Catherine O'Neill on CPRBlog {Bio}
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Washington State’s Weakened Water Quality Standards Will Keep Fish Off the Table, Undermine Tribal Health

In recent weeks, celebrations throughout the Pacific Northwest marked the 40th anniversary of the “Boldt decision” – the landmark decision in the tribal treaty rights case, U.S. v. Washington.  This decision upheld tribes’ right to take fish and prohibited the state of Washington from thwarting tribal harvest.  Judge Boldt’s 1974 decision was intended to close a chapter in our history during which tribal fishers were harassed, beaten, and imprisoned for the act of fishing.  In recognition of this anniversary, the Washington state legislature voted to clear the criminal records of all the tribal people who had been arrested for fishing – that is, for exercising the rights they had been guaranteed under the treaties.  Yet the legacy of this shameful era may be revived if Washington’s Department of Ecology calculates water quality standards so as to reflect and perpetuate the time when tribes could not harvest salmon and other fish.

Water quality standards determine how much pollution will be allowed in our waters and, as a consequence, in the fish we all eat.  Water quality standards are human health-based; they are currently set by means of risk assessment.  Environmental agencies such as Ecology enlist risk assessment equations that determine how much of each toxic pollutant – PCBs, mercury, dioxins, PAHs – can safely be present in a water body so that humans who eat the fish from that water won’t risk cancer or suffer irreversible neurological damage or other harms.  There are several variables in this equation.  The value for each of these variables is determined by intertwined “science” and “policy” choices.  Agency risk assessors consider the degree to which a given pollutant bio-accumulates in fish tissue; the amount of fish people can be expected to consume; the number of years over which people will likely consume fish at this rate; and other variables.  The plausible value for some of these variables spans two orders of magnitude; for other variables, the range is less dramatic, but there is still room for play.

And play is precisely what industrial polluters and their consultants do, as they take aim at each variable, with the ultimate goal of weakening the resulting water quality standards.  I have discussed some of these efforts in the Pacific Northwest here and here, as well as here.

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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.

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(Puget) Sound Science

The current debate surrounding Washington State’s sediment cleanup and water quality standards provides another example of regulated industry calling for “sound science” in environmental regulation, yet working to undermine it.  Industry has worked to delay updates to water quality standards based on the most recent scientific studies, despite the fact that the current standards are based on decades-old data  and don’t adequately protect human health.  Most recently, industry has sought to weaken any forthcoming standards by misrepresenting scientific studies of contamination in Puget Sound and other marine waters and its impact on salmon. 

When agencies set standards limiting toxic pollution in our waters, they aim to protect humans exposed to these toxics by eating fish.  Fish consumption is the primary route by which people are exposed to a host of toxic contaminants, including PCBs, dioxins, and mercury.  Washington’s current water quality standards enlist a “fish consumption rate” (FCR) based on surveys of people’s fish consumption practices back in 1973-74. Although more recent survey data have existed for some time, the state’s Department of Ecology has declined to update its standards, even though its FCR of 6.5 grams/day – just one fish meal per month – grossly understates contemporary consumption rates for Washingtonians, including members of the fishing tribes, the Asian and Pacific Islander community, and others.  An increase in the FCR would mean more protective environmental standards.  Industry, for its part, has weighed in with calls to retain the current FCR – hardly an embrace of the state of the science.

In recent public comments, industry has taken the tack of gutting the FCR.  They have argued that people’s intake of salmon ought to be excluded from the FCR, on the theory that salmon, which are anadromous (i.e., they spend a portion of their lifecycles in freshwater and saltwater environments), obtain their contaminant body burden outside of waters of regulatory concern.  If salmon are getting their contaminants elsewhere, this argument goes, Washington ought not seek pollution prevention or cleanup from industries within its jurisdiction.  Because salmon comprise a considerable portion of Washingtonians’ fish intake, to exclude salmon from the FCR would be to decrease significantly the protectiveness of the environmental standards.

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Fish for the Future: Our Health and Livelihoods Depend on It

When environmental agencies set standards limiting toxic pollution in our waters, they theoretically aim to protect people who are exposed to these toxics by eating fish.  Currently, Washington state’s water quality standards protect only those who consume no more than one fish meal per month.  That means that those of us who eat more fish than this do so at our peril.    

Washington’s Department of Ecology had announced some years back that it intended to update the fish consumption rate (FCR) that in turn sets pollution limits for water and sediment cleanup across the state.  This was a welcome and long overdue step.  Washington’s current water quality standards are based on surveys of people’s fish consumption practices back in 1973-74.  Its cleanup standards are only slightly less outdated.

But Ecology’s effort is being fought by the industries responsible for contaminating Washington’s waters with such toxic pollutants as PCBs, mercury, and dioxins.  A more accurate FCR would mean more protective environmental standards, and these industries don’t want to have to pay the bill for reducing or cleaning up their own pollution.  And it appears that Ecology may be succumbing to industry pressure: it had been saying it would soon issue new standards, but now the timeline for updating its water quality and sediments rules may be uncertain.

