AmeriScan: February 4, 2003

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Judicial Nominee Challenged Over Silence

WASHINGTON, DC, February 4, 2003 (ENS) - The U.S. Senate is expected to vote Wednesday on a controversial Bush nominee for a lifetime seat on a critical federal appeals court.

Miguel Estrada would be the first Hispanic judge to serve on the United States Court of Appeals for the District of Columbia Circuit - considered the second most important court in the nation, particularly regarding conservation laws. Estrada was first nominated by President George W. Bush in May 2001, when Democrats controlled the Senate, but after just one hearing, the Senate failed to come to a vote on the nominee.

With Republicans now controlling the Senate and all its committees, Estrada's nomination passed the Senate Judiciary Committee last week on a narrow, 10-9 vote, split along party lines. The full Senate is scheduled to review his nomination tomorrow.

Conservation and civil rights groups, and Senate Democrats, object to Estrada's nomination largely due to the lack of information on his personal politics. Estrada has no previous judicial experience, and has refused to comment on his record or views.

The Department of Justice, which employed Estrada from 1992 to 1997, has also declined to release any information about him. Such materials were made available for previous judicial nominees such as Robert Bork, William Rehnquist, Frank Easterbrook and Stephen Trott.

"This is a difficult nomination, because the level of concern out there among civil rights groups, Hispanic organizations, and others is only matched, really, by the lack of information we have about this nominee," said Senator Dianne Feinstein last Thursday. Feinstein, a California Democrat, spoke out against Estrada's nomination before the Judicial Committee vote.

"I must say that throughout this process I have been struck by the truly unique lack of information we have about this nominee, and the lack of answers he has given to the many questions raised by Members of this Committee," Feinstein added. She noted that Estrada repeatedly refused to answer questions that might reveal where he stands on controversial issues such as abortion, gay rights, labor rights, and limits on smog and soot pollution.

If appointed to the DC Circuit court, Estrada would have a say in the outcome of a wide variety of environmental lawsuits, as the DC Circuit holds exclusive jurisdiction to hear challenges to many federal laws, including national environmental legislation. The court's decisions are seldom reviewed by the Supreme Court.

"Americans deserve to know whether our judges support the right to breathe clean air and drink safe water, or whether those judges side with industrial polluters," said David Bookbinder, senior attorney for the Sierra Club. "Miguel Estrada is a mystery nominee who refuses even to discuss his views on any legal issue. How can Senators exercise their constitutional duty to advise and consent on judicial nominees when the Bush administration continues to bury any information about Miguel Estrada?"

Judges appointed to the DC Circuit court serve for life, unless they are promoted to an even higher court. Estrada has already been discussed by officials in the Bush administration as a potential nominee to the U.S. Supreme Court.

Earthjustice, a non-profit environmental law firm, has urged the Senate to hold judicial nominees to a certain standard, requiring each nominee to "affirmatively establish his or her qualifications."

"No President has a mandate to appoint to the federal courts judges who are or may be hostile to laws protecting the environment and the public's health and welfare," Earthjustice stated. "The mere absence of disqualifying evidence in a nominee's record should not constitute sufficient grounds for confirmation."

Based upon the current record, Earthjustice believes that Estrada has not met this standard. The Senate has already confirmed more than 100 of President Bush's nominees to the federal courts, and Earthjustice has come out in opposition to just one other such nominee: Judge D. Brooks Smith, confirmed to the 3rd Circuit last July.

"If we confirm Miguel Estrada, we're ratifying a 'don't ask, don't tell' policy for judicial nominees," noted Senator Charles Schumer, a New York Democrat on the Judiciary Committe. "By remaining silent, Mr. Estrada only buttressed the fear that he is a far right stealth nominee."

Earthjustice joined the Sierra Club, the Congressional Hispanic Caucus, the Congressional Black Caucus, the Puerto Rican Legal Defense and Education Fund, Mexican American Legal Defense and Education Fund, the AFL-CIO, the NAACP, the Leadership Conference on Civil Rights, the Feminist Majority, and Planned Parenthood in opposing Estrada's nomination.

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Groups Appeal Flawed California Air Program

SAN FRANCISCO, California, February 4, 2003 (ENS) - A coalition of medical, community and environmental groups has filed a petition asking an appeals court to review federal approval of regulations governing dust pollution in California's San Joaquin Valley.

