Theresa Labriola

October 24, 2001

Thirty years after the passage of the Clean Water Act, the Environmental Protection Agency (EPA), Food and Drug Administration, federal, state and local governments continue to post new warnings against the consumption of fish due to heavy metal contamination, specifically mercury.  This summer, while the media publicized new advisories, with headlines reading "State Issues New Warning on Mercury in Fish",[1] "DNR Expands Alert for Mercury in Fish"[2] and "Warnings Set on Freshwater N.H. Fish",[3] they also criticized the government for not going far enough to warn and subsequently protect all citizens, stating "People Not Warned About Mercury in Fish; Toxic Danger Lurks as Anglers Seek 'Whatever Bites' in the Columbia."[4]  The alerts target those assumed to be in the highest risk category, women of childbearing age and children, and overlook another vulnerable population, subsistence cultures and fishermen.  The cultural injustice in our current mercury standards for fish consumption strikes subsistence communities.  The failure of EPA to adequately represent fish consumptive patterns of different communities in their mercury standards results in futile warnings and inadequate protection and allows pollution to continue at levels toxic to many communities.

Although mercury occurs naturally in the environment, human activities, primarily burning coal and other fossil fuels, have increased its prevalence.  Anthropogenic mercury, emitted in trace amounts, deposits in our water.  Once deposited, it reacts with bacteria that convert mercury into extremely toxic methyl- and dimethylmercury which small organisms easily absorb.[5]  These compounds penetrate biological membranes, store in fatty tissues of aquatic animals and undergo bioaccumulation as they travel up the food chain through the tissues of prey and predator.[6]  In spite of all the work to reduce the risk associated with persistent, bioaccumulative and toxic pollutants such as mercury, our nation still finds such pollutants in its fish supply.  Heavy metal contamination in our fish supply disproportionately affects communities that depend on fish for subsistence.

Although mercury is the leading cause of fish consumption advisories in this country, the advisories do not restrict fish consumption, but merely recommend maximum intake.  For example, between 1994 and 1997, the total number of advisories in the United States increased by 80 % from 1993 to 1997, fourteen states adopted advisories statewide for their fresh or coastal waters and the number of water bodies under advisory increased from 1,278 to 2,299.[7]  In spite of the rising number of advisories, seafood consumption continues to rise.  Americans eat more fish as a way to improve health and reduce cancer risk.  The American Heart Association advised in its dietary guidelines released earlier this year that all Americans eat at least two servings weekly of fish.[8]  "That's because fish, particularly cold-water, fatty fish such as salmon, mackerel, sardines, lake trout and albacore tuna, contain omega-3 fatty acids that protect against heart disease."[9]  The competition between advisories that recommend restricting certain fish intake and studies encouraging fish consumption for health causes people to gamble with their health.

Recognizing the limitations of issuing consumption advisories, agencies use a variety of regulatory measures to minimize human exposure to toxins contained in fish.  But, the regulations do not go far enough to protect subsistence communities, let alone the average consumer.  Regulatory measures include water quality[10] or cleanup[11] requirements that permit only certain "acceptable" amounts of contamination to remain in the aquatic environment, thereby reducing contaminants concentrated in the fish.[12]

The current mercury standards for fish consumption do not adequately reflect the consumptive habits of most fish eating Americans and more specifically, subsistence communities.  Variations in consumption patterns occur for many reasons, including geographic location and seasonal availability of fish.  Coastal communities, where fishing is an integral part of the economy or the culture, are more likely to eat fresh fish and consequently consume higher mercury levels.[13]  Fishermen may receive a share of the catch as part of their compensation and the supply of fish may result in a lower price, incentivizing coastal families to eat more fish to make ends meet.  For both cultural and economic reasons, a significant portion of the Laotian community in Northern California derives their food from homegrown vegetables and subsistence-fished seafood.[14]  Specifically, the amount of fish eaten by the average Laotian community member is well above the advisory limit for Bay Area-caught fish, fish with high concentrations of mercury and other heavy metals.[15]  For the First Nations of the Pacific Northwest, fish and fishing not only maintain the physical health of individuals, but also maintains the cultural health and integrity of the group.[16]

This inadequate standard has a greater effect than merely skewing the numbers in fish consumption advisories; it also results in inadequate water quality standards.  In setting water quality standards, agencies typically use an "average American's"[17] fish consumption practices, which is 6.5 grams per person per day.[18]  Socio-demographic and cultural differences lead to varying rates of fish consumption and the consumption rates used to develop government guidelines for mercury exposure do not accurately reflect the variations in consumption patterns across the country.  By using "Average American" consumptive patterns, EPA fails to set water quality standards that protect the health and safety of subsistence communities.

