New Fish Consumption Advisory in California Another Lesson in the Problems with 'Risk Avoidance' Approach

by Catherine O'Neill

July 02, 2009

California has expanded its fish consumption advisory, warning people to curtail or eliminate entirely their consumption of nineteen species of fish caught off the Palos Verdes Peninsula in Los Angeles County.  Among the new advisory’s recommendations is that humans should 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. The primary contaminants of concern behind these advisories are DDT and PCBs (both human carcinogens) but mercury and a host of other substances also threaten the health of the Santa Monica and San Pedro bays – and the health of the humans that depend on them.

One lesson to be taken from our impact on the environment in the Los Angeles area comes from our response to what has been billed as “the world’s largest DDT dump” – a 17-square-mile-area just off the coast that now comprises the Palos Verdes Superfund Site.   From 1947 to 1971, the Montrose Chemical Corp. discharged some 1,800 tons of DDT into the sewer system, which flowed into the ocean.  DDT was determined to be so toxic that it was banned in the United States in 1972.  Four decades later, we are poised to address this contamination … sort of.

Although the federal Superfund law (the Comprehensive Environmental Response, Compensation, and Liability Act or CERCLA) was passed in 1986 to require cleanup of such contaminated sites, the U.S. EPA didn’t list the Palos Verdes site for cleanup until 1996.  In the meantime, in 1991, the California Office of Environmental Health Hazard Assessment issued its first round of fish consumption advisories, warning against the dangers of consuming fish caught in the area.  Now, in June of 2009, EPA has finally come forward with a specific proposal for cleanup at the Palos Verdes Shelf Site.  The EPA’s “preferred alternative” calls for (1) continued reliance on fish consumption advisories; (2) a “small cap” – covering 320 acres of the most contaminated sediments with clean silt and sand; and (3) natural recovery.  EPA rejected an alternative that would have enlisted the same combination of tools, but replaced the small cap with a “large cap” – doubling the size of the capped area to 640 acres, while trimming 4 to 8 years off of the time before DDT cleanup levels would be attained (for, respectively, DDT in the water and sediments), and attaining PCB cleanup levels in the sediments “immediately.”   EPA had earlier ruled out actually dredging and treating the contaminated sediments, because this option was “cost prohibitive” and raised questions of technical feasibility.

By relying heavily on fish consumption advisories, EPA’s proposal requires people to protect themselves from this contamination by changing the fish they eat to avoid the risks that result. The proposal is thus an example of an environmental “regulatory” approach that replaces risk reduction – strategies that require the sources of pollution to prevent, reduce, or cleanup contamination – with risk avoidance – strategies that look to the people exposed to avoid contamination that is left largely unabated. As I have argued elsewhere, while risk avoidance strategies may appear to be cheaper in the short term, they are often more expensive in the long run. There are several other problems with risk avoidance as well, two of which the proposal for the Palos Verdes site brings to the fore. First, these strategies fail actually to protect human health. And second, the burdens of risk avoidance tend to fall disproportionately on particular groups, raising issues of environmental justice.

Risk avoidance strategies are often ineffective.  The EPA claims that the fish consumption advisories (in cleanup jargon, these are known as “Institutional Controls”) “would continue to protect human health until remediation goals for fish are met,” which, under its proposal, will not be until as late as 2039 for DDT (there is no time given for meeting the cleanup goals for PCBs). But in order for fish consumption advisories to work, their message must be received and understood and, ultimately, human behaviors must be changed. Yet there is ample evidence, from California and beyond, that fish consumption advisories often do not reach their intended audience.  A 2004 study, for example, found that only 45% of individuals fishing in the Newark Bay Complex were aware of the relevant fish and crab consumption advisories.  Notably, people of color, people with limited English proficiency, people with limited formal education, and low-income people evidence the least awareness.   Even when people report having seen signs or heard about advisories, they often cannot recall accurately the recommendations.  This point was borne out by recent research conducted by cultural anthropologist Ana Pitchon, who interviewed people fishing the piers in the Los Angeles area.  She reported: “People have told me they’ve gotten pamphlets from random [groups] who come out on the pier but really that there’s limited information... People know that [the danger] is there, but they’re not sure which species to be aware of."  And it is notoriously difficult to get people to change their behaviors.  Each of these hurdles, moreover, looms larger when those affected include people who don’t speak the language in which advisories are dispensed, don’t have the economic means to alter their practices, or don’t share the culture of the dominant population.  These concerns are particularly germane to a city as diverse as Los Angeles and to an economic climate in which food insecurity is a concern for a growing number of families.   Does EPA really believe that fish consumption advisories will protect the health of those who don’t understand them or who go to the piers to bring home dinner or for whom fish and fishing are culturally vital?  Against this backdrop, EPA’s preferred alternative, which delays cleanup for even 8 more years, is troubling.

Risk avoidance is also unjust.  The burdens of risk avoidance are likely to fall disproportionately on people of color and low-income people, because these are the people who are most likely to depend on fish caught from the Santa Monica and San Pedro bays.  These people will then face the “choice” of eating fish that are contaminated to the point of unacceptable cancer risks or foregoing these fish – but also foregoing the significant health benefits of eating fish.  And, for some, avoiding fish in accordance with California’s advisories may also mean foregoing a meal.

So while it may seem expensive or infeasible – or politically unimaginable – to require the Montrose Chemical Corporations of the world not to dump toxins into our waters in the first place or to demand that they cleanup existing contamination quickly and completely, the alternative comes with serious and widespread costs. Sadly, it is an alternative that we have too often chosen, and one that distributes its harms unequally.

For this case, there is still time to submit comments to EPA on its proposal for the Palos Verdes Shelf Superfund Site (the deadline is July 6).  For the future, regulatory decisions should opt for risk reduction over risk avoidance.

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Catherine A. O'Neill is a Habitat Policy Analyst for the Northwest Indian Fisheries Commission, and a former Professor of Law at Seattle University School of Law.

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