PLEASE DO NOT CITE OR QUOTE
xvEPA
NA TIO
ENVIRONMENTAL
AD VISOR
FISH CONSUMPTION R
Pre-Meeting Discussion Draft
November 2001
Developed in preparation for NEJAC Meeting of December 3-6, 2001
in Seattle, Washington
PLEASE DO NOT CITE OR QUOTE
A Federal Advisory Committee to the U.S. Environmental Protection Agency
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NOTICE
Please accept this Pre-Meeting Discussion Draft as a basis for discussion
during the December 3-6, 2001 meeting of the National Environmental Justice
Advisory Council (NEJAC) and for comment before, during, and after the
meeting. This Draft represents the efforts of the NEJAC Fish Consumption Work
Group to begin to identify and discuss the myriad aspects of the issues related to
the relationship between fish consumption, water quality, and environmental
justice. While the NEJAC Fish Consumption Work Group has begun the work of
gathering the numerous and diverse perspectives that need to be brought to bear
on deliberation about these issues, it recognizes that there are more perspectives
to be noted and explored, and looks forward to a rich and open discussion. The
NEJAC Fish Consumption Work Group would like to acknowledge the many
individuals and groups that have already shared their experience and expertise.
The Work Group hopes that this Draft captures accurately the information
shared, and, of course, invites comments to this end. Please note that while the
individuals, groups, and sources quoted throughout this Draft are quoted either
from published sources or with permission, this permission in several cases was
provisionally given, contingent on the contributor seeing the quote in final form.
Therefore, the NEJAC Fish Consumption Work Group asks that the wishes of
these contributors be honored and the integrity of the process be respected.
PLEASE DO NOT CITE OR QUOTE ANY OF
THE MATERIAL IN THIS DRAFT.
This report was prepared by the NEJAC Fish Consumption Work Group with assistance from
Catherine O'Neill, Associate Professor, Smmfe Unfrrrri&Łt*0Ol<|f Lew.
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TABLE OF CONTENTS
SUMMARY (iii)
BACKGROUND (1)
A. Diverse Impacts; Multiple Dimensions: The Accounts of Environmental Injustice (2)
B. The Components of Environmental Injustice (2)
1. Communities of Color, Low-Income Communities and Tribes, Depend oil Fish,
Aquatic Plants, and Wildlife(2)
2. Contamination of Aquatic Ecosystems and the Fish, Plants, Wildlife, and People
They Support (10)
3. Different Exposure Circumstances and Contexts Characterize Communities of
Color, Low-Income Communities, and Tribes (13)
4. Environmental Agenjcie$,Hav$ Made Considerable Progress; However, Many
Aspirations and Obligations Remain Unfulfilled (18)
C. What are the Policy Implications of the Above? (19)
CHAPTER I: RESEARCH METHODS AND
RISK ASSESSMENT APPROACHES (21;)
A. Defining Adverse Impacts to Human Health (22)
B. Exposure: Fish Consumption Rate&(24)*
1. Evidence of Different Qmgumpti0n^liae^u (25) <
2. EPA's Revised Fish Consumption Rates (29)
3. Fish Consumption Rates Reflected in CuiTenl Water Quality Criteria and
Standards (33)
C. Exposure: Assumptions About Species, Parts, Preparation (34)
D. Exposure; Consumption
E. Multiple Exposures and Cumulative'Riska (40)
F. Susceptibility and Co-Risk Factors (42)
G. Suppression Effects and Their Implications (43)
1. Contamination (44)
2. Depletion (45)
3. Evidence of Suppression Effects (46)
4. Implications (48)
H. Research Methods and Issues (49)
CHAPTER H: UTILIZATION OF EXISTING LEGAL AUTHORITIES (55)
Risk Reduction Strategies and Problem Pollutants (55)
Mercury (62)
PCBs (65)
Dioxins (67)
Chlordane (69)
DDT (71)
Other Persistent Organic PoUutaota^exsigtept Bioaccumutetive toxins (71)
A. Prevention and Reduction (73)
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1. Clean Water Act (73)
2. Other Authorities (76)
B. Cleanup and Restoration (78)
1. Clean Water Act (81)
2. Other Authorities (81)
CHAPTER III: FISH CONSUMPTION ADVISORIES (83)
A. Fish Consumption Advisories' Role (84)
B. Effectiveness: Background and Definition (94)
1. Advisories' Components and Functions (94)
2. Defining "Effectiveness" (95)
C. Effectiveness: Available Evidence (97)
D. Effectiveness: Risk Communication and Consumption Advisories (99)
1. Risk Communication-Overarching Issues (100)
2. Different Communities and Tribes, Differing Concerns and Needs (105)
3. Message Content (107)
4. Medium (109)
5. Implementation (110)
6. Evaluation (112)
7. Funding and Capacity-Building (113)
CHAPTER IV: AMERICAN INDIAN TRIBES AND
ALASKAN NATIVE VILLAGES (117)
A. Legal Status (118)
B. Treaty Rights (120)
C. Tribes' Unique Susceptibilities and Co-Risk Factors (121)
APPENDIX A: NEJAC FISH CONSUMPTION WORK GROUP MEMBERS (125)
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NATIONAL ENVIRONMENTAL JUSTICE ADVISORY COUNCIL (NEJAC)
FISH CONSUMPTION REPORT
Pre-Meeting Discussion Draft
Developed in preparation for NEJAC Meeting of
December 3-6, 2001 in Seattle, Washington
Summary
This Pre-Meeting Discussion Draft has been compiled in preparation for the December, 2001 meeting of
the National Environmental Justice Advisory Council (NEJAC). It is intended to serve as a basis for
discussing the following overarching policy question:
How should EPA improve the quality, quantity, and integrity of
our Nation's aquatic ecosystems in order to protect the health and
safety of people consuming or using fish, aquatic plants, and
wildlife?
This Draft works to identify and discuss the particular issues that this question raises when - as is often
the case - those affected by contaminated and depleted aquatic ecosystems are low-income
communities, communities of color, and American Indian tribes/Alaskan Native villages and their
members.
The Draft is organized into five chapters. An initial chapter provides background. The four
succeeding chapters each address a more focused policy question and the issues it raises. These
chapters are outlined below:
Background
This chapter explores the importance of having healthy aquatic ecosystems to address issues of
environmental justice. It provides background on the perspectives of the various individuals,
communities, and tribes affected by those aquatic ecosystems which are contaminated and depleted.
This chapter begins with the observation that low-income communities, communities of color, and tribes
depend on healthy aquatic ecosystems and the fish, aquatic plants, and wildlife that these ecosystems
support. While there are important differences among these various affected groups, their members
generally depend on the fish, aquatic plants, and wildlife to a greater extent and in different ways than
does the general population. These resources are consumed and used to meet nutritional and economic
needs. For some groups, they are also consumed or used for cultural, traditional, or religious purposes.
For members of these groups, the conventional understandings of the "health benefits" or "economic
benefits" of catching, harvesting, preparing, and eating fish, aquatic plants, and wildlife do not
adequately capture the significant value these practices have in their lives and die life of their culture. The
harms caused by degradation of aquatic habitats and depletion of fisheries, moreover, do not only affect
the present generation. They take their toll on future generations and on the transfer of knowledge from
one generation to the next (e.g., ecological knowledge, customs and traditions surrounding harvest,
preparation and consumption of aquatic resources).
Many of the rivers, streams, bayous, bays, lakes, wetlands, and estuaries that support these
resources on which communities and tribes depend have become contaminated and depleted.
Contamination is causing the communities' and tribes' everyday practices - their ways of living - to
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serve as a source of exposure to a host of substances toxic to humans and other living things. The
depletion of aquatic environments and resources also threatens these groups' subsistence, economic,
cultural, traditional, and religious practices. Aquatic ecosystems are contaminated with mercury, PCBs,
dioxins, DDT and other pesticides, lead and other metals, sediments, fecal coliform and other bacterial
and viral contaminants — in short, a host of toxins, most of which are particularly troubling because they
persist in the environment for great lengths of time and because they bioaccumulate in the tissues of fish,
aquatic plants, and wildlife, existing in greater quantities higher up the food chain.
For many low-income communities, communities of color, and tribes there are no real
alternatives to eating and using fish, aquatic plants, and wildlife. For many members of these groups it is
entirely impractical to "switch" to "substitutes" when the fish and other resources on which they rely
have become contaminated. There are numerous and often insurmountable obstacles to seeking
alternatives (e.g., fishing "elsewhere," throwing back "undesirable" species of fish, adopting different
preparation methods, or substituting beef, chicken or tofu). For some, not fishing and not eating fish are
unimaginable for cultural, traditional, or religious reasons. For the fishing peoples of the Pacific
Northwest, for example, fish and fishing are necessary for survival as a people - they are vital as a matter
of cultural flourishing and self-determination.
When health and environmental agencies respond to contamination and its impacts, they typically
employ one of both of two general strategies: risk avoidance, whereby risk-bearers are encouraged or
required to change the practices that expose them to contamination (e.g., through fish consumption
advisories, directed to those who eat fish) or risk reduction, whereby risk-producers are required to
cleanup, reduce, or prevent contamination (e.g., through water quality standards, applied to industrial
sources that discharge contaminants into surrounding waters). In either event, agencies rely on
assumptions about fish consumption rates, practices, and needs that reflect the circumstances of the
general population, but often are not reflective enough of the circumstances of affected communities and
tribes. Agencies' approaches to risk assessment, risk management, and risk communication similarly fall
short of taking into account that affected groups consume and use fish, aquatic plants, and wildlife in
different cultural, traditional, religious, historical, economic, and legal contexts than the "average
American." These observations have policy implications that are taken up in the remaining chapters.
Chapter One: Research Methods and Risk Assessment Approaches
Chapter One focuses on the tools that agencies use to define, evaluate, and respond to the
adverse health impacts from contaminated aquatic environments. It examines the research methods that
agencies use to obtain information about the lives, practices, and circumstances of affected communities
and tribes. It also examines the risk assessment approaches that agencies employ to evaluate and
address these health impacts.
This chapter begins by noting that agencies typically focus on "adverse impacts to human
health" that tend to focus narrowly on individuals and physiological harms. Some affected groups, by
contrast, may view the harms from contamination more broadly: they are not only physiological, but
psychological, social, and cultural; which may not only impact an individual, but a group overall.
This chapter then devotes considerable discussion to differences in various groups'
circumstances of exposure. It documents the marked differences in how much fish is eaten (measured
by fish consumption rates) between the general population and higher-consuming "subpopulations" such
as ldw-income communities, communities of color, and tribes. It canvases agencies' standard
assumptions about the fish, plant, and wildlife species that people consume and use; the parts of these
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species they use; and the preparation methods they employ. It points out that these assumptions often
do not reflect the practices among the various affected groups. It observes the different cultural,
traditional, religious, historical, economic, and legal contexts in which many affected groups consume
and use aquatic resources. It takes up the issues of aggregate or multiple exposures and cumulative
risks, noting that whereas agencies' current methods proceed as if humans were exposed to a single
contaminant at a time, humans are actually often exposed to multiple contaminants at a time or in
succession, and often by more than one route and pathway of exposure. This is especially likely to be
the case for many members of low-income communities, communities of color, and tribes. Each of the
considerations raised here contributes to the observation that agencies currently underestimate the extent
to which members of these groups are exposed to environmental contaminants. The result is that
standards set or advisories issued based on these estimates will not be sufficiently protective of these
affected groups.
This chapter next considers the different susceptibilities and "co-risk" factors that may
characterize affected groups and their members, noting again that these differences are unlikely to be
accounted for by current agency approaches.
This chapter then explores suppression effects and their implications. A suppression effect
occurs when a fish consumption rate for a given subpopulation reflects a current level of consumption
that is artificially diminished from an appropriate baseline level of consumption for that subpopulation.
The more robust baseline level of consumption is "suppressed," inasmuch as is does not get captured
by the fish consumption rate. Suppression effects may arise as a result of contaminated aquatic
ecosystems, depleted aquatic ecosystems and fisheries, or both. When agencies set environmental
standards using a fish consumption rate based upon an artificially diminished consumption level, they
may set in motion a downward spiral whereby the resulting standards permit further contamination
and/or depletion of the fish and aquatic resources. This chapter discusses the policy implications of
suppression effects.
Finally, this chapter addresses research methods relevant to risk assessment, risk management,
and risk communication. Much of the preceding discussion is brought to bear, as it underscores the fact
that it will often be crucial to the relevance, accuracy, and acceptability of research in these areas that the
affected community or tribe be central to the process throughout. This is not only a matter of
community access or tribal consultation, but, importantly, a matter of scientific defensibility. There are
currently sizeable gaps in the data and methods that EPA and other agencies use to assess, manage, and
communicate risk, and it is often the case that these gaps can only be filled by community- and tribally-
based reseairch. As the large literature on "participatory research" documents, affected communities and
tribes have expertise that is simply not going to be able to be replicated by non-member researchers.
Finally, it will be important to ensure that this community participation and tribal consultation is
adequately funded and supported technically.
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Chapter Two: Utilization of Existing Legal Authorities
Chapter Two discusses agencies' risk reduction efforts, that is, strategies that look to risk-
producers to prevent or reduce contamination in the first place, and to cleanup and restore those
environments that are already contaminated. It examines die legal authorities that might be invoked more
effectively to sustain healthy aquatic ecosystems and to protect the health and safety of people
consuming or using fish, aquatic plants, and wildlife.
This chapter begins by providing background on the contaminants of greatest concern, not only
from the perspectives of health and environmental agencies, but also from the perspective of affected
communities, tribes, and their members. Chief among the contaminants of concern are mercury, PCBs,
dioxins, DDT, and chlordane. In addition to these five contaminants, at least eight others are a source of
concern, given that they are highly toxic,; they are persistent once released into the environment; and they
bioaccumulate in the tissues of fish and wildlife. These eight are: aldrin, dieldrin, endrin, heptachlor,
hexachlorobenzene, mirex, toxaphene, and fiirans. Finally, a host of other contaminants are troubling
here, including: lead and other metals; numerous other pesticides; fecal choliform, marine biotoxins and
various other bacterial and viral contaminants; sediment and silt loadings; and numerous others. This
chapter outlines briefly the health effects of each of the major contaminants of concern, as well as its
sources in the environment.
This chapter discusses how EPA might better prevent and reduce contamination in the first
place, focusing primarily on efforts under the Clean Water Act (CWA) and secondarily on efforts under
other legal authorities, such as the Clean Air Act (CAA). It then turns its discussion to how EPA might
better clean up and restore those aquatic ecosystems that are already contaminated. Again, it looks first
to the authority provided by the Clean Water Act, and then discusses other legal authorities, such as
"Superfund," the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA).
Chapter Three: Fish Consumption Advisories
Chapter Three discusses agencies' risk avoidance strategies, focusing on fish and wildlife
consumption advisories in particular and risk communication in general. It asks what role fish
consumption advisories should play in efforts to protect more effectively the health and safety of people
consuming or using tfiese resources. It considers how agencies can identify, acknowledge, and meet the
real needs of those who are affected - how they can woik to make affected groups whole once the fish,
aquatic plants, and wildlife on which they depend have already become contaminated.
The chapter first takes up the question of the advisories' proper role. Drawing on the
observations presented above about the impracticality and/or unimaginability of reducing fish
consumption or of altering practices connected with catching, harvesting, preparing and eating fish, this
chapter notes that the answer to the question of fish consumption advisories' role will likely be different
for different communities or tribes. Importantly, it should be for the affected group to determine what
will be appropriate from its perspective. Tribes' particular political and legal status as sovereign nations
must also be taken into account here, as tribes will be in the position, in their governmental capacities, of
deciding for themselves what role fish consumption advisories should play in their environmental
orotection efforts.
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This chapter next explores fish consumption advisories' "effectiveness." It discusses briefly the
potential differences in how "effective" might be defined by various agencies and by various affected
communities and tribes. It reviews the current state of research regarding how those to whom advisories
are directed respond to this information, observing that the available evidence suggests that low-income,
people of color, those with limited English proficiency, and those with relatively little formal education
are less likely to be aware of advisories.
In light of this evidence, and in view of current EPA efforts to this end, this chapter then devotes
considerable attention to the matter of improving the effectiveness of risk communication and fish
consumption advisories. As a general matter, it observes that if risk communication is truly to be a
"two-way street" - if communication is actually to occur, - affected groups must be involved as partners
or co-managers at every point in the risk communication process. All of the elements of effective
advisories - including "audience identification," "needs assessment," message content, media choice,
implementation, and evaluation - will fall into place if agencies and affected communities or tribes
consider together the questions and answers. In general, EPA and other agencies should work to
reconceptualize risk communication approaches from large-scale, abstract, one-time efforts to develop
and disseminate various communication "products" (e.g., developing and posting fish advisory signs) to
local, contextually-supported, ongoing efforts to establish and maintain relationships with a particular
affected community or tribe.
More specifically, it will be important for EPA and other agencies to recognize the diverse
contexts, interests, and needs that characterize the various affected groups - including, but not limited to
groups with limited English proficiency; groups with limited or no literacy; low-income communities;
immigrant and refugee communities; African American communities; various Asian and Pacific Islander
communities and subcommunities (e.g., Mien, Lao, Khmu, and Thadium communities within the larger
Laotian community in West Contra County, CA); various Hispanic communities and subcommunities
(e.g., Carribean-American communities in the Greenpoint/Williamsburg are of Brooklyn, NY); various
Native Americans, Native Hawai'ians, and Alaska Natives (including members of tribes and villages,
members of non-federally recognized tribes, and urban Native people).
"Affected groups" also refers to subgroups within these larger groups, including but not limited
to nursing infants; children; pregnant women and women of childbearing age; elders; traditionalists
versus modernists in terms of practices surrounding fish consumption, and subgroups defined by
geographical region. Affected group involvement in aiding identification and understanding of the
diverse contexts, interests, and needs of these various groups will, perhaps unsurprisingly, be essential.
The content of the message and the media selected need to be effective and appropriate from the
perspective of the affected group, and this chapter examines several specific considerations to this end.
Implementation efforts, too, must be effective and appropriate from the perspective of those affected,
who will be particularly well-positioned to take the lead in implementing an advisory and outreach
strategy that has been developed by and for their group. Evaluation will also be most usefully conducted
together with members of the affected group, whose ability to help define and measure "success" will
again often be unparalleled.
Additionally, this chapter observes that capacity-building is in and of itself and environmental
justice issue, for both communities and tribes. Involvement by those affected at each point in the risk
communication process would go far toward enabling them to shape the process so that it is not only
relevant and appropriate, but also useful and empowering from the perspective of the community or
tribe.
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Finally, this chapter notes that here again, as in the context of research in general, financial and
technical support will be crucial to enabling communities and tribes fully to be involved.
Chapter Four: American Indian Tribes and Alaskan Native Villages
Chapter Four addresses issues unique to American Indian tribes, Alaskan Native villages, and
their members. Although tribes and their members share many of the concerns discussed in the
preceding chapters, tribes' political and legal status is unique among affected groups and so warrants
separate treatment. Tribes are governmental entities, recognized as possessing broad inherent authority
over their members, territories, and resources. As sovereigns, federally recognized tribes have a
government-to-government relationship with the federal government and its agencies, including the EPA.
Tribes' unique legal status includes a trust responsibility on the part of the federal government. For
many tribes, it also includes treaty rights. Other laws and executive commitments, too, shape the legal
obligations owed to American Indian tribes and Alaska Native tribes and their members.
This chapter describes the EPA's Indian Policy for the Administration of Environmental
Programs on Indian Reservations; tribes' efforts to assume responsibilities for administering
environmental programs on their reservations under various federal environmental laws - notably, the
Safe Drinking Water Act, the Clean Water Act, the Clean Air Act, and CERCLA; and tribes' work as
co-managers of cleanup and restoration efforts and/or as Natural Resource Damage Trustees. In these
and other roles, tribes will have environmental justice concerns of a different and complex nature.
Finally, this chapter outlines the particular circumstances of tribes and their members with
respect to susceptibilities and co-risk factors; these have implications, as discussed more generally in
Chapter One, for agencies' risk assessment, risk management, and risk communication approaches.
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1 BACKGROUND
2
3 The National Environmental Justice Advisory Council (NEJAC) is a federal advisory
4 committee of the U.S. Environmental Protection Agency (EPA). Under its charter, the NEJAC's
5 mission is to provide advice and recommendations to the EPA Administrator on matters related to
6 environmental justice. In July, 2000, EPA requested that NEJAC address issues related to the
7 relationship between fish consumption, water quality, and environmental justice. This issue is to
8 be the focus of the NEJAC's December 3-6,2001 meeting in Seattle, Washington.
9 EPA constituted a NEJAC Fish Consumption Work Group to assist the NEJAC in
10 developing a report and recommendations on this issue. The following is the Pre-Meeting
11 Discussion Draft of the Fish Consumption Work Group. The Report focuses on the question:
12 How should EPA improve the quality, quantity, and integrity of our Nation's
13 aquatic ecosystems in order to protect the health and safety of people
14 consuming or using fish, aquatic plants, and wildlife?
15 This chapter provides background necessary to address adequately the above policy
16 question. This chapter seeks to explain why contaminated and depleted aquatic ecosystems are an
17 environmental justice issue. In addition, this chapter seeks to present the dimensions of the
18 problem from the perspectives of the various individuals, communities, groups, and tribes
19 affected.
20 This chapter begins in Part A by gathering the accounts of a number of different people
21 who suffer the ill effects of contaminated and depleted aquatic ecosystems. Although these stories
22 do not catalogue exhaustively the harms felt by all of those who are affected, it is hoped that, taken
23 together, they will provide a sense of the breadth and enormity of the impacts on communities of
24 color, low-income communities, and tribes. And it is hoped that, in their diversity, they will
25 provide a sense of the differing dimensions of the ill effects for different communities, groups, and
26 tribes. This chapter begins with these accounts because they are properly the starting point for any
27 discussion of environmental justice policy: they present the real stories - the stories told from the
28 perspectives of those on the ground, and not as they need to be told to fit into the bins and
29 categories created by environmental laws and regulations. These accounts should frame the
30 discussion - rather than be merely "inputs" into a discussion already framed in someone else's
31 terms.
32 In order to speak to government agencies that work within the boundaries of environmental
33 laws and regulations, however, it seems useful to work to "translate" these stories so that their
34 relevance to agencies' efforts can be appreciated. NEJAC's attempt at translation will often mean
35 breaking things down and naming their component parts in ways that are more likely to be
36 understood by agencies, given agencies' current categories, programs, and approaches. So, for
37 example, in seeking to convey the importance of salmon in his life, a member of the Fourteen
38 Confederated Bands of the Yakama Nation may invoke terms and concepts familiar to agencies
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NEJAC Fish Consumption Work Group
November, 2001
Please Do Not Cite or Quote 1
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1 such as "nutrition," "health," "economy," "resource," "subsistence," "culture," and "treaty-
2 protected;" he may refer to laws and programs that separately address the "air," "water quality,"
3 "water quantity," and "sediments" that together are home to the salmon.
4 This attempt at translation may entail loss, however: it may fail fully to capture the
5 multiple and interrelated dimensions of what is at stake; or it may risk misunderstanding or
6 mistranslation Yet an attempt at translation may be necessary for those affected to convey their
7 recommendations to agency decision makers. Nonetheless, it is crucial that agencies also work to
8 hear the stories in their original, whole form and to consider what these stories have to teach them
9 - how they might serve to reframe agencies' approaches altogether. It is important that agencies
10 strive to reduce the gulf that must be bridged by translation and so to minimize the loss that
11 accompanies translation. With these considerations in mind, the remainder of this Report looks to
12 discuss the issues in the terms used by environmental agencies and in environmental laws and
13 regulations, while at the same time referring often to the words of those affected as touchstones for
14 deliberation. Part B of this chapter presents an overview of these issues.
15 A. DIVERSE IMPACTS; MULTIPLE DIMENSIONS: THE ACCOUNTS OF
16 ENVIRONMENTAL INJUSTICE
17 [Accounts will be added after NEJAC meeting. These accounts will be
18 presented to the NEJAC during the Public Comment Periods and other
19 sessions.]
20 B. THE COMPONENTS OF ENVIRONMENTAL INJUSTICE
21 1. Communities of Color, Low-Income Communities, and Tribes Depend on Fish,1
22 Aquatic Plants, and Wildlife
23 Put simply, communities of color, low-income communities, and tribes depend on healthy
24 aquatic ecosystems and the fish, aquatic plants, and wildlife that these ecosystems support. While
25 there are important differences among the various communities of color, low-income communities
26 and tribes, members of these groups depend on fish, aquatic plants, and wildlife to a greater extent
27 and in different ways than does the general population.
'The term "fish," here and throughout this Report, is meant to include shellfish and marine
invertebrates, unless the particular context suggests otherwise.
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1 Fish are a healthful source of dietary protein and other nutrients for humans.2 Fish are
2 relatively low in fat, and are a good source of selenium. Fish, aquatic plants, and wildlife are
3 major dietary staples for some individuals, and those who subsist chiefly or solely on fish, aquatic
4 plants, and wildlife are more likely to be members of communities of color, low-income
5 communities, or tribes. Thus, for example, a recent survey revealed that whereas 60% of "non-
6 white" (primarily African-American) fishers on the Detroit River fished there to meet their needs
7 for food or for a combination of food and recreation, only 21.7% of white fishers indicated that
8 they fished for reasons combining food and recreation, and none indicated that they fished only to
9 meet their needs for food.3 In Alaska, "[a]mong Yupiks of Gambell, over one-half of their
10 protein, iron, vitamin B-12, and omega-3 fatty acids come from subsistence foods."4
11 Fish, aquatic plants, and wildlife are important food sources for economic reasons: it
12 generally costs less to purchase many kinds of fish than it costs to purchase other sources of animal
13 protein,5 and if someone can fish, gather, harvest, or hunt nearby, he or she can bypass altogether
14 the need to get to a store and to purchase food. For some of these fishers, fishing provides not
15 only food for their own consumption and consumption by relatives and neighbors, but also an
16 important source of income and livelihood. As Delbert Frank, Sr., Warm Springs, explains:
17 I used to fish at Celilo falls before The Dalles Dam was built. We used to be able to fish
18 all year long. We caught lots of different kinds offish - spring chinook, summer
19 chinook, bluebacks, fall chinook, steelhead, and coho. When the fish were coming in
20 good, I could catch one ton of salmon a day. And, it didn't take a lot offancy gear or
21 expensive boats to fish. For the cost of one or two balls of twine, about 6 to 12 dollars,
22 I could make the fishing gear necessary for me to catch enough fish to supply my family
23 and many others for a whole year.6
24 A low-income African-American fisher on the Detroit River observes:
2See, e.g., Yvonne Smith and Laura Berg, Ancient Tradition, Modern Reality: Is There a
Future for a Salmon-Based Culture?, 1 Wana Chinook Tymoo 14 (1998); Renate D. Kimbrough,
Consumption of Fish: Benefits and Perceived Risk, 33 J. Toxicology & Envtl. Health 82-83
(1991).
3Patrick C. West, Invitation to Poison? Detroit Minorities and Toxic Fish Consumption
from the Detroit River, in Race and the Incidence of Environmental Hazards: A Time for
Discourse 96, 98 (Bunyan Bryant and Paul Mohai, eds. 1992).
4Elizabeth D. Nobmann, Nutritional Benefits of Subsistence Foods (1997) available at
www.nati veknowledge .org/db/fi les/aboutnt2 .htm.
5See, e.g., Kimbrough, supra at 83.
6Columbia River Inter-Tribal Fish Commission, Celilo Falls, available at
www.critfc.org/text/CELILO.HTM.
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November, 2001
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1 I catch to eat fish. I catch a lot offish and bring a lot home to eat. Bring home Perch
2 and Bass. I eat more because I like fish and it is easier to feed a family because of
3 money.1
4 For some groups, fish, aquatic plants, and wildlife are consumed or used for cultural,
5 traditional, or religious purposes as well. For members of these groups, conventional dominant
6 society understandings of the "health benefits" or "economic benefits" of catching, harvesting,
7 preparing, and eating fish, aquatic plants and wildlife do not adequately capture the place of these
8 practices in their lives and the life of their culture. Cultural, traditional, and religious
9 understandings will, of course, differ among various groups; the following excerpts provide but a
10 few accounts. Winona LaDuke, Mississippi Band of Anishinaabeg, explains:
11 There are many wild rice lakes on the White Earth reservation in northern Minnesota;
12 my community, the Anishinaabeg, calls the rice Manoomin, or a gift from the Creator.
13 Every year, half our people harvest the wild rice, the fortunate ones generating a large
14 chunk of their income from it. But wild rice is not just about money and food. It's about
15 feeding the soul.8
16 Similarly, Horace Axtell, Nez Perce, explains:
17 According to our religion, everything is based on nature. Anything that grows or lives,
18 like plants and animals, is part of our religion. The most important element we have in
19 our religion is water. At all of the Nez Perce ceremonial feasts the people drink water
20 before and after they eat. The water is a purification of our bodies before we accept the
21 gifts from the Creator. After the feast we drink water to purify all the food we have
22 consumed. The next most important element in our religion is the fish because fish
23 comes from water. It doesn 't matter what kind offish. If we have suckers or eels or
24 steelhead or salmon, we honor it next after we drink the water. Then we name whatever
25 fish we have, and then everyone takes a small bit before we eat the rest of the food. The
26 next element is the game meat like deer, elk, and moose. That's how we honor the food
27 we eat, especially the fish, because it is the next element after the water. The chinook
28 salmon is more favored because it is the strongest fish and the most tasty. Chinook
29 Salmon is the fish we try to bring to the long house.9
7Pat West and Brumlda Vargus, A Subsistence-Culture Model for High Toxic Fish
Consumption by Low Income Afro-Americans from the Detroit River 16 (forthcoming 2002)
(listing fisher's income as $5,000 - $9,999).
8 Winona LaDuke, All Our Relations: Native Struggles for Land and Life 115 (1999).
9Dan Landeen and Allen Pinkham, Salmon and His People: Fish and Fishing in Nez Perce
Culture 55 (1999).
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November, 2001
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1 The harms occasioned by the degradation of aquatic habitats and the depletion of fisheries,
2 moreover, are not only visited on the present generation. Part of the affront to the culture and
3 social fabric of some communities and tribes for whom fish and fishing are vital comes from the
4 diminished opportunities for inter-generational transfer of knowledge - especially ecological
5 knowledge about places and natural systems - and for other aspects of inter-generational
6 socialization. The acts of inter-generational transfer of customs and traditions surrounding
7 catching, preparing, and consuming fish are themselves important to the maintenance of social and
8 cultural health.10 As an African-American fisher on the Detroit River explains:
9 My stepdad taught me how to fish. He is from a little town in Mississippi. Most people
10 around here who fish were from the South and our parents were from the South and they
11 were used to fishing and then they taught their kids. When I was little we used to eat
12 fish a lot but that was when the water was clean.... I do eat the fish that I catch."
13 The Columbia River Inter-Tribal Fish Commission, for example, describes the extensive tribal
14 ecological knowledge that was "transmitted to succeeding generations as part of their inheritance,"
15 and notes that "[p]lants, animals, and especially places were ... repositories for historical, social,
16 and spiritual lessons.'"2 The concept of "risk" then, should include "cultural risk:"
17 Cultural risk [includes] ecological impacts that reduce or impair the inter-generational
18 transfer of ecological knowledge used for implementing traditional holistic
19 environmental management practices.13
20 Indeed, for many members of communities of color, low-income communities and tribes,
21 there are no real alternatives to depending on fish, aquatic plants, and wildlife. In some cases, for
22 example, it is utterly impractical to suggest that people "switch" to "substitute sources of protein"
23 when the fish on which they rely to put food on die table have become contaminated. Such
24 suggestions are often unrealistic, given the many obstacles to the imagined alternatives: there may
10See, e.g., Pat West and Brunilda Vargus, A Subsistence-Culture Model for High Toxic
Fish Consumption by Low Income Afro-Americans from the Detroit River 9-10, 18-21
(forthcoming 2002) (discussing importance of inter-generational socialization for African-
American community members in Detroit, many of whom brought practices surrounding fish and
fishing with them as they and their families moved from the rural south to the industrial north).
"Pat West and Brunilda Vargus, A Subsistence-Culture Model for High Toxic Fish
Consumption by Low Income Afro-Americans from the Detroit River 20 (forthcoming 2002).
l2Columbia River Inter-Tribal Fish Commission, Cultural Context available at
http'.//www.critfic.org/text/TRP_cul.htm.
13Columbia River Inter-Tribal Fish Commission, Comments to EPA Administrator Carol
Browner on the Draft Revisions to the Methodology for Deriving Ambient Water Quality Criteria
for the Protection of Human Health, January 14, 1999 at 10.
PRE-MEETING DISCUSSION DRAFT
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1 be no uncontaminated bays, lakes, or rivers for miles around; even if another fishing spot can be
2 found just a little farther away, it may be difficult or impossible to reach without a car or other
3 transportation - and it may cost too much for the gas or the bus or train ticket to get there; or
4 another fishing spot may traditionally be someone else's fishing spot, such that it wouldn't be
5 appropriate simply to go there; and there may be no adequate substitutes from other food sources at
6 the grocery store - not being able to eat fish may mean having to look to foods that are poorer
7 quality from a nutritional and health perspective. As Mark Davis, Coalition to Restore Coastal
8 Louisiana, Baton Rouge, explains:
9 The advisories that are issued are just not relevant to the people here ... it's as if no
10 one believes that there really are subsistence fishers. Suddenly it is my responsibility as
11 a risk-bearer to figure out what the advisories mean, what my level of risk is ... as if
12 there were a choice. People here walk or bike to a drainage ditch, to a bayou, to the
13 Mississippi River — how can these people be expected to go fish somewhere else?'4
14 An African-American fisher on the Detroit River explains:
15 I think that mostly black people fish on the river (due to lack of money); if they have the
16 money they can go anywhere and fish - wherever they want. A lot of us don't have the
17 boats or the cars to get to the good fish. We settle for the fish here but it's all good. I
18 still get the fish. Some people fish because they have to fish. Fish is good food and it is
19 cheap but river fish is the cheapest and I don't blame people for eating it.15
20 According to Angela Wilson, Founder, Environmental Justice Action Group, Portland, Oregon:
21 It is unrealistic to think that the community members who fish in the Columbia Slough
22 can simply "eat peanuts and tofu," as the agencies suggest.16
23 Yin Ling Leung, Executive Director of Asians and Pacific Islanders for Reproductive Health,
24 California, summarizes:
"Telephone Interview with Mark Davis, Coalition to Restore Coastal Louisiana (August
22, 2001).
15Pat West and Brunilda Vargus, A Subsistence-Culture Model for High Toxic Fish
Consumption by Low Income Afro-Americans from the Detroit River 16 (forthcoming 2002).
l6Angela Wilson, Environmental Justice Action Group, Presentation at Public Interest
Environmental Law Conference, University of Oregon (March, 2001).
PRE-MEETING DISCUSSION DRAFT
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1 To our communities, being able to fish means being able to either put food on the table,
2 or basically eat a much less nutritious meal. I think that's a non-choice.17
3 In some cases, too, not fishing and not eating fish are unimaginable for cultural, traditional,
4 or religious reasons. For the fishing peoples of the Pacific Northwest, for example, fish and
5 fishing are necessary for survival as a people - to fish is to be Nez Perce.18 Fish and fishing are
6 vital as a matter of cultural flourishing and self-determination. The importance of fish, especially
7 salmon, to these peoples is reflected in language, in treaties, in past and present tribal fisheries
8 management and environmental restoration efforts, and in the ongoing political and legal struggles
9 for the survival of the salmon and the way of life that is bound up with the salmon. Don Samson,
10 Umatilla, Executive Director, Columbia River Inter-Tribal Fish Commission, explains:
11 The reason I've been fishing is more for my own subsistence, to bring fish home. But
12 maybe more importantly now these days is to maintain the tradition of fishing - of going
13 up to the mountains where my father, my elders fished before me. So it's something that
14 we've got to carry on - that's really why I fish. We've got to pass it on to our children.
15 We have to have that for them in order to be Indians — in order to survive and carry on
16 the things that were placed here for us, and carry on what our elders tell us and teach
17 us.19
17Audrey Chiang, Asian Pacific Environmental Network, A Seafood Consumption Survey
of the Laotian Community in West Contra Costa County, California 1 (1998).
18See, e.g., Dan Landeen and Allen Pinkham, Salmon and His People: Fish and Fishing in
Nez Perce Culture 156 (1999) (quoting Del White, Nez Perce: "People need to understand that the
salmon is part of who the Nez Perce people are. It is just like a hand is a part of your body. The
salmon have always been part of our religion. You can't separate the two.").
1'Videotape: My Strength is From the Fish (Columbia River Inter-Tribal Fish
Commission, 1994).
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November, 2001
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1 Billy Frank, Jr., Nisqually, Chairman, Northwest Indian Fisheries Commission, explains:
2 Fishing defines the tribes as a people. It was the one thing above all else that the tribes
3 wished to retain during treaty negotiations with the federal government 150 years ago.
4 Nothing was more vital to the tribal way of life then, and nothing is more important
5 now. .. . The tribes have fought too hard for too long to let the salmon and their treaty
6 rights to harvest salmon go extinct. This summer and fall you will see tribal fishermen
7 doing what they have always done — fish.20
8 Of course, for many communities of color, low-income communities, and tribes, the
9 nutritional, economic, and traditional or cultural aspects of fishing, preparing and eating fish are
10 interrelated. Members of these communities and tribes thus in many cases depend on fish for a
11 combination of the above reasons. For example, a recent survey of first- and second-generation
12 Asian and Pacific Islanders in King County, Washington - including members of Cambodian,
13 Chinese, Filipino, Hmong, Japanese, Korean, Laotian, Mien, Samoan, and Vietnamese ethnic
14 groups - observes:
15 [Asian and Pacific Islanders] consider seafood collection and consumption as healthy
16 activities that reflect a homelike lifestyle and may fish for economic necessity,21
17 Similarly, in Green Bay, Wisconsin:
18 Eating fish forms a regular part of the diet and culture for the Asians (Hmong and
19 Laotians) living in the Green Bay area.22
20 And, in the Greenpoint/Williamsburg ("G/W") community in the Borough of Brooklyn in New
21 York City:
22 In G/W, some anglers consume as many as two meals per day of fish caught in the East
23 River, which forms the western boundary of G/W. Approximately 38 percent of the G/W
24 population lives below the poverty line, suggesting that many of the anglers fishing in
25 this community may be urban subsistence anglers who rely on fish caught in the East
26 River as a free source of nutrition. In addition, fishing is a way of life rooted in the
20Billy Frank, Jr., A Statement from Billy Frank, Jr. available at
www.nwifc.wa.gov/esa/start.htm.
2lRuth Sechena, et al., Asian and Pacific Islander Seafood Consumption Study (1999).
22Dyan M. Steenport, et al., Fish Consumption Habits and Advisory Awareness Among
Fox River Anglers, Wisconsin Medical Journal (November, 2000) available at
www.wismed.org/wmi/nov200Q/fish.html.
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1 cultural heritage for many of the black and Hispanic anglers observed fishing on the
2 piers in G/W, many of whom come from Carribean fishing culturesP
3 Finally, the health of humans and the health of aquatic ecosystems are intimately related,
4 such that compromised aquatic ecosystems are of concern in and of themselves, with the
5 contamination of fish, aquatic plants, and wildlife but some of the devastating effects. Water of
6 sufficient quality and quantity is vital to sustain all life. To allow waters to be degraded and
7 depleted is to undermine health, traditions, cultures, and economies. To allow waters to be
8 degraded and depleted is to neglect obligations, including the obligation to sustain tribal
9 homelands as contemplated by federal Indian treaties and other laws. As Frank Tenorio,
10 Governor, San Felipe Pueblo, explained:
11 There has been a lot said about the sacredness of our land which is our body; and the
12 values of our culture which is our soul; but water is the blood of our tribes; and if its
13 life-giving flow is stopped, or it is polluted, all else will die and the many thousands of
14 years of our communal existence will come to an end.24
15 Consider in this vein, too, Langston Hughes's famous poem, "The Negro Speaks of Rivers:"
16 I've known rivers ancient as the
17 world and older than the flow of
18 blood in human veins.
19 My soul has grown deep like the rivers.
20 I bathed in the Euphrates when
21 dawns were young,
22 I built my hut near the Congo and
23 it lulled me to sleep,
24 I looked upon the Nile and raised
25 the pyramids above it,
26 I heard the singing of the Mississippi
27 when Abe Lincoln went down to
28 New Orleans,
29 And I've seen its muddy bosom turn
30 all golden in the sunset,
31 I've known rivers;
32 Ancient, dusky rivers;
23Industrial Economics, Inc., Community-Specific Cumulative Exposure Assessment for
Greenpoint/Williamsburg New York 3-1 (1999).
24Elizabeth Cheechio and Bonnie G. Colby, Indian Water Rights: Negotiating the Future
at 1 (June 1993) (quoting Frank Tenorio, Governor, San Felipe Pueblo, Indian Water Policy in a
Changing Environment at 2 (1982)).
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1 My soul has grown deep like
2 the rivers.25
3 2. Contamination of Aquatic Ecosystems and the Fish, Plants, Wildlife, and People
4 They Support
5 The rivers, streams, bayous, bays, lakes, wetlands, and estuaries that support the fish,
6 aquatic plants, and wildlife on which communities and tribes depend have been allowed to
7 become contaminated and depleted. The waters to which communities and Tribes look to meet
8 their nutritional, economic, traditional, cultural, religious and other needs also have become
9 vectors of toxins. Contamination now renders communities' and tribes' everyday practices - their
10 ways of living - a source of exposure to a host of substances toxic to humans and other living
11 things. Depletion, too, threatens communities' and tribes' subsistence, traditional, cultural, and
12 religious practices.
