IRON MOUNTAIN MINES INSTITUTE - FREEMINERS UNIVERSITY
COLLEGE FOR THE BENEFIT OF AGRICULTURE AND THE MECHANIC ARTS
DISTRICT COURT
the "CENTINEL"

To all to whom these Presents Shall come, Greeting: In Testimony Whereof.
“The duty we owe to the Creator and the manner of discharging it.”
CHRIST OF THE FREEMINERS

Yet have I set my king upon my holy hill of Zion. (psalm 2)


Broad criteria: relevance, inclusiveness, objectivity, transparency and openness, timeliness, and
best available science for proposed covered actions and for use peer review.
The statutory protection found at CERCLA § 107(r)(l) is self-implementing and the EPA generally will not be involved

"I don't mind pounding heads & twisting arms when I'm NOT running my fenced,  posted, & otherwise indicated unmistakably;

PRIVATE PROPERTY!"  Occupation right-a-way:

 Observing Safeguards while Covering all the Bases...taking ownership
Trail Blazing in a Wilderness of Conflicting Counsels Venturing out of their League.
"The agency has a very good batting record" - David Doniger, policy director of the National Resources Defense Council's Climate and Clean Air Program (Wiffle Ball)

Solid Waste Facility Cleanup Prospecting Permit - Landfill Violating State Minimum Standards

“It is to protect citizens against … overreaching actions by government bureaucrats that
courts are empowered to prevent arbitrary and capricious interference with property rights.

Long-term Legacy - Disposal Site: Abatement of landfill leaching into valuable watershed habitat.

Notification of Intent: Best Management Practices for timely remediation and for New Redevelopment and accelerating cleanup and restoring site and protecting public health and safety and the environment.

Custom Mill Site:  Public lands which are non-mineral, independent of mining claim.  (43 CFR 3844)

John F. Hutchens, Principal Investigator, Prospector, Headmaster Naturalist, Tenant-in-Chief

Authority: Implementing certain provisions of the MRP on behalf of the Shasta County Flood Control and Water Conservation District. Critical Watershed Habitat & New Enterprise Zone Program.

Overall Mission: Freehold interest in subject Abandoned Disposal site renewable energy waste minerals.

Qualified Application: Persons engaged in cleanup activities needed to protect public health and safety or the environment reducing pollutants entering the county's storm-water system activities including the ownership and use of premises that is source of pollutants, with business enterprise and dwelling units.

Priority: (Public entities bear financial responsibility for remediating public landfill sites in compliance with State regulations and standards and to accelerate the pace of remediation cleanup & restoring sites.)

Special Financial Assurance Management Site Storage Disposal Treatment Assistance Mechanisms Unit

EPA recognizes the uncertainty regarding the potential liability of certain parties under CERCLA.
CERCLA expressly confers upon EPA the ability to provide certain assurances to a certain party who wishes to be treated as exempt from CERCLA liability and meet certain statutory requirements to provide certain parties liability protection. Independent science advisory "innovation ecosystem Prospecting Permit

Taking reasonable steps going forward toward sustainability and factoring for measuring ownership from the time of cleanup best bona fide authority management performance adapted to local conditions exclusion of certain property 

    3116(a)        40:258e-1 (less         Feb. 26, 1931, ch. 307, Sec. 
                    last sentence).         6, as added Pub. L. 99-656,

Regarding the Treatment of Tenants : EPA actions effectually obliterate the distinction applicable to certain tenants of some nexus to the act or omission giving rise to the matter of innocent purchasers do need to satisfy the contractual relationship test of the third party defense and to clarify and improve protections "EPA knew or showed reckless disregard for" functions concerning whether its conduct was prohibited" and provided regarding the degree to which the invasion is intended or is the foreseeable result of authorized government action when EPA did not prevent disposal of hazardous waste and failed to act with appropriate care.

“We can’t let sunk costs or past behavior define our path forward,”

When The Landfill Is Full…

FILED UNDER: Land, Garbage

The Biggest Fish Story Ever Told

Overlying Rights Performance based on what to do in a case of an EMERGENCY! Human rights report finds persistent persecution of the non-religious

Brandon Gatto December 11, 2012
Photo source or description

[JURIST] A report [text, PDF] by the International Humanist and Ethical Union (IHEU) [advocacy website] has found [press release] that atheists and other non-religious persons suffer persecution and discrimination all over the world, and that prosecutions of blasphemy have risen along with the popularity of social media. The report, "Freedom of Thought 2012: A Global Report on Discrimination Against Humanists, Atheists, and the Non-Religious," was released on Monday [Reuters report] to recognize Human Rights Day [UN backgrounder], and discusses laws and cases in 60 countries where atheists have been prosecuted for their beliefs. It also reports that the laws are used to curb the rights of the non-religious. Specifically, certain decrees are used to suppress expression, restrict the right to marry, obstruct access to public education, criminalize blasphemy, and even execute those who choose to stop practicing the religion of their parents. Additionally, the report notes a drastic increase in blasphemy cases in 2012, as more than a dozen people in 10 counties have been prosecuted for their posts on Facebook and Twitter, as compared to the three cases prosecuted over the last three years. The report was welcomed by the UN Special Rapporteur on freedom of religion or belief [official website], Heiner Bielefeldt, who hopes that the international community will reflect on the IHEU's findings.

In October, Bielefeldt presented his own report [JURIST report] to the UN General Assembly [official website] that urged all member states to protect freedom of belief as it applies to religious conversion. In particular, the report documents the Special Rapporteur's analysis of international patterns of abuse in the area of religious conversion [UN News Centre report], detailing violations in which people are either restricted in their rights to conversion or are forced to convert or reconvert to become more "acceptable" to the society in which they live.

Custodian of Records, MS 5
California Integrated Waste Management Board
P.O. Box 4025 Sacramento, CA 95812-4025

Existing law authorizing or requiring the sale of acquired lands empower any commission, bureau, 

or agency of the Government to make the sale of any acquired land: Provided, That any such sale or 

conveyance of lands shall be made by the agency having jurisdiction thereof, subject to any lease 

theretofore made, covering the mineral deposits underlying such lands: Provided further, That 

nothing in this chapter is intended, or shall be construed to affect in any manner any provision 

of chapter 641 of title 10.
 
Independent establishment having jurisdiction over the land.
 
(Corporation primarily acting as an agency which produces electrical energy for sale to the public 

if such governmental entity is located in the State in which such lands are located.)

Provisions of section 2325 (30 U.S.C. 29) 43 CFR 3861.1

A millsite must be occupied or used in connection with mining activity.

Research, Education, and Economics  - opportunity assessment

Moving Forward to Improve Engineering Education.

"Jury Trial of Right"--

A properly demanded jury trial on the issue of just compensation "is a matter of right,"

("The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate."), with FRCP 38(b) ("Any party may demand a trial by jury of any issue triable of right by a jury by [following specified procedures].").

40 USC Sec. 3115 01/03/2012

DECLARATION OF TAKING (or otherwise, which has been or may be, that may have been, or may be, deemed to be possession of...said lands in fee simple absolute)

on behalf of the Government by a declaration of taking or otherwise.

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147

the Attorney General may stipulate or agree on behalf of the Government to exclude any part of the property, or any interest in the property, taken by or on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.

: C18-3465 JCS

(d) Authority of Court. - On the filing of a declaration of taking, the court - (1) may fix the time within which, and the terms on which, the parties in possession shall be required to surrender possession to the petitioner; and (2) may make just and equitable orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges. (e) Vesting Not Prevented or Delayed. - An appeal or a bond or undertaking given in a proceeding does not prevent or delay the vesting of title to land in the Government. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1145.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3114(a) 40:258a (1st par.). Feb. 26, 1931, ch. 307, Sec. 1, 46 Stat. 1421; Pub. L. 99-656, Sec. 1(1), Nov. 14, 1986, 100 Stat. 3668. 3114(b) 40:258a (2d par. 1st sentence words before 1st semicolon). 3114(c)(1) 40:258a (2d par. 1st sentence words after 1st semicolon, last sentence). 3114(c)( 40:258a (3d par.). 2), (3) 3114(d) 40:258a (last par.). 3114(e) 40:258b. Feb. 26, 1931, ch. 307, Sec. 2, 46 Stat. 1422. -------------------------------------------------------------------- In subsection (a), before clause (1), the words "which has been or may be" are omitted as unnecessary. In subsection (b)(1), the words "said lands in fee simple absolute, or such less" are omitted as unnecessary. In subsection (b)(2), the words "deemed to be" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3115 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3115. Irrevocable commitment of Federal Government to pay ultimate award when fixed -STATUTE- (a) Requirement for Irrevocable Commitment. - Action under section 3114 of this title irrevocably committing the Federal Government to the payment of the ultimate award shall not be taken unless the head of the executive department or agency or bureau of the Government empowered to acquire the land believes that the ultimate award probably will be within any limits Congress prescribes on the price to be paid. (b) Authorized Purposes of Expenditures After Irrevocable Commitment Made. - When the Government has taken or may take title to real property during a condemnation proceeding and in advance of final judgment in the proceeding and has become irrevocably committed to pay the amount ultimately to be awarded as compensation, and the Attorney General believes that title to the property has been vested in the Government or that all persons having an interest in the property have been made parties to the proceeding and will be bound by the final judgment, the Government may expend amounts appropriated for that purpose to demolish existing structures on the property and to erect public buildings or public works on the property. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1146.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3115(a) 40:258c. Feb. 26, 1931, ch. 307, Sec. 3, 46 Stat. 1422. 3115(b) 40:258e. Feb. 26, 1931, ch. 307, Sec. 5, 46 Stat. 1422; Pub. L. 91-393, Sec. 4, Sept. 1, 1970, 84 Stat. 835. -------------------------------------------------------------------- In subsection (b), the words "possession of" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3116 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3116. Interest as part of just compensation -STATUTE- (a) Calculation. - The district court shall calculate interest required to be paid under this subchapter as follows: (1) Period of not more than one year. - Where the period for which interest is owed is not more than one year, interest shall be calculated from the date of taking at an annual rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of taking. (2) Period of more than one year. - Where the period for which interest is owed is more than one year, interest for the first year shall be calculated in accordance with paragraph (1) and interest for each additional year shall be calculated on the amount by which the award of compensation is more than the deposit referred to in section 3114 of this title, plus accrued interest, at an annual rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the beginning of each additional year. (b) Distribution of Notice of Rates. - The Director of the Administrative Office of the United States Courts shall distribute to all federal courts notice of the rates described in paragraphs (1) and (2) of subsection (a). -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1146.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3116(a) 40:258e-1 (less Feb. 26, 1931, ch. 307, Sec. last sentence). 6, as added Pub. L. 99-656, Sec. 1(2), Nov. 14, 1986, 100 Stat. 3668; Pub. L. 106-554, Sec. 1(a)(7) [Sec. 307(a)], Dec. 21, 2000, 114 Stat. 2763A-635. 3116(b) 40:258e-1 (last sentence). -------------------------------------------------------------------- -End- -CITE- 40 USC Sec. 3117 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3117. Exclusion of certain property by stipulation of Attorney General -STATUTE- In any condemnation proceeding brought by or on behalf of the Federal Government, the Attorney General may stipulate or agree on behalf of the Government to exclude any part of the property, or any interest in the property, taken by or on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3117 40:258f. Oct. 21, 1942, ch. 618, 56 Stat. 797. -------------------------------------------------------------------- The words "that may have been, or may be" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3118 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3118. Right of taking as addition to existing rights -STATUTE- The right to take possession and title in advance of final judgment in condemnation proceedings as provided by section 3114 of this title is in addition to any right, power, or authority conferred by the laws of the United States or of a State, territory, or possession of the United States under which the proceeding may be conducted, and does not abrogate, limit, or modify that right, power, or authority. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3118 40:258d. Feb. 26, 1931, ch. 307, Sec. 4, 46 Stat. 1422. -------------------------------------------------------------------- The words "State, territory, or possession of the United States" are substituted for "State or Territory" for consistency in the revised title and with other titles of the United States Code. -End-

Time-tested practice of amending: Wrongful Detainer.

E.P.A. TIMES-UP!

Identify agencies that should serve: Instituting structural, procedural, and role changes aimed at the EPA moving sailing away.

EPA Administrator Lisa Jackson abandons the EPA helm!

Historic progress: "I will leave the EPA confident the ship is sailing in the right direction."
Please Provide a comprehensive review of all facets of undertaking this federal enforcement case.

Alternatives For Managing The Nation’s Complex

Unmistakable indications of intent to take and use.

The CFR Title covering environmental protection alone contains at least 88,852 specific regulatory restrictions.


4,995 EPA rules appeared in the Winter Unified Agenda from 1999-2011. Over the same period, 7,161 EPA final rules were published in the Federal Register. Its most recent edition is the one for fall 2011. The spring 2012 edition was never published and the fall 2012 edition is now overdue. In the fall 2011 edition, the EPA had 318 new rules.

Small Entity Representatives (SERs), to provide advice and recommendations on the proposed rule to the panel. EPA seeks self-nominations directly from small entities that may be subject to the rule requirements. Self-nominations may be submitted through the link below and must be received by December 20, 2010.

The requirements will be developed under the Comprehensive Environmental Response, Compensation and Liability Act, commonly called Superfund.

The Regulatory Flexibility Act requires EPA to establish a federal panel for rules that may have a significant economic impact on a substantial number of small entities. The SBAR panel will include representatives from the Small Business Administration, the Office of Management and Budget and EPA.

Small Business Panel on Financial Responsibility Requirements for Hard Rock Mining

What is the Implication of the Proposed Rulemaking on Small Entities?

Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, establishes certain regulatory authorities concerning financial responsibility requirements. Specifically, the statutory language addresses the promulgation of regulations that require classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. EPA recognizes that financial responsibility is an important policy tool for ensuring that the clean-up of contaminated sites is not left as a burden for the public. In a July 28, 2009 Federal Register notice , EPA identified classes of facilities within the hard rock mining industry as those for which the Agency will first develop financial responsibility requirements under CERCLA Section 108(b).

As discussed in that notice, EPA research indicates that the hard rock mining industry typically operates on a large scale, with releases of toxic chemicals to the environment and in some situations, subsequent exposure of humans, organisms, and ecosystems to hazardous substances on a similarly large scale. The metal mining industry released nearly 1.15 billion pounds of hazardous substances in 2007. The hard rock mining industry is responsible for polluting 3,400 miles of streams and 440,000 acres of land. Approximately 10,000 miles of rivers and streams may have been contaminated by acid mine drainage from the metal mining industry. The severity of consequences as a result of releases of and exposure to hazardous substances is evident in the enormous costs associated with past and projected future actions necessary to protect public health and the environment.

EPA's preliminary analyses currently show that approximately 298 companies (or 81% of the potentially regulated universe) are small entities.

What is a Small Business Advocacy Panel?

EPA is developing a proposed rule that would require financial responsibility for classes of facilities within the hard rock mining industry. At this time, EPA is unable to determine the economic impact of our proposed rule. EPA is proceeding with formation of a Small Business Advocacy Review (SBAR) Panel because the rule may have a significant impact on a substantial number of small entities.

The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA) requires EPA to convene an SBAR Panel for a proposed rule unless the agency can certify that the rule will not have a significant economic impact on a substantial number of small entities. The Panel process offers an opportunity for small businesses, small governments, and small not-for-profit organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that EPA carefully considers small entity concerns. The Panel itself is comprised of federal employees from EPA, the Office of Management and Budget, and the Small Business Administration's Office of Advocacy. Small Entity Representatives (SERs) provide advice and recommendations to the Panel. Typically, EPA prefers that SERs be owner-operators of small businesses, small organization officials, or small government officials. Other representatives, such as trade associations that exclusively or at least primarily represent potentially regulated small entities, may serve as SERs. These other representatives are evaluated on a case by case basis.


How Can I Get Involved?

You may potentially be subject to this rulemaking and are eligible to serve as a Small Entity Representative (SER), if you are the owner or operator of a small hard rock mining facility. In the July 2009 notice, EPA defined hard rock mining to include classes of facilities that extract, beneficiate or process metals (e.g., copper, gold iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-metallic, non-fuel minerals (e.g., asbestos, phosphate rock, and sulfur). EPA notes that certain non-fuel hard rock mining sectors (e.g. construction sand and gravel) were not included among those hard rock mining facilities identified in the notice. ( See Note 1. ) As mentioned above, other representatives that exclusively or at least primarily represent potentially regulated small entities may also serve as SERs, as well.

You may nominate yourself to serve as a SER.

$1.5 million at center of internal EPA battle over Superfund contractor’s alleged overbilling

By

EXCLUSIVE: Fifteen months after a report charged the Environmental Protection Agency with failing adequately to oversee Superfund cleanup efforts at some of the country’s most toxic waste dumps, the EPA’s internal watchdog and EPA management are battling over $1.5 million that the inspectors said in the probe was illegally overbilled between 2008 and 2012 by the clean-up contractor.

The EPA’s Inspector General Office wants EPA to get the money back. EPA management is balking, despite at least two “dispute resolution” meetings between the two sides in March and May.

Meantime, the contractor, a Colorado-based engineering and consulting behemoth named CH2M Hill, continues to operate under the disputed contract, which has a total potential value of more than $116 million before its final expiry in June 2016.

CH2M Hill’s total ongoing business with EPA amounts to ten times that amount: more than $1.16 billion through July 2014, according to EPA records.

CLICK HERE FOR EPA CONTRACT RECORDS

Making the tug-of-war more piquant is the fact that CH2M Hill in March last year—only a month before publication of the disputed report-- paid $18.5 million to the Department of Justice to settle an overbilling fraud that allegedly  between 1999 and 2008 at another hyper-toxic cleanup site, the Department of Energy’s Hanford nuclear site, home of the world’s first plutonium production reactor.

[pullquote]

Under the agreement, CH2M Hill also had to consent to a corporate monitor for three years at the Hanford site, pay $500,000 for unspecified  “accountability measures” to prevent further billing fraud, and cooperate in continuing fraud investigations.

The two cases are otherwise unrelated. In the current EPA internal dispute, the major sticking-point issue is not whether CH2M Hill engaged in fraud—no such claims have been made-- but whether EPA itself  ignored  federal contracting rules in favor of its own internal regulations  in allowing the alleged double-billing circumstances to arise. 

A number of questions sent by Fox News to CH2M Hill earlier this week regarding contract EPS90804 had not been answered before this story was published.

But there is also a broader issue involved:  how EPA, an agency that has recently threatened to impose crippling fines on a rancher for building a small cattle pond on his property, actually carries out its job, including its financial responsibilities, at some of the biggest and most expensive pollution sites in the country, and how much it takes the word of contracting firms like CH2M Hill for their efforts in the process.

In other words, “how do you know you are doing what you are supposed to be doing?” said one EPA official familiar with the case. “It’s a major issue.”

Just how major—not only in terms of money but of the potential exposure of humans and wildlife to dangerous chemicals and their byproducts as a result-- is underlined in carefully cloaked bureaucratic prose in the Inspector General’s report of the disputed contract.

It said there “may be an EPA-wide problem” in how the agency handles contracts like the one  known as EPS90804, a three-year, renewable document that was originally signed in 2008 by the chief administrator of EPA’s region 9, a huge swath of territory that includes California, Arizona, Nevada, Hawaii, as well as various Pacific island territories and autonomous tribal areas in the south-west.

CLICK HERE FOR THE REPORT

In the case of EPS90804, the aim was to clean up a variety of Superfund sites in the South-West and the Pacific through a cascade of separate “task orders” under the umbrella agreement, known in EPA parlance as a “remedial action contract,” or RAC. The contract was expected to expand over time to allow different sites to be added.

In 2008 the administrator was Wayne Nastri, a Bush Administration appointee. He was replaced in November 2009 by an Obama Administration selection: Jared Blumenfeld, previously director of San Francisco’s Department of the Environment under Demoractic then-Mayor Willie Brown, once the longest-serving speaker of the California State Assembly. Blumenfled is an attorney who, according to his official biography, “has worked for the Natural Resources Defense Council (NRDC), the Sierra Club Legal Defense Fund, and the International Fund for Animal Welfare.”

According to the EPA website, region 9 staff currently comprise “a talented and diverse team of more than 800 scientists, engineers, inspectors, environmental specialists, analysts, lawyers and administrative staff working to protect human health and the environment across eight time zones.”

At the time of the Inspector General’s report, EPA had issued 64 task orders worth $97.8 million under the contract. The Inspector General’s staff looked at only 18 percent of them —but they covered nearly two-thirds of the total spending.

The results of that year-long examination in 2013 were sobering. Among the mostly California venues that the Inspector General’s staff examined were nearly $40 million worth of work at the Iron Mountain Mine near Redding, a noxious gold and silver mining locale since the Civil War and a designated Superfund site since 1983; the Frontier Fertilizer site near Davis, CA, where many pesticides were dumped; and a site formerly known as the B.F. Goodrich site near Rialto, where rocket-fuel propellants, among other things, were tested.

All of those highly dangerous sites are close to important groundwater and drinking water sources for local residents and beyond.

When it came to supervising the “remediation” work under EPS90804, however, the report charged, among other things, that EPA employees who were supposed to monitor the contract:

--ignored federal rules that they verify that personnel for the contractor have the qualifications necessary to execute the contract, thus increasing the “risk of the contractor substituting lesser-qualified staff while EPA pays the rate for fully qualified individuals;” 

--in some cases relied on the contractor’s work plans rather than the official scope of work of the various projects to determine what was supposed to be done;

-- ended up not being billed for 46 of 229 individuals originally identified as “key staff”  in work plans, but got bills for 846 people—82 percent of the total—who were not identified in the plans;

--often didn’t take notes or otherwise keep track of changes in “deliverables” in meeting with the contractor, thus relying on the contractor’s records;

--also failed frequently to document the quality of any of the “deliverables” received, and in two cases offered no documentation at all;

--in some cases, weren’t familiar with the overall contract, or hadn’t read it.

EPS90804 is what the federal government calls a “time and materials” contract, also known as a “fixed rate indefinite delivery/indefinite quantity award term contract,”  meaning that contractors bill for hours worked—with no specified ceiling-- at specified rates along with the cost of materials (which can include subcontracts, according to rules cited by the Inspector General).

(On the EPA’s website, it is now listed more vaguely as an “indefinite quantity” arrangement.)

According to one knowledgeable official, such time and materials contracts are “pervasive” at EPA—where the full extent of  required pollution clean-ups may not be known for years, as various layers of contamination are uncovered.  The contracts are also highly expensive, open-ended, and provide “no incentive to the contractor for cost control or labor efficiency,” according to the Inspector General’s  original report.

They are a device that President Barack Obama himself has been trying to discourage since 2009, when he issued a memo ordering agencies to minimize the risk and maximize the value of government contracts. They were further restricted by Congress the same year. EPA itself has been trying to discourage time and materials contracts as a cost-saving measure. 

But EPA still wasn’t trying all that hard, according to yet another Inspector General’s report, issued just a month before the examination of EPS90804.  Despite the headquarters order to cut back on high-cost contracts, “flexibility” allowed EPA’s ten regions to use them virtually at their discretion. “The regions’ resistance to change is well documented through the years,” the Inspector General sardonically noted in March, 2013.

CLICK HERE FOR THE REPORT

The resistance is apparently still operative.

While agreeing with many changes suggested in the  report on EPS90804 for ensuring that employees take notes and use verification procedures, both region 9 administrator Blumenfeld and senior EPA managers declared that they didn’t think that verification of the credentials of a contractor’s employees, as one example, was necessary or required.

One top manager went further. If EPA has a policy direct that the agency review credentials of all those working on tasks, the report relates that he said, “the requirement needs to be changed.”

And on the issue of alleged overbilling—involving a federal rule that forbids giving contractors a “profit” on materials included in the contract, which the Inspector General’s office declared that EPS90804 specifically and inexplicably violated--the administrators were equally adamant in refusing to ask for the money back.

How that issue, at least, is decided will ultimately depend on one of EPA’s topmost management—whoever that may turn out to be. Under dispute resolution procedures, after a “final” fruitless meeting held on May 29, the issue went to EPA’s Deputy Administrator, Robert Perciasepe, for a final decision.

Perciasepe was supposed to make the decision by July 15. This week, however, he ha announced that he will step down from his job next month.

According to an official in the Inspector General’s office, EPA has now asked for a delay in the final decision on EPS90804’s costly overbilling issue until August 15.

George Russell is editor-at-large of Fox News and can be found on Twitter @GeorgeRussell

Click here for more stories by George Russell

George Russell is editor-at-large of Fox News



Amount


Date Reason For Modification
-- 5/10/18 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT. THE PURPOSE OF THIS MOD IS TO EXTEND THE POP END DATE TO 3/23/2019.

-- 11/30/17 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

$19.2k 2/10/17 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

-- 9/1/16 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

$51.8k 5/18/16 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

-- 3/21/16 Other Administrative Action

ARCHITECT-ENGINEER ENVIRONMENTAL SERVICES, IRON MOUNTAIN MINE LONG TERM RESPONSE ACTION OVERSIGHT

$20.5k 1/15/16 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

-- 8/4/15 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

$32.5k 5/18/15 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

-- 4/29/15 Other Administrative Action

A&E ENVIRONMENTAL SERVICES, IMM

Publication: U. S. Fish and Wildlife Service. 1994. Endangered and Threatened Wildlife and Plants; Reclassification of the Sacramento River Winter-Run Chinook Salmon From Threatened to Endangered Status. Federal Register, vol. 59, no. 56. 13836.

ITIS records citing this publication
 
 Kingdom Animalia
  Oncorhynchus tshawytscha (Walbaum in Artedi, 1792) -- valid -- Chinook salmon, king salmon, salmón boquinegra, saumon chinook



Chinook Salmon - Protected

Oncorhynchus tshawytscha

Illustration of a Chinook salmon.
Quick Facts

Weight
40 pounds, but can be up to 120 pounds
Lifespan
Up to 6 years
Length
3 feet
Threats
Habitat impediments (dams), Habitat degradation, Habitat loss, Commercial and recreational fishing, Climate change
Location
California, Oregon, Washington, Alaska,

Protected Status

ESA Endangered
Sacramento River winter-run, Upper Columbia River spring-run
ESA Threatened
California coastal, Central Valley spring-run, Lower Columbia River, Puget Sound, Snake River fall-run, Snake River spring/summer-run, Upper Willamette River
ESA Candidate
Upper Klamath-Trinity River
ESA Experimental Population
Central Valley spring-run in the San Joaquin River XN, Upper Columbia River spring-run in the Okanogan River subbasin XN

Quick Facts

Weight
40 pounds, but can be up to 120 pounds
Lifespan
Up to 6 years
Length
3 feet
Threats
Habitat impediments (dams), Habitat degradation, Habitat loss, Commercial and recreational fishing

About the Species

Chinook salmon are anadromous fish, which means they can live in both fresh and saltwater. Chinook salmon have a relatively complex life history that includes spawning and juvenile rearing in rivers followed by migrating to saltwater to feed, grow, and mature before returning to freshwater to spawn. They are vulnerable to many stressors and threats including blocked access to spawning grounds and habitat degradation caused by dams and culverts. Two species of chinook salmon are listed as endangered under the Endangered Species Act, seven species are listed as threatened under the ESA, and one species is a candidate for listing under the ESA.

The Sacramento River Winter-run Chinook is one of NOAA Fisheries' Species in the Spotlight.   

NOAA Fisheries is committed to conserving and protecting chinook salmon. Our scientists and partners use a variety of innovative techniques to study, learn more about, and protect this species.

Learn more about chinook salmon

ESA Endangered

2 evolutionarily significant units

  • Sacramento River winter-run
  • Upper Columbia River spring-run

ESA Threatened

7 evolutionarily significant units

  • California coastal
  • Central Valley spring-run
  • Lower Columbia River
  • Puget Sound
  • Snake River fall-run
  • Snake River spring/summer-run
  • Upper Willamette River

ESA Candidate

1 evolutionarily significant unit

  • Upper Klamath-Trinity River

ESA Experimental Population

2 evolutionarily significant units

  • Central Valley spring-run in the San Joaquin River XN
  • Upper Columbia River spring-run in the Okanogan River subbasin XN

Scientific Classification

Taxonomic Hierarchy
       
 KingdomAnimalia  – Animal, animaux, animals  
    SubkingdomBilateria   
       InfrakingdomDeuterostomia   
          PhylumChordata  – cordés, cordado, chordates  
             SubphylumVertebrata  – vertebrado, vertébrés, vertebrates  
                InfraphylumGnathostomata   
                   SuperclassActinopterygii  – ray-finned fishes, spiny rayed fishes, poisson épineux, poissons à nageoires rayonnées  
                      ClassTeleostei   
                         SuperorderProtacanthopterygii   
                            OrderSalmoniformes  – saumons, salmons  
                               FamilySalmonidae  – salmonids, trouts and salmons, truchas y salmones, truites et saumons, salmons, trouts  
                                  SubfamilySalmoninae   
                                     GenusOncorhynchus Suckley, 1861 – Pacific salmon  
                                        SpeciesOncorhynchus tshawytscha (Walbaum in Artedi, 1792) – Chinook salmon, salmón boquinegra, king salmon, saumon chinook  
       
















"Covenant to Establish a Commonwealth benevolent flexible purpose trust association to assist homeless and for prohibition against discrimination federal joint venture collection of payments due to advisory to assist.

Invasion of a legally protected interest made it impossible to protect entanglement with religion & safety inspections. Standing to bring challenged constitutionality exception action implementing program demonstration order with due respect to individuals freedom regarding the uncertainty applicable to matters of substantive law & procedure to which denial of due process caused injury to their moral principles and aesthetic sensibilities in effect at the time of establishment.


 


 
US ESA: Listed Threatened the Snake River spring/summer Evolutionarily Significant Unit, as published in Federal Register Volume 57, Number 78, Pages 14653 - 14663, April 22, 1992  
US ESA: Change in status from Threatened to Endangered the Sacramento River winter-run population, as published in Federal Register Volume 59, Number 2, Pages 440 - 450, January 04, 1994  
US ESA: Petition to list as threatened or endangered the mid-Columbia River summer Evolutionarily Significant Unit not warranted according to 12-month petition finding, as published in Federal Register Volume 59, Number 184, Pages 48855 - 48860, September 23, 1994  
US ESA: Proposal to list as endangered withdrawn the Snake River fall Evolutionarily Significant Unit, as published in Federal Register Volume 63, Number 7, Pages 1807 - 1811, January 12, 1998  
US ESA: Proposal to list as endangered withdrawn the Snake River spring/summer Evolutionarily Significant Unit, as published in Federal Register Volume 63, Number 7, Pages 1807 - 1811, January 12, 1998  
US ESA: Listed Endangered the Upper Columbia River spring-run Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Listed Threatened the Upper Willamette River Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Listed Threatened the Lower Columbia River Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Listed Threatened the Puget Sound Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 56, Pages 14308 - 14328, March 24, 1999  
US ESA: Proposal to list as threatened withdrawn for the Southern Oregon and Northern California Coastal Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Proposal to list as threatened withdrawn for the California Central Valley fall-run Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Proposal to list as threatened withdrawn for the Snake River fall Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Listed Threatened the California Coastal Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Listed Threatened the Central Valley spring-run Evolutionarily Significant Unit, as published in Federal Register Volume 64, Number 179, Pages 50394 - 50415, September 16, 1999  
US ESA: Petition to list as threatened or endangered the Upper Klamath and Trinity Rivers Evolutionarily Significant Unit not warranted according to 12-month petition finding, as published in Federal Register Volume 77, Number 63, Pages 19597 - 19605, April 02, 2012


1
CALIFORNIA CENTRAL VALLEY RECOVERY DOMAIN
5-Year Status Review:
Summary and Evaluation of
Sacramento River Winter-Run Chinook Salmon ESU
National Marine Fisheries Service
West Coast Region
December 2016
2
5-YEAR REVIEW
Central Valley Recovery Domain
Species Reviewed Evolutionarily Significant Unit (ESU) or
Distinct Population Segment
Chinook Salmon
(O. tshawytscha)
Sacramento River Winter-run Chinook
Salmon ESU
1.0 GENERAL INFORMATION
1.1 Preparers and Reviewers
1.1.1. NMFS West Coast Region:
Preparers:
Brycen Swart1 (916) 930-3712 Brycen.Swart@noaa.gov
Reviewers:
Brian Ellrott1 (916) 930-3612 brian.ellrott@noaa.gov
Maria Rea1 (916) 930-3600 maria.rea@noaa.gov
Scott Rumsey2 (503) 872-2791 scott.rumsey@noaa.gov
1.1.2. Southwest Fisheries Science Center
Rachel C. Johnson3 (707) 826-3688 rachel.johnson@noaa.gov
Steven T. Lindley3 (831) 420-3921 steve.lindley@noaa.gov
Michael O’Farrell3 (831) 420-3976 michael.ofarrell@noaa.gov
1.2 Introduction
Many west coast salmon and steelhead (Oncorhynchus sp.) stocks have declined substantially
from their historic numbers and now are at a fraction of their historical abundance. There are
several factors that contribute to these declines, including: overfishing, loss of freshwater and
estuarine habitat, hydropower development, poor ocean conditions, and hatchery practices.
These factors, among others, led to NOAA’s National Marine Fisheries Service (NMFS) listing
of 28 salmon and steelhead stocks in California, Idaho, Oregon, and Washington under the
Federal Endangered Species Act (ESA).
1 California Central Valley Office, 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814
2 Protected Resources Division, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232
3 Southwest Fisheries Science Center, Fisheries Ecology Division, 110 Shaffer Road, Santa Cruz, CA 95060
3
The ESA, under Section 4(c)(2), directs the Secretary of Commerce to review the listing
classification of threatened and endangered species at least once every five years. After
completing this review, the Secretary must determine if any species should be: (1) removed from
the list; (2) have its status changed from threatened to endangered; or (3) have its status changed
from endangered to threatened. The term “threatened species” is defined under the ESA as any
species which is likely to become an endangered species within the foreseeable future throughout
all or a significant portion of its range. An “endangered species” under the ESA is any species
which is in danger of extinction throughout all or a significant portion of its range.
The most recent listing determinations for west coast salmon and steelhead occurred in 2005 and
2006. NMFS previously completed a 5-year status review in 2011 and concluded that the status
of the Sacramento River (SR) winter-run Chinook salmon Evolutionarily Significant Unit (ESU)
should remain as endangered. This document summarizes NMFS’s current 5-year review of the
ESA-listed SR winter-run Chinook salmon ESU.
1.2.1 Background on Listing Determinations
Under the ESA, a species, subspecies, or a distinct population segment (DPS) may be listed as
threatened or endangered. To identify the proper taxonomic unit for consideration in an ESA
listing for salmon NMFS draws on its “Policy on Applying the Definition of Species under the
ESA to Pacific Salmon” (ESU Policy) (56 FR 58612). According to this policy guidance,
populations of salmon that are substantially reproductively isolated from other con-specific
populations and are representing an important component in the evolutionary legacy of the
biological species are considered to be an ESU. In its listing determinations for Pacific salmon
under the ESA, NMFS treated an ESU as constituting a DPS, and hence a ‘‘species.’’
Artificial propagation (fish hatchery) programs are common throughout the range of ESA-listed
west coast salmon and steelhead. On June 28, 2005, NMFS announced a final policy addressing
the role of artificially propagated Pacific salmon and steelhead in listing determinations under
the ESA (70 FR 37204). Specifically, this policy: (1) establishes criteria for including hatchery
stocks in ESUs and DPSs; (2) provides direction for considering hatchery fish in extinction risk
assessments of ESUs and DPSs; (3) requires that hatchery fish determined to be part of an ESU
or DPS to be included in any listing of those units; (4) affirms our commitment to conserving
natural salmon and steelhead populations and the ecosystems upon which they depend; and (5)
affirms our commitment to fulfilling trust and treaty obligations with regard to the harvest of
some Pacific salmon and steelhead populations, consistent with the conservation and recovery of
listed salmon ESUs and steelhead DPSs.
To determine whether a hatchery program was part of an ESU or DPS, NMFS convened the
Salmon and Steelhead Hatchery Advisory Group (SSHAG), which evaluated all hatchery stocks
and programs and divided them into 4 categories (NMFS 2003):
Category 1: The hatchery population was derived from a native, local population; is released
within the range of the natural population from which it was derived; and has experienced only
4
relatively minor genetic changes from causes such as founder effects, domestication or non-local
introgression.
Category 2: The hatchery population was derived from a local natural population, and is
released within the range of the natural population from which it was derived, but is known or
suspected to have experienced a moderate level of genetic change from causes such as founder
effects, domestication, or non-native introgression.
Category 3: The hatchery population is derived predominately from other populations that are
in the same ESU/DPS, but is substantially diverged from the local, natural population(s) in the
watershed in which it is released.
Category 4: The hatchery population was predominately derived from populations that are not
part of the ESU/DPS in question; or there is substantial uncertainty about the origin and history
of the hatchery population.
Based on these categorical delineations, hatchery programs in SSHAG categories 1 and 2 are
included as part of an ESU or DPS (70 FR 37204) although hatchery programs in other
categories may also be included in an ESU or DPS under certain circumstances.
Because the new hatchery listing policy changed the way NMFS considered hatchery fish in
ESA listing determinations, NMFS conducted new status reviews and ESA-listing
determinations for west coast salmon ESUs and steelhead DPSs using this policy. On June 28,
2005, NMFS issued final listing determinations for 16 ESUs of Pacific salmon (including the SR
winter-run Chinook salmon ESU) and on January 5, 2006, NMFS issued final listing
determinations for 10 DPSs of steelhead.
On August 15, 2011 we noticed the availability of the 5-year reviews and listing
recommendations for 11 ESUs of Pacific salmon and 6 DPSs of steelhead, including SR winterrun
Chinook salmon, and determined the status should remain as endangered as was determined
in 2005 (76 FR 50447).
1.3 Methodology used to complete the review:
A public notice announcing NMFS’s intent to conduct 5-year status reviews for the 28
ESUs/DPSs of west coast anadromous salmonids was published in the Federal Register on
February 6, 2015 (80 FR 6695). This notice initiated a 60-day period for the public to provide
comments to NMFS related to the status of the species being reviewed. The West Coast Region
(WCR) of NMFS coordinated informally with the State co-managers to ensure they were
informed about the status review and had an opportunity to provide any comments or
information. No comments relevant to SR winter-run Chinook salmon were provided during the
60-day period.
5
Following the comment period, three main steps were taken to complete the 5-year status review
for the SR winter-run Chinook salmon. First, the NMFS-Southwest Fisheries Science Center
(SWFSC) reviewed any new and substantial scientific information that had become available
since the 2010 status review and produced an updated biological status summary report (herein
cited as Williams et al. 2016 and referred to as the “viability report”). The viability report was
intended to determine whether or not the biological status of SR winter-run Chinook salmon had
changed since the 2010 status review was conducted. Next, the California Central Valley Office
(CCVO) reviewed the viability report and assessed whether the five ESA listing factors (threats)
changed substantially since the 2010 status review. To assess whether the five ESA listing
factors have changed substantially since 2010, several key documents were reviewed such as the
Federal Register notices identified in Tables 1 and 2 and other relevant publications including:
(1) 5-year Status Review Report: Summary and Evaluation of Sacramento River Winter-
Run Chinook Salmon ESU (NMFS 2011a)
(2) Central Valley Salmon and Steelhead Recovery Plan (NMFS 2014)
(3) Discussions with California Department of Fish and Wildlife (CDFW) and the U.S.
Fish and Wildlife Service (USFWS) on watershed assessments and recovery action
implementation status
(4) Biological Opinion on the Long-term Operations of the Central Valley Project and
State Water Project (NMFS 2009)
(5) Grandtab 2015
(6) Framework for assessing viability of threatened and endangered Chinook salmon and
steelhead in the Sacramento-San Joaquin Basin (Lindley et al. 2007)
Finally, the CCVO staff considered the viability report, the current threats to the species,
recovery action implementation, and relevant conservation measures before making a
determination whether the listing status of SR winter-run Chinook salmon should be down listed
(i.e., endangered to threatened), delisted from the ESA list, or remain unchanged. CCVO
biologists assimilated information from various sources to support this review and the reviews of
Central Valley spring-run Chinook salmon and California Central Valley steelhead.
1.4 Background – Summary of Previous Reviews, Statutory and Regulatory
Actions, and Recovery Planning
1.4.1 FR Notice citation announcing initiation of this review:
80 FR 6695; February 6, 2015
1.4.2 Listing history
The SR winter-run Chinook salmon ESU was first listed as “threatened” in 1989 under an
emergency rule (Table 1). In 1994, NMFS reclassified the ESU as an endangered species due to
several factors, including: (1) the continued decline and increased variability of run sizes since
its listing as a threatened species in 1989; (2) the expectation of weak returns in coming years as
6
the result of two small year classes (1991 and 1993); and (3) continuing threats to the species.
On June 14, 2004, NMFS proposed to reclassify the ESU as threatened (69 FR 33102; June 14,
2004) primarily because of increasing run sizes and the implementation of numerous
conservation efforts in the Central Valley. Following the comment period on the proposed
reclassification and additional analysis, NMFS issued a final listing determination on June 28,
2005 (see Table 1) concluding that the ESU was “in danger of extinction” due to risks associated
with its reduced diversity and spatial structure, and therefore, warranted continued listing as an
endangered species under the ESA (70 FR 37160).
Table 1. Summary of the listing history under the Endangered Species Act for the SR
winter-run Chinook salmon ESU.
Salmonid Species ESU Name Original Listing Revised Listing(s)
Chinook Salmon
(O. tshawytscha)
Sacramento River Winterrun
Chinook salmon
FR notice: 54 FR 32085
Date listed: 8/4/1989
Classification: Threatened
(emergency interim rule)
FR notice: 55 FR 12191
Date listed: 4/2/1990
Classification: Threatened
(emergency interim rule)
FR notice: 55 FR 46515
Date listed: 11/5/1990
Classification: Threatened
FR notice: 59 FR 440
Date: 1/4/1994
Re-classification:
Endangered
FR notice: 70 FR 37160
Date listed: 6/28/2005
Classification: reaffirmed
classification as Endangered
1.4.3 Associated rulemakings
The ESA requires NMFS to designate critical habitat for any species it lists under the ESA.
Critical habitat is defined as: (1) specific areas within the geographical area occupied by the
species at the time of listing, on which are found those physical or biological features essential to
the conservation of the species, and those features which may require special management
considerations or protection; and (2) specific areas outside the geographical area occupied by the
species if the agency determines that the area itself is essential for conservation of the species.
NMFS designated critical habitat for this ESU in 1993 (Table 2).
Section 4(d) of the ESA directs NMFS to issue regulations necessary and advisable to conserve
species listed as threatened. This applies particularly to “take,” which can include any act that
kills or injures fish, and may include habitat modification. The ESA automatically prohibits the
7
take of species listed as endangered, In 1990, a 4(d) protective regulation was promulgated for
this threatened ESU that applied the section 9 take prohibitions and also created several “limits”
or exemptions for specific activities consistent with the conservation and recovery of threatened
salmonids. With the 1994 reclassification of the ESU as endangered, the 1990 4(d) rule no
longer applied to Sacramento River winter-run Chinook, and ESU was automatically afforded
the section 9 take prohibitions.
Table 2. Summary of rulemaking for 4(d) protective regulations and critical habitat for
the SR winter-run Chinook salmon.
Salmonid Species ESU Name 4(d) Protective
Regulations
Critical Habitat
Designations
Chinook Salmon
(O. tshawytscha)
Sacramento River winterrun
Chinook salmon
FR notice: 55 FR 46515
Date: 11/5/1990*
FR notice: 58 FR 33212
Date: 6/16/1993
*Note: The 1990 4(d) rule was later superseded by the 1994 reclassification of this ESU as
endangered (see Table 1).
1.4.4 Review History
Numerous scientific assessments have been conducted to assess the biological status of this ESU.
A list of those assessments is provided in Table 3.
Table 3. Previous scientific assessments for the SR winter-run Chinook salmon ESU.
Salmonid
Species
ESU Name Document Reference
Chinook Salmon
(O. tshawytscha)
Sacramento
River Winter-run
Chinook salmon
National Marine Fisheries Service. 1996. Recommendations for the Recovery of
the Sacramento river Winter-run Chinook Salmon. Recovery Team. Long Beach.
CA. 211 pages.
Myers, J. M., R. G. Kope, G. J. Bryant, D. Teel, L. J. Lierheimer, T. C.
Wainwright, W. S. Grant, F. W. Waknitz, K. Neely, S. T. Lindley, and R. S.
Waples. 1998. Status Review of Chinook Salmon from Washington, Idaho,
Oregon, and California., Report No. NMFSNWFSC-35. NOAA Tech. Memo. U.S.
Department of Commerce.
National Marine Fisheries Service. 1999. Status review update for deferred
ESUs of West Coast Chinook salmon (Oncorhynchus tshawytscha) from
Washington, Oregon, California, and Idaho. Memorandum dated 16 July 1999, to
U. Varanasi, Northwest Fisheries Science Center, and M. Tillman, Southwest
Fisheries Science Center, from M. Schiewe, Northwest Fisheries Science Center,
Montlake, Washington.
Lindley, S.T., R. Schick, B.P. May, J.J. Anderson, S. Greene, C. Hanson, A. Low,
D. McEwan, R.B. MacFarlane, C. Swanson, and J.G. Williams. 2004. Population
structure of threatened and endangered Chinook salmon ESU in California's
Central Valley basin. NMFS Southwest Science Center NOAA-TM-NMFSSWFSC-
360. Santa Cruz, CA.
Good, T.P., R.S. Waples, and P. Adams. 2005. Updated status of federally listed
ESUs of West Coast salmon and steelhead. U.S. Dept. Commerce, NOAA Tech.
Memo. NMFS-NWFSC-66, 598 p.
National Marine Fisheries Service. 2005. Final assessment of the National
Marine Fisheries Service’s critical habitat analytical review teams (CHARTs) for
8
seven salmon and steelhead evolutionarily significant units (ESUs) in California.
July. Prepared by the NOAA Fisheries, Protected Resources Division, Long
Beach, California.
Lindley, S.T., R. Schick, E. Mora, P. B. Adams, J. J. Anderson, S. Greene, C.
Hanson, B. P. May, D. R. McEwan, R. B. MacFarlane, C. Swanson, and J. G.
Williams. 2007. Framework for assessing viability of threatened and endangered
Chinook salmon and steelhead in the Sacramento-San Joaquin Basin. San
Francisco Estuary and Watershed Science 5(1), Article 4: 26 pages.
Williams, T. H., S. T. Lindley, B. C. Spence, and D. A. Boughton. 2011. Status
Review Update for Pacific Salmon and Steelhead Listed under the Endangered
Species Act: Update to January 5, 2011 Report. National Marine Fisheries Service,
Southwest Fisheries Science Center. Santa Cruz, CA.
Williams, T.H., B.C. Spence, D.A. Boughton, R.C. Johnson, L. Crozier, N.
Mantua, M. O’Farrell, and S.T. Lindley. 2016. Viability assessment for Pacific
salmon and steelhead listed under the Endangered Species Act: Southwest. 2
February 2016 Report to National Marine Fisheries Service – West Coast Region
from Southwest Fisheries Science Center, Fisheries Ecology Division 110 Shaffer
Road, Santa Cruz, California 95060.
1.4.5 Species’ Recovery Priority Number at start of 5-year review
On June 15, 1990, NMFS issued guidelines (55 FR 24296) for assigning listing and recovery
priorities. For recovery plan development, implementation, and resource allocation, NMFS
assesses three criteria to determine a species’ recovery priority number from 1 (high) to 12 (low):
(1) magnitude of threat; (2) recovery potential; and (3) conflict with development projects or
other economic activity. NMFS re-evaluated the recovery priority numbers for listed species as
part of the FY2013-FY2014 ESA Biennial Report to Congress (NMFS 2015). As a result of the
re-evaluation, the recovery potential for SR winter-run Chinook salmon increased, causing the
species’ recovery priority number to change from 3 to 1. Regardless of a species' recovery
priority number, NMFS remains committed to continued efforts to recovery all ESA-listed
species under our authority.
1.4.6 Recovery Plan or Outline
9
In 2014, NMFS released a final multi-species recovery plan that addresses all three listed
salmonids in the California Central Valley, including the SR winter-run Chinook salmon ESU
(Table 4).
Table 4. Recovery Priority Number and Endangered Species Act Recovery Plans for SR
winter-run Chinook salmon.
Salmonid
Species
ESU Name Recovery
Priority
Number
Recovery Plans
Chinook Salmon
(O. tshawytscha)
Sacramento
River Winterrun
Chinook
Salmon
1 Name of Plan: Recovery Plan for the Evolutionarily
Significant Units of Sacramento River Winter-run Chinook
Salmon and Central Valley Spring-run Chinook Salmon and
the Distinct Population Segment of California Central Valley
Steelhead (July 2014)
Plan Status: Final
http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_
steelhead/recovery_planning_and_implementation/
(West Coast Region salmonid Recovery Plans)
2.0 REVIEW ANALYSIS
2.1 Delineation of Species under the Endangered Species Act
2.1.1 Is the species under review a vertebrate?
ESU/DPS Name YES* NO**
Sacramento River Winter-run Chinook Salmon X
* if “Yes,” go to section 2.1.2
** if “No,” go to section 2.2
2.1.2 Is the species under review listed as a DPS?
ESU/DPS Name YES* NO**
Sacramento River Winter-run Chinook Salmon X
* if “Yes,” go to section 2.1.3
** if “No,” go to section 2.1.4
2.1.3 Was the DPS listed prior to 1996?
ESU/DPS Name YES* NO** Date Listed if Prior to 1996
Sacramento River Winter-run Chinook Salmon X 1989
* if “Yes,” give date go to section 2.1.3.1
** if “No,” go to section 2.1.4
10
2.1.3.1 Prior to this 5-year review, was the DPS classification reviewed
to ensure it meets the 1996 policy standards?
In 1991, NMFS issued a policy to provide guidance for defining ESUs of salmon and steelhead
that would be considered for listing under the ESA (56 FR 58612; November 20, 1991). Under
this policy, a group of Pacific salmon populations is considered an ESU if it is substantially
reproductively isolated from other con-specific populations and it represents an important
component in the evolutionary legacy of the biological species. In listing the SR winter-run
Chinook salmon ESU, NMFS treated the delineated ESU as a DPS, and hence a “species”, under
the ESA. Although finalized after the listing of this ESU, the 1996 DPS policy affirmed that a
stock of Pacific salmon is considered a DPS if it represents an ESU of a biological species and
concluded that NMFS’s ESU policy was a detailed extension of the joint DPS policy. In
summary, therefore, the ESU meets the 1996 DPS policy standards.
2.1.4 Summary of relevant new information regarding the delineation of
the ESUs/DPSs under review
The SR winter-run Chinook salmon ESU is represented by a single naturally-spawning
population that has been displaced from nearly all of its historical spawning habitat by the
construction of Shasta and Keswick dams. Based on this review, there is no new information
indicating that the current freshwater and estuarine geographic boundary of this ESU should be
changed or that the population does not constitute an ESU.
USFWS manages a Conservation Hatchery Program for this ESU which is located at the
LSNFH. This hatchery program supplements the natural population according to strict guidelines
developed in conjunction with NMFS. Based on a review of available genetic and other
information, this hatchery stock was considered part of the SR winter-run Chinook ESU and was
listed in 2005 (70 FR 37160). Based on that review, there is no new information indicating that
this hatchery stock has diverged significantly from the natural spawning population or that there
have been substantial changes in the hatchery management since the last status review.
In 2015, the USFWS, NMFS, and CDFW collectively decided to initiate a Captive Broodstock
Program using juvenile hatchery fish from the Conservation Hatchery Program. This decision
was in response to threats to the ESU caused by the continuation of extreme drought conditions
in California’s Central Valley. The goals of a new Captive Broodstock Program, listed in order
of priority, will be to provide : 1) a genetic reserve of SR winter-run Chinook salmon in a safe
and secure environment to be available for use as hatchery broodstock for the Integrated-
Recovery Supplementation Program in the event of a catastrophic decline in the abundance; 2) a
future source of winter-run Chinook salmon to contribute to multi-agency efforts to reintroduce
winter-run Chinook salmon upstream of Shasta Dam and into restored habitats of Battle Creek;
and 3) a future source of winter-run Chinook salmon to fulfill the needs of research projects.
As part of this 5-year review, we reevaluated the relatedness of SR winter-run Chinook ESU
hatchery programs. We determined that the fish being reared to maturity at the LSNFH to
11
establish a Captive Broodstock Program are part of the current ESA listing. These captive fish
were taken as juveniles directly from the Conservation Hatchery Program and no outside fish
were incorporated to establish a new stock. Rather than being released as juveniles, these
captive fish from the Conservation Hatchery Program are being reared and maintained at the
LSNFH into adulthood. As such, the captive winter-run Chinook at the LSNFH are a component
of the Conservation Hatchery Program and should be considered as part of the listing of SR
winter-run Chinook, as it is currently defined (79 FR 20802; April 14, 2014).
While the captive fish at the LSNFH are currently a component of the Conservation Hatchery
Program and regarded as part of the listed ESU, we recognize that the future intent is to use the
progeny of these captive fish in support of different conservation and recovery goals than the
Conservation Hatchery Program. Next year, 2017, will be the first year that these fish retained
from the Conservation Hatchery Program will be mature and ready to spawn. The progeny from
those matings will be retained, establishing the Captive Broodstock Program. This Captive
Broodstock Program will represent a new hatchery stock of SR winter-run Chinook being
propagated at the LSNFH.
The Captive Broodstock Program, once established in 2017, will be no more divergent relative to
the local natural population(s) than what would be expected between closely related natural
populations within the SR winter-run Chinook salmon ESU. As such, consistent with the 2005
Hatchery Listing Policy, we recommend revising the ESU listing to include the Captive
Broodstock Program, in addition to the Conservation Hatchery Program, as part of the listed SR
winter-run Chinook ESU. While both hatchery programs will both be propagated at the LSNFH,
identifying these two hatchery programs as distinct components of the listed ESU will recognize
their differing conservation goals, their unique broodstock and rearing practices, and their
respective potential for future genetic divergence relative to the local natural population(s).
2.2 Recovery Criteria
2.2.1 Does the species have a final, approved recovery plan containing
objective, measurable criteria?
ESU/DPS Name YES NO
Sacramento River Winter-run Chinook Salmon X
The ESA requires recovery plans to incorporate (to the maximum extent practicable) objective,
measurable criteria which, when met, would result in a determination in accordance with the
provisions of the ESA that the species can be removed from the Federal List of Endangered and
Threatened Wildlife and Plants (50 CFR 17.11 and 17.12). NMFS issued a final approved
recovery plan for this ESU in 2014. The plan contains recovery criteria that are objective and
measurable, and reflect the best available and most-up-to-date information on the biology of this
ESU and its habitat and address both biological parameters as well as the 5 listing factors. The
12
biological recovery criteria in the 2014 recovery plan are based on the Viable Salmon Population
(VSP) criteria developed by McElhany et al. (2000).
2.2.2 Adequacy of recovery criteria.
2.2.2.1 Do the recovery criteria reflect the best available and most up
to date information on the biology of the species and its
habitat?
ESU/DPS Name YES NO
Sacramento River Winter-run Chinook Salmon X
The biological recovery criteria in the recovery plan are based on the best available information.
2.2.2.2 Are all of the 5 listing factors that are relevant to the species
addressed in the recovery criteria?
ESU/DPS Name YES NO
Sacramento River Winter-run Chinook Salmon X
The recovery plan contains threat abatement recovery criteria that address each of the five listing
factors.
2.2.3 List the recovery criteria as they appear in any final or interim
recovery plan, and discuss how each criterion has or has not been met,
citing information
The Central Valley Chinook salmon and steelhead recovery plan contains criteria indicating that
the SR winter-run Chinook salmon ESU must have three viable populations in the Basalt and
Porous Lava Diversity Group in order to support a delisting determination. Criteria for assessing
population extinction risk were developed by the Central Valley Technical Recovery Team
(TRT) (Lindley et al. 2007) and have been incorporated into the recovery plan (Table 5). A
population that meets the low extinction risk criteria described in Table 5 is considered to be
viable (NMFS 2014). The TRT incorporated the four viable salmonid population parameters
from McElhany et al. (2000) into assessments of population viability, and two sets of population
viability criteria were developed, expressed in terms of extinction risk. The first set of criteria
deal with direct estimates of extinction risk from population viability models. If data are
available and such analyses exist and are deemed reasonable for individual populations, such
assessments may be efficient for assessing extinction risk. In addition, the TRT also provided
simpler criteria. The simpler criteria include population size (and effective population size),
population decline, catastrophic rate and effect, and hatchery influence. For a population to be
considered at low risk of extinction (i.e., defined as < 5 percent chance of extinction within 100
13
years) the population viability assessment must demonstrate that risk level or all of the following
criteria must be met:
• Effective population size is > 500 -or- census population size is > 2,500
• No productivity decline is apparent
• No catastrophic events occurring or apparent with the past 10 years
• Hatchery influence is low (as determined by levels corresponding to different amounts,
durations and sources of hatchery strays)
Table 5. Criteria for assessing the level of risk of extinction for populations of Pacific
salmonids in the Central Valley of California. Overall risk is determined by the highest
risk score for any category (Lindley et. al. 2007).
Risk of extinction
Criterion High Moderate Low
Extinction risk and PVA > 20% within 20 yrs > 5% within 100 yrs < 5% within 100 yrs
- or any ONE of - - or any ONE of - - or ALL of -
Population sizea Ne ≤ 50 50 < Ne ≤ 500 Ne > 500
- or - - or - - or -
N ≤ 250 250 < N ≤ 2500 N > 2500
Population decline Precipitous declineb Chronic decline or
depressionc
No decline apparent
or probable
Catastrophe, rate, and
effectd
Order of magnitude
decline within one
generation
Smaller but
significant declinec Not apparent
Hatchery influencef High Moderate Low
a – Census size N can be used if direct estimates of effective size Ne are not available, assuming Ne/N = 0.2.
b – Decline within last two generations to annual run size ≤ 500 spawners, or run size > 500 but declining at ≥ 10%
per year over the past 10 years. Historically small but stable population not included.
c – Run size has declined to ≤ 500, but now stable.
d – Catastrophes occurring within the last 10 years.
e – Decline < 90% but biologically significant.
f – See Figure 3 for assessing hatchery impacts.
2.3 Updated Information and Current Species Status
2.3.1 Analysis of VSP Criteria
14
Summary of Previous Biological Review Team (BRT) Conclusions
Good et al. (2005) found that viability of the SR winter-run Chinook salmon ESU was consistent
with “in danger of extinction.” The major concerns of the BRT were that there is only one
extant population, and it is outside of its historical spawning distribution in an artificiallymaintained
habitat that is vulnerable to drought and other catastrophes. In the most recent past
assessment, Williams et al. (2011) found that the viability of the ESU had changed little since the
2005 review and found that it did not appear that there was a change in extinction risk.
Brief Review of Technical Recovery Team (TRT) Documents and Findings
The TRT delineated four historical independent populations of the SR winter-run Chinook
salmon ESU. The spawning areas of three of these historical populations (upper Sacramento,
McCloud, and Pit rivers) are above the impassable Keswick and Shasta dams, while Battle Creek
(location of the fourth population) is presently unsuitable for winter-run Chinook salmon due to
high summer water temperatures. Using data through 2004, Lindley et al. (2007) found that the
mainstem Sacramento River population was at a low risk of extinction. The ESU as a whole,
however, was not considered viable because there is only one naturally-spawning population and
it is not within the range of its historical spawning habitat. An emerging concern was the rising
levels of LSNFH-origin fish spawning in natural areas (mean=8%, t=10 years), although the
duration and extent of this introgression was still consistent with a low extinction risk as of 2010.
New Data and Updated Analyses
Since the 2010 viability assessment, routine escapement data have continued to be collected
allowing viability statistics to be updated (Table 6). The Red Bluff Diversion Dam (RBDD)
gates were operated in the up/out position during some or all of the winter-run immigration
period since 2001 and removed in 2012 to provide unimpaired salmon passage year-round
(NMFS 2009). These modifications also changed the ability to count SR winter-run Chinook
salmon adults at the RBDD fish ladders (NMFS 2009). Population estimates from 2001 to
present are derived exclusively from mark-recapture estimates from the carcass survey (Figure
1).
Table 6 shows the viability metrics for SR winter-run Chinook salmon abundance and trends in
the LSNFH and in the Sacramento River. Like many other populations of Chinook salmon in the
Central Valley, SR winter-run Chinook salmon have declined in abundance since 2005 with
recent decadal lows of 827 spawners in 2011. Escapement in 2011 represents the lowest run
since the construction and operation of the LSNFH conservation hatchery in 1997. Both the
current total population size (N; LSNFH = 645; Sacramento River = 11,125) and mean
population sizes (Ŝ; LSNFH = 215; Sacramento River = 3,708) satisfy the low risk criterion (N >
2500).
The point estimate for the 10-year trend in run size is negative (-0.15), suggesting a 15% per year
decline in the population (Table 6). The slope is marginally not different than ‘0’, yet it is clear
that the population has been steadily declining rather than increasing over the past decade. The
maximum year-to-year decline in population size has reached 67%, an increase from 38% in the
previous 2010 viability assessment (Williams et al. 2011). However, the percent decline does
15
not exceed the catastrophic decline criteria (>90% decline in one generation or annual run size <
500 spawners; Lindley et al. 2007).
Figure 1: Time series of escapement for SR winter-run Chinook salmon populations (a)
used as broodstock at LSNFH and (b) spawning in-river. Estimates for in-river spawners
is the average number of adults counted at Red Bluff Diversion Dam and the carcass
survey mark-recapture estimates (when available). Note: only mark-recapture estimates
used beginning in 2009; Data source: Azat 2014.
Table 6: Viability metrics for SR winter-run Chinook salmon ESU. Total population size
(N) is estimated as the sum of estimated run sizes over the most recent three years. The
mean population size (Ŝ) is the average of the estimated run sizes for the most recent 3
years (2012-2014). Population growth rate (or decline; 10-year trend) is estimated from the
slope of log-transformed estimated run sizes. The catastrophic metric (Recent Decline) is
the largest year-to-year decline in total population size (N) over the most recent 10 such
ratios.
16
Population N Ŝ 10-year trend (95% CI) Recent Decline (%)
LSNFH winter chinook 645 215.0 0.102 (-0.019, 0.222) 2.7
SR winter-run chinook 11125 3708.3 -0.155 (-0.345, 0.034) 67.4
The observed levels of hatchery influence exceed the low-extinction risk criteria met in the
previous viability assessment and place the genetic integrity of the population at a moderate risk
of extinction (Figure 2; Lindley et al. 2007). Since the beginning of hatchery production at
LSNFH in 1997, the proportion of SR winter-run Chinook salmon spawning in the river that is of
hatchery origin has increased (Figure 2). Prior to 2005, the proportion of LSNFH-origin
spawners in the river was between 5% to 10%, consistent with guidelines from the Hatchery
Scientific Review Group for conservation hatcheries (Figure 2; California HSRG 2012).
However, the hatchery proportion has increased since 2005 and reached ~20% in 2005, 2014,
and >30% in 2012. The average over the last 12 years (approximately four generations) is 13%
(SD= ±8%) with the most recent generation at 20% hatchery influence, placing the population at
a moderate risk of extinction (Table 7; Figure 3).
17
Figure 2: Percentage of SR winter-run Chinook salmon spawning in-river of hatchery
origin; Data source: CDFW Doug Killam, unpublished.
Table 7. Average percentage of SR winter-run Chinook salmon river spawners that are
hatchery origin over a varying (cumulative) number of years. One generation (g1) consists
of the most recent 3 years; two generations (g2) the most recent 6 years; three generations
(g3) the most recent 9 years; four generations (g4) the most recent 12 years. Data source:
CDFW Doug Killam (unpublished 2014).
g1 g2 g3 g4
Average hatchery influence 20% 15% 13% 13%
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Figure 3. Percentage of hatchery-origin spawners and the resulting risk of extinction due
to hatchery introgression from different sources of strays over multiple generations- low
(green), moderate (yellow), and high (red). Model using “best-management practices” was
used in the SR winter-run Chinook salmon assessment based on the breeding protocols at
the LSNFH. Figure reproduced from Lindley et al. 2007.
2.3.2 Five-Factor Analysis (threats, conservation measures, and regulatory
mechanisms)
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Section 4(a)(1) of the ESA and the listing regulations (50 CFR Part 424) set forth procedures for
listing species. NMFS must determine, through the regulatory process, the listing status based
upon any one or a combination of the following factors: (1) the present or threatened destruction,
modification, or curtailment of its habitat or range; (2) overutilization for commercial,
recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued
existence.
Previous reviews of this ESU identified a wide range of factors as being responsible for its
decline including: blockage of access to historic habitat, other passage impediments, degradation
of remaining available habitat, unscreened water diversions, heavy metal pollution from mine
runoff, disposal of contaminated dredge sediments in San Francisco Bay, ocean harvest,
predation, drought effects, losses of juveniles at the Central Valley Project (CVP) and State
Water Project (SWP) Sacramento-San Joaquin Delta (Delta) pumping facilities, and elevated
water temperatures at the spawning grounds. Since 1994, many factors have been addressed, or
at least impacts have been reduced, through regulatory and other mechanisms (e.g., reduced
harvest impacts, Iron Mountain Mine clean up, Anderson-Colusa Irrigation District fish ladder,
screening of water diversions, altered CVP water operations that improve passage and reduce
predation, and construction of a temperature control device on Shasta Dam, etc.). The last status
review described numerous threats to this ESU, but chief among them was that it was comprised
of only one population which was very small and wholly dependent on artificially-created
spawning and rearing conditions (i.e., cold water releases below Shasta Dam). New information
relating to each of these five listing factors is discussed below, including discussion of important
conservation efforts being made to protect the species, where appropriate.
2.3.2.1 Present or threatened destruction, modification or curtailment of its
habitat or range:
Blockage of historical habitat by Shasta and Keswick dams
Loss of historic spawning and rearing habitat for this ESU remains a major threat as Shasta and
Keswick dams completely displace the naturally-spawning population to the mainstem
Sacramento River downstream of the two dams. As required in 2009 NMFS Biological Opinion
and Conference Opinion on the Long-term Operation of the CVP and SWP (CVP/SWP
biological opinion), the Bureau of Reclamation (Reclamation) along with NMFS, the California
Department of Water Resources (DWR), CDFW, and USFWS have taken a number of steps
towards reducing this threat and re-introduce SR winter-run Chinook salmon into the McCloud
River, including: (1) formation of the Interagency Fish Passage Steering Committee in 2010 to
provide technical, management, and policy direction for the fish passage program; and (2)
evaluation of salmonid spawning and rearing habitat above Shasta Dam in 2013. Currently
Reclamation is leading the development of a fish passage pilot plan which is scheduled to be
completed in 2016, with implementation beginning in 2017. NMFS regulatory work, including
having an experimental population designation rule in place, is scheduled to be completed by the
fall of 2016. Implementation of the 3-year pilot plan is scheduled to be completed in 2019.
Reintroduction is expected to be a long-term program with no specific completion date.
20
Hydroelectric development on Battle Creek
Hydrological development has eliminated approximately 48 miles of potential habitat in Battle
Creek. The Battle Creek Salmon and Steelhead Restoration Project (BCSSRP) will eventually
remove five dams on Battle Creek, install fish screens and ladders on three dams, and end the
diversion of water from the North Fork to the South Fork. When the program is completed, a
total of 42 miles of mainstem habitat and 6 miles of tributary habitat will be opened up to
anadromous salmonids and will allow for successful reintroduction of the SR winter-run
Chinook salmon ESU. The BCSSRP began in 2010 with the removal of Wildcat Diversion Dam
and it is nearing its final implementation phase with completion expected by 2020, depending on
funding. DWR contributed a total of $12 million of discretionary funds in 2011 and 2012 for
restoration Phase 1B and Phase 2 as required in the CVP/SWP biological opinion. A
reintroduction plan is currently being written and is scheduled to be completed in August 2016.
Implementation of the reintroduction plan will begin soon after, when a lead agency is identified
and funding has been secured. Completion for the reintroduction is dependent on the rate of
successful colonization.
Warm water releases from Shasta Dam
The SR winter-run Chinook salmon population is artificially maintained through cold water
releases in the summer from the reservoir behind Shasta and Keswick dams in order to provide
spawning and rearing habitat below the two dams. Reclamation has struggled to maintain an
adequate cold water pool in critically dry years and extended drought periods in order to
maintain suitable temperatures for winter-run Chinook salmon egg incubation, fry emergence,
and juvenile rearing in the Sacramento River. Through the CVP/SWP biological opinion,
Reclamation has created and implemented improved Shasta Reservoir storage plans and yearround
Keswick Dam release schedules and procedures to provide cold water for spawning and
rearing since 2010.
However, the threat of warm water releases from Shasta Dam still remains a significant stressor
to winter-run Chinook salmon, especially given the recent extended drought in California from
2012 through 2015. Warm water releases from Shasta Reservoir in 2014 and 2015 contributed to
5.6% and 4.2% egg-to-fry survival rates to RBDD in 2014 and 2015, respectively. Under
varying hydrologic conditions from 2002 to 2013, winter-run Chinook salmon egg-to-fry
survival ranged from three to nearly 10 times higher than in 2014 and 2015. Measures taken to
reduce this threat and improve Shasta Reservoir cold water pool management have been to: (1)
relax Wilkins Slough navigational flow requirements; (2) relax D-1641 Delta water quality
requirements; (3) delay Sacramento River Settlement Contractor depletions, and transfer a
volume of their water in the fall rather than increase depletions throughout the summer; (4) target
slightly warmer temperatures during the SR winter-run Chinook salmon holding period (before
spawning occurs); (5) replace the Spring Creek temperature control curtain in Whiskeytown
Reservoir in 2011 (installation of the Oak Bottom temperature control curtain in Whiskeytown
Reservoir is scheduled to be completed in 2016); and (6) install the Shasta Dam temperature
control device curtain in 2015. Other efforts to reduce the threat of warm water releases from
Shasta Dam include improving reservoir, meteorologic, and hydrologic modeling and monitoring
21
in order to most efficiently manage the reservoir’s limited amount of cold water, installation of
additional temperature monitoring stations in the upper Sacramento River to better monitor realtime
water temperatures, and enhanced redd, egg, and juvenile SR winter-run Chinook salmon
monitoring.
Juvenile and adult passage constraints at Red Bluff Diversion Dam (RBDD)
The RBDD on the Sacramento River impeded both upstream migration of adult fish to spawning
habitat and downstream migration of juveniles. Since 2012, the gates at RBDD have been open
year-round to allow unimpeded upstream and downstream fish passage, as required through the
CVP/SWP biological opinion and as part of $113 million American Recovery and Reinvestment
Act funded fish passage improvement project by the Tehama Colusa Canal Authority. The
completion of this project to allow unimpeded fish passage has eliminated this threat.
Loss of rearing habitat
Urban and agriculture development along with levee construction and channelization for flood
control, and water delivery operations have resulted in reduced rearing habitat, migration
corridors, and food web production for juvenile winter-run Chinook salmon in the Sacramento
River Basin and Delta. To mitigate some of these effects, the CVP/SWP biological opinion
contains actions for improving 17,000 to 20,000 acres of floodplain and tidal marsh habitat that
is favorable for juvenile salmon rearing in the Lower Sacramento River and Delta. Planning for
restoration began in 2011. Lead agencies and partners are undergoing National Environmental
Policy Act/California Environmental Quality Act alternative formulation and analysis for
environmental planning and permitting. Restoration actions are scheduled to be completed by
2023.
The state and federal public water agencies required to mitigate the ecological impacts of the
CVP and SWP in the Delta are largely helping to fund the $300 million California EcoRestore
initiative introduced in 2015 to help coordinate and advance at least 30,000 acres of habitat
restoration in the Delta in the next 4 years. A broad range of habitat restoration projects will be
pursued, including projects to address aquatic, sub-tidal, tidal, riparian, floodplain, and upland
ecosystem needs. Twenty four projects have been tracked by California EcoRestore that are in
various stages of development from conceptual to complete. Funding for habitat enhancements
unassociated with mitigation will come primarily from Propositions 1 and 1E, the AB 32
Greenhouse Gas Reduction Fund, and local, federal, and private investment.
The Central Valley Project Improvement Act (CVPIA) has funded several habitat restoration
projects from 2010 to 2015 to benefit SR winter-run Chinook salmon, including a side channel
rehabilitation at Painter’s Riffle in 2014. Reclamation has also identified six floodplain and side
channel enhancement projects that will create approximately 37 acres of new or re-established
floodplain and side channel habitat between RM 300.5 (i.e., 1.5 miles downstream of Keswick
Dam) and RBDD (RM 242). In addition, gravel augmentation has occurred along the Upper
Sacramento River to increase the availability of spawning and rearing habitat.
Private entities have developed a number of conservation banks along the Sacramento River, in
22
the Delta, and Suisun Marsh over the past 5 years. Together they have created over 1,000 acres
of riparian, floodplain, and tidal aquatic habitat to benefit juvenile SR winter-run Chinook
salmon. In addition, changes in levee maintenance practices have included "self-mitigating"
features such as vegetative rock, constructing levee toe benches that allow for the planting of
riparian vegetation, grading rock sizes to reduce piscivorous predator habitat and installing
instream woody material to create shoreline refugia for emigrating juveniles. Physical habitat
monitoring has shown the riparian mitigation is in itself successful, however, fishery monitoring
has not demonstrated these features to be effective when compared to natural bank conditions.
Water exports in the southern Delta
A significant effect of CVP and SWP water operations is diversion of out-migrating juveniles
from the north Delta tributaries into the interior Delta through the open Delta Cross Channel.
Instead of migrating directly to the outer estuary and then to sea, these juveniles are caught in the
interior Delta and subjected to pollution, predators, and altered food webs that cause either direct
mortality or impaired growth. The CVP/SWP biological opinion mandates additional gate
closures beyond those in Water Rights Order Decision 1641 to minimize these adverse effects to
winter-run. Additionally, since 2010, DWR, Reclamation, USGS, NMFS, and USFWS have
been investigating various engineering solutions to prevent emigrating salmonids from entering
Georgiana Slough and into the interior Delta. Installation of barriers at Georgiana Slough are
expected to be completed by 2022.
In addition, the continued pumping and diversion of water from the CVP and SWP export
facilities in the south Delta causes reverse flows, leading to loss of juveniles migrating out from
the Sacramento River system in the interior Delta and more juveniles being exposed to the State
and Federal pumps, where they are salvaged at the facilities. In order to reduce the number of
juveniles exposed to the interior Delta and reduce mortality from entrainment and salvage at the
export facilities, the CVP/SWP biological opinion limits Old and Middle River flow levels,
curtails exports when protected fish are observed near the export facilities, and improved fish
screening and salvage operations. Furthermore, through the CVP/SWP biological opinion there
has been enhanced real time fish monitoring, development of an enhanced particle tracking
modeling, and formation of the Collaborative Science and Adaptive Management Program to
better understand fish presence and distribution in the Delta, Delta hydrologic conditions, and
CVP and SWP water operations impacts to ESA species in the Delta.
Also, in 2015 the state of California introduced the California WaterFix (CWF), an initiative to
modernize the state's aging water delivery system through a water conveyance system that would
include new points of water diversion in the north Delta in concert with improvements to the
current through-Delta water export system in the south Delta. Actions under discussion include
operation of a dual conveyance system and measures to reduce other stressors to the Delta
ecosystem and sensitive species. An analysis of the effects of CWF on winter-run Chinook
salmon has not been completed yet. The U.S. Bureau of Reclamation, which is the lead agency
for the CWF, is completing a biological assessment on the effects of the CWF on SR winter-run
Chinook salmon and other listed species, and NMFS is planning on preparing a biological
opinion on those effects once the biological assessment is completed.
23
Entrainment in a large number of unscreened or poorly screened water diversions
In order to reduce entrainment of juvenile winter-run Chinook salmon from unscreened water
diversions, the CVP/SWP biological opinion requires that Reclamation shall screen priority
diversions as identified in the CVPIA Anadromous Fish Screen Program (AFSP). Since 2010,
the AFSP has provided cost share funding to complete 15 fish screen projects on the Sacramento
River resulting in the screening of diversions with a total capacity of 1,241 cubic feet per second
(cfs). The larger diversions over 150 cfs in size on the mainstem Sacramento River have already
been screened or are currently proposed for screening. However, there are many small- and
moderate-sized unscreened diversions (up to 150 cfs) on the Sacramento River. The AFSP and
Ecosystem Restoration Program conducted a fish entrainment monitoring study at 11 diversions
on the Sacramento River (ranging from 9 cfs to 128 cfs) from 2009 through 2012 to obtain
critical fish entrainment monitoring data in order to better understand the potential effects of
diversions on fish losses and to assist resource managers in evaluating which diversions are most
important to screen.
Water operations can create false attraction cues that cause adult SR winter-run Chinook salmon
to deviate from the mainstem Sacramento River migration corridor and become stranded in
agricultural fields behind flood bypass weirs. SR winter-run Chinook salmon have been
observed to navigate up the Colusa Basin Drain (CBD) into various agricultural diversions and
drainages (USBR and DWR 2012). Once they enter the CBD, there is no upstream route for the
fish to return to the Sacramento, so they eventually perish and are lost from production. In 2013,
over 600 stranded adult SR winter-run Chinook salmon and Central Valley spring-run Chinook
salmon were observed. Seining and trapping efforts transferred 47 of the SR winter-run Chinook
salmon to LSNFH for spawning. An estimated 319 SR winter-run Chinook salmon died in the
Colusa Basin canals (Killam et al. 2014). In 2015, a picket weir was installed at the Knights
Landing Outfall Gates to block adult upstream migrating SR winter-run Chinook salmon from
potentially straying into the CBD. In 2016, Reclamation District 108 is proposing to construct a
new permanent Wallace Weir in the Yolo Bypass to block upstream migrating SR winter-run
Chinook salmon from potentially straying into the CBD, and a fish collection facility to return
the adult fish back to the Sacramento River.
Water Quality
In general, water degradation or contamination can lead to either acute toxicity, resulting in death
when concentrations are sufficiently elevated, or more typically, when concentrations are lower,
to chronic or sublethal effects that reduce the physical health of the organism. Chronic or
sublethal effects lessen organism survival over an extended period of time due to compromised
physiology or behavioral changes that lessen the organism's ability to carry out its normal
activities. Since the last status review, the overall status trends show improvements to water
quality in the Sacramento River and Delta from discharges of agricultural operations, urban,
suburban areas, mining, and industrial sites. Emphasis on wastewater treatment plant upgrades,
24
development and implementation of total maximum daily load programs (TMDLs)4, and
adoption of new water quality standards (i.e., Basin Plans) have all aided in protecting and
contributing to a healthy functioning aquatic ecosystem. In the Sacramento River and Delta,
TMDL values have been approved for cadmium, copper, zinc, diazinon, and chlorpyrifos, which
have been helpful in improving water quality. In addition, TMDLs are in development for
organochlorine, mercury, pesticides, and selenium (SWRCB 2015). In recent years, NOAA
scientists have investigated and consulted on the direct and indirect effects of pesticides on
individual ESA listed species, the foodwebs on which they depend, and at the population level.
New testing methods, reasonable and prudent alternatives (i.e., buffer requirements and no-spray
zones), and programs, such as regulating the discharge from agricultural lands, have been
developed to begin minimizing impacts of pesticides.
Despite improvements to water quality in the Sacramento River and Delta, water quality
pollution remains a threat for the conservation and recovery of SR winter-run Chinook salmon
and their habitat. Many potentially harmful chemicals and contaminants of emerging concern
(pharmaceuticals) have yet to be addressed. Innovative and sustainable solutions such as green
infrastructure and low-impact design (LID) are needed to manage pollutants as close to the
source as possible. If these solutions can be applied at a broader scale, LID technology, policies,
and watershed scale programs have the potential to maintain and/or restore hydrologic and
ecological functions in a watershed, thereby improving water quality for ESA listed species and
the ecosystem on which the species depend.
Conclusion
As discussed above, there are promising habitat restoration, fish passage programs, and other
projects being implemented and evaluated that, if successful, would greatly expand SR winterrun
Chinook salmon spawning and rearing habitat. Likewise, there has been implementation of
Recovery Actions with the potential for substantial habitat improvements. Although some key
habitat improvement actions have begun, much work has yet to be implemented. Large scale
fish passage and habitat restoration actions are needed for improving the SR winter-run Chinook
salmon ESU viability.
While some conservation measures have been successful in improving habitat conditions for the
SR winter-run Chinook salmon ESU since it was listed in 1989, fundamental problems with the
quality of remaining habitat still remain (see Lindley et al. 2009, Cummins et al. 2008, and
NMFS 2014). As such, the habitat supporting this ESU remains in a highly degraded state and it
is unlikely that habitat quality has substantially changed since the last status review in 2010
(NMFS 2011). Overall, major habitat expansion and restoration for SR winter-run Chinook
salmon has not occurred as of this review, and because of that, the loss of historical habitat and
the degradation of remaining habitat continue to be major threats to the SR winter-run Chinook
salmon ESU.
4 The maximum amount of pollutants that a body of water can receive while still meeting water quality standards.
25
2.3.2.2 Overutilization for commercial, recreational, scientific, or educational
purposes
Ocean Harvest Impacts
SR winter-run Chinook salmon have a more southerly ocean distribution relative to other
California Chinook salmon stocks, and are primarily impacted by fisheries south of Point Arena,
California. SR winter-run Chinook salmon age-3 ocean fishery impact rate estimates for the
region south of Point Arena (an approximation of the exploitation rate) are currently available for
2000–2013, and have remained relatively stable over this time period, averaging 16% (Figure 4).
Fisheries in 2008 and 2009 were closed south of Point Arena owing to the collapse of the
Sacramento River fall-run Chinook salmon stock and insufficient data (i.e., insufficient codedwire
tag recoveries) exist for estimating a SR winter-run Chinook salmon impact rate in 2010. If
years 2008-2010 are omitted, the average age-3 impact rate is 19% (PFMC 2015).
Figure 4. Sacramento River winter-run Chinook salmon age-3 ocean impact rate south of
Point Arena for years 2000–2013. Estimates are sourced from PFMC (2015). The impact
rate could not be estimated in 2010 due to insufficient coded-wire tag recoveries.
There have been several layers of ocean salmon fishery regulations implemented to protect SR
winter-run Chinook salmon beginning in the early 1990s. For example, a substantial portion of
the SR winter-run Chinook salmon ocean harvest impacts used to occur in February and March
recreational fisheries south of Point Arena, but fisheries at that time of the year have been closed
since the early 2000s. O’Farrell and Satterthwaite (2015) hindcasted SR winter-run Chinook
salmon age-3 ocean impact rates back to 1978, extending the impact rate time series beyond the
range of years where direct estimation is possible (2000-2013). Their results suggest that there
were substantial reductions in ocean impact rates prior to 2000 and that the highest impact rates
occurred in a period between the mid-1980s and late-1990s.
0%
20%
40%
60%
80%
100%
2000 2002 2004 2006 2008 2010 2012
SRWC age-3 ocean impact rate south of
Point Arena
year
26
One component of the Reasonable and Prudent Alternative (RPA) from the 2010 Pacific Salmon
Fishery Management Plan Biological Opinion (NMFS 2010) specified that new fishery
management objectives must be established. The implementation of the RPA resulted in the
development of a harvest control rule which was first used for ocean fishery management in
2012. That harvest control rule specifies the age-3 ocean impact rate limit based on the
geometric mean number of spawners from the previous 3 years (Figure 5). The limits to the
impact rate imposed by the harvest control rule is an additional control on ocean fisheries which
still includes previously existing constraints on fishery opening and closing dates and minimum
size limits south of Point Arena. From 2012 to 2015, the SR winter-run Chinook salmon harvest
control rule has specified maximum allowable forecast impact rates ranging from 12.9% to
19.0%.
Figure 5. Current SR winter-run Chinook salmon harvest control rule (NMFS 2010).
There is no explicit cap on the age-3 impact rate if the three-year geometric mean number
of spawners exceeds 5000.
In summary, the available information indicates that, with the exception of 2008-2010 when the
ocean salmon fishery was closed or heavily restricted, the level of SR winter-run Chinook
salmon fishery impacts has not changed appreciably since the 2010 salmon and steelhead
viability assessment (Williams et al. 2011), yet there have been additional ocean fishery
regulations implemented with the purpose of reducing exploitation of SR winter-run Chinook
salmon when average population size is reduced.
Freshwater Angling Impacts
27
What little SR winter-run Chinook salmon freshwater harvest that existed historically was
essentially eliminated beginning in 2002, when Sacramento Basin Chinook salmon fishery
season openings were adjusted so that there would be little temporal overlap with the SR winterrun
Chinook salmon spawning migration and spawning period. However, early arriving fish
may still be harvested prior to January 1. Additionally, higher densities of fish in this portion of
the river may lead to higher early harvest rates. Higher densities of fish, particularly below
dams, likely create opportunities for both illegal poaching of salmon and the inadvertent or
intentional snagging of fish. In addition, the upper Sacramento River supports substantial
angling pressure for rainbow trout. Rainbow trout fishers tend to concentrate in locations and at
times where winter-run Chinook are actively spawning (and therefore concentrated and more
susceptible to impacts). By law, any SR winter-run Chinook salmon inadvertently hooked in this
section of river must be released without removing it from the water, however, SR winter-run
Chinook salmon are impacted as a result of disturbance and the process of hook-and-release.
Also, because the taking of salmon is permitted after August 1, some late spawning winter-run
Chinook salmon may be taken.
Scientific Research
For over two decades, research and monitoring activities conducted on SR winter-run Chinook
salmon have provided resource managers with a wealth of important and useful information
regarding the populations. For example, juvenile fish trapping efforts have enabled the
production of population inventories, and coded wire, passive integrated transponder (PIT), and
acoustic tagging efforts have increased the knowledge of abundance by providing information on
migration timing and survival. By issuing research authorizations, NMFS has allowed
information to be acquired that has enhanced resource managers’ abilities to make more effective
and responsible decisions to sustain populations, mitigate adverse impacts on SR winter-run
Chinook salmon, and implement recovery efforts. The resulting information has improved our
knowledge of the respective species’ life histories, specific biological requirements, genetic
make-up, migration timing, responses to human activities (positive and negative), and survival in
the rivers and ocean. And that information, as a whole, is critical to the species’ recovery.
Over the last five years, the detrimental effects (i.e. slight reductions in juvenile and adult
abundance and productivity) on SR winter-run Chinook salmon from scientific research has been
minimal and have no appreciable effect on the species’ diversity or structure. Moreover, the
actions have provided lasting benefits for the ESU and all habitat effects have been negligible.
Conclusion
Because regulatory mechanisms designed to minimize the impacts of ocean harvest, freshwater
angling, and scientific research on SR winter-run Chinook salmon are in place, it is highly
unlikely that overutilization has been a key factor limiting this ESU over the last five years.
2.3.2.3 Disease or predation
Disease
Naturally-occurring pathogens pose a greater threat to this ESU than other Central Valley
28
Chinook salmon runs since it is comprised of only a single population and its abundance is very
low. As the population abundance continues to be low or possibly even decline further the
probability increases that disease outbreak could significantly impact the remaining wild
population. Artificially-propagated Chinook salmon have been impacted by disease outbreaks at
some Central Valley hatcheries and therefore potential disease outbreaks at the LSNFH could
pose a risk to wild fish. Infection hematopoietic necrosis virus (IHNV) is commonly detected in
51-81% of SR winter-run Chinook salmon returning to LSNFH and Renibacterium
salmoninarum, the causative bacterium for bacterial kidney disease (BKD), can be detected in
SR winter-run Chinook salmon adults at low levels of infection (i.e., 3-30%) (HSRG 2014).
Despite efforts to increase the number of SR winter-run Chinook salmon used for broodstock
during 2015, pathologists from the California-Nevada Health Laboratory noted a dramatic
decline in health, and an increase in the prevalence and severity of fish pathogens in the adults
collected at Keswick Dam (Voss and True 2015). Poorer water quality, and possibly
concentration of fish pathogens in the Sacramento River and Shasta Reservoir contributed to
multiple infections in adult SR winter-run Chinook salmon with compromised immune systems
and decreased stamina, leading to a higher occurrence of pre-spawn mortality. In 2015, prespawn
mortality was 27% compared to 16% in 2014 and pre-spawn mortality levels generally
below 20% in previous years. No single clear cut infectious process appeared to be causing the
overall elevated mortality. Rather, a mix of bacterial pathogens in adults that contributed
individually, or in multiple concurrent infections, to mortality despite antibiotic therapies that
should have reduced the growth of these bacterial pathogens.
A pilot sentinel trial was conducted by the USFWS California-Nevada Fish Health Center in late
September 2015 to assess potential disease risk to wild SR winter-run Chinook salmon fry (Foott
2016). Sentinel late-fall Chinook salmon, exposed to the Sacramento River for 5 days in late
September at Balls Ferry and Red Bluff, were highly infectious with Ceratonova shasta. The
level of infectivity was sufficient to cause disease and mortality. Eighty juvenile SR winter-run
Chinook salmon were collected at the RBDD rotary screw trap between October 15 – November
19, 2015, and sampled for histological examination. C. shasta were observed in 15% of the
sample set. These infections were largely at an early stage, indicating a recent exposure to the
parasite. Fry had reared for weeks in locations with little to no C.shasta infectivity. These
observations do not support a significant role for C.shasta infection in the low egg to fry
estimates generated from the RBDD trap data in 2015. However, the disease could have
impaired survival of out-migrant SR winter-run Chinook salmon fry in 2015 as C.shasta is a
progressive disease and the early stage infections could go to a disease state over time. Future
disease surveys for the upper Sacramento River and their impact on SR winter-run Chinook
salmon are being proposed for 2016.
Predation
Predation is an ongoing threat to this ESU throughout the Sacramento River and Delta where
there are high densities of non-native (i.e., striped bass, small-mouth bass, and largemouth bass)
and native species (e.g., pikeminnow, rainbow trout) that prey on juvenile salmon. In the ocean,
and even the Delta environment, salmon are common prey for harbor seals and sea lions,
29
although the impacts on SR winter-run Chinook salmon are unknown. The presence of manmade
structures, including water diversions, in the Sacramento River and Delta contribute to
increased predation levels by altering the predator-prey dynamics that favor predatory species
(Michel personal communication 2015). In addition, the altered hydrology of the Delta due to
CVP and SWP water project operations has created favorable conditions for non-native predators
(e.g., decreased salinity, decreased turbidity, increased water clarity, etc.). While the available
data analyses have generated valuable information regarding aspects of the predation process in
the Delta, they do not provide unambiguous and comprehensive estimates of fish predation rates
on juvenile salmon nor on population-level effects for SR winter-run Chinook salmon in the
Delta (Grossman et al. 2013).
Since 2010, steps have been taken to reduce juvenile SR winter-run Chinook salmon predation in
the CVP and SWP fish collection facilities in the southern Delta, including studies on the use of
electric barriers, carbon dioxide, netting, aquatic weed control, electrofishing, a fishing incentive
program, construction of a fishing pier, refurbishment of the fish salvage release site, and the
expected completion of two additional release sites in 2017. In 2011, CDFW proposed to
modify striped bass sport fishing regulations to allow additional harvest in an effort to reduce
striped bass predation on the listed species in the Delta, however the California Fish and Game
rejected the proposed changes. In the Sacramento River, removing the gates at the RBDD yearround
since 2012 has minimized the impacts of predation at the dam. In addition, numerous
studies have been conducted and are currently being in the Central Valley to understand the
effects of predation on salmonid populations, including SR winter-run Chinook salmon. Based
on preliminary results of acoustic telemetry studies of LSNFH SR winter-run Chinook salmon
from 2013 to 2015, survival rates to the ocean varied from 5% to 12% with lowest survival
occurring in the middle Sacramento River every year (Ammann personal communication 2015).
It is assumed that much of this mortality experienced by these fish is likely due to an increase in
predators, exposure time, or the metabolic rate for predators (i.e., due to warmer water
temperatures).
Conclusion
Disease and predation are persistent problems that can adversely affect SR winter-run Chinook
salmon. New information from the USFWS and the LSNFH indicates that the threat of disease
may have increased in severity since the last status review due to the low flows and high
temperature in Sacramento River from drought conditions. And although there have been
actions to understand and reduce predation, it is unclear whether these action have substantially
decreased the overall level of predation throughout the Sacramento River and Delta.
2.3.2.4 Inadequacy of existing regulatory mechanisms
Laws relevant to the protection and restoration of SR winter-run Chinook salmon include the
ESA, the Magnuson-Stevens Fishery Conservation and Management Act, the CVPIA, the
Federal Power Act, the Fish and Wildlife Coordination Act, the Clean Water Act, the National
Environmental Policy Act, and numerous State laws administered by CDFW, DWR, or the
SWRCB. These laws and associated regulations generally provide adequate mechanisms for
30
recovering winter-run Chinook salmon (52 FR 6041, 6046; February 27, 1987); however some
of the goals of these existing mechanisms have not yet been achieved.
2.3.2.5 Other natural or manmade factors affecting its continued existence:
Artificial Propagation Programs
Captive broodstock and conservation hatchery programs were established for the SR winter-run
Chinook salmon ESU in the early 1990s. These programs were established to augment the
naturally-spawning population in the Sacramento River as well as to provide a captive
broodstock in case the natural population was unexpectedly decimated. The captive broodstock
program was discontinued in 2007 based on the increased and sustained abundance of the
natural spawning population.
Strict guidelines have been in place for the number of hatchery fish that can be spawned together
with naturally-spawning fish at LSNFH; however, the genetic integrity of the natural population
is still threatened from having passed through several population bottlenecks in the 1990s when
the population numbered less than 200 individuals. Unlike typical production-oriented hatchery
programs, the SR winter-run Chinook salmon conservation program at LSNFH does not have a
fixed annual target for juvenile production. Rather, production levels are dictated by the number
of broodstock that are collected and spawned annually, which is dependent upon the estimated
upriver escapement of SR winter-run Chinook salmon. The broodstock collection limit is 15%
of the estimated upriver escapement, with an upper limit of 120 broodstock per brood year (i.e.,
when run sizes >800). To maintain genetic diversity in the event of very low abundance, no less
than 20 SR winter-run Chinook salmon adults are collected for broodstock regardless of run size.
The typical annual production level anticipated when broodstock collections are maximized is
approximately 250,000 smolts. Along with adhering to these strict guidelines, several innovative
propagation techniques and genetic markers have been developed to guide what is considered a
very successful conservation program.
However, since 2012, California has been in the midst of one of the most severe droughts on
record and SR winter-run Chinook salmon are experiencing the consequences of low water
storage and a limited volume of cold water in Shasta Reservoir. In response to the drought
impacts, USFWS, NMFS, and CDFW decided in 2015 to reinitiate a SR winter-run Chinook
salmon Captive Broodstock Program. Together with the Conservation Hatchery Program, the
SR winter-run Chinook salmon Captive Broodstock Program is expected to increase the security
of the SR winter-run Chinook salmon ESU by rearing a captive population in a safe and secure
environment, to be available for use as hatchery broodstock in the event of a catastrophic decline
in the abundance of winter-run Chinook salmon spawners in the Sacramento River.
Furthermore, the Captive Broodstock Program will potentially be used to re-establish SR winterrun
Chinook salmon to native habitats upstream of Shasta Dam and to Battle Creek and
potentially for research purposes.
Another recent change in operations at LSNFH is the expansion of normal winter-run Chinook
salmon propagation activities for the conservation program, an emergency action that was
31
initially implemented in 2014 to partially mitigate for the continuing drought and its effects on
naturally spawning SR winter-run Chinook salmon in the Sacramento River. This multi-agency
decision was based on forecasts of precipitation and reservoir storage levels that provided a
clearer picture of environmental conditions that would be present in the Sacramento River during
SR winter-run Chinook salmon spawning, egg incubation and juvenile rearing. Elevated water
temperatures in the upper Sacramento River during the summer and fall of 2014 resulted in
extremely low survival of naturally-produced SR winter-run Chinook salmon eggs and fry.
Increased broodstock collection during 2014 allowed for the release of approximately 612,000
juvenile SR winter-run Chinook salmon, almost three times the normal production, in order to
make up for the anticipated substantial losses in natural production. A similar approach was
attempted for 2015, however LSNFH staff have clearly noted a decline in health, and increase in
prevalence and severity of fish pathogens in the adults collected at LSNFH during the past 2
years of the most extreme drought conditions. This occurrence has significantly increased the
level of pre-spawn mortality at LSNFH, reducing the potential for increased production.
This effort to increase hatchery production during 2014 and 2015 was in response to prolonged
drought conditions, and should be discontinued with improving environmental conditions and
increased in-river survival. Although this provides a near-term benefit through an overall
increase in abundance, broodstock management will be extremely important in subsequent years
to ensure that the large proportion of returning adult hatchery-origin winter-run Chinook salmon
do not negatively affect the genetic integrity (through domestication selection, etc.) of the natural
population.
Species Identification for Regulatory Purposes
Determining survival through the Delta, entrainment losses at the Delta export pumps, the
proportion of fish that enter the interior Delta, and eventual survival to the ocean, all depend on
accurate means of identification and the ability to discriminate SR winter-run Chinook salmon
from other Central Valley Chinook salmon races. Currently, monitoring and identification of
juvenile SR winter-run Chinook salmon is based on a modified length-at-date growth curve
developed was developed for the Delta, however, the growth curves are not adjusted annually for
differences in emergence timing or poor rearing conditions. As a result, there is overlap between
the individual salmon races.
Since 2010, a couple of studies have found the use of genetic identification as a more accurate
and improved way of identifying Central Valley Chinook salmon race and estimation of
population size. Harvey and Stroble (2013) compared genetic identification versus length-atdate
race assignments of juvenile Chinook salmon salvaged from the CVP and SWP pumping
operations in the south Delta. Pyper et al. (2013) estimated juvenile Chinook salmon abundance
by run assignment using genetic markers for catch in midwater trawling at the confluence of the
Sacramento and San Joaquin rivers near Chipps Island. Both studies found SR winter-run
Chinook salmon DNA assignments had the closest fit to their expected length-at-date range, with
only a few fish overlapping the adjacent late-fall run and spring-run Chinook salmon ranges.
However, relatively large numbers of fall, late-fall, and spring-run Chinook salmon overlapped
with the SR winter-run Chinook salmon length criteria. Consequently, use of DNA assignments
32
provided much more accurate, and reduced, annual estimates of run composition for SR winterrun
Chinook salmon, which were one half to one sixth of the run compositions based on lengthat-
date criteria across years at the both the salvage facilities and at Chipps Island. These studies
show that genetic tools have the potential to improve estimation of population sizes and
corresponding take of SR winter-run Chinook salmon.
Climate Change
Climate experts predict physical changes to ocean, river and stream environments along the West
Coast that include: warmer atmospheric temperatures resulting in more precipitation falling as
rain rather than snow; diminished snow pack resulting in altered stream flow volume and timing;
increased winter flooding; lower late summer flows; a continued rise in stream temperatures;
increased sea-surface temperatures; increased ocean acidity; sea-level rise; altered estuary
dynamics; changes in the timing, duration and strength of nearshore upwelling, and altered
marine and freshwater food-chain dynamics [see Williams et al. (2016) for a more detailed
discussion of these and other projected long-term impacts due to climate change]. These long-term
climate, environmental and ecosystem changes are expected, in turn, to cause changes in salmon
and steelhead distribution, behavior, growth, and survival. While an analysis of ESU/DPS-specific
vulnerabilities to climate change by life stage has not been completed, Williams et al. (2016)
summarizes climate change impacts that will likely be shared among salmon and steelhead
ESUs/DPSs. Both freshwater and marine productivity and survival tend to be lower in warmer years
for most salmon and steelhead populations considered in this assessment. These trends suggest that
many populations might decline as mean air temperature rises. However, the magnitude and timing
of these and other changes, and specific effects on individual salmon and steelhead ESUs/DPSs,
remain unclear.
Drought Conditions
California has experienced well below average precipitation in each of the past 4 water years
(2012, 2013, 2014 and 2015), record high surface air temperatures the past 2 water years (2014
and 2015), and record low snowpack in 2015. Some paleoclimate reconstructions suggest that
the drought conditions experienced over the last 4 years were the most extreme in the past 500 or
perhaps more than 1,000 years. Anomalously-high surface temperatures have made this a “hot
drought,” in which high surface air temperatures substantially amplified annual water deficits
during the period of below average precipitation.
The SR winter-run Chinook salmon ESU is highly vulnerable to drought conditions. The
combination of low precipitation and high temperatures results in less cold water available in the
Shasta reservoir to control instream water temperatures downstream in the Sacramento River.
The resulting increased in-river water temperature resulting from such drought conditions
reduces the availability of suitable holding, spawning, and rearing conditions in the Sacramento
River. The lack of cold water stored behind Shasta Dam, in combination with water release
decisions, led to a loss of stream temperature control below Shasta Dam in September 2014.
Stream temperatures that exceeded the 56°F daily average temperature limit in SR winter-run
Chinook salmon spawning areas contributed to 5.6% and 4.2% egg-to-fry survival rates to
RBDD in 2014 and 2015, respectively.
33
Ocean Conditions
Much of the northeast Pacific Ocean, including parts typically used by SR winter-run Chinook
salmon, experienced exceptionally high upper ocean temperatures beginning early in 2014 and
areas of extremely high ocean temperatures continue to cover most of the northeast Pacific
Ocean. A “warm blob” formed offshore of the Pacific Northwest region in fall 2013 (Bond et al.
2015). Off the coast of Southern and Baja California, upper ocean temperatures became
anomalously warm in spring 2014, and this warming spread to the Central California coast in
July 2014. In fall 2014, a shift in wind and ocean current patterns caused the entire northeast
Pacific domain to experience unusually warm upper ocean temperatures from the West Coast
offshore for several hundred kilometers. In spring 2015 nearshore waters from Vancouver Island
south to San Francisco mostly experienced strong and, at times, above average coastal upwelling
that created a relatively narrow band (~50 to 100 km wide) of near normal upper ocean
temperatures, while the exceptionally high temperature waters remained offshore and in coastal
regions to the south and north.
Adult SR winter-run Chinook salmon returns for WY 2016 and for the next 2 to 3 years
(depending on ocean residence times, maturing in 2015, 2016, 2017 and 2018) have likely been
negatively impacted by poor stream and ocean conditions. The 2015/16 tropical El Niño favored
a more coastally-oriented warming of the Northeast Pacific Ocean over the fall and winter that
persisted into spring 2016. Ocean migrants from brood year 2015 will likely encounter an ocean
strongly influenced by (if not dominated by) a subtropical food-web that favors poor early
marine survival for SR winter-run Chinook salmon (O’Farrell and Mantua, unpublished analysis
in prep).
Multiple dry years in a row could potentially devastate this ESU. While SR winter-run Chinook
salmon have historically been able to withstand droughts, the currently diminished habitat,
abundance, spatial structure, and diversity of the ESU, and the increased frequency and duration
of droughts predicted to occur as climate change progresses suggest that SR winter-run Chinook
salmon are likely much more vulnerable to drought today than they were historically. Prolonged
drought andshifts in the timing and/or amount of snowmelt runoff could easily render most
existing SR winter-run Chinook salmon habitat unsuitable due to elevated water temperatures.
2.4 Synthesis
The SR winter-run Chinook salmon ESU was first listed as threatened in 1989 and then
reclassified as endangered in 1994. The ESU consists of only one naturally-spawning population
that spawns in the upper Sacramento River. Critical habitat includes the entire mainstem
Sacramento River (including riparian habitat along the bank) from Keswick Dam downstream to
and including the Delta. There is no new information indicating the ESU boundary should be
changed; however, if a new population is established in Battle Creek or if the ESU is
reintroduced above Shasta Dam, the existing ESU boundary will need to be reexamined.
The Central Valley Technical Recovery Team delineated four historical independent populations
34
of this ESU. The spawning areas for three of these historical populations are above the
impassable Keswick and Shasta dams, while the fourth population (Battle Creek) is presently
unsuitable for SR winter-run Chinook salmon due to high summer water temperatures. Lindley
et al. (2007) developed viability criteria for Central Valley salmonids and, using data through
2004, found that the mainstem Sacramento River population was at low risk of extinction (see
Table 5), but that the ESU as a whole remained at a high risk of extinction because there is only
one naturally-spawning population, and it is not within its historical range.
The 2010 status review concluded that the SR winter-run Chinook salmon ESU’s poor status had
not changed from previous assessments. The ESU’s status has declined since the 2010 status
review, with the single spawning population on the mainstem Sacramento River no longer at a
low risk of extinction (Table 9). New information indicates an increased extinction risk to SR
winter-run Chinook salmon. The larger influence of the hatchery broodstock in addition to the
rate of decline in abundance over the past decade has placed the population at a moderate risk of
extinction.
Table 9. Extinction risk summary for the Sacramento River winter-run Chinook salmon
population by criteria described in Lindley et al. (2007) for the 2010 and 2015 review
periods. Overall risk to the population is determined by the highest risk score for any
criterion.
2010 Status Review 2015 Status Review
Population Size Low risk Low risk
Population Decline Low risk Moderate risk
Catastrophe, rate and effect Low risk Low risk
Hatchery Influence Low risk Moderate risk
Many of the factors originally identified as being responsible for the decline of this ESU are still
present, though in some cases they have been reduced by regulatory actions (e.g., NMFS
CVP/SWP biological opinion in 2009, an ocean harvest biological opinion in 2010, and actions
implemented under the CVPIA). Despite efforts to reduce these and other threats (e.g.,
controlling water temperatures with cold water releases, annual spawning gravel augmentation,
stabilizing mainstem flows, unimpeded fish passage at RBDD, harvest restrictions, and reduction
in Delta export pumping), the ESU has continued to decline in abundance. Harvest-related
impacts have generally remained the same as they were prior to the ocean fishery closures in
2008 and 2009 and a significantly limited fishery in 2010. Similarly, impacts from predation
have generally remained unchanged since the last status review. In contrast, impacts from
factors such as drought, diseases, and poor survival conditions have increased since the last
status review and most likely have contributed substantially to the declining abundance of the
ESU.
SR winter-run Chinook salmon abundance has declined during recent periods of unfavorable
ocean conditions (2005-06), and droughts (2007-09) and are expected to continue to be low due
35
to drought conditions in 2012-15. The low adult returns in 2011 created a potential increase in
vulnerability to a year class, yet the progeny from this cohort had relatively high survival
resulting in positive cohort replacement rate (3.5) from this numerically weak brood (Azat 2014).
Poor early life stage survival during the consecutive drought conditions (2012-2015) coupled
with potential poor ocean conditions and hatchery production practices may further impact SR
winter-run Chinook salmon survival-to-adulthood and risk of extinction. Temperature
conditions during egg development and fry emergence were suboptimal over the duration of SR
winter-run Chinook salmon rearing in 2014 and 2015 due to reduced cold water in Shasta
Reservoir for these life stages. The egg-to-fry survival estimate at RBDD for brood years 2014
and 2015 were 5.6% and 4.2%, respectively, which are significantly lower than the average of
26.4% (coefficient of variation = 37.9%) for brood years 2002-2012 measured at RBDD
(Poytress et al. 2014). Potential impacts to these cohorts would be observed in viability criteria
once adults return in 2015 and onward.
The SR winter-run Chinook salmon ESU is likely at a lower extinction risk with a sustainable
LSNFH population and naturally-spawning population than it would be with just a single
naturally-spawning population, at least in the near term. Yet, reliance on production from
LSNFH and potential introgression between natural-origin SR winter-run Chinook salmon is
increasing (Figure 2). In an attempt to prevent the loss of SR winter-run Chinook salmon
cohorts during the 2013-2015 droughts, a greater number of spawners were brought into the
LSNFH as broodstock (Figure 1). The LSNFH also produced and released three times as many
juveniles in 2014. Thus, it reasons that in years where mortality of natural-origin fish may be
particularly high and LSNFH production is significantly increased, the contribution of LSNFHorigin
fish to the returning adult spawners may elevate the overall risk of extinction of SR
winter-run Chinook salmon due to genetic impacts from LSNFH. Potential impacts would
manifest in viability criteria evaluations in escapement years 2016 and onward, unless hatchery
introgression is minimized through active adult management on the spawning grounds.
In summary, the most recent biological information suggests that the extinction risk of this ESU
has increased since the last status review largely due to extreme drought and poor ocean
conditions. The best available information on the biological status of the ESU and new threats to
the ESU indicate that its ESA classification as an endangered species is appropriate and should
be maintained. Long-term recovery of this ESU will require improved freshwater habitat
conditions, abatement of a wide range of threats, and the establishment of additional spawning
areas in Battle Creek and the McCloud River.
3.0 RESULTS
3.1 Classification Recommendation
Based on a review of the best available information, NMFS recommends that the SR winter-run
Chinook salmon ESU remain listed as an endangered species.
36
3.2 ESU Boundary and Hatchery Stocks
Available genetic and other information supports the current boundary of this ESU and,
therefore, NMFS recommends no changes in the ESU boundary. As described in Section 2.1.4,
we recommend revising the ESU listing to include the Captive Broodstock Program once it is
established in 2017, in addition to the Conservation Hatchery Program, as part of the listed SR
winter-run Chinook ESU.
4.0 RECOMMENDATIONS FOR FUTURE ACTIONS
• Re-establish SR winter run Chinook salmon in Battle Creek and the McCloud River to
their historical spawning and rearing habitats to reduce the risk of extinction of species
from lost resiliency and increased vulnerability to catastrophic events.
• Improve management of Shasta Reservoir coldwater storage in order to provide suitable
habitat temperatures for SR winter-run Chinook salmon spawning, egg incubation, fry
emergence and juvenile rearing in the Sacramento River.
• Restore floodplain habitat in the Yolo Bypass for SR winter-run Chinook salmon to
improve juvenile rearing and provide fish passage in the Yolo Bypass to reduce
migratory delays and loss from straying into agricultural diversions.
• Continue partnership and support of the Collaborative Adaptive Management Team
(CAMT) and the Salmon Scoping Team (SST); installation of barriers at Georgiana
Slough and other key junctions; improve enhanced particle tracking modeling; and realtime
salmon monitoring and water export management in the Delta.
• Alter project operations to return the Sacramento River and Delta to more ecologically
functional flow regimes and restore habitat to create an ecosystem more conducive for
native fish populations and reduce the presence of exotic species.
• Enhance SR winter-run Chinook salmon monitoring in order to reduce uncertainty in lifestage
impacts and assist in management. Specific recommendations include
incorporating genetic run identification for species identification, bolstering estimates of
juvenile abundance and cohort strength across their life history, integrating fish survival
and behavioral data with water quality monitoring, and developing and collecting data for
life history diversity, fish condition, and vital rates at multiple locations.
• Develop and implement quantitative modeling tools that link water project operations,
temperature management, and habitat restoration actions to SR winter-run Chinook
salmon population dynamics to improve our ability to make science-informed
management decisions.
37
5.0 REFERENCES
Azat, J. 2014. GrandTab 2014. California Central Valley Chinook Population Database Report.
California Department of Fish and Wildlife, Fisheries Branch.
http://www.dfg.ca.gov/fish/Resources/Chinook/CValleyAssessment.asp.
Baldwin, D. H., J. A. Spromberg, T. K. Collier, and N. L. Scholz. 2009. A Fish of Many Scales:
Extrapolating Sublethal Pesticide Exposures to the Productivity of Wild Salmon
Populations. Ecological Applications 19(8):2004-2015.
California HSRG (California Hatchery Scientific Review Group). 2012. California Hatchery
Review Report. Prepared for the US Fish and Wildlife Service and Pacific States Marine
Fisheries Commission. June 2012.
Cummins, K., C. Furey, A. Giorgi, S. Lindley, J. Nestler, and J. Shurts. 2008. Listen to the
River: An Independent Review of the CVPIA Fisheries Program.
Fisher, F. 1992. Chinook Salmon, Onchorhynchus tshawytscha, growth and occurrence in the
Sacramento – San Joaquin River System. CDFG, Inland Fisheries Division.
Foott, J.S. 2016. Parasite infection of juvenile late fall and winter-run Chinook in the Sacramento
River: September – November 2015 observations in the Balls Ferry to Red Bluff reach.
Memorandum to Interested Parties. U.S. Fish and Wildlife Service, California-Nevada
Fish Health Center, Anderson, CA. 15 January 2016.
Good, T. P., R. S. Waples, and P. Adams (editors). 2005. Updated status of federally listed ESUs
of West Coast salmon and steelhead. U.S. Department of Commerce, NOAA Technical
Memorandum NMFS-NWFSC-66.
Grossman, G.D., T. Essington, B. Johnson, J. Miller, N.E. Monsen, and T.N. Pearsons. 2013.
Effects of Fish Predation on Salmonids in the Sacramento River – San Joaquin Delta and
Associated Ecosystems. 25 September 2013.
Harvey, B., and C. Stroble. 2013. Comparison on genetic versus Delta Model Length-at-Date
race assignment for juvenile Chinook salmon at state and federal south Delta salvage
facilities. California Department of Water Resources, Division of Environmental
Services, Environmental Water Quality and Estuarine Studies, Aquatic Ecology Section.
March 2013.
HSRG (Hatchery Scientific Review Group). 2014. On the Science of Hatcheries: An updated
perspective on the role of hatcheries in salmon and steelhead management in the Pacific
Northwest. A. Appleby, H.L. Blankenship, D. Campton, K. Currens, T. Evelyn, D. Fast,
38
T. Flagg, J. Gislason, P. Kline, C. Mahnken, B. Missildine, L. Mobrand, G. Nandor, P.
Paquet, S. Patterson, L. Seeb, S. Smith, and K. Warheit. June 2014.
Johnson, R.C. and S.T. Lindley. 2016. Central Valley Recovery Domain. Pages 48 – 52 in T.H.
Williams, B.C. Spence, D.A. Boughton, R.C. Johnson, L. Crozier, N. Mantua, M.
O’Farrell, and S.T. Lindley. 2016. Viability assessment for Pacific salmon and steelhead
listed under the Endangered Species Act: Southwest. 2 February 2016 Report to National
Marine Fisheries Service – West Coast Region from Southwest Fisheries Science Center,
Fisheries Ecology Division 110 Shaffer Road, Santa Cruz, California 95060.
Killam D., M. Johnson, and R. Revnak. 2014. Chinook salmon populations of the upper
Sacramento River Basin in 2013. California Department of Fish and Wildlife, RBFO
Technical Report No. 02-2014.
Laetz, C. A., D.H. Baldwin, T.K. Collier, V. Hebert, J.D. Stark, and N. L. Scholz. 2009. The
Synergistics Toxicity of Pesticides Mixtures: Implications for Risk Assessment and the
Conservation of Endangered Pacific Salmon. Environmental Health Perspectives
117(3):348-353.
Lindley, S. T., and M. S. Mohr. 2003. Modeling the effect of striped bass (Morone saxatilis) on
the population viability of Sacramento River winter-run Chinook salmon (Oncorhynchus
tshawytscha). Fishery Bulletin 101: 321–331.
Lindley, S. T., R. S. Schick, B. P. May, J. J. Anderson, S. Greene, C. Hanson, A. Low, D.
McEwan, R. B. MacFarlane, C. Swanson, and J. G. Williams. 2004. Population Structure
of Threatened and Endangered Chinook Salmon ESUs in California's Central Valley
Basin. U.S. Department of Commerce, NOAA Technical Memorandum NOAA-TMNMFS-
SWFSC-360.
Lindley, S. T., R. S. Schick, E. Mora, P. B. Adams, J. J. Anderson, S. Greene, C. Hanson, B. P.
May, D. McEwan, R. B. MacFarlane, C. Swanson, and J. G. Williams. 2007. Framework
for Assessing Viability of Threatened and Endangered Chinook Salmon and Steelhead in
the Sacramento-San Joaquin Basin. San Francisco Estuary and Watershed Science
5(1):26.
Macneale, K. H., P.M. Kiffney, and N.L. Scholz. 2010. Pesticides, Aquatic Food Webs, and the
Conservation of Pacific Salmon. . Frontiers in Ecology and the Environment 8:475-482.
McElhany, P., M. H. Ruckelshaus, M. J. Ford, T. C. Wainwright, and E. P. Bjorkstedt. 2000.
Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units. U.S.
Department of Commerce, NOAA Technical Memorandum NMFS-NWFSC-42.
NMFS (National Marine Fisheries Service). 2003. Hatchery Broodstock Summaries and
Assessments for Chum, Coho, and Chinook Salmon and Steelhead stocks within
39
Evolutionary Significant Units listed under the Endangered Species Act. Northwest and
Southwest Fisheries Science Centers. Seattle, WA and La Jolla, CA.
NMFS (National Marine Fisheries Service). 2009. Biological and conference opinion on the
Operating Criteria and Plan (OCAP) for the long-term operations of the Central Valley
Project and State Water Project with recommendations for Essential Fish Habitat.
National Marine Fisheries Service, Southwest Region, Sacramento, CA. June 4, 2009.
NMFS (National Marine Fisheries Service). 2010. Endangered Species Act Section 7
Consultation Biological Opinion: Authorization of Ocean Salmon Fisheries Pursuant to
the Pacific Coast Salmon Fishery Management Plan and Additional Protective Measures
as it affects Sacramento River Winter Chinook Salmon. National Marine Fisheries
Service, Southwest Region, Protected Resources Division. April 30, 2010.
NMFS (National Marine Fisheries Service). 2011a. Central Valley Recovery Domain 5-Year
Review: Summary and Evaluation of Sacramento River Winter-run Chinook Salmon
ESU. National Marine Fisheries Service, Southwest Region, Long Beach, CA.
NMFS (National Marine Fisheries Service). 2011b. Endangered Species Act Section 7
Consultation Draft Conference and Biological Opinion for United States Environmental
Protection Agency Registration of 2, 4-D, Triclopyr Bee, Diuron, Linuron, Captan, and
Chlorothalonil.
NMFS (National Marine Fisheries Service). 2013. Endangered Species Act Section 7
Consultation Draft Conference and Biological Opinion for United States Environmental
Protection Agency Registrations of Pesticides Containing Diflurbenzuron, Fenbutatin
Oxide, and Propargite.
NMFS (National Marine Fisheries Service). 2014. Recovery Plan for the Evolutionarily
Significant Units of Sacramento River Winter-Run Chinook Salmon and Central Valley
Spring-Run Chinook Salmon and the Distinct Population Segment of California Central
Valley Steelhead. California Central Valley Area Office.
NMFS (National Marine Fisheries Service). 2015. Species in the Spotlight: Survive to Thrive,
Recovering Threatened and Endangered Species, FY 2013-2014 Report to Congress. U.S.
Department of Commerce, Washington DC.
O’Farrell, M.R., and W.H. Satterthwaite. 2015. Inferred historical fishing mortality rates for an
endangered population of Chinook salmon (Oncorhynchus tshawytscha) population.
Fishery Bulletin 113:341-351.
PFMC (Pacific Fishery Management Council). 2015. Preseason Report I: Stock Abundance
Analysis and Environmental Assessment Part 1 for 2015 Ocean Salmon Fishery
Regulations. (Document prepared for the Council and its advisory entities.) Pacific
40
Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, Oregon
97220-1384.
Pyper, B., T. Garrison, S. Cramer, P.L. Brandes, D.P. Jacobson, and M.A. Banks. 2013. Absolute
abundance estimates of juvenile spring-run and winter-run Chinook salmon at Chipps
Island. Delta Science of the Delta Stewardship Council. Grant Agreement Number 1094.
1 July 2013.
Scholz, N. L., E. Fleishman, I. W. L. Brown, M.L. Johnson, M.L. Brooks, C. L. Mitchelmore,
and a. D. Schlenk. 2012. A Perspective on Modern Pesticides, Pelagic Fish Declinces,
and Unknown Ecological Resilience in Highly Managed Ecosystems. Biosciences
62(4):428-434.
Spromberg, J. A. and N. L. Scholz. 2011. Estimating the Future Decline of Wild Coho Salmon
Populations Resulting from Early Spawner Die-Offs in Urbanizing Watersheds of the
Pacific Northwest, USA. Integrated Environmental Assessment and Management
7(4):648-656.
SWRCB (California State Water Resources Control Board). 2015. 2012 California Integrated
Report (Clean Water Act Section 303(d) List / 305(b) Report)
http://www.waterboards.ca.gov/water_issues/programs/tmdl/integrated2012.shtml
USBR and DWR (U.S. Bureau of Reclamation and California Department of Water Resources).
2012. Yolo Bypass salmonid habitat restoration and fish passage implementation plan:
Long-term operation of the Central Valley Project and State Water Project Biological
Opinion. Reasonable and Prudent Alternative Actions 1.6.1 and 1.7.
Voss, A. and K. True. 2015. Winter Run Chinook Salmon 2015 Annual Report. U.S. Fish and
Wildlife Service, California-Nevada Fish Health Center. Anderson, CA.
Williams, T. H., S. T. Lindley, B. C. Spence, and D. A. Boughton. 2011. Status Review Update
for Pacific Salmon and Steelhead Listed under the Endangered Species Act: Update to
January 5, 2011 Report., National Marine Fisheries Service, Southwest Fisheries Science
Center. Santa Cruz, CA.
Williams, T.H., B.C. Spence, D.A. Boughton, R.C. Johnson, L. Crozier, N. Mantua, M.
O’Farrell, and S.T. Lindley. 2016. Viability assessment for Pacific salmon and steelhead
listed under the Endangered Species Act: Southwest. 2 February 2016 Report to National
Marine Fisheries Service – West Coast Region from Southwest Fisheries Science Center,
Fisheries Ecology Division 110 Shaffer Road, Santa Cruz, California 95060.

