AmeriScan: June 17, 2005

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Duke Energy Wins Clean Air Case on Appeal

WASHINGTON, DC, June 17, 2005 (ENS) - A federal appellate court has upheld a lower court ruling that Duke Energy did not violate the Clean Air Act when eight of its power plants increased emissions without installing modern pollution controls.

The 4th Circuit Court of Appeals, which covers five southeastern states, ruled Wednesday that only increases in the hourly emissions rate would trigger emissions control requirements under the New Source Review provision of the law.

The appellate court upheld a ruling of the U.S. District Court for the Middle District of North Carolina.

The plaintiffs in the case, the U.S. Environmental Protection Agency (EPA) and several public health organizations, had argued that the requirement is triggered when a plant construction project increases annual emissions by, for instance, enabling the plant to operate more hours each year.

This case marks the first time a Court of Appeals has reached the merits in one of the New Source Review (NSR) cases filed by the Clinton Administration in 1999.

Duke Power President and CEO Ruth Shaw said the 4th Circuit "further supports the fact that our company has - for decades - understood and lawfully complied with the requirements of the Clean Air Act’s NSR program. We have vigorously defended our rights in this case and we have prevailed."

"More importantly," said Shaw, "we continue to do our level best to meet electric power demand in ways that are both economical and environmentally sound.”

Electric utilities and public power companies were pleased with the decision. Scott Segal, director of the Electric Reliability Coordinating Council, an industry association, said the ruling "eviscerates the legal basis for the 1999 NSR enforcement initative."

"The court notes that EPA cannot vary its definition of 'emissions increase' in different parts of the same provision of the Clean Air Act," Segal said.

The EPA's case was based on "emission increases" occurring as a result of increased hours of operations at the facility. The court agreed with Duke Energy that an increase in the emissions rate was needed to invoke the New Source Review provisions of the law.

The court based its view on the "plain language of the Clean Air Act," Congressional intent and regulatory interpretations.

Environmental groups view the ruling as a temporary setback. "We disagree with the court’s view that power plants can boost their pollution dramatically and get away with it," said John Walke, director of the Clean Air Program at the Natural Resources Defense Council.

"Federal court decisions in similar cases in the Midwest contradict this ruling and will not be affected by it," Walke said. "We are confident that future decisions will agree with the Midwest rulings and protect public health."

Although the court ruled for Duke Energy, it did not adopt the company’s position that only an increase in a plant’s maximum hourly capacity to pollute triggers the New Source Review requirements.

"That interpretation would have allowed even more massive increases in actual pollution to escape control," Walke said.

Duke Energy also had argued that the EPA’s "routine maintenance" exemption from the New Source Review requirements was broad enough to cover one time refurbishments such as the ones the company had undertaken at its plants.

The court did not rule on this issue, and therefore did not adopt the company’s controversial interpretation.

Duke Power, a business unit of Duke Energy, is one of the nation’s largest electric utilities, serving more than two million customers in North Carolina and South Carolina. The company operates three nuclear generating stations, eight coal-fired stations, 31 hydroelectric stations and many combustion turbine units.

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Clean Air Act Settlements With Refiners Top $1 Billion

WASHINGTON, DC, June 17, 2005 (ENS) - The federal government has reached Clean Air Act settlements worth a total of $1 billion with petroleum refiners Valero and Sunoco. Once installed, the control technologies required by these agreements are expected to reduce harmful air emissions by more than 44,000 tons per year from 18 refineries in eight states.

Valero and Sunoco represent 15 percent of domestic refining capacity in the United States. The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice say the settlements, reached Wednesday, will bring the two companies into compliance with the law.

The states of Colorado, Louisiana, New Jersey, Oklahoma and Texas joined EPA in the settlement with Valero.

The states of Pennsylvania, Ohio and Oklahoma, and the city of Philadelphia joined the EPA in the settlement with Sunoco.