The groups asked the Ninth Circuit Court of Appeals in San Francisco to review the U.S. Environmental Protection Agency's (EPA) approval of Regulation VIII, a set of rules governing fugitive dust pollution in the San Joaquin Valley. The coalition, which includes Medical Advocates for Health Air, Latino Issues Forum, and the Sierra Club, charge that the rules contain loopholes for some of the region's largest sources of air pollution.

"Farming operations account for nearly 25 percent of all particulate emissions in the Valley and unpaved roads create another 25 percent of the particulate matter. So the loopholes in Regulation VIII exempt nearly half of all sources. That is not regulation; that's playing favorites," said Kevin Hall with the Tehipite Chapter of the Sierra Club.

The Clean Air Act as amended in 1990 requires local air pollution control districts to submit cleanup plans in areas polluted by particulate matter (PM). Districts were to implement all "reasonably available control measures" (RACM) by 1993 and the "best available control measures" (BACM) by 1997.

On January 22, the EPA conditionally approved Regulation VIII, a set of rules to control airborne dust emissions from unpaved roads, construction sites, open areas, and bulk materials. The agency admitted that the rules do not constitute the best available control measures.

But, while recognizing that the local air district has yet to demonstrate that the rules represent reasonable control measures, and giving the district another year to submit the demonstration required by law, the EPA also issued a finding that the rules do meet the RACM requirement.

The groups filing the lawsuit contend that the regulation as approved will not clean up the air and should be rejected by the court.

Regulation VIII, as it stands:

"The approved plan was a sweetheart deal written behind closed doors by industry and EPA as a way to avoid the cutoff of federal highway funding and to duck EPA's obligation to prepare its own cleanup plan," said Mike Sherwood, an attorney with the environmental law firm Earthjustice, which is representing the coalition. "I believe that any court looking at EPA's action will reject Regulation VIII and send the agencies back to the drawing board to finally get serious about cleaning up particulate air pollution in the Valley."

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BLM Reviews Land Exchange Policies

WASHINGTON, DC, February 4, 2003 (ENS) - The Bureau of Land Management (BLM) has created a work group to evaluate the agency's land exchange and appraisal processes in light of recommendations by the Office of the Inspector General and the General Accounting Office.

The work group will also consider the conclusions of an October 2002 report prepared under contract by the Appraisal Foundation, said Jim Hughes, BLM deputy director for policy and external affairs.

"We selected the members of this work group because of their expertise and their proven integrity," Hughes said. "The BLM remains committed to making sure that our land exchange process protects the public interest and operates in a way that is impartial, credible, and consistent nationwide."

The Appraisal and Exchange Work Group, which Hughes will chair, draws its membership from the BLM, the Interior Department, other federal agencies, and state government agencies familiar with the land exchange process and appraisal activities. The work group will develop recommendations to strengthen management oversight of land exchanges and real estate appraisals and ensure adequate controls are in place for management decisions involving such exchanges and appraisals.

The BLM anticipates forwarding recommendations made by the work group to the Interior Secretary toward the end of the summer.

The BLM conducts hundreds of land exchanges each year, and says the "vast majority" of these occur without controversy. Land exchanges enable the BLM to change the checkerboard pattern of federal, state and privately owned lands in the western states into consolidated areas that can be managed more efficiently. This checkerboard pattern was created by past policies intended to encourage the building of railroads and other developments.

Land exchanges have also proven useful in resolving land use conflicts involving threatened and endangered species. The BLM's authority for land exchanges derives from the Federal Land Policy and Management Act of 1976 (FLPMA) and the Federal Land Exchange Facilitation Act, which amended FLPMA in 1988.

Before exchanges are approved, both the existing federal parcel and the non-federal lands must be appraised to ensure that they are of equal value, so that the federal government does not trade away valuable lands at taxpayer expense. In addition, Congress has broad legislative authority to approve land exchanges that do not require an equal value.

But the report last October by the independent Appraisal Foundation concluded that the BLM has a history of approving deals that favor developers. The report recommended that some completed deals be referred to the Justice Department for possible civil or criminal prosecution.

"The BLM appears rife with internal dissatisfaction, confusion, controversy and outside political pressures on its performance that affect the appraisal function and the BLM at large," the report states. "It appears that violations of law may have occurred."

The foundation found a pattern of "abuses of the public trust where there is a failure to comply with laws or to conduct orderly operations in accordance with written guidance."

Conservation groups obtained the report, which the BLM had not made public, and released it to the public and the media.

The BLM manages more land - 262 million surface acres - than any other federal agency. Most of the country's BLM managed public land is located in 12 western states, including Alaska.

