Other provisions co-authored by Markey on whistleblower protections, blowout preventer and well standards also included

July 28, 2010 – As the nation marks the 100th day of the BP oil spill, which has created the largest environmental disaster in U.S. history, Congress is moving legislation this week to address the safety concerns resulting from the disaster. Several pieces of reform legislation authored or co-authored by Rep. Edward J. Markey (D-Mass.) have now been included in the House oil spill response legislation scheduled for floor consideration later this week.

And in an analysis released yesterday, the non-partisan Congressional Budget Office (CBO) found the House oil spill package, H.R. 3534, would reduce the federal deficit.

“This legislation will cut the federal deficit while preventing the oil industry from cutting corners when it comes to deepwater drilling safety,” said Rep. Ed Markey (D-Mass). “This legislation presents an easy choice between standing with BP and the other oil companies, or standing with American taxpayers and reducing our deficit.”

Rep. Markey was able to include the following key provisions in the House oil spill response legislation:

Oil Revenue Recovery & Deficit Reduction

Rep. Markey’s ‘Oil Revenue Recovery’ legislation ends the practice of drilling for free by oil companies, recovering up to of $53 billion in taxpayer money from lost oil royalties in the Gulf of Mexico. This money will be directed to pay for deficit reduction.

This legislation fixes a 15-year-old legislative flaw put in place by a Republican-controlled Congress in 1995. Because of an oil company court challenge to the 1995 Deep Water Royalty Relief Act authored by the then-Republican majority along with faulty leases offered by the Interior Department in 1998 and 1999, the Interior Department is currently being forced to refund more than $2.1 billion in royalty payments that oil companies had already made from these leases, including $240 million to BP.

The Government Accountability Office (GAO) has estimated that taxpayers could lose up to an additional $53 billion over the next 25 years as a result of royalty-free drilling when oil prices are high.

Rep. Markey has authored similar legislation to remedy this problem for several years, and these provisions have repeatedly passed the House of Representatives in 2006, 2007 and 2008 with bipartisan support.

Two weeks ago, Rep. Markey successfully offered his language as an amendment to the CLEAR ACT in the Natural Resources Committee. The legislation would offer the dozens of oil companies currently drilling for free in the Gulf of Mexico a simple choice – they can continue to drill for free on public lands no matter how high oil prices climb, but if they do so, they will not be able to purchase new leases from the federal government.

Whistleblower Protection:

Rep. Markey is a co-author of the Offshore Oil and Gas Worker Whistleblower Protection Act (HR 5851) along with Rep. George Miller (D-CA). Currently there is no federal law protecting oil and gas workers if they are retaliated against after speaking out on workplace health and safety violations on drilling rigs, like the Deepwater Horizon, operating on the Outer Continental Shelf. Modeled after other modern whistleblower statutes, H.R. 5851 would:

• Prohibit an employer from discriminating against an employee who reports to the employer, or government official they believed violated the Outer Continental Shelf Lands Act (OCSLA);
• Protect employees who report injuries or unsafe conditions on drilling rigs, refuse to work based on injury or impairment or a spill, or refuse to perform work in a manner that they believe violates the OCSLA;
• Establish a process for an employee to appeal an employer’s retaliation by filing a complaint with the Secretary of Labor, and allowing a jury trial if the Secretary fails to act in a timely manner;
• Make whistle blowers eligible for reinstatement, back pay and compensatory and consequential damages, and, where appropriate, exemplary damages;
• Require employers to post a notice that explains employee rights and remedies under this Act and provide training to the employees of these rights. 

Blowout Preventer Act:

The Energy and Commerce Committee conducted a vigorous investigation into the causes of the BP’s Deepwater Horizon disaster. This investigation showed that the blowout preventer was riddled with problems, including a significant leak in a main hydraulic system that was improperly modified and not powerful enough to cut through joints in the drill pipe. Plus the “deadman switch” - the last line of defense - had a dead battery. Poor cementing and fatal decisions made by BP in the hours and minutes before the explosion have also been uncovered by the committee.

Legislation to ensure new safety standards for offshore oil and gas drilling have been designed to ensure a disaster like the BP Macondo well blowout will never happen again. 

The Blowout Prevention Act – or BP Act – of 2010, sponsored by Reps. Henry Waxman, Bart Stupak, and Markey was developed with bipartisan support in the Energy and Commerce Committee, passing by a unanimous 48-0 vote, and includes the following provisions:

• Strong safety requirements for blowout preventers and other well control systems;
• Require oil company CEOs to certify the safety of each offshore well before drilling begins;
• Third party certification required by independent safety evaluator;
• Offshore oil and gas drilling in state waters must meet safety standards that are at least as stringent as those applicable to wells in federal waters.