13 Yet toxic chemicals and other contaminants have been and continue to be permitted to be
14 emitted, discharged, dumped, or leaked into the air, water, soils, and sediments that together make
15 up home to all life. Once in the environment, these contaminants behave in various ways: some
16 move - traveling over distances or cycling between air and water; some linger - persisting for
17 months or years; some biodegrade - becoming more or less toxic chemical successors; some
18 bioaccumulate in the tissues of aquatic organisms, fish and wildlife - existing in increasing
19 quantities higher up the "food chain." Eventually, humans that consume and use fish, aquatic
20 plants, and wildlife may be exposed to the toxins concentrated in their tissues.
21 Toxic chemicals and other contaminants also contribute to the depletion of aquatic
22 resources. These other threats (e.g., from logging, mining, grazing, and agricultural operations;
23 from hydropower; from development) compromise water quality and quantity, destroy habitat for
24 fish, aquatic plants and wildlife, and otherwise contribute to the depletion of the resources on
25 which communities and tribes depend.
26 As a result, aquatic ecosystems are damaged from the Penobscot River to the San
27 Francisco Bay, from Bayou d'Inde to the Great Lakes, from the Columbia Slough to the St. James
28 River. These aquatic ecosystems are contaminated when mercury is emitted to the air from coal-
29 fired power plants and other sources of fossil fuel combustion or from medical waste incinerators
30 - this mercury is then deposited to surface waters and to soils. They are contaminated when PCBs
31 are allowed to remain in sediments without being cleaned up - these PCBs persist for long periods
32 of time and are released to waters, air and soils. They are contaminated when dioxins are
33 discharged to the water from pulp and paper mills - these dioxins are often contained for long
34 periods in sediments and may, in turn, be resuspended to surface waters. These and multiple other
"[originally published in 1921; get source]
PRE-MEETING DISCUSSION DRAFT
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1
2
sources and contaminants have wreaked incalculable harms to aquatic ecosystems and the fish,
aquatic plants and wildlife they support.
3 James Ransom, Director, Haudenosuanee Environmental Task Force, recounts the destruction of
4 the portion of the St. Lawrence River that is Akwesasne, home to the St. Regis Mohawk:
5 Akwesasne or St. Regis is like most Native communities. We were a fishing, farming,
6 hunting, trapping, and gathering community. These lifestyles helped to support an
7 earth-based value system. ... We were sustainable societies. Everything we needed was
8 provided by the natural world. We followed the natural laws. It required that we only
9 take from the natural world what we need and that we use all that we take. . . This all
10 changedfor the Mohawks of Akwesasne in the 1950s... .In 1958, the St. Lawrence-FDR
11 Power Project was constructed on the St. Lawrence River just upriver from Akwesasne.
12 Low-cost hydroelectric power allowed two new industries to open, Reynolds Metal
13 company, an aluminum smelter, and General Motors Powertrain, an automobile parts
14 manufacturer. It allowed a third industry, ALCOA, an aluminum smelter, to expand
15 operations.
16 By the early 1960s, cattle within the territories of the Mohawks began feeling the effects
17 offlouride poisoning from the aluminum smelters. By 1981, PCB contamination of the
18 General Motors site came to light. In 1983, it became a federal superfund site. B 1987,
19 PCB problems at ALCOA and Reynolds became known as well. By 1989, a six-mile
20 stretch of the Grasse River and a two-mile stretch of the St. Lawrence River became a
21 federal superfund site because of PCB contamination. .. .
22 In 1986, a 67-inch length, 200 pound lake sturgeon was caught by Mohawk fishermen in
23 the St. Lawrence river. Parts of it were sent for PCB analysis. The results were
24 alarming as 3.41 parts per million (ppm) of PCBs were found in the meat, 7.95 ppm in
25 the eggs, and 10.20 ppm in the liver. The New York State PCB fish standard for human
26 consumption is 2.0 ppm. ...
27 Contamination of the St. Lawrence River resulted in a destruction of a subsistence
28 lifestyle for the Mohawk people. It destroyed hunting, fishing, farming, trapping, and
29 gathering activities. . . ,26
30 At a meeting of Alaskan Natives from the northwest arctic region, Herman Toolie, Savoonga,
31 expresses his concerns and the concerns of others in his village:
32 They have those - what do you call it? - PCBs? A lot of those were in the village. They
33 found gallons in the village around Northeast Cape. There were transformers that were
26James Ransom, Director, Haudenosuanee Environmental Task Force, in Proceedings of
the American Fisheries Society: Forum on Contaminants in Fish 25 (1999).
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1 leaking. We don't know if they took them out of the ground or not. I guess they took
2 them out. There used to be a lot of fish right there. We had our camp there not more
3 than a mile away from the site. There used to be lots of fish there but no more. There is
4 a whole bunch of concerns that these elders have. I wish I had a tape recorder and
5 could tape them.11
6 In introducing its tribally-conducted fish consumption study, the Suquamish Tribe recounts the
7 importance offish and shellfish, even in the face of the degraded water quality and habitat of the
8 Puget Sound:
9 The Suquamish culture finds its fullest expression in the acknowledged relationship of
10 the people with the land, air, water and all forms of life found within the natural system.
11 River systems, lakes and numerous small creeks historically supported abundant coho,
12 chinook, sockeye and chum runs, with other salmonids and marine fish available as
13 well. The same forests which sustained life in the riparian zones also harbored deer,
14 bear, and other wildlife. Vast expanses of intertidal habitat supported shellfish. By
15 virtue of the Treaty of Point Elliott, Suquamish rights to fish and interests in their
16 habitat were recognized to include the marine waters of Puget Sound from the northern
17 tip of Vashon Island to the Fraser River in Canada, including Haro and Rosario Straits
18 and streams draining into the western side of central Puget Sound.
19 Increased levels of development as well as pollutants from residential, industrial, and
20 commercial uses have resulted in degraded habitats and harvesting restrictions. There
21 were eleven Superfund sites within the immediate area of the Port Madison Indian
22 Reservation at the time the fish consumption survey was conducted.
23 Despite degraded water quality and habitat, tribal members continue to rely on fish and
24 shellfish as a significant part of their diet. All species of seafood are an integral
25 component of the cultural fabric that weaves the people, the water, and the land
26 together in an interdependent linkage which has been experienced and passed on for
27 countless generations.28
28 And in recounting the harms of intense industrialization along the lower Mississippi River and in
29 St. James Parish, Louisiana, the United Church of Christ Commission for Racial Justice reports:
30 Also presented as a negative economic impact of polluting industries by local residents
31 was the significant loss of wildlife and vegetation, which contribute to the subsistence
21 Alaska Traditional Knowledge and Native Foods Database, Native Concerns available
at www .nativeknowledee. org/db/concerns.asn.
28The Suquamish Tribe, Fish Consumption Survey of the Suquamish Indian Tribe of the
Port Madison Indian Reservation, Puget Sound Region 4 (2000).
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1 living of many St. James Parish residents. Fruiting tress such as pecan, jig, peach, and
2 others have died off. Fish, crayfish and oyster beds have been poisoned. And wildlife
3 important for subsistence hunting, such as rabbit and deer, have disappeared. Not only
4 have important food sources disappeared, but the ability of residents to gather and sell
5 these for cash has also gone. With the decline in the prosperity of local residents, many
6 local businesses have also left the area. A number of residents complained that they
7 must now commute great distances simply to buy groceries and other necessities.29
8 3. Different Exposure Circumstances and Contexts Characterize Communities of
9 Color, Low-Income Communities and Tribes
10 Consumption and use of contaminated fish, aquatic plants, and wildlife is the primary route
11 by which humans are exposed to many toxic contaminants. For example, consumption of
12 contaminated fish is considered to be the single greatest route of exposure to PCBs and a major
13 route of exposure to mercury. Consumption of contaminated fish is similarly a significant route of
14 exposure to chlordane, dioxins, DDT, toxaphene, and a litany of over 40 other contaminants.
15 Indeed, any contaminant that persists in aquatic environments and bioaccumulates in the fish and
16 wildlife that are supported by aquatic environments may find its way to humans when they
17 consume or use these fish and wildlife. EPA has recognized that fish and wildlife consumption, in
18 particular, is the chief route by which all humans are exposed to many of these "persistent and
19 bioaccumulative toxins" or PBTs.
20 Consumption and use of contaminated fish, aquatic plants, and wildlife is an especially
21 pressing concern for many communities of color, low-income communities and tribes, whose
22 members may (1) consume fish, aquatic plants, and wildlife in greater quantities than does the
23 general population; (2) consume and use different fish, aquatic plants, and wildlife than does the
24 general population; (3) employ different practices in consuming and using fish, aquatic plants, and
25 wildlife than does the general population; (4) consume and use fish, aquatic plants, and wildlife in
26 cultural, traditional, religious, historical, economic, and legal contexts that differ from those of the
27 general population.
28 When health and environmental agencies respond to the human health impacts from
29 contaminated aquatic environments, they typically frame the issue as one of harm to individuals'
30 physical health: the contaminants are carcinogens, or reproductive toxins, or endocrine disrupters,
31 or have multiple human health "endpoints." Health and environmental agencies then manage these
32 "health risks" by employing one or both of two general strategies: risk avoidance (whereby risk-
33 bearers are encouraged or required to change the practices that expose them to environmental
34 contamination, e.g. through fish consumption advisories, directed to those people who eat fish) or
35 risk reduction (whereby risk-producers are required to cleanup, reduce, or prevent environmental
29Charles Lee, ed., United Church of Christ Commission for Racial Justice, From
Plantations to Plants: Report of the Emergency National Commission on Environmental and
Economic Justice in St. James Parish, Louisiana (1998).
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1 contamination, e.g., through water quality standards, applied to industrial sources that discharge
2 contaminants into surrounding waters). In both cases, agencies' decisions for the most part reflect
3 the exposure circumstances and the cultural, traditional, religious, historical, economic, and legal
4 contexts that describe members of the general population - the "average American" or "the typical
5 U.S. consumer." Importantly, these decisions often do not reflect the exposure circumstances or
6 the traditional, religious, historical, economic, and legal contexts that describe members of
7 communities of color, low-income communities, or tribes.
8 To illustrate briefly a few of these considerations:
9 The EPA until quite recently based its environmental decisions on the assumption that
10 humans eat just 6.5 grams of fish per day - roughly one 8-ounce fish meal per month. Yet there is
11 abundant evidence that members of communities of color, low-income communities and tribes eat
12 far greater quantities of fish. For example, a recent study by the Columbia River Inter-Tribal Fish
13 Commission of members of four Columbia River tribes registered a mean fish consumption rate of
14 58.7 grams/day and a maximum fish consumption rate of 972.0 grams/day - well over one hundred
15 times the EPA value.30 A recent study of ten Asian and Pacific Islander groups in King County
16 Washington showed a mean fish consumption rate of 117.2 grams/day and a maximum values of
17 733.46 grams/day.31 Similarly, studies of anglers in both Alabama and Michigan registered
18 markedly higher fish consumption rates for low-income African-Americans - in Alabama low-
19 income African-Americans ate a mean of 63 grams/day;32 in Michigan, low-income African-
20 Americans (together with other "minority fishers and off-reservation Native Americans")
21 consumed a mean of 43.1 grams/day;33 a recent study of members of various Great Lakes tribes
22 and bands registered a mean fish consumption rate of 351 grams/day and a maximum fish
23 consumption rate of 1,426 grams/day.34 Although methodological differences in the various
24 studies mean that these numbers cannot provide a precise basis for comparison they nonetheless
25 afford a sense of the large differences in the quantities of fish consumed by different groups EPA
26 has just revised its standard assumptions and now uses default values of 17 5 grams/dav for the
27 general population and 142.4 grams/day for subsistence populations. While these revised numbers
28 are a marked improvement, they are still a source of concern for those groups whose members
"Columbia River Inter-Tribal Fish Commission, Technical Report 94-3 A Fi
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1 consume at the highest levels. The result is that when the fish are contaminated, those consuming at
2 higher rates will be exposed to greater quantities of the contaminants that are present in the fish
3 tissue.
4 EPA also typically makes assumptions about the species and parts consumed and about the
5 methods of preparation that reflect that practices of the general population but often do not depict
6 fully or accurately the practices of communities of color, low-income communities, or tribes. For
7 example, according to a recent survey of first- and second-generation Asian and Pacific Islanders
8 in King County, Washington - including members of Cambodian, Chinese, Filipino, Hmong,
9 Japanese, Korean, Laotian, Mien, Samoan, and Vietnamese ethnic groups:
10 [Asian and Pacific Islanders] consume a wide variety of seafod species, the most
11 frequently consumed being shellfish. These seafood, depending on their feeding and
12 habitat characteristics, and the tissue parts consumed pose varying chemical
13 contaminant risks to APIs. For example, certain fat soluble chemicals, e.g., PCBs, are
14 concentrated in the fat layer between the meat and the skin, potentially exposing such
15 consumers to higher contaminant levels than those who simply eat the fillet. Eating the
16 fillet with skin is clearly a common practice in the API community.. . . Overall, skin was
17 consumed with the fillet 55% of the time. .. .
18 API community members appear to eat shellfish parts that are thought to contain higher
19 concentrations of chemical contamination, e.g., clam stomachs or the hepatopancreas of
20 crabs. Bivalve shellfish were consumed whole by 24% (geoduck) to 89% (mussels) of
21 respondents depending on the species. The "butter " as well as the meat of crabs were
22 consumed 43% of the time. . .Finally, cooking water, both for finfish and shellfish are
23 commonly use in coooking or directly consumed?5
24 According to a study of the GreenpointAVilliamsburg ("G/W") community in the Borough of
25 Brooklyn in New York City:
26 [Hispanics and Caribbean Americans] consume considerable quantities of fresh
21 shellfish, including parts of the fish not typically consumed (e.g., the highly
28 contaminated hepatopancreas of blue crabs)?6
29 According to an account of subsistence fishing on the Upper Kobuk River in Alaska:
30 Each summer, families from Shungnak and Kobuk move to camps to harvest salmon,
31 whitefish, and sheefish. . . . upper Kobuk residents preferred to camp in the sheefish
35Ruth Sechena, et al., Asian and Pacific Islander Seafood Consumption Study (1999)
"Industrial Economics, Inc., Community-Specific Cumulative Exposure Assessment for
Greenpoint/WilliamsburgNew York2-2\ (1999).
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1 spawning areas because sheefish caught there had eggs, a local delicacy. . . .Although
2 sheefish are caught throughout the summer, local residents prefer to catch them late in
3 the season because the sheefish are fat, the eggs are ripe, and the fish can be left to age
4 and freeze, a storage method preferable to drying.
5 Aged, frozen sheefish, an upper Kobuk delicacy, were eaten later in winter without
6 further processing or preparation. By spring, these fish were known as ui.laaq (thawed,
7 aged sheefish) a meal savored by upper Kobuk residents.
8 Fresh sheefish were baked, boiled, or fried. The large intestines, full of fat, were boiled.
9 Fish oil fqaluum uqsruq^ was separated from the boiled water with a large spoon and
10 served with cooked sheefish}1
11 Ron Oatman, Nez Perce, recalls:
12 We used to collect the eggs from the suckers and Mom would fry them up with the rest of
13 the fish. We always thought this quite good.is
14 Again, the result in many cases is that when the fish are contaminated, those consuming in
15 accordance with different practices will be exposed to greater quantities of the contaminants.
16 Moreover, the approach employed by EPA and other environmental agencies proceeds as
17 if humans were exposed to one contaminant at a time. However, members of communities of
18 color, low-income communities, and Tribes are often exposed to multiple contaminants (and by
19 multiple routes) at the same time; this is so to a greater extent than for the general population. For
20 example, according to Barbara Harper, Fourteen Confederated Tribes of the Yakama Nation, and
21 Stuart Harris, Confederated Tribes of the Umatilla Indian Reservation:
22 (I]t is the norm, at least in the Columbia River system, for over 100 contaminants to be
23 identified in fish tissues.19
24 Environmental agencies also proceed as if all humans similarly enjoyed relative health and
25 access to basic health care and nutrition. However, members of communities of color, low-
"Susan Georgette and Hannah Loon, Subsistence and Sport Fishing of Sheefish nn th?
Upper Kobuk River, Alaska (1990) available at www.native1mowleripP "T/j./flles/tn17
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1 income communities, and tribes often have relatively poorer background health and lesser access
2 to health care and nutrition than is enjoyed by the general population. Other "co-risk" factors, too,
3 affect how humans respond when they are exposed to environmental contaminants and often these
4 co-risk factors are different for members of environmental justice communities and tribes.
5 Health and environmental agencies generally assume that all humans are similarly able to
6 turn to substitutes when fish, aquatic plants, and wildlife have become contaminated. While this
7 substitution may pose few difficulties for members of the general population, it may be impractical
8 or impossible for economic, cultural, religious and/or other reasons for some members of
9 communities of color, low-income communities and tribes. For example, for some tribal peoples,
10 as Barbara Harper, Fourteen Confederated Tribes of the Yakama Nation, and Stuart Harris,
11 Confederated Tribes of the Umatilla Indian Reservation, explain:
12 [Tjhere are likely to be no acceptable 'tradeoffs.' Tribal peoples may not have an
13 option of avoiding fish consumption for cultural or religious reasons as well as
14 economic reasons. . . . The cultural use of fish is not a 'perceived benefit of fish
15 consumption.' It is a baseline situation that is not an option or a choice, but an absolute
16 requirement.40
17 These considerations and others place in question the appropriate role of fish consumption
18 advisories in protecting those who would consume fish, aquatic plants, and wildlife from the
19 serious harms of exposure - harms including the risk of cancer, neurological damage, endocrine
20 disruption, and a host of other ills. To the extent that fish consumption advisories form an
21 appropriate part of agencies' response to contaminated aquatic environments, however, there is
22 reason to be concerned that health and environmental agencies generally employ the language and
23 methods of communication that are likely to reach and be understood by the members of the general
24 population, but often fail to reach and cannot be understood by members of affected communities.
25 This is particularly likely when agencies distribute advisories in English to those who have
26 limited English proficiency, or when agencies post advisories on the Internet but those affected
27 cannot afford and do not otherwise have access to a computer. There has been recent progress
28 here, however, as EPA and other agencies in some cases have translated their advisories into the
29 language(s) of those affected and have sought to learn which methods of communication would be
30 most likely to reach communities likely to be among the most exposed.
40Barbara Harper and Stuart Harris, Tribal Technical Issues in Risk Reduction Through
Fish Advisories, in Proceedings of the American Fisheries Society. Contaminants in Fish 21
(1999).
PRE-MEETING DISCUSSION DRAFT
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November, 2001
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1 4. Environmental Agencies Have Made Considerable Progress; However, Many
2 Aspirations and Obligations Remain Unfulfilled
3 EPA and other agencies have made considerable progress toward addressing degraded and
4 depleted aquatic ecosystems, and, more recently, toward attending to the needs and rights of
5 communities of color, low-income communities, and tribes. Aquatic ecosystems are significantly
6 less contaminated than they were three decades ago, when the Clean Water Act was passed.
7 According to EPA estimates, whereas in 1972 only 36% of the rivers, lakes, and estuaries within
8 the United States were clean enough to support "fishable-swimable" uses, today roughly 60% of
9 lakes, rivers, and estuaries are clean enough to support these uses.41 EPA and other agencies have
10 also made progress in attending to the different circumstances of exposure that often describe
11 members of communities of color, low-income communities and tribes; in evidencing awareness
12 of their different languages, traditions, and cultures; and in addressing their claims to participation
13 and consultation when EPA and other agencies make decisions affecting their lives and resources.
14 Yet, by EPA's own account, there is much yet to be done. EPA's Strategic Plan issued in
15 September 2000 (2000 EPA Strategic Plan) acknowledges that much more work is needed to
16 protect effectively American's rivers, lakes, wetlands, aquifers, and coastal and ocean waters so
17 that they will sustain fish, plants, and wildlife as well as recreational, subsistence, and economic
18 activities.42 There EPA notes that "[a]s of 1998, about 40 percent of the assessed waters in the
19 United States were degraded to the point that they did not support their designated use."43
20 Additionally, more than 50% of the Nation's wetlands-some 100 million acres-have been lost
21 since European settlement.44 And, "polluted water and degraded aquatic ecosystems threaten the
22 viability of all living things and vigor of the nation's economy."45 In 1999, the number of fish
23 consumption advisories rose by 145, representing a 6% increase over 1998, and the number of
24 lakes under advisories increased from 15.8% in 1998 to 20.4% in 1999, a total of 52,000 lakes.46
4lZygmunt J.B, Plater, et al„ Environmental Law and Policv¦ Nan,™ r
503 (2d ed. 1998). y' tUre' Law> and Society
422000 EPA Strategic Plan at 19.
43 Id, Note that this figure does not include unassessed waters r L • ,
meet these standards. aters ~ Some of wh1Ch may not
Ml±
45Id
**EPA Fact Sheet Update: National Listing offish and WiUi-s , ,
823-F-00-016) (November 2000). Wildlife. Advisories at 1 (EPA-
PRE-MEETING DISCUSSION DRAFT
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November, 2001
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1
2
AH of the Great Lakes and their connecting waters and 58% of coastal waterways were under
advisory in 1999.47
3 Thus, EPA has yet to fulfill the aspirations set for it in the Clean Water Act and elsewhere.
4 The CWA, for example, aspires "to restore and maintain the chemical, physical, and biological
5 integrity of our Nation's waters;" it aspires to do this by, among other things, eliminating the
6 discharge of pollution into navigable waters "by 1985."
7 EPA also has yet to uphold fully its obligations to communities of color, low-income
8 communities and Tribes under various treaties, the federal trust responsibility, Title VI of the Civil
9 Rights Act of 1964, and Executive Order 12898.
10 C. WHAT ARE THE POLICY IMPLICATIONS OF THE ABOVE?
11 [This section will be completed after recommendations have taken shape at
12 the NEJAC meeting.]
13 Together, the chapters of this Draft Report respond to the policy charge to NEJAC:
14 How should EPA improve the quality, quantity, and integrity of our Nation's
15 aquatic ecosystems in order to protect the health and safety of people consuming or
16 using fish, aquatic plants, and wildlife?
17 Chapter One focuses on the tools that environmental agencies use to define, evaluate and
18 respond to the adverse health impacts from contaminated aquatic environments. It discuses the
19 research methods agencies use to obtain information about the lives, practices, and circumstances
20 of affected communities and tribes, as well as the risk assessment approaches agencies use to
21 evaluate these impacts.
22 The next two chapters examine agencies' responses - the "risk management" approaches
23 that they employ to address the health impacts of contaminated aquatic environments. Chapter
24 Two discusses agencies' risk reduction strategies, whereby risk-producers are required to
25 cleanup, reduce, or prevent environmental contamination. This chapter examines the legal
26 authorities that might be invoked more effectively to sustain healthy aquatic ecosystems and to
27 protect the health and safety of people consuming or using fish, aquatic plants, and wildlife.
28 Chapter Three then discusses agencies' risk avoidance strategies, whereby risk-bearers are
29 asked to change their lives and practices in order to avoid exposure to harmful contaminants This
30 chapter focuses on fish consumption advisories and asks what role they should play in efforts more
31 effectively to protect the health and safety of people consuming or using fish, aquatic plants, and
47Id
PRE-MEETING DISCUSSION DRAFT
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1 wildlife. In so doing, it considers how agencies can identify, acknowledge and meet the real needs
2 of those who are affected in communities of color, low-income communities and tribes. This
3 chapter discusses means by which agencies can ensure community participation and tribal
4 consultation. It also discusses ways agencies can work to make communities whole once the fish,
5 aquatic plants, and wildlife on which they depend have already become contaminated. This
6 chapter, in particular, responds to questions posed to the NEJAC by the EPA Office of Water in
7 October, 2001, requesting advice on improving its risk communication efforts and on updating its
8 Guidance for Assessing Chemical Contaminant Data for Use in Fish Advisories, Volume IV:
9 Risk Communication.48 Various aspects of these questions are also addressed throughout the
10 Draft Report.
11 Chapter Four examines issues unique to American Indian tribes, Alaskan Native villages,
12 and their members. Although tribes and their members share many of the concerns discussed in the
13 first three chapters, their unique political and legal status warrants separate treatment.
48Memorandum from James Hanlon, Acting Deputy Assistant Administrator, Office of
Water, to Barry Hill, Director, Office of Environmental Justice (October 4, 2001).'
PRE-MEETING DISCUSSION DRAFT
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November, 2001
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1
2
CHAPTER I: RESEARCH METHODS AND RISK
ASSESSMENT APPROACHES
3 How should EPA improve its research methods and risk assessment approaches to address
4 degradation of aquatic ecosystems and adverse impacts to human health from consuming or
5 using contaminated fish, aquatic plants, and wildlife for subsistence, cultural, traditional, and
6 religious activities and purposes?
7 When health and environmental agencies respond to the harms from contaminated aquatic
8 environments, they typically frame the issue as one of "human health risks" - specifically, harm to
9 individuals' physical health: the contaminants are carcinogens, or reproductive toxins, or
10 endocrine disrupters, or have multiple human health "endpoints."
11 Health and environmental agencies then manage these "health risks" by employing one or
12 both of two general strategies: risk avoidance (whereby risk-bearers are encouraged or required
13 to change the practices that expose them to environmental contamination, e.g. through fish
14 consumption advisories, directed to those people who eat fish) or risk reduction (whereby risk-
15 producers are required to cleanup, reduce, or prevent environmental contamination, e.g., through
16 water quality standards, applied to industrial sources that discharge contaminants into surrounding
17 waters).49 Risk reduction strategies will be the focus of discussion in Chapter 2; risk avoidance
18 strategies will be the focus of discussion in Chapter 3.
19 For both strategies, agencies need to get a sense of the practices that expose humans to
20 environmental contaminants (e.g., how much fish do they eat? what kinds of fish? how is it
21 prepared?) and the underlying health and other circumstances of those exposed (e.g., are they
22 young or old? do they have other preexisting health conditions? do they have access to adequate
23 health care?). In gathering this information and, more generally, in fashioning their responses to
24 contamination, agencies' efforts have until quite recently reflected the lives, practices, and
25 circumstances of the "average American"or "the typical U.S. consumer."50 Importantly, they often
26 have not reflected the lives and circumstances of communities of color, low-income communities,
27 and Tribes. That is, agencies' efforts overall have tended to reflect the cultural, traditional,
28 religious, historical, economic, and legal contexts that describe members of the general population.
29 Specifically, agencies' efforts have assumed (1) the exposure circumstances of members of the
30 general population; and (2) the susceptibilities and co-risk factors of members of the general
31 population.
"'Catherine A. O'Neill, Risk Avoidance and Environmental Justice (forthcoming).
50See, e.g., U.S. Environmental Protection Agency, Note to Correspondents: EPA Issues
1996 Fish Advisory Data (1997) ("The typical U.S. consumer eating fish in moderation from a
variety of sources and eating a variety of species is not believed to be at increased risk .. .").
PRE-MEETING DISCUSSION DRAFT
NEJAC Fish Consumption Work Group
November, 2001
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1 This Chapter will focus on the tools environmental agencies use to define, evaluate and
2 respond to the adverse health impacts from contaminated aquatic environments: the research
3 methods agencies use to obtain information about the lives, practices, and circumstances of
4 affected communities and Tribes, and the risk assessment approaches agencies employ to evaluate
5 and address these health impacts. Along the way, it will highlight issues that bear as well on
6 agencies' approaches to risk management and risk communication, although these questions will
7 be taken up at greater length later in the Report.
8 Part A of the chapter discusses briefly the prior question: what is meant by "adverse
9 impacts to human health?" The next four parts examine exposure. Part B looks at fish consumption
10 rates and how these differ as between the general population and higher-consuming
11 "subpopulations" such as communities of color, low-income communities, and tribes. Part C
12 examines standard assumptions about the fish, plant and wildlife species people consume and use;
13 the parts of these species they use; and the preparation methods they employ. It considers the
14 differences in these practices among various affected groups and how this affects estimates of
15 exposure. Part D raises the point that communities of color, low-income communities, and tribes
16 consumer and use fish, plants and wildlife in different cultural, traditional, religious, historical,
17 economic, and legal contexts than the "average American." Part E takes up the issues of aggregate
18 or multiple exposures and cumulative risks. Part F turns from exposure to issues of susceptibility
19 and co-risk factors. Part G explores suppression effects and their implications. Finally, Part H
20 addresses research methods relevant to risk assessment, management, and communication
21 involving contaminated fish and aquatic environments.
22 A. DEFINING ADVERSE IMPACTS TO HUMAN HEALTH
23 How can EPA in its various functions ensure that cultural, traditional, religious practices
24 are being considered in defining and evaluating health risks with respect to all people, including
25 minority and low-income communities, and tribes?
26 When health and environmental agencies evaluate and respond to the human health risks
27 from contaminated aquatic environments, they typically invoke a particular conception of "human
28 health."51 This conception tends to be that of the dominant society, for whom "human health" is
29 taken in the narrow, individual and physiological sense of the term. So defined, agencies look to
30 toxicological and epidemiological data that connect environmental contaminants such as mercury
31 or PCBs to human health "endpoints" such as neurological damage or cancer. Agencies cite
32 determinations (by legislatures, courts, or their own or other agencies) as to "acceptable"
33 increases in the risk of occurrence of such "endpoints," and from there work backward to decide
34 how much mercury to permit to be emitted into the air or what quantity of PCBs to allow to remain
5'Agencies also sometimes (although less often) respond to "ecological risks;" these are
typically considered separately from human health risks, and do not include attention to social,
cultural, or other related harms.
PRE-MEETING DISCUSSION DRAFT
NEJAC Fish Consumption Work Group
November, 2001
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1 in contaminated sediments after cleanup. These decisions then get incorporated into standards or
2 permits or cleanup requirements.
3 This definition of the adverse impacts, however, may not reflect the perspectives of those
4 affected. For some of those affected, the harms from contamination are not only physical, but
5 psychological, social, and cultural. For some of those affected, the affront is not only to an
6 individual but to a group - the threat is not only to the physical survival of a person, but to the
7 cultural flourishing of a people. Stuart Harris, Confederated Tribes of the Umatilla Indian
8 Reservation, and Barbara Harper, International Institute for Indigenous Resource Management,
9 explain:
10 For example. Native American communities are inseparable from their lands and
11 resources, so evaluation of their risks from contamination must integrate human
12 physiological and mental health, ecological health, socio-economic health, and cultural
13 and spiritual health within a single framework. This does not mean simply adding a
14 quality of life component and calling it cultural risk, or using an exposure scenario that
15 reflects additional routes of exposures. Rather, it means beginning the assessment by
16 understanding the entire eco-cultural system (people and biota interlocked in a co-
17 adapted system of behaviors and ecologies that is sustainable over time but which is
18 now severely strained even without the addition of contamination). . . .
19 The individual and collective well-being of tribal members is often derived from
20 membership in a healthy community that has access to ancestral lands and traditional
21 resources and from having the ability to satisfy personal responsibility to participate in
22 traditional community activities and to help maintain the spiritual quality of our
23 resources.52
24 Environmental justice means noticing and acknowledging not only the harms that are
25 perceived by the dominant society, but also the harms that are felt by communities of color low-
26 income communities and tribes. Often, these harms will have quite different dimensions than those
27 felt by the dominant society and reflected in agencies' definition and evaluation of the problem
28 EPA and other agencies need to reexamine methods and models employed in evaluating adverse
29 health impacts from environmental contamination.53
"Stuart G Harris and Barbara L. Harper, Using Eco-Cultural Dependency Webs in Risk
Assessment and Characterization of Risks to Tribal Health and Cultures, 2 Environ. Sci. 7
Pollut. Res. 91, 91-92 (Special Issue, 2000).
53Flizabeth D Nobmann, Nutritional Benefits of Native Foods, available at
=rr,, spiritual and cuitura, issues as we,l ^
Russia Native People's Health and Social Issues Conference m 1992).
PRE-MEETING DISCUSSION DRAFT
NEJAC Fish Consumption Work Group
November, 2001 23
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1 B. EXPOSURE: FISH CONSUMPTION RATES
2 Several factors determine (1) whether and how an individual comes in contact with
3 environmental contaminants and (2) to what extent that individual suffers adverse health effects as a
4 result of this contact. The first set of factors describes one's circumstances of exposure. The
5 second set of factors describes one's susceptibilities and co-risk factors. Although more
6 information needs to be gathered about the differences among various "subpopulations" with
7 respect to both exposure and susceptibilities, existing data show important differences between the
8 general population and communities of color, low-income communities and Tribes. Questions of
9 exposure will be addressed in Sections B, C, D and E; questions of susceptibility will be
10 addressed in Section F.
11 Humans are exposed to environmental contaminants through a variety of routes: they inhale
12 toxic air contaminants; they drink contaminated groundwater; they absorb pesticides through our
13 skin; they eat fish that swim in and bioaccumulate toxins from contaminated surface water and
14 sediments. As noted above, fish consumption is the primary route of exposure for many toxic
15 contaminants, including those that are now present in and permitted to be released to aquatic
16 environments. All else being equal, the higher the level of fish one consumes, the greater one's
17 exposure to any contaminants in the environment that the fish uptake, and the greater one's risk of
18 adverse health effects.
19 EPA and other agencies use exposure data to set environmental standards for aquatic
20 environments that support fish and other species consumed by humans: they set water quality
21 standards to determine how much contamination will be permitted to be released now and in the
22 future; they set cleanup standards to determine to what level surface waters and sediments must be
23 cleaned up once they are already contaminated. They also use exposure data to estimate risk in
24 order to determine whether to issue fish consumption advisories. When EPA and other agencies
25 use risk assessment to set environmental standards, they start from a level risk that has been deemed
26 "acceptable" or a threshold level of exposure that is believed not to result in adverse health effects.
27 They then consider the toxicity of the contaminant in question (e.g., dioxin) and the various elements
28 of humans' exposure to that contaminant (e.g., how much fish do people consume? for how many
29 years do people live and consume fish at these rates? to what extent does the contaminant in
30 question bioaccumulate in the fish tissue consumed?). Working from these inputs, agencies
31 determine how much of the contaminant to allow to be discharged to or to remain in aquatic
32 environments. Note that when agencies set standards in this way, they typically rely on values for
33 each of the inputs that reflect the characteristics and practices of the general population. These
34 values often do not reflect the characteristics and practices of affected communities and tribes
35 which often lead to greater exposures for these groups. This is problematic in that the resulting
36 standards will not protect these more highly-exposed groups.
PRE-MEETING DISCUSSION DRAFT
NEJAC Fish Consumption Work Group
November, 2001
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1 1. Evidence of Different Consumption Practices
2 While there is considerable evidence that different groups have different fish consumption
3 practices, these differences have until recently been demonstrated chiefly by "anecdote" rather than
4 by empirical study. Even today, there are many more instances in which practices that include high
5 rates of fish consumption and/or consumption from seriously contaminated waters are evidenced by
6 local knowledge, direct observation, or "anecdote" rather than by formal study. Thus, for example,
7 as Yalonda Sinde, Executive Director of the Community Coalition for Environmental Justice,
8 Seattle, reports:
9 "We know there are people out there fishing on the Duwarnish. People in the
10 neighborhood see them out there. "
11 The Duwarnish waterway is highly contaminated and under advisory for a host of industrial
12 chemicals; signs are posted warning against eating all bottom fish, all shellfish, and seaweed.
13 Similarly, as Bowden Quinn of the Grand Cal Task Force reports:
14 "Although we don't have any hard data, there is anecdotal evidence of people
15 subsistence fishing on the Calumet River. People do fish and they likely eat the fish they
16 catch . . . despite a 'Class 5' restriction on the River, which means 'Do Not Eat the
17 Fish'."55
18 The Calumet Region is home to steel manufacturing facilities, petroleum refineries, chemical
19 manufacturing facilities and a host of other heavy industries, and has been described as "one of the
20 nation's most polluted areas."56 And, Ora Rawls, Executive Director, Mississippi Rural
21 Development Council, reports:
22 Fish consumption (volume) has been underestimated. As I shared with a DEQ (EPA)
23 official, many individuals (African American) eat fish two to three times a week - in rural
24 areas, as often as five times a week. Where I lived on the Coast (Gulport/Biloxi), four to
"Personal Interview with Yalonda Sinde, Executive Director, Community Coalition for
Environmental Justice, Seattle, Washington (October 16,2001). [permission to cite pending]
"Telephone Interview with Bowden Quinn, Executive Director, Grand Cal Task Force
(October 10, 2001); accord, Telephone Interview with Alex DaSilva, Remedial Action
Coordinator,'Indiana Department of Environmental Management (October 10, 2001).
"Bill Eyring, Center for Neighborhood Technology, Industry's Polluted Legacy: The
Calumet Region, in The Neighborhood Works 10 (October/November 1993).
PRE-MEETING DISCUSSION DRAFT
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1 five times a week. This volume is from personal fishing (streams, lakes, ponds), not from
2 retail sales data that is used to capture consumption patterns.51
3 Anecdotal evidence similarly describes people fishing on and consuming fish from Lake Erie and
4 the Cuyahoga River in Cleveland;58 from the Mississippi River in East St. Louis;3? from the
5 Columbia Slough in Portland, Oregon;60 and from the Mississippi River between New Orleans and
6 Baton Rouge.61
7
8 There are, however, several formal fish consumption studies that demonstrate that members
9 of various communities of color, low-income communities and tribes consume far greater quantities
10 of fish than do members of the general population. Further, these studies show that there are
11 differences as well among these various communities, groups, or peoples. They also support the
12 observation that the intersection of poverty and identity or group membership may be an important
13 factor in accounting for differences in fish consumption practices. Table 1 presents a sampling of
14 the fish consumption rates gathered by recent studies, selected to illustrate these characteristics of
15 the data in the context of various subpopulations (e.g., Native American, Alaskan Native,
16 Asian/Pacific Islander, African-American, southern, and urban subpopulations). Note that the
17 values presented here are not directly comparable because of design and other differences among
18 the studies. (For example, some studies include shellfish whereas others include only fmfish; some
19 studies provide per capita values - which include those who do not eat fish along with those who
20 do - whereas other studies provide values for fish-consumers only.) These values are provided
21 only to give some sense of the relatively higher consumption rates of communities of color, low-
22 income communities, and tribes compared to the general population (as well as some sense of the
23 differences among and within these groups).62
"National Risk Communication Conference, Proceedings Document H-17-19 (2001)
"Telephone Interview with Patrick C. West, Professor Emeritus of Natural
Resources/Environmental Sociology, University of Michigan School of Natural
(October 23, 2001). resources
59Id.
Service^0*1*' ^ """ ^ 0Ur ^ POItland' ^ 0f
(October?S.,nKrVieW ^ ^ ^ L°UiSMa 1 A«ion Network
62Some of these values, moreover, were generated for this num
cited or used without consulting the studies and their authors. In som 6 ^ should not be
generated in reliance on assumptions that may or may not be shared th^'111686 numbers were
conversion methods for values originally given in g fish/kg bodyweight/^y^5' aUth°rS ^e'8''
PRE-MEETING DISCUSSION DRAFT
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November, 2001
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1
Table 1: Quantified Evidence of Fish Consumption
2| Study Authors
31 (Date)
Sample
Population
50th Percentile
(g/day)
Mean
(g/day)
90th Percentile
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1 In addition to the studies presented here, several other studies provide further formal, quantified
2 evidence of differences in fish consumption practices among communities of color, low-income
3 communities, tribes, and the general population.63
4 Significantly, the fish consumption rates presented in Table 1 are markedly higher, at
5 virtually every point of comparison, than those relied upon by agencies to set water quality
6 standards, to set cleanup standards for surface water and sediments, and to gauge baseline
7 consumption to estimate health risks and the need for fish consumption advisories. As elaborated
8 below, EPA until quite recently employed a fish consumption rate of 6.5 grams/day for all
9 populations. EPA now employs a fish consumption rate of 17.5 grams/day for the general
10 population and recreational fishers, and 142.4 grams/day for subsistence fishers.64 These are 90th
11 and 99th percentile values, respectively, from a study of the general population (fish consumers and
12 non-consumers alike). That is to say, EPA targets protection at the 90th percentile of the general
13 population (a point discussed further below). Compare these values with the 90th percentile of
14 Asian and Pacific Islanders in King County, at 242 g/day or the 90th percentile of the Suquamish
15 Indian tribe, at 489 g/day, or the 90th percentile of fishers in the Los Angles Harbor, at 225 g/day.
16 Consider, too, that whereas those Asian and Pacific Islanders in King County consuming at the
17 average (mean) rate may be adequately protected were the relevant environmental standards to
18 reflect EPA's default for subsistence fishers (142.4 g/day), those consuming at the maximum rate -
19 733.46 g/day would be grossly underprotected. They would fare even worse were the relevant
20 environmental standards to reflect EPA's default for the general population (17.5 g/day). Those
21 consuming at the maximum rate for the Suquamish Tribe (1453.6 g/day), the Laotian communities
22 in West Contra Costa County (1B2.3 g/day), the Squaxm Island and Tulalip tribes (391.4 g/day),
23 and the four Columbia River tribes (972 g/day) would be similarly underprotected - and, as
24 discussed below, consumption at these rates may reflect the very practices that these affected
25 groups would want to see perpetuated and protected for cultural, traditional, religious, economic,
26 and other reasons.
27 However, as this survey of the available data reveals, there are many communities, groups,
28 or peoples for which empirical studies have not yet been conducted. In addition, there is still
29 relatively little data about the intersection of factors such as ethnicity or group membership and
30 income. And, for some groups, there is the matter of acute consumption rates - very high rates of
31 consumption for shorter periods, such as during ceremonies, religious and other holidays (e.g.,
63 Among these are studies of fish consumption in Santa Monica (CA); in the state of New
York; on the Hudson River (NY); in Detroit (MI); in Lake Coeur d'Alene (ID); on Commencement
Bay (WA); on the Savannah River (GA); in the state of Florida; on Lake Ontario; in American
Samoa; on the Fox River (WI); among Wisconsin Chippewa Indians; among the Miccousukee
Indian Tribes of South Florida; and among Native Americans living near Clear Lake, California.
EPA canvassed these and other studies in preparing its AWQC Methodology. See, U.S.
Environmental Protection Agency, Ambient Water Quality Criteria Derivation Methodology
Human Health, Technical Support Document 89-103 (July 1998).
