February 22, 2013

Justice Delayed

Outgoing Environmental Protection Agency (EPA) Administrator Lisa Jackson made environmental justice a priority at the agency. As her tenure draws to a close, EPA released its Plan EJ 2014: Progress Report in January, summarizing the agency’s considerable advances toward this important goal. The EPA deserves accolades for the seriousness with which it has treated the issue and for the progress it has made to address the unique and disproportionate burdens that environmental contamination visits on American Indian tribes and their members, on communities of color, and on low-income people.

It is a pity, then, that EPA touts among its “key accomplishments” its role in overseeing Oregon’s belated adoption of water quality standards that are more protective of tribal people and others who consume fish. EPA actually had to be sued in order to play this role. And EPA is taking the same lackadaisical stance elsewhere in the Pacific Northwest, allowing years to pass by while grossly underprotective standards remain in place.

Tribes have long recognized that degraded environments mean both depletion and contamination of the fish, including shellfish, on which they depend – and to which they have unique rights, including rights secured by treaties and other agreements with the United States. Tribes have worked to clean up and prevent toxic contamination of aquatic environments, among other things by ensuring water quality standards (WQS) adequately protective of all those who eat fish.  Fish consumption is the primary route of human exposure to a host of harmful contaminants including dioxins, PCBs, PAHs, and methylmercury. The amount of fish people consume, therefore, helps determine water quality standards – the more fish people eat, the cleaner the water needs to be to ensure that those people are not adversely affected by toxics in the water. The states of Washington, Idaho, and Alaska set standards on the assumption that people there eat just twelve fish meals per year – or 6.5 grams/day. This “fish consumption rate” (FCR) is based on a survey of the general U.S. population conducted back in 1973-74.

Yet fishing peoples throughout the Pacific Northwest consume much more fish than this paltry number suggests. The Columbia River Inter-Tribal Fish Commission (CRITFC) published a survey of contemporary fish consumption practices in its four member tribes in 1994. This study was followed by tribally conducted surveys of their members’ consumption practices by the Squaxin Island and Tulalip tribes in 1996, and by the Suquamish tribe in 2000. More recent research has been conducted by the Swinomish, Lummi, and Colville tribes. In every case, these studies of contemporary tribal practices documented that tribal members consumed fish at markedly greater rates than twelve meals a year – on the order of two hundred times greater. Moreover, these surveys recorded consumption rates for tribal people that reflect contemporary, “suppressed,” practices – practices that are artificially diminished relative to historical practices because fisheries are depleted or contaminated, because access to harvesting sites is denied, because dams have inundated fishing places, and because of a legacy of arrests, gear confiscation, and other harassment of tribal fishers.

Under the Clean Water Act (CWA), states must review their WQS every three years to determine if they should be updated. Yet states’ standards in the Pacific Northwest have remained unchanged since before the CRITFC study was published in 1994. Oregon is the recent exception. Throughout the region, EPA has permitted – and sometimes caused – this delay.

Once Oregon embarked on the task of revising its water quality standards, it took twelve years and two attempts to get to its current FCR of 175 g/day FCR. In its first attempt, the Oregon Department of Environmental Quality (ODEQ) rejected the advice of its Technical Advisory Committee, which had endorsed using values from the CRITFC survey and formally recommended standards that included three FCRs, to be applied based on the intensity of fishing activity in the relevant waters: 17.5 g/day, 142.4 g/day, and 389 g/day. ODEQ opted instead to promulgate a statewide standard with a FCR of 17.5 g/day. Oregon finalized its revised WQS based on this number in May of 2004. The EPA, however, declined to approve or deny them within the statutorily mandated deadlines (60 days to approve; 90 days to disapprove). Both Oregon’s decision and EPA’s inaction were sharply criticized by the affected tribes. Environmental groups, too, registered their concern, and sued EPA for its failure to act. EPA ultimately disapproved these WQS on June 1, 2010, finding that they weren’t adequately protective. In the meantime, Oregon was persuaded to go back to the drawing board, this time with a tri-governmental process led by the Umatilla tribe, the EPA, and Oregon. This process involved over a year of public meetings. Finally, WQS based on a 175 gram/day FCR were adopted in Oregon on June 16, 2010, and approved by EPA on October 17, 2011.  

