Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.

Those who won our independence... valued liberty as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.

Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent.

If we desire respect for the law, we must first make the law respectable.

In the frank expression of conflicting opinions lies the greatest promise of wisdom in governmental action.

Fear of serious injury alone cannot justify oppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.

Those who won our independence... valued liberty as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.

To declare that in the administration of criminal law the end justifies the means to declare that the Government may commit crimes in order to secure conviction of a private criminal would bring terrible retribution.

We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both.

The most important political office is that of private citizen.

That the existing unemployment is, in large part, of the gross inequality in the distribution of wealth and income which giant corporations have fostered; that by the control which few have exerted through giant corporations, individual initiative and effort are being paralyzed, creative power impaired and human happiness lessened; that the true prosperity of our past came not from big business, but through the courage, the energy and the resourcefulness of small men; that only by releasing from corporate control the faculties of the unknown many, only by reopening to them the opportunities for leadership, can confidence in our future be restored and the existing misery overcome; and that only through participation by the many in the responsibilities and determinations of business, can America secure the moral and intellectual development which is essential to the maintenance of liberty.

Justice Louis D. Brandeis





FREE MR. T.W. ARMAN & IRON MOUNTAIN MINES, INC. Administrative - EPA Order 3120.1b n Scientific misconduct, fabrication or knowing falsification of data, research procedures, or data analysis is an offense which can result in immediate removal

Title 18 United States Criminal Code

Fraud - 18 USC 1341 - 1343

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 -MILITIA & POSSE - LOCKE & LODE!

Dear Mr. President Barack Obama,


Iron Mountain Mine and T.W. Arman intervene, "two miners"

ARMAN MINERALS RESOURCE DEFENSE COUNCIL & THE LOST HUMAN USE REMEDIATION & RESTORATION TRUST Hazard & Remediation Director announce $33 Billion Senior Note, Tender Offer, & Renewable Energy Bonds


I am corresponding to you again concerning my property known as Iron Mountain Mines, Inc., located in the Jefferson mining district of Shasta County, California .

I am again seeking your executive authority to resolve the status of my potential liability for the supposedly “unrecovered past response costs” that the EPA claims justify their liens against my properties.

I believe that you should provide this administrative order because:

(A) I am not a contributor to the hazardous substances at my facility or the toxic affects of the hazardous substances found at my facility, and

(B) I am the owner of the real property on which the facility is located and I did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and I did not contribute to the release or threat of release of a hazardous substance at the facility through any action or omission.

I believe I have not received a fair deal from the EPA, and I have persevered in proclaiming my innocence and my entitlement to the innocent land owner defense despite the incredible hardship that I have had to endure for the last 33 years protesting the allegation that I have contributed to or caused the pollution that is the subject of this Superfund site.

I was denied the innocent landowner defense of 9601 (35) (A) (i) in a partial summary judgment proceeding in October of 2002 that incorrectly alleges that the innocent landowner defense is unavailable to me. The EPA stated to the Court that “This defense, however, is only available to PRPs who, at the time of purchase, “did not know, or had no reason to know that any hazardous substance which is the subject of the release or threatened release is disposed of on, in, or at the facility.” The EPA then incorrectly states that “Because IMMI purchased the property with knowledge of – indeed, at least in part, because of – the presence of hazardous materials, the innocent landowner defense is not available to IMMI.

I try to be understanding about how these things get confusing after all these years, and I hope that this was simply an error and was not perpetrated out of malice or ill will, and I can certainly understand how the Court would defer to the experts at the EPA in determining such matters, however, the fact is that when I purchased the property in October of 1976 Copper, Cadmium, and Zinc were not considered “hazardous substances” in storm water run-off. This determination did not occur until July, 1977 of the following year, when the Congress Transportation Subcommittee approved new regulations for the Clean Water Act regulating these metals in storm run-off as “hazardous substances”. Indeed, the Copper in the storm drainage, or Acid Mine Drainage as it is now called, was represented as a valuable asset by the sellers of the property to me at the time, and whatever they knew about pending legislation or other environmental matters they concealed from me (as was latter proven by the EPA and DOJ counsel when they subpoenaed the seller's records), and after the purchase the principle occupation of my company along with the sales of mine tailings was operating the cementation plant, which recovered the Copper from the drainage before it got to the river.

I recently read an EPA web page that refers to the Iron Mountain Mines Superfund site, which the EPA published back in 2000, entitled the “Superfund 20th Anniversary Report”.

Making the Program Faster, Fairer, and More Efficient (Continued)

Resolving Disputes Outside of Court
Some of the most complex and contested cases can be settled using an outside mediator -- allowing all the parties to spend their time and resources cleaning up sites rather than litigating cases in court.

For example, at the Landfill & Resource Recovery site in Rhode Island , the parties included 18 PRPs, along with the United States and the State of Rhode Island . Both the Federal and State claims were resolved with the help of a Federal district court judge with a settlement that reimbursed the government for 97 percent of its expected costs. The mediated settlement also provided funds to purchase wetlands to expand the Blackstone River Valley National Heritage Center .

At the Auburn Road Landfill site in New Hampshire , a voluntary mediation led to a consent decree that resolved the government's claims against 31 PRPs. The settlers agreed to perform the remedy and to reimburse the United States for its past cleanup costs and future oversight costs. In addition, the settlers are reimbursing the State of New Hampshire and the Town of Londonderry for past cleanup costs and future oversight costs.

Protecting the "Little Guy"
Some Superfund sites have hundreds of PRPs, including small companies (or even individuals) who have contributed only a minor portion of the waste. These small contributors may be dragged into burdensome litigation by the PRPs which were primarily responsible for the contamination. EPA attempts to identify and resolve the liability of these small party contributors early in the process, leading to de micromis and de minimis settlements.

A de micromis party is someone whose contribution of waste is minimal. In fact, the costs of hiring a lawyer, and negotiating a settlement, would dwarf any amount the party could reasonably be expected to contribute to cleanup costs. Many times, the PRPs who contributed a major portion of the waste to a site sue the de micromis parties for contribution. EPA enters into a de micromis settlement with these parties to protect them from such suits.

For example, 47 homeowners who lived around the Raymark Industries site in Connecticut could be seen as de micromis parties since they only contributed household wastes to the site. EPA and the State of Connecticut protected these homeowners from being sued by entering into a settlement where each homeowner paid $1 to be protected from "third party" law suits brought by the major contributors.

A de minimis party has contributed more waste than a de micromis party, but the amount is still insignificant when compared with what has been contributed by some of the major PRPs -- for example, less than 1 percent of the waste at a site. With de minimis parties, EPA has placed a priority on achieving a quick, efficient resolution of their liability to protect them from burdensome litigation.

At the Tulalip Landfill in Washington , EPA settled with 207 de minimis parties very early in the process, resulting in the recovery of approximately $10 million and the identification of PRPs who made major contributions of waste to the site. At the Cherokee Oil Resources site in North Carolina , EPA entered into an early de minimis settlement with over 200 small contributors. Both the de minimis and the major contributors agreed not to sue over 1,000 de micromis parties.

EPA gets the "little guys out" of the Superfund enforcement. Over the years, 460 de minimis settlements have been reached with nearly 23,000 small waste contributors.

$1 Billion Settlement Reached at Iron Mountain Mine Site

Redding, California (October 19, 2000) -- The United States and the State of California announced a settlement today with Aventis Crop Sciences USA, Inc. to fund future cleanup costs that could approach $1 billion at the Iron Mountain Mine site . The settlement is one of the largest to be reached with a single private party in the history of the Superfund Program. The agreement will ensure long-term control of more than 95 percent of the releases from the site.

This 4,400-acre site, which operated from the 1860s through 1963, is historically the largest point source of toxic metals in the country, and the source of the most acidic mine drainage in the world. Prior to remediation, the mine discharged an average of a ton of toxic metals a day into the Upper Sacramento River, a critical salmon spawning habitat and central feature in the State's water system. Approximately 70,000 people used surface water within 3 miles of the site as their source of drinking water.

In 1983, EPA listed the site on the NPL at the State's request. Since then, numerous Federal and State agencies have worked together on this site which has been addressed in six stages starting with a series of emergency actions. In 1994, a high density sludge treatment plant was installed that removes 99.99 percent of metals from the site's toxic runoff.

The settlement pays for natural resource restoration projects, provides for operation and maintenance for 30 years, and guarantees additional funding for site costs incurred after the year 2030.

It seems somewhat ironic to me that the EPA is touting how they are “ Resolving Disputes Outside of Court” and “ Protecting the "Little Guy"” proclaiming the benefits of de micromis and de minimis settlements and apparently claiming that their dealings with Iron Mountain Mines is a good example of this.

Once again I respectfully submit that I am entitled to an innocent land owner defense.

The EPA treatment program has resulted so far in the accumulation of some 500,000 tons of sludge upon my property, and since the EPA apparently plans to let me continue making this sludge for another 3000 years, I am also asking for your assistance pursuant to Executive Order No. 13352, 42 U.S.C. 6901 et seq (a)(4), (b)(1 thru 8), and (c)(1 thru 3), and 6902 et seq (a)(1 thru 11) and (b), and 9622 (a), (b)(1 thru 4) to help me to correct this problem.

This is the umpteenth letter I have transmitted to you. I am wondering if you are even receiving these correspondences.

I am also seeking your assistance in promoting “cooperative conservation”, as provided for in your Executive Order No. 13352, and in accordance with the purposes expressed therein.

As used in this order, the term ``cooperative conservation'' means actions that relate to use, enhancement, and enjoyment of natural resources, protection of the environment, or both, and that involve collaborative activity among Federal, State, local, and tribal governments, private for-profit and nonprofit institutions, other nongovernmental entities and individuals.

The last reply to my request, dated May 1, 2008, and signed by Kathleen Salyer , Chief of the Site Cleanup Branch of Region IX of the EPA, states that “businesses and individuals are not eligible for EPA technical assistance under the provisions of 6913 of RCRA.”

Clearly my request has been entirely misunderstood, as I believe that it is the EPA that is in need of assistance under the provisions of 6913 of RCRA.