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More Floods May Mean More Plant Invasions

CHAPEL HILL, North Carolina, February 4, 2003 (ENS) - Areas subject to frequent flooding show a higher number of invasive exotic plants than upland regions outside of floodplains, a new study shows.

In a study presented in the January issue of the journal "Ecology," University of North Carolina at Chapel Hill researchers Rebecca Brown and Robert Peet demonstrate that nutrient rich riverbanks and other frequently flooded areas are ideal for both native and invasive plants to take root.

Mild to low intensity disturbances, such as a small flood from a rainstorm every year, or larger floods every few years, create space and make nutrients available, allowing new plants to grow. Scientists call this an immigration process.

In contrast to extinction processes such as competition, extreme disturbances, and environmental stresses, the immigration process sets the stage for new life.

"Community composition is driven by immigration. Areas disturbed frequently, such as riversides and roadsides, are more receptive to propagules from native species and also prove to be just as hospitable for exotics," said Brown.

Brown and Peet, along with a team of field assistants, traversed the countryside collecting data along rivers and uplands in the southern Appalachian forests of North Carolina to compare the relationship between exotic and native species richness. Combining information from the Carolina Vegetation Survey database and the United States Department of Agriculture Plants database, the duo studied riparian areas within 100 year flood zones and uplands outside of the floodplains.

They also took into account differences in soil acidity, geology, and other factors, recording both herbs and trees in almost 1200 plots.

The researchers found species diversity to be much higher for both native and exotic species in the riparian areas than in upland areas.

"Riparian areas have roughly 40 times greater mean exotic species per plot then upland areas," said Brown.

Even when examining areas with comparable amounts of light availability and soil fertility, the results remained fairly similar. As flood frequency decreased, the number of exotic species decreased.

But species richness - the variety of species - for native and exotics also decreased. According to the researchers, these results may be a combination of fewer seeds and less disturbances, leading to fewer opportunities for exotics to invade the upland sites.

Brown and Peet also looked at the results in terms of scale. Previous research suggests that high species diversity should reduce the potential for nonnative invasions, because the more species compete in an area, the fewer resources are available to incoming species. Brown and Peet's study validated this concept at the small scale.

However, it did not hold true when they compared diversity of exotic and native species in large scale areas.

"It is possible that we see this phenomenon only at small scales because plants compete at small scales," Brown explained, "while at large scales, flooding, variations in seed supply, or variations in resource availability allow the immigration of all types of new species, native and exotic, into the community."

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Sewage Sludge Touted for Waste Management

MADISON, Wisconsin, February 4, 2003 (ENS) - Sewage sludge could boost crop production and reduce the amount of wastes sent to landfills, say scientists at the University of Florida.

Using organic waste as fertilizer is not a new concept. Before the 1940s, when synthetic nitrogen fertilizer became widely available, animal manure and human waste were often used for improving crop yields around the world.

The technique is now receiving renewed interest as municipalities face increasing waste disposal challenges. But critics of the process warn that even treated sludge - a byproduct of treating municipal and industrial wastewater - may contain toxic chemicals such as polychlorinated biphenyls (PCBs), lead and mercury, which can cause serious illnesses, including cancer and birth defects.

In a study conducted in Florida from 1997 to 2000, scientists from the University of Florida's Institute of Food and Agricultural Sciences compared the effects of different kinds of sewage sludge versus common synthetic nitrogen fertilizers on the forage crop bahiagrass.

Researchers Martin Adjei and Jack Rechcigl studied yield, protein content, mineral content, and digestibility. Accumulation of heavy metals and nutrients in the crops, groundwater and soil were also evaluated.

Funded in part by the Florida Department of Agriculture and Consumer Services, the study showed that liquid forms of sludge are just as effective as traditional synthetic fertilizer. Some minerals such as phosphorus, calcium, and iron were higher in crops fertilized with sludge.

In a very dry year, the water in liquid sludge can also enable nutrients to reach the crop's rooting zone more effectively than synthetic fertilizer, the researchers found.

"Liquid sludge if processed and applied according to specific guidelines has the potential to boost production dramatically. It is low in pathogens, inexpensive, and environmentally safe," said Adjei. About half of Florida's 2.5 million acres of bahiagrass are fertilized with synthetic fertilizer every year.

"While we did observe negligible traces of heavy metals in crops, groundwater, and soil regardless of how the crops were fertilized," Adjei added, "this was not significant nor surprising given Florida's small industrial base and its successful efforts to prevent industrial sources of metals from contaminating sewage."

