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604 ties in violation of corps regulations, while others take advantage of "grey areas"' in the rules to convert the wetlands to dry lands„be said. "Certainly the corps can regulate these activities," which include disking to remove wetlands vegetation, draining, and digging ditches, Nelson said. The corps often issues cease-and-desist orders when it suspects developers of 11- legal activities, but the process is too cumbersome to be effective, he said. "By the time the corps gets around to making a decision, the developer may have a valid argu- ment that it's no longer a wetland,"' he said. VoVurne of Earth Moving a Factor, Fong Says Calvin C. Fong, chief of regulations for the San Francisco district office of the corps, told BNA Aug. 15 that "It's not so much enforcement of cease-and-desist orders, but whether these activities can be defined as dredge-and-fill activities. "There's a lot of disking going on for a variety of reasons, or alleged reasons," he said, such as mosquito control. "It matters how much is disked and how much earth is moved," Fong said, adding that the corps would be "hesi- tant" to regulate surface disking that does not carve deep furrows into the ground. "It depends on whether it changes the hydrogeology of the site," he said. The corps, however, sued the Leslie Salt Co. over fill activities involving 153 acres in the "Coyote Tract" near San Francisco, Fong noted. The suit, to be heard in federal district court Nov. 17, involves the definitions of "dredge- and-fill" activities and seasonal wetlands, and also may focus on how to determine when a wetland is adjacent to a navigable water body, he said (Leslie Salt v. U:S., NDCaI, C-85-8615-Cal). Leslie Salt is one of the largest landowners in the Bay area and owns much potentially valuable property on the fringe of urban areas, Steven A. McAdam, assistant execu- tive director of the Bay Conservation and Development Commission, told BNA Aug. 15. The commission has author- ity over tidal areas and salt ponds, but defers to the corps over "isolated wetlands"'which are not connected to naviga- ble water bodies, he said. Most Properties Not Wetlands, Washburn Says Many of the wetlands now being considered for develop- ment„ including the Leslie Salt property, "are bone dry 10 months out of the year," Edgar B. Washburn, attorney for the Leslie Salt Co., told' BNA Aug: 5. In addition, "they are not adjacent to any water body„much less a navigable one,? which is a necessary factor for corps jurisdiction, he said. If a developer attempted to fill a tidal marsh, Washburn said, "We'd say there's no way in the world you can do it."' The corps and the Environmental Protection Agency, how- ever, are claiming properties are wetlands in the Bay area that would not be considered wetlands in other parts of the country, he said. "That's strange, considering they fit into the UiS. Fish and Wildlife Service definition of wetlands," Nelson told BNA Aug. 14. Most of the lands currently in dispute were at one time part of the bay, but have been diked for various purposes, he said, adding, "Most of them are just across a levy from a fiood control channel or tidal slough." Even If the wetlands were not adjacent to a water body, they still can be considered isolated wetlands vital to inter- state commerce because of their role In supporting migra- tory waterfowl, and would thus fall under corps jurisdiction, Nelson said. Washburn argued and lost a landmark wetlands develop- ment case before the U.S. Supreme Court Oct. 15, 1985, that ENVIRONMENT REPORTER turned on the adjacent waters question, Dana Kokubun, a spokesman for the San Francisco Bay chapter of the Sierra Club, told BNA Aug. 14. In the Dec. 4, 1985, decision on U:S: v. Riverside Bnyview Homes Inc., Justice Byron R. White held' that because the wetlands shared the same ground- water source as a nearby water body, they should be consid- ered adjacent (23 ERC 1561; Current Developments, Dec. 12, 1985, p. 1500). Nelson Ouestfons Corps Enforcement Although the corps is hesitant to regulate disking, long- term disking can have the same ultimate effect as filling with a bulldozer, Nelson said. The corps can even require an owner to restore wetlands to their original state, but seldom exercises this authority, he said. In addition, property own~ ers legally can bar the corps from entering any parcel of private land, possibly thwarting corps intervention until after wetlands are converted, Nelson said. According to Fong, the corps is "diligently processing"' a