AmeriScan: January 27, 2003

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Injunction Bars Sonar Testing on Gray Whales

SAN FRANCISCO, California, January 27, 2003 (ENS) - A federal judge has issued a permanent injunction against the testing of a controversial sonar system that critics charge could harm migrating gray whales along the California coast.

Judge Samual Conti had earlier entered a temporary restraining order stopping the testing, designed by Woods Hole Oceanographic Institute (WHOI), until a full hearing could be held. The judge based his decision, in part, on the failure of the National Marine Fisheries Service (NMFS) to perform an analysis of possible environmental impacts from the testing and on the potential for the testing to harm gray whales.

NMFS had claimed a "categorical exclusion" that allowed them to grant amendments to an existing permit without conducting an environmental assessment. But a variety of environmental groups argued that six different exceptions to this rule applied in this case.

Judge Conti found the exclusion claim did not adequately consider a number of exceptions that could have required preparation of an environmental analysis. His ruling found that an exception for public controversy applied.

"Plaintiffs have proven that NMFS acted arbitrarily, capriciously, and in a manner contrary to law when, during its review of the application for the First Amended Permit and the Third Amended Permit, it decided not to apply the exception to categorical exclusion relating to actions that are the subject of public controversy," Conti wrote.

Dr. Peter Tyack of WHOI had planned to deploy sonar from Pacific Gas & Electric's property at Point Buchon, California from January 8 to 24. The experiment was aimed at learning whether broadcasting high frequency sonar pulses could keep whales from colliding with ships. Environmental groups charged that Tyack's sonar experiment could affect migrating gray whales, including pregnant whales and newborn calves.

The judge cited two earlier cases relating to acoustic testing on marine mammals that had resulted in injunctions. The judge noted that NMFS had prepared an environmental assessment for the initial permit based on the existence of such controversy.

"The presence of the controversy was obvious in 2000," Judge Conti ruled. "It was also obvious in 2001 and in 2002 when NMFS was considering Dr. Tyack's applications for the First Amended Permit and the Third Amended Permit. It is certainly no less obvious today."

The ruling revokes the first and third amendments to a permit granted in August 2000. The amendments permitted additional activities, including the sonar testing on gray whales. The revocation of the amendments also prevents the tagging of humpback whales in Hawaii and increasing the sound levels reaching the whales to as high as 180 decibels.

"The likely harm is pain and/or injury that marine mammals will suffer when subjected to the sounds. It cannot be doubted that the sound will, at the very least, disturb the animals to whom they are broadcast."

The court did not revoke the initial permit, which allows sonar testing at low, mid, and high frequency levels on hundreds of thousands of marine mammals.

"We are thrilled that we were able to present sufficient evidence in a very short period of time to convince the judge to revoke the NMFS permits and stop Dr. Tyack's experiments on gray whales," said Lanny Sinkin, attorney for the plaintiffs.

Plaintiffs in the case were the Hawaii County Green Party, Australians for Animals, Stop LFAS [low frequency active sonar] Worldwide Network, Channel Islands Animal Protection Association, Robert Puddicombe, and Sea Sanctuary, Inc. The coalition is now drafting a petition aimed at returning gray whales to the endangered species list.

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Lawsuit Warns of Methylmercury in Fish

SAN FRANCISCO, California, January 27, 2003 (ENS) - California's attorney general has filed a lawsuit against five grocery store chains, aiming to require the stores to post warnings about the dangers of methylmercury in fish.

In a complaint filed in San Francisco Superior Court, the attorney general's office alleges the grocers have violated Proposition 65, a ballot initiative enacted by California voters in 1986. The law requires businesses to provide "clear and reasonable" warnings before exposing people to known carcinogens and reproductive toxins.

"Generally, fish are an important source of protein," said Attorney General Bill Lockyer in filing the suit last earlier this month. "But consumers deserve to know when they are being exposed to chemicals that can cause cancer, birth defects and reproductive harm. Public health agencies have advised pregnant women not to eat swordfish and shark because those fish contain relatively high levels of mercury."

Methylmercury compounds have been listed under Proposition 65 as a chemical known to cause cancer since 1996, and methylmercury has been listed as a known reproductive toxin since 1987.

Mercury and mercury compounds have been listed as known reproductive toxins since 1990. Swordfish, ahi tuna, albacore tuna and shark contain mercury, methymercury and their compounds, all of which are ingested by people who eat the fish.

The suit asks the court to prohibit the stores from selling the fish until they post the required warning. The lawsuit involves Albertsons, Kroger, Safeway, Trader Joe's and Whole Foods.

