A New Orleans law firm is challenging government assurances that Gulf Coast seafood is safe to eat in the wake of the BP oil spill, saying it poses “a significant danger to public health.”
It’s a high-stakes tug-of-war that will almost certainly end up in the courts, with two armies of scientists arguing over technical findings that could have real-world impact for seafood consumers and producers.
Citing what the law firm calls a state-of-the-art laboratory analysis, toxicologists, chemists and marine biologists retained by the firm of environmental attorney Stuart Smith contend that the government seafood testing program, which has focused on ensuring the seafood was free of the cancer-causing components of crude oil, has overlooked other harmful elements. And they say that their own testing — examining fewer samples but more comprehensively — shows high levels of hydrocarbons from the BP spill that are associated with liver damage.
“What we have found is that FDA simply overlooked an important aspect of safety in their protocol,” contends William Sawyer, a Florida-based toxicologist on Smith’s team. “We now have a sufficient number of samples to provide FDA with probable cause to include such testing, really. They need to go back and test some of their archived samples as well.”
Five months after crude oil stopped gushing from the broken BP wellhead into the Gulf of Mexico, the federal government has reopened more than 90 percent of fishing waters that were in danger of contamination from the broken Deepwater Horizon rig.
“There is no question gulf seafood coming to market is safe from oil or dispersant residue,” Food and Drug Administration Commissioner Margaret A. Hamburg said in an Oct. 29 statement as the final fisheries reopenings were under way. With a partner agency, the National Oceanic and Atmospheric Administration, the FDA said it tested thousands of seafood samples before issuing the “all clear.”
In the most recent vote of confidence for the seafood — and an effort to get the hobbled industry back on its feet — Navy Secretary Mark Mabus, a top official in the oil spill recovery effort, is urging the military to buy as much Gulf seafood as possible for distribution to its armed forces commissaries worldwide.
Claims in the pipeline
But many fishermen have yet to return to sea, and consumer confidence in Gulf seafood remains lukewarm. And some scientists remain skeptical that the government testing has been rigorous enough to protect public health.
Smith's clients in the BP oil spill include environmental activists and fishermen who don’t believe the seafood to be safe. The independent testing he is overseeing is meant to provide a legal underpinning to their anecdotal evidence — sightings of oil sheens, tar balls, oily fish — and help them win full compensation for their damage claims.
“When BP says your guy isn’t fishing (as a reason not to pay for lost income) we can say he isn’t fishing because it isn’t safe,” said Smith.
So far, the firm has filed $75 million in six-month damage claims on behalf of commercial interests, including fishermen. If the Gulf claims fund administrator Kenneth Feinberg decides to allow claims for damage losses in property value, Smith expects to seek another $150 million for those clients.
"I believe the government and BP are trying to downplay the damage," said Smith. "If they are successful my clients won’t get full compensation for damages."
Scientists can’t just test for “oil” in seafood. Crude oil is a mixture of hundreds of different hydrocarbons that are associated with different health risks — to the nervous system, immune system, lungs, skin, liver and kidneys.
The group the FDA and NOAA testing focuses on — polycyclic aromatic hydrocarbons (PAHs) — are considered the most toxic and some are clearly linked to cancer.
The agencies have used expert “sniffers” and laboratory analysis to examine thousands of samples of gulf shrimp, crabs, oysters and fin fish. They say they have discovered no samples with PAH levels of concern.
But Sawyer and his colleagues say the government isn't looking far enough. They are testing for the toxic PAHs — and, like the government, finding little — but they are also measuring for other elements from oil that potentially pose health risks.
And those tests, Sawyer says, are routinely turning up long-chain “aliphatic” hydrocarbons associated with liver damage.
Their approach draws on the work of scientists from industry, government and academia who banded together in the 1990s to develop guidelines for public health officials and environmental engineers faced with petroleum-related exposure and contamination. The work of the U.S.-funded Total Petroleum Hydrocarbon Criteria Working Group was part of a flurry of research that occurred in the wake of the Exxon Valdez spill in Alaska.
The idea was to offer guidance to engineers on hazardous waste sites and to public health officials dealing with exposure to the contaminants. Based on available animal and human research the scientists set risk levels for exposure to various groups of hydrocarbons.
