn't enough boom worldwide to 
mobilize quick enough.
    Senator Whitehouse. Yes, what the news story here reports 
anyway is that the amount of hard boom that Louisiana 
requested, roughly 950 miles of it, was about one and a half 
times the entire national stockpile and more than three times 
what the southeast Louisiana area contingency plan said would 
be required to boom the State's entire coastline.
    So it appears that nobody was really ready for the extent 
of the booming either in terms of having boom handy or properly 
anticipating what the contingency plan was and that the State 
was a partner in the preparation of that plan. Is that correct?
    Mr. Young. Yes. Our coastline is very irregular. In fact, 
we do not have many beaches at all because of the canals that 
have been dug for oil exploration. But certainly that is why we 
came up with plan B with the sand berms and then plan C which 
had been the barges and the rock jetties.
    Senator Whitehouse. But they weren't evaluated.
    Mr. Young. And there is enough blame to go around. 
Certainly I can tell you no one ever expected this type of 
disaster. But I can tell you, as I sit here as confident as I 
can be, that when we complete the autopsy for this Deepwater 
Horizon well blowout we will find that this disaster could have 
been prevented. We will find that BP was negligent, reckless, 
cut corners, cut off the alarm that was giving them 
information.
    This disaster should not have happened in the first place.
    Senator Whitehouse. And I don't have much good to say about 
MMS either in overseeing all this mess.
    Mr. Young. Right.
    Senator Whitehouse. So I agree with you.
    If know I am a little bit over my time, but I think we have 
been pretty flexible about that so far.
    I wanted to ask Mr. Senner a question. You make two points, 
and I would like to propose to you a third and ask you to 
discuss them.
    And Dr. Spies, if you would like to chime in also.
    You make the point whether the participation of a 
responsible party, for instance BP, may influence the scope and 
the nature of the natural resource damage assessment process, 
which I think we agree is a legitimate concern. And also 
whether the trustee agencies are unduly constrained by funding, 
and I assume by that you mean that they have to go to the 
responsible party to get the money to proceed rather than being 
able to go on their own.
    The third whether I would ask is whether it is a concern 
that the responsible party might go out there on their own, 
parallel to the natural resources damage assessment process, 
and basically buy up all of the major scientists, experts and 
universities in the field, get them to work doing things that 
are on the job enough to create a conflict so that they are 
conflicted out of the natural resource damage assessment, and 
leave a more vulnerable natural resource damage assessment and 
more vulnerable to their challenge by virtue of having 
basically scooped all the best scientists, universities and 
experts into their own pockets right at the very beginning with 
all of their money before the agency, which has to rely on the 
responsible party for the money, can get its own plan stood up 
and running.
    Mr. Senner. Senator Whitehouse, I think that is a very 
legitimate concern. I can tell you following the Exxon Valdez, 
there was indeed a bidding war for scientists, with at one 
point the State of Alaska, the Federal Government, and Exxon 
each out trying to recruit experts and in some cases probably 
bidding for the services of the same individuals.
    Part of the Oil Pollution Act of 1990 encouraged industry 
participation in part as a response to that kind of a 
situation. Unfortunately I think what we are seeing is that 
this situation can still arise. I think the representative from 
the Department of Interior here, Ms. Dohner, indicated that the 
Fish and Wildlife Service and others are trying to recruit some 
experts as well.
    It is a serious problem, and I am not sure that there is a 
way around that, but it is a concern. There is only a limited 
pool of people who have the expertise.
    Senator Cardin. But in response to Senator Whitehouse's 
point about the responsible party being brought into the 
process, doesn't that almost per se bring into question the 
objectivity of the work?
    Mr. Senner. That is a concern, Senator Cardin, I raised in 
my statement. Yes, that is a concern. I think as the stakes 
grow higher financially, the potential liability, the greater 
the concern that I have about whether the right kind of studies 
are being done.
    Now, having said that, I do not have any evidence and I 
have no indication that the relationship to date between BP and 
the governments is inappropriate or dragging or anything of the 
sort. Nonetheless, that concern is there and is in fact one of 
the reasons that it is all the more important to have 
independent peer review, people who are disinterested parties 
with no financial stake. They are not PIs looking for research 
funding, reviewing the program, and helping us critique it and 
decide, indeed, are the right kinds of questions being asked; 
are the methods appropriate. That is one safeguard for that 
kind of a problem.
