AmeriScan: October 12, 2005

* * *

Supreme Court Will Review Three Wetlands Cases

WASHINGTON, DC, October 12, 2005 (ENS) - The U.S. Supreme Court Tuesday agreed to hear three cases dealing with the federal government’s authority to regulate wetlands.

In two of the cases, the justices will review decisions of lower courts in cases involving developers' right to alter wetlands that drain into the navigable waters of the United States, even if those navigable waters are miles from the developments in question. The third case involves the breach of state-imposed water-quality conditions.

The Clean Water Act defines the term navigable waters to mean "the waters of the United States, including the territorial seas."

In the first case, Rapanos v. United States, the U.S. Justice Department brought this civil enforcement action under the Clean Water Act, alleging that John Rapanos and Judith Nelkie Rapanos had violated the act by discharging fill material into "waters of the United States" without a permit on three parcels of land they own near Midland, Michigan.

Without applying for permits, John Rapanos directed the performance of extensive land clearing, earthmoving, and construction work on the three parcels, resulting in the loss of a total of 54 acres of wetlands.

All three parcels drain into tributaries of navigable waters, the test of Clean Water Act jurisdiction. But the Rapanos claim that the wetlands on one of the sites "have been described as between eleven and twenty miles from the nearest navigable-in-fact water."

The district court ruled in the government's favor, holding that petitioners' discharges at the three sites were prohibited by the Clean Water Act. The appeals court confirmed this ruling. The Rapanos are appealing the decision to the Supreme Court.

In the second case, Carabell v. Army Corps of Engineers, developer June Carabell sought permission to fill a wetland in Macomb County, Michigan, to build a condominium complex.

The question at issue is whether the United States Army Corps of Engineers acted reasonably in interpreting the term "waters of the United States" as it appears in the Clean Water Act to encompass a wetland area that is separated from a tributary of a traditional navigable water by a narrow man-made berm, where evidence in the record reflected the presence of at least an occasional hydrologic connection between the wetland and the adjacent tributary.

A ditch constructed during excavation for the condominium created a berm that is sometimes overtopped with water. The ditch connects with the Sutherland-Oemig Drain at the northeastern corner of the property. The Drain flows into Auvase Creek, which flows into Lake St. Clair, which connects Lake Huron and Lake Erie and lies between Michigan and Canada, a traditional navigable water.

A magistrate judge, the district court and the court of appeals all ruled in favor of the Army Corps of Engineers, finding that a wetland separated only by a berm or other man-made barrier from a tributary remains "adjacent" to that tributary. Carabell is appealing those rulings.

In the third case, S.D. Warren Co. v. ME Board of Environmental Protection, Warren owns and operates five contiguous hydroelectric dam projects on the Presumpscot River in Cumberland County, Maine. The projects have a combined generating capacity of 7450 kW and provide electricity for Warren's paper mill in Westbrook.

In this case, Warren originally appealed a decision of a volunteer Maine Board of Environmental Protection that discharges from his dams to the river must meet water quality standards under the Clean Water Act. All lower courts ruled in favor of the Board. Warren is appealing those rulings, saying the decisions of a volunteer board should not stand.

The cases give the Supreme Court an opening to place limits on federal government authority, and all eyes will be on new Chief Justice John Roberts. The three appeals are the first the court has agreed to hear under Roberts’ leadership.

* * *

FEMA Plans Competitive Bidding for Hurricane Recovery Contracts

WASHINGTON, DC, October 12, 2005 (ENS) - Under fire for granting no bid contracts for disaster recovery work after Hurricanes Katrina and Rita, the Federal Emergency Management Agency (FEMA) Tuesday announced plans for a competitive contracting strategy for ongoing recovery work for the Gulf Coast hurricanes, as well as for future disasters.

The dual track competitive bidding strategy will place a priority on local and small disadvantaged businesses for Gulf Region recovery work as well as on the use of local and small businesses as subcontractors for national open competition contracts.

“In the immediate response phase for Hurricane Katrina, our priority was to get relief quickly to those in need,” said Acting FEMA Director David Paulison. “The oversight safeguards are in place for those emergency contracts so critically needed when disaster struck, and we will now use competitive strategies everywhere possible – placing priority on the use of local and small disadvantaged businesses – as we move into the long-term recovery phase.”

As four of FEMA’s major emergency contracts for technical assistance reach their contractual agreement limits, those future contracting needs will be met through th competitive contracting strategy, Paulison said.

Emergency contracts were issued for technical assistance for setting up Disaster Recovery Centers, the hauling and installing of temporary housing and other logistical and facilities management needs in the wake of Hurricane Katrina in early September. These technical assistance needs will continue in the long-term recovery as installation of facilities continue and maintenance becomes a serious need, but they will be met by contracts awarded through competitive bidding.