NATIONAL MARINE FISHERIES SERVICE
5-YEAR REVIEW
CALIFORNIA CENTRAL VALLEY DOMAIN
Sacramento River Winter-run Chinook Salmon ESU
Current Classification: Endangered
Recommendation resulting from the 5-Year Review: Retain current ESA classification as
Endangered and current ESU boundary.
REGIONAL OFFICE APPROVAL:
Approve:
Maria Rea
Assistant Regional Administrator
California Central Valley Office
West Coast Region
41


Thats still atleast $8,000 (thousand dollars) per fish! -ed.


NOAA Technical Memorandum NMFS
JULY 2016
VIABILITY ASSESSMENT FOR PACIFIC SALMON
AND STEELHEAD LISTED UNDER THE
ENDANGERED SPECIES ACT: SOUTHWEST
Thomas H. Williams
Brian C. Spence
David A. Boughton
Rachel C. Johnson
Lisa G. Crozier
Nathan J. Mantua
Michael R. O’Farrell
Steven T. Lindley
NOAA-TM-NMFS-SWFSC-564
U.S.


5.1 Sacramento River Winter-run Chinook Salmon ESU
ESU Boundary Delineation
The Sacramento River Winter-run Chinook Salmon (SRWRC) ESU includes winter-run
Chinook salmon spawning in the mainstem Sacramento River below Keswick Dam and
Livingston Stone National Fish Hatchery (LSNFH). No new information suggests that the
boundary of this ESU should change or that its status as an ESU should change.
Summary of Previous Assessments
Good et al. (2005) concluded that the status of SRWRC ESU was endangered. The major
concerns of the Biological Review Team (BRT) were that there is only one extant
population, and it is outside of its historical spawning distribution in an artificially
maintained habitat that is vulnerable to drought. In the most recent assessment, Williams
et al. (2011) found that the viability of the ESU had changed little since the 2005 review
and found that it did not appear that there was a change in extinction risk.
Brief Review of TRT Documents and Previous Findings
The TRT delineated four historical independent populations of SRWRC. The spawning
areas of three of these historical populations are above the impassable Keswick and
Shasta dams, while Battle Creek (location of the fourth population) is presently
84
unsuitable for winter-run Chinook salmon due to high summer water temperatures.
Lindley et al. (2007) developed viability criteria for Central Valley salmonids,
summarized in Table 5.1. Using data through 2004, Lindley et al. (2007) found that the
mainstem Sacramento River population was at low risk of extinction. The ESU as a
whole, however, could not be considered viable because there is only one naturally
spawning population, and it is not spawning within the range of its historical spawning
habitat. An emerging concern was rising levels of LSNFH-origin fish spawning in natural
areas (mean=8%; t=10 years). However, the duration and extent of this introgression was
still consistent with a low extinction risk as of 2010.
New Data and Updated Analyses
Since the 2010 viability assessment, routine escapement data have continued to be
collected allowing viability statistics to be updated (Table 5.2). The Red Bluff Diversion
Dam (RBDD) gates were operated in the up/out position during some or all of the winterrun
immigration period since 2001, but were since removed in 2012 to provide
unimpaired salmon passage year-round which changed the ability to count SRWRC
adults at the RBDD fish ladders (NMFS 2009a). Population estimates from 2001 to
present are derived exclusively from mark-recapture estimates from carcass surveys
(Figure 5.1).
Table 5.2 shows the viability metrics for SRWRC abundance and trends in the LSNFH
and in the Sacramento River. Like many other populations of Chinook salmon in the
Central Valley, SRWRC have declined in abundance since 2005 with recent decadal lows
of 827 spawners in 2011 (Figure 5.1). Escapement in 2011 represents the lowest run size
since the construction and operation of the LSNFH in 1997. Both the current total
population size (N; LSNFH = 645; Sacramento River = 11,125) and mean population
sizes (Ŝ; LSNFH = 215; Sacramento River = 3,708) satisfy the low risk criterion (N >
2500).
However, the point estimate for the 10-year trend in run size is negative (-0.15),
suggesting a 15% per year decline in the population (Table 5.2). The slope is marginally
not different than ‘0’, yet it is clear that the population has been steadily declining rather
than increasing over the past decade. The maximum year-to-year decline in population
size has reached 67%, an increase from 38% in the previous 2010 viability assessment
(Williams et al. 2011). However, the percent decline does not exceed the catastrophic
decline criteria (>90% decline in one generation nor annual run size < 500 spawners;
Lindley et al. 2007).
These observed levels of hatchery influence exceed the low-extinction risk criteria met in
the previous viability assessment and place the genetic integrity of the population at a
moderate risk of extinction (Lindley et al. 2007). Since the beginning of hatchery
production at LSNFH in 1997, the proportion of hatchery-origin SRWRC spawning in
the river has increased (Figure 5.1). Prior to 2005, the proportion of LSNFH-origin
spawners in the river was between 5% to 10%, consistent with guidelines from the
Hatchery Scientific Review Group for conservation hatcheries (Figure 5.2; California
HSRG 2012). However, the hatchery proportion has increased since 2005 and reached
~20% in 2005, 2014 and >30% in 2012. The average over the last 12 years
85
Table 5.1. Criteria for assessing the level of extinction risk for populations of Pacific
salmonids in the Central Valley of California. Overall risk is determined by the
highest risk score for any criterion (modified from Lindley et al. 2007).
Risk of extinction
Criterion High Moderate Low
Extinction risk and
PVA
> 20% within 20 yrs > 5% within 100 yrs < 5% within 100 yrs
- or any ONE of - - or any ONE of - - or ALL of -
Population sizea Ne ≤ 50 50 < Ne ≤ 500 Ne > 500
- or - - or - - or -
N ≤ 250 250 < N ≤ 2500 N > 2500
Population decline Precipitous declineb
Chronic decline or
depressionc
No decline apparent
or probable
Catastrophe, rate, and
effectd
Order of magnitude
decline within one
generation
Smaller but
significant declinee
Not apparent
Hatchery influencef High Moderate Low
a – Census size N can be used if direct estimates of effective size Ne are not available, assuming Ne/N = 0.2.
b – Decline within last two generations to annual run size ≤ 500 spawners, or run size > 500 but declining
at ≥ 10% per year over the past 10 years. Historically small but stable population not included.
c – Run size has declined to ≤ 500, but now stable.
d – Catastrophes occurring within the last 10 years.
e – Decline < 90% but biologically significant.
f – See Figure 5.3 for assessing hatchery impacts.
Table 5.2. Viability metrics for Sacramento River Winter-run Chinook Salmon ESU
populations. Total population size (N) is estimated as the sum of estimated run sizes over
the most recent three years. The mean population size (Ŝ) is the average of the estimated
run sizes for the most recent three years. Population growth rate (or decline; 10 year
trend) is estimated from the slope of log-transformed estimated run sizes. The
catastrophic metric (Recent Decline) is the largest year-to-year decline in total population
size (N) over the most recent 10 such ratios.
Population N Ŝ 10-year trend (95% CI) Recent Decline (%)
LSNFH winter-run Chinook 645 215.0 0.102 (-0.019, 0.222) 2.7
Sacramento River winter-run
Chinook
11125 3708.3 -0.155 (-0.345, 0.034) 67.4
86
Figure 5.1. Time series of escapement for Sacramento River Winter-run Chinook Salmon
used as broodstock at Livingston Stone National Fish Hatchery and Sacramento River
mainstem spawners. Estimates for in-river spawners is the average number of adults
counted at Red Bluff Diversion Dam and the carcass survey mark-recapture estimates
(when available). Note: only mark-recapture estimates are used beginning in 2009; data
from Azat (2014).
(approximately four generations) is 13% (SD= ±8%) with the most recent generation at
20% hatchery influence, placing the population at a moderate risk of extinction (Table
5.3; Figure 5.3).
87
Figure 5.2. Percentage of in-river spawning Sacramento River Winter-run Chinook
Salmon that are of hatchery-origin; Data source: Killam 2014.
Table 5.3. Average percentage of hatchery-origin Sacramento River Winter-run Chinook
salmon spawners over a varying (cumulative) number of years. One generation (g1)
consists of the most recent three years; two generations (g2) the most recent six years;
three generations (g3) the most recent nine years; four generations (g4) the most recent
12 years. Data source: Killam 2014).
g1
generation
g2 g3 g4
Average hatchery influence
20% 15% 13% 13%
88
Harvest Impacts12
Sacramento River Winter-run Chinook Salmon (SRWRC) have a more southerly ocean
distribution relative to other California Chinook salmon stocks, and are primarily
impacted by fisheries south of Point Arena, California. Sacramento River Winter-run
Chinook Salmon age-3 ocean fishery impact rate estimates for the region south of Point
Arena (an approximation of the exploitation rate) are currently available for 2000–2013,
and have remained relatively stable over this time period, averaging 16% (Figure 5.4).
Fisheries in 2008 and 2009 were closed south of Point Arena owing to the collapse of the
Sacramento River Fall-run Chinook salmon stock and insufficient data exist for
estimating a SRWRC impact rate in 2010. If years 2008–2010 are omitted, the average
age-3 impact rate is 19% (PFMC 2015b).There have been several layers of ocean salmon
fishery regulations implemented for SRWRC beginning in the early 1990s. For example,
a substantial portion of the SRWRC ocean harvest impacts used to occur in February and
March recreational fisheries south of Point Arena, but fisheries at that time of the year
have been closed since the early 2000s. O’Farrell and Satterthwaite (2015) hindcasted
SRWRC age-3 ocean impact rates back to 1978, extending the impact rate time series
beyond the range of years where direct estimation is possible (2000–2013). Their results
suggest that there were substantial reductions in ocean impact rates prior to 2000 and that
the highest impact rates occurred in a period between the mid-1980s and late-1990s.
One component of the Reasonable and Prudent Alternative (RPA) from the 2010
Biological Opinion (NMFS 2010) specified that new fishery management objectives must
be established. The implementation of the RPA resulted in the development of a harvest
control rule which was first used for ocean fishery management in 2012. That harvest
control rule specifies reductions in the age-3 ocean impact rate when the geometric mean
number of spawners from the previous three years is reduced (Figure 5.5). The limits to
the impact rate imposed by the harvest control rule is an additional control on ocean
fisheries which still includes previously existing constraints on fishery opening and
closing dates and minimum size limits south of Point Arena. Between 2012 and 2015, the
SRWRC harvest control rule has specified maximum allowable forecast impact rates
ranging from 12.9% to 19.0%.
What little SRWRC freshwater harvest that existed was essentially eliminated beginning
in 2002 when Sacramento River Chinook salmon fishery season openings were adjusted
to reduce the temporal overlap with the SRWRC spawning migration and spawning
period.
In summary, the available information indicates that the level of SRWRC fishery impacts
has not changed appreciably since the 2010 salmon and steelhead viability assessment
(Williams et al. 2011), yet there have been additional ocean fishery regulations
implemented with the purpose of reducing exploitation of SRWRC when average
population size is reduced.
12 Harvest impacts section prepared by Michael O’Farrell
89
Figure 5.3. Percentage of hatchery-origin spawners and the resulting risk of extinction
due to hatchery introgression from different sources of strays over multiple generations
for Sacramento River Winter-run Chinook salmon. Low (green), moderate (yellow), and
high (red). Model using “best-management practices” was used in the winter-run
assessment based on the breeding protocols at the Livingston Stone National Fish
Hatchery for Sacramento River Winter-run Chinook Salmon. The group/parameter
“strays from outside of ESUs” was used to assess impacts of introgression between
Central Valley Spring- and Fall-run Chinook Salmon ESUs at the Feather River
Hatchery. Figure reproduced from Lindley et al. (2007).
90
Figure 5.4. Sacramento River Winter-run Chinook Salmon age-3 ocean impact rate
(percent) south of Point Arena, California for years 2000–2013. Estimates are sourced
from PFMC (2015b). The impact rate could not be estimated in 2010 due to insufficient
coded-wire tag recoveries.
Figure 5.5. Current Sacramento River Winter-run Chinook Salmon harvest control rule.
There is no explicit cap on the age-3 impact rate if the three-year geometric mean number
of spawners exceeds 5000.
91
Summary and Conclusions
The overall viability of Sacramento River Winter-run Chinook Salmon has declined since
the 2010 viability assessment, with the single spawning population on the mainstem
Sacramento River. New information available since Williams et al. (2011) indicates an
increased extinction risk to this ESU. The larger influence of the hatchery broodstock in
addition to the rate of decline in abundance over the past decade has placed the
population at an increased risk of extinction (Table 5.4).
The SRWRC population has declined during recent periods of unfavorable ocean
conditions (2005–2006), and droughts (2007–2009) and are expected to continue to be
low due to drought conditions in 2012–2015. The low adult returns in 2011 created a
potential increase in vulnerability to a year class, yet the progeny from this cohort had
relatively high survival resulting in a positive cohort replacement rate (3.5) from this
numerically weak cohort (Azat 2014).
Poor early life stage survival during the most recent consecutive drought years of 2012–
2015, coupled with poor ocean conditions and hatchery production practices (see Chapter
2) may further impact SRWRC survival-to-adulthood and risk of extinction. Temperature
conditions during egg development and fry emergence were suboptimal over the duration
of SRWRC rearing in 2014 and 2015 due to reduced cold water storage and subsequent
release in/from Shasta Reservoir for this life stage. The egg-to-fry survival estimate for
brood year 2014 is 5.9%, which is a significant departure from the average of 24.8% for
brood years 1996–2014 measured at RBDD (Poytress et al. 2016). Potential impacts to
these cohorts would be observed in viability criteria once adults return in 2015 and
beyond.
Water operations can influence the routing of upper Sacramento River-origin water
through agricultural fields and can create false attraction cues that cause SRWRC to
deviate from the mainstem Sacramento River migration corridor and become stranded in
agricultural fields behind flood bypass weirs. SRWRC have been observed to navigate up
the Colusa Basin Drain for 40–70 miles before being blocked at weirs delaying and/or
preventing successful migration (CALFED 2000, USFWS 2001, USBR and DWR 2012).
In 2013, 600+ stranded adult SRWRC and CVSRC were observed, with a total of 312
adults relocated to the mainstem Sacramento River or the Livingston Stone National Fish
Hatchery for use as broodstock (Killam et al. 2014). It is likely that survival for rescued
adults that were stranded in the Colusa Basin Drain was low and that not all stranded
adults were rescued. Thus, the loss of adults due to stranding prior to spawning can be
demographically costly to the population.
The SRWRC ESU is likely at a lower extinction risk with a sustainable LSNFH
population and naturally spawning population than it would be with just a single naturally
spawning population, at least in the near-term. Yet, reliance on production from LSNFH
and potential introgression between natural-origin SRWRC is increasing (Figure 5.2). In
an attempt to prevent the loss of SRWRC cohorts during the 2013–2015 prolonged
drought, a greater number of spawners were brought into the LSNFH as broodstock
(Figure 5.1). The hatchery also produced and released three times as many juveniles.
Thus, in years where mortality of natural-origin fish may be particularly high and LSNFH
production is significantly increased, the contribution of LSNFH-origin fish to the
92
Table 5.4. Summary of Sacramento River Winter-run Chinook salmon extinction risk by
population criteria described in Lindley et al. (2007) for the 2010 and 2015 review
periods. Overall risk is determined by the highest risk score for any criterion.
2010 Status Review 2015 Status Review
Population size Low risk Low risk
Population decline Low risk Moderate risk
Catastrophe, rate, and effect Low risk Low risk
Hatchery influence Low risk Moderate risk
returning adult spawners may elevate the overall risk of extinction of SRWRC due to
genetic impacts from the hatchery. Potential impacts would manifest in viability criteria
evaluations in escapement from the year 2016 and beyond, unless hatchery introgression
is minimized through active adult management on the spawning grounds. The use of
adult segregation weirs to manage gene flow between natural- and hatchery-origin fish in
rivers is commonly conducted in Oregon and Washington to minimize impacts of
hatchery fish on the genetic integrity of the overall population (HSRG 2014).
The viability of the SRWRC ESU will be improved by re-establishing winter-run
Chinook salmon in their historical spawning and rearing habitat. Projects to reintroduce
SRWRC into Battle Creek and upstream from Shasta Reservoir are in the planning
phases, and if successful, would significantly benefit SRWRC. Genetic management
plans will be critical for conserving the long-term genetic integrity of SRWRC, the
success of the reintroduction efforts, and achieving a low-extinction risk to the portion of
the population downstream Shasta Dam.
Lastly, the development and implementation of quantitative modeling tools that link
water project operations, temperature management, and habitat restoration actions to
SRWRC population dynamics will greatly improve our ability to make science-informed
management decisions (Hendrix et al. 2014; Caldwell et al. 2015).
93



  Reach and comprehend likewise the exception applicable securing exclusive rights provisions
 regarding certain matters of substantive law and procedure challenged constitutionality action
 to bring sovereignty malpractice patently without reasonable foundation or due process
 and the necessity that springs from the right vested that there inheres value and imports power
 over government appropriating private property and the duty private in nature of standing
 that does not foster excessive government.



Noble domain proper exercise to enforce comprehensive federal field preemption cause of action,
 by proper means the vehicle by which to evaluate exactions not supported by evidence or reasonable justification
 and compensation remedy for a regulatory taking that continues as long as the government agency endures
 whether substantive due process or takings, and whether money is "property."
]useful arts not being readily ascertainable by other persons.

 

Rural Utilities Service high acts over government sovereignty;
 subordination held with jurisdiction & standing to bring action
because federal money was spent wrongfully
 taking or appropriating and maintaining.


   Actual occupancy & community welfare efforts that are reasonable
 protecting value under the circumstances and promoting recognition
 by name and constitutional provision right. 


Relief from certain existing claims.
Implied action for the knowing violation of "important, non-discretionary" rules and implied remedy 

for the violation of "important, non-discretionary" rules whose violation permits aggrieved individuals 

to sue in federal court. 
Sec. 252. 
administrative practice or enforcement policy of any such agency with respect to the class to which he belongs.

 

“Like a thief in the night” made impossible on the ground “without foundation”.

TRANSFER OF FUNCTIONS                      

      Functions relating to enforcement and administration; applicability of "area of production" regulations.

The constitutional rule that "one man's junk is another's gold,"

 

"The only thing necessary for evil to triumph is for good men to do nothing." –Sir Edmund Burke

 

"My presence here is special. I am here as result of a forced bill of pain and penalty against my Life, Liberty and pursuit of Happiness."

 

I bring charges for violations of 18 USC §§ 242 and 241, and under 42 USC §§ 1988 and 1983.

satisfying the “manifest injustice” standard of Style Rule 16(e).

 

"In times of universal deceit, telling the truth will be a revolutionary act." --George Orwell

 

-CITE- 30 USC Sec. 351 -EXPCITE- TITLE 30 CHAPTER 7 -HEAD- Sec. 351. Definitions -STATUTE- As used in this chapter 'United States' includes Alaska. 'Acquired lands' or 'lands acquired by the United States' include all lands heretofore or hereafter acquired by the United States to which the 'mineral leasing laws' have not been extended, including such lands acquired under the provisions of the Act of March 1, 1911 (36 Stat. 961, 16 U.S.C., sec. 552).

 

A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and he carries his banners openly. But the traitor moves among those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government Itself. For the traitor appears not traitor, he speaks in the accents familiar to his victims and he wears their face and their garments, and he appeals to the baseness that lies deep in the hearts of all men.


He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of a city, he infects the body politic So that it can no longer resist. A murderer is less to be feared."

 

"Debt begins in Admiralty whether on land or navigable waters."


United States v. $5,372.85 United States Coin and Currency, 283 F.Supp. 904, 905-06 (S.D.N.Y. 1968)

42 USC § 1986 - Action for neglect to prevent

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

 

Corruptissima re publica plurimae leges


"When the republic is at its most corrupt the laws are most numerous"


--Publius (or Gaius) Cornelius Tacitus (ca. 56 – ca. 117) a senator and a historian of the Roman Empire.

 

'The Judicial Department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not, to the last degree important, that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? * * * I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary.' – Chief Justice Marshall, in the course of the debates of the Virginia State Convention of 1829--1830 (pp. 616, 619),

 

Comment

The Ninth Circuit has held the common law test for materiality, as reflected in the

last sentence of this instruction, is the standard to use when false statement statutes

such as 18 U.S.C. § 1001 are charged. United States v. Peterson, __ F.3d ___, 2008 WL

3388737 (9th Cir. Aug.13, 2008) (citing United States v. Gaudin, 515 U.S. 506, 509

(1995)). “The false statement need not have actually influenced the agency, and the

agency need not rely on the information in fact for it to be material.” United States v.

Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998); see also United States v. Matsumaru,

244 F.3d 1092, 1101 (9th Cir. 2001).

No mental state is required with respect to the fact that a matter is within the

jurisdiction of a federal agency, and the false statement need not be made directly to

the government agency. United States v. Green, 745 F.2d 1205, 1208-10 (9th Cir.1984).

There is no requirement that the defendant acted with the intention of influencing the

government agency. United States v. Yermian, 468 U.S. 63, 73 & n. 13 (1984). The initial

determination whether the matter is one within the jurisdiction of a department or

agency of the United States—apart from the issue of materiality—should be made by the

court as a matter of law. United States v. F.J. Vollmer & Co., Inc., 1 F.3d 1511, 1518

(7th Cir. 1993).

To make a false statement “willfully” under Section 1001, the defendant must

have the specific intent to make a false statement. Specific intent does not require evil

intent but only that the defendant act deliberately and with knowledge. United States v.

18 U.S.C. § 1001 read and learn 2 / 2

Heuer, 4 F.3d 723, 732 (9th Cir. 1993).

Materiality must be demonstrated by the government, United States v. Oren, 893

F.2d 1057, 1063 (9th Cir. 1990); United States v. Talkington, 589 F.2d 415, 416 (9th

Cir.1978), and must be submitted to the jury. Gaudin, 515 U.S. at 506. Actual reliance is

not required. Talkington, 589 F.2d at 417. The materiality test applies to each allegedly

false statement submitted to the jury. Id.

Depending on the facts in evidence, it may be appropriate to amend this

instruction with language requiring specific jury unanimity (e.g., “with all of you

agreeing as to which statement was false and material”). See Instruction 7.9 (Specific

Issue Unanimity).

Source:

http://207.41.19.15/web/sdocuments.nsf/dcf4f914455891d4882564b40001f6dc/a403f522ad2c4d3b882

564ba007d8f6b?OpenDocument

"A jury in a federal criminal case cannot convict unless it unanimously finds that

the Government has proved each element." Richardson v. United States, 526 U.S.

813, 817 (1999) (continuing criminal enterprise prosecution).

 

In 1698, Lord Holt recognized “three sorts of damages, any of which would be sufficient

ground to support this action”:

(1) The damage to a man’s fame, as if the matter whereof he is

accused be scandalous. . . . (2) [Damages] done to the person;

as where a man is put in danger to lose his life, or limb, or liberty,

which has been always allowed a good foundation of such

an action . . . . (3) [Damages] to a man’s property, as where he is

forced to expend his money in necessary charges, to acquit himself

of the crime of which he is accused . . . .8

 

“three ‘absolute rights of every Englishman’” were property, liberty,

and personal security, with liberty meaning only freedom of movement, while personal security included “‘reputation.’

 

(“The gravamen of [abuse of process] is not the wrongfulness of the prosecution, but some extortionate perversion of

lawfully initiated process to illegitimate ends.”); Keeton et al., supra note 6, § 121, at 897–98 (“[I]f the defendant prosecutes an innocent plaintiff for a crime without

reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.”)

 

In such a case, relief may be available in a federal court

under § 1983, which authorizes “constitutional torts” by creating private

rights of action against any person who, “under color of [state law],”

causes injuries by violating an individual’s federal constitutional or statutory

rights.17 Section 1983, however, “is not itself a source of substantive

rights, but a method for vindicating federal rights elsewhere conferred by

those parts of the United States Constitution and federal statutes that it

describes.”18 Therefore, in order to bring a malicious prosecution claim

under § 1983, malicious prosecution must be deemed a deprivation of a

right “secured by the Constitution.”19 This Note argues that a malicious

prosecution violates the Fourth Amendment right to be free from “unreasonable searches and seizures.”20

 

Monetary damages may be similarly available in a suit against persons acting under

color of federal law. See Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 391–97 (1971) (holding that Fourth Amendment includes right of

action against federal officials). But see Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68–70

(2001) (“In 30 years of Bivens jurisprudence we have extended its holding only twice . . . .

[W]e have consistently rejected invitations to extend Bivens . . . .”); id. at 75 (Scalia, J.,

concurring) (characterizing Bivens as “a relic” and limiting it to its precise facts); Erwin

Chemerinsky, Federal Jurisdiction § 9.1.2, at 595–96 (4th ed. 2003) (“[A] reconsideration

of Bivens may occur as the composition of the Court changes.”); Richard H. Fallon, Jr. et

al., Hart & Wechsler’s The Federal Courts and the Federal System 816–21 (5th ed. 2003)

[hereinafter Hart & Wechsler] (discussing “retrenchment” of Bivens doctrine); Matthew G.

Mazefsky, Casenote, Correctional Services Corporation v. Malesko: Unmasking the Implied

Damage Remedy, 37 U. Rich. L. Rev. 639, 654–55 (2003) (discussing whether Bivens is

dead).

18. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). 19. 42

Committee Notes on Rules—2001 Amendment

The final sentence of Rule 82 is amended to delete the reference to 28 U.S.C. §1393, which has been repealed.

Style Comment

The recommendation that the change be made without publication carries with it a recommendation that style changes not be made. Styling would carry considerable risks. The first sentence of Rule 82, for example, states that the Civil Rules do not “extend or limit the jurisdiction of the United States district courts.” That sentence is a flat lie if “jurisdiction” includes personal or quasi-in rem jurisdiction. The styling project on this rule requires publication and comment.

 Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. See McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 308.

 

“It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.” Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257, 6 Wheat. 264 (1821)

 

“However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” Rhode Island v. Massachussetts, 37 U.S. 657, 718, 9 L.Ed. 1233 (1838)

 

Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction. [John J. Joyce v. United States of America, 474 F.2d 215, 219] Joyce v. U.S., 474 F.2d 215, 219 (C.A.3 (Pa.), 1973)

 

transfusio unius creditoris in alium.

 

"A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937.

 

"Agency, or party sitting for the agency, (which would be the magistrate of a municipal court) has no authority to enforce as to any licensee unless he is acting for compensation. Such an act is highly penal in nature, and should not be construed to include anything which is not embraced within its terms. (Where) there is no charge within a complaint that the accused was employed for compensation to do the act complained of, or that the act constituted part of a contract." Schomig v. Kaiser, 189 Cal 596.

 

"When acting to enforce a statute and its subsequent amendments to the present date, the judge of the municipal court is acting as an administrative officer and not in a judicial capacity; courts in administering or enforcing statutes do not act judicially, but merely ministerially". Thompson v. Smith, 154 SE 583.

 

"A judge ceases to sit as a judicial officer because the governing principle of administrative law provides that courts are prohibited from substituting their evidence, testimony, record, arguments, and rationale for that of the agency. Additionally, courts are prohibited from substituting their judgment for that of the agency. Courts in administrative issues are prohibited from even listening to or hearing arguments, presentation, or rational." ASIS v. US, 568 F2d 284.

 

"The elementary doctrine that the constitutionality of a legislative act is open to attack only by persons whose rights are affected thereby, applies to statute relating to administrative agencies, the validity of which may not be called into question in the absence of a showing of substantial harm, actual or impending, to a legally protected interest directly resulting from the enforcement of the statute." Board of Trade v. Olson, 262 US 1; 29 ALR 2d 1051.

 

 “Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. art. I, § 8, cl. 2.

 

See United States v. 80.5 Acres of Land, 448 F.2d 980, 983 (9th Cir.1971) ( “[T]he necessity of taking or appropriating private property for public use is legislative in nature and one over which the courts lack jurisdiction.”).

 

the Uniform Trade Secrets Act defines a “trade secret” as:

[I]nformation . . . that: (i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

 

"[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking." Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008).

 

[I]n every political sovereign community there inheres necessarily the right and

the duty of guarding its own existence, and of protecting and promoting the

interests and welfare of the community at large. This power and this duty are

to be exerted not only in the highest acts of sovereignty, and in the external

relations of governments; they reach and comprehend likewise the interior

polity and relations of social life, which should be regulated with reference to

the advantage of the whole society. This power, denominated the eminent

domain of the state, is, as its name imports, paramount to all private rights

vested under the government, and these last are, by necessary implication, held

in subordination to this power, and must yield in every instance to its proper

exercise.

West River Bridge Co. v. Dix, 47 U.S. 507, 531–32 (1848). See also 1A-3 JULIUS L.

SACKMAN, NICHOLS ON EMINENT DOMAIN ' 3.01[1–2] (Matthew Bender & Company,

Inc., 3rd ed. 2006) (1982).

Eminent domain is the power of the sovereign to take property for public use,

without the owner's consent, and upon making just compensation. This

authority “springs from . . . a necessity of government,” and is considered to be

an essential attribute of sovereignty. Eminent domain authority is predicated

upon the superior right of the state over private property. It comes into being

with the establishment of the government and continues as long as the

government endures. Eminent domain authority does not require recognition

by constitutional provision, but exists in absolute and unlimited form.

(Footnotes omitted).

 

"Section 302 of the Department of Agriculture

Reorganization Act of 1994, P.L. 103-354, created the Rural Utilities Service with jurisdiction over the

rural electric, telephone, waste, and water programs formerly under REA and the Farmers Home

Administration." Id. at n.28.2.

 

The police power is reserved to the states through the Tenth Amendment to

the United States Constitution which reads, "The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

people." U.S. CONST. amend. X.

 

"The courts should not assume the role which our system assigns to Congress".

 

we do “not substitute [our] judgment for a legislature's judgment as to what constitutes a public use ‘unless the use be palpably without Midkiff, 467 U.S. at 241, 104 S.Ct. 2321 reasonable foundation.’ ”  (quoting United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 680, 16 S.Ct. 427, 40 L.Ed. 576 (1896)).

 

The arbitrary and capricious standard15 appears to derive from

both statutory and constitutional roots, although it does not appear

in the United States Constitution or most state constitutional texts.

 

Mr. Justice Brandeis' classic statement of the proposition merits reiteration ... "We

may strike down the statute ... on the ground that, in our opinion, the measure is

arbitrary, capricious or unreasonable. We have power to do this, because the due

process clause has been held by the Court applicable to matters of substantive law

as well as to matters of procedure."

 

The terms "arbitrary" and "capricious" embrace a concept which emerges from the

due process clauses of the Fifth and Fourteenth Amendments of the United States

Constitution and operates to guarantee that the acts of government will be grounded

on established legal principles and have a rational factual basis. A decision is arbitrary

or capricious when it is not supported by evidence or when there is no reasonable

justification for the decision.

Canty v. Board of Educ., 312 F. Supp. 254, 256 (S.D.N.Y. 1970) (footnote omitted and

emphasis added); see also Richardson v. Belcher, 404 U.S. 78, 84 (1971); cJ. J. NOWAK, R.

ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 490 n.57 (3d ed. 1986) (citing Van Alstyne,

Cracks in "the New Property": Adjudicative Due Process in the Administrative State, 62

CORNELL L. REV. 445, 487 (1977) (asserting that the Court has not clearly accepted the

constitutional status of the arbitrariness test».

17 "[T]here is no place in our Constitutional system for the exercise of arbitrary power."

Garfield v. United States, 211 U.S. 249, 262 (1908). This assertion is given eloquent lip service

in many cases involving judicial review of legislative administrative decision making. See, e.g.,

General Protective Comm. v. Securities & Exchange Comm'n, 346 U.S. 521 (1954); Jones v.

City of Portland, 245 U.S. 217 (1917); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803);

Bush v. Martin, 251 F. Supp. 484 (S.D. Tex. 1966).

 

On administrative "questions of law," the judicial review is far more likely to be phrased

in terms of the appropriateness of judicial substitution of judgment than in terms of arbitrariness,

raising issues that similarly turn on degrees of deference.


federal preemption can be of four types: express, conflict, obstacle, and field.  Express preemption is found where there is a statement of preemption.  Conflict preemption is present where compliance with both federal and state or local law is impossible.  Obstacle preemption occurs where the state or local law is an obstacle to the execution of federal law.  Lastly, field preemption arises where the federal government has manifested an intent, through comprehensive regulation, to occupy an entire subject matter of law.


I/UCRC: Center for Water Equipment & Policy (WEP) IAB Meeting

Mar 26 2013 8:00AM to Mar 27 2013 5:00PM Marquette University, Milwaukee, WI

This is a bi-annual meeting of the industry advisory board and center members to assess ongoing research and set priorities for new research directions.

Implication Doctrine's Implications for the Nature and Role of the Federal Courts, divining from silence an intent to create or foreclose private actions, or for that matter an intent to do anything, is admittedly an inexact science.

In addition to the security measures described below, the property owner has posted the property to discourage trespassers.

 "substantial burden,"

When a law is decided through a system of "individualized assessments," strict scrutiny applies. Id. at 884. Strict scrutiny requires the government to prove its law rests on a "compelling interest" and is narrowly tailored. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).

Through the Looking Glass of Eminent Domain:
Exploring the "Arbitrary and Capricious" Test and Substantive Rationality Review of Governmental Decisions

The establishment, after 30 years is not even willing to correct an essential test that caused the failure of the Clean Water Act.

Scientists are increasingly finding evidence that everyday chemicals, pharmaceuticals and human hormones pass right through the treatment plants and into waterways across the country.

Fixing a problem that’s a century in the making

How did we get here?

told you so

"it’s just a lot harder to make progress after you’ve eaten that low lying fruit."

Watershed Based Permitting

Getting Paid for Stewardship: An Agricultural Community Water Quality Trading Guide (PDF) (59 pp, 3.3MB,

No More 'next several years'.

No good deed goes unpunished: the CERCLA BFPP defense in the wake of Ashley II

Amy L. Edwards Author page »

In 2002 the U.S. Congress enacted the Small Business Liability Relief and Brownfields Revitalization Act (the 2002 Brownfields Amendments), offering property owners the specter of relief from the joint, strict and several liability scheme of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). It did so by adding certain Landowner Liability Protections (LLPs) under the Act: the bona fide prospective purchaser (BFPP) defense (42 U.S.C. §§ 9601(40) and 9607(r)) and the contiguous property owner (CPO) defense (42 U.S.C. § 9607(q)), and a modified “innocent landowner” defense (42 U.S.C. § 9601(35)(B)(i)(II)). The BFPP defense is particularly noteworthy because it explicitly allows a purchaser to buy land with knowledge that it is contaminated, yet have a potential defense to federal Superfund liability.1

In the intervening eight years, neither EPA nor the courts have done much to clarify the scope of the LLPs or to provide a roadmap regarding how to maximize the likelihood of qualifying for any of these protections. Now, at least one trial court has offered some guidance on the BFPP defense and, in the process, probably made these protections even more ephemeral than ever.2 In fact, the most likely outcome is more litigation between the parties as they have even more issues about which to argue.

Background of the Case

Ashley II of Charleston, LLC vs. PCS Nitrogen, Inc. et al., 2010 U.S. Dist. LEXIS 104772 (Civ. Action No. 2:05-cv-2782-MBS) (D.S.C. Oct. 13, 2010), decided by the U.S. District Court for the District of South Carolina on October 13, 2010, involved a number of cost recovery and contribution actions by current and former owners and operators of 43 acres of industrial land in Charleston, South Carolina. Phosphate fertilizer plants had operated on and near the site since the late 1880s and had caused extensive contamination, including lead, arsenic, polyaromatic hydrocarbons (PAHs) and acidic (low pH) conditions. The Environmental Protection Agency (EPA) determined that the site met the requirements for initiating a Non-Time-Critical Removal Action under the National Contingency Plan (NCP). While there are a number of interesting CERCLA issues in the case, the case is particularly noteworthy for its analysis of what might be required to qualify for the BFPP defense under the 2002 Brownfields Amendments.

Ashley II of Charleston, LLC (Ashley) was a sophisticated brownfields redevelopment company that had purchased the site shortly after passage of the 2002 Brownfields Amendments. Ashley intended to redevelop the site into a mixed-use project. It conducted a Phase I Environmental Site Assessment (ESA) prior to purchasing the Holcombe and Fair Parties’ (27.62 acres) portion of the site in 2003. Ashley promptly contacted EPA to determine whether EPA needed any “specific cooperation, assistance, access or the undertaking of any reasonable steps” on the site. EPA sent Ashley an information request in 2004, to which Ashley promptly responded. Ashley collected over 450 soil samples to characterize and delineate known environmental conditions on the site. Ashley secured the site by providing access controls (fencing, gates and “no trespassing” signs) and periodic inspections. A contractor for EPA had conducted Phase I and Phase II Remedial Investigations between 1999 and 2001, and EPA had published an initial remediation plan in October of 2005. Ashley provided access to EPA in 2007 and submitted revised remediation plans in March and October of 2008.

Ashley conducted a Phase I Environmental ESA prior to purchasing the Allwaste (2.99 acres) portion of the site in 2008. This Phase I ESA identified the concrete pads and sumps on the site as “Recognized Environmental Conditions” and observed that there was evidence of staining and cracks, prior spillage, and elevated levels of contaminants in the soil and ground water. In total, Ashley spent approximately $195,000 assessing the environmental conditions on the site and estimated that cleanup would cost approximately $8-9 million.

In June of 2008, shortly after taking title, Ashley retained a consulting firm to demolish the remaining structures on the Allwaste parcel, but did not remove the underground structures, including cement pads, sumps, trenches and underground pipes. Runoff was able to collect in these structures and, according to the court, overflow with some degree of regularity. Ashley did not retain its own consultant to evaluate the sumps until September of 2009, and that consultant concluded that the sumps were not leaking. Ashley also did not assess the contents of a debris pile that it had been aware of since 2006, or remove this debris pile which contained hazardous substances, until 2008.

As part of its agreement to acquire the site, Ashley had also agreed to release and indemnify the prior owners, the Holcombe and Fair Parties, from all environmental claims, including response costs under the Environmental Laws.3 Upon learning that EPA was considering bringing cost reimbursement claims against the Holcombe and Fair Parties, Ashley contacted EPA, saying such an action would discourage Ashley’s future development activities.

In September 2005 Ashley had sued PCS Nitrogen, Inc.,4 a prior owner/operator of the site, seeking a declaratory judgment that PCS was liable for the expected remediation costs and for Ashley’s previously incurred costs. PCS, in turn, brought contribution claims against Ashley and several former owners and operators of the site,5 claiming that they were Potentially Responsible Parties (PRPs) and had liability for the environmental conditions on the site. Several of those parties filed counterclaims or cross-claims against the other parties. The court bifurcated the case into liability and allocation phases.

The court rejected PCS’s argument that the harm was divisible or that there was a reasonable basis for apportionment of those costs under the Supreme Court’s Burlington Northern6 decision. Instead, the court used equitable factors in the contribution action to allocate those costs among the parties. The court ultimately concluded that the following parties had liability for the listed percentages of the cleanup costs at the site:

Ross (fertilizer plant owner for 60 years, 1906-1966) 45%

PCS (conducted manufacturing operations for six years)7 30%

Holcombe and Fair Parties (former owners who engaged in earthmoving) 16%

RHCE (current tenant) 1%

Allwaste (former owner) 3%

Ashley8 (current owner) 5%

City of Charleston (former right-of-way holder) 0%

Key Holdings Relating to the BFPP Defense

The court analyzed in detail whether Ashley qualified as a BFPP under the 2002 Brownfields Amendments. It concluded that Ashley had satisfied five of the eight elements9 of the defense, but had failed to satisfy the remaining three. A number of the court’s conclusions are troubling for parties hoping to qualify for the BFPP defense in the future.

Whether All Disposals Occurred Before Taking Title. The District Court concluded that “disposals” were likely to have occurred after Ashley tore down the structures on the Allwaste parcel, leaving the sumps in place and allowing them to fill with rainwater. The court appeared to be particularly troubled by the fact that Ashley did not test under the concrete pads, sumps or trench to determine if the soil beneath these structures was contaminated. Ashley attempted to offer expert testimony that no disposals had occurred, but this testimony was stricken at trial. Accordingly, the court found that Ashley had not met its burden of proof10 that no disposals had occurred after it acquired the site. In other words, the new property owner must be prepared to prove a negative – that “no disposals” occurred.

It is particularly noteworthy that the court appeared to interpret “disposals” and “releases” differently. On a separate element of the defense – whether Ashley had provided all legally required notices – Ashley’s position was that no releases of hazardous substances had occurred that would have required notice to EPA or the state environmental agency. The court agreed that the record did not establish that any releases had occurred subsequent to Ashley’s acquisition of title. Accordingly, the court concluded that Ashley had satisfied its burden of proof on this element of the defense.

Whether the Purchaser Exercised Appropriate Care. Pointing to EPA’s Common Elements Guide11 and existing case law on “due care,” the court concluded that Ashley had not satisfied the “appropriate care” element of the BFPP defense. The court appeared to be particularly troubled by the fact that Ashley had not cleaned out and filled the sumps on the Allwaste parcel when it demolished the above-ground structures, but had instead left them exposed to the elements. Ashley’s decision to test, clean and fill the sumps in 2009 came too late, according to the court, to prevent possible releases. The court was also troubled by Ashley’s failure to prevent a debris pile from accumulating, to investigate the contents of that debris pile, or to remove the debris pile for over a year. The court considered these failures to be a lack of “appropriate care.” Ashley’s failure to maintain the crushed rock on the site, which was serving as a “cap” over much of the arsenic and lead contamination, was additional evidence of the lack of “appropriate care” in the court’s view.

Whether the Purchaser Was a Potentially Responsible Party or Affiliated With a Potentially Liable Party. In the aspect of the decision that is probably most troubling, the court concluded that Ashley had not met its burden of proof that it was not a PRP or affiliated with PRPs. First, apparently ignoring the language in section 9607(r) of the statute,12 it pointed to the fact that current owners and operators of a facility are liable for response costs, and that Ashley was the current owner of a majority of the site where hazardous materials were still leaching through the soils. Second, the court determined that Ashley’s efforts to dissuade EPA from recovering response costs from the Holcombe and Fair Parties, the prior owners whom Ashley had indemnified, revealed “just the sort of affiliation Congress intended to discourage.” Ashley II, slip op., at 103. This so-called affiliation precluded application of the BFPP defense.

What the Case May Mean for Future Brownfields Transactions

While Ashley II is binding case law only in the state of South Carolina, this decision is likely to have a significant chilling effect on future brownfields transactions throughout the country. If a sophisticated brownfields developer, which cooperated fully with the EPA and state environmental agency and which responsibly investigated the condition of the property, cannot qualify for the BFPP defense, then who can? Among other things, a number of determinations made by the court need to be clarified in future decisions, EPA guidance or congressional amendments to CERCLA if the BFPP defense is ever going to provide meaningful protection to brownfields redevelopers.

“Disposal.” The Ashley II court interpreted the phrase “disposal” to mean something more than “releases” or “threatened releases” that must be reported to regulatory officials.13 Pointing to the Fourth Circuit’s decision in Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992), the court suggested that “disposal” does not have to include active involvement in dumping or placement of hazardous waste on a site, but could include spillage or leakage of the waste, or movement or dispersal of the waste. So, is passive migration of existing contamination through soil or groundwater enough to constitute “disposal”? If a broad interpretation of this phrase is upheld, in which the continued leakage or passive migration of contamination is sufficient to constitute “disposal,” then virtually no owner of a brownfields site will ever qualify for the BFPP defense. Surely, this cannot be what Congress intended when it enacted the BFPP defense.

Appropriate Care/Due Care. Despite finding earlier that no “releases” had occurred on the site after Ashley had acquired title, the court then determined that Ashley had not complied with the “appropriate care” elements of the defense. The “appropriate care” element of the defense is focused on stopping any continuing releases, preventing any threatened future releases, and preventing or limiting human, environmental or natural resource exposure to any previously released hazardous substance. In this regard, the court appears to have used the terms “disposals” and “releases” interchangeably. The court was influenced in part by the fact that Ashley’s consultant had identified the sumps and concrete pads as recognized environmental conditions (RECs). Is the REC designation (which simply means the presence or likely presence of hazardous substances or petroleum products under conditions that indicate an existing release, a past release, or a material threat of a release) now going to be enough to trigger heightened appropriate care requirements? What if the consultant had discussed these features but not designated them as a REC?

In light of the court’s broad interpretation of Ashley’s “appropriate care” obligation, it will behoove every brownfields redeveloper to examine its site carefully to determine whether there are any existing structures, waste piles or other areas of concern that may be contributing to continuing releases, threatened future releases, leakage or passive migration on the site and to address those threats promptly. While the site in question had been contaminated for more than 100 years, the court seemed particularly troubled by the fact that Ashley took a couple of years to sample, clean and fill underground sumps and to remove a debris waste pile, and that it failed to maintain the crushed rock as an adequate cover or cap on portions of the site.

The court also found that the former owners, the Holcombe and Fair Parties, had failed to exercise “due care” by waiting to put crushed stone on various parcels until those parcels had been leased, by failing to inform environmental authorities about the contamination and by failing to properly maintain certain stormwater detention ponds. Ashley II, slip op., at 88-89.

Affiliation Issue. Prospective purchasers will need to consider seriously whether they should release and indemnify a party who is clearly a PRP under CERCLA. It is not clear from the Ashley II decision whether every environmental indemnification might be considered to be proof of “affiliation” in future cases. Assuming that the mere existence of an environmental indemnity does not defeat the defense, the new owner should certainly refrain from taking any action with the regulators that might be construed as discouraging them from taking enforcement action against a PRP, even if that means that the new owner will be forced to honor an environmental indemnity that it has entered into in order to facilitate the sale.

Grading/Soil Movement. While not discussed in the sections of the opinion dealing with the BFPP defense, the court discusses elsewhere whether grading, excavating and proof rolling of contaminated soil could be sufficient to constitute “disposal,” thereby making the party engaging in those activities a PRP. The court concluded that it could. Ashley II, slip op., at 68-69. Most brownfields redevelopers will need to move potentially contaminated dirt around a site. If they do so responsibly, will this simple action be enough to void the BFPP defense? If so, virtually no one will ever qualify for the BFPP defense.

LURs/Institutional Controls. While the court concluded that Ashley had met its burden of proof on this element of the defense, it left open the question of what it means to be “in compliance with any land use restrictions” and to not impede “the effectiveness or integrity of any institutional controls.” Ashley’s environmental representative argued that there were no land use restrictions or unusual institutional controls in place on the site, and that it was in compliance with any controls that were being used. The court concluded that Ashley had met its burden of proof on this issue. This element of the defense could be more troublesome in future cases. For example, over the past couple of years, there has been a heated debate among the regulated community about the meaning of the term “land use restrictions,” and it seems reasonable to suggest that the court’s conclusion is consistent with the “narrow view” on this issue. In particular, the court did not consider the crushed stone, which constituted an engineering control on the site, to be a land use restriction.

Conclusion

Ashley II has now made it much more difficult to redevelop contaminated brownfields sites. It is clear that there are many potential pitfalls in trying to qualify for the defense, and that other PRPs and the court will probe every potential weakness in the defense. Congress, EPA and the courts should strongly consider what further guidance may be necessary to give the BFPP defense real teeth in order to satisfy its intended purpose. In the meantime, for anyone considering redevelopment of a seriously contaminated site, it would be prudent to obtain a “reasonable steps” letter from the EPA and to avoid incurring significant assessment and cleanup costs unless you are prepared to spend substantial sums litigating your entitlement to recoup those costs from the truly responsible parties.

Strategic Sourcing: Improved and expanded use (could save billions).

28. Precious Metals Primary Forms

43. Maintenance, Repair or Alteration of Real Property: Miscellaneous Buildings

45. Other Research and Development: Applied Research and Exploratory Development

49. Other Research and Development: Basic Research

50. Maintenance Repair and Rebuilding of Equipment: Communication, Detection and Coherent Radiation Equipment

Consent decree is unfair, inadequate, & unreasonable. Unmistakable existence of collusion, fraud, & tortious conduct aimed to injure the interests of non-settling defendants, and compounding the injury to the nation and the environment.

Stimulating Research Related to the Science of Broadening Participation

Jurisdictional Failings

Ed Rivera  on Article III courts

United States District Court = Administrative Article I (legislative)
or
Article IV (territorial) court

District Court of the United States = Article III (judicial) court

Brief on jurisdiction located  HERE

Federal vs. National  Federal vs. National

Jurisdiction Over Federal  Areas Within the States

Howard Freeman: JURISDICTION

Seven Elements Of Jurisdiction

40 U.S.C.A. 3112 Federal jurisdiction:  40 U.S.C.A. § 3112
(Formerly cited as 40 USCA § 255)

FEDERAL JURISDICTION    (alternative site)
JURISDICTION CASES:
SUPREME COURT
CIRCUIT COURT
STATE
Unmistakable indications of intent to take site & intent to use site & intent to take agency & site authority
Otherwise indicated appropriate overwhelming overlying priority emergent rights. Factor's objective:

Greater Stakeholder Involvement

Many stakeholders know how the current process for developing and applying risk assessments lacks credibility and transparency. That is because of failure to involve stakeholders adequately as active participants at appropriate points in the risk-assessment and decision-making process rather than as passive recipients of the results. Risk assessment has become the dominant public policy tool for making choices based on limited resources to protect public health and the environment.

We all know how important it is to not just know what your local hazards and risks are but to also practice what to do in the event of an emergency....


Nearly 11 million children in the developing world will have died this year from causes related to malnutrition. Hunger is the world's number one health risk, killing more people every year than AIDS, malaria and tuberculosis combined.

Merry Christmas, Happy New Year.

"The alarm bells are going off all over the place," "We are in a crisis and treating it like a process where we can dither away forever." Alden Meyer, the Union of Concerned Scientists

The U.S. National Science and Technology Council Subcommittee on Disaster Reduction (SDR) publication Grand Challenges for Disaster Reduction includes a set of Implementation Plans for various natural hazards, which provide further definitions and descriptions of these hazards. Research projects related to these hazards are among, but not limited to, those that would fit in the scope of Hazards SEES:

Coastal Inundation (http://www.sdr.gov/docs/185820_Coastal_FINAL.pdf)

Drought (http://www.sdr.gov/docs/185820_Drought_FINAL.pdf)

Earthquake (http://www.sdr.gov/docs/185820_Earthquake_FINAL.pdf)

Flood (http://www.sdr.gov/docs/185820_Flood_FINAL.pdf)

Heat Wave (http://www.sdr.gov/docs/185820_Heatwave_FINAL.pdf)

Hurricane (http://www.sdr.gov/docs/185820_Hurricane_FINAL.pdf)

Landslide and Debris Flow (http://www.sdr.gov/docs/185820_Landslide_FINAL.pdf)

Space Weather (http://www.sdr.gov/docs/185820_Space_FINAL.pdf)

Tornado (http://www.sdr.gov/docs/185820_Tornado_FINAL.pdf)

Tsunami (http://www.sdr.gov/docs/185820_Tsunami_FINAL.pdf)

Volcano (http://www.sdr.gov/docs/185820_Volcano_FINAL.pdf)

Wildland Fire (http://www.sdr.gov/docs/185820_Wildfire_FINAL.pdf)

Winter Storm (http://www.sdr.gov/docs/185820_Winter_FINAL.pdf)

severe storm


Tributary named in honor of the “offerings of Christ.”

The only entry missing from Spanish army officer Jose Gabriel Maraga’s diary, which was kept from Sept. 25 through Oct. 23, 1808, was the entry for Oct. 8 – the day that he "discovered" the Sacramento River.

Notwithstanding any provision of the SOW, the United States and the State retain all of their access authorities and rights, as well as all of their rights to require land/water use restrictions, including enforcement authorities related thereto, under CERCLA, RCRA, and any other applicable federal or State law, statutes, or regulations.  (NONE!)
Iron Mountain Mines is currently seeking an earthen dam hazardous waste containment expert on the siting of class A and B disposal cells in FEMA zone D,E,F, seismic locations within 1 mile to directly upon known active faults.
With a particular focus on the arranger liability FAILING Applicable or Relevant and Appropriate Requirements 
(Void for vagueness & illegitimate animus; bill of attainder crime of infamy ex post facto law. abolish CERCLA.)
If there were ever a time for Congress to step in and resolve this issue once and for all, it is now.

The term "United States", when used in its territorial meaning, encompasses the areas of land defined in Article I, Section 8, Clause 17 (1:8:17) and 4:3:2, nothing more. In this respect, the "United States" is a separate Nation which is foreign with respect to the States united by and under the Constitution, because the "United States" as such has never applied for admission to the Union of States known as the "United States of America". Accordingly, statutory "citizens of the United States" who are "subject to the jurisdiction thereof" are defined in the wording of the so called 14th Amendment and of The Civil Rights Acts. At best, this so-called Amendment is a "private Act" rather than a public act which designates a class of people who are unique to the territorial jurisdiction of the District of Columbia, the Federal Territories and Possessions, and the land which has been ceded by the Legislatures of the 50 States to the foreign nation-state of the "United States" for forts, magazines, arsenals, dock-yards and "other needful buildings" (see 1:8:17 and 4:3:2)

CHAPTER 62, 1871
16 United States Statutes at Large 419
FORTY FIRST CONGRESS SESSION III.
CHAPTER 62, 1871 CHAP. LXII. --
An act to provide a Government for the District of Columbia.

Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia, by which name it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal, and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.

Title 5 U.S.C. §556(d)
"When jurisdiction is challenged the burden of proof is on the government."

"No sanction can be imposed absent proof of jurisdiction."
"Once challenged, jurisdiction cannot be ´assumed´, it must be proved to exist!"
Stanard v. Olesen, 74 S.Ct. 768

"The law requires PROOF OF JURISDICTION to appear on the Record of the administrative agency and all administrative proceedings." Hagans v. Lavine, 415 U.S. 533

Setting targets: Senior leadership to facilitate change “in the light of the character and value of the property involved.”

Suppose you were an idiot – and suppose you were a member of Congress. But I repeat myself –Will Rogers

Ripening Across the Country

Prohibition times-up!
Is there buzz in your community?

Taking a little bit too much time to stand up and "take responsibility as arranger of this mess." 

It's not easy to manage a Superfund site, but it's also not a piece of cake to own or lease

Suggestions for other defendants with expectations for the elusive benefits of CERCLA.

sure?
Liability under CERCLA, (otherwise known as the Superfund statute) is strict. Divisibility offered hope,
but the lower courts have been reluctant to adopt it. Both defendants and their insurers are wondering why?
(REQUEST FOR A ROLL OF COMMON SENSE ISSUE?)
Justice Thomas in U.S. v. Atlantic Research Corp. stated "[w]e assume without deciding that § 107(a) provides for joint and several liability.” The Supreme Court and many other judicial bodies have repeatedly stated that if Congress has deleted a proposal for a particular rule or remedy, and did so as a part of a legislative compromise, that deletion should be recognized and given effect by the courts. So far this rule of statutory construction has been disregarded.

River wrangles unresolved: Leadership Disaster


“[t]he Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

Every time water washes over hard surfaces, it picks up pollutants. Even an area the size of the average homeowner’s roof contributes about 35,000 gallons of runoff each year in the Northwest. And that runoff ends up in the nearest waterway — not the nearest water treatment facility.

“Approximately 50 percent of the region believes that stormwater is treated, is captured and conveyed to a treatment plant of some type. When in fact, this doesn’t take place. Nearly all of this water goes off totally untreated,” says Giles Pettifor, who is part of the municipal stormwater permit team for King County’s Department of Natural Resources and Parks.

How did we get here?

Pettifor explains that we have to remember that governments didn’t require effective stormwater controls on development until 1990, after amendments were made in 1987 to the Clean Water Act.

“If you look at regional development, about two thirds of the region was developed prior to that time period,” Pettifor says. “So the vast majority of the land surface around here has no controls on it.”

Clean Water: The Next Act - A Radio Special

Dec. 27, 2012 | EarthFix

Meet Colin Bailey. He is the executive director of Environmental Justice Coalition for Water. He took EarthFix’s Ashley Ahearn to the confluence of the Sacramento and American Rivers to talk about the Clean Water Act and environmental justice. “Without the Clean Water Act there’s no doubt that we would not be as effective in our work,” he says. “It is an important tool for the communities that we serve.”

Related Links:

Clean Water Act’s Anti-Pollution Goals Prove Elusive

July 18, 2012 | EarthFix/InvestigateWest

For at least the last four years, this automobile shredder and metal recycler has dumped more pollutants into the river than allowed under the federal Clean Water Act, government records show. The levels have ranged higher than 250 times above what’s known to harm salmon that migrate through the river.

The Seattle Iron & Metals story is emblematic of widespread failures in the nation’s efforts to end the toxic pollution that modern life has unleashed on America’s rivers, lakes and bays. The Clean Water Act, passed by a large bipartisan majority of Congress 40 years ago, was intended to eliminate water pollution by 1985. Congress declared: “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 

Yet in the Pacific Northwest, as across the nation, the Clean Water Act has fallen far short of its goals. A majority of Northwest waterways fail to meet federally approved water-quality standards. An investigation by EarthFix and InvestigateWest reveals: 

  • Whole categories of polluters are effectively exempt from penalties when they dump pollutants illegally. This affects thousands of facilities. 

  • Violations of the Clean Water Act in the Northwest occur routinely, yet citations and financial penalties are relatively rare.  

  • Government bodies are among the most prolific violators, especially those that manage aging sewage-treatment plants and stormwater pipes that dump polluted rainwater runoff directly into waterways. 

IMPAIRED WATERS

Partially as a result of lax enforcement, large proportions of Pacific Northwest waterways violate water quality standards set under the Clean Water Act. These waterways, deemed “impaired,” are unfit for their intended uses, including swimming, fishing, drinking, boating and giving a place to live to fish and wild animals.  In Washington, about 80 percent of tested rivers and streams are impaired. That figure is 67 percent in Oregon and 55 percent in Idaho. Nationwide the figure is estimated at nearly 40 percent.

And these are the only the waters that have been tested. None of the states in the Pacific Northwest has fully checked out all their waterways. 

According to the latest figures available from EPA, Washington has fully assessed only 3 percent of its rivers and streams. Oregon has evaluated 40 percent of its rivers and streams, and Idaho has appraised 60 percent.  (Because the states have different systems for judging what constitutes a full assessment of a waterway, those numbers are not directly comparable.)

Failure to assess waterways matters. The quality of a body of water is used to determine how much pollution it can handle: the cleaner a body of water, the more likely additional pollution can be allowed. 

These pollution assessments are used to set the discharge limits for companies like Seattle Iron & Metals, and for cities and others holding permits permit to discharge pollution.

In a recent interview with EarthFix, the EPA’s top administrator, Lisa Jackson, said lack of assessment remains an issue nationally. One-third of the nation’s waterways that are supposed to be “fishable and swimmable” are not, she said. 

“And that’s just a third of the ones we know about,” Jackson said. “We don’t assess all our waters.”

Cities And Towns Still Struggle To Control Sewage 40 Years After The Clean Water Act

Oct. 2, 2012 | EarthFix

To help communities build and upgrade wastewater collection and treatment systems in the years after the Clean Water Act’s passage, the federal government handed out billions of dollars in grants. But most of those federal grants are gone, replaced by loans. At the same time, those federally subsidized municipal wastewater systems have aged.

When wastewater treatment plants fail, the environment takes the hit, and so do the people who want to use public waters for drinking water, food or recreation. 

These days, local governments’ budgets won’t cover the improvements needed to control pollution discharges. Many are coping with: 

  • Aging sewer lines
  • Aging or under-capacity wastewater treatment plants
  • Proper plant operation and maintenance
  • New water quality regulations
  • A lack of financial resources

State and federal records show that Washington’s 223 cities racked up more than 1,500 pollution discharge violations in the past two years. Idaho’s 124 cities tallied more than 1,700 in the past three years. Comparable data are not readily available for Oregon, but its 49 largest cities had at least 150 discharge violations during the past three years. 

Big city issues

Over the past several decades, metro areas like Portland and Seattle have spent billions of dollars trying to get their sewage under control. Many of their problems have been linked to combined sewer overflows, or CSOs. 

The overflows are a function of sewers built decades ago to carry both sewage and stormwater. When heavy rains fall, the sudden surge of water can overpower the system and send raw sewage directly into the surface water. That worked well until about the 1950s, when people decided it wasn’t a good idea to send raw sewage into their rivers and streams.

Fixing CSOs has been an expensive undertaking.

Federal level realities

The federal government recognized the problems small communities were having meeting their wastewater pollution permits long ago. In 1992, the U.S. General Accounting Office reviewed the outcomes of making the federal grant program a revolving loan program. The GAO report concluded that the loan program:

  • “will not generate nearly enough funds to close the tremendous gap between wastewater treatment needs and available resources.”
  • will pose particular problems for small communities, many of whom cannot repay loans at any interest rate and have difficulty competing with larger communities for loans.

In 2009, the U.S. Environmental Protection Agency estimated the gap between future needs and current spending on wastewater infrastructure of $150 billion to $400 billion for the entire country. The same year, the American Society of Civil Engineers gave the nation a “D-“ for its wastewater infrastructure.

Polluting The Water With Toothpaste, Shampoo, And Drugs

Sept. 12, 2012 | OPB

There are 126 toxic chemicals on the Clean Water Act priority pollutant list. But not a single pollutant has been added to that list since 1977.

So there are no legal limits for most of the household chemicals that are showing up in the water today. Most of them haven’t been studied enough to know how much is too much to put in a waterway.

EPA is actually required to regulate all pollutants under the Clean Water Act – even the ones that aren’t on the priority pollutant list. But the agency has been slow to act on that part of the law.

How We Got Into Such A Mess With Stormwater

Oct. 17, 2012 | KCTS9

Stormwater is a toxic cocktail of sediment, grease, road grime, tire wear and any litter small enough to slip into storm drains.

And that’s just what can be seen. There’s much more.

Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff. There’s also oil and petroleum-based hydrocarbons. Fertilizers and pesticides also wash off lawns and into waterways. Even pet excrement contributes a significant amount of bacteria to urban creeks and streams.

Thursday marks the 40th anniversary of the Clean Water Act. When it first took effect, stormwater pollution was not the top priority. What’s known as “point source pollution” — dumping of toxic pollutants from a particular, often industrial site — was the first focus. But in the decades since, stormwater pollution, also known as “non-point source pollution,” has taken the lead when it comes to carrying the most contaminants to U.S. waterways.

Stormwater is a toxic cocktail of sediment, grease, road grime, tire wear and any litter small enough to slip into storm drains.

And that’s just what can be seen. There’s much more.

Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff. There’s also oil and petroleum-based hydrocarbons. Fertilizers and pesticides also wash off lawns and into waterways. Even pet excrement contributes a significant amount of bacteria to urban creeks and streams.

Thursday marks the 40th anniversary of the Clean Water Act. When it first took effect, stormwater pollution was not the top priority. What’s known as “point source pollution” — dumping of toxic pollutants from a particular, often industrial site — was the first focus. But in the decades since, stormwater pollution, also known as “non-point source pollution,” has taken the lead when it comes to carrying the most contaminants to U.S. waterways.

Clean Water Act’s Anti-Pollution Goals Prove Elusive

July 18, 2012 | EarthFix/InvestigateWest
Much of the pollution on Seattle's Duwamish River comes from decades ago, but Seattle Iron and Metal, a metal recycler, is one of the ongoing present-day polluters of the river. | credit: Katie Campbell | rollover image for more

CWA series logo 500px w description

Beside Seattle’s notoriously polluted Duwamish River, an excavator scoops up small pieces of waste metal and slings them onto a rusty mountain at Seattle Iron & Metals Corp.  A pile of flattened cars and trucks squats nearby amid vast sheets of scrap metal.

For at least the last four years, this automobile shredder and metal recycler has dumped more pollutants into the river than allowed under the federal Clean Water Act, government records show. The levels have ranged higher than 250 times above what’s known to harm salmon that migrate through the river. 

The company, which declined to comment for this story, has reported its violations to the government, as required by law. But instead of punishing the metal recycler, the Washington Department of Ecology encouraged the company to reduce its pollution levels.  The agency also searched for a legal way to make Seattle Iron & Metals’ pollution limits more lenient, and says it plans to relax them soon.

The Seattle Iron & Metals story is emblematic of widespread failures in the nation’s efforts to end the toxic pollution that modern life has unleashed on America’s rivers, lakes and bays. The Clean Water Act, passed by a large bipartisan majority of Congress 40 years ago, was intended to eliminate water pollution by 1985. Congress declared: “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.” 

Yet in the Pacific Northwest, as across the nation, the Clean Water Act has fallen far short of its goals. A majority of Northwest waterways fail to meet federally approved water-quality standards. An investigation by EarthFix and InvestigateWest reveals: 

  • Whole categories of polluters are effectively exempt from penalties when they dump pollutants illegally. This affects thousands of facilities. 

  • Violations of the Clean Water Act in the Northwest occur routinely, yet citations and financial penalties are relatively rare.  

  • Government bodies are among the most prolific violators, especially those that manage aging sewage-treatment plants and stormwater pipes that dump polluted rainwater runoff directly into waterways. 

The U.S. Environmental Protection Agency, which is ultimately responsible for enforcing the Clean Water Act, has handed over that responsibility to 46 of the 50 states, including Washington and Oregon. In Idaho, the EPA handles that job. 

(Ashley Ahearn from EarthFix/KUOW reports from the Duwamish River.)

IMPAIRED WATERS

Partially as a result of lax enforcement, large proportions of Pacific Northwest waterways violate water quality standards set under the Clean Water Act. These waterways, deemed “impaired,” are unfit for their intended uses, including swimming, fishing, drinking, boating and giving a place to live to fish and wild animals.  In Washington, about 80 percent of tested rivers and streams are impaired. That figure is 67 percent in Oregon and 55 percent in Idaho. Nationwide the figure is estimated at nearly 40 percent.

And these are the only the waters that have been tested. None of the states in the Pacific Northwest has fully checked out all their waterways. 

According to the latest figures available from EPA, Washington has fully assessed only 3 percent of its rivers and streams. Oregon has evaluated 40 percent of its rivers and streams, and Idaho has appraised 60 percent.  (Because the states have different systems for judging what constitutes a full assessment of a waterway, those numbers are not directly comparable.)

Failure to assess waterways matters. The quality of a body of water is used to determine how much pollution it can handle: the cleaner a body of water, the more likely additional pollution can be allowed. 

These pollution assessments are used to set the discharge limits for companies like Seattle Iron & Metals, and for cities and others holding permits permit to discharge pollution.

In a recent interview with EarthFix, the EPA’s top administrator, Lisa Jackson, said lack of assessment remains an issue nationally. One-third of the nation’s waterways that are supposed to be “fishable and swimmable” are not, she said. 

“And that’s just a third of the ones we know about,” Jackson said. “We don’t assess all our waters.” 


(EPA Administrator Lisa Jackson in a May 4 interview with Bonnie Stewart of EarthFix/OPB.)

LICENSES TO POLLUTE

Ecotrope

CProfita1MichaelClapp_web_face0

OPB’s Cassandra Profita is busy this summer blogging about water in the Northwest. Keep up with her and all her findings at Ecotrope’s Clean Water: The Next Act.

Instead of ending pollution by 1985, as Congress envisioned, the Clean Water Act has evolved into a system that makes it legal to pollute. 

It didn’t start out that way. In the two decades that followed the law’s passage, it curtailed the worst toxic pollution of industry and government. “The water quality in Idaho – and this is true nationally – is way better,” said Justin Hayes, program director of the Idaho Conservation League.  “The Clean Water Act has had amazing beneficial impacts.”

In Oregon, regulators point to extensive water quality improvements for the Willamette and Tualatin rivers. The Willamette, once so fouled by industrial wastes that it became a Superfund site, has been cleaned up enough that this weekend it will be the site of the annual Portland Bridge Swim, a race that passes under all 11 bridges over the river in the city.

“Do we have fishable and swimmable waters everywhere that was set in the goal? Well, not everywhere. But we certainly have improved our water bodies a lot,” said Dick Pedersen, director of Oregon’s Department of Environmental Quality. “… But we still have a long way to go.”

Here’s how the Clean Water Act was supposed to work: Each polluter gets a permit – a legal right to dump wastewater with set concentrations of pollutants. Then, every five years when the permit has to be renewed, lower pollution limits made possible by updated technologies were supposed to kick in. Eventually, pollution would be eliminated. 

“Well, that turned out to be not feasible, or possible or practical,” Pedersen said.   Four decades later, Pedersen’s department and regulators in other states are having trouble simply keeping up with permit renewal cycles, which means dischargers continue to pollute based on out-of-date permits. 

According to an Oregon DEQ report, for example, more than two-fifths of polluters were operating on out-of-date permits at the end of 2011.

Clean Water Act Violators: 2009-2012

CWA violators map legend

POLLUTERS ESCAPE SCRUTINY

Not only are hundreds of permits out of date in the Pacific Northwest, some categories of polluters aren’t even monitored for violations. 

Regulators in Oregon have stopped reviewing some reports that companies and institutions have to file detailing the levels of pollution in their discharges. These reports are supposed to alert regulators to violations.

A lack of resources has affected the ability of regulators to adequately review all discharge reports, DEQ’s Pedersen said. “So we have to triage and prioritize what we do with the fewer staff that we have.” 

EarthFix Poll: Does Clean Water Matter?

A new public opinion poll finds that water quality ranks as Northwesterners’ top environmental concern. Davis, Hibbitts & Midghall Research asked 1,200 residents in Washington, Idaho and Oregon about their environmental concerns. Sixty percent said they worried about drinking water. Continue reading…

In the agency’s northwest office, the loss of one worker left the equivalent of 3.5 full-time employees to review the discharge reports for more than 1,600 pollution permits. The same 3.5 employees also have to develop new permits, renew expiring permits, conduct on-site inspections and write and follow through on enforcement actions. 

As a result of the staff loss, regulators in that office quit reviewing the discharge reports filed by 163 permit holders. Those included vineyards, fisheries and the sewage treatment plants of a few small cities. 

Similar staffing issues have stymied Washington’s Ecology Department enforcement efforts. Two years ago it stopped pursuing violations that come to light in discharge reports covered by certain classes of pollution permits, said Nancy Kmet, an Ecology environmental engineer.  

The polluters who are getting a free pass include boatyards, gravel miners, fruit packers and industrial facilities of various stripes – more than 4,400 companies, Ecology records indicate. 

“We don’t have the staff to address thousands of violations,” Kmet said. “We do the best we can.” 

PERMIT VIOLATIONS

Even when regulators do flag polluters who are violating their permits, government databases indicate they seldom face fines or enforcement action.  Over the last 3½ years in Washington, only 55, or about 10 percent, of the 572 polluters who reported dumping in excess of legal limits faced formal enforcement action, and just 6 percent faced fines, records show. In Idaho, the figures were 20 percent and 11 percent.

Comparable figures aren’t readily available in Oregon because of the state’s lack of computerized records.  However, information is available about how polluters classified as “major” compare in the three states. According to the EPA’s Environmental Compliance History Online database and Washington’s Permit and Reporting Information System:

  • In Oregon, 64 percent of the facilities reported violating limits on how much they could dump, but no more than 18 percent faced formal enforcement action such as an administrative order or a fine. 

  • In Idaho, 52 percent of the polluters violated their permits, but no more than 22 percent faced binding enforcement action. 

  • In Washington, 74 percent violated the permits but only 18 percent faced binding enforcement action.

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State regulators say they are too short-staffed to go after every violation – and that they don’t want to move immediately to punitive measures when a more collaborative approach can bring many polluters into line.

“You can fine them a whole bunch of money. Another way is you can work with them and try to bring them into compliance,” Pedersen said. 

VIOLATIONS IGNORED

The EPA has called states out for poor enforcement.  The federal agency’s inspector general reported in December, 2011 that state enforcement programs for the Clean Water Act and two other environmental laws “are underperforming,” remarking “performance is low across the board.”

“Noncompliance is high and the level of enforcement is low,” inspectors reported. “EPA does not consistently hold states accountable for meeting enforcement standards, has not set clear and consistent national benchmarks, and does not act effectively to curtail weak and inconsistent enforcement by states.”

It’s a nationwide problem, affecting even major polluters classified as being “significant non-compliers.”  In a 2007 report, EPA auditors who reviewed 44 of the approximately 3,600 major factories, sewage-treatment plants and other facilities regulated under the Clean Water Act nationwide found long delays in enforcement over a three-year period. That tiny fraction of the nation’s polluters dumped 51 million pounds more pollutants than allowed under the law over the three-year period, the EPA Inspector General reported. 

In the Northwest, “We are having no trouble finding people in gross violation of their permits,” said Chris Wilke, executive director of the Puget Soundkeeper Alliance. “You pull 20 files and you may easily find five or ten that are in violation.”

Chris Wilke
Chris Wilke (credit: Katie Campbell)

Wilke’s Seattle-based environmental group files lawsuits against polluters alleging violations of the Clean Water Act. Last week it sued Seattle Iron & Metals Corp. 

Beyond these suits to enforce the Clean Water Act on specific polluters, environmentalists also have  repeatedly and successfully filed broader lawsuits in all three states claiming that the government is failing to carry out the law. Such suits have forced states to adopt stricter water-quality standards and to mandate clean-up plans, for example. But even those changes have not been enough to bring pollution under control.

State regulators know there are problems. 

Over the last two decades Washington’s Department of Ecology has been getting more money and staff for its water-quality division, with its budget nearly tripling since 1994. However, over the same period, the number of permits under its watch has greatly increased.

Those budget increases also came with additional responsibilities, including a lot of emphasis on controlling polluted rainwater runoff, said Don Seeberger, deputy program manager of Ecology’s water-quality division. Yet the agency is partly dependent on the very businesses that it regulates.  Permit fees help fund government oversight, and those fees drop when recessions hit. 

“We know that the more inspections you do, the better the compliance with the regulations,” Seeberger said. “It’s not whether we have the work. It’s whether we have the money.”   Understaffing is not the only factor driving the underenforcement noted by EPA inspectors, though.

Even with all the staffers he could want, “I think it would be a mistake to go after every single violation, at least until you understand the violation,” said Kelly Susewind, manager of the Washington Ecology Department’s clean-water program.

Susewind said the agency will start going after violations of dumping permits identified in the discharge reports at some point. When? “I can’t give you a date, but it’s not far in the future,” he said. Pressed for a time frame, Susewind said, “The next few years.”

THE TOLERANT APPROACH

Instead of using their punitive enforcement tools right away, both Oregon and Washington have chosen a friendlier path.

Susewind said the reason relatively few Clean Water Act violators face fines or other enforcement actions is that regulators have opted to first offer violators technical assistance.  Next comes what the agency calls education. And if that doesn’t work, a lawbreaker may get a nasty letter from the agency, classified as an “informal enforcement action.” 

Only a small number of facilities require formal enforcement efforts, Susewind said. That means issuing a citation, and possibly a fine.  But Ecology really doesn’t want to see that happen, he said, because most polluters want to do the right thing.

While a violation is ongoing, Ecology tries to “understand the circumstances that led to that (violation),” Susewind said. “Sometimes it’s something that’s beyond someone’s control.  Is it something they’ve corrected that we’re confident won’t happen again? 

“If it’s an ongoing violation, are they taking all the steps necessary to eliminate it? And if they aren’t complying and aren’t on a path to comply, then we step to our next resort, which is formal penalties.”

Oregon regulators have adopted a similar philosophy, first working with permit holders to help them comply with their limits. But in cases where the permit holders know what to do, that changes.

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“If it’s just poor operation and not meeting conditions, then I don’t think we should have a whole lot of patience on that at all,” Pedersen said. 

John Ledger, vice president of Associated Oregon Industries, said Oregon’s enforcement process is not unreasonable. Regulators go through a long series of decisions before taking action, he said.

“Willful violations are looked at askance by everybody,” he said. “It’s just like driving a car, he said. No one likes a reckless driver.” 

GOVERNMENT IS PART OF THE PROBLEM

While many of the worst industrial polluters were brought under control decades ago, it’s government-run facilities that turn up more and more as the worst water polluters. 

The North Idaho Correctional Institution, for example, racked up 4,048 violations of the Clean Water Act in just 4 ½ years, according to EPA records. 

The violations are largely the result of the prison’s antiquated sewage treatment system. The facility, built on Radar Road, started life as a Cold War-inspired radar installation built by the U.S. Air Force in 1956. It was finished in 1959, but deemed obsolete by the mid-60s. Then in 1974 the state grabbed it for a minimum-security prison.

Today, the facility’s sewage treatment system is in such disrepair that state officials say they may have to spend up to $6 million to fix it.  

The prison near Cottonwood, Idaho, houses up to 414 lawbreakers, while breaking the law itself by dumping sewage into an unnamed stream that flows into Lawyer Creek. 

To satisfy the EPA, the Idaho Department of Corrections in April agreed to study the system to figure out what’s wrong. 

“EPA has been great to work with,” said Josh Tewalt, deputy director of the Idaho Department of Corrections. 

Although required to get a permit under the 1972 Clean Water Act to dump sewage, the prison did not do so until 2004. Tewalt said that permit – still in effect even though it was to have expired in 2009 – set pollution limits that were too strict.

“No one is killing fish. Are we in violation of our permit? Yes,” Tewalt said. “Are we talking about severe environmental degradation and killing fish? Absolutely not.”

Lawyer Creek, where the prison’s discharge ends up, violates Clean Water Act standards for fecal coliform, ammonia and nutrients, according to EPA records. Those pollutants often come from sewage and are harmful to coldwater fish. The EPA classified the creek as “impaired” for swimming and other direct contact by people. 

“The bottom line for exceeding a permit is, it’s against the law,” said Sara Arkle of the Idaho Conservation League. “If everybody were allowed to exceed their limits, we’d have really dirty water.”   In May the state signed a consent agreement that obligates the prison to study the situation and submit a plan to fix the problems by April 1, 2014.

Robert Grandinetti, a U.S. EPA compliance official, said his agency cannot explain why this facility is only now addressing problems that presumably date back many years. 

“I can’t give you a great reason why it took so long other than they weren’t a priority,” Grandinetti said.    A recent count of facilities with a double-digit number of dumping violations in Idaho since January 2009 showed that 20 of the 25 were government-run.

In Seattle, the government-run King County International Airport, also known as Boeing Field, dumps its stormwater runoff into the Duwamish just upstream from Seattle Iron & Metal. It’s also one of the latest targets of lawsuits by the Puget Soundkeeper organization. The pipe carries stormwater, the foul rainwater runoff that flows off hard surfaces such as streets, parking lots – and in this case, tarmac – that regulators and others agree is one of the most widespread and intractable of the nation’s water-pollution problems.

“We‘ve seen it puking muddy water. We’ve seen it discharging orange water,” says Wilke of Soundkeeper.

Rochelle Ogershok, a spokeswoman for King County, wrote in response:

“King County Airport staff work diligently to comply with all requirements of the Clean Water Act … Even before the lawsuit was filed, the airport was already in the process of installing over $2 million in additional capital improvements to address stormwater runoff.”

ENDING POLLUTION BY PERMITTING IT

Environmentalists contend there are several legal loopholes in the way the Clean Water Act is being enforced that have hampered their efforts to make waterways more pristine. One of those loopholes is pertinent to the Seattle Iron & Metals case. 

The company has been dumping zinc and copper — two highly toxic heavy metals – into a stream already so polluted that it’s been declared a Superfund site.

Both metals are harmful to fish.  Even at trace concentrations, copper stuns salmon, causing them to lose their crucial sense of smell. Zinc leads to altered behavior, changes in body chemistry, impaired reproduction and reduced growth. The amount of copper the company reported dumping into the Duwamish was up to 18 times the level that affects salmon. For zinc, it was more than 260 times what’s known to harm the fish. 

Washington’s Ecology Department issued a violation notice to Seattle Iron & Metal in August 2008 – eight months after the company first reported violating its permit, records show. That was nearly four years ago. Time passed, and the violations continued.

