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Weekly Update Volume 30, Issue 36

12/18/2000

LITIGATION
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Note: The cases listed are available from the ELR Document Service.

red bar graphic OPA, PUNITIVE DAMAGES, SEVENTH AMENDMENT:

The First Circuit affirmed in part and reversed in part a district court decision awarding damages to a marina that was damaged by a nearby oil spill. The district court correctly held that punitive damages were unavailable to the marina as a matter of law. OPA does not provide for punitive damages, and because Congress intended OPA to be the exclusive federal law governing oil spills, the marina cannot base its claim for punitive damages under maritime and admiralty law. The district court also correctly ruled that the marina was entitled to a trial by jury because the marina's OPA claim would have constituted an action at law, rather than in admiralty, at the time of the Seventh Amendment's ratification in 1791. Although the marina's docks move with the ebb and flow of the tides, they remain moored to a fixed location and serve no navigational function. In essence, they are "extensions of the land." Additionally, the district court correctly vacated the jury's $100,000 award for loss in goodwill and its $15,000 award for business stress. It erred, however, in concluding that the marina failed to introduce evidence sufficient to support the jury's award for lost slip revenues. The court, therefore, reinstated the jury's award of $110,000 for lost slip revenues. South Port Marine v. Gulf Oil Ltd., Nos. 99-2369, -2370 (1st Cir. Dec. 7, 2000) (10 pp.).

red bar graphic  NUCLEAR POWER, DECOMMISSIONING, CONTRACT LAW:

The Eighth Circuit held that a power sales contract between an energy company and a public power district does not require the energy company to make current, non-refundable payments of estimated decommissioning costs to the power district, but makes the energy company liable for decommissioning costs only in the event that the district shuts the nuclear power plant down in 2004. In 1967, the parties entered a power sales contract that obligated the power district to construct and manage the power facility and required the energy company to purchase power from the facility and pay monthly power costs until 2004. The contract also stated that if the power district elects to shut the facility down in 2004, the parties must share decommissioning costs equally. If the power district continues operation, however, the energy company's payment obligations and its right to any refund of excess payments are terminated. In anticipation of high decommissioning costs, the power district began adding estimated decommissioning costs to the energy company's bill in 1984. The power district argued, and the district court agreed, that the decommissioning costs fall within the contract's definition of monthly power costs, obligating the energy company to pay them, and that the contract cuts off the company's right to any reimbursement should the power district elect to close the plant in 2004. The contract, however, unambiguously makes the energy company liable for decommissioning costs only if the power district ceases operation in 2004, and it does not require the energy company to pay current, non-refundable payments of estimated decommissioning costs. Pre-paid decommissioning costs are not monthly power costs. In fact, such payments fall wholly outside the contract. Similarly, the contract does not bar the company's equitable claims to recover payments already made.  The company did not subject itself to liability for decommissioning costs by making pre-payments. Rather, the company's payment obligations are contingent on the power district's decision regarding continued operations. Nebraska Public Power District v. MidAmerican Energy Co., No. 99-4067 (8th Cir. Dec. 12, 2000) (21 pp.).

red bar graphic  CONSTITUTIONAL LAW, NATIONAL FORESTS, SPECIAL USE PERMIT:

The Third Circuit upheld the conviction of three individuals that organized a 20,000-person event in the Allegheny National Forest without obtaining a special use permit in violation of U.S. Forest Service regulations. The regulations clearly define what conduct is prohibited and, thus, are not unconstitutionally vague. Further, the requirement that a special use permit be signed by a member of the group does not burden the First Amendment rights of individuals attending the event. Rather, the signature requirement  represents a reasonable time, place, and manner restriction on expressive conduct. Moreover, a provision that allows the Forest Service to place terms and conditions on special use permits is not facially invalid. The provision does not allow the Forest Service to ban disfavored speech, and it applies to every group, activity, or conduct that requires special use authorization. Even were the court to entertain the challenge, it would be rejected on the merits because the regulations specifically limit the Forest Service from imposing conditions directed at curtailing or censoring expression. Additionally, the regulations underlying the individuals' convictions apply not just to groups who use National Forest land, but also to individuals who use the land as part of a group, with deliberate disregard to the group permit requirement. Last, the regulations allow for judicial review. United States v. Kalb, Nos. 00-1733 et al. (3d Cir. Dec. 12, 2000) (13 pp.).

red bar graphic NATIVE AMERICAN FISHING RIGHTS, USUAL AND ACCUSTOMED (U&A) FISHING AREAS:

The Ninth Circuit held that a 1978 case concerning Native American fishing rights in the Puget Sound intended for the Lummi Indian Tribe's U&A fishing areas to include Admiralty Inlet but not the Strait of Juan de Fuca and the mouth of the Hood Canal. In the 1978 action, the judge determined that the Lummi Indian Tribe was entitled to fish in the marine areas of "Northern Puget Sound from the Fraser River south to the present environs of Seattle." In the instant action, four tribes alleged that the Lummi Indian Tribe was fishing outside its adjudicated area. A district court granted summary judgment to the four tribes based on its determination that the 1978 decision did not intend for the Admiralty Inlet, Strait of Juan de Fuca, and the mouth of Hood Canal to be included in the Lummi Indian Tribe's U&A fishing areas. With respect to the Strait of Juan de Fuca and the mouth of Hood Canal, the district court properly relied on evidence that was put before the judge in the 1978 action, and not on latter-day evidence. Moreover, evidence demonstrates that the 1978 decision did not intend for these two areas to be included in the Northern Puget Sound. With respect to Admiralty Inlet, however, there is no indication that the 1978 decision recognized the inlet as a region separate from Northern Puget Sound. Nevertheless, based on the geography of the area, the 1978 decision must have intended for the Admiralty Inlet  to be included within the Northern Puget Sound. The court, therefore, reversed this aspect of the district court's decision. Lower Elwha Band of S'Klallams v. Lummi Indian Tribe, No. 98-35964 (9th Cir. Dec. 13, 2000) (14 pp.).