small backlog of cease-and-desist orders. He acknowledged that corps officials need permission from landowners to enter private property, but said that only occasionally causerproblems. "More often than not we can get an idea of what is going on," he said, adding that sometimes it requires inspection with binoculars from a roadside or other public lands. In some cases, the corps must borrow a helicopter from the U:S. Army or Coast Guard, which sometimes delays inspections by a few days, Fong said. When the corps can determine that an area is indeed a wetland, he added, in virtually all cases it will issue a cease-and-desist order. Air Pollution ~ PUBLIC POLICY GROUP FORMED ON INDOOR AIR TO PUSH FOR MORE RESEARCH ON RADON, SMOKING A group of science, health, industry, and public policy officials has launched the National Council for Clean Indoor Air to "educate opinion leaders and the general public of the health hazards related' to indoor air quality and possible solutions," John Bond, the group's executive director, told BNA Aug. 20. The aim of the group is to provide a high-quality forum for exchange of ideas on how to address the threat posed by radon, tobacco smoke, and other indoor pollutants and to push for more federaI funding for research on indoor air issues, according to Bond. "When you look at the potential effects on human health from these pollutants, it is apparent that not enough study has been done of crucial indoor air quality issues," he said. While U.S. urban and suburban dwellers spend 90 percent of their time indoors, only recently has the indoor environ- ment been subject to detailed scientific and medical re- search„Bond added. He noted that naturally occurring radon emissions in homes are estimated to cause up to 20;000 lung cancer deaths annually and that a preliminary risk assessment has projected that involuntary exposure of non-smokers to to- bacco: smoke causes 46,000 deaths per year (Current Devel- opments, Oct. 18, 1985, p. 1046; Dec. 7, 1984, p. 1333). In a related development, consumer guidelines that speci- fy when homeowners should take action to reduce indoor radon levels and bow to do so were released Aug. 14 by the Environmental Protection Agency (See related item in this issue.). The group will bring to the attention of- public policyy makers, in non-scientific language, the latest scientific and 8-22-86 Copyr/pht 0 1988 by The Bureau of, Natlonat Aealrs, Inc., Washinpeon. D.C. 0013-4211/l6Jt0..80

CURRENT DEVELOPMENTS medical research on the issues through a bimonthly newslet- ter, conferences, and meetings between experts and legisla- tors and executives, he said. The group, funded largely by industries and foundations, is planning a $300,000 budget for 1987. Council Oflicials Richard Zimmer, chairman of the Government Affairs Committee of the New Jersey Legislature and principal assembly sponsor of the state's radon control law, was elected chairman of the group Aug. 13. A. Judson Welles, consultant to the American Lung Association on smoking and health issues, was elected vice chairman.. Members of the board of directors include Thomas Grum- bly, executive director of the Health Effects Institute;, Mi- chael Brown, an attorney and former EPA deputy general counsel and enforcement counsel; and Josephine Cooper„ vice president of the Synthetic Organic Chemical Manufac- turers Association and former EPA Assistant Administrator for External Affairs. John C. Topping, Jr., an attorney and former staff direc- tor of EPA's Office of Air and' Radiation, was instrumental in creating the council and serves as the group's general counsel, according to Bond. For more information on the group, contact Bond at (202) 547-7777. ~ Lftigation SUPREME COURT GRANTS DISMISSAL REQUESTED BY TWO PETITIONERS IN STRINGFELLOIW APPEAL The U,S. Supreme Court Aug. 12 allowed two companies to withdraw from an appeal of a lower court decision that allowed a citizens group to intervene in a federal govern- ment suit involving the Stringfellow hazardous waste site. Alumex Inc. and Hunter Engineering Inc. asked to be dismissed from the appeal following the filing of a petition for Supreme Court review on Aug. 1, 1985, by the 28 companies and individuals involved as defendants (String- fellow; et al. v. Concerned Neighbors in Action, No. 85- 184). The Supreme Court announced June 2 it' would review the case (Current! Developments, June 6, p. 144). The U.S. District Court for the Central District of Califor- nia allowed Concerned Neighbors In Action, which repre- sents 400 people who live near