On a warm June evening, fishermen dot the banks of the Coal River near St. Albans.
Chris Hesse of St. Albans sits on the ground, his pole propped on a tree limb stuck in the mud. But he has no intention of eating the fish that he catches tonight.
That’s because he’s afraid of what’s in the fish.
Hesse said there are plenty of people in the area who eat the fish, and will even pay for it.
“I mean, it’s really bad,” he said. “People will sit there and wait for them to fish and catch carp and pay for it.
“It’s just something that I personally wouldn’t do.”
One reason Hesse and other people don’t want to eat the fish is because there are high levels of mercury in the water, and all of West Virginia’s waterways are under a statewide fish advisory.
Despite that, last month the West Virginia Department of Environmental Protection announced it intended to allow more mercury in the state’s waterways. Mercury can accumulate in the body and cause birth defects and brain damage.
But a DEP study shows West Virginians eat less fish than the national average.
Therefore, residents won’t be affected by higher levels of mercury, they say.
Critics say tools like fish advisories are being misused to justify more pollution.
And they say low-income people who rely on fish for food, in spite of the advisories, are the ones who will be hurt the most if the DEP succeeds in raising the mercury standard.
The federal Environmental Protection Agency recommends that mercury levels not exceed 0.3 parts per million.
But based on the DEP’s recent survey, the agency wants to allow mercury levels up to 0.5 parts per million. To do this, they have to get the EPA’s approval.
Denise Keehner of the EPA’s Office of Water said most states have followed her agency’s recommendations.
“You can imagine that is easier for EPA and a smoother process for EPA to approve water quality standards a state submits if in fact the state has followed EPA’s recommendations,” she said.
Of the dozen states which have implemented mercury standards so far, West Virginia is the only one proposing a less stringent level than the EPA recommends. Oregon even strengthened its standard.
The West Virginia DEP says its study proves that more mercury in the state’s waters won’t hurt state residents.
“The more fish people consume in a given area, the lower that number has to be in order to keep the public safe,” said Mike Arcuri, an environmental resources analyst with DEP’s water quality standards program.
“And then if people are consuming lower numbers of fish, that number in the fish tissue can be a little bit higher because they’re not taking as much in,” he said.
It’s this logic, that lower consumption justifies more pollution, that concerns Catherine O’Neill, a professor at the Seattle University School of Law and a scholar with the Center for Progressive Reform.
In 2002, she was a consultant to the National Environmental Justice Advisory Council, a group that was advising the EPA on fish contamination.
“We actually warned of just this sort of outcome that we’re seeing in West Virginia,” she said.
“The concern was if states and the federal government continue to look to fish consumption advisories as the solution to mercury contamination, instead of actually reducing the contamination, that eventually this is what we would see,” she said.
O’Neill says it’s a cycle: the water is polluted, fish consumption advisories are posted, people eat less fish, and then the state uses the fish consumption data to justify more pollution.
She says West Virginia is the first place she’s seen her prediction so perfectly borne out.
Janice Nease of Coal River Mountain Watch agrees.
“The fact that West Virginia is eating a lot less fish, doesn’t that seem to tell him that we are afraid to eat the fish?” she asked.
From the air to the water
Mercury has always existed in West Virginia’s waterways—it’s a naturally-occurring element. But since humans began burning fossil fuels for energy, the amount of mercury in the air and water has increased.
There’s no easy and inexpensive way to remove mercury from the water.
To crack down on mercury in fish, the DEP would have to go after the source. In West Virginia, three-fourths of the mercury air emissions come from coal-fired power plants.
Power plants in other states also contribute to mercury in West Virginia’s waters. Conrad Volz is the director of the Center for Healthy Environments and Communities at the University of Pittsburgh.
“The problem with mercury is that it is not only coming from sources to your west, because your prevailing winds are very much like ours, the problem is that also you have power plants just like we do,” Volz said.
Volz has conducted research on power plant deposition, and concluded that local deposition—fallout from the air to the water, like acid rain—plays a substantial role in the bioaccumulation of mercury in fish.
Small amounts of mercury aren’t harmful to humans. But too much causes problems.
High levels of mercury can harm fetuses and small children whose brains are still developing. In adults, too much mercury can cause headaches and memory loss.
Many of these symptoms are reversible, but children and pregnant women are the most vulnerable. Damage can be permanent for those who have particularly heavy or prolonged exposure.
An unacceptable choice
Higher-educated, higher-income people are the ones who are most likely to know about and follow fish advisories, Volz says. This makes West Virginia’s disregard for its fish-eating population is an environmental justice issue.
“Your state cannot tell me that there isn’t a group of people who live more on a subsistence basis because I know there is. I know there is,” he said.
“And there’s no way the state can survey those people unless they’re going door-to-door in hollers and places where people may not even have telephones.”
What this issue boils down to, Volz says, is that fish advisories aren’t reaching everyone either.
And even if everyone understood these fish advisories and followed them, it would still take a toll on public health because fish are a great source of nutrients.
Fish are the best source of omega-3 fatty acids, which have numerous health benefits. Large fish like swordfish and shark have more mercury and should be avoided, but the EPA recommends eating up to two meals a week of most low-mercury fish, like canned light tuna, shrimp, catfish and salmon.
Catherine O’Neill of Seattle University says forcing people to choose between the health benefits of fish and the risk of getting mercury poisoning isn’t a fair choice.
“It’s not acceptable as a ‘regulatory strategy’ to tell women and children, and in fact all citizens, in West Virginia to stop eating fish for several decades of their lives,” she said.
New regulations on the horizon
Mike Arcuri of the West Virginia DEP says the agency’s proposed regulation isn’t in response to any suggestion by the EPA, but something the DEP felt was needed.
“But the reason we wanted to do this, we just wanted to support what we felt all along, that our consumption rates were lower than the national averages that EPA was coming up with,” he said.
Right now there are no laws regulating mercury emissions from power plants, though most power plants have installed mercury controls.
The EPA issued a Clean Air Mercury Rule as part of the Clean Air Rules of 2004, but it was vacated by the Washington D.C. Circuit Court.
EPA officials say that since the Clean Air Mercury Rule has been vacated, the agency is determining its next move and formulating new regulations.
The EPA also has the final say over whether the West Virginia DEP will be allowed to implement a less stringent mercury standard.