I provide for your convenience the relevant text of 6901 of the Solid Waste Act.

b) Environment and health   The Congress finds with respect to the environment and health, that-- (1) although land is too valuable a national resource to be needlessly polluted by discarded materials, most solid waste is disposed of on land in open dumps and sanitary landfills; (2) disposal of solid waste and hazardous waste in or on the land without careful planning and management can present a danger to human health and the environment; (3) as a result of the Clean Air Act [42 U.S.C. 7401 et seq.], the Water Pollution Control Act [33 U.S.C. 1251 et seq.], and other Federal and State laws respecting public health and the environment, greater amounts of solid waste (in the form of sludge and other pollution treatment residues) have been created. Similarly, inadequate and environmentally unsound practices for the disposal or use of solid waste have created greater amounts of air and water pollution and other problems for the environment and for health; (4) open dumping is particularly harmful to health, contaminates drinking water from underground and surface supplies, and pollutes the air and the land; (5) the placement of inadequate controls on hazardous waste management will result in substantial risks to human health and the environment; (6) if hazardous waste management is improperly performed in the first instance, corrective action is likely to be expensive, complex, and time consuming; (7) certain classes of land disposal facilities are not capable of assuring long-term containment of certain hazardous wastes, and to avoid substantial risk to human health and the environment, reliance on land disposal should be minimized or eliminated, and land disposal, particularly landfill and surface impoundment, should be the least favored method for managing hazardous wastes; and (8) alternatives to existing methods of land disposal must be developed since many of the cities in the United States will be running out of suitable solid waste disposal sites within five years unless immediate action is taken.   (c) Materials   The Congress finds with respect to materials, that-- (1) millions of tons of recoverable material which could be used are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments.   (d) Energy   The Congress finds with respect to energy, that-- (1) solid waste represents a potential source of solid fuel, oil, or gas that can be converted into energy; (2) the need exists to develop alternative energy sources for public and private consumption in order to reduce our dependence on such sources as petroleum products, natural gas, nuclear and hydroelectric generation; and (3) technology exists to produce usable energy from solid waste.   Since the EPA is administering the cleanup of the Acid Mine Drainage under the provisions of CERCLA, it is therefore a federal activity, as described in your Executive Order No. 13352.   “Sec. 3. Federal Activities. To carry out the purpose of this order, the Secretaries of the Interior, Agriculture, Commerce, and Defense and the Administrator of the Environmental Protection Agency shall, to the extent permitted by law and subject to the availability of appropriations and in coordination with each other as appropriate: (a) carry out the programs, projects, and activities of the agency that they respectively head that implement laws relating to the environment and natural resources in a manner that: (i) facilitates cooperative conservation; (ii) takes appropriate account of and respects the interests of persons with ownership or other legally recognized interests in land and other natural resources; (iii) properly accommodates local participation in Federal decisionmaking; and (iv) provides that the programs, projects, and activities are consistent with protecting public health and safety; (b) report annually to the Chairman of the Council on Environmental Quality on actions taken to implement this order; and (c) provide funding to the Office of Environmental Quality Management Fund (42 U.S.C. 4375) for the Conference for which section 4 of this order provides.”

As Iron Mountain Mines, Inc. is a private for-profit organization, and Iron Mountain Mines, Inc. has ownership and other legally recognized interests in land and other natural resources, I believe I am entitled to the benefit of these provisions, and deserve to have the Department of Energy and the National Aeronautics and Space Administration take and show “appropriate account of and respects the interests of persons with ownership or other legally recognized interests in land and other natural resources.”

I offer these further observations:

Since the EPA undertook cleanup of Iron Mountain Mines, Inc. under the provisions of CERCLA and my designation on the National Priority List (NPL) in 1983, a great deal of research has been conducted by private, government, and academic experts.

It is now recognized and understood that the cause of the Acid Mine Drainage is due to the activity of a biological community of micro-organisms inhabiting the rock formations underground, and that these bacterium have shown us their remarkable ability to extract from the earth with ease those very metals which miners have struggled and toiled to extract for the benefit of mankind.

Industry has quickly recognized this talent, and now employs these biological communities to great advantage in the economical extraction of minerals.

Similarly it has been shown, and is now being commercially implemented, that biological communities of micro-organisms can be employed to remedy the Acid Mine Drainage, and remove metal contaminants from water resources before entering the waterways of the United States more effectively and economically, and in more environmentally sound ways, than the conventional chemical methods.

These biological processes and their commercial adaptation in the form of biotechnology or “bio-mining”, offer the potential to transform what is presently regarded as an environmental disaster by the EPA, (by last account the EPA reported that AMD remediation would cost $72 billion dollars) into a manageable problem

In light of the new understanding of the biological processes involved in the formation of Acid Mine Drainage and its consequent effect upon the environment, we would like to offer a suggestion for a reinterpretation by the EPA of the legislation that currently regulates AMD.

Pursuant to the provisions of CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, and the definitions contained therein, that henceforth AMD should be recognized as an “Act of God”, because it is a “natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.”   Also we would suggest that mines do not fit within the description of a “facility”, which requires that a site is: “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed.”   In as much as the presence of any “hazardous substance” that is a naturally occurring element whose source is located in the earth must necessarily be acknowledged as an “Act of God” for such an expression to have any meaning, and since no person is responsible for it having been “deposited, stored, disposed of, or placed”, it should therefore be understood that persons may no longer be blamed for AMD, and the “cooperative conservation” of such resources may proceed without the acrimonious litigation and waste which has heretofore been the hallmark of this debate.  

We promote the recovery of minerals in accordance with public law. see Frankenstein, Incorporated (1931). [288 U.S. 517, 568]



Thank You for your consideration of this matter, (and stop by for a round of golf) Very Best Regards, Please make checks payable to:

T.W. (Ted) Arman Date: July, 2010, owner, Arman Consolidated Mine, President, Iron Mountain Mines, Inc. Private Citizen


Mining Association Sues EPA, Corps of Engineers Over Coal Permits
Posted Tuesday, July 20, 2010
The National Mining Association says the federal agencies are obstructing the permitting process.

The National Mining Association Tuesday announced it is suing the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers for allegedly obstructing the coal mine permitting process in Central Appalachia.

The NMA filed the suit in Federal District Court for the District of Columbia, according to a news release from the association.

In the suit, the association claims the two agencies circumvented public notice and commenting requirements in the coal mine permitting process.

"NMA members' efforts to navigate this unlawful process and obtain reasonable and predictable permit terms have been unsuccessful, leaving us no choice but to challenge the EPA and Corps policy in court," association President and CEO Hal Quinn said in the news release. "Detailed agency guidance is not a valid substitute for lawful rule making based on public notice and comment. The agencies' continued abuse of the law to impose arbitrary standards on mining operations, state agencies and other federal regulatory bodies threatens the entire region with further economic misery and stagnant employment."

The association alleges in the suit that the EPA and the Corps violated the federal Administrative Procedures Act, the Clean Water Act, the National Environmental Policy Act and the Surface Mining Control and Reclamation Act, according to the news release. The agencies disregarded, "explicit requirements for public comment and formal rule making procedures."

The suit further alleges that the EPA usurped powers granted to state and other federal agencies and has used arbitrary and capricious benchmarks for assessing water quality.

As a result, the agencies have placed a "de facto moratorium" on coal mining that is harming NMA member companies, the news release states.

According to the NMA, nearly 18,000 jobs and more than 80 small businesses have been jeopardized as a result of the agencies' actions.

"The Corps is allowing EPA to impose unilateral control over coal mine permits throughout Appalachia, imposing a moratorium on jobs, energy production and the economic future of communities in the region," Quinn said in a news release. "The faulty science at the heart of this policy serves no environmental good. These actions must be held to the same standard required of all substantive rules."

Copyright 2010 West Virginia Media. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Coal companies sue EPA over mine permit delays

Tue Jul 20, 2010 8:

* Mining companies file suit against EPA

* Charge agency is obstructing mine permits

* EPA says action consistent with law

NEW YORK, July 20 (Reuters) - The National Mining Association, which represents most major U.S. coal mining companies, on Tuesday filed suit against the Environmental Protection Agency, saying it was unlawfully obstructing permits for coal mining operations in Central Appalachia.

EPA's delaying of mountaintop mining permits has jeopardized thousands of jobs and supply of a fuel vital to meeting national electric power needs, said the lawsuit, filed in the Federal District Court for the District of Columbia.

The NMA suit against EPA and the U.S. Army Corps of Engineers contends they have circumvented requirements for public notice and comment on federal statutes and ignored calls for "peer-reviewed science" as part of "a deliberate policy to substitute agency 'guidance' for formal rulemaking."

A spokeswoman said EPA is reviewing the suit, and added: "EPA's mining guidance is fully consistent with the law and the best available science and will help ensure that Americans living in coal country don't have to choose between a healthy environment for their families and the jobs they need to support them."

Since the Obama administration came into office, the EPA has put almost 200 permits in Appalachia for surface, or mountaintop, mining on hold for "enhanced review." That sparked complaints from mining companies that it was aimed at banning the technique, in which mines are dug directly into the side of mountains and debris is discarded in springs and rivers.

"EPA has usurped authorities clearly granted to the states and other federal agencies and has used technical benchmarks for assessing water quality that are both arbitrary and capricious," the NMA suit said.

"Detailed agency guidance is not a valid substitute for lawful rulemaking based on public notice and comment," NMA president and chief executive Hal Quinn said in a statement.

"The agencies' continued abuse of the law to impose arbitrary standards on mining operations, state agencies and other federal regulatory bodies threatens the entire region with further economic misery and stagnant employment."

The NMA said EPA's action resulted in a de facto moratorium on coal mining "that is irreparably harming NMA's member companies, the welfare of coal communities and the economy."

It said a May 21 report by the Senate Environment and Public Works Committee Minority staff stated nearly 18,000 new and existing jobs and more than 80 small businesses are jeopardized by the policy EPA and the Corps have applied to the 190 permits still awaiting action in mid-May. (Reporting by Steve James; Editing by Gary Hill)

Tuesday, July 20, 2010

Tenth Circuit gets ministerial exemption right, appellate procedure wrong

A decision from the Tenth Circuit last week , dealing with the ministerial exemption to employment discrimination laws, got the jurisdictionality question exactly right, holding that it determines "whether the First Amendment bars [that plaintiff's] claims," which is a merits question and not a question of judicial subject matter jurisdiction. (H/T: Christopher Lund , from a debate on the Law and Religion listserv). Unfortunately, it and the parties seem to have botched an issue of appellate procedure (although with no harm or effect on the outcome).

Sued by a former employee of violating Title VII, the ADEA, and the Equal Pay Act, the Diocese raised the ministerial exemption on a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The district court converted that to a 12(b)(6), then to a motion for summary judgment when it considered submitted affidavits beyond the pleadings. The district court granted summary judgment on the federal claims and declined supplemental jurisdiction on state claims. When the plaintiff appealed the summary judgment ruling, the Diocese filed a cross-appeal, insisting that the district court erred by converting the motion from a jurisdictional one to a merits one.

Relying on prior circuit precedent and a decision from the Third Circuit, the court held that the ministerial exemption from Title VII, like the broader "Church Autonomy Doctrine," serves as a "barrier to the success of the plaintiff's claims," but does not affect the court's adjudicative authority. The court likened the ministerial exemption to executive qualified immunity from constitutional claims, which similarly defeats claims on the merits without depriving the court of jurisdiction to hear and resolve the case. The court's decision and explanation are spot-on.

The discussion on the listserv (which Chris has forwarded to me) has turned to whether the ministerial exemption (and church autonomy generally) should be characterized as "jurisdictional." My argument is that it is jurisdictional, but not in the sense that many people use the term. The exemption, properly understood, does not limit the jurisdiction of the courts to adjudicate (to hear and resolve the case). Instead, it limits the jurisdiction (the authority) of Congress to legislate--what we can call prescriptive or legislative jurisdiction/authority. The ministerial exemption is a First Amendment doctrine and any attempt by Congress to legislate in derogation of the exemption would be unconstitutional and any such law would be invalid. That is, the First Amendment has imposed a limit on Congress' prescriptive authority to create legal rules that regulate or prohibit certain employment by the Church as to certain employees. Thus, the plaintiff's attempt to sue the Diocese under federal law fails because there is no valid enforceable legal rule to be enforced, because the First Amendment limits the scope of existent federal law. That failure is on the merits; federal law does not prohibit the conduct of which the Church is accused by this ministerial employee. But this does not affect the court's authority to hear and resolve a case that, although unsuccessful, plainly arises under federal law (in the sense of asserting a right existing because of federal law). This conflation of adjudicative and prescriptive jurisdiction is at the heart of the current circuit split over the ministerial exemption. And it is at the heart of much jurisdiction/merits confusion.