red bar graphic  NATIVE AMERICAN FISHING RIGHTS, USUAL AND ACCUSTOMED (U&A) FISHING AREAS:

The Ninth Circuit affirmed a district court decision holding that a 1978 case concerning Native American fishing rights in the Puget Sound intended for the Lummi Indian Tribe's U&A fishing areas to extend to the northern outskirts, or suburbs, of Seattle as they existed in 1974. In the 1978 action, the judge determined that the Lummi Indian Tribe was entitled to fish in the marine areas of  Northern Puget Sound from the Fraser River south to the "present environs of Seattle." The Lummi Indian Tribe argue that the "present environs of Seattle" includes marine areas adjacent to the present city of Seattle or even further south to its southern outskirts. The district court, however, properly looked at the language in the 1978 decision and supplemented the record with a geography expert as to where the northern environs were at that time. This supplementary material does not constitute latter-day evidence that would have been unknown to the judge in the 1978 decision. Moreover, had the judge in the 1978 decision intended to hold that the fishing grounds reached "through" the environs of Seattle, he would have said so. Muckleshoot Indian Tribe v. Lummi Indian Nation, No. 99-36224 (9th Cir. Dec. 13, 2000) (4 pp.).

red bar graphic  NATIVE AMERICAN FISHING RIGHTS, USUAL AND ACCUSTOMED (U&A) FISHING AREAS:

The Ninth Circuit affirmed a district court grant of summary judgment to three Native American tribes seeking a determination that the Muckleshoot Tribe's saltwater U&A fishing area was limited to Elliott Bay within Puget Sound in Washington state. In determining the treaty-reserved fishing rights of several Washington tribes, a previous district court held that the Muckleshoot Tribe had U&A saltwater fishing places in Puget Sound. After the initial decision, a state regulation established fishing zones in Puget Sound. The Muckleshoot sought to open fisheries in one of these fishing zones, but in opposition, the other tribes sought a determination that the Muckleshoot were limited to the fishing zone off of Elliott Bay. In determining what the initial district court decision meant when it stated that the Muckleshoot have U&A saltwater fishing rights in Puget Sound requires an examination of the evidence before that court. This evidence indicates that the Muckleshoot were an upriver tribe that occasionally made trips to Elliott Bay to fish and collect shellfish. Although the Muckleshoot's ancestors may have occasionally conducted saltwater fishing beyond Elliott Bay, these isolated or infrequent excursions do not meet the U&A standard. In addition, none of the evidence offered by the Muckleshoot established that their ancestors had U&A fishing grounds beyond Elliot Bay. United States v. Puyallup Indian Tribe, No. 99-35960 (9th Cir. Dec. 13, 2000) (13 pp.).

red bar graphic  NATIVE AMERICAN FISHING RIGHTS, CATCH ALLOCATION:

The Ninth Circuit affirmed a district court decision that the on-reservation catch of fish by a Washington state tribe whose reservation was created by Executive Order and not by treaty should be attributed to and, thus, should come out of the state's share of the annual fishing catch, instead of the share of treaty tribes. A previous district court decision sought to equitably divide salmon fishing rights in the state between the state and several tribes whose fishing rights were secured by treaty. However, the Chehalis tribe, who refused to sign a treaty, were created by Executive Order, which ensured them fishing rights on their reservation. The state subsequently sought a determination regarding whether the fish caught by the Chehalis should count against the annual allocation. The original district court division of fishing rights never contemplated such an issue. However, that court enjoined the state from treating any off-reservation taking of fish as treaty fishing unless the court had determined that such taking was by a treaty tribe. This order established the principle that no catch by non-treaty native Americans should be attributed to the treaty tribes. Therefore, since the Chehalis were never party to a treaty, the fish taken by them cannot be attributed to the treaty tribes. Such a result is consistent with equity and federal precedent regarding tribes and treaty interpretation. United States v. Washington, No. 99-35104 (9th Cir. Dec. 13, 2000) (7 pp.).

red bar graphic  INSURANCE LAW, FALSE CLAIMS ACT (FCA), CWA:

The Sixth Circuit upheld the dismissal of a transporter company's claim that its insurer breached its duty under a marine insurance policy to defend and indemnify the company in a qui tam action brought under the FCA. The transporter was hired as a subcontractor to transport coal to the Tennessee Valley Authority under a contract between a coal company and the United States. The transporter's employees, who alleged that the transporter knowingly hid CWA violations from the United States in order to obtain payment, filed an FCA action against the transporter. After the insurer refused to defend or indemnify the transporter, the transporter commenced the instant action. The insurer, however, had no duty to defend the transporter because the underlying complaint stated claims under the FCA exclusively. An FCA action is not converted into a CWA action simply because a CWA violation is a predicate to establishing the falsity of a claim. Moreover, the complaint was not so vague, ambiguous, nebulous, or incomplete as to obligate the insurer to provide a defense under the insurance policy. Similarly, because the transporter's settlement with the employees only concerned FCA violations, the insurer had no duty to indemnify. M/G Transport Services, Inc. v. Water Quality Insurance Syndicate, No. 99-3889 (6th Cir. Dec. 12, 2000) (5 pp.).

red bar graphic  INSURANCE, POLLUTION EXCLUSION:

An Indiana appellate court held that an insurance company must defend and indemnify building owners who were sued by telemarketers who worked in the building and were injured from exposure to fumes from carpet glue used to recarpet the building. Although the policy included a pollution exclusion clause, the clause was ambiguous and, therefore, should have been construed in favor of the building owners. The telemarketers did not simply complain that they were injured by fumes, but that they were injured by the fumes coming from the substances used to install the carpet. While the policy's definition of pollutants includes the term "fumes," it does not include carpet glue or any other substance used to install carpet. Moreover, as determined in prior case law, the policy cannot be read literally as it would negate virtually all coverage. In addition, the insurance company acted in bad faith in refusing to defend and indemnify the building owners. The insurance company's counsel was aware of the applicable case law, but the company still refused to indemnify or defend the building owners in this action. Freidline v. Shelby Insurance Co., No. 71A03-0004-CV-132 (Ind. Ct. App. Nov. 29, 2000) (11 pp.).

red bar graphic WATER QUALITY, NPDES PERMITS:

An Oregon appellate court reversed a portion of a state environmental agency order that imposed a civil penalty against a city for discharging sewage sludge without a permit in violation of a state statute. The city was granted an NPDES permit to operate a sewage disposal system. In September 1996, one of the system's pipes ruptured and spilled between 2,000 and 5,000 gallons of partially treated sewage sludge into nearby tidal wetlands. A hearing officer fined the city $1,500 for the spill and for violating the terms of its NPDES permit, but the agency's appellate division imposed an additional $3,900 against the city pursuant to a state statute that prohibits persons from discharging wastes into state waters without "first obtaining a permit" from the state environmental agency. Here, however, the city had an NPDES permit, and a discharge in violation of a permit's conditions does not amount to discharging without a permit. The statute says nothing about violating the terms of the permit. It only states that the operator of a disposal system must obtain a permit before any discharge. Moreover, the agency's construction of the statute would render meaningless a second statute that prohibits persons from violating the terms of their permits. Environmental Quality Commission v. City of Coos Bay, No. CA A107070 (Or. Ct. App. Nov. 22, 2000) (3 pp.).

red bar graphic WATER RIGHTS, "CAN AND WILL" DOCTRINE:

The Colorado Supreme Court affirmed a state water court decision denying and dismissing with prejudice a county's applications for decrees for conditional water rights for a large water storage project west of the Continental Divide in the Upper Gunnison River Basin. The water court properly applied the "can and will" doctrine in determining that there was insufficient water in the basin for the county's proposed diversions. The United States has an absolute decree for water rights from three nearby dams known as the Aspinall Unit and has historically applied the water afforded by the decree to full beneficial use. Thus, the decree represents a senior water right. Moreover, once the Aspinall Unit is taken into account, the Gunnison River Basin does not contain enough unappropriated water for the project. Under the decree, the United States agreed to subordinate 60,000 acre-feet of water to junior in-basin water users, to release water from the Aspinall Unit as necessary to allow the state to meet its delivery obligations under the Colorado River Compact, and to make 240,000 acre-feet of the decreed water available for contractual use by future Colorado water users. Additionally, the water court correctly dismissed the county's claim for a conditional water right for its pumping plant at nearby Taylor Park because the county lacked an existing permit. Without a permit, the county could not satisfy the "can and will" requirements for a conditional decree. Board of the County Commissioners of the County of Arapahoe v. Crystal Creek Homeowners' Ass'n, No. 98SA327 (Colo. Nov. 20, 2000) (28 pp.).

red bar graphic  PETROLEUM CONTAMINATION, CONTRIBUTION, RES JUDICATA:

The Vermont Supreme Court held that the doctrine of res judicata does not bar landowners' third-party claim against a neighboring company for contribution under state law for clean up costs the state incurred in its efforts to remedy petroleum contamination on the landowners' property. The company previously filed suit against the landowners seeking damages for petroleum contamination stemming from activities on the landowners' property, and the landowners filed a counterclaim alleging that the company caused petroleum contamination on the landowners' property. In that case, a trial court entered judgment in favor of the company on the landowners' counterclaim, determining that the evidence of causation was slight and that they failed to prove damages. When that case arose, however, the landowners could not have brought the instant third-party claim for contribution because the state had not yet brought a claim against the landowners for clean up costs. Therefore, the landowners should not be precluded under the doctrine of res judicata from pursuing their third-party claim against the company in the underlying state action. State v. Carroll, No. 99-472 (Vt. Dec. 1, 2000) (5 pp.).

Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES
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Note: Citations below are to the Federal Register.

red bar graphic  AIR:

  • EPA promulgated a consolidated federal air rule for the synthetic organic chemical manufacturing industry. 65 FR 78267 (12/14/00). 
  • EPA reestablished emission guidelines for existing small municipal waste combustion units. 65 FR 76377 (12/6/00). 
  • EPA reestablished new source performance standards for new small municipal waste combustion units. 65 FR 76349 (12/6/00). 
  • EPA amended NESHAPs for aerospace manufacturing and rework facilities to include a separate emission limit for exterior primers used for large commercial aircraft at existing facilities that produce fully assembled, large commercial aircraft. 65 FR 76941 (12/8/00). 
  • EPA proposed amendments to the generic maximum achievable control technology standards to add NESHAPs for four additional source categories: Cyanide Chemicals Manufacturing, Carbon Black Production, Ethylene Production, and Spandex Production. 65 FR 76407 (12/6/00). 
  • EPA issued an advance notice of proposed rulemaking in which it invites early input to the process for establishing standards and programs for nonroad engines and vehicles that have yet to be regulated by EPA, including large spark-ignition engines such as those used in forklifts and airport tugs; recreational vehicles using spark-ignition engines such as off-highway motorcycles, all-terrain vehicles, and snowmobiles; and recreational marine diesel engines and marine spark-ignition sterndrive and inboard engines. 65 FR 76797 (12/7/00). 
  • EPA announced its finding that land-based nonroad spark-ignition engines rated above 19 kilowatts, as well as all land-based recreational nonroad spark-ignition engines, cause or contribute to air quality nonattainment in more than one ozone or carbon monoxide nonattainment area. 65 FR 76789 (12/7/00). 
  • EPA proposed NESHAPs for the polyvinyl chloride and copolymers production source category. 65 FR 76958 (12/8/00).
  • EPA entered into a proposed settlement agreement under CAA §113(g) in connection with a lawsuit, Sierra  Club v. EPA, No. 00-1262 (D.C. Cir.), that challenged EPA's extension of the interim approval of title V permitting programs for approximately 80 permitting authorities. 65 FR 77024 (12/8/00). 
  • EPA announced a 90-day comment period for the public to identify deficiencies they perceive exist in state and local agency operating permits program required by CAA Title V. 65 FR 77376 (12/11/00).
  • EPA proposed to find that the Portneuf Valley nonattainment area in Idaho has attained the NAAQS for particulate matter with an aerodynamic diameter of less than, or equal to, a nominal 10 micrometers (PM10) as of December 31, 1996. 65 FR 76203 (12/6/00). 
  • EPA published a notice of deficiency for the Commonwealth of Kentucky's CAA Title V operating permits program. 65 FR 76230 (12/6/00). 
  • EPA redesignated Cuyahoga and Jefferson Counties, Ohio, to attainment for PM10. 65 FR 77308 (12/11/00). 
  • EPA proposed to update a portion of the outer continental shelf air regulations corresponding to the South Coast air quality management district and Ventura County air pollution control district onshore areas in California. 65 FR 77333 (12/11/00).
  • EPA approved the U.S. Virgin Island operating permits program. 65 FR 78102 (12/14/00). 

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red bar graphic   DRINKING WATER:

  • EPA finalized maximum contaminant level goals, maximum contaminant levels, and monitoring, reporting, and public notification requirements for radionuclides. 65 FR 76707 (12/7/00). 

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red bar graphic  ENDANGERED SPECIES:

  • FWS proposed to designate critical habitat in California for the San Bernardino kangaroo rate under the ESA. 65 FR 77177 (12/8/00). 

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red bar graphic  HAZARDOUS WASTE:

  • EPA proposed to enter into two settlement agreements under CERCLA §122(g) in connection with the Interstate Lead Company Superfund site in Leeds, Ala. 65 FR 76259 (12/6/00). 
  • EPA proposed to enter into a settlement agreement under CERCLA §122(i) in connection with the Tokeland Cow Dip Pit CERCLA site in Pacific County, Wash. 65 FR 76259 (12/6/00). 
  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Voda Petroleum Superfund site in Clarksville City, Tex. 65 FR 76639 (12/7/00). 
  • EPA proposed to enter into a settlement under CERCLA §122(h) in connection with the Carrier Air Conditioning Company Superfund Site located in Collierville, Tenn. 65 FR 77626 (12/12/00). 
  • EPA proposed to enter into an administrative settlement under CERCLA §122(i) and RCRA §7003(d) in connection with The Doe Run Resources Corporation in Herculaneum, Mo. 65 FR 77877 (12/13/00). 
  • EPA entered into a proposed prospective purchaser agreement under CERCLA that will allow the reuse of an abandoned industrial facility associated with the Metcoa Radiation Superfund site in Pulaski, Pa. 65 FR 77876 (12/13/00). 
  • EPA entered into a proposed prospective purchaser agreement under CERCLA in connection with Palmyra Atoll, a group of coral islets approximately 680 acres in extent located in the tropical Pacific Ocean 900 miles south-southwest of Hawaii  to preserve it as a wildlife refuge. 65 FR 78492 (12/15/00).

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red bar graphic  TOXIC SUBSTANCES:

  • EPA established 17 new TSCA health effects test guidelines in the Code of Federal Regulations. 65 FR 78745 (12/15/00).

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red bar graphic  DOJ NOTICES OF SETTLEMENT:

  • U.S. v. Caribe General Electric Products, Inc., No. 002482CC (D.P.R. Nov. 21, 2000). Two settling CERCLA defendants must pay $1,119,650, plus interest, in past U.S. response costs incurred at the Vega Alta Public Supply Wells Superfund Site in Vega Alta, P.R. 65 FR 77040 (12/8/00). 
  • U.S. v. Dow Chemical Co., No. IP001841-C-T/G (S.D. Ind. Nov. 27, 2000). A settling CERCLA defendant must donate an uncontaminated portion of the Dow Chemical Site near Zionsville, Ind., to the Zionsville Park and Recreation Board for the purpose of restoration, replacement, or protection of natural resources similar to those found on other portions of the site damaged by releases and threatened releases of hazardous substances. 65 FR 77040 (12/8/00). 
  • U.S. v. Turtle Mountain Manufacturing Co., No. A4-00-139 (D.N.D. Nov. 27, 2000). A settling CWA and RCRA defendant must pay a $100,000 civil penalty, must immediately comply with all applicable general pretreatment provisions, metal finishing point source pretreatment requirements, and its storm water NPDES general permit for its metal parts manufacturing facility near Belcourt, N.D., and must immediately comply with all applicable requirements for generators of hazardous waste and used oil from its manufacturing facility. 65 FR 77041 (12/8/00). 
  • U.S. v. Abex Aerospace Division, No. 00-12471 CAS (C.D. Cal. Nov. 24, 2000). Settling CERCLA and RCRA defendants must pay $282,636 in past U.S. response costs incurred at the Omega Chemical Corporation Superfund site, must pay all oversight costs, and must perform certain response actions at the site. 65 FR 78188 (12/14/00). 
  • U.S. v. Chemical Leaman Tank Lines, Inc., No. 00CV5715 (SSB) (D.N.J. Nov. 21, 2000). A settling CERCLA defendant must pay $4,200,000 to the United States and the New Jersey Department of Environmental Protection for reimbursement of assessment costs and damages to natural resources at the Chemical Leaman Tank Lines Superfund site in Logal Township, N.J. 65 FR 78188 (12/14/00). 
  • U.S. v. Georgia-Pacific Resins, Inc., No. CIV-S-00-2531 GEB-PAN (E.D. Cal. Nov. 16, 2000). A settling CWA defendant that discharged zinc and toluene in excess of the categorical pretreatment standards from its thermosetting resin manufacturing facility in Elk Grove, Cal., must pay a $165,000 penalty and must perform a supplemental environmental project. 65 FR 78189 (12/14/00). 
  • Jones v. Thorne, No. CV97-1674-ST (D. Or. Nov. 30, 2000). Two consent decrees involving a CWA defendant that unlawfully discharged dredged or fill materials into U.S. waters in the Rivergate area of Portland, Or., require the settling defendant to mitigate and restore approximately 37 acres of wetlands and associated upland riparian habitat and buffer areas, preserve the mitigation and restoration in perpetutity, pay $285,000 for additional mitigation projects, pay $64,000 to the city of Portland, and pay $50,000 to the U.S. Treasury. 65 FR 78189 (12/14/00). 
  • U.S. v. Ribi Immunochem Research, Inc., No. 98-55-M-DWM (D. Mont. Nov. 30, 2000). A settling CERCLA defendant must pay $2.65 million in past and future response costs related to contamination of the Bitterroot Valley Sanitary Landfill in Hamilton, Mont. 65 FR 78190 (12/14/00). 
  • U.S. v. Sonoco Products Co., No.00-6068 (E.D. Pa. Nov. 30, 2000). Settling CERCLA defendants will pay $40,000 in past EPA response costs incurred at the Kardon Park site in Chester County, Pa. 65 FR 78190 (12/14/00). 

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Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved. 

THE CONGRESS

red bar graphic PUBLIC LAWS

  • H.R. 2941 (Las Cienegas National Conservation Area), which establishes the Las Cienegas National Conservation Area in Arizona, was signed into law by President Clinton on December 6, 2000. Pub. L. No. 106-538, 114 Stat. 2563.

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red bar graphic CHAMBER ACTION

  • H.R. 2903 (Striped Bass Conservation Act), which reauthorizes the Striped Bass Conservation Act, was passed by the House, clearing the measure for the President. 146 CONG. REC. S11754 (daily ed. Dec. 8, 2000).
  • H.R. 5461 (shark finning), which would amend the Magnuson-Stevens Fishery Conservation and Management Act to eliminate the wasteful and unsportsmanlike practice of shark finning, was passed by the Senate, clearing the measure for the President. 146 CONG. REC. S11744 (daily ed. Dec. 7, 2000).

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red bar graphic  BILLS INTRODUCED

  • S. 3275 (Domenici, R-N.M.) (nuclear weapons; international aid) would authorize the Secretary of Energy to guarantee loans to facilitate nuclear nonproliferation programs and activities of the Government of the Russian Federation, and for other purposes. 146 CONG. REC. S11739 (daily ed. Dec. 7, 2000). The bill was referred to the Committee on Foreign Relations. 
  • H.R. 5650 (Romero-Barcelo, D-P.R.) (federal lands) would declare certain federal lands in the Commonwealth of Puerto Rico as excess. 146 CONG. REC. H12066 (daily ed. Dec. 8, 2000). The bill was referred to the Committee on Armed Services. 
  • H.R. 5651 (Romero-Barcelo) (land conveyance) would convey certain federal lands to the Commonwealth of Puerto Rico. 146 CONG. REC. H12066 (daily ed. Dec. 8, 2000). The bill was referred to the Committees on Armed Services, and Resources.

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Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved. 

IN THE STATES

red bar graphic ALABAMA

Dept. of Envtl. Management

Proposed Regulations-Air Quality

Proposed Regulations-Hazardous Waste

Public Notices–Permit Applications 

Daily Ozone Forecast

Jefferson County Dept. of Health

Daily Air Quality Index

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red bar graphic  ALASKA

Dept. of Envtl. Conservation

Proposed Regulations-Air

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red bar graphic ARIZONA

Dept. of Envtl. Quality

"Brown Cloud Summit" Recommendations

Final Regulations-Water Quality

  • Amendments to water quality management planning regulations to implement provisions of §208 of the CWA.
  • Water Quality Fee regulations; revises fee schedules for all water quality permits and services. 
  • Unified water quality permit rule; consolidates prior sewerage system rules into the aquifer protection permit program.