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What Progress Looks Like: Washington State's Climate Change Preparedness Strategy

Earlier this month Washington State’s Department of Ecology released its integrated climate response strategy, Preparing for a Changing Climate.  The strategy again demonstrates that the state is a leader when it comes to preparing for climate change impacts (see also NRDC’s recent report examining climate preparedness in all 50 states).

What makes Washington a leader?  Well, the political leadership is willing to address climate change impacts, and the scientific community is active and engaged and generates the information and data needed to make decisions on climate change adaptation actions.  (None of this discussion, of course, should mean giving any less urgency to reducing greenhouse gas emissions in the first place).  Remarkably, the state has made rough economic calculations for the cost of inaction—$10 billion by 2020 as a result of increased health costs, flooding and coastal destruction, forest fires, drought, and other impacts—and the benefits of ecosystem services from forests, wildlife, and other natural resources.  For example, in 2006 recreational and commercial fishing supported more than 16,000 jobs and $540 million in personal income and outdoors recreation added nearly $3.1 billion to the economy. 

Armed with this information, lawmakers, policymakers, and agency regulators can begin to make the critical decisions needed to adapt to climate change.  As the state’s report notes, “Many options with low or no costs can be implemented today that will significantly improve our prosperity now and in the future.  In other cases, the costs of preparing our natural and built environments to cope with the impacts of changing climate will be more substantial.  Such costs are far less, however, than costs of inaction.”

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Three Chirps for Risk Reduction

A new study underscores the wisdom of reducing the risks of mercury and other pollutants rather than relying on risk avoidance measures such as fish consumption advisories.  Mercury’s adverse effects are not limited to human health; its harms are felt throughout our ecosystems.  According to this most recent study, released today by the Biodiversity Research Institute, mercury harms a broader swath of wildlife than previously recognized, including many bird species that are not piscivorous.  This finding echoes those of studies in the Great Lakes published this fall, which concluded that a larger number of species were adversely affected by mercury contamination than previously understood by scientists.

From a regulatory perspective, the harms of mercury contamination might be addressed by risk reduction – measures that require the sources of mercury pollution to reduce or prevent mercury releases into the environment – or by risk avoidance – measures that leave it to those who are exposed to protect themselves from mercury permitted to enter or remain in the environment.  The EPA’s recent rule regulating coal-fired power plants’ mercury emissions is an example of the former approach.  An example of the latter approach was the George W. Bush administration’s suggestion, upon proposing an exceedingly lax rule for power plants (ultimately vacated by the D.C. Circuit), that people protect themselves from the continued mercury contamination by consulting national and local fish consumption advisories.

I have elaborated the many perils of relying on risk avoidance in lieu of risk reduction elsewhere.  Among the limitations of depending on risk avoidance measures such as fish consumption advisories, ozone alerts, and “keep out” signs, are the facts that these measures are unjust and ineffective in practice. They simply don’t result in “the same amount” of protection for human health, as proponents of such measures hope. 

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The Utility MACT: Finally Telling Coal Plants They Can't Spew All the Mercury They Want

It was October 1990, George H.W. Bush was President, and the vote wasn’t close in either chamber: Congress overwhelmingly passed the 1990 Clean Air Act amendments, including provisions requiring EPA to reduce mercury emissions from major sources such as power plants.

Today the EPA at long last released its rule regulating mercury emissions from coal-fired utilities.  The fact that the largest remaining sources of mercury will finally be required to reduce their emissions is an important and historic development. And EPA’s steadfastness in the face of kicking and screaming by the dirtiest of the utilities down to the bitter end is a cause for celebration.  But thousands were needlessly poisoned during years of delay, and today is less an occasion for a victory lap than one for sober reflection.

How is it that one industry has wrangled nearly a quarter-century delay from the time Congress mandated “serious” reductions in toxic pollutants to the time it will actually be required to spew less mercury into our air? 

How have coal-fired utilities secured this reprieve despite the proliferation of advisories warning children and women of childbearing age to curtail – or cease entirely – their consumption of certain species of fish due to methylmercury contamination?  These advisories now blanket our nation’s inland and coastal waters, nevermind the importance of fish for neurological development, cardiovascular health, and its other nutritional benefits.

How have coal-fired utilities been granted this “pass” when it has become clear that mercury contamination is an environmental injustice – that among the people most exposed are low-income fishers, Asian-Americans and Pacific Islanders, and members of the various fishing tribes.  In a recent national study of women of childbearing age, whereas 15.3% of self-identified “White” women of childbearing age had blood mercury levels above the level deemed safe by EPA, fully 31.5%, of women who identified themselves as “other” – a category composed primarily of Native Americans, Pacific Islanders, those of “Asian origin,” and those of “mixed race” – had unsafe mercury levels.  Moreover, many American Indian tribes in the Great Lakes and elsewhere have rights to catch and consume fish, including rights protected by treaties with the United States.  Those rights have been undermined by mercury contamination. 

