By Anna Pulley
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By Chris Roberts
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By Rachel Swan
By Joe Eskenazi
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By Erin Sherbert
In this article, SF Weekly staff writer Peter Jamison reports:
The groundbreaking results of a previously undisclosed government report on the extreme danger posed to fish by the 2007 Cosco Busan oil spill and the documents importance as a precedent for shipping-industry polluters.
That federal and state scientists concealed their findings from the public, even as they shared them with the companies that control the Cosco Busan.
That the new report indicates the heavy fuel spilled into San Francisco Bay causes much higher death rates and birth defects in fish including twisted spines, misshapen hearts, and eyes dissolved in their sockets than the crude oil spilled in 1989 by the Exxon Valdez.
That no herring returned to spawn in 2009 at observed sites polluted by the Cosco Busan, though more than a year had passed since the oil spill.
The surprising amount of influence polluters have over government officials under the Oil Pollution Act of 1990 including the ability to plan, oversee, and interpret research into how much environmental damage was caused by oil spills.
On the morning of Nov. 7, 2007, the Cosco Busan, a 900-foot container ship bound for South Korea, smashed into a tower below the western span of the Bay Bridge. The accident left a 212-foot gash in the hull of the Chinese-crewed freighter, tearing open two of its fuel tanks and spilling more than 53,000 gallons of oil into San Francisco Bay. The substance that leaked from the Cosco Busan, known as bunker fuel, is a dense and highly toxic distillate of the petroleum normally involved in oil spills, and it soon became apparent that the environmental toll of the crash would be severe.
Some of that damage was easy to see. According to the latest estimates from the U.S. Fish and Wildlife Service, close to 7,000 birds — including ducks, cormorants, loons, and pelicans — probably died as a result of the oil spill. Once doused in bunker fuel, which is nearly as heavy as tar, birds lose their natural waterproofing, causing many to succumb to hypothermia. Photographs and video footage of bright-eyed waterfowl with glistening black bodies are among the more iconic images attached to the Cosco Busan disaster.
But these disturbing pictures tell only a small part of the story. Records of federal and state scientific research, obtained by SF Weekly through Freedom of Information Act (FOIA) and California Public Records Act requests, indicate that some of the most far-reaching ecological impacts of the spill have yet to be revealed to the public. The research, performed during 2008 and 2009 on San Francisco Bay and at the Bodega Marine Laboratory on the Sonoma coast, was done by scientists from the National Oceanic and Atmospheric Administration (NOAA) and the University of California. They discovered that the Busan's bunker fuel had an unexpectedly deadly effect on another vital and populous part of the bay's ecosystem: fish.
The report represents a milestone in scientists' understanding of the lethality of bunker fuel, which is used to power cargo ships all over the world. It reveals that even small amounts of it can have a devastating effect on recently spawned fish, causing severe birth defects — blindness, twisted backbones, misshapen hearts — or outright death. When exposed to a sufficient quantity of the oil, the study found, fish embryos simply withered and died in their eggs.
The report also revealed that Pacific herring — the species researchers focused on — had not returned to spawn at any of the oil-polluted locations monitored by scientists, though more than a year had passed since the Cosco Busan crash.
That might help explain a marked drop in the species' population that led the California Fish and Game Commission, in September, to cancel the herring season for the first time in the commercial fleet's 150-year history. The closure has been a serious blow to herring fishermen, who make up one of the last economically viable fisheries on San Francisco Bay. (While herring is no longer a popular menu item in the U.S., its roe fetches a high price in Japan, where it is sold as a delicacy called kazunoko.)
But the significance of the research extends well beyond one species. Researchers chose to study herring because of their similarity to other types of fish and importance as a food source for various kinds of animals. As Karen Garrison of the Natural Resources Defense Council put it, herring are "a barometer for the health of San Francisco Bay."
The report could have a broader impact on environmental law and the shipping industry, scientists say, because of its potential to establish a stricter standard for judging the severity of oil spills. "It sets a totally new bar for what can cause damage in herring," said Mark Myers, a pathologist at NOAA's Northwest Fisheries Science Center. "It's not just this particular incident. It's the precedent it sets."
The surprisingly small amounts of bunker fuel that have been shown to cause mutations or death in fish could increase shipping companies' liability when freighters crash and leak their fuel in the future. For this reason, the corporate interests that control the Cosco Busan — which include one of the largest shipping concerns in the world — have been eager to reinterpret the study's findings and delay its publication.