Rules approved by Regulatory Review Council on Dec. 5. Available at http://www.adeq.state.az.us/lead/oac/stat.html

Superfund Program-Proposed Registry Inclusions, Prospective Purchaser Agreements

Arizona Emissions Bank

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red bar graphic ARKANSAS

Dept. of Environmental Quality

10-Year Strategic Plan

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red bar graphic CALIFORNIA

Air Resources Board

Proposed Regulations-Zero Emission Vehicles

Final Carl Moyer Guideline Standards

Dept. of Toxic Substances Control

Proposed Regulations

Water Resources Control Board

Sanitary Sewer and Treatment Facility Survey

California Energy Commission

Emergency Regulations-Licensing Procedures, Thermal Power Plants

  • Promulgated licensing procedures as required by Assembly Bill 970 (California Energy Security and Reliability Act). See http://www.energy.ca.gov

Carcinogen Identification Committee

South Coast Air Quality Management District

Proposed Regulations-New Source Review/RECLAIM

Proposed Regulations-New Source Review

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red bar graphic COLORADO

Air Quality Control Commission

Proposed Regulations

Water Quality Control Commission

Proposed Regulations

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red bar graphic DELAWARE

Dept. of Nat. Resources and Envtl. Control

Notices of Violation

Regulatory Update

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red bar graphic FLORIDA

Dept. of Envtl. Protection

Reuse Reports

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red bar graphic GEORGIA

Dept. of Natural Resources, Envtl. Protection Division

Air Permit Applications

NPDES Permit Applications

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red bar graphic HAWAII

Office of Envtl. Quality Control

Environmental Impact Notices

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red bar graphic IDAHO

Dept. of Envtl. Quality

Proposed TMDL

Outstanding Resource Waters-Petitions

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red bar graphic ILLINOIS

Pollution Control Board

Open Regulatory Dockets

Envtl. Protection Agency

Permit Applications

Strategic Planning Process

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red bar graphic INDIANA

Dept. of Envtl. Management

Final Regulations-Air Quality

  • Amends 326 IAC 2-2-1 concerning definitions for the prevention of significant deterioration rules. Amends 326 IAC 2-7-10.5 concerning modification procedures for Part 70 operating permits.
  • Amends 326 IAC 1-1-3 concerning references to the Code of Federal Regulations.

Proposed Regulations-Hazardous Waste

  • Amends 329 IAC 3.1-1-7, 329 IAC 3.1-6-2, 329 IAC 3.1-9-2, 329 IAC 3.1-10-2, and 329 IAC 3.1-13-2 pertaining to the hazardous waste management program to achieve consistency with federal hazardous waste management regulations by incorporating by reference changes to 40 CFR 260 through 40 CFR 270 that were issued by the U.S. EPA between May 11, 1999, and June 8, 2000. Amends 329 IAC 3.1-7 to be consistent with Public Law 143-2000, Section 3, effective January 1, 2001, that will repeal the provisions of IC 13-22-4 relating to the Indiana Hazardous Waste Manifest and will require hazardous waste generators to use the Uniform Hazardous Waste Manifest Form adopted by the U.S. EPA rather than the version of those forms currently provided by IDEM to generators for a fee. Amends 329 IAC 3.1-12-2 to clarify a provision regarding one time notification for wastes that exhibited a characteristic of hazardous waste and are no longer hazardous to be consistent with the federal requirement. Amends 329 IAC 3.1-14-6, 329 IAC 3.1-14-16, 329 IAC 3.1-15-4, and 329 IAC 3.1-15-6 to correct a provision in the financial assurance requirements that made Indiana's rules less stringent than the federal hazardous waste program, as required by 42 U.S.C. 6926. Amends 329 IAC 3.1-16-2 to incorporate by reference the federal universal waste requirements for mercury-containing lamps and to prohibit intentional crushing of lamps in conjunction with recycling.
  • Draft rule language for new rules for exclusion of a hazardous waste from regulation under 329 IAC 3.1-5-2 (delisting).

Proposed Regulations-Air Quality

  • IDEM is seeking public comment on new rules that would control emissions of NOx from Indiana sources.
  • Proposed amendments to 326 IAC 2 as required by P.L.112-2000 (HEA 1343). The IDEM will also consider comments regarding any amendments necessary to obtain U.S. EPA's approval of these rules under 40 CFR 70 (Title V operating permit program).

Proposed Regulations-Water Quality

  • Proposed amendments to rules concerning public notification. 

The above notices may be viewed at http://www.state.in.us/legislative/register/November-1-2000.html

Indiana Environment Online

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red bar graphic IOWA

Dept. of Natural Resources

Final Regulations-Water Quality

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red bar graphic KENTUCKY

Dept. for Envtl. Protection, Division of Water

Proposed Regulations-Drinking Water 

  • Public hearing Dec. 21 regarding proposed amendments to 401 KAR Chapter 8 drinking water program for public and semipublic water supplies. Written comments due same date. See http://water.nr.state.ky.us/dow/hrgnots.htm

Public Hearing Notices

Permit Applications

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red bar graphic LOUISIANA

Dept. of Envtl. Quality

Proposed Regulations-Hazardous Waste

Proposed Regulations-Voluntary Remediation

Proposed Regulations-Underground Storage Tanks

Proposed Regulations-Air Quality

  • Proposed revisions to contingency standards for VOC emission reductions. Comments due Jan. 8. 

  • Proposed revisions to major source definition for ozone control. Comments due Jan. 8. 

See http://www.deq.state.la.us/planning/regs/addition/2000, http://www.deq.state.la.us/planning/regs/addition/2000/0011pot1.pdf, http://www.deq.state.la.us/planning/regs/addition/2000/0011pot2.pdf, and http://www.deq.state.la.us/planning/regs/addition/2000/0011pot3.pdf

Final Regulations-Stormwater

Permit Applications

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red bar graphic MAINE

Dept. of Envtl. Protection

Final Regulations-Oil Terminals/Pipelines

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red bar graphic MARYLAND

Dept. of the Environment

Air Quality-Diesel Trucks

Public Meetings/Hearings

Water Quality Standard-Triennial Review

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red bar graphic MASSACHUSETTS

Dept. of Envtl. Protection

Municipal Waste Combustor Material Separation Plans

Enforcement Actions

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red bar graphic  MICHIGAN

Dept. of Envtl. Quality

Final Regulations-Air Quality

Final Report-Solid Waste Importation

  • Report of task force calls for congressional action, in light of Commerce Clause restrictions on state-imposed bans and import limitations. See http://www.deq.state.mi.us/wmd

Permitting Calendar

Permit Applications-Air Quality

 Air Quality Division Newsletter

Surface Water Quality Division Bulletin

Surface Water Quality Division-Draft Regulations

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red bar graphic MINNESOTA

Pollution Control Agency

Permit Applications, Other Notices

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red bar graphic  MISSOURI

Dept. of Natural Resources

Proposed Regulations-Air Quality

  • Proposed revision will add U.S. EPA reference method for sulfuric acid mist. Comments due Feb. 13, 2001; public hearing Feb. 6. 