Idaho is taking a similarly tortuous path to what one hopes will be more protective standards. Idaho didn’t begin the process of revising its WQS until April of 2005. Idaho Department of Environmental Quality (IDEQ) adopted revised WQS based on a 17.5 g/day default fish consumption rate in November of 2005; the Idaho legislature approved these standards in March of 2006. The WQS were submitted to EPA on July 7, 2006. Here, too, EPA had to be sued to act as required by the CWA. Finally, in May of 2012, EPA disapproved Idaho’s WQS. EPA’s disapproval noted the availability of relevant local and regional fish consumption surveys documenting greater consumption rates and stated that “EPA cannot ensure that the criteria derived based on a fish consumption rate of 17.5 g/day are based on a sound scientific rationale consistent with [EPA’s water quality standards regulation] and protect Idaho's designated uses.” With its WQS finally disapproved, IDEQ is starting over, this time with EPA’s assistance. Among other things, it appears that Idaho’s second round of process will include conducting a new fish consumption survey – a time-consuming undertaking that will stall more protective standards for some additional number of years – even though Idaho already has the data it needs from the CRITFC and other surveys of fish consumption in the region.

Washington state’s efforts have also been fraught by delay and reversals of course. Although Washington recognized the relevance of the CRITFC and other tribal studies in the late 1990s, and had made commitments to update the FCR that informed its WQS and cleanup standards, it only recently embarked upon this effort. Washington’s Department of Ecology (Ecology) appeared to be making progress when it published its Fish Consumption Rates Technical Support Document in September, 2011. Ecology reviewed the available studies, including the tribal surveys and a survey of Asian and Pacific Islanders, and “concluded that available scientific studies support the use of a default fish consumption rate in the range of 157 to 267 grams per day (g/day).” In July, 2012, however, Ecology abruptly announced a “pivot.” This change of course involved backing down from announcing a default FCR in its Technical Support Document and punting this determination to subsequent rulemakings. These rulemaking processes are underway, with standards not expected until spring of 2014. EPA issued a fairly tepid response to Ecology’s July 2012 pivot. While EPA called attention to its recent disapproval of Idaho’s inadequate standards as “strong precedent for the current process in Washington,” it offered its support for Ecology’s “commitment to commencing” revisions to its WQS. EPA also noted that “[i]f and when there is regional or local data showing higher fish consumption rates, it needs to be utilized for derivation of the State’s human health criteria” – but made no mention of the years that had already elapsed while such data had indeed been available, nor suggested any repercussions for Ecology’s failure to respond to this data.

So let’s review EPA’s “key accomplishments” toward advancing environmental justice for fish consuming people in the Pacific Northwest:

EPA has declined to hold states’ feet to the fire in fulfilling their obligations under § 303(c)(1) and (2) of the CWA. EPA has then ignored mandatory deadlines for approving or disapproving state standards that are finally issued – standards that, in every case, have been so weak that disapproval was clearly called for.  Importantly, by declining to disapprove the states’ lackluster standards, EPA has avoided starting a second 90-day clock under § 303(c)(3) for it to step in and issue standards to be applied to state waters.  EPA has not much mentioned, let alone exercised, the hammer of its own § 303(c)(4) authority. Under this provision of the CWA, EPA must propose water quality standards “in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements” of the CWA, among which is the attainment of fishable waters. Finally, as I elaborate in a forthcoming article in the American Indian Law Journal, EPA has failed adequately to consider how its efforts, and those of the states it oversees, are constrained by tribes’ unique political status and legal rights, including treaty-secured rights to “take fish.”

State and federal agencies have had contemporary tribal fish consumption data for nearly two decades now – since the CRITFC study was published in 1994. A generation of Indian people has been born and come of age during this time. They have grown up seeing signs along the waterways warning against consuming fish, encountering notices at tribal fisheries departments of toxic shellfish, and clicking on websites containing instructions for trimming the fat and discarding the skin so as to avoid the lipophilic toxics harbored there. They have been advised, in short, to alter the very lifeways that define them as fishing peoples. For this generation, justice delayed has assuredly been justice denied.

EPA ought to keep this generation in mind before celebrating “progress” of the sort it has presided over for water quality in the Pacific Northwest.

Catherine O'Neill, CPR Member Scholar; Professor of Law, Seattle University School of Law. Bio.

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1 Thanks for this awesome article/blog. We have been working towards getting the FCR in Washington up in the 170 to 200 range for several years now. Many meetings with EPA, we are the Western Washington Tribal rep for EPA RTOC and keep pushing EPA and DOE on this. Your blog hits the issue right on target. Thanks again, loved it!
-- Paul McCollum
2 Hi Catherine, Exceptional job at summarizing the fish consumption rate issues in the Northwest. Gives an accurate background and helps clarify what needs to be done.
-- Rory O'Rourke
3 Thank you Catherine, for your clear and concise summary that even I can understand. Maybe when all the people get it, we won't have to sue our protectors to protect us.
-- Darrell Phare

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