That stance is hardly surprising. What is unsettling, to some observers, is the extent to which those corporate interests have been successful — and have been abetted in their efforts by the government officials supposed to hold them to account.
The Bodega Marine Laboratory, a research facility of the University of California, sits on an exposed bluff overlooking the Pacific Ocean west of Bodega Bay, a sleepy fishing town nestled among sheep ranches 70 miles north of San Francisco. It was here, in the winter of 2009, that NOAA and UC scientists working on behalf of the California Department of Fish and Game set out to prove what at that point was only a hunch: that the Cosco Busan oil spill was a powerful demonstration of the extreme toxicity of the fuel with which the shipping industry powers its container vessels across the world's oceans.
In the wake of the accident, there was already evidence, albeit inconclusive, that pointed in this direction. Previous scientific studies had established that bunker fuel, a highly processed version of crude oil, was dangerous to various forms of marine life. (The oil takes its name from the bunkers that were used to store coal, which freighters once used as fuel.)
After the Cosco Busan spill, federal and state researchers performed a preliminary survey of stretches of shoreline subjected to heavy oiling on the northern side of the bay, below the chain of upscale tourist towns known as the Marin Riviera. Their observations indicated that at these sites — which are also prime spawning grounds for herring — something was very wrong.
At Sausalito, only 44 percent of herring eggs sampled hatched successfully during the winter of 2008. At Peninsula Point, the hatch rate was a startlingly low 24 percent. By contrast, at San Rafael Bay, which was not polluted by oil, some 84 percent of eggs hatched.
The newly obtained report reveals that researchers returned to these oiled sites in the winter of 2009 to see whether things had improved. The opposite had taken place: Herring had not spawned at a single site that had been oiled.
These observations pointed to the need for further and more rigorous study of the spill's effects. Bunker fuel had fouled the bay's shoreline, and many herring embryos had died off months later; this much was known. Missing was proof that the fuel itself had caused this environmental catastrophe, and not some biological fluke in the herring population or unusual conditions in San Francisco Bay.
Bodega Marine Lab is where scientists tried to demonstrate that link conclusively. The 51-page study obtained by SF Weekly, "Data Report of Laboratory and Field Herring Injury Studies Performed 2008-2009," chronicles their efforts and the results.
The study sought to mimic, in a controlled setting, the spawning conditions preferred by herring in the bay's "intertidal zone" — the shallow, gravelly areas close to shore where the fish like to lay their eggs. At the lab, water was leached through containers of gravel that had been exposed to different concentrations of oil, then passed over incubating herring eggs.
The study, conducted from January to March 2009, was distinguished by attention to a few key factors. In addition to comparing eggs exposed to the bunker fuel used in the Cosco Busan to those in clean water, scientists examined groups of eggs dosed with crude oil of the sort that fouled Alaska's Prince William Sound during the Exxon Valdez spill.
They also exposed some eggs to ultraviolet light in the hope of learning more about the poorly understood phenomenon of bunker fuel's "phototoxicity" — an intensifying of its deadly properties as a result of chemical changes that come with exposure to sunlight. Such effects could be particularly important for herring, which, like other species of fish — including anchovies, jacksmelt, and the California grunion — lay their eggs in shallow water where sunlight penetrates easily.
The results of this research, as presented in the data report, were stark. Water contaminated with bunker fuel of the type that leaked from the Cosco Busan was found to lead to higher rates of embryo death and birth defects than either clean water or that polluted by crude oil. Among the abnormalities observed were scoliosis, bent heads, deformed jaws, and eyes that had basically dissolved in their sockets.
In the third of four trials performed — because of the water conditions and number of variables measured, the report identifies this as the most definitive experiment — the highest dose of crude oil resulted in a 16 percent rate of necrosis, or desiccation and death of cell tissue, among embryos. Less than a third of that dose of Cosco Busan oil had the same effect.
When the dose of Cosco Busan oil was increased to equal that of crude oil, more than 90 percent of fish embryos exposed to it experienced necrosis — a staggering fivefold increase over the damage wrought by crude oil under the same conditions.
Bunker fuel's poisonous qualities were found to be exacerbated by exposure to sunlight. In the first trial, only 1 percent of embryos hatched alive after being exposed to both a one-part-per-thousand concentration of Cosco Busan oil and ultraviolet light. By contrast, about 66 percent of those exposed to the same amount of crude oil and UV light hatched. In subsequent trials, not a single live fish exposed to both UV light and the highest concentration of Cosco Busan oil emerged.