A survey by the U.S. Environmental Protection Agency showed the amount of sewage sludge generated in the United States increased from 8.5 metric tons in 1990 to more than 12 metric tons in 2000. At the same time, there has been an increase in public interest for finding alternative solutions to waste disposal.

In July 2002, the National Research Council released a study suggesting that treated sewage sludge may be causing health problems for workers who apply it to land and for residents who live nearby. More rigorous enforcement of existing standards is needed, the council wrote, to prevent illnesses from exposure to the toxins, bacteria and viruses that sludge may contain.

The University of Florida study appears in the November/December 2002 issue of "Agronomy Journal."

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Ozone Could Kill Pests in Grain

WEST LAFAYETTE, Indiana, February 4, 2003 (ENS) - Ozone can eliminate insects in grain storage facilities without harming food quality or the environment, say researchers from Purdue University.

The gas is being touted as a fumigant alternative in response to an international treaty banning the use of insect killing chemicals that can harm the stratospheric ozone layer that helps protect the Earth from harmful ultraviolet radiation.

When ozone is used for killing grain insects, it lasts for a very short period of time without damaging the environment or the grain, the Purdue scientists report in the January issue of the "Journal of Stored Products Research."


Researcher Linda Mason and her team used mesh bags filled with corn and other grains and infested with insects to test ozone as a fumigant alternative. (Purdue Agricultural Communications photo/Tom Campbell)
"Ozone has a very short half-life and we're using relatively low dosages, but enough to kill an insect," said Linda Mason, Purdue entomology associate professor and co-author of the study. "The chemicals currently used can kill everything in and around the grain bin, including people. With ozone, we're not generating ozone at deadly concentrations, and we have better control over it when it's present."

Purdue's Post Harvest Grain Quality Research team began its studies in response to the 1987 Montreal Protocol, an international agreement to prohibit substances deemed dangerous to the Earth's ozone layer. One such substance is methyl bromide, used against crop pests in the soil and in grain storage facilities.

Under the Montreal Protocol, methyl bromide will be banned starting in 2005.

A replacement these chemical fumigants is needed because insects not only eat grain, they also defecate on it, causing development of harmful fungi. These fungi can release toxins that can cause illness in livestock and have been linked to some forms of human cancer.

Experts estimate that between five and 10 percent of the world's food production is lost each year because of insects, and in some countries that figure is believed to be as high as 50 percent.

In their latest study, Purdue researchers used ozone to treat rice, popcorn, soft red winter wheat, hard red winter wheat, soybeans and corn. They used five-gallon plastic pails and 50 gallon steel drums, storage bins filled with grain, and buried mesh bags all filled with grain and a known number of grain eating insects to test ozone's efficiency at killing these pests.

The teams used two applications of ozone. In the first, the ozone moves through the grain slowly because the gas reacts, or bonds, with matter on the grain surface. This first treatment allows ozone to react with most of the grain surface and degrades the ozone, Mason said.

With the second ozone application, the gas moves through the grain more quickly because it is not slowed by reactions with the grain. This allows the ozone to kill the insects by reacting with them rather than the grain.

The researchers found that there was almost no difference in the appearance and nutritional quality of grain treated with ozone and untreated grain, making ozone treatment suitable for the food industry.

The researchers are now studying ways to use ozone as a preventative treatment, perhaps by sealing grain storage facilities with layers of ozone.

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Easement Protects Montana Ranch

BOZEMAN, Montana, February 4, 2003 (ENS) - A conservation easement will now protect a 100 year old working ranch on the East Gallatin River in Montana.

The Trust for Public Land (TPL) and the Gallatin Valley Land Trust (GVLT) have completed the $2 million purchase of a the conservation easement, which will prevent subdivision or development of almost 960 acres of ranchland and a three mile stretch of the East Gallatin River - one of southwest Montana's premier fly fishing streams.

The project is the state's first major easement purchase funded with proceeds from the Gallatin County Open Space Grant Program and the federal Farmland Protection Program.

The transaction places a conservation easement on ranchland that has been owned and operated by the Cowan and Skinner Ranch Corporation since the late 1800s. The easement, which has been appraised at $3,660,000, was purchased for a bargain price of $2,000,000.

Funding for the purchase includes $950,000 from the Gallatin County Open Space Program, $1,000,000 from the federal Farmland Protection Program and $50,000 from the Doris Duke Charitable Foundation as part of its Greater Yellowstone Land Protection Initiative.

The conservation easement, which limits the future development potential of the property while allowing traditional farming and ranching activities to continue, will be held by the GVLT for long term monitoring and stewardship.

