msn.com | 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.
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“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.
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“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.
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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.
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“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."
It’s complicated
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.
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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.
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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.
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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