Scientists had set out to measure, in a laboratory setting, the effect of oil like that spilled by the Cosco Busan on gestating fish. It seemed they had an answer. Bunker fuel, for herring embryos, was a startlingly effective poison.
The evidence government researchers found on the poisoning of fish embryos that results from a combination of bunker fuel and sunlight is striking — the closest thing yet to a smoking gun in the mysterious die-off of herring in San Francisco Bay following the 2007 spill. The information is of pressing interest to any member of the public curious about just how much damage the Cosco Busan did to the living creatures of the bay.
Yet state and federal scientists have been extremely reluctant to release or even discuss the results of their research. Their reticence raises questions about the regulatory apparatus at work in the case — an ethically murky system whose shortcomings are highlighted, in particular, by federal and state officials' handling of the 2009 study on the toxicity of bunker fuel.
When first questioned about the report by SF Weekly last month, lead government researchers said it was still being drafted, and that the results of their research last winter could not be released.
"Honestly, we're still trying to figure this out," said John Incardona, a NOAA toxicologist based in Seattle. Gary Cherr, director of the Bodega Marine Laboratory, said, "There's still analysis and interpretations going on." Both refused to disclose or discuss the report's findings. "I hope this doesn't get out in the press," said another government official, who would discuss limited aspects of the study only on condition of anonymity.
It was only after SF Weekly submitted a request for the report under FOIA and the California Public Records Act at the end of January that federal and state attorneys revealed that a draft of the document had been completed in November 2009.
Draft reports of this kind are normally shared by government officials with the public to solicit comments before finalizing the document. In this case, however, the draft had been shared only with the owner and operator of the Cosco Busan.
The "analysis and interpretation" initially cited as a rationale for withholding the study was performed by consultants hired by the shipping companies, who were hoping to influence the interpretation of its findings. Chris Plaisted, a Long Beach–based NOAA lawyer working on the case, said he believed the report was given to the private consultants at the time of its completion.
"They have their scientists. We have our scientists," said Greg Baker, a NOAA official helping to steer the damage assessment for the Cosco Busan spill. "There's a lot of data. [The 2009 study] involved a lot of biological data, chemistry data. It all has to be debated, discussed. There's a lot of room for interpretation involved in cause and effect and so on."
Baker said the ship's owners were also footing the bill for the ongoing research. The studies that went into the 2009 report obtained by SF Weekly had an approximate budget of of $189,000, according to figures in the document. (That does not include the cost of preliminary damage assessments in the immediate aftermath of the oil spill.)
A panel of government "trustees" is technically in charge of the process. In the case of the Cosco Busan research, federal and state officials handled the damage assessment in tandem.
But scientists hired by the corporate interests behind the freighter have been allowed to help design the studies involved and offer their own spin on the results, in effect becoming peer reviewers for the official assessment of how much damage their employer caused.
The Cosco Busan is owned by Hong Kong–based Regal Stone Ltd., which contracts with Fleet Management Ltd. — also based in Hong Kong — to operate the vessel. Fleet Management is the fourth-largest ship management company in the world, according to a National Transportation Safety Board report on the Cosco Busan incident. The firm controls close to 200 vessels, including container ships, chemical tankers, and oil tankers.
Joe Walsh, a lawyer for the companies, provided written comments on the report from the firms' consultants to SF Weekly. Their objections to the studies' findings are legion, and focus mainly on what they say were inadequately controlled lab conditions related to water quality.
The consultants' review argues that algae growth, in addition to swings in water temperature, pH levels, and salinity, could have accounted for the poor survival rate of herring embryos. "The range in water quality characteristics are extreme, and laboratories conducting tests with this lack of control are obligated to explain why the data is not compromised," the review states. Ultimately, it asserts that not a single experiment among the four trials passes scientific muster.
At least some of the criticisms of the scientists hired by the Cosco Busan ownership may prove well-founded. Myers acknowledged that the report's findings, while compelling, weren't bulletproof. "We didn't get thoroughly reproducible results," he said. One entire trial was written off because of defects unrelated to oil in a control group of embryos, according to the report.