On the other hand, the Tenth Circuit seems to have made a mistake of appellate procedure. The court allowed the Diocese to cross-appeal to argue that the ministerial exemption is properly understood as a limit on the district court's adjudicative jurisdiction and that the 12(b)(1) should have been granted. But I am not sure that a cross-appeal was proper or necessary here. The general rule is that a party only can appeal a judgment or order if it is "aggrieved" by a judgment that is adverse to its interests. Winning on grounds different than the ones urged in the district court does not provide the basis for a cross-appeal. A prevailing party can argue any grounds that appear in the record in support of the favorable judgment, without a cross-appeal.

Moreover, no cross-appeal is required (or permitted) when a district court has resolved the case in the defendant's favor on the merits but the defendant wants to urge a jurisdictional dismissal. Because subject matter jurisdiction can be raised at any time, the prevailing party can argue that as a different basis for affirming the judgment. That clearly is the case here--the district court rejected the claims on the merits, while the Diocese wanted to prevail on jurisdictional grounds. No cross-appeal should have been necessary. This case is somewhat unusual because the same argument--ministerial exemption--is being used both to convert the lower-court judgment and to defend it. But that should not make a difference. The point is that the Diocese was arguing to an appellate court that the trial court reached the merits in a case in which it (according to the Diocese) lacked subject matter jurisdiction. No cross-appeal should be required.

Interesting, a cross-appeal is required in the converse situation--where the district court dismisses a case without prejudice on jurisdictional grounds and the prevailing defendant wants to convert that dismissal to one on the merits, which would be with prejudice and would have res judicata effect. Such an argument is deemed to change or modify the nature of the judgment, which requires cross-appeal. Of course, had the Diocese prevailed on its cross-claim here, it would have converted a judgment having res judicata effect into one not having res judicata effect. As the case stood, the district court's ruling precludes the plaintiff from refiling her federal claims. Had the dismissal of the federal claims been on jurisdictional grounds, on the other hand, the plaintiff could have refiled those claims in state court. In other words, the Diocese's argument, while allowed on cross-appeal, actually would have put it in a less-advantageous position in this case.

The with-prejudice/without-prejudice line is an overlooked aspect of jurisdiction/merits confusion. By trying to characterize lots of issues under federal statutes as jurisdictional, defendants actually set themselves up for having to relitigate these claims in state court (where there is concurrent jurisdiction). Here, because the court treated the ministerial exemption as a merits issue, the Diocese does not have to worry about any of the plaintiff's federal claims again. You would think that is a benefit the Diocese would not have wanted to give away.


“The Two United States and the Law”

July 20, 2010 by Capt. Karl

By Howard Freeman

Our forefathers, weary of the oppressive measures that King George III's government forced upon them, in common declared their independence from England in 1776. They were not expected to be successful in that resistance. The moneyed people had backed England for two major reasons. First, our forefathers wanted a rigid, written Constitution “set in concrete.” They were familiar with the so-called Constitution of England which consisted largely of customs, precedents, traditions, and understandings, often vague and always flexible. They wanted the principle of English common law, that an act done by any official person or law-making body beyond his or its legal competence was simply void. Second, the thirteen little colonies desired to base their union on substance (gold and silver) — real money. They well knew how the despotic governments of Europe were mortgaged to the hilt — lock, stock, and barrel, the land, the people, everything — to certain wealthy men who controlled the banks, the currency, and all credit, who lent credit but did not loan gold and silver!

The United States of America was made up of a union of fifty sovereign States; a three-branch (legislative, executive, and judicial) Republic known as The United States of America, or as termed in this article, the Continental United States. Its Citizens lived in one of the fifty Union States, and its laws were based on the Constitution, which is based on Common Law.

Less than one hundred years after we became a Union of States, a loophole was discovered in the Constitution by cunning lawyers in league with the international bankers. They realized that a separate Nation existed, by the same name, that Congress had created in Article I, Section 8, Clause 17. This “United States” is a Legislative Democracy within the Constitutional Republic, and is known as the Federal United States. It has exclusive, unlimited rule over its citizenry, the residents of the District of Columbia, the territories and enclaves (Guam, Midway Islands, Wake Island, Puerto Rico, etc.), and anyone who is a citizen by way of the 14th Amendment.

Both United States have the same Congress that rules in both Nations. One “United States,” the Republic of fifty States, has the “stars and stripes” as its flag, but without any fringe on it. The Federal United States' flag is the stars and stripes with a yellow fringe, seen in all the courts. The abbreviations of the States of the Continental United States are: Ala., Alas., Ariz., Ark., Cal., etc. The abbreviations of the States under the jurisdiction of the Federal United States, the Legislative Democracy, are AL, AK, AZ, AR, CA, etc. (without any periods).

Under the Constitution, based on Common Law, the Republic of the Continental United States provides for legal cases (1) at Law, (2) in Equity, and (3) in Admiralty:

(1) Law is the collective organization of the individual right to lawful defense. It is the will of the majority, the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces, to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all. Since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups. Law allows you to do anything you want to, as long as you don't infringe upon the life, liberty or property of anyone
else. Law does not compel performance. Today's so-called laws (ordinances, statutes, acts, regulations, orders, precepts, etc.) are often erroneously perceived as law, but just because something is called a “law” does not necessarily make it a law. [There is a difference between "legal" and "lawful." Anything the government does is legal, but it may not be lawful.]

(2) Equity is the jurisdiction of compelled performance (for any contract you are a party to) and is based on what is fair in a particular situation. The term “equity” denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men. You have no rights other than what is specified in your contract. Equity has no criminal aspects to it.

(3) Admiralty is compelled performance plus a criminal penalty, a civil contract with a criminal penalty.

By 1938 the gradual merger procedurally between law and equity actions (i.e., the same court has jurisdiction over legal, equitable, and admiralty matters) was recognized. The nation was bankrupt and was owned by its creditors (the international bankers) who now owned everything — the Congress, the Executive, the courts, all the States and their legislatures and executives, all the land, and all the people. Everything was mortgaged in the national debt. We had gone from being sovereigns over government to subjects under government, through the use of negotiable instruments to discharge our debts with limited liability, instead of paying our debts at common law with gold or silver coin.

The remainder of this article explains how this happened, where we are today, and what remedy we have to protect ourselves from this system.

Our Present Commercial System of “Law” and the REMEDY Provided for Our Protection

The present commercial system of “law” has replaced the old and familiar Common Law upon which our nation was founded. The following is the legal thread which brought us from sovereigns over government to subjects under government, through the use of negotiable instruments (Federal Reserve Notes) to discharge our debts with limited liability instead of paying our debts at common law with gold or silver coin.

The change in our system of law from public law to private commercial law was recognized by the Supreme Court of the United States in the Erie Railroad vs. Thompkins case of 1938, after which case, in the same year, the procedures of Law were officially blended with the procedures of Equity. Prior to 1938, all U.S. Supreme Court decisions were based upon public law — or that system of law that was controlled by Constitutional limitation. Since 1938, all U.S. Supreme Court decisions are based upon what is termed public policy.

Public policy concerns commercial transactions made under the Negotiable Instrument's Law, which is a branch of the international Law Merchant. This has been codified into what is now known as the Uniform Commercial Code, which system of law was made uniform throughout the fifty States through the cunning of the Congress of the United States (which “United States” has its origin in Article I, Section 8, Clause 17 of the Constitution, as distinguished from the “United States,” which is the Union of the fifty States).

In offering grants of negotiable paper (Federal Reserve Notes) which the Congress gave to the fifty States of the Union for education, highways, health, and other purposes, Congress bound all the States of the Union into a commercial agreement with the Federal United States (as distinguished from the Continental United States). The fifty States accepted the “benefits” offered by the Federal United States as the consideration of a commercial agreement between the Federal United States and each of the corporate States. The corporate States were then obligated to obey the Congress of the Federal United States and also to assume their portion of the equitable
debts of the Federal United States to the international banking houses, for the credit loaned. The credit which each State received, in the form of federal grants, was predicated upon equitable paper.

This system of negotiable paper binds all corporate entities of government together in a vast system of commercial agreements and is what has altered our court system from one under the Common Law to a Legislative Article I Court, or Tribunal, system of commercial law. Those persons brought before this court are held to the letter of every statute of government on the federal, state, county, or municipal levels unless they have exercised the REMEDY provided for them within that system of Commercial Law whereby, when forced to use a so-called “benefit” offered, or available, to them, from government, they may reserve their former right, under the Common Law guarantee of same, not to be bound by any contract, or commercial agreement, that they did not enter knowingly, voluntarily, and intentionally.

This is exactly how the corporate entities of state, county, and municipal governments got entangled with the Legislative Democracy, created by Article I, Section 8, Clause 17 of the Constitution, and called here The Federal United States, to distinguish it from the Continental United States, whose origin was in the Union of the Sovereign States.

The same national Congress rules the Continental United States pursuant to Constitutional limits upon its authority, while it enjoys exclusive rule, with no Constitutional limitations, as it legislates for the Federal United States.

With the above information, we may ask: “How did we, the free Preamble citizenry of the Sovereign States, lose our guaranteed unalienable rights and be forced into acceptance of the equitable debt obligations of the Federal United States, and also become subject to that entity of government, and divorced from our Sovereign States in the Republic, which we call here the Continental United States?” We do not reside, work, or have income from any territory subject to the direct jurisdiction of the Federal United States. These are questions that have troubled sincere, patriotic Americans for many years. Our lack of knowledge concerning the cunning of the legal profession is the cause of that divorce, but a knowledge of the truth concerning the legal thread, which caught us in its net, will restore our former status as a free Preamble citizen of the Republic.

The answer follows:

Our national Congress works for two nations foreign to each other, and by legal cunning both are called The United States. One is the Union of Sovereign States, under the Constitution, termed in this article the Continental United States. The other is a Legislative Democracy which has its origin in Article I, Section 8, Clause 17 of the Constitution, here termed the Federal United States. Very few people, when they see some “law” passed by Congress, ask themselves, “Which nation was Congress working for when it passed this or that so-called law?” Or, few ask, “Does this particular law apply to the Continental citizenry of the Republic, or does this particular law apply only to residents of the District of Columbia and other named enclaves, or territories, of the Democracy called the Federal United States?”

Since these questions are seldom asked by the uninformed citizenry of the Republic, it was an open invitation for “cunning” political leadership to seek more power and authority over the entire citizenry of the Republic through the medium of “legalese.” Congress deliberately failed in its duty to provide a medium of exchange for the citizenry of the Republic, in harmony with its Constitutional mandate. Instead, it created an abundance of commercial credit money for the Legislative Democracy, where it was not bound by Constitutional limitations. Then, after having created an emergency situation, and a tremendous depression in the Republic, Congress used its emergency authority to remove the remaining substance (gold and silver) from the medium of exchange belonging to the Republic, and made the negotiable instrument paper of the Legislative Democracy (Federal United States) a legal tender for Continental United States citizenry to use in the discharge of debts.

At the same time, Congress granted the entire citizenry of the two nations the “benefit” of limited liability in the discharge of all debts by telling the citizenry that the gold and silver coins of the Republic were out of date and cumbersome. The citizens were told that gold and silver (substance) was no longer needed to pay their debts, that
they were now “privileged” to discharge debt with this more “convenient” currency, issued by the Federal United States. Consequently, everyone was forced to “go modern,” and to turn in their gold as a patriotic gesture. The entire news media complex went along with the scam and declared it to be a forward step for our democracy, no longer referring to America as a Republic.