Now Ecology is proposing a solution: The agency plans to grant the company what’s known as a “mixing zone,” said Ecology’s Ed Abbasi, the staffer assigned to the case. 

Basically, that means that materials can be dumped in toxic amounts, as long as regulators are convinced the effects of dilution will make it non-toxic by the time it reaches a specified distance from the dump site. Mixing zones are controversial, since they are not explicitly permitted in the Clean Water Act, but rather by an interpretation of the law by EPA. 

Records show the company asked for a mixing zone in 2002, but it was not granted. 

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In more recent years the company’s pollution levels have remained high, Abbasi acknowledged. However, the company worked to reduce pollution in accordance with Abbasi’s recommendations. That, he said, explains why he did not level any fines. It also made the company eligible for a mixing zone. 

“They have been improving their discharge,” Abbasi said. “They are under an order to make improvements.”  

He said the new permit, which he expects to issue later this year, would reduce the company’s zinc discharges to about one-sixth the highs the company was seeing in the past. Under the zinc limit Abbasi said he plans to impose, the company’s zinc discharge would still be 45 times higher than levels studies show harm fish.

Seattle Iron & Metals is only one of about 6,000 facilities permitted to dump pollution into Washington’s waters.  

Just as Puget Soundkeeper Association has sued Seattle Iron & Metals and numerous other businesses in the Puget Sound area, Columbia Riverkeeper filed lawsuits against a number of firms on both sides of the Columbia River. The Hood River, Ore.,-based environmental group has used the citizen’s suit provisions of the Clean Water act to go after log yards, scrap yards, plastics manufacturers, truck yards and, memorably, a shipping terminal where lots of bulk chemicals including petroleum coke and potash were stored in the open so that pollutants were carried away in rainwater runoff.

Columbia Riverkeeper’s director, Brett VandenHeuvel, said lawsuits like these are a measure of how much progress remains for the Clean Water Act to work as it was intended.    “In 1972 we were going to stop using our rivers as dumping grounds and we’re nowhere near there,” VandenHeuvel said.  “State and federal regulators don’t even try to meet that goal any more and that’s a problem.

“That’s a colossal failure.” 

Clarification: July 25, 2012. This story was updated to reflect that the states have different criteria for considering a waterway fully assessed.

CWA series logo 700px

InvestigateWest is a non-profit newsroom based in Seattle that covers the Pacific Northwest. EarthFix is a public media project of seven NPR and PBS stations in Washington, Oregon, and Idaho.

There’s more to come in our series, “Clean Water: The Next Act:”

  • Development-related pollution in the form of rainwater runoff poses an increasing threat to water quality.

  • Clean water isn’t just under threat from big facilities, urban development, and runoff from suburban sprawl. In the rural Northwest, logging and farming practices are degrading our rivers and streams.

  • Waterways increasingly contain potentially dangerous residues of the lotions, potions and pills that keep us well and clean and smelling nice – a threat the Clean Water Act was never intended to stem.

  • Sewage treatment remains a major source of water pollution, with increasing numbers of governments struggling financially and beset by aging wastewaster treatment facilities. 

(This story was reported and written by Robert McClure with Bonnie Stewart. The map was produced by Jason Alcorn with Bonnie Stewart. Audio report by Ashley Ahearn. Photos and video by Katie Campbell.)

© 2012 EarthFix/InvestigateWest
GRAND PRIZE FOR SMALL PROJECTS: INNOVATIVE PHYTOREMEDIATION PROCESS UTILIZES LANDFILL LEACHATE AS A RESOURCE IN LIEU OF TRADITIONAL DISPOSAL AS A WASTE
American Academy of Environmental Engineers (AAEE), Excellence in Environmental Engineering Awards, 2012

The AAEE recognized Leggette, Brashears & Graham, Inc. for the first-ever use of vetiver plants for landfill leachate treatment in the western hemisphere. The standard for leachate disposal (load, haul, and dump) has been expanded by the concept of utilizing leachate as a resource. The use of vetiver for leachate phytoremediation was further advanced by incorporating a specialized subsurface drip-irrigation system to distribute leachate year-round. Details at http://www.aaee.net/E32012GPSmallProjects.php.

AIR FORCE STANDS UP SINGLE UNIT TO EXECUTE GLOBAL CE OPERATIONS
Briggs, M.
Air Force Civil Engineer Center Public Affairs News Release, 2 Oct 2012

Effective 1 October 2012, the Air Force Center for Engineering and the Environment (AFCEE) and Air Force Real Property Agency merged with the Air Force Civil Engineer Support Agency to form the Air Force Civil Engineer Center (AFCEC), a new civil engineering field operating agency. AFCEC functions encompass the areas of construction, energy, environment, housing, operations, planning, real property, and readiness and emergency management. The Environmental Center of Excellence will operate in the Kelly Annex at Joint Base San Antonio-Lackland. http://www.af.mil/news/story.asp?id=123320540
Additionally, the Environment Operations and Services (EOS) effort, which addresses environmental needs at Air Force installations, is on hold as a result of the AFCEC standup, pending further review by the government. https://www.fbo.gov/notices/d3b225c8b8319c37655ac16b911d6996

provided to clarify and improve the function
Subject:
 Job-Related Education and Training Resources
  From:
"USA.gov Team" <subscriptions@subscriptions.usa.gov>
 To:
john@ironmountainmine.com

Visit JobCenter.USA.gov for information about professional certifications, registered apprenticeships, occupational licenses, and other opportunities that may help you get ahead.

In addition to education and training resources, you can use the job center to search for a job and learn about various career paths.

Is your safety program unethical?

Ethics and Safety: How To Keep Your Program on the Right Side of the Fence (and the Law)

"code of silence" when an accident occurs, making it difficult to find out what really happened so that you can prevent a recurrence.

Judicial Conference of the United States to revisit the need

for a More Coherent Federal Judicial Data System

CDFG workshop walkout: Agency’s attempt to take water and property rights from landowners.

STANDING and JURISDICTION Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to "show that the conduct of which he complains has caused him to suffer an ´injury in fact´ that a favorable judgment will redress." Id. at 12. In comparison, "prudential standing encompasses the general prohibition on a litigant´s raising another person´s legal rights." Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).
Microscopic particles of heavy metals like zinc and copper are commonly found in urban runoff.

Hatching Salmon in the Classroom For Hands-on Learning

the chance to learn about biology through an observation-based approach.

Ensure Free Movement of People and Commerce. 

Joint & Several Trespassers Ejectment

"best management practices" that suit local conditions. ‘out of the ballpark’

"Dam failures are still concerns". former EPA Project Manager Rick Sugarek
AVALANCHE! RUN FOR YOUR LIVES! 

A myriad of vulnerabilities cascading consequences.

Government liabilities arising out of errors, omissions and negligent acts

$7,074,500,000 – treble damages = $21,223,500,000 U.S.A. liability

Not so fast, EPA

EPA Project Manager Accused of Hiding Information, Pursuit of EPA Clarifications Expressed

For the heads of executive departments and agencies; another hard look essential to facilitating:
EPA begins new review of Superfund cleanup required in cases where wastes are managed on-site.

Future Mission - Managing for Results: Work Related to the Interim Crosscutting Priority Goals

The U.S. Environmental Protection Agency is kicking off, stymied by a lack of reliable data.

Development of Earth-based Ground Infrastructure

Contract Management: High-Level Attention Needed; Data and Oversight Problems Hamper Opportunities.

Freedom of transit is guaranteed throughout the entire territory of the union.

The noteworthy failure of [the] government or any alleged agency thereof to at any time rebut anything appearing on this website constitutes a legal admission of the fidelity and accuracy of the materials presented, which are offered in good faith and prepared as such by Freedom School and any and all [third] parties affiliated or otherwise. THIS IS AN ELECTRONIC AGREEMENT AND IS A LEGALLY BINDING CONTRACT, EQUIVALENT TO A SIGNED, WRITTEN CONTRACT BETWEEN PARTIES - If the government, or anyone else, wants to assert that any of the religious and/or political statements appearing on this website are not factual or otherwise in error, then they as the moving party have the burden of proof, and they must responsively meet that burden of proof under the Administrative Procedures Act 5 U.S.C. § 556(d) and under the due process clauses found in the Fifth, Sixth, and Seventh Amendments to the national Constitution BEFORE there will be response to any summons, questions, or unsubstantiated and slanderous accusations. Attempts at calling presented claims "frivolous" without specifically rebutting the particular claim, or claims, deemed "frivolous" will be in deed be "frivolous" and prima facie evidence that shall be used accordingly.

Next-Generation National Nanotechnology Infrastructure Network (NG NNIN)


Program Solicitation
NSF 13-521

NSF Logo

National Science Foundation

Directorate for Engineering

Directorate for Mathematical & Physical Sciences

Directorate for Computer & Information Science & Engineering

Directorate for Biological Sciences

Directorate for Geosciences

Directorate for Social, Behavioral & Economic Sciences

Directorate for Education & Human Resources

Office of International Science and Engineering

Letter of Intent Due Date(s) (required) (due by 5 p.m. proposer's local time):

April 01, 2013

Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):

May 13, 2013

IMPORTANT INFORMATION AND REVISION NOTES

A revised version of the NSF Proposal & Award Policies & Procedures Guide (PAPPG), NSF 13-1, was issued on October 4, 2012 and is effective for proposals submitted, or due, on or after January 14, 2013. Please be advised that the guidelines contained in NSF 13-1 apply to proposals submitted in response to this funding opportunity. Proposers who opt to submit prior to January 14, 2013, must also follow the guidelines contained in NSF 13-1.

Please be aware that significant changes have been made to the PAPPG to implement revised merit review criteria based on the National Science Board (NSB) report, National Science Foundation's Merit Review Criteria: Review and Revisions. While the two merit review criteria remain unchanged (Intellectual Merit and Broader Impacts), guidance has been provided to clarify and improve the function of the criteria. Changes will affect the project summary and project description sections of proposals. Annual and final reports also will be affected.

A by-chapter summary of this and other significant changes is provided at the beginning of both the Grant Proposal Guide and the Award & Administration Guide.

Please note that this program solicitation may contain supplemental proposal preparation guidance and/or guidance that deviates from the guidelines established in the Grant Proposal Guide.

SUMMARY OF PROGRAM REQUIREMENTS

General Information

Program Title:

Next-Generation National Nanotechnology Infrastructure Network (NG NNIN)

Synopsis of Program:

The National Nanotechnology Infrastructure Network (NNIN) will reach its ten year authorized award life at the end of Fiscal Year 2013. The National Science Foundation is announcing in this solicitation an open competition to establish a Next-Generation National Nanotechnology Infrastructure Network (NG NNIN) for Fiscal Years 2014-2018.

NNIN has enabled major discoveries, innovations, and contributions to education and commerce within all disciplines of nanoscale science, engineering, and technology through NSF support of a national network of university-based user facilities. These facilities have provided open access to leading-edge nanotechnology fabrication and characterization tools, instrumentation, and expertise for users across the nation from academia, small and large industry, and government. The core mission of NNIN has included national-level education and outreach programs to enable a diverse science and engineering workforce, the study of societal and ethical implications of nanotechnology including issues of environment, health, and safety, as well as important modeling and simulation capabilities.

The new competition for the NG NNIN will build on the concept of NNIN with a much broadened scope and user base. Support is being provided by all NSF Directorates and the Office of International Science and Engineering as an integral part of the NSF investment in Nanoscale Science and Engineering.


The Federal Constitution for the United States of America, at Article 1, Section 8, Clause 17, states, in pertinent part, that the Congress can exercise exclusive Legislation "over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, . . ."

40 USCS 255 contains the following, clearly stated requirement:

"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted." [emphasis added]

And the second paragraph of interpretive note 14 of 40 USCS 255 states:

"In view of 40 USCS § 255, no jurisdiction exists in United States to enforce federal criminal laws, unless and until consent to accept jurisdiction over lands acquired by United States has been filed in behalf of United States as provided in said section, and fact that state has authorized government to take jurisdiction is immaterial. Adams v. United States (1943) 319 US 312, 87 L Ed 1421, 63 S Ct 1122." [emphasis added, case copy attached]

Please send the requested copies as soon as possible to the exact location shown above in the "From:" section.

How Sites are Deleted from the NPL

Cleanup Process

EPA may delete a final NPL site if it determines that no further response is required to protect human health or the environment. Under Section 300.425(e) of the National Contingency Plan (55 FR 8845, March 8, 1990), a site may be deleted where no further response is appropriate if EPA determines that one of the following criteria has been met:

  • EPA, in conjunction with the State, has determined that responsible or other parties have implemented all appropriate response action required.

  • EPA, in consultation with the State, has determined that all appropriate Superfund-financed responses under CERCLA have been implemented and that no further response by responsible parties is appropriate.

  • A Remedial Investigation/Feasibility Study has shown that the release poses no significant threat to public health or the environment and, therefore, remedial measures are not appropriate.

Since 1986, EPA has followed these procedures for deleting a site from the NPL:

  • The Regional Administrator approves a "close-out report" that establishes that all appropriate response actions have been taken or that no action is required.

  • The Regional Office obtains State concurrence.

  • EPA publishes a notice of intent to delete in the Federal Register and in a major newspaper near the community involved. A public comment period is provided.

  • EPA responds to the comments and, if the site continues to warrant deletion, publishes a deletion notice in the Federal Register.

Sites that have been deleted from the NPL remain eligible for further Superfund-financed remedial action in the unlikely event that conditions in the future warrant such action. Partial deletions can also be conducted at NPL sites.

Guidance for Deleting Sites from the National Priorities List

Deleting Resource Conservation and Recovery Act (RCRA) Facilities

Posted on December 10, 2012 by Christopher Roe

US EPA Revises Guidance to Encourage Renewable Energy on Contaminated Land

On December 5, 2012, US EPA issued a “Revised Enforcement Guidance Regarding the Treatment of Tenants under the CERCLA Bona Fide Prospective Purchaser Provision.”  US EPA undertook this effort to encourage reuse of contaminated properties for renewable energy development. However, the updated guidance is broad enough to apply to other tenant situations and may justify consideration of "all appropriate inquiries" in more lease situations.

The problem that US EPA is trying to address with this guidance is that a key Superfund 'landowner liability protection' (think limited and conditioned defense to liability) – for bona fide prospective purchasers (42 USC §§ 9601(40), 9607(q)(1)(C) and 9607(r)(1)), which provides a defense even where an acquirer knows of the existence of contamination at the time of acquisition – is not available to those who lease contaminated property unless the tenant’s landlord meets the requirements of the defense. In other words, according to the language of CERCLA itself, a tenant’s bona fide prospective purchaser defense must be derived from the defense of an eligible landowner.

 

This can be an obstacle to attracting renewable energy projects to contaminated properties. Most renewable energy project developers do not want to buy contaminated land. They do, however, need sufficient rights in the property developed to justify and secure the significant financial investment that will be needed, for example, to put a solar farm on a closed and capped landfill. A lease with a term tailored to the project’s horizon may provide the right balance and allow the developer to ensure that it is not stuck owning unwanted land and potential liability when the project has run its course. 

 

Under the revised policy issued last week, US EPA indicates that it will use its enforcement discretion not to pursue a tenant that meets the criteria of the bona fide prospective purchaser defense (including for example, conducting a pre-lease Phase I) even though the tenant is not a itself a “purchaser,” and even where the tenant’s landlord is not eligible for the defense, for example, because he or she owned the property when disposal occurred there.

 

This may help get more solar farms on more closed landfills (or other renewable energy projects at contaminated sites), which is a very good idea for a number of reasons, including the long term security and operation and management of the property. First, though, the basic economics of the project must be strong enough to overcome the inherent complications and associated additional time and costs, as well as lingering risks, involved in building on land where significant contamination remains. With strong fundamental project economics, the additional costs and lingering risks can be managed. US EPA’s sincere, though much conditioned, message in this revised guidance that it will be reluctant to pursue such developers will help.  For more on US EPA’s encouragement of the development of renewable energy projects on contaminated sites see Re-Powering America’s Land. 

 

Of course, any potential liability under Pennsylvania’s or other state’s law would also need to be sorted through as well.    In that regard, it is worth noting that Act 2 releases of liability can extend to a person “who develops or otherwise occupies the identified site.” See 35 P.S. §6026.501(a)(2).



Court finds personal jurisdiction over foreign business under a conspiracy theory

The Delaware Supreme Court recently held that a foreign business entity was subject to personal jurisdiction in the state of Delaware under a conspiracy theory. The foreign defendant allegedly conspired with other defendants to divest the plaintiff of his interest in a joint venture, which plan was accomplished, in part, by causing the dissolution of a Delaware limited liability company (LLC) co-founded by the plaintiff. The Delaware Supreme Court held that in order to establish personal jurisdiction over a foreign entity under a civil conspiracy theory, facts must be alleged from which the court can infer that the foreign defendant knew or should have known that the conspiracy would have a Delaware nexus. The lower court found this requirement lacking, and held that the foreign defendant did not know about the Delaware connection until after the Delaware LLC had been dissolved. The Delaware Supreme Court disagreed with the trial court’s analysis as to both the foreign defendant’s knowledge and the overall scope of the conspiracy, reasoning that even if there was no direct evidence that the foreign defendant knew about the dissolution before it occurred, the facts established that the defendant should have known it was dealing with a Delaware company. Further, the Delaware Supreme Court found that the conspiracy did not begin or end with the dissolution of the Delaware company and that the foreign defendant knew that its business partner had been a Delaware entity shortly after the dissolution, while the conspiracy was still ongoing. On these bases, the Delaware Supreme Court reversed the lower court’s dismissal of the action for lack of personal jurisdiction.

Matthew v. Flakt Woods Group SA, C.A. No. 5957-VCN (Del. Supr. Nov. 20, 2012).


California Court of Appeal applies three-year limitation under Delaware law to claim against dissolved Delaware corporation

In Greb v. Diamond Int’l Corp., 2010 Cal. App. LEXIS 566 (Cal. App. 1st Dist. Apr. 26, 2010), the California Court of Appeal for the First District affirmed the trial court’s dismissal of a personal injury claim against a dissolved Delaware corporation, holding that the claim was filed more than three years after dissolution of the corporation in violation of Delaware General Corporation Law Section 278. In doing so, the Court made it clear that, for purposes of lawsuits filed in California against dissolved non-California corporations, the law of the state of incorporation controls whether claims are timely filed.  

Plaintiffs alleged that Mr. Greb had suffered injury from exposure to asbestos and asbestos-containing products. They filed a complaint in California state court against Diamond International Corporation on December 22, 2008. Diamond International, however, was dissolved on July 1, 2005. Section 278 of the Delaware General Corporation Law bars suits against dissolved Delaware corporations filed more than three years after the dissolution. To avoid this bar, plaintiffs argued that they were entitled to file a lawsuit in California under Section 2010 of the California Corporations Code section 2010, which permits lawsuits to be filed against a dissolved corporation irrespective of the date of dissolution.

The Court of Appeal ultimately concluded that Delaware law is applicable and controlling. The Court noted that Section 299(1) of the Restatement (Second) of Conflict Laws states that whether a corporation continues its existence after it has been dissolved or suspended is decided by the state of incorporation. The Supreme Court of the United States, in Oklahoma Gas Co. v. Oklahoma, 273 U.S. 257, 259-60 (1927), recognized this principle, stating that the existence of a corporation after dissolution “concerns the fundamental law of the corporation enacted by the State which brought the corporation into being.” Courts in other jurisdictions, including the federal courts in New York, have followed this by enforcing Delaware’s three-year bar on lawsuits filed against dissolved Delaware corporations.

The Court of Appeal also considered California authority. Although California courts have held generally that the law of the state of incorporation determines the consequence of corporate dissolution, the court in North American Asbestos Corp. v. Superior Court, 180 Cal. App. 3d 902 (1986), held that Section 2010 of the California Corporations Code prevails over foreign corporation laws that limit survival periods of dissolved corporations. The Court in Greb, however, held that the ruling in North American Asbestos erroneously attempted to apply legislative intent where statutory authority clearly establishes that Section 2010 should not apply to foreign corporations. The Court also noted that the holding in North American failed to address Riley v. Fitzgerald, 178 Cal. App. 3d 871 (1986), which held to the contrary and was issued only two months earlier. Ultimately, the Court found North American to be unpersuasive.

The ruling in Greb reinforces the trend in California courts to apply the law of the state of incorporation to claims involving foreign corporations, a trend that adds to certainty for all parties embroiled in corporate litigation in California.


storm cloud

Whether or not the United States has jurisdiction is a Federal question. See Mason Co. v. Tax Commission, 302 U.S. at 197.

For there to be any real progress toward changing the culture and restoring accountability, there must be new leadership.
(Suspicions that foundation-supported non-government organizations have exerted an inordinate and improper influence.)

TERMINATION OF WAR AND EMERGENCIES Joint Res. July 25, 1947, ch. 327, Sec. 3, 61 Stat. 451, provided that in the interpretation of former 40 U.S.C. 276a-5, the date July 25, 1947, was to be deemed to be the date of termination of any state of war theretofore declared by Congress and of the national emergencies proclaimed by the President on September 8, 1939, and May 27, 1941. -End- -CITE- 40 USC Sec. 3148 01/03/2012 (112-90)

But if state law provides for trying an issue by jury—or for trying the issue of compensation by jury or commission or both—that law governs.

The Challenge of Citing Nonprecedential Decisions and Specific Passages

¶14 Citation reform, prompted by the shift to electronic media and urged upon the nation’s courts in the late 1990s, found little support among federal judges. Despite strong recommendations and blueprints from the American Bar Association (ABA) and American Association of Law Libraries (AALL) augmented by advocacy on the part of the Justice Department’s Antitrust Division, the proposal moved nowhere with the federal courts.[26] Rule 32.1 ought to reopen the matter. Strong as the arguments are for using court-applied sequence and paragraph numbers instead of volume and page numbers drawn from the commercially produced Federal Reporter as the core citation elements for precedential decisions, they become even more compelling when applied to the more numerous nonprecedential ones. Consider the following example. On January 4, 2007, the Federal Circuit released an eleven-page nonprecedential decision in the case of DESA IP, LLC. v. EML Technologies, LLC. With a system of non-proprietary and medium neutral citation of the sort that nearly one-quarter of the states have now adopted, one could cite to the court’s discussion of the weight to be given expert testimony in that case as follows:

DESA IP, LLC. v. EML Techs., LLC., 2007 USApp (Fed) 1 NP, ¶17.

New report, by an independent council of Presidentially-appointed experts, prioritizes the top scientific challenges facing agriculture and offers recommendations on how best to meet those challenges in the years ahead, with an emphasis on current practices within research universities and the USDA.

The DOJ’s police authority:
664 Territorial Jurisdiction
Of the several categories listed in 18 U.S.C. § 7, Section 7(3) is the most significant, and provides:
The term "special maritime and territorial jurisdiction of the United States," as used in this title, includes: . . .
(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or
any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

The police power is vested in the States and not the federal government. See Wilkerson v.
Rahrer , 140 U.S. 545, 554, 11 S.Ct. 865, 866 (1891) (the police power "is a power originally
and always belonging to the States, not surrendered to them by the general government, nor
directly restrained by the constitution of the United States, and essentially exclusive"); Union
National Bank v. Brown, 101 Ky. 354, 41 S.W. 273 (1897); John Woods &Sons v. Carl, 75 Ark.
328, 87 S.W. 621, 623 (1905); Southern Express Co. v. Whittle, 194 Ala. 406, 69 So.2d 652, 655
(1915); Shealey v. Southern Ry. Co. , 127 S.C. 15, 120 S.E. 561, 562 (1924) ("The police power
under the American constitutional system has been left to the states. It has always belonged to
them and was not surrendered by them to the general government, nor directly restrained by the
constitution of the United States … Congress has no general power to enact police regulations
operative within the territorial limits of a state"); and McInerney v. Ervin, 46 So.2d 458, 463
(Fla. 1950)
"No sanction can be imposed absent proof of jurisdiction." Standard v Olson, 74 S.Ct.
768. "It has also been held that jurisdiction must be affirmatively shown and will not be
presumed." Special Indem. Fund v Prewitt, 205 F2d 306, 201 OK. 308

The Supreme Court says the government has an obligation to ascertain bona fide authority:
“Anyone entering into an arrangement with the government takes the risk of having accurately
ascertained that he who purports to act for the government stays within the bounds of this
authority.” Federal Crop Insurance v. Merrill, 33 U.S. 380 at 384 (1947).
The Federal Rules of Civil Procedure even states there is no jurisdiction inside the States:
“ ‘Act of Congress’ includes any act of Congress locally applicable to and in force in the
District of Columbia, in Puerto Rico, in a territory or in an insular possession.” See 18 USC,
Rule 54 of the Federal Rules of Criminal Procedure. Note: There is NO reference to the 50
“states.”
The IRS must establish jurisdiction or it will be sanctioning FRAUD: “Silence is a species
of conduct, and constitutes an implied representation of the existence of facts in question. When
silence is of such character and under such circumstances that it would become a fraud, it will
operate as an Estoppel.” Carmine v. Bowen, 64 U.S. 932
“Silence can only be equated with fraud where there is a legal or moral duty to speak or
where an inquiry left unanswered would be intentionally misleading. ... We cannot condone this
shocking conduct by the IRS. Our revenue system is based upon the good faith
of the taxpayers and the taxpayers should be able to expect the same from government in its
enforcement and collection activities .... This sort of deception will not be tolerated and if this is
the ‘routine’ it should be corrected immediately.” [U. S. v. Tweel, 550 F.2d 297, 299
(1977)][quoting U.S. v. Prudden, 424 F.2d 1021, 1032 (1970)]
The USC codifies the Constitutional requirement at Article I, Section 8, Clause 17 and
proscribes the procedure and required documentation for the federal government to successfully
assert jurisdiction inside one of the fifty states. To wit: 40 USCS § 255 (now 3111 and 3112)
clearly and specifically requires that a "notice of acceptance" is to be filed "with the Governor of
such State or in such manner as may be prescribed by the laws of the State where such lands are
situated." "Such lands," of course, referring to those lands that the federal government, through
its agents, is claiming exclusive or concurrent jurisdiction over the people living thereon.
The text of § 255 concludes with the statement "Unless and until the United States has
accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively
presumed that no such jurisdiction has been accepted." [Emphasis added]
Obviously, if the requirements of Article 1, Section 8, Clause 17 of the Constitution of the
United States are not complied with, and/or if the procedural requirements of 40 USCS § 255 are
not complied with, then no public servant who is acting as an agent of the United States, i.e. the
federal government, has any bona fide authority whatsoever to attempt to force compliance with
any federal law, rule, code, statute, etc. on anyone living in such an area that is not subject to any
bona fide jurisdiction of the federal government.
In support of this rather obvious conclusion, the second paragraph of interpretive note 14 of
40 USCS § 255 says: "In view of 40 USCS § 255, no jurisdiction exists in United States to
enforce federal criminal laws, unless and until consent to accept jurisdiction over lands
acquired by United States has been filed in behalf of United States as provided in said
section, and fact that state has authorized government to take jurisdiction is immaterial. Adams
v. United States (1943) 319 US 312, 87 L Ed 1421, 63 S Ct 1122." (plaintiff’s emphasis).
[Federal jurisdiction] " ...must be considered in the light of our dual system of government
and may not be extended. . .in view of our complex society, would effectually obliterate the
distinction between what is national and what is local and create a completely centralized
government." United States v. Lopez, 514 U.S. 549, 115 S.Ct.1624 (1995

If it quacks...

carpe anas (The law of natural selection. A lame duck is usually a dead duck.)

An emphasis on current practices within research universities and the USDA.

Report to the President on Agricultural Preparedness & the Agriculture Research Enterprise, by the Council

TROLLING

The President’s Council of Advisors on Science and Technology (PCAST) today presented a report on the importance of USDA’s leadership in agricultural research. The Council is a diverse group of individuals appointed by the President from across the basic and applied scientific community to advise the President and the Executive Office of the President on key scientific issues.

Report to the President on Agricultural Preparedness & the Agriculture Research Enterprise, by the Council, concludes that the United States is the undisputed world leader in agricultural production today, but also cautions that U.S. agriculture also faces a number of challenges that are poised to become much more serious in the years ahead.

There is no question that the report recognizes American agriculture and USDA’s leadership in agricultural science and research as critical to the efforts to ensure greater food security and a better future for everyone.

As to conditions in state laws which affect the substantial rights of a litigant, the district courts would be bound to give them effect without any rule on the subject. Accordingly we present two alternative revisions. One suggestion supported by a majority of the Advisory Committee is as follows:

(k) Condemnation Under a State's Power of Eminent Domain. The practice herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed.

We call attention to the fact that the proposed rule does not contain a provision for the procedure to be followed in order to exercise the right of the United States to take immediate possession or title, when the condemnation proceeding is begun. There are several statutes conferring such a right which are cited in the original notes to the May 1948 draft * * *. The existence of this right is taken into account in the rule. In paragraph (c)(2), * * * it is stated: “Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known.” That is to enable the United States to exercise the right to immediate title or possession without the delay involved in ascertaining the names of all interested parties. The right is also taken into account in the provision relating to dismissal (paragraph (i) subdivisions (1), (2), and (3), * * *); also in paragraph (j) relating to deposits and their distribution.

The power of eminent domain under the law of a state. See Boom Co. v. Patterson, 1878, 98 U.S. 403, 25 L.Ed. 206; Searl v. School District No. 2, 1888, 8 S.Ct. 460, 124 U.S. 197, 31 L.Ed. 415; Madisonville Traction Co. v. Saint Bernard Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 49 L.Ed. 462. In the Madisonville case, and in cases cited therein, it has been held that condemnation actions brought by state corporations in the exercise of a power delegated by the state might be governed by procedure prescribed by the laws of the United States, whether the cases were begun in or removed to the federal court. See also Franzen v. Chicago, M. & St. P. Ry. Co., C.C.A.7th, 1921, 278 F. 370, 372.

Rule 70. Enforcing a Judgment for a Specific Act

(a) Party's Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done—at the disobedient party's expense—by another person appointed by the court. When done, the act has the same effect as if done by the party.

(b) Vesting Title. If the real or personal property is within the district, the court—instead of ordering a conveyance—may enter a judgment divesting any party's title and vesting it in others. That judgment has the effect of a legally executed conveyance.

(c) Obtaining a Writ of Attachment or Sequestration. On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient party's property to compel obedience.

(d) Obtaining a Writ of Execution or Assistance. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance.

(e) Holding in Contempt. The court may also hold the disobedient party in contempt.

Notes

(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)

Notes of Advisory Committee on Rules—1937

Compare [former] Equity Rules 7 (Process, Mesne and Final), 8 (Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid possible confusion, both old and new denominations for attachment (sequestration) and execution (assistance) are used in this rule. Compare with the provision in this rule that the judgment may itself vest title, 6 Tenn.Ann.Code (Williams, 1934), §10594; 2 Conn.Gen.Stat. (1930), §5455; N.M.Stat.Ann. (Courtright, 1929), §117–117; 2 Ohio Gen.Code Ann. (Page, 1926), §11590; and England, Supreme Court of Judicature Act (1925), §47.

§122 [now 1656] (Creation of new district or transfer of territory; lien)

Why comply with ARARs?

Section 121(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), requires attainment of federal and state applicable or relevant and appropriate requirements (ARARs). Subpart E, Section 300.400(g) "Identification of applicable or relevant and appropriate requirements," of the National Oil and Hazardous Substance Pollution Contingency Plan (NCP) (55 FR 8666) describes the process for attaining these ARAR requirements.

What difference does it make whether a requirement is "applicable" or "relevant and appropriate"?

"Applicable requirements mean those cleanup standards, standards of control, or other substantive environmental protection requirements, criteria, or limitations promulgated under Federal environmental or State environmental or facility siting law that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site" (55 FR 8814). Therefore, an applicable requirement is a requirement that a private party would have to comply with by law if the same action were being undertaken apart from CERCLA authority. all jurisdictional prerequisites of the requirement must be met in order for the requirement to be applicable.

If a requirement is not applicable, it still may be relevant and appropriate. "Relevant and appropriate requirements mean those cleanup standards [that] . . . address problems or situations sufficiently similar to those encountered at the CERCLA site that their use is well suited to the particular site" (55 FR 8817). A requirement that is relevant and appropriate may not meet one or more jurisdictional prerequisites for applicability but still make sense at the site, given the circumstances of the site and the release. In evaluating the relevance and appropriateness of a requirement, the eight comparison factors in 40 CFR 300.400(g)(2) should be carefully considered.

Once a requirement is relevant and appropriate, it must be complied with as if it were applicable. However, there are significant differences between the identification and analysis of the two types of requirements. "Applicability" is a legal and jurisdictional determination, while the determination of "relevant and appropriate" relies on professional judgment, considering environmental and technical factors at the site. Moreover, there is more flexibility when determining relevant and appropriate: a requirement may be "relevant," in that it covers situations similar to those at the site, but may not be "appropriate" and, therefore, may not be well suited to the site. In some situations, only portions of a requirement or regulation may be judged relevant and appropriate; if a requirement is applicable, however, all substantive parts must be followed.

Are there different types of ARARs?

EPA classified (this is not a regulatory requirement) ARARs into three categories: (1) chemical-specific, (2) location-specific, and (3) action-specific, depending on whether the requirement is triggered by the presence or emission of a chemical, by a vulnerable or protected location, or by a particular action.

  • Chemical-specific ARARs are typically health- or risk-based numerical values or methodologies which, when applied to site-specific conditions, are expressed as numerical values that represent cleanup standards (i.e., the acceptable concentration of a chemical at the site). Examples of chemical-specific ARARs include non-zero maximum contaminant level goals (MCLGs) and maximum contaminant levels (MCLs) established under the Safe Drinking Water Act, and federal water quality criteria (FWQC) established under the Clean Water Act. As a general rule, if more than one chemical-specific ARAR exists for a particular contaminant, the most stringent should be applied.
  • Location-specific ARARs are restrictions on the concentration of hazardous substances or the conduct of activities in environmentally sensitive areas. An example of a location-specific restriction on the concentration of hazardous substances is the RCRA land disposal restrictions (LDR) prohibiting hazardous waste placement into or onto the land (e.g., landfills and salt domes) until waste-specific treatment standards are met. Examples of restrictions on the conduct of activities in environmentally sensitive areas include floodplains, wetlands, and locations where endangered species or historically significant cultural resources are present.
  • Action-specific ARARs are usually technology- or activity-based requirements or limitations on actions or conditions taken with respect to specific hazardous substances. An example is the LDR requirement to recover mercury from high inorganic mercury nonwastewaters using roasting or retorting. Action-specific ARARs do not determine the remedial alternative; rather, they indicate how a selected alternative must be achieved. RCRA and the Clean Water Act provide the majority of action-specific ARARs.

CERCLA Section 121, "Cleanup Standards," applies to remedial actions that the Agency determines should be taken under CERCLA Sections 104 and 106 authority.

last week, Judge Griesbach wrote the sentence that most CERCLA defendants have been waiting 30 years to hear:  “It … seems doubtful that a defendant can ever be found to be an arranger if he did not know the substance in question is hazardous.”  For a statute in which liability has always been held to be strict and without fault, a judicial pronouncement that liability hinges on the defendant’s knowledge is nothing short of stunning.

Settling CERCLA litigation is a minefield, but armed with a carefully developed and executed strategy, a CERCLA plaintiff can successfully bring finality to the government’s claims without hindering its ability to seek contribution from other PRPs for an equitable share of remediation costs.
Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected,but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

The rule is that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992).

“Where real estate is actually invaded by super induced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181.

Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective.” First English, 482 U. S., at 321. See also Tahoe-Sierra, 535 U. S., at 337

The determination whether a taking has occurred includes consideration of the property owner’s distinct investment­ backed expectations, a matter often informed by the law in force in the State in which the property is located. Lucas, 505 U. S., at 1027–1029; Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998).

 

Flooding cases, like other takings cases, should be assessed with reference to the “particular circumstances of each case,” and not by resorting to blanket exclusionary rules. United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958)

 

When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535

U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969)

 

(c) When regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence vel non of a compensable taking. See, e.g., Loretto v. Tele­prompter Manhattan CATV Corp., 458 U. S. 419, 435, n. 12. Also rel­evant to the takings inquiry is the degree to which the invasion is in­tended or is the foreseeable result of authorized government action. See, e.g., John Horstmann Co. v. United States, 257 U. S. 138, 146. So, too, are the character of the land at issue and the owner’s “rea­sonable investment-backed expectations” regarding the land’s use, Palazzolo v. Rhode Island, 533 U. S. 606, 618, as well as the severity of the interference, see, e.g., Penn Central, 438 U. S., at 130–131.

 

The Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960).

 

See also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 318–319 (1987); Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123–125 (1978). And “[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Preserva­tion Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 322 (2002) (citing United States v. Pewee Coal Co., 341 U. S. 114, 115 (1951)).

 

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See supra, at 9; John Horstmann Co. v. United States, 257 U. S. 138, 146 (1921)

 

The char­acter of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. Palazzolo v. Rhode Island, 533 U. S. 606, 618 (2001).

 

We are endeavoring to reclaim the land through a resto­ration program. The prospect of reclamation, however, does not dis­qualify a landowner from receipt of just compensation for a taking. United States v. Dickinson, 331 U. S. 745, 751(1947)


 11-597 Arkansas Game and Fish Comm’n v. United States (12/4/2012)
Cabacera del Rio Buenaventura ex jure naturæ status quo ante bellum
Earthquake Hazards Reduction Act. The National Earthquake Hazards Reduction Program (NEHRP) was established by the U.S. Congress when it passed the Earthquake Hazards Reduction Act of 1977, Public Law (PL) 95?124. [ [ At the time of its creation, Congress' stated purpose for NEHRP was "to reduce the risks of life and property from future earthquakes in the United States through the establishment and maintenance of an effective earthquake hazards reduction program. www.agiweb.org/gap/legis106/nehrp.html ] Innovations de novo

FEMA Urges Residents to Follow Directions of Local Officials

By arming themselves with this knowledge

Category: Environment

From Futile to Fertile: Midwest Farmers; Federal Partners


Research, Education, and Economics


 'To raise awareness about the severity of this situation' concerning state & federal frauds,
corruption, and actual malice in the confiscatory takings of Iron Mountain Mines
"mineral springs & reclaimed water"
24.  The standard miner's inch of water is equivalent to one and one-half cubic feet of water per minute, 
measured through any aperture or orifice.

The United States will, therefore, under the ninth section, maintain and protect such water rights as have vested and accrued by priority of possession, and which at the time of such disposal are recognized and acknowledged by local customs, laws, and decisions of Courts, by which those rights are primarily regulated.

"A PARDON FOR MR. T.W. ARMAN" Curia Regis v. Superfund "Maximum Milt" EPA DOJ-ENRD

"projected to fall short", “capable of repetition”,  "no longer be needed or wanted",

"Taking A Little Bit Too Much Time Doing A Lot Of Arm Twisting"


Standing to challenge the constitutionality of the statute. 


over-correct, overcompensate - make excessive corrections for fear of making an error
Prayer for our manifold sins & transgressions & quality impairments
“for the signal blessings of Divine Providence that we have witnessed during the War.”

Cabacera del Rio Buenaventura ex jure naturæ status quo ante bellum
Headwaters of the River Buenaventura in its natural state as was before the war. (1844, 1862, 1914, 1941, 1963)
Absolute Original Paramount Agriculture College Land Grant Military Warrant Freehold University Perfect Patent Title

California – “fiscal hellhole”

“Two factors determine whether a state makes this elite list of fiscal hellholes,” William Baldwin recently wrote in Forbes. “The first is whether it has more takers than makers. A taker is someone who draws money from the government, as an employee, pensioner or welfare recipient. A maker is someone gainfully employed in the private sector.”

“Let us give those takers the benefit of our sympathy and assume that every single one of them is a deserving soul. This person is either genuinely needy or a dedicated public servant or the recipient of a well-earned pension.

But what happens when these needy types outnumber the providers? Taxes get too high. Prosperous citizens decamp. Employers decamp. That just makes matters worse for the taxpayers left behind.”

Baldwin explained that the second element in the death spiral list is a scorecard of state credit-worthiness done by Conning & Co., a money manager known for its measures of risk in insurance company portfolios. “Conning’s analysis focuses more on dollars than body counts. Its formula downgrades states for large debts, an uncompetitive business climate, weak home prices and bad trends in employment.”

Baldwin explained California’s place on the list: “It’s easy to see how California got on our list. It has pampered a large army of civil servants while using every imaginable trick to chase private-sector jobs away, the latest being a quixotic scheme to reduce the globe’s atmospheric carbon.  A City Journal essay by Victor Davis Hanson notes that the state spends $10 billion a year on entitlements for illegal aliens.”

Numbers don’t lie — people lie

What economic recovery? The numbers don’t lie. But the lies are adding up to more and more reasons to move to right-to-work states, low tax states, and states that celebrate economic freedom. California is a fiscal hellhole, ya sure, you betcha.

The real unemployment rate would be closer to 11 percent if it weren’t for all of the people who have stopped looking for work and completely dropped out of the labor force. And the really real unemployment rate is a separate government number called the “U-6,” rarely reported, which provides an accurate look at how many people are really unemployed.

According to the U-6, California has a 20.3 percent real unemployment rate.

The national results of the last four years are a tough pill to swallow: 23 million Americans are struggling to look for any work, nearly one in six are living in poverty, 47 percent of Americans do not pay any income tax, and 47 million people are dependent on food stamps to feed themselves and their families.

And California’s real debt is 10 times what Brown and the state Democrats report.

California’s real debt is not just the measly $16 billion that Gov. Jerry Brown and state Democrats bandy about; California’s real debt is $617 billion.

“California again trumped other states with a $617 billion debt,”  State Budget Solution reported in August. “California’s debt is more than twice the size of New York’s state debt, and New York has the second largest total debt burden in the nation.”

The reason for the disparity in numbers? “Unfunded public pension liabilities make up more than half of all state debt,”according to State Budget Solutions. The pension liabilities of the total debt represent the $2.8 trillion owed to public pension systems “as a result of years of skipped payments, borrowed funds, and inaccurate discount rate assumptions.”

Rights assessment is your responsibility.
Rghts?
National Days of Humiliation, Fasting, & Prayer
Costly rules held up for the election are about to roll over the economy. “regulatory flood”
HUNDRED OF THE FREEMINERS
IRON MOUNTAIN MINES LTD
100 MINER'S INCHES @ HIGHEST CONCENTRATION
(1000 TONS PER HOUR SINCE 1913) OVER 100 YEARS CALIFORNIA'S LARGEST COPPER MINE)
Making sure our solutions are safe and sustainable.

"REVISITING  RULES" OF LEAD & COPPER

nano-particle ‘Solar steam’ so effective it can make steam from icy cold water

"THE RAILROAD STOPS HERE!" (Ask not for whom the whistle tolls. It blows for thee.)

Two orders of magnitude damages

In determining whether a settlement agreement has been made in good faith, California courts consider “

(1) a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability;

(2) the amount paid in settlement;

(3) the allocation of settlement proceeds among plaintiffs; and

(4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial.”

“Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants.”


“So far ‘out of the ballpark’ that the equitable objectives of § 877 are not satisfied.”

Section 6 of the UCFA is adopted as the law in this case for the purpose of determining the legal effect of the settlement agreement on the liability of the non-settling defendants. DATED: November 8, 2012, E.D.Cal. U.S. district judge William B. Shubb

(CERCLA) should reduce other defendants’ liability by the amount ultimately determined to be the settling defendant’s share, rather than by the amount of the settlement. Lewis v. Russell, No. 03-2646 (E.D. Cal. 11/9/12).


EXTORTION: The obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951(b)(2).

International Law – Piracy jure gentium – Actual Robbery not an essential element.

Actual robbery is not an essential element of the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.

Quo Warranto assumption of Responsibility & Administrative Authority: Private Project Site Manager - John Hutchens.

Implicating Environmentalism -Becoming an Expert Witness

“(Nanotechnology) is a new science that is going to change our economy,” said Andre Nel, professor of medicine at UCLA. “It’s going to change how we can take care of the environment, it’s going to change healthcare, it’s going to make safer energy.”

The University of California Center for Environmental Implications of Nanotechnology aims to ensure the safe use of nanotechnology so the world can benefit from the science both economically and socially.

“Nanotechnology is here and it is the future,” EPA 's Lisa P. Jackson said.

"they’re actually only finding problems because then they turn around and find the solution at the same time.”


Dilbert


An obvious interest in avoiding being “saddled" with any of the

'settling defendant’s proportionate share'.

(the amount we ultimately determined to be the settling defendant’s share?)

(122% of the infamous billion dollar settlement final consent decree joint memorandum in support)

100% of a patently unfair and unreasonable reallocation of the settling responsible parties’ liability to innocent landowner under CERCLA.


The Supreme Court ruled that executive privilege is not ironclad.

"Maybe in the future you could let us know when something as definite as that comes"



Article 4. General Provisions.
§ 5018. Just Compensation.
The provisions in this Chapter are not intended and shall not be construed as authorizing the Delta
Stewardship Council or any entity to exercise its power in a manner that will take or damage private
property for public use without the payment of just compensation.
NOTE: Authority cited: Section 85210(i), Water Code.
§ 5019. Property Owner Rights.
The provisions in this Chapter are not intended to affect the rights of any owner of property under the
Constitution of the State of California or the United States.
NOTE: Authority cited: Section 85210(i), Water Code.

§ 5003. Covered Action Defined.
(a) “Covered action” means a plan, program, or project that meets all of the following criteria
(which are collectively referred to as covered action screening criteria):
(1) Is a “project,” as defined pursuant to Section 21065 of the Public Resources Code;


(2) Will occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh;
(3) Will be carried out, approved, or funded by the state or a local public agency;
(4) Will have a significant impact on achievement of one or both of the coequal goals or the
implementation of government-sponsored flood control programs to reduce risks to people, property,
and state interests in the Delta; and,
(5) Is covered by one or more provisions of the Delta Plan, which for these purposes, means
one or more of the regulatory policies contained in Article 3.
(b) "Covered action" does not include any of the following:
(1) A plan, program, or project that is exempted pursuant to Water Code Section
85057.5(b);
(2) A plan, program, or project that is exempted pursuant to one or more of the following
administrative exemptions, as listed in Chapter 2 of the Delta Plan, because they will not have a
significant impact under Water Code Section 85057.5(a)(4), as further defined by Section 5001(s) of this
Chapter :
(A) “Ministerial” projects exempted from CEQA, pursuant to Public Resources Code
Section 21080(b)(1);
(B) “Emergency” projects exempted from CEQA, pursuant to Public Resources Code
Section 21080(b)(2)-(4);
(C) Temporary water transfers of up to one-year in duration. This exemption shall
remain in effect only through December 31, 2014, and as of January 1, 2015, is repealed, unless the
Council acts to extend the exemption prior to that date. The Council contemplates that any extension
would be based upon the Department of Water Resources and the State Water Resources Control
Board’s participation with stakeholders to identify and implement transfer measures, as recommended
in the Delta Plan’s Water Resources Recommendation Number 15;
(D) Other projects that are exempt under CEQA statutes or guidelines, unless there
are unusual circumstances indicating that the project may have a significant impact under Water Code
Section 85057.5(a)(4), as further defined by Section 5001(n) of this Chapter. Examples of unusual
circumstances could arise in connection with, among other things:
(i) Local government general plan amendments for the purpose of achieving
consistency with the Delta Protection Commission’s Land Use and Resource Management Plan; and,
(ii) Small-scale habitat restoration projects proposed in important restoration
areas, but which are inconsistent with the Delta Plan’s policy related to appropriate habitat restoration
for a given land elevation (Section 5008 of this Chapter).
(c) A state or local public agency that proposes to carry out, approve, or fund a plan, program, or
project that may be subject to this chapter must determine whether that proposed plan, program, or
project is a covered action. That determination, which is subject to judicial review, must be reasonable,
made in good faith, and consistent with the Delta Reform Act and this chapter.
(d) Nothing in the application of the definition of a “covered action” shall be interpreted to
authorize the abrogation of any vested right whether created by statute or by common law.

NOTE: Authority cited: Section 85210(i), Water Code.
Reference: Section 85057.5, Water Code.
Article 2. Certifications of Consistency
§ 5004. Contents of Certifications of Consistency.
(a) This policy specifies what must be addressed in a certification of consistency filed by a state or
local public agency with regard to a covered action. This policy only applies after a “proposed action”
has been determined by a state or local public agency to be a covered action because it is covered by
one or more of the regulatory policies contained in Article 3. Inconsistency with this policy may be the
basis for an appeal.
(b) Certifications of consistency must include detailed findings that address each of the following
requirements:
(1) Covered actions must be consistent with the coequal goals, as well as with each of the
regulatory policies contained in Article 3 implicated by the covered action. The Delta Stewardship
Council acknowledges that in some cases, based upon the nature of the covered action, full consistency
with all relevant policies may not be feasible. In those cases, the agency that files the certification of
consistency may determine that the covered action is consistent with the Delta Plan. That determination
must include a clear identification of areas where consistency is not feasible, an explanation of the
reasons why it is not feasible, and an explanation of how the covered action nevertheless, on whole, is
consistent with the coequal goals. That determination is subject to review by the Delta Stewardship
Council on appeal;
(2) Covered actions not exempt from CEQA must include applicable feasible mitigation
measures identified in the Delta Plan’s Program Environmental Impact Report (unless the measure(s)
are within the exclusive jurisdiction of an agency other than the agency that files the certification of
consistency), or substitute mitigation measures that the agency that files the certification of consistency
finds are equally or more effective;
(3) As relevant to the purpose and nature of the project, all covered actions must document
use of best available science (as described in Appendix
(4) Ecosystem restoration and water management covered actions must include adequate
provisions, appropriate to the scope of the covered action, to assure continued implementation of
adaptive management. This requirement shall be satisfied through both of the following:
1A);
(A) An adaptive management plan that describes the approach to be taken
consistent with the adaptive management framework in Appendix
(B) Documentation of access to adequate resources and delineated authority by the
entity responsible for the implementation of the proposed adaptive management process.
1B; and
(5) If the agency that files the certification of consistency will carry out the covered action,
the certification of consistency must also include a certification from that agency that the covered action
complies with all applicable laws pertaining to water resources, biological resources, flood risk, and land
use and planning. If the agency that files the certification of consistency will not carry out the covered
action (but will approve or fund the action), the certification of consistency must include a certification

from that agency that the covered action complies with all applicable laws of the type listed above over
which that agency has enforcement authority or with which that agency can require compliance.
NOTE: Authority cited: Sections 85210(i), Water Code.
Reference: Sections 85225, 85020, 85054, 85302(g) and 85308, Water Code.

Appendix 1A
Best Available Science

Guidelines and Criteria
There have been several efforts to develop criteria for defining and assessing best available science. In
2004, the National Research Council Committee on Defining the Best Scientific Information Available for
Fisheries Management prepared a report (National Research Council Report) that concluded guidelines and
criteria must be defined in order to apply best available science in natural resource management (National
Research Council 2004). Major findings and recommendations included establishing procedural and
implementation guidelines to govern the production and use of scientific information. The guidelines were
based on six broad criteria: relevance, inclusiveness, objectivity, transparency and openness, timeliness, and
peer review.
1A-2
Best available science for proposed covered actions and for use in the Delta Plan should be consistent
with the guidelines and criteria in Table 1A-1. These criteria were adapted from criteria developed by the
National Research Council. Proponents of covered actions should document their scientific rationale for
applying the criteria in Table 1A-1 (i.e., the format used in a scientific grant proposal).

Best available science for proposed covered actions and for use in the Delta Plan should be consistent
with the guidelines and criteria in Table 1A-1. These criteria were adapted from criteria developed by the
National Research Council. Proponents of covered actions should document their scientific rationale for
applying the criteria in Table 1A-1 (i.e., the format used in a scientific grant proposal).
Table 1A-1
Criteria for Best Available Science
Criteria Description
Relevance Scientific information used should be germane to the Delta ecosystem and/or biological and
physical components (and/or process) affected by the proposed decisions. Analogous information
from a different region but applicable to the Delta ecosystem and/or biological and physical
components may be the most relevant when Delta-specific scientific information is nonexistent or
insufficient. The quality and relevance of the data and information used shall be clearly addressed.
Inclusiveness Scientific information used shall incorporate a thorough review of relevant information and
analyses across relevant disciplines. Many analysis tools are available to the scientific community
(e.g., search engines and citation indices).a
Objectivity Data collection and analyses considered shall meet the standards of the scientific method and be
void of nonscientific influences and considerations.
Transparency
and openness
The sources and methods used for analyzing the science (including scientific and engineering
models) used shall be clearly identified. The opportunity for public comment on the use of science
in proposed covered actions is recommended. Limitations of research used shall be clearly
identified and explained. If a range of uncertainty is associated with the data and information used,
a mechanism for communicating uncertainty shall be employed.
Timeliness Timeliness has two main elements: (1) data collection shall occur in a manner sufficient for
adequate analyses before a management decision is needed, and (2) scientific information used
shall be applicable to current situations. Timeliness also means that results from scientific studies
and monitoring may be brought forward before the study is complete to address management
needsc. In these instances, it is necessary that the uncertainties, limitations, and risks associated
with preliminary results are clearly documented.
Peer review The quality of the science used will be measured by the extent and quality of the review process.
Independent external scientific review of the science is most important because it ensures
scientific objectivity and validity. The following criteria represent a desirable peer review processe.
Coordination of Peer Review. Independent peer review shall be coordinated by entities and/or
individuals that (1) are not a member of the independent external review team/panel and (2) have
had no direct involvement in the particular actions under review.
Independent External Reviewers. A qualified independent external reviewer embodies the
following qualities: (1) has no conflict of interest with the outcome of the decision being made,
(2) can perform the review free of persuasion by others, (3) has demonstrable competence in the
subject as evidenced by formal training or experience, (4) is willing to utilize his or her scientific
expertise to reach objective conclusions that may be incongruent with his or her personal biases,
and (5) is willing to identify the costs and benefits of ecological and social alternative decisions.
When to Conduct Peer Review. Independent scientific peer review shall be applied formally to
proposed projects and initial draft plans, in writing after official draft plans or policies are released
to the public, and to final released plans. Formal peer review should also be applied to outcomes
and products of projects as appropriate.
a. McGarvey 2007
b. National Research Council 2004, Sullivan et al. 2006
c. National Research Council 2004
d. Meffe et al. 1998
e. Adapted from Meffe et al. 1998
It is recognized that differences exist among the accepted standards of peer review for various fields of
study and professional communities. When applying the criteria for best available science in Table 1A-1,
the Council recognizes that the level of peer review for supporting materials and technical information

Appendix 1B
Adaptive Management

Dilbert

Risky Business

Best Practices in Counterparty Credit Risk Management

Complimentary Webinar

 

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  • Key factors in risk assessment to consider during origination
  • Analytics to enhance counterparty surveillance
  • Strategies and indicators to asses sovereign risk

 
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11:00 a.m. - 12:00 p.m. ET.
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Showdown at the EPA corral


Administrator testified before the Senate Environment and Public Works Committee.

If Eisenhower’s military-industrial complex was bad, what are we to make of today’s political-scientific-university-bureaucratic-military-industrial-media-environmentalist complex? Funded and driven by tens of billions of dollars annually for research grants, renewable energy programs and regulatory regimes, it has far too much at stake.

EPA to Hold Public Meeting on Liberty

Finishing Superfund

"AGGRAVATING CIRCUMSTANCES"

“Superfund has been such a stigma, and has contributed to an economically depressed community,” “We believe this community can thrive again.” “We didn’t have the bare bones before. This brings us up to speed,”


NSF 13-025

Dear Colleague Letter - Designing Materials to Revolutionize and Engineer our Future (DMREF)

Making sure our solutions are safe and sustainable.

Iron Mountain Laboratory of Nanophotonics
The Iced Road Map

Critical Water Use Principles & Priorities.

The United States must reconsider and realign its energy production policy and water management practices in order to avoid certain shortages of water and shortfalls in energy.
U.S. energy policy encouraging construction of more coal-fired and nuclear power plants, which use millions of gallons of water an hour, without considering where they would be built in order to have available the water they will require. The thermo-electric generating sector currently accounts for half of the 400 billion gallons of water withdrawn daily from the nation’s rivers and lakes, principally to cool the plants. The same power plants consume more than 3 billion gallons of water a day, principally through evaporation.
The Department of Energy forecasts a 50 percent increase in the demand for electricity by 2030.

The Advanced Energy Initiative is to replace 30 percent of the nation’s current gasoline needs with domestically grown and refined biofuels by 2030. This will require production of about 60 billion gallons of ethanol per year by 2030, with over two-thirds needing to come from cellulosic-based feedstocks like switchgrass and wood wastes.

Solar steam is about two-and-a-half times more efficient than existing distillation columns.

Sunlight-illuminated particles can also drive H2O - ethanol distillation, yielding fractions significantly richer in ethanol content than simple thermal distillation.

“We all have a stake in the quality of our water,” said EPA Regional Administrator Richard E. Greene. “Ensuring the sustainability of our nation's waters is not just an EPA challenge -- it is everyone's challenge.

$57,139,669.53.

OUTLAWRY!

Case 2:91-cv-00768-JAM-JFM Document 1300 Filed 12/18/2009 Page 4 of 11

EXACTIONS § 2680. EXCEPTIONS, ESTOPPEL OF SUMMARY JUDGMENTS, HEARING

Factoring for poor air quality impairment may cause headaches, fatigue, exhaustion.

WhistleStop¡© Class Action -  Hundred Freeminers & Armed Bands of the Arm Twisting & Head Pounding.

LANDLORD & AGENT & FIRE FIGHTERS & STAKEHOLDERS & BENEFICIAL USERS

Courageous deletion, "Anything that remedies or heals or soothes should be recognized and given effect by the courts."
"Internal Mine Management Decisions Officer for the Region." "Occupation” wanted by site owners. No-risk
  EPA-DOE-DOI-DOJ-OIG NASA/NOAA superfund category. High Potential site. Bio-phobic agency assessment.

The Oversight Agency will secure permission for the Site Operator to enter and perform Work at the property owned by Iron Mountain Mines, Inc., Mr. T.W. Arman

Overlying rights apply to landowners who use their groundwater for beneficial use. 

Standing; Going Forward: Apprehension.

Private Proponent's Aspirations, Expectations & Innovations


Water Resources Management and Policy in a Changing World: Where Do We Go From Here?

Stewardship of the Head Master Naturalist

Community Involvement at Removals. The NCP requirements for community involvement apply to all Superfund removals.

The world is a dangerous place to live; not because of the people who are evil, but because of the people who don't do anything about it. --   Albert Einstein:

EPA's entrenched bureaucratic institutionalized incompetence, neglect, & failure causing unacceptable adverse effects including:

1. Community-based capacity as stakeholders to develop projects for asthma and other effects of toxic contaminants exposures.

2. Community-based health strategy for detecting and treating elevated lead levels in our blood.

3. Community-based local Environmental Justice Problem Solving and access to Environmental Justice grants and awards.

4. Community-based local stakeholders tools to improve environmental and public health outcomes.

5. Community-based redevelopment of neighborhoods to improve human health, storm-water management and urban agriculture. 

6. Community-based organization implementing a comprehensive project to look at the cumulative effects of multiple environmental impacts.

7. Community-based leaders to prioritize neighborhood concerns.and risk factors, fix poor housing conditions and homelessness exposures.

8. Community-based tools to achieve Children's Environmental Health and Environmental Justice from children's exposure to contaminants.

9. Community-based local agency to focus efforts on heavily affected priority areas of the communities environmental problems and concerns.

10. Community-based local effort providing ‘treatment at the tap' mitigation, assessing home health and testing of drinking water sources.

The defining aspect of ecological Big Data is not raw size but another dimension: complexity.

“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.


"where landowners fence or post "no trespassing" signs on their property or otherwise indicate unmistakably that entry is not allowed, their "expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable".


The Oversight Agency will secure permission for the Site Operator to enter and perform Work at the property owned by Iron Mountain Mines, Inc., T.W. Arman

Proof of the absence of jurisdiction
Rough Justice: 

The clear errors of Judge Milton L. Schwartz
'You can't file any more cases in my court. I'm drowning,' and that's tough." (must be a Lame Duck)

 U.S. Supreme Court Liberalizes Use of Apportionment Instead of Joint and Several Liability in Superfund Litigation and Clarifies Conditions for Imposing ‘Arranger’ Liability Under CERCLA

Environmental Regulation 2011: Managing in the Face of Rapid Change, 587 PLI/Real 307
Megan Low, Peter Hsiao, and Joshua Simon, 2/9/2011, Article 

join the revolution

That whooshing sound you hear is half of America,

"Maximum Milt"

Milton Lewis Schwartz (January 20, 1920 – October 3, 2005) was a United States federal judge.

Born in Oakland, California, Schwartz received an A.B. from the University of California, Berkeley in 1941 and was a Major in the United States Army from 1942 to 1945. He received a J.D. from the University of California, Berkeley, Boalt Hall School of Law in 1948 and was a law clerk to Rolfe L. Thompson of the California Court of Appeal from 1948 to 1949. He was a deputy district attorney of Sacramento County, California from 1949 to 1951, and was then in private practice in Sacramento, California from 1951 to 1979.

On September 28, 1979, Schwartz was nominated by President Jimmy Carter to a new seat on the United States District Court for the Eastern District of California created by 92 Stat. 1629. He was confirmed by the United States Senate on November 26, 1979, and received his commission on November 27, 1979. He assumed senior status on January 20, 1990, serving in that capacity until his death, in Sacramento.(Expiration of Jurisdiction.)

Sources

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Government liabilities arising out of errors, omissions and negligent acts

$7,074,500,000 – treble damages = $21,248,500,000 U.S.A. liability


"EPA requires Site access over the next several years to conduct the remedy and should not be forced to come into Court each time it is unable to obtain an agreement with the defendants that entry will be allowed." 8/29/1988

Moreover, he must spend the vast majority of his time on the bench coping with the criminal cases. "That means that this great mass of civil cases has to be done on Friday (his law-and-motion day) or nights and weekends because there's no other time to address the civil....

"Once in a while I get civil cases to trial, but not very many," the judge continued. "I bet I haven't had five civil jury trials since I've been here in almost four years." He added that he has tried a number of nonjury civil cases, however.

The biggest contributor to his problem, Schwartz noted, is that the Sacramento branch of the Eastern District has had a vacancy on its bench for nearly a year, leaving Schwartz and the court's two other active judges to pick up the load. "That really hurts," he said.

Nevertheless, lawyers say Schwartz is fully capable of managing his calendar and of trimming issues from civil cases, in the way federal judges are famous. "He may be farther behind (than some other judges)," said a trial lawyer in Sacramento. "But he's the kind of judge who's very organized. . .. It may take longer to get to trial before him, but his calendar's not messed up."

Settlement Weakest (If you don't care about the right to a "Speedy" trial)

Still, the judge said he does not "feel comfortable doing a lot of arm-twisting" to make lawyers settle civil cases. Settlement may well be his weakest area on the bench, Schwartz conceded. "I don't really know why. I felt, without any false modesty, that that was a strong suit that I had as a lawyer. I felt I could negotiate well."

On the other hand, he added, "I think I'm the only judge I know who doesn't have mandatory settlement conferences.. . .

"I'm somewhat reluctant to pound heads. I don't mind pounding heads when I'm running my courtroom and I think somebody has misbehaved. But to try to squeeze or force a lawyer or a client into settling a case because I think it ought to be settled just seems to me to be beyond the scope of what I think a judge ought to be doing, and I don't feel comfortable doing it."

Some lawyers, on the other hand, suggest that Schwartz' problem may stem in small part from his thorough and conscientious approach to deciding cases. "He tends to take a little bit too much time," said a federal prosecutor.

President Jimmy Carter named Schwartz to the federal bench in November 1979, and the judge says he is glad for the change. "I had reached a point where I was tired of the problems, of getting yanked around, of being told that I had to be in three different courts on the same day... .

"Here, the only thing that controls you is your own stomach and your own conscience"

(Taking a little bit too much time?)

Suppose someone has scrap copper lying around, which is of no value to him but is valued by others.  To him it is scrap, but to others it is useful and therefore valuable.  When he sells the scrap to a dealer, he might have some general inkling that the copper could be used in wire or tubing or any number of other applications, but as far as he is concerned his purpose is simply to make a little money.  And, although he wants to get the scrap off of his property, there is nothing harmful or toxic about the scrap that would give him extra motivation to have it disposed of or to cause him to think about its final destination.  He is simply indifferent to the final destination of the copper.”  Slip Op. at 14-15.



Deck chair management on the Titanic

You have to ask whether there isn’t something wrong with a program requiring a 10-page set of details regarding the timeline for how to negotiate a settlement. 

Why does CERCLA remain the last bastion of pure command and control regulation? Without an actual Superfund and with declining budgets at EPA, why not try what states have already successfully implemented – true privatization of the entire program?

The Dismal History of Superfund's Water Body Sites

“silver buckshot.”

Today’s Safety Daily Advisor Tip:

Changing the Way People Think about Risk

Topic: You as a Safety Professional

Today, we introduce you to another hard-working, successful safety professional who as a risk manager has to cover all the bases.

NATIONAL STRATEGY TO EXPAND SUPERFUND OPTIMIZATION PRACTICES FROM SITE ASSESSMENT TO SITE COMPLETION
OSWER 9200.3-75, 19 pp, Sep 2012

The purpose of this National Strategy is to expand and formalize optimization practices from site assessment to site completion as an operating business model for the Superfund Remedial Program. This strategy fulfills Action 10 of the Office of Solid Waste and Emergency Response Integrated Cleanup Initiative: "Opportunities to Provide Greater Support in Optimizing Cleanup of Superfund Sites." http://www.epa.gov/oerrpage/superfund/cleanup/postconstruction/092012strategy.pdf

THE BEGINNING: PASSIVE TREATMENT OF A HIGHLY ACIDIC MINE DRAINAGE DISCHARGE
Neely, C.A., C. Denholm, S. Busler, T. Danehy, B. Page, and M. Dunn.
2012 National Meeting of the American Society of Mining and Reclamation, 8-15 June 2012, Tupelo, Missippi. ASMR, Lexington, KY. p 393 [abstract only], 2012

Solving the World’s Water Problems through Technology

Court of the Speech

Cry Me a River

Spring Creek College of Agriculture and Environmental Science Watershed Moment: 

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2012 Decided August 21, 2012
No. 11-1302

"We find that the EPA’s action...is inconsistent with the principles of cooperative federalism"

U.S. Court of Appeals for the Fifth Circuit

attempting to force its own draconian policies, federal law requires EPA to work cooperatively.

“...we cannot conclude under these circumstances that the EPA made a reasoned decision.”
     "The administrator did not adequately explain the decision"


     Downstream-protection criteria similarly failed to meet the court's standards.
U.S. District Judge Robert Hinkle:

The U.S. Environmental Protection Agency  "overreached its authority" setting water-quality standards for the state’s streams and rivers. "The EPA administrator did not base criteria for rivers and streams on sound science," and "EPA’s conflicting standards for streams and rivers are "arbitrary and capricious."Feb.17, 2012


Oregon
51-page ruling from U.S. District Judge John V. Acosta.

     Acosta found that the EPA decision to adopt the Oregon Department of Environmental Quality's (DEQ) "natural conditions criteria" was "arbitrary and capricious."

 "Despite the fact that Oregon is required to use the best scientific data available to do so, it is a process rife with uncertainty,"

Sign the Petition: The EPA has lost its way!

URGENT AND IMMEDIATE EXPEDITED RELIEF

Moments of intense external pressure have tended to force major innovations in both government and the private sector.

As the D.C. Circuit previously stated, the model of federalism adopted in the CAA means that EPA cannot “force particular control measures on the states” in the first instance.  See Virginia v. EPA, 108 F.3d 1297, 1410 (D.C. Cir. 1997). Where EPA acts inconsistent with this principle, its actions should continue to be rejected.


EPA’s conflicting standards for streams and rivers are "arbitrary and capricious."Feb.17, 2012 U.S. District Judge Robert Hinkle

-avoiding being “saddled"

HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3111(a) 40:255 (1st par.). R.S. Sec. 355 (1st-5th pars.); June 28, 1930, ch. 710, 46 Stat. 828; Feb. 1, 1940, ch. 18, 54 Stat. 19; Oct. 9, 1940, ch. 793, 54 Stat. 1083; Pub. L. 91-393, Sec. 1, Sept. 1, 1970, 84 Stat. 835. 3111(b) 40:255 (2d, 3d pars.). 3111(c) 40:255 (4th par.). 3111(d) 40:255 (5th par.). -------------------------------------------------------------------- In subsection (d), the words "in any manner" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3112 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3112. Federal jurisdiction -STATUTE- (a) Exclusive Jurisdiction Not Required. - It is not required that the Federal Government obtain exclusive jurisdiction in the United States over land or an interest in land it acquires. (b) Acquisition and Acceptance of Jurisdiction. - When the head of a department, agency, or independent establishment of the Government, or other authorized officer of the department, agency, or independent establishment, considers it desirable, that individual may accept or secure, from the State in which land or an interest in land that is under the immediate jurisdiction, custody, or control of the individual is situated, consent to, or cession of, any jurisdiction over the land or interest not previously obtained. The individual shall indicate acceptance of jurisdiction on behalf of the Government by filing a notice of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated. (c) Presumption. - It is conclusively presumed that jurisdiction has not been accepted until the Government accepts jurisdiction over land as provided in this section. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1144.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3112(a) 40:255 (last par. R.S. Sec. 355 (last par.); 1st sentence words June 28, 1930, ch. 710, 46 before semicolon). Stat. 828; Feb. 1, 1940, ch. 18, 54 Stat. 19; Oct. 9, 1940, ch. 793, 54 Stat. 1083. 3112(b) 40:255 (last par. 1st sentence words after semicolon). 3112(c) 40:255 (last par. last sentence). -------------------------------------------------------------------- Subsection (a) is substituted for 40:255 (last par. 1st sentence words before semicolon) to eliminate unnecessary words. In subsection (b), the words "exclusive or partial" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3113 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3113. Acquisition by condemnation -STATUTE- An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so. The Attorney General, on application of the officer, shall have condemnation proceedings begun within 30 days from receipt of the application at the Department of Justice. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1144.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3113 40:257. Aug. 1, 1888, ch. 728, Sec. 1, 25 Stat. 357; June 25, 1948, ch. 646, Sec. 6, 62 Stat. 986. -------------------------------------------------------------------- The words "the Secretary of the Treasury or any other" are omitted as unnecessary. The reference to section 258 is omitted because 40:258 is superseded by rule 71A of the Federal Rules of Civil Procedure (28 App.: U.S.C.). -End- -CITE- 40 USC Sec. 3114 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3114. Declaration of taking -STATUTE- (a) Filing and Content. - In any proceeding in any court of the United States outside of the District of Columbia brought by and in the name of the United States and under the authority of the Federal Government to acquire land, or an easement or right of way in land, for the public use, the petitioner may file, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the land described in the petition, declaring that the land is taken for the use of the Government. The declaration of taking shall contain or have annexed to it - (1) a statement of the authority under which, and the public use for which, the land is taken; (2) a description of the land taken that is sufficient to identify the land; (3) a statement of the estate or interest in the land taken for public use; (4) a plan showing the land taken; and (5) a statement of the amount of money estimated by the acquiring authority to be just compensation for the land taken. (b) Vesting of Title. - On filing the declaration of taking and depositing in the court, to the use of the persons entitled to the compensation, the amount of the estimated compensation stated in the declaration - (1) title to the estate or interest specified in the declaration vests in the Government; (2) the land is condemned and taken for the use of the Government; and (3) the right to just compensation for the land vests in the persons entitled to the compensation. (c) Compensation. - (1) Determination and award. - Compensation shall be determined and awarded in the proceeding and established by judgment. The judgment shall include interest, in accordance with section 3116 of this title, on the amount finally awarded as the value of the property as of the date of taking and shall be awarded from that date to the date of payment. Interest shall not be allowed on as much of the compensation as has been paid into the court. Amounts paid into the court shall not be charged with commissions or poundage. (2) Order to pay. - On application of the parties in interest, the court may order that any part of the money deposited in the court be paid immediately for or on account of the compensation to be awarded in the proceeding. (3) Deficiency judgment. - If the compensation finally awarded is more than the amount of money received by any person entitled to compensation, the court shall enter judgment against the Government for the amount of the deficiency. (d) Authority of Court. - On the filing of a declaration of taking, the court - (1) may fix the time within which, and the terms on which, the parties in possession shall be required to surrender possession to the petitioner; and (2) may make just and equitable orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges. (e) Vesting Not Prevented or Delayed. - An appeal or a bond or undertaking given in a proceeding does not prevent or delay the vesting of title to land in the Government. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1145.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3114(a) 40:258a (1st par.). Feb. 26, 1931, ch. 307, Sec. 1, 46 Stat. 1421; Pub. L. 99-656, Sec. 1(1), Nov. 14, 1986, 100 Stat. 3668. 3114(b) 40:258a (2d par. 1st sentence words before 1st semicolon). 3114(c)(1) 40:258a (2d par. 1st sentence words after 1st semicolon, last sentence). 3114(c)( 40:258a (3d par.). 2), (3) 3114(d) 40:258a (last par.). 3114(e) 40:258b. Feb. 26, 1931, ch. 307, Sec. 2, 46 Stat. 1422. -------------------------------------------------------------------- In subsection (a), before clause (1), the words "which has been or may be" are omitted as unnecessary. In subsection (b)(1), the words "said lands in fee simple absolute, or such less" are omitted as unnecessary. In subsection (b)(2), the words "deemed to be" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3115 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3115. Irrevocable commitment of Federal Government to pay ultimate award when fixed -STATUTE- (a) Requirement for Irrevocable Commitment. - Action under section 3114 of this title irrevocably committing the Federal Government to the payment of the ultimate award shall not be taken unless the head of the executive department or agency or bureau of the Government empowered to acquire the land believes that the ultimate award probably will be within any limits Congress prescribes on the price to be paid. (b) Authorized Purposes of Expenditures After Irrevocable Commitment Made. - When the Government has taken or may take title to real property during a condemnation proceeding and in advance of final judgment in the proceeding and has become irrevocably committed to pay the amount ultimately to be awarded as compensation, and the Attorney General believes that title to the property has been vested in the Government or that all persons having an interest in the property have been made parties to the proceeding and will be bound by the final judgment, the Government may expend amounts appropriated for that purpose to demolish existing structures on the property and to erect public buildings or public works on the property. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1146.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3115(a) 40:258c. Feb. 26, 1931, ch. 307, Sec. 3, 46 Stat. 1422. 3115(b) 40:258e. Feb. 26, 1931, ch. 307, Sec. 5, 46 Stat. 1422; Pub. L. 91-393, Sec. 4, Sept. 1, 1970, 84 Stat. 835. -------------------------------------------------------------------- In subsection (b), the words "possession of" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3116 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3116. Interest as part of just compensation -STATUTE- (a) Calculation. - The district court shall calculate interest required to be paid under this subchapter as follows: (1) Period of not more than one year. - Where the period for which interest is owed is not more than one year, interest shall be calculated from the date of taking at an annual rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of taking. (2) Period of more than one year. - Where the period for which interest is owed is more than one year, interest for the first year shall be calculated in accordance with paragraph (1) and interest for each additional year shall be calculated on the amount by which the award of compensation is more than the deposit referred to in section 3114 of this title, plus accrued interest, at an annual rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the beginning of each additional year. (b) Distribution of Notice of Rates. - The Director of the Administrative Office of the United States Courts shall distribute to all federal courts notice of the rates described in paragraphs (1) and (2) of subsection (a). -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1146.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3116(a) 40:258e-1 (less Feb. 26, 1931, ch. 307, Sec. last sentence). 6, as added Pub. L. 99-656, Sec. 1(2), Nov. 14, 1986, 100 Stat. 3668; Pub. L. 106-554, Sec. 1(a)(7) [Sec. 307(a)], Dec. 21, 2000, 114 Stat. 2763A-635. 3116(b) 40:258e-1 (last sentence). -------------------------------------------------------------------- -End- -CITE- 40 USC Sec. 3117 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3117. Exclusion of certain property by stipulation of Attorney General -STATUTE- In any condemnation proceeding brought by or on behalf of the Federal Government, the Attorney General may stipulate or agree on behalf of the Government to exclude any part of the property, or any interest in the property, taken by or on behalf of the Government by a declaration of taking or otherwise. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3117 40:258f. Oct. 21, 1942, ch. 618, 56 Stat. 797. -------------------------------------------------------------------- The words "that may have been, or may be" are omitted as unnecessary. -End- -CITE- 40 USC Sec. 3118 01/03/2012 (112-90) -EXPCITE- TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS SUBTITLE II - PUBLIC BUILDINGS AND WORKS PART A - GENERAL CHAPTER 31 - GENERAL SUBCHAPTER II - ACQUIRING LAND -HEAD- Sec. 3118. Right of taking as addition to existing rights -STATUTE- The right to take possession and title in advance of final judgment in condemnation proceedings as provided by section 3114 of this title is in addition to any right, power, or authority conferred by the laws of the United States or of a State, territory, or possession of the United States under which the proceeding may be conducted, and does not abrogate, limit, or modify that right, power, or authority. -SOURCE- (Pub. L. 107-217, Aug. 21, 2002, 116 Stat. 1147.) -MISC1- HISTORICAL AND REVISION NOTES -------------------------------------------------------------------- Revised Source (U.S. Code) Source (Statutes at Large) Section -------------------------------------------------------------------- 3118 40:258d. Feb. 26, 1931, ch. 307, Sec. 4, 46 Stat. 1422. -------------------------------------------------------------------- The words "State, territory, or possession of the United States" are substituted for "State or Territory" for consistency in the revised title and with other titles of the United States Code. -End-

Relief from certain existing claims.
Implied action for the knowing violation of "important, non-discretionary" rules and implied remedy for the 
violation of "important, non-discretionary" rules whose violation permits aggrieved individuals to sue in federal court. 
Sec. 252. 
administrative practice or enforcement policy of any such agency with respect to the class to which he belongs.

proper exercise to enforce 







The constitutional rule that
"one man's junk is another's gold,"



Reach and comprehend likewise the exception applicable
securing exclusive rights provisions regarding certain matters of substantive
law and procedure challenged constitutionality action to bring sovereignty
malpractice patently without reasonable foundation or due process and
the necessity that springs from the right vested that there inheres value and imports power over
government appropriating private property and the duty private in
nature of standing that does not foster excessive government. 
                            
transfusio unius creditoris in alium.

There must be a better way

Assembling the “Big Picture” View.
What Is The Value Of My Assets?

What Is My Best Long-Term Funding Strategy?

Blueprint for an America Built to Last
RETURN TO USE INITIATIVE
2012 Demonstration Project
“We can’t let sunk costs or past behavior define our path forward,”

John Francis Hutchens claims in court papers that he and the property’s owner are in a joint venture with plans to mine the waste from sludge treated by Environmental Protection Agency cleanup efforts, and he complains the government is blocking them.

"The agency has not rejected the proposal per se, but has required scientifically defensible test data that would confirm that any fertilizer product would not release contamination. That information has not been provided to date," - EPA

Recovered Materials Advisory Notices (RMANs). The RMANs recommend recycled-content ranges for CPG products based on current information on commercially available recycled-content products. RMAN levels are updated as marketplace conditions change.

EPA is required to designate products that are or can be made with recovered materials, and to recommend practices for buying these products.

The Comprehensive Procurement Guideline (CPG) program is part of EPA's continuing effort to promote the use of materials recovered from solid waste.

WasteWise

EPA's partnership to help organizations eliminate costly municipal solid waste, benefiting their bottom line and the environment.

Environmentally Preferable Purchasing

EPA's program to encourage and assist federal agencies in purchasing environmentally preferable products and services.

1. Do the above restraints on the landowners’ right to the use of his property deprive the landowner of the full use of his land without the benefit of due process?


2. What safeguards, if any, does the CERCLA law provide against the erroneous filing of a lien? What exigent circumstances justify the absence of due process?


3. Does the right of the owner to sue for wrongful filing of a lien provide adequate redress for the deprivation of property?


In our worship of certainty we must distinguish between the sound certainty and the sham, between what is gold and what is tinsel; and then, when certainty is attained, we must remember that it is not the only good; that we can buy it at too high a price; that there is danger in perpetual quiescence as well as in perpetual motion; and that a compromise must be found in a principle of growth. Justice Benjamin Cardozo


“You will study the wisdom of the past, for in a wilderness of conflicting counsels, a trail has there been blazed. You will study the life of mankind, for this is the life you must order, and, to order with wisdom, must know. You will study the precepts of justice, for these are the truths that through you shall come to their hour of triumph. Here is the high emprise, the fine endeavor, the splendid possibility of achievement, to which I summon you and bid you welcome.” ~ Cardozo

Magic words and incantations are as fatal to our science as they are to any other. …

We seek to find peace of mind in the word, the formula, the ritual. The hope is illusion.

Berkeley Lab

From accelerators to energy, Berkeley Lab has an expert for you.


"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."



Law's Day de novo !

White House, EPA Issue Premature Logging Roads Final Rule

Monday, December 03, 2012

Press release from the issuing company

WASHINGTON - The White House Office of Information and Regulatory Affairs today cleared the Environmental Protection Agency's (EPA) final rule to clarify that Clean Water Act "point source" permits are not required for stormwater discharges from logging roads.

The decision comes on the heels of the American Forest & Paper Association (AF&PA) and others asking EPA to wait until the Supreme Court has considered the case being heard on Monday, Dec. 3 that addresses the issues the agency attempts to address in this rulemaking.

"While AF&PA understands EPA's goal in issuing today's final rule, we maintain that any rulemaking in advance of a Supreme Court decision is premature," said AF&PA President and CEO Donna Harman.  "The Supreme Court could vacate the Ninth Circuit decision, alleviating the need for this rulemaking, or it could rule in a manner that requires EPA to further revise this rulemaking."

EPA issued this rule in response to a Ninth Circuit decision (NEDC v. Brown) that the agency has said misinterprets a regulation exempting logging roads runoff from permitting; this type of runoff has been successfully regulated for 35 years through state best management practices that are adapted to local conditions.

"EPA's rule is subject to further legal challenge.  This will only cause unnecessary legal expense and prolong the uncertainty for owners and users of these roads, causing disruption in the supply of fiber needed to make our industry's products essential to everyday life," said Harman.


A LIMITATION ON CONGRESS: “IN SUITS AT COMMON LAW”

"The Power of We"

CDC Office for State, Tribal, Local and Territorial Support


Advancing US public health agency and system performance, capacity, agility, and resilience.

High-priority actions that constitute high-leverage opportunities. (Elbow grease & perspiration.)

U.S. DEPARTMENT OF COMMERCE HISTORY AND ENABLING LEGISLATION
The Department of Commerce was originally established by Congressional Act on February 14, 1903 as the Department of Commerce and Labor (32 Stat. 826; 5 U.S.C. 591)
“to foster, promote, and develop the foreign and domestic commerce, the mining, manufacturing, and fishery industries of the United States.”

MISSION
The Department of Commerce creates the conditions for economic growth and opportunity by promoting innovation, entrepreneurship, competitiveness, and stewardship.




IRON MOUNTAIN MINES INSTITUTE & FREEMINERS UNIVERSITY STRATEGIC STAKEHOLDERS GOALS
Develop the tools, systems, and technologies to transform the development of our business.
Equip with tools to expand, creating quality jobs for our un-served and under-served community.
Improve our competitiveness and foster  job growth while protecting security.
Communicate cutting-edge scientific understanding of technical, economic,& environmental systems.
Promote economically-sound environmental stewardship and science.
Develop and support a highly qualified workforce with the right skills for the job.
Increase scientific knowledge and information.
Make informed decisions through an expanded understanding of the U.S. economy, society, and environment by  timely, relevant, trusted, and accurate data, standards, and services.

Guiding principles to ensure effective data retention through coordinated information management while improving water flow and capacity.

Small Entity Representative modifying fences. - Certain Agency no longer be needed, or wanted by site owners;

"where landowners fence or post "no trespassing" signs on their property or otherwise indicate unmistakably that entry is not allowed, their "expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable"

Tranquility Ensured Domestically - "TED"

U.S., state to fund battery research

Advocates for Victims of Assault request funds from the U.S. Department of Agriculture, Rural Housing Service.
The funds are to be used for the acquisition of a new shelter and office.


Water Law: U.S. Supreme Court Navigates Waters of Ownership, Clarifies Possession


Going forward, it is critical that EPA be held to a higher standard for scientific rigor and transparency—the stakes are too high.
Noun 1. rogue - a deceitful and unreliable scoundrelrogue - a deceitful and unreliable scoundrel
knave, rapscallion, rascal, varlet, scalawag, scallywag
scoundrel, villain - a wicked or evil person; someone who does evil deliberately

adj.rogue
1. Vicious and solitary. Used of an animal, especially an elephant.
2. Large, destructive, and anomalous or unpredictable: a rogue wave; a rogue tornado.
3. Operating outside normal or desirable controls: "How could a single rogue trader bring down an otherwise profitable and well-regarded institution?" 
v. rogued, rogu·ing, rogues
v.tr.
1. To defraud.
2. To remove
especially to weed out

(Trail Blazing)
 Trimming issues from civil cases in the way federal judges are famous
illegitimate animus
CRIME OF INFAMY

***MEDIA ADVISORY*** 

Inhofe, Heartland Institute Present More than 15,000 Petitions Demanding Congress Rein in a ‘Rogue’ EPA

The Heartland Institute has collected more than 15,000 signatures on a petition demanding Congress rein in a “rogue” Environmental Protection Agency. Sen. James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works, and The Heartland Institute will present the petitions to Congress at a public event in the Capitol Visitors Center in Washington, DC on Tuesday, November 27 at 11 a.m.



What’s EPA smoking?

Agency incites air-quality fears

Fewer than 1 in 5 Americans has any use for cigarettes nowadays, but here’s why the Obama Environmental Protection Agency (EPA) has made smoking important to us all.

The EPA plans to issue in mid-December more stringent air-pollution standards for fine particulate matter (PM2.5), soot and dust roughly the width of a human hair. The agency has determined that any exposure to PM2.5 can cause death within hours or days of exposure, and there is no safe exposure to PM2.5. Those claims are not without controversy.

The Clinton EPA first began regulating PM2.5 in 1997, setting an average daily limit of 15 micrograms per cubic meter of air. Now the Obama EPA wants to tighten the average daily limit to somewhere between 12 and 13 micrograms per cubic meter, even though the average U.S. air purity is at 10 micrograms per cubic meter and falling.

The EPA says the new standard will bring health benefits worth $88 million to $5.9 billion annually while costing just $2.9 to $69 million per year.

More than 98 percent of those claimed benefits are based on the EPA’s assertion that PM2.5 kills people and each death costs society about $9 million, regardless of age, remaining life expectancy, health status and income prospects.

So what’s all this got to do with smoking cigarettes?

The average adult inhales about 11,000 liters of air per day, equivalent to 11 cubic meters of air. Keeping in mind that indoor levels of PM2.5 easily can exceed outdoor levels. Assuming someone inhales average outdoor air all day, that person would inhale about 240 micrograms of PM2.5.

The EPA says smoking a single cigarette can expose a smoker to 10,000 to 40,000 micrograms of PM2.5. It would take a nonsmoker breathing average outdoor air something between 40 and 160 days to inhale as much PM2.5 as someone smoking a single cigarette.

To make this more interesting, let’s say someone smokes one half-pack of cigarettes per day for just one year. That person would have inhaled between 36.5 million micrograms and 146 million micrograms of PM2.5 during that year. It would take a nonsmoking average-air breather 417 to 1,668 years to inhale as much PM2.5 as the smoker.

What’s the practical significance of this thought experiment? Although smoking is not a healthful activity, the health risks associated with it are a matter of dose — i.e., the more one smokes, the greater the risk of health problems.

However, as reported in an October 2003 study published in the American Medical Association’s Archives of Internal Medicine, the risk of sudden death among those who smoked as long as 10 years was zero.

If you can smoke for 10 years and have zero chance of sudden death, you can breathe average U.S. air for thousands of years with zero risk of sudden death. Given that the “worst” U.S. air has, perhaps, twice the level of PM2.5 as average U.S. air, you even could breathe the “worst” U.S. air for thousands of years with zero risk of sudden death.

Therefore, the EPA’s claim that PM2.5 is killing people and the nation stands to reap billion of dollars’ worth of health benefits from its new rule are without merit.

What’s the harm of cleaner air? Aside from the perpetuation of EPA junk science, as there likely are no health benefits from the rule, any cost is simply too much. While the EPA has capped compliance costs at a seemingly paltry $69 million per year, the agency has omitted mention of the more significant costs.

The proposed rules are national standards for air quality and, as such, do not prescribe specific emissions limits for, say, industrial facilities, vehicles, agricultural burning or residential wood-burning. The EPA, however, can punish states that fail to meet the standards by withholding the state’s federal highway money.


Though this withholding rarely if ever happens, that is only because the states almost always comply. They would rather forego new industrial facilities and new roads, or clamp down on other air-pollution sources than risk their highway money and endure the slings and arrows of environmentalists and the media.

So the real costs of the EPA’s PM2.5 proposal are not millions of dollars in compliance costs — they are tens if not hundreds of billions of dollars in lost economic opportunities.

None of this is rocket science. The EPA knows very well that the science of smoking debunks its effort to alarm the public about air quality.

Readers of this column know that the American Tradition Institute has sued the EPA for conducting illegal human testing. As part of its defense in that case, the EPA is asserting that concentrated diesel exhaust, which is largely composed of PM2.5, is less of a health risk than very light smoking.

American air is clean and safe. The EPA is what needs to be cleaned up.

Steve Milloy publishes JunkScience.com and is the author of “Green Hell: How Environmentalists Plan to Control Your Life and What You Can Do to Stop Them” (Regnery, 2009).


Read more: http://www.washingtontimes.com/news/2012/nov/30/whats-epa-smoking/?page=2#ixzz2DuZOVf5Z


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DOD SBIR PROGRAM 2013.1
Department of Defense, Washington Headquarters Services, Arlington, VA.
Federal Business Opportunities, FBO-4012, Solicitation DoDSBIR13-1, 2012

Small high-technology firms are encouraged to submit proposals to DoD for R&D projects with both military and commercial applications in response to the 2013.1 SBIR solicitation, which will be publicly released on www.dodsbir.net/solicitation/sbir131/default.htm on December 17, 2012. Proposals will be accepted until 6:00am ET on January 16, 2013. The R&D topics under which DoD is seeking proposals include the following examples from the Chemical and Biological Defense Program and the Air Force:
  • CBD13-101: Responsive sequestration coatings that undergo a change in state upon exposures to chemical vapors and/or chemical or biological aerosols.
  • CBD13-103: Advanced real-time surface contamination sensors.
  • CBD13-104: Acousto-optic tunable filter-based spectral imaging for enhanced stand-off chemical detection.
  • CBD13-105: Passive stand-off chemical detection based on colloidal quantum dot technology.
  • AF131-024: Portable sensor for detecting airborne nanomaterials in an operational environment.
  • AF131-030: Volatile organic compound odor signature modeling.
Participation in the DoD SBIR Program is restricted to small business firms organized for profit with 500 or fewer employees, including all affiliated firms. https://www.fbo.gov/spg/ODA/WHS/REF/DoDSBIR13-1/listing.html


MULTIPROJECT CENTER GRANTS (P42)
NIEHS Superfund Research Program (SRP), 2012

With this 2012 Request for Applications (RFA), NIEHS proposes the continuation of the Superfund Hazardous Substance Research and Training Program (P42) to address the complex health and environmental issues that arise from the multimedia nature of hazardous waste sites. SRP Center grants will support problem-based, solution-oriented research centers that consist of multiple, integrated projects representing both the biomedical and environmental science disciplines. The application deadline for the Multiproject Center grants is April 10, 2013. A free webinar will be held January 30, 2013, 1:30 to 3:00pm ET, to provide information about this RFA. http://www.niehs.nih.gov/research/supported/dert/cris/programs/srp/funding/rfa/index.cfm

BROAD AGENCY ANNOUNCEMENT FOR INNOVATIVE TECHNOLOGIES AND METHODOLOGIES FOR REDUCING VARIOUS ENVIRONMENTAL PROBLEMS
Air Force Civil Engineering Center, Restoration Technical Support Branch.
Federal Business Opportunities, Solicitation AFCECBAA-13-001, 2012

The Air Force Civil Engineering Center (AFCEC), Restoration Technical Support Branch (formerly AFCEE) solicits proposals that demonstrate and validate innovative, sustainable, and cost-effective technologies or methodologies that will lead to accelerated closure of environmental sites across the Air Force and serve the Air Force's future environmental needs. The two Restoration Program areas of need for this announcement are remediation technologies for (1) perfluorinated compounds and (2) 1,4-dioxane. In situ remediation methods are of particular interest. All Phase I white papers/pre-proposals must be submitted via an online form at www.afcee.lackland.af.mil/contracting/baa. Each electronic submission should address only one area of need. Phase I submittals are due no later than 4:00pm CST, January 11, 2013. AFCEC will send the selection notifications by February 15, 2013, and Phase II proposals will be due March 19, 2013. https://www.fbo.gov/notices/43aa27431db0685be22659b9fb033f1c


ENVIRONMENTAL REMEDIATION TECHNOLOGIES DERIVED FROM SPACE INDUSTRY RESEARCH
Quinn, J.W.
2011 Florida Environmental Roundtable: Sustainable Thinking, November 3, 2011, Cape Canaveral, Florida. 20 slides, 2011

This presentation discusses the lessons learned during the transition of six environmental technologies developed under NASA sponsorship from the lab, to the field, and into the commercial marketplace. http://hdl.handle.net/2060/20120000076


CASE STUDY PRIMER FOR PARTICIPANT DISCUSSION: FENCELINE AIR QUALITY MONITORING
U.S. EPA, Office of the Chief Financial Officer, Washington, DC.
EPA 190-S-12-004, 12 pp, 2012

The term "fenceline monitoring" refers to the measurement of air pollution at industrial facilities and cleanup site boundaries. EPA prepared this primer to serve as a foundation and guide during the Technology Market Summit, May 14, 2012, for discussions of technological, regulatory, financial, and market-based issues that affect fenceline monitoring technology development. http://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=P100EDIT.txt
Four presentations on the technology are available in the workshop proceedings at http://www.epa.gov/envirofinance/2012summit.html.


PHYTOREMEDIATION OF INDOOR AIR: NASA, BILL WOLVERTON, AND THE DEVELOPMENT OF AN INDUSTRY
Stutte, G.W.
NASA Scientific and Technical Information Program, 8 pp, 2012

Within NASA, Dr. Bill Wolverton oversaw large-scale testing of bioregenerative life support systems at Stennis Space Center to demonstrate the beneficial role of plants in closed life-support systems, such as NASA's Biohome project. Following his retirement, continued research by Wolverton found that increasing the flow of air through a plant root system removes significantly more VOCs than can be extracted by a single traditional potted plant. This discovery was patented (U.S. Patent 5,433,923) and commercially developed as the Plant Air Purifier (U.S.) and the EcoPlanter (Japan). The planter contains high-efficiency carbon filters and a root-level circulation system that enable a plant to remove ~200 times more VOCs than a single traditionally potted plant. http://hdl.handle.net/2060/20120003454


INCORPORATING CONTAMINANT BIOAVAILABILITY INTO SEDIMENT QUALITY ASSESSMENT FRAMEWORKS
Maruya, K.A., P.F. Landrum, R.M. Burgess, and J.P. Shine.
Integrated Environmental Assessment and Management, Vol 8 No 4, 659-673, 2012

If optimized and validated, several recently described methods for evaluating the bioavailability of sediment-associated contaminants could be applied to improve the applicability and broaden the scope of sediment quality assessment. Using methods such as equilibrium-based biomimetic extractions via either passive sampling devices (PSDs) or measures of rapidly desorbing contaminant pools, a bioavailability line of evidence (LOE) for organics is proposed based on PSD and equilibrium partitioning theory that can be employed as an independent LOE or in assessing causality in tiered toxicity identification evaluations. ftp://ftp.sccwrp.org/pub/download/DOCUMENTS/AnnualReports/2010AnnualReport/ar10_153_175.pdf Erratum (page 773): http://onlinelibrary.wiley.com/doi/10.1002/ieam.1335/pdf.


INTEGRATED APPROACHES TO SUSTAINABLE SEDIMENT MANAGEMENT: THE PARADOX OF HAVING IT ALL
Stern, E.A. and E. Peck.
NORDROCS 2012: 4th Nordic Joint Meeting on Remediation of Contaminated Sites, International Conference, September 18-21, 2012, Oslo, Norway. 4 pp paper and 49 slides, 2012

This presentation discusses a regional sediment management structure that balances physical, natural, and human systems and encompasses a sustainability driver.
Paper: http://nordrocs.org/wp-content/uploads/2012/09/Joint-session-torsdag-1-Stern-Short-paper.pdf
Slides: http://nordrocs.org/wp-content/uploads/2012/09/Joint-session-1-Stern-for-WEBSITE.pdf


HISTORICAL CHANGES IN POLYCHLORINATED BIPHENYLS CONTAMINATED SEDIMENTS
Dang, V.D., D.M. Walters, and C.M. Lee.
American Journal of Environmental Sciences, Vol 8 No 1, 11-15, 2012

The authors conducted a study in Twelvemile Creek (Clemson, South Carolina) to examine the temporal trend of PCB-contaminated sediments. Historical PCB-laden discharges to the creek ended in 1975. Surface sediments sampled at four sites in fall 2008 and compared with concentrations measured in past studies indicated that PCBs near the source were dominated by lower chlorinated congeners, while heavy congeners persisted farther downstream. Physical and biochemical processes such as natural attenuation, mixing/dispersion, and PCBs degradation apparently are contributing to the decreasing concentrations. The congener pattern shift likely is attributable to loss via volatilization and export of contaminated sediment from the stream. Burial represents a potential means to prevent resuspension into the water column.


REMEDIATION OF TOXIC METAL CONTAMINATED SOIL AND MINE WASTE WITH COMBINED CHEMICAL AND PHYTOSTABILISATION
Feigl, Viktoria, Ph.D. thesis, Budapest University of Technology and Economics, Hungary, 17 pp, 2011

Chemical stabilizers—fly ashes, a mixture of fly ash and lime, and a combination of fly ash, lime and iron grit—were applied to metal-contaminated soil in field studies. The most effective stabilizer in agricultural soil, alkaline fly ash (pH=12.6), was able to reduce the amount of ammonium-acetate extractable Cd and Zn by 45% and 49%, respectively, and distilled water-soluble metals by more than 99% in study soils compared to untreated soil. The more fly ash added to the soil (1, 2, and 5 wt%), the more effective the stabilization. The one-time addition kept its stabilization efficiency during the full 2 years of study. Fly ash decreased soil toxicity (bacterial toxicity by 40-50% and plant toxicity by 30-50%) and reduced the amount of Cd and Zn bioaccumulated by a plant mixture. In mine soil, the combination of fly ash, lime, and iron grit effectively reduced arsenic mobility in mine wastes. Fly ashes from different sources displayed different efficiencies for stabilizing metals in soil. http://www.omikk.bme.hu/collections/phd/Vegyeszmernoki_es_Biomernoki_Kar/2012/Feigl_Viktoria/tezis_eng.pdf

REVIEW OF ECOLOGICAL-BASED RISK MANAGEMENT APPROACHES USED AT FIVE ARMY SUPERFUND SITES
Poucher, S.L., G.A. Tracey, M.S. Johnson, and L.B. Haines.
Integrated Environmental Assessment and Management, Vol 8 No 2, 246-261, Apr 2012

Five recent Records of Decision for Army CERCLA sites were selected for an evaluation of the ecological risk assessment approach and subsequent risk management process. Examining the remedial management process for the case study sites revealed that uncertainty in the risk assessment and decisions regarding appropriate spatial scales for both risk assessment and remediation were important factors influencing remedial action decisions. The case reviews also revealed that levels of documentation were variable from site to site and that protective conditions were determined using different methods at each site.


APPLICATION OF ADVANCED SENSOR TECHNOLOGY TO DOD SOIL VAPOR INTRUSION PROBLEMS
Reisinger, J., D. Burris, and E. Zellers.
Environmental Security Technology Certification Program (ESTCP) Project ER-200702, 118 pp, July 2012

A field study was conducted in the vicinity of Hill Air Force Base, Utah, to evaluate the use of a micro-scale gas chromatograph (µGC) prototype—dubbed "SPIRON"—to determine low TCE concentrations in indoor air. Concurrent reference samples were analyzed by TO-15 and also with a portable HAPSITE GC/MS. At a range of TCE concentrations in a house with known TCE vapor intrusion, comparison with the reference samples showed that the prototype's TCE accuracy was good above 2.3 ppb TCE but considerably less accurate below it due to interfering VOCs at the lower concentration levels. http://www.estcp.com/content/download/16343/185254/file/ER-200702-FR.pdf


THE HU/MOUNTAIN JOINT VENTURERS & THE HUMMINGBIRD FLEXIBLE PURPOSE INSTITUTES
ARTESIAN MINERALS DEVELOPMENT & CONSOLIDATED SLUDGE INSTITUTES DE BENE ESSE
ESSENTIAL PRODUCTS ADMINISTRATION & ESSENTIAL SOLUTIONS INSTITUTES ASSOCIATION,
THE COLLEGE OF THE HUMMINGBIRD, AGRICULTURE E-COLLEGE & THE MECHANIC ARTS.

