AmeriScan: April 27, 2005

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Supreme Court Upholds Individual's Right to Sue Pesticide Makers

WASHINGTON, DC, April 27, 2005 (ENS) - The United States Supreme Court today upheld the right of people to sue pesticide manufacturers to compensate them for injuries caused by toxic pesticides.

In Bates v. Dow Agrosciences, the high Court was asked to determine whether federal pesticide law closes the courthouse doors to people injured by pesticides.

In Bates, Texas farmers applied an herbicide called “Strongarm” to prevent weeds in their peanut crops, but Strongarm stunted the peanut crops, causing serious economic damage.

The Texas farmers went to state court in an effort to make the pesticide makers pay for damage to the crops. The pesticide makers claimed they are shielded from court challenges by federal law, the key issue in dispute before the Supreme Court.

The court ruled against the pesticide companies today.

The importance of the case goes beyond the right to recover for crop damage. The Supreme Court also ruled that people harmed by pesticides can hold pesticide companies accountable in state courts for making and distributing dangerous chemicals. Pesticide companies had claimed that federal law shields them from all such suits.

Under federal law, pesticide companies must write and update labels for their products that guard against adverse health and environmental effects. The U.S. Environmental Protection Agency (EPA) approves the labels submitted by the companies under a risk-benefit standard that does not prevent all harm to the public.

Dow Agrosciences, joined by the Bush administration, had argued that federal law insulates pesticide makers from injured parties’ lawsuits. The Supreme Court rejected this argument, upholding the right to sue for harm caused by defectively designing, negligent testing, and misbranding a pesticide.

While federal law preempts state labeling “requirements,” in today’s ruling, the Supreme Court recognized that:

A "requirement is a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement."

"The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption," the high court ruled. "If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly.”

The friend of the court brief written by Earthjustice, Public Citizen, and Trial Lawyers for Public Justice, urged the Court to preserve citizens’ rights to recover for harms caused by pesticides on behalf of: Physicians for Social Responsibility, Farmworker Justice Fund, Beyond Pesticides, Sierra Club, Natural Resources Defense Council, Defenders of Wildlife, Public Citizen, and Trial Lawyers for Public Justice.

Patti Goldman, managing attorney for Earthjustice in Seattle, primary author of a friend of the court brief submitted by these public health and conservation groups, called the decision a victory.

“This decision is a victory for fairness to individuals who are poisoned by toxic pesticides," said Goldman. "This decision makes pesticide manufacturers accountable for the harm their products cause and creates incentives for those corporations to refrain from promoting dangerous pesticides and to make sure their labels disclose and guard against the risks posed by these products.”

A majority, 58 percent, of U.S. adults believe that chemicals and pollutants are more of a threat to people like them now than they were 10 years ago, according to a Harris Interactive online survey of 2,130 U.S. adults conducted between April 15 and 19 for "The Wall Street Journal Online's Health Industry Edition."

The public appears to be more worried about outdoor air pollutants and chemicals than those indoors but about one in five adults report that they or someone in their household has experienced a chronic health problem, such as allergies, lung condition, or chronic fatigue, attributed to indoor air pollutants or chemicals. Many adults are taking proactive steps to reduce their exposure to potentially harmful chemicals and pollutants, the survey found.

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Pipeline Operator to Pay $5 Million for Suisun Marsh Oil Spill

SACRAMENTO, California, April 27, 2005 (ENS) - A Kinder Morgan Energy Partners (KM) subsidiary has pleaded guilty to four misdemeanor counts in connection with a pipeline rupture in 2004. The broken pipe dumped 103,000 gallons of diesel fuel into the Suisun Marsh, California's largest wetland and a Pacific Flyway haven for more than a million migrating and resident shorebirds and waterfowl.

On the first anniversary of the spill, the pipeline operator KM subsidiary Santa Fe Pacific Pipeline, L.P. (SFPP) pled guilty to two misdemeanor counts of discharging the diesel fuel into the marsh, and also to two misdemeanor counts of failing to promptly report the spill to responsible state agencies.

The rupture occurred April 27, 2004 in the company's pipeline that runs through the 55,000 acre Suisun Marsh. The pipeline carries diesel, jet fuel and gasoline from Bay Area refineries to Concord, Sacramento, Rocklin, Chico and Reno.