The first track for awarding contracts is an initiative competitively to award multiple five-year technical assistance contracts to small disadvantaged businesses for recovery work in the Gulf States. The competition will be open to small disadvantaged businesses certified by the Small Business Administration. The evaluation by FEMA of the contract proposals will include the geographic location of both the prime contractor and subcontractors to ensure a preference for local hires from the impacted states.

On a simultaneous track, FEMA will proceed with a full and open competition for multiple five-year contracts to provide technical assistance support on a national basis for disaster response and recovery. These awards will be open to all businesses regardless of size, but will prefer local businesses.

FEMA will solicit offers under this dual track strategy in the immediate future. Final details of these competitions will be available in about one week through the FedBizOpps website at www.fedbizopps.gov.

Immediately prior to Hurricane Katrina’s landfall, FEMA awarded technical assistance contracts to assist with Katrina tasks to four large firms: Fluor, CH2M Hill, Bechtel and the Shaw Group.

Earlier this year, Paulison explained, FEMA had started a procurement to award a five-year contract for one or more firms who would provide this technical assistance support for future hurricane response and recovery. That contract was initially planned for completion by late September or early October but was not complete when Hurricane Katrina struck.

FEMA procurement staff had already completed analysis on these four firms and had established their strong qualifications to do this work, the FEMA chief said. "The quantity of work anticipated following Katrina landfall - and urgency of the mission - mandated multiple contracts."

Because these contracts were issued on an emergency basis, FEMA always intended to renegotiate the contract rates, terms and conditions, Paulison said. The Defense Contract Audit Agency is providing cost and pricing support in managing these contracts to ensure the government only pays those costs that it deems to be allowable and fair.

* * *

NOAA: Gulf of Mexico Fish Show Little Hurricane Contamination

WASHINGTON, DC, October 12, 2005 (ENS) - Government analyses of fish and crabs collected from the Gulf of Mexico two weeks after Hurricane Katrina show no E. coli, a bacteria associated with human or animal fecal contamination, and very low levels of pesticides and industrial chemicals that researchers say are "likely not related to hurricane runoff."

The National Oceanic and Atmospheric Administration (NOAA) has completed additional analyses of fish, water, and sediment samples collected from coastal and offshore marine waters of the Gulf of Mexico from September 12 to 16. The latest tests were conducted to determine the level of fish, water, and sediment exposure to bacteria and to determine the level of exposure to pesticides and other contaminants, such as PCBs and DDTs.

Last week, NOAA tests of these same fish found no oil contamination. Additional testing on shrimp samples taken from Mississippi Sound is ongoing.

Analyses of water samples for indicators of human sewage or agricultural runoff found levels that are below the U.S. Environmental Protection Agency's safety limits for bathing beaches, the most stringent government standard for recreational waters.

In the fish and crab samples, the levels of PCBs ranged from 2.5 -15 parts per billion and the levels of DDTs ranged from 0.8 - 2.2 parts per billion - levels far below the Food and Drug Administration's safety standards for commercial seafood, and are similar to levels detected in fish in non-urbanized areas.

The agency's PCB limit is 2000 ppb, and their DDT limit is 5000 ppb.

Analyses show no detectable level of brominated flame retardants (PBDEs) in most fish samples.

Still, NOAA said, recreational and subsistence fishers who repeatedly harvest seafood from the same area may wish to consult state or local health agencies or the EPA's more stringent guidance on consumption frequency for non-commercial seafood when contaminants are present.

NOAA said September 29 that the first tests showed no elevated exposure to hydrocarbon contaminants, which are common in marine life after exposure to oil spills. NOAA also is conducting a comprehensive analysis of fishing infrastructure damage caused by the hurricanes. The agency has teams surveying the region's fishing fleets, seafood processing plants, fish markets and bait shops. The survey will take months to complete, but NOAA said preliminary information will be released as it becomes available.

* * *

Hawaii Court Orders Environmental Review for Biopharm Algae

KAILUA-KONA, Hawaii, October 12, 2005 (ENS) - Four Hawaii citizens groups have won the first round of a court challenge to the state Board of Agriculture's approval of a project to mass-produce genetically engineered algae on the Kona coast of the Island of Hawaii. The groups say the algae is "potentially dangerous."

Citizen groups Ohana Pale Ke Ao, Kohanaiki Ohana, GMO Free Hawaii, and Sierra Club, Hawaii Chapter, represented by Earthjustice, Tuesday obtained a court judgment in their favor in a lawsuit they brought in Hawaii Circuit Court.