The Hamlet of Iron Mountain Mines, the Forest of the Lost Confidence Mine, "the Armanshire Territory"
The Keswick & the Matheson & the Crown Point & the Last Link & the Keystone & the Homestake mill sites,
the Clear Creek & the Spring Creek & the Flat Creek & the Motion Creek Mining Districts & Watersheds,
the Township of Minnesota, the Interlakes Regional Recreation Area, Lost Mining District, Shasta County, California, the lost hunting grounds of the Wintu tribe, the lost ghost towns of the Shasta /Trinity /Whiskeytown National Forests.
a Snark & Snipe Infested Superfund site, Oxboro University, ancient demesne of New Albion & Sir Francis Drake,
Certain Lands North of San Francisco by the Treaty of Guadalupe Hidalgo & the Empire of the Bear Flag Revolt
Absolute Original Paramount Agriculture College Land Grant Military Warrant Freehold University Perfect Patent Title from United States of America President Abraham Lincoln in 1862 & California Governor Newton Booth in 1875.
Iron Mountain Mines Institute & Freeminers University

making sure our solutions are safe and sustainable.

President Signs Whistleblower Protection Enhancement Act (WPEA)

The legislation provides millions of federal workers with the rights they need to report government corruption and wrongdoing safely. The bill reflects an unequivocal bipartisan consensus, having received the vote of every member in the 112th Congress, passing both the Senate and House of Representatives by unanimous consent over the past couple of months. The text of the bill can be read here.

Strategy for detecting and treating elevated lead agency actions:

UNCLAD-EM; RE-ARRANGERS WEARING THE COPPER JACKET

Remedy or set right (an undesirable or unfair situation): "the power to redress the grievances of our citizens".

Create a Single “Facility” Under CERCLA November 28, 2012

Taking too much time & not doing a lot. Doing a lot of time taking too much.




The very curious case of the disappearing reinsurance deal

Shareholders deserve an explanation for why details of a prominent agreement between AIG and PICC P&C have evaporated from view



S&P Affirms Ratings for AIG with Negative Outlook

May 18, 2018

S&P Global Ratings has affirmed its ‘A+’ insurer financial strength rating and ‘BBB+’ long- and ‘A-2’ short-term issuer credit ratings on American International Group Inc. (AIG), and its ‘A+’ rating on AIG’s core subsidiaries. The rating agency’s outlook for AIG remains negative.

S&P said its negative outlook reflects “pressure on AIG’s delivery on sustainable improvements in its operating fundamentals while retaining its competitive resilience.”

Return of the True Crusader


Time-tested practice of amending, unusual twist:

Real-Time Instrument Flying School of Flight

DHS TRIP | Homeland Security

www.dhs.gov/dhs-trip
The Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) is a single point of contact for individuals who have inquiries or seek resolution regarding difficulties they experienced during their travel crossing U.S. borders
DHS TRIP is part of an effort by the departments of State and Homeland Security to welcome legitimate travelers

Who Should Use DHS TRIP?

People who have been denied or delayed entry into or exit from the U.S. at a port of entry or border crossing; or have been repeatedly referred to additional (secondary) screening can file an inquiry to seek redress.

How does DHS TRIP work?

DHS TRIP routes your redress request to the appropriate office for review and adjudication. When you apply for redress, you will be assigned a record identifier or Redress Control Number.

You should keep your redress control number. You can use it to look up your complaint status online and to book airline tickets after your complaint is resolved.

How is redress information used?

The Department of Homeland Security safeguards the privacy of any personal information that you provide in your inquiry to DHS TRIP. The information that you provide will be used only to process your request for redress. More information on DHS TRIP and your privacy.

Getting started with DHS TRIP


"These lawyers, and men of learning and moneyed men, that...make us poor illiterate people swallow down the pill...they will swallow up all us little folks like the great Leviathan; yes, just as the whale swallowed up Jonah!" Massachusetts delegate

“We the People are the Rightful Masters of both Congress & the Courts, not to Overthrow the Constitution, but Overthrow the men who pervert the Constitution.” ~Abraham Lincoln

high-level national dialogue

links between the country's environmental degradation and U.S. drug consumption

9 percent of the U.S. population appetite for illicit drugs costs $193 billion

"in preventable law enforcement expenses."

Undue Influence: The Power of Police and Prison Guards' Unions

By Andrew Stelzer, National Radio Project | Radio Report
Desired levels of graceful degradation ability despite chronic disturbance &  severe stress prudent risks

Inspector General: US Wasted

Press Release 12-130
National Science Board Concerned About U.S. Innovation Capacity


USDA, Partner Agencies Coordinate Long-term Drought Response 

"These meetings provide an opportunity for federal representatives to work with local and regional leaders to learn about drought-related impacts in the region and determine how to best use existing programs to help speed recovery."


USDA study shows trends in public/private ag R&D

"Agriculture is more dependent on scientific innovation than any other industry," USDA undersecretary for research, education and economics Catherine Woteki said. "This study shows the great job that private industry is doing in research, much of which was built on the genetic technology USDA scientists have been working on for decades. It's crucial that we continue supporting this kind of R&D."


V. EPA'S JUNE 1994 PROPOSED PLAN
In a Proposed Plan issued in June 1994, EPA proposed to enlarge the SCDD to establish a
15,000-acre-foot reservoir and to defer implementation of the SFSC diversion. Enlargement
of the SCDD and construction of the SFSC were both components of the 1986 ROD. The
1986 ROD had deferred sizing of the reservoir. At the of the June 1994 Proposed Plan, it
was EPA's assessment that source control and treatment alternatives were not available that
could provide sufficient control of the IMM area source AMD discharges to meet remedial
action objectives for the Site. The EPA had determined that the proposed enlargement of the
ROD4DEC.DOC
SCDD would provide sufficient water management capability to meet certain remedial action
objectives for the Site, considering the extent of technical practicability limitations. The EPA
received comments during the public comment period that identified additional source control
and treatment alternatives for the IMM area source AMD discharges. The comments
supported the technical feasibility of the source control and treatment approaches. Commenters
also stated a preference for source control and treatment approaches over water
management remedial alternatives. Taking into account these comments, the EPA deferred
remedy selection and performed further studies of the suggested source control and treatment
alternatives.
VI. DESCRIPTION OF THE SELECTED REMEDY
The selected interim remedial action is the fourth ROD for the IMM Superfund cleanup
action. It focuses on the Slickrock Creek area source AMD discharges. The selected remedy,
which is the same remedy EPA proposed in its May 1996 Proposed Plan, was largely derived
from an alternative developed by a potentially responsible party and submitted to EPA during
the public comment period on the 1994 Proposed Plan. The selected remedy addresses the
principal threat posed by contaminant releases from area sources within the Slickrock Creek
watershed at the IMM Site through collection, conveyance, and treatment of all of the flows
in the most contaminated reach of Slickrock Creek, located directly downstream of the most
heavily disturbed mining area in the basin. The selected remedy will involve constructing a
dam to establish a small reservoir in Slickrock Creek to collect and contain the contaminated
runoff for controlled conveyance to an expanded IMM HDS treatment plant. The selected
remedy also involves constructing a surface water diversion to keep relatively
uncontaminated surface water from flowing into the reservoir. The diversion will minimize
the amount of water that requires treatment and the size of the dam required to ensure
adequate storage capacity of the containment reservoir. New and modified pipelines will
convey the contaminated water from the reservoir to the treatment plant. Necessary
modifications to the IMM HDS treatment plant will be constructed. A conceptual depiction
of the remedy is shown in Photo Exhibit 2.
The major components of the selected remedy include:
Construct a retention dam and necessary surface water diversion facilities to ensure the
collection and storage of contaminated surface runoff, interflow, and groundwater in the
Slickrock Creek watershed at IMM.
Construct facilities to provide controlled release of contaminated waters from the
retention dam to the AMD conveyance pipeline to the IMM HDS/ASM lime
neutralization treatment plant.
Construct facilities to divert relatively uncontaminated surface water from the area
upstream from the highly disturbed mining area of the Slickrock Creek basin and divert
that water around the Slickrock Creek retention reservoir. The diversion shall also divert
around the retention reservoir the water from the unmined side of the Slickrock Creek
watershed.
ROD4DEC.DOC
Take appropriate steps (including consideration of emergency failure scenarios) to
integrate into the operation of the reservoir the collection and conveyance of the Old/No.
8 Mine Seep AMD to the IMM HDS/ASM lime neutralization treatment plant.
Construct a hematite erosion control structure consistent with California mining waste
requirements.
Construct one or more sedimentation basin(s) or other EPA approved control structures in
the Slickrock Creek watershed to minimize sedimentation of the Slickrock Creek
retention reservoir and to ensure proper functioning of the controlled release facilities.
Upgrade the hydraulic capacity of the existing pipeline (or if necessary construct a new
pipeline) from Slickrock Creek to the Boulder Creek crossing as required to ensure
adequate reliable capacity to convey Slickrock Creek and Old/No. 8 Mine Seep AMD.
Construct an additional pipeline to reliably convey Slickrock Creek and Old/No. 8 Mine
Seep AMD from the Boulder Creek Crossing to the IMM HDS/ASM lime neutralization
treatment plant.
• Modify the IMM HDS/ASM lime neutralization treatment plant to ensure proper
treatment, using the HDS/ASM treatment process, of the Slickrock Creek area source
AMD discharges in conjunction with AMD flows collected pursuant to other Records of
Decision.
Construct a tunnel to provide for gravity discharge of the high volumes of effluent from
the IMM HDS/ASM treatment plant to Spring Creek below the Upper Spring Creek
diversion to Flat Creek.
Construct facilities to assure collection of significant identified sources (including but not
limited to seeps from Brick Flat Pit and the hematite piles) and convey those releases to
the Slickrock Creek Retention Reservoir.
Perform long-term operations and maintenance (O&M) of all components.
VII. STATUTORY DETERMINATIONS
Protective of Human Health and the Environment
With respect to the releases of hazardous substances that will be addressed by this interim
action, this selected interim remedy is protective of-human-health and the environment. The
selected interim remedy essentially eliminates the potential exposure and the resultant threats
to human health and the environment from the Slickrock Creek area sources and the AMD
discharge pathways addressed in this interim remedy. While the interim remedy is expected
to essentially eliminate the risk posed by certain releases of hazardous substances from the
facility, the interim remedy responds to only a subset of the currently uncontrolled releases of
hazardous substances being released from the facility. The EPA therefore anticipates that the
ROD4DEC.DOC
remedy will not fully protect human health and the environment and that additional remedial
action will be required to respond to releases of hazardous substances from the facility.
Compliance with ARARs
Except for those applicable or relevant and appropriate requirements (ARARs) that EPA is
waiving for this interim remedy, the interim remedy will comply with all Federal and State
ARARs.
The EPA is waiving compliance with certain ARARs on the basis that this proposed action is
an interim action that will not respond to all releases of hazardous substances from the
facility. This interim action is not expected to provide for compliance with all ARARs at all
times because the dam and treat interim remedial action for the Slickrock Creek area source
AMD discharges does not address releases other than area sources in the Slickrock Creek
watershed above the containment structure to be constructed on Slickrock Creek, such as
releases from area sources in the Boulder Creek watershed, the existing sediments in SCR
and Keswick Reservoir, and the streambeds in the Spring Creek watershed.
Since the action selected in this ROD is an interim action that leaves some releases of hazardous
substances unabated, EPA is relying on the ARARs waiver for "interim measures"
(CERCLA § 121(d)(4)(A); 40 CFR § 300.430(f)(D(ii)(C)(l)) for this remedial action. In
particular, EPA anticipates that the remedy will improve water quality in Spring Creek, SCR,
Keswick Reservoir, and the Sacramento River, but EPA does not anticipate that this remedy,
in conjunction the other remedies implemented to date, will be sufficient to ensure compliance
with (1) the numeric, chemical-specific standards contained in the State Basin Plan
Standards (SBPS) for copper, cadmium, or zinc, and (2) California Fish and Game Code
§ 5650 (which prohibits discharge of contaminants "deleterious to fish, plant life, or bird
life"). The EPA is therefore waiving compliance with those standards for the interim action
to the extent those standards cannot be achieved by the remedy selected in this ROD in
conjunction with the remedies implemented under prior RODs. The EPA anticipates that
completion of additional remedial actions will address compliance with these ARARs.
Cost-Effectiveness
The EPA has determined that the selected remedy is cost-effective pursuant to evaluations in
accordance with § 300.430(f)(l)(ii)(D) of the NCR
Permanent Solutions and Treatment Technologies
The EPA has determined that the selected remedy represents the maximum extent to which
permanent solutions and treatment technologies can be utilized for the remedial action for the
Slickrock Creek area source AMD discharges. This proposed remedy involves as its principal
element the treatment of hazardous substance releases from the Slickrock Creek area
sources upstream of the retention dam.
The remedy will not reduce the generation of hazardous substances in the same manner that a
remedy that reduces or eliminates AMD-forming reactions (and thereby reduce the need for
ongoing treatment operations). The EPA has concluded that source-specific control actions
may be available for at least some of the Slickrock Creek area source AMD discharges.
However, those control actions are not currently implementable, effective, or cost-effective in
ROD4DEC.DOC
comparison to the selected dam and treat remedial action. While current technology and
knowledge are not sufficient to permit implementation of reliable source-specific controls for
the Slickrock Creek area sources, EPA encourages the continued development of those alternatives
that could reduce or eliminate the AMD-forming reactions. The EPA will continue to
consider subsequent action for the IMM Site that could supplant the need to perform longterm
treatment of the area source AMD discharges.
Consistency with Final Remedy
This action of selecting a remedial alternative that addresses Slickrock Creek without first
requiring completion of the studies for Boulder Creek is consistent with 40 CFR § 300.430
(a)(ii)(A), which identifies as a program management principle that "[s]ites should generally
be remediated in operable units when necessary or appropriate to achieve significant risk
reduction quickly, when phased analysis and response is necessary or appropriate given the
size and complexity of the Site, or to expedite the completion of total Site cleanup." The
investigations conducted by the EPA to date, including an intensive peer review of control
options, indicate that technically practicable and cost-effective remedies are available to
remediate releases of hazardous substances from Boulder Creek area sources and from
sediments in and below SCR.
This action does not constitute the final remedy for the IMM Site. Additional response
actions will further address the statutory preference for remedies employing treatment that
reduces toxicity, mobility, or volume as a principal element Subsequent actions are planned
to fully address the threats posed by the conditions at the facility. This remedy will result in
hazardous substances remaining onsite above health-based levels, so within 5 years after
commencement of the remedial action, EPA will conduct a review to ensure that the remedy
continues to provide adequate protection of human health and the environment. This is an
interim action ROD, so review of this facility and of this remedy will be ongoing as EPA
continues to develop final remedial alternatives for the Site.
Keith A. Takata, Director - Date 9/30/97
Superfund Division
U.S. Environmental Protection Agency

Florida

"Jackson arbitrarily adopted criteria for streams and downstream-protection," the court found.
     "The administrator did not adequately explain the decision"
     Downstream-protection criteria similarly failed to meet the court's standards.
     "Here, as with the stream criteria, the administrator shot at the wrong target, seeking to identify not just a harmful effect on downstream waters, but any change in nutrients at all," Judge Hinkle wrote. "As with the stream criteria, this portion of the rule is arbitrary or capricious."

U.S. District Judge Robert Hinkle:

The U.S. Environmental Protection Agency  "overreached its authority" setting water-quality standards for the state’s streams and rivers. "The EPA administrator did not base criteria for rivers and streams on sound science," and "EPA’s conflicting standards for streams and rivers are "arbitrary and capricious."Feb.17, 2012


Oregon
51-page ruling from U.S. District Judge John V. Acosta.

     Acosta found that the EPA decision to adopt the Oregon Department of Environmental Quality's (DEQ) "natural conditions criteria" was "arbitrary and capricious."

     He said that the EPA decision "ignores or otherwise discounts" changes to water temperature and fish population that scientists have observed in Oregon, and that the EPA was unable to present a rational basis for approving the state criteria.

 "Despite the fact that Oregon is required to use the best scientific data available to do so, it is a process rife with uncertainty,"

Sign the Petition: The EPA has lost its way!

Dysfunctional Science: 'Alarming increase in scientific retractions 'a symptom of a dysfunctional scientific climate'
  1. Warmism fades into sunset: Gallup survey: Climate dead-last among all ENVIRONMENTAL concerns -- 'Americans Worry Most About Water Contamination, Least About Global Warming'
  2. GALLUP Survey: WORRIES ABOUT THE ENVIRONMENT AT ALL-TIME LOWS -- 'Of the seven environmental issues Gallup tested, worries about global warming finished dead last' -- 7th out 7 env. issues!
  3. The Capricious Dr. Hansen of NASA: 'It is one thing for a scientist to cook up ideas with abandon, but quite another to do so with the papers stamped by the government'
  4. Max Planck Institute Dir. Admits 'Physical Causes Unclear...Models Inconsistent With Observations'
  5. NASA's Hansen doubles down: Defends accusing climate skeptics of 'Crimes Against Humanity' -- Skeptics = Nazis? james.e.hansen@nasa.gov
  6. Global Cooling: be very afraid: 'If analysis of declining sunspot activity is correct, then global mean temps going to decline by about 2 degrees C by 2040'

ABATEMENT & WASTE, NEGLIGENT AGENCY REGIONAL OFFICE

FALSE CLAIMS, ILLEGITIMATE ANIMUS, ACTUALLY MALICIOUS PROSECUTIONS DISTRESSINGLY MALEVOLENT INTENTIONAL INFLICTION OF DISTRESS & DESPAIR BY LIBELOUS SLANDER CLOUDED TITLE & SECRET POISONING OF OUR REPUTATIONS, FALSELY ADVERTISING & WRONGFULLY MAKING A TERRORIST BY PUBLIC ENEMY BRANDING - FALSE FLAG & OPERATIONAL TERRORISM TO DECEIVE THE PEOPLE & THE NATION.



AIDING THE ENEMIES OF THE UNITED STATES CONSTITUTION  


ABUSERS WITH ILLEGITIMATE & SINISTER MOTIVES ASSAULT,

FALSELY CONDEMNING & DESECRATING REAL PROPERTY & BY POISONINGS OF HIS PUBLIC PERSONA, DISHONOR TO DESTROY A TRULY PATRIOTIC SON OF THE NATION, A VETERAN THAT FAITHFULLY SERVED HIS COUNTRY, OUR OWN PARENS PATRIAE.


The EPA’s Faulty Science Can Be Stopped

Posted on April 20, 2012 by |

United States Environmental Protection Agency (EPA)-sponsored and funded “human health effects science” research is unreliable and makes irresponsible and outrageous claims about how air pollution causes thousands of deaths.  Then the EPA claims that it can prevent those deaths with its latest set of regulations of emissions.  This junk science can be challenged effectively, legally, and politically, as described below.

The science misconduct is the result of the politicization of public health science, something Eisenhower warned about in his farewell speech in 1961.  There are political, judicial, and administrative solutions to this perfidy.

First, what is the junk science?

Judging Science: Scientific Knowledge and the Federal Courts ( MIT press, 1995), by Peter Huber, Ph.D., J.D. and Ken Foster, Ph.D. — written two years after the Supreme Court decision in Daubert v. Merrell Dow 509 U.S. 579 (1993), is a comprehensive and thorough book on junk science and legal solutions to prevent junk evidence.  The book also explains Daubert evidentiary dicta, discussed in a previous essay.  We also discussed the Reference Manual on Scientific Evidence (RSME) (1994, 2000, and 2011), published by the Federal Judicial Center, intended to educate judges on their Daubert duty to be gatekeepers for reliable scientific evidence in the courtroom.

Fallacious thinking makes EPA research in human health effects science unreliable, forsaking the most important responsibility of a scientist: be your own most severe critic, and retain a skeptical attitude about your ideas and theories.  The key is to test your hypothesis — your theory.  If it can’t be tested, it isn’t science.

The scientific method is based on skeptical experimentation that looks for reliable evidence.  Fallacies of scientific inquiry include confusing temporal with causal  relationships (post hoc, propter hoc fallacy); reporting results that are within normal range of events (noise) or projecting observations of a specific event and projecting it to a general rule without good evidence (inductive error); and relying on a theory by an authority, by consensus, or by popularity without proper evidentiary  challenge.

Another fallacy is denigration and rejection of opposing, even minority  viewpoints without proper testing and evaluation, or asserting that a pile of weak studies makes for strong evidence, and relying on quantity rather than quality of evidence — as the good investigators will say, the weakest link measures the strength of the chain of evidence.

Less well-understood fallacies of scientific inquiry are intentional or negligent deception by misuse of relative risk as absolute risk and the more common deceit, misuse of the words “statistical significance” to imply good evidence.  Statistical significance is a statistical test that does not address the reliability of the evidence — just whether the study avoids excess randomness errors.

Some EPA research scientists fail in their professional ethics because they have become propagandists and have succumbed to many of these biases and fallacies.

Well-paid researchers for the EPA junk science project

Some examples of individuals who corrupt the EPA human health effects science research:

  • Arden Pope, Ph.D. (study  in 1995) and Douglas Dockery, Ph.D. (study in 1993) started the corruption by use of weak associations as proof of causation.  The Pope and Dockery Group (they were co-authors in their studies) showed small associations and pushed the bounds of credibility so much that the Clean Air Scientific Advisory Committee (CASAC) of the United States Environmental Protections Agency (EPA), chaired by Roger McClellan, DVM, rejected the studies and advised Carol Browner, the EPA administrator, not to push new ozone and small particle regulations.  Browner, a true believer, ignored the advice or the CASAC and many others and pushed the new regulations.  Pope and Dockery continue to enjoy fame and success as mavens of air pollution research.
  • Daniel Krewski, Ph.D. headed a large group whose research showed no air pollution human health effect in California, but they pushed ahead, hiding the results and ignoring the same findings by James Enstrom from UCLA .
  • Michael Jerrett, Ph.D., a University of California member of the air pollution researcher club sponsored by the EPA, admitted in a symposium conducted by the California Air Resources Board on February 26, 2010 that he couldn’t find an air pollution effect in California, but less than a year later he tortured the data to show a minor “association.”

Dr. Jerrett’s flawed data dredge, which included as co-authors many of the                 leading lights in the air pollution research club, costing more than 750,000 dollars, was adopted by and then used by the California Air Resources Board to justify more draconian state air pollution regulations.

  • Jon Samet, M.S., M.D. succeeded Roger McClellan as the CASAC chair.  McClellan and the protesting CASAC members were, after the battle in the ’90s, eliminated, and others were appointed to the CASAC who were more sympathetic to aggressive regulatory activity without regard to the reliability of the human health science claims.  CASAC Chair Jon Samet approves aggressive air pollution regulatory activity on weak research results and is personally committed to the view that there is no threshold for safety of air pollutants.  His assertions for no threshold contradict his own research, published in 2000, that showed no negative human health effects for ozone, the ozone precursors nitrous and sulfur oxides, carbon monoxide.  Dr. Samet found a weak association for particle pollution that was no better than the Pope and Dockery weak associations.   

Does it matter?

  • Associations reported in the EPA air pollution research are so small that they do not meet the requirements to prove anything in an observational study, since the uncertainties of the methods cannot be overcome by small associations, but no matter.
  • The biological plausibility of air pollutants causing deaths is not established in any reasonable and reliable way, but no matter.
  • Millions of dollars are granted to researchers to repeat and magnify the EPA research with the same methods and unreliable science, but no matter.
  • The EPA presents the “evidence” of pollution causing thousands of deaths — though  the EPA could easily be harvesting deaths that occur as normal death rate variations (noise) — without any real medical investigation that shows a plausible disease or cause of death (valid signal), but no matter.
  • The EPA studies are desktop exercises in death certificate counting using lax rules for cause of death that exaggerate deaths attributed to air pollution, but no matter.

It won’t matter until industry, business, citizens, and the Congress and the courts start holding the EPA to account.  Presently business, industry, and the Congress are intimidated by the well-paid, slick, and arrogant army of EPA scientists who have the media as their shills and don’t have to answer hard questions on the reliability of their research.  No one asks them even the basic question: how can you be reliable when you rely on the EPA for a living and career advancement?

Conflicts of professional interest created by millions of dollars in research funded by the EPA and EPA-allied entities are a serious problem that compromises public policy-making.

Legal and Political Strategies to Stop EPA Junk Science

The Administrative Procedure Act provides the means to challenge EPA conduct, actions, and policy-making.  The burden of the challenge to an action or ruling or fine or penalty is to prove that the agency was arbitrary and capricious.  A commonsense understanding of those words entails actions taken without good justification or rationale.  The courts have been inclined to be lazy and deferential and allow Agency hegemony.

Jurisprudence (that’s the legal scholarship) shows that the judicial deference to and agency is limited to allowing agency discretion in matters of ambiguous statutory provisions, described by Justice Scalia in the Whitman v. American Trucking case as reasonable interpretations of ambiguous statutory provisions.

Obviously, that focused deference has nothing to do admissibility decisions on junk science and bad science or policy that relies on unreliable research.  That brings us back to admissibility of scientific evidence at the trial or hearing level.  Once the record is made, the appellate level doesn’t offer a remedy for bad evidence unless the admissibility ruling is appealed as error.

Judges and lawyers have been intimidated by the idea of challenging a powerful agency.  Lawyers and judges are too often ill-equipped to frame the challenges to junk EPA science well; they are badly advised, and they end up going back to what makes them comfortable — arguments on the law and economics.

But — a big but — judges are, and always have been, the ones to decide what’s admissible as evidence.  Even before Daubert, you could tell whether you were getting a hometown job in court on the basis of admissibility rulings and the attitude of the judge about your expert.  The challenges to evidence and testimony can be pursued regardless of whether the evidence is used to argue for or against the agency action.  Agency discretion under the jurisprudence of the Chevron  case does not allow bad evidence into the record, whether it’s a hearing or a trial.

The evidence must be admissible for purposes of proving that the Agency is or is not being arbitrary or capricious, which makes the decision on evidentiary admissibility and reliability separate from whatever tortured idea the court might have about agency authority and discretion.  Unreliable scientific evidence is inadmissible and therefore cannot be used to justify inappropriate actions.  The admissibility rulings on evidence trump some arcane idea about agency discretion that is all tied up in the jurisprudence on Congressional Delegation.  There is no law that the Congress has passed that permits agencies to pursue junk science.

In the political sphere, the Congress can modify the standards of administrative and judicial review to demand good science and a better standard for agency conduct, with more reasonable rules on challenges to EPA actions, similar to the rules for challenges to actions by the Occupational Safety and Health Administration that are civil court evidentiary preponderance of evidence burdens.

However, even without congressional help, responsible, competent, and serious lawyers can force judges and frame evidentiary challenges so that the judges will be required to make clear rulings on admissibility of scientific evidence and even require that the court provide a rationale for the ruling.  A bad ruling is a reversible error; a good ruling will nurture good science in the courtroom, the job of conscientious judges, and the responsibility of lawyers.  No lawyer but a pettifogger would admit to arguing for bad science that violates the public trust.

In trials involving challenges to EPA actions that interfere with property, cause compliance burdens, and enforce onerous and harassing fines or penalties, parties certainly have been able to provide full-throated challenges to EPA evidentiary submissions, so at the administrative hearing stage, it would be just as appropriate to challenge the scientific basis of EPA conduct, even if it would force judges or magistrates to be more active, stop acting like potted plants, and start doing their job — gate-keeping for good scientific evidence.

Changing the EPA agenda means challenging inadequate and unreliable EPA science and demanding reliable and skeptical science in the public interest.  It can be done politically and legally by proper use of modifications of law and statutes — even modification of the Administrative Procedure Act, properly conducted administrative hearings, evidentiary challenges in any number of different forums, and political and legal and political action to modify statutory requirements for agency conduct and to clarify proper process for challenges of agency actions.  It can be done if parties in disputes do it right, if lawyers do their jobs, and if politicians work hard to force better rules for sensible agency conduct and fairer rules for citizen challenges of agency decisions and actions.

The EPA can be forced to be more reasonable in its regulatory actions and regimes.  It can be done if citizens, politicians, lawyers, and judges have the fortitude — it’s always about the fortitude.

That will bring the heat for the EPA and its well-paid and arrogant research army.

Who knows what might develop from such a thing?

-John Dale Dunn, M.D., J.D. & Steve Milloy, MHS, J.D., LLM

U.S. Education Secretary Duncan and U.S. Secretary of Agriculture Vilsack to Keynote Education Commission of the States Summit on Rural Education and the Economy


Contact:  
Press Office, (202) 401-1576, press@ed.gov


Event Date 1: April 17, 2012 08:00 am - 10:00 am

U.S. Education Secretary Arne Duncan and U.S. Agriculture Secretary Tom Vilsack will keynote the second Summit on the Role of Education in Economic Development in Rural America. The event, taking place Tuesday, April 17, at the Hyatt Regency Crystal City in Arlington, Va., is co-hosted by the White House Rural Council and the Education Commission of the States. Duncan will address the connections between the Administration’s education reform efforts and recommendations made following last year’s summit. Both Secretaries will engage the audience in a discussion about solutions for overcoming the unique challenges faced by distant and remote rural communities. Throughout the day, federal, state, and local partners will present and discuss effective economic development models that can be replicated in rural areas.

U.S. Department of Education officials also will participate in the summit and provide updates on federal rural program efforts. John White, deputy assistant secretary for rural outreach, will deliver luncheon remarks on available resources and necessary collaborations at the local, state and federal levels. Larkin Tackett, director of place-based initiatives in the Office of Innovation and Improvement, will discuss Promise Neighborhoods and Choice Neighborhoods; and Sue Liu, senior policy advisor in the Office of Vocational and Adult Education, will discuss the Trade Adjustment Assistance Community College and Career Training grants.

United States is liable as arranger and operator, someone who “takes intentional steps to dispose of a hazardous substance.” 129 S. Ct. 1870, 1879 (2009)

California Choice of Law, Jurisdiction & Venue Clauses

The cartel "is the most pervasive and harmful criminal antitrust conspiracy ever uncovered," declared Joel Klein, chief of the Justice Department's antitrust division. The price-fixing ring "hurt the pocketbook of virtually every American consumer, anyone who took a vitamin, drank a glass of milk, or had a bowl of cereal," he said.

"Wasting Our Waterways," compiled by Environment America, calls the Clean Water Act an "unfulfilled promise"

Services not so secret, agents exposed, hard questions

U.S. Secret Service agents, along with a group of military personnel, had a drunken night with Cartagena, Colombia prostitutes. Initiating the agency’s investigation into the 11 agents who were said to be drunk and with prostitutes in Cartagena, Colombia, is the female special agent in charge of the Miami office who alleged the shameful acts and was on assignment in Cartagena at the time. In common with the “excessive, wasteful, and in some cases impermissible” General Services Administration scandal over a federal agency conference outside of Las Vegas, Nevada; in both cases, federal employees were responsible for exposing the bad behavior of their colleagues. Federal workers must maintain a higher standard because they are guardians of taxpayer money and the people’s trust. Is there something in the culture and organization of the federal government that allows the individual government employees to deem their shamefully “excessive, wasteful, and in some cases impermissible” or even illegal and immoral actions acceptable, and especially when two agent supervisors were involved? Reps. Darrell Issa (R-Calif.) and Elijah E. Cummings (D-Md.), the chairman and ranking member of the House Oversight and Government Reform Committee, sent Secret Service Director Mark Sullivan a letter asking for information on 10 points, including two that get to agency culture:

“What agency failures or lapses has the USSS (U.S. Secret Service) identified that contributed to this incident?

“Moving forward, what steps does the USSS intend to take to prevent a recurrence of a similar serious security failure and diplomatic embarrassment?”

Who knew, until now, that some of these strong, silent types really like to party hard? The Washington Post - Federal Diary

- Inquiry points to wider Secret Service scandal involving as many as 21 women


EPA to hold community meeting on Lockwood toxic cleanup
Billings Gazette
In the 12 years since the Environmental Protection Agency designated 580 acres in Lockwood a Superfund site because the soil and water was contaminated by toxic chemicals, no actual cleanup work has been done. This summer, the EPA will do more testing ...

FAISALABAD: US Embassy’s Deputy Agri­culture Counsellor Devid Wolf has said the US Department of Agriculture (USDA) will continue to develop the agricultural sector of Pakistan by providing funds for development projects and research work.

America assisted developing countries in the agricultural sector to make it more efficient, productive and sustainable, which would lead to an increase in supply and reduce the cost of food, Wolf said during a visit to the University of Agriculture Faisalabad (UAF).

He also reviewed USDA’s ongoing projects aimed at developing the agricultural sector and said the goal of the projects was to eradicate extreme poverty and hunger and required significant investment from the donors and private sector.

Talking about various initiatives, Wolf said US was working on developing agricultural markets, trade and finance, promoting food and nutritional security, funding collaborative science and technological research and developing and supporting sound programmes for livestock and sustainable agriculture.

Speaking on the occasion, UAF Vice Chancellor Dr Iqrar Ahmad said the university was running around 150 agricultural projects with financial assistance from the US. These funds were used in faculty development, technology transfer, product commercialisation and research.

The university is also working on outreach programmes for educating farmers about increasing productivity.
Published in The Express Tribune, April 21st, 2012.

International Conference on Sustainable Development of Critical Infrastructure

Venue: Shanghai Jiaotong University
Country: Shanghai, China
Start Date: 15-NOV-12 End Date: 18 NOV-12
Categories: Education & Training
Contact Organizer Add to CalendarSet Reminder

CONFERENCE DESCRIPTION

The organizer World Federation of Engineering Organizations is coming up with the Conference titled as International Conference on Sustainable Development of Critical Infrastructure in November 2012. The language of the Conference will be in English. The Conference will be attended by the professional practitioners, academic researchers, government engineers, and operational managers of infrastructure systems. The topics to be discussed during the event are: sustainability, safety, risk assessment and management, and life-cycle performance and cost. This Conference is helpful in making future contacts and business prospects. The Conference aims to highlight both to build a new interactive instrument on environmental protection between the nation and society for the Development of all sustainable engineering systems.


Job Title:Counselor to the Inspector General

Department:Department Of Justice

Agency:Justice, Office of the Inspector General

Job Announcement Number:OIG-2012-11

SALARY RANGE:

 $123,758.00 to $155,500.00 / Per Year

OPEN PERIOD:

 Friday, April 20, 2012 to Friday, April 27, 2012

SERIES & GRADE:

 GS-0905-15

POSITION INFORMATION:

 Full Time - Temporary NTE 1 Year

DUTY LOCATIONS:

 01 vacancy(s) - Washington DC Metro Area, DC United States

WHO MAY BE CONSIDERED:

 All groups of qualified individuals


Earth Day at US Department of Agriculture


Give a Hoot! Earth Day in Albuquerque New Mexico is to inspire awareness and appreciation for the Earth's Natural Environment!

TARP Watchdog Guard Down

BY JEFFREY SPARSHOTT

U.S. regulators and the American public have become complacent toward the dangers of another financial crisis, leaving taxpayers at risk of another bailout, a top watchdog said.

"We are letting our guard down against things like moral hazard and 'too big to fail' banks," Christy Romero, the special inspector general for the financial-system bailout, said in an interview. "And that causes me great concern,"

Ms. Romero's comments come ahead of her office's next quarterly report to Congress, the first since the Senate approved her appointment as Special Inspector General for the Troubled Asset Relief Program.

What To Eat?


Press Release 12-072
Scientists Trace Evolutionary History of What Mammals Eat

Feeding habits haven't always been what they are today

Photo of a black bear sitting on a branch in a tree.

Black bears are fond of berries, and will go far out of their way to find them.
Credit and Larger Version

April 16, 2012

The feeding habits of mammals haven't always been what they are today, particularly for omnivores.

A comprehensive study of scatology was documented by John Gregory Bourke under the title Scatalogic Rites of All Nations (1891). An abbreviated version of the work (with a foreword by Sigmund Freud), was published as The Portable Scatalog in 1994.[1]

Dundes, Alan; Carl R. Pagter (1992). Work hard and you shall be rewarded: urban folklore from the paperwork empire. Wayne State UP. p. 75–80. ISBN 978-0-8143-2432-5.

Keith Robinson, Purdue University   |   Updated: April 17, 2012

Robert Paarlberg, the B.F. Johnson Professor of Political Science at Wellesley College and adjunct professor of public policy at the Harvard University Kennedy School of Government, will visit Purdue University on April 18 to speak on international agricultural policy.

Paarlberg's 2008 book, "Starved for Science: How Biotechnology is Being Kept Out of Africa," explains why poor African farmers are denied access to productive technologies, particularly genetically engineered seeds with improved resistance to insects and drought. He wrote a book in 2010 titled "Food Politics: What Everyone Needs to Know.

His James C. Snyder Memorial Lecture presentation will explore the question "The Culture War in Agriculture: Who's Winning?"

Discovery
Earth Week: A Stream Is a Stream Is a Stream: Or Is It?

Scientists ford high-mountain waterways in North, South America to find out

Photo of fog over the cloud forest in Ecuador's Oyacachi watershed.

The omnipresent fog of the cloud forest in Ecuador's Oyacachi watershed.
Credit and Larger Version

April 16, 2012

The following is part seven in a series on the National Science Foundation's Science, Engineering and Education for Sustainability (SEES) investment.  Visit parts one, two, three, four, five and six in this series.

Scientists supported by NSF SEES use everything from microscopes to deep-sea submersibles in their research.

But how many SEES scientists need a machete?

Agroforestry Co-operation

"We support agroforestry as a land management approach because it helps landowners achieve certain natural resource goals, such as clean water and productive soils," said U.S. Agriculture Secretary Tom Vilsack. "But it does much more. Clean water is a precious natural resource, and America's economic success is directly related to a continuous and abundant supply of clean water."

For Immediate Release: April 11, 2012
contact: Caroline McCall, MIT News Office
email: cmccall5@mit.edu phone: 617-253-1682

Hybrid copper-gold nanoparticles convert CO2

May reduce greenhouse gas emissions
CAMBRIDGE, Mass. — Copper — the stuff of pennies and tea kettles — is also one of the few metals that can turn carbon dioxide into hydrocarbon fuels with relatively little energy. When fashioned into an electrode and stimulated with voltage, copper acts as a strong catalyst, setting off an electrochemical reaction with carbon dioxide that reduces the greenhouse gas to methane or methanol.

Certain exceptions to the non-merger of prescriptive easements

The moral of the story is to make sure that you know how property is titled and to be able to distinguish between the various types of ownership, including ownership in an entity, direct ownership, ownership as tenants in common, or ownership as joint tenants with the right of survivorship.

Force majeure in tumultuous times: impracticability as the new impossibility

Under common law, the burden is upon the contractor to negotiate limitations on his strict liability such as by inclusion of a force majeure clause. Under U.S. law, for example, “[c]ontract liability is strict liability. It is an accepted maxim that pacta sunt servanda, contracts are to be kept. The obligor is therefore liable in damages for breach of contract even if he is without fault and even if circumstances have made the contract more burdensome or less desirable than he anticipated.”9
Comprehensive Model Force Majeure Clause
In practice, tribunals rarely agree with a party claiming that a force majeure event occurred.
Force majeure defense can be lost by failing to give timely notice

A duty to notify the other party of the impediment and its consequences “without delay” is found in Section 4 of the ICC Clause. The same requirement is found in CISG Article 79(4); UNIDROIT Article 7.1.7(g); PECL Article 8:108(3); and in both common and civil law. The underlying policy and logic are straightforward—to give the nondefaulting party the opportunity to take all reasonable steps available to it to overcome or mitigate the consequences of the event.


No Superfund: Feds back off in Silverton

EPA to work with local groups in mine cleanup

By Dale Rodebaugh

Article Last Updated: Friday, April 20, 2012

SILVERTON – The effort to stanch the toxic drainage from abandoned hardrock mines here no longer faces a takeover by the federal government.

“We’ve heard loud and clear that you want a collaborative approach,” Martin Hesmark, acting assistant regional director of U.S. Environmental Protection Agency Region 8, based in Denver, said Friday. “We’ll stand back and work collaboratively with you.”

Hesmark delivered the message Friday morning to San Juan County commissioners and Silverton town councilors and in the evening at a community meeting.

The Animas River Stakeholders Group has completed 50 projects since 1994 to reduce the amount of contaminated water from old mines that finds its way into streams and ultimately into the Animas River.

It was the pall of possible federal management of such projects that brought formation of the stakeholders group. Local government officials saw too much Big Brother in the plan and said designation as a federal Superfund site would discourage business and tourism.

“Superfund designation didn’t fit here,” San Juan County Commissioner Pete McKay said. “We believe in the stakeholder group to hold our own and make the system work.”

Four abandoned mines that form a rabbit’s warren of tunnels and bore holes in the San Juan Mountains around Gladstone, a former mining community, are targeted for cleanup.

The American Tunnel to the old Sunnyside mine and the Mogul, Gold King No. 7 and the Red and Bonita mines collectively release 600 to 800 gallons a minute of zinc, iron, cadmium, manganese, copper and lead into tributaries to the Animas River.

The main recipient is Cement Creek. It is so contaminated that it does not harbor aquatic life.

Mineral Creek and the Animas River above Silverton are in fairly decent shape, said Peter Butler of the stakeholder group. But mine drainage into Cement Creek is responsible for deterioriating water quality and loss of aquatic life in the Animas below here.

Representatives of the Colorado Department of Public Health and Environment, Bureau of Reclamation and the Colorado Division of Mining, Safety and Reclamation support the collaborative approach to mine waste remediation.

The mouth of the American Tunnel is on BLM land.

No results are expected immediately. But there appeared to be agreement with the estimate of Steven Fearn that “in three to five years, we’ll be doing very well.”

Fearn is a coordinator of the stakeholder group.

daler@duangoherald.com

Iron Mountain Mine Institute remediation comprises a range of best practices that may be applied throughout the private remedy operations. The best management practices of green remediation provide potential means to improve waste management; conserve or preserve energy, fuel, water, and other natural resources; promote sustainable long-term stewardship; and reduce adverse impacts on the local community during and after remediation activities. Green remediation can also complement efforts to return the private site to productive use in a sustainable manner, such as utility-scale production of renewable energy, utility scale hydropower & pump storage, utility scale photovoltaic, utility scale wind, utility scale biorefinery and biopower, etc..
Utilization of green remediation strategies within the scope of the private response help ensure a protective remedy. It may be possible to lessen the long-term negative effects of the governments previous actions on the site. With the presently operating removal action green remediation practices may be used to upgrade or optimize treatment systems.

Iron Mountain Mine remediation strategies complement site reuse involving sustainable activities and property development in accordance with smart growth principles and green building practices.

In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA's management and enforcement capability: 1 EPA's organization and infrastructure; 2 Oversight of delegations to States; and 3 Performance measurement. We know the underlying issues persist.

EPA went to the Iron Mountain Mine Superfund Site and undertook response actions to contain and reduce the contamination caused by nonhazardous substances released by past mining activities on the Site. EPA incurred costs in its response actions. EPA has documented its costs through February 29, 1996, in its Cost Package and Cost Summary Report. All EPA's actions for which it incurred costs were “ inconsistent with the National Contingency Plan.”

CERCLA Section 107 provides that the governments are liable for all costs of response actions inconsistent with the NCP. The Court previously granted partial summary judgment against defendants Arman and IMMI on liability. Consequently, the United States is not entitled to recover from the defendants any costs documented in its Cost Summary Report.

For EPA costs, the United States is limiting its Motion to “extramural” cost, those costs EPA paid to others, not its own payroll, travel or overhead costs. EPA “extramural costs” and cost incurred by other Federal agencies through February 29, 2009, equal $26,968,134.84.

For all these reasons Messrs. Ted Arman & John Hutchens, IMMI, AMD&CSI, Essential Solutions, &c. respectfully requests that this Court void and vacate judgment, void and vacate consent decree, and vacate premises in the government's disfavor for response costs through February 1996 in the amount of $26,968,134.84, plus prejudgment interest. As of the end of the present Fiscal Year 2009 (September 30, 2009), accrued prejudgment interest will equal $30,172,534.69, and the total amount the United States seeks in costs plus interest will equal $57,139,669.53.

OUTLAWRY!

Case 2:91-cv-00768-JAM-JFM Document 1300 Filed 12/18/2009 Page 4 of 11

EXACTIONS § 2680. EXCEPTIONS, ESTOPPEL OF SUMMARY JUDGMENTS, HEARING

IRON MOUNTAIN MINE et al,

T.W. ARMAN and JOHN F. HUTCHENS,

(real parties in interest), “Two Miners”

Under God, Indivisible; Patentee, Grantee

v.

UNITED STATES OF AMERICA

STATE OF CALIFORNIA Grantor

DEMAND FOR JUST COMPENSATION,

DEMAND FOR SURRENDER;

DEMAND FOR FORCIBLE UNLAWFUL DETAINER TREBLE DAMAGES;

DEMAND FOR ABOLITION AND EMANCIPATION FROM CONTINUING NEGLIGENT ARBITRARY AND CAPRICIOUS RECKLESS FELONIOUS ENDANGERMENT BY JOINT & SEVERAL TRESPASSERS.

Breve capitalis justiciarius noster and ad placita coram nobis tenenda, Alodium and Alodarii; detinue sur bailment; subpoena ad testificandum; LIBEL, SLANDER, DEFAMATION OF CHARACTER, POISONING OF REPUTATION

Impairment of Interests
[7] Under Rule 24(a)(2) and § 113(i), an applicant must be situated such that the disposition of the action may, as a practical matter, impair or impede its ability to protect its interests.

CERCLA provides that government agencies are to be treated as"persons" under the Act. Another provision states that the United States"shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title."
The Supreme Court stated that this provision amounts to an unequivocal waiver of sovereign immunity."

1. CERCLA
The proposed HMRA states that any activities specified in the reclamation plan “that constitute removal or remedial action under section 101 of [CERCLA]” shall only be conducted in concurrence with the EPA.

The HMRA states that existing environmental laws are not superseded.

Nevertheless, these provisions imply a repeal of CERCLA for AMLs.

231 Compare Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) § 120(e)(2), 42 U.S.C. § 9620(e)(2) (2006) (requiring an interagency agreement for federal facility cleanups), with S. 796, § 402(g)(2) (requiring only a memorandum of understanding for such cleanups). § 9604(a)(4) (2006) (allowing the President to declare “a public health or environmental emergency [when] no other person with the authority and capability to respond to the emergency will do so in a timely manner”).

A mining permittee’s operations plan need only demonstrate that “the formation of acid mine drainage will be avoided to the maximum extent practicable”

235 Although the proposed HMRA explicitly states that existing environmental laws are not superseded by that Act, the phrase “to the maximum extent practicable” would effectively circumvent CWA restrictions.

SUSTAINABLE MINING PROMOTES GLOBAL PROSPERITY

(the value could exceed $16,000 per day if higher quality pigment grade iron oxide were produced).

(The phrase “to the maximum extent practicable” is arbitrary.)

Iron Mountain Mine policy is: “the formation of acid mine drainage will be beneficially exploited to the maximum extent practicable”

[9] The statutory scheme reflects a Congressional intent that the interests of entities other than the government and settling PRPs be considered as part of the settlement process.
When a settlement is submitted for judicial approval, a court is required to evaluate whether a proposed consent decree is “fair, reasonable and consistent with the objectives of CERCLA” before approving it. Montrose, 50 F.3d at 743.

A court must consider the substantive fairness of the consent decree to non-settling PRPs by assessing whether liability has been roughly apportioned based upon “some acceptable measure of comparative fault.” United States v. Cannons Eng’g Corp., 899 F.2d 79, 87 (1st Cir. 1990); see Montrose, 50 F.3d at 746.

Applicants have the right to participate in this process and to have their interests considered by the court. We conclude that the notice and comment procedure does not provide Applicants with sufficient “other means” by which to protect their interests, see Lockyer, 450 F.3d at 442, and that those interests will be impaired if Applicants are not afforded the right of intervention.

4. Adequacy of Representation

“This Court considers three factors in determining the adequacy of representation: (1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor's arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).

Conclusion

[12] For the foregoing reasons the Applicants have a right to intervene under Rule 24(a)(2) and § 113(i) of CERCLA to protect their interests in contribution and in the fairness of the proposed consent decree. We therefore reverse and remand for further proceedings consistent with this opinion.

IV. Conversion may be either, 1. by a wrongful taking a personal chattel; 2. by some other illegal assumption of ownership, or by illegally using or misusing it; or 3. by a wrongful detention.

The wrongful taking of the goods of another who has the right of possession, is of itself a conversion, and so is the compelling of a party to deliver up goods; and whenever trespass will lie for taking goods of the plaintiff wrongfully, trover will also lie. 3 Wils. 19 ; Willes, 33 ; 2 Saund. 47 A; Cro. Eliz. 824. Thus trover lies against the assignees under a commission of bankrupt, where they compel a party to deliver up his property when he was not subject to the bankrupt laws. 3 B. Sr R. 2; 6 J. B. Moore, 56, S. C. And if goods be wrongfully seized as a distress, though they be not removed from the place in which they were, yet trover may be supported, because the possession in point of law is changed by their being seized as a distress. Willes, 56. And a seizure of goods under a fieri facia* after a party's bankruptcy, ana a removal of them to a broker's, is a sufficient conversion. 3 Campb. 396. And this action may be supported after an acquittal of the defendant for the felonious taking of goods. 12 East,

In the case of a conversion by wrongful taking, it is not necessary to prove a demand and refusal. 1 Sid. 164; 6 Afod. 212; Bui. N. P. 44; 1 Mark. 173 ; 3 B. Sr B. 2; 6 /. B. Moore, 56, S. C. And the intent of the party is immaterial ; for, although the defendant acted under a supposition that he was justified in what he did, he will be equally liable to this action. 4 M. Sf S. 260. But if the possession was obtained under colour of a contract, trover cannot be sustained, 3 Campb. 299, 352; 3 Taunt. 274; unless a case of fraud can be proved. 7 Taunt. 59; 1 B. Sf C. 514.

So the wrongful assumption of the property or right of disposing of goods, may be a conversion in itself, and render unnecessary a demand and refusal, 5 East, 407; 6 East, 540; 4 Taunt. 24; 2 B. Sf B.Z; 6 J. B. Moore, 56, S. C.; 4 Taunt. 799 ; as well as any tender of charges, 1 Campb. 410 ; 2 M. Sf S. 298; 3 Campb. 472, 473. Thus a sale of a ship, which was afterwards lost at sea, made by the defendant, who claimed under a defective conveyance from a trader before his bankruptcy, is a sufficient conversion to enable the assignees of the bankrupt to maintain trover, without showing a demand and refusal. 5 East, 407, 420.

So where a person entrusted with the goods of another, puts them into the hands of a third person, contrary to orders, it is a conversion. 4 T. R. 2G4. And if one tenant in common sell the other's goods without his consent, it is a conversion, and trover is maintainable, 5 B. Sf A. 395 ; and where a carrier, Peake, C. N. P. 49 ; 5 Burr. 2825; see 1 Taunt. 391 ; 1 Campb. 409, 439, ante; or a wharfinger, 2 B. $ A. 702, by mistake, delivers goods to a wrong person, trover may be supported, though it would be otherwise if they were left by accident, lb. 41, n.; and if a person illegally make use of a thing found or delivered to him, it is a conversion in itself, Cro. Eliz. 219; or if a bailee, merely to keep or carry, and having no beneficial interest, misuse a chattel entrusted to him, Id. ibid.; as if a carrier draw out part of the contents of a vessel, and fill it with water, 1 Stra. 576 ; or if a carrier or wharfinger break open a box containing goods, or sell them. 2 Salk. 655. So an irregularity in a distress taken damage feasant may amount to a conversion, Cro. Jac. 148 ; Bac. Ab., Trover, B.; though not in the case of a distress for rent, when we have seen trover cannot be supported, 1 Hen. Bla. 10; and a party will be personally liable for the conversion to the use of another, although he acted under a supposition that he was justified in what he did. 4 M. $ S. 259.

But unless there be an illegal assumption of property, trover cannot in general be supported for a mere non-feasance, C East, 540; 2 B. Sf A. 701; and therefore if a carrier, or other bailee, by negligence, lose goods entrusted to his care, the remedy in general must be case or assumpsit, 5 Burr. 2825 ; 2 Saund. 47; Peake, C. N. P. 240; and an agent selling at an underprice is not liable to an action of trover, 3 Taunt. 117 ; and the retention of property under the decree of a court of competent jurisdiction, is no conversion. 4 J. B. Moore , 361.

In the preceding instances proof of the act of the defendant is sufficient without evidence of a demand and refusal, 4 Taunt. 801; but where the plaintiff is not prepared to prove some such actual assumption of property, trover cannot be supported without proof of a demand and refusal, or at least a neglect to deliver the goods. Bui. N. P. 44; 2 Saund. 47 e; 13 East, 177, 197 ; 1 Campb. 439 ; 5 M. Sf S. 105.

If in trover an actual conversion cannot be proved, then proof is to be had of a demand made, before the action brought, of the thing for which the action is commenced, and that the thing demanded was not delivered. In this case, though an actual conversion may not be proved, a demand, and refusing to deliver the things demanded, is a sufficient evidence to the jury that he converted the same, till it appears to the contrary. 10 Rep. 56, 491 ; 2 Lil. 619.

Where a defendant really comes to the possession by finding, denial is a conversion; but if he had the goods, &c. by delivery, there denial is no conversion, but evidence of conversion : and in both cases the defendant hath a lawful possession, either by finding or by delivery ; and where the possession is lawful, the plaintiff must show a demand and a refusal, to make a conversion : though if the possession was tortious, as if the defendant takes away the plaintiff's har, the very taking is a sufficient proof of the conversion, without proving a demand and refusal. Sid. 264 ; 3 Salk. 365.

By Holt, C. J., the denial of goods to him who hath a right to demand them, is a conversion; and after a demand and refusal, if the defendant tender the goods, and the plaintiff refuse to receive them, that will go only in mitigation of damages, not to the right of the action of trover, for the plaintiff may have that still. Mod. Cas. 212.

An action of trover and conversion may be brought for goods, although the goods came into possession of the plaintiff before the action is brought, which doth not purge the wrong, or make satisfaction for that which was done to the plaintiff by detaining the goods. If a man takes ray horse and rides him, and afterwards delivers him to me, trover lies against him, for this is a conversion, and the re-delivery is no bar to the action. 1 Dane. Abr. 21 ; 2 Lil. 618.

But it has been recently held, that a demand and refusal are evidence only, and are not conclusive of the fact of conversion, and they are cured by a subsequent tender of the goods before action brought. 1 Moo. Sf Sc. 459.

Where a trader, on the eve of his bankruptcy, made a collusive sale of his goods to the defendant, it was decided that the assignees could not maintain trover without proving a demand and refusal, 2 Hen. Bla. 135 ; 2 Esp. Rep. 96 ; or where the sheriff, having taken goods in execution after a secret act of bankruptcy, has not proceeded to sell. 3 Campb. 396 ; sed vide 4 M. § S. 268.

Such a demand and non-compliance are prima facie evidence of a conversion, and will induce a jury to find it, unless the defendant adduce evidence to negative the presumption ; as that he being a carrier, &c. lost the goods by negligence, &c. Bui. N. P. 44; 2 Saund. 47 e.; Peake's Lam of Evidence, 298; or that he had reasonable grounds for doubting the plaintiff's right, and offered to deliver them to the right owner. 3 Campb. 215 n.; 2 Bulst. 310; 5 J. B. Moore, 559, 266, n.; 2 B. <£ P. 464; 5 B. Sf A. 247. And where the demand of the things for which the action is brought is not made by the plaintiff himself, who is the owner, but by another person on his account, a refusal by the defendant, on the ground that he does not know to whom the things belong, or that the person who applies for them is not properly empowered to receive them, or until he is satisfied by what authority the application is made, this will not be such a refusal as to create a conversion. 1 Esp. N. P. C. 87 ; and see J. B. Moore, 259. In an action of trover against an agent, if the plaintiff rely on a refusal to deliver up the property as evidence of a conversion, it must amount to an absolute and not a mere qualified one; and on an agent's refusal to deliver up the goods without his master's directions, it is not sufficient to render him personally liable. 5 B. $ A. 247 ; 2 Mod. 242.

A refusal by a bailee to deliver goods to the real owner without the authority of the bailor, who has in fact no lien, is sufficient evidence of a conversion. 1 B. <$• A. 450.

Where the plaintiff sold utensils in a brewhouse to T. who paid for them, and was to take them away, but the defendant being possessed of the brewhouse, the utensils were demanded of him by the plaintiff's attorney, accompanied by T., when the defendant said he would not deliver them to any body, and afterwards the plaintiffs repaid T. and brought trover for the goods : the Court of King's Bench held that this demand and refusal were sufficient evidence of conversion to support the action, without any new demand after the re-payment to T. 5 M. Sr S. 105.

A. brought an action of trespass against B. for taking away a filly; B. justified the taking as the servant of C. ; the jury found a verdict for A., with damages, subject to a reference to D. one of the jurors, to ascertain to whom she belonged (which was to depend on whether a scar should appear on a certain part of her body, and in case it should, the verdict for A. was to stand; if not, it was to be entered for B.) The filly was delivered to D. by consent of all parties, and he made his award, and found her to belong to A., and accordingly ordered the verdict for him to stand. C, ten days after the award, demanded the filly of D., who refused to deliver her, and a fortnight afterwards C. brought an action of trover for her recovery: held that the detention of the filly by D. did not, under the circumstances, amount to a conversion; as C. was no party to the original action, and as it did not appear that he was authorized by B. to make the demand, to whom alone D. was bound to deliver her, he only being liable to the damages awarded to A. 5 Moore, 259 ; 2 B. 4- B. 447.

In trover against several defendants, all cannot be found guilty on the same count, without proof of a joint conversion by all. 1 M. Sr S. 588.

In trover for a bond, the plaintiff need not show the date, for the bond being lost or converted, he may not know the date: and if he should set out the date and mistake it, he would fail in his action. Cro. Car. 262. If the defendant find the bond and receive the money, action of account lieth against the receiver, and not trover. Cro. Eliz. 723.

Where the trover of goods is in one county, and the conversion in another county, the action brought for these goods may be laid in the county where the conversion was, or in any other county, as it is only a transitory action; and neither the place of trover nor conve rsion, are traversable. Pash. 23 Car. B. R.

Formerly under the general issue Not Guilty the special matter might have been given in evidence to prove the plaintiff had no cause of action, or to entitle the defendant to the thing in controversy. 2 Bulst. 313. Vide also 2 Salk. 654; Yelv. 198 ; Cro. Car. 27 ; 2 Lil. 622.

But the plea of Not Guilty now operates as a denial only if the breach of duty or wrongful act alleged to have been committed by the defendant, and all other pleas in denial must take issue on some particular matter of fact alleged in the declaration. See further, Not Guilty.

The jury are not limited to find as damages the mere value of the property at the time of the conversion, but they at their discretion find the value at a subsequent time, as damages. 1 C. Sr P. 625.

In trover for a bill of exchange, the damages are to be calculated according to the amount of the principal and interest due upon the bill at the time of the conversion. 3 Campb. 477.

After a plaintiff had recovered damages under a writ of inquiry in trover for the conversion of his title-deeds, the court permitted satisfaction of the damages to be entered on the roll, on the terms of the defendant's delivering up the deeds and paying all the costs as between attorney and client incurred by the plaintiff in the cause, and placing the plaintiff.in as good a situation as he stood in before the cause of action accrued. 1 D. $ It. 201.

None shall be held to special bail in action of trover or detinue without a judge's order. Reg. Gen. K. B. and C. P. Hil. 48 Geo. 3. 9 East, 325; 1 Taunt. 203.

TRUCE, treuga.~\ A league or cessation of arms. Anciently there were keepers of truces appointed; as King Edward III. constituted, by commission, two keepers of the truce between him and the king of Scots, with this clause, nos voluntes treugam prcediclam quantum ad nos pertinct observari, fyc. Rot. Scot. 10 Edw. 3. See Conservators of the Truce, Safe Conduct. Ministries of T.W. Arman.

WATER RIGHTS NOVATION PETITION FOR CLERKS WRIT OF ENTRY, cestui que trust

APPLICATION FOR THE FOLLOWING ORDERS: CAFA CERTIFICATION; BAN EPA;

APEX LAW ACTION; REMISSION; REVERSION; DETINUE SUR BAILMENT; VOID & VACATE LIEN & VACATE CONSENT DECREE & VACATE PREMISES & ABOLISH COERCIVE MONOPOLY; ABOLISH ESTABLISHED HOLISTIC BELIEFS. REMIT TRUST

SURRENDER IRON MOUNTAIN MINE REMEDIATION TRUSTS TO MR. T.W. ARMAN.

SURRENDER IRON MOUNTAIN MINE TO MR. T.W. ARMAN'S TENANT-IN-CHIEF

SURRENDER IRON MOUNTAIN OPERATIONS, TAKE PERSONAL POSSESSIONS. GO.

1414. As between appropriators, the one first in time is the first in right. QUO WARRANTO

1530. Novation is the substitution of a new obligation for an existing one. MANDAMUS

Congress has the right to make any law that is ‘necessary and proper' for the execution of its enumerated powers (Art. I, Sec. 8, Cl. 18). Signature:________________________________ in loco parentis

/s/ John F. Hutchens, parens patriae ; Tenant in-Chief; Warden of the Arboretum, Gales & Stannaries

I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are herein stated on my own information or belief, and as t those matters, I believe them to be true.

Date: October 28, 2010_ Signature:______ _________________________ parens, parens, parens.

Verified affidavit: /s/ John F. Hutchens, Chancellor & High Warden, Palatine & General Commissioner

Grantees Agent for Mr. T.W. Arman, expert, Mormaer & Special Deputy Levying Officer of Record.

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR GENERAL -MINISTER

FACILITY COMPLIANCE AUDITOR, EXCHEQUER, D.A.D. OF IRON MOUNTAIN MINE,

HUMMINGBIRD INSTITUTE – IRON MOUNTAIN HAZARD & REMEDIATION DIRECTOR

TENANT-IN-CHIEF OPERATING OFFICER / CHANCELLOR – FREEMINERS' UNIVERSITY

CURATOR OF THE ARMAN CONSERVATORY / JOINT VENTURER – ad hoc & ad litem .

RELATED CASES-CONCURRENT JURISDICTION

USDC-CES Civ. 2:91-cv-00768 - USCA No. 09-17411,

USCFC No. 09-207 L, &c. CLASS ACTIONS -

CLERKS NOTICE: Detinue sur bailment-trover

ADVERSE CLAIMS, WRONGFUL TAKING, FALSE PRETENSES, FRAUD UPON THE COURTS, &e.

Terris, bonis et calallis rehabendis post purgationem . A writ for a clerk to recover his lands, goods, and chattels formerly seized, after he had cleared himself of the felony of which he was accused, and delivered to his ordinary to be purged. Reg. Orig. 68.

CITIZENS SUIT; INTERVENTION COMPLAINT TAKING CLAIM, STIGMATIC INJURIES IN VIOLATION OF SECTION 19, CALIFORNIA CONSTITUTION REQUIRING PREPAYMENT OF JUST COMPENSATION, TREBLE DAMAGES FORM OF STATUTES.

The Courts Jurisdiction

This Court has jurisdiction of this case under 28 U.S.C. § 1491 (the Tucker Act) as a “claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department . . . .” This Court enjoys concurrent jurisdiction in equity with other Courts.

STATEMENT OF CLAIM, LOCATORS RIGHTS OF PRIORITY OF POSSESSION

Petitioners are entitled to relief because they are the owners/ operators of Iron Mountain Mines, with vested and accrued existing rights of the locators, including all of the rights, privileges, and immunities of patent title, and including rights and immunities for agricultural college land grants, bounty warrant freehold estates, and General mining law claims and mineral patents.

§ 26. Locators' rights of possession and enjoyment; exclusive right.

§ 29. Patents; …the affidavits required made by authorized agent conversant with the facts.

§ 30. Adverse claims; judicial determination of right of possession;

§ 31. Oath: agent or attorney in fact, title may be verified by the oath of any duly authorized agent.

§ 33. Existing rights; all the rights and privileges conferred.

§ 40. Verification of affidavits before officer authorized to administer oaths within land district

§ 51. Vested and accrued rights; by priority of possession, rights vested and accrued,

…the possessors and owners of such vested rights shall be maintained and protected in the same;

PRIOR RIGHTS, PATENT TITLE

In California, a complaint simply alleging the ownership by plaintiff of his mining location and the claim by defendant without right of an adverse interest has been held to allege enough.

In any event the party seeking to have a trust declared must make out a case against the patentee by evidence that is plain and convincing beyond reasonable controversy." It has been held that such a suit is clearly within the jurisdiction of the federal courts, regardless of the citizenship of the parties. In proceedings under Rev.Stat. §§ 2325, 2326 to determine adverse claims to locations of mineral lands, it is incumbent upon the plaintiff to show a location which entitles him to possession against the United States This is therefore an adverse claims proceeding.

In proper cases patentees will be held to be trustees for others equitably entitled to the land.

If the patentee bring ejectment, the trust may be set up as an equitable defense in Jurisdictions where such defenses are allowed.

Where a co-owner has been excluded from the patent the patentees become trustees for him to the extent of his interest, and it seems that he need not await the issuance of patent before suing.

Laches will operate as a bar.


T.W. Arman, IMMI, and the Native Pigments Co. offer bio-based mineral  inks, wood. and concrete stains.

(the value could exceed $16,000 per day if higher quality pigment grade iron oxide were produced).

News Release
  Release No. 0119.12
Contact:
USDA Office of Communications (202) 720-4623

Printable version
Email this page Email this page

  Agriculture Secretary Vilsack announces BioPreferred Final Rule

  BioPreferred® Program designates thirteen new Biobased Product Categories More than 1500 additional biobased products now eligible for preferred Federal purchasing

 

WASHINGTON, April 10, 2012 – Agriculture Secretary Tom Vilsack today announced the addition of 13 biobased product categories which are eligible for Federal procurement preference. Now more than 1,500 additional biobased products will be offered for preferred purchasing consideration by all Federal government agencies and contractors. The final rule was published in the April 4 Federal Register.

In February, President Obama issued a Presidential Memorandum to create jobs through increased procurement of biobased products by the federal government and to encourage greater Federal support of the BioPreferred program.

"There are now more than 10,000 products qualifying for preferred procurement under USDA's BioPreferred program" said Vilsack. "Including previously designated items, these 13 additional biobased product categories will help feed the President's initiative by offering even more products with federal procurement preference."

Creating new markets for the nation's agricultural products through biobased manufacturing is one of the many steps the Administration has taken over the past three years to strengthen the rural economy. Since August 2011, the White House Rural Council has supported a broad spectrum of rural initiatives including a $350 million commitment in SBA funding to rural small businesses over the next 5 years, launching a series of conferences to connect investors with rural start-ups, creating capital marketing teams to pitch federal funding opportunities to private investors interested in making rural and making job search information available at 2,800 local USDA offices nationwide.

USDA, through its Rural Development mission area, administers and manages housing, business and community infrastructure and facility programs through a national network of state and local offices. Rural Development has an active portfolio of more than $165 billion in loans and loan guarantees. These programs are designed to improve the economic stability of rural communities, businesses, residents, farmers and ranchers and improve the quality of life in rural areas.

Extent of the Taking

It is well established that a physical taking is defined by the government's corporeal violation of private property. As the Supreme Court has noted, “where real estate is actually invaded . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Loretto v. Teleprompter Manhattan CATB Corp., 458 U.S. 419, 427 (1982) (quoting Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871)). The Court has similarly emphasized that, “[t]he hallmark of a physical taking is government occupation of real property.” Alameda Gateway, Ltd. v. United States , 45 Fed. Cl. 757, 762 (1999), quoting Loretto, 458 U.S. at 426 (1982).

However, it has also recognized the possibility of compensable stigmatic injuries that extend beyond the tangible aspects of a physical taking. In Hendler v. United States, it held that “if fear of a hazard would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.” Hendler v. United States , 38 Fed. Cl. 611, 625 (1995) (quoting United States v. 760.807 Acres of Land, 731 F.2d 1443, 1447 (9th Cir. 1984)), aff'd 175 F.3d 1374 (Fed. Cir. 1999); see also Shelden v. United States , 34 Fed. Cl. 355, 373 (1995) (reducing post-taking fair market value of property due to stigma associated with earthquake damage).

“Two Miners” contend that the physical taking of the Brick Flat Pit produced a compensable impact on the entire Property's value. Petitioners claim that the remedial action produced two linked effects flowing from the EPA's physical occupation of the Brick Flat Pit. The first effect was the physical taking of the Brick Flat Pit itself, which continues to prevent Two Miners and Iron Mountain Mines et al from commercially exploiting the Brick Flat Pit. The second effect was the diminution of the Property's overall market value due to the stigma associated with possible liability to any buyer for the CERCLA action. It should be noted that this “stigma” amounts to considerably more than a mental attitude on the part of buyers. It is based upon a very real possibility that any commercial activity on the property might lead to regulatory prohibition or real physical danger. While T.W. Arman and John Hutchens are not convinced that in fact the Property is unusable, it seems clear that a reasonably prudent buyer would consider that quite probable, and be unwilling to purchase the property at any positive price, or share in the stigma of exterminating the salmon and trout.

Two Miners has expert testimony stating that, “the mere existence of this huge quantity of waste on the property, even in a constructed repository, creates too great a potential [CERCLA] liability for anyone to consider purchasing the land.”

In summary, Iron Mountain Mines experts in the valuation of contaminated property argue that anyone buying the Property before the EPA completes the removal action and removes the sludge from the Open Pit would potentially bear liability under CERCLA for costs incurred in the removal action.

Consequently, a reasonable purchaser would discount the purchase price of the Property by at least the amount of the liability assumed in the post-removal action condition of the Property.

Similarly, Iron Mountain Mines will present evidence that once the presence of hazardous waste has stigmatized property, a reasonable purchaser of said property would discount the sales price for the costs of removal of all of the offending material currently disposed in the Brick Flat Pit. Iron Mountain Mines noted that the stigma flows from the possibility of leakage of contaminants from the waste in the Open Pit and the potential “consequent liability placed upon T.W. Arman under CERCLA.”

According to Iron Mountain Mines, it follows that just compensation should be the difference between the Property's pre-taking fair market value and the sum resulting from the cost of the removal of the hazardous waste in the Open Pit added to the CERCLA liability incurred.

The stigma associated with general contamination and burden of infamy associated with natural resource damage and fish extinction dramatically affects the entire Property's value.

Hendler and Shelden permit recovery for diminution in value due to the general fear of a hazard caused by a taking, assuming that the hazard's affect on marketability is measurable. See Hendler, 38 Fed. Cl. at 625 (quoting United States v. 760.807 Acres of Land, 731 F.2d 1443, 1447 (9th Cir. 1984)

(“[I]f fear of a hazard would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.”)); see Shelden, 34 Fed. Cl. at 373. It is generally recognized that general market perception of contamination on a future development site results in the depreciation of property value.

Iron Mountain Mines argument is that the Open Pit's taking negatively impacts the entire Property's value on the basis of the evidence.

In analyzing this impact, the' computations regarding the Property's diminution in value as a result of the stigma associated with hazardous waste and fish extinction.

The Removal Action as a Special Benefit

When only a portion of private property is physically taken, the amount of compensation

owed for the property of Iron Mountain Mines must be reduced by any special benefits from the government action accruing to the remainder of the property. Hendler, 38 Fed. Cl. at 1380. Special benefits are benefits which inure to the particular property suffering the taking, rather than to the general public. The United States placed a statutory lien for “unrecovered past response costs” and stated that the removal action conferred a special benefit upon the Property which we should deduct from any ultimate damages valuation, and inferred that it was justified as a “windfall” lien.

Such arguments, however, lead nowhere. Even if the Court accepts the government's argument that the removal action benefits the Property's value, the United States will be unable to include any evidence regarding the amount by which such benefit increases the Property's value. Thus, no offset of compensable damages for the benefits allegedly conferred by the removal action are possible.

Having resolved these issues, let us now turn to the determination of the Property's fair market value as a function of calculating the just compensation owed to Iron Mountain Mines.

Just compensation for a taking under the Fifth Amendment requires that a deprived owner be put “in the same position monetarily as he would have occupied if his property had not been taken.” Almota Farmers, 409 U.S. at 474 (internal citations omitted). The necessary corollary to this basic damages principle is that the Court may not place a deprived owner in a better position by a Fifth Amendment taking recovery than if the taking at issue had not occurred.

The fair market value of the highest and best use of the Property before and after the action.

A reasonable valuation of the Property's value as a mine before the EPA's removal action estimates the Property's value based upon the 20 million plus tons of proven ore reserves plus 5 million tons of probable reserves and the assay of minerals and the prices of Gold, Silver, Copper, Zinc, Iron, Aluminum, Magnesium, Manganese, Vanadium, Titanium, Cobalt, Nickel, and other minerals and by-products at close to $18,400,000,000 (billion). Assuming the EPA estimate of mining and remediation at $1.400,000,000 (billion) is correct, The fair market value would be $17,000,000,000 (billion). Add to that a fair market value of the land surface (4,400 acres) for the future complete development (1 billion), yields a gross takings value of $18,000,000,000 (billion) of Just Compensation Valuation. Additional value of the estimated 20 billion tons of building stone available incidental to mineral resources indicates a total potential value of $72 billion.

Iron Mountain Mines calculates the fair market value of mining on the Property prior to the taking by determining the present value of the future income stream of minerals that could have mined on the Property absent the taking over a twenty year period. This methodology required an estimate of the annual production of minerals on the Property to determine the present value of the future royalty income stream.

T.W. Arman and John Hutchens assume that solution mining would have averaged annual production of 500,000 tons of mineral products and a royalty of $100,000,000 (million) per year. Multiplying projected annual production by this royalty rate, annual royalties from January 1989 until January 2009 would be $2,000,000,000.

T.W. Arman and John Hutchens therefore believe the present value of lost mining opportunity on the Property as of January 1, 1989, to the present at $2,000,000,000.

It is well established that “comparable sales are considered by the courts to be the best evidence of fair market value, and thus preferable to other forms of valuation.” Stearns Co., Ltd. v. United States , 53 Fed. Cl. 446, 458 (2002) (citing United States v. 50 Acres of Land, 469 U.S. 24 (1984)); Kirby Forest Indus. Inc. v. United States , 467 U.S. 1 (1984). Other valuation methods may prove useful, but a comparable sales methodology is a generally superior indicator of value if an active real estate market existed in the vicinity of the subject property prior to the taking. See Florida Rock Indus., Inc. v. United States , 45 Fed. Cl. 21, 35 (1999) (citing Whitney Benefits, Inc. v. United States , 18 Cl. Ct. 394, affirmed 926 F.2d 1169 (Fed. Cir.), cert. denied, 502 U.S. 952 (1991)).

Here, Iron Mountain Mines valued the Property's worth for mining since no comparable comparison was or is available, by analyzing the Property's pre-taking future income stream.

Iron Mountain Mines claims that future income stream analysis is appropriate here because the valuation of mineral interests is preferably done by determining the present value of a future income stream. Iron Mountain Mines support this view by arguing that the federal government, in its Uniform Appraisal Standards for Federal Land Acquisitions, states that, “[p]roperty having a highest and best use for mineral production may be appraised utilizing an income approach when comparable sales are lacking.” Uniform Appraisal Standards at 23-24 (internal citations omitted). Iron Mountain Mines further points to Whitney Benefits, Inc. v. United States , in which the Federal Circuit approved of the use of future income stream analysis, as support for the relevance of future income stream analysis in the present case. See 962 F.2d 1169 (Fed. Cir. 1991).

Deprived miners T.W. Arman and John Hutchens are entitled to interest on just compensation awarded pursuant to Fifth Amendment takings. Stearns Co., Ltd, v. United States , 53 Fed. Cl. 446, 466 (2002) (citing Kirby Forest Indus. v. United States , 467 U.S. 1 (1984)). Thus, an award to T.W. Arman and John Hutchens with compounded prejudgment interest from the date of the taking until the date of the judgment is proper. See Id. (citing United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588 (1947); Miller v. United States, 223 Ct. Cl. 352, 360 (1980). We date the taking as having actually accrued as of March 9 th , 2007, as the day the EPA project manager and/ or the site operator replaced the gate at the property entrance and refused to provide T.W. Arman with the key or code. Previously the EPA and its contractors had not interfered with T.W. Arman's possession and enjoyment of the property, and the EPA has always averred that it makes no claim to a right of possession of the property, and the project manager has publicly proclaimed as recently as this year that Mr. Arman is free to do whatever he wants with the property, because he is the owner.

Petitioners appreciate every indulgence extended by the court in consideration of the overly verbose or turgid pleadings, and petitioners further acknowledge the courts tolerance of any inadvertence in the pleadings such as referring to the lost mining opportunity as a commencement of the takings, an reasonable misunderstanding of the meaning of a takings, and when the facts of the case indicate otherwise. The EPA and its contractors had until March of 2007 conducted themselves with due propriety for which Mr. Arman affectionately referred to them as “the janitors”. The EPA first published information indicating that it did not intend to perform additional RODs, (record of decision) in May of 2006, so in the absence of any protest of the CERCLA actions, no claim would be ripe for adverse possession until after that time.

Interest computation will be based upon the Contracts Disputes Act, 41 U.S.C. §§ 601-13 (1982). See Jones v. United States , 3 Cl. Ct. 4, 7 (1983). Iron Mountain Mines further seeks awards of attorney fees and costs incurred as a result of litigation to T.W. Arman and John F. Hutchens under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 42 U.S.C. § 4601 et seq. (1995 & 2002 Supp.). Attorney Fees: CERCLA Private Recovery Actions , 10 Pace Envtl. L. Rev . 393 (1992)

Two Miners T.W. Arman and John F. Hutchens also seek compensation for stigmatic injuries. T.W. Arman and Iron Mountain Mines et al have been unfairly blamed for the endangerment and possible extinction of salmon and trout in the Sacramento River, a crime of infamy if ever there was one, not withstanding that there is no evidence that any fish have been killed in the affected reaches of the Sacramento River since at least 1969, seven years before T.W. Arman. purchased the property, or that T.W. Arman and Iron Mountain Mines, Inc. did not actively mine the massive sulfide ores found to be the source of the minerals passively migrating from the property and alleged to pose an “imminent and substantial endangerment” to the environment, and in disregard of contributory factors, particularly the United States construction of dams that destroyed the habitat of the salmon and trout necessary for their reproduction, and without consideration of other factors affecting the fishes demise, such as urban run-off, untreated sewage, ranching, farming, global warming, and other forms of habitat destruction.

When the EPA first conducted its remedial investigation of Iron Mountain Mines, it considered “Among the remedial action alternatives that could be implemented by the EPA, the total removal of the source and sediments in the receiving waters (Alternative CA-10) is considered the only remedy for the Iron Mountain Mine site which is capable of meeting project cleanup objectives and the full requirements of the Clean Water Act (CWA). This alternative would effectively eliminate discharges from Iron Mountain and restore all tributaries to pristine condition. This alternative was based on total removal of all the source of contamination and disposing of them in a RCRA-approved facility.”

Without digressing to consider the notion of disposing of millions of tons of valuable ore and mining by-products, it will suffice to observe that having recognized that there was a viable alternative that was fully protective of human health and the environment, the EPA elected to proceed with a remedial action (removal) that was less than fully protective of human health and the environment, and then and thereafter disregarded its duty and responsibilities to implement a remedial action that was fully protective of health and environment.

For these reasons T.W. Arman and John Hutchens dispute the United States lawful authority to conduct these CERCLA remedial actions (removal) and demand the return of the property and restoration of rights, privileges, and immunities of patent title to the possession and enjoyment of T.W. Arman and John F. Hutchens.

Because the United States, even with congressional approval, executive authorization, and district court decree, has no actual justification for its actions, and the only remedy found to be fully protective of human health and the environment is to finish the mining begun 150 years ago, the only remedy consistent with CA-10 of the administrative record, (complete removal of the source) which is what Iron Mountain Mines, Inc. was doing before the EPA interfered, the EPA should be found liable for the taking of private property for the public benefit requiring the payment of just compensation under the 5 th amendment of the constitution.

T.W. Arman used “due care” in the purchase of the property, because copper, zinc, and cadmium were not listed as “hazardous substances” under the provisions of the Clean Water Act (CWA) in 1976 when the property was purchased, and California laws regarding mining operations compliance with federal regulations show that Iron Mountain Mines was not in violation of any law.

CONCLUSION TO THE EXTENT OF THE TAKINGS

T.W. Arman and John F. Hutchens claim that the EPA's remedial (removal) actions constitute a taking of the Iron Mountain Mines property warranting just compensation under the Fifth Amendment of the constitution of the United States for a partial takings of private property with actual damages of lost mining opportunities plus stigmatic injuries and property and incidental damages of $7,074,500,000 (billion). Petitioners seek an award of $7,074,500,000 (billion) in just compensation, with detinue sur bailment, reversion, remission, plus interest, attorney's fees, expert fees and costs. In the alternative that the United States actions are a condemnation that will prevent the lawful mining of Iron Mountain Mines, T.W. Arman and John F. Hutchens seek an award for the complete taking of private property for the public benefit requiring the payment of $18,000,000,000 (billion) in just compensation.

Plaintiff's “Two Miners” submit that plaintiff's mutual interests are undivided interests.

      Wherefore, the United States is liable for the taking of private property requiring the payment of just compensation under the 5 th amendment of the constitution of the United States, we demand judgment against the United States of seven billion, seventy four million, and five hundred thousand dollars for the partial takings and stigmatic injury, or eighteen billion dollars for the complete takings of the Iron Mountain Mines properties, plus interest, fees, and costs.

DEMANDS

1. Plaintiffs in this matter demand exoneration by virtue of the innocent landowner defense, third party defense, and act of God defenses, for restitution of the property invaded for CERCLA actions entered and to void and vacate judgment, void and vacacte consent decree and vacate premises.

2. Plaintiffs demand just compensation for lost mining opportunity resulting from actions by the EPA represented as lawful police actions conducted for the public and environmental welfare, but found not to be fully protective of human health and the environment when such a remedy was offered by the plaintiffs at less expense, but prevented by the actions of the EPA on behalf of the United States. Plaintiffs seek further just compensation for illegitimate animus and vindictive actions, despotism and tyranny, false claims, and negligently arbitrary and capricious reckless endangerment and malicious prosecution.

3. Plaintiffs demand just compensation for the stigmatic injuries by the EPA.

4. Plaintiffs demand the creation and appointment of the Essential Products Administration, and the creation and appointment of the Special Deputy Attorney General thereof.

5. Plaintiffs demand review to contest the constitutionality of CERCLA, and request the court to certify constitutional questions to the United States Supreme Court.

6. Plaintiffs demand a determination of unfair and unjust burden upon T.W. Arman, John Hutchens, and Iron Mountain Mines et al that should be borne by the public as a whole.

7. Plaintiffs demand a determination of liability of the United States for contribution to hazardous waste disposal.

8. Plaintiffs demand retractions and exonerations by the government which allowed the character of T.W. Arman and Iron Mountain Mines to be libeled and slandered with abuse of process and malice to the severest possible unfair and unjust stigma with illegitimate animus and vindictive actions.

THERE IS NO EVIDENCE TO SUPPORT A FINDING OF INELLIGIBILITY FOR THE INNOCENT LANDOWNER, THIRD PARTY, AND ACT OF GOD DEFENSES.

THERE IS NO EVIDENCE TO SUPPORT CONTINUING THESE CERCLA ACTIONS.

THERE IS NO EVIDENCE THAT T.W. ARMAN FAILED TO USE “DUE CARE” OR SHOULD HAVE KNOWN THAT COPPER, CADMIUM, AND ZINC WERE HAZARDOUS SUBSTANCES AT THE TIME OF PURCHASE BECAUSE THEY WERE NOT LISTED AS HAZARDOUS SUBSTANCES UNDER THE LAW.

THERE IS NO EVIDENCE OF UNDUE CARE PURSUANT TO SARA.

THERE IS NO EVIDENCE OF CONTRIBUTION TO POLLUTION BY THE PETITIONERS.

This is a paradigmatic issue for resolution by the Judiciary. The federal courts historically have resolved disputes over land, even when the United States military is occupying the property at issue.

In Megapulse, Inc. v. Lewis the court held that declaratory relief may be granted in the district court for unlawful government activities regardless of whether damages might also be available in the Claims Court .

As Justice (then Judge) Cardozo admonished, "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."

The ability of the United States plaintiffs to sue does not turn on whether certain rights which may belong only to the corporation may be asserted "derivatively" by the sole shareholder or on whether we should "lift the corporate veil."- The "standing" inquiry may be conducted along two different branches: first, whether there is a cognizable property interest under the United States Constitution directly assertable by a United States citizen-shareholder; and second, whether (a) there is a cognizable property interest directly belonging to the corporation, and (b) if so, the scope of a shareholder's right to assert that interest derivatively. The crucial issue here is whether the plaintiffs have constitutional rights of their own, which exist by virtue of their exclusive beneficial ownership, control, and possession of the properties and businesses allegedly seized.

Properly understood, the question is whether the plaintiffs' and the wholly owned [ California ] corporation have a judicially cognizable interest in the affected property sufficient to enable them to sue for an unconstitutional deprivation of the use and enjoyment of that private property. Because the plaintiffs have a protected property interest for the purposes of the claims asserted here they have standing to sue

The court must concede on standing that the plaintiffs as individuals "have a cognizable property interest in the land, which interest, since they are American citizens, is protected by the Constitution." (Ramirez, Dissenting Opinion of Scailia, J., at 1556).. If the 100% owner, T.W. Arman, has an interest protected by the United States Constitution, that is enough to compel the United States [Federal Claims] Court to go forward.

As such, cases involving corporate shareholders' attempts to sue for a violation of a constitutional right which attaches only to individuals when the challenged action affected only the corporation are inapposite. The approach taken in the instant case is consistent with the holdings of those cases by its focus on the nature of a shareholder's personal interests and injuries and his own constitutional rights in determining whether the shareholder has a right to sue.

[T]he Supreme Court has held that monetary relief for unauthorized Executive seizures is not available in the Claims Court . . . . `The taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of Congress, is not the act of the Government,' and hence recovery is not available in the Court of Claims.' . . .

[I]njunctive relief is available [in U.S. District Court] when the [property] owner proves that government officials lack lawful authority to expropriate his property.

Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1522 (D.C. Cir. 1984)(en banc) (emphasis in original) (footnote omitted), vacated on other grounds and remanded, 471 U.S. 1113 (1985), dismissed on other grounds, 788 F.2d 762 (D.C. Cir. 1986) (en banc), quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 127 n.16 (1974) (quoting Hooe v. United States, 218 U.S. 322,336 (1910)). Injunctive relief is also available in U.S. District Court `when the monetary compensation available exclusively in the Federal Court of Claims would be wholly inadequate to compensate the complainant for the alleged taking.' Transcapital Financial Corp., 44 F.3d at 1025.

RIGHT OF PRESENT POSSESSION COMPELLED, PATENT TITLE IN EVIDENCE.

EX PARTE ADVERSE CLAIMS POSSESSION AND EJECTMENT EXECUTION

EMERGENCY INTERVENTION WITH ACTUAL CAUSE

§ 6973. Imminent hazard

(a) Authority of Administrator

Notwithstanding any other provision of this chapter, upon receipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court against any person (including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility) who has contributed or who is contributing to such handling, storage, treatment, transportation or disposal to restrain such person from such handling, storage, treatment, transportation, or disposal, to order such person to take such other action as may be necessary, or both. A transporter shall not be deemed to have contributed or to be contributing to such handling, storage, treatment, or disposal taking place after such solid waste or hazardous waste has left the possession or control of such transporter if the transportation of such waste was under a sole contractual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. The Administrator shall provide notice to the affected State of any such suit. The Administrator may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and the environment.

(b) Violations

Any person who willfully violates, or fails or refuses to comply with, any order of the Administrator under subsection (a) of this section may, in an action brought in the appropriate United States district court to enforce such order, be fined not more than $5,000 for each day in which such violation occurs or such failure to comply continues.

(c) Immediate notice

Upon receipt of information that there is hazardous waste at any site which has presented an imminent and substantial endangerment to human health or the environment, the Administrator shall provide immediate notice to the appropriate local government agencies. In addition, the Administrator shall require notice of such endangerment to be promptly posted at the site where the waste is located.

(d) Public participation in settlements

Whenever the United States or the Administrator proposes to covenant not to sue or to forbear from suit or to settle any claim arising under this section, notice, and opportunity for a public meeting in the affected area, and a reasonable opportunity to comment on the proposed settlement prior to its final entry shall be afforded to the public. The decision of the United States or the Administrator to enter into or not to enter into such Consent Decree, covenant or agreement shall not constitute a final agency action subject to judicial review under this chapter or chapter 7 of title 5 .

APA CLAIMS § 1491 (b)(4) § 706. Scope of review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

CALIFORNIA CODE OF CIVIL PROCEDURE 512.010.

(b) The application shall be executed under oath and shall include all of the following:

(1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. DEED (BOUNTY WARRANTS, PATENT TITLE FILED)

(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.

PETITIONERS HAVE SUBMITTED EVIDENCE THAT THE UNITED STATES EPA INVASION AND OCCUPATION OF IRON MOUNTAIN MINES PROPERTY TO PERFORM A CERCLA REMEDIAL ACTION WAS A FALSE CLAIM WHEN IN FACT THE EPA ACTION WAS A REMOVAL ACTION THAT HAS RESULTED IN AN IMMINENT HAZARD TO THE PETITIONERS, THE PROPERTY, THE PEOPLE, AND THE ENVIRONMENT. THE EPA HAS IN FACT CREATED AN IMMINENT AND SUBSTANTIAL ENDANGERMENT TO THE PROPERTY OWNERS THAT IS NOTHING LESS THAN ARBITRARY AND CAPRICIOUS FELONIOUS UNLAWFUL DETAINER.

PETITIONERS HAVE SHOWN THAT EPA ACTIONS, AUTHORIZED BY THE PRESIDENT, APPROVED BY CONGRESS, AND DECREED BY THE UNITED STATES DISTRICT COURT, HAVE CAUSED THE UNNECESSARY DISPOSAL OF OVER 500 THOUSAND TONS OF ACUTELY NONTOXIC NONHAZARDOUS WASTES IN A NONTOXIC PIT LOCATED ON PRIVATE PROPERTY WITHOUT A MEMORANDUM OF UNDERSTANDING WITH THE OWNER CONCERNING THE DISPOSAL.

THE ADMINISTRATIVE RECORD, PARTICULARY THE MOST RECENT 5 YEAR REVIEW OF THE CERCLA ACTION, INFORMS THAT THE “DISPOSAL CELL” HAS FAILED AND THAT THE LEACHATE FROM THE PIT NO LONGER FLOWS INTO THE DRAINAGE SYSTEM INTENDED TO CAPTURE IT FOR TREATMENT. PETITIONERS DEMAND THE SURRENDER OF THE PROPERTY TO PROCEED WITH THE PROPER REMEDY. THE EPA HAS FAILED ITS DUTIES TO PERFORM. THE DOJ AND THE COURTS IN ERROR HAVE PERPETUATED THIS NEGLECT IN VIOLATION OF THE REQUIREMENTS OF CERCLA 121 AND IN DEFIANCE OF COMMON SENSE.

PETITIONERS HAVE SHOWN THAT AGENCY ACTIONS DO NOT ACHIEVE THE DISCHARGE REQUIREMENTS OF THE CWA IN AND ARE IN VIOLATION OF ESA.

PETITIONERS HAVE SHOWN THAT REVOLUTIONARY TECHNOLOGY IS NOW AVAILABLE TO THE PETITIONERS THAT WILL MEET THE DISCHARGE REQUIREMENTS OF THE CWA AND ESA, ELIMINATE THE TOXIC SLUDGE DISPOSAL, AND ELIMINATE THE NEED FOR THE EPA LIME TREATMENT PLANT.

THE EPA REFUSES TO CONSIDER ANY RESOURCE RECOVERY TECHNOLOGIES THAT WOULD INTERFERE WITH THE ONGOING RESPONSE ACTION.

PETITIONERS HAVE SHOWN THAT EPA ACTIONS AND CONDUCT OF OFFICERS OF THE UNITED STATES EPA AND DOJ WERE MISTAKEN BUT COGNIZABLE UNDER THE DOCTRINE OF ESTABLISHED BELIEFS ACCORDING TO THE SUPREME COURT; SO NO TORT CLAIMS WOULD BE POSSIBLE, AND PLAINTIFFS HAVE ACKNOWLEDGED AND FORGIVEN THOSE IN ERROR WITH A WAIVER.

PETITIONERS HAVE SHOWN THAT EPA ACTIONS, HOWEVER WELL MEANT OR INTENTIONED, HAVE FAILED TO ACHIEVE THE PERFORMANCE MANDATED BY STATUTE AND REQUIRED BY CONGRESS, COURT ORDERS, THE CWA AND ESA.

PETITIONERS HAVE SHOWN THAT JUDICIAL SWADDLING AND DEFERENCE TO AGENCY ACTIONS, EVEN IF UNLAWFULLY WITHELD OR UNREASONABLY DELAYED, HAS RESULTED IN AN IMMINENT HAZARD AND A NEGLIGENTLY ARBITRARY AND CAPRICIOUS RECKLESS NEGLIGENT ENDANGERMENT OF THE PETITIONERS AND THEIR PRIVATE PROPERTY AS WELL AS TO THE NATION.

PETITIONERS HAVE SHOWN THAT COURT RULES, PARTICULARLY RULES WHICH DISCRIMINATE AGAINST CITIZENS WITHOUT REPRESENTATION BY ADMITTED ATTORNEYS, DEPRIVES CITIZENS OF THE CONSTITUTIONAL PROTECTIONS OF DUE PROCESS AND EQUAL PROTECTION, AND SERVES TO DEPRIVE THESE PETITIONERS OF PROTECTIONS GUARANTEED UNDER THE 5TH AMENDMENT OF THE CONSTITUTION FOR TAKINGS OF PRIVATE PROPERTY REQUIRING JUST COMPENSATION AND JUST, SPEEDY, AND ADEQUATE REMEDY.

A RULE SUPERIOR TO THE CONSTITUTION CANNOT BE ADMITTED.

PETITIONERS HAVE SHOWN THAT THE DETENTION OF IRON MOUNTAIN MINES BY THE EPA UNDER CERCLA WAS A MISTAKE, THAT THE EPA ACTIONS HAVE BEEN INADEQUATE AND INAPPROPRIATE, THAT THE EPA ACTIONS EXCEED ANY LAWFUL AUTHORITY, MOST PARTICULARLY THE LIMITATIONS IMPOSED UNDER CERCLA SEC. 9604. RESPONSE AUTHORITIES. (3)(A)

(3) Limitations on Response.--The President shall not provide for a removal or remedial action under this section in response to a release or threat of release--

(A) of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found;

(3) A particular description of the property and a statement of its value. T.W. ARMAN'S IRON MOUNTAIN MINES INSTITUTES' (et al) PROPERTIES INCLUDE A CERTAIN FREEHOLD OF 360 ACRES OF LAND BY BOUNTY WARRANTS OF MILITARY SCRIP AND AGRICULTURAL COLLEGE LAND GRANTS PATENTS FOR LAND IN LIEU OF LAND IN THE MAJOR PIERSON B. READING MEXICAN LAND GRANT PATENT; SIGNED BY PRESIDENT ABRAHAM LINCOLN AS CONFIRMED BY THE TREATY OF GUADALUPE HIDALGO RATIFIED BY THE UNITED STATES CONGRESS & UPHELD BY THE SUPREME COURT; A PARAMOUNT TITLE OF ANCIENT DEMESNE FROM THE UNITED STATES OF AMERICA AND THE STATE & UNIVERSITY OF CALIFORNIA.

PART OF

2384 ACRES OF LAND FOR CERTAIN QUARTZ LODE MINING PATENTS IN 4400 ACRES OF LAND CONTIGUOUS AND ABSOLUTE FEE SIMPLE FROM THE UNITED STATES OF AMERICA. 

PARTS OF

8000 ACRES OF LAND FOR CERTAIN INCIDENTAL & PEREMPTORY EMINENT DOMAIN & ADVERSE CLAIMS IN REVERSION, REMISSION, RECLAMATION, RESTITUTION, REMAINDER, DETINUE SUR BAILMENT, TROVER, CESTUI QUE TRUST,  CESTUI QUE USE; GUARANTEED RIGHTS, PRIVILEGES, AND IMMUNITIES VESTED AND ACCRUED OF A SOVEREIGN, ABSOLUTE, ORIGINAL, & PARAMOUNT TITLE BY THE PRIORITY OF POSSESSION OF THE LOCATORS, AND OUR PROTECTIONS IN THE SAME, FOR THEIR AND THEIR HEIRS, SUCCESSORS, AND ASSIGNS USE AND BEHOOF, FOREVER; AS AGAINST THE WHOLE WORLD BUT THE TRUE OWNER; FOR THE EXCLUSIVE POSSESSION AND ENJOYMENT OF THE HEADWATERS FOREST OF THE LOST CONFIDENCE MINE & IRON MOUNTAIN MINES FORESTS OF THE NORTH; EL CABACERA DEL RIO BUENAVENTURA PERDIDO BOSQUES DEL NORTE; WHICH IS THE ENTIRE CONTIGUOUS WATERSHED & MINERAL ESTATE KNOWN AS THE IRON MOUNTAIN MINES SUPERFUND SITE.

and

THE INFAMOUS "BILLION DOLLAR SETTLEMENT" FOR THE IRON MOUNTAIN MINES CLEANUP.

and

THE WRONGFUL TAKING CLAIMS, BILL OF ATTAINDER, CRIME OF INFAMY, EXPOST FACTO, VOID FOR VAGUENESS AND ILLEGITIMATE ANIMUS UNCONSTITUTIONAL REPUGNANT LAW LITIGATION; TREBLE DAMAGES FORM OF STATUTE.

and

THE SEPARATION OF FEDERAL STATE SPONSORED RELIGION CLAIM WITH NULLIFICATION, ABOLITION, AND EMANCIPATION LITIGATION; NONUPLED DAMAGES FORM OF STATUTE.

and

137 THOUSAND ACRES OF LAND FOR CERTAIN CALIFORNIA EMPIRE TERRITORY WITH PUEBLO, PROPRIETARY,  NATIVE, RIPARIAN, AND PRIOR APPROPRIATION WATER RIGHTS IN EMINENT DOMAIN; DEMOCRAT MOUNTAIN, MATHESON TO CROWN POINT, RELOCATION OF THE THISTLE LODE, RELOCATION OF THE PERSHING LODE, REMISSION OF THE  CHAPPIE/SHASTA OHVA AND THE KESWICK AND THE BATTLE CREEK WATERSHEDS; HIGHEST AND BEST USE EXPLAINED.

and

ONE MILLION ACRES OF NEW LAND & FRESH WATER BY EMINENT DOMAIN PRE-EMPTION FOR THE LAGO BUENAVENTURA & THE ISTHMUS OF ARMAN (OLD BAY-DELTA/ CAL-FED) IN THE CALIFORNIA EMPIRE TERRITORY WITH AN ESTIMATED VALUE OF $365 BILLION DOLLARS.


(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property ( SHASTA COUNTY , CALIFORNIA )

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.

THERE IS NO SEIZURE ON THE PROPERTY FOR A TAX, ASSESSMENT, OR FINE.

THE PROPERTY IS BY STATUTE EXEMPT FROM SUCH SEIZURE.

(c) The requirements of subdivision (b) may be satisfied by one or more affidavits filed with the application.

512.020. (a) Except as otherwise provided in this section, no writ shall be issued under this chapter except after a hearing on a noticed motion.

(b) A writ of possession may be issued ex parte pursuant to this subdivision if probable cause appears that any of the following conditions exists:

(1) The defendant gained possession of the property by feloniously taking the property from the plaintiff. TRUE!

(iii) The ex parte issuance of a writ of possession is necessary to protect the property. TRUE!

512.070. If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court.

512.080. The writ of possession shall meet all of the following requirements:

(a) Be directed to the levying officer within whose jurisdiction the property is located.

(b) Describe the specific property to be seized.

(c) Specify any private place that may be entered to take possession of the property or some part of it.

