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20–869 PDF 2005

THE DELAWARE RIVER OIL SPILL

(109–1)

HEARING

BEFORE THE

SUBCOMMITTEE ON

COAST GUARD AND MARITIME TRANSPORTATION

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JANUARY 18, 2005

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

CHARLES W. DENT, Pennsylvania

TED POE, Texas

DAVID G. REICHERT, Washington

CONNIE MACK, Florida

JOHN R. ‘RANDY’ KUHL, JR., New York

LUIS G. FORTUN ̃ O, Puerto Rico

LYNN A. WESTMORELAND, Georgia

CHARLES W. BOUSTANY, JR., Louisiana

VACANCY

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

ROBERT MENENDEZ, New Jersey

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JOHN T. SALAZAR, Colorado

(II)
SUBCOMMITTEE ON COAST GUARD AND MARITIME TRANSPORTATION

FRANK A. LOBIONDO, New Jersey, Chairman

HOWARD COBLE, North Carolina

WAYNE T. GILCHREST, Maryland

PETER HOEKSTRA, Michigan

ROB SIMMONS, Connecticut

MARIO DIAZ-BALART, Florida

DAVID G. REICHERT, Washington, ViceChair

CONNIE MACK, Florida

LUIS G. FORTUN ̃ O, Puerto Rico

CHARLES W. BOUSTANY, JR., Louisiana

DON YOUNG, Alaska

(Ex Officio)

BOB FILNER, California, Ranking Democrat

CORRINE BROWN, Florida

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

MICHAEL M. HONDA, California

ANTHONY D. WEINER, New York

BRIAN HIGGINS, New York

BRIAN BAIRD, Washington

JAMES L. OBERSTAR, Minnesota

(Ex Officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Brice-O’Hara, Rear Admiral Sally, Commander, Fifth District, U.S. Coast

Guard, accompanied by Captain John Sarubbi, Port of Philadelphia ............. 7

Campbell, Bradley M., Commissioner, New Jersey Department of Environmental Protection ................................................................................................. 22

McGinty, Kathleen A., Secretary, Pennsylvania Department of Environmental

Protection .............................................................................................................. 22

Rochford, Dennis, President, Maritime Exchange for the Delaware River and

Bay ........................................................................................................................ 32

Ruch, Lieutenant Colonel Robert J., Commander, Philadelphia District, U.S.

Army Corps of Engineers .................................................................................... 7

Stiles, Eric P., Vice President for Conservation and Stewardship, New Jersey

Audubon Society ................................................................................................... 32

PREPARED STATEMENT FROM A MEMBER OF CONGRESS

Saxton, Hon. Jim, of New Jersey ........................................................................... 70

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Brice-O’Hara, Rear Admiral Sally .......................................................................... 43

Campbell, Bradley M ............................................................................................... 55

McGinty, Kathleen A ............................................................................................... 58

Rochford, Dennis ...................................................................................................... 61

Ruch, Lieutenant Colonel Robert J ........................................................................ 68

Sarubbi, Capt. Jonathan ......................................................................................... 44

Stiles, Eric P ............................................................................................................ 76

ADDITIONS TO THE RECORD

Delaware Riverkeeper, Maya K. Van Rossum, statement ................................... 77

Partnership for the Delaware Estuary, Inc., Kathy Klein, Executive Director,

statement .............................................................................................................. 84

(1)

OVERSIGHT FIELD HEARING ON THE

DELAWARE RIVER OIL SPILL

Tuesday, January 18, 2005

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COAST

GUARD AND MARITIME TRANSPORTATION COMMITTEE

ON TRANSPORTATION AND INFRASTRUCTURE, WASHINGTON, D.C.

The Subcommittee met, pursuant to call, at 10:00 a.m., in Independence Seaport Museum, Penn’s Landing, 211 South Columbus

Boulevard and Walnut Street, Philadelphia, Pennsylvania, Hon.

Frank A. LoBiondo [Chairman of the Subcommittee] presiding.

Mr. LOBIONDO. Good morning. I would like to call this hearing

of the Coast Guard Subcommittee to order. And I am going to start

with a brief statement. We will have statements from some of the

other Members of Congress, and then we will move to our first

panel.

The Subcommittee on Coast Guard and Maritime Transportation

is meeting this morning to investigate the recent oil spill in the

Delaware River and to review the response of Federal, State, and

local official to the incident.

On November 26 of ’04, the ATHOS I, a Cypriot-flagged tank

vessel carrying heavy crude oil, struck a submerged metal object as

it was being guided by tugs to the Citgo Oil Processing Facility in

Paulsboro, New Jersey. The collision created two gashes in the vessel’s hull and resulted in the release of 265,000 gallons of oil into

the Delaware River. The oil has affected some of the most environmentally sensitive shorelines on the East Coast, resulting in the

loss of wildlife in New Jersey, Pennsylvania, and Delaware. Efforts

to remove the oil and mitigate the damage are still ongoing. And

although we still do not know the full extent of the environmental

and economic damage caused by the spill, we do know that we are

likely to suffer its consequences for years to come.

The Coast Guard, in conjunction with numerous Federal and

State agencies, has coordinated the response to this incident. I

want to commend the Coast Guard and the other Federal, State,

and local officials for their quick response to the spill and their efforts to minimize the extent of this disaster.

Following the Exxon Valdez oil spill, Congress passed the Oil

Pollution Act of 1990, which improved the Federal Government’s

ability to prevent and respond to oil spills. This Act directed the

Coast Guard to develop and maintain specific contingency plans for

spills in coastal waters throughout the United States. I look forward to hearing the testimony this morning regarding the coordination and completeness of the response efforts to the incident
2

under the Delaware River Plan and whether any improvements

should be made to the Act to help prevent further incidents and ensure the viability of our ecologically sensitive coastal waters.

I also look forward to hearing from the witnesses on how such

a large obstruction came to be located in the middle of a shipping

channel that is used by large oil tankers each and every day. Obstructions like this not only pose a huge risk to the safety of the

vessels and the coastal environment, but also to the efficient movement of goods and cargo in the maritime transportation system. I

understand the investigation into the origins of this object is ongoing; however, I hope that the witnesses can provide the Subcommittee with an update this morning. I also hope the witnesses

can tell me and the other Members what efforts will be made to

locate and remove or mark any similar obstructions from the Delaware River and other important U.S. waterways. I am sure we are

going to be hearing from Congressman Andrews on this issue, because Rob and I have talked privately, and there is an initiative

that we are very interested in pursuing together.

The safety and security of the maritime transportation system

will remain a priority concern of this Subcommittee in the 109th

Congress. Our ports provide the entry point for more than 95 percent of the United States overseas trade. The maritime transportation industry provides employment to hundreds of thousands of

Americans and is an integral part of the U.S. economy. The Nation

depends on the safe and efficient transport of commerce via the

maritime transportation system. This Subcommittee will continue

to oversee the industry and will develop and move legislation to improve the safety and security of America’s ports and vessels operating in U.S. waters.

I hope the testimony we receive at this hearing will help us develop initiatives to ensure the safety of the maritime transportation

system and help prevent future oil spills in our ecologically sensitive coastal waters. I want to take a moment to thank the witnesses who have come here today as well as groups, such as the

Fish and Wildlife Service, the Tri-State Bird Rescue, the Delaware

Riverkeeper Network, and the hundreds of volunteers for their tremendous efforts to mitigate this incident, protect critical habitat,

and save countless wild animals. I also want to extend my sincere

appreciation to the Independent Seaport Museum for hosting us

today. You have a very impressive facility here. Finally, I would

like to thank my colleagues who are here with us today who are

going to help out with this hearing.

We will proceed now, and I would like to ask Congressman Castle, who has been gracious to join us today but has to leave, if he

would like to make any opening remarks.

Mr. CASTLE. Well, thank you, Mr. Chairman.

I would first like to thank you, Frank, for the invitation to participate in the hearing today. I am also pleased to join my colleagues today, Rob Andrews, with whom I have worked for a number of years, and Allison Schwartz, with whom I have worked for

a least a few years in my case in discussing this critical issue. Finally, I would also like to thank the expert witnesses for taking

their time to be here today.
3

The Delaware River is a valued environmental resource and commerce channel in Delaware and all states represented here at this

table. Protecting its viability is a top priority for all of us. The federal and state agencies responded to the spill in a coordinated,

timely, and efficient way, and have worked tirelessly to find solutions and execute extensive clean-up efforts. Certainly the impact

on the health of the river and the wildlife it is home to is quite serious.

But I believe we need to focus on lessons learned and how to prevent such an environmental tragedy from happening in the first

place and happening again. Therefore, we would be at fault if we

did not ask: Is the scope of the investigation broad enough, and are

there enough federal resources in place to identify ways to ensure

that an incident like the oil spill does not happen again?

Identifying the sequence of events surrounding the Delaware

River oil spill on November 26, 2004 determine exactly how it happened and who is responsible for this submerged object that led to

the punctured hole of the ATHOS I remains central in unanswered

questions in this ongoing investigation and must be answered.

However, it is also my hope that in the course of this hearing we

will learn what steps are necessary as we look to the future to prevent another disaster along the Delaware River. Personally, I have

a number of questions that I believe need to be answered and hope

that they will be through the course of the testimonies. And at the

end, I will make a recommendation on what I believe might be

helpful as our states collectively face various proposals affecting

this river.

First, what warning and detection systems are in place to notify

authorities of dangerous or questionable submerged objects? Second, why did the Army Corps of Engineers’ sonar equipment not

detect this submerged object or objects? Third, it seems evident

that we need better inspection of the Delaware River bottom, but

do we need better inspection of vessels that travel the Delaware

River? Fourth, if we believe we do, how would such systems be implemented? And finally, while it is my understanding that the majority of vessels that travel the Delaware River are double-hulled,

not 100 percent are; therefore, should we, or can we, as a region,

designate the Delaware River as navigable exclusively by doublehulled vessels or approach that in some other manner?

It is clear to me, and probably everyone in this room, that regional coordination for happenings in and along the Delaware

River must be coordinated in order to effectively balance the interests of both industry and the environment. In the coming months

and years, our states will face numerous proposed industrial and

government activities that have potential safety, environmental,

and economic consequences, including the proposal by the U.S.

Army to release the X nerve gas, the siting of a liquid natural gas

facility by British Petroleum, possible transport of spent nuclear

fuel by barge to our ports, and deepening of this river.

As we vet current and projected regional proposals for activity in

and along the Delaware River, and as we try to prevent disasters

like the oil spill from occurring, it seems to me we must do the following: one, first and foremost, ensure each State’s own environmental and safety laws are recognized and adhered to; two, in-
4

crease regional coordination among the States and the Federal and

local agencies to ensure all interests are considered; three, design

a sustained prevention, monitoring, and research program of the

Delaware River to better ensure that we understand the effects of

industrial proposals or incidents on the river and its wildlife habitats.

In order to accomplish the above three goals, I would like to suggest the establishment of the Delaware River Industrial Prevention, Monitoring, and Event Response Task Force. This Task Force

would be charged with three primary responsibilities: one, researching and examining ways to prevent future accidents and incidents in the future, perhaps by starting with the questions I proposed earlier in my statement; two, establish a regional response

team comprised of Federal and State agencies to analyze proposed

and present activity along the Delaware River to determine regional costs and benefits and to coordinate any necessary clean-up

efforts in the wake of an adverse incident; and three, implement

a sustained Delaware River health monitoring program. One way

to implement such a task force would be to designate an earmark

appropriation in fiscal year 2006 to a particular agency to be the

lead in setting up a specific Delaware River Industrial Prevention,

Monitoring, and Event Response Task Force.

Mr. Chairman, the goal of all of us is to ensure the viability of

the Delaware River as a commercial tool and an environmental resource for years to come. This is what I hope to accomplish for the

establish of the above discussed task force.

Mr. Chairman, as you indicated when you were kind enough to

call on me, I apologize that I can not stay long enough to hear the

testimony of our expert witnesses, as I must depart for the inauguration of Delaware’s governor to occur at 12:00 noon in Dover.

I am going to be pressing it as it is. I do, however, look forward

to reading the transcript and to learning the opinions of the witnesses here with us today on the questions and proposals I have

suggested as well as those of my colleagues. I will have a staff person here as well. And Mr. Chairman, I certainly appreciate the opportunity to be here, and I thank my colleagues for allowing me to

go first because of my schedule.

Mr. LOBIONDO. Well, thank you, Mike. We appreciate your being

here. We appreciate your interest and involvement and your suggestions and look forward to working with you as we move forward

on these issues. Thanks.

Next, I would like to call on Congressman Rob Andrews. Rob, I

thank you for being here. Rob and I have worked together on a

number of issues. Our Districts share a common boundary, and we

have many topics that we have similar views on. And I am very

appreciative, Rob, that you have taken the time to be here to give

us your views and help out on this important issue.

Mr. ANDREWS. Thank you, Mr. Chairman, and good morning.

I want to begin by expressing my appreciation to you, Chairman.

I will call you Frank. It feels more comfortable calling you Frank.

As usual, Frank is a champion for this region, and when this very

unfortunate occurrence, I think tragedy, occurred, he was the first

to step forward with a proactive, intelligent response to it. I thank

him for his leadership, for his friendship, and I am certain that all
5

of us working together will find the best solution to this. I thank

you for inviting me to be here this morning. I thank the witnesses.

I look forward to hearing from you.

I also want to echo Mike Castle’s comment about thanking the

individuals who responded to this tragedy: the Coast Guard’s men

and women; the personnel of the Army Corps of Engineers; the

Federal employees who work for the Fish and Wildlife Service and

many other agencies; the State agencies and local agencies that

came out; first responders up and down the river; citizen volunteers, many of whom put in countless hours. It was—as disturbing

as the incident was, it was encouraging and inspiring to see the

selflessness and dedication of men and women who went out under

bitter weather conditions hour after hour, day after day, and we express our appreciation for that.