Environmental groups warn that the problem is not limited to those grocers, or to California. The state lawsuit was spurred by undercover testing conducted by the Turtle Island Restoration Network and As You Sow Foundation, which found high levels of methylmercury in samples of fish from the five grocers.

"The public health threats of mercury contaminated seafood, particularly swordfish, are too great to ignore," said Doug Israel, project director for the Turtle Island Restoration Network. "All retailers, as well as the public health agencies of every state, have an obligation to protect the public from harmful mercury ingestion."

Methylmercury ingestion is the most common form of mercury poisoning in the U.S. According to the U.S. Environmental Protection Agency (EPA) and other public health bodies, high levels of methylmercury in the bloodstream can cause central nervous system effects such as impairment of vision, motor coordination problems, loss of feeling, and at high doses, seizures, severe neurological impairment, and even death.

The U.S. Food and Drug Administration warns pregnant women, nursing mothers and women of childbearing age not to consume swordfish, tilefish, shark or mackerel due to their high levels of methylmercury contamination. Recent research reveals that high levels of mercury in the bloodstream can cause sterility in men and women, and an increased risk of heart failure.

The conservation groups say that state public health agencies and the federal government have been slow to act to protect the public health from mercury contamination of seafood.

"Unfortunately, the Food and Drug Administration, and the Bush Administration in general, has shown itself to be beholden to special interests, and they have dragged their feet on this issue for too long," added Israel.

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Shark Fishing Quota Increases Called Illegal

WASHINGTON, DC, January 27, 2003 (ENS) - Two conservation groups have filed a lawsuit seeking to halt overfishing of large coastal shark species in the Atlantic Ocean and the Gulf of Mexico.

The Ocean Conservancy and National Audubon Society, represented by the environmental lawfirm Earthjustice, charge that the National Marine Fisheries Service (NMFS) has failed to rebuild large coastal shark populations and is allowing continued overfishing on some of the most vulnerable species by implementing risk prone quota increases.

The suit challenges NMFS' emergency rule of December 27, 2002, which raised the large coastal shark quota by 33 percent and did away with a size limit that would have protected young sharks. The groups also claim that NMFS has short circuited public participation in fisheries management by regulating via emergency rules, eliminating the opportunity for public comment.

The groups also charge that NMFS failed to do a proper environmental assessment of the full impacts of its emergency rule.

Slow growing Atlantic large coastal sharks, including sandbar, dusky and hammerhead sharks, have been overfished during recent decades. Although a 2002 population assessment indicates that two species - blacktip and sandbar - may have begun a recovery, overfishing continues on most species in the large coastal grouping, including sandbar.

"The U.S government has jumped the gun and once again jeopardized some of the oceans' most vulnerable animals. Their smoke and mirror calculations just don't add up to support more fishing," said Sonja Fordham, shark conservation specialist at The Ocean Conservancy.

"By rushing to ensure maximum exploitation of just one type of commercially caught shark they have turned their backs on a whole host of other imperiled species," Fordham added. "This risk prone action flies in the face of the precautionary approach that is so clearly warranted for sharks."

In 1999, after input from shark experts and the public, NMFS adopted a management plan focused on rebuilding 22 species of large coastal sharks in the Atlantic and Gulf of Mexico. Due to shark fishing industry lawsuits, planned quota reductions, minimum sizes, and other measures from this plan never took effect.

Since then, coastal sharks have undergone a new population assessment. This assessment found that large coastal sharks are still overfished, and suggested that quota cuts of up to 50 percent might be necessary to rebuild populations.

However, for a third year in a row, NMFS has set shark fishing quotas via emergency rule, avoiding a public comment period. This action circumvents the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and the Administrative Procedure Act, the conservation groups charge.

"What is NMFS thinking?" said Dr. Merry Camhi, assistant director of the National Audubon Society's Living Oceans Program. "The only emergency here is that most large coastal sharks are still in trouble."

Sharks are vulnerable to overfishing because they grow slowly, mature late, and produce a small number of young. Decades of unrestricted fishing for Atlantic large coastal sharks has depleted many species.

The sandbar shark population has declined by as much as 80 percent since the late 1970s, and other species remain in serious trouble. Depletion of sand tiger, night, and dusky sharks led to a prohibition on fishing for them, and they are now considered candidates for listing under the Endangered Species Act. However, all of these species continue to be killed incidentally in the coastal shark fishery.

