June/July 1999 Issue of the Planet Kansas
TABLE OF CONTENTS
Final Outcomes of Key Environmental
Legislation in 1999, by Charles Benjamin, Legis. Coord.
Trade and Environment . Some big news on the international trade front., by Craig Volland
Words from the Kansas Chair: Time For Change, by Steve Baru, Kansas Chapter Chair
Wichita Earth Day, by Dan Bolt
News from the Flint Hills Group, by Jim Sherow & J. Scott Smith
Statement Criticizing Proposed 1999 Kansas Water Quality Standards, by Charles Benjamin
Book Review: A Green History of the World, by Wayne Sangster
Book Review: Against the Grain, by Cindy Berger
Kanza Newza, by Tom Thompson, Kanza Group Chair (Kansas City area)
Join the Wildlands Campaign -- by going to the Wild!, by Vicky Hoover, National Activist Outing Chair
The Land of Ooze, by Peter Hancock, Pitch Weekly, May 20-26, 1999
Final Outcomes of Key Environmental Legislation in 1999
By Charles Benjamin, Legislative Coordinator
Should the Kansas Department of Health and Environment be split into a Department of Health and a Department of the Environment? A House committee passed such a bill out in February, with only the Kansas State Nursing Association testifying in opposition. House Speaker Robin Jennison refused to allow full House debate on the bill because the Kansas Livestock Association opposes a department of environment. On March 25, Representative Carlos Mayans succeeded in getting the issue debated on the floor of the House. The House voted the proposal down 78 to 42. That effectively killed the idea of splitting KDHE for the 1999 legislative session. Governor Graves is expected to name a new KDHE Secretary to replace acting Secretary Clyde Graeber sometime soon.
Should counties be able to pass local regulations on hog operations that are more stringent than state regulations? During the 1998 session the legislature removed county home rule powers to regulate hog factories. The Kansas Association of Counties introduced a bill to reinstate those powers to the Senate early in the 1999 session. Janice Hardenburger, chair of the Senate Elections and Local Government Committee, refused to hold hearings on the bill. A similar bill was introduced in the House of Representatives by Gary Hayzlett, a former county commissioner. House Environment Committee chair Joann Freeborn refused to hold hearings on Hayzletts bill. In late February Democratic Representative Bruce Larkin and Republican Representative John Faber successfully attached the language from Hayzletts bill to a Senate passed bill being debated on the House floor dealing with county zoning. It passed the House overwhelmingly. However, when the bill containing the language reinstating county home rule on hog regulations reached the Senate it was referred to Senator Hardenburgers committee and she refused to hold hearings on the bill, killing it for the 1999 session.
Should the powers of the Chief Engineer of the Department of Agricultures Division of Water Resources be weakened? The Chief Engineer, who has authority to decide among competing interests for limited water allocations, is currently a classified state employee within the Department of Agriculture, but independent from the Secretary of Agriculture. The legislation, sponsored by Agriculture Secretary Alice Devine, would have given the Secretary of Agriculture veto power over all decisions made by the Chief Engineer of the Division of Water Resources. The legislation, as proposed by the Secretary, passed out of the Senate Agriculture Committee, chaired by Senator Steve Morris, quickly and was passed overwhelmingly by the Senate. Opposition to the bill, including from the Kansas Sierra Club, coalesced when the bill was referred to the House Environment Committee. The House Environment Committee re-wrote the bill making all rules and regulations of the Chief Engineer subject to the Kansas Administrative Procedures Act; giving the Agriculture Secretary veto power over internal rules of the Division of Water Resources; setting up a five year time limit on processing water appropriation applications; and setting a up a two year task force of various stake-holders to examine a variety of water issues for the Legislature and Governor. That version passed the House overwhelmingly on March 26. A House-Senate conference committee further amended the bill to eliminate the task force, substituting it with directions to the Kansas Water Authority to examine the same issues that the task force would have examined. An interim legislative committee will be meeting this summer and fall to examine a number of policy questions related to statewide water issues. Toward the end of the legislative session various reporters wrote stories, based on public records, revealing that Secretary Devines father had been denied a water appropriation by the Chief Engineer in late 1998 and that Secretary Devines husband was the attorney of record challenging the Chief Engineers decision. Further press reports contained denials from officials at Groundwater Management District No. 3 with regard to Secretary Devines public assertion that her father had been given verbal assurance from officials at the District that the water rights were available and that her father had filled out the necessary paperwork to obtain those rights. Shortly after the end of the legislative session the Secretary announced her resignation from the Graves cabinet "in order to spend more time with her young children."
Should groundwater management districts have statutory authority to require "impermeable liners" on hog waste lagoons? The weak hog regulatory bill passed by the 1998 state legislature set statutory guidelines that allow hog waste cesspools to leak by as much as ¼ inch per day, potentially allowing millions of gallons of hog waste to reach underground aquifers. Researchers from Kansas State University reported to legislators this year that ammonium builds up along the bottoms of hog waste cesspools subjecting groundwater to contamination by nitrates if the cesspools are allowed to dry. They particularly cited the danger from hog waste cesspools that are abandoned. State representative Susan Wagle introduced a bill early in the 1999 session to require "impermeable liners" in all hog waste cesspools. However, House Environment Committee chair Joann Freeborn refused to hold hearings on the bill.
Should Kansas have a permanent Commission on Surface Water Quality Standards? A bill passed the House overwhelmingly setting up a permanent surface water quality commission, similar in composition to the 1997 temporary commission, to issue advisory recommendations and reports to the Governor, the legislature and the KDHE Secretary on any recommended revisions to Kansas surface water quality standards. In addition the bill would have set up a free standing "scientific advisory panel" to make recommendations on surface water standards and other issues to the KDHE Secretary, the legislature and the Governor. Senate Energy and Natural Resource Committee chairman, David Corbin, refused to hold hearings on the bill when it reached his committee. He reportedly is opposed to the legislature setting up advisory commissions with no real powers that cost taxpayer money.
Farm Bureau tries to kill Rails to Trails in Kansas. A bill written by the Kansas Farm Bureau, with input from the Kansas Livestock Association and the Kansas League of Municipalities, would have required "responsible parties", from the time they enter into an agreement on interim trail use and rail banking, to provide for "professional security personnel and security equipment" along the trail; install and maintain fencing along the trail even if no prior fencing existed; provide a bond or proof of an escrow account and proof of liability insurance in an amount that the county commission "determines reasonable"; hold public hearings in each county that the trail is to be located within 90 days of entering into an interim trail use agreement; submit project plans to the county commissions of each county within 90 days of the last public hearing; make reports to cities and counties on the status of trail development at times determined by the county and city; and be subject to fines of $100 per day, up to a maximum of $1500, for each count of violation or noncompliance. These requirements were in addition to requirements already in Kansas law that are the most stringent in the nation for those developing rail-trails. Majority Leader Kent Glasscock prevented the bill from being debated on the House floor because the bills proponents could not demonstrate that the kinds of bonds called for in the legislation are actually available
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Trade and Environment .
Some big news on the international trade front
By Craig Volland
Giant Legal Victory for Sea Turtles. This from Sierra Club's International Office. In a much-anticipated decision on April 8, a federal judge with the US Court of International Trade ruled in favor of maintaining increased sea turtle protections. This victory will only allow wild shrimp into the US from importing nations that employ policies that prevent sea turtles from drowning in shrimp nets. This ruling will create major ripples in the international trade arena calling into question whether the US can comply with last year's World Trade Organization (WTO) ruling without first changing US law.
The suit, a consequence of a WTO ruling that voided part of the Endangered Species Act, was brought by a coalition of environmental organizations including the Sea Turtle Restoration Project, the Sierra Club, the Humane Society of the U.S. and the ASPCA. The ruling is expected to set a strong precedent for the sovereignty of US laws over global trade bodies.