I hope this is the last one of these hearings we ever have. I hope

that we never have a need for another hearing to evaluate a disaster, an ongoing disaster of this magnitude. And as Frank eluded

to—as the Chairman eluded to just a few moments ago, I think

that one of the ways we can avoid having another tragedy and

therefore another hearing of this nature is to press for a robust and

full debris maintenance or debris clean-up mission for the Army

Corps of Engineers on this river. It is not the fault of the Army

Corps that it has not embraced such a mission to this point. We,

in the Congress, have not given the Corps the resources that are

needed to embrace such a mission.

I am not an expert at all in these issues, but in my mind, it

comes down to this: Whose responsibility was it to, on a regular

basis, check for the presence of debris like that, which evidently

caused this spill? The best I can tell is the answer is it was no

one’s responsibility. It wasn’t anyone’s primary responsibility to

take care of such an issue. That is not an indictment of the agencies involved. It is an observation of the gap that we have in the

protection of our river.

A few years ago, Congressman Curt Weldon, another river neighbor, and I embarked on an effort to give the Army Corps of Engineers a debris clean-up mission for the Delaware River. We were

successful in obtaining some authorizing language, which gave the

Corps the beginnings of the authority to do that mission, but we

were not yet successful in obtaining the resources that the Corps

needs to have the boats and the other equipment necessary to do

the job.

One of the results that I hope that will flow from this morning’s

discussion is a consensus, number one, as to what the right solution is, and then a commitment, number two, to work together,

both sides—all sides of the river, both sides of the aisle, both sides

of the capital to effectuate that solution.

So, to my colleagues Allison Schwartz, Mike Castle, it is an

honor to join you, and especially the Chairman of the Committee,

Frank LoBiondo. Thank you for exercising leadership on this issue.

I look forward to following your lead and coming up with a solution

that prevents this from happening again. Thank you.

Mr. LOBIONDO. Okay. Thank you, Rob.

Congressman Jim Saxton was very interested in being here

today. Jim led a small delegation that I was privileged to be a part
6

of, which was in Iraq and Afghanistan last week, and he had some

prior commitments that kept him from changing things around, but

he has asked that we submit a statement into the record. And I

would ask to do that at this point. Jim will certainly be a partner

with us as we move forward.

We are joined today by Congresswoman Allison Schwartz. Allison, congratulations on your service to Congress, and we look forward to working with you. We and the Delaware Valley have a

very strong bipartisan activity, I guess you would call it, or activism that works well, and we are thrilled you are with us today.

Good luck with your future endeavors.

Ms. SCHWARTZ. Thank you very much, Mr. Chairman. I am very

pleased to be with you this morning, and I thank you very much

for the privilege and the opportunity to participate in today’s hearing.

As you know, I was just recently appointed to the Committee on

Transportation and Infrastructure, and in the coming weeks, I look

forward to working with you and other distinguished Members of

the Committee.

I also want to welcome our witnesses and thank them for providing the expert testimony. In addition, I want to thank and applaud

the hundreds, literally thousands of Pennsylvanians who donated

their time to the massive clean-up effort. I think the estimates are

that 1,700 volunteers came out on the river to help with the clean

up.

Mr. Chairman, I am really pleased to be rolling up my sleeves

and getting to work right away on Congressional oversight responsibilities. As you know, this is really the 15th day on the job for

me, so this is one of my first official duties, and I am really—I am

very pleased to be here, although I will echo my colleague’s comments in saying I am sorry that we are not here to be discussing

some better circumstances than we are this morning.

As you know, the Port of Philadelphia is the region’s—really one

of the reason’s epicenters of international commerce, and it plays

a vital role in the area’s economy. The Delaware River bay and the

tributaries are visited also by thousands of fishermen, wildlife observers, and recreational boaters every year. Like the port itself,

these activities contribute substantially to Pennsylvania’s economy.

I am sure my colleagues will agree that it does the same for New

Jersey and for Delaware. The recent oil spill had a devastating

multiplier effect, temporarily shutting down the Salem Nuclear

Power Plant, impeding trade, injuring and killing wildlife, and putting area drinking water at risk. Despite the round-the-clock clean

up, we have yet to complete determination of the total costs of the

clean up or for restoration, and we have not yet identified the party

or parties responsible for the spill and for its associated costs.

Over the last several weeks, we have quickly realized that our

response system needs to be reviewed and analyzed and action may

need to be taken on any improvements determined to be necessary.

In addition, we have to assess actions that are available to us now

that could and should prevent future spills. As a resident of the region and a citizen concerned about the State’s fiscal well being, I

want this regional resource to maintain its economic and environ-
7

mental health. The business of the port is a company commerce

and the surrounding recreational activities depend on it.

It is my hope that today’s hearing will demonstrate that this is

a shared goal and that it will be met with strong, bipartisan support and cooperation.

Again, Mr. Chairman, thank you for conducting this vitally important hearing. Please know that I will be a dedicated member of

the team, working not just today, but in the future to remedy the

damage caused by this incident and to work, in the most important

way, to prevent any future spills. Thank you, Mr. Chairman.

Mr. LOBIONDO. Okay. Thank you, Allison.

We have three panels today that will be testifying officially. We

will start with the first panel. We have Rear Admiral Sally BriceO’Hara, who is the Commander of the Fifth District of the United

States Coast Guard. The Admiral is accompanied by Captain John

Sarubbi, who is the Captain of the Port of Philadelphia. And we

also have Colonel Robert Ruch, who is the Commander of the

Philadelphia District U.S. Army Corps of Engineers.

TESTIMONY OF REAR ADMIRAL SALLY BRICE-O’HARA, COMMANDER, FIFTH DISTRICT, UNITED STATES COAST GUARD,

ACCOMPANIED BY CAPTAIN JOHN SARUBBI, PORT OF

PHILADELPHIA; AND LIEUTENANT COLONEL ROBERT J.

RUCH, COMMANDER, PHILADELPHIA DISTRICT, U.S. ARMY

CORPS OF ENGINEERS

Rear Admiral BRICE-O’HARA. Thank you. Good morning, Mr.

Chairman and distinguished Members. Thank you for the opportunity to discuss the ATHOS I incident.

The Delaware Bay and River is home to the Nation’s sixth largest port. Daily nearly 42 million gallons of crude oil are moved on

this waterway. The entire port system generates approximately $19

billion in annual economic activity. On November 26, the ATHOS

I, a 750-feet Cypriot-flagged tank ship was delivering Venezuelan

crude oil to the Citgo pier in Paulsboro, New Jersey.

Within 250 feet of its destination, a submerged object hulled the

number seven center cargo tank, spilling oil into the Delaware

River. The response was swift, comprehensive, and in accordance

with the requirements of the Oil Pollution Act of 1990. Quick establishment of a unified command ensured inclusion of all interested stakeholders. By early morning, members had assembled

from Pennsylvania, New Jersey, Delaware, the Coast Guard, and

the O’Brien’s Group, representing the responsible party. It would

ultimately grow to include nearly three dozen entities aligned by

their use of the Incident Command System.

Despite the complexity of this case, the unified command and its

general staff worked exceptionally well. Their primary objectives

included stabilizing the vessel and preventing further discharge,

shoreline assessments, protective booming, oil recovery, establishing and enforcing a safety zone, collecting and rehabilitating injured wildlife, facilitating vessel traffic, and informing the public.

Within hours, thick oil had spread six miles to the north and was

slowly moving south. Initially, it was slightly buoyant, very viscous, and sticky. With cooling and weathering, it tended to sink.

Eventually, it impacted 57 miles of the Delaware River. At its
8

peak, the response employed over 1,800 people and 140 vessels.

The clean up will continue into the summer.

The spill significantly affected vessel traffic and facilities. Collaboration with the Mariners Advisory Committee and Delaware

Bay and River Pilots Association was instrumental in returning the

port to normal operations. Submerged oil was a major concern. It

threatened water intakes at the Salem Nuclear Power Plant and

prompted a precautionary 11-day shutdown of two reactors. Tracking and locating submerged oil was a new and major challenge,

however, consultations with experts led to several unconventional,

yet effective, detection and recovery methods.

Concurrently, Captain Sarubbi initiated a marine casualty investigation, retracing the ship’s track lines, survey teams located several objects, a large cast iron item approximately 700 feet from the

pier was removed and proved to be a heavily corroded lower housing of a centrifugal pump. It showed evidence of fresh scrapes, including red paint, which the NTSB matched to the ATHOS I. In

addition, an anchor was salvaged yesterday, and it appears to have

evidence of impact. An investigation is ongoing. We do not know

the manufacturers or owners of any item. The ATHOS I was stabilized, lightered, and brought to Citgo for discharge of its remaining cargo.

A temporary hull patch allowed it to safely proceed to Mobile,

Alabama for repairs. Initial estimates proved inaccurate. The tank

cleaning during dry-docking resulted in the Unified Command’s

final estimate that about 265,000 gallons of oil spilled into the

Delaware River. Planning, preparedness, and training were key to

the success of the community’s rapid and thorough response to this

incident.

Mr. Chairman, meeting America’s need for waterborne transportation of goods while, at the same time, protecting the environment

is a great challenge. It is imperative that the public, maritime communities, and the government work closely to manage these competing priorities. I wish to acknowledge the professional expertise

of the representatives of the Commonwealth of Pennsylvania, the

States of New Jersey and Delaware, and the O’Brien’s Group. Additionally, several agencies and special teams contributed noteworthy

assistance. EPA’s Emergency Response Team, the Navy Supervisor

of Salvage, NOAA’s Scientific Support Coordinator and Navigation

Response Team, the Army Corps of Engineers, U.S. Fish and Wildlife, Tri-State Bird Rescue, and all involved citizens.

Captain Sarubbi and I are ready to answer your questions, sir.

Mr. LOBIONDO. Okay. Thank you, Admiral.

Colonel, please proceed.

Lieutenant Colonel RUCH. Good morning, Mr. Chairman and distinguished Members of the panel. I am Lieutenant Colonel Robert

Ruch, Commander of the Philadelphia District of the U.S. Army

Corps of Engineers.

I am pleased to appear before you today to discuss the role

played by the Corps in response to the ATHOS I oil spill in the

Delaware River on November 26, 2004. On November 27, 2004,

Captain Sarubbi, the U.S. Coast Guard Captain of the Port and Incident Commander for the ATHOS I spill event, requested that the

Philadelphia District survey the Mantua Creek Anchorage. The
9

Philadelphia District Survey Team began this work on November

28, 2004 using multi-beam surveying technology to look for possible

obstructions that could have caused the incident.

Initial surveys, which were conducted over the time period of November 28 through the 30th, did not identify any obstructions. On

December 1, 2004, the Corps supplemented the multi-beam technology with a contractor-provided side scan sonar to—in an attempt to identify obstructions, focusing its efforts along the paths

taken by the ATHOS I as it approached the Citgo dock. On December 2, 2004, the Corps began to work in association with NOAA,

and they sent a surveying team that was also assigned to assist in

the event. Data provided by the Corps and NOAA were provided

daily to the U.S. Coast Guard investigation team. This information,

combined with similar data provided by the surveying and dive

team hired by the ship owner, led to the identification of the suspected object in the Mantua Creek Anchorage.

Due to concerns raised by the shipping industry, Captain

Sarubbi requested that the Corps perform in-depth surveys along

the entire Delaware River shipping channel from the Commodore

Barry Bridge upstream to the incident site, a distance of approximately seven miles, to assure that the this was to assure that the

channel was free of any further obstructions. The Corps and NOAA

team worked together in this effort from December 4, 2004 through

the afternoon of December 7, 2004. The channel was determined to

be clear of obstructions and was opened without restrictions on December 7, 2004.

The Corps continues to work with the Coast Guard investigation

team in the identification of the obstruction found in the anchorage

and other related issues, as further discussed by the Coast Guard.

I commend Captain Sarubbi and the entire team on their efforts

following the incident. The excellent cooperation of all of the parties involved, including federal and state agencies and the representatives of the ship’s owner, are attributed to Captain

Sarubbi’s outstanding leadership.

I would also like to commend the efforts of the NOAA Navigation

Response Team led by Mr. Howard Danley and Lieutenant Commander Rick Fletcher. Their survey expertise and dedication

throughout the investigation greatly assisted the Corps in its mission and proved to be an invaluable partnership.

This concludes my testimony, and I will be pleased to answer any

questions you have.

Mr. LOBIONDO. Okay. Thank you, Colonel, very much.

First, for the Admiral, does the Coast Guard, in its lead role

under the Delaware River Committee for Incident Response, have

access to the latest information on location of the area’s critical

wildlife habitats?

Rear Admiral BRICE-O’HARA. Yes, sir. The Coast Guard has access to that information, which is developed through the Area Contingency Plan. That is part of the pre-planning that is done collaboratively in anticipation that there would be a tragedy of this nature.

Mr. LOBIONDO. So those areas have been taken into account in

the incident response planning process?
10

Rear Admiral BRICE-O’HARA. Yes, sir. Would you like a more

specific answer? Captain Sarubbi is more familiar with the details,

if you would like a little amplification.

Mr. LOBIONDO. Well, I would, and just, as a little more of a preamble with it, I, along with a number of environmental groups, are

somewhat frustrated with the delay in putting out the booms. Now

I know that that is where some of the oil spread into the sensitive

areas. I also know that you had a critical weather problem that

prevented you from doing some things, but that is why I am going

along this line a little bit, and I would like you to elaborate, if you

could, Captain.

Captain SARUBBI. Yes, I can, Chairman.

As a requirement, each Captain of the Port was required to establish an area committee. That area committee is primarily

charged with ensuring that the port community, both government

and industry, is prepared to respond to an incident of this nature,

and oil spill. Our area committee has been in place since about the

mid-’90s, and just after the formation of the committee we developed the Area Contingency Plan, which the Admiral talked about.

That plan has identified in it all of the different environmental-sensitive areas that need to be addressed during an oil spill. As part

of the planning efforts that take place in our area committee, we

had previously established protocols for booming off of the environmentally-sensitive creeks. And on the first day of the incident, we

began to boom off those environmentally-sensitive creeks. In fact,

by the end of the first day, we had some 12 of those creeks boomed

off.

