Each year in California, hundreds of small to mid-sized oil spills of unknown origin speckle the edges of our marine environment. Those deemed significant enough for the crews in white suits to be called out are known as “orphan spills.” Spills too small to merit a response from the Office of Oil Spill Prevention and Response (OSPR, pronounced osper) or local authorities—those evidenced only by a sheen on the water or a few oiled birds washed onto shore—are referred to as “chronic.” (They are part of nonpoint source pollution.) Together, orphans and chronic spills account for up to 90 percent of the oil pollution in marine waters. Because no polluter is identified, public funds must be used to pay for cleanup and, at least theoretically, to mitigate the environmental damage.

According to OSPR records, 21 orphan spills have blemished the California coast since February 1992, costing the state $1,562,876 for response and cleanup, some of which may eventually be reimbursed by the federal government. However, more comprehensive records of the State’s Office of Emergency Services reveal that in the 18 months since January 1997, authorities have responded to 28 oil spills of unknown origin in Monterey and Marin Counties alone. Clearly this is a problem that calls for greater attention.

Chronic Is Catastrophic

The damage to wildlife accumulates over time, and therefore often goes unmeasured and unnoticed. In the case of the Mystery Tarballs, 1,500 dead seabirds were found, but the actual losses may be ten times that number, says William J. Sydeman, director of the Point Reyes Bird Observatory’s Marine Program. The greatest casualties, on paper, occur among common murres, since they are strong swimmers and often make it to shore after they’ve been oiled, while many smaller or less buoyant birds sink without a trace. If Sydeman’s estimate is correct, some 15,000 seabirds may have been killed by the Mystery Tarballs event alone.

Oil’s lethal action does not end after it washes ashore, points out Sarah Allen, ecologist with the Point Reyes National Seashore. Windblown sand often covers tarballs before they are discovered or removed. On hot days they melt, then repeatedly gum the feathers of shorebirds that feed or rest on the beach.

“The effects of chronic oil pollution are as severe as, or more severe than catastrophic events whose effects we actually track,” says Sydeman. Ed Ueber, manager of the Gulf of the Farallones National Marine Sanctuary, estimates that a ton of tar per mile lies just under the surface of many Bay Area beaches. The Sanctuary’s volunteer Beach Watch program reported in 1997 that 33 out of 57 beaches showed evidence of chronic oiling, not including the Mystery Tarballs incidents.

Are Orphans Neglected?

In the aftermath of the 1989 Exxon Valdez disaster in Alaska’s Prince William Sound and the 1990 American Trader accident in Orange County, the federal Oil Pollution Act of 1990 (OPA 90) and the California Lempert-Keene-Seastrand Oil Prevention and Response Act (SB 2040) were passed to prevent spills and improve emergency response. The federal legislation established a $1 billion Oil Spill Liability Trust Fund (Federal Fund), managed by the U.S. Coast Guard, to be used for oil spill response and to reimburse states for oil spill removal and damages that are uncompensated by a responsible party. The state legislation created OSPR within the California Department of Fish and Game, and gave this new agency jurisdiction over all vessel- and marine-related spills in California waters. OSPR subsequently forged a “unified command” partnership with the Coast Guard for marine spill response.

By almost any measure, OSPR has been extraordinarily effective. It has succeeded in extracting over $68 million in settlements from responsible parties to compensate for oil-related damages. Doug Helton, oil spill coordinator at the National Oceanic and Atmospheric Administration (NOAA), who handles claims to the Federal Fund, says: “My general experience with oil spills in California and elsewhere is that OSPR is much more aggressive and goes after smaller spills.” The number of marine oil spill reports in California decreased by 40 percent in the five years after OSPR went into action, from 1,284 in 1992 to 767 in 1997.

Nevertheless, a number of independent observers complain that OSPR has responded with far less zeal to orphan spills than to incidents involving identified culprits. An official within OSPR confirms that “orphan spills are played down by regulatory agencies and the Coast Guard.” The official explains that these spills have, in the past, been viewed primarily as an aesthetic problem rather than an ecological problem with far-reaching implications for wildlife. Gary Gregory, interim administrator of OSPR, denies these allegations, saying “there is no difference in response in what we send forward for a spill, whether there is an RP [responsible party] or not.”

To understand this controversy, it may help to consider that OSPR is based on the “polluter pays” principle and that in the absence of a responsible party, cleanup and restoration costs must be covered by a tax on the oil industry. SB 2040 created two means of bankrolling the newly minted state agency: the Administrative Fund for Operations (maintained through a $.04/barrel crude oil tax) and the Response Fund, which through a $.25/barrel fee was brought to its mandated level of $100 million in a mere six months. The $.25/barrel fee was then discontinued, but it will be triggered automatically whenever the Response Fund is drawn down by more than five percent. This has not happened since the Fund was established.