Judge Elizabeth Strance agreed with the groups that the Board was required to comply with the environmental review process under the Hawaii Environmental Policy Act (HEPA) before approving the project.

The judge ruled that, at minimum, an environmental assessment is required for the project, and that the Board's approval without such review is invalid.

"We're glad that the court upheld this important process of examining the risks of this project and its alternatives," said Earthjustice attorney Isaac Moriwake. "The state needs to be reminded that environmental review is not a nuisance to be brushed aside, but a basic public duty of all agencies."

The challenged project proposes to manufacture, in an outdoor environment at a state-owned technology park known as the Natural Energy Laboratory Hawaii (NELH), microalgae that is genetically engineered to produce experimental and yet unapproved drugs.

Mera Pharmaceuticals, Inc. proposes to import a genetically modified strain of the green algae Chlamydomonas reinhardtii for preliminary testing and growth in its laboratory. Mera's partner in the venture is Rincon Pharmaceuticals, a San Diego start-up biotech firm.

The company would grow the microalgae in patented large-scale photobioreactors, hundreds of times larger than their experimental predecessors. Chlamydomonas reinhardtii is valued by biological researchers for its adaptability and quick generation time, and studies of Chlamydomonas have provided research contributions in the areas of photosynthesis and molecular biology.

The state Department of Agriculture assigned the genetically engineered organism a heightened risk level because the project was the first of its kind and posed unique concerns and risks.

Many people in the Kona community expressed their concerns about the risks of contamination of the coastal environment around the project area, which is valued and used by local residents, and the dangers of human exposure to the experimental substances. The citizen groups and others urged the Board to undertake HEPA review before approving the project, but the Board of Agriculture ignored their pleas, and fail to give the reason for its refusal.

The biopharm algae project would use state lands and, therefore, triggers the requirement under HEPA that the state conduct an environmental assessment to determine whether the project "may" have a significant effect on the environment, in which case a more detailed environmental impact statement (EIS) would have to be conducted.

The Board, however, claimed in the lawsuit that their permitting system was not subject to HEPA. The Board also argued that EISs conducted several decades ago, when NELH was first built, covered this particular project.

The Court rejected these arguments, noting during the hearing that HEPA applies to all agencies, and that future projects would require their own environmental reviews.

"Introducing genetically engineered organisms to the ecologically sensitive Kona coast poses significant environmental threats," said Jeff Mikulina, Director of the Sierra Club, Hawaii Chapter. "We appreciate that the court is requiring the state to look before they leap."

"This case highlights the importance of citizen participation in the land use decision making process and the need for agencies to examine the environmental and cultural impacts of their decisions," said Karen Eoff, president of Kohanaiki Ohana. "The court's ruling recognizes these fundamental values."

"The court has upheld the protection of our unique and pristine Hawaii ecosystem," said GMO-Free Hawaii member Nancy Redfeather. "Introduction of any genetically engineered organisms must be carefully considered for their long-term effects on our land and community."

* * *

Oil Development May Be Banned in Part of Carson National Forest

WASHINGTON, DC, October 12, 2005 (ENS) - Congressman Tom Udall, a New Mexico Democrat, Tuesday confirmed that the House will hold a hearing October 26 to consider his legislation to prohibit oil and gas drilling on the 100,000 acre Valle Vidal Unit of the Carson National Forest.

The hearing on the Valle Vidal Protection Act, H.R. 3817, will be held before the House Resource Subcommittee on Forests and Forest Health. Udall is the top Democrat on the subcommittee.

"I am pleased that the committee is moving forward so quickly on my legislation," Udall said. "My hope is that this hearing will help everyone understand the importance of this unique national treasure. Based on the positive response my legislation has already received, I remain steadfast in my conviction that the Valle Vidal should be protected from oil and gas development."

Introduced in September, the legislation, would bar mineral extraction, but it does not change the area's status and will ensure that the current recreational and ranching uses of the Valle Vidal will continue.

Straddling the Colfax-Taos county line, the Valle Vidal harbors one of the densest concentrations of wildlife in the state. It is home to 60 species of mammals, 33 species of reptiles and amphibians, and 15 species of fish.

Thirty years ago, the Pennzoil Co. purchased nearly 500,000 acres of the land, which was being used as a hunting park. Pennzoil maintained the area as such until 1982, when it donated a 100,000 acre parcel of it to the federal government - at the time, the largest donation in Forest Service history.

During its ownership, Pennzoil never opened the area for oil and gas drilling.