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Newest Research on Effects of Mercury Underscores Importance of Utility MACT

As EPA’s long-awaited rule curbing mercury emissions from coal-fired power plants heads to OMB for its review, new scientific studies suggest that the harms of mercury contamination may be more severe and more widespread than previously understood. According to the report Great Lakes Mercury Connections: The Extent and Effects of Mercury Pollution in the Great Lakes Region, released October 11, “the scope and intensity of the problem is greater than had been previously recognized.”  Despite these harms, utilities have been relentless in their efforts to derail mercury regulation.   (The most recent attempts of this industry and its allies in 25 states to prop up the recalcitrant “old dirties” that still hope to avoid reducing their mercury emissions is discussed by my colleague Rena Steinzor.) These ongoing efforts to undermine protection of human and ecological health are unconscionable. The release of this recent collection of scientific data only underscores this point.    

The Great Lakes Mercury Connections report summarizes the findings of 35 new scientific papers that are the result of an ambitious multi-disciplinary effort to enlarge understanding about the impacts of mercury contamination in the Great Lakes region. According to the report, regulatory controls on the sources of mercury pollution, namely discharges to the water and emissions to the air, “have resulted in substantial progress, but have not yet addressed the full scope of the problem.” Importantly, the report concludes that mercury concentrations “still exceed human and ecological risk thresholds” throughout the Great Lakes region.

Mercury emitted to the air from coal-fired power plants gets deposited to surrounding land and waters; ultimately, it makes its way into the food web, including fish tissue, in the form of methylmercury. In terms of human health, methylmercury is well-recognized as a potent neurotoxin. Exposure to even small amounts of methylmercury in utero or during childhood can lead to irreversible neurological damage, placing the developing fetus and children at particular risk. Because fish consumption is the primary route of human exposure to methylmercury, those who depend on fish for food are at the greatest risk from mercury contamination. The report confirms that fish – ordinarily a healthful source of food – remain contaminated at levels of concern in the Great Lakes region:

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New EPA Guidance Will Bring Some Needed Scrutiny of Institutional Controls at Toxic Sites, But Still Doesn't Require Checking That People are Actually Protected

At a growing number of contaminated sites across the nation, “cleanup” means that toxic contaminants are left in place while environmental agencies look to institutional controls (ICs) to limit human contact with these contaminants. Agencies hope that ICs such as deed restrictions or advisory signs will inform people about the continued presence of contaminants at a site and help them steer clear, thus avoiding exposure. Yet agencies have done little to ascertain whether these hopes are well-founded, particularly over the long term. Against this backdrop, EPA released guidance last month that for the first time seeks to systematize its evaluation of ICs. The guidance directs EPA investigators conducting five-year reviews to determine whether ICs called for as part of site cleanups have actually been implemented and maintained. This guidance is a welcome first step. But larger questions remain about agencies’ increased reliance on ICs and other forms of “risk avoidance.”  

Contaminated site cleanup tends to conjure images of so-called engineering measures such as dredging or excavation. These measures actually remove contaminated substances from the site or treat them so that they become less toxic. With toxic contaminants no longer present, risks to humans and the environment are reduced. Institutional controls, by contrast, are administrative or legal measures intended to address those instances in which toxic contaminants have been permitted to linger at a site, such that risks to humans and the environment remain. According to EPA, “ICs typically work by limiting land or resource use and/or by providing information that helps modify or guide human behavior at the site.”  Institutional controls include proprietary controls, such as restrictive covenants or easements; government controls, such as zoning ordinances or ground water use regulations; legal tools such as consent decrees that limit permitted activities at a site; and informational measures, such as state registries of contaminated sites, posted signage, and fish and wildlife consumption advisories.

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EPA's Apparent Effort to Appease Environmentalists over the Boiler MACT Rule Not Very Appeasing

The EPA has developed an inexplicable penchant for making decisions that please no one. So, it should come as no surprise that its announcement today regarding the ongoing, will-they-won’t-they Boiler MACT saga falls into this category too. The agency traded in the indefinite delay it gave itself last month to “reconsider” the final Boiler MACT standards it issued in February for a firm deadline:  The EPA now promises to complete the reconsidered final standard by the end of April of 2012.

Environmentalists responded to the EPA’s earlier announcement that it would indefinitely delay the reconsidered final standard with equal parts anger and shock. (See here and here) To allow this indefinite delay, the agency exploited a loophole in the Administrative Procedure Act, crafting a one-sided “justice” analysis that considered only industry’s interests while completely ignoring those of the public and the environment.

It’s good that EPA has given itself an actual deadline. But let’s be clear on the cost of the ten-month delay in finalizing the regulation. Because EPA failed to finish the regulation on the original deadline, mandated by statute, Americans will suffer:

  • Up to 5,500 premature deaths;

  • Up to 3,300 non-fatal heart attacks; and

  • Up to 1,300 cases of acute bronchitis

Truly, the price is too high. But it’s apparently not high enough for industry and its supporters in Congress. A bill to delay and dilute the Boiler MACT rule is pending in the House. Meanwhile, anti-regulatory voices continue to attack the rule, despite the delay.

It’s not clear what the EPA hoped to gain from this delay. But, if the agency actually follows through with the April 2012 deadline, at least the rule will be firmly in place in case a President even less friendly to public health and the environment should be elected in November 2012. That’s a small victory, to be sure, but one that may become more familiar as the elections start to kick into full gear.

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