"As a local community organization, GVLT is honored to partner with a family that has been part of the community for generations," said Debbie Deagen, executive director for GVLT. "Together with the Skinner family, we have designed a conservation easement that preserves the flexibility the family needs to maintain a working agricultural operation, while also preserving important wildlife habitat and the scenic character of the East Gallatin River."

Joe Skinner, speaking on behalf of the ranch corporation, said that he was pleased with his family's decision to sell the easement.

"Our family loves this land and is deeply committed to making sure that it is conserved for our kids and future generations," Skinner said. "The easement that we are placing on our property conserves critical wildlife habitat, protects an important trout spawning ground and ensures that our family ranch remains a viable agricultural unit."

Two years ago, voters in Gallatin County passed a $10 million bond to protect critical farm and ranchland, wildlife habitat and open space. The bond measure, which received almost 60 percent of the vote, is being watched throughout the region and, if successful, could serve as a model that other communities could copy to protect those landscapes that they care about.

"This project is exactly what we had in mind when we put this issue in front of the voters two years ago," said Gallatin County commissioner Bill Murdock. "It is a perfect example of the agricultural heritage and quality of life that we are trying to protect in this county."

Two years ago, TPL, in cooperation with the National Cattlemen's Beef Association and the Western Governors Association, published a report titled, "Purchase of Development Rights [PDR]: Conserving Lands, Preserving Western Livelihoods." The report, which has been well received, provides practical information about how landowners and their communities can use PDR programs to protect the economic productivity and the ecological welfare of their working lands.

"The Skinner Ranch easement purchase is a perfect illustration of the message that we are trying to send," noted Alex Diekmann, TPL's local project manager. "PDR programs are a voluntary, market based approach to conservation that protects land from development, compensates farmers and ranchers for the rights that they are giving up and keeps them on the land. Since farmers and ranchers control much of our most cherished landscapes in the West, helping them to achieve their personal and financial goals is critical."

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Chemical Detectors Could Aid First Responders

WHEELING, West Virginia, February 4, 2003 (ENS) - America's front line emergency responders will soon have as part of their standard gear a low-tech chemical detection warning badge to alert them of hazardous environments.

The HazMat Smart Strip was developed by Safety Solutions Inc. to assist fire, emergency medical, law enforcement, hazardous materials teams and military personnel - such as those assisting with the recovery of debris from the Space Shuttle Columbia crash - in detecting hazardous chemicals.

Printec, a family owned commercial printing business in Wheeling, will manufacture the HazMat Smart Strip.

"We have identified eight categories of chemical products, and when one of these liquid or aerosolized products comes in contact with the reagent strip, the strip instantly changes color, allowing the responder to either seek shelter, evacuate or decontaminate," said Safety Solutions' Mike Reimer, an active HazMat responder with 17 years of experience as a hazardous materials technician.

Comprised of reagent strips for chlorine, pH, flouride, nerve, oxidizer, arsenic, sulfides and cyanide, the HazMat Smart Strip is a light weight, simple and accurate detector for harmful chemicals. For example, the HazMat Smart Strip can detect ammonia, one of the four compounds used on the Columbia that could pose a hazard to people on the ground recovering debris.

"The strip is designed to instantly alert workers to the presence of these chemicals. Workers are then able to protect themselves by donning the appropriate gear," said Reimer.

Patrick Mull, a 26 year veteran of the Marshall County, West Virginia Sheriff's Department and a volunteer firefighter since he was 15 years old, said the HazMat Smart Strip would be a "wonderful" personal safety device. Most first responders now rely on sight and smell when investigating an incident such as a tanker truck accident or a spill at a chemical plant.

"The HazMat Smart Strip is very easy to use. You peel the strip off to activate it, and then it basically becomes a sensing unit," Mull said. "It is doing all the work for you. As soon as it detects something, it is going to change color. As long as you are cognizant that you have to look at it, you are going to understand that you could be in danger."

The commercialization of the product can trace its roots to the National Technology Transfer Center's Emergency Response Technology (ERT) Program, a national initiative focused on commercializing products designed to keep firefighters and emergency responders safe on the job. The ERT Program assisted Safety Solutions from concept stage through commercialization.

"The assistance the ERT Program has given us has been overwhelming and second to none as far as the professionalism and willingness to work with us as a small developer," Reimer said. "Our main focus was to provide to emergency response professionals a product that is reliable and one that can have a significant impact at an emergency scene. Without the ERT Program, we would not be able to move this product to market."