Could Better Determine BP’s Liability from Disaster

(July 27, 2010) – Buried in documents sent by BP to the Coast Guard is a pivotal number that sheds light on central questions relating to BP’s oil spill – BP’s assumption of the true flow rate of the oil from the Macondo well. In the documents, released today by Rep. Edward J. Markey (D-Mass.), BP makes a request to apply more dispersants, and says they “assume flow rate of 53,000” barrels of oil spilled per day. This is BP’s first admission of its kind that the spill could be so large, and falls on the upper end of the current range given by government scientists.

“These are pivotal documents, where the company admits in writing the true magnitude of this spill could be at least 53,000 barrels a day,” said Rep. Markey, who received the documents as part of his investigation into the disaster. “This is a far cry from the 1,000 barrels a day BP first claimed was the total rate of the spill, and is important evidence in the government’s case to hold BP financially accountable for their disaster.”

The documents can be found HERE and are also now publicly available at restorethegulf.com following their release to Rep. Markey. The dispersant requests were sent to the Coast Guard by Doug Suttles, BP’s Chief Operating Officer. Suttles has previously discussed the potential to collect 53,000 barrels a day during the previous containment cap operation, but this document shows the same number was used to calculate the proper ratio of dispersants the company would use.

The documents are dated July 6 and 11, 2010, when the previous, ill-fitting temporary cap was on the well. BP notes in one document that they would “calculate oil escaping by subtracting oil captured by containment system from 53,000 [barrels a day],” a further admission that they used the figure to calculate oil escaping from the well.

The flow rate of the well would have substantial financial implications for the company, which is reporting its quarterly earnings today. Under current law, BP would have to pay a fine of at least $1,100 and up to $4,300 per barrel of oil spilled, with the higher figure in the case of gross negligence being found against the company. So for every 10,000 barrels of oil spilled per day at $4,300 per barrel over the more than 80 days of oil spilled into the ocean, the fine would be more than $3.5 billion.

The total size of the spill will also determine damages BP would have to pay for the spill’s effect on natural resources in the Gulf of Mexico.

The current estimate from the Flow Rate Technical Group, the government and independent scientists who have worked with video, pressure and other data to estimate the flow of oil from BP’s well, falls between 35,000 and 60,000 barrels of oil spilled per day. More precise numbers are expected soon resulting from additional data collected by Department of Energy scientists as the well was being shut in with the new cap.

“In the case of BP’s financial liability and the flow rate of this spill, ambiguity is BP’s ally, and precision is the government’s,” said Rep. Markey, who chairs the Energy and Environment Subcommittee and the Select Committee on Energy Independence and Global Warming. “This document turns the tables on BP by exposing their own assumptions about the size of the spill.”

During the BP oil spill, Rep. Markey has pushed BP to provide better access to video and the spill site for independent scientists looking to measure the spill. Rep. Markey successfully pushed to make the Spillcam public, release high definition video, and held the first hearing on measuring the flow rate of the spill on May 19, 2010.

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July 26, 2010 – In light of reports that Tony Hayward will leave as CEO of BP, and will receive a multi-million dollar severance package, Rep. Edward J. Markey (D-Mass.) today demanded that BP not provide a golden parachute to Mr. Hayward until it had paid all of the costs resulting from the company’s spill.

“At a time when BP should be devoting every possible resource to ending the spill, cleaning up the Gulf and fully compensating the residents who have had their livelihoods impacted, I find it extremely troubling that BP’s board would consider providing such a large severance package to Mr. Hayward,” writes Rep. Markey to Carl-Henric Svanberg, Chairman of BP. “BP should be dedicating its resources to compensating the residents of the Gulf Coast who are the victims of this tragedy, not handing out multi-million dollar golden parachutes.”

BP has not yet fully funded the $20 billion escrow account set up to compensate Gulf of Mexico victims from the spill, and reports have indicated that BP has been slow in paying out claims.

The full letter can be found HERE.

July 25, 2010 - Following reports of BP CEO Tony Hayward's ouster as head of the company, Rep. Edward J. Markey (D-Mass.) issued the following statement:

“While it's now happy sailing for Tony Hayward, rough conditions will persist in the Gulf of Mexico for years to come because of his failed leadership.

“The new leaders of BP will have an uphill climb to correct the legacy left by Hayward, indelibly inked by the disaster in the Gulf.

