• Californians Could Get $2.8 Billion in Energy Refunds
  
• Appeals Court Blocks Biscuit Fire Salvage Logging
  
• EPA Documents Progress in Limiting Fine Airborne Particles
  
• Childrens' Lung Function Stunted in Smoggy Areas
  
• Caustic Water Release Draws $1.4 Million Fine
  
• Underfunding, Development Threaten Canyonlands National Park
  
• New Jersey Requires Cleanup of Five Raritan River Sites
  
• Hydroponic Forage Cultivation May Prevent Future Water Wars
  

Californians Could Get $2.8 Billion in Energy Refunds

In a case brought by California Attorney General Bill Lockyer, the three judge panel concluded that the Federal Energy Regulatory Commission (FERC) "abused its administrative discretion by declining to order refunds for violations of its reporting requirements."

The court sent the case back to FERC for refund proceedings.

Judge Sidney Thomas wrote on behalf of the panel, "The power to order retroactive refunds when a company’s non-compliance has been so egregious that it eviscerates the tariff is inherent in FERC’s authority to approve a market-based tariff in the first instance. FERC may elect not to exercise its remedial discretion by requiring refunds, but it unquestionably has the power to do so."

Governor Arnold Schwarzenegger said Thursday, "I think the 9th Circuit Court's decision is a fantastic one. Californians deserve refunds to fairly compensate them for the excessively high prices they paid during the energy crisis."

"The Court's action today gives clear direction to FERC that they should issue significant refunds to California ratepayers who were overcharged," the governor said.

Lockyer called the ruling, "a huge victory for California ratepayers, and vindication for state officials who have been struggling for years to wrench justice out of FERC. The ruling puts back on the table $2.8 billion in refunds that FERC had denied ratepayers.

"And the court echoed points we have been making throughout this long legal battle," said Lockyer, "the watchdog was sleeping during the robbery, it failed to enforce its own rules, and it unduly restricted remedies for consumers with artificial chains."

The FERC market-based system had three components: FERC must determine sellers cannot exercise market power; if it makes that determination, it grants sellers market-based rate authority; and sellers given that authority must file quarterly reports with FERC detailing their market transactions. The ruling hinged on the last prong.

Sellers routinely failed to file the quarterly reports with the transaction specific information.

The court noted that FERC itself called the reports crucial to proper implementation of the market-based system, and acknowledged rampant violations of the rule during the energy crisis.

Nevertheless, FERC determined it had no authority to order retroactive refunds for the reporting failures, calling them a mere technical compliance issue.

Power companies have been convicted of manifpulating energy markets to artificially drive up California electricity prices during the 2000-2001 time period. The manipulation drove California’s largest utility, Pacific Gas and Electric to file a voluntary bankruptcy petition.

In January of 2001, then Governor Gray Davis declared a state of emergency. In light of rolling blackouts, Davis directed the state Department of Water Resources to purchase wholesale power on the spot market. By October of 2001, state agencies had spent approximately $10 billion buying energy on the spot market.

Lockyer advised that the ruling could pave the way for reconsideration of another FERC decision to deny billions of dollars in refunds to the California Department of Water Resources. Additionally, federal court rulings denying damages to California in antitrust lawsuits against energy companies could be revisited.

Appeals Court Blocks Biscuit Fire Salvage Logging

The 2-1 ruling by a three judge panel of the U.S. Ninth Circuit Court of Appeals reverses a lower court decision and is a major victory for environmentalists eager to permanently block logging in these old growth reserves.

"The court's action gives us a chance to find some balance here that will actually be good for the forests and the people in the region, instead of just logging everything in sight," said Earthjustice attorney Todd True, who is representing some of the conservation groups in the suit.

Forest groups say the ruling means it is unlikely the trees can be harvested from the fire-ravaged areas before they rot. The American Forest Resource Council said it still might ask the full 9th Circuit Court of Appeals to review the decision of the three judge panel.

The decision is the latest legal twist over how to recover broad swaths of forest ravaged by the Biscuit fire in 2002.

The blaze ravaged some 500,000 acres in southwest Oregon 2002, much of it in the Siskiyou National Forest.

The overall salvage plan is one of the largest proposed timber sales in U.S. history – it would allow the logging of some 370 million board feet.

Environmentalists challenged parts of the plan, which they believe reflect the Bush administration’s desire to use the fire as an excuse to sell large, old growth trees that would otherwise be off limits.

The suit alleges that the plan to log the old growth reserves violates federal laws that protect ancient forests for wildlife and salmon and the public’s right to have a role in deciding the management of these public lands.