"Polluting the environment isn't just wrong, it is a crime," said California Attorney General Bill Lockyer. "The pipeline operator's conduct in the Suisun Marsh case warranted prosecution, and Kinder Morgan has repeatedly and unlawfully failed to report spills or breaches in their pipelines. We cannot wait for disaster to strike. California's pollution laws must be obeyed."

To resolve the first enforcement action arising from the Suisun Marsh spill, SFPP will pay more than $5 million in fines, penalties and restitution.

The money will fund investigation and prosecution of environmental crimes at the state level and in Solano County, help restore the Suisun Marsh's ecosystem to health, and reimburse the state and Solano County, where the marsh is located, for the cleanup expenses and legal costs incurred by taxpayers.

Solano County District Attorney David Paulson, who also is president of the California District Attorneys Association, said, "This Kinder Morgan operator has repeatedly failed to respond to civil action. We filed criminal charges in order to demand accountability in the future and to force this company to overhaul its business practices. It is essential that environment and public health concerns take precedent in emergency response decisions."

SFPP has agreed to a three year probation. As a condition of probation, SFPP must reform its business practices in order to prevent future harm to the environment and public health.

The agreement includes provisions designed to ensure proper reporting of discharges and threatened discharges, strengthened pipeline inspection and maintenance procedures, and installation of sensors to better detect problems.

SFPP failed to notify emergency responders for nearly 18 hours after their computer indicated a major failure within the pipeline system. State law requires operators to notify emergency responders immediately when there is a threat of a spill.

Paulson said his office filed civil prosecutions relating to unreported by spills by SFPP in the Elmira area, east of Vacaville, in 1996, and again in 2000. At the time, SFPP agreed to periodic future inspections of their pipeline and to make an immediate report of any leaks.

A broad statewide investigation conducted by Lockyer's office documented numerous additional incidents in which Kinder Morgan subsidiaries failed to report spills as required by state law. Even when KM operators reported a release, the reports often were delayed and contained insufficient information.

Kinder Morgan is the largest independent refined petroleum products pipeline system in the United States, in terms of volume delivered. Its subsidiaries operate more than 25,000 miles of pipeline which transport more than two million barrels a day of petroleum products, such as gasoline, and nearly 7.8 billion cubic feet a day of natural gas.

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New Mexico Faces Worst Flooding in 30 Years

SANTA FE, New Mexico, April 27, 2005 (ENS) - New Mexico Governor Bill Richardson has declared an emergency across the state as reservoirs, rivers, and streams fill with the highest spring runoff levels in nearly three decades.

“We’re taking action now to save precious time if and when the potential flooding puts lives and property at risk,” said Richardson, who signed an Executive Order Monday declaring the emergency. “The wet winter has helped mitigate the drought conditions in New Mexico, but now poses a threat to low-lying communities and agricultural land across the state.”

The declaration makes $750,000 in state emergency funding available to provide resources to monitor water flow, levees, dams, or other flood control structures, and prepare vulnerable areas for the possibility of flooding.

Above average snowpack in the mountains throughout New Mexico, and above average rainfall in the late winter and early spring have increased the risk of flooding statewide. Some flooding is already occurring in the north. The Costilla area has been engaged in sporadic flood fighting for the past few weeks, and more problems are expected as the runoff increases.

The U.S. Army Corp of Engineers and the Interstate Stream Commission forecast that the Rio Grande through Albuquerque could flow at a rate of 7,000 cubic feet per second; a level not seen since the late 1970s. Under the order, the State Emergency Operations Center will be activated to Level 3, a low impact monitoring level, where assigned state emergency management and response personnel will coordinate efforts with cities, counties, tribes and pueblos throughout the state as well as other state and rederal agencies to ensure preparation for any unexpected events.

If there should be any flooding, the response system is prepared and ready. It will also allow for emergency work and the purchase and pre-positioning of sandbags and material to assist responders in any needed flood mitigation and response.

John Denko, New Mexico Secretary of Public Safety, said, “This is one case where we can anticipate a potential emergency before it happens, and we can take steps now to lessen the impact to the community should a flood develop."

The New Mexico Office of Emergency Management recommends that residents living near rivers, streams or low-lying flood plains take precautions now. These include but are not limited to family planning for evacuation and communication. Families should plan for what they would need for an extended time away from home, essentials like medications and insurance papers. They should also do what they can to protect their property from high water.