64It is not clear precisely which groups EPA means to include when it refers to
"subsistence fishers."
PRE-MEETING DISCUSSION DRAFT
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November, 2001
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1 Lent, during which Roman Catholics may consume 2 or more fish meals per week), or harvest
2 seasons (e.g. salmon runs, during which some Alaskan Natives consume 80-100 pounds of fish per
3 month) - about which less may be known and for which, in any event, current risk assessment
4 methods may fail to account. In many cases, communities, groups, or tribes would be interested in
5 conducting such studies, but lack the financial and/or technical resources to do so. Although
6 anecdotal data may be plentiful, non-quantified data are difficult to incorporate into risk
7 assessment as currently practiced; moreover, environmental agencies are unlikely to accept data
8 that have not been quantified according to accepted norms (e.g., for statistical analysis, peer
9 review, etc.). These are research needs that should be addressed.
10 2. EPA's Revised Fish Consumption Rates
11 Until recently, EPA used a standard or "default" assumption for the fish consumption rate
12 (FCR) that would be factored into estimates of health risk: 6.5 grams/day.65 This is about one 8-
13 ounce fish serving per month - an amount that is outdated and inaccurate even for the general
14 population. And, this amount grossly underestimates the consumption rates for many communities
15 of color, low-income communities, and Native Americans.
16 Recognizing this, EPA revised its default assumption in the fall of 2000, as part of an
17 updated Methodology for Deriving Ambient Water Quality Criteria for the Protect™ of Human
18 Health ("AWOC Methodology").66 Although in many cases federal and state water quality criteria
19 currently in effect reflect the old 6.5 grams/day default, EPA now recommends the following
20 default FCRs:
21
22
23
General population 17.5 grams/day
Recreational fishers 17.5 grams/day
Subsistence fishers 142.4 grams/day
"Guidelines and Methodology Used in the Preparation of Health Effect Assessment
Chapters of the Consent Decree Water Criteria Documents, 45 Fed. Reg. 79,347, App. C (1980).
"Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human
Health (October, 2000).
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1 EPA will use the 17.5 grams/day value when it derives or revises national criteria
2 pursuant to CWA 304(a).67 EPA will also consider these values when it reviews water quality
3 standards set by states and authorized tribes,68 as part of a four-part preference hierarchy:
4 (1) Use local data;
5 (2) Use data reflecting similar geography/population groups;
6 (3) Use data from national surveys; and
7 (4) Use EPA's default intake rates.
8 EPA "strongly emphasizes that States and authorized Tribes should consider developing criteria to
9 protect highly exposed population groups and use local or regional data over the default values as
10 more representative of their target population group(s)."69
11 EPA's default value of 17.5 grams/day for the general population and for recreational
12 fishers reflects the 90th percentile value of 17.53 grams/day for freshwater and estuarine ingestion
13 by adults, taken from the USDA's CSFII Survey for the years 1994 to 1996. EPA's default value
14 of 142.4 grams/day for subsistence fishers reflects the 99th percentile value of 142.41 grams/day
15 for freshwater and estuarine ingestion by adults, taken from the USDA's CSFII Survey for the
16 years 1994 to 1996. EPA states that it "believes that the assumption of 142.4 grams/day is within
17 the range of average consumption estimates by subsistence fishers based on the studies
18 reviewed."70
19 For States or Tribes exercising any of the first three preferences, EPA remarks: "States and
20 authorized Tribes may use either high-end values (such as the 90th or 95th percentile values) or
21 average values for an identified population they plan to protect (e.g., subsistence fishers, sport
22 fishers of the general population). EPA generally recommends that arithmetic mean values should
23 be the lowest value considered by States or Tribes when choosing intake rates for use in criteria
24 derivation. When considering geometric mean (median) values from fish consumption studies,
67Under CWA 304(a), the EPA is to develop "criteria" - scientific information and
guidance for use by the states and authorized tribes and the EPA itself in establishing water quality
standards pursuant to CWA 303(c). Under CWA 303(c), states and authorized tribes have primary
responsibility for establishing water quality standards. EPA is charged with reviewing these
standards. EPA may promulgate superceding federal standards if a state's or tribe's standards are
not consistent with the CWA and its implementing regulations, or if the EPA determines that
national standards are necessary. In either event, EPA relies on the criteria it developed under
CWA 304(a) as it undertakes review or promulgates standards itself.
68See id.
69AWQC Methodology at 4-25.
70AWQC Methodology at 4-27; but compare Catherine A. O'Neill, Variable Justice:
Environmental Standards, Contaminated Fish, and "Acceptable' Risk to Native Peoples, 19
Stanford Envtl. L. J. 3, 59 (2000) (noting that EPA appears to offer conflicting accounts of what it
means to be a "subsistence" fisher and that "EPA nowhere makes clear precisely who it views to
be included in this grouping or to which studies it refers for the 'range of averages."')
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1 States and authorized Tribes need to ensure that the distribution is based on survey respondents
2 who reported consuming fish because surveys based on both consumers and nonconsumers can
3 often result in median values of zero. If a State or Tribe chooses values (whether central tendency
4 or high-end values) from studies that particularly target high-end consumers, these values should
5 be compared to high-end fish intake rates for the general population to make sure that the high-end
6 consumers within the general population would be protected by the chosen intake rates."71
7 Several aspects of the CSFII data and EPA's AWQC Methodology are worth discussing.
8 First, while EPA's new default values represent a vast improvement over the old 6.5 g/day
9 default, the new default values are problematic in that they aim to protect the general population at
10 the 90th percentile, but to protect subsistence fishers only at a level somewhere "in the range of
11 average estimates." This choice provides disparate levels of protection to the general population,
12 on the one hand, and subsistence subpopulations, on the other. Taking this view, it is unclear why
13 EPA's default values do not set protection for subsistence subpopulations at the 90th percentile -
14 as they do for the general population - rather than at the average. Moreover, from the perspective
15 of some groups or tribes, it is the very highest consumers that warrant particular attention and
16 protection, because it is these individuals who are consuming at levels and in accordance with
17 practices that are most consonant with the group's or tribe's traditional, cultural, religious or
18 spiritual beliefs. Taking this view, it may be appropriate in some cases for states, tribes, and the
19 EPA to use values that target protection at the 95th or 99th percentile, or even at the maximum
20 value, for particular subsistence subpopulations.
21 Second, to EPA's credit, the AWQC Methodology's four-part hierarchy recommends using
22 local data as a first choice, data reflecting similar geography/population groups as a second
23 choice, and relying on EPA's default values only as a fourth and last choice. That having been
24 said, the reality is that many states still rely on EPA's default values because they (and the affected
25 communities and tribes within their borders) simply don't have any local data on which to rely -
26 often due to a lack of resources.72 If using local data is to be a meaningful first choice, more
27 resources need to be devoted to gathering this data, a point taken up at greater length below.
28 Third, EPA notes that the default values and the four-part preference hierarchy assume data
29 reflecting consumption of freshwater and estuarine species only. For states or tribes exercising
30 any of the first three preferences, EPA recommends that consumption of marine species be treated
31 as an "other source of exposure." The effect of choosing to exclude marine species is to decrease
32 the resulting default fish consumption rates (and, ultimately, to render any standard based on these
33 defaults or recommendations less protective). Of note, too, EPA deemed salmon to be marine,
34 although they are anadromous, spending a portion of their lifecycles in freshwater and/or estuarine
35 environments. EPA estimates that the effect of this exclusion is to decrease the resulting default
36 FCRs by approximately 13%.73
71AWQC Methodology at 4-26.
72Telephone Interview with Denis Borum, Environmental Scientist, Office of Science and
Technology, Office of Water, U.S. Environmental Protection Agency (November 23, 1999).
73Draft AWQC Methodology at 43,804.
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1 Fourth, the EPA's default values are based on per capita consumption rates from the
2 general population - that is, "fish consumption" rates that include fish consumers and fish
3 nonconsumers alike. The CSFII study on which the EPA's defaults are based surveyed 11,912
4 individuals annually for 3-day periods.74 Of the 11,912 participants, only 3,972 actually ate fish
5 during the three days surveyed.75 These were the fish consumers; their fish consumption rates were
6 recorded. The 7,940 participants who didn't eat fish during the three-day period were the fish
7 nonconsumers; their fish consumption rates were entered as "0." The CSFII study then generated
8 two sets of figures: a set considering only the fish consumers and a set considering both the fish
9 consumers and the fish nonconsumers. EPA chose to base its default values on the latter, per
10 capita figures. Importantly, the effect of this choice is again to decrease the resulting default FCRs
11 - with so many "zero" values factored in, the point estimates are decreased at every point of
12 comparison. So, for example, whereas the mean value for fish consumers is 106.39 g/day, the
13 mean value once fish nonconsumers are also included sinks to 18.01 g/day; similarly, whereas the
14 99th percentile value for fish consumers is 399.26 g/day, the 99th percentile value drops to 142.96
15 g/day.76 It is unclear why EPA, in setting out to fashion water quality criteria that are protective of
16 the health of humans who are exposed to contaminants through the fish ingestion route, chooses to
17 consider the fish consumption practices of those who do not eat fish at all. People who don't eat
18 fish aren't in any danger of being exposed via this route. And people who do eat a lot of fish will
19 be underprotected by diluted FCRs influenced by so many "zero" values. This choice is akin to
20 including non-smokers in a study of the direct (not indirect) exposure to nicotine, or setting
21 occupational safety standards to protect non-workers from on-the-job hazards.
22 Finally, the CSFII participants were selected from the forty-eight contiguous states only.
23 The authors of the CSFII study note that the exclusion of Alaska and Hawai'i may result in
24 depressed fish consumption values given that Alaska and Hawai'i "could potentially contain" a
25 larger percentage of subsistence and other higher-consuming groups than the forty-eight contiguous
26 states. Given the available data regarding fish consumption practices in Alaska and Hawai'i, this
27 is almost certainly the case.
741 & 2 U.S. Department of Agriculture, Continuing Survey of Food Intake by Individuals
(1998) [hereinafter 1 CSFII Study and 2 CSFII Study]. ***Caveat: The Draft AWQC Methodology
references the CSFII study data for 3-day periods for the years 1989, 1990, and 1991, whereas the
Final AWQC Methodology references the CSFII data for the years 1994,1995, and 1996. The
Fish Consumption Workgroup is investigating this apparent discrepancy. The numbers in the
paragraph are taken from the 1989-1991 data. While it is possible that the numbers in the Final
Report will need to be changed to reflect the 1994-1996 data, the phenomenon described here
applies generally to the choice between per capita rates versus rates that include fish consumers
only and will likely be borne out by the 1994-1996 data as well.
751 CSFII Study at IV-8 and IV-16.
762 CSFII Study at IV- 9 (table A-4) and IV-17 (table B-4). Note that these values are for
"all fish;" recall that EPA's default values are based not on all fish, but only on freshwater and
estuarine fish.
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1 Taken together, these choices mean that EPA's default values are less protective of higher-
2 consuming and subsistence subpopulations. Given that these subpopulations are in the main
3 comprised of particular communities of color, low-income communities, or tribes, these choices
4 are deeply troubling. Even in those cases where a state or a tribe undertakes any of the first three
5 options in the four-part hierarchy, they must demonstrate "consistency with the principles" of the
6 guidance provided by EPA in order to satisfy EPA review under CWA 303(c). Thus, all of the
7 choices EPA has made in setting its own default values in effect become recommendations for the
8 states or tribes to do the same (or face having to justify departures).
9 3. Fish Consumption Rates Reflected in Current Water Quality Criteria and
10 Standards77
11 As noted above, EPA has recently revised its default assumption for the fish consumption
12 rate to capture more accurately current national consumption patterns. States and authorized tribes,
13 moreover, have always been free, subject to EPA approval, to depart upward from EPA's default
14 numbers to reflect their higher-consuming populations. And under EPA's revised AWQC
15 Methodology, states and tribes are now expressly encouraged to do so. Nonetheless, the question
16 remains to what extent do the water quality standards currently in effect (whether developed by
17 EPA, various states or tribes) reflect fish consumption rates higher than the old 6.5 grams/day
18 default?78
19 Although a handful of states have developed their own default fish consumption rates for
20 use in developing water quality criteria and standards (e.g., WA, NY, MN, others), by and large,
21 states have relied on EPA's default of 6.5 grams/day. Note that EPA, for its part, has never
22 disapproved state water quality criteria or standards developed using the 6.5 grams/day value on
23 the basis that this FCR did not adequately reflect higher-consuming or subsistence fishers affected
24 by that state's standards.79 As a result, a significant number of the state-issued water quality
25 criteria and standards currently in effect may rely on the 6.5 grams/day value.
26 When EPA develops national water quality criteria or when it steps in to develop water
27 quality criteria for states or tribes,80 it looks to its own default values. Because EPA's revisions
77See discussion of water quality criteria under CWA 304(a) and 303(c), at note . Note
that the term "water quality criteria," as used in CWA 303(c), is part of the definition of .a "water
quality standard," which is comprised of (1) designated uses of a water quality segment, together
with (2) water quality criteria necessary to support those uses. The term "water quality criteria"
or "criteria" is also used to refer to the scientific information and guidance to states and tribes
provided by the EPA pursuant to CWA 304(a). It is to the former usage that this section of this
Draft Report refers.
78Note that the Fish Consumption Workgroup is in the process of investigating this question.
This discussion is, therefore, tentative.
79Rick Healy, U.S. Environmental Protection Agency, Office of Water (Fish Consumption
Workgroup Conference Call, June 26,2001).
80The only example here is the case of the Confederated Tries of the Colville Reservation.
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1 have only been in place since fall of 2000, it is perhaps not surprising that many of the criteria
2 currently in effect may still reflect EPA's old default value of 6.5 grams/day.
3 Taken together, a significant portion of water quality criteria and standards currently in
4 effect may rely on the 6.5 grams/day value. As has been noted, this value grossly underestimates
5 consumption by many communities of color, low-income communities and tribes.
6 C. EXPOSURE: ASSUMPTIONS ABOUT SPECIES, PARTS, PREPARATION
7 As noted above, the fish, aquatic plant, and wildlife consumption and use practices of
8 communities of color, low-income communities, and tribes differ from those of the general
9 population. These differences in practices refer not only to the quantities of fish, plants and
10 wildlife consumed, but also to the species consumed; the fish, animal or plant parts used; and the
11 preparation methods employed. The studies upon which EPA and other agencies base their risk
12 assessment and risk management decisions, however, typically make assumptions about species
13 consumed, parts used, and preparation methods employed that reflect the practices of the general
14 population but do not depict fully or accurately the practices of affected communities and tribes.
15 For example, agencies typically assume that people eat or prefer certain species, and that they
16 refrain from eating a host of others, including "unusual" species such as sea urchin, sea cucumbers
17 or bottom-feeding fish. Agencies typically assume that people eat only the fillet of finfish, and that
18 they do not eat the fat, head, skin, bones, eggs, or internal organs. Agencies typically assume that
19 people dispose of the drippings or cooking fluid. One result is that agencies set water quality
20 standards and issue consumption advisories that are founded on an inaccurate picture of affected
21 communities' and tribes' exposure. In most cases, the resulting standards will therefore not be
22 sufficiently protective of members of these groups, whose different practices often expose them to
23 additional sources of contaminants beyond those considered by the agencies. For example, lead
24 accumulates in the bones, and most PCBs and most other persistent and bioaccumulative toxins
25 accumulate in tissue with high lipid content, such as fat or eggs. Also, consumption advisories
26 may include irrelevant or inappropriate information or recommendations, a point taken up in
27 Chapter 3.
28 There is considerable evidence that different groups have different practices with respect
29 to species consumed, parts used, and preparation methods employed. Much of this evidence is
30 contained in local knowledge, direct observation, or "anecdote," rather than in formal studies,
31 although there is a growing body of empirical work that confirms what affected communities and
32 tribes know to be the case. For example, an African-American fisher on the Detroit River
33 explains:
34 "I keep sheephead and carp [which are bottom-feeding fish] because I have a large
35 family to feed. "81
8lPatrick C. West and Brunilda Vargus, A Subsistence-Culture Model for High Toxic Fish
Consumption by Low Income Afro-Americans from the Detroit River 5 (forthcoming).
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1
According to a study by the Squamish Tribe:
2 "Children still teethe on dried clams ..." 82
3 According to a study recounting subsistence consumption practices in the Chignik Lake area,
4 Alaska:
5 "In exchange for the 'red' salmon, Chignik Lake [people] received shellfish such as
6 chitons (bidarkies), sea urchins (uduks), and butter clams from Perryville and Ivanof By
7 people, resources Chignik Lake people have to travel far to get. "83
8 According to a study of fishers on the Lower Fox River in the Green Bay, Wisconsin area:
9 "Of those who reported eating the fish, Caucasian anglers reported that they like to eat
10 the walleye . . . Most Asian [Hmong and Laotian] anglers reported that they prefer to
11 eat the White Bass. White Bass is on the list of 'Do Not Eat 'fish in the fish advisory. " 84
12 According to a study of the subsistence hooligan fishery on the Chilkat and Chilkoot Rivers in
13 Alaska:
14 "Historically, hooligan oil was used primarily for eating with other foods, but also for
15 preserving certain berries, roots, herbs, and salmon eggs. It was commonly mixed with
16 fresh berries. It was also consumed at feasts.
17 In 1990 and 1991, processors dipped crackers, raw vegetables, dry fish, or meat into the
18 fresh oil while it was still cooking in the vats. Pieces of hooligan meat were scooped up
19 and eaten from cooking vats. One processing group served fresh hooligan oil
20 accompanied by an array of other wild or fresh foods including smoked seal, smoked
21 salmon, and raw fruits and vegetables. Throughout the year, the oil generally was eaten
22 as a condiment with foods. It was added to boiled fish and meat, and spread or dipped
23 with a variety offoods. Herring eggs, other fish eggs, boiled fish, and black seaweed
24 were often eaten with hooligan oil. It was used for frying red sea ribbons in early
25 summer. Year-old oil was whipped and mixed with cranberries, or cranberries and coho
82The Suquamish Tribe, Fish Consumption Survey of the Suquamish Indian Tribe of the
Port Madison Indian Reservation, Puget Sound 9 (2001).
83Lisa Hitchinson-Scarbrough and James A, Fall, An Overview of Subsistence Salmon and
Other Subsistence Fisheries of the Chignik Management Area, Alaska Peninsula, Southwest
Alaska (1996) available at www.nativeknowledge.org/db/files/tp230.htm.
84Dyan M. Steenport, et al., Fish Consumption Habits and Advisory Awareness Among
Fox River Anglers, Wisconsin Medical Journal (November, 2000) available at
www.wismed.org/wmi/nov2000/fish.html.
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1 or sockeye salmon eggs. The aged oil was preferred, as it tended to whip more easily
2 than freshly rendered oil. "85
3 Velma Veloria, Washington State Representative, observes:
4 "Culturally, in the Filipino community, we eat the fin that many cut off, along with the
5 belly fat. We love the fat. We fry it up to make soup. "*6
6 According to a study of the Greenpoint/Williamsburg ("G/W") community in the Borough of
7 Brooklyn in New York City:
8 [Hispanics and Caribbean Americans] consume considerable quantities of fresh
9 shellfish, including parts of the fish not typically consumed (e.g., the highly
10 contaminated hepatopancreas of blue crabs)}1
11 According to a study of lead contamination in the Spokane River from the Idaho state line to the
12 Seven Mile Bridge:
13 "Russians and other immigrants said they use the whole fish, including bones and
14 internal organs, in fish stews. The lead concentrates in bone and brains, the fish study
15 showed. "88
16 According to a study recounting consumption practices in Bristol Bay, Alaska:
17 "A variety ofparts of the salmon were used for human consumption by Naknek River
18 residents during the study period. Some parts, such as fillets, are used from every fish.
19 Other parts, such as milt, were used on an occasional basis. . . .
20 [Fillets] were frozen, salted, canned, smoked, dried, or eaten fresh. Heads, particular
21 for those kings or large sockeyes, were used by many households. Fish head chowder
22 was the most common method ofpreparation. Among those persons who used fish
23 heads, it was ranked a favorite part of the fish, particularly of the king salmon.
24 Eggs were frequently used, either as bait or eaten. If eaten, eggs were boiled or
25 prepared as caviar. Fried milt was also used as food. . .. Milt can be frozen, but most
85Martha F. Betts, The Subsistence Hooligan Fishery of the Chilkat and Chilkoot Rivers
(1994) available at www.nativeknow1edge.org/db/files/tp213.htm.
86Velma Veloria, FCW Conference Call (October 23, 2001).
87Industrial Economics, Inc., Community-Specific Cumulative Exposure Assessment for
Greenpoint/Williamsburg New York2-2\ (1999).
88Karen Dorn Steele, Agencies Warn of Lead in River's Fish Advisory; Targets Fish
Consumption of Contaminated Fish Caught in Stretch of Spokane River, The Spokesman Review
A1 (June 21, 2000).
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I
1 reported using it fresh. The backbone was used two ways, either when a whole fish was
2 canned or as 'gumchuk.' Gumchuk is the local term for a backbone that is hung until the
3 outside layer of meat is dry, while the inside portion remains moist. It is then stored in
4 a freezer. The dried backbone piece is boiled for eating. The backbone itself is not
5 eaten, but sucked to extract the marrow and juices. The second method ofpreserving
6 the backbone was canning. This method of processing disintegrates the backbone which
7 is then eaten along with the meat.
8 Other salmon parts were used on a less frequent basis by local Naknek River residents.
9 Some households fixed salmon tails. These were either dried or smoked, or more
10 frequently, salted, soaked out, and boiled. Tips were mainly salted and then boiled. The
11 stomachs were cleaned and boiled by a few households. Livers and hearts were fried. "89
12 According to a study by the Suquamish Tribe:
13 "Nectar resulting from shellfish preparation methods was commonly used. Sixty-four
14 percent of respondents reported drinking the nectar and 24% reported using it in
15 cooking, in contrast to 19% who reported that they "threw it out. "90
16 Finally, as noted above, according to a recent survey of first- and second-generation Asian and
17 Pacific Islanders in King County, Washington - including members of Cambodian, Chinese,
18 Filipino, Hmong, Japanese, Korean, Laotian, Mien, Samoan, and Vietnamese ethnic groups:
19 [Asian and Pacific Islanders] consume a wide variety of seafod species, the most
20 frequently consumed being shellfish. These seafood, depending on their feeding and
21 habitat characteristics, and the tissue parts consumed pose varying chemical
22 contaminant risks to APIs. For example, certain fat soluble chemicals, e.g., PCBs, are
23 concentrated in the fat layer between the meat and the skin, potentially exposing such
24 consumer to higher contaminant levels than whose who simply eat the fillet. Eating the
25 fillet with skin is clearly a common practice in the API community. . .. Overall, skin was
26 consumed with the fillet 55% of the time. . ..
27 API community members appear to eat shellfish parts that are thought to contain higher
28 concentrations of chemical contamination, e.g., clam stomachs or the hepatopancreas of
29 crabs. Bivalve shellfish were consumed whole by 24% (geoduck) to 89% (mussels) of
30 respondents depending on the species. The "butter " as well as the meat of crabs were
31 consumed 43% of the time . . .Finally, cooking water, both for finfish and shellfish are
32 commonly use in cooking or directly consumed. "9I
89Judith M. Morris, The Use of Fish and Wildlife Resources by Residents of the Bristol
Bay Borough, Alaska (1985) available at www.nativeknowledge.org/db/files/tpl23.htm.
90The Suquamish Tribe, Fish Consumption Survey of the Suquamish Indian Tribe of the
Port Madison Indian Reservation, Puget Sound 51 (2001).
91Ruth Sechena, et al., Asian and Pacific Islander Seafood Consumption Study (1999)
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1 Yet, the studies upon which EPA and other agencies base their risk assessment and risk
2 management decisions often make assumptions about species consumed, parts used, and
3 preparation methods employed that do not reflect these practices. Consider the following
4 description of a study of Los Angeles Harbor fishers by Puffer, et al.:
5 From January to December of 1980, 1059 interviews with sportfishers were conducted in
6 several fishing areas of the Los Angeles Harbor area. No fisher was sampled more than
7 once. Data was collected on the following: amount of fish caught on the day of the
8 interview, the primary use of the fish (whether it was eaten by the fisher's family, given
9 away, thrown back, etc.), frequency of fishing, and other variables. Based on this data and
10 assuming that only an edible portion (1/4 to 'A) of the caught fish would be eaten,
11 median and 90th percentile consumption rates of 37 grams per day and 225 grams per day
12 were determined.92
13 If the fishers studied were members of a group that viewed the "edible portion" of the fish to
14 include more parts or a greater portion of the fish than assumed by the study authors, this
15 consumption would not have been registered and the resulting consumption rates would be lower
16 than the actual consumption rates of those studied. Although there is no way to know for exactly
17 how many of the fishers studied this would be the case; however, given that a significant number of
18 the fishers studied were what the authors characterized as "Orientals/Samoans," it would at least
19 be true for some. Importantly, as noted above, it is also often the case that the different parts
20 consumed by communities of color, low-income communities, and tribes are the very parts that
21 accumulate the toxins. For both of these reasons, these groups' exposure is often underestimated
22 by agencies relying on conventional studies and methods.93
23 Of note is that the CSFII study on which the EPA bases its default fish consumption rates
24 similarly relies on a variety of assumptions that tend to reflect the consumption practices of the
25 general population. The CSFII study asks participants to categorize and quantify their food intake
26 according to a list of approximately 6,600 different food codes, of which 460 relate to fish and
27 shellfish.94 The participants' responses are then matched with standard recipes contained in the
28 U.S. Department of Agriculture recipe file, in order to adjust the responses to reflect the quantity
29 of fish contained in the particular dish, assuming standard quantities and preparation methods.
30 The differences noted here have implications for EPA's risk assessment and risk
31 communication decisions. When agencies set water quality standards that are founded on an
92U.S. Environmental Protection Agency, Office of Water, Ambient Water Quality Criteria
Derivation Methodology Human Health: Technical Support Document 96 (1998) (emphasis
added).
93Note that the extent to which exposure is likely to be underestimated depends in part on
whether bioconcentration or bioaccumulation factors are determine using whole fish or merely
"edible portions" of fish.
941 U.S. Department of Agriculture, Continuing Survey of Food Intake by Individuals at
11-1-4(1998).
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1 inaccurate picture of affected communities' and tribes' exposure, the standards will not be
2 sufficiently protective of members of these groups. Although the examples above provide a sense
3 of the growing body of evidence of differences in consumption practices as between the general
4 population and communities of color, low-income communities, and tribes, there is still a need for
5 systematic study for many of these groups. Further, there is no place in EPA's current risk
6 assessment methods to account for these different practices and the higher level of exposure they
7 entail. The fact that often extraordinary levels of exposure - e.g., exposure to the large amounts of
8 contaminants accumulated in the hepatopancreas of crab - are simply unaccounted for by EPA and
9 other agencies when they set environmental standards is extremely troubling to affected
10 communities whose health is thereby relatively underprotected.
11 Finally, when agencies issue consumption advisories founded on a misunderstanding of
12 affected communities' baseline practices, they may include irrelevant or inappropriate information
13 or recommendations. This issue will be discussed at greater length in Chapter 3.
14 D. EXPOSURE: CONSUMPTION PRACTICES IN CONTEXT
15 The contamination of fish, aquatic plants, and wildlife is especially troubling to many
16 communities of color, low-income communities, and tribes because these groups consume and use
17 these resources in different cultural, traditional, religious, historical, economic, and legal contexts
18 than the "average American." Thus, it is not only that there are differences in the quantities of fish
19 consumed or in the species, parts, and preparation methods used, but also that there differences -
20 sometimes profound differences - in the place that these practices occupy in the lives of these
21 people and groups. This is abundantly demonstrated by both testimonial and social scientific
22 evidence. These practices are, in an important sense, indispensable to many of these communities
23 and tribes. These differences need to be understood (as best as is possible, given that there may
24 be difficult issues of cross-cultural translation) and accommodated in risk assessment, risk
25 management, and risk communication approaches.
26 In order to gain a full sense of the circumstances of exposure for many communities of
27 color, low-income communities, and tribes, it is necessary to understand the cultural context in
28 which exposure occurs. A handful of recent community- or tribally-conducted studies have
29 demonstrated the importance of context for understanding exposure. (The necessity of community
30 and tribal involvement in these and other studies is taken up below, in Section H.) For example,
31 the recent consumption study conducted by the Suquamish Tribe commences with an account of
32 "Cultural Patterns and Practices Affecting Suquamish Seafood Consumption," and notes the
33 importance of "[t]he stories that are woven into the statistics presented in this report. "95
34 It is not only a matter of reconsidering approaches to research, but also a matter of
35 reevaluating approaches to risk assessment and risk management. Tradeoffs or cost-benefit
95The Suquamish Tribe, Fish Consumption Survey of the Suquamish Indian Tribe of the
Port Madison Indian Reservation, Puget Sound Region 5-9 (2000).
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1 analyses that may be appropriate in other contexts may thus be inappropriate where those affected
2 engage in fishing and fish consumption for the interrelated cultural, traditional, religious,
3 historical, and economic reasons that characterize many affected groups' practices. Additionally,
4 such tradeoffs may run afoul of legal obligations to particular groups, e.g., civil rights-based
5 protections or trust- and treaty- based protections.
6 Importantly, this discussion has implications for agencies' choices among various risk
7 management tools. In some cases, for some affected groups, it will simply not be appropriate to
8 ask members to avoid risks by reducing their consumption, by switching to alternative species or
9 fishing locations, by avoiding certain fish parts, or by adopting different preparation methods.
10 Some or all of these practices may be prescribed for cultural, traditional, religious, historical,
11 and/or economic reasons. This issue will be discussed again in Chapter 3, but it should be
12 recognized that its implications are broader.
13 E. MULTIPLE EXPOSURES AND CUMULATIVE RISKS
14 Agencies currently employ risk assessment methods that evaluate the risks of
15 environmental contamination as if humans were exposed to only a single contaminant at a time, by
16 a single route of exposure. Humans, however, are often exposed to multiple contaminants at a time
17 or in succession, and often via more than one route of exposure. These contaminants may have
18 synergistic (or antagonistic) effects in combination, yet very little is known about these effects and
19 agencies do not take them into account.
20 It is the case, moreover, that members of communities of color, low-income communities,
21 and tribes are more likely to be exposed to multiple contaminants via multiple routes and pathways
22 than are members of the general population. As Stuart Harris, Confederated Tribes of the Umatilla
23 Indian Reservation, and Barbara Harper, Fourteen Confederated Tribes of the Yakama Nation,
24 observe:
25 The issue of multiple contaminants is significant, and it is the norm, at least in the
26 Columbia River system, for over 100 contaminants to be identified in fish tissues. While
27 only a few might be at concentrations that trigger an action in any given fish, the
28 combined risk for one fish or for the many species which comprise the native diet can be
29 quite high. If these chemicals are in the fish, they are also in the water and/or sediment,
30 so other routes of exposure are important. The toxicity of a mixture of dozens of
31 carcinogens plus dozens of noncarcinogens . . . needs to be examined.96
32 Similarly, communities along the Mississippi River Corridor between New Orleans and Baton
33 Rouge, whose members are largely African American and/or low-income, are exposed to an
96Barbara Harper and Stuart Harris, Tribal Technical Issues in Risk Reduction Through
Fish Advisories, Proceedings of the American Fisheries Society, Forum on Contaminants in Fish
17, 19 (1999).
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1 unconscionable level and mix of contaminants, via several routes and pathways.97 These multiple
2 affronts include exposure to a host of toxic air pollutants (emitted at levels several times the levels
3 elsewhere in the United States);98 to mercury and numerous other contaminants in the fish, oysters
4 and crayfish that are often staple foods;99 and to vinyl chloride and other contaminants in drinking
5 water.100 And northern Ojibwa tribes are exposed to mercury via multiple resource pathways,
6 given its uptake by fish and its presence in and on wild rice.
7 EPA and other agencies have begun to look at how to address multiple exposures and
8 cumulative risk. For example, and to its credit, EPA's Office of Policy has recently conducted a
9 cumulative exposure project to begin to assess the total exposure of more than 100 contaminants
10 across multiple pathways; one component of this project is a community-specific study in the
11 Greenpoint/Williamsburg community in Brooklyn, NY, designed to assess exposures to a variety
12 of contaminants via fish consumption, water ingestion, air inhalation, and lead exposure.101 This
13 urban community is one of the poorest in New York City; it is comprised of substantial African
14 American, Hispanic (including Caribbean American), Polish, Italian, and Hasidic
15 subpopulations.102 It is well recognized, however, that many of the issues of multiple exposures
16 and cumulative risks remain unaddressed for the bulk of risk assessments currently being
17 conducted.
97Charles Lee, ed., United Church of Christ Commission for Racial Justice, From
Plantations to Plants: Report of the Emergency National Commission on Environmental and
Economic Justice in St. James Parish, Louisiana (1998).
98Id.
"Telephone Interview, Barry Kohl, Department of Geology, Tulane University (October
17,2001); Louisiana Department of Environmental Quality and Louisiana Department of Health
and Hospitals, Human Health Protection Through Fish Consumption and Swimming Advisories
in Louisiana, available at www.deQ.state.la.us/surveillance/mercurv/fishadvi.htm (listing
advisories statewide, many of wide apply to the waters of the Mississippi River Corridor).
100See, e.g., Chris Frink, State Knew Well was Contaminated, The Advocate Online,
available at www.theadvocate.com/news/storv.asp?storvid=20619: Telephone Interview, Mary
Lee Orr, Louisiana Environmental Action Network (October 17, 2001).
I01lndustrial Economics, Inc., Community-Specific Cumulative Exposure Assessment for
Greenpoint/Williamsburg New York 1-1- 1-5 (1999).
102Id. at 1-2.
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1 F. SUSCEPTIBILITY AND CO-RISK FACTORS
2 Even if it were the case that all individuals' exposure circumstances were the same - that
3 they came in contact with the same environmental contaminants, by the same routes, at the same
4 frequency, for the same duration - they might not suffer the same adverse health effects as a result
5 of this contact due to differences in their susceptibilities and differences in the extent to which
6 their life circumstances allowed them to be prepared for and recover from the insult of an
7 environmental contaminant, i.e. in their "co-risk" factors.
8 One might be more or less susceptible to a given level or "dose" of an environmental
9 contaminant depending on one's life stage (e.g., children or the elderly may be more susceptible);
10 one's prior exposure to the same or other contaminants (e.g. those who have become sensitized
11 through prior exposures and now have more severe responses); one's genetic makeup (e.g., genetic
12 susceptibilities that occur in a small but significant percentage of the population); or one's existing
13 conditions or diseases (e.g., asthmatics).103 Although very little is known about the coincidence of
14 some of these factors - genetics, for example - and whether one is a person of color, a low-
15 income person, or a Native American, it is fair to say that there is a significant correlation for
16 others - prior exposures, or access to adequate health care, for example.104
17 One may also be more or less able to prepare for and recover from exposure to given level
18 or "dose" of an environmental contaminant depending on the various resources an individual,
19 community, group, or tribe can call upon and depending on other aspects of one's life
20 circumstances. Thus, one may be more or less able to withstand and recover from a toxic insult
21 depending on one's income, the quality of one's baseline diet, whether one is employed, whether
22 one has access to adequate health care, whether one has adequate insurance, and whether one's
23 community or tribe can assist to provide coping systems.105
24 Current risk assessment, risk management and risk communication methods do not account
25 adequately for susceptibilities and co-risk factors that affect individuals' responses to the
26 environmental contaminants with which they come in contact. This is especially troubling to the
27 extent that current risk estimates are made assuming the life circumstances of the general
28 population or the affluent and fail thereby to account for the particular susceptibilities and co-risk
29 factors that tend to be clustered in or characterize various communities of color, low-income
30 communities, and tribes. To take but a single co-risk factor by way of example, consider that of
31 the respondents surveyed in a recent study of Asian and Pacific Islander communities in King
32 County, Washington, 90% of Samoans, 62% of Vietnamese, 60% of Mien, 50% of Cambodians
33 and 45% of Laotians live under the federal poverty line.106 Among American Indians and Alaskan
1U3Marty Halper, OEJ Science Advisor Note: permission to cite not yet granted.
104See e.g., Robert R. Kuehn, The Environmental Justice Implications of Quantitative
Risk Assessment, 1996 U. 111. L. Rev. 103.
I05Marty Halper, OEJ Science Advisor Note: permission to cite not yet granted.
l06Ruth Sechena, et al., Asian and Pacific Islander Seafood Consumption Study (1999).
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1 Natives, one in three lives below the federal poverty line.107 Here again, more data need to be
2 gathered about the particular susceptibilities and co-risk factors relevant to communities of color,
3 low-income communities, and tribes. And here, too, EPA's and other agencies' risk assessment,
4 management and communication methods need to be able to incorporate and address differences in
5 susceptibilities and co-risk factors.
6 G. SUPPRESSION EFFECTS AND THEIR IMPLICATIONS
7 A "suppression effect" occurs when a fish consumption rate (FCR) for a given population,
8 group, or tribe reflects a current level of consumption that is artificially diminished from an
9 appropriate baseline level of consumption for that population, group, or tribe. The more robust
10 baseline level of consumption is suppressed, inasmuch as it does not get captured by the FCR.108
11 There are two circumstances in which suppression effects have implications for an
12 environmental justice policy that seeks to sustain healthy aquatic ecosystems and to protect the
13 health and safety of people consuming fish, shellfish, aquatic plants, and wildlife for subsistence,
14 traditional, cultural, or religious purposes. In the first, a suppression effect may arise when an
15 aquatic environment and the fish it supports have become contaminated to the point that humans
16 refrain from consuming fish caught from particular waters. Were the fish not contaminated, these
17 people would consume fish at more robust baseline levels. In the second, a suppression effect may
18 arise when fish upon which humans rely are no longer available in historical quantities (and
19 kinds), such that humans are unable to catch and consume as much fish as they had or would. Such
20 depleted fisheries may result from a variety of affronts, including an aquatic environment that is
21 contaminated, altered (due, among other things, to the presence of dams), overdrawn, and/or
22 overfished. Were the fish not depleted, these people would consume fish at more robust baseline
23 levels.
24 The implications for environmental justice policy will depend in part upon which of these
25 two scenarios accounts for the suppression effect observed. They will also depend upon how the
26 more robust "baseline" level is defined - an exercise that itself raises important environmental
27 justice issues. This question of an appropriate "baseline" will in turn be related to the particular
28 group affected. In many cases, for example, a tribe will be able to cite a historical "point of
29 reference" that would describe an appropriate baseline in terms of environmental quality,
l07See Chapter 4 for a more complete discussion of the susceptibilities and co-risk factors
of American Indians and Alaskan Natives.
l08This effect was recognized and named in an early survey of Michigan sport anglers, and
cited by the study's authors as a basis for adjusting the observed FCR upward. Patrick West, et
al., Michigan Sports Anglers Fish Consumption Survey: Supplement I, Non-Response Bias and
Consumption Suppression Effect Adjustments (School of Natural Resources, University of
Michigan, Ann Arbor; Natural Resource Sociology Research Lab, Technical Report No. 2 (1989).
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1 geographic delineation, and treaty rights.109 In each case, there would be important questions of
2 history, culture, and aspiration that would need to be considered in determining an appropriate
3 baseline; that is to say, an appropriate baseline might mean examination into what people had
4 consumed as well as aspiration for what people would consume were there "fair access for all to a
5 full range of resources,"'10 or were the conditions fulfilled for full exercise of treaty- and trust-
6 protected rights and purposes.
7 When environmental agencies employ a FCR that does not capture fully the consumption
8 that is suppressed - under either scenario in which suppression effects occur - they set in motion a
9 sort of downward spiral whereby the resulting environmental standards permit further and further
10 contamination or depletion of the fish and so diminished health and safety of people consuming
11 fish, shellfish, aquatic plants, and wildlife for subsistence, traditional, cultural, or religious
12 purposes. These effects play out somewhat differently in each of the two scenarios, as elaborated
13 below.
14 1. Contamination
15 Health and environmental agencies have increasingly responded to contaminated aquatic
16 environments by issuing fish consumption advisories warning humans to limit or stop their
17 consumption of fish from polluted waters.111 In many cases, individuals have responded to these
18 advisories and/or to a greater general awareness of the dangers of consuming contaminated fish by
19 eating less fish.112 The extent to which individuals respond to fish consumption advisories by
20 reducing their consumption varies.113 In some cases, this is due to the fact that advisories are more
21 effectively communicated to some affected populations than others. Among other things,
22 advisories may not be communicated in culturally or language-appropriate ways. In other cases,
23 this is due to the fact that, for cultural, traditional, spiritual, economic, and/or other reasons, the
24 individuals to whom the advisories are addressed do not respond by reducing their consumption.
109Moses Squeochs, Director, Environmental Program, Fourteen Confederated Bands of
Yakama Nation (C3G Conference Call, August 3,2001). For the Bands of the Yakama Nation, for
example, this point of reference would be 1855. Id.
""Principles of Environmental Justice, Proceedings of the First National People of Color
Environmental Leadership Summit (1991).
11'U.S. EPA, Office of Water, Update: National Listing of Fish and Wildlife Advisories 2
(April 2001), available at www.epa.gov/ost/fish.
112 See, e.g., Telephone interview with Shawn Martin, Clean Water Manager, St. Regis
Mohawk Tribe Environment Division (July 12, 2001).
"3Studies suggest varying degrees of both (1) awareness of fish consumption advisories
by members of the public and (2) "compliance" with fish consumption advisories through changed
fish consumption practices even when members of the public are aware of fish consumption
advisories. See e.g., John Tilden et. al, Health Advisories for Consumers of Great Lakes Sport-
Fish: Is the Message Being Received?, 105 Environmental Health Perspective 1360 (Dec. 1997);
Hugh F. MacDonald and Kevin J. Boyle, Effect of a Statewide Sport Fish Consumption Advisory
on Open-Water Fishing in Maine, 17 Journal of Fisheries Management 687 (1997).