The injunction covers seven timber sales on 6,600 acres in old growth forest reserves within Oregon’s Siskiyou National Forest. The sales include some 47 million board feet and were auctioned by the Forest Service in July.

These reserves were designated primarily for fish and wildlife habitat under the 1994 Northwest Forest Plan.

"These old growth forest reserves are vital for native fish and wildlife," said David Bayles of Pacific Rivers Council, a plaintiff organization. "Logging in these reserves would destroy Oregon’s native forest and promote erosion that would pollute world class salmon and steelhead streams."

EPA Documents Progress in Limiting Fine Airborne Particles

The PM research report is available online at: http://www.epa.gov/pmresearch

For more information on the fine particle standard, go to: http://www.epa.gov/pmdesignations/

Childrens' Lung Function Stunted in Smoggy Areas

The research is part of the Children's Health Study, the longest investigation ever into air pollution and childrens' health.

"Teenagers in smoggy communities were nearly five times as likely to have clinically low lung function, compared to teens living in low pollution communities," explains the study's lead author Dr. W. James Gauderman, Ph.D., associate professor of preventive medicine at the Keck School of Medicine of the University of Southern California.

"These are pollutants that all derive from vehicle emissions and the combustion of fossil fuels," says Gauderman.

Low lung function compounds breathing problems. "If a child or young adult with low lung function were to have a cold, they might have more severe lung symptoms, or wheezing," Gauderman says. "They may have a longer disease course, while a child with better lung function may weather it much better."

Potential long-term effects parallel those of smoking tobacco. Gauderman says, "Low lung function has been shown to be second only to smoking as a risk factor for all-cause mortality."

People with clinically low lung function have less than 80 percent of the lung function expected for their age, a problem that might would raise concerns during a doctor's exam. For example, someone with sub-par lung function cannot exhale and blow up a balloon as quickly or as big as someone with good lung function could.

Between 1993 and 2001, study scientists from the Keck School tracked levels of major pollutants in 12 Southern California communities while following the pulmonary health of 1,759 children as they progressed from fourth grade to 12th grade.

The 12 communities included some of the most polluted areas in the greater Los Angeles basin, as well as several low pollution sites outside the area.

The researchers previously found that children who were exposed to more air pollution scored lower on respiratory tests. In this latest study, researchers analyzed the same children's respiratory health at age 18, when lungs are almost mature.

"When we began the study 10 years ago, we had no idea we would find effects on the lung this serious," says John Peters, M.D., Hastings professor of preventive medicine at the Keck School, director of the Southern California Environmental Health Sciences Center, and senior author of the study.

Researchers correlated the students' lung health measurements with levels of air pollutants monitored in the communities during the same time period.

They found greater deficits in lung development in teenagers who lived in communities with higher average levels of elemental carbon, nitrogen dioxide, acid vapor, and fine particulate matter.

The research team will continue to follow the study participants into their early 20s, when their lungs will mature and stop developing entirely. They seek to find out if the participants begin to experience respiratory symptoms and if those who moved away from a polluted environment show benefits.

Caustic Water Release Draws $1.4 Million Fine

The nearly $1.5 million fine handed to Industrial Zeolite is the largest environmentally related fine ever in Rapides Parish and the largest Clean Water Act violation fine levied in the Western District of Louisiana.

Industrial Zeolite manufactures a mineral product used in the making of detergents and water softeners.

In February 2004, the company was charged with releasing 1.1 million gallons of very alkaline wastewater into a ditch that flows into the Callahan Bayou which feeds into the Red River. The wastewater, released December 31, 2002, contained sodium hydroxide and aluminosilicate.

The company and Drouin were also found guilty of failing to report the release of up to 84,000 gallons of wastewater containing 5,505 pounds of sodium hydroxide and 2,000 pounds of aluminosilicate between December 26, 2002 and January 6, 2003.

Sodium hydroxide is a caustic substance, and the release of it or aluminosilicate into water can harm fish, wildlife, and aquatic life and make surface waters unsafe for human recreation and drinking, the EPA said.

The company was fined $1 million and required to pay $457,440 in remedial payments. The remedial payments will be used to offset the cost of the prosecution and provide local government agencies with training and equipment to deal with hazardous material spills.

The company also was required to remediate damage caused by the spill.

Drouin will serve five months in prison and five months in home confinement. He must also pay a $10,000 fine.