A new study, published this month in the journal "Science," documented declines of as much as 89 percent for hammerheads, 79 percent for great white, and 65 percent for tiger sharks over the past two decades. These Atlantic large coastal sharks now face an increased quota and relaxed management measures due to NMFS' action last month.

The groups are calling for NMFS to lower the fishing quota to a precautionary level that stops overfishing and ensures rebuilding of all large coastal shark species, particularly the most depleted and vulnerable species, as mandated by law.

"Floridians support protections for coastal sharks, and marine biologists have warned against raising quotas," said Earthjustice attorney Aliki Moncrief. "Still, officials rushed through this change that bypasses public opinion and disregards scientific research. It's a handout to the fishing industry, plain and simple."

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PCB Violations in Connecticut Prompt Fine

EAST WOODSTOCK, Connecticut, January 27, 2003 (ENS) - A Connecticut manufacturer will pay a fine and complete three environmental projects to settle charges stemming from PCB contamination at one of the company's plants.

The U.S. Environmental Protection Agency (EPA) has reached a settlement with the Rogers Corporation regarding PCBs discovered in 1993 at the company's East Woodstock manufacturing facility. Under the settlement, Rogers will pay $45,000 and undertake three innovative supplemental projects that will cost an estimated $269,000.

The settlement stems from allegations of improper disposal of PCBs discovered at the company's East Woodstock facility in 1993. After the EPA began its investigation, Rogers discovered high levels of PCBs in concrete and soil beneath the building, and conducted a full cleanup.

PCBs, or polychlorinated biphenyls, are a class of chemical compounds that were used in electrical equipment before concern about their toxicity and environmental persistence led to a ban on their production in 1977.

The PCBs at the Rogers plant are believed to come from PCB oil used at some point in basement pumps at the company's facility, as was common in the industry prior to 1978 before EPA regulated the use and disposal of PCBs. Rogers Corp. manufactures and markets specialty polymer and electronic materials for applications in the communication and computer markets.

"PCBs, which persist in the environment for decades, are a high priority for EPA New England, and companies need to ensure they're properly dealing with them," said Robert Varney, regional administrator for EPA's New England office. "I'm pleased we have resolved this case, and want to compliment Rogers for the three projects which will improve the health, safety and environment of the local community and its residents."

Rogers appealed a penalty imposed by an administrative law judge in 1998. The EPA's Environmental Appeals Board upheld the penalty, but when Rogers continued its appeal, the federal Court of Appeals in 2002 found a procedural error and sent the case back to EPA for a rehearing.

Rogers and the EPA have now reached an agreement to settle the case, including three environmental projects.

Rogers will install solar photovoltaic lighting at its East Woodstock facility to conserve fossil fuels and diminish conventional power plant emissions; provide hazardous materials training and equipment to the local fire department so that they are better prepared to deal with a broader array of fire events; and switch the fuel used at its South Windham, Connecticut facility to a lower sulfur fuel oil, decreasing sulfur emissions from the plant.

All of these three projects are voluntary and above and beyond what the company is required to do by law, the EPA stressed.

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New Process Removes Excess Nutrients from Hogwaste

WASHINGTON, DC, January 27, 2003 (ENS) - Researchers at the U.S. Department of Agriculture (USDA) have developed a process that can remove phosphorus from swine production wastewater and turn it into a solid fertilizer.

Besides creating a marketable fertilizer, the process converts the leftover effluent into a liquid crop fertilizer that the EPA says is more environmentally friendly than manure.

"This technology is a good example of how agricultural research can provide benefits to everyone through environmental protection and improvement," said Agriculture Secretary Ann Veneman. "This research provides an opportunity to help farmers better protect the environment and enhance the soil they use for planting."

The process was developed by soil scientists Matias Vanotti, Ariel Szogi and Patrick Hunt at the Coastal Plains Soil, Water and Plant Research Center, operated by USDA's Agricultural Research Service, the chief scientific research agency of the USDA.

The new process has several positive implications, Veneman said. Removing phosphorus from wastewater can cut down on any excess phosphorus that may run off into streams and rivers. Excess amounts of phosphorus, a nutrient, can lead to algae blooms that deplete oxygen from water bodies, causing fish kills and so called dead zones.

In the new process, hydrated lime precipitates most of the phosphorus in the wastewater as a solid and converts it into a marketable phosphate fertilizer. This phosphorus could be a boon to the fertilizer industry, Veneman said, because world reserves of the nutrient are limited.

Another benefit is that the high acidity created by the process destroys disease causing pathogens present in the leftover liquid.