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Ten New Sites Added to Superfund List

WASHINGTON, DC, April 27, 2005 (ENS) - A Pennsylvania battery recycling plant, a South Carolina gold mine, and an Illinois zinc smelter are among 10 new sites just added to the National Priorities List of Superfund sites by the U.S. Environmental Protection Agency (EPA). The sites were selected because of their degree of risk to human health and the environment.

The EPA also proposed that an additional seven sites be added to the list. Contaminants found include cadmium, tetrachloroethylene, carbon tetrachloride, mercury, dioxins, zinc, lead and arsenic, among others.

The National Priority List is the list of the nation's most polluted toxic waste sites that are a priority for cleanup. In order to receive federal Superfund dollars for long-term cleanup, sites must be included on this list.

The 10 final sites bring the total to 1,245 on the Superfund List. Altogether, there are 1,309 final and proposed sites on the list.

Sixty-four sites have been proposed and are awaiting final agency action: 58 in the general Superfund section and six in the federal facilities section.

Kevin Curtis, vice president of the National Environmental Trust, said there is no doubt these sites need remediation, but paying for those cleanups is not assured. "Today 10 communities join hundreds of others in an increasingly tough competition for scarce federal cleanup dollars," Curtis said. "Unfortunately, the new Superfund listings only confirm how dangerous the sites really are, but offer no assurance that cleanup will happen."

The EPA tries to identify and locate the parties potentially responsible for contamination at Superfund sites. Such parties agree, on average, to initiate or pay for 70 percent of cleanups, the agency said today.

When no parties can be located, EPA conducts in-depth inspections to determine the full extent of the contamination before starting major construction at the site. These inspections may take several years due to the nature of sampling and testing.

But Curtis says cleanups will not be properly funded until President George W. Bush replaces legislation his administration allowed to lapse that uses taxes to collect funds for Superfund remediation.

"Until President Bush supports reinstating the polluter-pays tax, the federal government's most effective tool for cleaning up toxic sites will not have the funds to restore these new sites or the majority of those already listed," said Curtis.

"This administration is the first since the creation of the Superfund program in 1980 to oppose extension of the polluter- pays tax," Curis said. Not only is the President letting industry off the hook, but his most recent budget request contains $102 million less for Superfund than he had sought last year."

The 10 New Superfund Sites:

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Pataki Bill Takes Small Unprotected Wetlands Under State Wing

ALBANY, New York, April 27, 2005 (ENS) - New York Governor George Pataki has submitted legislation to strengthen protections for freshwater wetlands, ensuring that activities in these fragile areas are subject to state or local oversight.

Under the bill, wetlands of less than 12.4 acres that are no longer subject to federal protections would be regulated by the state Department of Environmental Conservation (DEC) or the local jurisdiction.

Also, under the legislation, permits would be required for activities in these wetlands and civil penalties for filling in or damaging wetlands would be increased to promote better compliance with state and federal law.

"This legislation will ensure that smaller, isolated wetlands are properly protected under State law, and that they remain valuable environmental assets for local communities," Pataki said.

Under the State's Freshwater Wetlands Act of 1975, approximately 80 percent of the wetlands resources in New York State, outside of the Adirondack Park, are protected. Activities in wetlands of 12.4 acres or larger are regulated to prevent potentially negative impacts.

The Governor's Program Bill would amend the Freshwater Wetlands Act to cover wetlands smaller than 12.4 acres if they are isolated from navigable waters of the United States. The DEC currently only has the authority to regulate wetlands smaller than 12.4 acres if they are deemed to be of unusual local significance or are located within the Adirondack Park.

Among the activities subject to DEC review and approval would be filling or grading; drilling of wells; construction of buildings or commercial facilities; application of pesticides; clearcutting of trees or other vegetation; draining, dredging or excavation, or other activities that alter water levels; and subdivision of a parcel of land containing freshwater wetlands.

The application fees for freshwater wetlands permits would be $50 for minor projects; $100 for major projects associated with a single family dwelling or multiple family dwelling; and $200 for a permit for all other major projects. Application fees for tidal wetlands permits would be $200 for minor projects; and $900 for major projects.

All fees collected would be used to create new positions and fund other costs associated with DEC's administration of the program.

The civil penalty for violating the Freshwater Wetlands Act would increase to up to $10,000 per violation. The current civil penalty is a fine of up to $3,000 per violation.