“On Friday, I received yet another reminder of Hayward's aloof, uninformed leadership, when his own company corrected his Congressional testimony -- saying that, contrary to Hayward's assertion to Congress, the drilling mud used by the company during the failed top kill procedure contained toxic material.

“The only way BP can be considered anew is if its leadership team does everything it can to renew the Gulf and bring about a new era of safe oil exploration, governed by transparency and accountability.”

BP Provides Other Toxics Totals; Will Same Mud Formulation Be Used in “Bullhead Kill” and Future Oil Company Operations?

July 25, 2010 – Responding to questions from Reps. Edward J. Markey (D-Mass.) and Lois Capps (D-Calif.) after BP CEO Tony Hayward’s congressional testimony in June, BP has now admitted that Hayward was wrong when he claimed that the drilling mud used by BP had no toxicity.

Tens of thousands of barrels of the drilling mud were used during the failed attempt to kill the well in late May, most of which likely escaped back into the ocean. During Hayward’s testimony on June 17, 2010 before the Energy and Commerce Committee, Rep. Markey pushed the BP executive to disclose the ingredients of the drilling mud, which Rep. Markey noted had some of the same dangerous chemicals as antifreeze.

In response, Hayward said, “I believe all of the mud that had gone into the ocean is water-based mud with no toxicity whatsoever.” The full transcript of the hearing is available HERE (the specific exchange on this question can be found on pages 110-111)

However, in one answer delivered to Reps. Markey and Capps by BP late Friday, the company notes that Hayward erred in his testimony, and that the mud does contain ethylene glycol (a highly toxic chemical used in anti-freeze), as well as caustic soda (a highly corrosive chemical commonly known as lye).

The question remains whether the same formulation of mud will be used in the possible “bullhead kill” as well as during the relief well operations. If these operations go as planned, little or no drilling mud should escape into the ocean. However, the two Representatives wondered whether drilling mud containing toxic chemicals is used in a widespread manner by the oil and gas industry. 

“Tens of thousands of barrels of toxic drilling mud were shot into the ocean during BP’s failed top kill attempt,” said Rep. Markey. “Do all drilling activities involve the use of highly toxic formulations? If so, how many tens of thousands of barrels more may have been sent into our waters or onshore wells in even the most standard of operations?”

“Time and time again, BP has failed to disclose critical data and information that is essential to our ability to track the long term effects of this spill. The bill I introduced with Mr. Markey to give subpoena power to the independent commission investigating the spill passed the House nearly unanimously but continues to languish in the Senate. This is yet another reason for Senate Republicans to grant the commission this critical tool,” said Rep. Capps.

The full response from BP is available here.

Along with the response on toxic drilling mud (question 3), the response from BP includes information about the volumes of methanol (a highly toxic chemical) used in well operations, and answers to questions on methane and air quality measurements and worker chemical exposures, among other issues.

Original BP Gulf Response Plan Didn’t Mention Hurricanes, Tropical Storms

July 22, 2010 – As a tropical storm threatens to significantly interrupt operations at the BP spill site, perhaps delaying final resolution of the spill by two weeks, Rep. Edward J. Markey (D-Mass.) today released information provided to him by BP on their recently-updated storm response plans. Rep. Markey asked for the information following his discovery that BP’s original Gulf of Mexico spill response plan did not mention  the words “hurricane” or “tropical storm.” Yet in the response to Rep. Markey, BP insists it “always had a hurricane plan in place.”

“While BP asserts that they were prepared for this kind of weather event, it was only recently that they applied a plan to catastrophic spills,” said Rep. Markey. “It’s this same ad hoc attitude that has persisted throughout BP’s oil spill disaster.”

BP’s response to Rep. Markey, which can be found HERE, follows a letter of inquiry sent by Rep. Markey on June 30, 2010. That original letter, including information on BP’s lack of severe storm mentions in their original Gulf plan, can be found HERE.

These answers on BP’s severe storm contingency plan follow yesterday’s announcement by the other four major oil companies to assemble a rapid-response system to deal with catastrophic spills.

Companies Must Also Invest in Prevention, Response, and Cleanup Technologies, Says Chairman

July 21, 2010 – After a House Energy and Commerce Committee investigation exposed the inadequacy of the major oil companies’ Gulf of Mexico oil spill response plans, four of the top five oil companies today announced they would create a new containment system for future blowouts. The previous plans from the four companies—ExxonMobil, Shell, Chevron and ConocoPhillips—were written by the same subcontractor, were 90 percent identical, and included phone numbers for long-deceased experts and mentioned the need to evacuate walruses from the Gulf of Mexico.