Defeat for Dolphins. The U.S. Commerce Department announced on April 30 that it was broadening the definition of "dolphin safe" tuna to include fish caught in purse seine nets. "Encirclement fishing" had been banned under a Marine Mammal Protection Act provision later overturned by the WTO. The Commerce Department says this is an interim decision based on research that found little evidence that encirclement fishing was harming three species of dolphin that are considered depleted. A final ruling will be made in 2002 after further research. However, animal protection groups maintain that chasing dolphins separates mothers from infants and causes stress and injuries. Eighty-five environmental groups have joined together to protest the decision. One might question why this decision is being made by the Department of Commerce rather than a neutral party.
Beef Hormone Bombshell (Source in part, Reuters Wire Service). On May 2, scientists from the European Union announced that one of six growth hormones used in the US beef industry may cause cancer. They said that 17-beta- oestradiol "has to be considered as a complete carcinogen, as it exerts both tumor initiating and tumor promoting effects." They said insufficient data was available to make a judgment on the other five as yet. However the scientists added that for all six hormones, developmental, immunological, neurobiological and carcinogenic effects "could be envisaged."
A major confrontation between the European Union and the U.S. is underway over the EU's ban on the import of US beef produced with growth hormones. Hormone free or "natural beef" is exempted. It was this long running dispute that prompted the US in 1994 to ram through a provision making rulings of the WTO's secret dispute resolution panels mandatory. The WTO, on cue, ruled that the EU's beef hormone ban was a barrier to trade. But authoritarian actions such as this frequently have unintended consequences. The EU was compelled to commission 17 new scientific studies to strengthen the science supporting their ban. This recent announcement is an interim finding from the program. Watch for a great big boomerang heading our way.
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Words from the Kansas Chair
Time for change.
by Steve Baru, Chair, The Kansas Chapter of the Sierra Club
Not-so-trivial pursuit time; quick, who said the following? "The great question of the 70s is, shall we surrender to our surroundings, or shall we make our peace with nature and begin to make reparations for the damage we have done to our air, our land, and our water? Restoring nature to its natural state is a cause beyond party and beyond factions. It has become a common cause of all the people of America." Okay, who said it? It was Richard M. Nixon in his State of the Union Message of 22 January 1970.
Here we are nearing the year 2000, and there is little evidence that these wise words, spoken thirty years ago by a Republican President, have reached the ears of those that run our Kansas state government. The Kansas legislature year after year has failed to make needed reparations and instead leads us into greater water pollution; gives us fouler air; taints our foods with hormones, insecticides and poisons; and builds more 20th century highways as solutions for our 21st century needs.
As I write this, the Topeka elite are wrestling with each other like two mad dogs in a kennel over a transportation bill that fails to address the needs of our future. Yes, it does put down concrete in places that would utilize it to its fullest, but it does little to wean us off of our addiction to the gasoline nipple. We need more energy committed to mass transportation that is safe, economical and convenient. The transportation plan that finally emerges will have at best one eighth of one percent for mass transit of this massive vehicular budget.
We in Sierra Club need to accept our responsibility to mobilize Kansans to take control of our future mobilization. The job has fallen to us the Kansas environmental community because the elected few as a body have shown no interest in true leadership with transportation issues.
Rails to Trails
That same body has failed to provide Kansas enjoyable, safe recreation by pulling the rails from our trails and from under our feet. It would be easy to blame the Kansas Farm Bureau, who represents the anti-trails groups, but the fault belongs to most of the Topeka legislators who are gutless when it comes to making decisions for the benefit of Kansans when they are opposed by special interest groups.
Our senators and representatives continually turn away from public health in favor of special interests. The League of Conservation Voters (LCV) gives our nationally elected officials some of the lowest marks in the country. That is no small statement when one realizes that the chair of the LCV is former Kansas Governor Mike Hayden. Congressional Representatives Tihart and Ryan have been given a zero rating by the LCV. That takes effort and doesnt happen because they are passive about environmental issues; it happens because they go out of their way to oppose clean air and water. They go out of their way to prevent programs like rails to trails. They go out of their way to carve up our National Parks and Forests. They go out of their way to oppose protection of endangered species. They go out of their way to grant requests from any special interest group that wants to steal the beauty of our National Parks. They go out of their way to favor legislation that will harm the health of our children. God help the Kansas child who suffers from asthma because Tihart or Ryan surely wont help.
The Governor of Kansas
What about the governor? Wont he protect us? I dont think I have ever been as disappointed with a Kansas governor as I am with Bill Graves. I once thought that this governor would be our hero. He could have led the way to give us our trails, to clean up our waters, and to develop an enlightened transportation program for the next century. He could have made a real difference, and he could have bucked the Kansas Farm Bureau and other anti-environmental groups and gotten away with it. Truthfully, he could have even gone a minimal way towards environmental responsibility and gotten our admiration without alienating the anti-eco groups. Those groups wouldnt have hated him, but the people would have loved him. He could never grasp the concept that he had the chance, like few politicians ever have, to do special things. However, this governor has not accomplished much that benefits the health and environment of Kansas and could end his term with no special legacy to point to. Some Kansas newspapers are beginning to use the term "do-nothing governor," and at this point in our advocacy, I cant argue with that.
So what do we do? Is it hopeless? Do we just wait it out, hoping someday a hero will be elected who really cares about health and environment? In the meantime, shall our children with asthma stay inside at recess on bad smog days? Of course not.
We will develop a strategy that will mobilize responsible Kansans to vote during elections for responsible candidates. We will mobilize to defeat the Tiharts and the Ryans.
Can it be done? If we could do it in the Kansas 3rd, then we surely can do it in other districts. We will begin showing Kansas just how bad the Kansas Farm Bureau is.
Can it be done? We will talk to those who have Farm Bureau Insurance and let them know what their premiums are supporting. My guess is they will have no problem switching to another insurance carrier, and that is just the beginning. Voters in the urban areas are going to know about the Farm Bureau and know about their detrimental policies against a good quality of life in the cities. We will make the Farm Bureau an issue during elections in the urban areas. Woe to the urban politician who supports the Farm Bureau.
In short, we, the Sierra Club of Kansas and the Kansas environmental community, are going to mobilize. I am not asking you to believe, I am telling you it is going to happen now. All you have to do to join and be part of it is become active with your local Sierra Club or other environmental organization. There are many leadership positions to fill; every cause needs a leader. You come; you lead; we will follow. Or contact me, and Ill get you up and running.
James G. Watt said back in 1982, "You cant outrun an environmentalist to the left...they will always stay ahead of you." Now, at the turn of the century, the direction can be right or left, and we can run faster than ever. Let the race begin.
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Wichita Earth Day
By Dan Bolt
After having snow showers on Friday and temperatures in the 50's, Sunday, April 18th, was a perfect day with temperatures in the 70's. Early in the afternoon, environmental groups, including the Southwind Group of the Sierra Club, Arkansas River Coalition and The Waste Control & Recycling Coalition, gathered at West Riverside Park in Wichita. The Earth Day event, "Procession of the Species", was sponsored by the Great Plains Earth Institute to bring to the public's attention species of animals that are threatened by extinction. The event also allowed other environmental groups an opportunity to introduce themselves and educate the public.
At the beginning of event, people dressed as a threatened animal took part in a small parade. Artists and the public had constructed the costumes of these animals in special workshops held a couple of weeks before the event. Larry Ross, Southwind Group, dressed as a bison. This was the second year that Larry was the bison. After the parade was finished, the public was invited to visit the booths of the environmental groups and listen to a steel drum band. The event was a great chance to meet with the public and to develop ties with other environmental organizations.
The Southwind Group also was involved in an Earth Day event on Thursday, April 22nd. This event was sponsored by Boeing and was held at Century II in Wichita. Forty-three organizations developed booths to educate school children about Earth Day and the Environment. Along with handouts and temporary tattoos, the Southwind Group developed a PowerPoint computer program to demonstrate the importance of clean air and water. It was shown that the Earth is a closed system that needed to be protected. The program demonstrated, that although the world is covered mainly by water, very little is usable for man. Since so little water is usable, it is very important not to pollute. The program also showed that the air on the Earth is basically the same air that was developed when the world was created. New air is not being produced. It is only being converted from form to form. Polluting the air will not go away easily and can cause sickness in plants and animals. This Earth Day event was a good opportunity to try to educate school children and pass our information to teachers and parents. Approximately 6,000 children were expected to attend the event.