So we had a plan in place to boom the creeks off based however,

and I think going—looking back, we boomed off, in total, about 26

environmentally-sensitive rivers, creeks, and those types of areas.

I think, as we look back at—you know, now we are, I think in

about 52 days into it, it is probably one of the things where we may

need to take another look at that plan that we have for some lessons learned to see if we can do a better job. We did have some

difficulty initially putting off some of the boom. We had a long,

wide part of the river that we had to put boom out. We ended up

putting over 20 miles of boom over 120,000 feet. We had difficulty

in some areas in maintaining the boom. For example, at Raccoon

Creek, the current there is very strong and difficult to deal with,

and every time we put a boom out, it broke. In other cases, we had

a lot of debris in the river, and that interfered with the boom. In

some cases, it actually helped, because it put an increased barrier

between the river and the tributary. In other cases, we had the

current, because the current was so strong, the oil was entrained

underneath the booms or just passed right under the booms, so we

do realize that some oil did get into some of these more environmentally-sensitive creeks and, as I said, I think this is probably

one of the lessons learned that we will take back to the area committee, take a look at our booming strategies for the future.

Mr. LOBIONDO. Okay. Again, for Admiral or Captain, the Delaware River is home to some of the largest and most critical ports

in our Nation. They employ thousands and are a vital link for

international trade. Are the representatives of the local maritime

community involved with the incident response planning process?
11

Captain SARUBBI. Yes, Chairman. We actually have two committees now. As you know, with the Maritime Transportation Security

Act, each of the Captains of the Ports are required to establish an

area maritime security committee. That committee ensures that

the maritime community, both on the government side, Federal,

State, and local, as well as the industry are ready to do two things.

One is to prevent a terrorist attack from happening within our

port, but also to respond if we need to do so we do do some response planning in that as well, but in the area committee, the one

that is primarily to deal with oil spill response, the—both the industry and government work together. We have representatives

from the State of New Jersey, the Department of Environmental

Protection, for example, Pennsylvania, Delaware, as well as members of the industry from oil refineries from the oil spill response

companies, and other interested members that would be involved

should we have a spill.

Mr. LOBIONDO. I am assuming there are detailed contingency

plans that deal with an extended closure of the river?

Captain SARUBBI. Under my authority, of course I have the authority to close the river, and that is, in fact, what we did on the

first night of the event. We quickly realized that closing down the

river, with a port as large as the Port of Philadelphia, would have

a significant economic impact on the community. So one of the top

priorities of the Unified Command was to reopen the port. Our initial priority—our top priority had to remain recovering the oil, but

we quickly realized that getting the port back open was also an important priority.

As the Admiral indicated in her opening statement, we had Captain Mike Linton from the Pilot Association, and also representing

the Mariner Advisory Committee, which is the local harbor safety

committee, joining Unified Command on Saturday, and he began

helping us to develop protocols. He worked with my waterways

management staff to develop protocols to get the port reopened.

And in fact, on Sunday, the second day into the spill, we did

allow limited ship movement. I think we allowed three ships to

come into port and a couple of ships to move within the port. On

Monday, we implemented those protocols and began to allow ship

traffic to move on a limited basis. We were concerned for a number

of different things. One, we wanted to make sure that ships that

had been in port and had been contaminated by the oil did not

leave port dirty and then contaminate areas of the river and bay

that were not oiled.

So we had to establish a cleaning process, which we did. We actually put teams of people together to clean ships. As you can

imagine, cleaning an 800-foot tanker is not an easy chore. We had

some difficulties in initially doing that. And as the first couple of

days into the incident, we had some significant backlogs of shipping. I think it—all total, we probably had about 200 ships that

were impacted, either delayed from entering port or from departing

port. I think at, maybe at the maximum in an individual day, we

probably had as many as 50 ships awaiting either arrival or departure into port.

We also—as a part of the process, we developed a risk-based tool

that helped us to prioritize the shipping that needed to leave first,
12

and we did that in conjunction with the industry. We brought in

representatives from the oil industry, representatives from different port authorities, South Jersey Port Corporation, the Pennsylvania Regional Port Corporation, and we developed this technique

to help us, as I said, to prioritize ships so that we could get those

ships that were most critical and most needed of leaving or entering the port first. And those, of course, would be oil tankers or

ships with fruit on them that may have had spoilage.

So while we did not have detailed plans in place for reopening

the port prior to the spill, we quickly developed those plans with

the help of the maritime community, Captain Mike Linton of the

Mariner’s Advisory Committee, and also the Maritime Exchange

for the Delaware River and Bay.

Mr. LOBIONDO. The ships that needed to be cleaned, you said you

put together a team that then prioritized and cleaned them before

they came in or out. Did the ships have the ability to hire themselves, contract a cleaning crew, if they chose to, can you comment

on that?

Captain SARUBBI. Yeah, initially, the Unified Command—it was

the Unified Command’s desire for the Unified Command and the

oil spill response workers to clean the ships. We felt it was important for us to go in and clean the ships, because we had the expertise to do that. But later on, we became—well, not later—a couple—within a couple of days, we became overwhelmed, so we eventually did allow the ships to clean themselves, but we retained the

right to do the final inspection on the ship and then declare whether or not a ship was clean to leave. And we had developed a cleaning standard, and basically, that standard was that the ship did

not have any visible sheening, there was no oil coming from the

ship.

As I said, we did—we quickly did get overwhelmed in the first

few days of the spill, we did overcome that, and then we got into

a routine, which—and I think within 11 days—on day 11 of the

spill, we were able to reopen the port, and by that time, traffic was

pretty much up and running at that time. The port was reopened.

Mr. LOBIONDO. Colonel, in your testimony, you indicated that the

Corps could not find any obstructions in the area in its initial scan

with current sonar technology and that only after contracting out

for necessary sonar technology was the obstruction located. Is the

Corps conducting their regular surveys of the river using only the

older sonar technology that didn’t find this obstruction?

Lieutenant Colonel RUCH. Mr. Chairman, I think I need to clear

that up a little bit. We did not find any objects above project level.

We look for things to the 40-foot level, and anything below that is

below the project level that we are actually looking for. Now the

technology we use in our routine surveys is a single beam, and it

is almost like what you would have on a fishing boat. We go along

a line, and they are at 400-foot intervals perpendicular to the channel. And every 50 feet, basically, there is a reading. So we are getting point readings across the bottom, not covering a great deal of

the entire bottom of the river. We have another technology that we

use, and we did use in this case after the incident, a multi-beam.

It really looks at the entire bottom.
13

There are advantages to each kind of technology. We did not detect anything above the 40-foot level in the federal area of the anchorage. After the side scan sonar was brought in, which you are

referring to as the contractor-owned sonar, which the responsible

party also hired out a firm that had a side-scan sonar in that area,

everyone went through the area. We had identified some areas of

interest. Now not something sticking up off of the bottom. The

main thing that was seen was basically a trough that people had

a lot of different theories on what may have caused it, whether the

ship dragged bottom or oil jetting from the ship may have caused

it in the mud. But the actual pipe that was found was found when

a diver backed into it. They were down looking at an area that was

interesting because of all of the markings on the bottom, but no

one ever was able to say, before they found that pipe, that that

pipe was sitting there and that is what we were going down to pull

up.

Now every little bit of technology we have is of a great aide, because we see things like this trough and it gets us down into that

area. No one found that pipe with a sonar. It may have read that

way, but they were brought to an area of interest, based on all of

the markings and things down there. It looked like something had

occurred.

Mr. LOBIONDO. So what can we say about being sure the channel

is definitely clear of further obstructions?

Lieutenant Colonel RUCH. We are certain that there is nothing

coming up above project level in the areas we checked. An individual piece of material right now, I can not tell you that, with absolute certainty, that you can find everything. But with the technology we have, over the past years we have been doing this, we

have been very, very successful in our ability to say the channel

is open. And I don’t have a fear that there is a great deal of items

or there is ‘‘N’’ items sticking up anywhere above project level. But

to go down and find that one below the 40 foot is very difficult if

it is below 40 foot.

Mr. LOBIONDO. The pipe was not above project level?

Lieutenant Colonel RUCH. Not according to my surveys. Now, sir,

I can not tell you exactly—you know, that is part of the ongoing

investigation.

Mr. LOBIONDO. Okay. Okay. I don’t want to monopolize too

much.

Rob?

Mr. ANDREWS. Thank you, Mr. Chairman.

Lieutenant Colonel, I want to come back to this discussion about

the iron housing and the pipe. I understand the investigation is not

yet concluded, so we don’t know what caused the tear in the bottom

of the ship. The ship had a 39-foot draft, is that correct?

Lieutenant Colonel RUCH. I believe it was 36.6.

Captain SARUBBI. The draft of the ship is 36.6 feet.

Mr. ANDREWS. And your sonar went down to 40 feet, is that

right?

Lieutenant Colonel RUCH. Well, yes, Congressman. I mean, it

goes to bottom. We are looking for anything that would come above

that 40-foot level. Yes.
14

Mr. ANDREWS. Well, okay. Are you then ruling out the theory

that the iron pump housing caused the gash in the bottom of the

ship?

Lieutenant Colonel RUCH. No, absolutely not.

Mr. ANDREWS. How is it possible that it caused the gash at the

bottom of the ship if the draft of the ship was 36.6 feet and you

went down to 40 feet and didn’t see it?

Captain SARUBBI. I could clarify. I am conducting an investigation, Congressman, once the divers found the piece, they did take

measurements of the piece, not only the length and the diameter

and so forth, but they also measured the distance of the piece

above the river bottom.

Mr. ANDREWS. What was that distance?

Captain SARUBBI. It was about 31/2 feet at its highest place, so

it was protruding 31/2 feet above the river bottom—

Mr. ANDREWS. And the river bottom is—

Captain SARUBBI. —as of the time we found it.

Mr. ANDREWS. —approximately 39 feet in that area?

Captain SARUBBI. It’s a project depth of 40 feet at that—

Mr. ANDREWS. But it may not be exact. So if it is 39 feet, then

wouldn’t the pipe be protruding 351/2 feet, roughly, from the surface of the river?

Lieutenant Colonel RUCH. Given what you said, yes, Congressman.

Mr. ANDREWS. Well, then why didn’t the sonar technology find it?

Lieutenant Colonel RUCH. The sonar technology I have is what

is currently available, and it did not pick up anything that came

up above that level.

Mr. ANDREWS. Is there any better technology out there that

would have found it?

Lieutenant Colonel RUCH. Yes, and once again, the multi-beam

technology we are using now seems to be better. What we are looking for in our normal surveys, and I am not talking about the debris that you are actually talking about, we are looking for

shoaling, and that is what we go out and look for. And that is those

400-foot lines. We are looking for areas of where the river sediment

is piling up and we need to do—

Mr. ANDREWS. I think what you told us this morning is the

multi-beam technology didn’t find it either.

Lieutenant Colonel RUCH. That is correct.

Mr. ANDREWS. How extensive was the search by the multi-beam

technology?

Lieutenant Colonel RUCH. It was to the level of its ability. We

did 75-foot passes. We put a great deal of effort into it.

Mr. ANDREWS. So there was no more intense look that the multibeam technology could have taken?

Lieutenant Colonel RUCH. No.

Mr. ANDREWS. Is there anything else out there that is better

than the multi-beam technology?

Lieutenant Colonel RUCH. The side scan is better, and that is

really what led us to be down looking in that area. And that is

what you are looking—you are hoping to, you know, find something

that leads you to further investigation.

Mr. ANDREWS. I am sorry. What is a side scan?
15

Lieutenant Colonel RUCH. A side scan, it is a towed array that

goes—that we put out behind a ship. Instead of doing a direct look

down, it is down to a certain depth, whatever depth we are at, and

it is looking out to the side, so it has a better ability to see above

the bottom.

Mr. ANDREWS. And did you or did you not use that here?

Lieutenant Colonel RUCH. We did use that.

Mr. ANDREWS. Okay.

Lieutenant Colonel RUCH. And once again, it led us to put divers

down into the area, but no one had showed me that little object on

the bottom.

Mr. ANDREWS. What would it cost to use the side scan to—if you

had the side scan, if you used it this morning to take a look at the

river, how much money do you need to buy one?

Lieutenant Colonel RUCH. It is not an exceedingly expensive

piece of equipment. You can probably purchase one for around

$100,000, a digital system. Now, with that said, there is a lot that

goes into having the vessel, the vessel to use it, the personnel to

use it.

Mr. ANDREWS. It is like buying a car and hearing about the extras. What—if we bought the whole package, with all of the extras,

what does it cost us?

Lieutenant Colonel RUCH. To do the sonar, I can give you a basic

cost for the actual survey equipment. And this is everything from

a launch to tow it to the—about $3.15 million for the actual equipment that would be necessary and then an annual of about

$540,000 to actually have the personnel trained and performing

those types of surveys. Now that doesn’t go into removal and all

of the other things that I think you are looking at as part of—

Mr. ANDREWS. If you had the sonar technology this morning and

you detected a possible obstruction in the shipping channel, whose

responsibility is it to remove it?

Lieutenant Colonel RUCH. As the regulations read now, I would

remove a vessel that was noted to be in the channel. I do not have

an authority to remove other items.

Mr. ANDREWS. So in other words, if you were out there this

morning and you saw what you saw after the spill and you sent

the divers down and they confirmed that there was this pipe casing

sticking three and a half feet up, you don’t have the authority to

remove it?

Lieutenant Colonel RUCH. We would probably find a way to remove something, if it was impacting the shipping channel or the

federal anchorage—

Mr. ANDREWS. Well—

Lieutenant Colonel RUCH. —yes, we could remove that.

Mr. ANDREWS. Well, based on what authority?

Lieutenant Colonel RUCH. I would have to go to the actual authorities I have back here.

Mr. ANDREWS. But your first answer was you wouldn’t have the

authority really, and then you said you probably—

Lieutenant Colonel RUCH. Well, it—

Mr. ANDREWS. Common sense tells you you should.