By failing to account for various cultural and socio-economic differences, environmental standards will underestimate the risk of these communities, establish water quality and cleanup levels that do not protect an average intake of fish and therefore place the environmental harms that have attended industrial and agricultural progress on the shoulders of these communities.[19]  "This maldistribution of environmental benefits and burdens is one hallmark of what has come to be called environmental injustice."[20]  By maintaining the current standards, EPA legalizes the poisoning of minorities.  The communities that subsist on fishing must not be made to choose between their health and their culture.

To minimize this environmental injustice EPA should use a more representative standard of consumption that does more than to protect the "Average American."  Based on data from a new fish consumption study, EPA has proposed raising the default fish consumption rate almost threefold, to 17.80 grams per day.[21]  This value more adequately represents consumption of freshwater and estuarine fish by 90% of the general population.[22]  In recognition of variations among the populations, EPA has also proposed a new default fish consumption rate of 86.30 grams per day for "subsistence fishers/minority anglers."[23]  This value represents the consumption of freshwater and estuarine fish by 99% of the general population.[24]  Further, EPA urges States and Tribes "to use a fish intake level derived from local data on fish consumption in place of these default values when deriving AWQC [Ambient Water Quality Criteria], ensuring that the fish intake level chosen be protective of highly exposed individuals in the population."[25]  These more representative levels of fish consumption will require increased regulation of mercury emissions into the air and water and, indirectly, into our human communities.

Setting water quality standards for receiving water with a designated use of fishing requires EPA to estimate the amount of contaminated fish a family will eat.  By failing to adequately incorporate consumptive patterns of communities culturally and economically dependent on fishing into current mercury standards for fish consumption, EPA perpetuates injustice.  The subsistence communities dependant on their physical surroundings should not be forced to sacrifice their culture, their health and the health of their children.  "Physical surroundings play a smaller role in the environments of those who buy bottled water and drive to their workplaces than of those who either cannot or choose not to do so."[26]  The current mercury standards for fish consumption must rise to protect all of our most vulnerable communities, including those who depend on the environment and cannot choose or decide not to choose an alternative consumptive behavior.

______________

[1] Michael Lasalandra, State Issues New Warning on Mercury in Fish, BOSTON HERALD, July 25, 2001, at 1.

[2] Kenneth R. Lamke, DNR Expands Alert for Mercury in Fish, THE MILWAUKEE JOURNAL SENTINEL, August 24, 2001.

[3] Warnings Set on Freshwater N.H. Fish, BOSTON GLOBE, September 1, 2001, at B2.

[4] Rober McClure, People Not Warned About Mercury in Fish; Toxic Danger Lurks as Anglers Seek 'Whatever Bites' in the Columbia, SEATTLE POST-INTELLIGENCER, July 30, 2001, at A1.

[5] Sigmund Kakrzewski, PRINCIPLES OF ENVIRONMENTAL TOXICOLOGY 200, (2nd ed. 1997).

[6] Id.

[7] Sam Sasnett et al., An Environmental Protection Agency Multimedia Strategy for Priority Persistent, Bioaccumulative, and Toxic Pollutants, in PERSISTENT, BIOACCUMULATIVE, AND TOXIC CHEMICALS II ASSESSMENT AND NEW CHEMICALS 114, 115(Robert L. Lipnick et. al. eds., 2001).
[8] AN EATING PLAN FOR HEALTHY AMERICAN: THE NEW 2000 FOOD GUIDELINES, OUR AMERICAN HEART ASSOCIATION DIET, (2000) available at http://www.americanheart.org/dietaryguidelines/index.html.

[9] Kerry Neville, Here's the Skinny on Fatty Fish; Getting Plenty of Omega-3 Fatty Acids From Eating Fish Helps Your Heart, SOUTH FLORIDA SUN-SENTINEL, October 11, 2001.

[10] See, e.g., Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1313(a)(1) (requiring states to create water quality standards) (1994).

[11] See, e.g., Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-75 (1994 & Supp. 1997).
[12] Catherine O'Neill, Variable Justice: Environmental Standards, Contaminated Fish, and Acceptable Risk to Native Peoples, 19 STANFORD ENVIRONMENTAL LAW JOURNAL 10, 12, Jan. 2000.
[13] THE ONE THAT GOT AWAY: FDA Fails to Protect the Public From High Mercury Levels in Seafood, Mercury Policy Project and California Communities Against Toxics, 12 April 2000.
[14] Stephanie Tai, Environmental Hazards and the Richmond Laotian American Community, 6 ASIAN LAW JOURNAL 189, 191 May 1999.

[15] Id.

[16] O'Neill, supra note 12, at 15.

[17] Id.

[18] Id. at 17.

[19] Id. at 13.

[20] Id. at 14.

[21] See Notice, Draft Water Quality Criteria Methodology Revisions, 63 Fed. Reg. 43,756, 43,762 (Aug. 14, 1998).

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Tai, supra note 14, at 193.