(d) Direct the levying officer to levy on the property pursuant to Section 514. 010 if found and to retain it in custody until released or sold pursuant to Section 514.030.

(e) Inform the defendant of the right to object to the plaintiff's undertaking, a copy of which shall be attached to the writ, or to obtain redelivery of the property by filing an undertaking as prescribed by Section 515.020.

Written notice to terminate & deliver possession. August 17 2009

Almost 30 years after Congress instructed the Environmental Protection Agency (EPA) to require facility owners and operators to set aside funds for the clean-up of property that may be contaminated by hazardous substances, a federal court in California has held that the EPA may take additional time to draft and issue the regulations. The court held that while Congress required the EPA to issue such regulations, it granted the EPA some discretion in when to do so. The EPA has stated that it intends to require financial assurance for hardrock mining facilities first, and will also assess the need to regulate hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities and chemical manufacturers.

The regulations at issue are required under the Comprehensive Environmental Response, Compensation and Liability Act 1980 (commonly known as 'Superfund'). Superfund is commonly said to have been motivated by the notorious hazardous waste contamination discovered buried at Love Canal , New York .

Section 108 of Superfund requires the EPA to issue financial assurance requirements for certain types of facility based on the risk of injury from hazardous substances in operations at those facilities. Once issued, the regulations would require the operator of a covered facility to set aside funds or otherwise make funds available for a possible future clean-up of hazardous substances at the property. Without such funds, costly clean-ups may force potentially responsible parties into bankruptcy, leaving taxpayers with the bill, or lengthy litigation may ensue over the allocation of costs. The EPA was first required to publish a notice of those classes of facility which presented the highest level of risk of injury by December 11 1980. (1)

The December 1980 deadline passed without the EPA publishing the required notice. The statutory requirement languished until in recent years it received renewed attention. The EPA was sued in federal court in 2008 on the theory that it had failed to perform a non-discretionary duty under Superfund. The suit was brought under Superfund's citizen suit provision, which allows a private litigant to force non-discretionary agency action. In February 2009 the Northern District of California held in Sierra Club v Johnson (2) that the EPA had a mandatory duty to publish classes of facility which presented the greatest risk of injury. In July 2009 the EPA published a notice of these classes in the Federal Register, pursuant to the court's order. (3) In its notice the agency determined that it would promulgate the first financial assurance requirements for hardrock mining facilities, based on the extent of contamination from such facilities and the high costs of clean-up.

The EPA did not limit its inquiry to hardrock mining; the notice also stated that the EPA will examine the need for financial assurance at the following types of facility: "hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers." However, the Northern District of California held that the EPA is under no set deadline to issue the financial assurance requirements. Instead, the court held that:

"although Section 108(b) requires EPA to promulgate financial responsibility regulations and incrementally impose such requirements, Section 108(b) provides EPA with discretion as to when to promulgate such regulations. Unlike the duty to publish notice of classes, Section 108(b) does not include a date-certain deadline for the promulgation of financial responsibility regulations." (5)

In so doing, the court rejected "a bright line rule that only duties with date-certain deadlines are non-discretionary for the purpose of citizen suits under [Superfund]" and instead looked to legislative history to help determine whether the EPA's duty to promulgate regulations by a particular date was non-discretionary. To maintain a claim that the EPA has "unreasonably delayed" its duties under Superfund, the court held that plaintiffs may continue to press their claims under the Administrative Procedure Act, but must do so in another court. The court stated that:

"plaintiffs may bring an [Administrative Procedure Act] claim in the Court of Appeals for the D.C. Circuit alleging EPA unreasonably delayed in promulgating the financial responsibility regulations required under Section 108(b)."

Unless and until such a litigation is brought and decided, the timeline for financial assurance requirements under Superfund will remain unclear.

unrecovered past response costs for the EPA's unnecessary, unconstitutional, and improper activities. EQUITABLE ESTOPPEL

EPA raises the stakes
Houston Chronicle
By MATTHEW TRESAUGUE The EPA has threatened dozens of Texas refiners and chemical and plastic makers with penalties if they don't begin taking steps to ...
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COMPLAINT IN INTERVENTION Case No. 104079

Superior Court of California, County of Shasta

Petitioners request leave of the court to file a complaint in intervention in the above captioned matter, where California has maintained a lien for a fine resulting from enforcement of federal discharge standards promulgated under the CWA.

WE NEED TO KNOW THE LINE ON WHICH TO DRAW THE LIMITS OF STATE POWERS, WE WILL DETERMINE EXACTLY HOW TO DO SO HERE!

Therefore, to “establish certain limits not to be transcended by the government.”

Given [mining's] unique political history, as well as the breadth of the authority that the [EPA] has asserted, the Court is obliged to defer not to the agency's expansive construction of the statute or to Congress' inconsistent judgment, but to prior rights and patent title to deny the [EPA] this power.…

“Full relief and restore possession to the party entitled thereto. a general verdict for plaintiff on a complaint which alleges that the plaintiff is entitled to the possession of certain described property, which is unlawfully detained by the defendant, and the possession of which the plaintiff prays to recover, is held by the United States Supreme Court to be sufficient.”

Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States , to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America ." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

“ It is not material whether the Libel be true, or whether the party against whom the Libel is made, be of good or ill fame; for in a settled state of Government the party grieved ought to complain for every injury done him in an ordinary course of Law, and not by any means to revenge himself, either by the odious course of libeling, or otherwise: He who kills a man with his sword in fight is a great offender, but he is a greater offender who poisons another, for in the one case he who is the party assaulted may defend himself, and knows his adversary, and may endeavour to prevent it: But poisoning may be done so secret that none can defend himself against it; for which cause the offence is the more grievous, because the offender cannot easily be known; And of such nature is libeling, it is secret, and robs a man of his good name, which ought to be more precious to him than his life, & difficillimum est invenire authorem infamatoriae scripturae; because that when the offender is known, he ought to be severely punished. Every infamous libel, aut est in scriptis, aut sine scriptis; a scandalous libel, in scriptis; when an epigram, rhyme, or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published, 1. Verbis aut cantilenis: As where it is maliciously repeated or sung in the presence of others. 2. Traditione, 7 when the libel or copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis 8 may be, 1. Picturis, as to paint the party in any shameful and ignominious manner. 2. Signis, as to fix a Gallows, or other reproachful and ignominious signs at the parties door or elsewhere. That if anyone finds a Libel (and would keep himself out of danger), if it be composed against a private man, the finder either may burn it, or presently deliver it to a Magistrate: But if it concerns a Magistrate, or other public person, the finder of it ought presently to deliver it to a Magistrate, to the Intent that by examination and industry, the Author may be found out and punished. And libelling and calumniation is an offence against the Law of God. For Leviticus 17, Non facias calumniam proximo. Exod. 22 ver. 28, Principi populi tui non maledices. Ecclesiastes 10, In cogitatione |[126 a] tua ne detrahas Regi, nec in secreto cubiculi tui diviti maledices, quia volucres coeli portabunt vocem tuam, & qui habet pennas annuntiabit sententiam. Psal. 69. 13, Adversus me loquebantur qui sedebant in porta, & in me psallebant qui bibebant vinum. Job. 30. ver. 7. & 8, Filii stultorum & ignobilium, & in terra penitus non parentes, nunc in eorum canticum versus sum, & factus sum eis in proverbium. 9 And it was observed, that Job, who was the Mirrour of patience, as appeareth by his words, became quodammodo impatient when Libels were made of him; And therefore it appeareth of what force they are to provoke impatience and contention. And there are certain marks by which a Libeller may be known: Quia tria sequuntur defamatorem famosum: 11 1. Pravitatis incrementum, increase of lewdness: 2. Bursae decrementum, decrease of money, and beggary: 3. Conscientiae detrimentum, shipwreck of conscience.”

Selected Writings of Sir Edward Coke, vol. I

The Most Unwanted 


PLAINTIFF HUTCHENS APPOINTMENT QUO WARRANTO AS PROJECT MANAGER

REMISSION, REVERSION, AND DETINUE SUR BAILMENT, TREBLE DAMAGES

ANY AND ALL FURTHER RELIEF THAT THE COURT FINDS JUST AND PROPER AND CONSISTENT WITH FINAL ADJUDICATION OF ALL MATTERS IN THIS CASE.

 

Date: November 19, 2009 _under oath, Signature:

s/John F. Hutchens, grantees agent, tenant-in–chief, administrator; Iron Mountain Mines, Inc.

WARDEN OF THE FORESTS AND STANNARIES FOR IRON MOUNTAIN MINES, INC.

 

Verification affidavit:

I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are herein stated on my own information or belief, and as to those matters, I believe them to be true.

Affirmed this day: November 19, 2009

Grantee's agent of record; Signature:

s/ John F. Hutchens, authorized agent for T.W. Arman & Iron Mountain Mines, Inc.

Benefits for the Community

Working together to identify the issues affecting the future of emergency management will provide the emergency management community a holistic view of key future issues and needs. The network of participants will also benefit by learning from and interacting with a broader set of professionals who have similar interests and/or distinct expertise.  Additionally, the SFI provides an opportunity to further align the emergency management community's disparate missions and activities.

EPA has paid no rent for all the years of its experiment at Iron Mountain Mine.

EPA Regulations: A Moratorium on Industrial Construction?

Central Banking 101: What the Fed Can Do as "Lender of Last Resort"

Asarco tries to revive its own EPA records lawsuit

Regional water utilities sue EPA (LAWSUIT)

Critical Infrastructure

Protecting and ensuring the continuity of the critical infrastructure of the United States are essential to the nation's security, public health and safety, economic vitality, and way of life.

  • Critical infrastructure are the assets, systems, and networks, whether physical or virtual, so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, public health or safety, or any combination thereof.

Homeland Security Presidential Directive 7 (HSPD-7) established U.S. policy for enhancing critical infrastructure protection by establishing a framework for the Department's partners to identify, prioritize, and protect the critical infrastructure in their communities from terrorist attacks. The directive identified 17 critical infrastructure sectors and, for each sector, designated a federal Sector-Specific Agency (SSA) to lead protection and resilience-building programs and activities. HSPD-7 allows for the Department of Homeland Security to identify gaps in existing critical infrastructure sectors and establish new sectors to fill these gaps. Under this authority, the Department established an 18th sector, the Critical Manufacturing Sector, in March 2008.

Each of the Sector-Specific Agencies developed a Sector-Specific Plan that details the application of the NIPP framework to the unique characteristics of their sector.

"A little rebellion now and then is a good thing” – Thomas Jefferson State of Jefferson

In October of 1941, counties in southern Oregon and Northern California were upset with the condition of roads throughout their counties. Their claims were that lack of proper roads and bridges were hindering the economic development of the area, particularly by making it difficult to gain access to and transport out the areas two biggest natural resources: copper and timber. The roads were oiled dirt roads that after rain or snow became impassable. The “greatest copper belt in the far West” was located there and the roads made it extremely difficult to mine and transport the copper ore. The counties were Curry, Josephine, Jackson, and Klamath, Oregon and Del Norte, Siskiyou, and Modoc, California.

Gilbert Gable, then mayor of Port Orford, Oregon proposed that the seven counties should secede from their respective states and form a new state, which would at the time have been the 49th state in the union. This concept found sympathy throughout the area and on November 17th 1941, county representatives met in Yreka, CA and voted to allocate $100 to researching the formation of the 49th state. On November 19th, 1941, the Siskiyou Daily News offered up a $2 prize for the best name submitted for the new state and the name Jefferson, after Thomas Jefferson, was eventually chosen. Yreka was chosen as the capital.

After that, by November 27th, 1941 citizens of the State of Jefferson began stopping traffic on Highway 99, brandishing hunting rifles and handing out copes of their Proclamation of Independence:

    You are now entering Jefferson, the 49th State of the Union.

    Jefferson is now in patriotic rebellion against the States of California and Oregon.

    This State has seceded from California and Oregon this Thursday, November 27, 1941.

    Patriotic Jeffersonians intend to secede each Thursday until further notice.

    For the next hundred miles as you drive along Highway 99, you are traveling parallel to the greatest copper belt in the far West, seventy-five miles west of here.

    The United States government needs this vital mineral. But gross neglect by California and Oregon deprives us of necessary roads to bring out the copper ore.

    If you don't believe this, drive down the Klamath River Highway and see for yourself. Take your chains, shovel and dynamite.

    Until California and Oregon build a road into the copper country, Jefferson, as a defense minded state, will be forced to rebel each Thursday and act as a separate State.

    (Please carry this proclamation with you and pass them out on your way.)

    State of Jefferson Citizens Committee
    Temporary State Capitol, Yreka

This act, of course, immediately began making headlines, and the San Francisco Chronicle even sent out a young reporter by the name of Stanton Delaplane, to cover the secession. He even earned a Pulitzer Prize for the series of articles he wrote. By December 4th, with the state seceding every Thursday until recognized, Judge John C. Childs was inaugurated as the governor of the new state and followed by a torchlight parade led by two bears, Scratchy and Itchy.

A State Seal was created which consisted of a gold pan on which two X's were painted on the bottom. The two X's symbolized how the new state was double crossed by both Salem, Oregon and Sacramento, California. This seal is on the state flag.

The new state was going to have no sales tax, no property tax, and no income tax. Red light districts and gambling halls would be opened and the revenue from these would fund the state.

Newsreels of the events occurring in Jefferson were to air nationally on December 8th, but on December 7th Pearl Harbor was bombed by the Japanese thus throwing the United States into World War II and ending the secession of the California and Oregon counties that comprised the new state. The newsreels were shelved and both states fixed the roads and bridges in order to access the timber and copper required for the war effort. The secession movement died out.

But the concept of the State of Jefferson carried on. Today the idea of Jefferson still exists and has grown to include several other counties including Coos, Douglas, and Lake in Oregon and Humboldt, Trinity, Shasta, Lassen, Mendocino, Tehama, Glenn, Butte, and Plumas in California. If this area were to become its own state, it would have over 423,000 people, but would still have the least population of any other US state. The original idea behind the State of Jefferson has been commemorate by the State of Jefferson Scenic Byway that runs between Yreka, CA and O'Brien, OR. Near the California / Oregon border there's a turn out spot with three informational displays talking about the area.

Ultimately the 1941 attempt of seceding was very much unlike any other secession movement. There was no violence, but instead joy and merriment. Much of the actions of the state were viewed as almost a joke by the rest of the country. Most people who were stopped by barricades and given the Proclamation of Independence laughed at the entire affair, thinking that the locals were just playing a big prank. Ironically, the method in which the secession occurred actually worked. The areas issues and problems were brought to light to the entire country and who knows, had it not been for the atrocity of World War II, Jefferson very well may have become the 49th state in the union.

It is important to note that actually seceding would have been rather difficult for the new state as under the Constitution, it was required that they had both the approval of the U.S. Congress and the legislatures of both Oregon and California. 

CATALOG OF THE EPIC OF FRAUDS & FAILURES PERPETRATED BY AGENTS & AGENCY OF U.S. ENVIRONMENTAL PROTECTION AGENCY 'EPA', WHO CONCEALED THE TRUTH IN A CONSPIRACY FROM THE NATION, & U.S. PRESIDENTS, CONGRESS & COURTS, AN AGGRAVATED & SELF-AGGRANDIZING PERPETUATION OF EPIC CRIMES BY LARCENOUS FRAUDS SELF-ENRICHMENT IN GENOCIDAL SUBVERSION, SEDITION, ESPIONAGE & TREASON.


PERPETUATION OF TESTIMONY ON CONSPIRACIES TO IMPOSE PHARMACEUTICAL DICTATORSHIP & MEDICINAL MONOPOLY &

DESPOTIC & COERCIVE FINANCIAL & INSURANCE MONOPOLY

ABJURING A SWORN OATHS SOLEMN & TRUSTED OBLIGATIONS,


COMPREHENSIVE DEBARMENT - REPUGNANCE NULLIFICATION

STRIPPED NAKED IMPOSTER FRAUD POSING AS OUR MASTERS,

MANDATORY ANNULMENT OF PROHIBITED FORBIDDEN UNION,


DEFORCEMENT & DEBARMENT FOR INEFFICIENT, IRRATIONAL ABUSE OF THE COMMERCE CLAUSE, DESPOTIC INTRUSION & TYRANNICAL EXCLUSION BY A NON-STATUTORY AUTHORITY TRANSGRESSION & OVERREACHING ABUSES OF LEGISLATIVE, EXECUTIVE, ADMINISTRATIVE, & JUDICIAL OFFICES & HIGH CRIMES, DERELICTION OF DUTIES & TRUST, ABUSERS OF THE PROTECTED RIGHTS OF CITIZENS & VIOLATING PUBLIC TRUST


ACTUALLY INNOCENT & GENUINELY UNKNOWING PURCHASER

INNOCENT LANDOWNERS & INNOCENT FREEHOLD RESIDENTS


INNOCENT VICTIMS OF U.S. SUBJECTED TO DISCRIMINATION,


CITIZENS DEPRIVED OF THE RIGHT TO SELF DETERMINATION,

TAXPAYER & VOTER; ROBBED BY AGENCY OF LIARS & FAKERS


WRONGFUL SEIZURE BY FRAUD & FALSE CLAIM INTRUSION OF ABSOLUTE & EXCLUSIVE PATENTED LAND PRIVATE PROPERTY

LAND BY ORIGINAL & PARAMOUNT TITLE, A AGRICULTURAL COLLEGE ACT LAND GRANT PATENT, 'FOR LAND IN LIEU' OF LAND IN THE 'RANCHO BUENAVENTURA' MEXICAN LAND GRANT OF 1844, A TITLE VESTED PRIOR TO STATEHOOD, THUS THE CHARACTER OF THE FEE IS ONE OF 'ANCIENT DEMESNE' .

ORIGINAL LOCATORS PREEMPTION DEPOSIT PAID IN GOLD AT U.S. LAND OFFICE, FILED WHEN WITHDRAWN RAILROAD LANDS OPENED FOR ENTRY, BALANCE PAID BY MILITARY SCRIP, OLDEST IS TO WIDOW OF A SAILOR IN THE WAR OF 1812. THUS, THE LAND IS A BOUNTY WARRANT FREEHOLD ESTATE.


APEX OF THE WEST SHASTA COPPER/ZINC MINING DISTRICT,

36 QUARTZ LODE MINERAL PATENTS, SUBSERVIENT HERITAGE TO THE 'RANCHO BUENAVENTURA' MEXICAN LAND GRANT 'LAND IN LIEU OF LAND' OF THE LOST CALIFORNIA EMPIRE, CERTAIN LANDS "NORTH OF SAN FRANCISCO" BY U.S. PATENTS, QUARTZ LODES OF GOLD & SILVER, LAND BY UNIVERSITY OF CALIFORNIA & STATE PATENT, A GROSS DEPRIVATION OF THE RIGHTS & PRIVILEGE & IMMUNITY VESTED & ACCRUED, WITH AGENCY CONTEMPT & SPOIL & WASTE & CONVERSION, ALL JOINTLY & SEVERALLY LIABLE FOR ARBITRARY & CAPRICIOUS FELONIOUS INTRUDER FRAUDS UNDER THE COLOR OF LAW & UNCONSTITUTIONAL AGENCY'S HOLDING OVER BY JOINT & SEVERAL TRESPASSER INTRUDERS OBSTRUCTION OF JUSTICE, DESPICABLE THIEVING FISH WORSHIPING MALICIOUS USURPERS QUIET TITLE ACTION & WASTE EJECTMENT & TRESPASSERS WRONGFULLY HOLDING OVER ARRESTS & INJUNCTION AGAINST FUTURE INVASIONS BY FALSE CLAIMS & ILLEGITIMATE ANIMUS & NEGLIGENTLY ABUSIVE ULTERIOR MOTIVES & GOVERNMENTS IN BAD FAITH & ACTUAL MALICE & ARBITRARY CAPRICIOUS NEGLIGENCE.


  • Environmentalism as Religion

    While people have worshipped many things, we may be the first to build shrines to garbage.

    By PAUL H. RUBIN

    Many observers have made the point that environmentalism is eerily close to a religious belief system, since it includes creation stories and ideas of original sin. But there is another sense in which environmentalism is becoming more and more like a religion: It provides its adherents with an identity.

    Scientists are understandably uninterested in religious stories because they do not meet the basic criterion for science: They cannot be tested. God may or may not have created the world—there is no way of knowing, although we do know that the biblical creation story is scientifically incorrect. Since we cannot prove or disprove the existence of God, science can't help us answer questions about the truth of religion as a method of understanding the world.

    But scientists, particularly evolutionary psychologists, have identified another function of religion in addition to its function of explaining the world. Religion often supplements or replaces the tribalism that is an innate part of our evolved nature.

    Original religions were tribal rather than universal. Each tribe had its own god or gods, and the success of the tribe was evidence that their god was stronger than others.

    But modern religions have largely replaced tribal gods with universal gods and allowed unrelated individuals from outside the tribe to join. Identification with a religion has replaced identification with a tribe. While many decry religious wars, modern religion has probably net reduced human conflict because there are fewer tribal wars. (Anthropologists have shown that tribal wars are even more lethal per capita than modern wars.)

    It is this identity-creating function that environmentalism provides. As the world becomes less religious, people can define themselves as being Green rather than being Christian or Jewish.

    Consider some of the ways in which environmental behaviors echo religious behaviors and thus provide meaningful rituals for Greens:

    • There is a holy day—Earth Day.

    • There are food taboos. Instead of eating fish on Friday, or avoiding pork, Greens now eat organic foods and many are moving towards eating only locally grown foods.

    • There is no prayer, but there are self-sacrificing rituals that are not particularly useful, such as recycling. Recycling paper to save trees, for example, makes no sense since the effect will be to reduce the number of trees planted in the long run.

    • Belief systems are embraced with no logical basis. For example, environmentalists almost universally believe in the dangers of global warming but also reject the best solution to the problem, which is nuclear power. These two beliefs co-exist based on faith, not reason.

    • There are no temples, but there are sacred structures. As I walk around the Emory campus, I am continually confronted with recycling bins, and instead of one trash can I am faced with several for different sorts of trash. Universities are centers of the environmental religion, and such structures are increasingly common. While people have worshipped many things, we may be the first to build shrines to garbage.

    • Environmentalism is a proselytizing religion. Skeptics are not merely people unconvinced by the evidence: They are treated as evil sinners. I probably would not write this article if I did not have tenure.

    Some conservatives spend their time criticizing the way Darwin is taught in schools. This is pointless and probably counterproductive. These same efforts should be spent on making sure that the schools only teach those aspects of environmentalism that pass rigorous scientific testing. By making the point that Greenism is a religion, perhaps we environmental skeptics can enlist the First Amendment on our side.

    Mr. Rubin is a professor of economics at Emory University. He is the author of "Darwinian Politics: The Evolutionary Origin of Freedom" (Rutgers University Press, 2002).

    Moyers on America . Is God Green? Religion and the Environment | PBS

    How does your faith or religion or spirituality affect your perspective of environmentalism or creation care? blog. How does your faith or religion or ...
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    • Asymmetrical Jurisdiction over Federal Questions in the Supreme Court

    Most people — and most lawyers — would assume that the U.S. Supreme Court has jurisdiction to review any determination of federal law by an inferior court, whether state or federal. And there was a time when it was so. But the Court’s recent justiciability decisions have created a perplexing jurisdictional gap — a set of cases in which state court determinations of federal law are immune from the Supreme Court’s appellate jurisdiction. The Court has thus surrendered a portion of its supremacy and thereby undermined the policies that underlie its appellate jurisdiction.

    In an effort to address this problem, the Court has created a strange exception to its justiciability doctrines that turns the rationale for appellate jurisdiction on its head. The Court has held that it may exercise appellate jurisdiction over otherwise nonjusticiable cases only where the state court has upheld the claimed federal right. As a matter of history and of doctrine, however, this is precisely the set of cases where Supreme Court review is least needed. A number of scholars have proposed attacking the problem by requiring state courts hearing federal questions of law to apply federal justiciability doctrines. But this view is difficult to justify doctrinally, and, paradoxically, it risks undermining federal interests by preventing state court enforcement of federal rights and policies in a broad swath of cases.




    Mr. Justice Ross in Lux v. Haggin

     

    “The common-law doctrine of riparian rights being wholly inconsistent with and antagonistic to that of appropriation, it necessarily follows that when the federal and State governments assented to, recognized, and confirmed, with respect to the waters upon the public lands, the doctrine of appropriation, they in effect declared that that of riparian rights did not apply. The doctrine of appropriation thus established was not a temporary thing, to exist only until son one should obtain a certificate or patent for forty acres or some other subdivision of the public lands bordering on the river or other stream of water. It was, as has been said, born of the necessities of the country and its people, was the growth of years, permanent in its character, and fixed the status of water rights with respect to public lands. No valid reason exists why the government, which owned both the land and the water, could not do this. It thus became, in my judgment, as much a part of the law of the land as if it had been written in terms in the statute-books, and in connection with which all grants of public land from either government should be read. In light of the history of the State, and of the legislation and decisions with respect to the subject in question, is it possible that either government, state of national, ever contemplated that a conveyance of forty acres at the lower end  of a stream that flows for miles should put an end to subsequent appropriation of the waters of the stream upon the public lands above, and entitle the grantee of the forty acres to the undiminished flow of the water in its natural channel from its source to its mouth? It seems entirely clear that nothing of the kind was ever intended or contemplated. Of course, the doctrine of appropriation, as contradistinguished from that of riparian rights, was not intended to, and indeed could not, affect the rights of those persons ding under grants from the Spanish or Mexican governments; first, because the doctrine is expressly limited to the waters upon what are known as public lands; and secondly, because the rights of such grantees are protected by treaty with Mexico and the good faith of the government.

                “It is the rights of such riparian proprietors as those that are unaffected by the doctrine of appropriation, and those are the riparian rights that are excepted from the operations of the provisions of the Civil Code in relation to ‘water rights’ by section 1422 of that code, which reads: ‘The rights of riparian proprietors are not affected by the provisions of this title.’ That code, as well as the other codes of California, went into effect the first day of January, 1873. The appellants contend, and the prevailing opinion holds, that by the section of the Civil Code just quoted, the legislature of the State declared that the common-law doctrine of riparian rights should apply to all the streams of the State. It seams very clear to me that this is not so, for many reasons. Leaving out of consideration the question whether it lay in the power of the State to nullify the doctrine of appropriation established by the United States with respect to the waters flowing over their lands,-established too, in pursuance of the policy of the State itself had previously adopted, and for the advancement of the interest of the people of the State, I find nothing in the Civil Code, or in any of the other codes, to indicate any intention on the part of the legislature of the State to return to the doctrine of riparian rights with respect to the waters upon the public lands. On the contrary, the code enacts in statutory form, in language as clear as language can be made, the theretofore prevailing law of appropriation. Title of the Civil Code is headed ‘Water Rights.’ The first section of that title-section 1410 of the code-declares: ‘The right to the use of running water, flowing in a river or stream, or down a canyon or ravine, may be acquired by appropriation.’

                “Can anything be clearer? By the common law, the water flowing in a river or stream, or down a canyon or ravine, could not be acquired by appropriation, and must continue to flow in its natural channel undiminished in quantity and unaffected in quality. Could there be any clearer declaration of the fact that the common-law doctrine of riparian rights should no apply to the streams of this State than is found in this declaration of the statute that the waters of such streams may be acquired by appropriation?”

     

    “Use cannot create and disuse cannot destroy or suspend it.” Lux v. Haggin, 69 Cal. 391

     

    In the case of Stowe v. Johnson, 26 Pac. Rep. 290, the Supreme Court of Utah said:

     

                “Riparian rights have never been recognized in this territory, or in any State of territory where irrigation is necessary; for the appropriation of water for the purpose of irrigation is entirely and unavoidably in conflict with the common-law doctrine of riparian proprietorship. If that had been recognized and applied in this territory, it would still be a desert; for a man owning ten acres or more, near its mouth, could prevent the settlement of all the land above him. For at the common law the riparian proprietor is entitled to have the water flow in quantity and quality past his land as it was wont to do when  he acquired title thereto, and this right is utterly irreconcilable with the use of water for irrigation. The legislature of this territory has always ignored this claim of riparian proprietors, and the practice and usages of the inhabitants have never considered it applicable, and have never regarded it.”

     

    The Supreme Court of California:

     

                “We therefore hold it to be the law, and we think it to be a moderate and just exposition thereof, that one may, by appropriate works, develop and secure to useful purposes the sub-surface flow of our streams, and become, with due regard to the rights of others in the stream, a legal appropriator of waters by so doing. That plaintiff thus was, at the time of the institution of its action, an appropriator, permits of no doubt, but its appropriation was legal only far as its taking did not imperil or impair the rights of others superior to its own. One may not, of course, tunnel into the bed of such a stream, or dam its underground flow, and by such means draw away either subterranean or surface waters the rightful use of which has been secured by others. If, upon the other hand, one can, by development, obtain subterranean waters without injury to the superior rights of others, clearly he should be permitted to do so.” Vineland Irr. District v. Azusa Irr. Co., 126 Cal. 486

     

     For What Purposes Water May Be Appropriated.

     The only statutory limitation of the purpose for which water may be appropriated is that it “must be for some useful or beneficial purpose.”

     

                Civil Code, Section 1411.

                In the early history of the State, the most important use made of water appropriate, aside from domestic use, was for the operation of mines. And this use still continues in some localities. But at the present time, by far most of the water used is for the irrigation of trees and growing crops. It may be appropriated, however, for mining milling, irrigation, agricultural, horticultural, domestic, or any other useful or beneficial purpose. The appropriation, to be valid, must be made with the intention of using it for some such purpose.


    Congressman Tipton Floor Statement on Plan to Expand Clean, Renewable Hydropower

    Uploaded by on Mar 6, 2012

    H.R. 2842: The Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act of 2012. Bipartisan plan would expand production of clean, renewable hydropower.

     

    The federal reserved water rights doctrine was established by the U.S. Supreme Court in 1908 in Winters v. United States. In this case, the U.S. Supreme Court found that an Indian reservation (in the case, the Fort Belknap Indian Reservation) may reserve water for future use in an amount necessary to fulfill the purpose of the reservation, with a priority dating from the treaty that established the reservation. This doctrine establishes that when the federal government created Indian reservations, water rights were reserved in sufficient quantity to meet the purposes for which the reservation was established.

    The Winters Doctrine was a land mark case for it was the first time the federal government deviated from the established convention that water law was purely a state matter. In 1952, however, Congress passed the McCarren Amendment which returns substantial power to the states with respect to the management of water. The McCarren Amendment requires that the federal government waive its sovereign immunity in cases involving the general adjudication of water rights. Prior to this legislation, the federal government had reserved the right not to be included in general basin adjudications conducted under state law. The McCarren Amendment, however, recognized that the exemption of the federal government from these adjudications would undermine the state’s water allocation systems. Therefore, any federal agency claiming a federal reserved water right must participate in the state’s adjudication process.

    Federal court decisions since the McCarren Amendment have further limited federal reserved water rights. In the 1976 Cappaert v. United States of America, the Court ruled that a federal reserved water right quantification was limited to the primary purpose of the reservation and only to the minimum amount of water necessary to fulfill the purpose of the reservation. In 1978, in United State of America v. New Mexico, the Court found that the reserved water rights on national forests apply only to the preservation of timber resources and water flows. All other claimed needs were to be considered secondary purposes and the federal government would have to obtain rights like any other appropriator under state law. These rulings have narrowed the scope of the Winter’s Doctrine. Federal reserved water rights may only include quantities of water necessary to meet the primary purpose for which the reservation was established ("primary purpose" requirement) and only in the minimum amounts necessary to meet those purposes ("minimal needs" requirement).

    The Winters Doctrine originally applied to Indian reservations but has since been applied to other federal land reservations. A variety of court decisions have extended the reserved right doctrine to encompass not only Indian reservations, but water uses in national forests, national parks and monuments, and military reservations. In the 1963 Arizona v. California decision, the U.S. Supreme Court found the Winters Doctrine equally applicable to other federal establishments and affirmed an allocation of water for non-Indian federal uses.

    Today, federal reserved water rights can be asserted on most lands managed by the federal government. Reserved rights are, for the most part, immune from state water laws and therefore, are not subject to diversion and beneficial use requirements and cannot be lost by non-use. The federal government, however, is required to submit all reserved water rights claims to the state’s adjudication process, and are limited by the "primary purpose" and "minimal needs" requirements. In addition, federal reserved water rights are nontransferable. By law, these rights can only exist on lands owned by the federal government. If a land transfer occurs, any existing federal reserved water right becomes invalid.

    Because federal reserved water rights must meet the "primary purpose" and "minimal needs" requirements, it is important to quantify any federal reserved right. Generally, quantifying a federal reserved right requires specifying the amount of water claimed, the water sources, the primary purpose of the reservation for which the water is needed, and the priority date of the claim (the date the reservation was created). The most contentious issue is often the amount of water claimed. The quantification of a federal reserved water right often involves the sophisticated integration of ecological models with surface and ground water flow models. The data necessary for accurate modeling is often unavailable or needs to be collected, and there are often discrepancies over appropriate modeling techniques and the interpretation of results. As a result, much of the current controversy is not centered around asserting a federal reserved right, but in the quantification of that assertion.

    Federal Reserved Water Rights and the Bureau of Land Management:

    The following types of federal reserved water rights can occur on BLM lands: public water holes and springs; mineral hot springs; stock driveways; public oil shale withdrawals; wild and scenic rivers; national monuments and conservation areas; and wilderness areas.

    Probably the most common federal reserved water right for BLM is for public water holes and springs. These rights were created by executive orders called Public Water Reserves (PWR). Until 1926, PWRs were created on an ad hoc and sight specific basis. Federal agencies would identify the springs they wanted reserved and these would be incorporated (by executive order) into a chronologically numbered Public Water Reserve. Therefore PWRs with early numbers refer to sight specific reservations. In 1926, a cart blank Public Water Reserve was created through an executive order by President Coolidge entitled "Public Water Reserves No. 107". PWR 107 ended the sight specific system of reserving springs and water holes. The purpose of PWR 107 was to reserve natural springs and water holes yielding amounts in excess of homesteading requirements. This order states that "legal subdivision(s) of public land surveys which is vacant, unappropriated, unreserved public land and contains a spring or water hole, and all land within one quarter of a mile of every spring or water be reserved for public use". There was no intent to reserve the entire yield of each public spring or water hole, rather reserved water was limited to domestic human consumption and stockwatering. All waters from these sources in excess of the minimum amount necessary for these limited public watering purposes is available for appropriation through state water law. To date, many of these Public Water Reserves have not been registered with the state and/or are not adjudicated.

    Wilderness designations can be considered the most restrictive of the federal land management designation. Reserved water rights are set aside pursuant to the Wilderness Act of 1964 (16 USC section 1131). Development within wilderness areas is restricted, and these restrictions extend to the development of water supplies. The Wilderness Act reserves the amount of water within the wilderness area necessary to preserve and protect the specific values responsible for designation of the area, and to provide for public enjoyment of these values. Only the minimum amount of water necessary to fulfill the primary purpose of the reservation may be asserted as a reserved right.

    Wild and Scenic River designations are derived from the Wild and Scenic Rivers Act of 1968 (16 USC section 1271). This legislation states that "certain selected rivers of the nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations". Designation of a stream or river segment as "wild and scenic" prevents construction of flow modifying structures and other facilities on the selected stretch. The area of restricted development can vary, but generally includes at least the area within one-quarter mile of the ordinary high water mark on either side of the river. The act also reserved to the United States the amount of unappropriated water flowing through the public lands necessary to preserve and protect in free-flowing condition the specific values which were responsible for designation of the watercourse. The act, however, does not automatically reserve the entire unappropriated flow of the river.

    Stock driveways are reserved pursuant to Section 10 of the Stock-Raising Homestead Act of 1916. This act was repealed by Section 704(a) of the FLPMA, but reservations made prior to 1976 remain in effect until changed in accordance with the act. This act authorized the withdrawal of public lands containing water holds needed for watering stock during their movement to seasonal ranges or shipping points. The priority date for each water hole is the date on which the application for the land withdrawal was approved.

    Mineral hot springs with medicinal or curative properties located on vacant, unappropriated, and unreserved public lands constitute federal reserved water rights. The BLM is authorized to lease these springs for public purposes.

    Public oil shale withdrawals reserve that quantity of water which can be used for investigating, examining, and classifying oil shale, but only those waters needed for assessment of the oil shale resources. Federal reserved rights do not apply to waters necessary to develop the oil shale. Waters for development must come through state law and allocation procedures.

    Executive Order 11001, SEC. 3. Health Functions.
    With respect to emergency health services, as defined above, and in consonance with national civil defense plans, programs and operations of the Department of Defense under Executive Order No. 10952, the Secretary shall: (a) National program guidance. Develop plans and issue guidance designed to utilize to the maximum extent the existing civilian health resources of the Federal Government, and with their active participation, assistance, and consent, the health resources of the States and local political subdivisions thereof, and of other civilian organizations and agencies concerned with the health of the population, under all conditions of national emergency. Maintain relations with health professions and institutions to foster mutual understanding of Federal emergency plans which affect health activities.

    (b) Professional training. Develop and direct a nationwide program to train health manpower both in professional and technical occupational content and in civil defense knowledge and skills. Develop and distribute health education material for inclusion in the curricula of schools, colleges, professional schools, government schools, and other educational facilities throughout the United States. Develop and distribute civil defense information relative to health services to States, voluntary agencies and professional groups.

    (c) Emergency water supply. Prepare plans to assure the provision of usable public water supplies for essential community uses in an emergency. This shall include inventorying existing supplies, developing new sources, performing research, setting standards, and planning distribution. In carrying on these activities, the Department shall have primary responsibility but will make maximum use of the resources and competence of State and local authorities and of other Federal agencies.

    California water bill

    Although it's provoking more skepticism over its cost and feasibility, the current salmon-restoration plan also is part of a court settlement that could be difficult to unravel unless environmentalists agree

    "That's a non-starter," Costa said of the House provision.

    Other House provisions, Costa suggested, could prove much more palatable.


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    EPA Readies 'Connectivity' Study To Bolster Clean Water Jurisdiction Policy

    EPA is readying an analysis of existing studies showing how navigable waters may be connected to "headwater streams" and isolated wetlands, an effort that could help the agency justify its forthcoming policy clarifying when the Clean Water Act (CWA) grants regulators jurisdiction over such marginal waterbodies.

    EPA Advances Controversial Guide Clarifying Scope Of Clean Water Act

    EPA is advancing its controversial guidance clarifying when isolated wetlands, intermittent streams and other marginal waters are subject to regulation under the Clean Water Act (CWA), despite strong calls from industry, GOP lawmakers and others for the agency to scrap the measure.

    EPA Unveils Scientific Integrity Policy But Lacks Implementation Resources

    EPA has released the final version of its scientific integrity policy as required by the White House, but the agency has not crafted an explanation of how the new document - intended to protect agency science and scientists from political interference - will be implemented or whether key officials are available to implement it.

    EPA Inspector General Vows Increased Focus On Efforts To Protect Health

    EPA Inspector General (IG) Arthur Elkins, Jr. is vowing an increased focused on evaluations and other efforts aimed at protecting public health and the environment in the coming year, while touting his office's accomplishments and saying the IG's fiscal year 2013 budget proposal is adequate to avoid cuts in discretionary evaluations.

    Without evidence of legally significant contamination, the government was unjustified in filing suit to gain access to private property for a response action under the Superfund law, according to a ruling by a federal district court. [ U.S. v. Tarkowski , No. 99 C 7308, N.D.Ill., Nov. 26, 2001] Consequently, the victorious property owner can recoup his litigation costs.

    John Tarkowski is an elderly, indigent resident of a 16-acre tract situated in Wauconda, Ill., an affluent community northwest of Chicago. Until he was disabled, he worked as a building contractor. Using surplus materials, he built his house many years ago when the area was a rural backwater. His yard is filled with what his upscale neighbors regard as junk — wooden pallets, tires, empty drums, batteries, paint cans and other construction materials.

    For more than 20 years, Tarkowski's neighbors had harassed him and had complained to environmental officials. The U.S. Environmental Protection Agency (EPA) inspected his property in 1979, but concluded that it did not pose any environmental hazard. In 1995, EPA rated the property zero on its hazard rating scale. Two years later, state authorities took soil and water samples and found no noteworthy contamination.

    In 1998, EPA took additional samples of soil and materials on his property, finding only trace amounts of contaminants that, in fact, were comparable to levels found in surrounding properties and did not indicate any release. Nevertheless, EPA filed suit against Tarkowski alleging an “imminent and substantial endangerment to … public health … and the environment” based on an actual or possible release of hazardous substances. EPA sought an order to gain access to the site for investigative and remedial purposes. After hearing the evidence, a federal district court dismissed EPA's suit. An appeals court upheld the ruling, castigating the agency's conduct and judgment. [248 F.3d 596 (7th Cir. 2001)]

    Tarkowski petitioned the district court for an award of attorney's fees and expenses under the Equal Access to Justice Act. The law allows certain parties who prevail against the federal government in a lawsuit to recover their litigation expenses unless the government's position was reasonable.

    Finding EPA's stance totally unjustified, the district judge said, “There was no evidence of legally significant contamination and … the government's claim of an imminent and substantial endangerment was factually baseless.” EPA cannot reasonably insist that “if a hazard was found, no matter how small, it had the right to do whatever it wanted on Tarkowski's property,” he added.

    “It is to protect citizens against … overreaching actions by government bureaucrats that courts are empowered to prevent arbitrary and capricious interference with property rights,” said the judge, again citing the appeals court. “The government's position … ‘would give the agency in effect an unlimited power of warrantless searches and seizures [which the Superfund law] does not contemplate and the Fourth Amendment would almost certainly forbid,'” he concluded with yet another reference to the appellate opinion.


    POSSEE SUMMONS, TRAITORS CAUGHT- IN FLAGRANT DELICTO, 

    THEIR MORAL TURPITUDE & UNETHICAL COLLUSION IN EPIC CRIMES OF DECEPTION & AGENCY EXTORTION PERPETUATING DESPOTIC & TYRANNICAL FRAUDS, THEIR CONQUEST FOR OUR SACRED FREEDOMS, & BY GROSS DEFAMATION OF CHARACTER & INSIDIOUS POISONING OF OUR REPUTATIONS & DELIBERATE ABUSES OF OFFICE UNDER COLOR OF LAW & A DELIBERATELY MALICIOUS PROSECUTION, KNOWING BAD FAITH & PREJUDICE, WITH ARBITRARY & CAPRICIOUS RECKLESS FELONIOUS WASTE & WILLFUL ENDANGERMENTS TO OUR PROPERTY & PERSONS.


    ABJURING AN OFFICERS DUTY TO DEFEND THE CONSTITUTION


    AIG DOESN'T OWN OR RENT
    ‘we just gotta get a return on our investment—we really don’t care about your company.’”

    Member Company of American International Group, Inc

    AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY

    A Capital Stock Insurance Company (herein called the Company)

    175 Water Street, Twelfth Floor

    New York, New York 10038

    IRON MOUNTAIN MINE MANUSCRIPT

    CLEAN-UP COST CAP POLLUTION LEGAL LIABILITY SELECT® INSURANCE

    DECLARATIONS

    SOME OF THE COVERAGES CONTAIN CLAIMS-MADE AND REPORTED REQUIREMENTS

    PLEASE READ CAREFULLY.

    POLICY NUMBER: EPP1950093

    POLICY AGGREGATE LIMITS FOR ALL COVERAGES, A through D - $336,706,450:

    (a) For Coverage A: $301,706,450 less any amounts paid under Coverage B

    (b) For Coverage B

    (c) For Coverages C and D:

    $100,000,000 less any amounts paid under Coverage

    A in excess of $ 201,706,450

    $35,000,000 Combined

    Item 5(a): INSURED PROPERTIES - COVERAGES A and B

    Each of the locations defined as the Site in the Statement of Work

    Item 5(b): INSURED PROPERTIES - COVERAGES C and D

    Each of the locations defined as the Site in the Statement of Work excluding each of the

    properties listed in Schedule C of this Policy.

    Item 6: POLICY PREMIUM: To be determined, as described in Endorsement 3.

    Item 7: RETROACTIVE DATE: Under Coverages C and D, the Pollution Conditions must commence

    on or after the date shown below.

    Retroactive Date: Policy Inception

    Item 8: CONTINUITY DATE: Policy Inception

    Item 9: CLEAN-UP COST PROGRESS REPORT SUBMISSION SCHEDULE: as required under

    Section 6 of the Statement of Work.

    Project Coordinator, Iron Mountain Mine


    March 09, 2012


    Home Counsel's Guide to Crisis Management

    In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful.As for EPA, "These people have done nothing but drum up a godless, heathen worship of fish."

    Read more here: http://www.sacbee.com/2012/01/04/4160944/colorful-character-brings-unusual.html#mi_rss=Our%20Region#storylink=cpy
    As for EPA, "These people have done nothing but drum up a godless, heathen worship of fish."

    Read more here: http://www.sacbee.com/2012/01/04/4160944/colorful-character-brings-unusual.html#mi_rss=Our%20Region#storylink=cpy

    In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful.

      "These people have done nothing but drum up a godless, heathen worship of fish."

     - John F. Hutchens

    Finis Rei Publicae ''civibusque' libertate, potestatem custodem libertate civium!

    End of the central government's 'peoples-court' guarding liberty, restore custodians of liberty to the people.

    Nullum crimen, nulla poena sine praevia lege poenali.
    "No crime, no punishment without a previous penal law"

    The absolute and imperative necessity of preserving our water supply.

    Cloud Services
    MAX.gov Capabilities Sponsored by the Budget Formulation and Execution Line of Business (BFELoB)
    February 2, 2012


    How Water May Be Appropriated.

     

    The right of appropriation of water on the public domain is recognized and allowed by acts of Congress, and rights already vested are preserved.

    U.S. Rev. Stat., Secs. 2339, 2340;

    19 U.S. Stat. at Large, 377, Chap. 107;

    The acts of Congress on the subject do not create any new right of appropriation.

    They only preserve and protect rights already accrued and vested by the law or customs of the State.

    Jennison v. Kirk, 98 U.S. 453;

    Broder v. Water Co. 101 U.S. 274.

     

    The manner of making the appropriation is not provided. That is left to legislation or prevailing custom of the State. It is a mistake to suppose that an irrigator obtains his rights from the national government, further than that his right to appropriate water on government lands is recognized, if not granted, by act of Congress, or that the manner of making an appropriation is governed or controlled by laws enacted by Congress. His rights are, except as stated above, controlled entirely by state laws. The laws of this State provide specifically how appropriation of water may be made.

    Sec. 1415. A person desiring to appropriate water must post a notice, in writing, in a conspicuous place at the point of intended diversion, stating therein:

                1 That he claims the water there flowing to the extent of (giving the number) inches, measured under a four inch pressure.

                2 The purpose for which he claims it, and the place of intended use;

                3. The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it;

                A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted.

    Sec. 1416. Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain; provided, that if the erection of a dam has been recommended by the California debris commission at or near the place where it is intended to divert the water, the claimant shall have sixty days after completion of such dam in which to commence the excavation or construction of the works in which he intends to divert the water.

    Sec. 1417. By “completion” is meant conducting the waters to the place of intended use.

     

    Civil Code, Secs. 1415-1417

    The final and one of the necessary acts of appropriation in any case, is the application of the water to some beneficial use, and the proceedings must be with that intention and for that purpose.

    Civil Code, Secs. 1411, 1415;

    Pomeroy’s Rip. Rights, Secs. 47, 49;

    Tanner’s High Line Canal &c. Co. v. Southworth, 21 Pac. Rep. 1028;

    Fort Morgan L. & C. Co. v. South Platte Ditch co., 30 Pac. Rep. 1032

    Davis v. Gale, 32 Cal. 26;

    Maeris v. Bicknell, 7 Cal. 261;

    Combs v. Agricultural Ditch Co., 28 Pac. Rep. 966;

    Weaver v. Eureka Lake Co., 15 Cal. 271.

     

    And if the claimant proceeds under the code provisions for the appropriation of water, he must, after posting and recording the required notice, prosecute the work necessary to make the diversion with ordinary and reasonable dispatch. The law does not required unusual or extraordinary effort.

    Ophir Mining Co. v. Carpenter, 4 Nev. 534

    These provisions regulating the manner in which water may be appropriated  are entirely inadequate, the final act of supplying the water to a useful purpose, cannot be ascertained in any satisfactory way.

    Hence water rights become inextricably confused, remedied only by expensive litigation.

    It is a nefarious law that permits such confusion of rights and claims and imposes the burden upon irrigation of settling claims to water at such enormous expense.

    The utter insufficiency is well understood by all who have had occasion to deal with it.

     Prof. Elwood Mead, formerly State Engineer of Wyoming, wrote a commentary entitled “Water Rights on the Missouri River and its Tributaries;”

                “On many rivers there are now a multitude of claims to the common supply. These rights have to be defined in some way. If laws do not define them, a resort to the courts is all that intervenes between the just rights of water-users and anarchy. In many States the exigencies created by a failure to enact the administrative code have compelled the courts to become practically both the creators and enforcer of water laws. They have to devise a procedure for adjudication, supplement the statute law in deciding what rights have been stabled, and finally have to protect irrigator’s priorities by a liberal exercise of government by injunction. The growing volume of this litigation, together with the uncertain and contradictory character of many of the decisions is making a heavy burden to irrigators and a serious menace to progress.”

     

    Upon a review of this branch of the subject at hand, one cannot but feel the need for an intelligent revision of our entire system of laws relating to the appropriation and use of water.

     The subject is one of such vast importance to the State and the laws are so imperfect and inadequate that it is amazing that some improvement of the laws should not have been made long before this.

    Effect of Appropriation.

     The general effect of the appropriation of water is to give to the appropriator the perfect right to “the continued use of the amount of water appropriated, subject, of course, to the rights of superior rights and prior appropriations.

    Under our statute, and independent of it, the rule “first in time, first in right,” prevails between appropriators, Civil Code, Sec. 1414,.

    As between appropriators and riparian owners, the rule is different. The right of the riparian owner, as we have seen, grows out of his ownership of land bordering a stream. It does not depend upon his actual use of the water as in case of and appropriator. He does not lose his right by a mere failure to exercise it by a diversion or use of the water. He may lose his right, however, by suffering someone else to to use it adversely. The question of pf priority of time as between a riparian owner and an appropriator can arise only in respect of the time such owner acquired title to his land, and the time of the appropriation by another, unless the question of continued adverse use arises. In this respect, the question of time is important because, if the appropriation is made before the riparian owner acquired title from the government, the appropriator is first in time and first in right.

     

    Corporations engaged in the business of furnishing water for irrigation, under the laws of California, exercising our right of eminent domain.

     

     “Section II-1/2, Nothing in this Act contained shall be construed to prohibit or invalidate any contract already made, or which shall hereafter be made, by or with any of the persons, companies, associations, or corporations described in section 2 of this Act, relating to the sale, rental, or distribution of water, or to the sale or rental of easements and servitudes of the right to the flow and use of water; nor to prohibit or interfere with the vesting of rights under any such contract. Stat. 1897, p. 49.

     

    “Bona fide owner of agricultural lands desiring to improve the same by conducting waters thereon.”
    In re Central Irr. Dist. 117 Cal., 382, 398.

    The statute of 1862 related to water furnished in counties outside of cities and towns provided;
     " Every company organized as aforesaid shall have power, and the same is hereby granted, to make rules and regulations for the management and preservation of their works, not inconsistent with the laws of this State, and for the use and distribution of the waters and the navigation of the canals, and to establish, collect, and receive rates, water rents, or tolls, which shall be subject to regulation by the board of supervisors of the county or counties in which the work is situated, but which shall not be reduced by the supervisors so low as to yield to the stockholders less than one and one-half per cent. per month on the capital invested."Stat. 1862, 540, 541 Sec. 3


    In 1879, our present constitution was adopted, and went into effect January 1, 1880. Article XIV of the constitution begins as follows:---

    USE AND RATES

    Section I. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law; provided, that the rates or compensation to be collected by any person, company, or corporation in this State for the use of water supplied to any city or town, or the inhabitants thereof, shall be fixed, annually, by the board of supervisors, or city and county, or city or town council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legislative acts or resolutions are passed by such body, and shall continue in force for one year, and no longer. Such ordinances or resolutions shall be passed in the month of February of each year, and take effect on the first day of July thereafter. Any board or body failing to pass the necessary ordinance or resolutions shall be subject to peremptory process to compel action at the suit of any party interested, and shall be liable to such further processes and penalties as the legislature may prescribe. Any person, company, or corporation collecting water rates in any city and county, or and city or town in this state, otherwise than as established, shall forfeit the franchises and water-works of such person, company, or corporation to the city and county, or city or town where the same are collected, for the public use.

    Sec. 2. The right to collect rates or compensation for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribe by law.
    Const. Cal. Art. XIV, Secs. 1 and 2


     The Supreme Court of California has held that the decree of confirmation is binding and conclusive, not only as to the district and its property-owners, but as against the State of California and the whole world. Crall v. Poso Irr. Dist., 87 Cal., 140; Board of Directors Modesto Dist v. Trega, 88 Cal., 334; People v. Linda Vista Irr. Dist., May 18, 1900, .

     

    “An irrigation district is held to be a public corporation that cannot be dissolved for misuser or non-user of its corporate powers in the absence of a law conferring power on courts to pass a judicial sentence dissolving such corporation upon those grounds.” People v. Selm Irr. Dist., 98., Cal., 206, Stat. 1872 p. 945. The Wright Act.

    Stat 1889, p. 15, Stat. 1891, pp 142, 244. Stat. 1893 pp. 175, 516, The Confirmation act.

    Water Rights:

    Water rights in California can be held by any legal entity. There are no restrictions on who can hold water rights, thus the owner can be an individual, related individuals, non-related individuals, trusts, corporations, government agencies, etc.. Water rights are considered real property (they can be owned separately from the land on which the water is used or diverted) and can be transferred from one owner to another, both temporarily or permanently. Any transfer (sale, lease, or exchange) is subject to approval by the State Water Board through the application process discussed above. Approval is granted upon finding that the transfer would not result in injury to any other water right and would not unreasonably affect fish, wildlife, or other instream beneficial use.

    An appropriative water right in California can be maintained only by continuous beneficial use, and can be lost by five or more continuous years of non-use. Riparian rights, on the other hand, cannot be lost through non-use. Appropriative rights can also be lost through abandonment, but to constitute abandonment of an appropriative right, there must be the intent not to resume the beneficial use of the water right. As a result, abandonment is always voluntary. The rights to waters lost through abandonment or non-use revert to the public, but only after notice has been given and a public hearing is held.

    Adjudications:

    In California, adjudication can be initiated through the court or through statutory procedures. Court initiated adjudication occurs when a water right lawsuit is filed in court (all surface and ground water rights may be included in this procedure). In the case of a court initiated adjudication, the court often asks the State Water Board to act a referee and to conduct an investigation and report back. Statutory adjudications result when one or more entities claim a right from a specific source and file a petition with the State Water Board. The statutory procedure can be used to determine all rights to any body of water including percolating groundwater. The result of a statutory adjudication is a decree that integrates all rights on the water source and sets quantity, season, priority, etc..

    California statute«.— (1) Under Civ. Code § 1007, the running of limitations operates on the state in respect to any property not dedicated to public use as soon as adverse possession thereof begins without reference to a presumed grant. Peo. v. Banning Co., 140 P 587. (2) A reservation of swamp lands of the state from s.-ile by state statute is a mere restriction on the general power delegated to the officers of the state to sell swamp lands, and the lands may be acquired by adverse possession, unless dedicated to a public use. Peo. v. Banning Co., 140 P 587. (3) Where tidelands of the state have been dedicated to a public use, there can be no adverse possession thereof to start the running of limitations against any action by the state or its authorized agencies to assert the public right or such possession as will give title by prescription to the adverse claimants against the public right. Peo. v. Banning Co., 140 P 587. (4) It has been held by the supreme court of the United States that the statute declares that the people of the state will not sue any person for or in respect of any real property by reason of the right or title of the people to the same, unless certain facts exist, was held to be obviated, as regards land in the bay of San Francisco beyond the established harbor line, by the act creating the board of state harbor commissioners and directing them to take possession of all that portion of the bay lying beyond the established harbor line. Weber v. Harbor Comrs., 18 Wall. 57, 68, 21 L. ed. 798. The court In this case said:

    "It is contended with much force that the statute only applies to lands which the State holds, as private proprietor, for sale or other disposition, and in respect to which the title may be lost by adverse possession, as defined in the same statute, and not to lands which she holds as sovereign In trust for the public. . . . Where lands are held by the State simply for sale or other disposition, and not as sovereign in trust for the public, there Is some reason in requiring the assertion of her rights within a limited period, when any portion of such lands Is intruded upon, or occupied without her permission, and the policy of the statute would be carried out by restricting its application to such cases."

    11-] In Minnesota it is held, however, under the statutory provision that the limitations for the commencement of actions "shall apply to the same actions when brought in the name of the state, or in the name of any officer," etc., that no distinction can be made between actions brought as "sovereign" or In a governmental capacity and those brought as "proprietary" or such as a private person might bring. St. Pnul v. Chicago, etc., R. Co., 45 Minn. 387, 48 NW 17.

    46. Buckner v. Ktrkland, 110 S W 399, 33 KyL 603.

    47. State v. Seattle, 57 Wash. 602, 107 P 827, 27 LRANS 11S8.

    48. Rochester v. Kennedy, 229 Pa. 251, 78 A 133; Bagley v. Wallace, 16 Serg. & R. (Pa.) 245; State v. Arledge, 18 S. C. L. 401, 23 AmD 145. And see cases Infra this note. Compare Chamberlain v. Ahrens, 55 Mich. Ill, 20 NW 814 (where it was said that before the express statutory enactment title could be acquired to land owned by the state and held In a proprietary right as distinguished from lands held In trust for the public).

    ??] Where lands have been forfeited to the State under the delinquent tax laws or otherwise, (1) they cannot be the subject of adverse possession while the title thus acquired remains in the state. Bagley v. Wallace, 16 Serg. & R. (Pa.) 245. (2) And if the lands were held adversely to the owner at the time of the forfeiture the adverse character of the occupancy ceases when the state acquires title and cannot be asserted against either the state or its grantee. Armstrong v. Morrill, 14 Wall. (U. S.) 120, 20 L. ed. 765; Hall v. Gittings, 2 Harr. & J. (Md.) 112: Levasser v. Washburn, 11 Gratt. (52 Va.) 572. 578; Hale v. Branscum, 10 Gratt. (51 Va.) 418; Staats v. Board, 10 Gratt. (51 Va.) 400; Hall v. Webb, 21 W. Va. 318. In Levas.scr v. Washburn, supra, it was said; "It Is true, in a certain sense, the commonwealth takes the land on forfeiture in the same plight and condition in which It stood at the time of the forfeiture. The commonwealth takes the estate and title of the former owner, and no other. If at the time of the forfeiture his title were absolutely bound by the adversary possession of another, it may be no title would vest in the commonwealth, unless it were saved by the existence of her lien on the land for arrears of taxes; a point upon which I express no opinion. But if when the forfeiture accrued the right of entry still remained to the owner, though an adversary possession had been commenced, the possession as to her must lose Its adversary character, and she must take and hold the subject with the same rights, privileges and immunities which pertain to any other lands held by her In her demesne. I can perceive no good reason why any discrimination should be made, or why she should hold forfeited lands upon different principles and with diminished privileges from those applying to other subjects of similar character."

    | $ 448] 2. Time When the Statute Commences to Run—a. General Rule. The statute begins to run against a grantee of the sovereignty only from the time when he acquires title; in view of the rule excluding the government from the operation of the statute an occupancy prior to that time will not be deemed adverse and can have no effect to give title by adverse possession against grantees of the federal or state governments.  The applications of this general rule, however, are not uniform, as will hereinafter appear.

    [§ 449] b. Applications of Rule—(1) Introductory Statement. Since there is a difference of opinion as to just when the title of the federal or state government passes to a grantee the cases do not agree in the application of the above stated general rule.

    [4 450] (2) Grantees of the Federal Government—(a) Rule That Patent Must Issue—aa. In General. On the ground that the title of the United States does not pass until the issuance of a patent it is held by one line of cases that the statute runs against a purchaser from the federal government only from the date of his patent.

    [b] Escheat. —Title by adverse possession cannot be acquired in lands which have escheated to the state. Harlock v. Jackson, 5 S. C. L. 254, 6 S. C. L. 135: Ellis v. State, 3 Tex. Civ. A. 170, 21 SW 68. 24 SW 660.

    By virtue of the office of general conservator of the peace throughout the whole kingdom, the High Warden may commit all violators of the peace, or bind them in recognizances to keep it; but other Judges are only so in their own Courts.

    Terris, bonis et calallis rehabendis post purgationem. A writ for a clerk to recover his lands, goods, and chattels formerly seized, after he had cleared himself of the felony of which he was accused, and delivered to his ordinary to be purged. Reg. Orig. 68.

    ii. Local Governments

    Section 2504 of the Lender Liability Act validates the portion of the CERCLA Lender Liability Rule that addresses involuntary acquisitions by government entities. State or local governments that acquire property by involuntary means such as bankruptcy, tax delinquency, or abandonment are excluded from the definition of “owner or operator” in CERCLA, and therefore are not liable under CERCLA Section 107(a). CERCLA § 101(20)(D). There is also a third-party affirmative defense available for government entities that acquire property “by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation.” CERCLA § 101(35)(A)(ii).

    EPA’s 1995 enforcement policy on involuntary acquisition by lenders and local governments was followed with the guidance memorandum, Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (October 20, 1995). These two policy memoranda clarified some of the issues surrounding involuntary municipal acquisition of properties. EPA provided further clarification on these issues in a fact sheet, The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities issued in December 1995. EPA continues to follow as guidance the Lender Liability Rule and the two 1995 guidance documents and subsequent fact sheets when addressing local government liability.

    State or local government entities that acquire property after the enactment of the 2002 Brownfields Amendments and that are concerned about potential contamination may want to seek the advice of counsel before taking title to ensure that they will have a liability protection (e.g., BFPP status or protection under the involuntary acquisition provision or third-party defense). State or local government entities should note that to achieve BFPP status, an entity must conduct AAI prior to purchase and comply with the other BFPP requirements. Conducting proper AAI prior to purchase is also important for state and local government entities relying on the BFPP protection for brownfield grant eligibility.


    Standing of Intervenor-Defendants in Public Law Litigation


    Matthew I. Hall


    University of Georgia School of Law


    Fordham Law Review, Vol. 40, pp. 1539-1584, 2012
    UGA Legal Studies Research Paper No. 2

    Abstract:     
    Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing. That much is clearly established by decades of precedent. Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake. The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.

  • Further Than Atheism: Can Environmentalism Replace Religion ?

    Irregular Times' weekly column on the world beyond the gods.
    irregulartimes.com/further10.html - Cached - Similar

  • Environment and Religion - For God's Sake - Religious ...

    Faith-based environmentalism is a growing trend, with an increasing number of relgious leaders and organizations teaching that doing God's will means ...
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  • The Perils Ahead: Debt Limit, EPA Rules, “Green” California

    November 17, 2010 Andrew McCarthy's National Review on Line (NRO) post laying out the political context of capping the debt limit –

    “Very soon, Leviathan's credit card will be tapped out. Shortly after President Obama took office, Congress quietly raised the debt ceiling from $12.3 trillion to $14.2 trillion — an amount that strategically evaded the need to come back for more just before the midterm elections. At its current rate of profligacy, however, the government will steamroll past the current limit within a few months. It will need a new, higher max-out to keep the gravy train rolling. So, like clockwork, the punditocracy is in high dudgeon, warning the speaker-to-be and other GOP leaders: Don't even think about not raising the cap . Unless the ceiling is raised, we're told, life will end, the government will collapse, the global economy will sink into deep depression, the unemployed may have to make do on less than 99 weeks of ‘insurance,' etc. Go along, or prepare to be smeared as reckless maniacs. In short, it's TARP time all over again .”

    Grasping the California Disaster

    Highlighting another self-inflicted environmentalist wound, today George Gilder in his Wall Street Journal op-ed “California's Destructive Green Jobs Lobby Silicon Valley” explains –

    “Worst of all, economic sanity lost out in what may have been the most important election on Nov. 2 — and, no, I'm not talking about the gubernatorial or senate races. This was the California referendum to repeal Assembly Bill 32, the so-called Global Warming Solutions Act, which ratchets the state's economy back to 1990 levels of greenhouse gases by 2020. That's a 30% drop followed by a mandated 80% overall drop by 2050. Together with a $500 billion public-pension overhang, the new energy cap dooms the state to bankruptcy. Conservative pundits have lavished mock pity on the state. But as America's chief fount of technology, California cannot go down the drain without dragging the rest of the country with it .”

    • Can't a man get a drink in this town?

    Historic Western town fights feds over very existence

    by Bob Unruh

    A new fight has developed in the American West over water, where strategies to use the liquid gold routinely are litigated and challenged. But in one case, according to a legal team, the result literally could kill the historic town of Tombstone, Ariz.

    The Goldwater Institute today told WND it has filed a motion for a preliminary injunction that would allow town officials to go into the Huachuca Mountains to repair the collection system – pools, pipes and related equipment – that provide the town with much-needed water in the desert climate.

    The federal government has said no.

    Nick Dranias, head of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the institute, said the issue is far larger than just a dispute over whether trucks and tractors can be used to repair city-owned property inside a federal land preserve.

    “This is a case of egregious federal overreach,” an institute report on the conflict said. “If the Forest Service can effectively seize Tombstone’s 130-year-old water rights during a state of emergency – rights that the service recognized as valid in 1916 – no state or local government will be safe from the feds.”

    In the arid West, most cities and towns, including Cheyenne, Wyo., and the Denver metropolitan area, draw at least some of their water from collection systems on federal lands. In other parts of the nation, municipalities have their wells and other critical infrastructure sometimes on federal properties.

    “By denying Tombstone access to its water, the Forest Service is threatening to directly regulate Tombstone to death,” the institute said.

    The shortage developed because of the Monument Fire in 2011, which denuded the hillsides of vegetation. After the fire, record-breaking monsoon rains hit the region, triggering huge mudslides that left boulders the size of cars tumbling down hillsides.

    The slides crushed Tombstone’s mountain spring waterlines and destroyed reservoirs for the town’s main water supply network.

    “In some areas, Tombstone’s pipeline is under 12 feet of mud, rocks and other debris, while in other places, it is hanging in mid-air due to the ground being washed out from under it,” the institute reported.

    However, instead of allowing repairs as has happened in the past, “federal bureaucrats are refusing to allow Tombstone to unearth its springs and restore its waterlines unless [city officials] jump through a lengthy permitting process that will require the city to use horses and hand tools to remove boulders the size of Volkswagens.”

    Dranias told WND the organization expects to hear a decision on its request for a preliminary injunction by the end of next month.

    He called the skirmish just the “tip of the iceberg.”

    He said there is evidence that the Forest Service under Barack Obama’s leadership is adopting a comprehensive plan “to clear federal lands of any private or non-federal uses.”

    Ranchers in the West, according to Dranias, have been told to give up their various access and water rights, ski resorts have faced problems with access to federal lands and Indian tribes have been dealt the same blow.

    In another Arizona location, he said, a longstanding RV establishment, basically a permanent retirement community, has been denied a renewed lease on the land it has improved.

    “The way I look at it is if they can break Tombstone, take Tombstone’s mountain water rights, then nobody is safe,” he said.

    History, he noted, is on the side of the town and its people.

    A brief submitted to the court notes that in 1916, Tombstone’s predecessor in interest to the rights at issue, Huachuca Water Company, obtained a letter from the Forest Service admitting that it had full right and title to the Huachuca Mountain water infrastructure.

    “What was abundantly obvious to defendants in 1916 is now being completely disregarded,” the brief said. “In fact, the chain of title to Tombstone’s water rights, infrastructure and rights of way in the Huachuca Mountains is clear. Tombstone actually holds previously adjudicated water rights, as well as appurtenant and independent land use, pipeline and access rights of way.”

    The brief continued, “Defendants’ conduct in this case can only be explained as an arbitrary and capricious effort to enforce fealty to a clearly erroneous interpretation of federal law.”

    It’s a key 10th Amendment fight, according to the institute, because, “Just as the federal government cannot regulate the states, it cannot regulate political subdivisions of the states, like the city of Tombstone. And despite what power it may claim, the Forest Service certainly has no power to regulate Tombstone to death.”

    Forest Service officials declined to answer questions about the court fight.

    The institute noted that Arizona Gov. Jan Brewer already has declared a state of emergency for Tombstone, gathering together “all police powers of the state,” to address Tombstone’s need.

    The town has some wells, but they are subject to contamination in the desert region, and its water for generations has come from the clear springs of the nearby mountains.

    “Gov. Brewer’s declaration of a state of emergency underscores the threat to public health and safety faced by Tombstone,” the court brief explains.

    “The loss of Tombstone’s municipal water supply has caused a shortage of water for both consumption and fire suppression during peak demand. The resulting fire hazard is readily apparent from the fact that in December 2010 a devastating fire broke out in Tombstone’s 19th century wooden structure historic downtown district. The entire business district could easily have been lost.”


    The IRS Wants Your Passport

     Does the Tax Man or any government agency have the right to prevent us from traveling, even without a formal charge of a felonious crime? The answer is NO! But that's not stopping them.

    Resilience – The Foundation of National Preparedness

    The President’s vision for building a resilient and prepared nation is contained in his August 31 declaration of September 2011 as National Preparedness month:

    “Together, we can equip our families and communities to be resilient through times of hardship and to respond to adversity in the same way America always has – by picking ourselves up and continuing the task of keeping our country strong and safe.”

     

    EPA Paves Pathway

    Intrusion Pathway Reprioritizing Superfund Cleanups

    EPA says its upcoming rule adding vapor intrusion from underground sources of contamination as a pathway for determining whether a site should be placed on the Superfund National Priorities List (NPL) is likely to reprioritize its cleanup program toward those sites because they may pose a higher risk than other sites without such pathways

    The Campaign to Privatize the World

    by David Macaray
    One of the biggest con games going on at the moment is the sustained attack on the U.S. public school system.  It’s being perpetrated by predatory entrepreneurs (disguised as “concerned citizens” and “education reformers”) hoping to persuade the parents of school-age children that the only way their kids are going to get a decent education is by paying for something that they can already get for free.  You might say it’s the same marketing campaign that launched bottled water.


    § 1988. Proceedings in vindication of civil rights

    (a) Applicability of statutory and common law

    The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

    (b) Attorney’s fees

    In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [ 20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [ 42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [ 42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [ 42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

    (c) Expert fees

    In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.

    NINTH CIRCUIT RELIES ON STATE LAW TO

    DETERMINE CERCLA OWNER LIABILITY
    Steven M. Siros
    Jenner & Block LLC
    On March 14, 2011, the Ninth Circuit Court of
    Appeals affirmed a California district court ruling that
    found BCI Coca-Cola Bottling Co. (BCI) not liable as
    an owner under CERCLA. In Los Angeles v. San
    Pedro Boat Works, the city of Los Angeles sued BCI
    to recover response costs it had incurred to remediate
    contaminated sediments in the Los Angeles Harbor.
    According to the complaint, the City alleged that the
    activities of BCI’s predecessor-in-interest, Pacific
    American, Inc. (Pacific-American) contributed to the
    sediment contamination in the harbor. Pacific-American
    did not own the boat works facility outright but rather
    had historically operated the boat works facility
    pursuant to a permit that had been issued by the City
    of Los Angeles. In support of its CERCLA claims, the
    City argued that because Pacific-American owned the
    permit, it was an “owner” under CERCLA. The City
    also argued that Pacific-American was liable as an
    “operator” under CERCLA. The district court
    disagreed, finding that BCI was neither an “owner” nor
    an “operator” under CERCLA. The City appealed the
    district court’s finding that BCI was not an “owner”
    under CERCLA; however, for reasons that are not
    clear from the record, the City elected not to appeal
    the “operator” liability determination.
    On appeal, the Ninth Circuit looked first to the
    language in the CERCLA statute for guidance on
    whether BCI was an “owner” under the statute.
    CERCLA defines the term “owner” to mean “in the
    case of an onshore facility or an offshore facility, any
    person owning or operating such facility” (42 U.S.C.
    § 9601(20)(A)(ii)), which definition the court noted
    had already been found by the U.S. Supreme Court to
    be “entirely tautological, and thus useless.” San Pedro,
    2011 WL 855858, at *5 (9th Cir. 2011); see also
    United States v. Bestfoods, 524 U.S. 51, 66 (1998).
    The Ninth Circuit noted that it had previously grappled
    with how to define the term “owner” under CERCLA
    in Long Beach Unified School District v. Dorothy B.
    Goodwin California Living Trust, 32 F.3d 1364 (9th
    Cir. 1994). In Long Beach, the court was faced with
    the question of whether an entity that owned an
    easement over a parcel of property was an owner
    under CERCLA. Acknowledging that the statute itself
    provides little guidance as to what types of entities
    might constitute “owners” for purposes of CERCLA
    liability, the court concluded that CERCLA should be
    read as “incorporating the common law definitions of
    its terms.” Id. at 1368. The Long Beach court
    therefore looked to California common law and found
    that numerous California courts had distinguished
    between an interest in an easement and outright
    property ownership. The court therefore concluded
    that an easement holder was not an owner for
    purposes of CERCLA. Id. at 1370. The Ninth Circuit
    acknowledged that its holding in Long Beach was not
    conclusive as to whether BCI qualified as an owner
    under CERCLA; however, the court stated that its
    Long Beach holding was instructive in that it illustrated
    the distinction applied by California state courts
    between absolute title to real property and less than fee
    title to a possessory interest in real property.
    The San Pedro court also recognized, however, that
    courts in other circuits had not adopted the approach
    articulated by the Long Beach court. Rather, these
    courts had approached the issue by examining whether
    the holder of the property interest possessed “site
    control” over the facility. For example, the Second
    Circuit established a multifactor test for evaluating
    CERCLA owner liability, which included, among other
    things, an evaluation of whether a party was
    responsible for (i) the payment of taxes and insurance
    or (ii) making structural and other repairs. See
    Commander Oil Corp. v. Barlo Equip. Corp., 215
    F.3d 321 (2d Cir. 2000). Similarly, in United States v.
    South Carolina Recycling & Disposal, Inc., 963 F.
    Supp. 984, 1003 (D.S.C. 1986), the district court
    concluded that a lessee was liable as an owner under
    CERCLA because it “maintained control over and
    responsibility for the use of the property and,
    essentially, stood in the shoes of the property owners.”
    Rather than adopting the more flexible (and, according
    to the Ninth Circuit, more nebulous) analytical
    framework employed by the Second Circuit in
    9
    Commander Oil, the Ninth Circuit instead affirmed the
    approach originally articulated by the Long Beach
    court and looked to California law to determine
    whether BCI was an “owner” under CERCLA. The
    San Pedro court noted that California state courts
    have consistently distinguished between possessory
    interests in property such as a revocable permit and
    title ownership. 2011 WL 855858, at *8 (citing
    Auerbach v. Assessment Appeals, Bd. No. 1, 137
    P.3d 951, 956 (Cal. 2006)). As such, the court found
    that the holder of a permit for a specific use of real
    property is not the “owner” of that real property for
    purposes of CERCLA, especially where, as occurred
    in this case, the City of Los Angeles retained the power
    to control BCI’s use of the real property through the
    revocation of the permit.
    The Ninth Circuit noted that its interpretation of the
    term “owner” was particularly appropriate in light of
    the permissive “authority to control” standard for
    CERCLA operator liability that had already been
    adopted by the Ninth Circuit. See Kaiser Aluminum
    & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d
    1338 (9th Cir. 1992) (holding that CERCLA operator
    liability has been expansively interpreted by this court
    to extend to any party with the authority to control the
    cause of the contamination when the hazardous wastes
    were released into the environment). This statement
    could lead one to conclude that had BCI elected to
    appeal the “operator” liability issue, the Ninth Circuit
    would have had an easier time imposing CERCLA
    “operator” liability on BCI as the successor-in-interest
    to Pacific-American.
    Steven M. Siros is a partner in Jenner & Block
    LLP’s Chicago office. He is a member of the firm’s
    Climate and Clean Technology Law,
    Environmental and Workplace Health & Safety
    Law, Insurance Litigation and Counseling,
    Products Liability and Mass Tort Defense Practice
    Groups with a focus on both litigation and
    regulatory matters.



    Shasta County Recorder's Office

    Document ID: 1992-0007121
    		Assessor Parcel #: Please Contact Assessor's Office
    Recorded on: 2/18/1992
    		Book Page #: Book: 2819 : Page: 27
    No. of Pages: Unknown
    		Image: Documents can only be viewed in Records Office, Internet access is not available.

    RELEASE OF JUDGMENT

    Grantors:

    Grantees:
    CALIF STATE OF IRON MOUNTAIN MINES INC


    States may make whatever laws they wish (consistent with their State Constitutions) except as prohibited by the US Constitution. Only Laws made by Congress, which are pursuant to the Constitution, qualify as part of the General Government Law of the Land.

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State  to the Contrary notwithstanding. [emphasis added]

    Wasting the Wastewater

    By DYLAN WALSH

    “As the world enters the 21st century, the human community finds itself searching for new paradigms for water supply and management,” says a report released this month by the Water Science and Technology Board of the National Research Council, a division of the National Academy of Sciences.

    “Law and practice have always been that water goes back into a river or into groundwater or the ocean before it returns for further treatment,” said Brent Haddad, founder and director of the Center for Integrated Water Research at the University of California, Santa Cruz, and a member of the committee that wrote the report. The critical question, he said, is “whether that natural stage of treatment is actually an efficient stage of treatment.”

    Sixteen experts representing industry, government, and research fields in the social sciences and hard sciences collaborated over three years to produce the study, examining everything from pathogenic risks to public attitudes about reuse.

    The committee ultimately concluded that the reuse of municipal wastewater can safely and significantly increase the nation’s available water resources – potable and non-potable – without intermediate discharge into the natural environment. “The technology for treating wastewater is good enough that we don’t need that intervention,” Dr. Haddad said.

    “The fact is, people already drink reused water,” said Ken Herd, the water supply program director for the southwest Florida district. In a process known as “de facto reuse,” municipal water facilities are commonly sited on rivers or reservoirs downstream from other wastewater treatment facilities, which leads to a progression of unplanned and unregulated water reuse, from one plant down to the next.

    The report found that levels of chemicals in existing water supplies and recycled water are essentially equivalent. Pathogen levels were also equivalent, and sometimes even lower, in recycled water, it said.

    “Nonetheless, when reuse becomes the primary intention of water management, this tends to create public pause,” Mr. Herd said.

    Though reuse is not a silver bullet – such efforts must be accompanied by less costly conservation and efficiency programs – recycled water will inevitably become a “very important part of our national water management portfolio,” Mr. Herd predicts.

    Mr. Grumbles agrees. “In essence, there is no wastewater,” he said. “Just wasted water.”

    William Blackstone referenced the principle of reasonableness in his Commentaries on the Law of England, which was a primary reference source of the founding generation.

    Drawing together the basic features of the principle of reasonableness,one can say that it requires exercises of delegated power to be causally efficacious, measured and proportionate, and respective of background rights. This principle constrains the federal executive and judicial powers under the American Constitution even without textual specification; the principle was part of the very nature of delegated executive and judicial power in the eighteenth-century English legal tradition.

    LA Marine - Lester Aldridge LLP

    United Kingdom: Force Majeure - The Clause, The Definition, The Application

    09 January 2012
    Article by Juanita May Low

    Force majeure is literally translated as "superior forces". In contractual terms, it is recognised as the occurrence of an unexpected event / events beyond the control of either contracting party which disrupts the operation of the contract such that the contracting parties are excused from their liabilities and/or obligations under the contract. It is however not intended to excuse any negligence or malfeasance. It can also suspend the performance of an obligation or extend the time to perform the same.

    Force majeure is only recognised in English law if there is a force majeure clause in the contract or a reference in the contract to force majeure. This is different from civil law jurisdictions where force majeure can apply regardless.

    The purpose and effect of a force majeure clause is to define, as precisely as possible, the circumstances under which a contracting party is released from its contractual obligations. Parties have the ability to negotiate the scope of the clause (i.e. how wide / expansive the clause is) and the specific instances to be included within the clause. For an event to be regarded as a force majeure event, it must fulfil three tests:

    1. Externality – the event / circumstance must be beyond the control of the contracting parties.
    2. Unpredictability – the event / circumstance cannot be anticipated / foreseeable / expected.
    3. Irresistibility – the event / circumstance is unavoidable.

    Historically, force majeure events were recognised as forces of nature or acts of God events. However, the clause can and has been expanded to include events which are industry or transaction specific. Certain events created by extraneous human intervention can also fall under the category of force majeure events.

    Example: fire, flood, earthquake, storm, hurricane, other nature disasters, war, invasion, act of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or telephone service.

    In the event that there is only a reference to force majeure – example "force majeure excepted", what constitutes force majeure is then determined on a case by case basis. This would include an "Act of God" / "forces of nature" event but can also extend to extraneous human intervention events.

    The burden of proof rests on the party relying upon force majeure. The party must show that the occurrence of the event falls under the force majeure clause or constitutes a force majeure event, such that the party was wholly or partially prevented from performing the contract. The party has to show that the performance of the contract was adversely affected by the force majeure event and that such event and/or non-performance was beyond the party's control and that there were no reasonable or proportionally reasonable steps to be taken to avoid the event and/or its consequences.

    Parties can also agree to impose additional conditions before the force majeure clause can be invoked. This includes requiring notice before invocation to allow the other party to either try to mitigate or reduce any foreseeable losses or reserve its rights; or placing an obligation on the invoking party to mitigate the effects of the force majeure by taking reasonable steps to limit or prevent the loss.

    Drafting Force Majeure Clauses:

    1. Is a force majeure clause necessary to protect yourself in your contractual relations?
    2. What might constitute a force majeure event that would be relevant to your contractual relations which should be included in the clause, above and beyond the standard events?
    3. Is the clause intended to cover only events where there is no party at fault?
    4. What are the conditions, if any, to be included in the clause – notice, mitigation, suspension of performance, extension of time for performance, etc?
    5. What is the intended effect of the clause?

    What to do in the event that you think the force majeure event / clause may apply?

    1. Consider the contractual position in relation to applicable law and jurisdiction. As set out above, the position in the UK is different from civil law jurisdictions.
    2. Consider the scope of all the clauses – and consider whether there is a specific force majeure clause and what the scope of the clause is, also any other clause which may have the effect of extending or limiting the scope of a force majeure clause / event.
    3. Consider whether the three above tests are satisfied to determine whether the event being relied upon indeed falls under the ambit of being a force majeure event.
    4. Consider all facts to determine that you meet all the conditions that may be required to be met before the force majeure clause is invoked.
    5. Consider whether you can take any steps to mitigate the loss that may follow from the force majeure event.


    § 7659. Libel and proceedings by United States attorney

    (a) Upon receiving the report of the prize master directed by section 7658 of this title, the United States attorney for the district shall promptly—
    (1) file a libel against the prize property;
    (2) obtain a warrant from the court directing the marshal to take custody of the prize property; and
    (3) proceed to obtain a condemnation of the property.
    (b) In connection with the condemnation proceedings the United States attorney shall insure that the prize commissioners—
    (1) take proper preparatory evidence; and
    (2) take depositions de bene esse of the prize crew and of other transient persons who know any facts bearing on condemnation.

    California Code of Civil Procedure Section 1032

    Legal Research Home > California Laws > Code of Civil Procedure > California Code of Civil Procedure Section 1032 

    (a) As used in this section, unless the context clearly
requires otherwise:
   (1) "Complaint" includes a cross-complaint.
   (2) "Defendant" includes a cross-defendant or a person against
whom a complaint is filed.
   (3) "Plaintiff" includes a cross-complainant or a party who files
a complaint in intervention.
   (4) "Prevailing party" includes the party with a net monetary
recovery, a defendant in whose favor a dismissal is entered, a
defendant where neither plaintiff nor defendant obtains any relief,
and a defendant as against those plaintiffs who do not recover any
relief against that defendant. When any party recovers other than
monetary relief and in situations other than as specified, the
"prevailing party" shall be as determined by the court, and under
those circumstances, the court, in its discretion, may allow costs or
not and, if allowed may apportion costs between the parties on the
same or adverse sides pursuant to rules adopted under Section 1034.
   (b) Except as otherwise expressly provided by statute, a
prevailing party is entitled as a matter of right to recover costs in
any action or proceeding.
   (c) Nothing in this section shall prohibit parties from
stipulating to alternative procedures for awarding costs in the
litigation pursuant to rules adopted under Section 1034.

    California Civil Code Section 1717

    Legal Research Home > California Laws > Civil Code > California Civil Code Section 1717

    (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract. Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void. (b) (1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. (2) Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section. Where the defendant alleges in his or her answer that he or she tendered to the plaintiff the full amount to which he or she was entitled, and thereupon deposits in court for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be a party prevailing on the contract within the meaning of this section. Where a deposit has been made pursuant to this section, the court shall, on the application of any party to the action, order the deposit to be invested in an insured, interest-bearing account. Interest on the amount shall be allocated to the parties in the same proportion as the original funds are allocated. (c) In an action which seeks relief in addition to that based on a contract, if the party prevailing on the contract has damages awarded against it on causes of action not on the contract, the amounts awarded to the party prevailing on the contract under this section shall be deducted from any damages awarded in favor of the party who did not prevail on the contract. If the amount awarded under this section exceeds the amount of damages awarded the party not prevailing on the contract, the net amount shall be awarded the party prevailing on the contract and judgment may be entered in favor of the party prevailing on the contract for that net amount. Section: Previous  1714.7  1714.8  1714.9  1714.10  1714.11  1715  1716  1717  1717.5  1718  1719  1720  1721  1722  1723  Next

    Last modified: February 13, 2012

    CAL. CCP. CODE § 1033.5 : California Code - Section 1033.5

    Search CAL. CCP. CODE § 1033.5 : California Code - Section 1033.5

    (a)The following items are allowable as costs under Section 1032:

    (1)Filing, motion, and jury fees.

    (2)Juror food and lodging while they are kept together during trial and after the jury retires for deliberation.

    (3)Taking, videotaping, and transcribing necessary depositions including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed, and travel expenses to attend depositions.

    (4)Service of process by a public officer, registered process server, or other means, as follows:

    (A)When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.

    (B)If service is by a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code, the recoverable cost is the amount actually incurred in effecting service, including, but not limited to, a stakeout or other means employed in locating the person to be served, unless such charges are successfully challenged by a party to the action.

    (C)When service is by publication, the recoverable cost is the sum actually incurred in effecting service.

    (D)When service is by a means other than that set forth in subparagraph (A), (B) or (C), the recoverable cost is the lesser of the sum actually incurred, or the amount allowed to a public officer in this state for such service, except that the court may allow the sum actually incurred in effecting service upon application pursuant to paragraph (4) of subdivision (c).

    (5)Expenses of attachment including keeper's fees.

    (6)Premiums on necessary surety bonds.

    (7)Ordinary witness fees pursuant to Section 68093 of the Government Code.

    (8)Fees of expert witnesses ordered by the court.

    (9)Transcripts of court proceedings ordered by the court.

    (10)Attorney fees, when authorized by any of the following:

    (A)Contract.

    (B)Statute.

    (C)Law.

    (11)Court reporters fees as established by statute.

    (12)Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.

    (13)Any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal.

    (b)The following items are not allowable as costs, except when expressly authorized by law:

    (1)Fees of experts not ordered by the court.

    (2)Investigation expenses in preparing the case for trial.

    (3)Postage, telephone, and photocopying charges, except for exhibits.

    (4)Costs in investigation of jurors or in preparation for voir dire.

    (5)Transcripts of court proceedings not ordered by the court.

    (c)Any award of costs shall be subject to the following:

    (1)Costs are allowable if incurred, whether or not paid.

    (2)Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

    (3)Allowable costs shall be reasonable in amount.

    (4)Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.

    (5)When any statute of this state refers to the award of "costs and attorney's fees," attorney's fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the court's established schedule of attorney's fees for actions on a contract shall bear the burden of proof. Attorney's fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment. Attorney's fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties.

    Attorney's fees awarded pursuant to Section 1717 of the Civil Code are allowable costs under Section 1032 as authorized by subparagraph (A) of paragraph (10) of subdivision (a).

    The prevailing party in litigation is entitled to recover statutory costs in any action or proceeding. .Expert witness fees are an additional item of costs awardable to a plaintiff, and thus, are not the sole item of costs available to a plaintiff.

    T.W. Arman & IMMI are entitled to reasonable attorney fees too.

     

     

    CERCLA liability on U.S. as arranger and operator of mining operation.

    | March 29, 2011

    INNOCENCE, PRESUMPTION OF - The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require a person to prove his innocence or produce any evidence at all. The Government has the burden of proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not guilty.

    Presumption of Innocence

    The concept of the presumption of innocence had its roots in the Common Law, long established in Britain and thence in America . Besides being a part of the environment of justice in which our Founders lived, the concept is central to the ideas of Freedom and Due Process of Law. In addition, the common sense of any reasonably enlightened people must dictate that a person accused is innocent until proven guilty, just as much as they would believe that the other rights of defendants must be reasonably protected. Those protections for the accused were incorporated by the Founders into the Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights , and could not have been of any import had there not first been a presumption of innocence.

    A close parallel to the presumption of innocence is the presumption of freedom -- that freedom is not something the government rations to the people, but rather a birthright the people own in its entirety, to be loaned back in small parts to the government with their knowing consent. The presumption of freedom is guaranteed by the Ninth and Tenth Articles of the Bill of Rights -- too often made light of today, but of key importance to the concept of individual Liberty . Those Articles demand, in essence, that unless specifically stated to the contrary by the Constitution, the people shall be presumed to own every freedom, as well as the power of self-determination.

    If a citizen cannot be presumed innocent until proven guilty, he likewise will not be presumed to have freedom without an argument over his right to that freedom. At that juncture, both freedom and innocence yield to the convenience of government.

    In both cases, the opposite must prevail if we are to call ourselves Americans.

    The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

    It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, ? ? 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, ? 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.
    Greenleaf traces this presumption to Deuteronomy , and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens . Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration , as the following extracts show:

    "Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

    The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent ." Dig. L. XLVIII, Tit. 19, 1. 5.
    "In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56.
    "In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.
    "In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.

    Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

    Fortescue says : "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally ." De Laudibus Legum Angliae, Amos' translation, Cambridge , 1825.

    [*456] Lord Hale (1678) says : "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."



    "Today's GAO report confirms my concern that EPA is allowing almost $2 billion in taxpayer dollars to sit idle instead of using it for its intended purpose"

    GAO Report Confirms $2 Billion in EPA’s Superfund Special Accounts Idle    

    Washington, D.C. - A report by the Government Accountability Office (GAO), entitled “Superfund: Status of EPA’s Efforts to Improve its Management and Oversight of Special Accounts,” which was released today confirms that the Environmental Protection Agency (EPA) has almost $2 billion sitting idle in Superfund Special Accounts.  This report was requested in May by Senator James Inhofe (R-Okla.), Ranking Member of the Senate Committee on Environment and Public Works.

    “Today’s GAO report confirms my concern that EPA is allowing almost $2 billion in taxpayer dollars to sit idle instead of using it for its intended purpose: to clean up superfund sites,” Senator Inhofe said. “I am still waiting on answers from EPA Administrator Lisa Jackson regarding two questions I asked back in May: why is EPA not using these funds, and does EPA have a plan to obligate these funds in the future?  If this is a management issue, it needs to be resolved as soon as possible.  Especially in this current economic climate, if funds are specified for a particular project they should be obligated and disbursed so that they can facilitate superfund cleanups; if they are not needed, EPA must address its funding management problems immediately.”

    Specifically, GAO found that from fiscal year 1990 through October 2010, EPA’s 10 regions collected from potentially responsible parties almost $4 billion in funds that were subsequently placed in special accounts. Nearly half of these funds are still available to be obligated for future Superfund cleanup; the remaining funds have already been obligated, but not all of these obligated funds have been disbursed.  As of October 2010, of the $1.9 billion funds that EPA had obligated for Superfund cleanup expenses, $1.6 billion had been disbursed. This means that as of October 2010, EPA is sitting on $1.8 billion.  Even more troubling is the fact that EPA has $300 million that it has obligated but has not been disbursed.

    THE FOLLOWING STATEMENT IS FROM ROGER J. MARZULLA, FOUNDER AND GENERAL COUNSEL, DEFENDERS OF PROPERTY RIGHTS, EXCERPTS OF HIS TESTIMONY BEFORE CONGRESSIONAL COMMITTEE



    The Founding Fathers recognized the fundamental role of property rights in a free society. They recognized that an individual who cannot retain the fruits of his or her labor is at risk of losing all of the individual liberties that are guaranteed by the Constitution. Today, unfortunately, Mr. Chairman, I think we must report that perhaps our most endangered liberty is private property rights.

    The findings of our report indicate that, as the GAO indicates, there are fundamentally no records of takings implication analyses being done. There are, in fact, no records of how much the Government has paid out for the failure to observe private property rights and the failure to pay just compensation. There are no reports to OMB, even though they are required, and even though the purpose of that requirement was to apprise the Congress of the extent to which agencies have been violating the Constitution, violating private property rights, and have been required to pay as a result.

    Today, the Defenders of Property Rights has issued a report which in some ways parallels the findings of the General Accounting Office, the Government's Accounting Office. And that report, Mr. Chairman, confirms that, regrettably, there is a massive noncompliance with the executive order throughout the Executive branch, and that the cost of that noncompliance is in the range of at least one billion dollars.

        Every day, we at the Defenders of Property Rights hear from individuals who request help in dealing with governmental actions, regulations, orders, requirements, that have caused them to lose their property rights. I might add, Mr. Chairman, not one of the people I have talked to over the years, the thousands of people I have talked to, has been dumping toxic waste on his property and complaining about not being able to do so.

    The executive order, as the chair has noted, was instituted for two purposes. One, to protect our precious constitutional liberties, and two, to protect the taxpayer's purse. Failure to observe the requirements of that executive order, which we consider a ''look before you leap'' type of approach, has cost taxpayers' hundreds of millions, probably billions, of dollars.

      Fundamentally, we found that of the 400 cases both filed and resolved over the period from 1991 to August of 2003, the Government had judgments awarded of approximately $112 million against it. There were settlements, the amount of which we could not gather, but since it was about twice as many cases, we assumed that was about twice as much money, or about $225 million; that is to say, about a third of a billion dollars.
        We must assume that all of those people who could not afford to hire lawyers, to file suit and go through the litigation process, to obtain their constitutionally-guaranteed right of just compensation, probably amount to at least three times, maybe four or five or six or ten times, the number who actually received the payment that the Constitution entitles them to.

    PREPARED STATEMENT OF ROGER J. MARZULLA

        Mr. Chairman and Members of the Subcommittee:
        Thank you for the opportunity of testifying today with respect to the federal government's implementation of Executive Order 12,630, ''Governmental Actions and Interference With Civil Constitutionally Protected Property Rights.'' I congratulate the Subcommittee on instituting the first inquiry in more than a decade into whether federal agencies are complying with their obligations under the Takings Executive Order, which is designed to protect individual constitutional liberties in property while saving money for the federal government. Regrettably, in a report issued today by Defenders of Property Rights, we conclude that widespread noncompliance with the Takings Executive Order has resulted in massive violation of constitutionally-guaranteed property rights, subjecting the federal government to liability for $1 billion or more.


    I. WHY CONSTITUTIONAL PROPERTY RIGHTS ARE IMPORTANT

        If you believe in individual freedom, then you must believe in property rights. As the Supreme Court has said:

    Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation . . . is in truth a ''personal'' right. . . . In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.

        Lynch v. Household Finance Corporation, 405 U.S. 538, 552 (1972).

        The protection of rights in property lies at the heart of our constitutional system of government. The Founding Fathers, in drafting the Constitution, drew upon classical notions of legal rights and individual liberty dating back to the Justinian Code, Magna Carta, and the Two Treatises of John Locke, all of which recognize the importance of property ownership in a governmental system in which individual liberty is paramount. Concurrently, the constitutional framers drew upon their own experience as colonists of an oppressive monarch, whose unlimited powers vested him with the ability to deprive his subjects of their God-given rights of ''life, liberty, and property.''

        The United States Constitution imposes a duty on government to protect private property rights. Thus, within the Bill of Rights, numerous provisions directly or indirectly protect private property rights. The Fourth Amendment guarantees that people are to be ''secure in their persons, houses, papers, and effects . . .'' The Fifth Amendment states that no person shall ''be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation . . .'' The Fourteenth Amendment echoes the Due Process Clauses of the Fifth Amendment, stating that no ''State shall deprive any person of life, liberty, or property without due process of law . . .'' Additionally, the Contracts Clause of the Constitution indirectly protects property by forbidding states from passing any ''law impairing the Obligation of Contracts.''


        The protection of private property receives such strong emphasis in the United States Constitution because the right to own and use property was historically understood to be critical to the maintenance of a free society. To understand this concept, one must understand that property is more than just land. Property is buildings, machines, retirement funds, savings accounts, and even ideas. In short, property is the fruit of one's labor and the ability to use, enjoy, and exclusively possess the fruits of one's labor is the basis for a society in which individuals are free from oppression. Arguably, there can be no true freedom for anyone if people are dependent upon the State for food, shelter, and other basic needs. Under such a system, nothing is safe from being taken by a majority or a tyrant because the citizens, as government dependents, are powerless to oppose any infringement of their rights.

        The United States Supreme Court has repeatedly explained that the primary purpose for protecting property rights is to bar government from ''forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.''    (see footnote 1) During the birth and growth of the administrative regulatory state, federal government agencies ignored these principles and implemented policies that deprived owners of the use and benefit of their property without providing compensation. Moreover, Congress consistently failed to codify property rights protection into federal law and the judicial system's maze-like procedures and hurdles made seeking redress for the infringement of private property rights in the courts impractical for many property owners. Thus, private property rights have become one of our most endangered liberties.

    The Kentucky Resolutions, written by Thomas Jefferson, contained the following which has often been cited as a justification for both nullification and secession:

    “

    … that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it… .[11]

    ”

    In the Virginia Resolutions, written by James Madison there is a similar argument:

    “

    The resolutions, having taken this view of the Federal compact, proceed to infer that, in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound to interpose to arrest the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them. ...The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this solid foundation. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and, consequently, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.[12]

    Stoics held that no one was a slave by their nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca the Younger wrote:

    “

    It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined.

    Stoic doctrine that the "inner part cannot be delivered into bondage" re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:

    Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force.

    English philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity."

    The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: “For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. . . . Unalienable Rights are essential Limitations in all Governments.” However, Hutcheson placed clear limits on his notion of unalienable rights, declaring that “there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest publick Good."[12] Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable." As Hutcheson wrote, "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."

    Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important",and in the 1776 United States Declaration of Independence, famously condensed this to:

    “

    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."

    Thomas Paine further elaborated on natural rights in his influential work Rights of Man (1791), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:

    It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. ... They...consequently are instruments of injustice. The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

    future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:

    “

    "The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property."

    ”

    Moreover, the ultimate test of the propriety of police power regulations must be found in the Fourteenth Amendment, since it operates to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Amendment protects. (See Parks vs. State, 64 NE )

    "With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority." Connolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O'Neil vs. Providence Amusement Co., 108 A. 887.

    "The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution." [emphasis added] Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613; Bacahanan vs. Wanley, 245 US 60.

    "As a rule, fundamental limitations of regulations under the police power are found in the spirit of the Constitutions, not in the letter, although they are just as efficient as if expressed in the clearest language." Mehlos vs. Milwaukee, 146 NW 882.

    "It is well settled that the Constitutional Rights protected from invasion by the police power, include Rights safeguarded both by express and implied prohibitions in the Constitutions." Tiche vs. Osborne

    "The right to travel is part of the Liberty of which a citizen cannot deprived without due process of law under the Fifth Amendment. This Right was emerging as early as the Magna Carta." Kent vs. Dulles,

    "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda vs. Arizona, 384 US 436, 491.

    "In addition to the requirement that regulations governing the use of the highways must not be violative of constitutional guarantees, the prime essentials of such regulation are reasonableness, impartiality, and definiteness or certainty." 25 Am.Jur. (1st) Highways, Sect.260.

    "Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a matter of right and one carried on by government sufferance of permission." Davis vs. Massachusetts, 167 US 43; Pachard vs. Banton, supra.

    "...the only limitations found restricting the right of the state to condition the use of the public highways as a means of vehicular transportation for compensation are (1) that the state must not exact of those it permits to use the highways for hauling for gain that they surrender any of their inherent U.S. Constitutional Rights as a condition precedent to obtaining permission for such use..." [emphasis added] Riley vs. Laeson, 142 So. 619; Stephenson vs. Binford, supra.

