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Dead Sea 

An unpublished study shows the surprisingly lethal effects of the Cosco Busan oil spill. Why are government scientists helping the ship's owner keep it a secret?

Wednesday, Feb 24 2010
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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.

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Peter Jamison

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