From that time on, it was a falling light for the Republic of 1776, and a rising light for Franklin Roosevelt's New Deal Democracy, which overcame the depression, which was caused by a created shortage of real money. There was created an abundance of debt paper money, so-called, in the form of interest-bearing negotiable instrument paper called Federal Reserve Notes, and other forms of paperwork credit instruments.

Since all contracts since Roosevelt's time have the colorable consideration of Federal Reserve Notes, instead of a genuine consideration of silver and gold coin, all contracts are colorable contracts, and not genuine contracts. [According to Black's Law Dictionary (1990), colorable means "That which is in appearance only, and not in reality, what it purports to be, hence counterfeit, feigned, having the appearance of truth."]

Consequently, a new colorable jurisdiction, called a statutory jurisdiction, had to be created to enforce the contracts. Soon the term colorable contract was changed to the term commercial agreement to fit circumstances of the new statutory jurisdiction, which is legislative, rather than judicial, in nature. This jurisdiction enforces commercial agreements upon implied CONSENT, rather than full knowledge, as it is with the enforcement of contracts under the Common Law.

All of our courts today sit as legislative Tribunals, and the so- called “statutes” of legislative bodies being enforced in these Legislative Tribunals are not “statutes” passed by the legislative branch of our three-branch Republic, but as “commercial obligations” to the Federal United States for anyone in the Federal United States or in the Continental United States who has used the equitable currency of the Federal United States and who has accepted the “benefit,” or “privilege,” of discharging his debts with the limited liability “benefit” offered to him by the Federal United States – EXCEPT – those who availed themselves of the remedy within this commercial system of law, which remedy is today found in Book 1 of the Uniform Commercial Code at Section 207.

When used in conjunction with one's signature, a stamp stating “Without Prejudice U.C.C. 1-207? is sufficient to indicate to the magistrate of any of our present Legislative Tribunals (called “courts”) that the signer of the document has reserved his Common Law right. He is not to be bound to the statute, or commercial obligation, of any commercial agreement that he did not enter knowingly, voluntarily, and intentionally, as would be the case in any Common Law contract.

Furthermore, pursuant to U.C.C. 1-103, the statute, being enforced as a commercial obligation of a commercial agreement, must now be construed in harmony with the old Common Law of America, where the tribunal/court must rule that the statute does not apply to the individual who is wise enough and informed enough to exercise the remedy provided in this new system of law. He retains his former status in the Republic and fully enjoys his unalienable rights, guaranteed to him by the Constitution of the Republic, while those about him “curse the darkness” of Commercial Law government, lacking the truth needed to free themselves from a slave status under the Federal United States, even while inhabiting territory foreign to its territorial venue.


U.C.C. 1-207; Sufficiency of reservation.

Any expression indicating any intention to preserve rights is sufficient, such as “without prejudice,” “under protest,” “under reservation,” or “with reservation of all our rights.”

The Code states an “explicit” reservation must be made. “Explicit” undoubtedly is used in place of “express” to
indicate that the reservation must not only be “express” but it must also be “clear” that such a reservation was intended.

The term “explicit” as used in U.C.C. 1-207 means “that which is so clearly stated or distinctively set forth that there is no doubt as to its meaning.” … U.C.C. 1-207:7  Effect of reservation of rights.

The making of a valid reservation of rights preserves whatever rights the person then possesses and prevents the loss of such right by application of concepts of waiver or estoppel ….

U.C.C. 1-207:9 Failure to make reservation.

When a waivable right or claim is involved, the failure to make a reservation thereof causes a loss of the right and bars its assertion at a later date

U.C.C. 1-103:6 Common law.

The Code is “Complementary” to the common law which remains in force except where displaced by the Code ….

A statute should be construed in harmony with the common law unless there is a clear legislative intent to abrogate the common law. … “The Code cannot be read to preclude a common law action.”


Your Honor, my use of “Without Prejudice UCC 1-207? above my signature on this document indicates that I have exercised the “Remedy” provided for me in the Uniform Commercial Code in Book 1 at Section 308, whereby I may reserve my Common Law right not to be compelled to perform under any contract, or agreement, that I have not entered into knowingly, voluntarily, and intentionally. And, that reservation serves notice upon all administrative agencies of government — national, state and local — that I do not, and will not, accept the liability associated with the “compelled” benefit of any unrevealed commercial agreement.

Editorial: Out of sight

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Published: Wednesday, July 21, 2010 at 6:01 a.m.
Last Modified: Tuesday, July 20, 2010 at 1:32 p.m.

At first blush, the EPA's newly announced plan for "cleaning-up" Gainesville's only Superfund hazardous waste sight seems like a classic example of "out of sight, out of mind."

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Instead of digging up the contaminated soil at the old Cabot-Koppers site and hauling it away, the EPA proposes that the soil be permanently contained in a roughly 32-acre concrete structure extending 65 feet into the ground and topped by an impermeable roof.

The EPA wants to turn Gainesville's only Superfund hazardous waste site into a permanent hazardous waste storage facility.

The chief virtue of this plan seems to be that it will save the responsible company, Beazer East, millions of dollars. The chief drawback is, well, Gainesville is stuck with tons of contaminated soil forever.

"They're leaving behind in Gainesville a long-term maintenance issue," Chris Bird, the county's environmental protection chief, told The Sun.

Frankly, we're not surprised. For more than a quarter of a century, the EPA's attitude toward the Koppers site has seemed, at best, to be one of benign neglect. After all these years, Gainesville residents deserve better from the nation's environmental "watchdog."

That's the message city and county officials, and residents and taxpayers, need to send loud and clear when the EPA holds its public hearing on Aug. 5 at 6 p.m. at Stephen Foster Elementary.

"For the community, we'd like to see them haul this stuff out of town," Bird said.

Out of sight, out of mind isn't good enough.


EPA Study: Rivers Shouldn't Smell Like Shit

July 14, 2010 | ISSUE 46•28

WASHINGTON—A study released Monday by the Environmental Protection Agency concluded that rivers should never smell like shit, noting that when naturally occurring waterways do reek of fecal matter there is "more than likely something wrong with them." "Starting from the base definition that a river is a free-flowing body of fresh water, we concluded that a shit-smelling river basically runs contradictory to that," EPA administrator Lisa P. Jackson said. "It doesn't matter if a river stinks of human shit, animal shit, or sewage shit, 99.9 percent of the time a river should not make individuals cover their nose and mouth because of an overwhelming shit smell." The study also concluded that rivers probably shouldn't have abandoned tires in them.

Hazard mitigation plan being formulated

Churchill County and the city of Fallon have launched a planning effort to prepare a Multi-Jurisdiction Hazard Mitigation Plan, and officials need public input.

Shortly, a questionnaire will be distributed to the public asking for input on local disaster mitigation and recovery needs.

The resulting plan will assess and prioritize the risks posed by natural and manmade hazards and identify ways to reduce those risks. This plan is required by the Federal Disaster Mitigation Act of 2000 and is a prerequisite to acquiring federal funding for mitigation or recovery from disasters.

In recent years a swarm of earthquakes rattled the western portion of the state near Churchill County, the recent levee breach occurred in Fernley and every year major wild land fires rage near Reno and throughout the state.

These emergency events demonstrate that Churchill County can experience disasters. The risks from such hazards will continue to increase as the county's population continues to grow making a mitigation plan necessary and important.

The county and city plan on submitting a draft plan to local governing boards in the spring of 2011 for their approval. The final plan will be sent to Federal Emergency Management Agency for final approval.

For additional information, to volunteer or to make comments, please contact Churchill County Emergency Manager Ron Juliff at 423-4188 or at ccem@phonewave.net .

NMA sues to stop Obama Administration's ‘mountaintop mining' war

The Obama Administration's so-called ‘mountaintop mining' war is using the U.S. Clean Water Act as an illegal weapon to stop the expansion of U.S. coal mining, the NMA contends.

Author: Dorothy Kosich
Posted:  Wednesday , 21 Jul 2010

RENO, NV  - 

The National Mining Association Tuesday fired back at the Obama Administration's Appalachian coal war, filing litigation accusing federal agencies of violating their own public notification and rulemaking procedures to stop the issuance of Clean Water Permits for coal mining in many U.S. coal mining regions.

More than a year ago, the Obama Administration announced an Interagency Action Plan that used the auspices of the Clean Water Act to immediately bring to a halt permit reviews of mountaintop mining based on environmental concerns stemming from the impacts of mining on streams and watersheds.

That ruling impacted more than 200 coal mining permit and permit expansion applications that were pending when the "temporary" moratorium was declared.

The NMA lawsuit, filed in the Federal District Court for the District of Columbia, argues the EPA and the U.S. Army Corps of Engineers "have circumvented clear requirements for public notice and comment of a host of federal statutes and ignored calls for peer-reviewed science as part of a deliberate policy to substitute agency guidance for formal rulemaking."

The NMA lawsuit says the EPA and the Corps violated the Administrative Procedures Act, the Clean Water Act, the National Environmental Policy Act and the Surface Mining Control and Reclamation Act by "disregarding explicit requirements for public comment and formal rulemaking procedures. Moreover, EPA has usurped authorities clearly granted to the state and other federal agencies and has used technical benchmarks for assessing water quality that are both arbitrary and capricious.'

Ironically, the actions of the Obama Administration to impose a de facto moratorium on new or expanded coal mining in this country have forced the NMA to utilize a number of similar complaints made by environmental NGOs when they sue federal agencies seeking to overturn mining permits.

In a statement, NMA CEO Hal Quinn accused the Corps of allowing EPA "to impose unilateral control over coal mine permits throughout Appalachia, imposing a moratorium on jobs, energy production and the economic future of communities in the region."

"Detailed agency guidance is not a valid substitute for lawful rulemaking based on public notice and comment," he noted. "The agencies' continued abuse of the law to impose arbitrary standards on mining operations, state agencies and other federal regulatory bodies threatens the entire region with further economic misery and stagnant employment."

Last December mining attorney Robert McCluskey warned that such a war on Appalachia coal could eventually alter the definitions and regulation of mine waste for both coal and hardrock mining.

State and federal governments are engaged in a significant fight to determine who makes and implements Clean Water Section 404 standards regulating Appalachian coal operations and the waste material they deposit or discharge into U.S. waters.

Historically, the Corps regulated coal mining waste discharge under Section 404.

McCluskey has suggested that the term "mountaintop mining" no longer applies to mining mountaintop for coal. Rather, any mine that requires valley fill in Central Appalachia is now considered to be mountaintop mining.

In a presentation to the Northwest Mining Association in December, McCluskey noted that every one of those valleys in Appalachia has water in it, which then puts that valley and its watershed under the jurisdiction of the CWA 404 regulations.

McCluskey and a number of miners argue that mining waste treatment systems or ponds should not be considered by federal agencies as waters of the United States.

The NMA lawsuit filed Tuesday names EPA Administrator Lisa Jackson, the EPA, Secretary of the Army John McHugh, Lt. Gen. Robert Van Antwerp, Commanding General of the Army Corps of Engineers, and the U.S. Army Corps of Engineers as defendants.

The civil suit "challenges a series of EPA and Corps actions that have unlawfully obstructed Clean Water Act permitting processes for coal mining."

The three-agency MOU regarding mountaintop mining "substantially and illegally amend the statutory and regulatory permitting processes for coal mining that form the backbone of coal companies' expectation in planning to extract coal for our nation's power supply, particularly for those companies that require valley fills for their coal mining operations," said the NMA.