Both defendants were also sentenced for the same offenses in the 9th Judicial District Court of the State of Louisiana. The defendants received the same sentences that were imposed in federal court and the sentences will be served concurrently.

The case was investigated by the Baton Rouge Office of EPA's Criminal Investigation Division and the Rapides Parish District Attorney's Office.

Underfunding, Development Threaten Canyonlands National Park

Established 40 years ago, on September 12, 1964, the park is still underfunded and vulnerable to vehicle traffic across its backcountry and to oil and gas drilling, the National Parks Conservation Association (NPCA) warns in a new report.

The product of a yearlong analysis, "Canyonlands National Park: A Resource Assessment," is the 17th NPCA State of the Parks report.

"This report is a wake-up call," said Jim Nations, vice president of NPCA's State of the Parks program. "The health of Canyonlands National Park could noticeably worsen unless Congress and the administration work together to address its needs."

NPCA reports that inadequate staffing and an annual funding shortfall of $2 million is impacting the ability of the National Park Service to address park threats and to meet the needs of nearly 400,000 visitors annually.

Insufficient funding impairs the park's ability to assess and protect the ancient petroglyphs and nearly 700,000 museum objects that chronicle 11,000 years of human history.

"More than two-thirds of the park's historic structures could be significantly damaged or irretrievably lost to vandalism or degradation if action is not taken within two to five years," the NPCA warns.

Canyonlands is also vulnerable to extensive road claims in its backcountry, and this sensitive area of the park may be subject to a level of traffic that the Park Service has determined would be unduly harmful.

San Juan County and the State of Utah are suing for the right to allow vehicles through a canyon in the park in a title action related to a loophole in a Civil War era law called Revised Statute 2477.

NPCA recommends that Congress work quickly to increase funding for national park operations to enable the Park Service to better respond to park threats and protect irreplaceable resources.

In addition, the NPCA says Congress should apply uniform federal standards to the review of RS 2477 claims so that degrading road development does not proceed in Canyonlands or any other national park.

The report also recommends that Congress complete Canyonlands by adjusting park boundaries to incorporate 500,000 acres of neighboring federal lands that were originally proposed for inclusion in the park.

Currently, the region is managed by various agencies with differing policies. In some places, the Colorado River is managed by the Park Service on one side and by the Bureau of Land Management, which allows oil and gas drilling, on the other.

Managing this shared ecosystem under the Park Service allows for more cost-effective and efficient protection and defends the vulnerable ecosystem from oil and gas exploration, already approved on neighboring lands.

NPCA launched the State of the Parks program in 2000 to assess the health of national parks across the country. The full Canyonlands report and more information about the State of the Parks program are found at: http://www.npca.org/stateoftheparks

New Jersey Requires Cleanup of Five Raritan River Sites

"This initiative calls for renewed action to eliminate pollution to the Raritan River, a source of drinking water for thousands of New Jersey residents and a source of enjoyment for anglers and boaters," said Campbell. "Because of cleanup delays, we seek timely action to protect this valuable ecological resource."

DEP's Raritan River initiative focuses on contaminated sites where cleanup work to address both ongoing discharges and long-term remediation has lagged in recent years.

With help from the Edison Wetlands Association, the DEP identified the five sites along the Raritan River with continuing discharges: Edison Township Landfill, Edgeboro Landfill, ILR Landfill, Hatco and Rhône-Poulenc/Bayer CropScience. DEP is reviewing additional sites along the river.

If appropriate action is not taken within new timeframes set by DEP to address the immediate concerns, the department will proceed with formal enforcement measures against the responsible parties.

The Lower Raritan Watershed covers 352 square miles in the central New Jersey counties of Middlesex, Monmouth, Somerset and Union. It contains the Raritan River, Green Brook, South River, Lawrence Brook and Manalapan Brook. Land use is more than 50 percent urban, with remaining lands wetlands, forest, agriculture, water, and barren land.

The specific actions required by DEP under the Raritan River initiative include work at several types of sites.

At Edison Township Landfill and Edgeboro Landfill in East Brunswick, recent DEP site visits identified areas where floatable material and debris were going directly into the river. The agency directed both parties to remove all waste along the riverbank to construct a shoreline stabilization system and to provide a schedule for taking these actions. The facilities are currently developing landfill closure plans for DEP approval.

At the ILR Landfill in Edison, the facility operators have complied with all closure requirements except for leachate management at the site. DEP has instructed ILR to construct a leachate management system and submit the necessary progress reports for this work by December 16.