A consent decree filed in the U.S. District Court for the Western District of Texas will require Valero and Tesoro, purchaser of the former Valero Golden Eagle Refinery in Martinez, California, to spend more than $700 million to install and implement innovative emission control technologies at their refineries.

Actions under this agreement are expected to reduce annual emissions of nitrogen oxide (NOX) by more than 4,400 tons and sulfur dioxide (SO2) by more than 16,000 tons per year, the federal agencies said.

"Valero has worked in cooperation with state and federal regulators to reach this settlement," said Johnny Sutton, U.S. Attorney in San Antonio, where Valero is headquartered. "As a result, we avoid a costly trial, save the taxpayers money and secure environmental compliance much more quickly."

Valero will pay a $5.5 million civil penalty and spend more than $5.5 million on environmentally beneficial projects to reduce emissions further and to support activities in the communities where it operates.

Valero and Tesoro's affected refineries are located in Benicia, Martinez and Wilmington, California; Corpus Christi, Houston, Sunray, Texas City and Three Rivers, Texas; Krotz Springs and St. Charles Parish, Louisiana; Ardmore, Oklahoma; Denver, Colorado; and Paulsboro, New Jersey.

A consent decree filed in the U.S. District Court for the Eastern District of Pennsylvania will require Sunoco to spend approximately $285 million to install and implement control technologies to reduce emissions at its refineries. Actions under this agreement are expected to reduce NOX by more than 4,400 tons and SO2 by more than 19,500 tons per year.

Sunoco will pay a $3 million civil penalty and spend more than $3.9 million on environmentally beneficial projects.

Sunoco's affected refineries are located in Philadelphia and Marcus Hook, Pennsylvania; Toledo, Ohio; and Tulsa, Oklahoma.

The states joining the settlements will share in the cash penalties and the environmental projects.

To meet obligations under the Clean Air Act's New Source Review program, Valero, Tesoro, and Sunoco will cut emissions from the units emitting the most pollutants.

They will upgrade leak detection and repair practices, implement programs to minimize flaring of hazardous gases, reduce emissions from sulfur recovery plants, and adopt strategies to ensure the proper handling of benzene wastewater at each refinery.

"These agreements are the result of our refineries initiative, which is improving the environment and at the same time creating a level playing field in the industry," said Thomas Skinner, EPA acting assistant administrator for the Office of Enforcement and Compliance Assurance. "Sixty-five percent of our nation's petroleum refining capacity now has committed to make significant improvements that will benefit everyone."

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California to Add One Million Barrels of Crude Oil Storage

SACRAMENTO, California, June 17, 2005 (ENS) - California Attorney General Bill Lockyer says the state's "fragile gasoline market" will be strengthened by the addition of almost one million barrels of crude oil storage capacity under an enforcement settlement that resolves antitrust objections to Valero's $2.8 billion acquisition of Kaneb.

Today, Valero and Kaneb directly compete in the Northern California terminal services market.

"Lack of storage has been a significant contributing factor to the dysfunction that afflicts California's gasoline market and the exorbitant prices suffered by this state's drivers," said Lockyer. "By increasing storage capacity, this settlement will help stabilize the market in Northern California and benefit motorists by providing a buffer against supply shortages and price hikes."

This week, California drivers are paying an average of $2.33 per gallon of regular gas, down slightly from last week's average of $2.36 per gallon of regular.

Under the agreement, Valero must construct at its Benicia refinery crude oil storage tanks with a total capacity of 900,000 barrels.

To address concerns the merger would have anti-competitive effects and harm consumers, the settlement also requires Valero to sell gasoline and petroleum terminal facilities in Martinez and Richmond currently owned by Kaneb.

Additionally, the settlement requires Valero to agree to terminate its lease of crude oil storage tanks at the Martinez terminal, and remove the oil held in those tanks. The tanks have a combined capacity of one million barrels.

