With some fanfare, the EPA announced last week that it has selected a cleanup strategy for the Palos Verdes Shelf (PVS) Superfund Site off the coast of southern California – an area that has been termed “ the world’s largest DDT dump.” The EPA touts its plan as “a major milestone” that puts the site “on the road to remediation.” Nowhere, however, does EPA mention that this road is longer and more tortuous than it could or should have been. As I elaborated in an earlier entry, EPA’s selected remedy (its “preferred alternative”) provides for capping a much smaller area of contaminated sediment than another alternative EPA considered but rejected. Its selected remedy also delays the dates by which cleanup levels for DDTs and PCBs will be attained relative to the alternative – putting off until further in the future the time by which fish from the waters off the Palos Verdes peninsula will be safe to eat.
EPA’s press release continues in this self-congratulatory vein: “The EPA will spend more than $50 million to cap the most contaminated sediment on the shelf, as well as continue the highly effective public outreach program to protect at-risk populations from consuming contaminated fish.” The public outreach program to which EPA refers relies on fish consumption advisories that warn people to avoid or reduce their consumption of certain fish caught in the waters off the Palos Verdes peninsula. That is, it enlists a strategy, which I have termed “risk avoidance,” that asks people to alter their practices in order to protect themselves from contamination that persists in the environment. In this case, EPA and its partners have delivered this message by means of signs, brochures, and other forms of community outreach. The latest advisory recommends that everyone avoid eating white croaker, topsmelt, or barred sand bass caught in an area extending more than 30 miles from the Santa Monica pier south to the Seal Beach pier, and that, additionally, women and children should avoid barracuda or black croaker from this area. The advisory also includes less strict recommendations for a broader area of coastline, stretching more than 100 miles in total, including the entire coastlines of Los Angeles and Orange counties, and part of Ventura County.
It is unclear how the EPA can fairly describe its public outreach program as “highly effective.” Study after study has shown that fish consumption advisories frequently fail to reach or to be understood by their intended audiences. Even when these hurdles are overcome, people may decline to follow advisories’ recommendations: whether for economic, cultural, or other reasons, people may not be able to alter the way they prepare their fish or may not have the option to travel “elsewhere” to fish in less contaminated waters. The EPA is surely aware of the relevant figures. Among other things, the National Environmental Justice Advisory Council (NEJAC), a multi-stakeholder federal advisory body formed to advise EPA, made precisely these observations in its 2002 report Fish Consumption and Environmental Justice.
Indeed, the Fish Contamination Education Collaborative (FCEC) – a group established in part by the EPA in conjunction with the PVS cleanup – itself has arrived at similar conclusions. Based on data collected from anglers at nine locations along the coast from September, 2008 through May, 2009, 78% reported that they had not “received outreach” that had been conducted (in which volunteers reviewed the contents of a pamphlet with anglers). Moreover, fully 59% of those surveyed reported that they planned to eat the fish they caught there, even after outreach (prior to outreach, 72% intended to consume their catch).
Further, EPA’s declaration that its program is “highly effective” masks the fact that effectiveness might be defined in different ways, with quite different implications for individual and community health. Consider that, according to the FCEC survey, when people altered their practices in response to the fish consumption advisories, virtually no one had changed their fishing spots (0.5%) or changed their cleaning or cooking methods in a manner that would reduce contaminant intake (0.5%). Instead, people overwhelmingly “complied” with the advisories by shifting to “catch and release” fishing or by eliminating white croaker from their diet (89%). This finding raises the concern – again, brought to EPA’s attention by the NEJAC in 2002 – that every option will not be culturally appropriate or economically feasible for every person. For some people, then, the only way to avoid the harms of DDT and PCBs is to avoid the contaminated fish entirely. But this may mean curtailing or eliminating an ordinarily healthful component of their diet – with the loss of the significant health benefits (including those derived from omega-3 fatty acids and other nutrients found in fish) that this entails. And, in these difficult economic times, to suggest they “release” the fish they catch may amount to a recommendation that they forego their next meal.
Even EPA’s claim that its outreach program “protect[s]” at-risk populations from consuming contaminated fish” is misleading. Risk avoidance measures don’t reduce the risk or the contamination; rather, they rely on those people who are exposed to avoid the risks. When EPA enlists fish consumption advisories as a response to the contamination of the PVS that its selected remedy will leave in place, for a longer time, it in fact asks people to protect themselves. Risk avoidance is not risk reduction; the two represent quite different regulatory approaches.
While the public might reasonably debate the tradeoffs to be made between a cheaper but less thorough and expeditious cleanup, on the one hand, and a more expensive but more expansive and rapid cleanup, on the other, the EPA’s rhetoric thwarts meaningful and informed exchange. EPA’s enthusiastic press release goes too far: by misstating facts and glossing over real issues, it disserves the goals of public discourse and environmental justice.
Catherine O'Neill, CPR Member Scholar; Professor of Law, Seattle University School of Law. Bio.
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