  • Proposed revisions to definitions in medical/hospital/infectious waste combustor emission standards. Comments due Feb. 13, 2001; public hearing Feb. 6. 

See http://mosl.sos.state.mo.us/moreg/2000/v25n22/v25n22.htm

Water Pollution Control-Permit Applications

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red bar graphic MONTANA

Dept. of Envtl. Quality

Public Comment Notices

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red bar graphic NEBRASKA

Dept. of Envtl. Quality

Proposed Regulations

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red bar graphic NEVADA

Division of Envtl. Protection

Proposed Regulations

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red bar graphic NEW JERSEY

Dept. of Envtl. Protection

Draft Surface Water Quality Standards

Draft Watershed Management Rules

Current DEP Bulletin (Permit Applications; Proposed Regulations)

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red bar graphic NEW MEXICO

Water Quality Control Commission

Proposed Regulations-Liquid Waste Disposal

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red bar graphic NEW YORK

Dept. of Envtl. Conservation

Final Regulations-Air Quality

  • California low emission vehicle standards were promulgated. The revisions to Parts 218 and 200.9, NYCRR 6, are available at http://www.dec.state.ny.us

ALJ Rulings

Environmental Notice Bulletin (Permit Applications)

Permit Applications

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red bar graphic  NORTH CAROLINA

Environmental Management Commission

Final Regulations-Coastal Management

Proposed Regulations-Groundwater Quality

Dept. of Envt. and Natural Resources

Division of Air Quality Penalty Assessments

Division of Air Quality Draft Regulations

DENR Enforcement Data

Water Quality-Basinwide Assessment Reports

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red bar graphic OHIO

Envtl. Protection Agency

OPEA Actions, Notices by County

Public Meetings

Pending Air Permits

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red bar graphic OKLAHOMA

Dept. of Envtl. Quality

Draft Source Water Assessment and Protection Program Document

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red bar graphic OREGON

Dept. of Envtl. Quality

Proposed Regulations-Water Quality

Proposed Regulations-Air Quality

Water Quality Permit Applications

Proposed Regulations-General 

Public Notices-Cleanup Remedies

Public Notices-Remedial Actions

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red bar graphic PENNSYLVANIA

Dept. of Envtl. Protection

Proposed SIP Revision-Pittsburgh Ozone Nonattainment

Final General NPDES Permit-CAFO Operations

Final Regulations-Air

NPDES Permit Applications

General Permit Extension-Stormwater

Draft Technical Guidance Documents

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red bar graphic SOUTH CAROLINA

Dept. of Health and Envtl. Control

Permit Application Notices

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red bar graphic  TENNESSEE

Dept. of Environment and Conservation

Proposed Regulations-Water Quality

Permit Applications

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red bar graphic  TEXAS

Natural Resource Conservation Commission

Final Regulations-Air Quality/Houston/Galveston Area

Permit Hearings

Draft Report to Legislature-Grandfathered Air Sources

Public Hearings Proposed Rules

Sunset Advisory Commission

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red bar graphic  UTAH

Dept. of Envtl. Quality

Permit Applications

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red bar graphic VERMONT

Dept. of Envtl. Conservation

Permit Applications

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red bar graphic VIRGINIA

Dept. of Envtl. Quality

Proposed Regulations-Solid Waste Management

Public Meeting Notices

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red bar graphic  WASHINGTON

Dept. of Ecology

Adopted Regulations

Proposed Regulations

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red bar graphic WEST VIRGINIA

Dept. of Envtl. Protection

Public Notice Bulletin (Permit Applications, Proposed Regulations)

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red bar graphic WISCONSIN

Dept. of Natural Resources

Public Hearing and Meeting Schedule

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Copyright© 2000, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL
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red bar graphic GENERAL