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1 When environmental agencies set or approve water quality standards that are meant to be
2 protective of human health, agencies look to gauge humans' exposure by how much fish they are
3 consuming, i.e. their fish consumption rate. Agencies estimate or measure this FCR, and on this
4 basis determine how much pollution can remain in or be discharged to the relevant waters and
5 sediments and still result in what have been deemed "acceptable" levels of contamination and risk
6 to human health. Notably, the FCRs on which agencies rely are meant to represent current rates of
7 fish consumption, rates that may reflect a suppression effect as outline above.
8 When environmental agencies set or approve water quality standards that rely on a picture
9 of exposure that takes people to be eating smaller quantities of fish, agencies will permit relatively
10 greater quantities of pollutants to remain in or be discharged to the waters and sediments. That is
11 to say, agencies will set less protective standards. The downward spiral thus begins, as these
12 aquatic environments and the fish they support will be permitted to become increasingly
13 contaminated, and some individuals in turn might be expected to respond by reducing their fish
14 consumption even further. The downward spiral would continue, as agencies would then register
15 this even lower rate of consumption, set new standards assuming that little or no human exposure
16 to contaminants occurs via fish consumption, and permit even greater quantities of pollutants in
17 aquatic ecosystems.
18 2. Depletion
19 Many species of fish upon which people have traditionally relied are no longer readily
20 available, due to habitat degradation and diminishment, ecosystem alteration, overfishing, and
21 other causes. In the Pacific Northwest, for example, compromised aquatic ecosystems mean that
22 fish are no longer available for tribal members to take, as they are entitled to do in exercise of
23 their treaty rights. These numerous affronts have resulted in 24 salmon and steelhead runs being
24 listed as endangered or threatened under the Endangered Species Act, and other fisheries being
25 depleted. With fewer fish available to be taken, many tribal members have been prevented from
26 consuming fish at the level that they would have were they able to exercise their treaty rights to the
27 fullest extent.114
28 Again, when environmental agencies set or approve water quality standards that rely on a
29 picture of exposure that takes people to be eating smaller quantities of fish, agencies will permit
30 relatively greater quantities of pollutants to remain in or be discharged to the waters and
31 sediments. Thus, tribal members are not only left with fewer fish to take and consume, but those
32 that remain will be permitted to become increasingly contaminated. If fish stocks continue to
33 decline, a variation on the downward spiral described above can be expected, with lower FCRs
34 resulting from the fact that there are simply fewer fish to be consumed. Again, agencies would
35 then register this even lower rate of consumption, set new standards assuming that little or no
36 human exposure to contaminants occurs via fish consumption, and permit even greater quantities of
37 pollutants in aquatic ecosystems.
ll4Telephone Interview with Kelly Toy, Shellfish Biologist, Tulalip Tribes (November 9,
1999) [as cited in . . . or re-confirm permission to cite here].
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1 It should be noted, too, that contamination is related to depletion. To take but one example,
2 among the contaminants that have contributed to the decline and listing of salmon populations in the
3 Pacific Northwest are numerous pesticides. Recent studies have shown that pesticides disrupt the
4 ability of salmon to develop properly and to home to their natal streams; these harmful effects are
5 in addition to their toxic effects on humans and other animals that consume fish.115
6 3. Evidence of Suppression Effects
7 There is limited evidence regarding the existence and extent of suppression effects. This is
8 likely due in part to the fact that this term for the phenomenon hasn't been widely used - indeed,
9 although diminished fish consumption due to contamination and/or depletion has been observed in
10 numerous contexts, it is believed that this Report is the first document to bring these observations
11 together under a single umbrella term. Nonetheless, there is a growing body of evidence of
12 suppression effects due to contamination and/or to depletion. Among other sources of data are
13 recent studies conducted to evaluate the effectiveness of fish consumption advisories for
14 contaminated waters. To the extent that such studies find that people have "complied" with
15 advisories by eliminating or lowering their consumption of fish, they provide evidence of a
16 suppression effect - an artificially diminished level of consumption relative to a more robust
17 baseline level. Too, community-based or tribally-conducted fish consumption studies often
18 document broadly the subject group's fish consumption practices. Often, these studies include
19 information about historic consumption and explore reasons for altered and diminished
20 consumption practices.
21 Some of the available evidence documents suppression effects due to contamination. For
22 example, as noted above, West, et al. recognized and named this effect in an early survey of
23 Michigan sport anglers."6 In a recent study of Lake Ontario anglers, Connelly, et al. cite recently
24 altered health advisories that resulted in less Lake Ontario fishing as the reason that only 43% of
25 anglers indicated that they had fished Lake Ontario in 1992.117 A recent study of the Laotian
26 communities in the San Francisco Bay area reports that 19.7% of survey respondents indicated that
27 they had changed their fish consumption habits over the past five years, with 68.9% of these
28 indicating that they eat less fish now.118 Among the reasons cited for eating less fish: bay fish are
U5Note recent coalition suit against EPA; see Oregon Pesticide Action Network,
Diminishing Returns: Salmon Decline and Pesticides (1999).
ll6Patrick West, et al., Michigan Sports Anglers Fish Consumption Survey: Supplement I,
Non-Response Bias and Consumption Suppression Effect Adjustments (School of Natural
Resources, University of Michigan, Ann Arbor; Natural Resource Sociology Research Lab,
Technical Report No. 2 (1989).
I17U.S. Environmental Protection Agency, Office of Water, Ambient Water Quality
Criteria Derivation Methodology Human Health: Technical Support Document 97 (1998).
"8Audrey Chiang, Asian Pacific Environmental Network, A Seafood Consumption Survey
of the Laotian Community in West Contra County, California 18 (1998). Note that 31% of those
who indicated that their consumption practices had changed indicated that they eat more fish now.
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1 "unsafe to eat."119 Ken Jock, Director, Akwesasne Environment Program, provides an account of
2 the effects of PCB contamination in the St. Lawrence River on the Mohawks at Akwesasne:
3 "This all used to be a fishing village. That's all gone now. There's only one family that
4 still fishes. . . . Our traditional lifestyle has been completely disrupted, and we have
5 been forced to make choices to protect our future generations. . . . Many of the families
6 used to eat 20-25 fish meals a month. It's now said that the traditional Mohawk diet is
1 spaghetti. "'20
8 Other available evidence documents suppression effects due to depletion or due to
9 depletion and contamination. For example, as noted above, in the Pacific Northwest compromised
10 aquatic ecosystems and depleted salmon and other fisheries mean that fish are no longer available
11 for tribal members to take, as they are entitled to do in exercise of their treaty rights. According to
12 Kelly Toy, Shellfish Biologist, Tulalip Tribes, with fewer fish available to be taken, many tribal
13 members have been prevented from consuming fish at the level that they would have were they
14 able to exercise their treaty rights to the fullest extent.121 Moses Squeochs, Director,
15 Environmental Program, Fourteen Confederated Bands of Yakama Nation, confirms similarly
16 depleted fisheries, diminished opportunities for catching and consuming fish, and compromised
17 treaty rights.122 A recent study of the Suquamish Tribe reports that approximately 2/3 of
18 respondents (67%) indicated that their consumption patterns had changed over time, with 68% of
19 these indicating that they ate less seafood (57%) or ate a different mix of species (11%) than
20 twenty years ago.123 "Most explanations for changes in consumption related to changes in family
21 composition which affected harvesting patterns, accessibility/availability of finfish and shellfish,
22 and restricted harvesting opportunities due to 'red tides' and increased pollution.'"24 As one
23 respondent elaborated:
24 "We used to eat lingcod, sole, rockfish, flounder, and I caught Grunters for my
25 grandfather. All of my brothers used to fish; now, only one of us can because the fish
26 are diminishing in number. . . The water is not clean. Septics are malfunctioning. . .
27 There's pollution from the Navy, and the filling at Keyport had a big effect.. . Beaches
28 are dug out... We need to reseed and enhance our beaches in order to have the number
119Id.
120 Winona LaDuke, All Our Relations: Native Struggles for Land and Life 17 (1999)
(quoting Ken Jock, Director, Akwesasne Environment Program).
l21Telephone Interview with Kelly Toy, Shellfish Biologist, Tulalip Tribes (November 9,
1999) [as cited in ... or re-confirm permission to cite here].
122Moses Squeochs, Director, Environmental Program, Fourteen Confederated Bands of
Yakama Nation (C3G Conference Call, August 3, 2001).
l23The Suquamish Tribe, Fish Consumption Survey of the Suquamish Indian Tribe of the
Port Madison Indian Reservation, Puget Sound 2 (2001). Note that 31% of those who indicated
that their consumption practices had changed indicated that they eat more fish now.
124Id.
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1 of clams we need and are used to . . . We eat more geoduck now, because more are
2 available to us, but we used to dry oysters and clams; they 're good for teething. . .
3 There is, however, a need to understand more fully the extent and causes of suppression
4 effects. Among other things, the evidence presented here shows that people's responses to
5 contamination and depletion are complex and varied. Further exploration of these effects would
6 be useful. In particular, where consumption by communities of color, low-income communities,
7 and tribes seems relatively low, research is needed to ascertain whether a suppression effect is at
8 work.
9 4. Implications
10 To the extent that people are prevented from consuming fish as they had or would due to
11 contamination or depletion of the fish and aquatic ecosystems that support the fish, there are
12 important implications for EPA's and other agencies' risk assessment, risk management, and risk
13 communication approaches. As noted above, when environmental agencies set or approve water
14 quality standards that rely on a picture of exposure that takes people to be eating smaller quantities
15 of fish, agencies will permit relatively greater quantities of pollutants to remain in or be
16 discharged to the waters and sediments. That is to say, agencies will set less protective standards.
17 The downward spiral thus begins, as these aquatic environments and the fish they support will be
18 permitted to become increasingly contaminated, and some individuals in turn might be expected to
19 respond by reducing their fish consumption even further. Or some individuals in turn might find
20 that there are fewer fish to be caught (and those that remain to be increasingly contaminated) or
21 there are fewer places open for shellfish harvesting. In either case, studies would reflect even
22 lower FCRs, and agencies would then set new standards assuming that little or no human exposure
23 to contaminants occurs via fish consumption, and permit even greater quantities of pollutants in
24 aquatic ecosystems.
25 In order to avoid this downward spiral, EPA should identify appropriate "baselines" that
26 reflect the more robust levels of consumption and employ these baselines in setting and approving
27 water quality criteria. There is, of course, the difficult question of what the appropriate baseline
28 should be, and the answer will likely differ according to the circumstances surrounding and the
29 group affected by the observed suppression effect. For example, as noted above, a tribe will often
30 be able to cite a historical "point of reference" that would describe an appropriate baseline in
31 terms of environmental quality, geographic delineation, and treaty rights.126 In each case, there
32 would be important questions of history, culture, and aspiration that would need to be considered
33 in determining an appropriate baseline. An appropriate baseline might mean examination into
34 what people had consumed as well as aspiration for what people would consume were there "fair
l25Id. at 68 (ellipses in original).
l26Moses Squeochs, Director, Environmental Program, Fourteen Confederated Bands of
Yakama Nation (C3G Conference Call, August 3, 2001). For the Bands of the Yakama Nation, for
example, this point of reference would be 1855. Id.
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1 access for all to a full range of resources,'"27 or were the conditions fulfilled for full exercise of
2 treaty- and trust-protected rights and purposes. It is recognized that the resulting baseline would
3 surely require EPA to depart from the then-current estimates of actual fish consumption by the
4 relevant group. In so doing, EPA would need to shift its emphasis from a descriptive assessment
5 to a normative assessment. This shift is not without precedent,128 however, and, importantly,
6 would seem to be necessary in some cases to avoid the downward spiral noted here.
7 H. RESEARCH METHODS AND ISSUES
8 It will often be crucial to the relevance, accuracy and acceptability of research in these
9 areas that the affected community, group or tribe be central to the process throughout. In the case
10 of consumption studies, for example, affected groups need to be involved from the earliest stages
11 (e.g., project conception, group/subgroup identification, survey design) through implementation
12 (e.g., survey administration, data interpretation) to utilization (e.g., community outreach regarding
13 results, risk assessment, management and communication incorporating results). This is not only a
14 matter of community access or tribal consultation, but importantly, a matter of scientific
15 defensibility. There are currently sizeable gaps in the data and methods that are being used by
16 EPA and other agencies to assess, manage, and communicate risk, and it is often the case that these
17 gaps can only be filled by community- and tribally-based research. Communities and tribes have
18 expertise that is simply not going to be able to be replicated by non-member researchers. This
19 point is well supported by the large literature on "participatory research." Consider the following
20 two examples of the importance of affected group involvement:
21 Asian and Pacific Islanders in King County. Washington.129 A study of the Asian and
22 Pacific Islander communities (including members of Cambodian, Chinese, Filipino,
23 Hmong, Japanese, Korean, Laotian, Mien, Samoan, and Vietnamese communities) in
24 Seattle and King County, Washington was conducted by the Refugee Federation Service
25 Center (the largest social aid organization for recent immigrants and refugees in King
26 County) and the University of Washington. The study was funded by an Environmental
27 Justice Community/University Partnership Grant through EPA Region 10. The community
28 played a pivotal role in the study, from its initiation through the final report. A Community
29 Steering Committee, comprised of members representing each of the ten affected ethnic
30 groups, conducted the planning, design and development of the survey. They worked ,
31 together with and received input from a Technical Committee (comprised of statisticians,
32 toxicologists, epidemiologists, and other technical advisors) and an Advisory Committee
33 (comprised of representatives from agencies, industry, and the medical profession). As the
34 study authors note: "During the study period, the researchers had frequent interactions with
35 the community because the researchers viewed the study as 'by the API community,'
'"Principles of Environmental Justice, Proceedings of the First National People of Color
Environmental Leadership Summit (1991).
l28Cite to work on Columbia River restoration.
l29Ruth Sechena, et al., Asian and Pacific Islander Seafood Consumption Study (1999).
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1 instead of 'for the API community.' This interaction and cooperation helped the study team
2 in its understanding of community concerns and therefore gained the support of the
3 community, which was vital for the completion of this study involving ten ethnic groups
4 with diverse cultural backgrounds.'"30 Among other things, the Community Steering
5 Committee was instrumental to several aspects of the study design. It explained that the use
6 of creel, mail, or telephone surveys would be culturally inappropriate, indicating that API
7 community members would be unlikely to participate at all in a survey conducted by these
8 methods; instead, a face-to-face questionnaire method was selected. It identified the
9 seafood species and parts most often consumed by community members, and explained the
10 usual preparation methods - elements crucial to questionnaire design. It also suggested
11 interviewers that would have the requisite cultural knowledge and fluency in both English
12 and the various native languages of the study participants. Thus, for these and other
13 reasons, this study likely produced more accurate data by (1) avoiding the non-response
14 bias that likely plagues other studies attempting to gauge API consumption practices; (2)
15 including quantities consumed where the species or part consumed might have been
16 excluded altogether from other, more generalized studies (e.g., clam stomachs or the
17 hepatopancreas of crabs); (3) identifying consumption and preparation practices that differ
18 from the general population and so bear on risk assessment, risk management and risk
19 communication decisions (e.g., consuming the "butter" as well as the meat of crabs). There
20 are also other important advantages of a community-based study, including community
21 education and empowerment. These issues will be taken up in Chapter 3.
22 The Suauamish Tribe.131 A study of Suquamish Tribal members (adults and children)
23 living on and near the Port Madison Indian Reservation was conducted upon approval by
24 the Suquamish Tribal Council. The study was conducted by the Suquamish Tribe and
25 funded by the Agency for Toxic Substances and Disease Registry through a grant to the
26 Washington State Department of Health. The stated purpose of the study was to determine
27 seafood consumption rates, patterns, and habits of members of the Tribe and, secondarily,
28 to identify "cultural practices and attributes which affect consumption rates, patterns, and
29 habits of members of the Suquamish Tribe.'"32 A Project Support Team was established,
30 comprised of two members of the Suquamish Tribal Council, the Director of Human
31 Services, and the Self Governance Director, all of whom are enrolled Suquamish Tribal
32 members. The study manager from the Suquamish Tribe Fisheries Department worked
33 together with individuals from the Washington Department of Health. Suquamish Elders
34 were consulted concerning fish and shellfish important to tribal members for commercial,
35 subsistence, and ceremonial purposes.133 Additionally, transcripts of the Suquamish Tribe
36 Oral History Project of 1982, anthropological and archeological literature were consulted
l30Id.
13'The Suquamish Tribe, Fish Consumption Survey of the Suquamish Indian Tribe of the
Port Madison Indian Reservation, Puget Sound Region (2000).
132Id. at 1.
133Id.
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1 to document cultural practices.134 Tribal members were integral to the study design, survey
2 administration, and data interpretation. The study was designed to determine consumption
3 rates by individual type of finfish and shellfish - information of interest to the tribe and
4 unavailable through other relevant fish consumption studies. Consumption data were
5 gathered using a survey questionnaire and face-to-face interviews; these interviews were
6 conducted by tribal members. These interviewers set up and conducted meetings with
7 survey participants "in accordance with cultural norms.'"35 The personal knowledge of
8 those conducting the study enabled them to interpret the resulting data in a manner that
9 ensured accuracy. For example, the data revealed some large fish consumption rates,
10 which might be designated as "outliers" according to strictly numerical criteria. Because
11 this designation often carries with it an assumption of error, reported consumption rates for
12 outliers are often adjusted downward. In this case, however, "the study staff were familiar
13 with a number of the individuals with large consumption rates and maintained that the
14 reported rates were likely to reflect real consumption. Thus, no adjustment for potential
15 outliers has been carried out.'"36 Thus, for these and other reasons, this study likely
16 produced more relevant, contextualized, and accurate information. Tribally-managed
17 studies are also a manifestation of tribal self-governance and, in the case of the Washington
18 treaty tribes, of their status as co-managers of the fish, shellfish and aquatic resources.
19 Issues unique to tribes will be taken up at greater length in Chapter 4.
20 Other community-based or tribally-conducted studies have demonstrated similar
21 advantages in terms of relevancy, accuracy, acceptability and appropriateness to the affected
22 group. The community-based study team for the consumption survey of Laotian communities in
23 West Contra County, for example, was able to identify and take advantage of important community
24 festivals as a means of reaching survey participants;137 to appreciate the existence and relevance of
25 subgroups within the larger Laotian community;138 and to interpret data in light of cultural,
26 historical, social, economic and other relevant factors.139 In the case of tribes, members have often
134Id. at 3.
135Id. at 18-19.
136Id. at 23. The study authors note that, in the end, this inclusion had little influence on the
reported percentiles, with all but one (the 95th percentile for "all finfish") being unaffected. Id. at
70-71.
'"Audrey Chiang, Asian Pacific Environmental Network, A Seafood Consumption Survey
of the Laotian Community in West Contra Costa County, California 6 (1998) (describing
outreach conducted at the Laotian New Year's Festival, "one of the most well-attended community
events in Richmond").
138Id. at 7-10 and 35-36 (discussing representation of the various ethnic groups within the
Laotian community, including Mien (Christian), Mien (non-Christian), Lao, Khmu, Thaidum, Lue,
Hmong, Lahu, and a Mien group from a different village in Laos than the Mien who are members of
the first two groups).
I39ld. at 36 (discussing likelihood that many respondents who fish in San Francisco Bay
indicated that they did not, for fear that the survey was linked to law enforcement about fishing
from the Bay, fear of losing disability benefits if they said they went fishing, or concern about
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1 lived their entire lives - and their families and ancestors have lived for generations - in the same
2 place, about which they therefore have vast amounts of knowledge. In addition, many tribes today
3 have developed extensive environment and resources management departments. Tribes and their
4 members will thus be uniquely positioned to identify ecological changes,140 suggests subjects for
5 inquiry, and design and implement useful experiments, surveys and studies.
6 To the extent that research is conducted by and for communities and tribes, it can serve the
7 additional important function of capacity building. This goal is important and an issue of
8 environmental justice in and of itself, for both communities and tribes. And, to the extent that
9 communities and tribes see that their concerns are shaping the research to be conducted, that the
10 information gathered will be relevant from their perspective, and that their members stand to
11 enhance their skills, knowledge and capacity in the process - as opposed to merely providing
12 information that enables others to enhance their skills, knowledge and capacity - participation and
13 trust are likely to be increased, and accuracy thereby enhanced.141
14 Indeed, those affected are likely to have a unique and heightened interest in gathering
15 relevant and accurate data. Given that they depend on the resource in question, they have an
16 interest in determining precisely the nature and extent of the contamination, in producing a full and
17 accurate picture of their exposure, and in addressing any resulting problems through risk
18 management and risk communication.142 It may be the case as well that affected communities and
19 tribes are less likely than other governmental entities to be subject to the competing claims of
20 multiple stakeholders - enabling them, among other things, to devote their full time and attention to
21 the particular problem.
'"losing the power to feed their family traditionally cooked meals'" and noting that the survey
results therefore likely understated the extent of fishing in the Bay by community members).
140See, e.g., Gerald Nicholia, Tanana, Interior Regional Meeting, Alaska Traditional
Knowledge and Native Foods Database, available at www.nativeknowledge.org/db/concerns.asp
("But one thing I see is changes in the animals we live off of. The mining has affected us; mercury
levels in our fish. I don't know what is in our moose. Few muskrats in our area. I don't know
what happened to the whitefish in our area. It's hard to pinpoint.. .. But I know that there are a lot
of changes in the Tanana area.").
141See, e.g., id. at 37 (noting that the survey planning team made connections with the
Laotian Organizing Project's ongoing capacity building efforts regarding community health and
safety, which motivated many community members to participate in the survey and explaining:
"The planning team was originally hesitate about the perception commonly held by community
members of outsiders taking information from the community without community people seeing the
benefits of research. Linking the survey to a community based organization helped counter this
perception.").
142Consider, e.g., the work of the Shoalwater Tribe to monitor shellfish in the Willapa Bay,
described at greater length in Chapter 4. Electronic-mail Interview, Gary Burns, Environmental
Programs Director, Shoalwater Bay Indian Tribe (October 3, 2001).
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1 Funding is crucial to the ability of affected communities and tribes to be involved in
2 research. Although community and tribal members have considerable expertise to offer, they often
3 have minimal or no funding to support their work. To a person, community members, tribal
4 members, inter-tribal organization staff, and state and local agency representatives who work with
5 affected groups stressed the importance of adequate funding. Diana Lee, a research scientist with
6 the California Department of Health Services who has worked extensively with communities as
7 part of the Palos Verdes Fish Contamination Outreach and Education Project and other studies in
8 the San Francisco Bay area, is emphatic:
9 "I cannot underscore enough the need to provide funding to affected communities so
10 that they can participate fully in every aspect of the research process, from needs
11 assessment to dissemination of the results. Funding, moreover, needs to be provided on
12 an on-going, rather than one-time, basis. "143
13 EPA, in particular, has to date helped fund several studies and projects that have contributed
14 enormously to the advancement of research relevant to affected communities and tribes. The EPA
15 has helped fund such important work as the fish consumption study of and by Asian and Pacific
16 Islanders in King County, Washington; the fish consumption study of and by the four tribes who are
17 members of the Columbia River Inter-Tribal Fish Commission; and the community-specific
18 cumulative risk assessment for the Greenpoint/Williamsburg community in Brooklyn, New York.
19 Affected communities and tribes have commended EPA's efforts to this end. However, they noted
20 that the need for funding to enable communities and tribes fully to be involved in research and
21 decisions affecting risk assessment, management, and communication far outstrips the funding that
22 has been so far made available.
l43Telephone Interview, Diana Lee, Research Scientist, California Department of Health
Services (October 26, 2001).
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1 CHAPTER II: UTILIZATION OF EXISTING LEGAL
2 AUTHORITIES
3 How might EPA's authority under federal environmental and other laws be implemented
4 more effectively to sustain healthy aquatic ecosystems and to protect the health and safety
5 of people consuming or using fish, aquatic plants, and wildlife?
6 RISK REDUCTION STRATEGIES AND PROBLEM POLLUTANTS
7 This chapter focuses on risk reduction strategies - that is, strategies by which agencies
8 look t6 risk-producers to cleanup, limit, and prevent environmental contamination. In the case of
9 contamination in aquatic ecosystems, these strategies have been developed under a variety of legal
10 authorities, the Clean Water Act prominent among them. In addition to the authority provided by
11 the Clean Water Act, this chapter considers how the authority of other relevant sources of law
12 might be invoked more effectively to sustain health ecosystems and to protect the health and safety
13 of people consuming or using fish, aquatic plants, and wildlife. This chapter begins by providing
14 background on the contaminants of greatest concern to affected communities of color, low-income
15 communities, and Tribes. Part A considers how EPA might better prevent and reduce
16 contamination in the first place, focusing primarily on efforts under the Clean Water Act and
17 secondarily on efforts under other legal authorities. Part B discusses how EPA might better
18 cleanup and restore those aquatic ecosystems that are already contaminated, again focusing
19 primarily on efforts under the Clean Water Act and secondarily on efforts under other legal
20 authorities.
21 Access to water of sufficient quality and quantity is vital to tribal, state, and local
22 governments, as well as to environmentalists, developers, industry, and the public including
23 minority and low-income communities. Unquestionably, degradation of water quality threatens not
24 only the viability of aquatic ecosystems, but also human health; subsistence, traditional, cultural,
25 and spiritual practices; economies; sustainability of tribal homelands as contemplated by federal
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1 Indian treaties and other laws;144 and ultimately all life itself. As Rachel Carson noted in her
2 landmark book Silent Spring:
3 Water must also be thought of in terms of the chains of life it supports—from the
4 small-as-dust green cells of the drifting plant plankton, though the minute water
5 fleas to the fishes that strain plankton from the water and are in turn eaten by
6 other fishes or by birds, mink, racoons—in an endless cyclic transfer of materials
7 from life to life. We know that the necessary minerals in the water are so passed
8 from link to link of the food chains. Can we suppose that poisons we introduce
9 into water will not also enter into these cycles of nature?'45
10 Quite simply, poisoning the aquatic food chain ultimately poisons the Earth's entire food web.
11 The pollutants enumerated below are believed to result in harm to aquatic ecosystems and
12 to pose the greatest risks to the health of people consuming or using fish, aquatic plants and
13 wildlife for traditional, cultural and religious purposes. These pollutants have been identified by
14 federal, tribal, state, and territorial governments as well as by affected groups and independent
144Often, pursuant to explicit treaties, tribes bargained with the with federal government for
the terms of vast land cessions and the retention of certain other lands for Indian use and
occupation. Through express treaty terms or by virtue of retained aboriginal title, tribes reserved
every incident of ownership not expressly relinquished to the federal government or abrogated by
Congress. United States v. Winans. 198 U.S. 371, 381 (1905). These reserved rights include a
recognized right to water sufficient to fulfill the purposes of the reservation. Winters v. United
States. 207 U.S. 564, 577 (1908). Among other things, reserved rights have been understood to
include water to maintain a permanent homeland, to preserve, produce, or sustain food and other
reservation resources, and to maintain the tribe's way of life. See, e.g. Winters v. United States.
143 F. 740, 742 (1906); Colville Confederated Tribes v. Walton. 647 F.2d 42, 49 (1981 9th Cir.),
cert, denied. 454 U.S. 1092 (1981); Felix S. Cohen, Handbook of Federal Indian Law, 588-89
(1982 ed.). Frequently, treaties expressly retained a tribe's right to hunt, fish, and gather both on a
reservation and off-reservation in all usual and accustomed places. United States v. Winans. 198
U.S. 371,381 (1905); United States v. Adair. 723 F.2d 1394, 1410, 1417-18 (9th Cir. 1983), cert
denied. Oregon v. United States. 467 U.S. 1252 (1984).
145Rachel Carson, Silent Spring at 46 (1962).
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1 researchers. While numerous contaminants are potentially a basis for concern,146 available data
2 indicate that the following contaminants are currently the source of greatest concern.
3 Five contaminants - mercury, PCBs, dioxins, DDT, and chlordane - are responsible for the
4 majority of fish and wildlife consumption advisories issued by federal, tribal, state, or territorial
5 governments.147 These five contaminants are often also among the contaminants of greatest
6 concern according to those affected. For example, David Ludder, of the Legal Environmental
7 Assistance Foundation in Tallahassee reports that affected communities in Florida, Alabama, and
8 Georgia are concerned in the main with these five contaminants and toxaphene.148 Similarly, the
9 Asian Pacific Environmental Network cites evidence of the presence of these five chemicals and
10 dieldrin at levels of concern for those consuming fish from San Francisco Bay, particularly
11 members of the Laotian community in West Contra Costa County.149 In addition to these five
12 contaminants, there are approximately 40 different chemicals or chemical groups that give rise to
13 at least one fish and wildlife consumption advisory.150
146There are more than 70,000 chemicals currently in use; yet for the vast majority of these,
comprehensive data about human and environmental health effects is sorely lacking. Of these
chemicals, those that are highly toxic, that persist in the environment for relatively long periods,
and that bioaccumulate are likely to be of particular concern here. The Washington State
Department of Ecology, for example, has identified 64 highly toxic, persistent and bioaccumulative
contaminants to be screened and prioritized (of these, nine have been slated for immediate action)
as part of its initiative to address persistent, bioaccumlative toxins. See Washington State
Department of Ecology, Proposed Strategy to Continually Reduce Persistent, Bioaccumulative
Toxins (PBTs) in Washington State (Dec. 2000).
147According to the EPA Office of Water, most advisories are triggered by one or more of five
primary contaminants: mercury, PCBs, dioxins, DDT, and chlordane. See U.S. EPA, Office of
Water, Update: National Listing of Fish and Wildlife Advisories 5 (April 2001), available at
www.epa.gov/ost/fish (visited June 26, 2001).
l48Telephone Interview with David Ludder, Legal Environmental Assistance Foundation,
Tallahassee, Florida (August 22, 2001). Ludder noted, however, that this concern was premised
primarily on the existence of fish consumption advisories and so indicated that this was a
preliminary list.
149Audrey Chiang, Asian Pacific Environmental Network, A Seafood Consumption Survey
of the Laotian Community of West Contra Costa County, California App. 1 (1998) (citing San
Francisco Bay Regional Water Quality Control Board, Office of Health Hazard Assessment,
Chemical Contamination in Fish from San Francisco Bay: Study Results (1995)).
150 These include Arsenic, Cadmium, Chlorinated Benzene, Chlorinated Pesticides,
Chromium, Copper, Creosote, Dichloroethane, Gasoline, Hexachlorobutadiene, Industrial &
Municipal Discharge, Kepone, Lead, Lindane, Metals, Organo-metallics, PAHs, PBBs,
Pentachlorobenzene, Pentachloroethylene, Photomirex, Phthalate Esters, Selenium,
Tetrachlorobenzene, Tetrachloroethane, Tetrachloroethylene, Tributyltin, Trichloroethane,
Trichloromethane, Vinyl Chloride, VOCs, Zinc.
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1 While the existence of a consumption advisory provides one useful gauge as to which
2 contaminants are the basis for concern, there are limitations to this measure. Importantly, the
3 absence of a consumption advisory does not necessarily mean the absence of contamination. In
4 some cases, the necessary assessments of fish and wildlife tissues have not yet been undertaken,
5 often for lack of resources.'51 In other cases, states or tribes might decline to issue fish
6 consumption advisories for a variety of reasons, including economic, health and cultural
7 reasons.152 The Fond du Lac Environmental Program, for example, is in the process of issuing
8 "tribal consumption guidelines.'"53 Contrary to "advisories," these guidelines do not warn against
9 consumption of fish or wildlife; rather, they provide guidelines for healthy consumption, consistent
10 with tribal traditions and practices.154 In addition, fish and wildlife advisories generally arise
15'The trend to date has been for advisories to increase as assessments are completed.
Thus, EPA notes that the number of advisories in 2000 represents a 7% increase over the number
reported in 1999 and a 124% increase over the number reported in 1993 and observes that "[t]he
increase in advisories issued by the states [territories and tribes] generally reflects an increase in
the number of assessments of chemical contaminants in fish and wildlife tissues." U.S. EPA,
Office of Water, Update: National Listing of Fish and Wildlife Advisories 2 (April 2001)
available at www .epa. gov/ost/fish. The need for additional funding to address a shortfall in
resources for tissue and environmental assessments is particularly acute for many tribes.
152See, generally, Stuart Harris, Impacts of Fish Contamination on Native American
Culture (talk delivered to the Annual National Forum on Contaminants in Fish, May 9, 2001)
Neither Wyoming nor Alaska have issued fish or wildlife consumption advisories. Briefing by
Rick Healy, U.S. EPA Office of Water to Fish Consumption Workgroup (June 26, 2001). But see
the recently issued Statement from the Alaska Division of Public Health, expressly denouncing the
applicability of the general mercury advisories in Alaska and recommending "unrestricted
consumption of fish from Alaskan waters" for all, given their independent review of mercury
levels in Alaska fish, the known health benefits of fish consumption, and the fact that "the
subsistence lifestyle and diet are of great importance to the self-determination, cultural, spiritual,
social, and overall health and well being of Alaska Natives." Mercury and National Fish
Advisories Statement from Alaska Division of Public Health: Recommendations for Fish
Consumption in Alaska (Bulletin no. 6, June 15, 2001) (endorsed by the Alaska Department of
Environmental Conservation, Alaska Department of Health and Social Services, Alaska Native
Health Board; Alaska Native Science Commission; Alaska Native Tribal Health Consortium;
Aleutian/Pribilof Islands Association, Inc.; Institute for Circumpolar Health Studies; University of
Alaska Anchorage; North Slope Borough; University of Alaska Fairbanks; and Yukpm Kuskokwim
Health Corporation) available at www.eDi.hss.state.ak.us/bulletin<;/H(K^2001 06.htm
'"Telephone Interview with Nancy Costa, Fond du Lac Environmental Program (July 31,
2001).
'"Telephone Interview with Nancy Costa, Fond du Lac Environmental Program (July 31,
2001). Costa explains that the Fond du Lac Environmental Program is careful not to use the word
"advisory," because "the last thing we want to do is discourage tribal and band members from
eating their native diet, given the serious health effects that we've seen of getting away from a
native diet." Id.; see also, Great Lakes Indian Fish & Wildlife Commission, Masinaigan
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1 from one exposure scenario (consuming contaminated fish or wildlife), and so do not account for
2 other routes or sources of exposure to those consuming or using fish, aquatic plants and wildlife
3 for traditional, cultural and religious purposes, (e.g., consuming contaminated aquatic plants;
4 consuming or otherwise being exposed to contaminated waters, etc.). And, fish and wildlife
5 advisories focus on the problem of the contamination of fish and wildlife, and leave unaddressed
6 the problem of the availability of fish, aquatic plants, and wildlife for consumption and use.
7 Thus, in addition to the five contaminants that have given rise to the bulk of fish and
8 wildlife consumption advisories, there are other contaminants of concern. Chief among these are
9 contaminants that are highly toxic, bioaccumulative, and persistent. The Convention on Persistent
10 Organic Pollutants (POPs) initially targets twelve POPs of concern: in addition to PCBs, dioxins,
11 DDT and chlordane, the Convention identifies aldrin, dieldrin, endrin, helptachlor,
12 hexachlorobenzene, mirex, toxaphene, and furans as being of primary concern.155 The EPA has
13 also identified these same twelve contaminants as part of its Persistent Bioaccumulative Toxin
14 (PBT) Initiative. Each of these POPs or PBTs is also the source of at least one fish or wildlife
15 consumption advisory.156
16 A variety of pesticides157 have emerged as particular sources of concern for various
17 affected communities, groups and tribes. The Shoalwater Bay Indian Reservation is concerned
18 with the health of tribal members and the flourishing of the shellfish resource in Willapa Bay, on
19 which members of the tribe depend for commercial, subsistence, and ceremonial uses. Although
20 tribal studies are only recently underway (such that there is no evidence at this time that these
21 pesticides are in fact harming shellfisheries), potential sources of contamination include pesticides
22 such as diazinon, lorsban, and guthion, all of which are used by nearby commercial cranberry bog
23 farmers; carbaryl and glyphosate, applied to the oyster beds and tideflats; and various
24 organochlorine herbicides, sprayed in surrounding and upland areas by the U.S. Forest Service as
25 it seeks to kill "nuisance" species, typically after clear-cut logging.158 The Louisiana
26 Environmental Action Network is concerned with the high levels of pesticides (among other
27 contaminants), particularly atrazine and cyanazine, that a recent study revealed to be present in the
28 Mississippi River between New Orleans and Baton Rouge: "As would be expected, the
Supplement: How to Enjoy Fish Safely (Fall 2000).
'"Convention on Persistent Organic Pollutants (POPs). The United States is a signatory to this
Convention, although it awaits the advice and consent of the Senate, [get citation]
l56See www.eDa.gov/ost/fish.
'"The term "pesticides" as used throughout this report is meant to encompass all
pesticides, including rodenticides, insecticides, herbicides, and fungicides, unless the context
indicates a different usage.
l58E-mail Correspondence with Gary Burns, Environmental Programs Director, Shoalwater
Bay Indian Tribe (October 3,2001); E-mail Correspondence with Chetana Acharya, Community
Outreach and Education Program Manager, NIEHS Center for Ecogenetics and Environmental
Health, University of Washington (October 2, 2001); Paul Shukovsky, Tribe Sounds Alarm Over
Fetal Deaths: 13 Pregnancies in 2 years; 1 Baby Survives, Seattle Post-Intelligencer (February
22, 1999).
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1 pesticides appeared in early spring and persisted throughout the summer, coinciding with the
2 southern and midwestern growing seasons."159 The study focused on the Mississippi River as a
3 source of drinking water, noting that "[p]esticides presented the largest health hazard, where
4 maximum levels were found to be 60 to 360 times the EPA's Maximum Contamination Level
5 (MCL) for drinking water."160 Various community and fishing groups have identified 48 pesticides
6 commonly used in the Pacific Northwest that have been determined by either EPA or the United
7 States Geological Survey (USGS) to threaten salmon and salmon habitat.161
8 Lead is a source of concern for those consuming fish from the Spokane River from the
9 Idaho state line to the Seven Mile Bridge in Washington, given recent studies revealing elevated
10 lead levels (along with elevated levels of other metals), particularly for children (given that lead
11 causes adverse developmental effects) and for those, such as Russian immigrants, who consume
12 the whole fish (given that lead concentrates in the bones and brains of fish).162 Lead is also a
13 source of concern for the Coeur d'Alene Tribe, given its presence (along with cadmium) in and on
14 water potatoes, a staple of the Coeur d'Alene diet.163
15 Fecal coliform, marine biotoxins (e.g., saxitoxin and domoic acid released by algal
16 blooms), and various other bacterial and viral contaminants are sources of concern for those
17 communities, groups and tribes that rely on shellfish for commercial, subsistence, and/or
18 ceremonial purposes. Thus, these contaminants are a source of concern for tribal resource
19 managers in the Puget Sound and coastal regions of Washington,164 among them the Shoalwater
159Louisiana Environmental Action Network, Final Report on the Riverkeeper Project
(1998), available at www.leanweb.org/rivkeep.html.
160Id.
161"Groups Uncover Government Documents Showing Pesticides Can Harm Salmon," (May
7, 2001) available at www.pesticide.org/MSJnewsrelease.html (joint press release by Washington
Toxics Coalition; Northwest Coalition for Alternatives to Pesticides; Pacific Coast Federation of
Fishermen's Associations; Institute for Fisheries Resources; and Earthjustice Legal Defense Fund
in course of litigation against EPA for Endangered Species Act violations).
l62Karen Dorn Steele, Agencies Warn of Lead in River's Fish; Advisory Targets
Consumption of Contaminated Fish Caught in Stretch of Spokane River A1 The Spokesman
Review (June 21, 2000).
1 "Telephone Interview with Marc Stifelman, Environmental Protection Agency (Region
X)(October 30, 2001).
l64See, generally, Northwest Indian Fisheries Commission, Tribal Shellfish Management,
available at www.nwifc.wa.gov/ctnrm/2001 shellfish.htm.
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1 Tribe,165 the Suquamish Tribe,166 the Lower Elwha Klallam Tribe,167 and the Tulalip Tribes.168
2 These contaminants are a source of concern for various communities of color and low-income
3 communities in Southern California.169 And they are a source of concern for Alaskan Natives. For
4 example, at a southeast regional meeting called to discuss Alaskan Natives' concerns with
5 contaminants in native foods, Dangel Helen, Douglas, observes:
6 There is in North Douglas a development not served by a sewer line. A lot of the mud
7 flats are contaminated. The shellfish aren't good to eat.170
8 Finally, these and several additional pollutants are of particular concern to one or more
9 affected groups or tribes. For example, the Fond du Lac Environmental Program is concerned with
10 contamination from metals, given the negative effects of several metals (aluminum, cadmium,
11 copper, lead, and zinc, in addition to mercury) on the growth of wild rice.171 The Tulalip Tribes
12 are concerned with sediment and silt loadings, given their contribution to degradation of salmon
13 habitat and, ultimately, to the depletion of the salmon fishery.172 The various communities that fish
14 the Devil's Swamp, Devil's Swamp Lake, Bayou Baton Rouge, and Capitol Lake in East Baton
15 Rouge Parish face contamination from lead and arsenic, in addition to hexachlorobenzene,
16 hexachloro-1,3-butadiene, PCBs and mercury.173 The Fourteen Confederated Tribes of the
17 Yakama Indian Nation and the Confederated Tribes of the Umatilla Indian Reservation are
18 concerned with a host of contaminants in the Columbia River, which is "heavily laden with heavy
19 metals from mining, agricultural chemicals from intensive orchards and vineyards, radionuclides
20 from Hanford, runoff from dairy farms, and PCBs from a variety of sources."174 In addition, there
21 is concern that the health of aquatic ecosystems is being compromised by temperature changes;
165E-mail Correspondence with Gary Burns, Environmental Programs Director, Shoal water
Bay Indian Tribe (October 3, 2001); E-mail Correspondence with Chetana Acharya, Community
Outreach and Education Program Manager, NIEHS Center for Ecogenetics and Environmental
Health, University of Washington (October 2, 2001).
166Telephone Interview with Jay Zischke, Marine Fish Program Manager, Suquamish Tribe
Fisheries Department (October 17, 2001).