In the future, the Southwind Group is planning to be involved with Zoo Conservation Day on June 5th and Walk with Wildlife on June 12th.
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News from the Flint Hills Group
By Jim Sherow and J. Scott Smith
The Flint Hills Group is dealing with many important environmental issues. The City of Manhattan had a city commissioner race on April 4, and Carol Peak, the candidate endorsed by the group, won a two-year seat on the commission and defeated the incumbent mayor. This is great news for environmentally concerned folks throughout this area.
At the time of the election, Ms. Peak served on the area urban planning board and her departure has left a vacancy. The new mayor will be making his appointment, and the group is cautiously optimistic that some one with some environmental sensitivity will be selected.
Mayor Reitz=s appointment is important as the Riley county commissioners recently appointed Mike Kratochvil, a project estimator for D&R Construction firm, to the planning board on April 22. Mr. Kratochvil was selected to replace Ray Weisenburger, who had expressed interest in continuing his service on the board. Now, two members of the seven member board have direct ties to construction firms in the city, and the two members who cast votes against Wal-Mart=s proposal for a super center at the Seth Child - Ft. Riley Boulevard site are no longer on the board. Carol Peak was elected to the city commissioner, and Ray Weisenburger was not reappointed by the county commissioners. The executive committee is keeping close tabs on Mayor Reitz=s appointment.
Wal-Mart has a new proposal (modified) for the super center at the corner of Seth Child and Ft. Riley Boulevard in Manhattan. This new proposal calls for close scrutiny and study. Significant changes have been made to the company=s previously submitted plan. Some notable changes are the repositioning of the store some 100 feet to the east, the closing off of Shuss Road, the elimination of the retention ponds, a twenty foot cut rather than forty along the western portion of the site, a twenty foot retention wall along the west rather than a forty foot one, a new retention wall along the south side to keep the store from sliding into the wooded draw along the south, greater use of tree screening along the west boundary of the store, and a store size 1,400 sq. ft. larger than called for in its previously submitted plan.
Neighborhood residents and others from throughout the city (including Flint Hills Sierra Group representatives) recently met with company representatives to discuss this new proposal. Apparently Wal-Mart is adamantly opposed to any proposals that reduce the size of the store, a suggestion of the neighborhood groups and many of the area urban planning board members. It remains to be seen how this scenario will play-out at planning board hearings this summer.
T.J. Hittle, canoeist par excellence, made the first descent of Kings Creek, to McDowell Creek, to the Kaw River last week. After first gaining permission to carry their canoes and gear far up Kings Creek on Konza Prairie, he, and Dr. Mick O'Shea (KSU Physics Dept.) ran these creeks at high water levels. They had an exciting float that included careful scouting for numerous down trees and strainers. T.J., as many around here know, is active in the Kansas Canoe Association and Friends of the Kaw, besides instrumental in the endeavors of the Flint Hills Group. The Flint Hills Group will be posting canoe trip information in these pages and at its web site as T.J. and other canoeists plan their floats. T.J.=s a great guide, and knows the rivers and creeks of this state. This summer you can have a great time by taking advantage of his trips whenever you have an opportunity.
The Excom of the Flint Hills Group wants to announce to all interested Sierrans across the state that it is sponsoring a hike on Konza Prairie on June 5, 1999. Hikers will be meeting at the trailhead kiosk at 1000 a.m. This will be a great time of year to see spring wildflowers in full bloom and the early greening of the tallgrasses. For additional information, contact Jim Sherow (785-539-3162) or Scott Smith (785-539-1973, firstname.lastname@example.org).
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Summary Statement Criticizing Proposed 1999 Kansas Water Quality Standards
By Charles Benjamin, Legislative Coordinator
At a Public Hearing held by Kansas Department of Health and Environment on May 12, 1999 at the Wichita City Council Chambers
Through water quality standards, the state defines what clean water is. We expect that definition to at least meet the minimum standards of the Clean Water Act. Drafts of the 1994 Kansas water quality standards were weakened considerably during the last months before they were proposed. The proposed 1999 standards introduce changes that will lead to further weakening of protection for waters of the state.
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A Green History of the World, by Clive Ponting
(and an update on global warming)
A book review (and more) by Wayne Sangster
A Green History of the World: The Environment and the Collapse of Great Civilizations, by Clive Ponting not a new book, having been first published in 1991, but it is new to this writer. Its a classic that is definitely recommended reading. Pontings 430-page work is a monumental effort chock full of world history as it pertains to the environment going back to the origins of humans on our planet. The books objective is not to provide a prescription for saving the world. Instead it chronicles our past, providing lessons for determining our future courses of action. We must formulate and carry out plans for whatever is needed to halt the headlong plunge into catastrophe which may well be our destiny otherwise, and this book is a reminder of what the human condition has been through the ages and how we arrived at where we are today.
As in The Story of B, reviewed by Cindy Berger in the last issue of Planet Kansas, the development of agriculture, with its ability to support greater populations, is seen as the beginning of mankinds assault on our environment. For about two million years humans lived by gathering, hunting, and herding. Then agriculture (which Ponting calls "The First Great Transition" in Chapter 4) began separately about 10,000 years ago in three core areas of the world -- southwest Asia, China, and Mesoamerica. The worlds population at that time was about four million and began rising faster about 5000 BC and was 200 million by 200 AD. We all know that agriculture now supports a population approaching 6 billion.
Chapter 10 describes how the Third World came about in the four hundred years after 1500 with the rise of Europe to dominate the rest of the world. European expansion triggered a process of gradual integration of different parts of the world into a single system and created a world economy dominated by European states and the areas where extensive white settlement took place -- North America, Australia, New Zealand, and South Africa. The colonies provided crops, raw materials such as gold and silver (especially from Mexico and Peru), and timber to supplement European supplies. Increasing political control and industrialization of Europe in the nineteenth century intensified this process. Third World countries became major producers of crops and raw materials for Europe rather than manufacturers of industrial products. Even after political independence they could not escape from this economic system. The United States was an exception after 1776, and it gradually joined Europe as an exploiter of the Third World even though it had large-scale plantations of its own.
"The Second Great Transition," Chapter 13, describes the shift of our energy source to fossil fuels. Before this time all of forms of energy were renewable (although trees were normally treated as non-renewable). The last two hundred years have been characterized by a massive and continuing increase in energy consumption from non-renewable resources. Then "Polluting the World, " Chapter 16, culminates with a discussion of global warming. Ponting cites a report predicting a temperature rise of perhaps 2.5 degrees C (4.5 degrees F) above pre-1850 levels by 2030. This sort of increase in global temperatures means that the earth would be as warm as it has been in the last 120,000 years (at the peak of the last interglacial, which was one of the warmest during the succession of ice ages and interglacials that have occurred since humans have existed) and possibly even warmer. A more recent assessment of the probable temperature rise as given in State of the World 1999 is not as pessimistic. It predicts a doubling of pre-industrial carbon dioxide levels as soon as 2050, with a predicted average temperature rise of 1-3.5 degrees C (2-6 degrees F) by 2100. The Hadley Centre for Climate Change in Britain in late 1998 identified the potential for a "runaway" greenhouse effect after 2050 that could turn areas such as the Amazon and southern Europe into virtual deserts.
The concluding chapter is entitled "The Shadow of the Past." In one very thought-provoking paragraph Ponting states, "From one perspective this [mankinds] invention of new techniques and more complicated production processes and utilization of more resources can be viewed as progress -- the increasing ability of human societies to control and modify the environment to meet their needs through sheer ingenuity and a capacity to respond to challenges and to engage in problem solving. From an ecological perspective, the process appears as a succession of more complex and environmentally damaging ways of meeting the same basic human needs."