Gary Fonay, past president of the New Mexico Oil and Gas Association, welcomed the announcement of the congressional hearing. "As a petroleum engineer, I am pro-development. However, I strongly believe in a balanced energy policy. There are some areas that should be set-aside strictly for their recreational value. To me, the Valle Vidal is one of those places."

* * *

Pennsylvania Attorney General Takes Tough Stance on Polluters

EMMAUS, Pennsylvania, October 12, 2005 (ENS) - Pennsylvania Attorney General Tom Corbett Tuesday announced his support for proposed amendments to Pennsylvania's Clean Streams Law and Solid Waste Management Act. The changes increase the penalties for polluters who harm Pennsylvania's land and waterways.

Currently, most violations of this law carry a maximum sentence of one year imprisonment and a $25,000 fine. The amendments would increase the penalties to a maximum of seven years imprisonment and a $50,000 fine.

"It is important that we send a clear message to polluters that Pennsylvania is not a dumping ground for their waste," Corbett said. "These changes will enhance our efforts to investigate and prosecute environmental crimes across our state, and also ensure that the punishment fits their crime."

The legislation calls for tougher penalties in cases where prosecutors can prove that the pollution was intentional and also increases penalties based on the amount of waste that was dumped.

State Representative Douglas Reichley, a Republican, who is sponsoring the proposed changes said, "Current penalties don't do enough to prevent pollution across the Commonwealth. Stronger penalties are needed to discourage reckless or intentional pollution and better enable the Attorney General to go after environmental law violators."

Corbett said current law treats water pollution and dumping cases as third-degree misdemeanors - the lowest level of misdemeanor offense under Pennsylvania law.

"We need to make sure that the punishment fits the crime," Corbett said. "It's common sense that large-scale polluters should face stiffer fines and longer prison terms, but that's not the case under current state law. Right now, all these crimes are treated the same."

Under the amendments, intentional violations of the Clean Streams Law would be increased to a third-degree felony, punishable by up to seven years imprisonment and a $50,000 fine.

Violations involving more than 500 cubic yards of waste - approximately five large tractor trailers - would be classified as third-degree felonies, also punishable by seven years imprisonment and a $50,000 fine.

Corbett said the current penalties are inadequate to effectively deter pollution, and may actually make Pennsylvania an attractive dumping ground for polluters who face much tougher penalties in neighboring states such as New Jersey, New York and Maryland.

* * *

Eighth-Graders Link Air Conditioning to School Mold

CHESAPEAKE, Virginia, October 12, 2005 (ENS) - What began as an eighth-grade science experiment at a Chesapeake, Virginia school turned into the discovery that mold grows in dozens of classrooms when the school air conditioning system is turned down during nights and weekends.

A group of eighth-grade students at the Great Bridge Middle School caught the attention of school officials recently by establishing a link between HVAC system usage, classroom humidity levels, and mold growth.

The students recorded temperature and humidity in 30 individual classrooms throughout the school using data loggers, and used accompanying software to generate time-stamped graphs that compared humidity levels during and after normal school hours.

"About half the square footage of our school is newly remodeled, and moisture doesn't seem to escape as well as it does in the old building," said science teacher Stephen Sawyer, who led the project. "There was visible mold growth on some of the classroom walls. So, while the students were tracking temperature and humidity levels, they took mold culture samples from the rooms and kept track of growth rates in Petri dishes.

The students learned that the changes in the humidity from day to night, and from school days to weekends, were dramatic. The readings fluctuated from the low 30 percent range to over 60 percent on nights and weekends, and within a few weeks some of the mold samples had grown to 90 percent coverage of the Petri dishes."

Sawyer said the experiment, conducted as part of an K-12 energy contest sponsored by Massachusetts-based iScienceProject, was originally designed to look at the efficiency of the school's HVAC equipment using HOBO data logger kits loaned out by the company.

The idea to investigate the link between HVAC system usage and mold growth came after staff complaints about breathing difficulties.

"A few of our older staff members, who never had any breathing problems in the old building, all of a sudden were having issues in the new building," Sawyer said.

While there was no way to directly link mold growth to the complaints, Sawyer and his students were able to collect irrefutable evidence of a high-humidity problem during school off-hours. Sawyer said that district officials have responded to the experimental findings and are investigating the cause of the mold growth.

He added, "My students had the opportunity to conduct a scientific investigation of a problem in their own school, and because of their efforts, they have a chance here to make a positive impact on their own environment."

The IScienceProject, a division of Onset Computer Corporation, offers free loans of HOBO data loggers to K-12 teachers in the United States and a website where students and teachers can download over 100 free classroom labs, and participate in contests. See: http://www.iscienceproject.com.

* * *