'"Telephone Interview with Russ Busch, Attorney, [title] (October 4, 2001).
168Teny Williams, Commissioner, Tulalip Tribes, Fisheries and Natural Resources (C3G
Conference Call, July 20, 2001).
169Marianne Yamaguchi, Santa Monica Bay Restoration Project [date].
170Alaska Traditional Knowledge and Native Foods Database, Native Concerns, available
at www.nativeknowledge.org/db/concems/asp.
171 [getting citation from Fond du Lac Environmental Program]; Telephone Interview with
Larry Schwarzkopf, Fond du Lac Resources Program (July 12, 2001).
172Terry Williams, Commissioner, Tulalip Tribes, Fisheries and Natural Resources (C3G
Conference Call, July 20, 2001).
173[get community source; current source is fish consumption advisory]
l74Barbara Harper and Stuart Harris, Tribal Technical Issues in Risk Reduction Through
Fish Advisories in Proceedings of the American Fisheries Society: Forum on Contaminants in Fish
17(1999).
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1
2
changes in pH and dissolved oxygen content; introduction of exotic species; dams, diversions, and
other alterations; and numerous other affronts.
3 The discussion below elaborates the health effects and sources of mercury, PCBs, dioxins,
4 DDT, chlordane, and, to a lesser extent, the remaining POPs/PBTs, and other contaminants of
5 concern.
6 Mercury
7 Background
8 Mercury is responsible, at least in part, for nearly 79% of all fish and shellfish advisories
9 issued in the United States; as of December, 2000, it was the basis for 2,242 advisories issued by
10 41 states, territories or tribes.175 Thirteen states have issued statewide advisories for mercury in
11 the freshwater lakes and/or rivers within their boundaries; another nine states have issued
12 statewide mercury advisories for their coastal marine waters.176 Mercury is also responsible for
13 the first ever issuance of a national fish consumption advisory: in January, 2001, the EPA
14 (together with ATSDR) and the FDA each independently issued advisories cautioning various
15 populations against consuming fish due to mercury contamination.177
16 Mercury has also been identified as a major pollutant of concern by the Great Lakes Indian
17 Fish and Wildlife Commission (GLIFWC) and the Fond du Lac Environmental Program, given its
18 deleterious effects on both fish and wild rice.178 Mercury has been identified as a pollutant of
19 concern by the St. Regis Mohawk Tribe Environment Division (although of less significance than
20 PCBs).179 Mercury has been identified as a major concern by the Grand Cal Task Force, given its
21 significant contribution to the contamination of the Grand Calumet River and the Indian Harbor
22 Ship Canal, where "virtually all fish tested in Indiana show levels of mercury and all streams are
23 considered impaired.'"80 Mercury has been identified as a source of significant concern in
24 Louisiana, particularly in the heavily contaminated parishes along the Mississippi River between
175See U.S. Environmental Protection Agency, Office of Water, Mercury Update: Impact on Fish
Advisories 4 (June 2001) (available at www.epa.gov/ost/fish/chemfacts.html ) (visited June 21,
2001). [hereinafter "EPA. Mercury Fact Sheet"]
176IcL
177[get citation to advisories]; Briefing by Rich Healy, U.S. EPA Office of Water to Fish
Consumption Workgroup (June 26, 2001).
178Great Lakes Indian Fish & Wildlife Commission, Masinaigan Supplement: How to Enjoy
Fish Safely (Fall 2000), available at www.glifwc.org: Telephone Interview with Larry
Schwarzkopf, Fond du Lac Resources Program (July 12, 2001).
,79Telephone Interview with Shawn Martin, Clean Water Manager, St. Regis Mohawk
Tribe Environment Division (July 12, 2001).
l80Telephone Interview with Bowden Quinn, Executive Director, Grand Cal Task Force
(October 10, 2001); Grand Calumet Task Force, Mercury and the Grand Calumet River,
available at www.igc.apc.org/gctf/newsletter002.htm.
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1 New Orleans and Baton Rouge by the Louisiana Environmental Action Network and by Dr. Barry
2 Kohl, Department of Geology, Tulane University.181 Mercury is a source of concern for the
3 Passamaquoddy tribe, who rely on both saltwater and freshwater fish, given that all lakes in the
4 state of Maine are under a state-issued fish advisory for mercury.182 At an interior regional
5 meeting called to discuss Alaskan Natives' concerns with contaminants in native foods, Orville
6 Huntington, Huslia, observes:
7 Around home, I think it's an accumulation. All those poisons dumped in the river are in
8 the fish and they accumulate in your body. . .. The pike around Hog River I won't eat
9 anymore because there's too much mercury in there.183
10 Health Effects'84
11 Methymercury is rapidly and nearly completely absorbed by humans from the
12 gastrointestinal tract. It readily crosses the placental and blood/brain barriers. The National
13 Research Council (NRC) of the National Academy of Sciences observes: "[Methylmercury
14 (MeHg)] is highly toxic. Exposure to MeHg can result in adverse effects in several organ systems
15 throughout the life span of humans and animals. There are extensive data on the effects of MeHg
16 on the development of the brain (neurodevelopmental effects) in humans and animals.... Effects
17 [at high doses] included mental retardation, cerebral palsy, deafness, blindness, and dysarthria in
18 individuals exposed in utero and sensory and motor impairment in exposed adults. Chronic, low-
19 dose prenatal MeHg exposure from maternal consumption of fish has been associated with more
20 subtle end points of neurotoxicity in children. Those end points include poor performance on
21 neurobehavioral tests, particularly on tests of attention, fine-motor function, language, visual-
22 spatial abilities (e.g., drawing), and verbal memory."185 There is also evidence of adverse effects
23 on developing and adult cardiovascular systems in both humans and animals.186 Some studies have
24 demonstrated an association between methylmercury and cancer, but, according to the NRC, these
25 studies are inconclusive.187 EPA concurs and does not regulate methylmercury as a carcinogen.
26 Sources of Mercury in the Environment188
18'Telephone Interview with Marylee Orr, Louisiana Environmental Action Network
(October 17,2001); Telephone Interview with Dr. Barry Kohl, Department of Geology, Tulane
University (October 17, 2001).
182[e-mail from Danny Gogal - get original/better source].
183Alaska Traditional Knowledge and Native Foods Database, Native Concerns, available
at www.nativeknowledge.org/db/concerns.asp.
l84Unless otherwise noted, health effects information is taken from EPA Mercury Fact
Sheet.
'"National Research Council, National Academy of Sciences, Toxicological Effects of
Methymercury 4 (2000).
186Id.
187Id.
l88Unless otherwise noted, sources information is taken from EPA Mercury Fact Sheet.
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1 Overview: Nearly 80% of the mercury contamination in surface waters comes from
2 mercury emissions to the air. Mercury contamination also comes from direct discharges to the
3 water, from releases to soils, and from naturally occurring mercury in the environment.
4 Mercury exists in the environment as elemental mercury (metallic mercury), and in
5 inorganic and organic mercury compounds (primarily methylmercury).
6 Air: Mercury is released to the air by solid waste incineration and fossil fuel combustion,
7 especially coal-fired power plants (in combination, these sources account for approximately 87%
8 of mercury emissions in the United States); mining and smelting operations; industrial operations
9 involving the use of mercury such as chlor-alkali production facilities; cement production; medical
10 waste incineration (accounts for approximately 10% of mercury emissions in the United States),189
11 and non-industrial combustion (e.g., wildfires and open burning).
12 Water/Sediments: Mercury is released to surface waters from naturally occurring mercury
13 in rocks and from industrial processes, including pulp and paper mills, leather tanning,
14 electroplating, and chemical manufacturing, and from some wastewater treatment facilities.
15 Mercury emissions to the air are an important indirect source of mercury in surface waters:
16 mercury is deposited from rain and other processes to water surfaces and to soils. Sediments
17 contaminated with mercury also contribute mercury to surface waters upon being disturbed (e.g.,
18 by flooding or dredging).
19 Soils: Mercury is released to soils through the direct application of fertilizers, fungicides,
20 and sludge or "recycled" industrial waste containing mercury to soils and crops. Mercury is also
21 released to soils when solid waste, including batteries and thermometers, and municipal
22 incinerator ash is disposed in landfills.
23 Notes
24 Unlike many other contaminants that are the source of fish consumption advisories, mercury
25 does not accumulate primarily in the fatty tissue of fish but in the muscle (i.e., the portion of fish
26 that comprises a fillet). Thus, skinning and trimming the fish do not reduce the amount of mercury
27 in a fillet, nor is mercury removed by cooking processes.190
28 PCBsm
l89U.S. EPA, Mercury Study Report to Congress, Vol. 1: Executive Summary (1997).
[check]
l90EPA Mercury Fact Sheet; Great Lakes Indian Fish & Wildlife Commission, Masinaigan
Supplement: How to Enjoy Fish Safely (Fall 2000), available at www.glifwc.org.
i9!"pcBs" is a shorthand for a group of 209 individual cogeners - members of a group of
structurally similar chemicals with different configurations. PCBs generally occur as a complex
mixture of some assortment of these cogeners.
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1 Background
2 PCBs are responsible, at least in part, for nearly 27% of all fish and shellfish advisories
3 issued in the United States; as of December, 1998, PCBs were the basis for 679 advisories issued
4 by 37 states, territories or tribes.192 Three states have issued statewide advisories for PCBs in the
5 freshwater lakes and/or rivers within their boundaries; another six states have issued statewide
6 PCBs advisories for their coastal marine waters.193
7 PCBs have been identified as a major pollutant of concern by the St. Regis Mohawk Tribe
8 Environment Division.194 PCBs have been identified by the Arbor Hill Environmental Justice
9 Corporation as impacting the health of inner city communities, many of whose members
10 subsistence fish along the Hudson River in upstate New York.195 PCBs have been cited as a
11 source of significant "community concern" given the number of anglers fishing along the
12 contaminated Lower Fox River in the Green Bay area of Wisconsin (including Caucasians,
13 Hmong, Laotian, Native American, and African-American anglers).196 PCBs have been identified
14 as among the issues of concern in Alabama by Project AWAKE, given that recent fish tissue
15 monitoring by the Alabama Department of Environmental Management has revealed levels of
16 PCBS exceeding FDA guidelines in striped bass from upper Lay Reservoir and channel catfish
17 from upper Neely Henry Reservoir.197
18 Health Effects™
19 PCBs have been classified by EPA as "probable human carcinogens." Studies have
20 suggested that PCBs may play a role in inducing breast cancer. Studies have linked PCBs to
l92U.S. Environmental Protection Agency, Office of Water, Polychlorinated Biphenyls (PCBs)
Update: Impact on Fish Advisories 3-4 (September 1999) (available at
www.epa.gov/ost/fish/chemfacts.htmn (visited June 26, 2001). [hereinafter EPA PCBs Fact
Sheet]
193Id
l94Telephone Interview with Shawn Martin, Clean Water Manager, St. Regis Mohawk
Tribe Environment Division (July 12, 2001).
195 "Fishing for Justice — May 13, 2000 Island Creek Park on the Hudson River"
available at www.eicr.cau.edu/fishingforiust.htm (citing Arbor Hill Environmental Justice
Corporation President Aaron Mair's call for increased awareness of the issue and for "GE to do
the right thing and clean up the PCB's they dumped into the River").
196Dyan M. Steenport, et al., Fish Consumption Habits and Advisory Awareness Among
Fox River Anglers, Wisconsin Medical Journal (November 2000), available at
www.wismed.org/wmi/nov200Q/fish.html.
""Facsimile Communication, Daisy Carter, Project AWAKE (October 25, 2001); Alabama
Department of Environmental Management, ADEM Announces Results of Fiscal Year 2001 Fish
Tissue Monitoring Effort (April 25, 2001) available at
www.adem.state.al.us/EduInfo/PressRe1eases/4fish01.htm.
198Unless otherwise noted, health effects information is taken from EPA PCBs Fact Sheet.
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1 increased risk of several other cancers as well, including: liver, biliary tract, gall bladder,
2 gastrointestinal tract, pancreas, melanoma, and non-Hodgkin's lymphoma. PCBs may also cause
3 non-carcinogenic effects, including reproductive effects and developmental effects (primarily to
4 the nervous system). PCBs tend to accumulate in the human body in the liver, adipose tissue (fat),
5 skin, and breast milk; PCBs have also been found in plasma, follicular fluid, and sperm fluid.
6 Fetuses may be exposed to PCBs in utero, and babies may be exposed to PCBs during
7 breastfeeding. According to EPA, "[s]ome human studies have suggested that PCB exposure may
8 cause adverse effects in children and developing fetuses while other studies have not shown
9 effects. Reported effects include lower IQ scores, low birth weight, and lower behavior
10 assessment scores."199
11 Sources of PCBs in the Environment200
12 Overview: The manufacture of PCBs was banned in the United States in 1979. However,
13 items containing PCBs that were still in service at the time of the ban were "grandfathered" in and
14 not required to be removed from use; some remain in use today. For example, electrical
15 transformers containing PCBs are still in use and have a life expectancy of 30 years. The major
16 source of PCBs in the environment is from past releases that have not been cleaned up; most PCBs
17 are contained in sediments and are released from sediments over long periods of time to the
18 waters, air, and soil.
19 There are no naturally occurring sources of PCBs; all PCBs in the environment are
20 therefore of human origin.
21 Air: PCBs from past releases to soils and surface waters evaporate or volatilize to the air
22 over long periods of time. From the air, they are redeposited back to the land and to surface
23 waters.
24 Water/Sediments: Most PCBs from past releases are contained in sediments. PCBs are
25 extremely persistent in the environment: they have half-lives in sediments ranging from months to
26 years; they have very low solubility in water and low volatility. Because of these characteristics,
27 PCBs continue to be released from sediments to surface waters over long periods of time. PCBs
28 may also be mobilized to surface waters if they are disturbed (e.g. flooding, dredging). In addition
29 to evaporation or revolatization, PCBs may be transferred from surface waters by adsorption to
30 sediments.
31 Soils: PCBs from past releases may also be contained in soils. PCBs have long half-lives
32 in soils and are released over long periods by evaporation or volatilization to air, and are in turn
33 redeposited to soils and surface waters.
'"EPA PCBs Fact Sheet at 5.
200Unless noted, sources information is taken from EPA PCBs Fact Sheet.
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1 Dioxins201
2 Background
3 Dioxins/furans are responsible, at least in part, for approximately 2% of all fish and
4 shellfish advisories issued in the United States; as of December, 1998, dioxins/furans were the
5 basis for 59 advisories issued by 19 states, territories or tribes.202 Three states, Maine, New
6 Jersey, and New York, have issued statewide dioxins/furans advisories for their coastal marine
7 waters.203 Dioxins are the source of advisories on all of the Great Lakes.204 Dioxins are also the
8 source of advisories for the Potomac River and numerous National Estuary Program and National
9 Estuarine Research Reserve System sites, including Casco Bay (ME), Wells (ME), Long Island
10 Sound, Peconic Bay (NY), the Hudson River, New York/New Jersey Harbor, Bamegat Bay (NJ),
11 Jacques Cousteau-Great Bay and Mullica River (NJ), Delware Estuary, Albemarle-Pamlico
12 Sounds (NC), Galveston Bay (TX), Puget Sound (WA), and the Columbia River.205
13 Dioxins are a major source of concern for the Penobscot Indian Nation.206 Although recent
14 changes in rules affecting pulp and paper mills in Maine that use chlorine in their bleaching
15 process (requiring a switch from the use of elemental chlorine to chlorine dioxide) may be
16 reducing dioxin levels in the Penobscot River, the use of chlorine dioxide still leads to discharges
17 that result in small amounts of dioxins in the water.207 Given dioxins' persistence in the
201"Dioxins" is a shorthand for a group of synthetic organic chemicals, comprised of 210
structurally related chlorinated dibenzo-p-dioxins (CDDs) and chlorinated dibenzofurans (CDFs).
This group of compounds ranges in toxicity, with 2,3,7,8-TCDD being the most toxic.
202U.S. Environmental Protection Agency, Office of Water, Polychlorinated Dibenzo-p-dioxins and
Related Compounds Update; Impact of Fish Advisories 3 (Sept. 1999) (available at
www.epa.gov/ost/fish/chemfacts.htmn (visited June 26, 2001). [hereinafter EPA Dioxins Fact
Sheet]
203Id.: U.S. Environmental Protection Agency, Update: National Listing of Fish and Wildlife
Advisories 3-5 (2001) available at www.epa.gov/ost.
204U.S. Environmental Protection Agency, Update: National Listing of Fish and Wildlife
Advisories 3-5 (2001) available at www.epa.gov/ost.
205Id.
206Dawn Gagnon, Spiritual Keepers of the Penobscot, Bangor Daily News (October 6,
1995); Andrew Kekacs, Penobscots Oppose Mill Permit; Any Discharge of Dioxin in River
Detrimental, Tribal Member Says, Bangor Daily News (March 4, 1997); Mary Anne Lagasse,
Indians, People's Alliance Take Fish Advisories to Task; King Critics Say Dioxin Problem
Downplayed, Bangor Daily News (April 2, 1997); Dieter Bradbury, Contamination in Fish
Weakens Cultural Link for Maine Tribe: Catching and Eating Fish is a Tradition No Longer
Passed on to Many Penobscot Children, Portland Press Herald (September 30, 1997).
207Andrew Kekacs, Penobscots Oppose Mill Permit; Any Discharge of Dioxin in River
Detrimental, Tribal Member Says, Bangor Daily News (March 4, 1997); Mary Anne Lagasse,
Indians, People's Alliance Take Fish Advisories to Task; King Critics Say Dioxin Problem
Downplayed, Bangor Daily News (April 2, 1997)..
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1 environment, its propensity to bioaccumulate (concentrations of dioxins in aquatic organisms may
2 be hundreds to thousands of times higher than the concentrations found in surrounding waters or
3 sediments), and, according to the Penobscot Nation Department of Natural Resources, its extreme
4 toxicity,208 even small amounts of discharge are reason for it to be concerned.
5 Health Effects™
6 Studies suggest a wide variety of adverse effects from dioxin, although there is still debate
7 about the extent of these effects in humans. Among these are adverse effects on hepatic,
8 gastrointestinal, hematological, dermal, endocrine, immunological, neurological, reproductive, and
9 developmental effects. A recent report concluded more than a decade of study on dioxin's cancer-
10 causing potential, identifying it as a human carcinogen.210 Even very small amounts of dioxins may
11 be toxic to humans.
12 Sources of Dioxins in the Environment
13 Overview: Dioxins in the environment are primarily the unintended by-products of
14 industrial processes that use or burn chlorine. The major source of dioxins in the environment is
15 incineration. Other sources of dioxins include direct discharges to water from industrial
16 processes, and releases from soils.
17 Air: Most dioxins are introduced into the environment as emissions to the air. Incineration
18 is a major source of dioxins; small quantities of dioxins are also emitted during combustion of
19 fossil fuels, wood, municipal and industrial waste. Dioxins released into the air may be
20 suspended for a long time and travel great distances before being deposited to soils and surface
21 waters.
22 Water/Sediments: Dioxins are discharged directly to surface waters from pulp and paper
23 mills (pulp and paper mills that use chlorine compounds in bleaching processes are the largest
24 source of direct discharges of dioxin to water212). Dioxin is also discharged to waters from the
25 industrial production of chlorinated organic chemicals, such as chlorinated phenols. Most dioxins
26 are contained in sediments, where they persist for long periods because of half-lives ranging from
27 months to years. Particles resuspended from sediments to surface waters are an important source
28 of dioxin in surface waters.
208Dawn Gagnon, Spiritual Keepers of the Penobscot, Bangor Daily News (October 6,
1995) (quoting Director John Banks: "Dioxin is suspected of being the most toxic compound that
the EPA has ever evaluated.").
209Unless otherwise noted, health effects information is taken from EPA Dioxins Fact Sheet.
210John Heilprin, EPA Agrees Dioxin Poses Cancer Risk, Associated Press [get better cite]
(May 15,2001).
21'Unless otherwise noted, sources information is taken from EPA Dioxins Fact Sheet.
212U.S. EPA, Inventory of Sources of Dioxin in the United States (1998). [draft - check if
can cite]
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1 Soils: Dioxins enter the soils when industrial wastes and municipal sludge contaminated
2 with dioxins are applied as fertilizer to crops or grazing lands. Dioxins that have been emitted to
3 the air are also deposited to soils. Dioxins in the soils may in turn be released into surface waters
4 through run-off or leaching.
5 Chlordane213
6 Background
7 Chlordane is responsible for advisories on Lake Superior, Lake Michigan, and Lake
8 Huron.214 It is the source of advisories for several National Estuary Program and National
9 Estuarine Research Reserve System sites, including the Potomac, Black and Anacostia Rivers (all
10 of which connect to Chesapeake Bay).215 The Baltimore Harbor is under advisory for chlordane,
11 as is the New York/New Jersey Harbor, Barnegat Bay (NJ), Jacques Cousteau-Great Bay and
12 Mullica River (NJ), and Delaware Estuary.216 Chlordane is the source of a statewide advisory for
13 lakes and rivers in New York217
14 According to a recent study of the Greenpoint/Williamsburg community in the Borough of
15 Brooklyn in New York City, fish are a major source of chlordane exposure for African-Americans
16 and Hasidic Jews, and shellfish are a major source of chlordane exposure for
17 Hispanics/Caribbean Americans.218
18 Health Effects
19 Chlordane is associated with cancer in some but not all studies; it is classified by EPA as a
20 probable human carcinogen.219 Chlordane also has adverse effects on the central nervous system,
21 the digestive system, and the liver at higher doses. Chlordane metabolites may reside in human
22 breast milk, and may be passed on to infants through breastfeeding.
23 Sources of Chlordane in the Environment
213"Chlordane" is a manufactured mixture of more than 26 compounds. Chlordane is used
here to refer to chlordane and to the multiple breakdown products of chlordane, which themselves
are persistent and bioaccumulative.
214U.S. Environmental Protection Agency, Update: National Listing of Fish and Wildlife
Advisories 3-5 (2001) available at www.epa.eov/ost.
215Id.
216Id.
217Id.
21 industrial Economics, Inc., Community-Specific Cumulative Exposure Assessment for
Greenpoint/Williamsburg New York 2-19 (1999).
219Washington State Department of Ecology, Proposed Strategy to Continually Reduce
Persistent, Bioaccumulative Toxins (PBTs) in Washington State 44 (2000).
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1 Overview: The manufacture and use of chlordane has been banned in the United States
2 since 1988. It was once used as an agricultural pesticide (on crops including corn and citrus), and
3 on home lawns and gardens. One of chlordane's most common uses was for treatment of termites.
4 Once chlordane is released into the environment, it may evaporate or it may bind itself to soil
5 particles (particularly in the upper layers of soil) or to sediments in water. The breakdown of
6 chlordane once it is bound to soil particles or sediment is very slow. According to the National
7 Resources Defense Council, "[s]o persistent is the residue, that a recent study showed that
8 detectable levels of chlordane are still present in some food grown in the United States, even
9 though it has been decades since chlordane was used in agriculture."220
10 Air: Chlordane from past applications to agricultural soils, soils near houses treated for
11 termite control, or soils near waste sites and landfills may be present in the air in small amounts.
12 Water/Sediments: Chlordane from past releases is contained in surface waters and
13 especially in sediments. It is highly persistent, and may be present in sediments for years.
14 Soils: Chlordane from past releases is also contained in soils, where it is highly persistent.
15 Chlordane has been found in some cases to be present in soil up to 20 years after application.221
220Natural Resources Defense Council, Healthy Milk, Healthy Baby: Chemical Pollution
in Mother's Milk; Chemicals: Chlordane available at www.nrdc.org/breastmilk/chem 1 .asp.
22lId.
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1
DDT222
2 Background
3 DDT is the source of a statewide advisory for lakes and rivers in New York, as well as
4 advisories in California, Texas, and Maine.223 The total number of advisories for DDT increased
5 from 40 in 1999 to 44 in 2000.224
6 DDT is a contaminant of concern for the Fourteen Confederated Tribes of the Yakama
7 Nation, given that the Yakama River, which forms a reservation boundary and is a tributary to the
8 Columbia River, is contaminated with DDT and currently under a state-issued advisory.225
9
10 Health Effects
11
12 DDT, together with DDD and DDE, is classified by EPA as a probably human carcinogen.
13 DDT may cause damage to the central nervous system at high doses, leading to tremors and
14 seizures.226
15 Sources of DDT in the Environment
16 Overview: DDT was one of the most widely used pesticides in the United States from
17 1946 to 1972. Its use has been banned in the United States, except for "public health
18 emergencies."227
19 Other Persistent Organic Pollutants (POPs)/Persistent Bioaccumulative Toxins (PBTs)
20 Several other contaminants are sources of concern because they are bioaccumulative and
21 persistent. That is, these contaminants accumulate in aquatic organisms at concentrations many
22 times higher than the concentrations present in surrounding waters. They also persist for long
23 periods of time in the environment, particularly in the sediments where bottom-dwelling aquatic
24 species can accumulate them and pass them up the food chain to fish, other predatory species, and,
25 ultimately, humans. The contaminants are also highly toxic. In addition to the five contaminants
222"DDT' here refers not only to DDT, but also to its breakdown products, DDD and DDE.
223U.S. Environmental Protection Agency, Update: National Listing of Fish and Wildlife
Advisories 3-5 (2001) available at www.epa.gov/ost.
224Id.
225Barbara Harper and Stuart Harris, Tribal Technical Issues in Risk Reduction Through
Fish Advisories in Proceedings of the American Fisheries Society: Forum on Contaminants in Fish
17(1999).
226Washington State Department of Ecology, Proposed Strategy to Continually Reduce
Persistent, Bioaccumulative Toxins (PBTs) in Washington State 44-45 (2000).
227Id.
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1 canvassed above, the Convention on Persistent Organic Pollutants and the EPA's Persistent
2 Bioaccumulative Toxin Initiation each include among the POPs or PBTs of concern the following
3 seven pesticides: Aldrin, Dieldrin, Endrin, Heptachlor, Hexachlorobenzene, Mirex, and
4 Toxaphene;228 and the industrial chemical Hexachlorobenzene. Note that this list is likely not
5 exhaustive; these contaminants are merely those that have been identified as being of the very
6 highest priority. Some groups have argued, for example, the lead belongs on this list, given that it
7 is persistent, it builds up in bone tissue, it is toxic even in minute concentrations, and its effects on
8 exposed children are particularly troubling.229 In some cases, governments and agencies are in the
9 process of studying whether additions are appropriate. The Washington State Department of
10 Ecology, for example, has identified more than 60 additional candidates for screening and
11 prioritization, based on initial evaluations demonstrating their persistence, propensity to
12 bioaccumulate and toxicity.230
13 Exposure to these POPs or PBTs has been linked to a wide range of toxic effects in fish,
14 wildlife, and humans, including cancer, adverse developmental effects and adverse effects on the
15 nervous, reproductive, immune and endocrine systems.231 POPs or PBTs are contaminants of
16 concern for many affected communities, groups and tribes. The Indigenous Environmental
17 Network, for example, explains some of their concerns:
18 Indigenous Peoples have special cultural and spiritual relationships to traditional foods
19 that create increased consumption patterns compared to non-Indigenous populations.
20 Unfortunately, the main way POPs enter our bodies is through food. POPs have been
21 found in eagles, cormorants, ducks, geese, caribou, reindeer, raccoons, rabbits, quail,
22 deer, moose, bison, turtles, crocodiles, sheep, cows, polar bears, seals, whales, and fish.
23 ... Advisories prohibiting or discouraging the consumption of traditional foods affect
24 Indigenous Peoples' right to practice our cultural and spiritual ways.221
228See U.S. EPA, Office of Water, Toxaphene Update: Impact on Fish Advisories (September
1999) (available at www.epa.gov/ost/fish/chemfacts.htmn (visited June 26, 2001).
229Washington Toxics Coalition, Comments on Ecology's Draft Strategy Addressing
Persistent Pollutants available at www.watoxics.org/uaPBTcomments.htm.
230Washington State Department of Ecology, Proposed Strategy to Continually Reduce
Persistent, Bioaccumulative Toxins (PBTs) in Washington State 60-61 (2000).
23'Washington State Department of Ecology, Proposed Strategy to Continually Reduce
Persistent, Bioaccumulative Toxins (PBTs) in Washington State 5 (2000)
232Indigenous Environmental Network, Drum Beat for Mother Earth: Persistent Organic
Pollutants (POPs) available at www.ienearth/org/pops_threat-p2.html
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1 A. PREVENTION AND REDUCTION
2 How might EPA better prevent contamination in the first place in order to protect the aquatic
3 ecosystems and the health of people consuming or using fish, aquatic plants, and wildlife for
4 subsistence, traditional, cultural, or religious purposes?
5 Efforts to prevent or reduce contamination in the first place are vital to protecting the
6 health of communities of color, low-income communities, and tribes. These efforts are especially
7 important given that members of these groups are among the most highly-exposed to environmental
8 contaminants (as discussed in Chapter 1) and given that for many of these groups, risk avoidance -
9 eating less fish, using a different preparation method, fishing m a different location - 1S simply not
10 a realistic or culturally appropriate option (as will be discussed in Chapter 3). Thus, these groups
11 will disproportionately bear the burden of sources of ongoing contamination that are not
12 adequately addressed. Prevention and reduction efforts will need to be directed at those
13 contaminants of concern that are still being used or produced, including mercury, dioxms, and
14 others.
15 1. Clean Water Act
16 Enacted in 1972 the Clean Water ActP (CWA) and its complex implementing regulations
17 and guidelines focus on'protecting public natural resources and welfare and improving water
8 Salto through the control of discharges of pollutants into national waters. The statutory objective
9 ofle CWA is "to restore and maintain the chemical physical, and b.ologi^ mKgmy of the
20 Nation's waters •'» As stated in the CWA, national goals prov.de that: (1) the discharge of
int0 navicable waters be eliminated by 1985; (2) an interim goal of water quality that
22 ™Mes for the protection and propagation of fish, shellfish and wildlife and for reckon be
23 achfevS bv July 1,1983; (3) the discharge of toxic pollutants in toxic amounts be prohibited; (4)
24 federaffinancial assistance be provided to constnict publicly owned waste treatment works; (5)
25 areaw'c'e wa®te.^^^^^^^g^^aj^'^^^orresearch'ai^demonstration^effo^4^
26 control of pollu ion so harce of pollutants into national waters, and (7) programs to
27 undertaken to elunma e b developed expeditiously to meet the goals of the CWA.BS
28 control point and nonpomt ^ ^ ^ ^
29 Water quality standards are key »3^™ „ where exWing controIs lilie
32 Generally, the ^ ^fo^^hoseT'^dardTt^ugh'^r^tt^^^stems,
33 standards for various sou ^ ] te primary enforcement authority to that state. As originally
35 laws'did MtmeM,on'ribes -
2333 3 U.S.C. §§ 1251-1387.
23433 U.S.C. § 1251(a).
B533 U.S.C. § 1251(a).
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1 Indian reservations or provide for direct participation by tribal governments. Because the
2 jurisdictional rules applicable to Indian country left EPA unable to pursue its usual practice of
3 delegating primary enforcement responsibility to states, EPA was forced to develop special rules
4 and practices concerning environmental regulation on Indian reservations and the role to be played
5 by tribal governments. In November 1984, EPA issued the EPA Policy for the Administration of
6 Environmental Programs on Indian Reservations (Indian Policy) to address tribal participation and
7 the unique circumstances presented by Indian country.236 Each EPA Administrator, including most
8 recently Administrator Christine Todd Whitman, has reaffirmed the principles enumerated in the
9 Indian Policy.237 In 1987, Congress amended the CWA to allow federally-recognized tribes to be
10 treated as states for certain purposes under the Act. As of December 2000, only eighteen tribes (of
11 the approximately 565 total federally recognized tribes) have received treatment as a state status
12 and adopted standards for purposes of the water quality standards effective under the CWA, and
13 EPA has promulgated standards for one additional tribe.238 As a result, a large gap exists in water
14 quality standards coverage in Indian country. For example, tribal lands lacking approved water
15 quality standards constitute an area approximating the size of all of New England plus New Jersey
16 and as many reservation residents as the populations of Wyoming, Alaska, and Vermont
17 combined.239 Where tribes have not yet received treatment as a state status and assumed
18 responsibility for CWA on their reservations and lands, EPA is responsible for implementing and
19 enforcing the CWA within Indian country pursuant to the CWA and the federal trust responsibility
20 owed to tribes.240 Toward that end, EPA recently has been considering a proposal to develop core
21 federal water quality standards for certain waters in Indian country that do not have water quality
22 standards under the CWA.241 The Core Standards currently call for a four-part hierarchy for
23 selecting a fish consumption rate for use in setting water quality standards in Indian country. This
236EPA Policy for the Administration of Environmental Programs on Indian Reservations,
Nov. 8, 1984.
2370n July 11, 2001, Administrator Whitman issued a Memorandum on EPA Indian Policy
to All EPA Employees recognizing the right of tribes as sovereign governments to self-
determination and acknowledging the federal government's trust responsibility owed to tribes.
The Administrator also reaffirmed EPA's commitment to the long-established Indian Policy and
"in building a stronger partnership with tribal governments to protect the human health and
environment of Indian communities."
mEPA Fact Sheet: Water Quality Standards for Indian Country (April 2001) (available
online at http://www.epa.gov/ost/standards/tribal/tribalfact.html). Note, we need the Office of
Water or the AIEO to verify this figure officially at the time of the report.
239EPA Fact Sheet: Water Quality Standards for Indian Country (April 2001) (available
online at http://www.epa.gov/ost/standards/tribal/tribalfact.html).
240The courts have long recognized that the United States has a trust relationship with Indian
tribes. See, e.g. Worcester v. Georgia. 31 U.S. 515 (1832); Cherokee Nation v. Georgia. 30 U.S.
1 (1831).
24'On January 19, 2001, EPA's Administrator signed the proposed Federal Water Quality
Standards for Indian Country and Other Provisions Regarding Federal Water Quality Standards,
which were withdrawn from the Office of the of the Federal Register on January 20, 2001 to allow
regulatory review by the Administrator. 66 Fed. Reg. 7701 (Jan. 24, 2001).
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1 hierarchy sets up a preference for using "the results of any existing fish consumption surveys of
2 ioca] Indian country watersheds to establish fish intake provisions that are representative of the
3 populations being addressed."242 While this preference for local data is appropriate, the reality, as
4 discussed in Chapter 1, is that many tribes have not gathered this data - often for lack of resources.
5 In the absence of such data, the proposed Core Standards would look to EPA's default fish
6 consumption rates, and perhaps to a rate as low as 17.5 grams/day.243 As noted in Chapter 1, this
7 number grossly underestimates consumption for many tribes.
8 As discussed in Chapter 1, EPA has recently updated its default values for fish
9 consumption rates, as part of its revisions to the Ambient Water Quality Criteria Methodology for
10 the Protection of Human Health, pursuant to CWA 304(a). The EPA has indicated that the revised
11 values will likely guide water quality standard-setting and policy for years to come (the former
12 values were in place for roughly 20 years). This may be problematic from the perspective of
13 affected groups whose members consume fish at the highest levels, and whose practices are
14 therefore not adequately accounted for or protected by even the revised AWQC Methodology.
15 Moreover, as noted in Chapter 1, to the extent that the revised AWQC Methodology recommends
16 that states and tribes prefer local data, EPA will need to provide funding to enable this preference
17 to exist as a meaningful option. And, to the extent that EPA's revised AWQC Methodology
18 proposes that "acceptable" risk for the general population be defined as an incremental cancer risk
19 of 1 in 100,000 to 1 in 1,000,000, but deems a greater level of risk "acceptable" for "more highly
20 exposed subgroups," including subsistence fishers, i.e., up to 1 in 10,000, this is a troubling
21 potential source of environmental injustice.244 EPA should decline to exercise this option to
22 provide lower levels of protection to communities of color, low-income communities and tribes as
23 it sets and approves water quality standards. Additionally, as a general matter, EPA needs to take
24 into account the differences in fish consumption rates, practices, and context, as outlined in
25 Chapter 1, as it undertakes triennial reviews of stat and tribal water quality standards under CWA
26 303(c)(1).
27 Additionally, the CWA provides some authority for addressing non-point sources of water
28 pollution (including through TMDLs). Given that non-point sources contribute numerous
29 contaminants of concern to aquatic ecosystems, this authority should be interpreted broadly to
30 enable EPA to prevent and reduce contamination from these sources.
31 Neither the CWA nor its regulations alone will accomplish the objective and goals of the
32 CWA. EPA, and authorized state and tribal governments, simply must ensure strict and
33 widespread compliance with the CWA. Without such enforcement, polluters have absolutely no
34 incentive to comply with the CWA as "noncompliance results in economic benefits (the free use of
242U.S. Environmental Protection Agency, Office of Water, Federal Water quality
Standards for Indian Country and Other Provisions Regarding Federal Water Quality
Standards (unofficial prepublication copy, January 19, 2001) available at
www.epa. gov/ost/standards/tribal/.
243Id. at 17.
244Draft AWQC Methodology at 43,762.
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1 public waterways for waste disposal), while compliance exacts a financial cost (the construction
2 and operation of expensive pollution removal facilities)."245
3 Water quantity is also of serious concern given, among other things, its recognized
4 connections to and implications for water quality and integrity. For example, congressional goals
5 and policies under the Clean Water Act direct federal agencies to "co-operate with State and local
6 agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert
7 with programs for managing water resources."246 And the U.S. Supreme Court has recognized the
8 connection between water quantity and quality, upholding a state's imposition of minimum
9 instream flows as part of a Section 401 determination.247 Wetlands, which provide essential
10 wildlife habitats, are also recognized as an integral and natural way of removing pollutants from
11 water bodies, and the Clean Water Act's Section 404 permitting program as well as EPA's "no net
12 loss" strategy for wetlands preserves both the quality and quantity of these waters. Additionally,
13 reduction in water quality affects surface flows and may increase the concentration of pollutants
14 and other chemicals.248
15 2. Other Authorities
16 The Clean Air Act (CAA) is an important source of authority for addressing contamination
17 of aquatic environments that results in part from the deposition of contaminants emitted into the air.
18 For example, it is estimated that air emissions account for some 80% of mercury contamination in
19 water. Most dioxins released into the environment also come from emissions to air; as noted
20 above, dioxins emitted into the air may be suspended for a long time and travel great distances
21 before being deposited to surface waters. Among other things, the CAA Section 112 addresses
22 certain "hazardous air pollutants;" the 1990 amendments to the CAA direct EPA to develop rules
23 for categories of sources that emit these hazardous air pollutants, and to do so over the next ten
24 years. EPA has promulgated many of these rules, although there are some source categories for
25 which EPA is still in the process of rule development. Because mercury compounds and dioxin
26 are among the hazardous air pollutants regulated under CAA Section 112, this provides an
27 important basis for preventing and reducing these contaminants. Moreover, EPA has several
28 upcoming opportunities under Section 112 (e.g., upcoming rule for coal-fired power plants, the
29 single largest source of mercury emissions nationwide; upcoming rule for chlor-alkali plants, a
30 significant source of mercury, particularly in some locales, such as Louisiana) to address these
31 concerns as it develops these rules.
245John Cronin and Robert F. Kennedy, Jr., The Riverkeepers at 178 (1997).
24633 U.S.C. § 1251(g).
247PUD No. 1 v. Washington Dep't of Ecology. 511 U.S. 700 (1994).
248See. e.g.. United States v. Gila Valley Irrigation Dist.. 920 F. Supp. 1444 (D. Ariz. 1996)
(finding that upstream water uses reduced surface flows and increased saline levels in water reaching an
Indian reservation to the extent that traditional agricultural activities were impaired and recognizing that
the tribe was entitled to surface water of adequate quantity as well as quality).
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1 The CAA also provides authority to address other air-related source of contaminated
2 waters. For example, the CAA regulates oxides of nitrogen (NOx) through a variety of provisions.
3 NOx causes acidification and euthrophication (a process in which an overabundance of nutrients
4 causes some algae to multiply exponentially causing oxygen depletion that limits the ability of
5 some species to thrive and survive), a potential problem for shellfisheries and other aquatic
6 resources. Among these, the New Source Review program, which decides controls for NOx on
7 new or modified facilities on a case-by-case basis, is under review pursuant to the National
8 Energy Policy. In addition, implementation of the new Ozone National Ambient Air Quality
9 Standard (NAAQS) may affect NOx emissions as NOx is an important ozone precursor.
10 Other statutory and regulatory authorities similarly provide authority useful for preventing
11 and reducing contamination of fish and aquatic environments. Several statutes and regulations
12 pertaining to hazardous waste may provide authority to address more thoroughly the use of
13 "recycled" wastes from various industrial processes as fertilizer - which is then applied to crops,
14 grazing lands, and gardens, and may contribute to run-off of dioxins, lead, mercury, cadmium, and
15 other contaminants of concern to surface waters and contamination of groundwater, including
16 drinking water. Although current regulations address this practice, they contain a loophole
17 exempting steel mill waste and may still permit unacceptable levels of these contaminants in
18 fertilizer.
19 The Federal Insecticide, Fungicide, and Rodenticide Control Act (FIFRA) may provide
20 authority to address the fact that "[w]ell over a billion pounds of pesticides are applied annually in
21 the United States, at least 50 million pounds in the Great Lakes Watershed alone."249 Also
22 authority under FIFRA is limited, there may well be opportunities for EPA to use the available
23 tools more aggressively, e.g., prominent advisories on pesticide labels, prohibitions on use within
24 a specified distances from wells (well set-backs), prohibitions on use in designated geographic
25 areas, and restricting pesticides' use to certified applicators.250
26 The Pollution Prevention Act (PPA), enacted in 1990, might similarly be mined for tools
27 that EPA might employ more aggressively to prevent pollution from entering aquatic environments
28 in the first place.
29 Finally, a variety of sources of authority and EPA offices have been gathered in EPA's
30 recent Contaminated Sediment Management Strategy. Given that in terms of volume, some 10% of
31 the sediments underlying the nation's waters are contaminated, that 96 of the watersheds tested
32 indicate contamination at levels of serious concern, and that the contaminants that most frequently
249U.S. General Accounting Office, Issues Concerning Pesticides Used in the Great Lakes
Watershed (1993).