That is the standard that Smith's scientists are relying on to argue that levels of aliphatic hydrocarbons in the seafood samples are about twice as high as the risk level set by the hydrocarbon group.
Sawyer, the toxicologist, said that daily exposure above the risk level poses a risk of liver damage, especially for people who have underlying health issues, such as hepatitis.
Food safety standards
The problem is the U.S. government has never applied the standards to food safety, even though they are recognized by the CDC and the governments of the U.K. and New Zealand. They also were written into environmental clean-up regulations used by a half dozen U.S. states.
In response to questions from msnbc.com, NOAA and FDA representatives expressed confidence in the government’s testing and results.
“The FDA has determined, based on a large base of science, that the compounds of greatest concern to human health are the PAHs, and levels of concern have been determined for the PAHs,” Dr. John Stein, a seafood safety expert at NOAA,” said in an email. “The methods used for testing are designed for PAHs.”
"Aliphatic hydrocarbons are relatively non-toxic components of oil compared to the much more toxic PAH compounds," said Siobhan DeLancy, an FDA spokeswoman. PAH's are "monitored by FDA and most countries as the oil compounds of greatest food safety concern as well as reliable markers of oil exposure in assuring the safety of seafood."
Both government experts also said that testing for aliphatic compounds in seafood is inappropriate because it is prone to false positives.
"FDA would be pleased to review the detailed data and information on the method(s) used that led to the claimed high levels of oil derived ... aliphatic hydrocarbons in seafood tissues sampled from the Gulf Of Mexico," DeLancy wrote in an email response to questions.
Health of U.S. population
Smith’s team may have difficulty making the argument of potential health risk in U.S. courts, even if their testing methods and results hold up to scrutiny. Even the TPH working group that produced the risk reference levels had to base its report on limited animal and human research for many hydrocarbon compounds.
Among the controlled studies cited is one in which rats that consumed the aliphatic hydrocarbons developed granuloma, or masses, in their livers — a type of immune reaction.
“Bottom line is that little information is available on the potential adverse health effects of these compounds on human health," said Peter Spencer, director of the Oregon Health and Science University and a toxicologist and neurologist who is not involved in the research.
But scientists working with Smith will argue that the “potential risk to human health” above the set levels should be reason enough for concern on the part of the FDA.
"It is unethical to 'experiment' with the health of the U.S. population or military members who may be admonished to consume TPH-tainted Gulf seafood," said Sawyer, the toxicologist on Smith’s team.
Scientists outside the study urge caution in drawing conclusions from the challenge posed by Smith’s team, but also admonish the government not to ignore their findings.
“Raising this issue is good but should not be seen as conclusive in any way that a proven toxicologic issue exists, just that there clearly is more to know before we determine there is no problem,” said toxicologist Dave Hobson, president and CEO of LoneStar Pharmtox in San Antonio, Texas, and past president of the American College of Toxicology. He said he's wary of scientific findings that are connected to a legal case, but that they should be investigated “sooner rather than later.”
Getting the ducks in a row
While Smith may be fighting an uphill legal battle, BP’s attorneys are unlikely to take him lightly.
Smith has 23 years experience handling claims involving oil company pollution. In 2002, he led a case against ExxonMobil that resulted in a $1.06 billion verdict for radioactive contamination of leased land.
Consequently, Smith’s team of chemists, marine biologists and toxicologists are collecting evidence by the book, knowing that it will very likely have to hold up in court.
To make sure their testing withstands scrutiny, the scientists use the FDA “chain of custody” for handling samples, which are sent for analysis at three facilities in the Canada-based ALS Environmental Laboratory network — chosen, Smith said, to make sure it is outside BP’s substantial sphere of influence.
While the FDA conducts random sampling when deciding whether to reopen sections of the gulf, Smith’s team gathers samples from suspected “hot spots,” based on tips from contacts. The samples are run through a battery of tests, more elaborate and more expensive than those used by the government, according to Smith. He said they the plaintiffs’ have so far spent about $500,000 for analysis of about 500 samples, including seafood, water, plants, sediment and tar balls.
The scientists employ a method in the lab to separate carbons associated with petroleum from those that occur naturally in animals, said Marco Kaltofen, an environmental engineer at Worcester Polytechnic Institute in Worcester, Mass., and a consultant on contamination cases, including this one. This is a key point, aimed at deflecting FDA charges that TPH testing is unreliable in seafood.