"By dramatically altering timelines and imposing new requirements in complete disregard of existing federal law and procedure, EPA and the Corps have launched a moving target in coal mining permitting that is substantially and irreparably harming NMA's coal mining members," the lawsuit claimed.

The NMA accuses the EPA of radically altering the delegation of regulatory authority over coal mining to rob the Corps and the Office of Surface Mining Reclamation and Enforcement, as well as states, of their respective statutory roles as permitting authorities and the regulators of the environmental impacts of coal mining.

"Taken together, these actions also amount to a de facto moratorium on permitting for coal mining, particularly in Central Appalachia," the mining association argues.

The NMA asked the federal court for an order vacating the Environmental Concerns Process and the Detailed Guidance from the three agencies regarding permitting of Appalachian coal mining.

The trade association also asks the Corps to reinstate and adhere to the Section 404 permit review process already codified into law "and order EPA to permit, and not exceed, the role Congress crafted for it in the Section 404 permitting process."

The Grinches Who Stole Summer

Posted on Jul 21, 2010

By Robert Scheer

It was a branding moment. With their lock-step vote against extending unemployment benefits, the Republicans are indelibly marked as not only heartless but also frivolous in their much-professed concern over the soaring national debt. Thanks to the defection of the two relatively enlightened Republican senators from Maine and the quick replacement of the late Democratic Sen. Robert Byrd, unemployment checks that had been stalled for millions of American families since early June will soon resume. But for Republicans, it has been a defining issue that will haunt the party. 

There is plenty to criticize in the Democrats' handling of this economic crisis, mostly cribbed from the GOP playbook, but once again the Republicans seem determined to prove that when it comes to social compassion, they are the worst. How can they defend having supported Republican President George W. Bush giving $180 billion to AIG but draw the line when a Democratic president seeks to spend one-fifth of that amount helping millions of victims of the crisis that AIG was so instrumental in causing? 

While holding unemployment checks hostage to demands for compensating budget cuts, Republican leaders claimed to support the extension of benefits. They rejected the argument of some on the harder ideological right that the average payment of $309 per week is the lucrative prize that keeps the unemployed from going back to work. They also conceded the obvious, that money given to the unemployed will stimulate the economy at a high multiplier effect because it is money that will be spent rather than hoarded. 

Clearly the unemployed are far more likely to spend the money they receive than would the recipients of tax cuts for the rich that the GOP leadership so blithely recommends. And as House Majority Leader Steny H. Hoyer, D-Md., was able to crow, while the Republicans demand a cut in spending to cover the costs of unemployment insurance, they make no such demand for their tax-cut proposal: “Our Republican colleagues say, `No, you have got to pay for that, but you don't have to pay for a tax cut for the wealthiest people in America' which is about 20 times as much as the unemployment insurance.”

Their excuse for separating 2.5 million families from the checks needed to keep food on the table and cover the rent is that the GOP leadership wanted to send a message, in the words of the third-ranking Republican, Sen. Lamar Alexander of Tennessee, that the “federal debt has grown to an alarming level, where it is threatening the future of our children and grandchildren.” 


ed against the serious drivers of the debt, including a $700 billion military budget and a financial bailout that has cost trillions in taxpayer debt without a murmur of opposition from the GOP leadership, stonewalling on this particular issue is absurd. It would have shocked even Richard Nixon, who as president advocated a guaranteed minimum income for all Americans, and not just those who have been thrown out of work through no fault of their own.

Few, even in the GOP leadership, would deny that the 8 million who lost their jobs due to the banking debacle were the innocent victims of reckless banking policies. “There is no debate in the Senate about whether we should pass a bill—everyone agrees that we should,” stated Senate Majority Leader Mitch McConnell, R-Ky. “What we do not support—and we make no apologies for—is borrowing tens of billions of dollars to pass this bill at a time when the national debt is spinning completely out of control.”

Why no apologies for drawing the line at the expense of the victims but not when it came to bailing out the victimizers? Clearly the unemployed are the victims of forces far beyond their own control, beginning with a housing market wrecked by the Ponzi scheme of securitized mortgage debt made legal through financial deregulation that virtually all Republicans, and too many Democrats, long supported. Why is it acceptable for our government through the Federal Reserve to have bought up $1.2 trillion of those toxic debt obligations in a handout to the bankers who devised and sold them but balk at committing a tiny fraction of that spending to helping those thrown out of work?

That is the nub of it, and once again folks with a social conscience are left with a failed two-party system in which the Democrats, with much responsibility for this banking mess, must at worst be judged the lesser evil.

Bayer Schering Pharma in research pact with China's largest military hospital

20 July 2010

Bayer Schering Pharma AG, Germany, has reached a research collaboration agreement with the largest military hospital in China, The People's Liberation Army General Hospital 301, located in Beijing, to set up women's healthcare facilities.

Under the terms of the agreement, 301 Hospital will receive research funding and its scientists will be able to work at Bayer Schering Pharma's research facilities in Berlin, Germany. Bayer Schering Pharma scientists from the recently established Bayer Schering Pharma Global Drug Discovery's China innovation centre in Beijing will participate in and coordinate the research projects.

The joint research programs will initially be focused on, but not limited to, gynecological diseases. Their first project will focus on the establishment and analysis of disease models and disease understanding.

''Working together with the experts from The People's Liberation Army General Hospital will help us to bring new therapies faster to patients suffering from gynecological diseases, like endometriosis and uterine fibroids," said Prof. Andreas Busch, member of the board of management at Bayer Schering Pharma and head of global drug discovery.

301 Hospital is one of the biggest general hospitals in China and has a reputation for gynecology and obstetrics research and treatment of patients suffering from related diseases.

Prof. Guoquan Ren, head of medical management division, said,''Endometriosis and uterine fibroids are severe diseases that significantly compromise the health and quality of life of women. Joining forces will allow us to take advantage of each other's strengths which will for sure drive the research and innovation in these fields.''

Founded in 1953, 301 Hospital, with a complete range of clinical disciplines, provides one of the most comprehensive hospital facilities among military hospitals throughout China. It employs over 3,600 professionals across 12 medical specialty centres, 14 medical research centres and eight major laboratories, engaging in various key medical disciplines such as otolaryngology, orthopedics, gynecology, and gerontology, among others.



The Judiciary Continued, and the Distribution of the Judicial Authority
From McLEAN's Edition, New York.
Alexander Hamilton

To the People of the State of New York:

LET US now return to the partition of the judiciary authority between different courts, and their relations to each other, "The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." 1

That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons for it have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.

But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.

These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.

It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts, 2 and the relations which will subsist between these and the former.

The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or AUTHORUZE, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits.

But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much "to constitute tribunals," as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, an UNRESTRAINED COURSE to appeals, as a source of public and private inconvenience.

I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution.

These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only "in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.

Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, "with such EXCEPTIONS and under such REGULATIONS as the Congress shall make."

The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word "appellate," therefore, will not be understood in the same sense in New England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.

But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it. 3 This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, "appellate jurisdiction, both as to law and fact," do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.

The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States ALL CAUSES are tried in this mode 4 ; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.

This view of the matter, at any rate, puts it out of all doubt that the supposed ABOLITION of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial.

The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any EXCEPTIONS and REGULATIONS which may be thought advisable; that this appellate jurisdiction does, in no case, ABOLISH the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.


1 . Article 3, sec. I.
2 . This power has been absurdly represented as intended to abolish all the county courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute "tribunals INFERIOR TO THE SUPREME COURT"; and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that county courts were in contemplation.
3 . This word is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.
4 . I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper.


Originating out of the Latin word "ius" and "dicere" meaning "law" and "to speak" respectively, jurisdiction is the area of operation of a legal entity. Such jurisdiction could be legal, notional, abstract, or concrete with clearly defined geographical boundaries. In essence jurisdiction refers to the capabilities, powers, and responsibilities to administer justice within the particular sphere of operation entrusted.

Substances of jurisdiction are derived from public international law, constitutional law, and above all; conflict of laws. One of the common features of modern governance is delimiting the authoritative domains of executive, legislative, and judiciary; the three pillars of democratic set up.

Ordinarily however the term jurisdiction is most widely applied in the judicial spheres. It denotes both authoritative and geographical extent of power and control of the respective court. Three basic principles of jurisdiction guiding the judiciary are persona; territorial; and subject matters.

Personal jurisdiction refers to the authority and control over persons regardless of their respective locations. Territorial jurisdiction refers to the area or the space within which the orders passed are binding and conclusive. Subject matter jurisdiction refers to such subjects that are involved in a judicial proceeding. For instance; subject matters within the federal list shall be dealt with by the Federal Court or Supreme Court. On the other hand those included in state lists shall be adjudicated by the State Courts.

In the similar veins the jurisdiction of the court is classified as exclusive and concurrent. Exclusive jurisdiction refers to unabated and unshared control over some territory, subject or personnel. Concurrent or shared jurisdiction refers to the fact one or more courts have equal powers on the subject, territory, or personnel concerned. In case of the courts having concurrent jurisdiction, parties may engage in forum shopping. They tend to bring the case to the particular court which they feel would adjudicate in their favor.

Generally speaking; jurisdiction can be territorial, provincial, national, or international. For instance; United Nations Organization has the International Court that deals with matters relating to International jurisdiction such as the maritime boundaries or the continental shelf. In addition the international forums also deal with specific issues that relate to two or more countries like the treaties, customs, and conventions.

Yet there is a major difference between other forms of jurisdiction such as territorial, provincial or national with the international jurisdiction. In case of international jurisdiction obedience by contestant parties is purely voluntary while in all other cases it is mandatory.

Using law.jrank.org the popular site search engine could turn out to be the one point solution for the people that are trying to find out more about jurisdiction . Whether it is territorial, national, or international jurisdiction, the search engine can lead the viewers to a site that offers authenticated updated information on such legal issues .


A mountain gets its green back

Nature center's new headquarters fulfills vision of restoring Superfund site.

Toxic waste dump receives new EPA order to clean up contaminated soil

EPA seeking approval to clean up property

AIG agrees to pay $725 million in class-action settlement

ReVolt: Is it Time to “Zinc” About a Different Kind of Battery?


When Scientists Sin

Fraud, deception and lies in research reveal how science is (mostly) self-correcting

From the July 2010 Scientific American Magazine | By Michael Shermer

In his 1974 commencement speech at the California Institute of Technology, Nobel laureate physicist Richard P. Feynman articulated the foundation of scientific integrity: “The first principle is that you must not fool yourself—and you are the easiest person to fool.... After you've not fooled yourself, it's easy not to fool other scientists. You just have to be honest in a conventional way after that.”

Unfortunately, says Feynman's Caltech colleague David Goodstein in his new book On Fact and Fraud: Cautionary Tales from the Front Lines of Science (Princeton University Press, 2010), some scientists do try to fool their colleagues, and believing that everyone is conventionally honest may make a person more likely to be duped by deliberate fraud. Nature may be subtle, but she does not intentionally lie. People do. Why some scientists lie is what Goodstein wants to understand. He begins by debunking myths about science such as: “A scientist should never be motivated to do science for personal gain, advancement or other rewards.” “Scientists should always be objective and impartial when gathering data.” “Scientists must never believe dogmatically in an idea or use rhetorical exaggeration in promoting it.” “Scientists should never permit their judgments to be affected by authority.” These and many other maxims just do not reflect how science works in practice.