Global warming to Ponting seems as perhaps the most damaging consequence of human action. He thinks it is virtually inevitable, even if strict controls are introduced quickly, that global temperatures will rise to a level never before experienced by settled societies. The production of food will be disrupted, with perhaps a 10 percent fall in output and a 70 percent reduction in American grain exports (according to a UN estimate), which will intensify the problem of feeding the worlds rapidly growing population. Even more worrying is the rate of global warming, which will almost certainly be far above natural rates in the past and too fast for natural ecosystems to adapt. Quoting Ponting, "Global warming is therefore a demonstration, for the first time on a world-wide scale, of the results of ignoring, as settled societies have done for most of their history, vital ecological constraints. The consequences for life on earth and humanity will be profound." ... "Past human actions have left contemporary societies with an almost insuperably difficult set of problems to solve."
To add emphasis to this dreary prospect as seen by Ponting is this item in the May 1999 issue of Scientific American: As reported in the March 15 Geophysical Research Letters, Malcolm Hughes of the University of Arizona and his colleagues have analyzed tree rings and ice cores to reconstruct temperature trends over the past 10 centuries and have found an abrupt reversal in the last century of a 1,000-year-long cooling trend. The 1990s were the warmest decade and 1998 was the warmest year of the millennium. This study greatly extends the period of record over which to compare recent years. University of Munich researchers note in the February 25 Nature that spring blooms now take place six days earlier than in the 1960s and that the growing season lasts nearly 11 days longer. Yes, folks, global warming is for real, and were in a heap of trouble!
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French Fried Pesticides Book Review
(Against The Grain: Biotechnology and the Corporate Takeover of Your Food)
By Cindy Berger
If you eat french fries at McDonalds or Frito-Lay potato chips, then you have likely sampled Monsantos New Leaf Superior potato. It is legally registered as a pesticide because it has been genetically altered to poison the pests that eat it. This is just one example of the exploding new industry of genetically engineered foods, so named because they have had DNA from a foreign organism artificially inserted into them. Marc Lappe and Britt Bailey take a look at this recent industry boom in their book, Against The Grain. Here are some highlights from their book and recent developments within the industry.
Lappe and Bailey note that the major chemical companies (principally Monsanto, Dow, and DuPont) are aggressively developing genetically engineered varieties of corn, wheat, potatoes and cotton, and marketing them worldwide. By the year 2000, this market will have an estimated value of $46 billion.
Why alter crop genes?
The large agri-chemical corporations insist that genetic engineering is necessary to feed our ever-growing population. In reality, as Lappe and Bailey point out, 2/3 of the genetically altered crops were created for the sole purpose of increasing company sales of herbicides. For example, Monsanto has genetically modified plants to be resistant to their Roundup herbicide. Farmers purchasing Monsantos Roundup Ready seeds sign a contract promising not to save any seeds and to use only Roundup herbicide.
Ecological disaster for organic farmers?
Against The Grain reveals that potatoes, corn and cotton have been genetically engineered to contain Bacillus thuringiensis (Bt) toxin in each of their cells, making the entire plant insect resistant. The Bt bacteria is an organically approved, non-chemical alternative for insect control, historically used as a last resort by organic farmers to control budworms and bollworms. Genetically inserting the Bt toxin into plants assures mass exposure of pests to low-level toxin over their life cycle, greatly accelerating the emergence of resistant pests. The technologys developers admit that within 10 years Bt will no longer be useful as an insecticide.
According to Lappe and Bailey, in 1997 approximately 7 million acres of genetically altered cotton were planted in the U.S., with much of the crop designated for use in livestock feed and for producing cottonseed oil. In 1998 an estimated 25% of the total U.S. corn crop and 32% of the soybean crop were genetically modified. These unlabeled products were mixed into the U.S. consumer food supply. Approximately 60-70% of our processed foods could now contain some form of genetically engineered corn or soy.
Why fight technology?
Against The Grain outlines several key areas of concern with genetically engineered crops. This is a largely unregulated experimentation on millions of people for the benefit of a few corporations. Little or no research has been done to evaluate the effect of these products on humans. Large scale plantings of these products accelerate pesticide and herbicide resistance and encourage increased use of herbicides, promoting aerial spraying and harmful drift. The organic farmers last resort against pests will soon be eliminated. Genetically modified seeds force farmers to become even more dependent on corporations for both chemicals and seeds.
The USDA, FDA and the EPA have all taken a "head in the sand" approach to this genetic tinkering. Currently, genetically modified food products are treated as any other food item and are not subject to additional regulations. Because there are no labeling requirements, consumers have no way of knowing whether they are eating genetically altered foods.
Subsequent to the publishing of Against The Grain attempts to create the worlds 1st global treaty to regulate trade in genetically modified products failed in February of this year when the U.S. and 5 other big agricultural exporters rejected the Biosafety Protocol proposal, which had the support of 130 nations.
Over 3 dozen patents have been granted to the large agri-chemical corporations for techniques to genetically sterilize plants and seeds. This new technology would force farmers to return to the commercial seed market every year. One example, the "Terminator" patent (jointly owned by the USDA and a Monsanto subsidiary) requires seeds to be exposed to a Monsanto produced chemical before germination will take place. This same exposure renders the seed sterile. (Most farmers worldwide depend on farm-saved seeds to continuously adapt crops to their unique environments.)
Monsanto has acquired more than $8 billion worth of large seed companies over the last 2 years, for the purpose of strengthening its herbicide and pesticide sales. DuPont is trying to acquire Pioneer Hi-Bred, the last remaining giant seed company.
What can you do?
Grow your own food. Buy organic foods from local farmers. Contact Dan Glickman, Secretary of Agriculture, and let him know that you support consumer choice, notification, and protection, concerning genetically engineered foods. You can write to him at: USDA, 200-A Whitten Bldg., 1400 Independence Ave., SW, Washington, D.C. 20250. (email: email@example.com, phone: 202-720-3631, fax: 202-720-2166.) Dont forget to copy your congressperson.
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By Tom Thompson, Kanza Group Chair
If you look at the calendar and do the math you will see that in a couple more editions of the Planet Kansas you will be asked again to vote for new members to the Kanza Group Executive Committee (also the Kansas Chapter ExCom elections will be held). As you enjoy working in your organic gardens or suffer through your vacations, think about getting more involved in the inner workings of the Sierra Club. I hope many of you like what we have been doing the past year while others probably wonder what we have been doing of significance. Whichever it is, consider running for the Kanza Group Excom. Call me now or call me later, but call.
What have we been doing? A number of us have been going to meetings to combat the Oz Theme Park in DeSoto. In Topeka, Charles Benjamin was working to forestall legislation enabling Oz to exist while in the Kanza Group area Marc Mason organized the charge. With the legislature being adjourned and legislation passing, Marc's efforts will be even more important. Anyone interested in working on this issue please call Marc.
John Horn has been investigating happenings in Shawnee Mission Park. Oak Ridge, where the horse stables are located, is going to become part of the park. The owner recently passed away leaving the property to the park. The question is what will be done to the property and the buildings on it. Many organizations including the Sierra Club have expressed interest in the property for various park uses. Call John if you want to help with this issue.
Others have also been hard at work. Cynthia Berger represented the Kanza Group at the Earth Day festivities at the Kansas City Zoo. Craig Wolfe has been working hard to get quality programs for our regular meetings. Steve Baru keeps the Joint Action Committee working on issues and Wayne Sangster has been the best Group Secretary a group could ask for.
Please call me at 913-236-9161 if you want to be a part of a very involved group of people.
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Join the Wildlands Campaign -- by going to the Wild!
Sign up for an exciting Sierra Club activist outing today!
By Vicky Hoover, National Activist Outing Chair
Wilderness -- it has always been at the core of the Sierra Club mission! Our outings program was started in 1901 to educate and inspire people to fight to protect wildlands. The newest Sierra Club outings -- national Activist outings -- carry this outreach a step further; they not only show off wild areas that need help, they train participants to become strong advocates for preservation on their return home.
Our wilderness work has just received a boost with adoption of Wildlands Protection as a Sierra Club national priority campaign. In late summer and fall, we offer three activist outings that are directly tied to our Wildlands Protection campaign. Become a leader in this vital campaign by taking one of these routes to wildlands advocacy: in Florida, Utah, or Texas.
