BP Challenge To Oil Spill Size Could Affect Fine

WASHINGTON — BP is mounting a new challenge to the U.S. government's estimates of how much oil flowed from the runaway well deep below the Gulf of Mexico, an argument that could reduce by billions of dollars the federal pollution fines it faces for the largest offshore oil spill in history.

BP's lawyers are arguing that the government overstated the spill by 20 to 50 percent, staffers working for the presidential oil spill commission said Friday. In a 10-page document obtained by The Associated Press, BP says the government's spill estimate of 206 million gallons is "overstated by a significant amount" and the company said any consensus around that number is premature and inaccurate.

The company submitted the document to the commission, the Justice Department and the National Oceanic and Atmospheric Administration.

"They rely on incomplete or inaccurate information, rest in large part on assumptions that have not been validated, and are subject to far greater uncertainties than have been acknowledged," BP wrote. "BP fully intends to present its own estimate as soon as the information is available to get the science right."

In a statement Friday, the company said the government's estimates failed to account for equipment that could obstruct the flow of oil and gas, such as the blowout preventer, making its numbers "highly unreliable."

BP's request could save it as much as $10.5 billion or as little as $1.1 billion, depending on factors such as whether the government concludes that BP acted negligently. For context, the U.S. Environmental Protection Agency's entire federal budget for 2010 was $10.3 billion. President Barack Obama has said he wants Congress to set aside some of the money BP pays for fines for the Gulf's coastal restoration. Louisiana lawmakers are pushing legislation that would require at least 80 percent of the civil and criminal penalties charged to BP, and possibly other companies, to be returned to the Gulf Coast.

William K. Reilly, co-chairman of the presidential commission, expressed amazement at BP's case Friday. Reilly headed the Environmental Protection Agency under President George H.W. Bush.

"They are going to argue that it is 50 percent less" than the government's total? Reilly asked. "Wow."

Under the Clean Water Act, the oil giant – which owned and operated the well – faces fines of up to $1,100 for each barrel of oil spilled. If BP were found to have committed gross negligence or willful misconduct, the fine could be up to $4,300 per barrel.

That means that based on the government's estimate of 206 million gallons, BP could face civil fines alone of between $5.4 billion and $21.1 billion.

"They are going to argue it was less," said Priya Aiyar, the commission's deputy chief counsel. "BP has not offered its own numbers yet, but BP has told us that it thinks the government's numbers are too high and thinks the actual flow rate can be actually 20 to 50 percent lower."

Rep. Edward J. Markey, D-Mass., a member of the House energy panel that is investigating the spill, said in a statement Friday to the AP that BP has done whatever it could to avoid revealing the true flow rate of the spill.

"With billions of dollars at stake, it is no surprise that they are now litigating the very numbers which they sought to impede," Markey said. "The government engaged independent scientists and multiple techniques to arrive at their estimate. Additional independent peer-reviewed studies have corroborated their estimate. BP has a high bar to meet to overturn this estimate."

BP's argument could be bolstered by the federal government's missteps in coming up with a final estimate for the spill's volume. The Obama administration has offered nearly 10 estimates of how much oil flowed from the BP well, coming up with a refined conclusion late last month of 206 million gallons, which is likely its last.

Internal documents released late Friday under the Freedom of Information Act show that the White House was intimately involved in deciding how scientific information was portrayed to the public, particularly when it came to the August 4 release of a document that showed where the spilled oil had gone. The five-page report, which was touted by Carol Browner, the president's energy adviser, on morning talk shows and at White House press briefing showed that half the oil was gone – either from evaporation, burning, skimming or recovery at the well head.

The 3,500 pages of documents reveal that the administration wanted the oil budget to show its efforts to respond to the disaster were working, despite objections from top EPA officials, including Administrator Lisa Jackson, over how some of the data was presented.

An earlier version of the press release issued with the paper said that 33 percent of the oil released was captured or mitigated by recovery efforts.

A final version, changed hours before its release, said "the vast majority" of the spilled oil was addressed by recovery efforts or had naturally dispersed or evaporated.

That morning, Browner appeared on national television saying that an initial assessment by federal scientists showed "more than three-quarters of the oil is gone."

In an e-mail sent later that morning addressed to Browner's assistant, Heather Zichal, NOAA chief Jane Lubchenco finds fault with the White House's interpretation of the report's numbers and attribution of the report solely to NOAA. The report was drafted by several agencies.