But close watchers of the investigation into the oil spill in the environmental and fishing communities say they wish they'd had a chance to review government researchers' findings for themselves — and not just after the shipping companies' consultants were given the chance to take a first look and privately offer comments.
Stuart Gross, a Burlingame attorney, represents the dozens of commercial herring fishermen suing the ship's owners and operators. Before being contacted by SF Weekly, he was unaware that government scientists had produced a study that strongly links the Cosco Busan oil spill to the death of large numbers of herring hatched in San Francisco Bay. These plaintiffs are part of a larger class-action lawsuit involving hundreds of local commercial and sport fishermen.
Gross said his clients and other members of the public have a right to information gathered by taxpayer-employed researchers. The failure to disclose the report prior to SF Weekly's FOIA request, he said, shows the ship's owners are "trying to negotiate ... essentially a cover-up."
Gross has some justification for being put out. Currently in the midst of preparing for a September trial, he has so far been deprived of one of the most persuasive documents advancing his case: a government report illustrating bunker fuel's extreme toxicity to the fish on which his clients depend for their living.
"It's the classic 'Justice delayed is justice denied,'" he said of the government's handling of the damage assessment. "I mean, come on. If they release this data 10 years from now, after no one is paying attention to the Cosco Busan, that serves the purposes these agencies were created for?"
The lawsuit does not specify the amount of money fishermen are seeking, but court filings on potential economic damages to the fishery indicate that tens of millions of dollars could be at stake, particularly if the oil spill is shown to have resulted in a long-term decline in the bay's herring population.
"For the shipping companies to have the inside track while this report is being prepared is not right," said Ernie Koepf, a veteran fisherman involved in the lawsuit. "We need to get to the truth, and have the truth stand on its own without anybody being able to throw rocks at it and think that the books were cooked."
Andrea Treece, a San Francisco–based senior attorney for the Oceans Program of the Center for Biological Diversity, said federal and state agencies' reluctance to share the document with the public other than the Cosco Busan ownership "flies in the face" of President Barack Obama's proclaimed emphasis on the openness of government records, and raises questions about the integrity of the research process.
"When they keep a study like that so close to their chest, and they won't even release it until they're forced to by a FOIA, that just doesn't look good," said Treece, who is herself a former federal employee, having worked at the U.S. Environmental Protection Agency. "It's a scientific document, and it's important to let everyone see it who was affected by the spill and is trying to understand what happened. If what the agency is interested in is putting together a sound restoration plan, then of course you should go out and get public comment from everybody that's interested."
Rainer Hoenicke, an environmental scientist who heads the nonprofit San Francisco Estuary Institute, said he was likewise puzzled at the secrecy surrounding the 2009 toxicity study.
"It's perfectly fair for the defendants to look at the information," he said. "What is strange in this case is that the agency, in this case [the state department of] Fish and Game, wasn't willing to release the report that was finished. I would say that the public has the same right as the defendant to look at the data — and not just the data, but the interpretation and analysis — at the time they came out."
Despite such criticisms, the process used by government officials in the Cosco Busan research is in line with federal law. Answers to the question of how it came to be this way begin with the aftermath of an environmental catastrophe on a far grander scale than the crash of the Cosco Busan.
When the Exxon Valdez oil tanker struck Bligh Reef in 1989, emptying nearly 11 million gallons of crude oil into Prince William Sound, the result was not only an environmental tragedy, but a political uproar. Washington legislators made a show of getting tough on the multinational oil and shipping companies that plied American waters, and in 1990 passed the federal Oil Pollution Act, a landmark regulatory bill.
Among other provisions, the law required shipping companies to draft detailed plans for handling potential oil spills, and established a national trust fund — paid into by these companies — for cleanup costs.
But the bill was not an unalloyed crackdown on the industry. In fact, it established a regulatory system that critics say is extremely friendly to the companies responsible for polluting our oceans — one that has had important consequences in the investigation into the ecological damage caused by the Cosco Busan.
Forcing a corporation responsible for an oil spill to pay for cleaning up its own mess would strike most reasonable people as fair. Accordingly, the Oil Pollution Act created a "cooperative" investigative procedure that foists the expense of studying and then restoring environmental damage onto the party responsible for the spill.
But the assessment process places significant power in the hands of the polluter beyond the power of the purse. The "cooperative" company is allowed to oversee federal and state research into how much harm the spill did to the environment, help design scientific experiments, and influence the contents of government reports describing environmental damage before the information is released to the public. This route has been taken by the government in the Cosco Busan oil spill.