Kaltofen uses several means to “fingerprint” the hydrocarbons in seafood to determine whether they match the BP’s Deepwater Horizon crude.
“What gives us confidence that we are finding oil in these samples is that we are using multiple lines of evidence,” he said. “We are finding — even in metabolized samples — a lot of matches to BP oil.”
Sawyer and Kaltofen began finding high levels of TPH in seawater and sediment in June. Many scientists had previously expressed concerns that the heavy use of chemical dispersants by BP to break up giant oil slicks would lock the contaminants in the water column, making them more available to marine life.
“From there you can reasonably predict that there are going to be more and more findings in the food chain,” said Susan Shaw, a marine toxicologist at the Maine Environmental Research Institute. Shaw, who is not a member of Smith's scientific team, has been a vocal opponent of the heavy use of dispersants throughout the response.
“What we’re seeing now is plausible evidence from independent labs that — just as we thought — there’s oil in the food web, and here’s where we’re finding it,” said Shaw.
How many shrimp make a meal?
Other scientists not directly associated with the plaintiffs’ case also are questioning whether the FDA seafood testing program is stringent enough to protect public health.
“FDA’s approach has been to focus on the known carcinogens in the oil and to test specifically for them,” said Gina Solomon, senior scientist for the Natural Resources Defense Council. “We share the concern that the FDA may be looking too narrowly, and in fact, there are some important PAHs that the FDA isn’t looking for, so they may be missing some of the carcinogens.”
More broadly, Solomon and others have criticized the way the FDA calculates safe exposure to PAHs in seafood. For one thing, Solomon and others have long said the fish consumption portions used by the FDA to make this calculation — an average of four shrimp in one sitting — are too small to reflect eating habits in the Gulf region.
This month, the NRDC released the results of a survey looking at those eating habits, concluding that "many Gulf residents are eating far more seafood, far more often, than the federal government has acknowledged."
“It’s common knowledge that people in the Gulf love their seafood," said Solomon. "When we think of food from the region we think of po-boys and gumbo, oyster bakes and jambalaya." Thus, the current FDA standards "may also be failing to adequately protect many people in the Gulf,” she said.
The group argues that the average body weight of 176 pounds used in the FDA calculations of safe exposure levels also is too high to account for many women, children and fetuses, she said. Of the 547 survey respondents, about 60 percent reported they were under the average weight, and 40 percent said they had children at home who eat seafood.
In June, the FDA also relaxed the acceptable PAH level for gulf fisheries, in effect allowing for a risk of one person in 100,000 developing cancer as a result of seafood consumption, compared to one person in 1 million under the previous levels, according to the FDA testing protocol published in June.
“Each of these (factors) alone doesn’t change the results in a big way, but when you put them all together, the result is a number that won’t protect many Gulf residents,” said Solomon.
Shrimp, with seasoning
For gulf residents, reminders of oil in their waters — from the BP disaster and other spills — are hardly so subtle.
In November, just a week after an area of the gulf between the Mississippi coast and the closed BP well area was reopened to commercial fishing, a shrimper trawling those waters pulled in a net full of royal red shrimp peppered with what appeared to be tar balls.
The waters, just to the east of the Mississippi River Delta, had been closed for months after the BP spill, but were reopened after hundreds of seafood specimens gathered in the area, including royal red shrimp, passed both sensory and chemical testing, according to NOAA, which added that no oil had been sighted there for 30 days prior to the reopening.
“Out of an abundance of caution,” the federal government announced on Nov. 24 that it was reclosing the area — about 4,200 square miles — to shrimping of royal reds, which are caught by dragging nets along the sea floor in deep waters. (The area remains open to fishing of other species.)
Now the agencies are back to testing — trying to determine if the tar balls were from the BP/Deepwater Horizon spill and to ascertain, once again, whether seafood from those waters is safe.
Initial testing was “inconclusive,” according to Kimberly Smith, a spokeswoman for the Deepwater Horizon Response Unified Command. Additional tests were planned, Smith said, but the waters remained closed as of Dec. 17.
“We are taking this situation seriously,” said Roy Crabtree, assistant NOAA administrator for NOAA’s Fisheries Service southeast region. “Our primary concerns are public safety and ensuring the integrity of the gulf’s seafood supply.”