John Stouffer, Legislative Director for the Sierra Club Atlantic Chapter said, "By proposing legislation to expand New York's wetland protection law Governor Pataki takes a significant step towards improving state protection of the clean water we rely on for drinking, swimming, fishing and other recreational pursuits."

Common wetlands include marshes, swamps, bogs, wet meadows, sloughs, vernal pools, and riparian areas. Wetlands provide floor and storm water control, surface and groundwater protection, erosion control, pollution treatment and nutrient cycling, and habitats for fish and wildlife.

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Alabama Spends $1.4 Million to Improve Drinking Water

MONTGOMERY, Alabama, April 27, 2005 (ENS) - The Alabama Department of Environmental Management (ADEM) has awarded a $1,440,000 loan from the Drinking Water State Revolving Fund Loan Program (DWSRF), to the Kushla Water District, Inc., in Mobile County.

The District will use the low interest loan to construct a new half-million gallon per day water supply well and treatment facility, to construct a new half-million gallon above ground water storage tank, and to rehabilitate and repair several existing above ground tanks.

The new drinking water source will provide a more abundant, safe, and reliable drinking water supply to the approximately 1,700 people in the service area.

Existing wells in the area have experienced numerous failures, and the planned new well will replace a former supply source that has been abandoned due to operational difficulties.

The new storage tank, which will replace an older, inefficient tank, will provide more stable water pressure to current customers, and will be able to handle increased demand that the District expects.

The DWSRF Loan Program provides financial assistance to communities for the improvement of water treatment, storage, source, and distribution deficiencies, in order to meet more stringent water quality requirements. This is Kushla’s first loan from the DWSRF Loan Program.

The Alabama Drinking Water Finance Authority, including the governor, lieutenant governor, speaker of the House, ADEM director, and the state finance director, uses a combination of federal and state matching funds to support bond issues, with the proceeds funding low-interest loans to drinking water treatment systems.

ADEM, acting as agent to the Authority, administers the DWSRF Loan Program. With the closing of this loan, 84 loans, totaling $206,405,000, have been made from the DWSRF Loan Program since it began in 1998.

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Gulf of Mexico Dead Zone Forms Earlier, Looks Larger

COLLEGE STATION, Texas, April 27, 2005 (ENS) – A Gulf of Mexico region that seasonally suffers from low oxygen, resulting in huge losses of marine life, is experiencing low oxygen levels much earlier this year than in the past.

Scientists say that means the low oxygen zone, known as the dead zone, could be larger than the 6,000 square miles it has affected in previous years.

A survey of the zone by a team of scientists from Texas A&M University, Texas A&M at Galveston, Louisiana State University and the National Aeronautics and Space Administration (NASA) shows that the area's water contains lower oxygen levels than expected at this time of year.

That could mean the dead zone area in the northern Gulf of Mexico could cover an even larger area than in previous years, says Steve DiMarco, associate professor in the Department of Oceanography at Texas A&M and leader of the project.

"During January and February of this year, the flow of the Mississippi River was larger than at any time in 2004," DiMarco explains. "That means the stratification levels between the fresh river water and heavier salt water could results in increased hypoxia, which creates the dead zone."

Hypoxia, or low concentrations of oxygen in the water, can result in fish kills and can harm other forms of marine life.

The dead zone is located along the Louisiana coast where the Mississippi and Atchafalaya Rivers empty into the Gulf. The Mississippi is the largest river in the United States, draining 40 percent of the land area of the country. It also accounts for almost 90 percent of the freshwater runoff into the Gulf.

The dead zone area typically develops in late spring and early summer following the spring flood stage of the rivers, which carry large amounts of agriultural nutrients from fields along the rivers into the Gulf.

From a Texas A&M research vessel, the team studied an area between Southwest Pass, Louisiana, and the Calcasieu ship channel.

"We saw no hypoxia in this area until June of last year, and this year we found it in late March," DiMarco says. "If the physical conditions we noticed continue, it could mean an unusually strong hypoxic zone this year, and that's not good news."

DiMarco said the most intense hypoxia levels are usually between 30 to 60 feet below the surface. "Bottom-dwelling marine life, where some of the most intense hypoxia levels are, can easily die," he says.

"This area is of immense importance to people along the northern Gulf of Mexico," he said. "We plan to return there in May, July, August and October to collect more data and see what condition the dead zone area is at that time."

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