250Zygmunt J. B. Plater, et al., Environmental Law and Policy: Nature, Law, and Society
728 (2d ed. 1998).
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1 contributed to this concern were mercury, PCBs, pesticides (especially DDT), and PAHs,
2 addressing sediment contamination should indeed be a priority.251
3 B. CLEANUP AND RESTORATION
4 How might EPA enhance restoration efforts in order to rehabilitate aquatic ecosystems and
5 thereby protect the health of people consuming or using fish, aquatic plants, and wildlife for
6 subsistence, traditional, cultural, or religious purposes?
7 Many aquatic environments remain degraded such that they require restoration in order to
8 ensure the viability of the ecosystem; the health of people consuming or using fish, aquatic plants,
9 and wildlife for subsistence, traditional, cultural, or religious purposes; the ability to support
10 economies dependent on aquatic resources; and the sustainability of tribal homelands. Efforts to
11 cleanup and restore contaminated aquatic environments are vital to protecting the health of
12 communities of color, low-income communities, and tribes. These efforts are especially
13 important given that members of these groups are among the most highly-exposed to environmental
14 contaminants (as discussed in Chapter 1) and given that for many of these groups, risk avoidance -
15 eating less fish, using a different preparation method, fishing in a different location - is simply not
16 a realistic or culturally appropriate option (as will be discussed in Chapter 3). Thus, these groups
17 will disproportionately bear the burden of existing contamination that is not adequately addressed.
18 Moreover, because production (and, in many cases, use) in the United States has been banned for
19 several of the contaminants of greatest concern - for example, PCBs, DDT, chlordane, and
20 toxaphene - the presence of these contaminants in the environment can only be reduced through
21 cleanup and restoration efforts.
22 "Restoration" has been taken by different people to mean different things.252 Restoration
23 has sometimes been defined somewhat narrowly, to the exclusion of the historical, cultural, legal,
24 and social contexts within which restoration takes place. Thus, for example, the National
25 Research Council has defined restoration of aquatic ecosystems as "the reestablishment of
26 predisturbance aquatic functions and related physical, chemical and biological characteristics.253
27 Others define restoration more broadly and suggest that the ends and means of restoration can only
28 be contemplated in context, i.e. in light of the particular historical, cultural, legal, and social
29 circumstances of a place. The Society for Ecological Restoration, for example, observes that
30 restoration should attend to "regional and historical context," and must take into account the need
31 to sustain cultural activities, especially the cultural practices of indigenous peoples.254 Similarly,
251U.S. Environmental Protection Agency, Office of Science and Technology, The
Incidence and Severity of Sediment Contamination in Surface Waters of the United States,
Volume 1: National Contaminant Survey (1997).
252For several examples relevant to the restoration of aquatic environments, see U.S. EPA,
Office of Water, River Corridor and Wetland Restoration, "What is Restoration?" at
www.epa.gov/owow/wetlands/restore/defs.html (visited Aug. 6, 2001).
253National Research Council, Restoration of Aquatic Ecosystems 18 (1992).
254See www.ser.org [check citation]
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1 among the Principles of Environmental Justice articulated by the First National People of Color
2 Environmental Leadership Summit, is that "(environmental justice affirms the need for urban and
3 rural ecological policies to clean up and rebuild our cities and rural areas in balance with nature,
4 honoring the cultural integrity of our communities and providing fair access for all to a full range
5 of resources."255
6 In the case of restoration affecting tribal homelands (including tribal resources and
1 culturally-important resources whether located on- or off-reservation), tribes and commentators
8 have noted that the ends or "point of reference" for restorative efforts cannot be considered
9 separately from the obligations that the United States has undertaken in treaties and as part of its
10 trust responsibility.256 Restoration here must attend to the purposes for which tribal lands and
11 resources have been reserved under treaties and protected in furtherance of the federal trust
12 responsibility.257 As noted above, arguably the primary purpose of all reservations is the creation
13 of a permanent tribal homeland where the tribe can maintain its traditional subsistence activities
14 including the exercise of treaty rights to hunt, fish, and gather. Water of sufficient quality and
15 quantity for this purpose is essential.258 Thus, for example, in introducing their plan for restoring
16 salmon and other anadromous fish in the Columbia River Basin, Wy-Kan-Ush-Mi Wa-Kish-Wit,
17 the Columbia River treaty tribes explain that "[ujnlike other plans, this plan establishes a
18 foundation for the United States and its citizens to honor their treaty and trust obligations to the four
19 tribes. If implemented, it would at least begin to meet ceremonial, subsistence, and commercial
20 needs of tribal members and to return fish to many of the tribes' usual and accustomed fishing
21 places, as guaranteed in the 1855 treaties."259 Restoration affecting tribal lands and resources,
22 moreover, must attend to the related matters of cultural flourishing and tribal sovereignty.260 As
255Principles of Environmental Justice, Proceedings of the First National People of Color
Environmental Leadership Summit xiii (1991).
256Moses Squeochs, Director, Environmental Program, Fourteen Confederated Bands of the
Yakama Nation (August 3, 2001 conference call).
257Jana Walker, Attorney, Law Offices of Jana L. Walker (August 3, 2001 conference call);
Mary Christina Wood, Indian Land and the Promise of Native sovereignty: The Trust Doctrine
Revisited, 1994 Utah L. Rev. 1471; Mary Christina Wood, Fulfilling the Executive's Trust
Responsibility Toward Native Nations on Environmental Issues: A Partial Critique of the Clinton
administration's Promises and Performances, 25 Envtl. L. 733 (1995); Mary Christina Wood,
Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions
Affecting Tribal Lands and Resources, 1995 Utah L. Rev. 109
258See. e.g. Winters v. I Inited States. 143 F. 740, 742 (1906); Colville Confederated
Tribes v. Walton, 647 F.2d 42, 49 (1981 9th Cir.), cert, denied, 454 U.S. 1092 (1981); Felix S.
Cohen, Handbook of Federal Indian Law, 588-89 (1982 ed.); [U.S. v. Washington Phase II]; see
also Maiy Christina Wood [trust trilogy];
259Columbia River Inter-Tribal Fish Commission, 1 Wy-Kan-Ush-Mi Wa-Kish-Wit: Spirit
of the Salmon, iv (1995).
260See, e.g., CRITFC, Wy-Kan-Ush-Mi Wa-Kish-Wit at v ( protect tribal sovereignty"
among goals of restoration); Chairman's Corner; The Exercise of Tribal Sovereignty Lies at the
Heart of Healthy Ecosystems. Fort Apache Scout, May 24, 1996 at 2; [Tsosie]; see, generally,
Winona LaDuke, AH Our Relations: Native Struggles for Land and Life (1999).
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1 John LaVelle observes in the context of restoration plans for Paha Sapa or the Black Hills, those
2 pursuing plans "must embrace the restoration of tribal sovereignty and cultural integrity as an
3 indispensable remedial norm to be realized through the proposal's development and
4 implementation."261
5 EPA's Watershed Ecology Team has set forth Principles for the Ecological Restoration of
6 Aquatic Resources.262 These "Guiding Principles" include (1) preserve and protect aquatic
7 resources; (2) restore ecological integrity; (3) restore natural structure; (4) restore natural function;
8 (5) work within the watershed and broader landscape context; (6) understand the natural potential
9 of the watershed; (7) address ongoing causes of degradation; (8) develop clear, achievable, and
10 measurable goals; (9) focus on feasibility; (10) use a reference site; (11) anticipate future changes;
11 (12) involve the skills and insights of a multi-disciplinary team; (13) design for self-sustainability;
12 (14) use passive restoration, when appropriate; (15) restore native species and avoid non-native
13 species; (16) use natural fixes and bioengineering techniques, where possible; and (17) monitor
14 and adopt where changes are necessary.
261John P. LaVelle, Rescuing Paha Sapa: Achieving Environmental Justice by Restoring
the Great Grasslands and Returning the Sacred Black Hills to the Great Sioux Nation, 5 Great
Plains Natural Resources J.-40, 78 (Spr./Sum. 2001) (italics omitted).
262U.S. EPA, Principles for the Ecological Restoration of Aquatic Resources (2000),
available at www.epa.gov/owow/wetlands/restore/principles.html (visited Aug. 6, 2001).
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1
1. Clean Water Act
2 As noted above, the statutory objective of the CWA is "to restore and maintain the
3 chemical, physical, and biological integrity of the Nation's waters."263 In addition to the efforts
4 discussed above in conjunction with prevention and reduction, EPA should read its authority under
5 the CWA consonant with this stated objective and look creatively and aggressively for restoration
6 opportunities.
7 2. Other Authorities
8 Clearly, the focus of CERCLA or "Superfund" is on cleanup and restoration of
9 contaminated environments, including aquatic environments. Under CERCLA and its
10 implementing regulations, once contaminated sites have been identified as potential priorities for
11 cleanup action, EPA investigates the nature and extent of the threat posed by the contamination (the
12 "remedial investigation" or "RI") and develops alternative approaches for responding to the
13 contamination at that site (the "feasibility study" or "FS"). EPA uses a screening process to
14 evaluate the alternatives identified during the RI/FS, which includes, among other criteria, whether
15 the alternatives comply with all "applicable, relevant, and appropriate requirements," whether
16 they achieve overall protection of human health and the environment, whether they reduce the
17 toxicity, mobility or volume of the contamination through treatment, whether they are effective in
18 the short-term as well as the long-term, whether they are implementable and how much they cost,
19 whether they are acceptable to the state and to the community. Note that these criteria provide
20 EPA with considerable latitude to choose a more or a less protective alternative as the "remedy"
21 for the contamination. EPA's work in this regard could be improved in several ways relevant to
22 communities of color, low-income communities, and tribes. First, EPA needs to set cleanup levels
23 and determine appropriate remedies in light of the considerations discussed in Chapter 1.
24 Specifically, when EPA sets cleanup levels for contaminated sediments and surfaces waters, it
25 needs to take into account the different fish consumption rates, practices and contexts of affected
26 groups and set levels sufficiently protective of these groups. EPA site managers need to consider
27 matters of aggregate or multiple exposures and cumulative risks, and delineate sites, goal, and
28 remedies accordingly. EPA needs to refrain from falling back on "institutional controls" (e.g., put
29 a fence around the site and post "No Fishing" signs) and undertake aggressive cleanups where the
30 sites are past or present locations for fishing and other activities that expose communities of color,
31 low-income communities, and tribes to contamination. Second, EPA needs to take seriously the
32 requirement of "community acceptance" as it chooses among alternatives. In order to do so, it
33 needs to ensure that participation by affected communities (and co-management by affected tribes)
34 takes place from the outset and at every point in the decision-making process. To accomplish this,
35 EPA should be ready to provide financial and technical support. These issues of affected group
36 involvement are also taken up in Chapter 1 and Chapter 3. Finally, to the extent that the Natural
37 Resource Damage provisions of CERCLA (or other statutes) are invoked, involved agencies
38 should work with the community to ensure that efforts are undertaken with an eye toward making
39 the community whole. Community involvement here, of course, will be critical; tribes may well
2633 3 U.S.C. § 1251(a).
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1 be involved in their roles as Natural Resource Damage trustees. The discussion above regarding
2 restoration is also relevant here.
3 Other statutory and regulatory authorities similarly provide authority useful for cleaning up
4 and restoring contaminated aquatic environments. Among these, as discussed above in the context
5 of prevention and reduction, a variety of sources of authority and EPA offices have been gathered
6 in EPA's recent Contaminated Sediment Management Strategy.
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l CHAPTER III: FISH CONSUMPTION ADVISORIES
2 What role should fish consumption advisories play in efforts to protect more effectively the
3 health and safety of people consuming or using fish, aquatic plants, and wildlife?
4 Whereas Chapter 2 focused on issues surrounding risk reduction strategies, this chapter
5 focuses on issues surrounding a risk avoidance strategy: fish and wildlife consumption advisories
6 Rather than looking, as risk reduction strategies do, to the risk-producers to cleanup, limit, and
7 prevent environmental contamination, risk avoidance strategies look to risk-bearers - those who
8 bear the risks of contamination - to change their lives and practices in order to avoid exposure to
9 harmful contaminants. They do this by encouraging or requiring individuals to change the way
10 they live, specifically, to alter or refrain from certain pursuits or practices that, once a place has
11 been allowed to become contaminated, expose them to risk.
12 It is important to note that with risk avoidance strategies such as fish consumption
13 advisories, the responsibility for addressing environmental contamination and its harmful human
14 health effects is allocated to those who are made to bear the risks of contamination rather than to
15 the sources of that contamination. Furthermore, because risk avoidance strategies place this
16 responsibility on those who are exposed to environmental contaminants, they will necessarily
17 impose a greater burden on communities of color, low-income communities and Tribes. As has
18 been amply demonstrated, it is members of these groups who are among the most exposed
19 In light of these and other considerations, and in view of the reality of the harmful health
20 effects of consuming fish from seriously contaminated environments, Part A of this chapter will
21 take up the question "what role should fish consumption advisories play in efforts to protect more
22 effectively the health and safety of people consuming or using fish, aquatic plants, and wildlife?"
23 It is important to note that the answer to this question is likely to be different for different
24 communities, groups, or tribes, and should be determined by or together with the affected
25 group.
26 Parts B, C and D will examine the related matter of fish consumption advisories'
27 "effectiveness." The concept of "effectiveness" itself raises a host of issues, the first of which is
28 definitional: what is meant by an "effective" advisory? Again, the answer to this question may be
29 different for different agencies and for different communities, groups, or tribes. This question will
30 be discussed in Part B. Part C will canvas the current state of research regarding how those to
31 whom advisories are directed respond to this information, focusing on what is known about
32 awareness and responses in communities of color, low-income communities, and tribes. Part D
33 will then explore ways in which to improve the effectiveness of risk communication and fish
34 consumption advisories. Throughout, this chapter will seek to address the question: how can EPA
35 better meet the needs of all people, including minority and low-income communities and Tribes as
36 it works to address degradation of aquatic ecosystems and to protect the health and safety of
37 people consuming or using fish, aquatic plants, and wildlife?
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1 A. FISH CONSUMPTION ADVISORIES' ROLE
2 Risk avoidance strategies such as fish consumption advisories shift the responsibility for
3 addressing environmental contamination's harmful health effects to risk-bearers, as opposed to
4 allocating this responsibility to risk-producers. In the case of fish consumption advisories, this
5 choice disproportionately burdens communities of color, low-income communities, and tribes,
6 given that these groups consume fish at higher rates and according to different practices than the
7 general population, as discussed in Chapter 1. When agencies employ fish consumption
8 advisories, moreover, they assume that there are adequate substitutes in the lives of those to whom
9 the advisories are directed for fishing and fish consumption. Although consumption advisories
10 issued by federal or state agencies typically do not state as much explicitly, they rely implicitly on
11 the assumption that there are ready substitutes for being able to fish at the same place, in the same
12 manner, and for the same fish as one had traditionally or would today were the fish not
13 contaminated. This assumption requires a judgment on the part of the agencies that such a
14 substitution (1) is possible, and (2) will not occasion great loss.264 This is a value judgment that
15 is likely to reflect the understandings of the dominant society that fishing and fish consumption are
16 expendable "habits," "activities," or "behaviors," for which, at the very least, substitutes can be
17 readily obtained; and, that various groups' particular fishing and fish consumption practices can be
18 altered without great anguish (or that this anguish and loss does not matter).265
19 However, this value judgment does not reflect the understandings of many of those who are
20 affected - those who are being asked to change their lives and practices. First, it is often
21 unrealistic as a practical matter to think that there are substitutes ready at hand for fishing,
22 preparing fish, and eating fish in the manner currently practiced by affected individuals. This may
23 be so for economic, geographic, historical, cultural, and/or other reasons. It is often difficult if not
24 impossible to fish at a different bay, river, lake, or bayou - how would one get there if it is too far
25 to walk, or if the bus doesn't go there, or if there isn't any money to put enough gas in the car?
26 how would one learn what it takes to catch fish at a new place, and how would one put food on the
27 table in the meantime? what if all of the waters nearby were also contaminated, as is likely to be
28 the case when the sources of the contaminants are air emissions (e.g., mercury) or the entire area is
29 heavily industrialized (e.g., the Mississippi River Corridor between New Orleans and Baton
30 Rouge) or the entire area is plagued by pesticide runoff from farms? It is often difficult if not
31 impossible to fish for different species or to fish for younger fish as some advisories suggest -
32 what does one do for dinner when the only fish that are biting that day are old and the "wrong"
33 species? It is often difficult if not impossible to stop eating fish altogether and to obtain nutrition
34 benefits similar to fish from other sources - what if one cannot afford to pay for substitute sources
35 of protein, such as beef, which is often more expensive? how does one account for the fact that
36 fish are unequaled in regard to some nutrition benefits: for example, fish are an especially efficient
37 source of protein inasmuch as fish are low in fat relative to other protein sources? Consider, for
38 example, the obstacles and concerns identified by the following.
264 [cite to my paper, forthcoming or to presentation at PIELC]
265Id.
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1 Raymond Moseley, a fisher along the Columbia Slough in Portland, Oregon, explains:
2 We have caught big fish down there, between them two posts. Plenty catfish in there.
3 A in 't too many other places to fish - except way out of town.266
4 A low-income, African American fisher along the Detroit River, explains:
5 Yes, income affects everything. A fishing license is expensive - or outrageous is more
6 like it. You need money for everything. To fish is expensive and what happens when you
1 are poor? . . . You even have to spend money on gas so that you can get to the water and
8 if you can't get there then you can V get food.261
9 According to an account of the response of Alaskan Natives on Nelson Island to an unusual year
10 marked by reduced numbers of herring and a prevalence of fatty herring:
11 Several families did not fish for herring at all, resulting in the lowest overall household
12 involvement in herring production in the years of survey. Instead, they diverted efforts
13 to increase halibut, Pacific cod, and salmon harvests, filling drying racks and freezers
14 with these welcome, but less preferred, alternatives. Local residents do not consider
15 halibut and Pacific cod adequate, or even improved, substitutes for herring, as non-
16 local people may, but these species certainly are preferred by Nelson Island families to
17 non-local, imported foods. Herring is the traditional winter food for Nelson Island
3 8 families. Changing subsistence fishing strategies often means purchasing new gear and
19 more gasoline, adjusting processing and drying facilities, investing more time fishing
20 for other species, and altering subsistence production roles in the family268
21 Yin Ling Leung, Executive Director of Asians and Pacific Islanders for Reproductive Health,
22 California, explains:
23 To our communities, being able to fish means being able to either put food on the table,
24 or basically eat a much less nutritious meal. I think that's a non-choice.269
25 As Daisy Carter, Project AWAKE, Coatopa, Alabama, summarizes,
26 When it comes to people, their health and survival, EPA must become real. It is not
27 about formality, but reality.270
266Videotape: The Water in Our Backyard.
267Patrick C. West and Brunilda Vargus, A Subsistence-Culture Model for High Toxic
Fish Consumption by Low-Income Afro-Americans from the Detroit River 15 (forthcoming).
268Maiy C. Pete, Subsistence Herring Fishing in the Nelson Island and Nunivak Island
Districts (1991) available at www.nativeknowledge.org/db/files/tpl96.htm.
269Audrey Chiang, Asian Pacific Environmental Network, A Seafood Consumption Survey
of the Laotian Community in West Contra Costa County, California 1 (1998).
270Daisy Carter, Project AWAKJE (date).
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1 Second, even if those affected in some senses could as a practical matter alter their fishing
2 and fish consumption practices, to be asked or required to do so might be unthinkable in the sense
3 of occasioning profound loss or anguish. This may be so for traditional, cultural, religious,
4 historical, and/or other reasons. For some communities or peoples, fish and fishing are a way of
5 life, a way to be who they are. For these groups it is necessary to fish in traditional places, and to
6 catch, prepare and eat fish in accordance with traditional ways. From their perspective, these are
7 not expendable "habits," "activities," or "behaviors;" they are crucial for survival - of the
8 individual, the community or people, and, in some cases, the entirety of the earth.
9 Barbara Harper, Fourteen Confederated Tribes of the Yakama Nation, and Stuart Harris,
10 Confederated Tribes of the Umatilla Indian Reservation, explain:
11 There are many issues relating to the evaluation of tribal health risk and, even more
12 importantly, the health of people as they exist within their eco-cultural communities. . . .
13 We need to think not only about human people as receptors, but about the culture itself
14 as a receptor. We should be very uncomfortable about having to write a fish advisory in
15 the first place. .. Really, there is just a single cultural community that is comprised of
16 human and fish peoples and their rules for behaving and mutually surviving. It has been
17 explained that the fish community existed first, and accepted people as community
18 members, but only if human people follow certain rules ofparticipating in the ecology,
19 including a nutritionally adequate level of respectful consumption (a sacrament), and
20 protecting the fish members from contamination and habitat degradation in return for
21 being protected from starvation. Writing a fish advisory to protect some community
22 members from other members is very disquieting, and causes many consequences on its
23 own.271
24 Thus, it is often impossible to conceive of fishing at a different bay, river, lake, or stream - what if
25 it belongs to someone else traditionally, historically and/or legally? This is an issue, in particular,
26 for many tribes, especially the fishing tribes (e.g., of the Pacific Northwest or of the Great Lakes),
27 whose rights to hunt, fish, and gather are tied to particular places and protected by treaties - these
28 place-based rights are not transferable. Nor can many tribal fishers imagine going "somewhere
29 else" to fish, even if they could. Margaret Palmer, a Yakama tribal fisher, elaborates:
30 I don't feel like it's within our rights, as the tribe that we are, to go to a different area
31 and live off of something that maybe God has blessed them with. This is our blessing.
32 This is the way we see it. This is where we should stay. I don't believe that I would
3 3 leave the area. I believe I would stay where I'm at- by the water. It's our lineage.272
"'Barbara Harper and Stuart Harris, Tribal Technical Issues in Risk Reduction Through
Fish Advisories in Proceedings of the American Fisheries Society: Contaminants in Fish 17
(1999).
272Videotape: My Strength is From the Fish (Columbia River Inter-Tribal Fish Commission
1994).
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1 Moreover, the particularized skills and knowledge that tribal peoples have developed over
2 centuries are place-specific and comprise a part of their intergenerational heritage, to be passed
3 from generation to generation. It is often impossible to fish for, hunt for, or gather different spec
4 or to fish for younger fish as some advisories suggest - what if a particular species is bound up
5 with one's cultural identity and with eveiy aspect of who one is, as in the case of salmon and the
6 Native peoples of the Pacific Northwest or in the case of wild rice and the Native peoples of
7 Northern Minnesota?
8 Winona LaDuke, Mississippi Band of Anishinaabeg, explains:
9 It's mid-September in northern Minnesota. Somewhere on one of the many lakes Lenni
10 Butcher and his wife Cleo are making wild rice. Mamoominikewag. That is what they 6
12 It's a misty morning on Big Chippewa Lake. The Anishinaabeg couple drag their canoe
13 toward the water's edge. The woman boards in the front and sits on her haunches The
14 man pushes the canoe offshore and jumps in the boat behind her. As they pole toward
15 the wild rice beds, they can feel the crisp dampness of September on their faces The
16 man rises to stand, his head visible just above the tall sticks of rice. The woman pulls
17 the rice over her lap with a stick and gently raps it with another one. This is a
18 thousand-year-old scene on Big Chippewa Lake. And there is a community that intends
19 to carry it on for another thousand years.
20 There are many wild rice lakes on the White Earth reservation in northern Minnesota •
21 my community, the Anishinaabeg, calls the rice Manoomin, or a gift from the Creator
22 Every year, half our people harvest the wild rice, the fortunate ones generating a large
23 chunk of their income from it. But wild rice is not just about money andfood It's about
24 ' feeding the soul.213
25 Or what if a particular preparation method is an important component of traditional, cultural or
26 ceremonial use?
27 A majority of respondents [to the Seafood Consumption Survey of the Laotian
28 Community in West Contra Costa County, CaliforniaJ (76.1%) said they always eat the
29 skin of the fish. Some respondents also report regularly consuming the head and organs
30 of the fish. Many chemicals are concentrated in the fat, which is just underneath the
31 skin, and in the organs of the fish. Consumption of these parts of the fish exposes a
32 person to higher amounts of chemical contaminants than consumption of only the fillet
33 Cooking methods often determine which parts of the fish are eaten. The California
34 Environmental Protection Agency (Cal EPA) health advisory recommends that people
35 eat only fillet portions offish, and bake, broil, steam or grill fish on a rack so that
36 juices from the fat drip off during cooking. This survey shows that frying, baking,
273 Winona LaDuke, All Our Relations: Native Struggles for Land and Life 115 (1999).
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1 steaming, grilling, and making "fishpudding" are the most common ways of preparing
2 fish in the Laotian community. According to the survey staff, the whole fish, including
3 the head, skin, and organs, is frequently cooked when frying, baking, steaming and
4 grilling fish. . . . "Fish pudding" or lap is also made out of the whole fish, and is
5 oftentimes made from raw fish. When making lap, the organs of the fish are commonly
6 removed, cooked separately, chopped up and then included in the mixture. According to
7 the survey staff, striped bass is a popular fish for lap. Sauces and pastes made from
8 whole and raw fish, shrimp or crab are also popular traditional Laotian condiments.
9 The health advisory's recommendations for methods of cooking fish to lower one's risk
10 of taking in harmful chemicals clearly are at odds with traditional ways ofpreparing
1'1 fish and other seafoods.21''
12 According to a recent study of African American fishers on the Detroit River, frying is "a firmly
13 rooted cultural tradition amongst African Americans" and is either the only method or the
14 preferred method of preparing fish; as one fisher summarized:
15 It's cultural. Blacks fry. It's simple.275
16
17 It is often simply impossible to stop eating fish altogether and to obtain nutrition benefits similar to
18 fish from other sources. For some communities and peoples, there are simply no replacements that
19 equal the nutritional and health benefits - in the broadest sense of these terms - of the fish, aquatic
20 plants, and wildlife that they have traditionally consumed. Yvonne Smith and Laura Berg explain
21 in Wana Chinook Tymoo, in a sidebar entitled "Declining Fish, Declining Health:"
22 The shortage of salmon and other fish has necessitated dramatic changed in the diet of
23 the Indian people of the Columbia River Basin. They have experienced a steady decline
24 in health as a result.
25 Researchers worldwide state what Indians have known all along, that there are health
26 benefits to consuming fish. .. .
27 Ted Strong reported that when his relatives, many now deceased, spoke of those that
28 came before them, they talked about people who lived long lives, into their 90's and
29 beyond. "Those ancestors ate the traditional foods, " he said. . . .
30 Whatever other factors have contributed to the shortened lives and high death rate
31 among the Indian people of the basin, there is little doubt dietary changes have had a
32 significant impact.
274Audrey Chiang, Asian Pacific Environmental Network, A Seafood Consumption Survey
of the Laotian Community in West Contra Costa County, California 35 (1998).
275Katharine J. Hornbarger, et al., Targeted Audience Analysis: Recommendations for
Effectively Communicating Toxic Fish Consumption Advisories to Anglers on the Detroit River
26 (1994)(noting that anglers described several ways of frying: "pan frying, deep fat frying, and
the most often cited method, coating the fish with commeal and then frying.").
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1 Joanna Meninick has watched the health of her people decline as the scarcity of salmon
2 has increased, "diabetes, cancer, heart disease. All of these are on the increase. "
3 Many traditional foods are gone, or have become inaccessible. C 'lay (pronounced chu-
4 lie) is an example. Made from dried salmon, berries, and other oils and foods, the
5 powdery preparation has multiple uses. "It is good medicine, said Bill Yal-lup, Sr.
6 "You can mix it with certain roots, certain foods. . . very good for the heart. "
7 But c'lay is in short supply. It takes many pounds of dried salmon to make. Whole
8 salmon, neededfor ceremonies and subsistence, comes first.
9 Pierson Mitchell noted that he had salmon for lunch at home sometimes, when it was
10 available, but he missed the c 'lay. Getting it occasionally in the Christmas basket was a
11 treat. "If our people had remained on the diet of the salmon, our health would be better
12 today," he said.216
13 Similarly, Silas Whitman, Nez Perce, explains:
14 One thing I have noticed over the years is that the Nez Perce people are highly
15 susceptible to minute changes in diet, especially those that revolve around fish. If we
16 supplant native foods with other foods, often times the nutritive values of that
17 supplanted product cannot be ingested or stay in the system to the degree that our
18 bodies as Nez ferce people can use them. From that come health problems that are
19 eroding our mortality. So as we help the salmon and other fish to recover we help
20 ourselves.111
21 And it is no less a source of profound loss and anguish for those whose have already been forced
22 to give up fish because of the gross contamination of their fishing places. It is no less necessary
23 for these communities or peoples to fish in traditional places, and to catch, prepare and eat fish in
24 accordance with traditional ways. They have been made to suspend or alter their practices, but
25 they cannot be viewed as having "chosen" to abandon these practices. The strength and resilience
26 of these affected communities and peoples cannot now be taken to justify a claim that fish are no
27 longer important to their survival as individuals and peoples, such that it would be permissible to
28 allow the contamination to continue and remain. Winona LaDuke recounts:
29 "This is a classic environmental justice site. " says Ken Jock, a director of the
30 Akwesasene Environment Program. A slight man, with soft eyes and a quiet manner, he
31 spends much of his time arguing with agencies about implementation of the law. His
32 huge office is full of reports and photos documenting the extent of the [PCB
33 contamination at Akwesasne, on the St, Lawrence River]. The reports, photos, and sheer
276Yvonne Smith and Laura Berg, Ancient Tradition, Modern Reality: Is There a F
for a Salmon-Based Culture? 1 Wana Chinook Tymoo 14 (1998). " Ure
277Dan Landeen and Allen Pinkham, Salmon and His People ¦ Fish and Fishing • m
Perce Culture 21 (1999). g Nez
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1 size of the Akwesasne Environment Program dwarf the infrastructure of most Indian
2 nations in the country. Yet it seems that even with reams of paper, the action taken by
3 federal agencies is minimal. "This all used to be a fishing village. That's all gone now.
4 There's only one family that still fishes, " Jock says. "We can't farm here because of all
5 of those air emissions. Industry has pretty much taken the entire traditional lifestyle
6 away from the community here. "
7 Today 65 percent of the Mohawks on Akwesasne reservation have diabetes, says Jock.
8 Henry Lickers, director of the environmental health branch of the Mohawk Council of
9 Akwesasne echoes Jock: "Our traditional lifestyle has been completely disrupted, and
10 we have been forced to make choices to protect our future generations, " says Lickers.
11 "Many of the families used to eat 20-25fish meals a month. It's now said that the
12 traditional Mohawk diet is spaghetti. "m
13 Thus, it may be impractical or impossible for those who are affected by contaminated
14 aquatic environments to give up or alter their fish consumption practices. This may be so for
15 economic, geographic, historical, traditional, cultural, religious, and/or legal reasons. Yet, the
16 reality of gross contamination means that these practices may expose members of affected
17 communities, groups and tribes to serious health risks - some of the contaminants contained in the
18 fish, aquatic plants, and wildlife cause cancer, some wreak neurological damage, some are linked
19 to reproductive and developmental damage, some disrupt endocrine functions, and some cause a
20 range of these and other harms to humans. This poses a sad and dire dilemma.
21 What role should fish consumption advisories play in agencies' response? Broadly
22 speaking, there are three possible policy options. These might be thought of as occupying a
23 continuum. On the one end, agencies might rely exclusively on fish consumption advisories to
24 address this dilemma. This option might reflect the view that it is cheaper and easier to address
25 affected communities' and tribes' exposure by getting them to stop eating fish than it is to require
26 risk-producers to prevent, reduce, and cleanup contamination. And, assuming the fish consumption
27 advisories were effective (a question taken up in the next part of this chapter), affected
28 communities would be protected from the harms of cancer and the like. There would, of course,
29 be some losses - any substitute food sources might not be of equal nutritional quality or might not
3 0 be what members of these communities would prefer to eat - but these losses would have to have
31 been judged to be worth the benefits of not being exposed to the host of contaminants contained in
32 the fish.
33 On the other end, agencies might abandon the use of fish consumption advisories altogether,
34 and instead push aggressively for pollution prevention and cleanup. With this option, agencies'
35 time and financial resources would be devoted entirely to preventing, reducing, and cleaning up
36 contamination, such that aquatic environments would be returned to health and would be able to
37 sustain fish, aquatic plants, and wildlife that were safe for humans to consume and use at the
38 earliest possible time. This option might reflect the view that the only real way to protect health
39 and safety of humans who consume or use these resources is to address the source of the health
278Winona LaDuke, All Our Relations: Native Struggles for Land and Life 17 (1999).
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1 risk, i.e., the contamination. This option might reflect the view that it would be a misdirection of
2 scarce agency time and money to continue to try to use and improve fish advisories - that this time
^ 1 - — — i j 1 . 1- j-'- - - ' * * -
j — Ulrtl LIUJ 111
and money would be better spent on prevention, reduction, and cleanup. Or it might reflect the
4 view that even advising affected communities, groups, or tribes to alter their fish consumption
5 practices is inappropriate, given the discrimination against and potential affront to those for whon
6 these practices have cultural, traditional, or religious dimensions.
7 In the middle are a range of policy options that recognize some temporary role for fish
8 consumption advisories but emphasize that they not become agencies' primary policy response to
9 the adverse health effects of contaminated aquatic environments. These middle options would
10 grow out of a sense that neither the first nor second options actually addressed the concerns of
11 communities of color, low-income communities and Tribes. The first option would shift the
12 burdens of contamination entirely from those who have produced the risks to those who bear them.
13 This is unjust and unacceptable. It would also give continued license to real and grave harms -
14 among them nutritional deficits, other health detriments, and cultural discrimination. It would
15 stand idly by as aquatic food sources were ultimately allowed to remain or become poisoned and
16 forever "off limits" to those communities, groups, and Tribes that formerly relied on these
17 resources. The second option would address some of these long-term concerns, but would fail to
18 inform affected communities in the short term. This, too, is unjust and unacceptable. The second
19 option would, as Daisy Carter puts it, withhold from those most affected precisely what they need
20 and are entitled to: "the information and knowledge to help themselves. "m It would turn its back
21 to the reality that fish are already contaminated - and will remain contaminated for some time,
22 even given the most ambitious cleanup schedules - and real people will suffer when they eat or
23 use this fish. Finally, the options that chart a middle course recognize that there may be ways to
24 address at least some of the concerns of those affected by fashioning appropriate advisories (e.g.,
25 appropriate in terms of language, cultural, and other group- and place-specific considerations).
26 Moreover, the range of options here might enable agencies to be attentive to and respectful
27 of the different concerns of different communities, groups, and tribes. That is to say, a particular
28 community or tribe could choose one of the other options as most appropriate for its needs. This
29 brings up the crucial point that it is for the affected group to determine what will be
30 appropriate from its perspective.
31 Note that tribes' particular circumstances need to be taken into account. Tribes are
32 sovereign nations, and in their governmental capacities are in the position of deciding for
33 themselves what role fish consumption advisories should play in their efforts to protect the health
34 and safety of tribal people consuming or using fish, aquatic plants, and wildlife. Some tribes have
35 decided to issue fish advisories to protect their members from contamination - often contamination
36 that was permitted not by the tribes themselves but by state and federal agencies.280 Some tribes or
37 groups of tribes have opted not to issue fish consumption advisories but instead to develop "tribal
279Daisy Carter, Project AWAKE (date).
280See, e.g., James Ransom, Director, Haudenosuanee Environmental Task Force,
Proceedings of the American Fisheries Society: Contaminants in Fish 25 (1999) (describing fish
advisory issued by St. Regis Mohawk Health Services).
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1 consumption guidelines." 281 These guidelines tend to focus on the first and third functions of the
2 typical advisory, i.e., providing information and suggesting alternative ways to continue consuming
3 fish, rather than on the second function, i.e., discouraging fish consumption altogether. Tribal
4 consumption guidelines may also offer information that the typical federal- or state-issued
5 advisory doesn't about the health benefits to tribal members of eating a "Native diet" and the
6 health risks of turning to a "western diet."282 Nancy Costa, of Fond du Lac Environment Program,
7 explains:
8 "77te last thing we want to do is to discourage tribal members from eating fish - given
9 (among other things) the serious health effects we have seen for those who have gotten
10 away from a Native diet.'128¦
11 Similarly, Elaine Abraham, a Tlingit elder from Yakutat, notes efforts to enhance appreciation of
12 the cultural and nutritional value of Native foods, and cautions against focusing only on the
13 potential health risks without acknowledging the important, multi-faceted benefits:
14 Why are you starting with talk about concerns? I have enough trouble getting my
15 granddaughter to eat Native foodsZ284
16 Tribal consumption guidelines may employ the indigenous language and artwork of those
17 affected.285 It is important to note that several tribes have indicated that they would like to be able
18 to examine the question what role advisories or guidelines should play in their efforts to protect
19 the health and safety of tribal people consuming or using fish, aquatic plants, and wildlife, and,
20 potentially to fashion appropriate advisories or guidelines, but that they do not have sufficient
21 technical and/or financial resources to do so. These tribes have stated that additional resources
22 would, therefore, be crucial.
23 But tribes and tribal members are also affected by the environmental management decisions
24 of federal and state agencies. In the Pacific Northwest, for example, federal and state agencies
25 make numerous decisions that have permitted the contamination and depletion of the salmon and
26 other culturally significant, treaty-protected tribal resources. Here, federal and state policy
27 choices regarding the role of fish consumption advisories will have an impact on tribal members
28 exercising their treaty-guaranteed rights to fish in all "usual and accustomed" areas, many of which
28'Telephone Interview with Nancy Costa, Fond du Lac Environmental Program (July 31,
2001); Great Lakes Indian Fish & Wildlife Commission, Masinaigan Supplement: How to Enjoy
Fish Safely (Fall 2000).
282Telephone Interview with Nancy Costa, Fond du Lac Environmental Program (July 31,
2001).
283Id.
284Alaska Traditional Knowledge and Native Foods Database, Resource Guide for Mini-
Grants, available at www.iser.uaa.alaska.edu/proiects/contam/ResourceGuide/index.htm
285Telephone Interview with Nancy Costa, Fond du Lac Environmental Program (July 31,
2001); see also, Great Lakes Indian Fish & Wildlife Commission, Masinaigan Supplement: How
to Enjoy Safely (Fall 2000).
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1 are managed in whole or in part by federal and state agencies. To the extent that these agencies
2 look to risk avoidance rather than risk reduction measures, they may risk running afoul of treaty
3 obligations. Further, when these agencies issue fish consumption advisories that affect tribal
4 members and resources, they have sometimes failed to communicate their actions to tribes as they
5 should in accordance with tribes' status as sovereign nations and, for federal agencies, in
6 compliance with the Executive Order on maintaining the appropriate "government-to-government"
7 relationship with tribes. Issues particular to American Indian tribes and Alaskan Native villages
8 are discussed further in Chapter 4.
9 Finally, even where agencies, together with affected groups, opt to continue to issue
10 advisories, they need to redouble their efforts to prevent and reduce new sources of contamination
11 and to cleanup and restore environments and fisheries that are already contaminated. This caveat
12 was strongly emphasized by affected groups everywhere. Agency representatives acknowledge
13 this need. For example, Elizabeth Southerland, Standards and Applied Science Division, Office of
14 Science and Technology, Office of Water, opened this year's National Forum on Contaminants in
15 Fish by describing "how water quality-based programs at both the federal and state levels seek not
16 only to advise people on ways to minimize public health risks, but also to implement.management
17 measures to reduce the pollution problems so that measures like fish consumption advisories can
18 be rescinded. No one wants consumption advisories in place any longer than necessary."286 Yet,
19 advisories have been in effect in some places since the 1970s and EPA has created a separate
20 advisory program, which has been in place for about a decade. Furthermore, EPA lists among its
21 goals the issuance of "more advisories." [add cite to GPRA) EPA's commitment to ensuring that
22 advisories remain a temporary, second-best response to contamination and its effects on human
23 health needs to be backed up by a reprioritization of goals - prevention, reduction and cleanup
24 first and foremost - and by a redoubling of resources allocated to returning aquatic environments
25 and fisheries to a state where it is safe for people to fish.
286Proceedings of the National Forum on Contaminants in Fish, May 6 and 9, 20011-10
(2001).
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1 B. EFFECTIVENESS: BACKGROUND AND DEFINITION
2 1. Advisories' Components and Functions
3 In order to facilitate deliberation about this middle course, it seems useful to examine more
4 closely the components and functions of a typical fish consumption advisory. A typical advisoiy
5 might be thought of as comprised of three functional parts: (1) provide information about the
6 nature and extent of the contamination and its adverse health effects (e.g., which waters are
7 affected? which species? what are the contaminants of concern? what are the adverse health
8 effects from these contaminants? which subgroups are affected?); (2) encourage avoidance by one
9 or more of several means (e.g., refraining from eating fish altogether; reducing amount of fish
10 consumed); and, sometimes, (3) suggest alternative means to continue eating fish (e.g., altering
11 frequency of fish meals; altering preparation methods; fishing at other sites; fishing for and eating
12 other species). These functions sometimes overlap. In addition, there are functions that advisories
13 could usefully serve but that the typical advisory does not attempt to serve, e.g., capacity-building
14 or empowerment in the affected group.
15 Consider this excerpt for the current advisory for organic contamination in Louisiana:
16 Water body Causative pollutants Recommendations Approximate size affected
17 Devil's Swamp, Hexachlorobenzene, Avoid swimming, limit 7.0 square miles
18 Devil's Swamp Lake Hexachloro- 1,3-butadiene, fish consumption to
19 and Bayou Baton Rouge PCBs, Lead, Mercury, TWO MEALS PER MONTH.