Lieutenant Colonel RUCH. I am saying that it is inside the federal area. If it is an obstruction, one of two things happen. We go
16

down and see if we can remove it. And then, if we can’t remove it

for some reason, and I am saying there are things that are down

on the bottom, rock or whatever, then we would mark it on the

charts, and the ships would then have to navigate around it. But

in this case, we would bring in a crane and bring it up.

Mr. ANDREWS. Who would pay for that?

Lieutenant Colonel RUCH. The Corps of Engineers. It would come

out of existing O&M budget and take away from our efforts and

our ability to do what you are asking us to do on a day-to-day

basis.

Mr. ANDREWS. Mr. Chairman, this will be my last question, but

I think I heard the cost of this being rather modest. What—in your

opening statement, you talked about the initial estimates of the

economic loss because of the spill. How much was it? It was a huge

amount of money, wasn’t it?

Mr. LOBIONDO. It was a huge amount of money.

Mr. ANDREWS. And it was certainly multitudes higher than the

relatively modest amount the Lieutenant Colonel just talked about.

I am encouraged by our discussions that we have had about trying

to implement that solution. I would just ask you to submit, Lieutenant Colonel, for the record, if there is any authority this Congress needs to give you explicitly, so there would be no doubt that

you would have the authority to remove an obstruction that you

found in the future, I think we would like to know what that is.

Lieutenant Colonel RUCH. Absolutely. And I—we will provide

that, and we provided it—we have, in the past, provided it and

have been working with your staff on that. And your letter that

several members of the panel have sent to the President has also

requested that for the ’06 budget.

Mr. ANDREWS. Yeah. For the record, I know the Chairman knows

this, but the Chairman and I and several others joined in a letter

asking the President to include in his budget proposal the funding

to do what the Lieutenant Colonel essentially just talked about.

Lieutenant Colonel RUCH. But I will provide the language in

written for the testimony, sir.

Mr. ANDREWS. Thank you, ladies and gentlemen. Thank you, Mr.

Chairman.

Mr. LOBIONDO. Okay. Congresswoman?

Ms. SCHWARTZ. Thank you.

Just following up on some of those questions, I really wanted to

see—two questions really to start with is where are we in the process of the clean up? How far along are we in this process, and—

in terms of monies expended? And you said the estimates were $84

million to clean up. Those are the estimates that we have. Could

you speak to how far along we are and how we have—do you have

those dollars to spend, and how much have you already expended

in the clean up?

Captain SARUBBI. I can answer that question, Congresswoman.

As of yesterday, the cost of recovery operations is $94.5 million.

Ms. SCHWARTZ. $94 million?

Captain SARUBBI. $94.5 million. Of that $94.5 million, $4.2 million is money that has been expended by the Coast Guard and

other Federal agencies, as well as State agencies in Pennsylvania,

New Jersey, and Delaware. That $4.2 million is being funded out
17

of the Oil Spill Liability Trust Fund. The remainder of the money

is being paid for by the responsible party. As you may know, there

are limits set forth as to how much money that the responsible

party is responsible for paying in an incident like this. For a ship

of this size, the amount is $45.5 million. On December 20, the responsible party sent me a letter stating that they will continue to

fund the clean up past their limits of liability and also handle

claims. And they are doing that. And they are, as I said, to date,

continuing to fund the cost of the recovery and also handling all

of the claims that are coming in from third parties, such as ships

that were delayed or recreational boats that might have been contaminated by the spill.

Ms. SCHWARTZ. So, well, I guess that’s good news. Are you saying

then that the shipping company has agreed to pay any amount up

to the $94 million? I mean, their liability is set at $45.5 million

now by law, so—but they have said they are willing to pay whatever it takes to do the clean up?

Captain SARUBBI. Yeah, they have told me they will continue to

fund the cost of the recovery, and as I said, to date, they have

spent $94.5 million, minus the $4.2 million that the Coast Guard

has—and other Federal agencies are spending in the—out of the

fund. Now whether they are going to continue to do that, I don’t

know. But the word I have from them now is they are going to continue to fund the recovery operations and address claims. We anticipate that recovery operations will probably be complete some

time this summer.

Ms. SCHWARTZ. And does the liability trust fund have the money

you need? I understand there is some question about whether you

have that money in the trust fund. Do you have all of the money

you need out of the trust fund to be able to take some of the burden you have financially?

Rear Admiral BRICE-O’HARA. Congresswoman, allow me to give

you a little bit of background. The Oil Spill Liability Trust Fund

was created by OPA 90 at a billion dollars, and the sources of funding were an oil tax, which was phased out in 1994, and some legacy

funds, which shifted into the trust fund. And those shifts were complete in 2000. So currently, the level of funds that remain in the

trust fund are $842 million. So we are short of the anticipated one

billion when it was created, because it is not self-generating income. So we do have concerns. As we look at a typical draw on that

trust fund annually and look forward, we expect the trust fund to

be depleted as early as 2009.

Ms. SCHWARTZ. So if this spill were to occur in 2010, there would

be no money for you to do what you are doing now, but right now,

you have the money?

Rear Admiral BRICE-O’HARA. We have the money now. Longterm, we are not assured of a way ahead. There is provision for a

consumer price increase adjustment every three years. No adjustment has ever been made. That authority resides with the Department of Transportation, the department of which the Coast Guard

was a member at the time of the legislation. That authority was

never delegated to the Coast Guard, and so there has not been an

increase or adjustment for the CPI increases, nor does the Coast

Guard have the ability to make those increases. So there are some
18

structural concerns there in terms of now being within the Department of Homeland Security, who has authority, and should that be

divested down to the Coast Guard’s level.

Ms. SCHWARTZ. My staff told me that if we had used the CPI with—if that authority had been exercised, $64 million would have

been the liability limit in this case. Now I—since—having just said

that the shipping company is already accepting greater liability

than the $45 million, that may not be the kind of concern we would

have if they were not, although we could be in that situation where

they could say, ‘‘This is it. We are not paying any more.’’ And then

I guess the question is what happens then to any additional challenges or damage in the future. Could you speak to what happens

at that point?

Rear Admiral BRICE-O’HARA. Well, there needs to be a remedy,

Congresswoman.

Ms. SCHWARTZ. But at this point, there isn’t a remedy unless it

is through lawsuits or actions against the shipping company or

whoever might be determined to be responsible?

Rear Admiral BRICE-O’HARA. Or legislative adjustments as well.

I think we are looking at two different types of remedies, liability

limits being one piece of that, the other being how we manage

sources of income to sustain the trust fund at the level that was

envisioned when it was created in 1990.

Ms. SCHWARTZ. Well, we could reauthorize the trust fund. We

could do that. And as Congress, we could reauthorize it and make

sure that those funds come in from the shipping companies, the oil

companies, which is where that trust fund dollars came from, correct? We could do that.

Mr. LOBIONDO. Would you yield for a minute?

Ms. SCHWARTZ. Yeah.

Mr. LOBIONDO. That is a great question that you brought up, and

I think we are going to research it. If we were to deal with the tax,

we would have to refer to Ways and Means.

Ms. SCHWARTZ. Um-hum.

Mr. LOBIONDO. But I believe, and we are going to check this,

that in the Coast Guard authorization bill, which we have been

successful with the last couple of years, that we can deal with the

limits and that definitely will be something that we will look at.

Ms. SCHWARTZ. Great.

Mr. LOBIONDO. So that is a great point.

Ms. SCHWARTZ. All right. Well, thank you. And if I may, Mr.

Chairman, just—

Mr. LOBIONDO. Sure.

Ms. SCHWARTZ. Just one other set of questions, if I may. And it

really speaks to—I think Congressman Andrews was getting to

some of this. The issue about prevention, one of them obviously is

the concerns about finding debris on the floor—the riverbed and

identifying that before we have to look for it because there has

been a spill. Do you—without my providing suggestions, could you

make the three top suggestions you would make to us that would,

in fact, prevent a spill like this? I will offer that to the Lieutenant

or to the Admiral.

Captain SARUBBI. Well, Congresswoman, I think it is somewhat

premature to make those recommendations. We are still in the very
19

early stages of our investigation. We are still collecting facts. As

the Admiral mentioned, we have found additional objects on the

river bottom that we believe may have been associated with this

incident, an anchor and also a slab of cement, which we are looking

at as well. So to make recommendations or to draw any conclusions

from what we have learned so far, I think would be very difficult

to do at this point.

Ms. SCHWARTZ. It is something that I think is an extremely important next step. We want to first make sure that you have what

you need, and that we are moving ahead on the clean up and remediation and restoration, but we also want to make sure that we do

everything we can. One of the issues that none of you have mentioned, because it is not in your authority, is the issue that this

was a single-hull vessel rather than a double-hull vessel. And while

Congress has made a clear commitment to push and insist upon

our vessels in the future being able to be double-hull, this one was

not. Could you—I mean, do you have any comments to make on

that? I mean, you are working on cleaning up afterwards, but if it

would have been a double-hulled vessel, this would not have occurred, is that correct?

Rear Admiral BRICE-O’HARA. We know through historical evidence that when you have a double-hulled vessel, typically the

outer hull has been holed, and that has been enough protection so

that the inner hull has not been holed. It is very difficult, until we

get through this investigation, to say conclusively that that would

have been the case with the ATHOS I. What we are going to have

to do is reconstruct—the piece of damaged hull from the ATHOS

I is going to be cropped and delivered up here, and then we are

going to compare that with these objects that we have brought

from the bottom and do an analysis as to what we think exactly

happened, how deep the punctures were, all of that is information

that will come out during the investigation and will help us then

extrapolate and determine whether the two double hulls would

have provided enough protection.

Ms. SCHWARTZ. What I should say is when that investigation is

complete, I am sure that you will be sending a copy to the Chairman, and really our being able to look at the investigation results

and to receive any recommendations you might make or we might

draw from them, so that we could take that—take action, if necessary. So—

Mr. LOBIONDO. We will—

Ms. SCHWARTZ. —I hope you provide that information to the

Chairman.

Rear Admiral BRICE-O’HARA. Yes, Congresswoman.

Mr. LOBIONDO. We are understanding that the timing of the

hearing today would mean that we wouldn’t have all of the answers. And understanding that, we wanted to at least get the process started, and we will certainly be looking at follow-up hearings

depending on what additional testimony that we receive.

Ms. SCHWARTZ. Can I just—how long is it going to take to do the

investigation and for us to get some of those answers?

Captain SARUBBI. The investigation will probably take several

more months, Congresswoman.

Ms. SCHWARTZ. Go ahead.
20

Mr. LOBIONDO. Okay.

Ms. SCHWARTZ. Thank you.

Mr. LOBIONDO. A couple more quick things. Rob, we have on another panel Dennis Rochford, who is the president of the maritime

agency that might be able to give us a closer dollar amount. I know

Dennis talked about that briefly. And I wanted to follow-up, just

briefly, Colonel, on what Congressman Andrews was talking about.

If we had this technology that would cost in the neighborhood of

$3 million and something and then an additional requirement each

year to fund for the personnel, how often would you use this?

Would it be every week, every month, every day?

Lieutenant Colonel RUCH. It would be used every day. I—what

we would do is we would probably—what we hope to do is make

the switch to do a multi-beam look of the entire river instead of a

single scan look. And once again, instead of having point, point,

point, we are looking at a better look at the entire river. When we

see the anomalies, then we put the side scan down or the ROB or

whatever the technology said at that time, and then we would go

down and look at that area. So it would be used every day. We

would be using it to prove—to proof the channels

Mr. LOBIONDO. Okay. One additional question for either the

Coast Guard and/or the Corps. Are vessel operators required to notify the Coast Guard or the Corps of a loss of cargo overboard or

failure to retrieve objects that are left in navigable waterways? For

example, if a vessel dropped an anchor, lost that anchor, or lost a

cargo container overboard, are they required to notify you about

that?

Lieutenant Colonel RUCH. I leave that to them, because they are

the ones who the ship owners actually notify.

Rear Admiral BRICE-O’HARA. Mr. Chairman, the regulations are

very specific regarding the reporting of obstructions to navigation

with respect to a sunken vessel, raft, or other craft. And in that

case, the owner is obligated to report that and to mark that obstruction. However, the regulations, when they discuss other obstructions, more general, provide only that the owner may report

and mark it in the same manner as prescribed for sunken vessels.

That is the way that the specific language is worded. So I think

that the law could be clarified to impose an affirmative obligation

on the owner to report an obstruction other than a vessel.

Mr. LOBIONDO. So what you are saying is that this piece of housing that we are seeing could have fallen overboard at some point

in time and whoever—wherever this fell overboard, if in fact someone saw it, they did not break the law by not reporting it?

Rear Admiral BRICE-O’HARA. Yes, sir, the way the law is written,

the—it uses the term ‘‘may’’ as opposed to ‘‘shall’’.

Mr. LOBIONDO. I can assure you that that will be remedied also

in the authorization bill. Rob, do you have anything additional?

Mr. ANDREWS. Just very quickly. I am—I must say I am pleased

at the Chairman of the Subcommittee with jurisdiction over that

issue is sitting immediately to our right. It is good that Frank is

sitting in that chair.

I just want to follow up one more question that the Chairman

asked about booming and the effectiveness of the effort. If you had

to give a letter grade to the quality of the booming effort that had
21

taken place, let us say, as of sunrise on the morning of the 27th,

A being top-notch, great job, F being failure, what is the grade you

would give?

Captain SARUBBI. Congressman, I would give it a B or a B+. I

think we had some very difficult circumstances we had to deal

with. You know, in addition to booming off those environmentallysensitive areas, we also had to start recovering oil, and that meant

bringing in skimming vessels. We also had to do an assessment of

the shoreline to see how much oil we had and where that oil was.

We had a vessel with almost 13 million gallons still on it. We didn’t

know, at the time, what caused the rupture of the hull. So there

were a lot of different things going on. So I think, overall, we did

a good job—

Mr. ANDREWS. What was lacking that would have made it an

A+?