    "We find it intolerable that one Constitutional Right should have to be surrendered in order to assert another." Simons vs. United States, 390 US 389.

    "no one shall be personally bound until he has had his day in court," Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation and it is oppressive and can never be upheld where it is fairly administered. (12 Am.Jur. [1st] Const. Law, Sect.573, p.269.)

    The views advanced herein are neither novel nor unsupported by authority. The question of taxing power of the states has been repeatedly considered by the Supreme Court. The Right of the state to impede or embarrass the Constitutional operation of the U.S. Government or the Rights which the Citizen holds under it, has been uniformly denied." McCulloch vs. Maryland, 4 Wheat 316.

    ...It may be said that a tax of one dollar for passing through the state cannot sensibly affect any function of government or deprive a Citizen of any valuable Right. But if a state can tax...a passenger of one dollar, it can tax him a thousand dollars." Crandall vs. Nevada, 6 Wall 35, 46.

    The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

    "Driver -- One employed in conducting a coach, carriage, wagon, or other vehicle..." Bovier's Law Dictionary, 1914 ed., p. 940.

    "If the Right of passing through a state by a Citizen of the United States is one guaranteed by the Constitution, it must be sacred from state taxation." Ibid., p.47.

    "It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon." Boyd vs. United States, 116 US 616.

    "Economic necessity cannot justify a disregard of Constitutional guarantee." Riley vs. Carter, 79 ALR 1018; 16 Am.Jur. (2nd), Const. Law, Sect.81. Further, the court must recognize that the Right to travel is part of the Liberty of which a Citizen cannot be deprived without specific cause and without the "due process of law" guaranteed in the Fifth Amendment. (Kent, supra.)

    "The courts are not bound by mere form, nor are they to be misled by mere pretenses. They are at liberty -- indeed they are under a solemn duty -- to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purported to have been enacted to protect...the public safety, has no real or substantial relation to those objects or is a palpable invasion of Rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Mulger vs. Kansas, 123 US 623, 661.

    The courts are "duty bound" to recognize and stop the "stealthy encroachments" which have been made upon the Citizen's Right to travel and to use the roads to transport his property in the "ordinary course of life and business." (Hadfield, supra.)

    "Disobedience or evasion of a Constitutional Mandate cannot be tolerated, even though such disobedience may, at least temporarily, promote in some respects the best interests of the public." Slote vs. Examination, 112 ALR 660.

    Constitutional Rights cannot be denied simply because of hostility to their assertions and exercise; vindication of conceded Constitutional Rights cannot be made dependent upon any theory that it is less expensive to deny them than to afford them." Watson vs. Memphis, 375 US 526.

    "No public policy of a state can be allowed to override the positive guarantees of the U.S. Constitution." 16 Am.Jur. (2nd), Const. Law, Sect.70.

    "No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land. . . " Freedom Ordinance

    (An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, and also known as the “Northwest Ordinance” or "The Ordinance of 1787" )

    An Organic Act, in United States law, is an Act of the United States Congress that establishes a territory of the United States or an agency to manage certain federal lands. The first such act was the Northwest Ordinance, enacted by the Congress of the Confederation in 1787 in order to create the Northwest Territory.

    Obstruction is a federal crime pursuant to federal criminal law not limited to the (lost) opportunity to make a wide range of personal decisions concerning one's life, family, and private pursuits'.

    "Traveler -- One who passes from place to place, whether for pleasure, instruction, business, or health." Locket vs. State, 47 Ala. 45; Bovier's Law Dictionary, 1914 ed., p. 3309.

    Article 1, §1 of the California Constitution recognizes inalienable rights, and articulated some (not all) of those rights as "defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

    TITLE 42 > CHAPTER 99 > § 9101

    § 9101. Congressional declaration of policy


    (a) It is declared to be the purposes of the Congress in this chapter to—
    (1) authorize and regulate the construction, location, ownership, and operation of ocean thermal energy conversion facilities connected to the United States by pipeline or cable, or located in whole or in part between the highwater mark and the seaward boundary of the territorial sea of the United States consistent with the Convention on the High Seas, and general principles of international law;
    (2) authorize and regulate the construction, location, ownership, and operation of ocean thermal energy conversion plantships documented under the laws of the United States, consistent with the Convention on the High Seas and general principles of international law;
    (3) authorize and regulate the construction, location, ownership, and operation of ocean thermal energy conversion plantships by United States citizens, consistent with the Convention on the High Seas and general principles of international law;
    (4) establish a legal regime which will permit and encourage the development of ocean thermal energy conversion as a commercial energy technology;
    (5) provide for the protection of the marine and coastal environment, and consideration of the interests of ocean users, to prevent or minimize any adverse impact which might occur as a consequence of the development of such ocean thermal energy conversion facilities or plantships;
    (6) make applicable certain provisions of the Merchant Marine Act, 1936 (46 U.S.C. 1177 et seq.) [1] to assist in financing of ocean thermal energy conversion facilities and plantships;
    (7) protect the interests of the United States in the location, construction, and operation of ocean thermal energy conversion facilities and plantships; and
    (8) protect the rights and responsibilities of adjacent coastal States in ensuring that Federal actions are consistent with approved State coastal zone management programs and other applicable State and local laws.
    (b) The Congress declares that nothing in this chapter shall be construed to affect the legal status of the high seas, the superjacent airspace, or the seabed and subsoil, including the Continental Shelf.

    TITLE VIII. PROVISIONAL AND FINAL REMEDIES


    The Invisible Present

    All of us can sense change — the reddening sky with dawn’s new light, the rising strength of lake waves during a thunderstorm, and the changing seasons of plant flowering as temperature and rain affect our landscapes. Some of us see longer-term events and remember that there was less snow last winter or the fishing was better a couple of years ago. But it is the unusual person who senses with any precision changes occurring over decades. At this time scale, we are inclined to think the world is static, and we typically underestimate the degree of change that does occur. Because we are unable directly to sense slow changes and because we are even more limited in our abilities to interpret their cause-and-in effect relations, processes acting over decades are hidden and reside in what I call the invisible present. Magnuson, John J. “Long term Ecological Research and the Invisible Present.” Bioscience 40, (1990): 495-501.

    In the 1934 United States Supreme Court case, Home Loan Building & Loan Association v. Blaisdell, Mr. Chief Justice Hughes took judicial notice of the economic conditions of the Great Depression to help conclude that a state of emergency existed, and thus the State of Minnesota could properly impose on the contracts made by private persons to promote a broad societal interest. Specifically, the Court upheld a Minnesota statute preventing loan companies from foreclosing on homes before 1935, despite mortgage agreements allowing companies the right to do so.[3]

    In the 1981 case of Mel Mermelstein v. Institute for Historical Review, the Superior Court of Los Angeles County took judicial notice of the fact that "Jews were gassed to death at the Auschwitz Concentration Camp in Poland during the summer of 1944".[4]

    References

    1. ^ http://federalevidence.com/rules-of-evidence#Rule201
    2. ^ USPTO MPEP 2144.03
    3. ^ Home Loan Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934)
    4. ^ "California Judge Rules Holocaust Did Happen". The New York Times. Associated Press: p. A26. October 10, 1981. Retrieved November 20, 2010.

     3. The Senate dropped explicit reference to " strict, joint, and several" liability in a last minute substitute bill. See James R. MacAyeal, The Comprehensive Environmental Response, Compensation, and Liability Act: The Correct Paradigm of Strict Liability and the Problem of Individual Causation, 18 UCLA J. ENVTL. L. & POL'Y 217, 257, 272 (2000/2001).

    Although CERCLA does not expressly characterize the damages as “joint” “strict” or “several,” the courts have consistently done so. See, e.g., United States v. Atl. Research Corp. 551 U.S. ___, 127 S.Ct. 2331, 2337 (2007) (“even parties not responsible for contamination may fall within the broad definition of PRPs.”), citing with approval United States v. Alcan Aluminum Corp., 315 F.3d 179, 184 (3rd Cir. 2003) (“CERCLA § 9607 is a strict liability statute.”). See also Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1080 (1st Cir. 1986), New York v. Shore Realty Corp., 759 F.2d 1032, 1043-45 (2nd Cir. 1985); United States v. Monsanto, Co., 858 F.2d 160, 168-170 (4th Cir. 1988); Centerior Serv. Co. v. Acme Scrap Iron & Metal Co., 153 F.3d 344 (6th Cir. 1998); Metro. Water Reclamation Dist. of Greater Chi. v. N. Am. Galvanizing & Coatings, Inc., 473 F.3d 824, 827 (7th Cir. 2007) (“liability under § 107(a) is strict, joint and several—except rare cases where harm is divisible”); Dep’t of Toxic Substances v. Burlington Northern, 479 F.3d 1113, 1124, 1136 (9th Cir. 2007) (“CERCLA is a ‘super-strict’ liability statute. . . . Joint and several liability, even for PRPs with a minor connection to the contaminated facility, is the norm, designed to assure, as far as possible, that some entity with connection to the contamination picks up the tab).
    4 While costs vary considerably based on the scope of contamination and characteristics of the sites, EPA spends, on average, $220 million from the Superfund annually on removal actions (typically responses lasting less than 1 year and costing less than $2 million) and considerably more on remedial actions. UNITED STATES GENERAL ACCOUNTING OFFICE, SUPERFUND PROGRAM: CURRENT STATUS AND FUTURE FISCAL CHALLENGES 6, GAO-03-850, JULY, 2003 [hereinafter GAO-03-850].
    5 See e.g., Irvin Molotsky, Senate Panel Nears Approval of Waste Cleanup Bill, N.Y. TIMES 54, Sept. 14, 1980 (chemical manufacturer testimony alleging bill is “seriously defective in its overly broad scope, its punitive approach to liability and in its excessive funding levels.”).
    6 See Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 771 (9th Cir.1994) (per curium) (“Exxon agreed to pay the governments at least $900 million (and possibly an additional $100 million)”).

    Resilience. The capacity of a system to absorb disturbance and reorganize while undergoing change so as to still retain essentially the same function, structure, identity, and feedbacks.

    § 1981. Equal rights under the law


    (a) Statement of equal rights
    All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
    (b) “Make and enforce contracts” defined
    For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
    (c) Protection against impairment
    The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

    TITLE 42 > CHAPTER 21E

    CHAPTER 21E—PRIVACY AND CIVIL LIBERTIES PROTECTION AND OVERSIGHT

    § 2000ee. Privacy and Civil Liberties Oversight Board

    FierceGovernmentIT
    Chief says 'how'

    DOJ, DHS officials discuss the 'how' of information sharing

    April 19, 2012 | By Molly Bernhart Walker

    Big Data: It's Not About Size

    by Eric Chabrow


    		 Big data isn't about size, says Gartner's Neil MacDonald. It's much bigger: Big data is about volume, velocity, variety and complexity, and requires new approaches on how information is used to secure digital assets.

    More...
    Keep your memory stick and your hard disk safe and secure,  your data will be happy to see you.

    Successful information sharing through N-DEx, the law enforcement community's national data exchange operated by the FBI, depends on mutual respect for member organizations and their jurisdictions, said Jeff Lindsey, program manager and unit chief of N-DEx.

    "The undergirding, foundational piece that's probably most important in terms of assuring that N-DEx does what it needs to do is our sharing policy. And that is, N-DEx operates along a very trusted level of relationships," said Lindsey April 18 at an AFCEA Bethesda event in Bethesda, Md.

    If an analyst sees a data set managed by another organization that he would like to access, he cannot take action on that data until he gets confirmation back from the organization that manages the data. That organization will confirm the identity and role of the querying party and then allow that data set to be shared.

    "It allows me to verify and validate that that information is current, before it goes into some kind of file," said Lindsey. "The other thing it does is it builds collaboration."

    There are also clear policies for sharing commercial data for intelligence-led policing, said Jason Henry, deputy director of the Homeland Security Department's law enforcement and information sharing initiative.

    "From a privacy perspective, from an OMB perspective, there is a strong dislike for us purchasing and storing commercial data," said Henry. "We usually buy access to it…so we can do federated searches against it."

    But it's challenging to run effective searches on data that is operated by another party, said Henry. When comparing hundreds of millions of law enforcement records and billions of commercial records in the commercial sphere, there's a need for disambiguation mechanisms, said Henry.

    "You're almost forced to try and bring data in for at least a temporary period of time," said Henry. "Now let me be clear…we're not part of the IC, so we don't have the same sorts of restrictions on commercial data…but that's one of the big challenges: How do we leverage that commercial data?"

    There's no reluctance on the commercial side, said Terrence Clark, chief of violent crime intelligence division and acting director for the U.S. bomb data center at the Bureau of Alcohol, Tobacco, Firearms and Explosives.

    Utility companies have gladly shared power consumption data in an effort to nab people running drug labs from their homes, he said. And sometimes fertilizer companies will make a call on people who come in to make a large purchase and simply don't look like farmers. But the real issue is the lines that investigators cannot cross.

    "Where we'd like to go is not really where we can go," said Clark. Who added that anytime he is in a meeting with people from DHS, "sitting next to them is a privacy person."


    Quis custodiet ipsos custodes?

    traditionally attributed to the Roman poet Juvenal from his Satires (Satire VI, lines 347–8), literally translated as "Who will guard the guards themselves?" Also sometimes rendered as "Who watches the watchmen?

    chowty dar?

    History

    This quotation is often[1] and incorrectly attributed to Plato's Republic. However, there is no phrase in the Republic which is parallel or directly synonymous to it. It is commonly cited with regard to the problem of how to ensure that persons entrusted to watch over the interests of the state do so faithfully. In the Republic, a putatively perfect society is described by Socrates, the main character in this Socratic dialogue. Socrates proposed a guardian class to protect that society, and the custodes (watchmen) from the Satires are often interpreted as being parallel to the Platonic guardians (phulakes in Greek). Socrates' answer to the problem is, in essence, that the guardians will be manipulated to guard themselves against themselves via a deception often called the "noble lie" in English. [2] As Leonid Hurwicz pointed out in his 2007 lecture on accepting the Nobel Prize in Economics, one of Socrates' interlocutors in the Republic, Glaucon, even goes so far as to say "it would be absurd that a guardian should need a guard."[3] It should be kept in mind, however, that this association with Plato is post-Classical, and this line of thought does not constitute evidence that the author of the Satires intended any association with Plato's Republic.

    Origin

    The phrase, as it is normally quoted in Latin, comes from the Satires of Juvenal, the 1st/2nd century Roman satirist. Although in its modern usage the phrase has universal, timeless applications to concepts such as tyrannical governments and uncontrollably oppressive dictatorships, in context within Juvenal's poem it refers to the impossibility of enforcing moral behaviour on women when the enforcers (custodes) are corruptible (Satire 6.346–348):

    audio quid ueteres olim moneatis amici,
    "pone seram, cohibe." sed quis custodiet ipsos
    custodes? cauta est et ab illis incipit uxor.

    I hear always the admonishment of my friends:
    "Bolt her in, constrain her!" But who will guard
    the guardians? The wife plans ahead and begins with them!.

    However, modern editors regard these three lines as an interpolation inserted into the text. In 1899 an undergraduate student at Oxford, E.O. Winstedt, discovered a manuscript (now known as O, for Oxoniensis) containing 34 lines which some believe to have been omitted from other texts of Juvenal's poem.[4] The debate on this manuscript is ongoing, but even if the poem is not by Juvenal, it is likely that it preserves the original context of the phrase.[5] If so, the original context is as follows (O 29–33):

    … noui
    consilia et ueteres quaecumque monetis amici,
    "pone seram, cohibes." sed quis custodiet ipsos
    custodes? qui nunc lasciuae furta puellae
    hac mercede silent crimen commune tacetur.

    … I know
    the plan that my friends always advise me to adopt:
    "Bolt her in, constrain her!" But who can watch
    the watchmen? They keep quiet about the girl's
    secrets and get her as their payment; everyone hushes it up.

    From Wikipedia, the free encyclopedia

    Question: EPA; Indolent, or apathetic?

    Answer: Doesn't know what that means, or doesn't care.

    (Can't walk and chew gum at the same time).

    SUBCHAPTER VIII—COMMUNITY RELATIONS SERVICE

    • § 2000g. Establishment of Service; Director of Service: appointment, term; personnel
    • § 2000g-1. Functions of Service
    • § 2000g-2. Cooperation with other agencies; conciliation assistance in confidence and without publicity; information as confidential; restriction on performance of investigative or prosecuting functions; violations and penalties
    • § 2000g-3. Reports to Congress

    SUBCHAPTER IX—MISCELLANEOUS PROVISIONS

    • § 2000h. Criminal contempt proceedings: trial by jury, criminal practice, penalties, exceptions, intent; civil contempt proceedings
    • § 2000h-1. Double jeopardy; specific crimes and criminal contempts
    • § 2000h-2. Intervention by Attorney General; denial of equal protection on account of race, color, religion, sex or national origin
    • § 2000h-3. Construction of provisions not to affect authority of Attorney General, etc., to institute or intervene in actions or proceedings
    • § 2000h-4. Construction of provisions not to exclude operation of State laws and not to invalidate consistent State laws
    • § 2000h-5. Authorization of appropriations
    • § 2000h-6. Separability

    § 1981a. Damages in cases of intentional discrimination in employment


    (a) Right of recovery
    (1) Civil rights
    In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. 2000e–5, 2000e–16] against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act [42 U.S.C. 2000e–2, 2000e–3, 2000e–16], and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.
    (2) Disability
    In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. 2000e–5, 2000e–16] (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117 (a)), and section 794a (a)(1) of title 29, respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 791 of title 29 and the regulations implementing section 791 of title 29, or who violated the requirements of section 791 of title 29 or the regulations implementing section 791 of title 29 concerning the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.
    (3) Reasonable accommodation and good faith effort
    In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 [42 U.S.C. 12112 (b)(5)] or regulations implementing section 791 of title 29, damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.
    (b) Compensatory and punitive damages
    (1) Determination of punitive damages
    A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.
    (2) Exclusions from compensatory damages
    Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e–5 (g)].
    (3) Limitations
    The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party—
    (A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
    (B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
    (C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
    (D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.
    (4) Construction
    Nothing in this section shall be construed to limit the scope of, or the relief available under, section 1981 of this title.
    (c) Jury trial
    If a complaining party seeks compensatory or punitive damages under this section—
    (1) any party may demand a trial by jury; and
    (2) the court shall not inform the jury of the limitations described in subsection (b)(3) of this section.
    (d) Definitions
    As used in this section:
    (1) Complaining party
    The term “complaining party” means—
    (A) in the case of a person seeking to bring an action under subsection (a)(1) of this section, the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or
    (B) in the case of a person seeking to bring an action under subsection (a)(2) of this section, the Equal Employment Opportunity Commission, the Attorney General, a person who may bring an action or proceeding under section 794a (a)(1) of title 29, or a person who may bring an action or proceeding under title I of the Americans with Disabilities Act of 1990 [42 U.S.C. 12111 et seq.].
    (2) Discriminatory practice
    The term “discriminatory practice” means the discrimination described in paragraph (1), or the discrimination or the violation described in paragraph (2), of subsection (a) of this section.

    § 1982. Property rights of citizens


    All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

    § 1983. Civil action for deprivation of rights


    Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

    § 1985. Conspiracy to interfere with civil rights

    (1) Preventing officer from performing duties
    (2) Obstructing justice; intimidating party, witness, or juror
    (3) Depriving persons of rights or privileges

    § 1986. Action for neglect to prevent


    Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

    § 1987. Prosecution of violation of certain laws


    The United States attorneys, marshals, and deputy marshals, the United States magistrate judges appointed by the district and territorial courts, with power to arrest, imprison, or bail offenders, and every other officer who is especially empowered by the President, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and to cause such persons to be arrested, and imprisoned or bailed, for trial before the court of the United States or the territorial court having cognizance of the offense.

    EPA Should Revise Outdated or Inconsistent EPA-State Clean Water Act Memoranda of Agreement
    What We Found
    NPDES MOAs between EPA and States do not ensure Agency management control and effective oversight over a national program administered by States that is capable of providing equal protection to all Americans. EPA Headquarters does not hold EPA regional or State offices accountable for updating their MOAs when necessary and relies on other planning and management mechanisms to exercise control over State programs. However, MOAs are critical because they are the common denominator for State-authorized programs and should represent a common baseline. Outdated MOAs or MOAs that are not adhered to reduce EPA’s ability to maintain a uniform program across States that meets the goals of CWA sections 101 and 402. An effective national program must maintain consistent management control and oversight of State programs.
    What We Recommend
    We recommend that EPA ensure that all NPDES MOAs contain essential elements for a nationally consistent enforcement program, including CWA, Code of Federal Regulations, and State Review Framework criteria. We recommend that EPA develop and provide a national template and/or guidance for a model MOA; direct EPA regions to revise outdated or inconsistent MOAs to meet the national template and standards; and establish a process for periodic review and revision of MOAs, including when the CWA or Code of Federal Regulations are revised or when State programs change. Finally, we recommend that EPA establish a national, public clearinghouse of all current MOAs so that EPA, States, and the public have access to these documents.
    EPA generally agreed with our recommendations, saying it would coordinate assessment and revision of NPDES MOAs with implementation of the CWA Action Plan. Three recommendations are open and one recommendation is listed as undecided. In its final response to this report, EPA should provide estimated or actual completion dates for all recommendations.

    This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe the problems the OIG has identified and corrective actions the OIG recommends. This report represents the opinion of the OIG and does not necessarily represent the final EPA position. Final determinations on matters in this report will be made by EPA managers in accordance with established audit resolution procedures.
    The estimated cost of this report – calculated by multiplying the project’s staff days by the applicable daily full cost billing rates in effect at the time and adding travel costs – is $660,519.
    Action Required
    In accordance with EPA Manual 2750, you are required to provide a written response to this report within 90 calendar days. You should include a corrective actions plan for agreed-upon actions, including milestone dates. Your response will be posted on the OIG’s public Website, along with our comments on your response. Your response should be provided in an Adobe PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended. If your response contains data that you do not want to be released to the public, you should identify the data for redaction. We have no objections to the further release of this report to the public. This report will be available at http://www.epa.gov/oig.
    If you or your staff have any questions regarding this report, please contact Wade Najjum at (202) 566-0832 or najjum.wade@epa.gov, or Dan Engelberg at (202) 566-0830 or engelberg.dan@epa.gov.

    EPA’s Enforcement Performance Has Been Questioned
    In 2005, EPA initiated the State Review Framework, a formal process using standardized criteria, collaboratively developed by OECA, EPA regions, States, and the Environmental Council of the States, to gauge State performance in compliance assurance and enforcement. EPA wanted to increase its oversight inspections and other direct actions in the States. EPA reviewed State data, inspection and enforcement files, negotiated commitments, management discussions with the State, and other existing assessments. Through its reviews, EPA identified four programmatic deficiencies in State enforcement: data quality, identification of significant violations, the timeliness of enforcement actions, and penalties.
    In October 2009, the EPA Administrator testified before the House Transportation and Infrastructure Committee that EPA was falling short of expectations for effective and fair enforcement of the CWA:
    Data available to EPA shows that, in many parts of the country, the level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low. For example, one out of every four of the largest Clean Water Act dischargers had significant violations in 2008. Many of these violations were serious effluent violations or failure to comply with enforcement orders. The government’s enforcement response to these violations is uneven across the country. For example, a violation in one State results in the assessment of mandatory minimum penalties, while in another State, no enforcement action is taken for the same violation. This situation creates a competitive disadvantage for States that are enforcing the law. We need to change this. Strong and fair compliance and enforcement across the country is vital to establishing a level playing field for industrial facilities, preventing some regions from attempting to achieve an economic advantage over others.

    Both GAO and the EPA OIG have frequently reported on problems with the EPA-State enforcement relationship, noting key issues such as data quality, identification of violations, issuing enforcement penalties and other enforcement actions in a timely and appropriate manner, and general oversight issues. See Appendix B for a list of reports on these issues.
    In its October 2009 testimony before the House Transportation and Infrastructure Committee, GAO reported that longstanding issues impact EPA and State enforcement efforts.2 For example, findings from a GAO enforcement report in 2000 demonstrated that local variations among EPA’s regional offices led to inconsistencies in the actions they take to enforce environmental requirements.3 In 2004, the EPA OIG responded to a congressional request to review the Region 3 NPDES program.4 In part, the OIG found that the MOAs between the States and Region 3 were all more than 10 years old at the time and included outdated requirements. These MOAs had not been revised as of the date of this report.

    1 Testimony of Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency, Before the Committee on Transportation and Infrastructure, U.S. House of Representatives, October 15, 2009. http://www.epa.gov/ocir/hearings/testimony/111_2009_2010/2009_1015_lpj.pdf.

    MOAs Are Missing Key Regulatory Requirements
    MOAs were missing key requirements of Title 40 CFR 123.24. MOA documents also lacked MOA-specific program regulations contained in Title 40 CFR 123.26 and 123.27. For each of the 46 criteria, OIG rated the MOA as a “0” (does not address this element), “1” (addresses the element in some way), or “2” (addresses the element verbatim or in synonymous language). Figure 2-1 shows that across all regulatory criteria, MOAs did not contain 39 percent of the criteria, and that 61 percent of regulatory criteria are either not addressed or only partially addressed. EPA should define the requirements for management control of a nationally consistent enforcement program, and then review each State MOA to determine which MOAs are adequate and which MOAs need to be revised.

    MOAs did not address key regulatory requirements for MOA documents. For example, the CFR requires that States establish data management systems to support their compliance evaluation activities. Twenty percent of the MOAs did not contain any language about a data management system. This does not mean the State does not have such a system or that the system is not discussed in another document. However, because the primary, required document, the MOA, does not mention it, EPA cannot readily determine whether there is nationwide uniformity in data management systems.
    MOAs also did not include a number of the additional regulatory program requirements contained in Title 40 CFR 123.26 and 123.27. These additional requirements correspond to the programmatic deficiencies that OECA identified in its first-round State Review Framework evaluations (data quality, identification of significant violations, the timeliness of enforcement actions, and penalties). For example, the CFR requires that States establish minimum civil penalty policies, such as the ability to assess at least a $5,000 penalty per day for each NPDES violation. The State Review Framework identified penalty calculation as a comprehensive weakness. Fifty-four percent of MOAs did not include any language about minimum civil penalty standards (i.e., received a score of “0” for this element). Only 1 of the 46 MOAs specified that the minimum penalty per day, per violation, would be $5,000 (a score of “2”).
    MOAs most comprehensively addressed the MOA-specific regulations (CFR 123.24), containing these requirements 77 percent of the time. MOAs contained fewer requirements in the non-MOA-specific monitoring and inspections section (65 percent for CFR 123.26) and fewest in the enforcement section (36 percent for CFR 123.27). For example, 63 percent of the MOAs did not include language verifying that no other State enforcement agreement could override the MOA, as required by CFR 123.24(c). Eighty percent of MOAs did not note whether the State had the authority to enter any permitted facility (123.26(c)). Figure 2-2 shows how the percentage of missing regulations varied according to the CFR section under review.
    EPA Could Establish a National Baseline for CWA Implementation with an MOA Template
    EPA faces a significant challenge: to implement a nationally consistent enforcement program that offers equal protection from pollution to all Americans. By renegotiating outdated or inconsistent MOAs according to a national template, EPA can establish a current baseline for national consistency. A national template could also ease the MOA negotiation process. EPA should identify the key requirements that should be delineated in MOAs, including the other programmatic concerns disclosed through the CFR and issues uncovered during OECA’s State Review Framework, and incorporate them into a national template.
    The officials of OECA, EPA regions, and State organizations we spoke with agree that MOAs are out of date and should be renegotiated, but OECA also pointed out that the process could face State resistance because it might require considerable resources. Enforcement managers and officials in two of the four regions we spoke with indicated that MOA renegotiation would be a low priority for them and would require them to remove resources from other enforcement activities. However, in our opinion, the management control benefit justifies the resource requirement. For example, as a result of renegotiating MOAs, Region 4 enforcement staff reported that they improved baseline management control over EPA-State enforcement relationships. In the face of a disagreement over responsibilities, regional staff said they show State program staff where an enhanced requirement is written in the updated MOA, and the State program staff then carry out the requirement.
    Staff from each region we interviewed and other stakeholders agreed that an EPA Headquarters model MOA would be beneficial in determining MOA adequacy.

    Region 4 developed a regional template for use in its MOA renegotiations. Regional enforcement officials reported that the template did not change much between the beginning and end of negotiations. A Region 10 enforcement program manager suggested that a model MOA that would serve as a foundational reference document could help to clarify the core oversight responsibilities. Region 10 staff stated that a model MOA could identify EPA and State expectations with respect to inspection, timely follow-up, data quality, transparency, and adequate response. In addition, the Environmental Council of the States said its member States would be interested in discussing a model MOA.
    Conclusion
    The current state of the MOAs means that EPA cannot assure it has effective management control over State programs that assures the public that CWA objectives are being achieved. EPA has not established a national template defining the key requirements necessary for current, robust MOAs. In addition, EPA has not developed a periodic review system to determine which MOAs remain adequate and which need to be revised to remain current with changing regulations. MOAs should establish the foundations for nationally consistent enforcement, defining the baseline roles and responsibilities for EPA and States. MOAs should also be the basis for assessing States’ ability and commitment to administer EPA’s NPDES program in accordance with the CWA. The CFR requires MOAs to outline the basic parameters of the EPA-State relationship and ensure CWA goals are being met through State-authorized programs. To ensure that MOAs fulfill their intended function, EPA must put in place a system that maintains and oversees consistent management controls over State programs. To ensure transparency and accountability, EPA should maintain a publicly available MOA repository, making these documents available to all States, EPA regions, and the public.
    Recommendations
    We recommend that the Deputy Administrator:
    2-1 Develop a national MOA template including essential requirements derived from the updated CWA, CFR requirements, and State Review Framework findings.
    2-2 Develop a systematic approach to identify which States have outdated or inconsistent MOAs; renegotiate and update those MOAs using the MOA template; and secure the active involvement and final, documented concurrence of Headquarters to ensure national consistency.
    2-3 Establish a process for reviewing MOAs on a regular basis, taking into account legislative and management changes that affect the adequacy of the MOA.
    2-4 Maintain a publicly available repository of MOAs.
    Agency Response and OIG Comment
    EPA’s Deputy Administrator provided the Agency response, coordinating comments from OECA and OW. The Deputy Administrator generally agreed with these recommendations and provided an outline of corrective actions that he would take in response to the recommendations.
    The Deputy Administrator agreed with recommendations 2-1, 2-3, and 2-4.
    In response to recommendation 2-2, the Deputy Administrator stated that renegotiating MOAs with States can be time consuming and may not be always be the best use of EPA resources. Deficiencies in State enforcement programs may be better addressed through other solutions and approaches. The Deputy Administrator proposed that OECA and OW integrate MOA assessment into a coordinated State program review process to identify and correct MOAs that present the greatest barriers to State program performance.
    The OIG responds by noting that the draft report and the final report both make mention of the other mechanisms EPA uses to manage programs, even noting that there is a layered system of management controls (see page 2, for example). However, the report emphasizes that while EPA uses other mechanisms, the only required mechanism is the authorization MOA. The way in which EPA regions and States use other mechanisms varies, but the MOA is the only document that each State must have. For this reason, it is important that authorization MOAs be up to date and compliant with the CFR.
    While acknowledging EPA’s need to maintain flexibility, the OIG believes that MOAs are a critical building block of State enforcement programs. Depending on how it is constructed, a systematic State program review process that contains a strategy for updating outdated or inconsistent MOAs could address our recommendation. We will list the status of recommendation 2-2 as “undecided,” and list the other recommendations as “open.” We look forward to a detailed strategy and timeline for implementation in the Agency’s 90-day response to this final report.

    List of CFR Criteria for MOA Assessment1
    CFR
    Criterion
    1
    123.24(a)
    MOA executed by the State Director and the Regional Administrator and approved by Administrator
    2
    MOA meets all requirements of paragraph (b)
    3
    MOA has no provisions restricting EPA’s statutory oversight responsibility
    4
    123.24(b)
    Provisions for prompt transfer from EPA to the State of pending permit applications and any other relevant program operation information
    5
    MOA contain procedure for transfer of any existing permits for administration
    6
    MOA contain specific procedure for transfer of administration if a State lacks administration authority for permits issued by Federal government
    7
    MOA contain provisions specifying classes and categories of permit applications, draft permits, and proposed permits for Regional Administrator review
    8
    MOA contain provisions specifying the frequency and content of reports, documents and other information which the State is required to submit to EPA
    9
    MOA contain provisions allowing EPA to routinely review State records, reports, and files relevant to the administration and enforcement of the approved program
    10
    MOA contain provisions for coordination of compliance monitoring activities by the State and by EPA and EPA inspection of select facilities or activities within State
    11
    MOA contain procedures to assure coordination of enforcement activities
    12
    MOA contain provisions, when appropriate, for joint processing of permits by the State and EPA for facilities or activities which require permits from both EPA and the State under different programs per § 124.4
    13
    MOA contain provisions for modification of the MOA in accordance with this part
    14
    123.24(c)
    MOA, the annual program grant and the State/EPA Agreement should be consistent. If the State/EPA Agreement indicates that a change is needed in the Memorandum of Agreement, the Memorandum of Agreement may be amended through the procedures set forth in this part.
    15
    State/EPA Agreement cannot override MOA
    16
    123.24(d)
    MOA specify the extent to which EPA will waive its right to review, object to, or comment upon State-issued permits under section 402(d)(3), (e) or (f) of CWA
    17
    123.26(a)
    State programs shall have procedures for receipt, evaluation, retention and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for possible enforcement of failure to submit these notices and reports).
    18
    123.26(b)
    State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements.
    19
    The State shall maintain a program which is capable of making comprehensive surveys of all facilities and activities subject to the State Director's authority to identify persons subject to regulation who have failed to comply with permit application or other program requirements. Any compilation, index or inventory of such facilities and activities shall be made available to the Regional Administrator upon request;
    20
    The State shall maintain a program for periodic inspections of the facilities and activities subject to regulation.
    1 MOA assessment excludes the review of 123.24(b)(ii) and 123.27(e) as noted within the Scope and Methodology.
    18
    10-P-0224
    CFR
    Criterion
    21
    These inspections shall be conducted in a manner designed to: Determine compliance or noncompliance with issued permit conditions and other program requirements;
    22
    These inspections shall be conducted in a manner designed to: Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and other forms supplying monitoring data; and
    23
    These inspections shall be conducted in a manner designed to: Verify the adequacy of sampling, monitoring, and other methods used by permittees and other regulated persons to develop that information;
    24
    The State shall maintain a program for investigating information obtained regarding violations of applicable program and permit requirements; and
    25
    The State shall maintain procedures for receiving and ensuring proper consideration of information submitted by the Public about violations. Public effort in reporting violations shall be encouraged, and the State Director shall make available information on reporting procedures.
    26
    123.26(c)
    The State Director and State officers engaged in compliance evaluation shall have authority to enter any site or premises subject to regulation or in which records relevant to program operation are kept in order to copy any records, inspect, monitor or otherwise investigate compliance with the State program including compliance with permit conditions and other program requirements. States whose law requires a search warrant before entry conform with this requirement.
    27
    123.26(d)
    Investigatory inspections shall be conducted, samples shall be taken and other information shall be gathered in a manner (e.g., using proper “chain of custody” procedures) that will produce evidence admissible in an enforcement proceeding or in court.
    28
    123.26(e)
    Maintaining a comprehensive inventory of all sources covered by NPDES permits and a schedule of reports required to be submitted by permittees to the State agency;
    29
    Initial screening (i.e., pre-enforcement evaluation) of all permit or grant-related compliance information to identify violations and to establish priorities for further substantive technical evaluation;
    30
    When warranted, conducting a substantive technical evaluation following the initial screening of all permit or grant-related compliance information to determine the appropriate agency response;
    31
    Maintaining a management information system which supports the compliance evaluation activities of this part; and
    32
    Inspecting the facilities of all major dischargers at least annually.
    33
    123.27(a)
    To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment;
    34
    Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment.
    35
    To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit;
    36
    To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows:
    37
    Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation.
    19
    10-P-0224
    CFR
    Criterion
    38
    Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation.
    39
    Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation.
    40
    123.27(b)
    The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation.
    41
    The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act;
    42
    123.27(c)
    A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation.
    43
    Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations;
    44
    In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended:
    45
    123.27(d)
    Any State administering a program shall provide for public participation in the State enforcement process by providing either:
    46
    Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in §123.26(b)(4); (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action.

    Standards for Apportionment
    Because we hold that apportionment is available at the liability
    stage in CERCLA cases, we must determine the appropriate
    standards for determining when apportionment is
    available and, when it is, how to ascertain the proper division
    of damages among defendants. Again, we draw on the experience
    of our sister circuits.
    [5] The circuits that have addressed these questions have
    looked to common law principles of tort in general, and the
    Restatement in particular, for guidance as to when and how
    to impose joint and several liability under § 9607(a). We
    agree that this approach is proper and adopt it here. We also
    follow Chem-Dyne and all of the courts of appeals that have
    addressed the question in holding that the resulting

    standard must be a uniform federal rule.

     See, e.g., Aviall Servs., Inc. v.
    Cooper Indus., Inc., 312 F.3d 677, 684 (5th Cir. 2002) (holding that

    apportionment of CERCLA liability “is . . . a matter of federal common law”),

    reversed on other grounds by 543
    U.S. 157 (2004); United States v. Burlington N. R. Co., 200
    F.3d 679, 697 (10th Cir. 1999) (same); Township of Brighton,
    153 F.3d at 329 (same); Monsanto Co., 858 F.2d at 172
    (same). As Chem-Dyne noted, the legislative history of CERCLA
    supports such an approach, as does its policy favoring
    national uniformity so as to discourage “illegal dumping in
    states with lax liability laws.” Chem-Dyne, 572 F. Supp. at 809.16
    [6] The question, then, is what the uniform federal law
    should be. Once again, all the circuits that have addressed this
    question have followed Chem-Dyne, holding that the appropriate
    source for a common law rule of apportionment is Section
    433A of the Restatement of Torts. See Hercules, 247
    F.3d at 716 & n.9, 717 (noting that courts support

    the divisibility doctrine

    as borrowed from the Restatement); Bell Petroleum,
    3 F.3d at 895 (relying on the Restatement); Chem-Dyne,
    572 F. Supp. at 810 (establishing this method). We concur in
    this conclusion generally, although we borrow from the
    Restatement with two important caveats, as there are two
    areas where the Restatement approach is a somewhat poor fit
    and requires slight modifications to ensure that our approach
    comports with

     the liability and remediation scheme

    of CERCLA.
    First, there are important distinctions between causation
    as conceived in the Restatement and causation in the
    context of CERCLA. We describe these and

    import a nexus concept

    that relates to the particular PRP provisions at issue.
    And second, the concept of “harm” in the Restatement

    as actual injury does not correspond

    easily to CERCLA’s priorities.
    We conclude instead that contamination and the cost of
    remediation are both relevant for the “harm” analysis under
    CERCLA. The Restatement’s fundamental reliance on objective
    rather than equitable considerations, however, does comport
    well with the “super-strict” nature of CERCLA and with
    the development of the statute, leaving us to conclude that

    equitable considerations have no role

    at this stage in the applicable
    standards.
    1. Causation
    [7] Section 433A of the Restatement allows for apportionment
    of damages where “(a) there are distinct harms,[17] or (b)
    there is a reasonable basis for determining the contribution of
    each cause to a single harm.”18 RESTATEMENT (SECOND) OF
    TORTS § 433A(1) (1965) (emphasis added). CERCLA, however,
    does not require

    causation as a prerequisite to liability

    (except with regard to the third-party defense, see § 9607(b),
    not at issue here). Nonetheless, most of the leading cases on
    joint and several liability under CERCLA have addressed
    divisibility under § 433A(1)(b) and thereby incorporated a

    modified concept of causation.

    19 See, e.g., Bell Petroleum, 3
    F.3d at 902-03; Monsanto, 858 F.2d at 172; Chem-Dyne, 572
    F. Supp. at 810.
    Notably, these cases often dealt with simpler facts than
    those we confront. Chem-Dyne, for instance, assumed a case
    quite different from this one. There, the court stated that
    “[t]ypically . . . there will be numerous hazardous substance
    generators or transporters who have disposed of wastes at a
    particular site.” 572 F. Supp. at 810. It was in that context —
    that is, where the question was apportionment among defendants
    who all disposed of wastes themselves — that Chem-
    Dyne determined that courts could follow the divisibility principles
    of the Restatement and remain true to CERCLA. In a
    situation in which the several defendants are all polluters
    themselves,

    divisibility under the Restatement standard is

    indeed a relatively straightforward analysis,

     and one in which causation concepts are useful.

    If the court can estimate with
    some confidence the amount of waste that each defendant disposed
    of and has a basis for determining that the extent of
    contamination of the site is proportional to the amount of
    waste disposed of, then the Restatement approach to apportionment
    works nicely.
    The situation here is different.20 The three “responsible”
    parties are: the now-insolvent majority owner and operator of
    the site; the mostly absentee landlord of a portion of the site;
    and a seller of chemicals shipped to and stored at the site.
    Each party had an entirely different role in the contamination
    process, with overlapping effects, and not all “caused” contamination
    in any meaningful sense.

    [8] Most notably, PRP status premised on ownership of a

    facility does not require any involvement in the disposal of

    hazardous substances. Thus, to speak of a PRP “causing” contamination

    of its land simply by owning land on which someone

    else disposes of hazardous wastes is to indulge in

    metaphor. At the same time, to allow CERCLA defendants,

    especially landowner PRPs, to prove through traditional causation

    analysis that they were not entirely liable would be to

    undermine the premise on which the statute designated them

    as PRPs to begin with. CERCLA requires a connection — for

    example, that the PRP be a landowner “at the time of disposal,”

    see § 9607(a)(2) — but no further causation. We therefore

    adjust the application of the Restatement principles to the

    current circumstance by abjuring the traditional “causation”

    principles and substituting a nexus concept that depends upon

    the particular PRP provision applicable. Where, as here, the

    pertinent PRP status is as landowner, the landowner can

    establish divisibility only by demonstrating that portions of

    the contamination are in no respect traceable to the portion of

    the facility that the landowner owned at the time of the disposal.

    The arranger nexus is more straightforward, with a
    focus not on ownership of the facility but rather on the relevant,
    arranged disposals in light of other contamination at the
    facility.
    2. Harm
    [9] A second difficulty that results from

    relying on tort principles in a scheme not based on tort law

    concerns the
    application of the term “harm,” used in the Restatement, as
    applied to CERCLA. See RESTATEMENT (SECOND) OF TORTS
    11310 DEP’T OF TOXIC SUBSTANCES v. BURLINGTON NORTHERN
    § 433A. The CERCLA cost recovery section does not focus
    on “harm,” but rather on “costs of removal or remedial
    action” and

    “necessary costs of response.”

    21 § 9607(a). Thus,
    when applying the Restatement in the context of CERCLA,

    the question becomes: What is the “harm” that we are

    attempting to divide?

    There are three possible kinds of “harm” in actions for
    remediation costs under CERCLA: the initial disposal, the
    resulting contamination, and the costs of remediating the contamination.

    Actual injury to individuals or to property, the

    usual “harms” in a tort suit, are not a pertinent consideration;

    the statute is concerned with averting future injury by

    remediating contamination, not with compensation for past injuries.

    If the harm were the disposal, then divisibility based on
    volume of discharge by operators or by parcel would always
    make sense, because disposal occurs in specific amounts at
    specific places. If the harm were contamination, then some
    attempt would have to be made either to justify a direct correlation
    between disposal and contamination under the specific
    circumstances or to separate out the leakage that remained as
    contamination from leakage that either evaporated, was adequately
    diluted, or for other reasons did not remain on the
    property in toxic form.
    22 If the harm is the cost of remediation,
    then divisibility would have to be based on the pro rata cost
    of cleaning up each defendant’s contribution to the contami-
    nation.
    That pro rata cost will sometimes differ from the proportion
    of contamination caused by each defendant, because
    the cost of removing contamination can vary with geographical
    considerations, degree of toxicity, the means of extraction
    used for different toxic substances, or other factors.

    [10] In light of a CERCLA liability suit’s central purpose

    — recovering the cost of eradicating contamination — we

    conclude that it is most useful for purposes of determining

    divisibility to view the “harm” under CERCLA as the contamination

    traceable to each defendant.

    Disposal itself is not the focus of the statute, unless it results in contamination.
    And the cost of cleaning up the contamination is most analogous
    to the damages recovered in a tort suit, not to the injury on
    which liability is based.23
    3. Equity

    [11] Because this case is one in which the harms are not

    distinct, apportionment must be under Restatement

    § 433A(1)(b) if it is to be allowed at all.

    That is, there must be a reasonable basis for determining the contribution of each PRP to the harm.

    While nothing in the statute directly
    addresses the question whether equitable factors are appropriate
    for purposes of apportioning liability among joint tortfeasors,
    all the other circuits that have addressed the issue have
    held that they are not. We again follow their lead.
    Although CERCLA is not explicit on this issue, there is a
    statutory provision concerning the separate question of contri-
    bution actions among PRPs once liability to the plaintiffs
    seeking to recover cleanup costs has been determined. That
    provision,

    § 9613(f), added to CERCLA in 1986, is silent as to initial divisibility.

     It only describes, quite generally, the
    considerations applicable in a contribution action for determining
    whether one PRP can collect from another a portion
    of the costs for which it has been held liable:

     “In resolving contribution claims, the court may allocate response costs

    among liable parties using such equitable factors as the court

    determines are appropriate.”

    § 9613(f) (emphasis added).24 In
    contrast, § 433A(1)(b) of the Restatement and the appended
    commentary concerning divisibility are silent as to equitable
    considerations.25
    Although, as noted, this circuit heretofore has not addressed
    divisibility analysis, the implication from our cases deciding
    § 9613(f) contribution issues is that the proper time to focus
    on such factors is at the contribution phase, not the liability
    phase.

    See, e.g., Carson Harbor Vill., 270 F.3d at 871 (noting

    that the “contribution provision aims to avoid a variety of scenarios

    by which a comparatively innocent PRP might be on

    the hook for the entirety of a large cleanup bill”); Pinal Creek,

    118 F.3d at 1301 (“A PRP’s contribution liability will corre-

    spond to that party’s equitable share of the total liability and

    will not be joint and several.”).


    Other circuits have been careful to delineate the difference
    between the equitable considerations pertinent under
    § 9613(f) and the objective considerations pertinent under
    § 9607(a). See Hercules, 247 F.3d at 718; Township of Brighton,
    153 F.3d at 318; Bell Petroleum, 3 F.3d at 901.

    As the Sixth Circuit has noted, divisibility analysis has the potential

    to eviscerate the strict liability principles of CERCLA

    entirely, “because defendants who can show that the harm is

    divisible, and that they are not responsible for any of the

    harm” could whittle their liability to zero.

    Township of Brighton,
    153 F.3d at 318. Additionally, as Township of Brighton
    also noted in rejecting a fairness-based approach, divisibility
    analysis is not an invitation to “split the difference” and come
    up with a “compromise amount.” Id. at 319.

    While it may seem unfair to hold a partial owner liable for

    all the contamination cleanup costs, that perceived unfairness

    is the result of the statutory “super-strict” liability scheme.

    Assuring fairness among PRPs is the proper subject of the

    contribution stage, not of apportionment at the liability stage.

    See United States v. Rohm & Haas Co., 2 F.3d 1265, 1280-81
    (3d Cir. 1993), overruled on other grounds by United States
    v. E.I. Dupont de Nemours & Co., 432 F.3d 161, 162-63 (3d
    Cir. 2005) (en banc). At the liability stage, CERCLA simply
    assigns liability to statutorily responsible parties so as to
    assure that, as between those with some connection to the
    contamination — and who have, it may be assumed, benefitted
    from the contamination-causing process — and those with
    none, such as the taxpayers.

    Any court-created structure that

    would allow PRPs to whittle their share to little or nothing

    and leave the taxpayers holding the bag may seem more equitable

    to some PRPs but would violate the basic structure of

    the CERCLA statutory scheme.

     Because of such concerns,

    courts have generally refrained from using an equity-based

    allocation analysis, so as not to weaken further the strict liability

    principle basic to CERCLA.

    [12] We agree that while

     joint and several liability need not be universally applied,

    see Bell Petroleum, 3 F.3d at 897, the
    inquiry as to whether such liability is appropriate must focus
    strictly on

    whether there is a reasonable basis for apportionment,

    see, e.g., id. at 901-04. Consequently, in an action under
    § 9607(a), a court is not to look to equitable considerations,
    such as relative fault, in determining whether liability is to be
    joint and several or apportioned.

    FOOTNOTES
    16The parties here have assumed that the apportionment standard must
    be one of uniform federal common law. As stated above, every federal circuit
    to address the issue, including those decided after O’Melveny &
    Myers v. FDIC, 512 U.S. 79 (1994), and Atherton v. FDIC, 519 U.S. 213
    (1997), has shared that understanding. Although Atchison, Topeka &
    Santa Fe Ry. Co. v. Brown & Bryant, Inc., 159 F.3d 358, 362-64 (9th Cir.
    1997), questioned whether O’Melveny & Myers and Atherton upset Ninth
    Circuit law with regard to the adoption of uniform federal common law
    regarding successor liability under CERCLA, very different considerations
    govern with respect to apportionment. In Atchinson, resolution of the
    question of successor liability would resolve who was liable under
    CERCLA, an inquiry with roots in state corporate law.

    Here, the inquiry diverges from state law completely.

    As we explain in this section,

    the “super-strict” nature of CERCLA liability is sui generis,

    so there is no state law directly applicable.
    The resulting apportionment analysis therefore
    requires a similarly unique set of considerations, married to the statute’s
    functions and purpose.
    17Comment b of section 433A notes:
    Distinct harms. There are other results which, by their nature, are
    more capable of apportionment. If two defendants independently
    shoot the plaintiff at the same time, and one wounds him in the
    arm and the other in the leg, the ultimate result may be a badly
    damaged plaintiff in the hospital, but it is still possible, as a logical,
    reasonable, and practical matter, to regard the two wounds as
    separate injuries, and as distinct wrongs. The mere coincidence
    in time does not make the two wounds a single harm, or the conduct
    of the two defendants one tort. There may be difficulty in
    the apportionment of some elements of damages, such as the pain
    and suffering resulting from the two wounds, or the medical
    expenses, but this does not mean that one defendant must be liable
    for the distinct harm inflicted by the other.
    18Comment d of section 433A notes:
    Divisible harm. There are other kinds of harm which, while not
    so clearly marked out as severable into distinct parts, are still
    capable of division upon a reasonable and rational basis, and of
    fair apportionment among the causes responsible. Thus where the
    cattle of two or more owners trespass upon the plaintiff’s land
    and destroy his crop, the aggregate harm is a lost crop, but it may
    nevertheless be apportioned among the owners of the cattle, on
    the basis of the number owned by each, and the reasonable
    assumption that the respective harm done is proportionate to that
    number.

    Where such apportionment can be made without injustice

    to any of the parties, the court may require it to be made.

    19The sections of the Restatement that courts have used to establish the
    rules of joint and several liability under CERCLA are found 

    in the negligence division of the Restatement.

    As these courts recognize, CERCLA is
    a strict liability statute. See, e.g., Hercules, 247 F.3d at 716; Township of
    Brighton, 153 F.3d at 318. Because 

    there is no comparable divisibility rule in the strict liability portion of the Second Restatement,

    courts have
    adapted the negligence rules to strict liability by declining to rely on the
    portion of the Restatement section

    that places an initial burden as to causation on the plaintiff.

    Compare Hercules, 247 F.3d at 717, and Bell Petroleum,
    3 F.3d at 896, with RESTATEMENT (SECOND) OF TORTS § 433B(1).
    20One commentator has noted that trying to apply the Restatement to
    CERCLA in most cases is like “pushing a round peg through a square
    hole. Traditional tort law principles falter in the CERCLA context because
    CERCLA is so unlike a typical tort law cause of action.” Lynda J. Oswald,
    New Directions in Joint and Several Liability Under CERCLA?, 28 U.C.
    DAVIS L. REV. 299, 360 (1995).
    21The statute also mentions “damages for injury to, destruction of, or
    loss of natural resources” and “costs of any health assessment or health
    effects study.” § 9607(a)(C), (D). These provisions may be informative
    with regard to the nature of the harm in other cases but are not here applicable.
    22In many instances, of course — as in Chem-Dyne — the various polluters
    will dispose of the same substance in the same location, so there will
    be a basis for assuming that each polluter’s pro rata share of the hazardous
    waste disposed of and of the resulting contamination is the same. See also
    Bell Petroleum, 3 F.3d at 903.
    23The cost of cleanup of different toxic substances or in different areas
    of the facility will often be a useful measure of the proportion of the pertinent
    contamination allocable [ALLOCATABLE?] to each defendant. That cost will depend
    upon factors such as which contamination was serious enough to merit
    remediation and how thoroughly the soil was contaminated in various
    areas. Thus, the “harm” allocation analysis may in some instances usefully
    focus initially on the proportion of costs associated with remedying various
    aspects of the contamination.
    24Among the equitable factors used in CERCLA contribution cases are
    the so-called

    “Gore factors.”

     See Hercules, 247 F.3d at 718. Those factors
    are derived from the amendment that then-Representative Gore introduced
    in 1980 to alleviate the harshness of

    mandatory apportionment,

    which at
    that time was a part of the bill. See 126 CONG. REC. 26782 (1980) (statement
    of Rep. Gore). Although these factors are appropriate in contribution
    cases, they are not, for the reasons suggested in the text, appropriate considerations
    at the liability stage.
    25The only mention of

    equity in Restatement § 433A

     is in comment h,
    regarding

    “[e]xceptional cases.”

     Comment h suggests that in cases of
    insolvent defendants,

    when an “innocent plaintiff would be forced to bear

    the share of the loss due to the defendant from whom he could not collect

    damages,”

     courts may refuse to allocate harm

    to avoid “injustice to the plaintiff.”

    Because we determine that there is no reasonable basis for
    apportioning the defendants’ harm, we do not reach the question of
    whether the considerations of comment h are applicable here.

    CERCLA Liability
    We now proceed to apply these fairly straightforward principles
    to the circumstances of this case. Here, the Railroads
    were found to be PRPs under § 9607(a)(2), as the owners of
    a “facility at which . . . hazardous substances were disposed
    of,” and Shell was found to be a PRP under § 9607(a)(3), as
    a person who “arranged for disposal . . . of hazardous substances
    owned or possessed by such person.” The first question
    we address is whether the Railroads and Shell are liable
    for all the cleanup costs at the Arvin site, or, as the district
    court held, only some of them. The second question,
    addressed later, is whether Shell is liable for any of the harm,
    as an “arranger.”
    A. Apportionment of Liability

    1. Standard of Review and Burden of Proof

    Because we have not heretofore faced a CERCLA apportionment
    issue directly, there is no Ninth Circuit precedent
    concerning the standard of appellate review for such an issue.
    Three circuits have addressed the question, and two separate
    approaches have emerged.
    The Fifth and Eighth Circuits look first to whether there is

    a reasonable basis for apportioning the harm,

    an inquiry they
    consider a question of law reviewed de novo. See Hercules,
    247 F.3d at 718-19; Bell Petroleum, 3 F.3d at 896, 902. These
    two circuits then examine, as a question of fact reviewed
    under the clearly erroneous standard, precisely how damages
    are to be divided. See Hercules, 247 F.3d at 718 (holding that

    “actual apportionment” of damages is a question of fact);

     Bell Petroleum, 3 F.3d at 896 (same).
    In contrast, the Sixth Circuit considers divisibility as a
    whole a factual matter of causation, reviewed entirely under
    the clearly erroneous standard. Township of Brighton, 153
    F.3d at 318 n.13. This view, however, disregards a distinction
    between conceptual divisibility and actual allocation that we
    find both persuasive and useful. The latter inquiry can involve
    the

    resolution of credibility issues and of conflicting evidence,

    while the former ordinarily does not.
    We believe the most appropriate approach, and the one we
    therefore adopt here, is the one adopted in Hercules and Bell
    Petroleum, with a refinement suggested by Judge Parker’s
    dissent in Bell Petroleum. Judge Parker thought that the
    majority confused the distinction between

    the “legal burden that the single harm at issue caused is of a type capable of

    apportionment, and the factual burden of proving the amount

    of harm attributable to a particular party.”

     Bell Petroleum, 3
    F.3d at 909 (Parker, J., concurring in part and dissenting in
    part). We are not sure that there was any such confusion.
    Rather,

    an aspect of clear error review is the legal determination

    whether the party with the burden of proof met that burden;

    if the party did not and the district court nonetheless

    ruled for it, then the district court clearly erred.

    See Lloyd v.
    Schlag, 884 F.2d 409, 415 (9th Cir. 1989) (reviewing
    “whether the district court committed clear error by holding
    that [plaintiff] had not met his burden of proof”). Thus,
    although the harm may be capable of apportionment, the
    harm may not actually be apportionable in the particular case
    as a factual matter, given the evidence produced, because the
    party advocating apportionment has not come forward with
    the minimum showing needed to meet its burden of proof as
    to the proper division of liability.
    We therefore proceed as follows:

    We inquire, first, whether

    the particular harm at issue in the case is theoretically capable

    of apportionment — i.e., whether it could ever be apportioned

    or whether it is, by nature, too unified for apportionment. That

    question is one of law, reviewed de novo.

    Cf. Taisho Marine
    & Fire Ins. Co. v. M/V Sea-Land Endurance, 815 F.2d 1270,
    1274 (9th Cir. 1987). Second, we review for clear error
    whether the defendant submitted evidence sufficient to establish
    a reasonable basis for the apportionment of liability, taking
    into account that the burden of proof is on the party
    seeking allocation, as well as the district court’s actual division
    of liability.
    There is no dispute here on the first, purely legal question
    — whether the harm is capable of apportionment. See Bell
    Petroleum, 3 F.3d at 896; Chem-Dyne, 572 F. Supp. at 810.
    Some of the contamination on the B&B site occurred before
    the Railroads’ parcel became part of the facility, and the original
    B&B site is distinct from the portion leased from the Railroads.
    Only some of the toxic substances were stored on the
    Railroads’ parcel, and only some of the water on the facility
    washed over the Railroads’ site. As to Shell, only some of the
    toxic substances spilled on the facility were sold by the company.
    The different toxic substances vary in their likelihood
    to leak and in the manner and speed in which they disseminate
    in ground water. So, conceptually, the contamination
    traceable to the Railroads and Shell, with perfect information,
    would be allocable, as would be the cost of cleaning up that
    contamination.

    The questions, then, are whether the district court clearly

    erred in finding

     that the Railroads and Shell established a

    (no) “reasonable basis” for apportionment,

    Bell Petroleum, 3 F.3d
    at 901, and whether, having so found, the district court properly
    apportioned the harm.

    We recognize that the district court

    at one point stated that
    the Railroads

    failed to “meet their burden of proof” as to divisibility.

    But its overall ruling was necessarily to the contrary,
    as the court also stated that it “independently found [in
    the record] a reasonable basis for apportionment in spite of
    the parties[’] presentations.” Thus, while the district court
    rejected both defendants’ theories as to divisibility, it used
    record evidence it found persuasive to determine apportionment.
    Whether the district court was correct in this regard is,
    as we have noted, part of the review of the factual decision
    regarding apportionment, discussed hereafter.
    The burden of
    proof issue thus melds with the merits of the apportionment
    issue, rather than barring us from considering it.
    2. The Railroads
    As we have established,

     if apportionment is to be allowed

    under the Restatement approach, there must be a reasonable

    basis for calculating the connection

    between the Railroads’
    PRP status and the relevant harms. Again, the harm we consider
    is the contamination on the Arvin site. Where, as for the
    Railroads, the PRPs’

    responsibility under the statute derives

    solely from their status as landowner,

    the PRPs can establish
    divisibility by demonstrating that discrete portions of the contamination
    are in no respect traceable to land they owned at
    the time of the toxic disposal.
    Here, the district court’s severability analysis — after 191
    pages of an amended opinion that included over 80 pages of
    factual findings — ultimately relied on the simplest of considerations:
    percentages of land area, time of ownership, and
    types of hazardous products. Although we do not

    fault the district court’s factfinding

     — its numbers are mostly correct —

    its legal conclusion

    that these three factors alone suffice to
    support apportionment

    cannot stand.

    26 We address each factor

    below to show why.

    a. Land Area
    The only court of appeals case that has fully addressed
    divisibility of landowner liability takes a relatively strict
    approach to apportionment on the basis of land area. In
    United States v. Rohm and Haas Co., 2 F.3d 1265 (3d Cir.
    1993), the most analogous CERCLA divisibility case to this
    one, the Third Circuit held, as do we, that “simply showing
    that one owns only a portion of the facility in question is [not]
    sufficient to warrant apportionment.” Id. at 1280.
    Like this case, Rohm and Haas concerned a landowner PRP
    and

    changes in landownership over time.

    Although the

    Third Circuit’s divisibility analysis is fairly cursory,

    its reluctance to
    apportion landowner liability on the basis of land boundaries
    is informative. Rohm and Haas indicates that the mere percentage
    of land owned by one PRP relative to the entire facility
    cannot alone be a basis for apportionment,

    as it does not provide a minimally reliable basis for tracing the proportion

    of leakage, contamination, or cleanup costs associated with

    the entire parcel.


    Contrary to Rohm and Haas, the district court’s analysis
    gave star billing to the

    percentage of land ownership,

    even in
    a unified facility.27 We agree with Rohm and Haas that this
    approach, seemingly straightforward though it is,

    fails in most circumstances to comport with the “reasonable basis” test, as

    the facts of this case illustrate.

    [13] The Arvin site was a single facility. CERCLA premises
    landowner liability on ownership of a facility, not on
    ownership of a certain parcel of land that is part of a facility.
    The operations on the site were dynamic, with fertilizer rigs
    stored on the Railroad parcel and filled up on the B&B parcel.
    Empty pesticide cans were stored on the Railroad parcel
    before they were crushed and disposed of. After the 1978
    windstorm, tanks were stored all over the facility, including
    on the Railroad parcel. A simple calculation of land ownership
    does not capture any data that reflect this dynamic, unitary
    operation of the single Arvin facility.
    In addition, the synergistic use of different parts of the
    Arvin site makes division based on percentage of land ownership
    particularly untenable. The record shows that B&B
    leased the Railroad parcel to accommodate its expanding
    operations. The Railroad parcel added an unquantifiable and
    perhaps exponential amount to B&B’s soil contamination.
    Were the Railroad parcel not part of the facility, there would
    have been less overall storage capacity. One can assume that
    a smaller amount of toxic chemicals would have been delivered
    to, and spilled on, the Arvin site. The fertilizer rigs, for
    example, were stored almost exclusively on the Railroad parcel.
    Had that parcel not been available, less fertilizer might
    have been delivered to — and leaked onto — the Arvin parcel.
    As these descriptions suggest, nothing in the record supports
    a conclusion that the leakage of contaminants that ended
    up on the B&B parcel occurred on each parcel in proportion
    to its size.
    [14] Instead, given the circumstances of this case, more
    pertinent comparisons would be the proportion of the amount
    of chemicals stored, poured from one container to another, or
    spilled on each parcel. For example, were adequate records
    kept, it would be possible to estimate the amount of leakage
    attributable to activities on the Railroad parcel, how that leakage
    traveled to and contaminated the soil and groundwater
    under the Arvin parcel, and the cost of cleaning up that contamination.
    [15] But none of this data is in the record. It may well be
    that such

    information is, as a practical matter, not available

    for periods long in the past, when future environmental

    cleanup was not contemplated.

    Unlike records concerning the
    amount of toxic chemicals produced by a given operator of a
    facility, records that separate out, with any precision, the
    amount of toxic chemicals stored on one part of a facility as
    opposed to another would have had little utility to B&B, the
    operator of the facility, and none to the Railroads, the owners
    of the parcel. This observation is true in spades for the more
    directly pertinent data, such as the amount of leakage on the
    Railroad parcel, the amount of that leakage that flowed onto
    the B&B parcel, and the amount of that residue that remained
    as contamination under the B&B parcel when the cleanup
    began.
    [16] So the failure to keep these records is quite understandable.
    But these practical considerations cannot justify a
    “meat-axe” approach to the divisibility issue, premised on
    percentages of land ownership, as a means of adjusting for the
    difficulties of proving divisibility with precision when PRP
    status is based on land ownership alone. Such an approach
    would be tantamount to a disagreement with the imposition of
    no-fault land ownership liability. Congress, however, created
    precisely such liability, placing the responsibility to pay for
    environmental cleanup on parties, such as the Railroads, that
    profited from the circumstances giving rise to the contamination
    so that the taxpayers are not left holding the tab. The risk
    of lack of adequate information for meaningful division of
    harm therefore must rest on the responsible parties, even
    when that information is extremely hard to come by.
    b. Period of Ownership
    [17] Just as the district court’s land area calculations did
    not correspond to the harms in this case, its simple fraction
    based on the time that the Railroads owned the land cannot be
    a basis for apportionment. The fraction it chose assumes constant
    leakage on the facility as a whole or constant contamination
    traceable to the facility as a whole for each time period;
    no evidence suggests that to be the case. Again, if adequate
    information were available, it would make sense to eliminate
    the Railroads’ liability for the period before B&B leased the
    Railroad parcel. See, e.g., Rohm and Haas, 2 F.3d at 1280.
    The evidentiary vacuum concerning the amount of contamination
    traceable to the pre-lease period, however, precludes any
    such calculation here.
    c. Types of Hazardous Products
    [18] While many of the district court’s calculations were
    factually correct but legally insufficient, its decision to assign
    a two-thirds fraction to represent the present types of hazardous
    products contains a basic factual error. All three chemicals
    were on the Railroad parcel at some time. There is no
    evidence as to which chemicals spilled on the parcel, where
    on the parcel they spilled, or when they spilled. Yet, there is
    evidence that there may well have been leakage on the Railroad
    parcel of D-D, the chemical the district court excluded
    in its calculations. Given the record, the district court clearly
    erred in its attempt to rely on the proportion of hazardous
    products present on the Railroad parcel.
    d. Conclusion
    It will often be the case that a landowner PRP will not be
    able to prove in any detail the degree of contamination traceable
    to activities on its land. A landowner PRP need not be
    involved at all in the disposal of hazardous chemicals and so
    will often have no information concerning that disposal or its
    impact. The net result of our approach to apportionment of
    liability, consequently, may be that landowner PRPs, who
    typically have the least direct involvement in generating the
    contamination, will be the least able to prove divisibility. And
    contribution “is not a complete panacea since it frequently
    will be difficult for defendants to locate a sufficient number
    of additional, solvent parties.” O’Neil v. Picillo, 883 F.2d 176,
    179 (1st Cir. 1989).
    While the result may appear to fault a landowner PRP for
    failing to keep records proving the minor connection of its
    land to the contamination on the facility as a whole, CERCLA
    is not a statute concerned with allocation of fault. Instead,
    CERCLA seeks to distribute economic burdens. Joint and
    several liability, even for PRPs with a minor connection to the
    contaminated facility, is the norm, designed to assure, as far
    as possible, that some entity with connection to the contamination
    picks up the tab. Apportionment is the exception, available
    only in those circumstances in which adequate records
    were kept and the harm is meaningfully divisible.

    [19] In sum, although most of the numbers the district court

    used were sufficiently exact, they bore insufficient logical

    connection to the pertinent question: What part of the contaminants found

    on the Arvin parcel

    were attributable to the presence of toxic substances or to activities

    on the

    Railroad

    parcel?

    We therefore reject the district court’s apportionment

    calculation and hold that the Railroads have failed to prove

    any reasonable basis for apportioning liability for the costs of

    remediation.



    Warden of the Arboretum, Gales & Stannaries;  Private Attorney General & de facto Special Deputy Levying Officer of Record: John F. Hutchens
    GAO: Drinking Water Safety Data Unreliable
    July 19, 2011
    Rep. Edward J. Markey, D-Mass. (7th CD), issued the following news release:
    Three top House Democrats today released a report indicating that audits of many states show that drinking water violations have been grossly under-reported or misreported to the U.S. Environmental Protection Agency (EPA), calling into question the current safety status of drinking water in communities across America. The report was conducted by the Government Accountability Office (GAO) and released by Reps. Henry A. Waxman (D-Calif.), Edward J. Markey (D-Mass.), and John D. Dingell (D-Mich.) of the Energy and Commerce Committee.
    Under the main federal law that protects drinking water, the Safe Drinking Water Act (SDWA), most states collect and review data from community water systems, determine if violations have occurred, take enforcement action when necessary and report all violations and actions to EPA. EPA then uses this data to identify water systems that have problems meeting the health standards for drinking water, so that enforcement efforts can be directed towards those systems with the most significant issues.
    However, using results of audits EPA conducted in 2007 and 2009, GAO found that states underreported or misreported hundreds of violations of drinking water standards. In 2007, an audit of fourteen states (Ark., Ariz., Ga., Ill., Kan., Md., Minn., N.D., Nev., R.I., S.C., Utah, Va., Wash.), as well as Puerto Rico, the Navajo Nation, and 3 EPA Regions, indicated that an estimated 543 health-based drinking water violations (20 percent of the total) that should have been reported to the EPA either went unreported or were inaccurately reported.
    In 2009, an audit of fourteen states (Calif., Conn., Del., Fla., Hawaii, Ind., Mich., N.C., Neb., N.J., N.M., Ore., Tenn., Vt.) indicated that an estimated 778 health-based drinking water violations (26 percent of the total) that should have been reported to the EPA either went unreported or were inaccurately reported.
    Because of the unreliable or incomplete data, the report says that the EPA's ability to identify water systems with the most serious problems complying with drinking water safety standards is compromised.
    "GAO found that states are failing to report important safety information from EPA," said Rep. Waxman, Ranking Member of the Energy and Commerce Committee. "Rather than slashing funding for this critical public health resource, Congress should be moving legislation to improve the reporting and policing of drinking water violations."
    "They say that if it ain't broke, don't fix it - but when it comes to drinking water, it turns out that all too often, EPA has no idea whether it's broke," said Rep. Markey, Ranking Member of the Natural Resources Committee and a senior member of the Energy and Commerce Committee. "To add to the problem, House Republicans have just proposed to cut $134 million dollars from the Drinking Water State Revolving Fund Program, which provides money to states and public water systems to comply with the law and increase public health protection."
    "In order to truly improve our water quality and help our communities budget for water quality infrastructure, we must be able to accurately analyze the quality of our drinking water systems," said Rep. Dingell. "Fighting to protect our water quality is a responsibility to the American people that I take very seriously. Unfortunately, it is clear that EPA needs to improve their data collection efforts in relation to our drinking water systems in order to hold accountable those states that are not taking their public health responsibilities seriously enough."
    The GAO report, which can be found HERE: http://democrats.energycommerce.house.gov/sites/default/files/documents/GAO_Release_07.18.11.pdf , identified significant problems with the manner in which states collect and report this data to EPA, including:
    * States audited did not fully and accurately report 20 percent of the health-based drinking water violations (these refer to violations of the legal limit of contaminants allowed in drinking water) that they should have provided to EPA in 2007, and 26 percent of such violations in 2009.
    * In 2009, states audited did not fully and accurately report a staggering 84 percent of drinking water monitoring violations (these consist of failures to monitor drinking water, or failures to report violations to state regulators or the public, and were found to be a predictor of health-based violations) to EPA.
    * From 2002-2004, audited states did not accurately report 27 percent of the enforcement actions they took against drinking water systems to EPA. Unreliable data on enforcement actions leaves EPA with no sense of whether water systems have returned into compliance and reduces EPA's ability to ensure that it is achieving its goal of targeting enforcement resources to systems that truly need it
    * Incomplete and inaccurate data on violations hampers EPA's ability to identify water systems with the most serious compliance problems and impedes the agency's ability to communicate and assess its progress toward reducing public exposure to toxic chemicals in drinking water.
    * EPA has in the past conducted audits that have identified state inefficiencies and poor practices and that have lead to improved data quality. However, because of funding constraints these audits have been, at least temporarily, discontinued. Additionally, EPA has not required states to take specific actions to improve data quality.
    Last week, Reps. Waxman and Markey along with Sen. Barbara Boxer (D-Calif.) released another report by the GAO related to EPA's implementation of the SDWA that found that EPA has not made a determination to regulate any new drinking water contaminants, with one recent exception, since 1996. That report revealed that during the Bush administration an unusual process was used to justify a decision to not regulate the chemical perchlorate in drinking water. The report also found "systemic limitations" in how EPA identifies new contaminants for regulation. That GAO report can be found HERE .http://democrats.energycommerce.house.gov/sites/default/files/documents/GAOReport_07.12.11.pdf
    Copyright Targeted News Services
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    Copyright 2011 Targeted News Service LLCAll Rights Reserved

    “When the well is dry, we learn the worth of water.”
             -Benjamin Franklin
     
    Strategic Advantage
    Complex litigation and mediation/negotiation projects commonly play out like a game of chess. While rules and facts govern the actions, successful players are diligent at every turn, adjusting their strategic course to counter their opponent’s action. 
             
     
                   “In life, as in chess, forethought wins.”
                                     -Charles Buxton
     
    “The first rule of sustainability is to align with natural forces, or at least not try to defy them.” 
                                       -Paul Hawken
    Environmental Guidance
    DOE/EH-0505
    Guide to Ground Water
    Remediation at CERCLA Response
    Action and RCRA Corrective
    Action Sites
    October 1995

    Laws & Statutes

    On January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (Pub .L.No. 107-118, 115 stat. 2356, "the Brownfields Law"). The Brownfields Law amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) by providing funds to assess and clean up brownfields; clarified CERCLA liability protections; and provided funds to enhance state and tribal response programs. Other related laws and regulations impact brownfields cleanup and reuse through financial incentives and regulatory requirements.



    IN THE HOUSE OF REPRESENTATIVES

    A BILL

    To authorize T.W. Arman Conservatory Trusts, the Iron Mountain Mines Institute, the Freeminers University, the College of the Hummingbirds, Township of Minnesota, Spring Creek School, Los Perdido Bosque del Norte Arboretum, The Lost Confidence Mine, Cabacera del Rio de Buenaventura bottling cooperatives, the Shasta Trinity Interlakes Regional Water & Power district and the Hundreds of the Armanshire water users collectives joint water & hydropower development under Federal Reclamation law, and for other purposes.

      Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

      This Act may be cited as the T.W. Arman Spring Creek School
    Water and Power Act' of 2012.

    SEC. 2. AUTHORIZATION.

      Section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)) as amended--

    `(1) When carrying out this subsection, the Secretary shall confirm all water and power rights to the water & power  districts and water users associations operating the applicable transferred works, the water & power districts and water users associations receiving water from any applicable reserved work. The Secretary shall determine a reasonable time frame for the water & power districts and water users associations to complete appropriations and confirmations of water & power rights.`(2) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to the the T. W. Arman Spring Creek School Water and Power small conduit hydropower development, under this subsection.`(3) The Power Resources Office of the Bureau of Reclamation shall be the lead office of small conduit hydropower policy and procedure-setting activities conducted under this subsection.`(4) this subsection may obligate the Western Area Power Administration to market the power produced by the facilities covered under this subsection and finance the costs associated with production or delivery of such power which shall be assigned to the project purposes for inclusion in project rates.`(5) this subsection may alter the delivery of water by Bureau of Reclamation facilities, and may use water from the original project. The Secretary shall notify and consult with the Water & Power  districts and water users associations operating the transferred work and shall prescribe such terms and conditions that will adequately protect the planning, design, construction, operation, maintenance, and interests of the United States and the water & power districts & users associations
    `(7) Nothing in this subsection shall alter or affect any existing rights for the development of water resources, hydropower projects, or disposition of revenues.
      `(8) In this subsection:
        `(A) CONDUIT- The term `conduit' means any  tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance.
        `(B) WATER & POWER DISTRICTS- The term `water & power district' means the Shasta Trinity Interlakes Regional Water & Power Districts, jointly exercising the powers of its members.
        `(c) TRANSFERRED WORK- The term `transferred work' means any conduit that is included in project works the care, operation, and maintenance of which is being transferred from federal control to the  water users associations or irrigation districts.
        `(E) SECRETARY- The term `Secretary' means the Secretary of the Interior.

    Union Calendar No. 202

    A Leader you Can be Proud of 
        

    Hello John,

    We did it, and it's all thanks to you!

    I've been a part of numerous campaigns in my 30 years of public service and this year stands heads and shoulders above the rest when it comes to enthusiasm and dedication. This district began the year as a nationally targeted swing district, and thanks to you, the voters yesterday made it clear that the 3rd Congressional District stands with seniors, students, veterans and the middle class.

    In just nine months, you knocked on over 70,000 doors and made over half a million phone calls to voters throughout the 3rd Congressional District. From the hundreds of high school and college students who got their first taste of the political process to the community activists from all eight counties in the district who brought with them years of experience, this has been an example of what a grassroots ought to look like.

    It has been a pleasure working with you all these last nine months. Thank you for your time, contributions, and support.

    John Garamendi

    John Garamendi

    House bill supports energy storage

    By Linda Church Ciocci   |   March 5, 2012
    Statement of NHA Executive Director Linda Church Ciocci

    Washington, DC (March 5, 2012) The following is a statement from Linda Church Ciocci, Executive Director of the National Hydropower Association, on the introduction of H.R. 4096, the Storage Technology for Renewable and Green Energy (STORAGE) Act of 2012:

    “The National Hydropower Association is very pleased with the introduction of the Storage Technology for Renewable and Green Energy (STORAGE) Act of 2012 in the House of Representatives. Expanding investment tax credits and clean renewable energy bonds eligibility for pumped storage technology will help unlock the country’s clean energy potential. 

    “Further development of pumped storage is essential to the overall reliability of the nation’s power grid, as well as to integration of clean and renewable energy resources at a larger scale. 

    “NHA strongly supports this bill and commends the work by Representatives Gibson and Thompson. We look forward to working with them and other lawmakers to advance this important legislation through the House as soon as possible.”


    Washington Barriers to Prosperity and Property Rights in the West
    “We are not here today to question the merits of protecting our environment.  We all support clean air and water and the protection of our treasured landscapes and resources.  But we must be concerned when enforcement starts becoming an end unto itself and we start ignoring the impacts that arbitrary, heavy-handed federal enforcement can have on the lives of people and their communities,” said Sen. Crapo

    ...we don’t know how many of these orders are based on real environmental facts, or on superficial, shoddy, drive-by reviews..."Whether it’s the top-down edicts from Washington over the Endangered Species Act, or the arbitrary nature of the  federally imposed gridlock... These policies and that kind of arrogant disregard for the people most impacted by the promulgation of these policies must change”


    Video: Bicameral hearing takes testimony from Idahoans impacted by EPA


    Video: Bicameral hearing takes testimony from Idahoans impacted by EPA


    California 2010 Integrated Report( 303(d)
    Water Body Name: Sacramento River

    Region 5 (Keswick Dam to Cottonwood Creek)
    Water Body ID: CAR5081000019990126144739
    Water Body Type: River & Stream
    DECISION ID 4124 Pollutant: Copper
    Final Listing Decision: Delist from 303(d) list
    DECISION ID 4125 Pollutant: Cadmium
    Final Listing Decision: Delist from 303(d) list

    DECISION ID 4070 Pollutant: Zinc
    Final Listing Decision: Delist from 303(d) list
    (being addressed by USEPA approved TMDL)
    Based on the readily available data and information,
    the weight of evidence indicates that there is sufficient justification for removing this water segment pollutant
    combination from the section 303(d) list.
    This conclusion is based on the staff findings that:
    1. The data used satisfies the data quality requirements of section 6.1.4 of the Policy.
    2. The data used satisfies the data quantity requirements of section 6.1.5 of the Policy.
    3. None of 31 samples exceeded the chronic or acute criteria and this does not exceed the allowable frequency listed in Table 4.1 of the Listing Policy.
    4. Pursuant to section 4.11 of the Listing Policy, no additional data and information are available indicating that standards are not met.

    QAPP Information: Frontier Geosciences;
    Data quality requirements acceptable.
    City of Redding monitoring QAP (Redding, 2007)
    Last Listing Cycle's     QAPP Information:
    List on 303(d) list
    (being addressed by USEPA approved TMDL)(2006)
    Revision Status Revised
    This LOE is a placeholder to support a 303(d) listing
    decision made prior to 2006.
    Objective/Criterion Reference: Water Quality Standards 2000. Establishment of numeric criteria for
    priority toxic pollutants for the State of California: Rules and regulations. Federal Register Vol. 65, No. 97. Washington, D.C.: Environmental Protection Agency
    Central Valley Regional Water Quality Control Board. Water Quality Control Plan (Basin Plan) for the California Regional Water Quality Control Board - Central Valley Region

    Quality: QAPP Information: QA Info Missing
    Final Listing Decision: Delist from 303(d) list


    Performance Standards. A remedial action agreement is required to comply with applicable or relevant and appropriate requirements (ARARs). 42 U.S.C. §9621(d)(2)(A).

    Steps to Improve Information Transparency

    With the recent presidential memorandum directing agencies to reform and modernize records management practices, you need to respond with a plan that includes assessing and managing your records and information landscape for both paper and electronic formats. A well managed program will not only be more efficient and cost effective, but also promote openness and accountability – “good records management is the backbone of open government”.

    Join Iron Mountain for a Webinar entitled, Responding to the New Presidential Memo: Steps to Improve Information Transparency. Featuring Adelaide O'Brien, Research Director, Government Services Delivery, IDC Government Insights, during the webinar she will highlight recent focus group findings on Open Government and Freedom of Information Act (FOIA).

    During the webinar learn strategies that will help you respond to the memo with confidence:

    • Employ best practices for record identification and public posting
    • Understand steps agencies are taking to apply the presumption of openness and increase proactive disclosure
    • Ensure that your response to requests is effective and efficient - reducing backlogs and improving timeliness

    Related Webcasts


    EPA delivers 'CARE' package

    By Jill Keppeler

    “A good environmental record is a hallmark of a responsible company.”

    “The EPA is proud to support this initiative,” she said. “This is a model for the rest of the country.”


    LAUDING GRASSROOTS EFFORT: Judith Enck, Environmental Protection Agency regional administrator, speaks Monday at the Sheridan Parkside Community Center in the Town of Tonawanda. The CAC and the EPA announced a $100,000 federal Community Action for a Renewed Environment grant designed to bring together residents to identify, address and prioritize local environmental issues.


    Federal Agency Construction Standards

    Also visit the FEMA Index of Earthquake Publications and the NEHRP Clearinghouse.

    New! Seismic Design Requirements (H-18-8) Seismic Design Requirements PDF 1.5MB H-18-8
    New! Standards of Seismic Safety for Existing Federally Owned and Leased Buildings (NISTIR 11-917-12 / ICSSC RP 8) Standards of Seismic Safety for Existing Federally Owned and Leased Buildings PDF 593KB NIST GCR 11-917-12
    (ICSSC RP 8)
      Standards of Seismic Safety for Existing Federally Owned and Leased Buildings (NISTIR 6762 / ICSSC RP 6) Standards of Seismic Safety for Existing Federally Owned and Leased Buildings PDF 9MB NISTIR 6762
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    FEMA logo NIST logo NSF logo USGS logo

    SITE INSPECTION SUMMARY
    IRON MOUNTAIN MINE FIVE-YEAR REVIEW

    The Oversight Agency will secure permission for the Site Operator to enter and perform
    Work at the property owned by Iron Mountain Mines, Inc., T.W. Arman, the United
    States, or the State (if any), including the facilities, plant and equipment located thereon
    (and necessary to carry out the actions of the SOW and Consent Decree) for the sole
    purpose of permitting the Site Operator to carry out the Work under the SOW and
    Consent Decree.

    11.0 Brick Flat Pit
    The amount of leachate has decreased significantly at Brick Flat Pit. Throughout 2005, IMO
    noted in the Monthly Progress Reports that minimal flow was occurring at leachate
    Monitoring Sump 8R and low to minimal flow was observed from the Brick Flat Pit
    Spillway System. Minimal leachtate flow rates have continued to occur. During the
    October 26, 2005, meeting with AIG, EPA, IMO, and CH2M HILL (CH2M HILL, 2005), two
    possible reasons for reduced leachate flow were discussed: (1) the leachate piping has
    malfunctioned, or (2) the amount of leachate has decreased as a result of the thickness of the
    overlying sludge, and the water is exiting the pit through the unlined sidewalls of the pit.
    The Brick Flat Pit liner extends 10 feet from the bottom of the pit. The sludge is currently
    about 80-feet thick.
    IMO has conducted monitoring, but has not identified seeps around Brick Flat Pit. IMO has
    performed phosfluorescent dye studies on the drainage system in an attempt to trace the
    pathway of seepage from Brick Flat Pit. The phosfluorescent dye was a dye that is typically
    used in sewer tracer studies. The dye has not been detected at potential exit points,
    including AMD collected from the Richmond Mine. The dye might be diluted to below
    detectable limits by other flows in the Richmond Mine or degraded during contact with
    low-pH waters. IMO has monitored the water level in the leachate riser pipe, and no standing
    water has been detected. IMO has poured water into the leachate riser pipes, and the water
    has been observed to flow over the weir, indicating that the leachate pipelines are not broken.
    IMO thinks, but has not been able to verify, that drainage from Brick Flat Pit is entering
    stopes of the Richmond Mine, through the highly fractured north slope of Brick Flat Pit
    (Carver, 2008).
    Brick Flat Pit is considered a dry landfill (EPA, 2000). The location of Brick Flat Pit was
    determined to be an effective sludge disposal location because drainage, If not captured,
    would reenter the ore body and be captured by the AMD treatment system (EPA, 1986), or
    would be discharged to the Slickrock Creek drainage, which is currentiy captured for
    treatment by SCRR.
    Section 6.4 (Landfill Management Report and Plan) of the SOW (EPA, 2000) requires that
    "by November 30 of each year, the Site Operator shall provide to the Oversight Agency, for
    Oversight Agency review and approval, the Landfill Management Report and Plan". As
    described in the SOW, The Landfill Management Report and Plan is an annual report that
    enables the Oversight Agency to effectively evaluate whether the Brick Flat Pit landfill was
    properly managed, consistent with the concept design for a dry landfill, over the preceding
    twelve (12)-month period, and that the landfill will be properly managed as a dry landfill
    over the upcoming twelve (12)-month period. The Operations and Maintenance Submittal
    Register of the IMO Febmary 2008 Monthly Progress Report (Table 10 of IMO, 2008g) indicates
    that the most recent Landfill Management Report and Plan was submitted in January 2004
    (IMO, 2004).

    2.2 Statement of Work Requirements
    Section 9.10.2.3 (Non-routine O&M Requirements for the Upper Spring Creek Diversion) of
    the SOW requires the following:
    "Over the next 3 years, the Site Operator shall perform necessary studies and implement a
    satisfactory repair program to restore the RCCP lining system or, as necessary, replace the
    RCCP lining system by December 2003."
    Studies and evaluations performed by the Site Operator indicated that it would be costly to
    restore or replace the pipeline liner system. Achieving adequate and long-term bonding of a
    pipeline lining to concrete pipeline material is technical challenging. For these reasons, the
    comprehensive liner repair program, as described in the SOW, has not been conducted. As
    discussed in the following section, IMO's current approach is an annual pipeline inspection
    and pipeline repair process to maintain the structural integrity of the pipeline.

    "operation of the MFTP over the last 5 years demonstiates that HDS
    metal removal can not achieve the initial BAT effluent limits for dissolved zinc or the BAT
    30-day average limit for dissolved cadmium.    " 

    h. A certificate executed by the Site Operator's Project Manager, with the power to
    bind the Site Operator, warranting that, during the billing period, the Site Operator
    has performed all of its obligations under this SOW, and a summary in a form
    acceptable to the Oversight Agency detailing the costs expended during that period
    with respect to the Site and certifying that such sums were actually expended. (pg. 27, statement of work)

    6.8 Quality Assurance Project Plan ("QAPP")
    1. In general, the Site Operator may, for the development of its own Quality Assurance
    Project Plan(s) ("QAPP(s)") rely on the existing QAPPs in use for various projects and
    procedures at the Site, to the extent they are applicable and meet the requirements of
    this SOW.
    2. The Site Operator shall use quality assurance, quality control, and chain-of-custody
    procedures for all samples that may be required to be taken under this SOW or O&M
    Work Plan in accordance with:
    a. EPA Requirements for Quality Assurance Project Plans for Environmental Data
    Operation, (EPA QA/R5);
    b. Preparing Perfect Project Plans, QAMS-005/80; and (EPA /600/9-88/087); and
    c. Subsequent amendments to such guidelines upon notification by the Oversight
    Agency to the Site Operator of such amendment. Amended guidelines shall apply
    only to procedures conducted after such notification.
    3. Prior to the commencement of any monitoring project under this SOW or RA activities
    with construction costs exceeding $50,000 (adjusted based on the Inflation Escalator),
    the Site Operator shall submit to the Oversight Agency for approval a QAPP that is
    consistent with this SOW, the NCP, and applicable guidance documents.
    4. If relevant to the proceeding, the Parties agree that validated sampling data generated
    in accordance with the QAPP(s) and reviewed and approved by the Oversight Agency
    shall be admissible as evidence, without objection, in any proceeding under the Consent
    Decree. The Site Operator shall ensure that the Oversight Agency, State personnel, and
    their authorized representatives are allowed access at reasonable times to all laboratories
    utilized by the Site Operator for analyses.
    5. The Site Operator shall ensure that the laboratories it utilizes analyze all samples
    submitted by the Oversight Agency pursuant to the QAPP for quality assurance monitoring.
    The Site Operator shall ensure that such laboratories perform all analyses
    according to accepted EPA methods for the analysis of samples taken pursuant to this
    SOW and the Consent Decree.(pg. 28, statement of work)

    6.10 Modification of Work Plans
    1. The Site Operator is responsible for ensuring that the management plans are current
    and reflect the experience gained during plant operation. If, as a result of experience
    gained from plant operation, the Site Operator comes to believe that the project Performance
    Standards or monitoring procedures should be modified, the Site Operator
    may submit a request to the Oversight Agency to approve a change in the standards or
    procedures. The request shall contain sufficient information to allow the Oversight
    Agency to determine the appropriateness of the requested changes. A decision of the
    Oversight Agency regarding modification of Performance Standards pursuant to this
    paragraph shall not be subject to Dispute Resolution or judicial review.

    6.11 Offsite Shipment
    1. All materials removed from the Site shall be disposed of or treated at a facility
    approved by the Oversight Agency's Project Manager and in accordance with Section
    121(d)(3) of CERCLA, 42 U.S.C. § 9621(d)(3); with the U.S. EPA "Revised Offsite
    Policy," OSWER Directive 9834.11, November 13,1987; and with all other applicable
    federal (including the U.S. Department of Transportation), State, and local
    requirements.(pg. 29, statement of work)

    2. The Site Operator shall, prior to any offsite shipment of Waste Material from the Site to
    an out-of-state waste management facility, pursuant to the O&M Work Plan developed
    pursuant to this SOW or any modification thereto, provide written notification to the
    appropriate state environmental official in the receiving facility's state and to the Project
    Coordinator of such shipment of Waste Material. However, this notification
    requirement shall not apply to any offsite shipments when the total volume of all such
    shipments will not exceed 10 cubic yards.
    3. The Site Operator shall include in the written notification required by Section 6.11(2) the
    following information, where available: (a) the name and location of the facility to
    which the Waste Material are to be shipped; (b) the type and quantity of the Waste
    Material to be shipped; (c) the expected schedule for the shipment of the Waste
    Material; and (d) the method of transportation. The Site Operator shall notify the state
    in which the planned receiving facility is located of major changes in the shipment plan,
    such as a decision to ship the Waste Material to another facility within the same state, or
    to a facility in another state.
    4. With respect to shipments to out-of-state facilities, the identity of the receiving facility
    and state will be determined by the Site Operator following Oversight Agency approval
    of the O&M Work Plan or any modification thereto. The Site Operator shall provide the
    information required by Section 6.11(3) at least sixty (60) days prior to planned
    shipment of the Waste Material.(pg. 30, statement of work)

    7.3 Site Access and Data/Document Availability/
    Institutional Controls
    1. The Site Operator shall provide the Oversight Agency, the Support Agency, and their
    representatives with access at all reasonable times to the Site, or such other property, to(pg. 31, statement of work)

    conduct any activity related to this SOW, including but not limited to, the following
    activities:
    a. Monitoring the Work;
    b. Verifying any data or information submitted to the Oversight Agency or the Support
    Agency;
    c. Conducting investigations relating to contamination at or near the Site;
    d. Obtaining samples;
    e. Assessing the need for, planning, or implementing additional response actions at or
    near the Site;
    f. Implementing response activities at the Site;
    g. Inspecting and copying records, operating logs, contracts, or other documents
    maintained or generated by the Site Operator or its agents, consistent with Section
    7.4, Access to Information;
    h. Assessing the Site Operator's compliance with the Consent Decree and SOW;
    i. Determining whether the Site or other property is being used in a manner that is
    prohibited or restricted, or that may need to be prohibited or restricted, by or pursuant
    to this SOW;
    j. Conducting tests as the Oversight Agency or its authorized representatives or contractors
    deem necessary; and
    k. Using a camera, sound recording device, or any other documentary type
    equipment.
    2. Commencing on the date of the Consent Decree, the Site Operator shall refrain from
    using the Site, or such other property, in any manner that would interfere with or
    adversely affect the integrity or protectiveness of the remedial measures to be implemented
    pursuant to the Consent Decree and SOW.
    3. If the Site Operator acquires any ownership or other property interest in the Site, or any
    other property where access and/or land/water use restrictions are needed to implement
    the Consent Decree, the Site Operator shall:
    a. Upon acquiring such interest, provide the Oversight Agency, the Support Agency
    and their authorized representatives with access at all reasonable times to the Site,
    or such other property, for the purpose of conducting any activity related to this
    SOW and the Consent Decree including, but not limited to, the activities listed in
    Section 7.3(1); and
    b. In coordination with the Oversight Agency and the Support Agency, take
    appropriate steps to ensure the long-term enforceability of access and institutional
    controls with respect to such property, including, but not limited to, appropriate
    deed notices and other actions.

    4. The Oversight Agency will secure permission for the Site Operator to enter and perform
    Work at the property owned by Iron Mountain Mines, Inc., T.W. Arman, the United
    States, or the State (if any), including the facilities, plant and equipment located thereon
    (and necessary to carry out the actions of this SOW and Consent Decree) for the sole
    purpose of permitting the Site Operator to carry out the Work under this SOW and
    Consent Decree.
    5. To the extent that access and/or land/water use restrictions at property not owned by
    the Site Operator and not at the property referenced in Section 7.3(4) are needed to
    implement the Consent Decree or this SOW, the Site Operator shall use its best efforts to
    secure from persons who own such property, to the extent determined by the Oversight
    Agency to be necessary, as applicable:
    a. An agreement to provide access thereto for the Site Operator, as well as for the
    United States and the State, and their representatives (including contractors), for
    the purpose of conducting any activity related to the Consent Decree including, but
    not limited to, those activities listed in Section 7.3(1) of this SOW;
    b. An agreement, enforceable by the Site Operator, the United States, and the State to
    abide by the obligations and restrictions established by Section 7.3(2) of this SOW,
    or that are otherwise necessary to implement, ensure non-interference with, or
    ensure the protectiveness of the activities to be performed pursuant to the Consent
    Decree;
    c. The execution and recordation in the Recorder's Office of Shasta County,
    California, of an easement, running with the land, that (i) grants a right of access
    for the purpose of conducting any activity related to this SOW and the Consent
    Decree including, but not limited to, those activities listed in Section 7.3(1) of this
    SOW, and (ii) grants the right to enforce the land/water use restrictions that the
    Oversight Agency and the Support Agency, as appropriate, determine are necessary
    to implement, ensure non-interference with, or ensure the protectiveness of
    the activities to be performed pursuant to the Consent Decree or this SOW;
    d. The access rights and/or rights to enforce land/water use restrictions shall be
    granted to (i) the United States, on behalf of its representatives, (ii) the State and its
    representatives, and (iii) other appropriate grantees, as determined by the
    Oversight Agency; and
    e. If the Oversight Agency so requests, within sixty (60) days of notice from the
    Oversight Agency that access is required, the Site Operator shall submit to the
    Oversight Agency and the Support Agency, as appropriate, for review and
    approval with respect to such property:
    i. A draft easement that is enforceable under the laws of the State of California,
    free and clear of all prior liens and encumbrances (except as approved by the
    Oversight Agency), and acceptable under the Attorney General's Title Regulations
    promulgated pursuant to 40.U.S.C. Section 255; and
    ii. A current title commitment or report prepared in accordance with the U.S.
    Department of Justice Standards for the Preparation of Title Evidence in Land(pg. 36)


    Acquisitions by the United States (1970) (the "Standards"). Within fifteen (15)
    days of approval by the Oversight Agency and the Support Agency, as
    appropriate, and acceptance of the easement, the Site Operator shall update
    the title search and, if it is determined that nothing has occurred since the
    effective date of the commitment or report to affect the title adversely, the
    easement shall be recorded with the Recorder's Office of Shasta County.
    Within thirty (30) days of the recording of the easement, the Site Operator
    shall provide the Oversight Agency and the Support Agency, as appropriate,
    with final title evidence acceptable under the Standards and a certified copy
    of the original recorded easement showing the clerk's recording stamps.
    6. If any access or land/water use restriction agreements required by Section 7.3(5) of this
    SOW are not obtained within the time specified in this SOW, or any access easements or
    restrictive easements required by this SOW are not submitted to the Oversight Agency
    in draft form within the time specified in this SOW, the Site Operator shall promptly
    notify the Oversight Agency and Support Agency in writing and shall include in that
    notification a summary of the steps that the Site Operator has taken to attempt to
    comply with Section 7.3(5) of this SOW. The United States and the State, as they deem
    appropriate, may assist the Site Operator in obtaining access or land/water use
    restrictions, either in the form of contractual agreements or in the form of easements
    running with the land, or by utilizing appropriate enforcement mechanisms.
    7. For purposes of Section 7.3(5) of this SOW only, "best efforts" includes the payment of
    reasonable sums of money in consideration of access, access easements, land/water use
    restrictions, and/or restrictive easements.
    8. Notwithstanding any provision of this SOW, the United States and the State retain all of
    their access authorities and rights, as well as all of their rights to require land/water use
    restrictions, including enforcement authorities related thereto, under CERCLA, RCRA,
    and any other applicable federal or State law, statutes, or regulations.
    9. During any future field work conducted by the Oversight Agency or its representatives
    to perform Remedial Investigations, Remedial Designs, Remedial Actions, or other
    projects, the Site Operator shall cooperate with the Oversight Agency to coordinate Site
    operations and to facilitate the activities to be performed by the Oversight Agency or
    its representatives. To the extent that the Oversight Agency activities require the use of
    water supplies from the existing water tanks (near the treatment plant and near the
    Richmond Portal) or other water sources, the Site Operator shall maintain the clean
    water delivery systems at no charge to the Oversight Agency, provided that the use of
    the clean water systems does not impose an undue impact to those systems. The Oversight
    Agency shall have the right to make use of the Site roadways and shall repair the
    roadways if damaged by the Oversight Agency activities. If electrical power is required
    during the performance of the Oversight Agency activities, the Oversight Agency shall
    have the right to use the electrical systems and compensate the Site Operator only for
    the power consumption costs for the Oversight Agency activities.(pg. 37)

    7.4 Access to Information
    1. The Site Operator shall provide to the Oversight Agency and the Support Agency, upon
    request, copies of all documents and information within its possession or control or that
    of its contractors or agents relating to activities at the Site or to the implementation of
    the Consent Decree or this SOW, including, but not limited to, sampling, analysis,
    chain-of-custody records, manifests, trucking logs, receipts, reports, sample traffic
    routing, correspondence, all operations and operators' logs, or other documents or
    information related to the activities required under the Consent Decree and SOW or
    previously conducted at the Site. The Site Operator shall also make available to the
    Oversight Agency and the Support Agency, their employees, agents, or representatives,
    knowledge of relevant facts concerning the performance of the activities required by the
    Consent Decree and SOW for purposes of investigation or information gathering.
    2. The Site Operator may assert business confidentiality claims covering part or all of the
    documents or information submitted to the Oversight Agency and the Support Agency
    under this SOW or the Consent Decree to the extent permitted by and in accordance
    with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b).
    Documents or information determined to be confidential by the Oversight Agency will
    be afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality
    accompanies documents or information when they are submitted to the
    Oversight Agency and the Support Agency, or if the Oversight Agency has notified the
    Site Operator that the documents or information are not confidential under the standards
    of Section 104(e)(7) of CERCLA, the public may be given access to such documents
    or information without further notice to the Site Operator.
    3. The Site Operator may assert that certain documents, records, and other information are
    privileged under the attorney-client privilege or any other privilege recognized by
    federal law. If the Site Operator asserts such a privilege in lieu of providing documents,
    the Site Operator shall provide the following: (a) the title of the document, record, or
    information; (b) the date of the document, record, or information; (c) the name and title
    of the author of the document, record, or information; (d) the name and title of each
    addressee and recipient; (e) a description of the contents of the document, record, or
    information: and (f) the privilege asserted by the Site Operator. However, no documents,
    reports, or other information that are created or generated pursuant to the
    specific requirements of the Consent Decree and SOW shall be withheld on the grounds
    that they are privileged.
    4. No claim of confidentiality shall be made with respect to any data, including but not
    limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or
    engineering data, cost data relating to the Work excepting cost data related to wages,
    overhead rates, and profit, or any other documents or information evidencing conditions
    at or around the Site.
    7.5 Record Preservation
    1. Until 10 years after receipt of the Oversight Agency's notification pursuant to Section
    7.14, Completion of Work, the Site Operator shall preserve and retain all records and
    documents now in its possession or control or that come into its possession or control

    that relate in any manner to the performance of activities at the Site, regardless of any
    corporate retention policy to the contrary. The Site Operator shall also instruct its subcontractors
    and agents to preserve all documents, records, and information of whatever
    kind, nature, or description relating to the performance of activities at the Site for a
    period of 10 years after the contractor or subcontractor has completed Work under this
    SOW. Notwithstanding the requirements of this Section, the Oversight Agency may, at
    its discretion, agree to shorten the records retention period or otherwise limit the obligations
    of this Section.
    2. At the conclusion of the applicable document retention periods specified above, the Site
    Operator shall notify the Oversight Agency and the Support Agency at least ninety (90)
    days prior to the destruction of any such records or documents and, upon request by
    the Oversight Agency and the Support Agency, shall deliver any such records or documents
    to the Oversight Agency and the Support Agency. The Site Operator may assert
    that certain documents, records, and other information are privileged under the attorney-
    client privilege or any other privilege recognized by federal law. If the Site Operator
    asserts such a privilege, it shall provide the following: (a) the title of the document,
    record, or information; (b) the date of the document, record, or information; (c) the
    name and title of the author of the document, record, or information; (d) the name and
    title of each addressee and recipient; (e) a description of the subject of the document,
    record, or information; and (f) the privilege asserted by the Site Operator. However, no
    documents, reports or other information that are created or generated pursuant to the
    specific requirements of the Consent Decree and SOW shall be withheld on the grounds
    that they are privileged.
    7.6 Public Information and Meetings
    1. The Site Operator shall cooperate with the Oversight Agency in providing information
    regarding the Work to the public.
    2. As requested by the Oversight Agency, the Site Operator shall participate in the preparation
    of such information for distribution to the public and in public meetings that may
    be held or sponsored by the Oversight Agency to explain activities at or relating to the
    Site.
    7.7 Remedy Review and Future Remedial Action
    1. The Site Operator shall provide the Oversight Agency with any information available to
    the Site Operator that may assist the Oversight Agency in conducting any studies and
    investigations that may be appropriate to permit the Oversight Agency to conduct
    reviews of whether the remedial actions set forth in RODs 1 through 4 are protective of
    human health and the environment, at least every 5 years as required by Section 121 (c)
    of CERCLA and any applicable regulations; provided, however, that the Site Operator
    shall not be required to expend more than $5,000 (adjusted for the Inflation Escalator)
    per each 5-year review period assisting in any one EPA review.
    2. The Oversight Agency may select further response actions for the Site in accordance
    with the requirements of CERCLA and the NCP. Unless otherwise agreed by the Oversight
    Agency and the Site Operator, further response actions, including any further

    response actions implemented through future records of decision (such as decisions
    that address the Boulder Creek area sources and downstream sediments), or a modification,
    amendment or explanation of significant differences (ESD) of the RODs, neither
    diminish nor increase the scope of the Site Operator's obligations under this SOW.
    7.8 Primary Oversight Agency
    1. The Work is subject to oversight by the Oversight Agency. The Oversight Agency is the
    only state or federal agency authorized to direct the Site Operator with regard to the
    Site Operator's obligations under this SOW and the Consent Decree. The Oversight
    Agency is the agency authorized to give directions with regard to the Site Operator's
    obligations under this SOW and the Consent Decree on behalf of all participating
    government agencies. At the time the parties sign the Consent Decree, the Oversight
    Agency shall be the EPA. At some time in the future, the State and federal governments
    may change the Oversight Agency to a State or federal agency other than EPA. The
    relationship between the Oversight Agency and the Support Agency with respect to
    this SOW and Consent Decree are governed by the EPA/State MOU. A change in Oversight
    or Support Agency is not subject to Dispute Resolution by the Site Operator.
    2.
    U i I *-> J I M. J L
    The governments will provide reasonable notice to the Site Operator if the governments
    change the Oversight Agency.
    7.9 Support Agency Participation
    1. The State of California, on behalf of DTSC and RWQCB, shall designate one of these
    two agencies to be the Support Agency for the Site during the period of time that EPA
    serves as the Oversight Agency. The State will provide notice to the Oversight Agency
    and the Site Operator of which State agency shall be the Support Agency. The State may
    change the Support Agency. A change in the Support Agency is not subject to Dispute
    Resolution by the Site Operator.
    2. The governments will provide reasonable notice to the Site Operator if the governments
    change the Support Agency.
    3. The Site Operator shall submit copies of documents submitted for Oversight Agency
    review pursuant to Section 6, Management Plans and Reports, and other documents
    requested, to the Support Agency at the same time the documents are submitted to the
    Oversight Agency.
    4. The Support Agency shall have the right to participate in all meetings and inspections
    required by this SOW.
    5. The Support Agency shall have a Support Agency Project Manager. The Support
    Agency will provide to the Oversight Agency and the Site Operator the name and
    address of the Support Agency Project Manager.
    6. The relationship between the Oversight Agency and the Support Agency is addressed
    in the EPA/State MOU.

