Tribes, tribal communities and interested persons:

This is a copy of the National Environmental Justice Advisory Council's Fish Consumption Draft Report. It was developed in preparation for the upcoming NEJAC meeting of December 3-6, 2001 in Seattle, Washington. The report is the product of a NEJAC Fish Consumption Work Group, with assistance from Professor Catherine O'Neill of the Seattle University School of Law. A copy of the report and a summary is attached.

The National Environmental Justice Advisory Council (NEJAC), is a federal advisory committee that provides independent advice and recommendations to EPA on environmental justice issues, currently is focusing on the relationship between water quality, fish consumption, and environmental justice. Towards that end, NEJAC convened a Fish Consumption Work Group that has been developing this discussion draft Report over the last year and a half.

The issue of contaminated and depleted aquatic ecosystems is particularly significant for tribes and Alaska Native villages because many are highly reliant on a subsistence-based life-style. Tribes and Alaska Native villages consume and use these resources not only to meet basic nutritional and economic needs, but also to meet cultural, traditional, and/or religious purposes. Additionally, for many tribes, polluted aquatic ecosystems impair or even prohibit their ability to exercise treaty-protected rights to hunt, fish, and gather.

NEJAC will be engaging in deliberative dialogue on this issue on December 3-6, 2001 in Seattle, Washington and taking public comment on the evening of December 4, 2001. We understand that written comments on the draft Report and the development of NEJAC's advice to EPA on this issue are welcome and highly encouraged from tribes and Alaska Native villages through January 2002.

IEN welcomes your input and the input of all groups. We encourage your sharing the draft with others. For additional information, contact Danny Gogal, Designated Federal Official for NEJAC's Indigenous Peoples Subcommittee, at 1-800-962-6215 or by e-mail at gogal.danny@epa.gov, or Jana L. Walker, Vice Chair of NEJAC's Indigenous Peoples Subcommittee and member of its Fish Consumption Work Group, at ndnlaw@sprintmail.com.

Summary of Draft NEJAC FCW Draft1_111501a3.pdf

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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?

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 the 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 - toserve 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 low-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 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 environmenta 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 research. 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.

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 the 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 furans. 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 these resources. It considers how agencies can identify, acknowledge, and meet the real needs of those who are affected - how they can work 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 protection efforts.

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.

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.

    NEJAC FCW Draft1_111501a3.pdf