the Stringfellow site, to intervene in the suit brought under the Comprehensive Environmental Response, Compensation, and Liability Act (U.S. v. Stringfellow, 20 ERC 1659). In February, the U.S. Court of Appeals for the Ninth Circuit ruled that the group may appeal the lower court! order, even though the group was successful in obtaining permissive intervention, because the district court did not allow the group to intervene as a matter of right (24 ERC 1089; April 4, p. 2166). The defendants in the suit then requested the Supreme. Court to review the Ninth Circuit decision allowing the citizens group to remain in the case either by permission of the coutor by legal right. Rene P. Tatro, attorney for the two companies that withdrew from the appeal, told BNA Aug. 20 that the companies had decided not to pursue Supreme Court review of the case before the review request' was filed. "The other companies have made their own decision to go ahead with the appeal, and I am not trying to prejudice their views," Tatro said. He declined to elaborate on the reasons for the requested dismissal by the companies. 605 Tatro said that summary judgment rulings by U:S. Dis- trict Court Judge James M. Ideman on the case can be expected soon, because a report from Special Master Harry Petris on summary judgment motions by various parties is to be filed with the court Sept. 23. The Stringfellow site, in Glen Avon Heights, Calif.,, is ranked 32nd on the Environmental Protection Agency's National Priorities List of sites to be cleaned up under superfund. Tennessee v. Champion International Corp. The U.S. Supreme Court should review a Tennessee Su- preme Court ruling preventing the state from suing a North Carolina paper company for pollution of Tennessee's waters, the state Department of Health and Environment and Ten- nessee Wildlife Resources Agency argued in a July 16 petition (Tennessee v. Champion International Corp., US SupCt, No. 86-57; Tenn SupCt, 24 ERC 1371).. The state agencies argued that the Tennessee Supreme Court's ruling should not be allowed to take final effect,, particularly because the issue of interstate water pollution is already slated for review by the High Court. In agreeing to bear the case International Paper Co. v. Ouellette, the Court' will review the question of whether the Clean Water Act allows residents of one state to use state nuisance law in a suit against an out-of-state company for interstate pollution (No. 85-1233; March 28, p. 2130). The Tennessee case presents a similar issue and should be reviewed along with Ouellette in order to allow the Court to define the powers of states to reduce pollution from out-of- state sources, according to the Tennessee agencies. The Court should note that 13 states have filed briefs in the OueUette case, which indicates the high level of interest in the disposition of that dispute, according to the agencies. Nollan v. California Coastal Commission A California couple asked the Supreme Court to overturn a decision by the state's Court' of Appeals requiring beach- front property owners to provide public access to their property when they undertake new construction, without receiving compensation from the state (Nollan v. Califor- nia Coastal Commission, No. 86-133). In their July 29 petition, homeowners James and Marilyn Nollan objected to the California Coastal Commission's re- quirement that they provide public access to their beach- front as a pre-condition to obtaining a permit to rebuild their home. The couple argued that the planned renovation did not affect existing uses of the property in the area, nor create a need for greater public access to the beach on their property. According to the Nollans, their Fifth Amendment rights would be violated if they are required to bear the cost of providing more beach area to the public, without compensa- tion from the state. The couple also maintained that the California Court of Appeals failed to apply a"a meaningful 'taking' analysis" in assessing the impact that reconstruction of their home would have on public access to the beach area. Such an analysis, the Nollans charge, is required by the Fifth Amendment and would not justify the dedication of one- third of their beachfront for public use without compensa- tion from the state. The California Court of Appeal determined that the Coast- al Commission's decision requiring public access to the Nollans' beachfront, as a pre-condition to issuing a building permit, was reasonable and supported' by substantial evi• 6-22-96 Environment Reporter 0013-9211/ee1f0..60