Captain SARUBBI. I don’t know that we have fully done our overview of that. I think we have to go back and look at, you know,

the manpower and resources we put into doing that as well as the

strategies. I think we also had to wait for the daylight to occur to

be able to start that process, but we have to look at our strategies.

I think that is probably one of the biggest things we have to look

at. As I said, we had difficulty in booming off some of the creeks

because of the current or the debris that was in the area, and we

need to maybe look at repositioning that booming and putting it in

different locations as—and make the booming more effective.

Mr. ANDREWS. That is something that Commissioner Campbell is

going to talk about in a few minutes, so I am interested in his recommendation.

Captain SARUBBI. And maybe we need to put some booming further in some of these creeks so that there is a second barrier as

well.

Mr. ANDREWS. Thank you very much. Thanks, Mr. Chairman.

Mr. LOBIONDO. Okay. Allison, do you have any follow-up?

Ms. SCHWARTZ. Just—if you are able to identify who owned that

pipe or whose it was that dropped it and lost it, do they have to

then participate in the liability and what are the chances of that

happening?

Captain SARUBBI. I think that depends on, you know, our investigation if we can actually determine the owner of the piece, and

then we will decide at that time what the appropriate legal authorities or actions should be.

Mr. LOBIONDO. Okay. Admiral, Captain, Colonel, thank you so

very much. This was very enlightening. Thanks for your dedication

to service, and we look forward to following up on this very important issue. We will take a very short break while we set up for the

second panel. Thank you.

[Recess.]

Mr. LOBIONDO. Thank you very much. We are very pleased to

move to our second panel. We have Mr. Bradley Campbell, who is

the Commissioner of the New Jersey Department of Environmental

Protection, and Ms. Kathleen McGinty, who is the Secretary of the

Pennsylvania Department of Environmental Protection. We thank

you so much for being here. Commissioner Campbell and I have

worked together on many, many, many issues, and Brad, I deeply
22

appreciate your participation today and your expertise in helping

us try to figure out where we go from here, and I would appreciate

it if you start off.

TESTIMONY OF BRADLEY M. CAMPBELL, COMMISSIONER, NEW

JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION;

AND KATHLEEN A. McGINTY, SECRETARY, PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Mr. CAMPBELL. Thank you, Congressman. If I may, I would like

to submit my formal testimony for the record and summarize briefly, out of respect for your time.

Good morning, and thank you for your leadership, Mr. Chairman,

Members of the Committee, on this devastating impact to the Delaware River. I want, first and foremost, to congratulate and thank

the Coast Guard for leading what was truly a team effort among

Federal and State and local agencies responding to the spill, for

their leadership and also their cooperation and accommodation,

their responsiveness to concerns as they were raised, either by individual states or individual communities. I include in that congratulations and praise the many community and non-governmental organizations, the Delaware Riverkeeper, who was on

scene, and the series of non-governmental groups, like Tri-State,

who helped respond to the spill, coordinating the work of many

hundreds of volunteers.

From the very first day that Governor Codey visited the oil spill,

the first morning, it was clear that the Coast Guard was in charge

but responsive to state concerns, and that was vitally important.

And to the extent that they are lessons learned, they truly are lessons that could only have been learned in the context of this spill,

and they are not criticisms of the Coast Guard’s response.

Second is to recognize, as this Committee’s very hearing today

recognizes, that the impacts of this spill are significant. More than

200 miles of shoreline are affected. More than 500 water foul actually found that were affected, and many more that we know to

have been affected but will never be found, either because they

were killed or because we simply haven’t identified them. Significant impacts for this estuary, a resource that is already under

many other sources of stress, from storm water runoff to other

sources of pollution in the estuary. So this is a significant event,

and we fear, the Department, because of the relative amount of oil

that was recovered is a relatively small proportion of the whole,

that those impacts we will be enduring that we will continue to see

oil wash-ups and tar balls over the coming months, and even possibly over the coming years.

In terms of lessons learned, I would identify really four points for

the Committee’s focus. First, in terms of prevention, I think that

the elements of debris removal and responsibility, that the Committee has already discussed this morning, are critically important,

enhancing the resources and technical capability of both the Coast

Guard and the Corps of Engineers to early detect any obstructions

that could either present a hazard to navigation or a potential

threat to the environment.

Second, in terms of the liability structure under the Oil Pollution

Act of 1990, in many ways a visionary law, but I think this still
23

highlights the need to revisit the caps, the limits on liability, which

are clearly—in terms of those limits, they are simply not commensurate with the damage of the spills relative to the amount of tonnage.

And I want to put a small cautionary note to Captain Sarubbi’s

testimony earlier. It is true that the vessel owner has agreed to

continue to fund the clean up, but I think it is important for the

Committee to keep in mind two points. One is that after clean up,

or really at the same time that we are completing the clean up, we

need to be planning restoration actions that make the public whole

for the damage of the environment. And there isn’t yet a commitment to fund those restoration actions.

Second, under Open 90, even when a responsible party agrees to

fund clean up beyond the limits of liability, they still have a right

to recover those funds in excess of the liability cap against the

fund. So there is no sense, yet, or no assurance yet that the fund

will be held harmless in this oil spill. And obviously, given the revenue issues that—for the fund that were identified earlier, that is

a significant concern for states like New Jersey, who are looking

not only to ensure that the clean up is fully funded, but may be

looking—but will be looking both to the responsible party and failing that—the fund to ensure full natural resource restoration.

Third, in the area of response planning, I think there are significant lessons learned. Congressman Andrews mentioned earlier

our—some of our frustrations about the booming efforts. Clearly,

there needs to be more boom material pre-positioned at the sensitive estuaries. There needs to be, I think, a reflexive booming effort as soon as a spill like this occurs, not an assessment period to

identify whether booming is necessary, but immediate reflexive

booming to be put in place as part of the response plan. Also, we

need more frequent updates of the area contingency plan to ensure

that issues like that are addressed in a timely way, lessons from

other spills are learned, and certainly to ensure that data, like the

data the Chairman identified with respect to critical habitat areas,

was—is in the plan and is up-to-date. I think, Mr. Chairman, the

point you made earlier is absolutely correct. There was—as Captain Sarubbi correctly said, there was critical habitat data in the

plan. It simply didn’t reflect the latest data, for example where eagles’ nesting areas were that was available to the respective agencies.

Finally, and fourth, I would note that, you know, the need, as I

mentioned earlier, to focus not just on completing the clean up, but

on a restoration effort commensurate with the damages. Here it is

our hope, and every indication from NOAA has been consistent

with our expectation that there will be a focused, expedited restoration planning effort, very much like the one NOAA so successfully

undertook in the context of the North Cape oil spill in Rhode Island. And so we very much look forward to working cooperatively,

State and Federal agencies, with NOAA on that effort.

But in this, and in the Coast Guard’s general effort, I can’t help

but echo a concern that Governor Codey has repeatedly raised,

which is that in the areas of prevention and the areas of response

and the areas of clean up and the areas of restoration, the Coast

Guard has been asked to maintain those missions, those traditional
24

missions of the Coast Guard over the last 15 years, at the same

time they have assumed many new duties as a result of the challenges of domestic security and the threat of terrorist attack. However, the resources that have been made available to the Coast

Guard have not been commensurate with those increases in duties.

And our fear is, as we try to learn the lessons from this spill, that

we will continue to have challenges integrating those lessons into

better prevention and better response as long as those resource

shortfalls are there.

And with that, I am happy to defer to any questions the Committee may have.

Mr. LOBIONDO. Thank you, Commissioner, very much. And now

we will turn to Secretary McGinty. Thank you so much for being

here today.

Ms. MCGINTY. Thank you, Mr. Chairman and Members of the

Committee. It is a pleasure to be here, although, as has been articulated, under different circumstances we hope, at some time, to

celebrate some additional successes in protection and prevention.

And as I look at the makeup of this Committee, I have confidence

about that, given, Mr. Chairman, your leadership in both environmental and economic progress and certainly, also, Congressman

Andrews, a long-time friend of mine, who, in my service in Washington, I know, and here now in Pennsylvania, to be a champion

of the environment, but certainly none other or more than our new

Congresswoman from the Philadelphia area. We are thrilled to

have Allison Schwartz now in this critical role. She certainly had

been a leader in the Pennsylvania State Senate.

Several comments, first leading to—or first relevant to what really worked well, what went right from Pennsylvania’s perspective,

and then several reflections on some improvements that we might

make or considerations for the Congress to take a look at.

First, to adopt by reference my colleague and friend Brad Campbell’s comments. I certainly couldn’t agree more with all that he

has said, but first and foremost, the State of Pennsylvania wants

also to commend our gratitude and the leadership of the Coast

Guard. Their performance was exemplary. We thought that their

response was immediate, effective. The organization was thorough,

and the inclusion of all of the relevant entities was very, very effective.

Specific to that, I want to comment to the Committee’s attention

the National Incident Management System, in particular. This system has seen its inaugural implementation here in this oil spill.

And our perspective is that it has worked well. It brings all of the

necessary competencies to the table. It is sufficiently specific so

that the entities know what they are supposed to do, when they are

supposed to do it, and the command structure is essential in effectuating that. However, we also found that it had the necessary

flexibility so that when surprises arose, when the weather turned

so terrible, it enabled us to respond and bring other resources to

the table as necessary. So NIMS worked, and it worked well.

Second, and also related to the overall effectiveness of not only

the Coast Guard, the Army Corps, the other participating Federal

and State agencies, the training that is provided in the OPA 90

law, and specifically every three years, OPA 90 provides for en-
25

hanced and renewed multi-state, multi-federal and state training

in the context of simulated emergency scenarios. Here, just relatively shortly before this incident, we had the occasion to go

through a major oil spill training exercise. Those investments by

the Federal Government are very effective, and I think without an

exception, the entities who participated in the exercise and then

were called on for the real thing would underscore that that training was invaluable and was enormously helpful here.

The other thing that went right, and if the Committee would indulge me, I just want to recognize some of my own colleagues who

are here. Many of you have done that in your opening comments,

and I am enormously grateful for your recognition of the work of

our first responders, our emergency response staff. I am joined by

Bob Bower and Stan Sneeds of my regional office here. But just to

add a little bit further urgency to what you have recognized to

what these individuals bring to the job, one of our colleagues, Paul

Jardelle, literally put his life on the line in this response effort. He

was among those who were on boats deployed two or three days

after the incident when the weather did turn very, very bad. Those

boats were over-topped by the waves and nasty conditions that had

arisen on the river, and he was tossed from the boat. 45-degree

water was a life-threatening situation. And here, too, everyone

pitched in and rescued those who were tossed from those boats. But

just to underscore, this is a very serious business, and these employees put their lives on the line repeatedly, and certainly in this

instance.

Some recommendations, going forward, are some things we

would commend to your attention. First, resources, and I am surprised not others have rung this bell even louder, because usually

your hearings are an occasion for everyone to ask you for more resources. But here, very specifically, our water quality staff in the

region, the Pennsylvania Department of Environmental Protection

staff, 50 percent of the entirety of our water staff have been deployed to this exercise, 3,600 man hours in just—really what is

over—a little over a month of work here responding. At the same

time we have that enhanced deployment, the State of Pennsylvania

has seen a substantial decrease both in point source water infrastructure funds as well as non-point source runoff pollution funds

that we receive from the Federal Government. Tough times all

around, but just this year, we saw an $11 million cut in those

funds, so I would commend your attention to those resources, because it is those resources that enable us to have the kind of staff

that we can then deploy and the technology to deploy in an emergency like this.

Second, waste management issues. We have found in the course

of putting together the overall response plan that we are not adequately prepared to have identified in each state facilities that can

receive waste materials so that there is not a bottleneck in the

clean up. This was particularly important here, as the size of the

spill grew as we understood that it was more than the originally

30,000 gallons that had been identified. So in terms of emergency

response preparedness, we would commend to your attention a consideration that every state look to its waste management facilitates
26

to try to identify it and have available adequate facilities for the

variety of incidents we might find ourselves involved in.

And that leads to the next point. Mr. Chairman, you were critically involved in the passage of the Marine Transportation Security

Act of 2002, an historic piece of legislation. It provides us, I think,

the critical opportunity to say even if, in this instance, with the

help of Open 90 we find ourselves relatively well prepared when it

comes to oil spills, I certainly can not testify before you that we are

equally prepared to respond if it were a hazardous chemical other

than oil. And we have had such incidents, but we have not had the

structures through which we could ensure our preparedness. And

with your historic legislation, I think we now have the occasion of

the framework through which we can ensure we are prepared for

those non-oil emergencies.

Next, I would point to and underscore what Congresswoman

Schwartz was talking about in highlighting that this was a singlehulled tanker. We would urge consideration of an acceleration of

the phase-out date of those single-hull tankers. And I would just

say as an aside here that this is an area where the environment

and the economy would go together. An acceleration of the phaseout would bring new opportunities, new businesses to our ports, for

example, to the Philadelphia naval yard where there is the capability to build those ships that would be double-hulled in nature and

therefore provide further protections against this kind of emergency.

Finally, I would come back to the issue, also, that Commissioner

Campbell pointed to in natural resources damages. He covered well

the liability issues. I would only point to the physical nature of

what we are looking at here and counsel against a rush to judgment as to whether or not we understand the full impact on habitat and wildlife at this juncture. Submerged oil, among other

issues, remains a serious concern, and it is our judgment that it

will be at least a year and maybe two years before we really understand what the impact on habitat and wildlife is all about and can

therefore take the necessary both legal and technical measures to

restore those resources.

Thank you, Mr. Chairman and Members of the Committee, for

the opportunity to testify and again for your leadership and attention to these critical issues.

Mr. LOBIONDO. I thank you both for your insightful testimony.

It gives us some good ideas here.

Congressman Andrews, would you like to lead off the questioning

this time?

Mr. ANDREWS. Thank you, Mr. Chairman.