Valero will transfer the oil now stored at Martinez to the new Benicia tanks. Valero must complete construction of the Benicia tanks no later than three years following its sale of the Martinez terminal and the new owner's decision to terminate the current tank lease, or May 31, 2011, whichever comes first.

The effect of the settlement's storage provisions will be to add 900,000 barrels of capacity to the system and free up for use by third parties one million barrels of capacity now controlled by Valero.

The settlement's terms are in a consent decree Lockyer filed Wednesday in U.S. District Court for the Northern District of California.

The settlement resolves a lawsuit, also filed Wednesday by Lockyer, that alleges the merger would lessen competition and restrain trade in violation of federal antitrust laws known as the Clayton Act and Sherman Act.

The acquisition also could harm consumers by providing Valero a dominant position in the market for distributing ethanol, according to the complaint.

"That became an even more important consideration following the U.S. Environmental Protection Agency's June 2 rejection of California's request for a waiver of the oxygenate fuel requirement," Lockyer said. The state uses ethanol to meet that federal mandate.

Kaneb's terminals are the only ones in Northern California, independent of refineries, capable of receiving and distributing bulk volumes of ethanol. Valero is a major user and supplier of ethanol. After the merger, Valero "could increase prices for or deny access to bulk ethanol terminaling services," and potentially increase gasoline prices, the complaint alleges.

To remedy those anti-competitive effects, the settlement requires Valero to provide "reasonable and non-discriminatory" access to ethanol terminaling services at non-divested facilities in Selby and Stockton.

The Federal Trade Commission, to remove its objection to the acquisition, Wednesday announced its approval of a settlement similar to California's, but which requires only the sale of the Martinez and Richmond terminals. The court must approve the California agreement.

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Devil's Lake Flooding Bedevils Canada and USA

BISMARK, North Dakota, June 17, 2005 (ENS) - Draining North Dakota's Devil's Lake across the Canadian border into Manitoba waters would ease annual flooding that has forced hundreds of North Dakota families from their homes every year for the past 12 years.

The state is completing construction of an outlet to drain Devils Lake water into the nearby Sheyenne River. As the Sheyenne flows into the Red River, and north into Canada where it empties into Lake Winnipeg, the impact of draining Devils Lake is a concern for Canada.

Starting July 1, North Dakota plans to begin draining the lake.

But Canadians are up in arms over the possibility that their waters will be flooded with fish and plants as well as problem chemicals like phosphorus and mercury, sulfates and total dissolved solids.

Canada says the discharge of Devils Lake water into the Sheyenne River will violate the Boundary Waters Treaty between the two nations.

The International Joint Commission (IJC), the bi-national body created by the Boundary Waters Treaty to prevent and resolve disputes between Canada and the United States, has established a set of Red River water quality objectives for each country to meet. These objectives are based on science, and agreed to by both governments.

But flooding is a major problem in North Dakota. On June 9, Governor John Hoeven issued a statewide emergency declaration for impacts resulting from recent severe thunderstorms that have caused riverine and overland flooding, forced evacuations of families, isolated rural residents and damaged homes and infrastructure.

Included in the declaration is the Devils Lake Basin, where flood-related problems have persisted for 12 consecutive years as water levels continue their historic rise.

Canadian Prime Minister Paul Martin said Tuesday that talks to resolve the impasse are ongoing.

"There is no doubt about the seriousness of the situation,” the Prime Minister said, responding to questions in the House of Commons. "There is also no doubt that the actions being taken by North Dakota are simply unacceptable.”

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300 Groups Reject Nuclear Power as Global Warming Solution

WASHINGTON, DC, June 17, 2005 (ENS) - In response to a campaign by the nuclear industry promoting new nuclear reactors as a solution to global warming, nearly 300 international, national, regional and local environmental, consumer, and safe energy groups have issued a declaration rejecting nuclear power as a solution to Earth's warming climate.