Knowing that scientists are highly motivated by status and rewards, that they are no more objective than professionals in other fields, that they can dogmatically defend an idea no less vehemently than ideologues and that they can fall sway to the pull of authority allows us to understand that, in Goodstein's assessment, “injecting falsehoods into the body of science is rarely, if ever, the purpose of those who perpetrate fraud. They almost always believe that they are injecting a truth into the scientific record.” Goodstein should know because his job as the vice provost of Caltech was to investigate allegations of scientific misconduct. From his investigations Goodstein found three risk factors present in nearly all cases of scientific fraud. The perpetrators, he writes, “1. Were under career pressure; 2. Knew, or thought they knew, what the answer to the problem they were considering would turn out to be if they went to all the trouble of doing the work properly; and 3. Were working in a field where individual experiments are not expected to be precisely reproducible.”

To detect fraud, we must first define it, and Goodstein does: “Research misconduct is defined as fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” Next there must “be significant departure from accepted practices of the scientific community.” Then, the misconduct must be “committed intentionally, or knowingly, or in reckless disregard of accepted practices,” and finally, as in any court of law, the fraud charge must be proved by a preponderance of evidence.

Clear-cut cases of fraud include the twin studies of British psychologist Cyril L. Burt (who faked so many twins that he had to fabricate additional twin researchers), the Sloan-Kettering Institute cancer researcher William Summerlin's experiments on inducing healthy black skin grafts on white mice (which he was caught enhancing with a black felt-tipped pen), physicist Victor Ninov's alleged discovery of element 118 (predicted by others so he faked data for its existence), and of course the famous Piltdown Man hoax (which turned out to be the jaw of an orangutan dyed to look old). Other cases are not so clear. Martin Fleischmann and Stanley Pons's “discovery” of cold fusion, Goodstein concludes, was most likely a case of scientists who “convince themselves that they are in the possession of knowledge that does not in fact exist.” This self-deception is distinctly different from deliberate deception.

So some scientists sin, it's true. Given the fiercely competitive nature of research funding and the hardscrabble intensity of scientific status seeking, it is surprising that fraud isn't more rampant. The reason that it is so rare (compared with, say, corruption in politics) is that science is designed to detect deception (of one's self and others) through colleague collaboration, graduate student mentoring, peer review, experimental corroboration and results replication. The general environment of openness and honesty, though mythic in its idealized form, nonetheless exists and in the long run weeds out the cheats and exposes frauds and hoaxes, as history has demonstrated.


Long-awaited Program to Help Homeless Vets Could Soon Get Funding

By Jonathan Friedman Lookout Staff

January 13, 2010 -- Council member Bobby Shriver several years ago proposed that three buildings on the Veterans Administration grounds in Westwood should be used to house and treat some of Los Angeles County's 17,000 homeless veterans. The money to fund that program could soon be available.

A $133.9 billion federal spending package for military construction and veterans affairs signed into law last month includes $50 million for renovating empty buildings to providing housing and services for homeless veterans.

Los Angeles County Supervisor Zev Yaroslavsky said his office is working with Congressman Henry Waxman and U.S. Sen. Dianne Feinstein to get at least some of that money for the Westwood buildings. Yaroslavsky might travel to Washington D.C. later this month to lobby for the cause.

“I think we would have as strong a proposal as there is in the country because so much work has been done on it,” Yaroslavsky said.

The plan is to provide therapeutic care for the veterans. Shriver said he heard “there's a mental health model being discussed by the VA medical leadership.

"It sounds like a very exciting way of addressing homeless veteran issues in Los Angeles,” Shriver said.

The goal, Yaroslavsky said, is “to provide the needs for these vets, who once they get the kind of treatment they need can function conventionally in our society, can get a housing unit, can get a job, do the kinds of things that enable them to function independently in our society.”

The supervisor said Los Angeles County could get enough money to renovate at least one of the buildings, which he estimates would cost as much as $10 million to $15 million. He said the VA has the resources for the program and would not need further funding after the building renovation.

If the program is successful with one building, Yaroslavsky said, this could pave the way to get money for the other two buildings.

“I think if we have a successful project here, it will give the VA something to hang their hat on and ask for Congress to give additional funding,” Yaroslavsky said.

Yaroslavsky said the reason it is important to provide the program in these buildings is because they are on the VA campus where there are other services available, and everything could be provided “in a concentrated fashion in one facility,” creating onvenience and saving money in the process.

Previous attempts to gain funding for the building renovations have failed. This includes seeking money from the private sector. Yaroslavsky called the new possibility “a breakthrough.” Shriver also had high praises.

“I'm thrilled that the federal government has finally after 25 years put up enough money to rehabilitate these buildings for homeless veterans,” Shriver said. “I look forward to expeditious, ASAP work in getting the buildings under rehabilitation for the therapeutic model decided by the VA doctors.”

indecency rule struck down by appeals court

Wally Herger, Dianne Feinstein team up to pass new legislation

Staff Reports Posted: 07/15/2010 12:07:20 AM PDT

Rep. Wally Herger, R-Chico, and Sen. Dianne Feinstein have collaborated on legislation to eliminate conflicts in use of the Chappie-Shasta Off-Highway Vehicle Area.

Their legislation passed by unanimous consent in the House and the Senate and is expected to be signed into law by President Obama. The legislation allows for the area to be under the jurisdiction of the Bureau of Land Management.

Now, both BLM and the U.S. Forest Service manage land within the area, leading to conflicts and difficulties for users of the area.

The area, located 10 miles northwest of Redding, offers 200 miles of roads and trails over 52,000 acres for off-road enthusiasts.

Herger and Feinstein issued comments on the passage of their legislation.

Herger was quoted as saying it "represents a win-win for taxpayers and their enjoyment of our federal lands. I thank Sen. Feinstein for her active support and assistance in accomplishing this goal."

"I am pleased to have worked with Rep. Herger to enact this sensible legislation," Feinstein was quoted as saying in a press release.

"The bill would also provide for the management of some wilderness areas by the Forest Service in Northern California."




We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP?

We join the Eighth and Tenth Circuits in holding that the answer is “yes.”

in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringement of rights secured by the fundamental law." Booth v. Illinois , 184 U.S. 425 , 429 .

"There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice" 
- U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982)

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]

Federal sovereign immunity

"Though this was the intent of the Congress [to waive sovereign immunity] in passing the 1972 Federal Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies, has misconstrued the original intent." S. Rep. No. 370, 95th Cong., 1st Sess. 67 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4392. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, [section] 116, 91 Stat. 711 (1977); see also Clean Water Act Amendments of 1977, Pub. L. 217, [subsection] 60, 61(a), 91 Stat. 1597, 1598 (1977).

The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.
James Madison

Parents wonder why the streams are bitter, when they themselves have poisoned the fountain.
John Locke

From such a gentle thing, from such a fountain of all delight, my every pain is born.

Look within. Within is the fountain of good, and it will ever bubble up, if thou wilt ever dig.
Marcus Aurelius

Words that everyone once used are now obsolete, and so are the men whose names were once on everyone's lips: Camillus, Caeso, Volesus, Dentatus, and to a lesser degree Scipio and Cato, and yes, even Augustus, Hadrian, and Antoninus are less spoken of now than they were in their own days. For all things fade away, become the stuff of legend, and are soon buried in oblivion. Mind you, this is true only for those who blazed once like bright stars in the firmament, but for the rest, as soon as a few clods of earth cover their corpses, they are 'out of sight, out of mind.' In the end, what would you gain from everlasting remembrance? Absolutely nothing. So what is left worth living for? This alone: justice in thought, goodness in action, speech that cannot deceive, and a disposition glad of whatever comes, welcoming it as necessary, as familiar, as flowing from the same source and fountain as yourself. (IV. 33, trans. Scot and David Hicks)

errare humanum est, sed perseverare diabolicum 'to err is human, but to persist is diabolical.'

extra territorium jus dicenti impune non paretur 'judgment exceeding territorial jurisdiction with impunity disobeyed'



Coal lobbying group sues US EPA, Army Corp over mining permits

Galax, Virginia (Platts)--20Jul2010/557 pm EDT/2157 GMT

The National Mining Association filed suit Tuesday against the US Environmental Protection Agency and the Army Corps of Engineers, claiming the agencies are "unlawfully obstructing permitting of coal mining operations" in Central Appalachia. The suit, filed with the US District Court for the District of Columbia, charges the agencies are "jeopardizing thousands of jobs and a vital supply of fuel to meet the nation's electric power needs." "This civil action challenges a series of EPA and Corps actions that have unlawfully obstructed Clean Water Act [Section 404] permitting processes for coal mining," the industry trade group said. The suit takes aim a June 2009 accord between EPA and the Corps in which the agencies agreed to an "enhanced" procedure to review 79 permit applications -- many tied to valley fills and large surface mining operations -- over concerns about potential harm to the environment, especially streams in the region. NMA's lawsuit claims "EPA and the Corps have circumvented clear requirements for public notice and comment of a host of federal statutes and ignored calls for peer-reviewed science as part of a deliberate policy to substitute agency 'guidance' for formal rulemaking." Citing a May 21 report by the Senate Environment and Public Works Committee Republican staff, NMA said "nearly 18,000 new and existing jobs and more than 80 small businesses are jeopardized by the unlawful policy EPA and the Corps have applied to the 190 permits still awaiting action in mid-May." Of the 79 permits that were held up by the June agreement, NMA said, 36 have been withdrawn, five permits have been issued and two are under review. The affected permits cover mining operations in Ohio, Pennsylvania, Tennessee, Virginia, Kentucky and West Virginia. "NMA members' efforts to navigate this unlawful process and obtain reasonable and predictable permit terms have been unsuccessful, leaving us no choice but to challenge the EPA and Corps policy in court," NMA President and CEO Hal Quinn said in a statement. "Detailed agency guidance is not a valid substitute for lawful rulemaking based on public notice and comment. The agencies' continued abuse of the law to impose arbitrary standards on mining operations, state agencies and other federal regulatory bodies threatens the entire region with further economic misery and stagnant employment." EPA officials did not immediately respond to requests for comment. Corps spokesman Chuck Minsker said that the agency doesn't comment on litigation and referred all inquiries to the Department of Justice. DOJ spokesman Charles Miller said his agency is still reviewing the suit and had no comment. In the prayer for relief, NMA is requesting, among other remedies, that the court vacate the enhanced coordination process and order the Corps to process all pending permit applications. --Steve Hooks, steve_hooks@platts.com

Clarkson professor to work with EPA on review of air quality standard
Tuesday, July 20, 2010 - 5:10 pm

POTSDAM -- Philip K. Hopke, Clarkson University professor, director of Clarkson's Institute for a Sustainable Environment (ISE), and director of Clarkson's Center for Air Resources Engineering & Science (CARES), will be working on the U.S. Environmental Protection Agency's (EPA) review of the National Ambient Air Quality Standard for lead.

Over the next three years, the panel will review and provide independent advice to EPA Administrator Lisa P. Jackson on EPA's technical and policy assessments that support the agency's review.

Hopke was named inaugural director of the ISE last month, when it was reorganized from Clarkson's Center for the Environment, which he had directed since December. Hopke has served for nearly a decade as director of CARES, which fosters research in air sampling and analysis, receptor modeling, atmospheric deposition, and the application of computational fluid dynamics to air pollution problems.

In December, Hopke was appointed to the Climate and Atmospheric Sciences Committee of the State of New Jersey Department of Environmental Protection's (NJDEP) Science Advisory Board and serves on the Residential, Commercial and Industrial Technical Working Group of the NYS Climate Action Plan development team.

Hopke has served at the U.S. Department of State, where he served as a Jefferson Science Fellow. He has also served on many other EPA and NRC committees.