I would like to welcome Secretary McGinty and Commissioner

Campbell and thank them for their service. You can not represent

this area in the United States Congress and not interact with both

of you on a regular basis, and you each conduct yourselves with

professionalism and great skill, and we are fortunate to have both

of you. We really appreciate you. I especially want to say to Brad

Campbell, you know, you can’t be the DEP Commissioner in New

Jersey and not be involved in controversy every single day. I personally appreciate the skill and foresight you brought to this job,

and thank you for the great job that you do. I am just very pleased.
27

There is a report that—from the Delaware Riverkeepers Network

that they say that no booms were present at any time on the

Pompeston Creek, the Pennsauken Creek, the Newton Creek, and

the Cooper River. What do you think that says about the adequacy

of the booming effort that took place after the spill?

Mr. CAMPBELL. Well, I would say, as I mentioned in my testimony, that clearly there needs to be a more concerted and immediate booming effort. I think what the Coast Guard followed in

terms of standard practice, and you were asking for grades earlier,

in standard practice they would have gotten an A, because it was

assessed—take a period of time to assess and then proceed with

booming. And so in the first days of the spill, that—in my sense,

I think we had lost a little bit of time because that standard practice was followed. My sense is, on this river, where you have a sixfoot tidal swing, a strong tidal current that is going to move the

oil quickly, really the booming effort should begin immediately. It

should be focused on started with the sensitive areas. And in order

for it to proceed quickly enough, there needs to be more pre-positioning of material. So they lose time in actually getting the booming material to the scene.

Mr. ANDREWS. So, Commissioner Campbell, you would recommend changing the protocol so there is a swifter response. And

rather than an assessment first, you just get the booms out in the

water more quickly? Did I hear that correctly?

Mr. CAMPBELL. Certainly in the immediate—the estuaries most

approximate to the spill, on this river, putting other contacts to one

side, where there is such a strong tidal swing, I think immediate

booming is appropriate, yes.

Mr. ANDREWS. And then I also understand your testimony is advocating sort of pre-positioning of booms in closer geographic proximity so we could have access to them more quickly, is that correct?

Mr. CAMPBELL. Exactly. Pre-positioning of the boom material,

and then also closer maintenance. What we have done over the

years, through our exercising with the Coast Guard and other

agencies is to practice booming. And part of that is establishing in

advance the anchor points for the booms. Some of those weren’t

fully available or useable when we went to use them this time, and

so some closer attention to that also needs to be paid.

Mr. ANDREWS. Madame Secretary, do you have anything to add

as far as recommendations on this question?

Ms. MCGINTY. I would just offer two thoughts. One is to add to

the pre-positioning an enhanced and updated ecological assessment

in these streams so that we have the latest information on what

the resources are. And second, just by way of analogy, I think supportive of the comment, when it came to Philadelphia’s drinking

water resources, we did go ahead, working with the Philadelphia

Water Department, and put in place protective measures, even before, as the Commissioner is articulating, the assessment was done.

If we had waited until the assessment was done, we may not have

taken that step because it looked like, in those assessments, the

spill was not going to make its way up to those drinking water intakes. Now at the end of the day it didn’t, but we immediately deployed enhanced carbon filtration and enhanced monitoring and
28

testing. And probably, for ecological resources, as those human resources, we should probably do the same.

Mr. ANDREWS. With respect to pre-positioning, where do you

think the best locations might be for locating these resources more

closely to the area?

Mr. CAMPBELL. Well, they are clearly going to be in areas in

Salem and Cumberland County where we are going to want to preposition right along the coast. I mean, from our perspective, assuming you can identify secure locations, the closer to the affected resource, the better, because you are just going to reduce deployment

times. The same type of analysis is going to have to be done, obviously, for our counterparts in Delaware, where Secretary Hughes

has some of the same concerns, and in Pennsylvania, obviously.

Mr. ANDREWS. Thank you very much. Thank you, Mr. Chairman.

Mr. LOBIONDO. Congresswoman?

Ms. SCHWARTZ. Yeah. Thank you. Thank you very much. And I

wanted to, first of all, thank you, Secretary, for reinforcing my line

of questioning and my concern about the fact that the—under Open

90, they didn’t—we have not seen an increase in the limit on liability. And in this case, we know, from the previous panel, that we

are going to need more than $45 million to not only clean up but

remediate the situation we have in the spill. And so we already

know that. I am—I appreciate the Chairman being willing to work

with us to see if we can’t get that CPI implemented and that liability increased. As you pointed out, and I was told in between the

panels, it is possible even if the shipping company is now paying

these costs, they could come back to the trust fund and say, you

know, ‘‘My liability was only $45.5 million. You have to reimburse

me for the rest.’’ That is a serious concern that those dollars will

then be public dollars rather than be paid by the shipping company

when they could. So I look forward to working with you on making

that happen.

I was also interested in your comments, and I think we need to

understand both comments that what we know now may not be all

we know in six months or a year from now, certainly from an environmental point. So that—my question is, going forward, do you

have recommendations for the best way we can make sure that we

have not only cleaned up the river, but also—and remediated the—

any environmental impact? But then the issue of restoration on

the—and the public impact going forward, this is a—could you

speak specifically to what is the best way to make those assessments, and are—is that now in place?

Ms. MCGINTY. I will just offer a couple of comments. Our biggest

concern right now is submerged oil and oil that was immediately

entrapped in sediments fairly quickly after the incident. My staff

was sharing with me some of their own experience of digging into

some of the sediments and finding, even if those top sediments

were relatively clean, inches of oil just beneath that surface. So you

can imagine, as the year progresses and we see that tidal action

in the river, we might see a further re-suspension of some of that

oil that is just temporarily trapped. That is one issue.

Second, related but actually different, is the oil that essentially

formed hockey pucks, if you will, balls of various sizes, and probably are further down in the water column. What we do not know
29

right now is whether when the warm temperatures come back, will

those temperatures be sufficient also to release or re-suspend some

of that oil. So I guess what comes from that recommendation number one is after the immediate attention to this issue begins to

fade, we need to find a way, nonetheless, to keep the spotlight, to

keep the resources coming, and to keep the books open on this, because we have got a lot more to understand.

Ms. SCHWARTZ. Well, who is responsible for making sure that

that happens, that we don’t close the books on it?

Mr. CAMPBELL. Well, in—under OPA 90, NOAA is the lead federal trustee, and NOAA’s job now is to lead a cooperative assessment effort that involves both of our agencies to assess the damage

and to identify an appropriate restoration project. One of the difficulties of this type of spill is that some of the damage, either because it is beneath the surface or because the particular birds that

were killed were never recovered is that there are always uncertainties. And the focus has to be on identifying and developing a

significant restoration project commensurate with the damage. We

know we will not replace the actual birds that were lost or the actual fisheries that may be affected, but we do know that there is

going to have to be a significant restoration project to enhance the

habitat to make the river whole through enhancement of the resources, even though the actual resource can’t be replaced in total.

Ms. SCHWARTZ. The mayor of Valdez, Alaska wrote an interesting

piece and talked about the fact that they developed—after that

spill, they developed a Citizens’ Advisory Council that did not exist

before that played a role in keeping an eye on this and keeping an

eye on what is now a good working relationship between the government authorities and the private sector, particularly the shipping company. But I guess I am going to ask the questions and

maybe push the envelope a little bit on this, as a way of keeping

public attention on this on an ongoing basis and apparently they

continue well after the spill clean up to make sure that the public

aspect of keeping the environment and keeping the waterway

healthy and available both to commerce and recreation really

works. Would you make a comment on whether you think that

would be something we ought to encourage or even look at in some

kind of citizen advisory council that could work specifically on

maintaining the Delaware River, again for commerce, but also with

good attention to the environment?

Ms. MCGINTY. I would think that is an excellent suggestion. I

think we have some wonderful organizations that can step right up

and help. The Delaware Riverkeepers is certainly among the most

effective of those, but when you look at the variety of entities that

pitched in in this response, that gives you some of the list of those

who could make an invaluable contribution.

I want to just quickly come back to your comment, if I could. As

you are looking at natural resources damages, I would offer three

other things in addition to what the Commissioner has articulated.

First, if you are looking at the liability structures under OPA 90

and potentially looking at some reforms there, expressly making it

the case that natural resources damages are liabilities over and

above and to which the responsible party is subject in addition to
30

just, ‘‘Here is the bill for clean up for getting the oily waste out of

the river,’’ et cetera, that that would be important.

Second, to rearticulate the resources question in terms of when

the spotlight is off, we still will need to be deploying people out

there doing those damage assessments, and it is always harder

once the emergency has gone.

And third, I guess this comment goes to the difficulty actually of

assessing natural resources damages. There is a tendency always

to say put a dollar sign and be able to demonstrate exactly what

the economic damage is in order to justify a claim against a responsible party. That is hard enough when you are talking about impact to physical structure or business. It is very, very difficult

when you are trying to assess the value of intact habitat as opposed to destroyed habitat, healthy wildlife as opposed to impaired

wildlife. And this is something actually that Commissioner Campbell and I have worked together over the years. I guess I would just

urge that the Congress not require undue precision, if you will, in

how NRD damages are calculated, because some things are just

very difficult to put a dollar sign on. It does not follow the same

structure as some of our other liability and recovery structures in

other provisions of law.

Ms. SCHWARTZ. Thank you very much, and I look forward to continuing to hear from you as we move into the continued clean up

and into the next phase, I think, which, as you point out, will take

much longer. Thank you.

Mr. LOBIONDO. All right. Thank you.

One of the things that we are very interested in attempting to

determine through this whole unfortunate scenario is that the level

of communication and cooperation between all of the various agencies is it what we hoped it would be. Is there something additional

that you—either of you could suggest should have been done? And

obviously we have come up with some ideas of Committee jurisdiction that seem necessary from a legislative standpoint that we are

going to pursue. Are there any recommendations along these lines

that you can suggest need to be strengthened by strong legislation?

Ms. MCGINTY. I would have to say, Mr. Chairman, from our

point of view, the communication structures did work well, that the

NIMS system worked well. Having said to Congressman Andrews

how well we also worked locally in taking that information from

the Unified Command and making it available down the chain to,

for example, the Philadelphia Water Department. I think internally

we want to work on our own enhanced efficiency at dispatching

that information. But overall, we thought the command structure

work well efficiently and effectively to get the job done.

Mr. CAMPBELL. I would certainly concur on that assessment. I

would identify a few areas where some thought needs to be given.

First, in terms of early community meetings, we weren’t—you

know, in the exigencies of the spill, it took, I think, over a few

weeks before we had the first, sort of, community-based meeting to

get word out to the public, perhaps less of a problem in this case,

because we are at the heart of the Philadelphia media market, a

number of media outlets here, but in other contexts, and in terms

of more remote communities, I think getting the word out, getting

people understanding, I think that is one area where we might
31

have done better, again, completely agreeing with Secretary

McGinty’s comment that the system worked. Communication was

early, robust, and effective. And not just that there was communication, but that the Coast Guard consistently responded and

promptly to concerns as they were raised.

Second, I think this is a great example of the many volunteer organizations we have and the role they can play to look thoughtfully

at ways in which the resources of a volunteer group like the Delaware Riverkeeper Network can be integrated into the response effort earlier, recognizing that, as a general, the actual response to

oiling, the response to wildlife has to be done by professional, but

using their eyes and ears on the ground more effectively, I think

is another lesson we could learn.

Mr. LOBIONDO. Commissioner Campbell, I might ask you to do

a little bit of speculation here, but I have a great deal of concern

with our knowledge that 265,000 gallons were what was spilled

and there is a little bit of a question mark as to exactly how much

we have recovered, because some of it was a water mixture. We

know, and you have talked a little bit about what is on the bottom.

And Secretary, you mentioned that we are not sure what may happen when the temperature rises a little bit, but I think we are

going to have to try to think about this to some degree and bring

some varying of expertise on the issue because my big fear is that

if temperature releases some of what is on the bottom, does it migrate to our beaches? Can you comment? Your thoughts? What can

we do? Is there something from our perspective that we can focus

on to pay more attention to this?

Mr. CAMPBELL. Well, obviously this is of paramount concern for

me that we will be greeting Memorial Day and the advent of summer with additional reports of oil surfing—surfacing and potentially affecting our beaches. It is sobering to note that in the context of the Exxon Valdez oil spill, which Congresswoman Schwartz

mentioned earlier, they are, to this day, discovering new pockets of

oil that were not cleaned up. And I think one of the important elements is to recognize, in terms of the funding and the availability

of whether it is from the responsible party or the fund that, as Secretary McGinty said, this is a response effort that is going to continue not just for months, but probably for years, if you include the

natural resource damage assessment and restoration. And when

you consider the Coast Guard testimony earlier that we are already

at—over the $90 million mark, I think that gives—that should give

the Committee a sense of scale in terms of how expensive it is to

clean up oil after the fact and how the caps are really dwarfed by

the cost of the response effort. But the focus of the Committee, and

you, Mr. Chairman, have been tenacious in your oversight in ensuring that the funding and response resources continue to be

there in the ensuing months will be critical.

Mr. LOBIONDO. Well, we certainly want to keep in very close contact. The conclusion you draw tomorrow or next week about a particular course of action that we have to pursue with what we think

is still left on the bottom from participation from an outside source

or from within your own framework, we certainly want to react

very quickly to that. I share your great fear of what lies ahead with

all of that oil that is not recovered.
32

Congressman Andrews, any follow up?

Mr. ANDREWS. No, thank you.

Mr. LOBIONDO. Congresswoman, any follow up?

Ms. SCHWARTZ. No.

Mr. LOBIONDO. No? I thank you both very much. We will take

a short break to move to the third panel.

[Recess.]

Mr. LOBIONDO. Let us move to the third panel. And before we

do that, we have—some groups that asked to participate today that

we weren’t able to accommodate through the panel, they are certainly a very important part of the partnership that we are putting

together. And the Delaware Riverkeeper and also the Partnership

for the Delaware Estuary has submitted testimony, which I would

like to ask unanimous consent to be submitted into the record.

Without objection, I will so order that.

And now we move to the third panel. I am very pleased that we

have Mr. Dennis Rochford, who is President of the Maritime Exchange for the Delaware River and Bay Authority, and Mr. Eric P.