In a statement Thursday morning, the groups said nuclear power is too polluting, hazardous, and costly. Instead, the groups urged a focus on clean and renewable sources of energy as well as energy efficiency and conservation.

With votes on global warming amendments expected this week during Senate consideration of the Energy Bill, representatives of several of the groups called on Congress to reject legislation that subsidized nuclear power plants as part of reducing global warming pollution.

"Global warming is the most serious environmental problem facing us today and we should aggressively increase energy efficiency and renewable energy to reduce carbon dioxide pollution,” said Anna Aurilio, legislative director for the U.S. Public Interest Research Group. "We’re now one of nearly 300 public interest groups that say nuclear power is too dangerous and expensive and should not be part of a global warming solution."

No new nuclear power plants have been built in the United States for 30 years, and the nuclear industry as well as President George W. Bush are moving towards building new reactors soon.

Speaking to the 16th Annual Energy Efficiency Forum Wednesday in Washington, the President said, "We need to expand our nation's use of nuclear power. America has not ordered a nuclear power plant since the 1970s. France, by contrast, has built 58 plants in the same period of time - and today, France gets more than 78 percent of its electricity from safe, low-cost nuclear power. It's time for America to start building again."

"So I've directed the Department of Energy to work with Congress to help pass legislation that will reduce uncertainty in the nuclear plant licensing process," the President said. "We're also working with Congress to provide other incentives - such as federal insurance to protect the builders of the first four new plants against lawsuits, bureaucratic obstacles, and other delays beyond their control. To build a secure energy future for America, we need to expand production of safe, clean nuclear power."

Congress is supporting a nuclear future. The pending Senate energy bill is likely to have financial inducements that will encourage energy companies to build new reactors. At this stage, it includes $4.3 billion in subsidies for various nuclear programs. The tax provisions, which may include billions in tax breaks for the nuclear industry, have not been completed.

The groups warn that nuclear energy will not ease global warming. "Addressing climate change is too important to leave to the failed nuclear industry,” said Michael Mariotte, executive director of Nuclear Information and Resource Service, a Washington, DC based anti-nuclear advocacy group.

"Throwing a few billion dollars of taxpayer money at the nuclear industry might make some utility executives happy, but would do virtually nothing to reduce carbon emissions," Mariotte said. "In fact, by diverting limited resources that should be used for sustainable technologies, subsidizing nuclear power would be counterproductive.”

In their statement the groups said, "This would exacerbate all of the problems of the technology: more terrorist targets, more cost - potentially trillions of dollars - less safety, need for a new Yucca Mountain-sized waste site every four or five years, more proliferation of nuclear materials and technologies, dozens of new uranium enrichment plants, and even then, a severe shortage of uranium even within this century, while displacing the resources needed to ensure a real solution to the climate change issue."

The groups cited a recent MIT study that calculated using nuclear power to have any significant effect on climate change would require building at least 1,000 new reactors worldwide.

Wenonah Hauter director of Public Citizen’s energy program says renewables, conservation and efficiency will provide plenty of energy to meet U.S. needs. "Nuclear power is fatally flawed and we cannot overcome all of its obstacles," she said. "It’s time to support renewable energy technologies because they already exist and have great potential and provide a real opportunity to keep our planet healthy for future generations.”

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National Clean Woodstove Campaign Latest EPA Project

WASHINGTON, DC, June 17, 2005 (ENS) - Residents of Libby, Montana are getting new woodstoves that burn more cleanly, courtesy of the U.S. Environmental Protection Agency (EPA), the woodstove industry, and state and local governments.

So are residents in southwestern Pennsylvania, the greater Dayton, Ohio area, and Washoe County, Nevada.

The new stoves are part of a national EPA effort to reduce pollution by replacing older woodstoves with cleaner burning stoves certified by the agency.

"Helping areas of the country reduce pollution and meet national air quality standards for fine particles is our top priority," said EPA Assistant Administrator for Air and Radiation Jeffrey Holmstead.