    Senator Cardin. Does Senator Whitehouse want to say 
anything further? You have a look on your face.
    Senator Whitehouse. Yes. Mr. Chairman, I just wanted to 
make the point that it is not unheard of in litigation, for 
instance, against big corporations and entities with enormous 
amounts of money for them to go out and basically try to lock 
up all the best experts and take them out of the dispute later 
on so that when the plaintiff, or in this case the proponent of 
the natural resource damage assessment, brings their proposal 
forward, it is far more vulnerable to challenge by the 
responsible party because it does not have the best science 
behind it because the best scientists have been taken out of 
play by the responsible party from the get-go.
    And that kind of strategizing and gaming around the natural 
resource damage assessment process I think may merit a little 
bit more of our attention as we go forward. And so I salute and 
congratulate you for holding this hearing.
    Senator Cardin. Let me just concur on your concern. Just 
look at the numbers. If the reported numbers are correct, we 
know that according to the testimony here today, BP has already 
agreed to somewhere around $45 million of funding for 
assessment studies. We don't know how much of that has gone to 
experts, but about $45 million. But now there are reports that 
Exxon independently is spending $500 million on experts. That 
doesn't seem balanced. If you need $500 million to assess the 
damages, why to date hasn't there been an agreement with BP? I 
said Exxon. I meant BP. Why hasn't there already been an 
agreement with BP to a $500 million level for the assessment in 
which BP has been invited to participate in?
    But instead it looks like they are covering both sides. 
They are working with the Government and are involved in the 
scope of the assessment and workload being done by the damage 
assessment, but they are spending at least 10 times that hiring 
independent experts with nondisclosure agreements. So this 
information will not get out unless BP wants it out.
    Senator Whitehouse. And it would come as no surprise to me, 
Mr. Chairman, if somebody from BP who was in that natural 
resource damage assessment process had as their task to report 
back to BP on the vulnerabilities of the natural resource 
damage assessment process so that they were prepared to 
challenge it and knock down the number later on.
    Senator Cardin. Well, certainly the objectivity here is of 
concern, and that is why I think we made it clear on the record 
that we want to be notified by our Government agency trustees 
if they feel that the independence has been compromised.
    Dr. Rifkin.
    Mr. Rifkin. Yes, I don't think this is a new issue. Whether 
you are talking about environmental impact statements under 
NEPA or ecological risk assessments or natural resource damage 
assessments, you basically go through the same process.
    My comment as a person who has been an environmental 
consultant for over 30 years is that it is virtually impossible 
for industry consultants to be totally objective if their 
funding is coming from industry. The ecological risk assessment 
process, NRDA process, is replete with uncertainty. And so how 
the samples are collected, how they are analyzed, whether 
toxicity tests are taken, what kind of tests are taken, how the 
information is interpreted, how it is statistically presented 
can all be done differently.
    And unless one is absolutely sure that the scientists doing 
the research do not have affiliations with those individuals 
who are providing them funding, it becomes problematic. Motives 
are always suspect. I would offer great care needs to be taken 
to make sure that whatever is done is done independently with 
transparency and objectively.
    Senator Cardin. This Committee, the Subcommittee as well as 
the full Committee, will be monitoring this as one of our 
highest priorities to make sure we get this right. This is the 
Environment Committee of the U.S. Senate, and this is the Water 
Subcommittee of that Environment Committee. So we will be doing 
everything we can to make sure we get the assessment right so 
that the remedial plans are accurate.
    And although we haven't had a chance to really question on 
this, I know some of our panelists are concerned that remedial 
sometimes means replacement. And that it has to be broad enough 
to deal with the broad scopes of trying to repair the 
environment. And we will be monitoring that very, very closely.
    I see that Mike Batza is in the audience. I just want to 
acknowledge the Chairman of the Aquarium Board in Baltimore, 
who has volunteered a great deal of time to the environment. It 
is nice to have in our Committee room.
    And with that, the Subcommittee will stand adjourned.
    [Whereupon, at 4:38 p.m. the Subcommittee was adjourned.]