The law specifically directs expenditure of Response Fund dollars to cover response, cleanup, damage assessment, and “actions that are necessary to fully mitigate for the damage caused to wildlife, fisheries, and . . . habitat, including beaches” for all marine spills, including orphans. Damage assessment is a necessary preliminary to mitigation efforts, but OSPR has never tapped the Response Fund to cover a Natural Resource Damage Assessment for an orphan spill. Pete Bontadelli, director of OSPR from its inception until 1998, explains that in contrast to habitat restoration, bringing back wildlife populations hurt by oil pollution is still an uncertain science. He notes that $17 million was spent to figure out the damages of the 1991 Cantara toxic spill of metam sodium, a fungicide, along the Sacramento River, but only $8 million was spent in actual restoration. To trigger Response Fund collections from the petroleum industry for orphan spill damage assessment and wildlife projects without a drum-tight scientific case would be very difficult, he says, because “the industry looks at every case as a precedent.”

Other insiders, however, speak of a reluctance to draw down the Response Fund to the point of triggering additional fees from the petroleum industry. One informed source says OSPR didn’t use the fund because “Governor Wilson did not wish to assess the 25-cent fee.” Another thought the agency feared that the oil industry might retaliate by calling for an audit of OSPR’s expenditures.

Compensation is theoretically also available from the $1 billion Federal Fund, but until recently this fund did not pay for orphan spill damage assessments either. Everyone in government, it seems, sought to avoid the tarbaby of an orphan oil spill, lest they end up stuck with the tab.

This impasse may have begun to resolve, however. About the time of the Point Reyes tarballs, suits filed by the States of Florida and New York were settled, resulting in a ruling by the Solicitor General that affirmed the Federal Fund’s liability for damage assessment and environmental restoration claims stemming from oil spills without responsible parties. After the incident, Ueber began to seek Federal Fund support for an investigation of the mysterious spill. The Fund subsequently approved $300,000 to initiate an assessment. As a result, for the first time in California, a Natural Resources Damage Assessment will spotlight the ecological harm caused by an orphan spill.

“The Point Reyes Natural Resource Damage Assessment is precedent-setting, from my perspective,” says Helton at NOAA. “The Federal Fund has never paid to initiate an orphan assessment before.”

Who Might Be the Culprit?

Oil on California beaches generally comes from three sources: varied land-based pollution, natural seeps, and discharges from ships and smaller boats. Land-based pollution from diverse sources is ubiquitous, and is likely to grow as California’s population increases—unless major efforts are made to prevent it. This year California residents will dump upward of 20 million gallons of waste motor oil illegally, estimates the California Integrated Waste Management Board. They will throw used oil into the trash, from which it can leak into groundwater, or will pour it directly down neighborhood storm drains, through which it will flow into rivers, estuaries, and nearshore waters.

Natural seeps occur mostly in southern California, where clouds of crude billow into the ocean, creating great tar mats at places such as Coal Oil Point near Santa Barbara. But there are also seeps elsewhere along the coast, says Keith Kvenvolden, an organic chemist with the U.S. Geological Survey who has been investigating the source of tarballs in the Monterey Bay National Marine Sanctuary. “It’s very difficult to separate what might be an accident by industry from what’s happening naturally down there,” he says, adding that “there are tarballs just about anywhere you want to look.” Circumstantial evidence points to natural seeps, but this does not rule out the possibility of oil coming from tankers carrying California crude.

Leaks and spills from ships and boats also occur along the entire coast. Some are accidental, others deliberate. Pleasure craft with inefficient and leaky motors are a leading cause of marine pollution. A two-stroke outboard motor emits up to 30 percent of its fuel unburned. When it comes to orphan spills from large vessels, the Coast Guard generally ranks bulk freighters as greater risks than container vessels, with oil tankers considered especially risky due to their potential for large spills.

Large ships pollute by illegally leaking bunker fuel or releasing oily bilgewater. Some may do so to avoid the costs of legal onshore disposal, which average about $70 a barrel. Bill Castle, director of OSPR’s Petroleum Chemistry Lab, notes that fingerprinting of oil pollution samples collected within a 20-mile range north and south of San Francisco Bay indicates that over 50 percent of tarballs examined have been Alaska North Slope crude.

How about the Puerto Rican, which sank in October 1984, with 91,984 barrels of refined oil products and 8,500 barrels of bunker oil, 8.5 miles outside the Golden Gate? Could it be leaking during turbulent winter storms? Castle, who has the Puerto Rican’s oil signature on file, says no tarballs have ever matched its cargo.

When Pouring Oil into the Ocean Is Legal

Some oil pollution is legally permitted. Under international maritime rules, tankers may discharge oil cargo tank washings or “slops.” These are mostly water, but may contain oil residues up to 1/30,000 of the cargo load. A large tanker—the sister ship to the Exxon Valdez, say, with a total capacity of over 1.3 million barrels—could legally discharge up to 46 barrels of oil at an electronically monitored rate no greater than 30 liters per nautical mile, as long as it was under way at a distance greater than 50 miles from shore. It could release a maximum of about a barrel of oil every six miles.