"I'm concerned to hear the oil budget report is being portrayed as saying that 75 percent of the oil is gone and that this is a NOAA report," Lubchenco writes. "Please help make sure that both errors are corrected." The White House acknowledged Browner had misspoke.

Lubchenco explains it was only accurate to say half the oil was gone.

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Associated Press writers Seth Borenstein and Matthew Daly in Washington and Harry R. Weber in New Orleans contributed to this report.

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Online:

National Oil Spill Commission: http://www.oilspillcommission.gov

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Tiger Extinction: Tigers Could Be Extinct In 12 Years If Unprotected

ST. PETERSBURG, Russia — Wild tigers could become extinct in 12 years if countries where they still roam fail to take quick action to protect their habitats and step up the fight against poaching, global wildlife experts told a "tiger summit" Sunday.

The World Wildlife Fund and other experts say only about 3,200 tigers remain in the wild, a dramatic plunge from an estimated 100,000 a century ago.

James Leape, director general of the World Wildlife Fund, told the meeting in St. Petersburg that if the proper protective measures aren't taken, tigers may disappear by 2022, the next Chinese calendar year of the tiger.

Their habitat is being destroyed by forest cutting and construction, and they are a valuable trophy for poachers who want their skins and body parts prized in Chinese traditional medicine.

The summit approved a wide-ranging program with the goal of doubling the world's tiger population in the wild by 2022 backed by governments of the 13 countries that still have tiger populations: Bangladesh, Bhutan, Cambodia, China, India, Indonesia, Laos, Malaysia, Myanmar, Nepal, Thailand, Vietnam and Russia.

The Global Tiger Recovery Program estimates the countries will need about $350 million in outside funding in the first five years of the 12-year plan. The summit will be seeking donor commitments to help governments finance conservation measures.

"For most people tigers are one of the wonders of the world," Leape told The Associated Press. "In the end, the tigers are the inspiration and the flagship for much broader efforts to conserve forests and grasslands."

The program aims to protect tiger habitats, eradicate poaching, smuggling, and illegal trade of tigers and their parts, and also create incentives for local communities to engage them in helping protect the big cats.

The summit, which runs through Wednesday, is hosted by Russian Prime Minister Vladimir Putin, who has used encounters with tigers and other wild animals to bolster his image. It's driven by the Global Tiger Initiative which was launched two years ago by World Bank President Robert Zoellick.

Leape said that along with a stronger action against poaching, it's necessary to set up specialized reserves for tigers and restore and conserve forests outside them to let tigers expand.

"And you have to find a way to make it work for the local communities so that they would be partners in tigers conservation and benefit from them," Leape said.

"To save tigers you need to save the forests, grasslands and lots of other species," he added. "But at the same time you are also conserving the foundations of the societies who live there. Their economy depends very much on the food, water and materials they get from those forests."

About 30 percent of the program's cost would go toward suppressing the poaching of tigers and of the animals they prey on.

Russia's Natural Resources Minister Yuri Trutnev said that Russia and China will create a protected area for tigers alongside their border and pool resources to combat poaching.

Leape said that for some of the nations involved outside financing would be essential to fulfill the goals.

"We need to see signficant commitment by the multilateral and bilateral indsitutions like the Global Environment Facility and the World Bank plus individual governments like the U.S. and Germany," Leape told the AP.

For advocates, saving tigers has implications far beyond the emotional appeal of preserving a graceful and majestic animal.

"Wild tigers are not only a symbol of all that is splendid, mystical and powerful about nature," the Global Tiger Initiative said in a statement. "The loss of tigers and degradation of their ecosystems would inevitably result in a historic, cultural, spiritual, and environmental catastrophe for the tiger range countries."

Three of the nine tiger subspecies – the Bali, Javan, and Caspian – already have become extinct in the past 70 years.

Much has been done recently to try to save tigers, but conservation groups say their numbers and habitats have continued to fall, by 40 percent in the past decade alone.

In part, that decline is because conservation efforts have been increasingly diverse and often aimed at improving habitats outside protected areas where tigers can breed, according to a study published in September in the Popular Library of Science Biology journal.

Putin has done much to draw attention to tigers' plight. During a visit to a wildlife preserve in 2008, he shot a female tiger with a tranquilizer gun and helped place a transmitter around her neck as part of a program to track the rare cats.