At a hearing before the Energy and Environment Subcommittee, chaired by Rep. Edward J. Markey (D-Mass.), the heads of the four companies, and BP, admitted the response plans were an “embarrassment.” Following that hearing, Reps. Markey, Bart Stupak (D-Mich.) and Henry A. Waxman (D-Calif.) wrote to the companies demanding that they produce new, effective response plans for a spill. That letter can be found HERE.

“This is only one possible tool in what must be a more robust tool kit for oil companies to respond to spills,” said Rep. Markey. “This could be a positive step, but it cannot be the industry’s last.”

“While this proposal’s response time could be quicker than this spill, the proposal these companies are submitting is essentially the current BP cap system and plan for 100 percent collection of oil,” continued Rep. Markey. “This current, ad hoc system erected by BP cannot and should not be the final proposal by these companies. While this could be a rapidly-deployed system, the oil companies must do better than  BP’s current apparatus with a fresh coat of paint. The oil companies must also invest more in technologies that will prevent fatal blowouts in the first place.”

The House today passed two bills that would push for better oil spill response and safety technologies. The first – H.R. 2693, the Oil Pollution Research and Development Program Reauthorization – will strengthen research, development, and demonstration of innovative tools, methods, and technologies for oil spill cleanup. The second – H.R. 5716, the Safer Oil and Natural Gas Drilling Technology Research and Development Program – will launch a new R&D effort in new technologies to make deepwater drilling safer and prevent future oil spill disasters. 

Pressure Readings, Well Integrity Still Worrisome Says Chairman; Sends Letter to BP, Thad Allen

July 20, 2010 – With the possibility of a new well-killing strategy put on the table by BP, Rep. Edward J. Markey (D-Mass.) today asked BP and Admiral Thad Allen about the risks of the procedure, and whether it has been authorized yet by Unified Command. In the letter, Rep. Markey notes that questions remain about the integrity of the well, leaks from the cap, and low pressure readings during the current cap test.

“We all want a quick resolution to this disaster, but we must be assured that proposed solutions will not make the disaster any worse,” writes Rep. Markey in the letter. Rep. Markey is chair of the Energy and Environment Subcommittee in the Energy and Commerce Committee. “It is critical that we understand the implications of a bullhead kill attempt under the various scenarios that may be operating in the well.”

Rep. Markey notes that the same lower-than-expected pressures exerted by the oil and gas during this current testing phase that have provided the potential opportunity for this new well-killing strategy “is also at the center of an ongoing scientific assessment regarding well integrity.”

Rep. Markey also continued his calls for a better measurement of the flow rate from the well, if the opportunity presents itself, through a 100 percent collection method with ships at the surface. In the letter, Rep. Markey asks if this “bullhead kill” would kill off any chance at performing this test.

Rep. Markey asked Ken Salazar, the Secretary of the Interior Department, about the “bullhead kill” today at a hearing Rep. Markey chaired. Sec. Salazar stated that there were concerns that would have to be addressed before the procedure was given the green light by the Obama administration.

A full copy of the letter is available HERE and the questions sent to BP America CEO Lamar McKay and Admiral Allen are listed below:

1. If the well integrity has been compromised, what are the potential implications of attempting a bullhead kill procedure?
2. What additional risks are undertaken with the bullhead kill compared to the alternatives (i.e., a return to containment using production platforms at the sea surface or a continuation of the integrity test conditions)?
3. Under what conditions (e.g., pressure threshold) would the choke and kill lines used in the bullhead kill be at risk of damage?
4. Could forcing the hydrocarbons back into the reservoir through the bullhead kill procedure cause damage that could make the bottom kill more challenging or exacerbate any seeps that may be present?
5. If hydrocarbons are flowing in the annulus, will this decrease the chances of the success of the bullhead kill?
6. Would a bullhead kill attempt slow progress on the bottom kill in preparation?
   Under what conditions and on what timeline will a bullhead kill be authorized by Unified Command and pursued by BP? Once initiated, how long is the bullhead kill anticipated to take?
7. Would the bullhead kill also kill off any chance of conducting a 100 percent collection strategy?

July 18, 2010 -Representative Ed Markey (D-Mass.) today sent a letter to Coast Guard Commandant Admiral Thad W. Allen seeking more information on the testing of the Deepwater Horizon/Macondo well and on the status of any potential decision to keep the well closed permanently. Rep. Markey noted that the shutting of the well would potentially end the possibility of doing any final analysis of the flow rate of the well by collecting 100 percent of the oil into ships on the surface. BP will have to pay a fine to the U.S. government for every barrel of oil spilled per day, up to $4,300 per barrel in the case of gross negligence.