20 (Parish: East Baton Rouge) Arsenic
21 Capitol Lake Priority organics (PCBs)No fish consumption. 0.12 mile
22 (Parish: East Baton Rouge)
23 This advisory provides information identifying the relevant contaminants, the affected
24 waterbodies, the approximate geographical extent of the contamination, and, given that the
25 recommendations apply to all "fish," the species covered. This information all serves the first
26 function. Do the recommendations "limit fish consumption to two meals per month" and "no fish
27 consumption" serve mainly to translate information about the nature and extent of the contamination
28 and its health effects into a form that is readily usable by those who would otherwise consume
29 these fish (an extension of the first function)? Or do they serve mainly to discourage fish
30 consumption (the second function) — with all of the pros and cons of doing so, as discussed above
31 in Part A.? This information may serve both the first and second functions (and may be perceived
32 to serve different functions by different communities, groups or tribes).
33 Note that this advisory's recommendations are not accompanied by suggestions of
34 alternative means that would allow the continued consumption of fish, albeit of different species or
35 according to different practices - the third function.
36 Finally, without more information about the process of fashioning and disseminating this
37 advisory, it is difficult to determine to what extent it serves the additional functions of capacity-
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1 building and empowerment from the perspective of the affected groups. To highlight but one
2 aspect of these additional functions: although this advisory identifies the "causative pollutants," it
3 does not go on to provide information about the sources of those pollutants (e.g., particular
4 industrial or other facilities) nor about upcoming risk assessment and risk management decisions
5 relevant to the pollutants and sources of concern.
6 2. Defining "Effectiveness"
7 There are likely to be differences in how one defines "effective"in this context -
8 differences among agencies and the various affected communities, groups and tribes. The first
9 function of advisories - to provide information - is the least controversial. There is likely
10 widespread agreement that an effective advisory is one that successfully communicates
11 information about the nature and extent of the contamination and about the relevant adverse health
12 effects. Advisories' first function is important to securing environmental justice. Although
13 questions remain about whether current advisories actually communicate this information in
14 understandable and appropriate ways (these will be taken up below, in Parts C and D), there
15 seems to be little question that advisories or something akin to advisories should serve this
16 function. As Ticiang Diangson, Supervising Planning and Development Specialist and
17 Environmental Justice Advocate, Seattle Public Utilities, explains:
18 Although prevention would be the ideal solution, the essential question after
19 contamination is, how can the harmed community be made "whole? " First and
20 foremost, the community needs to be truly informed about the range of harm/risk it has
21 been exposed to. . . .
n ^ nii-ntinn of course requires that information be conveyed in a language, via a medium, in
23 accordance with cultural considerations, and generally in a way that will enable it to reach and be
24 understood by those affected - these issues are the focus of Part D.
„ The second function of advisories - to discourage fish consumption - is more problematic.
nl r- n tK.LvP losses alone myriad dimensions that are occasioned by not fishing and consuming
2 price. To the e^n. «ha, agency judge advisories-
28 effective" according >o whether they elicit a decrease in fish consumption, agencies may
28 effectiveness ac g perspectives of at least some affected groups. A measure of
29 misfocus their ^ ^ ^ ^ figh consumption may fail to appreciate the
30 success that focu | that make reducing consumption inappropriate, and m so
31 traditional, cultural, or re ig ous reasoi* ^ ^ ^ ^ ^ ^ ^ ^
33 uSS^nd "beMeve" the relevant advisories, they may simply decline to "comply" with them.
34 The third function that advisories sometimes serve - to suggest alternative means (e.g.,
35 alternative fishing sites, alternative species, alternative preparation methods) to continue eating
36 fish - is also problematic. To the extent that agencies judge advisories' effectiveness according to
37 whether they convince people to switch to these alternative practices, agencies may again misfocus
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1 their efforts in a way that is an affront to the traditions, cultures, or religious beliefs of some of
2 those affected. Consider, for example, the observations of the Asian Pacific Environmental
3 Network:
4 The California Environmental Protection Agency (Cal EPA) health advisory
5 recommends that people eat only fillet portions offish, and bake, broil, steam or grill
6 fish on a rack so that juices from the fat drip off during cooking. . . . The health
7 advisory's recommendations for methods of cooking fish to lower one's risk of taking in
8 harmful chemicals clearly are at odds with traditional ways ofpreparing fish and other
9 seafoods.287
10 To the extent that agencies judge advisories' effectiveness according to whether they convince
11 people to switch to alternative practices that haven't been identified as appropriate by the affected
12 group, agencies may fail to appreciate the economic, geographic, social, and other practical
13 realities facing the affected group.
14 The fourth functions that advisories might serve - capacity-building and empowerment -
15 are important to securing environmental justice. It is crucial that those affected play central roles
16 in developing and disseminating the information that they deem appropriate to their needs. Such
17 efforts - led by those in the community, and supported by the EPA and other agencies - can
18 contribute to the larger goals of what the Laotian Organizing Project calls "participatory learning
19 and culturally-appropriate organizing."288 EPA and other agencies should view this as an
20 opportunity to work with communities on the ground as they work to empower themselves. As
21 Daisy Carter, Project AWAKE, observes:
22 The question is does the federal government (EPA) want to educate, inform, and
23 enlighten citizens to become active in making decisions for themselves? The answer is
24 no. Companies and the government would not be able to exploit these citizens who are
25 at risk if this was done. Citizens would ask questions and become involved in their own
26 destiny. However, without knowledge, communities who are at risk are prey. . ..
27 One of the major roles ofNEJAC is to find a way to empower local citizens who are in
28 impacted areas to set up lines of communication and data bases to acquire information
29 related to their needs.
30 And, as noted above, advisories enhance their effectiveness in this regard when they provide
31 information that enables affected communities and tribes to educated about and involved in risk
32 assessment and risk management decisions - that is, information that does not merely instruct "Do
33 Not Eat the Fish," bit that identifies the sources of contamination as well as relevant upcoming
34 decisions about preventing, reducing, and cleaning up contamination for these sources.
287[APEN at 35]
288Maria Kong and Pamela Chiang, Laotian Organizing Project & Asian Pacific
Environmental Network, Fighting Fire with Fire 5 (2001).
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1 Additionally, it seems that agencies' views of effectiveness are sometimes preoccupied by
2 concerns that may bear little on effectiveness for communities of color, low-income communities
3 and Tribes. For example, state and federal agencies have devoted considerable effort to achieving
4 "national consistency" in fish advisory programs. This effort was an "important objective" of the
5 1999 American Fisheries Society Forum on Contaminants in Fish (attended by 41 states, 7 federal
6 agencies, and others). Yet few dividends from such efforts accrue to communities of color, low-
7 income communities and Tribes: An affluent recreational fisher who lives in Ohio but vacations in
8 Michigan might be confused by the differing approaches to fish consumption advisories taken by
9 these two states, and so might benefit from consistency between them.289 Fishers from
10 environmental justice communities are less likely to be traveling about, fishing in multiple states -
11 this may be so for historic, geographical, cultural, economic, or legal reasons, or some
12 combination of these. These individuals are thus less likely to benefit from consistency among
13 states.
14 In sum, "effectiveness" from the perspective of communities of color, low-income
15 communities and tribes is likely to focus on the first and fourth functions, while for some affected
16 groups, it is likely to include the third function and second functions. However, definitions of
17 effectiveness and appropriateness will likely vary with varying local and cultural contexts. Thus,
18 it will be important to determine the perspective of the particular affected group on this question,
19 and to look to this perspective to guide every aspect of any advisory process, including evaluation
20 of its success.
21 C. EFFECTIVENESS: AVAILABLE EVIDENCE
22 Before discussing to what extent advisories are effective from the perspective of
23 communities of color, low-income communities, and Tribes, it is useful to canvass the available
24 evidence on responses to the fish consumption advisories that have been issued. As a general
25 matter, although advisories have been in effect in some places since the early 1970s, relatively
26 little is known about how they affect humans' behavior.290 Again, there is more evidence based on
27 anecdote or local knowledge than based on formal study. For example, the California Department
28 of Health Services notes that health advisories extending from Malibu to Newport Beach have
29 been in place for many years, but that:
30 [OJutreach and education about the advisories has been difficult to accomplish. Of
31 particular concern are the non-English speaking populations who may have difficulty
32 obtaining and understanding health information.m
2Sf[clte Maine study, MacDonald]. Note, however, that consistency might be relevant to
environmental justice communities where jurisdiction over a single estuary, river or other
waterway fished by these groups is shared by neighboring states.
290rdte- relatively little empirical data MacDonald]
29,California Department of Health, Environmental Health Investigations Branch, Palos
Verdes Shelf Outreach and Education Project on Fish Contamination Issues (fact sheet
available from California Department of Health Services).
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1 To the extent that empirical data have been gathered, they tend to provide two kinds of information
2 (1) whether people are aware of an advisory; and/or (2) whether people have altered their
3 consumption practices as a result. "Awareness," in turn, includes (a) whether people are aware
4 that an advisory exists, and (b) whether people are aware of an advisory's content and
5 recommendations. Sometimes these data are gathered alongside studies of fish consumption rates
6 and practices. These data-gathering efforts vary in the extent to which they gather socioeconomic
7 and other data relevant to environmental justice communities.
8 According to one survey designed to gauge the effectiveness of Great Lakes sport fish
9 consumption advisories, for example, "half the sport fish consumers were unaware of the fish
10 advisory for PCBs in the Great Lakes. The lowest awareness was among women, minority groups,
11 and persons with no high school degree."292 Another survey of fish consumption patterns and
12 advisory awareness among anglers on the Fox River in Wisconsin found that 95% of anglers who
13 ate fish were unaware of Wisconsin's fish advisory pamphlet and 50% of anglers who ate fish had
14 neither heard nor read about the health risks of eating Fox River fish. Asians (primarily Hmong
15 and Laotians) represented 70% of the anglers who had not heard about the health risks (although
16 they represented only 19% of the total anglers surveyed).293 The survey found further that most of
17 the anglers surveyed did not eat the fish they caught in the Fox River (83%)and that of these, 75%
18 said they did not eat the fish because they were concerned about the contaminants. Of those
19 anglers who ate the fish they caught, Asians made up the largest group, comprising 59% of fish
20 eaters. The survey's authors observed:
21 Eating fish forms a regular part of the diet and culture for the Asians (Hmong and
22 Laotians) living in the Green Bay area. White Bass, listed in the advisory as "Do Not
23 Eat, " appears to be their fish of choice. Although the number ofAsian anglers fishing
24 along the Fox River decreased after being informed by an interpreter that White Bass is
25 not safe to eat, there is concern that some of these anglers still may be eating White
26 Bass caught from other nearby contaminated waters. Many Asian anglers may not
27 understand the fish advisory because of the language barrier or may not believe the fish
28 advisory because no immediate physical ill effects have been observed from eating
29 contaminated fish.29*
30 A third survey, of Maine open-water anglers, examined the effect of a 1994 statewide fish
31 consumption advisory.295 63% of all anglers knew about the issuance of a mercury advisory
32 regarding covering fish from all lakes and ponds in Maine. All socioeconomic characteristics
33 (here: gender, age, fishing "effort") except education and income were the same for the groups
34 who were aware of the advisory and those who were not. Of the anglers who were aware of the
35 advisory, 22% of Maine residents and 23% of non-residents altered their fishing behavior,
36 indicating that but for the advisory they would have consumed more fish, fished more days, or
292[AFS atES-1 = Tilden study?]
293[Fox River survey]
294[Fox River]
295[MacDonald]
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1 fished more or different waters.296 A fourth survey, of fish consumption patterns and advisory
2 awareness among the Laotian communities in West Contra Costa County, California, found that
3 48.5% of survey respondents had heard of a health advisory about eating fish and shellfish from
4 the San Francisco Bay. Only a fraction of these (59.5%), however, could recall what the advisory
5 said and none could recall an advisory more specific than "pregnant women should not eat large
6 amounts of Bay fish," or "Bay fish are not safe to eat."297 The survey found a statistically
7 significant difference in awareness of the health advisory among ethnic groups within the larger
B Laotian community, with Khmu respondents being more likely to have heard of the advisory.298 Of
9 those who were aware of the health advisory, 60.3% said that it had influenced a change in their
10 fishing or fish consumption, habits. Of those whose habits were influenced, 62.7% said they no
11 longer eat fish from the Bay or eat less fish from the Bay and 29.9% said they no longer eat fish
12 from any source of eat less fish from all sources.299 An account of a fifth survey, by the
13 Environmental Health Investigations Branch of the California Department of Health, concludes:
14 Although the health advisory has been in place since 1994, outreach and education
15 about the advisory to different fishing populations has been difficult to accomplish. The
16 recently completed San Francisco Bay Seafood Consumption Study indicates that about
\ 7 two thirds ofpeople fishing have no awareness or limited understanding of the
18 advisory.m
19 With this and other available evidence to go on, it appears that people of color and people
20 with low incomes, limited English proficiency, or relatively little education are less likely to be
21 aware of fish consumption advisories; that some portion of the people of color who are aware of
22 advisories alters their consumption patterns as a result, but that a significant portion does not alter
23 their consumption patterns; that there are differences among various ethnic groups in these
24 respects; and that while contamination and advisories are not influencing all individuals to reduce
25 their fish consumption, they are influencing individuals at sufficient rates to contribute to
26 suppression effects (discussed in Chapter 1). Additionally, here as elsewhere, there is a need to
27 gather further information especially about those groups and subgroups about which less is known.
28 D. EFFECTIVENESS: RISK COMMUNICATION AND CONSUMPTION ADVISORIES
29 The discussion in this Part tracks the components of risk communication as identified in the
30 EPA's Guidance for Assessing Chemical Contaminant Data for Use in Fish Advisories, Volume
296[Id.]
297[APEN at 29]
298[APEN at 31J
299[APEN at 30] [add GLIFWC]
300Califomia Department of Health, Environmental Health Investigations Branch, San
Francisco Bay Fish Consumption Outreach and Education Project (fact sheet available from
California Department of Health Services).
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1 IV: Risk Communication,301 by the organizers of the 2001 National Risk Communication
2 Conference,302 and in the risk communication literature more generally. That is, after discussing
3 general risk communication issues in Section 1, issues of "audience identification" and "needs
4 assessment" are examined in Section 2; issues of message content are explored in Section 3; issues
5 of media choice are taken up in Section 4; issues of implementation are discussed in Section 5; and
6 issues of evaluation are addressed in Section 6. In addition, the matters of funding and capacity-
7 building are explored in Section 7.
8 1. Risk Communication - Overarching Issues
9 "Risk communication is a two-way street." This phrase is often repeated, but less often
10 honored in practice - with the result that communication may not actually occur. How can the risk
11 communication process be rehabilitated?
12 As a preliminary matter, EPA and other agencies should reexamination the terms
13 conventionally used to describe the various participants in the risk communication process.
14 Agencies often refer to the "public," the "community," or the "audience," on one hand, and agency
15 and other "experts" on the other.303 These terms set up a dichotomy that denies that members of
16 affected groups are themselves "experts," with knowledge crucial to successful risk
17 communication - including effective fish consumption advisories. A more appropriate
18 terminology would recognize affected groups' expertise, and not withhold from them the
19 appellation "expert." In a similar vein, agencies often refer to "target audiences," who are
20 affected groups that receive messages, and distinguish these from "risk communicators," who are
21 agencies that generate and disseminate messages.304 These terms indicate a one-way flow of
22 information (from agencies to affected groups) rather than a two-way process; and these terms may
23 also carry the connotation of agencies as being active in the process whereas affected groups are
24 passive. A more appropriate terminology might use words such as "partners" or (particularly in
25 the case of tribes) "co-managers." While these may seem small quibbles over a few words, these
26 words frame the relationship among the various participants in the risk communication process,
27 and may serve to undermine successful, two-way communication before the process even gets off
28 the ground.
29 Then, it is necessary to put into practice the concept of "partnership" or of "co-
30 management." Affected groups must be involved as partners or co-managers at every point in
301U.S. Environmental Protection Agency, Office of Water, Guidance for Assessing
Chemical Contaminant Data for Use in Fish Advisories, Volume IV: Risk Communication 3
(1995).
302National Risk Communication Conference, Proceedings Document 1-4 (2001).
303U.S. Environmental Protection Agency, Guidance for Assessing Chemical Contaminant
Data for Use in Fish Advisories, Volume IV: Risk Communication 3 and throughout (1995).
304Id; see also, National Risk Communication Conference, Proceedings Document, 1-5
(2001)(describing "Risk Communicator Presentation session, which described "getting to know
the audience from the risk communicator's point of view.")
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1 the risk communication process. This is the single most important lesson that EPA and other
2 agencies should take away from this discussion of effective fish consumption advisories. All of
3 the elements of effective fish consumption advisories will fall into place if agencies and affected
4 communities or tribes consider together the questions and answers. That is to say, communities
5 and tribes will articulate their needs; affected groups and agencies will each share their respective
6 concerns; affected groups will help ensure that the content and medium of advisories are
7 appropriate to their membership (e.g., in terms of language, literacy, culture, practice); affected
8 groups will be able to contribute creative implementation strategies appropriate to their
9 membership; and affected groups will have knowledge indispensable to the evaluation process.
10 As in the case of research in general (discussed in Chapter 1), communities and tribes have
11 expertise relevant to risk communication that is simply not going to be able to be replicated by
12 non-member researchers. This is supported by the large body of literature on "participatory
13 research." Members of these affected groups ought to be recognized as the experts they are, and
14 their work ought to be supported financially (whether though dispensing grants to community
15 groups, tribes, and partnerships formed by affected groups, through hiring affected group members
16 as expert consultants, or through other means). EPA and other agencies should recognize the
17 difficulty of achieving full involvement - and thus actual risk communication - in the absence of
18 financial support. This issue of funding is taken up at greater length below.
19 EPA and other agencies should work to reconceptualize risk communication approaches
20 from large-scale, abstracted, one-time efforts to develop and disseminate various communication
21 "products" (e.g, developing and posting fish consumption advisory signs) to local, contextualized,
22 ongoing efforts to establish and maintain relationships with a particular affected community or
23 tribe.305 While this reconceptualization may be necessitated to a greater degree for some groups
24 and contexts than others, the existence of an ongoing relationship will enhance communication
25 regardless. And, while building and maintaining a relationship will likely require more time and
26 resources than agencies have typically been able to devote to risk communication,306 the dividends
27 would seem to be worth it. For example, representatives of agencies and affected groups alike
28 have suggested that a lack of familiarity or trust has been a barrier to effective fish consumption
29 advisories in the past (resulting, e.g., in a reluctance by affected group members to participate in
30 baseline consumption rate studies or other information-gathering efforts; or in a scepticism on the
31 part of affected groups regarding the intent behind or the accuracy of agencies' messages).307 To
305See, e.g., Telephone Interview, Diana Lee, Research Scientist, California Department of
Health Services (October 26, 2001)
306See, e.g., Ed Horn, Bureau of Toxic Substance Assessment, New York State Department
of Health, National Risk Communication Conference 11-25 (2001)("The most effective ways of
communicating with hard-to-reach populations are extremely labor intensive. They are going to
require someone in the target community who has the respect of the community and an
understanding of the community. It requires constant work; it's not just a matter of sending a
brochure out. We can send 20,000 brochures out fairly easily and inexpensively, but if we have to
travel to meet with the target population in small groups, then this requires additional staff.").
307See, e.g., Ed Horn, Bureau of Toxic Substance Assessment, New York State Department
of Health, National Risk Communication Conference 11-23-25 (2001); Telephone Interview, Chee
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1 the extent this is the case, the existence of an ongoing, regular relationship would go far toward
2 dismantling this barrier.308 Again, this relationship cannot happen without the involvement of
3 communities and tribes; to facilitate this involvement, financial support will often by critical.
4 In order to realize actual communication - that is, a process of respectful information
5 exchange - agencies, in particular, need to work to enhance their skills as active, flexible, and
6 open listeners. Relevant information may come in unexpected or non-conventional forms - in
7 anecdote rather than empirical study, in a conversation rather than in an article in a peer-reviewed
8 journal, in a narrative (such as the narratives gathered in this Report) rather than in a table or chart.
9 In some cases, these may indeed be the sources of the most valuable information.309 Often, this
10 approach will not be easy. Not only will it take time - time to sit down and visit, time to ask
11 further questions in order to understand - but also real work.310 There may be language barriers to
12 hurdle, differences in communication styles to decipher and address, large cultural differences to
13 try and bridge. "Public comment periods" or "breakout sessions" may not provide useful venues
14 for conversation from everybody's perspective. Sometimes, where the participants in a
15 conversation come from radically different cultures or start with radically incompatible
16 worldviews, there may never be complete understanding. But even if there are glimpses of
17 understanding, the process itself is important (e.g., to building good relationships). Moreover, if
18 the conversations are ongoing, understanding is likely to increase over tiige. For example, Josee
19 Cung, Program Manager, Southeast Asian Program, Minnesota Department of Natural Resources,
20 describes a collaborative effort with the Minnesota Department of Health and community leaders
21 to design and implement culturally appropriate education regarding consumption of contaminated
22 fish, which includes "education delivery" methods such as:
23 • [Sessions in] anglers' homes, as a version of the storytelling tradition and often
24 involving elders
Choy, Portland Bureau of Environmental Services (October 26, 2001); Audrey Chiang, Asian
Pacific Environmental Network, A Seafood Consumption Survey of the Laotian Community in
West Contra Costa County, California 36 (1998).
308See, e.g., Telephone Interview, Chee Choy, Portland Bureau of Environmental Services
(October 26, 2001); Telephone Interview, Diana Lee, Research Scientist, California Department
of Health Services (October 26, 2001).
309See, e.g., Katharine J. Hornbarger, et al., Targeted Audience Analysis:
Recommendations for Effectively Communicating Toxic Fish Consumption Advisories to
Anglers on the Detroit River 14-18 (June, 1994)(discussing considerable benefits of
"conversational interviewing" techniques).
310See, e.g., Kerry Kirk Pflugh, Bureau Chief, Raritan Watershed, Division of Watershed
Management, New Jersey Department of Environmental Protection, Community Outreach to At-
Risk Urban Anglers: A Case Study in Risk Communication of Fish Consumption Advisories, II-
36 in National Risk Communication Conference, Proceedings Document (2001) (noting, among the
"lessons learned:" "Be flexible, take time to visit, listen, and learn.").
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1
2
• Day field trips that include bus travel to fishing sites, the education component
followed by a hands-on session of actual fishing andfish cutting and preparation
3 • Several sessions have ended with a communal meal of the caught fish prepared jointly
4 by instructors and students
5 •All activities are planned and take place under community sponsorship. Heads of
6 community organizations promote and publicize the educational sessions and work with
7 [the Department of Natural Resources] to recruit and enroll participants311
8 Agencies not only need to hear information that comes to them in unexpected forms, but
9 also need to be open to information that provides unexpected substance. Agencies should work to
10 accept information they don't (yet) know they need - e.g., the answer to the question that the
11 member of an affected group wishes the agency had asked (because this is what is most important
12 from her perspective), the community- or tribally- developed research agenda that frames the
13 issues differently than the agency would. Agencies should work to take in (and redirect if
14 necessary) information that appears to pertain to a related but different program or agency. Thus,
15 in the context of fish consumption advisories, those in environmental agencies' fish advisory
16 programs should work together with those in their water quality standards and clean up programs
17 to ensure that the comments they hear - e.g., "clean up existing contamination so that advisories
18 can be lifted" - get registered with those in relevant programs as well as with those setting
19 priorities among programs and efforts. Similarly, those in health agencies should work together
20 with those in environmental agencies to ensure that such comments get passed along and that there
21 is a connection between relevant staff working to address the issues.312 While it is never easy to
22 hear information that may require one to reevaluate current priorities, methods, or approaches, this
23 reevaluation may be the key to efforts that are defensible as a matter of science and social science,
24 acceptable from the perspective of communities and tribes, and, ultimately, effective as a mater of
25 risk communication.
26 Involvement by affected groups is necessary as well because they, ultimately, are the ones
27 who will bear the brunt of harms from contamination not addressed and communication not
28 achieved. They, among all "stakeholders," are the ones who face the most immediate and often
29 irreversible losses - it is not just a matter of being out a few dollars on the profit side of the ledger
''W Nrcung, ftogram Manager, Southeast Asian Program, Minnesota Department of
(2001) rC6S' NatIonal Risk Communication Conference, Proceedings Document, 1^52 53
3'^Richard Greene, Delaware Department of Natural Resources and Environmental
Control, for example, notes that Delaware is undertaking efforts to link fish a
quality standards under the CWA's TMDLprogram, Jcom^nX SteJi™*"
standards] program participants need to acquaint themselves with their fish advisorv nr,,« L
counterparts and start a senous dtalogue. They also need to establish common goab- iZTL
water qu
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1 but a matter of their health and the health of their children, a matter of their culture, traditions, and
2 deeply-held beliefs. Given what is at stake for affected communities and tribes, they should be
3 among the first to learn about contamination and its possible effects for them, and they should be
4 among the first involved in determining how to respond. Richard Brown, Coordinator, Black
5 United Front explains, in the context of the low-income and largely African American community
6 in Northeast Portland, Oregon that fishes in, swims in, and is affected by the contaminated
7 Columbia Slough:
8 The things that happen to people are devastating. You know you don't recover from a
9 lot of these things because we don't find out about them until they've really taken its
10 toll. Those are concerns I've always had about the way people in low-income
11 communities have been treated as fare as environmental issues go. "3I3
12 Ticiang Diangson, Supervising Planning and Development Specialist and Environmental Justice
13 Advocate, Seattle Public Utilities, observes:
14 [I]t takes inordinate effort on the part of harmed communities to gain acknowledgment
15 of the impact of the contamination and to get real-life implementation to solutions to the
16 impact.
17 To the extent that research is conducted by and for communities and tribes, it can serve the
18 additional important function of capacity building. This goal is important and an issue of
19 environmental justice in and of itself, for both communities and tribes. And, to the extent that
20 communities and tribes see that their concerns are shaping the research to be conducted, that the
21 information gathered will be relevant from their perspective, and that their members stand to
22 enhance their skills, knowledge and capacity in the process - as opposed to merely providing
23 information that enables others to enhance their skills, knowledge and capacity - participation and
24 trust are likely to be increased, and accuracy thereby enhanced.314
25 As noted in Chapter 1 in the context of research in general, funding is crucial to the ability
26 of affected communities and tribes to be involved in research, including research about risk
27 communication. This point is elaborated below, in Section 7.
28 Finally, it is important to note that there are considerable resources on which EPA and
29 other agencies interested in improving risk communication with affected groups can draw -
313Videotape: The Water in Our Backyard.
3l4See, e.g., id. at 37 (noting that the survey planning team made connections with the
Laotian Organizing Project's ongoing capacity building efforts regarding community health and
safety, which motivated many community members to participate in the survey and explaining:
"The planning team was originally hesitate about the perception commonly held by community
members of outsiders taking information from the community without community people seeing the
benefits of research. Linking the survey to a community based organization helped counter this
perception.").
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1 resources that have been developed by or with the involvement of communities of color, low-
2 income communities, and tribes. Rather than attempt to repeat their work here, this Report refers
3 to several of these sources: the National Environmental Justice Advisory Council Public
4 Participation Plan; the National Environmental Justice Advisory Council Indigenous Peoples'
5 Subcommittee, Recommendation on Environmental Health and Research Needs Within Indian
6 Country and Alaska Native Villages; the Outreach Strategy developed as a part of EPA's Asian
7 American and Pacific Islander Initiative; and the (Draft) Strategy on Limited English Proficiency
8 These are included as Appendices to this Draft Report.
9 2. Different Communities and Tribes, Differing Concerns and Needs
10 The term "affected groups" here includes a large and diverse array of groups, each of
11 which consumes and uses fish, aquatic plants, and wildlife in differing cultural, traditional,
12 religious, historical, economic, and legal contexts. It will be crucial for any risk communication
13 effort to recognize, therefore, the diverse contexts, interests, and needs that characterize affected
14 groups, including but not limited to groups with limited English proficiency; groups with limited or
15 no literacy; low-income communities; immigrant and refugee communities; African-American
16 communities, various Asian and Pacific Islander communities and subcommunities (e.g., Mien
17 Lao, Khmu, and Thaidum communities within the Laotian community in West Contra Costa, CA);
18 various Hispanic communities and subcommunities (e.g., Caribbean-American communities in the
19 Greenpoint/Williamsburg area of Brooklyn, NY); various Native Americans, Native Hawai'ians
20 and Alaskan Natives (including members of tribes and villages, members of non-federally
21 recognized tribes, and urban Native people). "Affected groups" also refers to subgroups within
22 these larger groups, including but not limited to nursing infants; children; pregnant women and
23 women of childbearing age; elders; traditionalists versus modernists in terms of practices that
24 implicate fish consumption; and subgroups defined by geographical region.
25 EPA and other agencies have increasingly recognized this diversity and its relevance to
26 fish consumption advisories and other risk communication efforts. For example, EPA, in
27 particular, has recognized the diversity of Asian and Pacific Islander communities, and provides
28 an "Asian American and Pacific Islander Primer" on its Asian American and Pacific Islander
29 Initiative website.315 This primer identifies Asian Americans as those with origins in one or more
30 of 28 Asian nations, and Pacific Islanders as those with origins in one or more of 19 island
31 nations.316 EPA has undertaken a number of efforts as part of this initiative that attend to the
32 diversity of this group.317 Important among these efforts is an extensive Outreach Strategy.318
33 Nonetheless, EPA and other agencies need to do more to attend to the myriad groups and
3I5U.S. Environmental Protection Agency, Asian American and Pacific Islander Primer
available at www.epa.gov/aapi/primer.htm.
3l6Id.
317These efforts place EPA at the forefront of federal agencies in implementing Executive
Orderl3216 (and its predecessor) on Increasing Opportunity and Improving Quality of Life of
Asian Americans and Pacific Islanders.
3lgAvai1able at www.epa.gov/aapi/outreach.htm.
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1 subgroups affected by their work. Agencies' efforts, moreover, have been uneven, such that there
2 are some groups and subgroups about which EPA and its counterparts still know relatively little.
3 It should be noted, too, that the composition of the affected groups may be changing rapidly in
4 some areas, such as cities that are ports of entry for immigrant and refugee groups or rural and
5 other areas where particular groups have settled.319 Thus ongoing and constant efforts are
6 necessary to learn about and attend to the changing contours of affected groups and subgroups.
7 These efforts are most usefully undertaken together with the affected groups themselves, who will
8 often be able to alert non-members to nuances about which they would otherwise not have
9 knowledge. Even laudable agency efforts to identify and address the needs of a non-majority
10 group may be partial to the extent that they fail to appreciate the existence of other affected groups
11 or subgroups. The Laotian Organizing Project points, for example, to a state fish consumption
12 warning sign at a popular fishing site in Richmond, CA written in English, Spanish, and
13 Vietnamese and notes:
14 The Vietnamese language translation is useless to a predominantly Laotian
15 population?20
16 These different groups are likely to differ with respect to their concerns and needs relevant
17 to risk communication. This is a crucial point. The risk communication literature, including
18 Volume 4 of EPA's Guidance for Assessing Chemical Contaminant Data for Use in Fish
19 Advisories, describes "needs assessment" or determining "what the audiences want and need to
20 know" as an initial step in the risk communication process.321 The answer to this question is likely
21 to differ in important respects from group to group, and even from subgroup to subgroup. The best
22 — if not only - way to determine the concerns and needs of a particular group is to secure the
23 involvement of group members in the process. This involvement is crucial at every point in the
24 risk communication process. It is especially important at the point of needs identification, if the
25 resulting advisories and other communication efforts are to be relevant to the group - and if they
26 are to be perceived by the group as being relevant.
27 The importance of affected group involvement at the point of identifying needs and defining a
28 research agenda has been echoed by numerous communities and tribes. For example, consider the
29 account of recent efforts by the Alaska Native Science Commission to this end as part of the
30 Traditional Knowledge and Contaminants Project, by Pat Cochran, Executive Director:
31 The project objectives are, first of all, to use our own native ways of knowing, learning,
32 and teaching to gather information. We held our own talking circles in our own
3 "See, e.g., Kerry Kirk Pflugh, Bureau Chief, Raritan Watershed, Division of Watershed
Management, New Jersey Department of Environmental Protection, Community Outreach to At-
Risk Urban Anglers: A Case Study in Risk Communication of Fish Consumption Advisories, II-
32 in National Risk Communication Conference, Proceedings Document (2001).
320Laotian Organizing Project, Fighting Fire with Fire 5 (2001).
321See, e.g., National Risk Communication Conference, Proceedings Document 14 (2001);
U.S. Environmental Protection Agency, Guidance for Assessing Chemical Contaminant Data for
Use in Fish Advisories, Volume IV: Risk Communication 3 (1995).
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1 communities. We did not send out survey forms. We didn't have people that had focus
2 groups. We went and sat with our people for days at a time - laughing, singing,
3 dancing, and eating a lot of food - because this is a part of what we all do. So, we could
4 really gain the knowledge from our communities. Our communities, we understand, are
5 the first observers of what happens on our land, to the people, in the air, in the water,
6 and int the environment around us. Long before a researcher or scientist or anyone else
7 enters the community, our people are the ones who perceive what happens every day,
8 and also generationally over centuries and beyond from information that has come
9 down from their people. We [are] providing grant opportunities to our communities and
10 we are looking at developing a common research agenda that answers concerns and
11 questions about our communities and not just somebody's Ph.D. dissertation topic. And
12 we are also developing a database. We held regional meetings all across the state of
13 Alaska322
14 3. Message Content
15 What constitutes appropriate and relevant message content is likely to differ from group to
16 group. General, "one-size-fits-all" recommendations, therefore, are likely to be unuseful ~Rath
17 the important point is that content that is appropriate and relevant to a particular affected ercmn
18 cannot be determined apart from the involvement of members of that group In addition to lo 1
19 knowledge, group members will often have extensive expertise in message development and
20 community outreach for their particular community or tribe. Their involvement in every asnr.rt f
21 content development and advisoiy design is indispensable. peer or
22 Several considerations are relevant. Advisory content should be culturally appropriate
23 from the perspective of the particular affected group or subgroup. As documented in Part A
24 above, in may be culturally inappropriate to include various recommendations - to eliminate or
25 reduce fish consumption, or to alter practices including procurement offish, species and parts
26 consumed, and preparation methods. Here, there are likely to be vast differences among affect w
27 groups as to what is and is not acceptable. Advisory content thus needs to be developed in a
28 manner that is respectful of these differences. Involvement by members of the particular affr h
29 group is, again, crucial. c
30 Advisory content should address the needs identified by the particular affected communis
31 This should include the needs of any subgroups within the larger group, such as nursing infantT
32 children; pregnant women and women of childbearing age; elders; traditionalists versus
33 modernists in terms of practices that implicate fish consumption; and subgroups defined by
34 geographical region. Other needs, too, may emerge as important to a particular group For
35 example, according to the summary of the important themes that emerged from the breakout sroi
36 designated "Cultural Enclaves - Native American and Other Cultural and Traditional
37 Communities:"
'"Patricia Cochran, Executive Director, Alaska Native Science Foundation, National Rirtr
Communication Conference, Proceedings Document, 11-20 (2001).
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1 Fish advisories should contain information on the nature and sources of the
2 contamination so that the affected community is empowered to take action to reduce
3 pollution source and clean up existing contaminated sites or obtain financial
4 compensation for the loss of the natural resources.322
5 To address the needs of some affected groups, advisories should emphasize the health and cultural
6 benefits of eating fish or of participating in particular practices.
7 Advisories should be provided in the language(s) of the affected communities, groups, or
8 peoples. Many members of affected groups are limited-English proficient; some, especially recent
9 immigrants and refugees, may have no English. For example, EPA reports that "[a]n estimated 40-
10 50% of [Asian American and Pacific Islanders] are limited-English proficient."324 Many agencies
11 have recently worked to provide language-appropriate warnings (perhaps as a result of studies
12 showing a particular group's lack of awareness of advisories, as was the case on the Lower Fox
13 River, where Wisconsin recently posted signs in English and Hmong), and there has been
14 considerable progress in this regard. Even where agencies have made progress, however, they
15 may have yet to identify and address the needs of all the relevant communities for language-
16 appropriate advisories. Recall the Laotian Organizing Project's dismay when a state fish
17 consumption warning sign at a popular fishing site in Richmond, CA was written in English,
18 Spanish, and Vietnamese: "The Vietnamese language translation is useless to a predominantly
19 Laotian population."125
20 Advisories should be designed to account for limited literacy or illiteracy in the affected
21 group. Some groups come from a tradition of orality. They may not have a written language or
22 may not be literate in their language to the extent it has been written down. Or they may be
23 resistant to reducing communication to writing, preferring instead to give and receive information
24 orally. Some groups have had less formal education, such that some of their members may be
25 illiterate. In all of these cases, advisories should not rely on written words, but on devices such as
26 spoken words, demonstration, or graphics.
27 Advisories should be accessible. They should use words that are understandable to the
28 particular affected group; they should use short, manageable sentences. They should employ visual
29 aids such as charts, pictures, models, posters, and hands-on demonstrations. Although, in order to
30 be sufficiently informative, advisories will need to convey complex information (e.g., about risk,
31 contaminants' health effects, sources of contamination), there are more and less accessible ways to
32 do this. Daisy Carter, Project AWAKE, Coatopa, Alabama, explains:
33 We believe enough books, pamphlets, policies, and manuals have been written. We have
34 become a paper-filled society to the limit. But the question is, who is reading this
35 material? Most people and especially the impacted communities do not take the time to
323National Risk Communication Conference, Proceedings Document 1-11 (2001).
324U.S. Environmental Protection Agency, Asian American and Pacific Islander Primer
available at www.epa.gov/aapi/nrimer.htm.
325Laotian Organizing Project, Fighting Fire with Fire 5 (2001).
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1 read these large manuals; yet this is the method EPA and states use to get their
2 information out. This is not the best approach to reach these communities. When asked
3 what is being done, the reply is, "well, we have this book. " What is the problem?
4 Document upon document, volume upon volume is available, waiting to be read and
5 complied with. "
6 Finally, advisories should be designed to facilitate the two-way exchange that is the
7 hallmark of good risk communication. Thus, they might include contact information for the
8 appropriate agencies, tribal government bodies and/or community groups, so that there is a place
9 to lodge comments or ask questions. Posted signs, for example, often leave those affected with
10 unanswered questions326. Advisories might provide instructions for obtaining further information,
11 including information that would enable those affected to participate not only in risk
12 communication efforts but also in risk assessment and risk management decisions.
13 4. Medium
14 What constitutes an effective and appropriate medium for conveying the message will vary
15 from group to group. Sometimes, it will be most effective to try to reach people via multiple
16 media routes. Again, general "one-size-fits-all" recommendations are likely to be unuseful.
17 Again, members of the affected group will possess valuable knowledge about the best medium
18 from their perspective, and should therefore be involved in choices among media.
19 Several observations can be made. The medium chosen should take into account the habits
20 and customs of the affected groups; it should take into account the access enjoyed by the affected
21 groups. There has been some recent work identifying different media sources as more or less
22 likely to be used or preferred by various affected groups.327 For example, of those in the Laotian
23 communities in West Contra Costa County who had heard of the health warning in place for San
24 Francisco Bay fish, nearly 60% had heard of it through television news, 37.8% though word of
25 mouth from friends and family, 18.9% via signs at various piers, and 14.4% through the
26 newspaper; others had heard of the advisory though church, a local community-based organization,
27 school, the doctor's office, and the welfare office.328 Many of those in affected communities of
28 color, low-income communities, and tribes do not have access to the Internet as a means of
326See, e.g., John M. Cahill, Director, Bureau of Community Relations, New York State
Department of Health, National Risk Communication Conference, Proceedings Document 11-43-44
(2001).
327See, e.g., John M. Cahill, Director, Bureau of Community Relations, New York State
Department of Health, National Risk Communication Conference, Proceedings Document 11-45-49
(2001) (presenting an extensive assessment of the advantages and disadvantages of twelve
different categories of media/formats for various audiences, and cataloging available community
channels and potential partners).
328[APEN at 30]
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1 apprising themselves of current advisories posted on agencies' websites. According to John
2 Cahill, Director, Bureau of Community Relations, New York State Department of Health:
3 Last year, 56 percent of Americans used the Internet. However, only 23 percent of
4 African Americans had Internet access, compared to 46 percent of White households. A
5 majority, 82 percent, of Americans earning $75,000 or more had access, compared to
6 only 38 percent of those earning less than $30,000™
7 Some of those affected may not have a telephone, and so cannot readily call numbers listed on
8 signs or in pamphlets. To the extent information is distributed by agencies or others who give out
9 fishing licenses, Native Americans and others who are not required to obtain a license to fish will
10 not receive information distributed in this way; neither will those who for any number of reasons
11 simply haven't obtained a license. John Cahill points out, for example, that a recent survey of
12 anglers along New York's Hudson River revealed that only 57.5% of them had licenses; and a
13 series of focus groups among Latino anglers in Buffalo found that only about half of them were
14 licensed.330
15 The medium chosen should make advisory information easy to locate and access. Some
16 current advisories may require several steps to locate and access (e.g., the need to consult a
17 fishery regulations book, as in Maine; the need to write to the Department of Natural Resources or
18 to go to local offices or state parks (or on-line), as in Wisconsin; the need to sort through fairly
19 complex information, as in Michigan), which steps impose greater hurdles for those whose
20 educational background or financial resources do not afford them the tools to navigate
21 governmental bureaucracies.
22 Here again, agencies are making strides although there is work yet to do, and agencies need
23 to ask those affected what would work for them.
24 5. Implementation
25 Members of affected communities and tribes will often be particularly well-positioned to
26 take the lead in implementing the advisory and outreach strategy that has been developed by and
27 for their group. Members of affected groups will be active in or aware of community
28 organizations, churches and other religious organizations, clubs, schools, and other entities that
29 could play a role in getting the message out and facilitating risk communication. Members of
30 affected groups will likely know precisely which community festivals, ceremonies, or events are
31 likely to be well-attended and appropriate venues for outreach. For example, Detroiters Working
32 for Environmental Justice not only prepared a pamphlet, together with the Lake Erie Binational
33 Public Forum, directed at those eating fish from Lake Erie, the Detroit River, and the Rouge River,
329John M. Cahill, Director, Bureau of Community Relations, New York State Department
of Health, National Risk Communication Conference, Proceedings Document 11-43 (2001).