Florida Keys Marine Ecosystem Workshop, Aug. 22-28, 1999. Trip #99103A, cost $580. In south Florida the extraordinary ecosystems of the Everglades and Florida Keys are threatened as never before. Based in Key Largo, our _Everglades to the Coral Reefs_ outing is led by experienced guides Vivian and Otto Spielbichler. The week-long Marine Lab features classroom training as well as first-hand sea encounters with snorkel, mask, and microscope. The complex wetland and coral reef ecology deserves protection no less than a purely terrestrial area. Treat yourself to our intensive learning experience in the coral reefs, mangrove estuaries, sea grass beds and the back-country of Everglades National Park. (This trip is part of our water issues campaign as well as the wildlands campaign.)
Utah's Aquarius Plateau, Sept. 11-18, 1999. Trip #99104A, cost $445. Utah wildlands have achieved national prominence lately. America's Redrock Wilderness Act, the exciting bill to preserve spectacular Utah wildlands, includes new areas this year. This sixth annual Utah activist outings studies the new expanded wildlands inventory. Led by Vicky Hoover and Jim Catlin, it is the first trip to highlight the plight of Utah's national forests in addition to its Bureau of Land Management Lands. You'll see! A four-day backpack journey on lofty forested Boulder Mountain shows that Utah is more than desert. Broad views and slickrock canyons round out this eight-day odyssey, along with inspiration and learning skills to advocacy.
Blue Skies Over Big Bend, Nov. 7-13, 1999. Trip #99105A, cost $395. Why have an outing to a national park--Big Bend--one of the chief scenic attractions in Texas? Isn't it already protected? Alas, the blue skies and the famous spectacular vistas far off into Mexico may soon disappear into a dense haze. A gradual, apparently inexorable increase of pollution from power plants on both sides of the border clouds the future of this special place. Two short backpack forays plus car-camping will let you experience the spectacular scenic and geological features, unique flora and fauna, romantic border history, and unforgettable sunsets. Enjoy a journey back in time with leaders Rich Schiebel and Scott Royder and learn to be part of the solution.
For more information, contact Vicky Hoover at (415) 977-5527 or firstname.lastname@example.org. Ask about partial scholarships for applicants for whom cost is a deterrent. Some Chapters may be able to help if you become an official Chapter representative. For a trip brochure and application form, call the Sierra Club Outing Department's 24-hour voice mail at (415) 977-5522, or visit http://www.sierraclub.org/outings.
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The Land of Ooze:
Environmental Issues Surrounding the Sunflower Army Ammunition Plant
By Peter Hancock
Ó 1999, (First printed in PitchWeekly, May 20-26, 1999)
The Sunflower Army Ammunition Plant is a visible reminder of what a dirty business war can be.
Sprawled out over 9,065 acres in a secluded area just west of DeSoto, KS, the facility today looks like a World War II-era ghost town.
Driving along the plants internal roads, ones clearly designed for vehicles no wider than a jeep, a visitor today passes row upon row of uniform, military-style wood-frame buildings where factory workers managed the rail shipments of the millions of pounds of gun powder and propellants produced out of factories supporting Americas campaigns in World War II, Korea and Vietnam.
The buildings are mostly vacant now. Paint is peeling from their white asbestos siding and green trim. Asbestos insulation flakes from the seemingly endless miles of above-ground steam pipes that once heated the buildings and factories. The narrow asphalt roads are crumbling in many places. Farther back on the property, hundreds of underground storage tanks and miles of pipe have been dug up and stacked in piles, waiting to be decontaminated and recycled. The concrete buildings where most of the production was done are either gone or in the process of being demolished.
Driving through the plant any other time, a person can close his eyes and almost visualize what it must have looked like half a century ago when more than 12,000 people most of them women or men declared ineligible for the draft showed up to work each day, lunch buckets in hand, and rode the trolley cars from the entrance gate to their assigned work places, toiling away in support of the American war effort.
Most of the human activity today is confined to a few Corps of Engineers employees who oversee the property and a handful of environmental consultants drilling test wells to determine how much of the land is contaminated with the chemistry of war.
At night, nearby residents can often see flames shooting into the sky from the horizon as demolition workers burn the old production buildings one at a time a process that serves the dual purpose of demolishing the building and burning off residual explosives that have seeped into the cracks and crevasses over the decades.
Since 1993, after the last time military production was idled at Sunflower, the Army estimates it has spent over $15 million in cleanup costs at the site, and officials estimate it could cost U.S. taxpayers another $50- $60 million on top of that to finish the cleanup.
"We have an action plan in place now," said Ralph Burns, a civilian environmental engineer for the Army whose job is to keep tabs on the cleanup efforts. "Well finish the hard part of the cleanup by 2013. Long-term monitoring of the soil could go for another 10 to 20 years after that."
But a group of California investors known as the Oz Entertainment Co. has another idea which the investors say will result in getting the cleanup done faster, at substantially less cost to the taxpayers.
They want the federal government to give them the land in exchange for their guarantee to clean up all the environmental contamination. Their idea is to build a 1,750-acre "Wonderful World of Oz" theme park and resort based on the characters from the L. Frank Baum books and MGM movie, which they say would attract more than 3 million visitors a year.
The park would be located in the northeast corner of the Sunflower property, an area generally thought to have the least amount of contamination. Revenue from the park operation would then provide the cash flow needed to pay for cleanup of the remainder of the site. Some of that land would be parceled out to surrounding local governments for use as parks, horticulture research and possible development of new schools, but the bulk would be sold to other developers and businesses as a kind of commercial redevelopment district.
All of that is being made possible by the state of Kansas, which has agreed subject to contract negotiations to issue about $250 million in bonds that would be repaid over 30 years with new sales tax revenues generated by the project. Eventually, according to information distributed by Oz officials at public meetings, the state would also be asked to help provide about $35 million worth of highway and infrastructure improvements, along with about $20 million in job-creation and other economic development grants.
Its an idea that has certainly piqued the interest of state and federal officials who see it as an opportunity to put thousands of acres of contaminated land left idle by the downsizing of the U.S. military at the end of the Cold War back into productive commercial use at minimal cost to state and federal taxpayers. That, however, assumes that the plan is a success.
If its not, critics of the proposal say, there could be a substantial amount of risk, not only for the state of Kansas, which may or may not have liability for the cleanup if Oz Entertainment fails to meet its commitments, but also for residents of the DeSoto area and Johnson County as a whole.
Thats because the development of a huge Disney-style theme park several miles beyond the current frontier of urban services threatens to have a profound impact on traffic flows, infrastructure needs, air quality, land-use patterns and a host of other issues that were never contemplated in the areas comprehensive development plan before the Oz proposal came along.
On top of that, there are a host of other issues surrounding the transfer of federal land into private hands that go far beyond the impact of the Oz theme park itself. For one thing, the land carries with it a very large and very senior water right to flow in the Kansas River, something that could determine the breadth and scope of future suburban development in Johnson County, depending on who ends up with that water right.
And finally, just if anyone thought the situation couldnt get more complicated, a small group of Johnson County residents claiming ancestry to the Shawnee Indians who used to inhabit the area a century ago have filed a claim that the land rightfully belongs to them under terms of treaties that were signed in 1825 and 1854.
Led by local resident Jimmy Oyler, who claims to be "principal chief" of the United Tribe of Shawnee Indians, an entity that is not recognized by the federal Bureau of Indian Affairs, the group is suing in federal court in Kansas to have the entire Sunflower site declared Indian land. A hearing in that case is tentatively scheduled this month, although most legal observers view the "tribes" chances of success as a long shot at best.
A catch basin of environmental concerns
Craig Volland, an environmental engineer and president of Johnson County-based Spectrum Technologists Inc., has been a close observer of the Oz project and a harsh critic of the process government agencies are using to push it through.
"For me, there are three main problems," Volland said. "They are transferring this property without adequately assessing the extent of contamination. Secondly, the Oz development will be downwind of remediation activities, and also downstream from potential seepage off the site. And third, the Oz development itself will be the nucleus of essentially an all-new city well beyond the urban boundary of Johnson County that will cause additional vehicle-miles traveled and the associated emissions that will worsen the metro areas air quality."