Later in the year, Putin was given a 2-month-old female Siberian tiger for his birthday. State television showed him at his home gently petting the cub, which was curled up in a wicker basket with a tiger-print cushion. The tiger now lives in a zoo in southern Russia.

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Health Care Law Change To Flexible Spending Accounts Could Be A 'Huge Hassle'

WASHINGTON — A headache awaits people who use those tax-free health spending accounts to pay for over-the-counter allergy relievers, heartburn blockers and other drugstore remedies. Starting next year, you'll need a prescription for the drugs to qualify.

The change in so-called Flexible Spending Accounts is part of the new health care law, and doctors are bracing for patient confusion and annoyance as they decide how to handle prescription requests for products that people normally use on their own.

"A huge hassle," predicts Dr. Roland Goertz, president of the American Academy of Family Physicians.

Flexible spending accounts, or FSAs, are pretax dollars that workers can set aside through their employers to pay out-of-pocket health care costs. That includes insurance copays and deductibles, treatments that an insurance plan may not cover, eyeglasses, dental work and, yes, nonprescription medications.

But the new health care law says over-the-counter drugs qualify for reimbursement through FSAs starting Jan. 1 only if the patient has a doctor's prescription. The only exception is for insulin bought without a prescription. (The new rule applies to similar Health Savings Accounts, too.)

Another change comes in 2013, when the new law will set a $2,500 cap on how much can be set aside in an FSA. Many employers currently allow up to $5,000 to be put into the accounts – reflecting that they tend to be used for pricier expenses than OTC drugs. Today's average set-aside is about $1,500, says Rose Stanley of WorldatWork, a human resources association.

For now, what do savvy patients need to know in planning for over-the-counter purchases in next year's FSA?

_The estimated 35 million FSA users must spend all their set-aside money each year or lose it. People tend to use leftover dollars by stocking up on aspirin and other drugstore staples at year's end, and the prescription requirement may put a crimp in that spree next fall.

_According to the Internal Revenue Service, the prescription requirement is only for OTC medications, not other non-drug health supplies such as contact lens solutions, bandages, crutches and blood-sugar test kits. These will merely require a receipt for reimbursement, just like today.

_Next year the health care law also eliminates preventive service copays, such as for well-child visits, mammograms and vaccinations, possibly altering how much people put into an FSA in the first place.

_Most affected by the OTC rule will be daily users of those drugs – like people who treat arthritis with ibuprofen, or gastric reflux with Prilosec OTC, or hay fever with Claritin. They will have to calculate if any extra doctor visits offset the pretax savings.

The change shouldn't cost extra if your doctor knows you've been taking OTC medicines routinely and thus has no trouble writing a prescription by phone or at your next regularly scheduled visit, says Dr. Gary Rogg, an internist with Montefiore Medical Center in New York. In that case, the change wouldn't cost anything extra.

If you've never mentioned taking a particular OTC drug, the doctor may demand an office visit, with its copay, before pulling out the prescription pad.

"If a 20-year-old wants to buy Prevacid because of heartburn, odds are it's diet-related. If it's a 60-year-old, you really are obligated to do a 'workup'" in case the pain signals something worse, Rogg says.

People who use high doses of OTC drugs might find a prescription-only version a better deal depending on their insurance copay rules, he adds, even if that's costlier for the health care system overall.

Increasing communication about OTC drug usage would be a good side effect of the rule change, says Dr. Joshua Freeman, family medicine chairman at the University of Kansas Hospital.

"If you're taking something I think is bad for you, I'm glad I found out," he says.

But Goertz says it's not clear exactly what's required for an OTC prescription. If he writes one for a 30-day supply of ibuprofen with 11 refills but the arthritis patient buys once in bulk, will the FSA provider honor that reimbursement?

And there's an added wrinkle for the millions who use special FSA debit cards to pay for purchases straight from their account. IRS guidelines say those debit cards can't be used for over-the-counter drugs under the new change, and will have to be reimbursed by turning over a copy of their receipt and prescription to their FSA provider.

The National Association of Chain Drug Stores has asked the IRS to reconsider, predicting customer anger if the debit card works for one kind of purchase but not another.

Stay tuned: It's not clear if the IRS will alter its guidelines, which are open for public comment until Dec. 27.

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EDITOR's NOTE – Lauran Neergaard covers health and medical issues for The Associated Press in Washington.

___

Online:

IRS info: http://www.irs.gov/

Preventive care information: http://www.healthcare.gov/law/provisions/preventive/index.html

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