"By combining local programs like clean woodstove installation with tough new federal regulations on power plants, cars, trucks, and diesel equipment," he said, "we can dramatically reduce fine particle pollution and improve public health across the country."

About six percent of all fine particle pollution (PM 2.5) in the United States comes from wood smoke. In some areas where woodstove use is high, wood smoke can account for a greater share of PM 2.5. Replacing older wood stoves with EPA-certified stoves can reduce wood smoke by 70 percent on average, the agency says.

Fine particles are particles 2.5 micrometers in diameter or less - about 1/30th the size of the average human hair, or smaller.

Exposure to fine particle pollution has been linked to aggravation of asthma and the development of chronic bronchitis, to heart arrhythmias, heart attacks, and even premature death in people with heart and lung disease.

In Lincoln County, Montana, where Libby is located, crews will replace old, polluting woodstoves with newer, cleaner burning stoves over the next three years. Libby and the surrounding area do not meet the EPA's national air quality standards for fine particle pollution.

In addition, many Libby residents were exposed to high levels of asbestos from the W.R. Grace vermiculite mine in Libby, which contains the fibrous mineral. Asbestos is responsible for a variety of lung diseases that may be eased by the stove replacement program.

To launch the Lincoln County Woodstove Changeout, the Hearth Patio & Barbecue Association donated more than $1 million to install the new certified stoves and chimneys free of charge for about 300 lower income households.

The EPA, the state of Montana and Lincoln County are providing additional resources.

Researchers estimate that about 80 percent of Lincoln County's fine particle pollution comes from residential wood smoke from woodstoves, fireplaces and outdoor wood heaters.

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New Handheld Biosensor Analyzes Contamination in Minutes

RICHLAND, Washington, June 17, 2005 (ENS) - If a biological agent is on their bodies or equipment, Air Force personnel will soon know within minutes, due to a new biosensor system developed by the Air Force and a national laboratory.

Personnel will use the handheld biosensors to collect and isolate samples, detect and identify agents, and assess the seriousness of the threat.

"The system will provide an increased capability for Air Force Special Operations personnel to rapidly determine the presence of biological warfare agents in a combat environment," said Dr. Richard Stotts, counterproliferation branch chief within the Air Force Research Laboratory's Human Effectiveness Directorate.

"The device is compact, quickly identifies agents, can be used repeatedly and requires very little maintenance to keep it running in the field," he said.

Just a prototype at this point, the system consists of a spray, developed at the directorate's Brooks City Base, Texas, facilities, and a handheld "green box," which determines if agents are present.

The green box, or DNA Capture Element instrument, was developed by researchers at the Department of Energy's Pacific Northwest National Laboratory (PNNL). The box uses a biochemical assay based on aptamers, or single chain DNA fragments developed by the Air Force.

"We've used our lab's expertise to develop an instrument that's complementary to the Air Force's technology and that simultaneously satisfies the speed, specificity, sensitivity, portability, durability, health and safety needs," said Mike Lind, a senior advisor at PNNL. "The rapid detection capability of this instrument will be useful in a variety of applications, even outside of the armed forces."

The user sprays the suspected contaminated area, creating a sample that can be picked up by a swab. The sample material on the swab is suspended in liquid by rinsing it in a container. Once in a liquid form, the sample is injected into a special flow cell, where the assay occurs.

The flow cell is currently designed for one-time use. Since the cell is sealed, it can be decontaminated by immersion in a bleach solution and then safely transported to a forensic laboratory where it can be opened to retrieve the sample material for analysis.

A liquid crystal display, or LCD, provides a quantitative readout of the concentration of targeted material present, and a set of red, yellow, and green light emitting diodes provides an easily interpreted reading of the threat level.

No threat is green, a barely detectable to medium level of an agent is one or two yellow dots, and a high detection level is red.

The biosensor system is designed to be reliable, disposable and cost-effective. The Air Force will continue testing the device over the next several months.

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