  • A treaty calling for the phaseout and disposal of a dozen persistent organic pollutants (POPs) and for the incorporation of other POPs was approved on Dec. 10. The treaty (the Stockholm Convention on Implementing International Action on Certain Persistent Organic Pollutants) will become of force when it is ratified by at least 50 countries. Eight of the 12 chemicals--aldrin, chlordane, dieldrin, endrin, heptachlor, mirex, toxaphene, hexachlorobenzene--would be banned immediately upon the treaty becoming of force. Significantly, the treaty incorporates the "precautionary principle," through language that states "that precaution underlines the concerns of all Parties to this Convention and is embedded within it." In the event of scientific uncertainty regarding whether a chemical should be added, the treaty calls for administrators to "decide, in a precautionary manner, whether to list the chemical." Incorporation of references to the precautionary principle in several portions of the treaty was a significant victory for environmental groups and the U.S. government. Adoption of the treaty by the U.S. would lead to revisions to FIFRA, as well as possibly to the CCAA and RCRA. A signing ceremony will be held in Stockholm May 2001, but implementation of the provisions will not be required until the treaty becomes of force, a process that will likely take four years or more.
  • Officials from 177 countries that are party to the UN Convention on Biological Diversity opened a weeklong conference in Montpellier, France, regarding implementation of the Cartagena Protocol. "The world's governments adopted the Cartagena Protocol on Biosafety earlier this year to establish a fair and transparent system for international trade in genetically modified organisms," said United Nations Environment Program Executive Director Klaus Toepfer. "Many of the disagreements about living modified organisms that are being aired today are addressed in this groundbreaking agreement. The sooner governments make the protocol operational, the sooner we can assure the public that human health and the natural environment are being fully protected." See http://www.biodiv.org
  • Officials from more than 170 country parties to the U.N. Convention to Combat Desertification (UNCCD) began a conference in Bonn. See http://www.unccd.int/publicinfo/pressrel/showpressrel.php?pr=press05_06_00 
  • A World Resources Institute report, Pilot Analysis of Global Ecosystems (PAGE): Grassland Ecosystems, concludes that the world's grasslands are rapidly disappearing. Grasslands make up  40% of the world's land surface and provide livelihoods for nearly 800 million people, according to the Report. Their decline is due to the conversion of these ecosystems to agriculture, urbanization, excessive fires, livestock grazing, fragmentation and invasive species of plants and animals. The Report may be viewed at http://www.igc.org/wri/wr2000/grasslands_page.html
  • Worldwatch Institute issued a study, Deep Trouble: The Hidden Threat of Groundwater Pollution, which concludes that groundwater supplies are contaminated in virtually every country, with the worst pollution in areas in which groundwater is needed for drinking water supplies. See http://www.worldwatch.org
  • The U.S. and Canada agreed to significantly reduce emissions from power plants and industrial sources by 2010. Air pollution accounts for about 5,000 premature deaths in Canada and about 60,000 in the United States annually. The agreement, the Ozone Annex to the 1991 Canada-United States Air Quality Agreement, requires power plants and other industrial sources to cut nitrogen oxide emissions by between 50% and 75% by 2004. The United States plans to reduce its overall nitrogen oxide emissions by 35% by 2007, with an intent to reduce U.S. annual emissions by 43% by 2010. Both countries also vowed to pursue reductions in volatile organic compounds, while Canada plans to strengthen its vehicle emission standards and bring them into line with U.S. standards.
  • The United Nations Environment Programme has created a Coral Reef Unit. See http://www.unep.ch/coral.html

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red bar graphic CLIMATE CHANGE

  • U.S. Undersecretary of State Frank Loy expressed "disappointment" about the inability of the U.S. and the European Union to advance Kyoto implementation at a two-day post-Hague meeting in Ottawa. U.S. officials indicated it is unlikely that another meeting will occur before the next scheduled conference in Bonn (scheduled for May 2001). 

  • The Center for Global Atmospheric Modelling at the University of Reading indicated that international efforts to reduce the use of CFCs are working and that the ozone hole over the Southern Hemisphere is shrinking and may disappear over the next 50 years. 

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red bar graphic EUROPE

  • A proposal to authorize approval of environmental taxes by a "qualified majority," rather than unanimous consent, was rejected due to opposition from the United Kingdom and Spain. 
  • An energy conservation program was unveiled by French officials led by Environment Minister Dominique Voynet. The program is aimed at increasing the utilization of renewable energy sources through government assistance in new projects and through programs to encourage energy conservation. 
  • Farmers in France were accused by the French Food Agency of introducing BSE (mad cow disease)-affected cattle into the human food chain, by passing off infected cattle as victims of accidents. 
  • EU ministers are considering proposals to cut fishing quotas by as much as 74% percent next year to prevent overfishing. 
  • The European Parliament and the Council of Ministers agreed on language to implement Directive 90/220 on Deliberate Release of Genetically Modified Organisms.
  • The European Parliament gave preliminary approval to measures that would accelerate the phasing out of single-hull oil tankers and impose more stringent tanker inspection procedures. 

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red bar graphic CANADA

  • The Canada Supreme Court, in the case of Services des Espaces Verts Ltee/Chemlawn et al. v. Ville de Hudson, No. 26937, is considering whether local jurisdictions can impose bans on the use of lawn pesticides. Over 35 communities in Quebec have imposed bans since 1991, and others within and outside of Quebec are considering such restrictions.
  • Environment Canada said that it will release, before Dec. 31, a 10-year plan for regulation of off-road vehicle engines and small engines used in chainsaws, lawn movers, and similar products. 

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red bar graphic AUSTRALIA

  • The Plague Locust Commission said that Western Australia is facing its most severe infestations of locusts, with South Australia, New South Wales, and Victoria also facing potentially significant damage to agricultural crops.  

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red bar graphic ASIA

  • Beijing, China, will seek to increase the amount of energy it derives from geothermal, solar, biomass, and wind power. The city's efforts are intended to assist it in gaining the 2008 Olympic Games. See http://www.sinoprojects.com
  • U.S. and Vietnam representatives met to discuss the lingering environmental and human health consequences of Agent Orange use and exposure. 

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red bar graphic AFRICA 

  • Officials from seven African cities met under U.N. auspices to address methods to improve water management in Africa. A U.N. official noted that worldwide "the number of urban dwellers without adequate access to water supplies [has] reached an all-time high of 180 million." See http://www.nandotimes.com/global/story/0,1024,500287594-500454608-502987651-0,00.html 
  • The World Wildlife Fund issued a report, Asian Elephants in the Wild, which concludes that Asian elephants in Africa are decreasing in number due to poaching, logging and other factors. There are now only 35,000 to 50,000 Asian elephants left, about 10% of Africa's elephant population. See http://www.wwf.org