Stiles, who is the Vice President for Conservation and Stewardship

for the New Jersey Audubon Society. Thank you both for being

here, and Dennis, if you would start off, please.

TESTIMONY OF DENNIS ROCHFORD, PRESIDENT, MARITIME

EXCHANGE FOR THE DELAWARE RIVER AND BAY; AND ERIC

P. STILES, VICE PRESIDENT FOR CONSERVATION AND STEWARDSHIP, NEW JERSEY AUDUBON SOCIETY

Mr. ROCHFORD. Thank you. Thank you, Mr. Chairman and Members of the Committee, and for your leadership on this and so many

other issues that impact the ports along the Delaware River.

The Maritime Exchange is a trade association representing almost 300 port businesses in Southeastern Pennsylvania, South Jersey, and Delaware. We basically function in two ways: we act as

the Chamber of Commerce of the Delaware River, we are an advocate primarily with federal agencies in Washington, DC representing the interests of a port community from the Coast Guard to the

Corps of Engineers, Customs, and other agencies. We have an operating responsibility in that we operate Maritime On-Line, which is

the electronic communications hub of the Delaware River capturing

all—an Internet-based system that captures all of the vessel, cargo,

and crew list information for the 2,600 vessels that come up the

Delaware River.

Let me, first of all, submit—I am not going to read it, my testimony for the record, copies of which were sent to your Committee

last week.

Let me just make a couple or three points, and having had the

opportunity to listen to a lot of the testimony here earlier, not be

repetitive and try to hit on what the impact is with respect to the

maritime industry, port businesses, the men and women that bring

the ships up the river, the longshore workers and everybody else

whose income depends on this river: $4 billion a year in terms of

economic revenues to the region, 75,000 employed people, $1.5 billion in wages and salaries and almost $150 million in state and

local taxes. So this is significant to the regional economy.
33

We indicate that the Exchange’s role was really one of a

facilitator and communicating, if you will, between the various federal agencies and port agencies that were involved in the initial

phases of the containment and clean up. We worked closely with

the Coast Guard, the Corps of Engineers, the Pilots Association,

the Mariners Advisory Committee. And our goal, if we had one

goal, was, A, to facilitate what they were doing, but secondly to

make sure that the port operators and port customers had accurate

information. Somebody mentioned a few minutes ago the world we

live in today with CNN news and the media, as we have it today,

and this oil spill was being listened to and read about throughout

the world. And our concern was that the port customers, the people

that bring their cargoes through our port, had accurate information

with respect to the status of the spill, the status of the clean up,

and as we moved very quickly in the initial stages, Sunday through

Monday or Tuesday, as the port began to open up and as vessels

began to move in and move out, that is the information that we

needed to get to our port customers.

Let me make a general comment with respect to the economic

impact. Significant. I don’t think anybody has got a number today

that can tell you what the cost is of this spill. I think you can say

it is in the tens of millions of dollars. And let me cite just a couple

of specific examples I have with respect to either real or potential

costs. We are an niche port.

I am going to reference three specific cargo commodities. One is

oil, crude oil. The six oil refineries that operate on this river operate with very strict crude oil inventory requirements. And what

that means is if there was, in fact, an extended closure of this port

over a period of time, it would directly impact the second largest

refining complex, the United States of America, and in terms of

home heating oil and gasoline and jet fuel and all of the other products that they produce to support the economy in the mid-Atlantic

and New England regions and beyond would be put in jeopardy.

One of the reasons that we are happy in terms of the quick response to get the port opened up can be measured by that impact.

Secondly, the Delaware River, in both Philadelphia, Camden, and

Wilmington, we bring in over 65 percent of all of the South and

Central American fruit that comes into the United States of America. It is a perishable commodity. We are the largest banana port

in the United States of America. Del Monte, as an example, over

in Camden, had they been delayed another day, it would have cost

them close to $7 million in terms of the cost of destroying the

cargo, the bananas and the Chilean fruit. That didn’t happen, but

they did experience a $30,000 cost for standby labor. One of the

challenges when a port is closed down or the scheduled vessel’s arrival is disrupted, the terminal operators, the people that have the

responsibility to offload those ships, have to go and get labor, and

if that labor has to wait and they have to bring in another crew,

well, there is a direct cost there.

The other commodity I would mention briefly is steel. Very important on this river. We used to handle 4 million tons a year, almost 400 ships. The economy went soft. The 201 tariffs went in

place, but over the last 18 months, the line is going up, the tonnage

is going up, the number of ships is going up. That is good for the
34

port. We only had two or three ships that were diverted from this

port to another port, and one of those ships was a steel ship destined for Penn Terminals in Chester, and the cost to Penn Terminals, as well as the labor cost, was close to $50,000.

Let me give you one other statistic. The cost to operate a ship

ranges anywhere from $30,000 to $40,000 a day for general cargo,

steel ships all of the way up to $250,000 a day for the modern

VLCC and tankers. If you are to take our average weekend, which

it was, with 20 ships in port, on a daily basis, we are talking about

$650,000 to $1.3 million in costs because of delays that occurred or

the potential of delays, if they were to occur.

Let me—if I might, I am a minute over my limit here, let me

make two points in terms of lessons learned. One, it is on industry.

I—and I want to compliment the Coast Guard and the Corps and

everybody, the Pilots Association, Mariners Advisory Committee as

they came together in the Unified Command to make the decisions,

A, to contain the spill, B, to get the clean-up operation going, and

C, to open this port up to—for commercial use. But the bottom line

is that we—I think that we were effective in getting information

out, but we, as a port community, and I know there have been discussions here amongst other witnesses with respect to, you know,

coordinating our efforts, we need to continue to improve communications. In this marketplace, in this global marketplace today, we

can’t have bad information going out around the world with respect

to what is going on in the Delaware River, and we, as industry,

which we demonstrated through this spill, working with government, need to enhance on that effort.

And I will conclude with something that is relevant, not particularly specific to this incident, but relevant in listening to the testimony. I listened to it earlier. The bottom line is, it is a federal responsibility to keep federal channels and anchorages over. And in

my view, this Administration and previous Administrations have

shortchanged that commitment. And I want to cite the numbers for

fiscal year 2005. The Administration recommended $4.1 billion for

civil works in the Corps of Engineers, and the Colonel addressed

some of those expenditures. The Congress, always a little bit more

sympathetic to our efforts here, appropriated $4.7 billion. The

American Association of Port Authorities indicate, for fiscal year

2005, to meet just the bare minimum. Civil works requirements for

the Corps of Engineers is $5.5 billion.

I would say the same with NOAA. We have been fighting hard

here for the last couple of years. We have a port system in place,

Physical Ocean Real Time System, which provides real time tidal

and atmospheric information that is available to the captains and

the pilots as they bring the ships up the river. We have been fighting for 3 years. We got $750,000 out of the Delaware River Port

Authority to put that system in place. The operating cost is about

$250,000 a year. There are 13 systems like that around the United

States, and we are trying to get $3 million appropriated in the

NOAA budget to maintain systems. And again, like the Corps of

Engineers and like the Coast Guard, this NOAA system is all part

of the federal responsibility to keep those channels open. And everybody bringing ships up the river is paying taxes into the Federal
35

Treasury. And if we can take care of the highways and railroads

and airlines, we need to take care of our port system.

I hate to use this situation as an example to make that statement, but it is so very important to this port and to the ports

around the United States.

Thank you, Mr. Chairman.

Mr. LOBIONDO. Thank you, Dennis.

I might note that I have had the pleasure of working with Dennis for a number of years now, basically on port security and maritime anti-terrorist measures, and I thank you for all of the time

and energy you have put in to helping us understand the impact

of the maritime industry.

Eric, thank you very much for joining us today. Please proceed

with your testimony.

Mr. STILES. Thank you, Mr. Chairman.

My name is Eric Stiles. I am testifying today on behalf of New

Jersey Audubon Society and our 22,000 members in New Jersey.

First of all, I would like to thank the Chairman for inviting me to

speak today.

I worked as an endangered species biologist with the New Jersey

DEP for a decade working to recover the wildlife species on the

lower Delaware River and Delaware Bay for nearly a decade, so I

am intimately aware of what is at stake here.

My immediate visceral response, looking at the evening news

was as if I had lost a good friend, knowing how much is at stake

to the quality of life and public safety in this region and what can

be disrupted through a single tragic event.

New Jersey Audubon Society was impacted at two levels. First

of all, we have been supporting wildlife conservation since 1897.

And second, we actually own two islands in the Delaware River,

just down river from the spill, Chester and Mahn’s Islands, so we

are an affected landowner and can offer insights through those two

different vantage points.

First of all, they impacted, I guess, our Nation’s symbol: bald eagles. Again, we had one remaining in New Jersey from 1972 to

1984. Hundreds of thousands of hours of volunteer time, primarily

from citizens, has jump-started the population in New Jersey.

There were several pairs within the active zone, including one at

Mahn’s Island that nests on top of a 110-foot tall Eastern Cottonwood tree. It is absolutely amazing. It looks like a Volkswagen

parked in a deciduous tree.

Now the tale of Mahn’s Island can be told time and time again.

The pair perennially fails because of PCB contaminants. Again, we

are looking at an industrialized area that has contamination

issues. Each year, the pair failed, they would relocate in the state’s

endangered species program, and Elmer Klegg, the volunteer,

would work with the landowners tens of thousands of hours to minimize disturbance. Now in 1996, a corporation, DuPont, approached

New Jersey Audubon Society and the state, and the partnership

went as follows: if you accept this land as a wildlife preserve,

would the state step up to the plate and every year bring in an orphaned eaglet for the pair to raise. Since that time, that pair has

successfully fledged young. The New Jersey Audubon Society has

accepted ownership and responsibility for the island. The state, and
36

their incredible biologists, have stepped up to the plate with the orphaned eaglet, and Elmer Klegg is donating tens of thousands of

hours as, still, the pair’s guardian ambassador.

This time spent, these volunteers, this love and quality of life,

can be told time and time again from the Delaware River and lower

Delaware Bay. Congressman Andrews and Congressman LoBiondo

have been real champions in forwarding the protection of these. We

know what is at stake. A single tragic event can disrupt that.

Now we know that the Delaware River and estuary is a multiuse complex, from commerce, it is very important for commerce, to

recreation. In 2001, 1.64 million residents in New Jersey and

688,000 residents watched wildlife, spending $1.24 billion. People

that hunt and fish spent another $1 billion. It is a fundamental

quality of life for why people live there. I have lived in South Jersey for 30 years, recently exported to North Jersey, but South Jersey will always be my home. I love the area because of the wildlife.

It is also very important for public drinking water. Only one industry, that is the transport of oil and other hazardous materials, has

the ability to compromise all other interests and public safety on

that complex.

And I would say that the famous American historian, Arthur

Slessinger, was right: ‘‘History has an eerie way of repeating itself.’’

If I were a betting man, my money would be that there is going

to be another oil spill. But what can we do to take upon the successes of this response, identify areas for reform, and move forward? And I think that is the question before us today.

Now first of all, I need to thank the New Jersey delegates, specifically Congressman LoBiondo, Andrews, Senators Korzon and

Lattenburg for their leadership effort. We fed information from our

members directly to the Congressional delegates about areas that

were not being protected, and it was the Congressional participation in the process that I think really stepped up the reflexive

booming, if you will, to which Commissioner Campbell spoke.

Second, New Jersey DEP and U.S. Fish and Wildlife Service staff

biologists did an exemplary job working with non-profits. In fact,

we had close to 100 of our members participating as expert avian

monitors to assess the damage. And really, it is counting heads.

Unfortunately, many of these birds that were oiled were never captured and go on to die. But that is part of the natural resource

damage assessment.

Third, Tri-State Bird Research and Rescue, again, they are not

here today, but they are an international expert in cleaning up and

responding to oil spills. They deserve great praise.

And last, the U.S. Coast Guard and NOAA, again, I worked on

a boat for a day from Mantua Creek to Commodore Barry Bridge.

The men and women of the Coast Guard Service deserve great accolades for the performance they underwent I think under some

very difficult times and tasks. My observation is they don’t have

the resources they need to do their jobs. So any reform that I posit

is not based upon the individual performance of an individual, but

rather I think the failure of the system.

Now the four areas that I would posit for reform. First of all, reduce the likelihood of further spills. I think this is going to be repeating some of the wisdom we heard previously. First of all, the
37

shipping channel, we heard there are additional technologies that

can and should be used, whether it is a magnetometer, wire survey

drag, side-scanning sonar, and I think Congressman Andrews, in

his question, helped me understand that technology better, should

be in play here, and they require the appropriate appropriations to

fund that. Again, a vision with no funding is a hallucination, so if

we have plans here but not the means to implement those plans,

I can not blame the agencies responsible with that charge.

Second, the minimum depth clearance should be examined. I

think that has been raised time and again. Allegedly, the ATHOS

hole rupture occurred at a low tide. Again, if you look at the differentiation between the draft of these craft that are under significant weight loads and the bottom of the channel itself, you want

to increase that, so perhaps only allowing them to operate at a mid

to high tide, especially the single-hull design, would be advantageous.

Let us look to get rid of the single-hull craft before 2015. That

is a significant risk factor in what is at stake with this. I think responsible parties, that is responsible companies using double-hull

craft, should be rewarded. If you are a company that is investing

in a double-hull, you should have an incentive to bring that to this

port. Conversely, if you have a single-hull, I think there should be

an additional port fee. If you are coming in, and you are posing this

additional risk hazard, this port fee should go into a dedicated fee

that goes to both increase our preparedness for oil spill as well as

to fund the natural resource damage from it.

Second, and I just drew this number out of a hat, but I know that the $45 million liability threshold is grossly insufficient. As we

have heard today, I think it was $92 million. The company can go

back to OPA? The risk and the damages are being assumed by a

dwindling pool of money that is coming from taxpayers. I think

$150 million or $200 million might be more in the ballpark of that

liability ceiling that needs to be set.