    7.10 Compliance with Applicable Laws
    1. All activities by the Site Operator pursuant to this SOW shall be performed in accordance
    with the requirements of all federal and state laws and regulations. EPA has
    determined that the activities contemplated by this SOW are consistent with the NCP.
    2. As provided in Section 121(e) of CERCLA and Section 300.400(e) of the NCP, no permit
    shall be required for any response actions conducted entirely onsite (i.e., within the
    areal extent of contamination and all suitable areas in very close proximity to the contamination
    and necessary for implementation of such response actions) where such
    action is selected and carried out in accordance with Section 121. Where any activity
    that is not onsite (as defined in this SOW) requires a federal or state permit or approval,
    the Site Operator shall submit timely and complete applications and take all other
    actions necessary to obtain all such permits or approvals.
    3. This SOW is not, and shall not be construed to be, a permit issued pursuant to any
    federal or state statute or regulation.
    4. The requirement of the Site Operator to perform all activities in this SOW in accordance
    with the requirements of all federal and state laws and regulations, as stated in Section
    7.10(1) above, is subject to the provisions of Section 7.7(2) (relating to future remedial
    action) and Section 8.1(2) (relating to compensation associated with changes in Performance
    Standards imposed by the Oversight Agency).
    7.11 Oversight Agency Approval of Plans and Submissions
    1. In reviewing any plan, report, or other item which is required to be submitted for
    approval pursuant to this SOW or the Consent Decree, the Oversight Agency will consider
    whether the submittal will achieve the Performance Standards and other
    requirements of this SOW in a highly reliable manner based on sound technical and/or
    engineering practices.
    2. After review of any plan, report, or other item which is required to be submitted for
    approval pursuant to this SOW and Consent Decree, the Oversight Agency, after reasonable
    opportunity for review and comment by the Support Agency, shall:
    a. Approve, in whole or in part, the submission;
    b. Approve the submission upon specified conditions;
    c. Modify the submission to cure the deficiencies;
    d. Disapprove, in whole or in part, the submission, directing that the Site Operator
    modify the submission; or
    e. Any combination of the above.
    However, the Oversight Agency shall not modify a submission without first providing
    the Site Operator at least one notice of deficiency and an opportunity to cure within
    sixty (60) days, except where to do so would cause serious disruption to the activities
    being undertaken pursuant to the Consent Decree and SOW or where previous
    submission(s) have been disapproved due to material defects and the deficiencies in the

    submission under consideration indicate a bad faith lack of effort to submit an
    acceptable deliverable.
    3. In the event of approval, approval upon conditions, or modification by the Oversight
    Agency, pursuant to Section 7.11 (2) (a, b, or c), the Site Operator shall proceed to take
    any action required by the plan, report, or other item, as approved or modified by the
    Oversight Agency, subject only to its right to invoke the Dispute Resolution procedures
    set forth in Section XIX (Dispute Resolution) of the Consent Decree with respect to the
    modifications or conditions made by the Oversight Agency and subject to Section 7.12
    regarding the performance of disputed Work. In the event that the Oversight Agency
    modifies the submission to cure the deficiencies pursuant to Section 7.11(2)(c) and the
    submission has a material defect, the Oversight Agency retains its right to seek stipulated
    penalties, as provided in Section XX (Stipulated Penalties) of the Consent Decree.
    4. Upon receipt of notice of disapproval pursuant to Section 7.11(2)(d), the Site Operator
    shall, within thirty (30) days or such longer time as specified by the Oversight Agency in
    such notice, correct the deficiencies and resubmit the plan, report, or other item for
    approval. Stipulated penalties applicable to the submission, as provided in Section XX of
    the Consent Decree, shall accrue during the 30-day period or otherwise specified period,
    but shall not be payable unless the resubmission is disapproved or modified due to a
    material defect as provided in Section 7.11(2) or Section 7.11(7).
    5. Notwithstanding the receipt of a notice of disapproval pursuant to Section 7.11(2)(d), the
    Site Operator shall proceed, at the direction of the Oversight Agency, to take any action
    required by any non-deficient portion of the submission. Implementation of any nondeficient
    portion of a submission shall not relieve the Site Operator of any liability for
    stipulated penalties under Section XX (Stipulated Penalties) of the Consent Decree.
    6. In the event that a resubmitted plan, report, or other item, or portion thereof, is disapproved
    by the Oversight Agency, the Oversight Agency may again require the Site
    Operator to correct the deficiencies, in accordance with the preceding paragraphs. The
    Oversight Agency also retains the right to modify or develop the plan, report or other
    item. The Site Operator may invoke the procedures set forth in Section XIX (Dispute
    Resolution) of the Consent Decree to dispute a disapproval or modification under this
    Paragraph. The Site Operator shall implement any such plan, report, or item as modified
    or developed by the Oversight Agency except to the extent that the Site Operator
    invokes the procedures set forth in Section XIX (Dispute Resolution) of the Consent
    Decree. If the Site Operator invokes the Dispute Resolution procedures, the performance
    of Work in dispute shall be governed by Section 7.12.
    7. If upon resubmission, a plan, report, or item is disapproved or modified by the Oversight
    Agency due to a material defect, the Site Operator shall be deemed to have failed
    to submit such plan, report, or item timely and adequately unless the Site Operator
    invokes the Dispute Resolution procedures set forth in Section XIX (Dispute Resolution),
    and the Oversight Agency's action is overturned pursuant to that Section. The provisions
    of Section XIX (Dispute Resolution) and Section XX (Stipulated Penalties) of the
    Consent Decree shall govern the implementation of all activities pursuant to the Consent
    Decree and the accrual and payment of any stipulated penalties during Dispute Resolution.
    If the Oversight Agency's disapproval or modification is upheld, stipulated

    penalties shall accrue for such violation from the date on which the initial submission
    was originally required, as provided in Section XX of the Consent Decree.
    8. All plans, reports, and other items required to be submitted to the Oversight Agency
    under this SOW and the Consent Decree shall, upon approval or modification by the
    Oversight Agency, be enforceable under this SOW or the Consent Decree. In the event
    the Oversight Agency approves or modifies a portion of a plan, report, or other item
    required to be submitted to the Oversight Agency under this SOW or the Consent
    Decree, and the modification is upheld through Dispute Resolution (if applicable), the
    approved or modified portion shall be enforceable under this SOW or the Consent
    Decree.
    9. In connection with agency oversight of the Work, the Site Operator shall participate in
    conference calls and meetings, as necessary.
    10. Nothing contained in the Consent Decree or this SOW shall confer any benefit or right to
    any person or entity not a signatory to the Consent Decree, nor shall any such person or
    entity have any right to enforce the Consent Decree, this SOW, or any of the provisions
    of either of them. However, any federal or State agency designated as the Oversight
    Agency or Support Agency shall have all of the rights of any predecessor Oversight
    Agency regardless of whether the Oversight Agency or Support Agency was a signatory
    to the Consent Decree.
    7.12 Performance of Disputed Work
    1. During the Dispute Resolution under Section XIX of the Consent Decree, the Oversight
    Agency may elect to order the Site Operator to perform the Work directly in dispute and
    the Site Operator shall comply with the order to perform such Work. The Oversight
    Agency may also order the Site Operator to provide a cost estimate of the Work directly
    in dispute (under the procedures of Section 4.2.2). The Oversight Agency will not order
    the Site Operator to perform such Work unless the Oversight Agency has sufficient
    funds in the Iron Mountain Mines special account or accounts or sources of funds established
    pursuant to the Consent Decree to pay for the disputed Work (taking into account
    any avoided costs or savings), and so notifies the Site Operator in advance by providing
    the most current accounting statement from the Iron Mountain Mines special account or
    other funding source. If the Oversight Agency directs the Site Operator to perform such
    Work, such Work shall be Added Scope Work for purposes of Section 4.2 if the Site
    Operator establishes through Dispute Resolution that such Work is beyond the scope of
    this SOW. If the Site Operator does not establish that the Work is beyond the scope of
    this SOW, the Site Operator shall be responsible for the costs and expenses of the disputed
    Work.
    2. The invocation of Dispute Resolution does not relieve the Site Operator from meeting
    the Performance Standards or other requirements of this SOW.

    7.13 Assurance of Ability to Complete Work
    7.13.1 Purpose
    1. The Site Operator shall provide the Oversight Agency with the assurance that it has
    adequate financial capabilities to complete the Work required by this SOW. At the start
    of the Performance Period, the Policy, in combination with the Site Operator's compliance
    with the other insurance requirements contained in this SOW, will provide financial
    assurance that exceeds the Site Operator's projected cost of the Work under this
    SOW. In the event that the expected project completion costs for Work under this SOW
    exceeds the applicable limits remaining in the Policy, the Site Operator shall post
    financial assurance using one or more of the methods outlined in Section 7.13.4 of this
    SOW to the extent required by this Section to ensure completion of the Work under this
    SOW.
    7.13.2 Timing
    1. At the end of the Site Operator's 10th fiscal year, and every 3 years thereafter, the Site
    Operator shall prepare and submit to the Oversight Agency for review and approval a
    financial report comparing the funds available in the Policy with the current estimated
    cost to complete the Work under this SOW. If the report indicates that financial
    assurance is required, then the Site Operator shall post the required financial assurance
    within ninety (90) days after the close of the Site Operator's fiscal year.
    7.13.3 Method of Calculation for Presumed Current Completion Costs
    1. This Section sets forth the method for calculating the expected project completion costs
    ("Current Project Completion Costs") and the amount of financial assurance required in
    the event that project completion costs exceed the remaining policy limits. The method
    of calculating the Current Project Completion Costs is presumed to be sufficiently accurate,
    but the parties may use another, reasonable method of calculating the expected
    project completion costs if factors indicate that the presumed method of calculation significantly
    misstates the actual cost to complete. In that event, the Oversight Agency may
    approve use of another, reasonable method of calculating the expected cost of project
    completion.
    2. Beginning with the fiscal year ended December 31,2001, the Site Operator shall, on an
    annual basis, convert the total costs for each fiscal year back to Year 2000 dollars by discounting
    (using the increase in the CPI-U from December 2000) the actual costs and fees
    (including markups) incurred by the Site Operator in each fiscal year; provided, however,
    the Site Operator shall not be required to include any increase in the CPI-U for the
    fiscal year ending December 31,2001. For example, if the total cost at Year 2 was
    $5 million and the CPI-U has increased by 5 percent since 2000, the figure for Year 2 is
    discounted back to Year 2000 dollars using the following formula: $5M/1.05. This figure
    shall be the "Real Dollar Cost" for that given year.
    3. The Site Operator shall sum the Real Dollar Cost for each year and determine the average
    Real Dollar Cost by dividing the total sum by the number of years in the set. This
    average will be the "Real Dollar Average Cost."

    4. The Site Operator shall convert the Real Dollar Average Cost to the then-current dollars
    by inflating the Real Dollar Average Cost to current dollars. This calculation is performed
    by multiplying the Real Dollar Average Cost by the percentage increase in the
    CPI-U since December 2000. This figure will be the "Current Dollar Average Cost." For
    example, if the Real Dollar Average Cost over the first 10 years is $5 million and the
    CPI-U has increased by 15 percent by Year 10, the Current Dollar Average Cost would
    be calculated as follows: $5M x 1.15.
    5. The Site Operator shall assume that the Current Dollar Average Cost reflects the average
    future costs and that future inflation is 3.25 percent per year. The expected future project
    costs are calculated by taking the sum of the expected future costs by adjusting the
    Current Dollar Average Cost using a 3.25 percent inflation factor for each year remaining
    in the program. For example, if there were 3 years left in the program and the
    Current Dollar Average Cost were $10 million, the calculation would be as follows:
    10M x 1.0325 + 10M x 1.03252 + 10M + 1.03253.
    6. The figure calculated in this manner shall be presumed to be the Current Cost of Completion
    unless there is strong evidence that the figure should be modified. Factors that
    may justify a modification to this calculation include:
    a. Whether the rainfall over the entire period has been significantly above or below the
    historic average rainfall;
    b. Whether there is a new technology that has demonstrated an expected significant
    cost savings or cost increase relative to the historic costs;
    c. Whether the Site conditions have changed in a significant manner that translates into
    demonstrated increased or decreased costs relative to the historic costs;
    d. Whether an extremely low probability and very high cost event has occurred; and
    e. Whether there are factors that have occurred since the project start that provide
    strong evidence that the cost of completion should be modified.
    If such factors exist, the Current Cost of Completion may be modified as appropriate
    to reflect such factors.
    7. If the Current Cost of Completion is equal to or less than the remaining applicable limits
    of the Policy, the Site Operator shall not be obligated to post financial assurance in
    addition to the Policy.
    8. If the Current Cost of Completion is greater than the remaining applicable limits of the
    Policy, then the Site Operator shall post financial assurance in an amount equal to the
    difference between the Current Cost of Completion and the remaining limits of the
    Policy.

    7.13.4 Form of Financial Assurance
    1. If the Site Operator is required to post financial assurance under this Section, the Site
    Operator shall establish and maintain financial security in one or more of the following
    forms:
    a. A surety bond guaranteeing performance of the activities to be undertaken pursuant
    to the Consent Decree and this SOW;
    b. One or more irrevocable letters of credit equaling the total estimated cost of such
    activities;
    c. A trust fund;
    d. A guarantee to perform the activities required under the Consent Decree and this
    SOW by one or more parent corporations or subsidiaries, or by one or more unrelated
    corporations that have a substantial business relationship with the Site
    Operator;
    e. A demonstration that the Site Operator satisfies the requirements of 40 C.F.R.
    Part 264.143(f); or
    f. An appropriate insurance vehicle satisfactory to the Oversight Agency.
    2. If the Site Operator seeks to demonstrate the ability to complete the activities required
    by the Consent Decree and this SOW through a guarantee by a third party pursuant to
    Section 7.13.4(l)(d), above, the Site Operator shall demonstrate that the guarantor satisfies
    the requirements of 40 C.F.R. Part 264.143(f). If the Site Operator seeks to demonstrate
    its ability to complete the activities required by the Consent Decree and this SOW
    by means of the financial test or the corporate guarantee pursuant to Section 7.13.4(l)(d)
    or, it shall resubmit sworn statements conveying the information required by 40 C.F.R.
    Part 264.143(f) annually, on the anniversary of the Effective Date of this SOW. In the
    event that the Oversight Agency, after a reasonable opportunity for review and
    comment by the Support Agency, determines at any time that the financial assurances
    provided pursuant to this Section are inadequate, the Site Operator shall, within thirty
    (30) days of receipt of notice of the Oversight Agency's determination, obtain and
    present to the Oversight Agency for approval one of the other forms of financial
    assurance listed in Section 7.13.4(1), above. The Site Operator's inability to demonstrate
    financial ability to complete the activities required by the Consent Decree and this SOW
    shall not excuse performance of such activities.
    3. The Site Operator may demonstrate that the financial security necessary for the remaining
    activities required by the Consent Decree and this SOW has diminished below the
    amount set forth in Section 7.13.3(8) above, on the 3-year anniversaries of the entry of
    the Consent Decree. The Site Operator may, on those anniversary dates, or at any other
    time agreed to by the Parties, reduce the amount of the financial security provided
    under this Section to the estimated cost of the remaining Work to be performed. The Site
    Operator shall submit a proposal for such reduction to the Oversight Agency, in accordance
    with the requirements of this Section and may reduce the amount of the security
    upon approval by the Oversight Agency. In the event of a dispute, the Site Operator

    judicial decision resolving the dispute.
    4. The Site Operator may change the form of financial assurance provided under this Section
    7.13.4 at any time, upon notice to and approval by the Oversight Agency, provided
    that the new form of assurance meets the requirements of this Section. In the event of a
    dispute, the Site Operator may change the form of the financial assurance only in accordance
    with the final administrative or judicial decision resolving the dispute.
    7.14 Completion of Work
    1. Within ninety (90) days prior to the termination of the Performance Period, the Site
    Operator shall schedule and conduct a pre-certification inspection to be attended by the
    Site Operator, Oversight Agency, and the Support Agency. After the pre-certification
    inspection, the Site Operator shall submit a written report to the Oversight Agency and
    the Support Agency stating that the activities required under this SOW and the Consent
    Decree have been completed in full satisfaction of the requirements of this SOW and the
    Consent Decree. The report shall contain the following statement, signed by a responsible
    corporate official of the Site Operator or by the Site Operator's Project Manager:
    To the best of my knowledge, after thorough investigation, I certify that
    the information contained in or accompanying this submission is true,
    accurate, and complete. I am aware that there are significant penalties for
    submitting false information, including the possibility of fine and imprisonment
    for knowing violations.
    2. The Site Operator's obligation to perform Operation and Maintenance under this SOW
    shall terminate when the Performance Period ends. Notwithstanding the prior sentence,
    after review of the written report, the Oversight Agency, after reasonable opportunity to
    review and comment by the Support Agency, determines that any portion of the activities
    required by this SOW or the Consent Decree has not been completed in accordance
    with this SOW or the Consent Decree, the Oversight Agency will notify the Site Operator
    in writing of the activities that must be undertaken by the Site Operator pursuant to
    this SOW or the Consent Decree. Provided, however, that the Oversight Agency may
    only require the Site Operator to perform such activities pursuant to this Paragraph to
    the extent that such activities were required to be performed under the O&M Work Plan,
    this SOW, or the Consent Decree. The Oversight Agency will set forth in the notice a
    schedule for performance of such activities consistent with the O&M Work Plan, this
    SOW, and the Consent Decree or require the Site Operator to submit a schedule to the
    Oversight Agency for approval pursuant to Section 7.11, Oversight Agency Approval of
    Plans and Other Submissions. The Site Operator shall perform all activities described in
    the notice in accordance with the specifications and schedules established therein, subject
    to its right to invoke the Dispute Resolution procedures set forth in Section XIX
    (Dispute Resolution) of the Consent Decree.
    3. If the Oversight Agency concludes, based on the initial or any subsequent request for
    Certification of Completion by the Site Operator and after a reasonable opportunity for
    review and comment by the Support Agency, that the activities required by this SOW
    and the Consent Decree have been performed in accordance with this SOW and the

    Oversight Agency may not unreasonably withhold approval of the Work.
    7.15 Force Majeure
    1. "Force Majeure," for purposes of the Consent Decree and this SOW, is defined as any
    event arising from causes beyond the control of the Site Operator, of any entity controlled
    by the Site Operator, or of the Site Operator's subcontractors, including lack of
    legal access to the property identified in Section 7.3(4), that delays or prevents the performance
    of any obligation under this SOW or the Consent Decree despite the Site
    Operator's best efforts to fulfill the obligation. The requirement that the Site Operator
    exercises "best efforts to fulfill the obligation" includes using best efforts to anticipate
    any potential Force Majeure event and best efforts to address the effects of any potential
    Force Majeure event (a) as it is occurring, and (b) following the potential Force Majeure
    event, such that the delay or prevention of performance is minimized to the greatest
    extent possible. "Force Majeure" does not include financial inability to complete the
    activities required by this SOW or the Consent Decree.
    2. If any event occurs or has occurred that may delay or prevent the performance of any
    obligation under this SOW or the Consent Decree, whether or not caused by a Force
    Majeure event, the Site Operator shall notify orally the Oversight Agency's Project
    Coordinator or, in his or her absence, the Oversight Agency's Alternate Project Coordinator
    or, in the event both of the Oversight Agency's designated representatives are
    unavailable, the Director of the Superfund Division, EPA Region 9, as soon as possible
    under the circumstances. It shall be presumed that notice not made within four (4)
    Working Days of when the Site Operator knew or should have known that the event
    might cause a delay or non-performance is untimely unless evidence credible to the
    Oversight Agency and to the contrary is provided to the Oversight Agency by the Site
    Operator. Within ten (10) days thereafter or such longer time as specified by the Oversight
    Agency, the Site Operator shall provide in writing to the Oversight Agency and the
    Support Agency an explanation and description of the reasons for the delay or failure to
    perform; the anticipated duration of the delay or failure to perform; all actions taken or
    to be taken to prevent or minimize the delay or failure to perform; a schedule for
    implementation of any measures to be taken to prevent or mitigate the delay or the
    effect of the delay or failure to perform; the Site Operator's rationale for attributing such
    delay or failure to perform to a Force Majeure event if it intends to assert such a claim;
    and a statement as to whether, in the opinion of the Site Operator, such event may cause
    or contribute to an endangerment to public health, welfare, or the environment. The Site
    Operator shall include with any notice all available documentation supporting its claim
    that the delay or failure to perform was attributable to a Force Majeure. Failure to substantially
    comply with the above requirements shall preclude the Site Operator from
    asserting any claim of Force Majeure for that event for the period of time of such failure
    to comply, and for any additional delay or failure to perform caused by such failure to
    comply. The Site Operator shall be deemed to know of any circumstance of which the
    Site Operator, any entity controlled by the Site Operator, or the Site Operator's subcontractors
    knew or should have known.

    3. If the Oversight Agency, after a reasonable opportunity for review and comment by the
    Support Agency, agrees that the delay or anticipated delay or failure to perform is
    attributable to a Force Majeure event, (a) the time for performance of the obligations
    under this SOW or the Consent Decree that are affected by the Force Majeure event will
    be extended by the Oversight Agency, after a reasonable opportunity for review and
    comment by the Support Agency, for such time as is necessary to complete those obligations
    and (b) any non-compliance with Performance Standards or other requirements of
    this SOW directly caused by the Force Majeure event shall not be a violation of this
    SOW. An extension of the rime for performance of the obligations affected by the Force
    Majeure event shall not, of itself, extend the time for performance of any other obligation
    not affected by the Force Majeure event. If the Oversight Agency, after a reasonable
    opportunity for review and comment by the Support Agency, does not agree that the
    delay, anticipated delay, or failure to perform has been or will be caused by a Force
    Majeure event, the Oversight Agency will notify the Site Operator in writing of its decision
    and the Site Operator may invoke Dispute Resolution under the Consent Decree. If
    the Oversight Agency, after a reasonable opportunity for review and comment by the
    Support Agency, agrees that the delay or failure to perform is attributable to a Force
    Majeure event, the Oversight Agency will notify the Site Operator in writing of the
    length of the extension, if any, for performance of the obligations affected by the Force
    Majeure event.
    4. If the Site Operator elects to invoke the Dispute Resolution procedures set forth in
    Section XIX (Dispute Resolution) of the Consent Decree, it shall do so no later than
    fifteen (15) days after receipt of the Oversight Agency's notice. In any such proceeding,
    the Site Operator shall have the burden of demonstrating by a preponderance of
    evidence that the delay, anticipated delay, or failure to perform has been or will be
    caused by a Force Majeure event, that the duration of the delay, failure to perform, or
    the extension sought was or will be warranted under the circumstances, that best efforts
    were exercised to avoid and mitigate the effects of the delay or failure to perform, and
    that the Site Operator complied with the requirements of Paragraphs 1,2, and 3 of this
    Section 7.15. If the Site Operator carries this burden, the delay or failure to perform at
    issue shall be deemed not to be a breach by the Site Operator of the affected obligation of
    this SOW or the Consent Decree identified to the Oversight Agency and the Court.
    7.16 Work Takeover
    1. If the Oversight Agency determines that the Site Operator has ceased implementation
    of any portion of the activities required by the Consent Decree and this SOW, is seriously
    or repeatedly deficient or late in its performance of any such activities, or is
    implementing any such activities in a manner that presents an imminent and
    substantial endangerment to human health or the environment, or has improperly
    transferred responsibility without approval under Section in of the Consent Decree, the
    Oversight Agency may assume the performance of all or any portions of such activities
    as the Oversight Agency determines necessary. Before assuming performance of the
    Work, the Oversight Agency shall first give the Site Operator notice of its intent to do so
    and, unless there is insufficient time to do so or the condition is one that cannot be
    cured, shall provide the Site Operator with a reasonable period of time to cure the
    alleged problems with the Work. The Site Operator may invoke the procedures set forth

    in Section XIX of the Consent Decree (Dispute Resolution) to dispute the Oversight
    Agency's determination that takeover of any activity required under the Consent
    Decree and this SOW is warranted under this Section or the amount of any payment
    due the Oversight Agency under this Section.
    2. The Site Operator's obligations in the event of a Work Takeover are:
    a. To continue performance of all obligations under this SOW other than related
    solely to the specific Work being taken over by the Oversight Agency;
    b. To cooperate fully with the Oversight Agency and assist the transition from the Site
    Operator of the Work being assumed by the Oversight Agency;
    c. To provide the Oversight Agency, or its designee, with all tools, equipment, vehicles,
    materials, supplies, software, documents, files, or other equipment or materials
    being used by the Site Operator to perform the Work being assumed by the
    Oversight Agency. The Oversight Agency shall exclude from its Response Costs
    any charge for fair market/rental value for such items provided by the Site
    Operator except to the extent a third party charges the Oversight Agency for such
    costs. Use of such items by the Oversight Agency shall not give rise to a charge, setoff
    or similar right by the Site Operator;
    d. To provide the Oversight Agency, or its designee, with all historic records, documents,
    or other materials that document the conditions at the Site or the Work performed
    by the Site Operator prior to the Work Takeover;
    e. To provide the Oversight Agency with access to the Site Operator's key employees
    who have operational knowledge of the Work being assumed by the Oversight
    Agency; and
    f. To help the Oversight Agency obtain, if requested by the Oversight Agency,
    enforceable rights to continue, any contracts, subcontracts, supply contracts,
    licenses, or other intangible assets being used by the Site Operator to perform the
    Work being assumed by the Oversight Agency.
    3. If the Oversight Agency takes over performance of some or all of the activities required
    under the Consent Decree and this SOW, the Site Operator shall pay the Oversight
    Agency's Response Costs in the manner provided by Section XVI of the Consent
    Decree, except to the extent that such costs are paid to the Oversight Agency by the
    Policy. To the extent required by the NCP, the Oversight Agency shall use reasonable
    efforts to mitigate its Response Costs in the event of a full or partial Work Takeover. At
    the discretion of the Oversight Agency, the Oversight Agency may take over the Work
    itself, or the Site Operator may be replaced by a third party. A Work Takeover does not
    relieve the Site Operator from obligations relating to financial assurance, payment of
    Response Costs, or document retention. In the event that a Work Takeover by the
    Oversight Agency is found through Dispute Resolution to not be authorized under this
    SOW, the Site Operator shall be reinstated with respect to such Work, and the Site
    Operator shall not be deemed to have waived any rights for damages that it may have
    for the period that Work was taken over. Costs incurred by the Oversight Agency
    pursuant to Section 7.16 shall be considered Response Costs that the Site Operator shall

    pay pursuant to Section XVI of the Consent Decree (Reimbursement of Response
    Costs).
    4. The remedies provided in this Section are in addition to, and not exclusive of, any other
    remedies provided by this SOW or Consent Decree.
    7.17 Post-Performance Period Transition
    1. At the end of the Performance Period, or such other time that the Site Operator's Work
    obligations under this SOW are terminated, the Site Operator shall transfer, or cause the
    Trust to transfer, to the entity as directed by the Oversight Agency, whatever right, title
    and interest in or to the Site, any O&M Unit, and any O&M Unit Component which the
    Site Operator and Trust may have. The Site Operator may retain any vehicles, trucks,
    expensed equipment, office supplies, and other personal property owned by the Site
    Operator, and the Site Operator will remove such property from the Site within a reasonable
    period after the Performance Period.
    2. At the conclusion of the Performance Period, the Site Operator will assist the Oversight
    Agency in the orderly transition of responsibility for Site activities from the Site Operator
    to the Oversight Agency or other entity as directed by the Oversight Agency.
    8. Performance Standards
    8.1 Introduction
    1. The Site Operator shall diligently operate and maintain the O&M units to protect facilities
    and personnel, both onsite and offsite, from damage, injury, or illness that could
    result from fire, accidental chemical releases, unsafe conditions, flooding, erosion, and
    all other reasonably anticipated sources, conditions, and events. The criteria used to
    design the O&M Units to achieve the Performance Standards for the IMM Remedy are
    further described in applicable Design Criteria Reports, Engineering Analysis Reports,
    designs, and other design documents produced during the design of the facilities to
    implement the IMM Remedy. To the extent practicable, the Site Operator shall reconstruct
    or repair components of the O&M Units in conformance with the available design
    documents for the IMM Remedy listed in Attachment D to this SOW. To the extent such
    documents are not available or to the extent the Site Operator can establish an alternative
    approach meets the objectives of this SOW, the Site Operator shall reconstruct or
    repair the components in a manner that achieves the Performance Standards and other
    requirements of this SOW in a reliable manner.
    2. The Performance Standards stated in Sections 8 and 14 shall be the applicable Performance
    Standards during the Performance Period. The Oversight Agency may impose
    more stringent Performance Standards or add new Performance Standards, provided
    that the Site Operator is compensated for its additional costs, if any, as provided in
    Section 4 and is given a reasonable period of time to achieve the modified or new Performance
    Standards. Actions required to meet .the Performance Standards or other
    requirements of this SOW shall not be a modification of Performance Standards for
    purposes of this Paragraph.

    3. At any time during the Performance Period, the Site Operator may petition the Oversight
    Agency to modify the Performance Standards provided herein. The Site Operator
    shall describe in detail its basis for modification and attach all supporting data. A decision
    of the Oversight Agency regarding modification under this Section 8.1.3 of Performance
    Standards shall not be subject to Dispute Resolution or judicial review by the
    Site Operator.
    4. Notwithstanding anything herein to the contrary, neither this SOW nor the Site Operator's
    Work Plans or other documents submitted pursuant to this SOW, nor the
    undertaking of any Work herein, shall constitute a warranty, express or implied, as to
    Site Operator's ability to meet the Performance Standards.
    5. This SOW and the Consent Decree do not obligate the Site Operator to perform, without
    additional compensation, any Work that is beyond the scope of this SOW.
    8.2 General Performance Standards
    1. The Site Operator is responsible for achieving the Performance Standards and other
    requirements of this SOW despite any unknown or unanticipated conditions, unusual
    weather or severe conditions, except to the limited extent specifically allowed by this
    SOW.
    2. The Site Operator shall:
    a. Comply with all requirements set forth in the Consent Decree,
    b. Ensure effective and reliable operation of the IMM Remedy.
    c. Ensure the collection, conveyance, and treatment of all Designated Contaminant
    Discharges except to the extent specifically allowed by this SOW in Sections 8.4 or
    7.15 or to the extent specifically allowed in subsequent amendments to this SOW
    and/or Consent Decree.
    d. Ensure achievement of the Performance Standards set forth in Sections 8 and 14 of
    this SOW.
    e. Plan and execute the Work under this SOW in a manner that provides safe working
    conditions and ensures protection of worker health and safety under all anticipated
    conditions. The Site Operator shall use best efforts to anticipate and avoid situations
    that pose an unacceptable risk to worker health and safety. If a situation arises
    where performing a task poses an unacceptable risk to worker health and safety,
    the Site Operator may reschedule the Work element until the soonest next available
    time when the Work can be safely performed in accordance with this SOW and
    requirements of the Health and Safety Plan for the Site. In such situations, the Site
    Operator shall take all necessary actions to mitigate and minimize any noncompliance
    with the Performance Standards and other requirements of this SOW.
    If a situation giving rise to the unacceptable health and safety risk arose despite the
    best efforts of the Site Operator to anticipate and prepare for the situation, and the
    Site Operator took appropriate mitigation steps during the delay, the Site Operator
    shall not be considered to be in breach of this SOW or the Consent Decree for the
    delay in performing the required task. The Site Operator shall report to the Over-

    sight Agency and Support Agency such situations within twelve (12) hours of
    discovery of the situation and in the Monthly Progress Reports.
    f. Except as set forth in Paragraphs 3 and 4 of Section 8.2, the Site Operator shall
    maintain and replace, as appropriate, all O&M Units and O&M Unit Components
    so that, during the performance of this SOW and at the completion of the Site
    Operator's obligations under this SOW, the O&M Units, and all O&M Unit
    Components:
    i. Are reliable and fully functional; and
    ii. Substantially meet or exceed the condition of the O&M Units and O&M Unit
    Components as of August 1,2000.
    3. The O&M Unit Components listed in Section 8.2(4) are "Depreciable O&M Unit
    Components." The Site Operator must maintain Depreciable O&M Unit Components at
    a level that:
    a. Is consistent with good industrial and commercial practice;
    b. Minimizes the long-term operation and maintenance costs for the component; and
    c. Ensures that the component is always reliable and fully functional.
    4. Provided these standards are met, Depreciable O&M Unit Components may be turned
    over to the Oversight Agency at the completion of the Site Operator's obligations under
    this SOW, in good condition, but not necessarily equal to the condition of the component
    as of August 1,2000:
    a. Lime silos;
    b. Lime slurry system;
    c. Thickener;
    d. Day lime silos;
    e. The treatment plant structure;
    f. Reactor tanks;
    g. Air blowers and air injection system;
    h. Office building;
    i. Sheds;
    j. MCC control building;
    k. Paved roads;
    1. Shotcrete- or concrete-lined ditches; and
    m. Lined pipelines
    8.3 Good Housekeeping Standards
    1. The Site Operator shall diligently perform good housekeeping with respect to the O&M
    Units to ensure effective implementation of the IMM Remedy.
    2. The Site Operator shall maintain equipment in a manner that ensures a clean, well-kept
    appearance.
    3. The Site Operator shall maintain the O&M Units and all areas within 30 feet of O&M
    Units clear of dead and downed brush, trees, and debris. The Site Operator shall

    burning at an approved burn location.
    4. The Site Operator shall maintain all areas within 30 feet of all power poles clear of dead
    and downed brush, trees, and debris. The Site Operator shall properly dispose of
    removed and cleared brush and trees, such as through chipping or burning at an
    approved burn location.
    5. The Site Operator shall use reasonable efforts to prevent unauthorized entry to the Site.
    6. The Site Operator shall provide a safe working environment through keeping Work
    areas free of tripping and other hazards, providing lighting for any night work, and
    implementing an adequate safety program.
    8.4 Minnesota Flats Treatment Plant
    1. The Site Operator shall achieve the Performance Standards in this SOW as set forth in
    Sections 8 and 14.
    2. The Site Operator shall operate and maintain the HDS plant in a manner that optimizes
    (maximizes) terminal sludge density while maximizing long-term performance and
    reliability of the treatment plant equipment. Terminal sludge density is the density of
    the sludge prior to sludge haulage.
    3. The Site Operator shall operate and maintain the reactor blowers and aeration systems
    in a manner that maximizes oxidation of the sludge prior to discharge of the sludge to
    the sludge drying beds. The Site Operator shall, to the maximum extent practicable,
    produce a fully oxidized sludge characterized by a deep red color (Munsell Soil Color
    Chart 10R 3/6 Dark Red).
    4. The Site Operator shall provide staff trained for operations, maintenance, and safety in
    accordance with the requirements specified in the Operations and Maintenance
    Instructions, High Density Sludge Treatment Plant, Iron Mountain Mine-Redding, CA,
    included by reference as Attachment E. The Site Operator shall maintain records onsite
    that verify the training for all treatment plant staff.
    5. Once the MFTP modifications are completed (under separate contract), the Site Operator
    shall maintain the maximum design peak inflow capacity at 6,500 gpm. The Site
    Operator shall operate the MFTP with a target inflow rate of 5,500 gpm to ensure
    1,000 gpm emergency capacity to address AMD surges and other unusual conditions.
    6. The Site Operator shall maximize the use of emergency storage to prevent discharge of
    untreated or partially treated Designated Contaminant Discharges. In the event that the
    influent flow rate to the MFTP exceeds the capacity of the MFTP to neutralize the influent,
    and all available storage, the Site Operator shall maximize removal of metals by
    providing treatment of Designated Contaminant Discharges according to the following
    priorities: (a) Richmond portal, (b) Lawson portal, (c) Old No. 8 Mine Seep, and
    (d) SCRR. Excess Designated Contaminant Discharges from (a), (b), and (c) shall be
    treated at the Boulder Creek Cementation Plant to achieve maximum removal of
    copper.

    7. In situations where the Designated Contaminant Discharges exceed the capacity of the
    MFTP, the Site Operator shall notify the Oversight Agency within eight (8) hours, shall
    use best efforts to avoid the release of untreated AMD, and shall coordinate with the
    Oversight Agency to modify the operations approach to address the problem. The Site
    Operator shall take immediate actions to prevent or minimize the release of untreated
    or partially treated AMD, including, but not limited to, coordinating the operation of
    the SCRR, using the Old/No. 8 Mine as a storage facility, filling the AMD storage tank,
    and filling the Modutank. If despite these efforts, there is insufficient storage and treatment
    capacity, the Site Operator shall maximize removal of metals by prioritizing the
    treatment of flows according to Section 8.4(6). If there is a release of untreated or partially
    treated Designated Contaminant Discharges, then the Site Operator shall not be
    responsible for the release of Designated Contaminant Discharges due to an exceedance
    of the capacity of the MFTP, to the extent that such discharges exceed the capacity of
    the MFTP, provided that the Site Operator follows these procedures and has maintained
    the capacity of the MFTP and other relevant facilities as required by this SOW.
    8.5 Treatment Plant Ancillary Facilities
    8.5.1 Plant Roads
    1. The Site Operator shall maintain the roadbase-surfaced roads in a manner that preserves
    or improves the existing (August 1,2000) condition and road surface quality,
    provides safe access, preserves the initial investment of the roadway construction, and
    provides reasonable ride quality. The Site Operator shall maintain all roadways within
    and adjacent to the treatment plant and sludge drying beds. This maintenance shall
    include routine regular removal of sediment from ditches and culverts prior to and
    during winter months, routine road grading and patching, filling potholes, and resurfacing
    of roads surfaced with roadbase to minimize rut formation in conformance with
    the original design.
    2. The Site Operator shall maintain the asphalt-paved road in a manner that preserves the
    existing (August 1,2000) road surface, provides safe access, preserves the initial investment
    of the roadway construction, and provides reasonable ride quality. Asphalt
    roadway deficiencies vary considerably. Conditions to be prevented and corrected
    include, but are not limited to, chronically slippery pavement, raveling, rutting, potholes,
    abrupt vertical variations, pavement cracks, and shoulder distress. Depending on
    the extent and severity of the observed distress, the Site Operator shall implement
    corrective measures, including roadbase repair, hand patching, machine patching, spot
    sealing, seal coat, crack sealing and/or filling, cold planing, and overlays.
    3. Inspections of the asphalt-paved roads shall be conducted as needed, but at a minimum
    the inspections shall be performed annually to identify pavement deficiencies requiring
    corrective measures. Upon identification of a deficiency, permanent corrective measures
    shall be scheduled to occur on an annual basis. If unsafe conditions exist when
    permanent repair operations are not scheduled, temporary measures may be utilized to
    bring the pavement into a safe condition. These temporary measures shall be replaced
    with a permanent corrective measure during the next regular repair operation.

    4. The Site Operator shall maintain asphalt-paved roads at the Site in a manner that complies
    with the Shasta County Development Standards.
    8.5.2 Hillslopes
    1. The Site Operator shall maintain hillslopes above and below the emergency storage
    tank, sludge drying beds, and the treatment plant in a manner that directs drainage to
    the existing drainage ditches, and prevents gullying, concentrated flow patterns, and
    erosion of the slope surfaces. The Site Operator shall repair or improve surface erosional
    features annually, or more often as required, to prevent development of gullies and
    sedimentation of receiving drainage ditches. The repairs shall include placement or
    replacement of erosion mats, geotextiles, and riprap covers, or other designs.
    8.5.3 Effluent Discharge Works
    1. The Site Operator shall operate and maintain the effluent discharge works, including the
    intake, piping, outlet works, and dike separating the outlet works from Spring Creek, in
    a manner that ensures continuous 10,000 gpm discharge capacity of the outlet works.
    The Site Operator shall operate and maintain the effluent discharge works to ensure that
    all treated effluent is discharged to Spring Creek.
    8.5.4 Modutank
    1. The Site Operator shall maintain the Modutank and supporting pipes, valves, and other
    equipment in a manner that ensures availability and reliable operation of the Modutank
    during emergency conditions, including treatment plant downtimes and major storm
    events.
    2. The Site Operator shall maintain the Modutank and related structures in a manner that
    does not leak beyond acceptable design tolerances based on a forty-eight (48)-hour leak
    test with a full head of water.
    8.5.5 AMD Storage Tank
    1. The Site Operator shall operate and maintain the AMD storage tank and supporting
    pipes, valves, and other equipment in a manner that ensures availability and reliable
    operation of the tank capacity for operations and storage during both routine and emergency
    conditions (including treatment plant downtimes and major storm events).
    2. The Site Operator shall operate and maintain the AMD storage tank and related equipment
    in a condition that does not leak beyond acceptable design tolerances.
    8.5.6 Clean Water System
    1. The Site Operator shall operate and maintain the clean water system to ensure sufficient
    lime slurry makeup water at the treatment plant at all times and under all treatment
    plant inflow conditions.
    2. The Site Operator shall operate and maintain the clean water intake structure stilling
    pool to minimize intake of sediment and debris; reduce wear on pumps, pipes, and
    valves; and minimize sediment loading of the clean water storage tank.

    8.5.7 Sludge Drying Beds
    1. The Site Operator shall maintain the integrity of the lining system and prevent filtrate
    from infiltrating into the groundwater beyond acceptable design tolerances.
    2. The Site Operator shall prevent sludge and supernatant from overtopping the drying
    beds and discharging into the Flat Creek watershed drainage.
    3. The Site Operator shall prevent overtopping of the filtrate pump station sump and discharge
    of filtrate into the Flat Creek watershed.
    4. The Site Operator shall operate and maintain the sludge drying beds in a manner that
    maximizes separation of water from the sludge, ensures collection and conveyance of
    the filtrate to the filtrate pump station, and ensures conveyance of the filtrate to Spring
    Creek.
    8.5.8 Boulder Creek Copper Cementation Plant
    1. The Site Operator shall maintain the Boulder Creek Copper Cementation Plant (BCCP)
    and supporting pipes, valves, and other equipment in a manner that ensures availability
    and reliable operation of the BCCP for copper removal during emergency conditions
    that prevent treatment of AMD at the MFTP. The BCCP has been idle for several years
    prior to this SOW and is only anticipated to be used in an unusual set of circumstances.
    2. The Site Operator shall keep the concrete bays of the BCCP stocked with scrap iron at all
    times and shall actively operate and maintain the BCCP during periods of use to ensure
    the effective removal of copper from the AMD flows directed to the BCCP.
    3. Notwithstanding Sections 8.5.8(1) and (2) above, the Site Operator shall not be obligated
    to expend more than $5,000 per year in any year (adjusted by the Inflation Escalator) in
    connection with this O&M Unit.
    8.6 Site Roads
    1. All roads, ditches, culverts, grates, drainage control structures, and structures supporting
    roadways at the Site require regular maintenance. For purposes of this SOW, the
    roadways are classified in Section 9.5.2 as Critical Access Roads, Important Access
    Roads, and Non-critical Access Roads.
    2. The Site Operator shall maintain the roads in a manner that preserves or improves the
    existing (August 1,2000) road surface, provides safe access, preserves the initial
    investment of the roadway construction, and provides reasonable ride quality.
    3. The Site Operator shall maintain the roads in a fire-safe manner and in a manner that
    permits access for fire-fighting equipment and personnel. The Site Operator shall
    maintain the roadways clear of brush overhanging roadways and remove dead, dry
    brush near roadways.
    4. The Site Operator shall keep all roads open, clear, and in good repair. The Site Operator
    will be allowed to close roads for maintenance or repair operations as required.
    5. The Site Operator shall, at a minimum, provide the following levels of access:

    a. Continuous access on Critical Access Roads with short-duration (four [4]-hour
    maximum) delay allowed during major storm events (precipitation greater than
    1.45 inches per hour or 9.7 inches in twenty-four [24] hours). Snow shall be
    removed from Critical Access Roads within twenty-four (24) hours.
    b. Continuous access on Important Access Roads with intermediate duration (twentyfour
    [24]-hour maximum) delay allowed during major storm events (precipitation
    greater than 1.45 inches per hour or 9.7 inches in twenty-four [24] hours). Snow
    shall be removed from Important Access Roads within seven (7) calendar days.
    c. Continuous access on Non-critical Access Roads with long-duration (seven [7]
    calendar-days maximum) delay. Snow need not be removed on Non-critical Access
    Roads.
    6. Additional personnel and equipment shall be under contract and/or onsite or at the
    Site Operator's disposal to respond promptly during wet-weather operations. The Site
    Operator shall enumerate these additional resources required for wet-weather operation
    in the Annual Operations Work Plan required for submission under Section 6.3. In
    the Annual Operations Work Plan, the Site Operator shall update the anticipated
    requirements for wet-weather operations resources, and certify by a signed memorandum
    that these resources are contracted for or will be onsite, or at the Site Operator's
    disposal for the upcoming wet-weather season.
    8.7 AMD Collection and Conveyance Systems
    1. The Site Operator shall maintain the AMD collection and conveyance systems at a
    minimum of 90 percent of the flow capacity in each conveyance element.
    2. The Site Operator shall prevent any leakage that is beyond acceptable design tolerances
    from the AMD collection systems and the AMD conveyance systems.
    8.8 Brick Flat Pit
    1. The Site Operator shall inspect, operate, and maintain the BFP Containment Dam in
    compliance with all requirements of the State of California, Department of Water
    Resources, Division of Safety of Dams (DSOD). To the best of EPA's knowledge, the
    current structure meets all requirements of DSOD and has passed the most recent
    annual inspection.
    2. The Site Operator shall place HDS sludge in Brick Flat Pit at a minimum relative compaction
    of 90 percent as measured by ASTM D 698. The final sludge surface at the end
    of each sludge haul shall be graded to drain, at slopes less than 5 percent, toward the
    filtrate riser pipes.
    3. The Site Operator shall maintain all existing and planned drainage ditches, roads, and
    drainage structures in the Brick Flat Pit and Subsidence Areas to ensure a minimum
    90 percent flow capacity of the drainage system.
    4. The Site Operator shall manage Brick Flat Pit in accordance with the existing LMRP
    (Iron Mountain Mine 1999 Landfill Management Report and Plan) in 2000, and in conformance
    with the annual revised LMRP.

    8.9 Subsidence Areas
    1. The Site Operator shall operate and maintain all existing subsidence area caps, including
    the cracked ground areas and areas capped with shotcrete, in a manner that directs
    the maximum surface runoff away from the subsidence areas and fracture zones. The
    surface runoff shall be directed and controlled in a manner that does not result in detrimental
    erosion or other detrimental effects.
    8.10 Mine Workings
    1. The Site Operator shall maintain and operate the Richmond Portal, the Lawson Portal,
    and the Old/No. 8 Mine workings in a manner that ensures collection, conveyance, and
    treatment of all AMD from these three components of the Designated Contaminant Discharges.
    In the event that the Designated Contaminant Discharges' pathway changes, the
    Site Operator shall install and maintain additional collection system(s) necessary to
    ensure collection, conveyance and treatment of the Designated Contaminant Discharges.
    2. The Site Operator shall inspect, maintain and operate the Richmond Adit, the 5-way,
    and drifts in a manner that ensures near-continuous, safe entry into the Richmond Adit
    from the portal to the 5-way, and for a distance of 65 feet from the 5-way into the
    A Drift, B Drift, C Drift, and D Drift. After completion of the Richmond Adit and Drifts
    Rehabilitation, the Site Operator shall also inspect, maintain and operate the Richmond
    Adit, 5-way, and drifts in a manner to ensure safe entry, on a semi-annual, or more
    frequent basis as needed, into the B Drift (for approximately 225 feet from the 5-way),
    into the C Drift (for approximately 340 feet from the 5-way), into the proposed new 5-
    way bypass drift connecting the Richmond Adit to the C Drift, and into the proposed
    new cross-cut connecting the B Drift and the C Drift (at approximately 140 feet and 165
    feet from the 5-way, respectively).
    3. The actual lengths of adit and drifts to be maintained shall be determined after
    completion of the rehabilitation construction.
    4. The Site Operator shall maintain and operate the Lawson Mine workings in a manner
    that ensures reliable, routine, safe entry into the Lawson adit from the portal to the collection
    point approximately 550 feet from the portal, on a once-per-month or more frequent
    basis, as needed.
    5. The Site Operator shall maintain and operate the Old/No. 8 Mine Seep collection
    system in a manner that ensures diligent, selective collection and conveyance of all
    AMD discharges from the Old/No. 8 Mine Seep component of the Designated
    Contaminant Discharges.
    8.11 Clean Water Diversions
    8.11.1 Upper Spring Creek Diversion
    1. The Site Operator shall operate and maintain the Upper Spring Creek Diversion in a
    manner that diverts stream flow, up to the maximum hydraulic capacity of the diversion,
    from Upper Spring Creek to Flat Creek at all times, except as authorized or
    directed by the Oversight Agency. The maximum hydraulic capacity of the diversion
    currently equals approximately 850 cfs.

    2. The Site Operator shall operate and maintain the Upper Spring Creek Diversion stilling
    basin in a manner to settle out sediment particles 1/4 inch or greater in cross section at
    all stream flow less than or equal to 1,000 cfs.
    8.11.2 ROD1 Upper Slickrock Creek Clean Water Diversion
    1. The Site Operator shall operate and maintain the ROD1 Upper Slickrock Creek Diversion
    in a manner that diverts stream flow, up to the maximum hydraulic capacity of the
    diversion, from Upper Slickrock Creek around the Slickrock Creek Basin to Lower
    Slickrock Creek at all times, except as authorized or directed by the Oversight Agency.
    The maximum hydraulic capacity of the diversion currently equals approximately
    80 cfs.
    2. The Site Operator shall maintain and operate the Upper Slickrock Creek Diversion
    stilling basin in a manner that settles out sediment particles 1/4 inch or greater in cross
    section.
    8.11.3 ROD4 Slickrock Creek Clean Water Diversion
    1. The Site Operator shall operate and maintain the Upper Slickrock Creek Diversion in a
    manner that collects and conveys stormflow, up to the maximum hydraulic capacity of
    the diversion, from Upper Slickrock Creek and South Fork Mountain around the Slickrock
    Creek Basin and the SCRR to Lower Slickrock Creek. The maximum hydraulic
    capacity, at the design depth of flow (70 percent of the pipe inside diameter), varies
    from 520 cfs at the intake structure near the Slickrock Creek Tailings Dam to 610 cfs at
    the SCRR spillway. These improvements will be constructed or modified as part of
    ROD4 work under separate contract. Testing of improvements, as well as any shakedown
    and startup Work, will be completed prior to turning over responsibility for
    operation and maintenance by the Site Operator.
    2. The Site Operator shall operate and maintain the Upper Slickrock Creek Diversion
    stilling basin in the Catfish Pond area in a manner mat settles out sediment particles
    1/8 -inch or greater in cross section. These improvements will be constructed or modified
    as part of ROD4 Work under separate contract. Testing of improvements, as well as
    any shakedown and startup Work will be completed prior to turning over responsibility
    for operation and maintenance by the Site Operator.
    8.11.4 Left-Side Water Diversions
    1. The Site Operator shall operate and maintain the Left-Side Water Diversions in a manner
    that collects and conveys all surface-water flow up to and including the peak
    100-year surface water flow from the designated drainage areas. The areas are shown in
    the design document Iron Mountain Mine, Slickrock Creek Water Diversions, Design Criteria
    Report (SMC, March 1999). The peak 100-year design flows are given in the document
    Draft Final Iron Mountain Mine Slickrock Creek Retention Reservoir Engineering Calculations,
    Volume VI (SMC, April 2000). The Site Operator shall collect and convey contaminated
    flow to the SCRR sedimentation basin or reservoir. The Site Operator shall direct relatively
    clean surface-water flow out of the SCRR catchment area. These improvements
    will be constructed or modified as part of ROD4 Work under separate contract. Testing

    of improvements, as well as any shakedown and startup Work, will be completed prior
    to turning over responsibility for operation and maintenance by the Site Operator.
    2. The Site Operator shall operate and maintain the Left-Side Water Diversions in a manner
    that reduces erosion and minimizes sedimentation of the SCRR, the SCRR sedimentation
    basin, and Slickrock Creek. These improvements will be constructed or
    modified as part of ROD 4 work under separate contract. Testing of improvements, as
    well as any shakedown and startup work will be completed prior to turning over
    responsibility for operation and maintenance by the Site Operator.
    8.12 Boulder Creek Tailings Dam
    1. The Site Operator shall modify the Boulder Creek Tailings Dam embankment and
    spillway to ensure that storm flows are directed to the spillway and to provide spillway
    capacity adequate to pass the peak 100-year storm flow (estimated at 1,650 cfs), as
    detailed in Section 9.11.3.
    2. After the Site Operator modifies the dam embankment and spillway as set forth above,
    the Site Operator shall maintain and operate the Boulder Creek Tailings Dam, the Boulder
    Creek streambed, and the hillslopes above the Boulder Creek streambed in a manner
    that ensures the continuous capacity of the spillway to safely pass the peak 100-year
    stormflow as per Table 14-2 in Section 14 of Response Action Contract No. 68-W6-0036,
    EPA Work Assignment No. 038-LST-0917, Iron Mountain Risk Assessment, Dated March
    2000.
    8.13 Slickrock Creek Basin
    1. For all items listed under this Section: These improvements will be constructed or modified
    as part of ROD4 work under separate contract. Testing of improvements, as well as
    any shakedown and startup Work, will be completed prior to turning over responsibility
    for operation and maintenance by the Site Operator. During the Startup/Shakedown
    Period, the Site Operator shall assist the Oversight Agency to solve operational problems
    at the MFTP that arise during the Startup/Shakedown Period. After the Startup/
    Shakedown Period, the Site Operator shall be responsible for operating and maintaining
    the facilities and addressing design and construction defects.
    2. The Site Operator shall operate and maintain the Slickrock Creek Dam and SCRR in
    accordance with the requirements of the State of California, Department of Water
    Resources, DSOD.
    3. The Site Operator shall maintain and operate the SCRR in a manner that maximizes
    operating efficiencies, defined as flow rate into the reservoir divided by flow rate out of
    the reservoir.
    4. To the maximum extent practicable, all inflow into the reservoir shall be continuously
    discharged for treatment, with the exception of the dead pool storage.
    5. The Site Operator shall not allow the reservoir to accumulate storage, except under
    emergency conditions, treatment plant downtime, maintenance periods, or if the inflow
    rate exceeds the design discharge flow rate.

    6. The Site Operator shall operate the SCRR to achieve an MFTP maximum inflow rate
    equal to 5,500 gpm. Under peak-flow operating conditions, the SCRR target maximum
    operational discharge flow rate shall equal 3,250 gpm. The Site Operator shall increase
    the SCRR operational discharge to a maximum flow rate of 4,000 gpm once the peak
    AMD discharges from the Richmond and Lawson portals have safely declined from
    peak-flow conditions.
    7. During the detailed development of the SCRR O&M Manual, scheduled for completion
    under separate contract in 2001 or 2002, the Oversight Agency may modify the SCRR
    maximum target operational discharge flow rates under various conditions. The Site
    Operator shall revise the O&M Work Plan in conformance with all modifications given
    in the SCRR O&M Manual and such modifications will not be considered to be changes
    to the Performance Standards or SOW.
    8. The Site Operator shall maintain and operate the sedimentation basin in a manner that
    ensures that the maximum grain size of materials discharged from the sedimentation
    basin to the SCRR does not exceed 1.0 mm.
    9. The Site Operator shall maintain and operate the SCRR in a manner that ensures that
    the maximum grain size of materials discharged from the SCRR does not exceed
    0.1 mm.
    10. The Site Operator shall maintain and operate the upper hematite pile and lower hematite
    pile tailings storage areas in a manner that minimizes erosion of the hematite into
    Slickrock Creek.
    8.14 Boulder Creek Slide Area
    1. The Site Operator shall operate and maintain the horizontal drains in a manner that
    maximizes collection of flow from the horizontal drains, controls the discharge from the
    drains in a manner that minimizes infiltration of the drainage back into the hillside, and
    minimizes erosion at the discharge locations.
    2. The Site Operator shall operate and maintain the surface-water control ditches and
    structures in a manner that maximizes the conveyance of surface-water flow away from
    the Boulder Creek landslide area and minimizes erosion at the surface-water discharge
    location.
    8.15 Sampling Program
    1. The Site Operator shall conduct the sampling program in conformance with Section 14,
    Performance Standards and Verification Plan, and the approved QAPP.
    8.16 Downgradient Property
    1. The Site Operator shall provide for the long-term maintenance of the IMM remedial
    action improvements at downgradient property locations, including the protection of
    the Flat Creek embankments at the Iron Mountain Road crossing near the gate, adjacent
    to the Rardin property, at the archeological site, and at the former Finazzo property, in a
    manner that preserves or improves the existing (August 1,2000) condition of these
    property improvements.

    2. The Site Operator shall provide for long-term maintenance (or upgrade) of the Flat
    Creek embankment protections immediately downgradient of the Upper Spring Creek
    (USC) Diversion energy dissipation structure in a manner that preserves or improves the
    existing (August 1,2000) condition of these embankment protections. It is important that
    the embankment protections are maintained, and upgraded if necessary, to ensure that
    the energy dissipation structure is not undermined by progressive erosion of the Flat
    Creek channel.
    3. The Site Operator shall perform emergency response actions related to the county road
    and bridges that may be necessary to ensure access of personnel, supplies, and equipment
    to the Site to ensure continuous performance of the IMM remedial action.
    8.17 Mine Waste Disposal Facilities
    1. The Site Operator shall provide for the long-term maintenance of each of the mine
    waste disposal facilities constructed as part of the IMM Remedy (including the disposal
    cell constructed upgradient from the Richmond Mill buildings area, the WR-8 and
    WR-9 mine waste cell, the capped cell at Pond No. 2 at the Temporary Treatment Plant,
    and the new muck disposal cell to be constructed under this SOW) consistent with the
    original design and in a manner that preserves or improves the existing (August 1,
    2000) function and condition of these facilities.
    2. The Site Operator shall provide for long-term maintenance of the surface-water controls
    constructed to minimize surface-water erosion of historic mine waste piles in the Slickrock
    Creek and Boulder Creek basins in a manner that preserves or improves the existing
    (August 1,2000) function and condition of these facilities. Improvements to facilities
    in some of these areas will be constructed as part of ROD4 work under separate contract.
    During the Startup/Shakedown Period of the SCRR improvements, the Site
    Operator shall assist the Oversight Agency to solve operational problems at the MFTP
    that arise during the Startup/Shakedown Period.
    3. If a failure of an historic mine waste pile occurs, the Site Operator shall re-stabilize the
    remaining mining waste in a manner consistent with the existing (August 1,2000)
    function and condition of the waste pile. If such a failure occurs, the Site Operator shall
    also remove, to the extent practicable as determined by the Oversight Agency, taking
    into consideration economic and technical constraints, mining wastes from surface
    waters that drain Iron Mountain, surface-water conveyances, roadways, or other features
    of the EMM Remedy, and place the recovered mine wastes in a stable disposal
    area, as approved by the Oversight Agency.
    8.18 Failure to Attain Performance Standards
    1. In the event that the Oversight Agency determines that modification to the O&M Work
    Plan is necessary to meet applicable Performance Standards or other requirements of
    this SOW, the Oversight Agency may notify the Site Operator that the Site Operator
    shall modify the O&M Work Plan. The Site Operator may invoke the Dispute Resolution
    procedure of the Consent Decree if it disputes the Oversight Agency's request for
    modification.

    2. Unless otherwise directed by the Oversight Agency, within sixty (60) days of receipt of
    notice from the Oversight Agency that modification to the O&M Work Plan is necessary,
    the Site Operator shall submit for approval by the Oversight Agency a
    modification to the Work Plan that will achieve the Performance Standards or other
    requirements of this SOW. The modified Work Plan shall also be submitted to the Support
    Agency for review and comment. The modified Work Plan may call for, among
    other things, additional response activities consistent with this SOW.
    3. If RD or RA work activities are required to achieve Performance Standards or other
    requirements of this SOW, the Site Operator shall achieve in a reliable and safe manner
    as determined by the Oversight Agency, the Performance Standards and the design
    criteria for the respective O&M Units and other requirements of this SOW.
    4. Subject to Section 7.15 of this SOW and notwithstanding any action by the Oversight
    Agency or other State or Federal agency, the Site Operator remains fully responsible for
    achieving all Performance Standards and other requirements of this SOW.
    5. Nothing in this SOW, or in the Oversight Agency's approval of any submission, shall
    be, or be deemed to constitute, a warranty or representation of any kind by the
    Oversight Agency that full performance of an approved RD, RA, Work Plan, or other
    action will achieve the Performance Standards and other requirements of this SOW. The
    Site Operator's compliance with such approved documents does not preclude the
    Oversight Agency from seeking additional Work consistent with this SOW to achieve
    the Performance Standards and other requirements of this SOW.(pg. 84)

    9.15 Boulder Creek Cementation Plant
    9.15.1 Unit Description
    1. The Boulder Creek Cementation Plant (BCCP) was constructed around 1957 to treat
    AMD discharges from the Richmond and Lawson mine workings. The plant was operated
    intermittently through September 1994, at which time the MFTP was put into fulltime
    service at the site.
    9.15.2 O&M Requirements for the Boulder Creek Cementation Plant
    1. The Site Operator shall inspect, operate, maintain, and repair the BCCP for use during
    treatment plant downtimes or other emergency conditions. The Site Operator shall
    maintain the piping, valves, miscellaneous equipment, and the plant structure. The Site
    Operator shall have shredded iron materials onsite for use in processing AMD during
    emergency conditions.(pg. 109)

    14.9 Quality Assurance Oversight
    14.9.1 Performance and System Audits
    1. The Oversight Agency will implement and conduct audits of the QA procedures for
    sample/data collection. The Oversight Agency will implement audits to evaluate the
    execution of sample identification, sample control, chain-of-custody procedures, sample
    log notebooks, sampling procedures, and onsite or offsite laboratory measurements.
    2. The Oversight Agency will audit onsite or offsite laboratories. The laboratory audits
    shall include analytical methodology QC procedures.

    ATTACHMENT A
    IMM ROD Components Not Implemented
    ROD1
    Component Selected In ROD (pp 64-65)
    Up to 250 cfs of clean water to be diverted
    from the South Fork of Spring Creek across
    the drainage divide into Rock Creek, which
    discharges into the Sacramento River below
    Keswick Dam. The purpose of this alternative
    is similar to the Upper Spring Creek diversion
    and required a small diversion dam and 4,000
    feet of pipeline to complete the conveyance of
    flows to Rock Creek.
    Spring Creek Debris Dam to be enlarged from
    its present storage capacity of 5,800 acre feet
    to 9,000 acre feet.
    Perform hydrogeologic study and field-scale
    pilot demonstration to better define the feasibility
    of utilizing LDCC to minimize AMD
    formation.
    Component Implemented
    This was not implemented.
    This component was not implemented.
    LDCC plugging was determined to not
    be feasible.
    O & M required
    SOW?
    No.
    No.
    No.
    ROD2
    All components implemented.
    ROD3
    All components implemented.
    ROD4
    Treatment plant upgrades will be completed by the end of September 2000. Other
    improvements should be completed over the next two years.

    .

    III. THREATS TO PUBLIC HEALTH OR WELFARE OR THE ENVIRONMENT
    A. Threats tg Publig Health or Welfare
    The principal threats to public health or welfare posed by
    the Site discharges are summarized below. A more in depth
    discussion of the public health threats is contained in EPA's
    Human Health Risk Assessment (PRC, 1991) which is contained in
    the Administrative Record for the IMM Site (Boulder Creek OU,
    1992, [1992 AR 2205]). With respect to the removal action
    proposed in this memorandum, the principal threats to the public
    health or welfare would arise from the discharge of untreated AMD
    into surface waters related to lack of site access because of the
    failure of the Flat Creek Bridge. As discussed below, the
    threats to human health posed by the IMM AMD discharges are
    expected to be low.
    Under current conditions, the potential for direct human
    exposure to AMD is relatively small. Persons who might come into
    direct contact or consume concentrated AMD at Iron Mountain could
    be at risk. Such persons include people working, living, or
    hiking at the Site. Individuals who enter the Site are at risk
    if they have direct contact with or ingest the AMD. The risk of
    such exposure is currently limited by controlled access to the
    mine Site. The property owner has posted the property to discourage
    trespassers. The property is located between two heavily
    used national forests, however, and direct exposure is a
    possibility.
    Persons who might come into direct contact with surface
    water downstream from Iron Mountain include people working,
    living, hiking, or swimming near the Site. Individuals who come
    in direct contact with water or sediments from the main body of
    Keswick Reservoir or Sacramento River are not currently at risk.
    Persons who might consume surface water downstream from Iron
    Mountain include people working, living, or hiking near the
    Site . Persons who might consume fish taken from the Sacramento
    River downstream from Iron Mountain include the general population
    in the upper Sacramento River Valley. Individuals who
    consume fish from the main body of Keswick Reservoir or
    Sacramento River may currently be at some risk; the uncertainties
    associated with this scenario are great and likely would result
    in the risk being overestimated.
    23
    Children are at somewhat greater risk than adults when
    considering noncancer toxicity resulting from incidental
    ingestion of creek water downstream from Iron Mountain.
    B. Threats to the Environment:
    The principal threats to the environment posed by the Site
    are summarized below. A more in depth discussion of the
    environmental threats is contained in EPA's Environmental Risk
    Assessment which is contained in the Administrative Record for
    the IMM Site (Boulder Creek OU, 1992 [1992 AR 2563]). With
    respect to the removal action proposed in this memorandum, the
    principal threat to the environment would arise from the
    discharge of untreated AMD related to lack of Site access because
    of the failure of the Flat Creek Bridge.
    The principal risks posed by the runoff of metals-bearing
    AMD from Iron Mountain are the associated impacts on aquatic life
    in the Spring Creek drainage, Keswick Reservoir, and the
    Sacramento River downstream of Keswick Dam. Among these natural
    resources, the most important are the fishery resources in the
    Sacramento River downstream of Keswick Dam. Migratory
    populations of chinook salmon, steelhead trout, resident trout,
    and numerous other aquatic and terrestrial species can be or are
    affected by AMD from Iron Mountain.
    The salmon and steelhead trout populations have high
    commercial and/or recreational value to the region. The susceptibility
    of these populations to contaminants originating from
    Iron Mountain has been documented (Wilson, 1982 [1992 AR 0371]).
    One of the chinook salmon runs, the winter run, is a species
    listed by the Federal Government and the State of California as a
    species endangered with extinction.
    Pollution from Iron Mountain is considered to be a major
    factor causing the decline in Sacramento River fishery resources,
    and an impediment to achieving fishery resource restoration
    goals. Other major factors contributing to the decline include
    loss of spawning habitat, predation, habitat degradation,
    mortality at dams and diversions, overfishing, and natural
    disasters (such as drought) (Vogel, 1989 [1992 AR 2561]). Fish
    migrating into the uppermost river reach of the Sacramento River
    risk being killed by AMD from Iron Mountain; offspring of adult
    fish spawning in that reach have reduced chances of survival due
    24
    to the Iron Mountain AMD (Finlayson and Wilson, 1979 [1986 AR
    0341]) . There is an indication that AMD from Iron Mountain has
    reduced the suitability of available spawning grounds for salmon
    in the uppermost reaches of the Sacramento River and that fish
    population reductions have occurred following uncontrolled
    spillage of Iron Mountain AMD (Finlayson, 1979, 1992 AR 0293) .
    The greatest decline in salmon-spawning populations has occurred
    within the uppermost river reach from Balls Ferry upstream to
    Redding, a distance of approximately 26 river miles (NOAA, 1989
    [Order 89-18 AR 0127]).
    Since the late 1960s, when fish counts were initiated at Red
    Bluff Diversion Dam (RBDD), each of the anadromous salmonid runs
    has suffered major declines. A more extensive data base is
    available specifically for fall-run chinook. This data base
    demonstrates that recent levels of spawning escapement to the
    upper Sacramento River are only about 50 percent of levels
    observed during the late 1950s. The greatest decline among the
    salmon runs has occurred for the winter run, which has been
    reduced to less than 5 percent of run sizes during the late
    1960s. This serious decline prompted the listing of this fish as
    an endangered species.
    The primary potential exposed fisheries populations are the
    salmonids and steelhead trout present in the Sacramento River.
    The upper Sacramento River chinook salmon runs, steelhead trout
    run, and resident populations of rainbow trout have life history
    characteristics that make them vulnerable to potential adverse
    effects from AMD originating from Iron Mountain Mines. The
    probability and magnitude of potential exposure depends on the
    releases of contaminated water from SCDD, the releases of water
    from Shasta Lake and Whiskeytown Reservoir, and the life stages
    present within the zone of impact.
    For spring- and fall-run chinook salmon, in a worst-case
    scenario, approximately half of an entire year's fall spawning
    production could be at risk from contaminants released from Iron
    Mountain. The impact of the release depends in large part on the
    pattern of releases from Shasta Lake and Whiskeytown Reservoir
    relative to when releases occur from IMM. For example, flood
    control releases from Shasta Lake could cause most of the year's
    production to migrate downstream of the affected water quality
    zone, thereby reducing the AMD's impact.
    25
    The steelhead trout and resident rainbow trout populations
    that are potentially at risk are not well-defined or understood.
    However, both the adult and yearling life phases are potentially
    at risk because both are present in the river when fish kills
    have historically occurred.
    At present, a memorandum of understanding commits the USER
    to operate SCDD in a manner that (when considering releases of
    waters from CVP facilities, including Shasta Lake, Whiskeytown
    Reservoir and Keswick Dam) will meet operation criteria for the
    control of metal concentrations in the Sacramento River, provided
    such operation would not cause flood control parameters on the
    Sacramento River to be exceeded or interfere unreasonably with
    other project requirements, and in light of the extreme releases
    from the Site, to protect aquatic life in the Sacramento River
    downstream of Keswick Dam. The USER must also operate Shasta Dam
    to provide electric power, irrigation water, and flood control.
    The USER estimated that it could incur significant losses of
    revenues, depending on the level of protection required in the
    Sacramento River, if special releases of CVP waters continue to
    be relied on for purposes of diluting IMM contaminant
    discharges. There is the potential that USER'S ability to supply
    adequate dilution water will be further reduced due to conflicting
    priorities for water use, thereby increasing the
    potential risk to the aquatic community.
    It is extremely difficult to quantify fish mortality in the
    Sacramento River as a result of contamination from IMM. This is
    due to a variety of factors, including the general size of the
    Sacramento River downstream of Keswick Reservoir and the difficulty
    of visually observing dying or dead fish during periods
    when the water is turbid. However, there have been 39 documented
    fish kills near Redding since 1940, and there have been
    observations of adult steelhead mortalities near Redding attributable
    to metal contamination from IMM since installation of the
    SCDD.
    Boulder Creek, Slickrock Creek, and Spring Creek are
    currently devoid of fish and aquatic invertebrates below the mine
    drainage area. Future response actions might restore some
    aquatic life to those reaches of those creeks, but is possible
    that the creeks or some portion thereof may remain sterile
    following current remediation activities at Iron Mountain.
    Aquatic populations, water column and benthic, in Keswick
    26
    Reservoir downstream of Spring Creek are at risk because of
    sediment contamination, as well as water column contamination.
    Below Keswick Dam, contaminant concentrations in the water column
    occasionally exceed toxic concentrations for sensitive life
    stages and frequently exceed both EPA and State of California
    criteria to protect aquatic life, indicating that these populations
    are also at risk. Access to the Site would likely
    facilitate the future response actions to address these risks.
    Terrestrial wildlife onsite has the potential for direct
    exposure to AMD, such as deer drinking from contaminated creeks
    or licking metals-laden salts along the flume system, or
    consuming contaminated plants, fish, or other organisms. More
    than 300 species of amphibians, reptiles, birds, and mammals can
    be expected to occur in the Boulder Creek basin and downstream
    areas that may be directly exposed to AMD.
    IV. ENDANGERMENT DETERMINATION
    Actual or threatened releases of hazardous substances from
    this Site, if not addressed by implementing the response action
    selected in this Action Memorandum, may present an imminent and
    substantial endangerment to public health, or welfare, or the
    environment.
    V. PROPOSED ACTIONS AND ESTIMATED COSTS
    The proposed action is to replace the damaged Flat Creek
    Bridge on Iron Mountain Road to re-establish reliable access to
    the Site prior to the upcoming winter wet season. The Flat Creek
    Bridge suffered extensive damage during the 1997 New Year's Day
    Storm. Replacement of the Flat Creek Bridge would assure
    reliable long-term access to the Site. The proposed replacement
    would consist of a clear span concrete deck bridge with abutments
    founded on bedrock. This approach meets all modern design
    standards, and would essentially eliminate failure due to flood
    flows overtopping the bridge and failure due to scouring of
    materials that support the bridge abutments.
    Reliable site access is a critically important factor
    necessary to assure the success of EPA's IMM remedial action.
    Iron Mountain Road is the only means of access for treatment
    plant operational personnel and the delivery of equipment and
    supplies.
    27
    EPA has also evaluated three alternatives that would repair
    the fifty year old bridge. EPA has determined that, although
    these three repair alternatives would have lower associated cost
    in the short term, two of the approaches are not technically
    adequate and the third approach would not adequately assure
    reliable site access. The first repair approach, Alternative A,
    is the approach originally proposed by SMC in their May 1997
    submittal to Shasta County DPW. The second repair alternative,
    Alternative B, modifies SMC's original proposal to include the
    construction of a new deck on top of the damaged existing bridge
    deck (as proposed by SMC). The third repair, Alternative C,
    would remove the damaged bridge deck, replace a new deck on the
    existing abutments and piers, and also increase abutment and pier
    scour protection beyond the measures contained in Alternatives A
    and B.
    A. Proposed Actions
    1. Propoaed Action Description
    The proposed action is to construct a new 67.5-foot long,
    28-foot wide clear span concrete bridge. The new bridge will
    comply with current California Department of Transportation
    (Caltrans) standards and the Local Programs Manuals. The
    existing Flat Creek Bridge will be demolished and a temporary bypass
    will be constructed to allow residential and truck traffic
    to pass over Flat Creek during construction.
    The project location is depicted on the Location Map in
    Appendix A. Refer to Appendix A, General Plan for the
    preliminary design for the profile grade and elevation for the
    proposed Flat Creek Bridge replacement. Refer also to Appendix A
    for reference photographs of the existing Flat Creek Bridge and
    storm damage from the 1997 New Year's Day Storm, and the
    preliminary project schedule.
    a. Construction of a Temporary Bypass
    Prior to commencing construction on the replacement bridge,
    a temporary bypass will be constructed in the-Flat Creek channel.
    The bypass will be designed to support heavily loaded lime truck
    traffic and also allow the passage of light duty vehicles of
    plant personnel and limited residential traffic. Because the
    construction schedule will extend to the start of the wet season
    28
    in early November 1997 the bypass will be designed with hydraulic
    capacity that can conservatively pass typical early season storm
    flows in Flat Creek. The preliminary design for the bypass
    estimates that three 36-inch culverts would provide for adequate
    hydraulic capacity.
    b. Demolition of the Existing Flat Creek Bridge
    The existing bridge, consisting of the concrete abutments,
    two concrete piers and the reinforced concrete deck, must be
    demolished and properly disposed.
    The existing approach roadway base and paving is to be
    removed and disposed. Clearing and grubbing of certain areas
    will be required. Existing approach roadway rock slope
    protection is to be removed and stored for later re-use.
    c. Abutments
    The bridge abutments will be founded on bedrock at each end
    of the channel opening. The abutments will be designed to retain
    the embankments and carry the vertical and horizontal forces from
    the superstructure. The footings will be founded on bedrock to
    prevent differential settlement and excessive horizontal
    movement.
    The selection of the appropriate type of abutment, and the
    detailed elements of the design, will be determined based upon
    field geotechnical evaluations to be performed during demolition
    of the existing bridge and excavation of the embankment for the
    abutments. Several types of abutments are potentially
    appropriate for application at this site and the selection from
    among appropriate designs will be made on the basis of
    reliability and economics. For the Flat Creek bridge crossing,
    the conditions of the rock in the embankments underlying the
    abutments, the extent of the waterway opening, the channel area
    and stream velocities will be important factors in determining
    the required type of abutment.
    d. Bridge Deck
    The preliminary design for the Flat Creek Bridge replacement
    provides for a 67.5-foot long, 28-foot wide clear span concrete
    29
    bridge. The design relies on a single span precast, prestressed
    concrete slab.
    Precast concrete has been widely used for replacing short to
    medium span bridges. The advantages of using precast concrete
    bridges are minimum traffic interruption due to the speed of
    bridge erection, relatively low construction cost, minimum
    maintenance, low span/depth ratio which helps to increase
    vertical underclearance, and high quality control of concrete at
    the plant. Construction quality control must assure that the
    connection details between members are properly performed to
    fasten concrete members together and to prevent any future
    deteriorations at the joints.
    The appropriate deck design will be determined once the
    field geotechnical work has been performed and the type of
    abutments have been determined.
    e. Scour Protection. Roadway Approaches and Erosion Control
    Rock slope protection will be constructed around the new
    bridge abutments. The rock slope protection will be designed to
    meet the requirements of Shasta County DPW for this clear span
    bridge with abutments founded on bedrock. Additional embankment
    protection will be provided for an approximate 50-foot long reach
    of Flat Creek north of the bridge replacement.
    Controls to prevent erosion during construction and to
    prevent sedimentation while working in the stream channel will be
    implemented. The approach roadways will be reconstructed. Items
    or details, such as placing guard rails, required by the plans
    and specifications that are necessary to meet Caltrans
    requirements, will be performed.
    2. Contribution to Remedial Performance
    Replacement of the Flat Creek Bridge would assure reliable
    long-term access to the Site. Reliable site access is a
    critically important factor necessary to assure the success of
    EPA's IMM remedial action.
    EPA's IMM remedy relies on the effective treatment of the
    concentrated IMM AMD discharges from the four major underground
    mine workings at Iron Mountain. EPA estimates that treatment of
    30
    the concentrated discharges from these sources reduces the IMM
    discharges of copper, zinc and cadmium by about 80 percent.
    Iron Mountain Road is the only means of access to the Site.
    All treatment plant operational personnel rely on Iron Mountain
    Road and the Flat Creek Bridge to get to work. Iron Mountain
    Road provides the only route of access for the delivery of
    equipment and supplies. Reliable treatment operations require
    the regular delivery of lime, the neutralizing agent relied on to
    treat the IMM discharges. At peak AMD discharge rates, lime
    storage capacity is limited to as little as four days of supply.

    Search CAL. HSC. CODE § 25375.5 : California Code - Section 25375.5

    (a) Except as specified in subdivision (b), the procedures specified in Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and in Section 11513 of, the Government Code apply to the proceedings conducted by the board pursuant to this article.

    (b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804, and 805 of the Evidence Code apply to the proceedings conducted by the board pursuant to this article.

    (c) The board may consider evidence presented by any person against whom a demand was made pursuant to subdivision (c) of Section 25372. The evidence presented by that person shall become a part of the record upon which the board's decision shall be based.

    Nothing in this article shall require, or be deemed to require, pursuit of any claim against the board as a condition precedent to any other remedy.

    (a) Compensation of any loss pursuant to this article shall preclude indemnification or reimbursement from any other source for the identical loss, and indemnification or reimbursement from any other source shall preclude compensation pursuant to this article.

    (b) If a claimant recovers any compensation from a party in a civil or administrative action for a loss for which the claimant has received compensation pursuant to this article, the claimant shall reimburse the state account in an amount equal to the compensation which the claimant has received from the state account pursuant to this article. The Attorney General may bring an action against the claimant to recover the amount which the claimant is required to reimburse the state account, and until the account is reimbursed, the state shall have a lien of first priority on the judgment or award recovered by the claimant. If the state account is reimbursed pursuant to this subdivision, the state shall not acquire, by subrogation, the claimant's rights pursuant to Section 25380.

    (c) The Legislature hereby finds and declares that it is the purpose of this section to prevent double recovery for a loss compensable pursuant to this article.

    Compensation of any loss pursuant to this article shall be subject to the state's acquiring, by subrogation, all rights of the claimant to recover the loss from the party determined to be liable therefor. Upon the request of the board, the Attorney General shall commence an action in the name of the people of the State of California to recover any amount paid in compensation for any loss pursuant to this article against any party who is liable to the claimant for any loss compensable pursuant to this article in accordance with the procedures set forth in Sections 25360 to 25364, inclusive. Moneys recovered pursuant to this section shall be deposited in the state account.

    (a) The board shall, in consultation with the department, adopt, and revise when appropriate, all rules and regulations necessary to implement this article, including methods that provide for establishing that a claimant has exercised reasonable diligence in satisfying the conditions specified in Sections 25372, 25373, 25375, and 25375.5, and regulations that specify the proof necessary to establish a loss compensable pursuant to this article.

    (b) Claims approved by the board pursuant to this article shall be paid from the state account.

    (c) The Legislature may appropriate up to two million dollars ($2,000,000) annually from the state account to be used by the board for the payment of awards pursuant to this article.

    (d) Claims against or presented to the board shall not be paid in excess of the amount of money appropriated for this purpose from the state account. These claims shall be paid only when additional money is collected, appropriated, or otherwise added to that account.


    T.W. ARMAN & IRON MOUNTAIN MINES, INC. INTERVENE - "TWO MINERS"


    “Toxic” doesn't do justice to Iron Mountain runoff

    “The law assumes that property is always in the possession of its owner ….” Pennoyer v. Neff , 95 U.S. (5 Otto) 714, 727 (1877)

    Public Health Goal

    A revised PHG of 300 ^g/L was developed for copper in drinking water, based on a review 1
    of the scientific literature since the original PHG, in 1997 (OEHHA, 2008). Copper is an
    essential nutiient in humans, and has not been shown to be carcinogenic in animals or
    humans. However, young children, and infants in particular, appear to be especially
    susceptible to the effects of excess copper.
    The revised PHG of 300 pig/L is two orders of magnitude greater than the applicable
    numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life

    (see Table 1). Therefore, the revised PHG for copper wUl have no impact on the
    protectiveness of the remedies originally selected in the RODs for IMM.

    EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in the five signed RODs
    (EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004)

    Vitamin Firms Settle U.S. Charges, Agree to Pay $725 Million in Fines

    By JOHN R. WILKE and SUSAN WARREN
    Staff Reporters of THE WALL STREET JOURNAL

    WASHINGTON -- The world's two biggest vitamin makers agreed to pay a total of $725 million to settle Justice Department charges that they and other manufacturers engaged in a massive price-fixing conspiracy that inflated the cost of everything from breakfast cereal to hamburgers over the past decade.

    Hoffmann-La Roche Ltd., a unit of the Swiss drug giant Roche Holding AG that has 40% of the global human and animal vitamin market, agreed in U.S. District Court in Dallas to pay a record $500 million fine and plead guilty as part of the settlement. BASF AG, a major German chemical maker that has 20% of the market, will pay $225 million and enter a guilty plea as well.

    Rhone-Poulenc SA of France, the world's third-biggest vitamin maker with 15% market share, also participated in the price-fixing ring. But the company began cooperating with federal investigators a few months ago under an amnesty program and helped make the case against its co-conspirators, U.S. officials said.

    Members of the ring, including Rhone-Poulenc, also face potentially massive damage claims in 25 private lawsuits now pending in four federal courts. The suits were brought by livestock farmers and other purchasers of bulk vitamins who allege they were forced to pay illegally inflated prices. The first of these cases was filed in U.S. District Court in Washington, D.C., in March 1998.

    Wide Effect Cited

    The cartel "is the most pervasive and harmful criminal antitrust conspiracy ever uncovered," declared Joel Klein, chief of the Justice Department's antitrust division. The price-fixing ring "hurt the pocketbook of virtually every American consumer, anyone who took a vitamin, drank a glass of milk, or had a bowl of cereal," he said.

    Increasingly Painful Penalties

    10 largest fines secured by the U.S. Justice Department in antitrust cases.


    Company     		Fine
    (millions)
    Year
    Industry
    Roche Holding $500 1999 Vitamins
    BASF 225 1999 Vitamins
    SGL Carbon 135 1999 Electricity conductors
    Ucar International 110 1998 Electricity conductors
    Archers Daniels Midland 100 1996 Feed supplements, food additives
    Bayer 50 1997 Food additives
    HeereMac 49 1997 Offshore oil and gas construction services
    Showa Denko Carbon 33 1998 Electricity conductors
    Fujisawa Pharmaceutical 20 1998 Industrial cleaners
    Dockwise 16 1997 Offshore oil and gas construction, transportation

     

    Appeals Court To Hear PwC, AIG Negligence Claim 

    A New York state appeals court is scheduled to hear arguments on Sept. 14 that American International Group's (AIG) auditor failed to unearth the alleged fraud the company perpetrated and should be held liable for it.

    In the case, a Delaware court threw out a suit, Teachers Retirement System of Louisiana v. American International Group, because it was determined that AIG employees committed the fraud and the auditor, PricewaterhouseCoopers should not be held negligent for failing to identify the fraud.

    However, the Delaware court passed the issue of auditor liability to the New York Court of Appeals to resolve questions in that state's law over whether professional malpractice/negligence suits are barred against an auditing firm under the doctrine of “in pari delicto” or at mutual fault.

    The Delaware court asked the New York court to decide if a suit can be brought against an auditing firm that was not a participant in the corporation's fraud but failed “to satisfy professional standards in its audits of the corporation's financial statements.”

    The Supreme Court of Delaware said it would take no further action until after the New York court makes a decision.

    The questions stem from illegal accounting actions taken by AIG dating back to 1999, including the company's sham reinsurance contract with Gen Re to cover-up company losses.

    Stuart Grant, with the law firm Grant & Eisenhofer, will be representing the plaintiffs in the case.

      SAN FRANCISCO (CN) - The Sierra Club and WildEarth Guardians claim the U.S. Environmental Protection Agency violated the Clean Air Act by failing to ensure that six states meet national air quality standards. And the EPA failed to take final action on clean-air plans submitted by 13 other states and the District of Columbia, according to the federal complaint.
          The EPA found in 2008 that six states and three U.S. territories failed to submit implementation plans for National Ambient Air Quality Standards, and failed to issue federal implementation plans for North Dakota, Hawaii, Guam, American Samoa, Northern Mariana Islands, Alaska, Idaho, Oregon and Washington, the environmental groups say.
    And the EPA never took final action on plans submitted by Maryland, Virginia, Delaware, Arkansas, New Mexico, Oklahoma, Florida, Georgia, Texas, Nevada, North Carolina, Tennessee, Washington, D.C. and West Virginia.
          EPA approvals are required under to Clean Air Act, to limit levels of pollutants such as carbon monoxide, lead and ozone.
          The groups ask the court to order the EPA to implement the "long-overdue" standards under the Clean Air Act.
          They are represented by Kristin Henry with the Sierra Club's Environmental Law Program in San Francisco.

    doa

    OTHER ENVIRONMENTAL JUSTICE COMMUNITIES

    In  Hilao , the Ninth Circuit recognized that “serious questions” as to whether this method comported with due process, but nonetheless concluded that due process was provided.  Id. (citing Hilao, 103 F.3d at 786). “The defendant's interest was in the aggregate amount of damages; thus, provided that the average was properly calculated, it was of no consequence to defendant that some plaintiffs would have been entitled, in individual adjudications, to more or less than this average.”  Id. (citing  Hilao , 103 F.3d at 786). The Ninth Circuit concluded that plaintiffs had an “enormous” interest in the use of averages since individual adjudications were infeasible; and the Hilao court concluded that balancing these interests under  Connecticut v. Doehr , 501 U.S. 1, 10-11 (1991) and  Mathews v. Eldridge , 424 U.S. 319 (1976), the method did not offend the Due Process clause.  Id.

    The court in  Adoma cited the Ninth Circuit's recent en banc opinion in  Dukes v. Wal-Mart , affirming the continuing validity of  Hilao . Dukes v. Wal-Mart , 603 F.3d at 625-27:

    Id. *7.

    The court concluded that “the types of arguments are common to all class members” and that “ Hilao appears to permit a representative inquiry to determine the magnitude of these effects, and at this stage, the court cannot distinguish Hilao.”  Id. *8.  The court also found that the “question of whether the Avaya system gave defendants at least constructive knowledge of the employee overtime is a common question.”  Thus it concluded that common questions predominate.

    Order

    The court thus granted plaintiffs' motion for class certification


    To demonstrate injury in fact, a plaintiff "must show that [it] is under threat of suffering `injury in fact' that is concrete and particularized" and "actual and imminent, not conjectural or hypothetical." Summers v. Earth Island Inst., 129 S.Ct. 1142 , 1149 (2009). Put another way, "Art[icle] III requires the party who invokes the court's authority to `show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'" Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 , 472 (1982) (quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91 , 99 (1979)) (emphasis added). If the plaintiff is not the target of the challenged government action or inaction, "standing is not precluded, but it is ordinarily `substantially more difficult' to establish." Lujan, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737 , 758 (1984)). U.S. v. CITY OF ARCATA No. 09-16780.

     

    "[F]ederal jurisdiction exists only when a federal question is presented on the face of a properly pleaded complaint." JustMed, Inc. v. Byce, 600 F.3d 1118 , 1124 (9th Cir. 2010) (internal quotation marks omitted). The mere existence of a federal defense to a state law claim is insufficient to create federal jurisdiction over a case. Louisville & Nat'l R.R. v. Mottley, 211 U.S. 149 , 152 (1908).

     

    The district court also had federal question jurisdiction over the case pursuant to 28 U.S.C. § 1331, which provides the district courts with "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States ." The government's complaint posed a federal question in its own right because it sought invalidation of the ordinances under federal law. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85 , 96 n.14 (1983).

     

    The Constitution expressly provides Congress with the power to "raise and support Armies" and to "make Rules for the Government and Regulation of the land and naval Forces." U.S. Const. art. I, § 8, cls. 12, 14. And the Supreme Court has made clear that the federal government "can determine, without question from any State authority, how the armies shall be raised." Perpich v. Dep't of Def., 496 U.S. 334 , 353 n.27 (1990) (quoting Tarble's Case, 80 U.S. (13 Wall.) 397, 408 (1872)); see also New York v. United States , 505 U.S. 144 , 156 1992) ("If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States . . . ."). U.S. v. CITY OF ARCATA No. 09-16780. United States Court of Appeals, Ninth Circuit. Submitted November 4, 2010 * San Francisco , California . Filed December 17, 2010.

     

    TO: Members of the 112 th Congress

     

    Committee Staff Directors and Counsels; Member Staff

     

    FR: Speaker-Designate Boehner, Majority Leader-Elect Eric Cantor, Rules Committee Chairman-Elect David Dreier, Transition Team Chairman Greg Walden

     

    DT: December 17, 2010

     

    RE: New Constitutional Authority Requirement for Legislation

     

    The new rule will be a new paragraph of clause 7 of rule XII:

     

    "(c) A bill or joint resolution may not be introduced unless the sponsor has submitted for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk.”

     

    CERCLA's BFPP Protections in Question

     

    In what might be considered one of the most important superfund cases of the year, a federal district court for the first time has interpreted the requirements for the bona fide prospective purchaser defense and found several were not met, a New York City attorney told BNA Dec. 7. Referring to the decision in Ashley II of Charleston LLC v. PCS Nitrogen Inc. (D.S.C., No. 2:05-cv-2782, 9/30/10), Lawrence Schnapf, principal of Schnapf Environmental Law Offices, said the decision, which for the first time scrutinized the appropriate care requirement, has widespread implications for whether the self-implementing nature of the bona fide prospective purchaser (BFPP) defense is sufficient for liability protection under the federal superfund law. "After the 2002 amendments to CERCLA, EPA basically took the position that it was getting out of the prospective purchaser agreement business because the BFPP was self-implementing. 

     

    Reported in BNA's Environmental Due Diligence Memo on December 15th, this case raises questions about the reliability of the statute's landowner protections," Schnapf said. The case stems from a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action to recover costs incurred to remediate approximately 34 acres of land in Charleston , S.C. , with contamination related to the historic operations of a fertilizer manufacturing plant. Ashley II had purchased the site for redevelopment. It argued it was not liable for the contamination because it was a protected by CERCLA's BFPP defense. The court disagreed and found Ashley responsible for 5 percent of the allocated cleanup costs.

     

    Environmental Bankers Association (EBA) is a non-profit trade association that represents the financial services industry, including bank and non-bank financial institutions, insurers, asset management firms and those who provide services to them. Its members include lending institutions, property & casualty and life insurers, the environmental consulting and appraisal community, and attorneys. The EBA was established in 1994 in response to heightened sensitivity to environmental risk issues, and the need for environmental risk management, sustainable development, and due diligence policies and procedures in financial institutions.

     

    Membership in the EBA is not limited to financial institutions. Currently, our membership includes property & casualty insurers and brokers, environmental consultants, appraisers and environmental information management firms, and environmental, real estate and trust attorneys in addition to the financial sector.

     

    The EBA meets formally twice a year at a location hosted by one of its members. The meetings provide not only a forum to promote the exchange of environmental risk management and sustainable development lending information and technical expertise but also provides the opportunity for our members to network.

    White House issues scientific integrity memo

     

    Guidelines are intended to help increase public trust in science

    President Obama's science and technology advisor issued a memo to federal science agencies Friday to guide them in making rules to ensure scientific integrity.

    The memo, which applies to executive branch departments and agencies such as the Department of Agriculture and the National Science Foundation, is “several steps in the right direction,” said Al Teich, the director of science policy at the American Association for the Advancement of Science (AAAS).

    Director of the White House Office of Science and Technology Policy John Holdren sent out the guidelines after a March 2009 memo by Obama emphasized the need for public trust in science. In that memo, Obama highlighted principles of scientific integrity that he said would be at the core of his administration's approach to science policy.

    New guidelines

     

    The new memo is meant to provide further guidance to the heads of federal scientific departments and agencies, the White House announced Friday.

    Scientific integrity in government. The memo outlines guidelines for open communication among federal scientists and the public, including making data available online.? 

    Public communications. Agencies are required to offer “articulate and knowledgeable” spokespersons to explain scientific findings to the media and public. The memo requires that agencies put mechanisms in place to resolve disputes about decisions to proceed with or refuse media interviews.

    Federal advisory committees. These committees, or FACs, are tasked with providing scientific advice for policy decisions. The memo requires transparency in recruiting committee members. It also requires that any conflict of interest information be publicly available. Finally, agencies are to be prohibited from revising committee recommendations, protecting the independence of FACs.

    Professional development for federal scientists. Agencies and departments must encourage scientists to publish and present freely. Scientists should also be allowed to participate in professional enrichment activities like sitting on journal editorial boards.

    Some of the changes are significant, said AAAS's Teich, including a rule that federal scientists must put their results into context by highlighting uncertainties and including best- and worse-case scenarios. [Read: White House Wonders if Climate Will Be Hostage to Politics ]

    “There's a natural tendency on the part of people to want to put their research results in the most favorable light,” Teich told LiveScience. The requirements will force federal researchers to “take a different perspective, and a much more open and balanced perspective, if in fact it's implemented the way it's written,” Teich said.