Landfill gas is collected at ILR, Edgeboro and Edison Township landfills for use at an electric generation station on the other side of the Raritan River.

The department is requiring a large-scale PCB cleanup at the Hatco site in Woodbridge, currently owned by W.R. Grace. DEP is working with the U.S. Environmental Protection Agency to approve cleanup limits for a site-wide remedy for PCBs that involves both capping and off-site removal. The cleanup under DEP review will cost more than $20 million funded by the responsible parties.

At the Rhône-Poulenc/Bayer CropScience site in Middlesex Borough, the DEP is requiring the company to install an interim ground water collection and treatment system for arsenic this fall to end discharges to surface water entering the Raritan River. DEP also is requiring the responsible party to begin construction by May 2005 of a ditch liner system to prevent contaminants from entering the river.

The DEP is preparing to undertake similar initiatives in other parts of the state, Campbell said. The next focus will be on the lower Delaware River and environmental justice communities. DEP will conduct an analysis similar to the Raritan River effort to identify contaminated sites that need increased oversight, and the use of necessary enforcement action to ensure responsible parties stop ongoing discharges and complete long-term, permanent cleanups.

Hydroponic Forage Cultivation May Prevent Future Water Wars

Scientists from Sandia National Laboratory are growing alfalfa for livestock feed in experimental hydroponic greenhouses just north of the U.S.-Mexico border in Santa Teresa, New Mexico, a few miles west of El Paso, Texas.

The researchers say their methods could reduce the current 800,000 acre-feet of water to 11,000 acre-feet to produce an equivalent amount of livestock forage, and they can do this on less than 1,000 acres instead of 260,000 acres - the current amount used for New Mexico production of alfalfa.

Using roughly one one-hundredth the fresh water customarily needed to grow forage for livestock, the method could leave much more water available for human consumption, as well as for residential and industrial uses. As a byproduct, it also may add formerly untapped solar energy to the electrical grid.

Sandia is interested because, says lab researcher Ron Pate, "Disputes over water are possible, if not likely, causes for war in the 21st century."

Sandia's director for Geoscience and Environment Peter Davies says, "A large proportion of freshwater usage around the world is agricultural. The ability to reduce the amount of water needed for it and thus lessen the possibility of international conflict is extremely important to the security of the United States and the world."

Eighty percent of New Mexico's water use is agricultural, and more than half of that water goes to grow forage, mostly alfalfa.

Conventional farming methods in arid regions lose huge amounts of water through evaporation and over-absorption by soil. Over time, this can also result in soil salination and loss of agricultural productivity.

But hydroponic greenhouses do not require high-quality arable land to function. The plants grow directly in a watery soup of nutrients.

Sandia has installed 42 wireless sensors to ensure the experimental alfalfa plants are receiving all the nutrition they need.

The array of sensors in the 26 by 59 foot greenhouse will monitor light, temperature, relative humidity, and air pressure. The data, collected every few minutes, will be sent by phone line to a remote computer for analysis.

Whenever a humidity sensor or a timer trips a control circuit, water sprays from quarter-inch nozzles for 20 seconds into plants growing in a series of plastic trays stacked on metal racks.

To lessen labor and protect against mold, the researchers are exploring the development and use of trays that themselves would be edible by livestock, making washing and sanitizing trays unnecessary. Such tray material could also add nutrition content to the overall forage product, making it a more balanced ration for the livestock. Consumption of water, seed, and labor are also being monitored.

"We want to be aware of microclimate variances," says Pate. "We want to know how feed grows from changes in temperature and location and time of watering. That will help us modify the design and operation of the greenhouses."

In addition to these wireless sensors, researchers are designing what Gene Giacomelli of the University of Arizona (UA) calls a "speaking plant" approach, where very small, lightweight, inexpensive sensors are put directly on each plant to monitor the plant's water status, temperature, and growth rate.

"We envision these sensors linked together [via wireless communications], possibly on every plant, so the plant tells the control system directly what it needs, instead of merely monitoring air around the plant."

"This will be the highest tech going," says Giacomelli, who serves as director of the Controlled Environment Agricultural Program in UA's Agricultural and Biosystems Engineering Department.

The nutritional quality of the hydroponically grown plants will be determined by Clint Loest, a professor of animal nutrition at New Mexico State University, whose lab will compare results of feed testing with the animals' actual requirements.

"This is definitely unique in the animal forage area," he said. "If we can get the animals to perform just as well on greenhouse forage, that would be an incredible advance. It would be such a breakthrough that we might even give up a little performance if it's going to save so much water."