EPA Chides Polluters for Downplaying Risk From Portland Harbor Superfund Site; Still, Must Honor Fishing Tribes' Rights

by Catherine O'Neill

February 11, 2010

In a welcome move, EPA recently took polluters to task for their attempt to downplay the risks to human health and the environment from the Portland Harbor superfund site along the Willamette River in Portland, Oregon (h/t Oregonian for noting the EPA action). As part of the cleanup effort for the site, the polluters, known as the Lower Willamette Group (LWG), had agreed to conduct an assessment of the risks posed by the contaminants there. This risk assessment will serve as the basis for determining vital questions about cleanup at the site, including the degree to which the contaminants will be remediated and the extent to which health risks will actually be reduced. Because the members of the LWG will likely have to foot much of the cleanup bill, it's unsurprising that they sought to lowball the risks to humans and the environment: the lower the risks at a site, the less expansive – and less expensive – a cleanup is likely to be. Any such tendencies are meant to be kept in check by the EPA however, which oversees LWG’s risk assessment and, in the end, sets the standards for the Portland Harbor site. To its credit, EPA’s preliminary comments raise several pointed objections to the LWG risk assessment, ultimately concluding that it improperly “minimize[s] the risk to human health and the environment.”

Consider one example of LWG’s efforts to belittle the risks from the site. Portland Harbor is contaminated with polychlorinated biphenyls (PCBs), dioxins, mercury, polycyclic aromatic hydrocarbons (PAHs), and other toxic pollutants known to cause cancer and harm human health. Many of these contaminants bioaccumulate in fish tissue; humans are exposed when we eat these fish. In fact, for many of these pollutants, fish consumption is the primary route of human exposure. As a consequence, a crucial variable for assessing the risks posed by the site is the answer to the question: how much fish do people consume?

As LWG is aware, the more fish people eat, the higher their risks -- and the more ambitious the cleanup that would be needed. So the LWG risk assessment used figures suggesting that people here didn’t eat very much fish. Remarkably, it tried to portray these figures as high-end estimates of fish intake. And it concluded that things weren’t so bad for those who would eat fish from the river.

To follow what LWG did, one needs a bit of background. EPA has published guidance on the matter of fish consumption rates in the United States, based on its evaluation of a number of studies of human consumption practices. EPA suggests in this guidance that a fish consumption rate of 17.5 grams/day (roughly two 8-ounce meals per month) is representative of the general American population, while a fish consumption rate of 142 grams/day is representative of higher-end, “subsistence” populations in the United States. EPA further suggests that these numbers function as default values – recognizing that, for some populations in some places, these values will greatly understate true fish intake. This is likely to be the case, for example, where the populations involved are fishing tribes, or communities of color and low-income communities that depend on fish – all groups relevant to cleanup at the Portland Harbor site.

LWG evaluated the risks at the Portland Harbor site based on three possible assumptions regarding fish intake: 17.5 grams/day; 73 grams/day; and 142 grams/day. LWG boldly termed these rates, respectively, “high,” “higher,” and “highest.” This marketing ploy would be laughable if the matter weren’t so serious.

Fortunately, EPA didn’t buy what LWG was selling. In its comments, EPA first reminded LWG that the 17.5 grams/day figure represents a general population that includes a host of non-consumers of fish and does not include tribal or subsistence fishers. As EPA chided LWG, this figure thus “should not be referred to as a ‘high’ ingestion rate, but rather as a ‘low’ ingestion rate.” Second, EPA corrected LWG’s characterization of 142 grams/day as the “highest” rate of fish intake to be considered and reminded it that true subsistence consumption would entail a much greater rate. There are several relevant studies documenting contemporary tribal fish consumption at much greater rates – for example, a well-known 1994 study by the Columbia River Inter-Tribal Fish Commission that registered a maximum consumption rate of 972 grams/day – and EPA rebuked LWG on its attempt to mischaracterize the relevant data.

EPA is to be commended for declining to let the polluters call the shots at the Portland Harbor site. Their response to the LWG risk assessment sets an appropriate tone. And it gives reason for hope that the agency will continue to take seriously its responsibilities to oversee this and other cleanups.

There is, however, a long way to go in the process and many issues yet to be addressed. For example, there is the point – not directly addressed in EPA’s comments – that it is not only contemporary tribal consumption rates that are relevant to cleanup at the Portland Harbor site but also historical tribal consumption rates and practices. The fishing tribes in the Columbia River Basin and elsewhere have rights – secured, in many instances, by treaty – to take and eat fish as they did prior to the arrival of European settlers to this region. These rights have not always been honored by the United States and its citizens, however. As a result, contemporary tribal fish consumption rates can be said to be artificially “suppressed” from historical rates – due to denial of access to fishing places; inundation of tribal fishing places; tribal members being arrested and their gear confiscated; and depletion and contamination of the fishery resource, often at the hands of non-Indians. Cleanup at places such as Portland Harbor, where tribes and their rights are affected, ought not be gauged against what tribal members today consume, but by what tribal members would consume, were the fishery resource not depleted and contaminated, and were they able to exercise fully their rights to take and eat fish.

The United States today has an obligation to ensure that tribes’ fishing rights are honored. Among other things, the federal government has the duty to see that these rights are not undermined by environmental degradation. A right to take and eat fish is obviously made hollow if the fish are permitted to be too contaminated for human consumption. As it seeks now to clean up that contamination, the United States, through its EPA, needs to keep its treaty promises in mind. This means that EPA needs to redouble its efforts to work with the tribes, on a government-to-government basis, to determine the relevant measures of risk and goals for remediation at the Portland Harbor site. Ultimately, this means that EPA needs to assure restoration that will support tribes’ rights to fish as they once did – and as they seek to do in the future.

There is, however, hope for a new era.

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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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