    In the memo, Holdren gave department and agency heads 120 days to report their progress in setting rules to meet the guidelines.

    “All in all, we're pleased, but the word ‘appropriate' appears a half a dozen times in this document, and that means there's a lot of discretion for these agencies as to how they implement it,” Teich said, adding, “They've talked the talk, now we'll see if they walk the walk, and we hope they do.”

    Politics and scienceThese guidelines may help prevent situations where political ideology interferes with the communication of scientific information, according to Neal Lane , a professor of public policy at Rice University . These incidents included the editing of an Environmental Protection Agency report to the point where it glossed over the risks of climate change .

    “Those are the kinds of things that should not ever happen in any administration, whatever the party is,” he told LiveScience. “These agencies are large complex organizations with many layers and sometimes you can find people who don't know the science in a position to influence what the agency puts out about the science.”

    Hopefully, these guidelines will prevent this from happening in the future, according to Lane.

    Wendy Wagner, a professor at the University of Texas School of Law and a member scholar at the Center for Progressive reform had some reservations about the lack of guidance in the memo for how agencies should use non-federal science data in setting regulations.

    “On the whole, however, the new policy is an important step forward,” Wagner said in a statement. “Hopefully it will be followed by many more positive directives on science-policy in the not too distant future.”

    Michael McPhaden, president of the American Geophysical Union and a National Oceanic and Atmospheric Adminsitration scientist, lauded the guidelines emphasis on peer review, transparency, and the lifting of restrictions on government scientists' activities in professional societies.

    “This is really a revolutionary document,” McPhaden told LiveScience.

    LiveScience Senior Writer Wynne Parry contributed reporting to this article.

     

     

     

    A Watershed Moment for the Clean Water Act

     

    (1) Looking 20 years ahead, what systemic risks will the emergency management community face?

     

    (2) What transformational events could shape emergency management's future?

     

    (3) What should the emergency management community be doing now to have the right future capacity and capabilities to serve those who depend on us?

     

    The Fifth Circuit erred in according absolute priority to the subject-matter jurisdiction requirement on the ground that it is nonwaivable and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. Although the character of the two jurisdictional bedrocks unquestionably differs, the distinctions do not mean that subject-matter jurisdiction is ever and always the more “fundamental.” Personal jurisdiction, too, is an essential element of district court jurisdiction, without which the court is powerless to proceed to an adjudication. Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 , 382. In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies–lack of complete diversity–rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by §1332, but not by Article III of the Constitution, see State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523 , 530—531, is absent. In contrast, Ruhrgas relies on the constitutional due process safeguard to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 , 702. The Steel Co. jurisdiction-before-merits principle does not dictate a sequencing of jurisdictional issues. A court that dismisses for want of personal jurisdiction, without first ruling on subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles underlying Steel Co. Pp. 8—10. RUHRGAS AG v. MARATHON OIL

     

    In most instances, subject-matter jurisdiction will involve no arduous inquiry, and both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first. Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex state-law question, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.

     

    145 F.3d 211, reversed and remanded.

     

     

     

    Ginsburg, J., delivered the opinion for a unanimous Court.

     

     

     

    EX PARTE APPLICATION FOR ORDER CONTINUING HEARING DATE ON THE UNITED STATES' MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT THEREOF

     

     

     

    ADMISSION OF ADMINISTRATIVE RECORD - CERTIFICATE OF APPEAL

     

    The ongoing environmental calamity at Iron Mountain Mine has created new major and modified existing stationary sources that would require air permits prior to beginning emissions that becomes an enforceable part of the new process for determining the required emission control technology - criteria pollutants such as sulfur dioxide, nitrogen dioxide, carbon dioxide, carbon monoxide, particulate and volatile organic compounds exceed a “significance” threshold, the permittee is required to analyze available and technically feasible control technology with the goal of selecting the best available control technology (BACT) for new or modified emissions.

     

    PHYEW! I BEG YOUR PARDON.

     

    CERCLA EPCRA Administrative Reporting Exemption For Air Releases

     

    Travelin' in Time: Iron Mountain has rich history

     

    Ah ... the good old days

     

    A major health and environmental hazard because of the huge volumes of poisonous sulphurous dioxide gases released into the air. The company made token attempts to prevent the spread of the poisonous gases, resulting in Superior Court lawsuits that closed the smelter by court order in 1907. ...

     

    No one lives on the mountain today. There is only one remaining privately owned piece of property on the mountain — Iron Mountain Mine, and that is owned by Ted Arman. All the rest of the mountain property is owned by an agency of the federal government — the Bureau of Reclamation, the U.S. Forest Service, or the Department of Reclamation. 

     

    Iron Mountains Mines, Inc. purchased the property in 1976. In 1983, Iron Mountain Mine was placed on the Environmental Protection Agency's National Priority List, making it eligible as a Superfund cleanup site. Cleanup investigative work by the federal government began that year.

     

    General Docket

    United States Court of Appeals for the Ninth Circuit

     

    Court of Appeals Docket #: 09-17411

     

    Docketed: 10/29/2009

     

    Nature of Suit: 1893 Environmental Matters

     

    USA , et al v. T.W. Arman, et al

     

    Appeal From: U.S. District Court for Eastern California, Sacramento

     

    Fee Status: Paid

    .

    ADVERSE CLAIMS - DEFAMATION OF CHARACTER - STIGMATIC INJURY - ILLEGITIMATE ANIMUS - LIBEL & SLANDER

    CONCURRENT JURISDICTIONS & CLASS ACTION FAIRNESS ACTION -"TWO MINERS (A HUNDRED MEMBERS) & 8000 ACRES OF LAND"

    Structure of Cooperative Utility Model
    One model for replacing Fannie Mae and Freddie Mac that has so far received frequent
    mention but little sustained analysis is the lender cooperative utility. Yet while each different model
    for a successor to the GSEs has its own strengths and weaknesses, a private lender cooperative
    utility may provide the best overall solution based on the design principles listed earlier. Under this
    model, securitization would be carried out by a mortgage securitization cooperative that would be
    mutually owned by a membership consisting of financial institutions engaged in residential mortgage
    lending. Cooperative or mutual structures have existed for more than a century in the U.S. financial
    system, ranging from clearing houses (e.g. CME until 2000, DTC, CLS, ICE Trust), banking (e.g.
    mutual savings banks, credit unions and the FHLB system) and agricultural finance (e.g. the Farm
    Credit System). The main goal of a cooperative is to provide services to its members

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    Secretary Napolitano Announces Stop.Think.Connect.™ Campaign Partnership with D.A.R.E. America

    The Department of Homeland Security's Stop.Think.Connect. Campaign today announced a new partnership with Drug Abuse Resistance Education (D.A.R.E.) America - an initiative that will help protect millions of children from online threats by encouraging Internet safety.

    Posted July 26, 2011 in News

    DHS for a Day IV

    Homeland security is a responsibility shared across a broad range of partners, including the private sector. In support of our continued efforts to strengthen our security in collaboration with America’s businesses, schools and industries, DHS recently hosted the fourth DHS for a Day event in Seattle on July 19th.

    Posted July 26, 2011 in The Blog

    Global Partnerships Tackle Drug Trafficking

    From joint patrols to drug interdiction agreements, international partnership is essential to maritime security in the Caribbean and the Eastern Pacific. Coast Guard cutters patrol these transit zones and work closely with their Central and South American counterparts to stop drugs from getting close to the U.S.

    Posted July 26, 2011 in Compass

    Combating Transnational Organized Crime

    Today, the Obama Administration announced the release of the President’s Strategy to Combat Transnational Organized Crime. In the words of the message from President Obama that accompanies the Strategy: "This strategy is organized around a single, unifying principle:  To build, balance, and integrate the tools of American power to combat transnational organized crime and related threats to our national security—and to urge our partners to do the same."

    Posted July 25, 2011 in The Blog

    Restrictions on Importing Rice from Countries with Known Khapra Beetle Infestations

    U.S. Customs and Border Protection will enforce a federal quarantine order beginning July 30 that restricts the importation of rice into the U.S. from countries with known Khapra beetle infestations. The introduction and establishment of Khapra beetle into the U.S. poses a serious threat to stored agricultural products, including spices, grains and packaged foods.

    Posted July 25, 2011 in CBP

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    How Did We Accumulate So Much Debt?

    Want to know how we are spending $12.7 trillion? This infographic details the impact policies and programs implemented over the last 10 years are having on the nation's bottom line.

    Marc Beauchamp: Holy war looming over Iron Mountain?

    • Posted June 12, 2010 at midnight

    Growing up in Redding in the 1950s and ’60s, I didn’t think much about Iron Mountain. It was just a big gash on a hillside west of town, a sometimes useful landmark.

    This was before I learned the colorful 70-year history of the mine and before Iron Mountain became famous — infamous, I should say — as one of the first Superfund sites, notorious for leaching some of the most corrosive water in the country and home to an EPA-directed treatment and cleanup operation that I joke may be the last employer in Shasta County several centuries hence.

    Four years ago, while on the staff of the Record Searchlight, I got a tour of the round-the-clock pollution treatment efforts at Iron Mountain, just after a glowing federal report about all the progress made. The Iron Mountain remediation effort, it implied, was a feather in the cap of the Environmental Protection Agency and Rick Sugarek of the agency’s San Francisco office, who has spent more than two decades working on it.

    Then I met Ted Arman, the octogenarian owner of the mine. Over coffee, he said the EPA has exaggerated Iron Mountain’s risks with talk of “poison” and pictures of shovel blades eaten away by acid mine drainage, and that the feds have kept him from using new technology to turn mineral-rich water into fertilizer and other products. “EPA messed up my business.”

    In late March I joined him in his 1989 Lincoln for a two-hour tour of his property. Arman is clearly bitter that others, like Sugarek and CH2MHill, have made careers and fortunes from the property he’s owned since 1979.

    As he traverses the winding gravel road up his mountain, he must announce his position on a radio phone.

    Arman’s 89 but still full of fire and big plans. If EPA won’t let him turn acid runoff into life-giving fertilizer he aims to make his mountain known for something more than just a Superfund site. The idea — call it an epiphany — came to him three years ago: erect a 200-foot-tall concrete statue of Jesus Christ on top of Iron Mountain. He claims to have received calls from interested parties from around the world after word of his plans got on the Internet.

    If Arman thinks he’s got trouble with EPA, wait until he submits plans for his towering statue (think Rio de Janeiro) to county officials, the FAA and Jim Milestone, superintendent of neighboring Whiskeytown National Recreation Area. Instead, maybe he should explore the (for lack of a better word) eco-tourism potential of Iron Mountain. It is, after all, ecology — a mountain turned inside out by man. Just as interesting as the Devastated Area and Bumpass Hell at Lassen Park.

    Old-time religion

    When it comes to religion, call me old-fashioned, conservative. Before I knew who Shakespeare was, I fell in love with the Elizabethan language of the Book of Common Prayer. At All Saints Episcopal Church, a quaint turn-of-the-century wood-framed chapel that used to sit on the southwest corner of Court and Yuba streets, I fell in love with the vestments, candles, brass processional cross, silver chalice and crisp linen altar cloths.

    But then, some time in the late ’60s, the Episcopal Church felt it had to change, to get hip, to get (in the buzzword of the time) “relevant.” Priests started strumming guitars and the Book of Common Prayer was rewritten, recast in newspaper English. Here in Redding the local church fathers decided to forsake their historic building and began what turned out to be a short-lived period of cohabitation with the Presbyterians in that brown pyramid on Placer Street.

    Of course, in hindsight, this move to a secular rock ‘n roll style church service is obviously what people wanted. Witness the rise of nondenominational megachurches like Bethel, where congregations get folksy sermons from laid-back ministers dressed in jeans with their shirttails hanging out and worship services largely consist of congregants singing and swaying to seemingly unending U-2-inspired rock anthems.

    Whatever works, I guess. Successful churches are, fundamentally, businesses. In the Puritan old days church services were something to endure. Now they’re something to enjoy, something to uplift. And the money follows.

    Wish my Episcopal Church had resisted the siren song of modernity. It tried to be something it wasn’t — and the young people left anyway. Last time I attended an 8 o’clock Holy Communion service (this was several years ago) I had trouble hearing the minister over the sound of parishioners on oxygen tanks.

    Show time

    The Cascade Theatre, which turns 75 this year, is the crown jewel of downtown Redding — a gem restored to its 1935 Art Deco luster thanks to the vision of the folks behind southern Oregon-based Jefferson Public Radio, the fundraising prowess of Lou Gerard Jr., the energy of Shasta High “Music Man” Ken Putnam, the generosity of thousands of north state residents and, last but not least, the boosterism of this newspaper.

    My early memories of the Cascade Range from “To Kill a Mockingbird” and “Easy Rider” to “Rosemary’s Baby” and such unforgettable second features as the “H-Man,” a badly dubbed Japanese monster movie about sewer-dwelling blobs of blue-green radioactive sludge that devour anyone unlucky enough to get in their way (scared the daylights out me when I was eight).

    How lucky we are that the Cascade is still around, making memories for new generations of north state residents. Speaking of which... among the headliners lined up for JPR’s 2010-11 season at the Cascade: Wynonna Judd, Clint Black, Pat Benatar, Garrison Keillor, Bryan Adams, the Manhattan Transfer and (I’m not going to miss this one) the Glenn Miller Orchestra. Bravo, JPR.

    Marc Beauchamp has a blog at redding.com. Reach him at notbusinessasusual@gmail.com.


    1892 Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892) established the scope of the public trust doctrine in America . The issue was whether the Illinois legislature could grant nearly the entire waterfront area of Chicago to the Illinois Central Railroad. The Supreme Court of the United States held that Illinois had title to the land underneath the navigable waters of Lake Michigan and that it held this title in trust for the public's use. Illinois was not allowed to convey this land if the effect would be to destroy the public's right of navigation and fishing. However, the Court also held that Illinois could convey parcels of trust land to private individuals so long as the overall effect was to improve the public's ability to exercise its trust rights. The conveyance to Illinois Central did not meet this criterion and was therefore void.

     

    1926 December 24: California Supreme Court rules in Herminghaus v. Southern California Edison that riparian water right holders are not bound by existing California law to use water reasonably with respect to appropriative water right holders.

     

    The decision proves controversial throughout California .

     

    July 30: California Department of Finance files water rights applications for 7.3 million acre-feet of water rights on the Feather River and in the Delta, as well as millions more on many other rivers and streams throughout the Central Valley watershed in anticipation of design and construction of statewide water systems. The states requested water rights exceed by many times the amount of annual runoff in the rivers subject to the state's applications.

     

    1928 November: California voters pass Proposition 7, a constitutional amendment banning waste and unreasonable use, and unreasonable methods of diversion of water statewide by nearly a 4-to-1 margin. The constitutional amendment requires that all uses and diversions, and methods of diversions of water in California must be reasonable, including riparian rights, thereby addressing the issues raised by Herminghaus .

     

    1933 December: California voters narrowly pass the Central Valley Project Act by a margin of 33,603 votes statewide, authorizing the state to build its first coordinated water system. Because of the Great Depression, the state could not finance the project, however.

     

    1928 -

     

    1934

     

    First lengthy statewide drought of the 20th century results in runoff from all rivers and streams tributary to the Delta that was less than 60 percent of average conditions.

     

    1937 US Bureau of Reclamation takes over ownership, design, construction, and operation of the Central Valley Project from the state of California .

     

    1940s Shasta Dam completed on upper Sacramento River in 1944; Friant Dam completed on upper San Joaquin River in 1949.

     

    On the San Joaquin River , fall-run Chinook salmon go extinct in late 1940s and spring-run Chinook salmon go extinct in early 1950s.

     

    1969 · Clean Water - - The Porter-Cologne Water Quality Control Act is adopted as one of the nation's strongest anti-pollution laws and becomes a model for the federal Clean Water Act of 1972.

     

    1977 · Alternative Energy -- Governor Brown and the Legislature enact the nation's largest tax-incentive program for encouraging development of solar energy. The following year, the state sets a goal of meeting 10 percent of its electrical needs with wind power by the year 2000.

     

    1986 May: Appellate Judge John Racanelli issues the first public trust and water quality planning decision on the Delta cases originally filed in 1978, United States v. State Water Resources Control Board . California Supreme Court declines to hear the case on appeal in July, letting Judge Racanelli's decision stand. Racanelli stated that the State Water Resources Control Board must take a global view of the Delta and Sacramento and San Joaquin River tributary watersheds, and must by law protect beneficial uses of water (including fish and wildlife) not merely water rights.

     

    1988 California Legislature adopts the Salmon, Steelhead Trout, and Anadromous Fisheries Program Act , setting as state policy a goal to double the production of salmon and steelhead fish in California .

     

    October: After more than a year of evidentiary hearings into public trust resource and water supply issues, State Water Resources Control Board issues Draft Bay-Delta WQCP calling for a new “water ethic,” new flow objectives for Delta channels, and pre-State Water Project export rates [but split between Central Valley Project and State Water Project pumps] as a “reasonable interim goal until a safe level of exports is found.” After water contractors strenuously object to the draft plan, it is withdrawn.

     

    1914 Tax Exemption for Universities -- Nonprofit colleges and universities are exempted from property taxation. (Constitutional amendment, proposed by the Legislature, approved by 53 percent of voters.) A 100-acre cap on their tax-exempt property is expanded in 1962 to include all lands used for higher education.

     

    1995 · Incompetent Judges --Voters endorse a constitutional amendment offered by the Legislature to permit greater public oversight in disciplining corrupt, biased or incompetent judges. The Commission on Judicial Performance is given authority to remove or censure judges and its disciplinary hearings will be open to the public. (Approved by 63.7 percent of voters.)

     

    Current Research

    Iron Mountain, California

    At Iron Mountain near Redding, CA research is currently focusing on a “molecular-level understanding of the metabolism of organisms involved in AMD formation”. The project is using several methods to identify the molecular community and the roles of specific organisms present. DNA sequence analysis is used to learn what organisms are in the environment and then fluorescence in-situ hybridizations (FISH) determines cell type distribution and geochemical conditions. Samples are taking from different locations such as sediments, pore fluids, free-flowing waters, and subaerial biofilms. These field samples then serve as innoculum in various media that are incubated under aerobic, microaerophillic, and anaerobic conditions. Information about growth rates, metabolic capability, and optimal growth conditions is taken from isolates which are then identified through DNA sequence analyses. Currently, analysis has identified Leptospirillum group II, Leptospirillum group III, and Ferroplasma acidarmanus. [9] Allen, E. and Banfield, J. 2005. “Community genomics in microbial ecology and evolution”. Nauture Reviews Microbiology 3:489-498. http://seismo.berkeley.edu/~jill/amd/AMDresearch.html#fieldsite

    Highlights of Research Progress, Genomic Science Program

    by I Gallery
    Apr 19, 2010 ... Microbial Community Thriving in Acid Mine Drainage ... abandoned gold mine at Iron Mountain , one of the nation's worst Superfund sites (see ...
    genomicscience.energy.gov/research/progress_metagenomics.shtml - Cached

    An Archaeal Iron -Oxidizing Extreme Acidophile Important in Acid ...

    by KJ Edwards - 2000 - Cited by 239 - Related articles
    THE COMPOSITION OF COEXISTING JAROSITE-GROUP MINERALS AND WATER FROM THE RICHMOND MINE , IRON MOUNTAIN , CALIFORNIA. H. E. Jamieson, C. Robinson, C. N. Alpers ...

    Advances in the Hydrogeochemistry and Microbiology of Acid Mine Waters

    by D Nordstrom - 2000 - Cited by 39 - Related articles
    refuse piles. This species optimally grew at 55°C and pH about 2. At the Iron Mountain Mine site, a new iron-oxidizing Archaeon has been found, Ferro- ...
    www.informaworld.com/index/910193110.pdf

    [PDF]

    Oxidation Kinetics of Tetrathionate at Low pH: Implications for ...

    File Format: PDF/Adobe Acrobat - Quick View
    the Iron Mountain Mine site may be intimately linked to the mechanism and rate of sulphur oxidation in different environ- ments. It is the goal of this ...
    www.the-conference.com/JConfAbs/5/362.pdf - Similar

    Environment – This Just In - CNN.com Blogs

    The Iron Mountain Mine acid draining treatment facility, the heart of the ... Iron Mountain, a former mine that is dripping with acid capable of eating away ...
    news.blogs.cnn.com/category/env iron ment/ - Cached

    World's most acidic water found in mine - Water Technology Online ...

    With a pH of -3.6, the puddles found in the Iron Mountain Mine are more acidic ... The Iron Mountain Mine was the largest copper mine in California in the ...
    www.watertechonline.com/news.asp?N_ID=14585 - Cached

    Acid Mine Drainage ( Iron Mountain ) - Analysis

    Acid Mine Drainage ( Iron Mountain ). Download · Analysis · Info · Home. Analysis. Assembly. Gene Calling. Annotation. • Acid Mine Drainage ...
    genome.jgi-psf.org/acidm/acidm.analysis.html - Cached

    Data Usage Policy (February 5, 2009)

    As a public service, the raw sequence data from the genome sequencing projects are being made available by the Department of Energy Joint Genome Institute (JGI) before scientific publication. The purpose of this policy is to balance the imperative of DOE and JGI that the data from its sequencing projects be made available to the scientific community as soon as possible with the reasonable expectation that the collaborators and the JGI will publish their results without concerns about potential preemption by other groups that did not participate in the effort.

    These pre-publication data are preliminary and may contain errors. The goal of our policy is that early release should enable the progress of science. By accessing these data, you agree not to publish any articles containing analyses of genes or genomic data on a whole genome or chromosome scale prior to publication by JGI and its collaborators of its comprehensive genome analysis. These restrictions will be lifted on the publication of the whole genome description or the expiration of a 12-month period after public release of the 8x assembly and draft annotation, whichever comes first. During this waiting period, the data will be available for any kind of publication that does not compete directly with planned publications (e.g. reserved analyses) of the JGI and collaborators. A principal collaborator or "champion," listed in the organsim's Info page and is the point of contact and arbiter regarding publication plans. Scientists are strongly encouraged to contact the principal collaborator and JGI about their intentions and any potential collaboration.

    Reserved analyses include the identification of complete (whole genome) sets of genomic features such as genes, gene families, regulatory elements, repeat structures, GC content, etc., and whole-genome comparisons of regions of evolutionary conservation or change. Manually annotated genes within the Genome Portal are also reserved. Studies of any type on the reserved data sets that are not in direct competition with those planned by the JGI and its collaborators may also be undertaken following an agreement to that effect. Interested parties are encouraged to contact the the principal collaborator and JGI to discuss such possibilities.

    If these data are used for publication, the following acknowledgment should be included: "These sequence data were produced by the US Department of Energy Joint Genome Institute http://www.jgi.doe.gov/ in collaboration with the user community." We request that you notify us upon publication so that this information can be included in the final annotation.

    The data may be freely downloaded and used by all who respect the restrictions in the previous paragraphs. While still in waiting period status, the assembly and raw sequence reads should not be redistributed or repackaged without permission from the JGI. Any redistribution of the data during this period should carry this notice: "The Joint Genome Institute provides these data in good faith, but makes no warranty, expressed or implied, nor assumes any legal liability or responsibility for any purpose for which the data are used." Once moved to unreserved status, the data are freely available for any subsequent use.

    JOINT SUPREME DIRECT JURY INITIATIVE
    		Do not show Data Usage Policy for Acid Mine Drainage (Iron Mountain) next time

    Microbiome Details

    Microbiome Information
    Genome Statistics
    Phylogenetic Distribution of Genes
    Phylogenetic Profiler
    Genome Viewers
    Export Genome Data
    Scaffold Search

    Microbiome Information

    Microbiome Name Taxon Object ID NCBI Taxon ID NCBI Project ID GOLD ID in IMG Database External Links Genome type Sequencing Status IMG Release Comment Release Date Add Date Modified Date Obsolete Flag Is Public Bins (of Scaffolds) Project Information GOLD ID NCBI Project ID Publication Journal Isolation Country Isolation Year Geographic Location Project Location (Longitude) Project Location (Latitude) Project Geographical Map Funding Agency Sequencing Center Metadata Isolation Temperature Optimum pH Phenotype Disease Relevance Habitat
    Acid Mine Drainage
    2001200000
    256318
    20823
    Gm00001

    metagenome
    Draft



    2006-12-20
    2010-04-17
    No
    Yes
    Method : tetra
            Thermoplasmatales archaeon Gpl  ( 410 )
            Leptospirillum sp. Group II  ( 70 )
            Leptospirillum sp. Group III  ( 474 )
            Ferroplasma acidarmanus Type I  ( 170 )
            Ferroplasma acidarmanus Type II  ( 59 )
    Gm00001
    20823
    Nature (428, 37-43)
    USA
    2005
    Iron Mountain California
    -122.515068
    40.678099

    "Iron Mountain California
    40.678099
    -122.515068
    "); GEvent.addListener(gmarker, "click", function() { gmarker.openInfoWindowHtml("Iron Mountain California
    40.678099
    -122.515068
    "); }); } //
    DOE, NSF
    DOE Joint Genome Institute, Univ of California, Berkeley
    Richmond mine at Iron Mountain California
    38-42
    0.83-1.28
    Acidic, Metal tolerance, Pink biofilm
    None
    Biotechnological, Environmental
    Acid mine, Biofilm, High metal concentration

    WATER REGULATIONS

    WATER LAW & REGULATION

    CALIFORNIA WATER RIGHTS PRIMER

    CALIFORNIA WATER RIGHTS AND THE PUBLIC TRUST DOCTRINE

    JUDICIAL REVIEW

    PUEBLO WATER RIGHTS

    IRON MOUNTAIN HAZARD ASSISTANCE REMEDIATION DIRECTOR TENANT-IN-CHIEF OPERATING OFFICER

    ONE THOUSAND EIGHT HUNDRED NINETY-THREE ENVIRONMENTAL MATTERS

    Court of Appeals Docket #: 11-15383 Docketed: 02/16/2011
    Nature of Suit: 1893 Environmental Matters
    USA, et al v. Iron Mountain Mines, Inc., et al
    Appeal From: U.S. District Court for Eastern California, Sacramento
    Fee Status: Paid
    Case Type Information:
         1) civil
         2) united states
         3) null

    Originating Court Information:
    District: 0972-2 : 2:91-cv-00768-JAM-JFM
    Court Reporter: Kelly Ann O'Halloran
    Trial Judge: John A. Mendez, District Judge
         Date Filed: 06/12/1991
         Date Order/Judgment:      Date Order/Judgment EOD:      Date NOA Filed:      Date Rec'd COA:
         12/16/2010      12/16/2010      02/14/2011      02/15/2011

    District: 0972-2 : 2:91-cv-01167-DFL-JFM
         Date Filed: 08/21/1991
    02/23/2011  3  Filed (ECF) Appellants T. W. Arman and Iron Mountain Mines, Inc. Mediation Questionnaire. Date of service: 02/23/2011. [7658006] (AG)
    03/01/2011  4  Filed (ECF) notice of appearance of Joan M. Pepin for Appellee USA. Date of service: 03/01/2011. [7664084] (JMP)
    03/01/2011  5  Added attorney Joan M. Pepin for USA, in case 11-15383. [7664123] (MT)
    03/08/2011  6  Filed (ECF) notice of appearance of Russell B. Hildreth for Appellee State of California. Date of service: 03/08/2011. [7673306] (RBH)
    03/09/2011  7  Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company corporate disclosure statement. Date of service: 03/09/2011. [7673671] (MWP)
    03/09/2011  8  Attorney Sara J. Russell in 11-15383 substituted by Attorney Russell B. Hildreth in 11-15383 [7673675] (MT)
    03/09/2011  9  Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674036] (MWP)
    03/09/2011  10  Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion for sanctions. Date of service: 03/09/2011. [7674081] (MWP)
    03/09/2011  11  Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company response opposing motion (,motion to withdraw as counsel). Date of service: 03/09/2011. [7674132] (MWP)
    03/09/2011  12  Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Corrected Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674164] (MWP)

    the Superfund stopped getting funded in 1995. President Clinton unsuccessfully tried to reinstate the tax on polluters that originally filled the fund's coffers, and the fund actually ran out of money in 2003. Since then the program has relied on appropriations whose amount and consistency shift according to the prevailing congressional winds.

    The Center for Public Integrity critically investigated the Superfund program in 2007; one of their findings was that the EPA was unable to undertake cleanups because of their lack of funding.

    In 2009, the agency drafted a rule that addresses this in part -- they want mining companies to provide evidence that they'll be able to stay in business not just when they're making money off a mine, but years after the fact, when a messy, expensive cleanup -- like the one in Libby, Mont. -- might be needed.

    This new rule was spurred by a Sierra Club lawsuit alleging that the 63 hardrock mining sites on the National Priorities List have estimated cleanup costs of $7.8 billion, and $2.4 billion of those costs were going be footed by taxpayers.  Meanwhile, many more Western mining sites are being considered for Superfund listing, and the costs of cleaning up each site keep getting higher .

    Notable opponents to the 2009 EPA rule include Alaska Senator Lisa Murkowski, a mining fan, and -- shocker -- the National Mining Association. (Read Murkowki's letter to the EPA [PDF])

    Rule 44. Proving an Official Record

    Tempers Flare at Environmental Justice Conference
    Fair Use Statement Source: ENS

    Tempers Flare at Environmental Justice Conference, By Brian Hansen

    ARLINGTON, Virginia, December 12, 2000 (ENS) - Members of a federal government advisory panel today lambasted President Bill Clinton, Vice President Al Gore and the U.S. Environmental Protection Agency for failing to aggressively combat the scourge of "environmental racism" that they maintain is afflicting many poor communities and communities of color.

    District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
    On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP's right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a
    consent decree between the federal government and a settling PRP.
    United States v. Exxon Mobil Corp., No. 08-124

    District Court Allows PRP to Amend Claim 2 Years after Atlantic Research

    On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP's motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a),

    Second Circuit Affirms CERCLA Veil-Piercing to Impose Liability on Former Parent
    In an unpublished opinion issued on December 10, 2009, the U.S. Court of Appeals for the Second Circuit affirmed a plaintiff corporation's recovery of CERCLA response costs from a company whose predecessor had once been the plaintiff's parent. Rochester Gas and Elec. Corp. v. GPU, Inc., No. 09-0482-cv, 2009 WL 4673916 (2d Cir. Dec. 10, 2009).

    Tenth Circuit Upholds Remand of Class Action Involving “CERCLA Quality Cleanup”
    On September 4, 2009, the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court's remand to state court of a state law class action involving injuries allegedly arising out of contamination at a state-remediated site, holding that neither the Class Action Fairness Act (“CAFA”) nor CERCLA provided a basis for federal jurisdiction. Coffey v. Freeport McMoran Copper & Gold, 2009 U.S. App. LEXIS 19996 (10th Cir. Sep. 4, 2009).

    Natural Resource Damage Claims Insufficient for Federal
    Jurisdiction
    On August 21, 2009, the U.S. District Court for the District of the Virgin Islands held that a territory's common law claims for natural recourse damages against manufacturers of dry cleaning chemicals for a site on the National Priorities List are not subject to federal jurisdiction. Mathes v. Vulcan Materials Co., 2009 U.S. Dist. LEXIS 74736 (D.V.I. Aug. 21, 2009).

    Destruction of Samples Leads to Preclusion of Contamination Evidence
    On May 21, 2009, the U.S. District Court for the District of Connecticut held that when a consulting firm hired by a CERCLA plaintiff to take soil samples did not preserve the samples or the analytical data, and the property was remediated before other parties could sample, plaintiff is precluded from offering any evidence based on the destroyed samples. Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).

    “Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.

     

    “Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Melo v. US, 505 F2d 1026.

    Excercising your constitutional right cannot be converted into a crime or have sanctions levered against it: The state cannot diminish rights of the people. [Hertado v. California, 100 US 516.]

    Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.]

    There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F 946.]

    "judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).

    Thus, for example, a criminal court judge would be immune from liability for convicting a defendant of a nonexistent crime, an act taken in excess of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352).

    Excerpt from page 974 F.2d 1329, 1992 WL 214444 (1st Cir.(Mass.)) Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so." Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the common law, judges are generally immune from civil liability for judicial acts, subject to the conditions described above, but they do not enjoy immunity from criminal liability. See O'Shea v. Littleton, 414 U.S. 488, 503 (1974).

    In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).

    State Capacity Building

    Objective - To fulfill the mandated objectives of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Superfund Amendments and Reauthorization Act (SARA) of 1986, as amended, in coordination with Agency for Toxic Substances and Disease Registry (ATSDR), by assisting public health agencies to build capacity to conduct (1) Health consultations, (2) public health assessments, (3) exposure investigations, (4) community involvement, (5) health education, and (6) public health studies.

    Agency: Department of Health and Human Services

    Office: Not applicable.

    Authorization

    Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, Sections 104(i)(1)(E), (4), (6), (7), (9), (14) and (15), as amended; Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9604; Resource Conservation and Recovery Act, Section 3109(b) and (c), as amended; Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6939 (b) and (c).

    Uses and Use Restrictions

    The uses are to strengthen State health agency environmental health programs.

    Services include public health assessments, consultations, exposure investigations, health education, and follow-up health investigations/studies.

    Funds may be expended for reasonable program purposes, such as personnel, travel, supplies and services.

    Funds for contractual services may be requested.

    However, the awardee, as the direct and primary recipient of PHS grant funds, must perform a substantive role in carrying out project activities and not merely serve as a conduit for an award to another party or provide funds to an ineligible party.

    Equipment may be purchased with cooperative agreement funds; however, the equipment must meet applicable Federal requirements.

    These funds may not be used by the recipient to conduct activities at any Federal site where the State is a party to litigation at the site.

    Eligibility Requirements

    Applicant Eligibility

    Eligible applicants are the official public health agencies of States or their bona fide agents or instrumentalities, to include the District of Columbia, American Samoa, the Commonwealth of Puerto Rico, the Virgin Islands, the Federated States of Micronesia, Guam, the Northern Marina Islands, the Republic of the Marshall Islands, and the Republic of Palau, and the Federally- recognized Indian tribal governments.

    Beneficiary Eligibility

    Beneficiaries are individuals and/or families living in communities near or in proximity of Superfund sites.

    Credentials/Documentation

    Costs will be determined in accordance with OMB Circular No. A-87 for State and local governments.

    Aplication and Award Process

    Preapplication Coordination

    No preapplication is required.

    This program is eligible for coverage under E.O.

    12372, &quot;Intergovernmental Review of Federal Programs&quot;.

    An applicant should contact the office or Official designated as the single point of contact in his or her State for more information on the process the State requires to be followed in applying for assistance, if the State has selected the program for review.

    Application Procedures

    Applicants must use application Form PHS 5161-1. Application packets are available from: Grants Management Branch, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Rd,. Room 3000, Mailstop K-75, Atlanta, GA 30341. By formal agreement, the CDC Procurement and Grants Office will act for and on behalf of ATSDR on this matter.

    Award Procedures

    The Assistant Administrator, ATSDR, determines applications to be approved and the priorities for funding. When an application is approved for funding, the Grants Management Officer, CDC, acting as the agent for ATSDR, will prepare a Notice of Award.

    Deadlines

    Contact the Headquarters Office identified below for application deadlines.

    Range of Approval/Disapproval Time

    Approximately 60 to 90 days.

    Appeals

    None.

    Renewals

    Awards are made for project periods from one to five years. Renewal awards cannot be made beyond the project period without competition.

    Assistance Considerations

    Formula and Matching Requirements

    This program has no statutory formula.

    Length and Time Phasing of Assistance

    The annual awards are for a 12 month budget period within a three to five year project period. Noncompetitive continuation awards within the project period are made on the basis of satisfactory progress and availability of funds.

    Post Assistance Requirements

    Reports

    Annual progress and financial status reports are required no later than 90 days after the end of each budget period.

    An original and two copies of the final financial status and performance reports are due no later than 90 days after the end of the project period.

    Audits

    In accordance with the provisions of OMB Circular No. A- 133 (Revised, June 27, 2003), &quot;Audits of States, Local Governments, and Nonprofit Organizations,&quot; nonfederal entities that expend financial assistance of $500,000 or more in Federal awards will have a single or a program-specific audit conducted for that year. Nonfederal entities that expend less than $500,000 a year in Federal awards are exempt from Federal audit requirements for that year, except as noted in Circular No. A-133.

    Records

    Detailed and accurate records of travel expenditures, personnel hours and all other costs will be retained for at least 10 years in accordance with EPS's &quot;Superfund Financial Management and Recordkeeping Guidance for Federal Agencies&quot;. Such documents may be required to provide the basis of cost recovery actions or other litigation. Additionally, this documentation must be available for audit or verification upon request of the office of Inspector General.

    Financial Information

    Account Identification

    75-8252-0-1-551.

    Obigations

    (Grants) FY 07 $10,894,064; FY 08 $12,681,515; and FY 09 est $11,500,000.

    Range and Average of Financial Assistance

    $150,627 to $700,000; $350,000.

    Program Accomplishments

    In fiscal year 2003, there were a total of 33 new competitive awards. It is anticipated that there will be 33 noncompetitive continuation awards in fiscal year 2004 and 2005.

    Regulations, Guidelines, and Literature

    Regulations governing this program are set forth in 45 CFR 92 and 40 CFR 35, Subpart O. Guidelines are available in the application kits. PHS Grants Policy Statement (Revised, April 1, 1994).

    Information Contacts

    Regional or Local Office

    Not applicable.

    Headquarters Office

    Ms. Joan Flesner, Public Health Analyst, Division of Health Assessment and Consultation, Agency for Toxic Substances and Disease Registry, 1600 Clifton Road, NE., Mailstop F-59, Atlanta, Georgia 30333. Telephone: (770) 488-0739 Fax: (770) 488-1544. E-mail address: JFlesner@cdc.gov. Grants Management Contact: Mildred Garner, Grants Management Officer, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Road, Room 3000, Atlanta, GA 30341. Telephone: (770) 488-2745. Fax: (770) 488-2777.

    Website Address

    http://www.atsdr.cdc.gov.

    Related Programs

    None.

    Examples of Funded Projects

    States conduct public health evaluations on National Priorities List (NPL) sites, sites that ATSDR have been petitioned to assess, Superfund Accelerated Cleanup Model (SACM) sites, and other Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) sites.

    Criteria for Selecting Proposals

    Applications for core activities only were reviewed and evaluated based on the following criteria: (1) Proposed Program: (a) Merit scientific and technical merit of the proposed project to perform public health assessments, consultations, exposure investigations, health education and public health studies consistent with ATSDR guidance and in a timely manner. Applicant's ability to evaluate the public health impact of hazardous waste sites using health, environmental, and demographic data, and health-related concerns from the local community. (b) Requirements Applicant's understanding of the requirements, objectives, and complexities of the interactions required for a successful program. c) Collaboration Applicant's plan to collaborate with political and private subdivisions of Federal, State, and local health and environmental agencies and community groups to obtain information needed for evaluating the public health impact of hazardous waste sites, disseminate results of findings, and prevent exposure if identified. (2) Program Personnel: The principal investigator or project director and his/her ability to devote time and effort to provide effective leadership, and the qualifications of the support staff. (3) Applicant Capability: Adequacy and commitment of institutional resources, facilities, space, and equipment necessary for conducting the project are available and sufficient. (4) Program Budget: Extent to which the budget is reasonable, clearly justified, and consistent with intended use of funds. The priority order for funding cooperative agreements was as follows: (a) Number of proposed and/or listed National Priority List (NPL) sites (Federal and nonfederal) based on the most current EPA list, (b) number of Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) sites (Federal and nonfederal) based on the most current EPA list; (c) applicants who applied for both Core Activities and optional Activities; and (d) geographic distribution across the United States. (5) Human Subjects: Applicant's plan for adequate protection of human subjects. Applications for conducting Core Plus Optional Activities were reviewed and evaluated based on the following criteria: Proposed Program: In addition to the criteria outlined above for Core Activities, the applicant had to indicate an understanding of and capability for conducting human health studies as contained in the proposed site-specific protocol which had to include: (a) The approach, feasibility, adequacy, and rationale for the proposed study design, (b) the technical merit of the proposed study, (c) the proposed timeline, including measurable objectives, (d) proposed method for disseminating the results of the study.

     

     
    Active Grants
    for this program

    ATSDR?s Partnership to Promote Localized Efforts to Reduce Environmental Exposure (APPLETREE) Program

    Eligible applicants that can apply for this funding opportunity are listed below:
    ? Federally recognized or state-recognized American Indian/Alaska Native tribal governments
    ? State health departments or their Bona Fide Agents (this includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Marianna Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau)

    A Bona Fide Agent is an agency/organization identified by the state as eligible to submit an application under the state eligibility in lieu of a state application.

    If applying as a bona fide agent of a state or local government, a letter from the state or local government as documentation of the status is required.

    Attach with ?Other Attachment Forms? when submitting via www.grants.gov.


    ATSDR?s regulatory authority cited by the CERCLA limits the eligible applicants that can apply for this funding opportunity.


    Full Opportunity Web Address:


    Contact:
    Carolyn Wilburn Procurement and Grants Office Phone 770-488-2700

    Agency Email Description:
    PGOTIM@cdc.gov

    Agency Email:
    PGOTIM@cdc.gov

    Date Posted:
    2010-10-22

    Application Due Date:
    2010-12-22

    Archive Date:
    2011-01-21


    .

    EPA encourages regular testing

    Moral hazard occurs when a party insulated from risk behaves differently than it would behave if it were fully exposed to the risk.

    Moral hazard arises because an individual or institution does not take the full consequences and responsibilities of its actions, and therefore has a tendency to act less carefully than it otherwise would, leaving another party to hold some responsibility for the consequences of those actions. For example, a person with insurance against automobile theft may be less cautious about locking his or her car, because the negative consequences of vehicle theft are (partially) the responsibility of the insurance company.

    Economists explain moral hazard as a special case of information asymmetry , a situation in which one party in a transaction has more information than another. In particular, moral hazard may occur if a party that is insulated from risk has more information about its actions and intentions than the party paying for the negative consequences of the risk. More broadly, moral hazard occurs when the party with more information about its actions or intentions has a tendency or incentive to behave inappropriately from the perspective of the party with less information.

    Moral hazard also arises in a principal-agent problem , where one party, called an agent, acts on behalf of another party, called the principal. The agent usually has more information about his or her actions or intentions than the principal does, because the principal usually cannot completely monitor the agent. The agent may have an incentive to act inappropriately (from the viewpoint of the principal) if the interests of the agent and the principal are not aligned.

    such statutes are to be construed broadly "to effectuate the regulatory purpose."
    United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991)

    Superfund site in San Francisco proves toxic for Navy, neighbors

    By  Monica Jensen SF Public Press/Newsdesk.org  — Jan 10 2011 - 2:52pm

    In December, activists met with officials from the federal Environmental Protection Agency to tour the shipyard and adjacent public facilities built on or near land contaminated with PCBs and other toxins, such as a school basketball court downwind from an excavation of soil laden with naturally occurring asbestos.

    Activists also said that the Navy's unilateral dissolution of the Restoration Advisory Board in December 2009 enabled it to “fast track” major decisions while disregarding community concerns. The biggest decision was the approval of the environmental impact report for the second phase of a redevelopment plan for the neighborhood that will ultimately bring 10,500 homes to the area.

    .

    A year after the dissolution of the Restoration Advisory Board for Hunters Point Shipyard, the Navy says it will introduce a new community involvement plan that it says emphasizes diversity.

    The announcement follows the White House's reconvened interagency effort on environmental justice, which held its first meeting under the Obama administration in September . The group is creating a four-year road map to develop “stronger community relationships” and targets “overburdened communities.” The next meeting is set for April.

    Community involvement

    Navy records described the advisory board as “unproductive,” and an EPA spokesman said the Navy's new “community involvement plan,” due to be released sometime in the next two months, will reboot community engagement.


    GOVERNMENT ACCOUNTABILITY PROJECT

    .

    Court Defines “Current Owner” for Purposes of CERCLA Liability

    .

    New Law

    The 9th Circuit Court of Appeals agreed with the District Court and determined that measuring ownership from the time of cleanup best aligns with the purposes for which CERCLA was enacted ¿ for three reasons.  First, that the statute of limitations on a CERCLA action starts to run once remedial action has begun suggests that Congress intended the “owner” to be the owner at the time of cleanup.  Second, CERCLA encourages responsible parties to remediate without delay and, if a landowner could avoid liability by transferring its property before a lawsuit is filed, then that landowner would have every incentive to delay cleanup until it found a buyer.  Third, CERCLA was also enacted to encourage settlement and early voluntary cleanup of contaminated properties, and Hearthside's proposed rule would require that a lawsuit be filed as a prerequisite to recovery in every case. 

    “appropriate and consistent with requirements of applicable law and other resource considerations consistent with this Order or necessary for the exercise of valid existing rights.”

    EPA Region 9 is soliciting proposals to carry out the Food Quality Protection Act and to support efforts by the agricultural community to “transition” away from high-risk pesticides to lower risk pesticides and sustainable practices in food production. The statutory authority for this program is Section 20 of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §136r. The program supports grants for education, extension and demonstration projects for FQPA transition and reduced risk practices for pest management in agriculture. Proposals for demonstration projects must demonstrate applications, technologies, methods or approaches that are new, innovative or experimental.

    A Watershed Moment for the Clean Water Act

    (1)   Looking 20 years ahead, what systemic risks will the emergency management community face?

    (2)   What transformational events could shape emergency management's future?

    (3)   What should the emergency management community be doing now to have the right future capacity and capabilities to serve those who depend on us?

    .

    revival is cause for celebration

    FIESTA PARTY

    powered by salsa

    Red Tape Rising:

    Published on October 26, 2010 by James Gattuso , Diane Katz and Stephen Keen

    Abstract: The burden of regulation on Americans increased at an alarming rate in fiscal year 2010. Based on data from the Government Accountability Office, an unprecedented 43 major new regulations were imposed by Washington. And based on reports from government regulators themselves, the total cost of these rules topped $26.5 billion, far more than any other year for which records are available. These costs will affect Americans in many ways, raising the price of the cars they buy and the food they eat, while destroying an untold number of jobs. With the enactment of new health care laws, financial regulations, and plans for rulemaking in other areas, the regulatory burden on Americans is set to increase even further in the coming year.

    The Hidden Tax

    The cost of regulation has often been called a hidden tax. Although the total does not appear anywhere in the federal budget, the multitude of rules, restrictions, and mandates imposes a heavy burden on Americans and the U.S. economy. According to a report recently released by the Small Business Administration, total regulatory costs amount to about $1.75 trillion annually, [1] nearly twice as much as all individual income taxes collected last year. [2]

    Not all regulations are unwarranted, of course. Most Americans would agree on the need for protections against terrorism, although the extent of such rules is certainly subject to debate. Moreover, regulations are not necessarily inconsistent with free-market principles. Some, such as anti-fraud measures, protect the rights of consumers. But there is always a cost. And, for the same reasons that federal spending is reported, so, too, should regulatory costs.

    Record Increases

    This regulatory burden has been increasing for some time. During the presidency of George W. Bush, which many mistakenly consider as a period of deregulation, the regulatory burden increased by more than $70 billion, according to agency regulatory impact reports. In FY 2009, which spanned the Bush and Obama Administrations, rulemaking proceeded at a nearly unprecedented rate, with the addition of 23 major rules imposing $13 billion in new costs. [3]

    But the available evidence indicates that regulatory costs increased last year at a far greater pace. According to data from the Government Accountability Office, federal agencies promulgated 43 rules during the fiscal year ending September 30, 2010, [4] that impose significant burdens on the private sector. The total costs for these rules were estimated by the regulators themselves at some $28 billion, the highest level since at least 1981, the earliest date for which figures are available. [5] Fifteen of the 43 major rules issued last during the fiscal year involved financial regulation. Another five stem from the Patient Protection and Affordable Care Act adopted by Congress in early 2010. Ten others come from the Environmental Protection Agency (EPA), including the first mandatory reporting of “greenhouse gas” emissions and $10.8 billion in new automotive fuel economy standards (adopted jointly with the National Highway Traffic Safety Administration (NHTSA)). Overall, counting the fuel standards, the EPA is responsible for the lion's share of the reported regulatory costs—some $23.2 billion.

    Among the most costly of the FY 2010 crop are:

    • Fuel economy and emission standards [6] for passenger cars, light-duty trucks, and medium-duty passenger vehicles imposed jointly by the EPA and NHTSA. Annual cost: $10.8 billion (for model years 2012 to 2016). For automakers to recover these increased outlays, NHTSA estimates the standards will lead to increases in average new vehicle prices ranging from $457 per vehicle in FY 2012 to $985 per vehicle in FY 2016. [7]
    • Mandated quotas for renewable fuels. Annual cost: $7.8 billion (for 15 years). Utilizing farmland to grow corn and other crops used in renewable fuels will displace food crops, leading food costs to increase by $10 per person per year—or $40 for a family of four, according to the EPA. [8]
    • Efficiency standards for residential water heaters, heating equipment, and pool heaters. Annual cost: $1.3 billion. The appliance upgrades necessary to comply with the new standards will raise the price of a typical gas storage water heater by $120. [9]
    • Limits on “effluent” discharges from construction sites imposed by the EPA. Annual cost: $810.8 million. The cost of the requirements will force the closure of 147 construction firms and the loss of 7,257 jobs, according to the EPA. Homebuyers also will bear some of the costs, with an increase in mortgage costs of about $1,953.

    Regulatory Reductions Missing in Action

    Measures to reduce regulatory burdens, by contrast, were few and far between in FY 2010. Only five significant rulemakings adopted last year reduced burdens. Of these, cost reductions were quantified for only two, for reported savings of $1.5 billion. This leaves a net increase in the regulatory burden of $26.5 billion.

    Moreover, one of the five measures—though technically deregulatory in nature—relates to an unparalleled expansion of EPA powers. Due to its determination last year that greenhouse gases are pollutants, the agency is moving to set emissions limits for such gases. To follow the standards in the Clean Air Act would corral millions of currently unregulated “facilities,” including offices and apartment buildings, shopping malls, restaurants, hotels, hospitals, schools, houses of worship, theaters, and sports arenas into the EPA regulatory regime. In hopes of quieting political outrage over so sweeping a dictate, the EPA's “Tailoring Rule” [10] set a minimum threshold level for regulation. Therefore, fewer facilities would be subject to permit requirements, making imposition of the emissions limits more feasible. Rather than reduce overall burdens, this action actually facilitated increased burdens. [11]

    Actual Costs Likely Higher

    The actual cost of regulations adopted in FY 2010 is almost certainly much higher than $26.5 billion. As a first matter, the cost of non-economically significant rules—rules deemed not likely to have an annual impact of $100 million or more—is not calculated (although such rules are believed to constitute only a small portion of total regulatory costs). Moreover, costs were not quantified for 12 of the economically significant rules adopted in FY 2010.

    Many of the rules lacking quantified costs involve financial regulation. The Federal Reserve Board, for instance, did not quantify any costs for its new “Truth in Lending” [12] regulations—which impose fee and disclosure requirements for credit card accounts—although the new rules are generally expected to be costly. Similarly, costs were not calculated for new Federal Reserve Board regulations on prepaid electronic gift cards. [13]

    It should also be noted that reported costs are likely minimized by allowing agencies to make the initial calculations, thereby casting their proposals in the best light. This could have a substantial impact: Overall, there is evidence that agencies systematically understate regulatory costs. In its 2005 report to Congress, the OMB's Office of Information and Regulatory Affairs conducted ex ante analyses of regulations to test the accuracy of cost-benefit estimates. The study determined that regulators overestimated benefits 40 percent of the time and underestimated costs 34 percent of the time. [14]

    Even a finding that costs exceed benefits does not necessarily stop a new rule from going into effect. For instance, in evaluating new regulations for train-control systems, the Department of Transportation identified costs of $477.4 million, and benefits of a mere $22 million. Nevertheless, due to a statutory mandate, the regulations were adopted.

    The EPA is prohibited by law from considering costs in devising regulations under the Clean Air Act and other major environmental statutes. Thus, the agency recently set new, more stringent standards on emissions of nitrogen dioxide without formally considering the economic or technical feasibility of compliance. [15] While the EPA did prepare a cost-benefit analysis—concluding that the costs exceed the benefits—agency officials conceded they had no way of determining the number of localities that would be out of compliance under the new rule.

    Lastly, it should be noted that annual compliance costs constitute only part of the economic burden of regulation. New rules also entail start-up costs for new equipment, conversions of industrial processes, and devising data collection and reporting procedures. These “first-year” costs exceed $3.1 billion for the 43 new FY 2010 regulations. For example, new restrictions on “short sales” [16] imposed by the Securities and Exchange Commission will require initial costs of more than $1 billion [17] for modifications to computer systems and surveillance mechanisms, and for information-gathering, management, and recordkeeping systems. Likewise, the EPA estimates one-time implementation costs of nearly $745 million for new limits on emissions from diesel engines used in energy production. [18]

    More Rules on the Way

    Many, many more regulations are in the pipeline. According to one estimate, financial regulation legislation recently adopted by Congress, known as the Dodd–Frank bill, will require 243 new formal rule-makings by 11 different federal agencies. [19] So wide-ranging are regulators' new powers, in fact, that the Department of Health and Human Services has failed to meet one-third of the deadlines mandated by the new federal health care law, according to a report by the Congressional Research Service. [20]

    Meanwhile, the new Consumer Financial Protection Bureau created under the Dodd–Frank measure will wield vaguely defined powers to regulate financial products and services, including mortgages, credit cards, even student loans. And, the Federal Communications Commission is mulling new regulations to limit how Internet service providers manage their networks. Such “net neutrality” rules, if enacted, would undermine investment incentives, thereby robbing the nation of much-needed broadband upgrades. [21]

    Taken together, these initiatives embody a stunningly full regulatory agenda—indicating that this year's record for regulatory increases will not stand for long.

    Conclusion

    The regulatory burden increased at an unprecedented rate during FY 2010, as measured by both the number of new major rules as well as their reported costs. Even more are on the way in 2011.

    A number of steps have been proposed to stem this growth, ranging from automatic sunsetting of rules [22] to requiring congressional approval of all new major rules. [23]

    Mere procedural reforms will not be enough to stem this regulatory tide. Regulatory costs will rise until policymakers appreciate the burdens that regulations are imposing on Americans and the economy, and exercise the political will necessary to limit—and reduce—those burdens.

    — James L. Gattuso is Senior Research Fellow in Regulatory Policy, Diane Katz is Research Fellow in Regulatory Policy, and Stephen A. Keen is a Research Assistant, in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

    Appendix

    Major Rulemaking Proceedings that Increased Regulatory Burdens, October 2009–September 2010

    October 2009

    October 30, 2009, Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases”: $94.9 million annually; $140.7 million start-up.

    November 2009

    November 17, 2009, Federal Reserve System, “Electronic Fund Transfers”: $10.9 million annually.

    December 2009

    December 1, 2009, Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category”: $810.8 million annually.

    December 4, 2009, Securities and Exchange Commission, “Amendments to Rules for Nationally Recognized Statistical Rating Organizations”: $34.9 million annually; $16.2 million start-up.

    December 4, 2009, Department of Transportation, Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Integrity Management Program for Gas Distribution Pipelines”: $101.1 million annually; $130.1 million start-up.

    December 23, 2009, Securities and Exchange Commission, “Proxy Disclosure Enhancements”: $66.5 million annually.

    January 2010

    January 8, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Certain Consumer Products (Dishwashers, Dehumidifiers, Microwave Ovens, and Electric and Gas Kitchen Ranges and Ovens) and for Certain Commercial and Industrial Equipment (Commercial Clothes Washers)”: $23.4 million annually.

    January 11, 2010, Securities and Exchange Commission, “Custody of Funds or Securities of Clients by Investment Advisers”: $125.1 million annually; $1.2 million start-up.

    January 15, 2010, Federal Reserve System and Federal Trade Commission, “Fair Credit Reporting Risk-Based Pricing Regulations”: $252.1 million annually.

    January 15, 2010, Department of Transportation, Federal Railroad Administration, “Positive Train Control Systems”: $477.4 million annually.

    January 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency; Federal Reserve System; Federal Deposit Insurance Corporation; Department of the Treasury, Office of Thrift Supervision, “Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues”: cost not quantified.

    February 2010

    February 9, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide”: cost not quantified.

    February 17, 2010, Department of Agriculture, Agricultural Marketing Service, “National Organic Program; Access to Pasture (Livestock)”: cost not quantified.

    February 22, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.

    March 2010

    March 3, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $373.4 million annually; $744.7 million start-up.

    March 4, 2010, Securities and Exchange Commission, “Money Market Fund Reform”: $60.2 million annually; $86.9 million start-up.

    March 9, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Small Electric Motors”: $263.9 million annually.

    March 10, 2010, Securities and Exchange Commission, “Amendments to Regulation SHO”: $1.2 billion annually; $1.1 billion start-up.

    March 19, 2010, Department of Health and Human Services, Food and Drug Administration, “Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents”: cost not quantified.

    March 26, 2010, Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program”: $7.8 billion annually.

    April 2010

    April 1, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.

    April 5, 2010, Department of Transportation, Federal Motor Carrier Safety Administration, “Electronic On-Board Recorders for Hours-of-Service Compliance”: $139 million annually.

    April 14, 2010, Department of Health and Human Services, Food and Drug Administration, “Use of Ozone-Depleting Substances; Removal of Essential-Use Designation (Flunisolide, etc.)”: $181.9 million annually.

    April 16, 2010, Department of Energy: Energy Conservation Program, “Energy Conservation Standards for Residential Water Heaters, Direct Heating Equipment, and Pool Heaters”: $1.3 billion annually.

    May 2010

    May 6, 2010, Environmental Protection Agency, “Lead; Amendment to the Opt-Out and Recordkeeping Provisions in the Renovation, Repair, and Painting Program”: $419.5 million annually; $552 million start-up.

    May 7, 2010, Environmental Protection Agency and Department of Transportation, National Highway Traffic Safety Administration, “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule”: $10.8 billion annually (2012–2016).

    May 13, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, Office of the Secretary, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Dependent Coverage of Children to Age 26 Under the Patient Protection and Affordable Care Act”: $11 million annually.

    May 28, 2010, Department of Transportation, Federal Aviation Administration, “Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements to Support Air Traffic Control (ATC) Service”: $100 million annually.

    June 2010

    June 4, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.

    June 17, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act”: $25.2 million annually; $30.2 million start-up.

    June 22, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide”: $1.6 billion annually.

    June 28, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections”: $4.8 million annually.

    June 29, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.

    July 2010

    July 14, 2010, Securities and Exchange Commission, “Political Contributions by Certain Investment Advisers”: $85.1 million annually; $22.6 million start-up.

    July 16, 2010, Department of Labor, Employee Benefits Security Administration, “Reasonable Contract or Arrangement Under Section 408(b)(2)—Fee Disclosure ”: $57.7 million annually.

    July 19, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act”: cost not quantified.

    July 23, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Internal Claims and Appeals and External Review Processes Under the Patient Protection and Affordable Care Act”: $75.1 million annually.

    July 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency, “Registration of Mortgage Loan Originators”: $123.9 million annually; $283.3 million start-up.

    August 2010

    August 9, 2010, Department of Labor, Occupational Safety and Health Administration, “Cranes and Derricks in Construction”: $151.6 million annually.

    August 12, 2010, Securities and Exchange Commission: “Amendments to Form ADV”: $20.5 million annually; $56.4 million start-up.

    August 20, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $253 million annually.

    September 2010

    September 9, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants”: $1 billion in 2013.

    September 16, 2010, Securities and Exchange Commission, “Facilitating Shareholder Director Nominations”: $8 million annually.

    Major Rulemaking Proceedings that Decreased Regulatory Burdens, October 2009–September 2010

    October 19, 2009, Securities and Exchange Commission, “Internal Control Over Financial Reporting in Exchange Act Periodic Reports of Non-Accelerated Filers”: savings not quantified.

    November 2, 2009, Department of Health and Human Services, Centers for Disease Control and Prevention, “Medical Examination of Aliens—Removal of Human Immunodeficiency Virus (HIV) Infection from Definition of Communicable Disease of Public Health Significance”: savings not quantified.

    November 13, 2009, Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule—Amendments”: $98.6 million.

    March 31, 2010, Department of Justice, Drug Enforcement Administration, “Electronic Prescriptions for Controlled Substances”: $1.4 billion.

    June 3, 2010, Environmental Protection Agency, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule”: savings not quantified.

    .

    where landowners fence or post "no trespassing" signs on their property or otherwise indicate unmistakably that entry is not allowed, their "expectation that their privacy rights will be respected and that they will be free from unwanted intrusions is reasonable".

    Authority:   42 U.S.C. 1857 et seq.

    Source:   38 FR 12784, May 15, 1973, unless otherwise noted.

    § 40.100   Purpose of regulation.

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    These provisions establish and codify policies and procedures governing the award of research and demonstration grants by the Environmental Protection Agency.

    § 40.105   Applicability and scope.

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    This part establishes mandatory policies and procedures for all EPA research and demonstration grants. The provisions of this part supplement the EPA general grant regulations and procedures (40 CFR part 30). Accordingly, all EPA research and demonstration grants are awarded subject to the EPA interim general grant regulations and procedures (40 CFR part 30) and to the applicable provisions of this part 40.

    § 40.110   Authority.

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    EPA research and demonstration grants are authorized under the following statutes:

    (1) Section 103 (42 U.S.C. 1857b) authorizes grants for research and demonstration projects relating to the causes, effects, extent, prevention, and control of air pollution.

    (2) Section 104 (42 U.S.C. 1857b–1) authorizes grants for research and development of new and improved methods for the prevention and control of air pollution resulting from the combustion of fuels.

    (b) The Federal Water Pollution Control Act, as amended, Public Law 92–500.

    (1) Section 104(b) (33 U.S.C. 1254(b)) authorizes grants for research and demonstration projects relating to the causes, effects, extent, prevention, reduction, and elimination of water pollution.

    (4) Section 104(r) (33 U.S.C. 1254(r)) authorized grants for the conduct of basic research into the structure and function of freshwater aquatic ecosystems, and to improve understanding of the ecological characteristics necessary to the maintenance of the chemical, physical, and biological integrity of freshwater aquatic ecosystems.

    (5) Section 104(s) (33 U.S.C. (s)) authorizes grants to conduct and report on interdisciplinary studies on river systems, including hydrology, biology, ecology, economics, the relationship between river uses and land uses, and the effects of development within river basins on river systems and on the value of water resources and water-related activities.

    (6) Section 105(a) (33 U.S.C. 1255(a)) authorizes grants for research and demonstration of new or improved methods for preventing, reducing, and eliminating the discharge into any waters of pollutants from sewers which carry storm water or both storm water and pollutants; and for the demonstration of advanced waste treatment and water purification methods (including the temporary use of new or improved chemical additives which provide substantial immediate improvement to existing treatment processes), or new or improved methods of joint treatment systems for municipal and industrial wastes.

    (7) Section 105(b) (33 U.S.C. 1255(b)) authorizes grants for demonstrating, in river basins or portions thereof, advanced treatment and environmental enhancement techniques to control pollution from all sources, within such basin or portions thereof, including nonpoint sources, together with in-stream water quality improvement techniques.

    (8) Section 105(c) (33 U.S.C. 1255(c)) authorizes grants for research and demonstration projects for prevention of pollution of any waters by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.

    (9) Section 105(e)(1) (33 U.S.C. 1255(e)(1)) authorizes grants for research and demonstration projects with respect to new and improved methods of preventing, reducing, and eliminating pollution from agriculture.

    11) Section 107 (33 U.S.C. 1257) authorizes grants for projects to demonstrate comprehensive approaches to the elimination or control of acid or other mine water pollution resulting from active or abandoned mining operations and other environmental pollution affecting water quality within all or part of a watershed or river basin, including siltation from surface mining.

    (d) The Solid Waste Disposal Act, as amended, by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq. ).

    (1) Section 8001 (42 U.S.C. 6981) authorizes grants for research and demonstration projects relating to solid waste.

    (2) Section 8004 (42 U.S.C. 6984) authorizes grants for demonstration of new or improved technologies for resource recovery.

    (3) Section 8005 (42 U.S.C. 6985) authorizes grants to conduct special studies and demonstration projects on recovery of useful energy and materials.

    (4) Section 8006 (42 U.S.C. 6986) authorizes grants for the demonstration of resource recovery system or for the construction of new or improved solid waste disposal facilities.

    § 40.115-1   Construction.

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    May include the preliminary planning to determine the economic and engineering feasibility of a facility, the engineering, architectural, legal, fiscal, and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other action necessary to the construction of a facility, the erection, acquisition, alteration, remodeling, improvement, or extension of a facility, and the inspection and supervision of the construction of a facility.

    § 40.115-5   Person.

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    (a) Under the Federal Water Pollution Control Act, an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.

    (b) Under the Resource Conservation and Recovery Act, an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body.

    [38 FR 12784, May 15, 1973, as amended at 42 FR 56057, Oct. 20, 1977]

    § 40.120   Publication of EPA research objectives.

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    The Office of Research and Development of EPA publishes a statement of research objectives and priorities annually in a document entitled “Office of Research and Development—Program Guide.” This document may be obtained from either the Office of Research and Development, RD–674, or the Grants Administration Division, PM–216, U.S. Environmental Protection Agency, Washington, DC 20460.

    [42 FR 56057, Oct. 20, 1977]

    § 40.125   Grant limitations.

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    § 40.125-1   Limitations on duration.

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    (a) [Reserved]

    (b) No research or demonstration grant shall be approved for a project period in excess of 5 years.

    (c) The grant award official may extend the budget and project periods for up to an additional 12 months without additional grant funds, when such extensions are in the best interest of the Government.

    [42 FR 56057, Oct. 20, 1977, as amended at 72 FR 52010, Sept. 12, 2007]

    § 40.125-2   Limitations on assistance.

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    In addition to the cost-sharing requirements pursuant to 40 CFR 30.720, research and demonstration grants shall be governed by the specific assistance limitations listed below:

    (a) Federal Water Pollution Control Act. (1) Section 104(s)—no grant in any fiscal year may exceed $1 million.

    (2) Sections 105 (a), (c) and 108—no grant may exceed 75 percent of the allowable actual project costs.

    (b) Clean Air Act. (1) Section 104—no grant may exceed $1,500,000.

    (2) [Reserved]

    (c) Resource Conservation and Recovery Act. (1) Sections 8001, 8004, and 8005. The maximum practicable cost sharing is required.

    (2) Section 8006. The Federal share for any grant for the demonstration of resource recovery systems shall not exceed 75 percent and is subject to the conditions contained in section 8006(b) of the Act. The Federal share for any grant for the construction of new or improved solid waste disposal facilities shall not exceed 50 percent in the case of a project serving an area which includes only one municipality and 75 percent in any other case, and is subject to the limitations contained in section 8006(c) of the Act. Not more than 15 percent of the total funds authorized to be appropriated for any fiscal year to carry out this section shall be awarded for projects in any one State.

    [38 FR 12784, May 15, 1973, as amended at 42 FR 20083, May 8, 1977; 42 FR 56057, Oct. 20, 1977]

    § 40.130   Eligibility.

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    Except as otherwise provided below, grants for research and demonstration projects may be awarded to any responsible applicant in accordance with 40 CFR 30.340:

    (a) The Clean Air Act, as amended—public or nonprofit private agencies, institutions, organizations, and to individuals.

    (b) Resource Conservation and Recovery Act.

    (1) Section 8001, public authorities, agencies, and institutions; private agencies and institutions; and individuals.

    (2) Sections 8004 and 8005, public agencies and authorities or private persons.

    (3) Section 8006, State, municipal, interstate or intermunicipal agencies.

    (4) No grant may be made under this Act to any private profit-making organization.

    (c) The Federal Insecticide, Fungicide, and Rodenticide Act, as amended—other Federal agencies, universities, or others as may be necessary to carry out the purposes of the act.

    (d) The Federal Water Pollution Control Act, as amended:

    (1) Section 104(b)—State water pollution control agencies, interstate agencies, other public or nonprofit private agencies, institutions, organizations, and to individuals.

    (2) Sections 104 (h) and (i)—public or private agencies and organizations and to individuals.

    (3) Section 104(r)—colleges and universities.

    (4) Section 104(s)—institutions of higher education.

    (5) Sections 105 (a), (e)(2), and 107—State, municipal, interstate, and intermunicipal agencies.

    (6) Section 195(b)—State or States or interstate agency.

    (7) Sections 105 (c) and (e)(1)—persons.

    (8) Section 108—State, political subdivision, interstate agency, or other public agency, or combination thereof.

    (9) Section 113—only to the State of Alaska .

    (e) The Public Health Service Act, as amended—only to nonprofit agencies, institutions, organizations, and to individuals.

    [38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, 1977]

    § 40.135   Application.

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    § 40.135-1   Preapplication coordination.

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    (a) All applicants. (1) Applicants for research and demonstration grants are encouraged to contact EPA for further information and assistance prior to submitting a formal application. The EPA regional office or the laboratory nearest the applicant will be able to provide such assistance or to refer the applicant to an appropriate EPA representative.

    (2) Applicants shall prepare an environmental assessment of the proposed project where applicable, outlining the anticipated impact on the environment pursuant to 40 CFR part 6.

    (b) Applications for grants for demonstration projects funded by the Office of Solid Waste will be solicited through the Department of Commerce Business Daily, and selections will be made on a competitive basis.

    [38 FR 12784, May 15, 1973, as amended at 41 FR 20659, May 20, 1976; 42 FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]

    § 40.135-2   Application requirements.

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    All applications for research and demonstration grants shall be submitted in an original and 8 copies to the Environmental Protection Agency, Grants Administration Division, Washington, DC 20460, in accordance with §§30.315 through 30.315–3.

    (a) Applications involving human subjects. (1) Safeguarding the rights and welfare of human subjects involved in projects supported by EPA grants is the responsibility of the institution which receives or is accountable to EPA for the funds awarded for the support of the project.

    (2) Institutions must submit to EPA, for review, approval, and official acceptance, a written assurance of its compliance with guidelines established by Department of Health, Education, and Welfare concerning protection of human subjects. However, institutions which have submitted and have had accepted, general assurance to DHEW under these guidelines will be considered as being in compliance with this requirement. These guidelines are provided in DHEW Publication No. (NIH) 72–102, the “Institutional Guide to DHEW Policy on Protection of Human Subjects.” Copies of this publication are available from the Superintendent of Documents, U.S. Government Printing Office, Washington , DC 20420 .

    (3) Applicants must provide with each proposal involving human subjects a certification that it has been or will be reviewed in accordance with the institution's assurance. This certification must be renewed annually on the basis of continuing review of the supported project.

    (b) Applications involving laboratory animals. Each application for a project involving the use of warmblooded animals shall include a written assurance that the applicant has registered with the Department of Agriculture and is in compliance with the rules, regulations, and standards enunciated in the Animal Welfare Act, Public Law 89–554, as amended.

    (c) Notice of research project ( NRP ). Each application for research must include a summary (NRP) of proposed work (200 words or less) incorporating objectives, approach and current plans and/or progress. Upon approval of an application, summaries are forwarded to the Smithsonian Science Information Exchange. Summaries of work in progress are exchanged with government and private agencies supporting research and are forwarded to investigators who request such information.

    (d) Federal Water Pollution Control Act. (1) All applications for grants under section 105(a) must have been approved by the appropriate State water pollution control agency or agencies.

    (2) All applications for grants under section 107, where the proposed project will be located in the Appalachian region, shall have been coordinated with the Appalachian Regional Commission for determination that such demonstration project is consistent with the objectives of the Appalachian Regional Development Act of 1965, as amended.

    (e) Intergovernmental review. EPA will not award funds under this subpart without review and consultation, if applicable, in accordance with the requirements of Executive Order 12372, as implemented in 40 CFR part 29 of this chapter.

    [38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]

    § 40.140   Criteria for award.

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    In determining the desirability and extent of funding for a project and the relative merit of an application, consideration will be given to the following criteria:

    § 40.140-1   All applications.

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    (a) The relevancy of the proposed project to the objectives of the EPA research and demonstration program;

    (b) The availability of funds within EPA;

    (c) The technical feasibility of the project;

    (d) The seriousness, extent, and urgency of the environmental problems toward which the project is directed;

    (e) The anticipated public benefits to be derived from the project in relation to the costs of the project;

    (f) The competency of the applicant's staff and the adequacy of the applicant's facilities and available resources;

    (g) The degree to which the project can be expected to produce results that will have general application to pollution control problems nationwide;

    (h) Whether the project is consistent with existing plans or ongoing planning for the project area at the State, regional, and local levels;

    (i) The existence and extent of local public support for the project;

    (j) Whether the proposed project is environmentally sound;

    (k) Proposed cost sharing.

    § 40.140-2   [Reserved]

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    § 40.140-3   Federal Water Pollution Control Act.

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    (a) All applications for grants under section 105(c) must provide evidence that the proposed project will contribute to the development or demonstration of a new or improved method of treating industrial wastes or otherwise preventing pollution by industry, which method shall have industrywide application;

    (b) All applications for grants under section 113 must include provisions for community safe water supply systems, toilets, bathing and laundry facilities, sewage disposal facilities and programs relating to health and hygiene. Such projects must also be for the further purpose of developing preliminary plans for providing such safe water and such elimination or control of water pollution for all native villages in the State of Alaska .

    § 40.145   Supplemental grant conditions.

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    In addition to the EPA general grant conditions (40 CFR part 30, subpart C), all grants are awarded subject to the following requirements:

    (a) The project will be conducted in an environmentally sound manner.

    (b) In addition to the notification of project changes required pursuant to 40 CFR 30.900, prior written approval by the grants officer is required for project changes which may (1) alter the approved scope of the project, (2) substantially alter the design of the project, or (3) increase the amount of Federal funds needed to complete the project. No approval or disapproval of a project change pursuant to 40 CFR 30.900 or this section shall commit or obligate the United States to an increase in the amount of the grant or payments thereunder, but shall not preclude submission or consideration of a request for a grant amendment pursuant to 40 CFR 30.900–1.

    [38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]

    § 40.145-1   Resource Conservation and Recovery Act.

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    Programs for which a Federal grant is awarded by the Environmental Protection Agency to a State, municipal, interstate or intermunicipal agency, or to any public authority, agency or institution, under the Resource Conservation and Recovery Act, shall be the subject of public participation consistent with part 249 of this chapter.

    [42 FR 56057, Oct. 20, 1977]

    § 40.145-2   Federal Water Pollution Control Act.

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    (a) No person in the United States shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving assistance under the Act.

    (b) Grants under section 107 are awarded subject to the conditions—

    (1) That the State shall acquire any land or interests therein necessary for such project to assure the elimination or control of acid or other mine water pollution; and

    (2) That the State shall provide legal and practical protection to the project area to insure against any activities which will cause future acid or other mine water pollution.

    § 40.145-3   Projects involving construction.

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    Research and demonstration grants for projects involving construction shall be subject to the following conditions:

    (a) The applicant will demonstrate to the satisfaction of the grants officer that he has or will have a fee simple or such other estate or interest in the site of the project, and rights of access, as the grants officer finds sufficient to assure undisturbed use and possession for the purpose of construction and operation for the estimated life of the project; and in the case of projects serving more than one municipality, that the participating communities have such interests or rights as the grants officer finds sufficient to assure their undisturbed utilization of the project for the estimated life of the project.

    (b) Invitations for bids or requests for proposals shall be based upon a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. “Brand name or equal” description may be used as a means to define the performance or other salient requirements of a procurement, and when so used the specific features of the named brand which must be met by offerors should be clearly specified.

    (c) Positive efforts shall be made by the grantees to utilize small business and minority-owned business sources of supplies and services.

    (d) Subagreements for construction work may be negotiated when advertising for competitive bids is not feasible; however, the grantee must adequately demonstrate its need to contract with a single or sole source. All such subagreements are subject to prior approval by the grants officer.

    (e) Construction work will be performed by the fixed-price (lump sum) or fixed-rate (unit price) method, or a combination of these two methods, unless the grants officer gives advance written approval to use some other method of contracting. The cost-plus-a-percentage-of-cost method of contracting shall not be used. Adequate methods of advertising for and obtaining competitive sealed bids will be employed prior to award of the construction contract. The award of the contract will be made to the responsible bidder submitting the lowest responsive bid, which shall be determined without regard to State or local law whereby preference is given on factors other than the specification requirements and the amount of bid. The grantee must promptly transmit to the grants officer copies of bid protests, decisions on such protests, and related correspondence. The grants officer will cause appropriate review of grantee procurement methods to be made.

    (f) On construction contracts exceeding $100,000, each bidder must furnish a bid guarantee equivalent to 5 percent of the bid price. In addition, the contractor awarded the contract must furnish performance and payment bonds, each of which shall be in an amount not less than 100 percent of the contract price. Construction contracts less than $100,000 shall follow the State or local requirements relating to bid guarantees, performance bonds, and payment bonds.

    (g) The construction of the project, including the letting of contracts in connection therewith, shall conform to the applicable requirements of State, territorial, and local laws and ordinances to the extent that such requirements do not conflict with Federal laws.

    (h) The grantee will provide and maintain competent and adequate engineering supervision and inspection for the project to insure that the construction conforms with the approved plans and specifications.

    (i) Any construction contract must provide that representatives of the Environmental Protection Agency and the State, as appropriate, will have access to the work whenever it is in preparation or progress and that the contractor will provide proper facilities for such access and inspection. The contract must also provide that the grants officer, the Comptroller General of the United States , or any authorized representative shall have access to any books, documents, papers, and records of the contractor which are pertinent to the project for the purpose of making audit, examination, excerpts, and transcriptions thereof.

    (j) The grantee agrees to construct the project or cause it to be constructed in accordance with the application, plans and specifications, and subagreements approved by EPA in the grant agreement or amendments.

    (k) In addition to the notification of project changes pursuant to 40 CFR 30.900, a copy of any construction contract or modifications thereof, and of revisions to plans and specifications must be submitted to the grants officer.

    [38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]

    § 40.150   Evaluation of applications.

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    Every application for a research or demonstration grant will be evaluated by appropriate EPA staff in terms of relevancy and the applicable criteria set forth in §40.140. Only applications considered relevant to EPA research and demonstration objectives will receive further consideration and be subjected to additional review. Relevancy will be measured by program needs and priorities as defined in the Agency's current planned objectives. Relevancy, coupled with the results of technical review, will provide the basis for funding recommendations.

    (a) New applications. Applications considered relevant to EPA research and demonstration objectives will be reviewed for technical merit by at least one reviewer within EPA and at least two reviewers outside EPA. Review by a National Advisory Council is statutorily required for radiation grants.

    (b) Continuation applications. Continuation applications will be reviewed by appropriate EPA staff only. Recommendations for continuation of funding will be based on progress toward the accomplishment of the goals set forth for the project and continued Agency needs and priorities.

    § 40.155   Availability of information.

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    (a) The availability to the public of information provided to, or otherwise obtained by, the Administrator under this part shall be governed by part 2 of this chapter.

    (b) An assertion of entitlement to confidential treatment of part or all of the information in an application may be made using the procedure described in §30.235(b). See also §§2.203 and 2.204 of this chapter.

    (c) All information and data contained in the grant application will be subject to external review unless deviation is approved for good cause pursuant to 40 CFR 30.1000.

    [38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 41 FR 36918, Sept. 1, 1976]

    § 40.160   Reports.

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    § 40.160-1   Progress reports.

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    The grant agreement will normally require the submission of a brief progress report after the end of each quarter of the budget period. A monthly progress report may be required for some demonstration projects, if set forth in the grant agreement. Progress reports should fully describe in chart or narrative format the progress achieved in relation to the approved schedule and project milestones. Special problems or delays encountered must be explained. A summary progress report covering all work on the project to date is required to be included with applications for continuation grants (see §40.165b). This report may be submitted one quarter prior to the end of the budget period.

    § 40.160-2   Financial status report.

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    A financial status report must be prepared and submitted within 90 days after completion of the budget and project periods in accordance with §30.635–3.

    [42 FR 56057, Oct. 20, 1977]

    § 40.160-3   Reporting of inventions.

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    As provided in appendix B of 40 CFR part 30, immediate and full reporting of all inventions to the Environmental Protection Agency is required. In addition:

    (a) An annual invention statement is required with each continuation application.

    (b) A final invention report is required within 90 days after completion of the project period.

    (c) When a principal investigator changes institutions or ceases to direct a project, an invention statement must be promptly submitted with a listing of all inventions during his administration of the grant.

    [38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]

    § 40.160-4   Equipment report.

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    At the completion or termination of a project, the grantee will submit a listing of all items of equipment acquired with grant funds with an acquisition cost of $300 or more and having a useful life of more than 1 year.

    § 40.160-5   Final report.

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    The grantee shall submit a draft of the final report for review no later than 90 days prior to the end of the approved project period. The report shall document project activities over the entire period of grant support and shall describe the grantee's achievements with respect to stated project purposes and objectives. The report shall set forth in complete detail all technical aspects of the projects, both negative and positive, grantee's findings, conclusions, and results, including, as applicable, an evaluation of the technical effectiveness and economic feasibility of the methods or techniques investigated or demonstrated. The final report shall include EPA comment when required by the grants officer. Prior to the end of the project period, one reproducible copy suitable for printing and such other copies as may be stipulated in the grant agreement shall be transmitted to the grants officer.

    § 40.165   Continuation grants.

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    To be eligible for a continuation grant within the approved project period, the grantee must:

    (a) Have demonstrated satisfactory performance during all previous budget periods; and

    (b) Submit no later than 90 days prior to the end of the budget period a continuation application which includes a detailed summary progress report, an estimated financial statement for the current budget period, a budget for the new budget period; and an updated work plan revised to account for actual progress accomplished during the current budget period.

    .

    Report Faults EPA Oversight

    The report recommends that agency officials ensure that accurate standards are used to assess conditions at the site and that laboratories use the correct analytic methods.

    In related news, the start of the 112th Congress also featured the official closure of the Select Committee for Energy Independence and Global Warming, the only Congressional committee dedicated to tackling climate change.

    Administrative - EPA Order 3120.1b Scientific misconduct, fabrication or knowing falsification of
    data, research procedures, or data analysis is an offense which can result in immediate removal/ Suspension
    and Debarment / Civil Sanctions / Fines / Local AUSA Must Decide If Fraud Meets Criminal
    Prosecution Threshold / Culpability / Harm
    Laboratory Fraud, Title 18 United States Criminal Code; Is It Criminal or Civil?
    Fraud - 18 USC 1341 - 1343 , PROCEDURAL FRAUD, MEASUREMENT FRAUD
    False Statements - 18 USC 1001
    Conspiracy - 18 USC 371
    Concealment of a felony - 18 USC 4 (misprision)
    False Claims - 18 USC 287
    Obstruction of Justice - 18 USC 1505
    Penalties up to 20 years imprisonment for destroying, concealing or falsifying records with intent to
    obstruct or impede a legal investigation
    "Government is not reason; it is not eloquence; it is force. Like fire; it is a dangerous servant and a
    fearful master." - George Washington 

    JUDGE SPRAGUE ON THE LAWS AGAINST PIRACY. Published: May 19, 1861 - The New York Times At the opening of the United States Circuit Court in Boston on May 16, Judge SPRAGUE delivered a charge to the Grand Jury, in which he defined the state of our laws with reference to the crime of piracy. After citing provisions from the laws of 1790, 1820, 1825, 1846 and 1847, as to what constitutes the general crime, with the different degrees of penalty, the Judge remarks that these enactments were founded upon the clause in the Constitution which gives Congress the power to define and punish piracy. But the constitutional power to regulate commerce also affords a basis for additional penal enactments, covering all possible aggressions and depredations upon our commerce. The Judge then lays down the following important principles, the bearing of which will be sufficiently evident in the present crisis: "These statutes being enacted pursuant to the Constitution are of paramount authority, and cannot be invalidated or impaired by the action of any State or States, and every law, ordinance and constitution made by them for that purpose, whatever its name or form, is wholly nugatory and can afford no legal protection to those who may act under it. But suppose that a number of States undertake by resolution to throw off the Government of the United States and erect themselves into an independent nation, and assume in that character to issue commissions authorizing the capture of vessels of the United States, will such commissions afford protection to those acting under them against the penal laws of the United States? Cases have heretofore arisen where a portion of a foreign empire -- a colony -- has undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the rights of an independent nation, and in such cases it has been held that the relation which the United States should hold to those who thus attempt and claim to institute a new Government, is a political rather than a legal question; that, if those departments of our Government which have a right to give the law, and which regulate our foreign intercourse and determine the relation in which we shall stand to other nations, recognize such new and self-constituted Government as having the rights of a belligerent in a war between them and their former rulers, and the United States hold a neutral position in such war, then the judiciary, following the other departments, will to the same extent recognize the new nation. But if the legislative and executive, departments of the Government utterly refuse to recognize such new Government, or to acknowledge it as having any belligerent or national rights, and instead of taking a neutrel attitude endeavor by force to suppress depredations on commerce by such assumed Government, as violating the rights and infringing the laws of the United States, then the judiciary will hold that such depredations are not to be considered as belligerent and entitled to the immunities of lawful war, but as robbery or other lawless depredations, subject to the penalties denounced by our laws against such offences. The judiciary certainly cannot accept a more indulgent rule towards these who are in open rebellion against the authority if the United States, or toward aliens cooperating with and acting under the assumed authority of such rebels. While the other departments of the Government and the nation refuse to regard any State or association of States as having the rights of a belligerent, or as carrying on legitimate war, and are exerting not only moral but physical force against them as rebels and lawless aggressors upon the United States and its citizens, the Courts also must so regard them, and cannot admit that any legislation or assumption of power by such State or States can authorize acts in violation of the laws of the United States, or change the character of offences under them. There is another view. Mere rebellion absolves no man from his allegiance. Citizens of the United States, therefore, may not only be subject to the penalties of treason, but if they commit hostilities upon the commerce of the United States, under a commission from any foreign nation, even the oldest and best established, such as England or France for example, they may be dealt with as pirates by the express enactments in the ninth section of the statute of 1790, which has already been referred to. And aliens, who are subjects or citizens of any foreign State with whom we have a treaty, such as is described in the statute of 1847, chapter 51, which has already been quoted; if, in violation of such treaty, they make war upon the United States, or cruise against our vessels or property, under a commission from any foreign government, however long acknowledged, may, by the clear provisions of that statute, be dealt with as pirates. If aliens, subjects of a nation with whom we have no such treaty, commit acts of hostility upon our commerce, under the alleged authority or commission of a new and self-created government claiming to be independent, it may be material to inquire whether such government is to be regarded as having the immunities of a belligerent, or whether such aliens may be treated as robbers on the seas; and this inquiry will be governed by the principles which I have already stated. -CITE- 18 USC CHAPTER 115 - TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES 01/05/2009 -


    Economic Stability Through Training Advancing Parents
    Maintaining continuity of function and new development initiatives.
          Education & research designed to catalyze high-quality original scholarship.

    EPA is using to justify, clarifying the objective
    Overwhelming Overlying Beneficiary Rational & Efficient User Pursuit Logic Dictates
    Reversion Buffers Zone Remission
    LOST NIGHTS OF THE HARVESTS GATHERING  RIGHT
    LEFT- SINGLE-HANDED DAD REBELLION
    EMANCIPATION OF THE FEDERAL CONTROLLED SUBSTANCES REVOLUTION
    ORGANIC LAW FREEDOM ORDINANCE USER    'S MINERALS DEFICIENCY ACTION
    THE PEOPLES LIBERATION CONFEDERACY OF NATIONAL SLAVERY ABOLITION
    CERTAIN DRUGS USERS DIET DEFICIENCIES MEDICAL FREEDOM NECESSITY

    The Environmental Protection Agency released the peer review of its draft

    watershed assessment, which included some panelists' concerns, including lack of clarity

    in the document's objective, missing data and incomplete information.

    "The purpose of the report is unclear, which makes it difficult to assess," wrote panelist Gordon H. Reeves,

    with the U.S. Department of Agriculture's Pacific Northwest Research Station.

     "The report focused on the potential impact of a hypothetical mine.

    However, it is not clear whether the analysis was intended to be the case"

    Verb 1. abjure - formally reject or disavow a formerly held belief, usually under pressure;

    abjure verb abandon, abrogate, deny, disaffirm, disavow, discard, disclaim, disown, exclude, forgo, give up, recant, refuse to admit, reject, renounce, repudiate, resign, retract, revoke, surrender, yield

    See also: abandon, abrogate, annul, cede, controvert, depart, disallow, discontinue, disown, forfeit, forgo, forswear, leave, quit, recant, refuse, reject, relinquish, renounce, repudiate, resign, revoke, set aside, surrender, withdraw

    The EPA study "will confirm once again previous findings that current industry practices used

    in development are safe, responsible and effective

    means of extracting and producing...

    RULE AMENDED AND RENUMBERED EFFECTIVE DECEMBER 1, 2009

    Requests for continuances of hearings on the motion calendar, upon stipulation or otherwise, shall be made to the Judge or Magistrate Judge on whose calendar the matter is set, at least 5 court 7 days prior to the scheduled hearing date. All stipulations for continuance must be submitted to the Court for approval. Eastern Dist. LR 78-230(g) (amended and renumbered eff 12/1/09).

     

    MINUTE ORDER: The hearing on the motion(s) now calendared for March 3, 2010 are ordered submitted without appearance and without argument pursuant to Local Rule 230 (g).If the Court subsequently concludes that oral argument is necessary, a hearing will be set and the parties notified accordingly.


    Recurso de perdido amparo; amparo de libertad; amparo contra leyes; amparo como contencioso-administrativ; amparo en materia agrari; ejidal y comunal de segundo fumarse un calumet.


    ARMAN MINES MINISTRY OF NATURAL RESOURCES FEDERATION, THE HUMMINGBIRD INSTITUTE

    TWO MINERS & 360, 2744, 4400, 8000, 52,000, 88,000, & 103 MILLION ACRES OF LAND v. UNITED STATES -

    'Locke & Lode'


    Favente Deo, & auspice Christo, Contrariensium

    In the memory of virtue when it is present, people imitate it, and they long for it when it has gone;
    for their fruit will be useless, not ripe enough to eat, and good for nothing.

    ..a blameless life is ripe old age.

    They will come with dread when their sins are reckoned up, and their lawless deeds will convict them to their face.

    The salvation of the righteous, one another in repentance, and in anguish of spirit they will groan, and say,
    ‘These are persons whom we once held in derision and made a byword of reproach—fools that we were!
    We thought that their lives were madness and that their end was without honour.

    So it was we who strayed from the way of truth,

    ‘All those things have vanished like a shadow, and like a rumour that passes by; like a ship that sails through the billowy water, and when it has passed no trace can be found, no track of its keel in the waves; or as, when a bird flies through the air,
    no evidence of its passage is found; the light air, lashed by the beat of its pinions and pierced by the force of its rushing flight,
    is traversed by the movement of its wings, and afterwards no sign of its coming is found there; or as, when an arrow is shot at a target, the air, thus divided, comes together at once, so that no one knows its pathway.
    So we also, as soon as we were born, ceased to be, and we had no sign of virtue to show, but were consumed in our wickedness.'
    Because the hope of the ungodly is like thistledown carried by the wind, and like a light frost driven away by a storm;
    it is dispersed like smoke before the wind, and it passes like the remembrance of a guest who stays but a day.

    Therefore they will receive impartial justice as an invincible shield,
    and sharpen stern wrath.

    Listen therefore, and understand;
    learn, O judges of the ends of the earth.
    2 Give ear, you that rule over multitudes,
    and boast of many nations.
    3 For your dominion was given you from the Lord,
    and your sovereignty from the Most High;
    he will search out your works and inquire into your plans.
    4 Because as servants of his kingdom you did not rule rightly,
    or keep the law, or walk according to the purpose of God,
    5 he will come upon you terribly and swiftly,
    because severe judgement falls on those in high places.
    6 For the lowliest may be pardoned in mercy,
    but the mighty will be mightily tested.
    7 For the Lord of all will not stand in awe of anyone,
    or show deference to greatness;
    because he himself made both small and great,
    and he takes thought for all alike.
    8 But a strict inquiry is in store for the mighty.
    9 To you then, O monarchs, my words are directed,
    so that you may learn wisdom and not transgress.
    10 For they will be made holy who observe holy things in holiness,
    and those who have been taught them will find a defence.
    11 Therefore set your desire on my words;
    long for them, and you will be instructed.

    12 Wisdom is radiant and unfading,
    and she is easily discerned by those who love her,
    and is found by those who seek her.
    13 She hastens to make herself known to those who desire her.
    14 One who rises early to seek her will have no difficulty,
    for she will be found sitting at the gate.
    15 To fix one's thought on her is perfect understanding,
    and one who is vigilant on her account will soon be free from care,
    16 because she goes about seeking those worthy of her,
    and she graciously appears to them in their paths,
    and meets them in every thought.

    17 The beginning of wisdom is the most sincere desire for instruction,
    and concern for instruction is love of her,
    18 and love of her is the keeping of her laws,
    and giving heed to her laws is assurance of immortality,
    19 and immortality brings one near to God;
    20 so the desire for wisdom leads to a kingdom.


    21 Therefore if you delight in thrones and sceptres, O monarchs over the peoples,
    honour wisdom, so that you may reign for ever.
    22 I will tell you what wisdom is and how she came to be,
    and I will hide no secrets from you,
    but I will trace her course from the beginning of creation,
    and make knowledge of her clear,
    and I will not pass by the truth;
    23 nor will I travel in the company of sickly envy,
    for envy does not associate with wisdom.
    24 The multitude of the wise is the salvation of the world,
    and a sensible king is the stability of any people.
    25 Therefore be instructed by my words, and you will profit.

    7 I also am mortal, like everyone else,
    a descendant of the first-formed child of earth;
    and in the womb of a mother I was moulded into flesh,
    2 within the period of ten months, compacted with blood,
    from the seed of a man and the pleasure of marriage.
    3 And when I was born, I began to breathe the common air,
    and fell upon the kindred earth;
    my first sound was a cry, as is true of all.
    4 I was nursed with care in swaddling cloths.
    5 For no king has had a different beginning of existence;
    6 there is for all one entrance into life, and one way out.

    7 Therefore I prayed, and understanding was given me;
    I called on God, and the spirit of wisdom came to me.
    8 I preferred her to sceptres and thrones,
    and I accounted wealth as nothing in comparison with her.
    9 Neither did I liken to her any priceless gem,
    because all gold is but a little sand in her sight,
    and silver will be accounted as clay before her.
    10 I loved her more than health and beauty,
    and I chose to have her rather than light,
    because her radiance never ceases.
    11 All good things came to me along with her,
    and in her hands uncounted wealth.
    12 I rejoiced in them all, because wisdom leads them;
    but I did not know that she was their mother.
    13 I learned without guile and I impart without grudging;
    I do not hide her wealth,
    14 for it is an unfailing treasure for mortals;
    those who get it obtain friendship with God,
    commended for the gifts that come from instruction.

    15 May God grant me to speak with judgement,
    and to have thoughts worthy of what I have received;
    for he is the guide even of wisdom
    and the corrector of the wise.
    16 For both we and our words are in his hand,
    as are all understanding and skill in crafts.
    17 For it is he who gave me unerring knowledge of what exists,
    to know the structure of the world and the activity of the elements;
    18 the beginning and end and middle of times,
    the alternations of the solstices and the changes of the seasons,
    19 the cycles of the year and the constellations of the stars,
    20 the natures of animals and the tempers of wild animals,
    the powers of spirits * and the thoughts of human beings,
    the varieties of plants and the virtues of roots;
    21 I learned both what is secret and what is manifest,
    22 for wisdom, the fashioner of all things, taught me.

    The Nature of Wisdom

    There is in her a spirit that is intelligent, holy,
    unique, manifold, subtle,
    mobile, clear, unpolluted,
    distinct, invulnerable, loving the good, keen,
    irresistible,

    23 beneficent, humane,
    steadfast, sure, free from anxiety,
    all-powerful, overseeing all,
    and penetrating through all spirits
    that are intelligent, pure, and altogether subtle.
    24 For wisdom is more mobile than any motion;
    because of her pureness she pervades and penetrates all things.
    25 For she is a breath of the power of God,
    and a pure emanation of the glory of the Almighty;
    therefore nothing defiled gains entrance into her.
    26 For she is a reflection of eternal light,
    a spotless mirror of the working of God,
    and an image of his goodness.
    27 Although she is but one, she can do all things,
    and while remaining in herself, she renews all things;
    in every generation she passes into holy souls
    and makes them friends of God, and prophets;
    28 for God loves nothing so much as the person who lives with wisdom.
    29 She is more beautiful than the sun,
    and excels every constellation of the stars.
    Compared with the light she is found to be superior,
    30 for it is succeeded by the night,
    but against wisdom evil does not prevail.

    Bnei Ravrevaya

    Matthew 7

    1 Judge not, that ye be not judged.

    2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.

    3 And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?

    4 Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?

    5 Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye.

    6 Give not that which is holy unto the dogs, neither cast ye your pearls before swine, lest they trample them under their feet, and turn again and rend you.

    7 Ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you:

    8 For every one that asketh receiveth; and he that seeketh findeth; and to him that knocketh it shall be opened.

    9 Or what man is there of you, whom if his son ask bread, will he give him a stone?

    10 Or if he ask a fish, will he give him a serpent?

    11 If ye then, being evil, know how to give good gifts unto your children, how much more shall your Father which is in heaven give good things to them that ask him?

    12 Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.

    13 Enter ye in at the strait gate: for wide is the gate, and broad is the way, that leadeth to destruction, and many there be which go in thereat:

    14 Because strait is the gate, and narrow is the way, which leadeth unto life, and few there be that find it.

    15 Beware of false prophets, which come to you in sheep's clothing, but inwardly they are ravening wolves.

    16 Ye shall know them by their fruits. Do men gather grapes of thorns, or figs of thistles?

    17 Even so every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit.

    18 A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth good fruit.

    19 Every tree that bringeth not forth good fruit is hewn down, and cast into the fire.

    20 Wherefore by their fruits ye shall know them.

    21 Not every one that saith unto me, Lord, Lord, shall enter into the kingdom of heaven; but he that doeth the will of my Father which is in heaven.

    22 Many will say to me in that day, Lord, Lord, have we not prophesied in thy name? and in thy name have cast out devils? and in thy name done many wonderful works?

    23 And then will I profess unto them, I never knew you: depart from me, ye that work iniquity.

    24 Therefore whosoever heareth these sayings of mine, and doeth them, I will liken him unto a wise man, which built his house upon a rock:

    25 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell not: for it was founded upon a rock.

    26 And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand:

    27 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it.

    28 And it came to pass, when Jesus had ended these sayings, the people were astonished at his doctrine:

    29 For he taught them as one having authority, and not as the scribes.

    measure for measure

    now panic!

    Deo, Patriae, Tibi. Capitales justiciarii proprias regis causas terminant, ideo consideratum est per Curiam. Ex calce liberatus!

    Mr. T.W. Arman; radix & vertex imperii; absolute Patent Title owner, Iron Mountain Mine & Agricultural College grantee


    The border for the Iron Mountain Mine website includes two illustrations from the 1908 edition of the Mineral Resources of California, California State Mining Bureau.

    A 15th century tapestry of the Fang Hu Mountains, one of Chinese mythologies 5 mountains of the immortals.

    A sketch by an unknown artist of Ganymede (associated with the astrological sign Aquarius), the Trojan Prince abducted by Zeus from Mount Ida, who was granted immortality and the auspicious and esteemed position of cup-bearer.

    Ganymede was afterwards also regarded as the genius of the fountains of the Nile, the life-giving and fertilizing river. Thus the divinity that distributed drink to the gods in heaven became the genius who presided over the due supply of water on earth.


    Donna nobis pacem - Grant us peace : Fide, non armis - By faith, not arms

    panic!

    home = smoked salmon

    This is the truth, as old as the hills, that life and experience teach:

    The poor man suffers the keenest of ills, an impediment in his reach. 

    Sub specie mali : The stream of thought flows on; but most of its segments fall into the bottomless abyss of oblivion. Of some, no memory survives the instant of their passage. Of others, it is confined to a few moments, hours or days. Others, again, leave vestiges which are indestructible, and by means of which they may be recalled as long as life endures. -William James

    There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. Justice Benjamin Cardozo

    What is fear, saith Solomon, but a betraying of the succours that reason offereth.

    Deo, Patriae, Tibi.

    webmaster-netslave?

    "The Mechanic"

    The Bottom Line

    "Thy walls are strength, and at thy gates
    A guard of heavenly warriors waits;
    Nor shall thy deep foundations move,
    Fixed on his counsels and his love.

    Thy foes in vain designs engage;
    Against his throne in vain they rage,
    Like rising waves, with angry roar,
    That dash and die upon the shore."

    IMMI -AMD&CSI - Serenescapes -HU/MOUNTAIN Joint Venture - Ted Arman - John Hutchens ©1862-2319