Indeed, the extent of contamination at the site has been a matter of significant debate, both at the Kansas Legislature and at public hearings in Johnson County to discuss the proposal.
Earlier this month Burns, the Army employee who oversees the Sunflower site, took a PitchWeekly reporter and photographer on a tour of the Sunflower plant. He pointed out buildings, or sites where buildings once stood, where the ammunition plant produced a variety of types of gunpowder and propellants. On occasion, he said, a fire would break out and the buildings automatic sprinkler systems would kick in. The water would douse the flames, he said, but then it would seep into the ground and wash away through drainage ditches.
Teams of environmental engineers working for private contractors are still drilling test wells throughout the site to determine the extent of the soil contamination.
Other known contaminants at the site include asbestos siding on many of the buildings and asbestos insulation around miles of above-ground steam pipes that interlace the property. There is also lead-based paint in the buildings; a host of pesticides that have been used on the property; PCBs; dioxin; nitrates; various kinds of acids, including sulfuric acid, which is still being produced on a portion of the site leased to Wichita-based Koch Industries; and chromium.
Because of the contamination, any transaction involving title to the Sunflower Army Ammunition Plant falls within the scope of both the National Environmental Policy Act (NEPA), which provides for the level of remediation that should be taken before the government takes any significant action on the land, and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which determines who is liable for the cost of cleaning up contaminated sites.
Curiously enough, and despite the contamination, cattle are being grazed at Sunflower. Area farmers are leasing land there. A site summary report done by the Agency for Toxic Substances and Disease Registry of the Department of Health & Human Services states that the cattle are only kept on the site for "about 120 days before being sent elsewhere" and that the cattle are "fenced off from the areas where the highest concentrations of nitroguanadine and other chemical contaminants are likely to be found."
The report further states that tissue sampling of cattle grazed at Sunflower has not been done, though it notes researchers had "acquired a study of tissue sampling in deer that lived on a site similar" to Sunflower. That study was not obtained by PitchWeekly.
No significant impact
The Sunflower property itself is still controlled by the Department of the Army, which has contracted with the Corps of Engineers to act as consultant for shutting down the facility and cleaning up the contamination.
In 1995, the Corps of Engineers hired a company called Intertek Testing Services Inc., based in Boxborough, MA, to perform an analysis of the contamination. That analysis has been the source of most information available today about the extent of the contamination, the cost of cleaning it up and the feasibility of an early transfer of the land to private developers before the cleanup project is complete.
In recent months, however, serious doubt has been raised about the reliability of that data. In January 1998, according to information provided by the Corps of Engineers, Intertek disclosed that there were "quality control problems and inappropriate activities" involved in the collection and analysis of samples. The U.S. Environmental Protection Agency has launched an investigation into the problems including, according to reports in The Kansas City Star, a criminal investigation into possible fraud by the company.
Regardless, that data was used by the General Service Administration (GSA) in 1998 when it performed an "Environmental Assessment" (EA) of the proposed land transfer, a procedure required under NEPA to determine if the transfer constitutes a "major government action" that could have an impact on the environment and, if so, whether a full-blown "Environmental Impact Study" (EIS) should be performed.
The GSA, however, concluded its assessment with a "Finding of No Significant Impact," meaning the transfer of the land to the state of Kansas (which in turn would pass the land to Oz Entertainment Co.) was not a "major government action," that it would have no significant impact on the environment and, therefore, that no EIS was needed.
But in a March 24 memo to the GSA, the regional administrator of the Environmental Protection Agency in Kansas City strongly disagreed with that conclusion.
Under NEPA regulations, Dennis Grams said, a finding of no significant impact should be based on at least five factors, none of which, he said, the GSA fully considered in its report. Those include: impacts of the proposed action on public health and safety, unique characteristics of the area, degree of controversy of the consequences of the proposed action, the degree to which effects on the human environment are highly uncertain or involve unknown risks and the cumulative impact if the action is related to other action.
Not only was the data used by GSA flawed, wrote Grams, but the EA made little mention about what the state of Kansas planned to do with the property turn it over to Oz Entertainment for development of a large-scale theme park and resort.
"The most significant foreseeable disposal alternative not adequately addressed is the transfer and future use of the property as a theme park," Grams wrote. "Although the EA uses data from the Oz Entertainment Corp. in its analysis of impacts, the EA does not develop this alternative. Since data for this alternative, including design plans for theme park construction, appear to be readily available, the data should be utilized for further discussion of this alternative."
Grams went on to say that the GSAs report, "serves more as a generic analysis of environmental consequences," as opposed to any real discussion of what the Oz Company intends to do. "Consequently," he wrote, "the EA does not capture direct impacts to the Sunflower property, such as impacts to fish and wildlife, cultural resources and changes to the landscape that would result from the construction of new facilities."
According to other EPA officials, however, there is little the agency can do to influence the GSAs action, other than complain about it.
"EPAs job in this is to be the guardian of the process, to make sure the intent of the act is carried out by federal agencies," said Joe Stevens, an attorney with EPA.
"In our comment letter, we urged the GSA to consult with us as they look at perfecting their EA so we might assist them or point out places where further study might be warranted," he said.
However, Stevens noted, the decision on whether or not to perform a full-blown EIS, which would examine in greater detail the impact the Oz development would have on the surrounding environment, is entirely up to the GSA. The EPA, Stevens said, has no ability to require another agency to perform a more detailed study, or even to sue another agency in court if it does not comply with the standards set out in NEPA.
"Thats a decision of the GSA," he said. "They go through their NEPA implementing regulations....If they hit any of the significance triggers or they hit any of the rationale under those implementing regulations, they have the ability to invoke the EIS for further determinance in their decision-making process."
Blaine Hastings, the GSAs project manager for disposal of the Sunflower plant, said his agency is working on a revised Environmental Assessment, but the GSA has no plans to study the broader issues related to development of a theme park.
"The only thing we are studying is our action, which is all were required to do under NEPA," Hastings said. "Our action is disposal of the Sunflower plant. We are not developers. Our study is: Do we dispose of the plant or not dispose of the plant?"
According to Hastings, the so-called "early disposal" procedure that GSA is attempting to use with the Sunflower plant is a relatively new phenomenon, but one the agency hopes will speed up the process of returning closed military facilities into productive commercial use. Although the procedure has been used on a few smaller facilities around the country, he said, the Sunflower project is by far the largest the agency has ever undertaken.
"What were trying to accomplish, basically, is to get the plant cleaned up and back into use as something other than an ammunition plant," Hastings said.
Not surprisingly, a number of environmentalists have weighed in on the proposal, expressing strong opposition to the proposed Oz theme park.
Among them is the Sunflower Neighbors Group, a network of about 110 families who live or own property near the former ammunition plant. The group has submitted public comment at every opportunity since the government first started talking about shutting down the plant and disposing of the property. Members of the group have said they are actively considering the idea of hiring their own attorney and filing suit in federal court seeking to force the GSA to do more study of the environmental effects of the Oz project.
Nancy Moneymaker, a member of Sunflower Neighbors Group who owns 40 acres north of the Sunflower plant, testified before a Senate committee this year on a bill dealing with financing of the Oz project. She said residents of that area have several concerns. Chief among those concerns is who will be supervising the cleanup effort if the land is transferred to Oz Entertainment Co.
"Recent cleanup has been done with the EPA having a hands-on presence," Moneymaker said in written testimony before the committee. "When Oz Entertainment takes title, my understanding is that the EPA will take a step back and the Restoration Advisory Board (a group that meets bi-monthly with the Army and Corps of Engineers to discuss progress of the cleanup) will be dissolved. I believe that after the title transfer to Oz, the KDFA (Kansas Development Finance Authority, which is handling the transfer and financing on behalf of the state) and the EPA should continue with a close hands-on approach to working with Oz and the remediation."
Marc Mason, a member of the Kansas Sierra Club, another environmental group that has taken an official position against the Oz project, says the proposed theme park could have an even more profound impact on the surrounding environment.
Besides the increased air pollution from traffic, Mason wrote in an analysis of the project, "There will be an enormous increase in effluent released into the Kansas River directly above the intake providing drinking water for most of the currently developed Johnson County.