There are several advantages to the process, according to government officials. It avoids costly and time-consuming court battles. The polluter pays for the research, which provides a funding source for cash-strapped government scientists. And, perhaps most importantly, it speeds the creation and enactment of a plan for healing the environmental damage that has been done. "It gets you to restoration quicker, and you don't actually have to litigate," said Plaisted, the NOAA attorney.
"It has its problems," said one government official, who spoke on condition of anonymity so as to discuss the process candidly. "It takes a long time, and there's a lot of negotiation, and there's a lot of back and forth. It keeps everyone honest. The responsible party pushes their position, and the trustees push their position, and we wind up somewhere that's probably closer to the truth."
Have such benefits come at the price of untoward coziness between regulators and the regulated? Gross thinks so. "The entire legal structure created through the Oil Pollution Act has some significant issues," he said. "The control — if not actual control, at least influence — given to the polluter is troubling. And it's something that rarely comes to the attention of the public."
Even some scientists who have been directly involved in damage assessments under the Oil Pollution Act sometimes question how effective the "cooperative" process is, given the propensity of privately hired scientists to attack or mitigate conclusions unfavorable to the companies that hire them.
Terry Hazen, head of the ecology department at Lawrence Berkeley National Laboratory, has advised trial judges on how best to set up teams of experts to investigate environmental incidents such as the Cosco Busan spill. (Hazen is not familiar with the private consultants involved in the Cosco Busan damage assessment, which he has not participated in.)
Speaking generally, he said the private-sector scientific consultants are sometimes little more than hired guns with limited expertise beyond advancing the interests of their employer.
"I can't believe what they come up with sometimes," he said. "Some of the science is sort of gray, so they emphasize what they think will promote their case and get them a good paycheck."
Richard Carson, a UC San Diego economics professor and expert on environmental policy, said the integrity and effectiveness of cooperation between government officials and polluters on damage assessments depends, in large part, on whether the polluter acts in good faith. It's not always the case that they do.
"The problem that comes about is that there's a big difference in the behavior of responsible parties," he said. "Some very much want to cooperate. Other potentially responsible parties adopt a strategy of fighting everything along the way, and that's because there can be very large financial upsides to delay."
Some familiar with the Cosco Busan damage assessment say the corporate interests behind the ship have taken the latter route.
Fleet Management pleaded guilty last August in federal court to charges of water pollution and falsifying documents, agreeing to pay a $10 million criminal penalty. (The latter charge stemmed from the company's effort to present Coast Guard investigators with false documents to interfere with their investigation of the crash.)
But far more is at stake in the U.S. and California governments' pending civil suits against Fleet Management and Regal Stone. The lawsuits aim to recover cash damages associated with the cleanup and environmental restoration of San Francisco Bay. Cleanup costs alone have been estimated at $70 million.
Officials involved firsthand in the Cosco Busan damage assessment say that private scientific consultants hired by the freighter's owners and operators have tried hard to influence the government's damage assessment, and have pushed back with particular vigor against the findings of the 2009 toxicity study at Bodega Marine Lab. The consultants' interest in softening scientific conclusions that might prove harmful to their employers in the shipping industry has been clear, said Myers, the NOAA scientist.
"They were all over us" during the 2009 phototoxicity study, Myers said. "They don't want to set a precedent. The amounts of exposure here, in some cases, were really low. If they settle in this case, and admit liability, it could really open them up in the future." When asked which of the study's findings have been contested by the Cosco Busan representatives since the report was finished, another government official, who spoke on condition of anonymity, had this to say: "Everything."
Walsh, the lawyer for Fleet Management and Regal Stone, said the involvement of his clients' scientists has conformed to federal and state law, and that their extensive comments criticizing the 2009 toxicity report on herring were produced for the government's administrative record — and not with the expectation that the report itself would be altered.
Do Regal Stone and Fleet Management exercise too much control over the government tasked with assessing the extent of the damage they have done to the water and wildlife of San Francisco Bay? Walsh, and the shipping companies, would argue quite the opposite.
"At the end of the day, they have the final say," he said of federal and state regulators. "Whether we have too much influence or not? My clients would tell you we probably don't have enough."
Read the full government report on the toxicity of Cosco Busan bunker fuel as well as criticism from shipping company consultants at www.sfweekly.com/microsites/report.