330John M. Cahill, Director, Bureau of Community Relations, New York State Department
of Health, National Risk Communication Conference, Proceedings Document 11-42-43 (2001).
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1 but they also work to distribute the pamphlet at local health fairs.331 Members of affected groups
2 will often be able to put together creative ideas for outreach - a product of their knowledge of
3 norms in the community or tribe; their on-the-ground connections; their shared experience -
4 especially, shared practices exposing them to environmental risks; and their involvement in prior
5 organizing efforts.
6 Implementation by members of affected groups may also facilitate environmental justice
7 along multiple dimensions. In addition to capacity-building, discussed below, looking to affected
8 groups for implementation may enable them to dovetail efforts regarding fish consumption with
9 other health and environmental outreach efforts (e.g., regarding possible contaminants in breast
10 milk, regarding the value of Native foods in countering diabetes, or regarding nutrition in general)
11 and/or other community-building efforts - efforts that may already be well-established, which
12 would in turn enhance the likelihood that data about fish consumption practices would be complete
13 and accurate, and that advisories regarding these practices would be received. For example, the
14 Asian Pacific Organizing Network explains, in the context of its survey of Laotian communities in
15 West Contra Country, California:
16
17
18
19
20
21
22
23 Organizationally, APEN is committed to working with youth, in order to foster new
24 leadership within the community. Therefore, 'survey teams' of youth and established
25 community leaders carried out the survey together
26 Agencies, together with affected groups, should consider shifting current approaches to
27 outreach so that it is primarily grassroots, community-based organizations and groups that do the
28 outreach in their respective communities. Where this is appropriate, these groups should be
29 funded to take on this responsibility. For example, they could be hired as contractors to the
30 relevant agency. Or, they could receive grants to conduct this work. As Marianne Yamaguchi,
31 Director, Santa Monica Bay Restoration Project, notes, some agencies and others in Southern
32 California are already taking this approach, with benefits not only in terms of effective and
Active participation by community leaders who are recognized and respected in the
community brings trust and credibility to a survey that could otherwise be seen as
intrusive. In this survey project, community leaders made the initial contact with people
in the community, explained the goals of the survey to participants, and answered any
questions and allayed any fears that people may have. Such collaborative work helped
establish important relationships between community leaders and APEN's Laotian
Organizing Project (LOP) as a young, emerging organization within the community.
"'Telephone Interview with Michelle Shewmaker, Detroiters for Environmental Justice
(October 26, 2001); Detroiters Working for Environmental Justice and Lake Erie Binational
Public Forum, A Family's Guide to Eating Fish from the Detroit Area (pamphlet).
332Audrey Chiang, Asian Pacific Environmental Network, A Seafood Consumption Survey
of the Laotian Community in West Contra Costa County, California 8 (1998).
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1 appropriate implementation but also in terms of capacity building.333 Funding and capacity-
2 building are discussed further below, in Section 7.
3 6. Evaluation
4 Affected group involvement is critical to evaluating the success of risk communication
5 efforts in general and consumption advisory programs in particular. This involvement is important
6 at every point of evaluation, but is particularly necessary to evaluation in the early stages of risk
7 communication (what Volume IV and the risk communication literature term "formative
8 evaluation") and at the point of assessing whether the objectives of risk communication efforts
9 have been met (what Volume IVand the risk communication literature term "summative
10 evaluation"). Given the potential for differences in the definitions of "effectiveness" adopted by
11 agencies and various affected groups - and the likelihood that differences in objectives would
12 flow therefrom - it will be important for those affected to be able to ensure that their perspectives
13 are being incorporated into any evaluations.
14 Affected groups will be able to work together with agencies to determine the extent to
15 which it is useful to focus evaluation on particular "products" (e.g., number of radio spots, number
16 of pamphlets distributed, numbers of health fairs visited), on outcomes indicating awareness (e.g.,
17 awareness of advisories' content and recommendations), on behavioral outcomes (e.g., extent to
18 which consumption levels are reduced so that they fall within recommendations, extent to which
19 species consumed changes from less safe to safer species, extent to which preparation methods
20 change so that exposure to contaminants is avoided), or on more broadly crafted outcomes (e.g.,
21 increased knowledge within effective group of contamination, its sources, and related regulatory
22 efforts, increased involvement by community members in decision making regarding risk from
23 contaminated aquatic ecosystems, improved trust and enhanced relationships among agencies and
24 affected communities and tribes, improved health in the affected group).
25 Agencies should ensure that "evaluation" includes assessment not only of the particular
26 advisory program or outreach effort, but of its risk communication efforts more generally.
27 Affected groups can usefully aid agencies in evaluating their risk communication efforts, and in
28 evaluating connections between risk communication and risk assessment and management. For
29 example, related to the issue of two-way communication, consider the question; How should
30 agencies register the responses of those affected?334 For example, if an affected group receives
31 and understands the information contained in an advisory but nonetheless rejects its advice that fish
32 consumption be reduced, how should this response be incorporated into agencies' policy choices
33 regarding the role of fish consumption advisories? How, in the first place, should agencies ensure
34 that they are correctly interpreting the responses of affected groups - have the practices remained
35 the same because those affected do not understand the advisories; because they understand but do
36 not believe or agree with the advisories' accounts of the contamination or its health effects;
333E-mail Communication, Marianne Yamaguchi, Director, Santa Monica Bay Restoration
Project (October 23, 2001).
334[Pam Subat discussion; my forthcoming paper]
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1 because they understand and in some sense agree with the advisories' accounts of the
2 contamination or its health effects, but nonetheless cannot for economic and/or for traditional
3 cultural, or religious reasons change their practices? The need for "interpreters" from within the
4 relevant community, group or tribe seems clear. And to the extent that those who decline to
5 "comply" with advisories should be taken to be lodging a kind of protest - that is, to the extent that
6 noncompliance itself should be taken as an expressive act, indicating resistence to agencies'
7 reliance on risk avoidance rather than risk reduction335 - how will this view be taken into account
8 when agencies decide how much to rely on advisories versus how much to focus on cleanup and
9 prevention?
10 Finally, agencies should ensure that "evaluation" includes vigilant and careful re-
11 assessment of the health of the resources that are the subject of advisory or closure, so that they are
12 opened again for fishing and advisories are lifted as soon as is appropriate. This may be a
13 particular issue in the case of shell fisheries closed due to the presence of acute contaminants
14 whose short-term life span means that re-certification may be appropriate in fairly short order336
15 This is especially important given communities' and tribes' reliance on these resources for
16 economic, subsistence, and other reasons. Of course, agencies will need to be sure that fish are
17 safe for consumption before doing so, and this implicates current limitations in agencies' ability to
18 measure the presence of contaminants. For example, current methods are unable to detect below
19 certain levels for some persistent and bioaccumulative contaminants (e.g., dioxins) - yet even very
20 small quantities may have an effect on human and environmental health. Thus, even if it can be
21 said that contaminant levels in a particular river stretch have been reduced to non-detectable
22 levels, this may not mean that they have been reduced to safe levels - only that current
23 measurement methods are at their limit. To remedy this gap in agencies' ability to determine the
24 safety of fish for human consumption, agencies need to conduct research to improve current
25 measurement abilities. In the meantime, agencies need to inform affected groups of the detection
26 limit issue (and other relevant issues) if an agency chooses to alter or lift advisories under such
27 circumstances.
28 7. Funding and Capacity-Building
29 As noted above, capacity-building is in and of itself an environmental justice issue, for
30 both communities and tribes. Involvement by those affected at each point in the risk
31 communication process would go far toward enabling those affected to shape the process so that it
32 is not only relevant and appropriate, but also useful and empowering from the perspective of the
33 community or tribe. In addition to the aspects of capacity-building discussed above, affected
34 groups will be able to identify other, current needs in this regard.
35 Among the issues that have been identified is the need to ensure that the fruits of its work
36 are returned to the affected group. The information gathered ~ e.g., as part of baseline assessment
37 of fish consumption rates and practices, as part of evaluation processes, or otherwise - needs to
335Catherine A. O'Neill, Risk Avoidance and Environmental Justice (forthcoming)
336Telephone Interview, Jay Zischke, Marine Fish Program Manager, Suquamish Tribe
(October 17, 2001).
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1 get back to the affected group for them to use for their own purposes. Hopefully, the involvement
2 of the affected group from the outset of the process means that its needs have been identified and
3 the results meet those needs. Nonetheless, the information may be valuable to the group in the
4 longer term, as a foundation for other projects, as historical documentation of practices at a
5 particular point in time, or for any number of reasons. In some cases, a community or tribe may
6 want to be custodian of the information about their group, to ensure that they have some amount of
7 control over the ends to which it may be put in the future. Whatever the reasons, it may be
8 important to capacity-building and empowerment that the information about a particular group be
9 returned to that group. Daisy Carter, Project AWAKE, Coatopa, Alabama, highlights
10 communities' lack of empowerment when information is gathered from them, but not necessarily
11 for and with them:
12 EPA knows all the problems that exist in every community, state and country. EPA is
13 aware of what is wrong. They know who is impacted by the various contaminants and to
14 what degree citizens are unfairly treated. They know what injustices are being done.
15 They also impose fines upon various companies. It is the policy of these companies and
16 EPA to keep citizens who are at risk seeking and searching for answers and assistance
17 to eliminate their problems and suffering. EPA wants to keep citizens, people of color,
18 and impacted communities talking and asking for help so that EPA can stay informed
19 and keep abreast of the status of the burdens and injustices in these communities.
20 In addition, as noted in Chapter 1 in the context of research in general, funding is crucial to
21 the ability of affected communities and tribes to be involved in research, including research about
22 risk communication. Although community and tribal members have considerable expertise to
23 offer, they often have minimal or no funding to support their work. To a person, community
24 members, tribal members, inter-tribal organization staff, and state and local agency representatives
25 who work with affected groups stressed the importance of adequate funding. Diane Lee, a
26 research scientist with the California Department of Health Services who has worked extensively
27 with communities as part of the Palos Verdes Fish Contamination Outreach and Education Project
28 and other studies in the San Francisco Bay area, is emphatic:
29 "I cannot underscore enough the need to provide funding to affected communities so
30 thai they can participate fully in every aspect of the research process, from needs
31 assessment to dissemination of the results. Funding, moreover, needs to be provided on
32 an on-going, rather than one-time, basis. "337
33 Again, EPA and other agencies have often provided much-needed support. For example, the
34 EPA's Office of Water, together with Minnesota's Department of Health, recently sponsored the
35 National Risk Communication Conference to bring together representatives of federal, tribal, state,
36 and local health and environmental agencies, affected communities, tribes and Alaskan Native
37 villages, and other interested in risk communication about contaminated fish. Importantly, EPA
38 secured funding for several community, tribal, and village representatives who otherwise likely
337Telephone Interview, Diana Lee, Research Scientist, California Department of Health
Services (October 26, 2001).
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1 would not have been able to attend. This was an impressive undertaking that produced a rich
2 exchange - and a source of information and experience that should continue to advance
3 deliberation in this area. EPA also recently gave a small grant to the California Department of
4 Health Services "to explore and develop methods of communicating with diverse communities
5 about fish contamination issues" in San Francisco Bay, which CDHS was able to turn around and
6 share with community organizations working on the issue.338 As California Department of Health
7 Services explains:
8 Our participatory approach aims to build local partnerships through collaboration with
9 community-based organizations (CBOs} and local agencies that serve fishing
10 populations. A limited number of stipends will be provided to selected groups to assist
11 them in developing and pilot testing educational materials or activities,339
12 Affected communities and tribes have commended EPA's efforts to this end.
13 However, they noted that the need for funding to enable communities and tribes folly to be
14 involved in research and decisions affecting risk assessment, management, and communication far
15 outstrips the funding that has been so far made available. Funding needs to be regularized and
16 allocated as a part of agencies' budgets, so that affected groups can be assured on-going support
17 for their efforts (rather than piecemeal or one-time funding). The participation of community
18 groups is vital to the success of agencies' risk communication efforts; agencies should not count on
19 community groups to donate their time and expertise when others important to risk communication
20 efforts (e.g., agency staff and contractors) are compensated and supported. Among other things
21 agencies should contract with grassroots community groups to undertake outreach - these groups
22 will be uniquely positioned to provide this service to agencies and they should be compensated for
23 doing so. Agencies should also combine financial support with technical and other in-kind
24 support. Here again, agencies and affected groups can be creative, as some have demonstrated
25 For example, as part of its Palos Verdes Fish Contamination Outreach and Education Project,
26 California Department of Health Services held a free "train the trainer" workshop for community-
27 based organizations, agencies, and others, during which participants were trained in conducting
28 their own educational programs for fishing populations.340 After the training, community-based
29 organizations received a stipend to develop and implement a pilot educational activity for the
30 community they serve. The type of activity was determined by the community-based organization
338California Department of Health, Environmental Investigations Branch, San Francisco
Bay Fish Consumption Outreach and Education Project (factsheet available from California
Department of Health Services).
339Id.
340Califomia Department of Health, Environmental Investigations Branch, Palos Verdes
Shelf Outreach and Education Project on Fish Contamination Issues (factsheet available from
California Department of Health Services).
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1
2
and included a wide range of activities (e.g., organizing a table at a health fair, conducting a
workshop, putting together a media kit).341
34lId.
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1 CHAPTER IV: AMERICAN INDIAN TRIBES AND ALASKAN
2 NATIVE VILLAGES
3 In determining how EPA should improve the quality, quantity, and integrity of aquatic
4 ecosystems what special considerations should EPA take into account when protecting the
5 health and safety of federally recognized tribal governments and their members?
6 American Indian tribes and Alaskan Native villages and their members ("AI/ANs") share
7 many of the concerns explored in the preceding chapters. However, the particular circumstances
8 of AI/ANs also warrant separate discussion. Tribes' political and legal status is unique among
9 affected groups. Tribes are governmental entities, recognized as possessing broad inherent
10 authority over their members, territories and resources. As sovereigns, federally recognized tribes
11 have a government-to-government relationship with the federal government and its agencies,
12 including the EPA. Tribes' unique legal status includes a trust responsibility on the part of the
13 federal government. For many tribes, it also includes treaty rights. Other laws and executive
14 commitments, too, shape the legal obligations owed to AI/AN tribes and villages and their
15 members.
16 There are some 556 federally recognized tribal governments in the United States, including
17 223 Alaska Native villages.342 At the time of the 1990 census, about 1.9 million AI/ANs lived in
18 the United States.343 In 1993, the Bureau of Indian Affairs estimated that 1.2 million AI/ANs lived
19 within Indian country on lands reserved for their tribes as permanent homelands.344 "Indian
20 country," which includes reservations, dependent Indian communities, and Indian allotments,
21 comprises approximately 53 million acres of land, much of which is found in remote areas of the
342"Federally recognized" means that these tribes and groups have a special legal
relationship with the United States. Additionally, a number of tribes and indigenous groups do not
have federally recognized status, although some of these tribes are state-recognized or are in the
process of seeking federal recognition.
343AI/ANs are among the fastest growing ethnic/minority populations in the nation. The
1990 census showed a 37.9% increase over the population of AI/ANs in the 1980 census. For
additional facts and general information, see the Bureau of Indian Affairs' homepage at
.
344For additional facts and general information, see the Bureau of Indian Affairs' homepage
at .
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1 nation.345 The remaining AI/ANs live in urban areas and comprise a growing segment of the
2 Native population.
3 Part A of this chapter outlines the legal status of AI/ANs. Part B of this chapter addresses
4 the particular issue of treaty rights. Part C examines tribes' susceptibilities and co-risk factors;
5 while some of these will also be applicable to other affected groups, the particular combination
6 discussed here is unique to AI/ANs.
7 A. LEGAL STATUS
8 Federally recognized Indian tribes possess a unique political and legal status that
9 distinguishes them from all other ethnic and minority groups in the United States. Although subject
10 to applicable federal law, tribes have long been recognized as separate sovereigns possessing
11 broad inherent authority over their members and territories. As governments, the relationship
12 between federally recognized tribes and the federal government is described as "govemment-to-
13 government" and, in 1994 and 2000, President Clinton explicitly directed each federal agency to
14 operate within this relationship346 and to maintain it through meaningful consultation and
15 coordination with tribes.347 Among other things, the government-to-government relationship means
16 that federal agencies may not treat Indian tribes as "interest groups" or simply as part of the
17 general public.
18 The cornerstone of the government-to-government relationship is the federal government's
19 trust responsibility to federally recognized Indian tribes to protect their status as self-governing
20 entities and their property rights. The trust responsibility is based on treaties, statutes, executive
21 orders, and the historical relations between the federal government and tribes. In practice, the
22 trust responsibility gives rise to distinctive fiduciary obligations on the part of federal agencies
345The term "Indian country" is defined by federal law as including "(a) all land within the
limits of any Indian reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and, including rights of way running through the
reservation, (b) all dependent Indian communities ... and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running through the same." See 18
U.S.C. § 1151.
346See Executive Memorandum on Government-to-Government Relations with Native
American Tribal Governments (April 29, 1994).
347See Executive Order No. 13084 (May 14, 1998). On November 6, 2000, President
Clinton issued a new order strengthening the policy on tribal consultation. See Executive Order
No. 13175 (Nov. 6, 2000).
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1 that must be "exercised according to the strictest fiduciary standards."348 The United States
2 Supreme Court has stated that federal officials are "bound by every moral and equitable
3 consideration to discharge the federal government's trust with good faith and fairness" when
4 dealing with tribes.349
5 Also related to the trust doctrine is Congress' plenary power over Indian affairs. Under
6 the plenary power doctrine, the federal government is vested by the Constitution with exclusive
7 authority over relations with Indian tribes.350 Because the power of Congress is exclusive, states
8 generally lack authority over Indian tribes and tribal members within Indian countiy, unless
9 Congress has expressly delegated that authority to states.
10 Due to the special legal status of tribes, and because the jurisdictional rules applicable to
11 Indian country left EPA unable to pursue its usual practice of delegating primary enforcement
12 responsibility to states that so request, EPA developed special regulations and policies concerning
13 environmental regulation on Indian reservations and the role to be played by tribal governments.
14 On November 8, 1984, EPA adopted a formal policy, the "EPA Indian Policy for the
15 Administration of Environmental Programs on Indian Reservations" ("Indian Policy"). The Indian
16 Policy sets forth nine principles by which the EPA will pursue its objectives including, but not
17 limited to EPA's commitment to work with tribes on a government-to-govemment basis, to
18 recognize tribes as the primary decision-makers for environmental matters on reservation lands, to
19 help tribes assume program responsibility for reservations, to remove existing legal and
20 procedural impediments to tribal environmental programs, and to encourage tribal, state, and local
21 government cooperation in areas of mutual concern. Following the adoption of the Indian Policy,
22 every EPA Administrator since has reaffirmed the principles set forth therein. Most recently, on
23 July 11, 2001, EPA Administrator Christine Todd Whitman again reaffirmed the Agency's
24 commitment to the Indian Policy.
25 A major goal of the Indian Policy is to eliminate statutory and regulatoiy barriers to the
26 assumption of federal environmental programs by Indian tribes. As originally enacted, most of the
27 federal environmental laws mentioned tribes or Indian reservations and none provided for direct
28 participation by tribal governments. To date, however, tribal amendments to four major federal
29 environmental laws-the Safe Drinking Water Act, Clean Water Act, Clean Air Act, and
30 Comprehensive Environmental Response, Compensation, and Liability Act—have been enacted.351
31 Despite these amendments and the Indian Policy, federal funding for tribal environmental programs
32 and environmental enforcement within Indian country has been inadequate and inequitable,
348Nance y Environmental Protection Agency, 645 F.2d 701, 710 (9th Cir. 1981).
349T Jnited States v. Pavne. 264 U.S. 446, 448 (1924).
350See Morton v. Mancari, 417 U.S. 535 (1974).
35'See, generally, Jane Marx, Jana L. Walker, and Susan M.. Williams, Tribal Jurisdiction
Over Reservation Water Quality and Quantity, 43 South Dakota Law Review 315 (1998).
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1 particularly in light of the billions of federal dollars spent on state environmental efforts over the
2 last three decades. While fonding for tribal programs has increased substantially in recent years,
3 inadequate funding for tribal programs is considered by many to be an environmental justice issue
4 and also is one of the key factors impeding effective consultation with tribes due to the limited
5 capacity of tribal environmental programs. As discussed further in Chapter 2, while some tribal
6 governments are moving forward in participating under federal environmental programs, few
7 tribes have actually been authorized by EPA to assume primary regulatory and enforcement
8 responsibilities for these program on their reservations. Where tribes have not yet assumed these
9 responsibilities, EPA remains responsible for implementing and enforcing the federal
10 environmental laws within Indian country pursuant to these laws and the federal trust
11 responsibility owed to tribes.
12 As noted in Chapter 2, tribes may be involved as co-managers of cleanup and restoration
13 efforts. For example, the Lower Elwha Klallam Tribe recently signed an agreement with federal
14 and state agencies recognizing its role in overseeing cleanup of a contaminated (with dioxins and
15 PCBs) area affecting important off-reservation resources.352 The Menominee Indian Tribe of
16 Wisconsin and the Oneida Tribe of Indians of Wisconsin are among the Natural Resource Trustees
17 addressing cleanup and restoration of the Fox River and Green Bay.353 In these roles, tribes will
18 have environmental justice concerns of a different and often complex nature
19 B. TREATY RIGHTS
20 Treaties preserve important tribal rights. "A treaty, including one between the United
21 States and an Indian tribe, is essentially a contract between two sovereign nations."354 The United
22 States entered into more than 400 treaties with Indian tribes under which tribes typically gave up
23 large parts of their aboriginal territories in exchange for explicit promises from the federal
24 government. Because the United States received rights to land from the tribes, the United States
25 Supreme Court has described a treaty as a grant of rights from the Indians with a reservation of all
26 those rights not granted.355 Thus, a treaty does not have to reserve expressly hunting and fishing
27 rights within an Indian reservation for such rights to exist; rather, such on-reservation rights exist
352L. Harris, Tribe Will Oversee Pulp Mill Cleanup, Northwest Indian Fisheries
Commission News 8 (Spring, 2000).
353U.S. Environmental Protection Agency, Intergovernmental Partners Negotiate Fox
River Interim Agreement (factsheet, 2001).
354See Washington v. Washington State Commercial Passenger Fishing Vessel Assoc . 443
U.S. 658, 675 (1979).
355See United States v, Winans. 198 U.S. 371 (1905) ("In other words, the treaty was not a
grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.")
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1 unless expressly given up by the tribe.356 In many treaties, tribes expressly reserved certain rights
2 in lands and waters outside their reservations. For example, today, many tribes possess treaty
3 rights to fish, hunt, and gather at all "usual and accustomed" places. In 1871, Congress ended the
4 practice of entering into treaties with Indian tribes, but subsequently engaged in the practice of
5 ratifying agreements with tribes negotiated by the Executive Branch. While the United States
6 Supreme Court has ruled that Congress has the power to break treaties with tribes, unless clear
7 congressional intent exists to abrogate a treaty, a treaty continues in effect.357
8 C. TRIBES' UNIQUE SUSCEPTIBILITIES AND CO-RISK FACTORS
9 Commonly cited statistics all seem to agree that AI/AN's economic wealth, public health,
10 and education are the worst of any group in the nation. Poverty and unemployment rates among
11 AI/ANs are the highest for any ethnic group in the country, and education, per capita income, and
12 home ownership are among the lowest.358 One out of every three AI/ANs lives below the poverty
13 line; approximately 90,000 AI/AN families are homeless or underhoused; and one out of every
14 five AI/AN households lacks adequate plumbing.359 The statistics are even more disheartening for
15 Alaska Native villages. Only 40% of Alaska Native families have basic sanitation services such
16 as piped drinking water and flush toilets, and more than half of these systems are rudimentary at
17 best.360 Climate poses a significant challenge to the use of conventional sanitation systems in these
18 communities, which are typically far removed from urban areas. And, the lack of economic
19 development in most Alaska Native villages makes it impossible for these subsistence-based
20 families to pay the cost of bringing in appropriate and sustainable sanitation services.361
21 Health care data on AI/ANs is scarce and unreliable. Significantly, the health status of
22 AI/ANs is far below the health status of the general population in this country, and unmet AI/AN
23 health needs are alarmingly high. This disparity in health status is reflected clearly in the death
24 rates for AI/ANs. For example, AI/ANs have the highest suicide rate (70% higher than the rate for
25 the general population) and the lowest life expectancy of any population in this hemisphere except
26 Haitians.362 Compared to death rates for all other races in the United States, AI/ANs have a death
356§ee Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968).
357See I Jnited States v. Dion. 476 U.S. 734 (1986).
358See. e.g.. "National Gambling Impact Study Commission Report, Chapter 6, titled Native
American Tribal Gambling, at page 6-5 (June 18, 1999).
359Id.
360See. e.g.. The Forgotten America - Alaska's Rural Sanitation Problem a Video
Produced by The Media Support Center for the Alaska Department of Environmental
Conservation.
36!Id.
362See. e.g.. Wallwork Winik, Lyric, "There's A New Generation with a Different
Attitude," Parade Magazine at 6-7 (July 18,1999).
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1 rate for diabetes mellitus that is 249% higher; a death rate for pneumonia and influenza that is 71%
2 higher; a death rate for tuberculosis that is 533% higher; and a death rate from alcoholism that is
3 627% higher.363
4 AI/ANs also have a unique set of cancer problems ranging from inadequate screening to
5 under-diagnosis and -reporting of cancer to lack of access to quality health care and new cancer
6 treatments. For example, the leading cause of death for AIs is lung cancer, and AN women have
7 the highest cancer and lung cancer mortality rates of any major racial female group.364 Recently,
8 the Association of American Indian Physicians reported that cancer is the third leading cause of
9 death for all AI/ANs of all ages; the second leading cause of death for all AI/ANs over age 45; and
10 the leading cause of death for AN women. The Association also reported that, in most parts of the
11 country, AI/ANs have poorer survival rates from cancer than do whites, African Americans,
12 Hispanics, and Asians.365
13 AI/ANs are particularly susceptible to health impacts from pollution due to their traditional
14 and cultural uses of natural resources and, in fact, AI/ANs "have greater exposure risks than the
15 general population as a result of their dietary practices and unique cultures that embrace the
16 environment."366 Fishing, hunting, and gathering often are part of a spiritual, cultural, social, and
17 economic lifestyle, and the survival of many AI/ANs depends on subsistence hunting, fishing, and
18 gathering. In some instances, the right to engage in these activities is legally protected by treaty.
19 Additionally, many AI/ANs also use water, plants, and animals in their traditional and religious
20 practices and ceremonies. As a result, contamination of the water, soil, plants, and animals and
21 the subsequent accumulation of these contaminants in the people through ingestion, inhalation, and
22 contact not only endangers the health of AI/ANs, but also threatens the well-being of their future
23 generations367 and undermines the cultural survival of tribes and Alaska Native villages. For
363Proposed IHCA Amendments of 2000, Section 2(h), prepared by the National Steering
Committee for the Reauthorization of the Indian Health Care Improvement Act, P.L. 94-437
(October 6, 1999), and based on data used by the Indian Health Service for the FY 2001 budget
development.
364See National Cancer Institute, National Institute of Health, HHS, Office of Special
Populations Research Web Site, "The Cancer Burden," at .
365K. Marie Porterfield, "American Indian Cancer Statistics Under Reported," Indian
Country Today at C-l (July 26,2000).
366See "Focus on American Indian and Alaska Native Populations," published by the
Agency for Toxic Substances and Disease Registry, at pages 1-2.
367A number of studies have shown that children are uniquely susceptible to pollution and
contaminants. For example, since 1992, the Agency for Toxic Substances and Disease Registry
has funded research in the Great Lakes states focusing on the health effects of high risk
populations, including American Indians, from persistent toxic substances found in fish. One study
found that newborns born to mothers who consumed only 2.3 PCB-contaminated Great Lakes fish
meals per month scored lower on the Neonatal Behavioral Assessment Scale. See "Focus on
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1 example, tribes near the Hanford Nuclear Reservation have been working with the Agency for
2 Toxic Substances and Disease Registry to design health assessments focusing on exposure effects
3 from food consumption and other activities. These tribes want to learn if the Hanford releases
4 affect native food items and local materials used in tribal products like storage and cooking
5 baskets, mats, and clothing.368 Similarly, tribes located in coastal northern California are
6 concerned about the pesticide exposure of some 300 traditional basketmakers who gather their
7 own materials from the forests and roadsides. Basketweavers are exposed to pesticides as they
8 tend and gather basketry materials; as they weave (weavers often hold one end of the grasses or
9 other materials in their mouths as they weave); and as they wear, cook with, and use the finished
10 baskets. Because a disproportionate number of American Indian residents in Humboldt County,
11 California have been diagnosed with cancer, tribes believe studies are needed to determine the
12 exact cause of such cases.369
13 Significantly, where such traditional, cultural, and subsistence activities are involved,
14 federal and state environmental standards used to protect the general non-Indian/non-Native
15 population may not afford tribes and Alaska Native villages adequate protection from
16 environmental harm.370 Again, although several of the major federal environmental laws have been
17 amended to allow federally recognized tribes to assume primacy for certain programs,371 to date,
18 only a few tribes have EPA- approved or -promulgated environmental programs.372 Based on all
American Indian and Alaska Native Populations," published by the Agency for Toxic Substances
and Disease Registry, at pages 2-3. Additionally, in Oklahoma, Indian children also suffer harm
from their environment. The Tar Creek Superfund Site, a former lead and zinc mine, occupies 40
square miles within the boundaries of the former Quapaw Indian Reservation. Both the Quapaw
Tribe's powwow grounds and campgrounds are contaminated from mine tailings, and the EPA
Region 6 reports that approximately 25% of the Quapaw children have elevated blood lead levels
compared with a statewide average of 2%. See "U.S. Environmental Protection Agency Region 6
Environmental Justice Update," at page 7 (May 2000).
368 See "Focus on American Indian and Alaska Native Populations," published by the
Agency for Toxic Substances and Disease Registry, at page 5.
369 See Chuck Striplen, Mutzun Oholone Tribe, "Native Subsistence in a Toxic
Environment: A Tribal Viewpoint," at page 14, EPA's OPPTS Tribal News (Fall/Winter 1999-
2000).
370See. e.g., Citv of Albuquerque v. Browner. 97 F.3d 415 (10th Cir. 1996), cert, denied.
118 S. Ct. 410 (1997) (upholding the EPA's approval of the Pueblo of Isleta's water quality
standards that were more stringent than the state water quality standards, and which included a
ceremonial use standard).
371Since 1986, the Safe Drinking Water Act, Clean Water Act, and Clean Air Act have been
amended to afford tribes substantially the same opportunities as states to assume responsibility for
certain programs or purposes.
372For example, as of July 13, 2000, the EPA reported that only 15 tribes have EPA-
approved or -promulgated water quality standards and no tribes are authorized to administer the
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1
2
3
of the foregoing, federally recognized tribes and AI/ANs suffer a disproportionate burden of health
consequences due to their exposure to pollutants and hazardous substances in the environment.
This is particularly so for AI/AN infants and children.373
National Pollutant Discharge Elimination System or to establish Total Maximum Daily Loads. See
65 Fed. Reg. 43,585 (July 13, 2000).
373For example, a New York State Department of Health study of lactating women and their
infants linked breast feeding and infant exposure to hazardous substances. This study compared
PCB levels in the breast milk of Mohawk women who gave birth between 1986 and 1992 with a
control group. The study found that although the PCB concentrations in the breast milk of Mohawk
mothers decreased over time, their infants had urine PCB levels ten times higher than that of their
mothers. See "Focus on American Indian and Alaska Native Populations," published by the
Agency for Toxic Substances and Disease Registry, at pages 3-4. See also Winona Laduke, All
Our Relations. Native Struggles for Land and Life, at 11-23 (1999).
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1 APPENDIX A: NEJAC FISH CONSUMPTION WORK GROUP
2 MEMBERS
3 Coleen Poler (Work Group Co-Chair)
4 NEJAC Indigenous Peoples Subcommittee
5 Sokaogon Defense Committee
6 2915 Ackley Circle Road
7 Crandon, W1 54520
8 Ph: 715-365-8995
9 Fax:715-365-8977
10 polersdc@newnorth.net
11 Leonard E. Robinson (Work Group Co-Chair)
12 NEJAC Air & Water Subcommittee
13 TAMCO Steel
14 12459 Arrow Highway
15 Rancho Cucamonga, CA 91739
16 Ph: 909-899-0631 x.203
17 Fax:909-899-1910
18 RobinsonL@tamcosteel .com
19 Daisy Carter
20 NEJAC Air & Water Subcommittee
21 PROJECT AWAKE
22 Route 2, Box 282
23 Coatopa. AL 35470
24 Ph: 205-652-6823
25 fax: 205-652-6823 or 205-652-9343
26 Dawake@sumternet.com
27 Patricia Cochran
28 Alaska Native Science Commission
29 University of Alaska Anchorage
3 0 3211 Provident Drive
31 Anchorage, Alaska 99508
32 Ph: 907-786-7704
33 Fax:907-786-7731
34 annac 1 @uaa.alaska.edu
35 Josee Cung
3 6 Minnesota Department of Natural Resources
3 7 Southeast Asian Program- Commissioner's Office
3 8 500 Lafayette Road, Box 10
39 St. Paul, MN 55155-4010
40 Ph: 651-297-4745
41 Fax:651-296-6047
42 iosee.cung@dnr.state.mn.us
Ticiang Diangson
Supervising Planning and Development Specialist
Seattle Public Utilities
710 Second Ave, fr505
Seattle, WA 98104
Ph: 206-684-7643
Fax: 206-684-8529
ticiane.diangson@ci.Seattle, wa.us
Pamela Kingfisher
NEJAC Health & Research Subcommittee
Indigenous Women's Network
13621 FM 2769
Austin, TX 78726
Ph: 512-401-0090
Fax: 512-258-1858
pikingfisher@vahoo.com
Brian Merkel
University of Wisconsin- Green Bay
College of Human Biology
Green Bay, WI 54311-7001
Ph: 920-465-2262
Fax: 920-465-2769
MerkeiB@uweb.edu
Bark Merrick
Earth Conservation Corps
1st and Potomac Ave.
Washington, D.C.
Ph: 202-554-1960
Lawrence Skinner
New York State Dept. of Environmental Conservation
Bureau of Habitat
50 Wolf Rd. R. 576
Albany, N.Y. 12233-4750
Ph: 518-457-0751
Fax: 518-485-8424
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1 Moses D. Squeochs
2 NEJAC Indigenous Peoples Subcommittee
3 14 Confederation Bands of Yakama Nation
4 P.O. Box 151
5 Toppenish, WA 98948
6 Ph: 509-865-5121
7 Fax:509-865-6850
8 mose@vakama.com
9 Velma Veloria
10 1265 South Main Street, Suite 203
11 Seattle, WA 98144 or
12 P.O. Box 40600
13 Olympia, WA 98504-0600
14 Ph: 360-786-7862
15 Fax:360-786-7317
16 veloria ve@leg.wa.gov
17 Jana L. Walker
18 Attorney
19 NEJAC Indigenous Peoples Subcommittee
20 Law Office of Jana L. Walker
21 141 Placitas Trails Road
22 Placitas, New Mexico 87043
23 Ph: 505-867-0579
24 ndnlaw@sprintmai 1 .com
25 Patrick West
26 Professor Emeritus, University of Michigan
27 29377 Sunny Beach Additive Road
28 Grand Rapids, MN 55744
29 Ph: 218-326-2170
30 pswest@paulbunvan.net
31 Damon Whitehead
32 NEJAC Air & Water Subcommittee
33 Earth Conservation Corps
34 I5' Street and Potomac Avenue, SW
35 Washington, DC 20003
36 damon@anacostiariverkeeper.org
37 Terry Williams, Commissioner
38 Fisheries & Natural Resources
39 Tulalip Tribes
40 7615 Totem Beach Road
41 Marysville, WA 98271
42 Ph: 360-651-4471
43 Fax: 360-651-4490
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twilliams@tulalip.nsn.us
Marianne Yamaguchi
NEJAC Air & Water Subcommittee
Santa Monica Bay Restoration Project
320 West 4th Street, Suite 200
Los Angeles, CA 90013
Ph: 213-576-6614
Fax: 213-576-6646
mvamaguc@rb4.swrcbxa.iiov
Alice Walker (Work Group DFO)
Co-Designated Federal Official
Office of Water
NEJAC, Air and Water Subcommittee
OW Environmental Justice Coordinator
Ph: 202-260-1919
Fax: 202-269-3597
Walker. A1 ice@epa. gov
Danny Gogal (Work Group DFO)
DFO, NEJAC Indigenous Peoples Subcommittee
USEPA Headquarters
Office of Environmental Justice- 2201A
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Ph: 202-564-2576
Gogal.Dannv@eDa.gov
Charles Lee (NEJAC DFO)
Associate Director for Policy and Interagency Liaison
Office of Environmental Justice- 2201A
USEPA Headquarters
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Ph: 202-564-2597
Lee.Charles@epa.gov
Catherine O'Neill (Meeting Report Consultant)
Associate Professor
Seattle University School of Law
900 Broadway
Seattle, Washington 98122
Ph: 206-398-4030
Fax: 206-398-4077
oneillc@seattleu.edu
126
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EPA Technical Resource Personnel
1 Chris Ball, Liaison (o Region 3\
2 Office of Communications and
3 Governmental Relations, USEPA
4 499 South Capitol Street-4501F
5 Washington, DC 20003
6 Ph.:202-260-1687
7 Fax; 202-401-5341
8 ball.chris@epa.gov
9 JeffBigler
10 National Fish and Wildlife Contamination
11 Program, USEPA- 4305
12 1200 Pennsylvania Avenue, NW
13 Washington, DC 20460
14 Ph: 202-260-1305
15 Fax:202-260-9830
16 BiBler.Jeff@ena.gov
17 Ellen Brown, Policy Analyst
18 USEPA Headquarters
19 Office of Air and Radiation-6103 A
20 1200 Pennsylvania Avenue, N. W.
21 Washington, DC 20460
22 Ph: 202-564-1669
23 Fax:202-564-1554
24 Brown.EHen@eDa.gov
25 Gary Carroll
26 USEPA Headquarters
27 Office of Environmental Justice
28 1200 Pennsylvania Avenue, N.W.
29 Washington, DC 20460
30 Ph: 202-564-2404
31 Carroll. Gar»'@ena. gov
32 Gail DuPuis
33 ECO Intern
34 USEPA
35 Office of Environmental Justice
36 Washington, DC 20460
Sue Gilbertson
USEPA Headquarters
Ariel Rios Building- 4305
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
Ph: 202-260-1188
G i 1 bertson.Sue@epa.eov
Richard Healy
USEPA Headquarters
Ariel Rios Building- 4305
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
Ph: 202-260-7812
Healv.Richard@epa.gov
Maria Hendriksson
USEPA Headquarters
Ariel Rios Building- 3610A
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
Ph: 202-564-1897
Hendriksson.Marla@.epa. gov
Theodore Johnson
Office of Water
USEPA Headquarters
Ariel Rios Building- 4301
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
Ph: 202-260-8142
Johnson.Theordore@epa. gov
Marva King
USEPA Senior Program Analyst
NEJAC Program Manager
Office of Environmental Justice- 2201A
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Ph: 202-5664-2599
King.Marva@epa.gov
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1
Mike Letourneau
2
USEPA Region 10
3
Office of Civil Rights and Environmental Justice
4
1200 Sixth Avenue, M/S: CEJ163
5
Seattle, WA 98101
6
Ph: 206-553-1687
7
Fax: 206-553-7176
8
Letoumeau.Mike@epa. gov
9
Roseanne Lorenzana
10
USEPA REGION 10
11
1200 Sixth Avenue
12
Seattle, WA 98101
13
Ph: 206-553-8002
14
Lorenzana.Roseanne@eDa.eov
15
Suzanne McMaster
16
USEPA
17
Office of Research and Development
18
USEPA Mailroom-MD-58C
19
Research Triangle Park, NC 27711
20
Ph: 919-966-6385
21
McMaster.Suzanne@eoa.gov
22
Reggie Parrish
23
EPA Anacostia Liaison
24
EPA Chesapeake Bay Program Office
25
401 M St SW (4505F)
26
Washington DC 20460
27
Ph: 202 260-6095
28
Fax: 202 401-5341
29
Darrish.reginald@eDa.gov
30
Dan Petersen
31
USEPA Facilities- G75
32
26 West Martin Luther King Drive
33
Cincinnati, OH 45268
34
Ph: 513-569-7831
35
Petersen.Dan@eDa. eov
36 Michael Regan
37 USEP A Headquarters- 6103 A
3 8 Ariel Rios Building
39 1200 Pennsylvania Avenue, N. W.
40 Washington, DC 20460
41 Ph: 202-564-9213
42 Regan.Michael@epa.gov
Bob Smith
Alternate DFO, Indigenous Peoples Subcommittee
USEPA American Indian Environmental Office
401 M Street, SW- MC 4104
Washington, DC 20460
Ph: 202-260-8202
Fax: 202-260-7509
smith.bob-nmi@epa.gov
Jamie Song
ECO Intern
USEPA
Office of Environmental Justice-2201A
Washington, DC 20460
Ph: 202-564-2636
song.iamie@eoa.gov
Brenda Washington
Co-DFO
Health and Research Subcommittee
USEPA Headquarters- 8104R
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
Ph: 202-564-6781
Washington.Brencla@eDa.gov
Claudia Walters
USEPA Headquarters- 8104R
Ariel Rios Building
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
Ph: 202-564-6762
Walters.Claudia@epa.gov
Corinne Weilish
USEPA Headquarters- 4102
Ariel Rios Building
1200 Pennsylvania Avenue, N. W.
Washington, DC 20460
Ph: 202-260-0740
Wellish.Corinne@epa.gov
PRE-MEETING DISCUSSION DRAFT
NEJAC Fish Consumption Work Group
November, 2001
Please Do Not Cite or Quote 128
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