"Noise and light pollution will increase markedly from the theme park and its visitors," Mason continued, and "prairie and wetlands will be paved for the theme park and facilities."
Compounding those issues is another recent action by the EPA concerning air quality in the Kansas City metropolitan area. On April 6, Grams issued a statement saying the long-range transportation plan for the Kansas City area did not comply with federal Clean Air standards because it fails to call for introduction of low-emission reformulated gasoline (RFG) in the Kansas City market until sometime after the year 2010.
The EPA, however, says the region needs to begin introducing RFG immediately or else the regions transportation plan will not be approved and the area will not qualify for further federal highway funding.
Furthermore, Grams said, the federal government will not introduce RFG into the Kansas City market until the governors of Kansas and Missouri formally request it, something neither Kansas Gov. Bill Graves nor Missouri Gov. Mel Carnahan has been willing to do so far.
At a recent news conference, Graves said he had no immediate plans to request RFG in the Kansas City market because it is so expensive it could have a major negative effect on the local economy. In Denver, where use of RFG is already required, Graves said gasoline costs about $1.60 per gallon, compared to about $1 a gallon in the Kansas City area.
The impact of that policy on the entire Kansas City area will be significant, whichever way the two states decide to go, but it will have a particular impact on the feasibility of the Oz project because the financing structure calls for an estimated $35 million in transportation improvements, including an improved interchange of K-10 Highway and access roads leading to and from the park.
Without the federal transportation money, officials have said, the cost of those road improvements could be left entirely up to the state.
Potential state liability
In the minds of many state lawmakers, an issue equally important to whether or not the contamination gets cleaned up is the issue of who will pay for it.
Over the last 10 to 15 years, the business pages of many newspapers have been full of horror stories about individuals, companies and even banks that suddenly found themselves liable for the cost of cleaning up toxic waste simply because they owned the property or had a security interest in it for a period of time, even though they had no involvement with the actual contamination.
The question of who is liable for toxic cleanup is spelled out in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Essentially, there are three categories of people who can be held liable for toxic cleanup: the owner of the property; anyone who owned the property at the time the site was contaminated, even if they have since sold the property; or any person or entity who, by contract or other agreement, arranged for the transport, disposal or treatment of hazardous waste at a contaminated site.
According to environmental lawyers, the typical process the government uses to determine who is responsible is to look first at the owner and then, if the current owner is unable to complete the cleanup, to move up the chain of title looking at every person or entity that had an ownership interest in the land while it was contaminated to determine if they can also be held liable.
The concern among Kansas state officials is the possibility that the state could be held liable, either because it acts as a pass-through agent to facilitate the transfer between the GSA and Oz Entertainment, or because it will have a direct hand in negotiating a contract in which Oz Entertainment will supposedly guarantee cleanup in exchange for receiving title to the land.
Kansas Rep. Annie Kuether (D-Topeka), who was a member of the House-Senate conference committee that worked on the Oz funding bill this year, said after speaking with a number of leading environmental lawyers in the region, she was never satisfied that the state got a definitive answer on the question of liability.
Not until the very end of the 1999 session, Kuether said, did other lawmakers start looking at the issues of who would be responsible for assuring the cleanup is performed according to federal standards and who could be held liable for the cost.
"The Kansas Department of Health and Environment was not in on this for quite some time," Kuether said. "They really were just kind of ignoring Health and Environment. Thats one of the benefits of all of the questions I started raising at the end of the regular session because all of a sudden (supporters) realized it wasnt just going to go flying through the chamber, and I had raised some serious questions, and now they were getting asked questions because people had serious doubts.
"At least what Ive done is Ive raised enough questions that (KDFA) is going to have to write a tighter contract," Kuether said. "Theyre going to have to have every i dotted and every t crossed before the state is going to agree to this thing. At least by making the noise that I made, we got that accomplished."
One of the things that lawmakers held out for was an assurance by Oz Entertainment that the company would provide either a cash bond or an insurance policy to guarantee enough money available to pay for the entire remediation cost before the company receives title to any piece of the Sunflower property.
That assurance was provided at least in the form of an oral promise when Oz officials came back during the final five-day wrap-up session saying they would guarantee $40 million of their own money toward the cleanup, and they would spend an estimated $10 million to buy insurance policies that would secure up to $200 million in additional cleanup money.
Kuether nonetheless voted against final passage of the bill, saying all Oz had given was a promise, not the actual insurance policies itself.
"We have nothing in writing," Kuether said on the House floor in the final day of the session. "Nothing is signed, nothing is sealed and nothing is delivered."
The responsibility for making sure Oz Entertainment actually does provide those insurance policies will rest with the Kansas Development Finance Authority, the agency responsible for approving all contracts related to the land transfer, and with issuing the estimated $250 million in Sales Tax Revenue (STAR) bonds that will be used to help finance the $771 million development.
But one environmental lawyer based in Kansas City who spoke only on the condition his name not be used said the state should be extremely careful in looking at those policies before signing any contract. Such policies are not uncommon in todays business world, the attorney said, especially as buyers and sellers have become more acutely aware of how much it can cost to clean up environmental contamination. But the terms and conditions of those policies can vary widely, just as any kind of life insurance, auto insurance or health insurance policy can vary.
For instance, the lawyer said, like most insurance policies, cleanup policies often have a deductible, which may or may not equal the amount of cash deposit the company is putting up. It may also have limitations on the kind of remedial work it will pay for, or the conditions that must be met before insurance coverage will kick in. Furthermore, the attorney said, there are other liability issues involved in any cleanup project that go beyond the basic issue of removing the contamination.
For example, he said, if an employee working for the contractor performing the cleanup is injured or killed on the job because of unforeseen hazards on the property, his workers compensation policy will provide limited benefits, but the worker may also try to sue the "deeper pockets" of any other party, including the state, who may have had a duty to ensure that the workplace was safe. Another potential source of liability, he said, could be from people who visit the theme park itself.
According to information from Oz Entertainment, the first phase of the development project calls for building the theme park and resort in the relatively clean northeast corner of the property. Once that is open, the company has said, remediation work will move to other areas of the property south and west of the theme park.
But as many people have noted, winds tend to blow from the southwest during summers in Kansas the season when the park would have the most visitors. If cleanup workers are shoveling dirt and stirring up contamination while tourists are visiting the park, asbestos particles or other forms of hazardous materials could be blown by the wind directly into the crowds of people visiting the theme park.
If any of them later develop illnesses as a result of breathing contaminated air at the theme park, the lawyer said, their attorneys will almost certainly start filing suits against anyone they think they can get money from.
According to Kuether, that is one of the reasons why she insisted the Kansas Department of Health and Environment be actively involved in reviewing the development plans and monitoring the cleanup process.
"Now what will happen is nothing will go forward without the OK of Health and Environment Secretary Clyde Graeber," Kuether said. "Its his job to go into Gov. Bill Graves office and say, Governor, this is going to work before Bill Graves would sign the contract. Nothing will go forward without Clyde Graebers OK."
Water rights issues
Yet another issue surrounding the transfer of the Sunflower property is what will happen to the water rights associated with the property.
In the Kansas City area, where water is normally not a scarce commodity, most people are unaware of how thorny and complicated the issue of water rights can be. Contrary to what many people believe, when someone buys a piece of property, he or she does not necessarily acquire all of the rights to all of the water associated with that land.
Furthermore, owning a water right does not necessarily guarantee the owner access to water. The right is only good when water is available, state officials said, and when water becomes scarce, it is allocated according to who has the oldest or most senior water right.
Under Kansas law, water rights are tightly controlled by a multitude of state agencies, most within the Department of Agriculture, and the rules governing them were written not by urban planners and developers from the metropolitan areas, but by farmers, ranchers and other people in the agribusiness industry of western Kansas where people know how precious water can be, especially when its not there.
In a wholly separate legislative action this year, Kansas lawmakers passed a bill dealing with the water rights at the Sunflower property that separates the water rights from the rest of the land transfer and gives the Kansas Water Office sole authority to negotiate for those rights.