Third, we need to improve the efficacy of the oil response effort.

Again, I can not fault NOAA and the Coast Guard, but they did

not have the data. I know of three bald eagle locations that Congressman LoBiondo, in particular, was helpful in getting that to

the Coast Guard. Our attorneys did participate in the Unified Command center. Mahn’s Island bald eagle nest, which has been there

since ’96, was not on the NOAA and Coast Guard inventory. The

important information about Mannington Meadows was not on the

NOAA and Coast Guard inventory. I think that this Committee

needs to look at providing sufficient appropriations to allow the

data from the federal and state wildlife and fish agencies to be provided to NOAA and the Coast Guard to be updated annually.

Lastly—I am sorry. Two additional responses. Again, reflexive

booming, that Commissioner Campbell talked about, the booms

were following the leading edge of the oil slick. This was before the

massive wind event. The massive wind event, I think, started November 30 and then went into December 1. Mannington Meadows

is one of the largest staging grounds for waterfowl on the eastern

flyway. There was no boom in place. Getting those anchor points

also in place ahead of the spill, I think, is critical, as we heard from

Commissioner Campbell, whether they are absent or in disrepair.
38

Getting them in place and maintained over a regular cycle is critical.

Lastly, when I was looking at the Oil Pollution Act of 1990, there

is a provision called Title V, the Prince William Provision. Under

that provision, the visionary legislation established a body of federal, state, academic, and conservation agencies and local citizens

with backgrounds in commerce, fisheries, wildlife, public health

and safety, and education. That body worked and would work in

this case to better protect natural resources and public health and

safety on the Delaware Bay while still accommodating a functioning port. Most importantly, as someone that worked in the government both at the National Park Service and DEP for 10 years, this

body would cut through the interagency red tape by establishing a

council with a clear mandate and goal. So I think that what Congresswoman Schwartz referred to is there a need to create this, a

citizens council, I think not only is there a gross need here, but

there is some exciting precedent under existing legislation, the Oil

Pollution Act of 1990.

We look forward to working with this body. I think one additional opportunity for this body is to work with federal appropriators to look at land and water conservation funds. I know that

there is almost no dollars now for acquisition through the federal

side, but to protect and enhance these critical fish and wildlife locations on all three sides of the bay, including Pennsylvania.

Thank you for your time.

Mr. LOBIONDO. Thank you both.

Allison, do you want to start off?

Ms. SCHWARTZ. Sure. Thank you. I just have two questions, but

I have one for Mr. Stiles, and I thank you for your, in some ways,

summary of the things that we ought to be looking at and moving

forward on. Do you have an assessment of the effect broken down

by state, how much an effect we have seen from the environmental

point of view in Pennsylvania?

Mr. STILES. That is, I think, a very good question. I think it is

an interesting question posed to an organization that is focused on

a state. When I look at the Delaware Bay and estuary, to me, it

is—I could care less about the political boundaries. It is very important, I think, for the Congressional delegates to know the impact to their constituents. When you look at the lower Delaware

River and Delaware Bay, it is one complex. To answer your question, I haven’t seen any assessment broken down by political

boundaries. I think it is a fair question that could be posed to your

state agencies.

But again, when you look at the submerged oil, it is what we

don’t know that is really scary. We have the largest concentration

of shorebirds in all of North America. Again, Commissioner Campbell is concerned with May 31. I am really scared come late April,

because that is when the shorebirds start coming up. If you talk

about the reintegration of this oil, the spawning horseshoe crabs.

It is the largest, globally, population that we have. It is critical for

fisheries. So I applaud the federal participation, because this is a

federally shared resource. We are talking about commerce. We are

talking about migratory species. So I think that the Congressional
39

delegates are to be commended for working so closely on a comprehensive solution.

Ms. SCHWARTZ. Maybe it is a good thing that we haven’t actually

broken it down by state so that we have accepted it as a shared

responsibility and recognize the fact that the Delaware River does

affect all three states pretty dramatically, and working together

maybe is the way to go. I shouldn’t ask for it being broken down.

I was curious, though, that no one has broken it down that way,

either in terms of impact or cost, but thank you for your comments.

My only—my other question, Mr. Rochford is there an effect

going forward in whether any of the shipping companies might say

I might not come to the port here because of potential for a spill,

or is this seen as a one-time impact and there isn’t necessarily a

negative effect going forward? I was just curious about whether you

have to deal with, sort of, damage control going forward in a—

maybe a more attitudinal—or if we don’t take certain steps, will

they say, well, it is a risk I don’t want to put my vessel in, even

if I don’t carry oil or particularly if I do, are they not doing enough

to make sure that I won’t end up spilling the oil? Obviously, they

don’t want to—

Mr. ROCHFORD. Right.

Ms. SCHWARTZ. So are you getting questions from some of the oil

shipping companies saying what are you doing now going forward,

or any of the other shipping companies that bring in fruit, for example? Are they saying wait a minute, at $30,000, $40,000, or

$50,000 a day, that is a big hit for me. I am not willing to do it

in the future.

Mr. ROCHFORD. Well, a couple comments or observations. Number one, I think those ship owners, charters, and very importantly,

cargo owners, they are the ones that really drive this equation, I

think looked at how this situation was handled from Sunday

through Monday or Tuesday. And the ability to begin to start to

move vessels as early as Sunday indicated that, you know, we were

open for business. And moving forward for that—from that point

of view, if you get to Tuesday, Wednesday, or Thursday of that

week, when the Captain opened the port up 24/7, there was a quick

ramp up. And to my earlier comments in why the Coast Guard and

the Pilots Association and the Maritime Exchange put out two, or

possibly three, statements, was to lay those concerns. I think that

is a very good question going forward, and let me, as an example—

and I don’t think we are there yet, but let me, as an example, give

you a scenario where I think there is long-term impact, and I think

they have suffered from it over the last year and a half or 2 years

and continue to suffer, and that is when the West Coast struck and

shut down all of the ports in California and Oregon and Washington. We see, today, because of that, a diversion of—and not just because of that reason, but that is something the people talk about

in the industry. We see a diversion of those cargoes, including container ships, coming to Gulf, South Atlantic, and some North Atlantic ports.So what we need to avoid, and I think how this incident was handled, I would also add the fact that there is Congressional interest in what can we do to make sure it doesn’t happen

again demonstrates that we are taking the kind of prudent steps
40

that a cargo owner or a ship owner or operator would want us to

take. But we can never let our guard down on that.

Ms. SCHWARTZ. Well, I thank you. Those were my only questions.

Thank you for your testimony.

Mr. ROCHFORD. Thank—you are welcome.

Mr. LOBIONDO. Congressman Andrews?

Mr. ANDREWS. Thank you. And I would like to thank both witnesses. It is very encouraging to hear the level of cooperation between the business community, port community, and environmental community on this issue, and it is heartening.

Dennis, if I may, I wanted to ask you a question. You estimate the daily cost to operate a ship being $25,000 to $40,000 in the low

end for a general cargo ship daily up to $250,000 a day for the

post-Panamex class ships. What is a fair estimate of the cost of operating one of the tankers, like the one that created this problem?

Mr. ROCHFORD. Well, it is not in the $250,000 range. They are

the larger VLCCs, the ones that are coming on line now. I would

just be guessing, but I am going to indicate it is probably somewhere in the $50,000 to $100,000 range, but I can get you that answer. I don’t have that information—

Mr. ANDREWS. Yeah, I mean—

Mr. ROCHFORD. —at my finger—

Mr. ANDREWS. —I am just really interested in a range.

Mr. ROCHFORD. Yeah.

Mr. ANDREWS. I am interested in Eric’s suggestion about pursuing the idea of the minimum clearance. I have heard some very experienced voices in the community talk about this as well. If we

adopted a policy that would not let these oil ships up the river

until the tide had reached a certain point above low tide, what kind

of cost impact does that have on the operation of that ship? Is it—

is this $75,000 or so broken into 24 equal parts, so if it waits three

more hours, it adds 1/8 to the cost? Do you following my reasoning?

Does it work that way?

Mr. ROCHFORD. Well, it would work a couple of ways. Number

one is whatever the operating cost is, I am sure you can take it and

divide by 24.

Mr. ANDREWS. Yeah.

Mr. ROCHFORD. But in the supply chain or, if you will, the transportation chain coming up the Delaware River—

Mr. ANDREWS. There are costs, I am sure.

Mr. ROCHFORD. There are any number of scheduling issues in

consideration as well as the cost of the facility in terms of the inventory that they require. Let me say has been always the discussion about how much water is under the—I think the other point

worth noting here is the level of sophistication that we have in

place on the Delaware River to move vessels up the river, whether

it is a fruit ship or an oil tanker. The Pilots Association has invested millions upon millions of dollars in the last 5 years and before that in enhanced radar down at the Bay, the Delaware Bay.

They have invested, if not millions, hundreds of thousands of dollars in GPS capabilities, so every pilot that gets on a ship in this

river knows exactly where they are in the channel and they also

know who else is around them. Every four years, every licensed—

first-class licensed pilot is—goes off for training and retraining. So
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in—from our vantage point, from industry’s vantage point, you

know, if you are running a port, deeper water is always better.

That is why I support the 45-foot channel. But—

Mr. ANDREWS. Oh, I didn’t know you supported it.

Mr. ROCHFORD. I had to get it in. You know I had to get it in.

But I believe we have—and take that a step back to—you could

say, well, Rochford, that is your judgment about the pilots. Well,

okay, it is. But I will tell you whose other judgment it is. It is the

people that are bringing those ships up the Delaware River, the

captains, the owners, and the charters. And I would conclude by

getting back to the other point I made, and that is there needs to

be a clear acceptance of the fact that keeping the water at 40 feet

is a federal responsibility in this case, and I think there needs to

be a level of confidence that industry, from the tug operators to the

pilots to the ship masters and everybody else in the Coast Guard

that has responsibility to bring that vessel up or doing the right

job.

And very quickly, the other thing that we do have in place is the

port system. And I believe the funding for this year to keep that

system up and operational came through Pennsylvania. But we

still believe that is a federal responsibility.

Mr. ANDREWS. Yeah. I want to say, for the record, I agree with

you. The pilots do an outstanding job. Without them, the river

doesn’t work. They are indispensable. I trust their judgment on

these things, and I think they do a great job. I think one of the

stories here is how many problems are avoided because of their

skill in the work that they do.

Mr. ROCHFORD. I agree with that.

Mr. ANDREWS. I just want to explore Eric’s point a bit that if it costs $70,000 a day to run one of these, and if there is a fair relationship of, you know, 1/24 for each hour, and if you wait 3 or 4

hours for the tide to get a bit higher, you know, you are talking

about 12 or 15 percent of the cost, which is $14,000, $15,000,

$16,000. Now I understand there is—there are costs on shore.

There are scheduling issues at the refineries, there are trucking

issues, and so forth, that that doesn’t capture the full cost, but I

venture to say there isn’t anybody here who wouldn’t be in favor

of having expended another $20,000 or $30,000 on November the

16th to wait the few hours, if that would have avoided this problem. Maybe one of the ideas that we could pick up on what Eric

talked about was that if ships have very sophisticated technology

that would identify a hazard, maybe they don’t have to go by these

minimum standards, but if they don’t, they should, particularly

when it comes to oil. I am just—I am interested in exploring that

concept further.

Thank you, Mr. Chairman.

Mr. LOBIONDO. Okay. Thank you, Rob.

Dennis, I understood correctly that the shipping industry was involved with representation to manage the vessel traffic when all of

this was taking place?

Mr. ROCHFORD. In the what? Excuse me?

Mr. LOBIONDO. In managing the vessel traffic for the port, did

the Coast Guard include—

Mr. ROCHFORD. The vessel traffic system?
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Mr. LOBIONDO. Did the Coast Guard include the shipping industry?

Mr. ROCHFORD. Oh, absolutely.

Mr. LOBIONDO. Yes.

Mr. ROCHFORD. Oh, absolutely.

Mr. LOBIONDO. Okay.

Mr. ROCHFORD. As the Captain mentioned, Captain Linton was

part of the Unified Command—

Mr. LOBIONDO. Okay.

Mr. ROCHFORD. —on day one, and we were engaged and our time

was exchanged through the weekend in getting information out. I

didn’t spend a lot of time over at the Unified Command, but any

number of industry representatives were there.

Mr. LOBIONDO. I want to take just a moment, although he wasn’t

on the panel. His name has been mentioned a couple of times. Captain Mike Linton is here today. Captain, we thank you for your expertise and your help in so many different areas that we work with

that are of critical importance to the maritime industry.

Eric, I wanted to pursue for just a minute a concern that

Mannington Meadows and the bald eagle’s nest were not on a critical list. We are going to have to explore how that information is

updated, but I assume that it is safe to assume that we would expect that you would be willing to help out if there is a role that

you can play in verifying the information or helping to update what

we already have?

Mr. STILES. Yes, Chairman.

Mr. LOBIONDO. Okay.

Mr. STILES. I think, again, when I worked for the DEP, we updated our base annually, and I did exchange that with the U.S.

Fish and Wildlife Service. It would seem that those two agencies—

that information is not being transported or communicated at that

same time interval with NOAA and with the U.S. Coast Guard.

Any help that we can have—offer in supporting that and if a general, whether a council is formed regarding the Delaware Bay and

taking a look at some of these issues, broader issues, we would love

to help support.

Mr. LOBIONDO. Sure. I just didn’t want to make any false assumptions there.

Well, I would like, at the conclusion, to thank my colleagues for

joining me today. I would like to thank Seaport Museum for

hosting us today and all of the panel members. I think that while

we have had some answers that were given, we had, maybe, many

more questions that were raised, and I will assure you that we will

be following up with specific suggestions that we know we can

move on legislatively sort of in a quick manner. And we will be

looking, although we haven’t set the dates, we were anticipating

that we would have to have additional hearings, and we certainly

will be following up on that. So once again, I thank everyone, and

the hearing is adjourned at 12:40.

[Whereupon, at 12:40 p.m., the Subcommittee was adjourned.]
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