International maritime rules prohibit these types of discharges in designated “special areas,” including the Mediterranean, Red, and Baltic Seas, but no such protected status exists for the California coast, not even for national marine sanctuaries.

Relatively small amounts of petroleum could persist in seawater and reach shore from 50 miles out or more, says Sharon Kristofferson, an expert in modeling the fate of oil in the environment at NOAA. It is conceivable that under the right conditions, tarballs might coalesce from scattered oil releases, and be blown ashore by coastal winter winds, the way leaves are swept against a curb by a leaf blower. Coast Guard Lt. James Stewart, chief of foreign vessel boarding for San Francisco, says that such oil discharges rarely happen because waste oil in slops can be allowed to separate and then combined with new oil cargo at the next port.

When Pouring Oil into the Ocean Is Illegal

As many as 175 deep-draft vessels ply the shipping lanes in and out of San Francisco Bay every month, cutting through the Gulf of the Farallones National Marine Sanctuary where world-class populations of elephant seals and seabirds breed on the stony outcrop of the Farallon Islands and feed in its fecund waters. Officials who have dealt with Point Reyes orphan spills say ships illegally dump oil in their wakes. Ueber says: “We believe every year people are putting fuel from ships into the ocean in this area.”
John McLauren, executive director of the Pacific Merchant Shipping Association, responds: ”The industry as a whole, I think, has been pretty conscientious. We came forward and said we wanted to be regulated for oil spill purposes.” Jeff Wilson, spokesman for the Western States Petroleum Association, says it’s unlikely tankers would knowingly dump oil: “It is very much in the interest of the marine industry for tankers to comply with all these laws. No company wants to undergo the pain and scrutiny, both internal and external, of a spill. Ninety-nine percent of releases are accidental. Knowing breaches of protocol or law are unlikely because there are too many eyeballs on everything.”

A substantial portion of dumping and leakage may originate from ships known as “flag of convenience” carriers, registered in countries with relaxed standards. “The Coast Guard has identified certain flags that have a tendency of greater problems or substandard vessels,” says Lt. Stewart. The Coast Guard lists the following foreign flags as having been detained for violations more frequently than the industry average during 1996–98: Antigua and Barbuda, Belize, Cape Verde, China, Cyprus, Equatorial Guinea, Honduras, Malta, Mexico, Netherlands Antilles, Pakistan, Panama, Romania, Russia, St. Vincent and the Grenadines, Taiwan, Turkey, Ukraine, Vanuatu, and Venezuela.

Eyes peering down from the sky offer a relatively new deterrent to high seas polluters. Satellite imagery helped make the case against the T/S Command for the 1998 “shipping lane” oil spill off the San Mateo County coast. Norwegian authorities use satellites to spot the veil of smooth water that trails behind a ship disgorging oil into the Baltic Sea, even at night, when most illegal dumping appears to occur.

Staff within OSPR are currently investigating expanded satellite coverage as a means of exposing illegal dumpers. Although this technology doesn’t come cheap, it could potentially pay for itself in one settlement from nabbed polluters.

Might OSPR Itself Become an Orphan?

The question that keeps surfacing, like tar on a sun-drenched beach, is whether state and federal oil response agencies will take the steps necessary to redress orphan spill injuries to wildlife, as originally envisioned by lawmakers.

In 1998 Fish and Game, arguably one of the most frequently reorganized agencies in state government, transferred all OSPR enforcement wardens and biologists to the agency’s newly created marine region. An informed agency source estimates that subsequent to the reorganization, smaller-spill enforcement actions have declined by 25 percent and are trending lower over time. Now Governor Gray Davis has requested a review of the state’s oil spill prevention and response programs, and one option under consideration is to move OSPR’s prevention function to the State Lands Commission, the agency that handles spill prevention at marine facilities. Some within the agency fear its effectiveness will be undermined if its responsibilities are dispersed. OSPR was originally organized to reduce fractured and overlapping jurisdictions in state agencies.

By contrast, in the State of Washington, reorganization is proceeding full steam in the opposite direction. In 1997, that state’s legislature merged offices of two separate departments to create the Office of Spill Prevention, Preparedness and Response. Stan Norman, the director of Washington’s new agency, muses that “any organization can be made to work with the right people. It takes upper-level management support.”

The full story behind the Point Reyes Tarballs of 1997–98 may remain a mystery, but after analyzing 59 tar and feather samples, OSPR’s lab concludes: “None of the oil residue samples analyzed were from seep sources. Based on weathering characteristics, two incidents appear to have been caused by two separate releases of the same petroleum product or crude oil.”

The precedent-setting natural resources damage assessment will unfold in the year ahead. It could open the door for Ueber and others hoping to make claims to the Federal Fund for money to bankroll restoration projects such as habitat enhancement, removal of accumulated tar from beaches, and projects designed to bolster depleted wildlife populations. Should that occur, says NOAA’s Helton, it would set a precedent for the entire country.

Gregg Elliott is a policy analyst whose own close-up encounter with the Point Reyes Mystery Tarballs, and a murre struggling in tar, left an indelible impression.