Today, BP’s chief Operating Officer Doug Suttles said: "We're not seeing any problems, at this point, any issues with the shut-in," and that because of that, Suttles said, "we'll continue to leave the well shut in." Rep. Markey wrote to Allen to seek clarification regarding this situation after Allen said yesterday, that once the test is complete, "we will immediately return to containment."

"By shutting in this well, we could be shutting off our last best chance to determine what BP could pay in government fines," said Rep. Markey.

"If it is necessary to again allow the well to flow, either because a decision to keep it shut in indefinitely is unsound, or in order to conduct the relief well ‘bottom kill’ then there would be no reason at that point for not taking the opportunity to conduct a 100 percent hydrocarbon collection test," writes Rep. Markey to Admiral Allen.

"It is imperative that we understand your current plans and be able to assess the ramifications of different options at this point," Rep. Markey wrote to Allen. " I am also concerned, as I know you are, that continuing to keep the well fully shut in, could pose risks of additional problems with well integrity, an issue that I have raised with both you and BP in separate letters over the past few weeks."

On Wednesday, Rep. Markey, the chairman the Energy and Environment Subcommittee in the House Energy and Commerce Committee and of the House Select Committee on Energy Independence and Global Warming, wrote to BP asking them for their commitment to conduct a full flow rate test, once an oil collection system was in place that could collect 100 percent of the hydrocarbons flowing from the well.

"If the well remains fully shut in until the relief well is completed, we may never have a fully accurate determination of the flow rate from this well. If so, BP -- which has consistently underestimated the flow rate -- might evade billions of dollars of fines," continues Rep. Markey in the letter.

In the letter, Rep. Markey asked Admiral Allen to respond to the following questions:

1. Has a decision been made to continue to shut in the well after the integrity test is complete? If so, did you make that decision or concur in it? Do the pressure readings to date indicate that this is the preferred approach?
2. If a decision is not made to shut in the well, and a collection strategy is put in place, when will sufficient capacity and capability be available to collect 100 percent of the oil and methane?
3. If a 100 percent hydrocarbon collection capacity is installed, will a 100 percent flow rate test be conducted at the earliest possible point in order to determine the true flow rate from this well as of July, 2010? If not, how will you be able to determine with any precision the actual amount of oil that has been released from the well, so that the government can determine BP’s potential legal liability for the environmental damage it has caused?
4. How will different collection and containment strategies affect the release of oil and methane into the ocean? Will installation of collection capacity necessarily require some release of oil and methane into the ocean, as Mr Suttles indicated? If so, how much? Will the relief well bottom kill necessarily require release of hydrocarbons into the ocean, even if the well remains shut in up to that point?
5. Is it possible to design an oil collection strategy (as opposed to a complete shut in) in which no more oil or methane is released into the ocean?
6. If collection of 100 percent of the hydrocarbons becomes possible in such way as to also prevent releases of hydrocarbons into the ocean, could that be a preferable strategy until the relief well is complete, since it would both relieve well pressure and contain hydrocarbons?

As global temperatures reach new highs, the National Academies warn of severe impacts

July 16, 2010 – Last month was the hottest June on record and completed the hottest first half of a year dating back to 1880. The record-breaking temperatures were reported by the National Oceanic and Atmospheric Administration (NOAA). All of the years since 2001 have been in the top 10 hottest and this latest temperature check shows that between increased greenhouse gases and the tail end of El Nino, 2010 will be another scorcher.

“The only person in America not running from the heat this summer is LeBron James,” said Rep. Edward J. Markey (D-Mass.). “The record breaking temperature is another warning siren that should serve as a wake up call to Congress to take action to reduce carbon pollution and add clean energy jobs so we can mitigate the impacts of climate change.”  

Meanwhile, Arctic sea ice has continued its rapid decline, driving polar bears closer to extinction and threatening other Arctic wildlife. Arctic sea ice extent in June was the lowest since records began in 1979, according to NOAA. That’s now the 19th straight June with below average ice.

The record-breaking temperatures come as the National Academies release their latest assessment of global warming today. The study finds that for each degree Celsius (1.8 degrees Fahrenheit) of global warming, there will be approximately a 25% decline in the extent of Arctic sea ice in September, a 5 – 15% reduction in the yields of corn and other food crops, and up to a 2 to 4 fold increase in the area damaged by wildfire in areas of western North America.

The report concludes that these impacts can be mitigated with significant reductions in greenhouse gas emissions. The report makes clear that the more we use clean sources of energy that produce less carbon pollution, the healthier the planet.