Clark Duffy, deputy director of the Kansas Water Office, said the water rights to the Sunflower property are a desirable commodity because they are very large and very senior.
Kansas first began regulating water rights in 1945, three years after the Sunflower plant opened, and the Sunflower plant received some of the first certificates the state issued. In fact, Duffy said, the certificates are numbered 37 and 38. (New water rights issued today are numbered in the 30,000-range.) Those certificates give the holder access to huge amounts of water in the Kansas River, which also serves as a source of municipal water for a number of cities between Manhattan and Kansas City.
Even though water in the Kansas River is not scarce Duffy said a person today could still go to the Division of Water Resources and obtain a water right for the minimum $100 fee the whole issue of water supply becomes very important when a city along the Kansas River basin wants to annex land or a developer wants to open a new residential or commercial development.
The Kansas Water Office is responsible for coordinating long-range planning of water resources throughout the state, Duffy said, and that includes working with cities and counties up and down the Kansas River.
In recent years, he said the Water Office has been pressing hard on Johnson County to implement conservation measures so its demand for water does not restrict the availability of water for other communities further upstream.
Thats what makes the water rights to the Sunflower property so important, Duffy said, because for an area like Johnson County that is enjoying the economic benefits of rapid commercial and residential development for years, the idea of implementing conservation measures that might slow down that growth is not something local officials like to think about.
Several years ago, Duffy said, the Water Office devised a unique mechanism to help assure communities along the Kansas River would have adequate water supplies even in times of drought. That has involved creation of a "Water Assurance District" along the river basin.
According to Duffy, cities, counties and other people who hold water rights to the Kansas River pay a fee to the Assurance District. That district, in turn, pays the federal government for access to water stored in four major federal reservoirs in the basin: Lake Perry, Lake Clinton Tuttle Creek Reservoir and Milford Reservoir.
The best example of how that plan has worked, he said, could be seen during the drought of 1989, when water in the Kansas River was seriously depleted.
Because the assurance district was in place, Duffy said, communities along the river basin had adequate supplies of water because the district had pre-paid the federal government for the right to draw down water from the federal reservoirs. But had the district not been in place, he said, communities along the river would have seen their water supplies dry up, even though there would have been ample amounts of water tied up in the reservoirs.
Since 1989, however, much of northeast Kansas has experienced rapid urban growth, but no part of the region has grown faster than Johnson County, which gets its water from the Kansas River through Johnson County Water District No. 1. As a result, Duffy said, there is a growing need for communities within the Assurance District to start thinking regionally instead of locally when they develop plans for long-range growth.
Although most talk about the Sunflower water rights has been kept fairly quiet, several state officials have openly speculated that both Johnson County Water District No. 1 and the city of DeSoto have a keen interest in those water rights.
In particular, Duffy said, there is a fear among state officials that if any party other than the state were to obtain the Sunflower water rights, it would be an incentive for them to limit urban growth or take any steps to cut down on that communitys growing demand for water resources.
Claims of Native Americans
Meanwhile, as environmentalists and federal agencies wrangle over the issues of hazardous waste and the state wrestles with local communities over access to water rights, there is another small group of people in Johnson County who could have as much influence as anyone over development of the proposed Oz theme park.
People who have met Jimmy Oyler describe him as a colorful, if not an eccentric man whose claim to being the principal chief of a group he calls the "United Tribe of Shawnee Indians" may be more fantasy than reality.
But his lawyer, Sean Pickett of the Kansas City, MO, firm of OConnor Weber Pickett and Gale, says that despite Oylers eccentricities, not to mention his long litigious history, he has a legitimate claim that the Sunflower site should be designated traditional Indian land. Furthermore, Pickett thinks his client stands a good chance of winning. As of this writing, a hearing in Oylers suit had been set for May 18.
According to Pickett, Oyler is a direct descendent of the Shawnee nation, which was divided in 1825. Part of the tribe was moved to Ohio, and the rest were moved to Missouri. In 1831, the suit states, the Ohio Shawnee signed a Treaty of Removal and agreed to settle within the reservation granted in 1825 to the Missouri Shawnee.
In 1854, according to the suit, the United States signed another treaty with the United Tribe of Shawnee wherein the tribe gave up its reservation in Missouri and received title to new land just across the state line in the Kansas Territory.
That treaty, the suit alleges, granted the United Tribe of Shawnee 200,000 acres within a tract bound on the east by the Missouri line and extending to a line 30 miles west, and bound on the north by the Kansas River, extending to a line about 25 miles south. Included in that territory, the suit alleges, is most, if not the entire 9,065 acres of the Sunflower Army Ammunition Plant.
Under terms of that treaty, the suit says, the tribe was entitled to select their 200,000 acres in either 200-acre individual allotments or in common, with lands compact and equivalent to 200 acres for each individual in the common community.
The validity of that treaty, and the recognition of an entity called "The United Tribe of Shawnee," was upheld by the U.S. Supreme Court in 1866. Since then, the suit contends, the United States has never abrogated that treaty. In fact, the Kansas Supreme Court stated in 1880 that there had been no treaty changing the federal governments relationship with the United Tribe of Shawnee, and that even if the bulk of the tribes members had moved to Oklahoma, it was not for the state court to say that the tribal organization had been abandoned. Today, the vast majority of Shawnee Indians have moved to Oklahoma or at least affiliated with the tribe there.
According to the Bureau of Indian Affairs, however, the United Tribe of Shawnee Indians is not a federally recognized tribe. The only tribes with the word "Shawnee" in their names that appear on the bureaus list of recognized tribes are the Absentee-Shawnee Tribe of Oklahoma and the Eastern Shawnee Tribe of Oklahoma.
In fact, the name United Tribe of Shawnee Indians appears to have virtually disappeared from the government lexicon, at least until it was resurrected by Oyler through the filing of several lawsuits.
Pickett, however, says that does not matter. In the suit, he asks the court to issue a declaration that the tribe has been officially recognized in treaty, statute and Supreme Court decisions. He also asks for an injunction to prevent GSA from transferring any of the property within the Sunflower enclave to anyone other than the Department of Interior, which would hold the land in trust for the tribe.
The government says Oylers suit is completely without merit. In a response filed by Assistant U.S. Attorney Janice Miller Karlin, the government says in order to be officially recognized as a tribe, Oyler must apply through procedures established by the Bureau of Indian Affairs, which so far he has failed to do.
Furthermore, the government says federal law provides for the return of federal land to Indian tribes only when the property is located within that tribes reservation and the tribe in question has been officially recognized. Neither of those two conditions, the government claims, exist in Oylers case.
Pickett, however, says he thinks Oyler stands at least an even chance of winning part of his suit.
For one thing, he said, the case is being heard by U.S. District Judge G. Thomas Van Bebber, the same judge who in 1997 blocked construction of the South Lawrence Trafficway in Douglas County until the Federal Highway Administration performed both an Environmental Impact Study and a Supplemental EIS to determine the projects impact on sensitive wetlands in the area.
Furthermore, he said, judges in the District of Kansas have recently shown great willingness to recognize the legitimacy of new Indian tribes, even those who may appear to have had weaker cases than Oyler. In particular, he points to a 1998 decision by Judge Jonathan Lungstrom who ordered the Department of Interior to reverse its earlier decision and grant tribal recognition to a branch of the Miami Tribe of Oklahoma.
That "branch," Picket noted, consisted of one individual who owned about 50 acres of land near Louisburg in Miami County. As a result of Lungstroms decision, the land was officially recognized as Indian land belonging to the Miami tribe and, thus, eligible for development of a high stakes bingo hall under the federal Indian Gaming Act.
That is the part of Oylers suit that has state and federal officials most concerned the idea that his real objective is to obtain access to land for development of an Indian gaming casino in western Johnson County, something Oyler vehemently denies.
Regardless of whether the Sunflower plant becomes a Disney-style theme park, and office and commercial complex; a park and memorial for Native Americans (as Oyler says is one possible outcome of his suit); or nothing at all, there is one thing on which nearly all observers of the process can agree: There are enough legal issues from hazardous waste cleanup to water rights to Indian ownership surrounding the case to keep many lawyers employed for many years to come.
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