The effluent contains a nitrogen to phosphorus ratio greater than 12 to one - ideal for crop irrigation, which requires an eight to one ratio. Regular manure offers a nitrogen to phosphorus ratio of four to one.

The higher nitrogen-phosphorus ratio means that less excess phosphorus is left on land to which the treated wastewater is applied.

The scientists had already succeeded in separating ammonia nitrogen from wastewater, a necessary step in completing the new process.

A patent application has been submitted for the combined nitrogen and phosphorus removal processes, which will be tested through next summer at a full scale demonstration facility that opened earlier this month in Duplin County, North Carolina.

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Grants Support Marine Habitat Restoration

WASHINGTON, DC, January 27, 2003 (ENS) - A public-private partnership has issued $118,315 in grants for nine new community based marine habitat and resource restoration projects.

The National Marine Fisheries Service (NMFS), Ocean Trust and the National Fisheries Institute said the projects are designed to enhance a variety of marine habitats and fisheries in the coastal areas of Massachusetts, Connecticut, New York, Maryland, Virginia, Texas, Washington and Alaska. Ocean Trust is coordinating the projects, with technical input from NMFS regional staff.

"Restoring our coastal environment and commercial fisheries to a healthy level is a priority for the Bush Administration," said Bill Hogarth, director of NMFS. "With the support of Ocean Trust, the National Fisheries Institute and other partners, we are making progress in this area by encouraging the local community to work with us on restoration projects and to raise awareness of the importance of our valuable marine habitats."

The partnership began in June 2000 with three initial projects. For each project, NMFS regional staff works with communities to aid in project development and implementation. Projects are monitored and maintained by communities, promoting stewardship and a heightened appreciation for the environment and its well being.

"The commercial fish and seafood industry is committed to the restoration and conservation of important fish habitat," said Justin LeBlanc, National Fisheries Institute vice president for government relations. "Restoring these areas means a healthier coastal environment and improved fisheries for fishermen and consumers who love seafood."

Officials encouraged seafood businesses and volunteers to get involved in habitat restoration by submitting proposals during the 2003 project solicitation period that will open on January 15.

"We'd like to invite seafood companies, restaurants, retailers and the public to join in this partnership to restore habitat and local fisheries," said Thor Lassen, president of Ocean Trust. "This is a tremendous opportunity to build a strong coalition with public participants to enhance fishery dependent ecosystems."

While the overall goal of habitat restoration is the same, the projects are diverse. In Massachusetts, for example, Ocean Trust and NMFS are working with Egg Island Oyster Company and the Wellfleet Shellfish Department to restore the Cape Cod quahog fishery.

In Connecticut, the partners are working with the Noank Aquaculture Cooperative and the Nature Conservancy to re-establish a commercial oyster bed and create an oyster spawning site in Oyster River. And in New York, the partners are working with Cornell Cooperative Extension and local shellfish growers to enhance bay scallop stocks and study benefits of scallop cage culture as habitat for blackfish in Hallocks Bay and Hay Harbor.

In south Texas, Ocean Trust and NMFS are working with the U.S. Fish and Wildlife Service and local shrimp companies to advance the largest single restoration project in the U.S. at Bahia Grande, an 11,000 acre shallow water estuary.

NMFS provides financial and technical support for the partnership through its Community Based Restoration Program (CRP). The program has been working with community organizations to support effective habitat restoration projects in marine, estuarine and riparian areas since 1996.

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Alaska, Delaware Display Different Environmental Visions

JUNEAU, Alaska, January 27, 2003 (ENS) - The governors of Alaska and Delaware displayed very different environmental sensibilities in the State of the State addresses last week.

Alaska Governor Frank Murkowski's first State of the State address, delivered last Thursday, called for boosting development and removing power from a state agency known for defending the environment. In contrast, Delaware Governor Governor Ruth Ann Minner focused her State of the State speech on cracking down on pollution and preventing future industrial cleanups.

Murkowski said he is working with the Alaska Congressional Delegation - including his daughter, who he appointed to replace him in the Senate - to open the coastal plain of the Arctic National Wildlife Refuge (ANWR) and to advance a project to build a new natural gas pipeline.

"What is our plan for increasing revenue? Well, ladies and gentlemen, in a single word: oil," Murkowski said. "We should look for ways to help the industry enhance recovery from existing and known fields and increase daily oil production."

"We need more exploration of our oil resources. We can accomplish this by improving access, expanding the drilling window and reducing permitting time," Murkowski added. "This will require statutory and regulatory changes."