Tucker Said to Tell AIG Staff He'll Triple AIA Value

July 19, 2010, 6:24 PM EDT

(Updates with Benmosche in Hong Kong in second paragraph.)

July 20 (Bloomberg) -- Mark Tucker, who was named head of American International Group Inc.'s main Asia division, told staff that he plans to triple the unit's value to $100 billion, according to a person with knowledge of his remarks.

Tucker, 52, said during a town-hall style meeting yesterday in Hong Kong that being chief executive officer of AIA Group Ltd. will be his last job, according to the person, who declined to be identified because the meeting was private. AIG CEO Robert Benmosche introduced Tucker at the gathering, the person said.

Tucker has to quell employee anxiety and retain workers after replacing Mark Wilson, who held management positions at AIA since 2006 and was CEO of the division for more than a year. AIG, which is divesting subsidiaries to repay loans in its $182.3 billion U.S. bailout, plans to hold an initial public offering of AIA after a $35.5 billion deal to sell the unit to Prudential Plc fell apart in May.

“There's a lot of uncertainty at the organization after Wilson was forced out,” said Clark Troy, an analyst for research firm Aite Group. Tucker is “trying to calm them down.”

Tucker declined to be interviewed, said Mark Herr, a spokesman for New York-based AIG. Tucker, named head of AIA yesterday, is former CEO of Prudential and had 15 years of experience building the London-based insurer's Asia operations, Benmosche said yesterday in an employee memo. Benmosche had clashed with Wilson over how to divest the unit.

‘Ready to Go'

Benmosche, who started at AIG in August, said in the memo that the management change at AIA was needed to prepare for the division's IPO. Benmosche had demanded more control over AIA last month at a board meeting, pushing for Wilson's dismissal, said a person with knowledge of the event. Harvey Golub stepped down last week as AIG's chairman after the board rejected a reduced bid from Prudential that Benmosche had supported.

The unit's public offering would be “ready to go in the coming months when market conditions are optimal,” Benmosche said in the letter, adding that he couldn't speculate about the precise timing. Wilson will assist Tucker through the end of this year, AIG said.

AIA has more than 23 million customers and offices in at least 15 countries including China, India and Australia. The unit had about $1.44 billion in operating profit in 2009, down from $1.59 billion in 2008, Prudential said in a March filing.

Asian Expansion

AIA's value could have been boosted by 80 percent within three years of a takeover, Prudential CEO Tidjane Thiam told investors while trying to convince them to approve the deal. Shareholders balked at the $35.5 billion price, leading to the deal's collapse. Thiam is Tucker's successor at Prudential.

Tucker stepped down as CEO of Prudential in September after four years at the helm of the U.K.'s biggest insurer. During his tenure, Tucker pulled out of a separate bid to buy AIA, continued to expand sales in the company's Asian unit and raised the share price 35 percent.

After completing the firm's planned IPO, Tucker may bid for Prudential Asia Corp., the unit he ran from 1993 to 2003, according to Panmure Gordon & Co.'s Barrie Cornes.

Tucker's appointment “raises the possibility that Pru might be able to sell its Asian operation to AIA at some later date,” said Cornes, who has a “buy” rating on Prudential. “AIA may well be able to finance such a deal via its Hong Kong listing.” Edward Brewster, a spokesman for Prudential, didn't immediately return a phone call seeking comment.

Treasury Department

The U.S. Treasury Department, which helped fund AIG's bailout, was told by AIG's bankers that the company may eventually garner $35.5 billion by taking the unit public. The company may first sell a portion of its AIA holding in an offering in Hong Kong and then divest its remaining stake at a pace determined by market conditions.

Tucker approached regulators and potential investors in Asia about the possibility of selling AIA stakes of more than $5 billion to hasten its independence from AIG, the Financial Times reported.

--With assistance from Kevin Crowley in London and Bei Hu in Hong Kong. Editors: Dan Kraut, Dan Reichl

To contact the reporter on this story: Hugh Son in New York at hson1@bloomberg.net

To contact the editor responsible for this story: Dan Kraut at dkraut2@bloomberg.net


Wall Street "Justice": AIG Evidence Raises the Question, "Where Are the Indictments?"

A disturbing pattern seems to be forming in Washington: Evidence of financial wrongdoing leads to settlements with large banking institutions, but with no apparent move to indict the individuals responsible. AIG agreed to the largest settlements in history, yet despite seemingly compelling evidence the Justice Department decided not to prosecute anyone. Now Goldman Sachs has agreed to a settlement that amounts to little more than chump change compared to the bonuses it paid last year. People should be asking: Where are the indictments?

The SEC appeared to engaged in a little Wall Street-style overselling last week when its Director of Enforcement said that "half a billion dollars ($500 million) is the largest penalty ever assessed against a financial services firm in the history of the SEC." Actually, AIG paid the SEC considerably more - $800 billion - as part of a $1.6 billion total settlement. AIG also settled a class action suit in the State of Ohio last week for $725 million. Yet, despite what appears to be smoking-gun-like evidence, the Justice Department quietly let it be known there would be no indictments in that case. Now the DoJ has reportedly received a referral for a criminal investigation of Goldman from the SEC. How aggressively will that case be pursued?

We've written at length about the representations AIG made to its investors as it slowly learned the extent of its financial risk. This time we'll focus on one day's public statements by AIG, for December 5, 2007, and where the evidence pointed.

Securities fraud is committed when someone at a publicly-traded corporation lies to investors, or when they fail to disclose something which they know and which would give investors a different and more accurate understanding of the company's worth. The Financial Crisis Inquiry Commission investigated statements made in SEC documents and at an AIG Investor Day Conference webcast on December 5, compared them with information that came to light later, and found some startling evidence.

During the December 5 presentation Joe Cassano, the head of AIG Financial Products, said that the company had run a "model" set of calculations which showed estimated additional losses of $1.5 billion. Yet documents released by AIG in February of 2008,only two months later, showed that the same model projected additional losses that brought the total to $5.9 billion. That's four times greater than the figures that Cassano gave (and which the company provided in an SEC filing the same day.)

As we've discussed earlier (and Yves Smith has addressed at length), one of the main reasons Cassano and others escaped indictment appears to be because their auditor signed off on the numbers they used. Yet the auditor, PriceWaterhouseCoopers, stated on February 11 that information had been withheld from senior executives (and therefore presumably from them.) Their butt-covering statement reads as follows: "During, and in large part as a result of our audit, it was later determined that the $1.5 billion estimate used was net of structural benefits of $700 million and a negative basis adjustment of $3.6 billion which was, apparently, not known by ERM (Enterprise Risk Management) and senior management until early February 2008."

It sounds like PWC is taking credit for uncovering some concealed information. Who concealed it?

AIG's stock lost more than 11% of its value when the real numbers got out. That's a significant material loss to investors. The Securities Act of 1934 states that it's unlawful "to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading ."

Here are some of the things Cassano said on December 5, 2007: "... I want you to walk away with this as an estimate, and my best estimate ..." "We believe this is a 'money-good' portfolio." "Each and every one of our transactions ... passes through the same careful process (with) the approval of the AIG Head Office Enterprise Risk ... There is not one dollar of this business that has not gone through that double review check ... We see the ... approximately $1.5 billion as a mark someone might make us pay to take on these liabilities in this aberrant market ... these losses will come back and these are 'money-good' transactions that we have."

Despite these statements and the evidence uncovered by the FCIC, Cassano's lawyers announced in June they had been informed that no criminal charges would be filed. The Justice Department, it was reported, " declined comment ." Only a court of law can determine whether a crime has been committed, and we aren't suggesting otherwise. Cassano told the FCIC that senior AIG executives knew of the additional $4-billion-plus in potential losses immediately, and FCIC documents (including typed notes of a senior executive meeting on November 29, 2007) seem to back him up. Who knew what, when? Did any one person "omit to state material facts"? Did a number of them? We can't know without the kind of scrutiny that comes with an indictment.

What we do know is that on December 5, 2007 AIG filed an SEC document, and its executives made statements, which seriously understated the losses facing the company. There have been more than $2 billion in settlements since then, and those losses contributed to a worldwide economic collapse. Here's one possible explanation for the Justice Department's inaction: The Administration doesn't want Wall Street executives living under the shadow of possible future indictments. But that threat is exactly what's needed to prevent the abuses and misdeeds of the past from being repeated.

As for Goldman, it acknowledged in its settlement that its marketing materials "contained incomplete information" and that it was a "mistake" to say the investment portfolio it was selling "was 'selected by' ACA Management" (it was actually selected by a group known to be betting against its success.) In other words, Goldman admitted misleading its clients, as its PowerPoint presentation seemed to demonstrate. But what's to be gained by these large corporate settlements if there are no indictments against the individuals whose misdeeds led to those settlements? After all, the total Goldman settlement is only 5% of its 2009 employee bonuses, as the entertainingly-named GoldmanSachs666 points out. Will we see any individuals face the consequences of their actions, or will we only see Goldman-style settlements that leave bankers with an incentive to keep on cheating?

Here are some more questions: What's the status of the Goldman Sachs investigation? Are other criminal probes under way? Let's hope that the Department of Justice doesn't keep "declining to comment," or declining to act on its responsibility to protect the public from criminal behavior in high places. The state of Ohio took firm action and got results last week, as has the state of New York in the past. But the Justice Department must pave the way. It must follow the evidence, wherever it leads. The public should demand no less.

Richard (RJ) Eskow, a consultant and writer (and former insurance/finance executive), is a Senior Fellow with the Campaign for America's Future. This post was produced as part of the Curbing Wall Street project. Richard also blogs at A Night Light .

He can be reached at "rjeskow@ourfuture.org."

Website: Eskow and Associates

Superfund liability for storm water

In a first-of-its-kind decision, a Washington state federal court found the Washington State Department of Transportation liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as “Superfund”) for storm water runoff from highways.  ( United States v. Washington State Dept. of Transportation , W.D. Wash. No. C08-5722, 6/7/2010)

No other court has previously found anyone liable under Superfund for “arranging to dispose” of storm water runoff.  The court found that by designing the drainage system for the highways, the state Department of Transportation was liable for the release of hazardous substances contained in the storm water.  The pollutants were those one would commonly expect in highway runoff and included several metals (cadmium, lead, zinc, nickel) as well as petroleum hydrocarbons and phthalates.

The particular highways at issue drained to two waterways located within the Commencement Bay-Nearshore Tideflats Superfund site on the Puget Sound in Tacoma, Washington.  The result of the court's determination of Superfund liability now makes the Department of Transportation liable as a potentially responsible party for some or all of the $6.8 million in costs incurred by the government in cleaning up the Superfund site. 

The court did not rule on the state's argument that its storm water permit (a National Pollutant Discharge Elimination System permit) issued under the authority of the federal Clean Water Act should shield the state from Superfund liability.  A decision on that argument is expected in February 2011.

It remains to be seen what the potential fallout from this case may be.  The federal trial court's decision on the impact of the storm water permit and any appeal to the 9 th Circuit Court of Appeals (a circuit with jurisdiction over all the states on the West Coast, Hawaii & Alaska) may have broad influence.  Alternatively, the Washington case may be seen as an anomaly with other courts refusing to follow its holding.  However, just the potential for storm water dischargers to be liable under Superfund is significant.

Friday, July 16, 2010

Goldman Sachs and AIG Settle Fraud Suits

Posted on 07/19/10 at 2:04pm by Jeff Nielson

Given how closely the U.S. fraud-factories Goldman Sachs and AIG have been linked over the past two years, it is only fitting that their record-setting damage payments to settle two of their respective fraud suits should have been announced only one day apart.