Among the changes that Murkowski proposed is to give the state Department of Natural Resources (DNR) new authority as lead agency for all state permitting. All permits now issued by the habitat division of the state department of Fish and Game, often the sole supporter of environmental protection, would be overseen by the DNR.

"On many occasions, the habitat division has been the sole agency opposing and delaying legitimate - and I want to emphasize legitimate - projects important to the state," Murkowski said. "I expect DNR to provide the direction to and coordinate with other state agencies to determine the substantive environmental requirements that must be met in order to issue a permit."

Meanwhile, Delaware Governor Minner noted Delaware's position as a leader in health, smart growth and state finances and called for state leaders to continue to make responsible choices for future citizens.

"The reason for Delaware's success - over the last two years and over the last two decades - has been our willingness, our ability and our will to focus on the future of our state, even when it means making unenviable decisions in the present," Minner said. "The opportunity we have is for future Delawareans to look back and see that we focused on their good, perhaps ahead of our own."

Minner urged passage of bills introduced this week to hold industrial officials liable for pollution and safety at Delaware facilities. The initiative includes possible jail time for officials who cause injury to people or the environment after knowingly violating regulations.

"We must continue our efforts to focus on those industries and facilities that endanger Delaware and, for the first time, hold the individuals in charge of those facilities accountable," Minner said.

She announced the creation of a group, chaired by former state Supreme Court justice William Quillen, to analyze the shutdown of the Metachem chemical facility near Delaware City, which left the state saddled with 40 million tons of chemicals and up to $75 million in cleanup costs.

"The goal of the task force will be to determine what environmental, operational, business and financial factors played a role in the Metachem closure and identify any steps we as a state could take to prevent this situation from occurring again," Minner said. "The task force will also work to identify any other industrial facilities that are at risk of becoming the next Metachem."

In January 2004, Minner said she intends to introduce legislation as part of a comprehensive energy plan for Delaware, "one that will make us more self sufficient in a world that sees uncertainty, one that will nurture new Delaware companies that are part of the fast moving technology changes, and one that will provide incentives for homeowners and businesses to take part in the energy transition to renewable products."

The full text of Minner's address can be found at: http://www.state.de.us/governor/speeches

The text of Murkowski's speech is available at: http://www.state.ak.us/local/sos12403.html

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Two Air Pollutants Help Balance Each Other

BOULDER, Colorado, January 27, 2003 (ENS) - Two air pollutants - carbon dioxide and hydrocarbons emitted from agricultural forest trees - offset each other somewhat in mitigating air quality problems, University of Colorado at Boulder researchers have found.

The greenhouse gas carbon dioxide (CO2) has been shown to reduce "agriforest" emissions of hydrocarbons that contribute to ground based ozone pollution. Commercial agriforests made up of trees including poplars, eucalyptus and acacia emit high levels of isoprene, a reactive chemical species believed to contribute to ground based ozone, the researchers said.

"As people replace natural forests with agriforests, the species do produce significant amounts of hydrocarbons like isoprene," said Russell Monson, chair of CU-Boulder's EPO biology department. "The news here is that we have found a situation where elevated CO2 concentrations work in a positive way to reduce pollution from isoprene, that combines with sunlight and vehicle and industrial pollution to form smog and related lung problems in people."

While this may seem like a good thing, CU-Boulder doctoral candidate Todd Rosenstiel, co-chief author of the study, is more cautious.

"The effects of CO2 are unpredictable," Rosenstiel explained. "The bigger picture is the rapidly growing amount of these agriforests worldwide emitting hydrocarbons like isoprene in much larger volumes.

"We still do not know enough about the basic chemistry and biochemistry of isoprene to predict what may happen in the future," Rosenstiel said. "One thing we have shown is that 'tweaking' environmental conditions where such trees grow through changes in water consumption, temperature and soil conditions may have significant effects on isoprene emissions."

A paper on the subject was published by "Nature" magazine this month. Coauthor Ray Fall, a professor of the chemistry and biochemistry department at CU-Boulder, said about 500 million tons of isoprene are emitted into Earth's atmosphere each year.

The southeast U.S. has large amounts of forest trees contributing to the isoprene emissions, said Fall. The CU-Boulder team's work suggests that it may be possible to genetically engineer environmentally friendly poplar trees by lessening their isoprene output, he added.

"As almost all commercial agriforest species emit high levels of isoprene, proliferation of agriforest plantations has significant potential to increase regional ozone pollution and enhance the lifetime of methane, an important determinant of global climate," the researchers wrote in "Nature."