For those who missed the news, on July 16 th it was announced that AIG would pay-out $725 million to settle a class-action law-suit which accused AIG of “stock-price manipulation, anti-competitive behavior, and accounting fraud.” A day earlier , Goldman Sachs settled one of the many law suits pending against it. This one was the SEC's suit against Goldman for fraud in one of its packages of “securitized mortgages”, and will cost Goldman Sachs $550 million , which includes $250 million being returned to “harmed investors”.

The AIG settlement was billed as “one of the biggest” class-action law-suits in U.S. litigation history, while Goldman Sachs' settlement was “the largest penalty ever assessed against a financial services firm.” As with most settlements in The Land of Fraud, Goldman Sachs didn't have to “admit any wrongdoing” with respect to its egregious conduct.

It is a clear non sequitur for the judge to rule that Goldman Sachs had not engaged in any willful misconduct – and then to assess it the most damages in the history of this sector. However, that didn't come close to being the most farcical aspect of the judgment. The judge also issued a “permanent injunction from violations of the anti-fraud provisions of The Securities Act of 1933”.

The SEC press release was so poorly worded that I read that statement a dozen times, and still could only guess at what it meant, so I went directly to the judgment itself . While all securities traders are (supposedly) prohibited from committing fraud, with this injunction the employees of Goldman Sachs (and only the employees of Goldman Sachs) are “doubly forbidden” from committing securities fraud.

This is nothing less than comical. While there was no finding of willful wrong-doing, the judge still found it necessary to wag his finger at these banksters and “doubly” forbid them from committing more fraud in the future. Let me try to interpret this (although seeking any sort of rationality here is a perilous endeavour).

If the members of this fraud-factory are caught committing fraudulent acts again, then the next time it won't be merely a ($550 million) “slap on the wrist”. The next time, the U.S. government will (supposedly) fully enforce its existing laws against Goldman Sachs. This would mean that future law-suits would not only force the banksters to pay for their fraud, but also have to admit to it . More importantly, the injunction clearly implies that future transgressions would be accompanied by criminal prosecution .

I ask all readers to file-away this “injunction” in their memories, and we will see if U.S. authorities can meet the low standard of finally enforcing their own laws, the next time that Goldman Sachs is caught engaging in fraud. We shouldn't have to wait long. It also sets up a delicious scenario in future litigation.

Given the inevitable lag in time between when transgressions are committed, and when complex litigation begins, in any fraud-suits against Goldman Sachs with the next two or three years, they will all relate to acts committed before this injunction was drafted , while the litigation is commenced after the injunction came into force. This means that prosecutors/plaintiffs will certainly invoke the injunction in any actions they commence against Goldman Sachs, and then what will Goldman's lawyers do?

AIG Reaches Huge Settlement with Ohio, But Can it Pay?

By Ashby Jones

As far as class-action settlements go, this one was a doozy. Actually, according to the NYT , it was the 10th dooziest in history.

Late last week, insurance giant and the bete noir of so many these days, AIG, agreed to pay $725 million to a group of Ohio pension funds to settle a long-running securities lawsuit. The plaintiffs had alleged that the company several years ago engaged in insurance bid-rigging and inflated its stock price and insurance reserves. Click here for the WSJ story; here for a write-up in AmLaw's Litigation Daily.

The settlement requires AIG to pay $175 million right away. The other $550 million would be paid later. The company may well be forced to sell more shares to raise the money.

The agreement with the lead plaintiffs in the lawsuit ends a protracted legal fight that began after former New York Attorney General Eliot Spitzer in 2005 accused AIG and then-Chief Executive Maurice “Hank” Greenberg of a variety of misdeeds, leading to Mr. Greenberg's departure.

AIG, which didn't admit wrongdoing, said in a statement that the settlement enables the company “to continue to focus its efforts on paying back taxpayers and restoring the value of our franchise for the benefit of all our stakeholders.”

If AIG, which was bailed out by the government in 2008, is unable to raise the $550 million, the plaintiffs may terminate the agreement or get the funds by other means. The settlement includes a stipulation that the company has to pay the $550 million if it raises that amount on behalf of the U.S. Treasury as it seeks to repay its bailout.

The civil lawsuit, filed on behalf of AIG investors, alleged that the insurer engaged in accounting fraud when it agreed to a transaction with Berkshire Hathaway 's General Re Corp. that artificially boosted AIG's claims reserves. An AIG employee and four General Re executives have been found guilty of charges related to that transaction. General Re reached a settlement in the matter this year with the federal government.

Ohio Attorney General Richard Cordray called the settlement the “final resolution of this matter.” The settlement brings the total expected recovery for AIG shareholders for lawsuits tied to the 2005 allegation to more than $1 billion.

Lawyers from New York's Labaton Sucharow in New York and Ohio's Hahn Loeser & Parks, represented the attorney general's office and the Ohio pension funds in the case. Leading the way for AIG: Paul Weiss's Daniel Kramer .


You Must Love the EPA--Or Else!
By Alan Caruba

The U.S. Environmental Protection Agency comes as close to George Orwell's version of Big Brother as any element of the federal government. It operates on a totally irrational basis, ignoring anything that even passes for real science. Through its regulatory power it imposes insane mandates that drive up the cost of everything and is trying to drive major elements of energy provision out of business.

What, for example, is the EPA doing offering “tips to protect eyes, skin from the Sun's harmful rays”? Does the EPA sell sunscreen products? Charged with cleaning the nation's air and water, why is it venturing into areas better served by the U.S. Department of Health and Human Services?

Charged with keeping the U.S. waters clean, why has the EPA launched a “National Water Conservation Campaign” complete with tips such as checking the toilet for “silent leaks” or replacing your showerhead with a “WaterSense labeled model.” Do we really need the EPA in the business of approving some showerheads over others?

The answer is that the EPA wants to be involved with all aspects of people's lives and sees no limits on its authority or power and it wants you to love it for all the effort it is making to save you from a horrible death.

Recently the EPA classified milk as oil! How crazed is that???

It based this on the fact that milk contains animal fat which is a non-petroleum oil. The result is that dairy farming has become even more costly and you can bet the costs will be passed on to consumers.

While the Gulf of Mexico is polluted by millions of gallons of oil from the BP disaster, Frank Konkel of Silver Sky Dairy in Hesperia, Michigan, and all other dairy farmers will have to develop and implement spill prevention plans for milk storage tanks. The rules are set to take effect in November.

In another blow to the economy, in late June the EPA announced it was voiding certificates of approval for the import of up to 200,000 gas-powered off-road motorcycles and all-terrain vehicles.

The reason? The EPA “suspects that tailpipe emissions information was either incomplete or falsified.” All vehicles imported or manufactured in the United States are required to have certificates of conformity which are issued by the EPA. I suspect the EPA does like any vehicle that runs on gasoline and is used for recreational purposes.

The tentacles of the EPA reach into every enterprise in the nation. Like the FBI, the EPA even has its own fugitive list.

When not magically changing milk into oil, the EPA continues its crazed campaign to regulate every aspect of life in America. In June, it finalized requirements under its national mandatory greenhouse gas reporting program for “underground mines, industrial wastewater treatment systems, industrial waste landfills, and magnesium production facilities.”

The target this time is methane, among the most minor elements of the Earth's atmosphere one can identify. In 1998, the amount of methane in the Earth's atmosphere was estimated to be 1,745 parts per billion.

Swamps and bogs around the globe naturally produce methane and always have. Identifying it as a “greenhouse gas” is part of the global warming hoax that claims methane and carbon dioxide are causing the Earth to heat up. Apparently no one has told the EPA that the Earth has been cooling for the past decade.

And, finally for the purpose of this quick look at EPA lunacy, to the joy of the taxpayer-subsidized biodiesel industry, the EPA announced that it would require the domestic use of 800 million gallons of biodiesel in 2011. It is made from animal products. This is part of the EPA's never-ending war on oil.

As a close observer and expert on the oil industry pointed out to me, “The EPA always speaks in pints, quarts and gallons. That makes it sound larger. Step back and 800 million gallons equals 19 million barrels of biodiesel annually. This is the proverbial drop in the bucket when total oil demand is 5,501 million barrels annually.”

Biodiesel and biofuels have been subsidized with taxpayer's money for some three decades at this point. The annual biofuel ethanol production increased only 16% in 2009 to 256 million barrels. This annual production is less than 8% of U.S. foreign oil imports of 3,307 million barrels. There is no way ethanol can replace foreign oil. There is no sensible reason to go on subsidizing biofuel or biodiesel.

The EPA has been totally out of control almost from the day it was established in 1970 by an executive order. Within two years it banned DDT. That ban was picked up by the World Health Organization and the result has been an estimated 400 million people who have since died from malaria. If that isn't genocide, I don't know what is.

© Alan Caruba, 2010

GAO Report: Carbon Capture Increases Power Costs up to 80% by  Connie Hair

A new Government Accountability Office (GAO) report released today found that carbon capture and sequestration (CCS) schemes favored by Democrats under their proposed cap and trade national energy tax boondoggle would increase electricity costs, reduce electricity output and increase water consumption.

Sen. James Inhofe (R-Okla.), ranking Republican of the Senate Committee on Environment and Public Works, and Sen. George Voinovich (R-Ohio), released the GAO today covering the status, cost, and reliability of current CCS technology for coal-fired power plants.  

The release states, “Based on GAO's survey of stakeholders, including utilities and state regulators, current CCS technology would increase electricity costs by 30 to 80 percent, reduce electricity output between 15 and 32 percent, and increase water consumption at power plants.”

These findings do not bode well for Democrats pushing the cap and trade national energy tax scheme.

More highlights from the GAO report:

  -  “While DOE, electric industry groups, and other stakeholders have set goals to commercially deploy CCS in coal plants in the next 10 to 15 years, they acknowledge that these goals present significant challenges. In particular, they have highlighted the large costs to install and operate current CCS technologies.  In 2007, DOE estimated the cost to install current CCS technologies was 85 percent higher for plants with post-combustion capture and was 36 percent higher for pre-combustion capture at IGCC plants, compared to comparable plants without CCS.”

  -  “Similarly, officials from one state public utility commission reported that they considered CCS immature and were unlikely to approve cost recovery for such a project in the foreseeable future.”

  -  “DOE has estimated that efficiency improvements to the existing coal fleet could reduce CO2 emissions by 100 million tons annually, or about a 5 to 10 percent reduction in overall emissions from these plants.”

  -  “An ultra-supercritical plant emits about one-third less CO2 than an average plant in the United States.”

“I support advancing cleaner, more efficient technologies to produce electricity, but we must recognize that CCS technology is far from mature,” Inhofe said of the new GAO findings. “Attempts to force it into existence through a massive cap-and-trade tax, hoping it will work at a reasonable cost without an appropriate legal framework and without the infrastructure needed to support it -- that's simply irresponsible public policy that will burden consumers with higher electricity costs and threaten America's energy security.”  

"GAO's report also shows that lawsuits and regulatory barriers are preventing the realization of significant gains in efficiency at existing power plants.  What's more, GAO notes that new, clean, ‘ultra-supercritical' coal-fired power plants can reduce CO2 emissions by 33 percent relative to the average coal plant.  Yet environmentalists, and the Obama Administration, have made the conscious decision to block their construction.  This is rich in irony: it's a policy blocking environmental progress, economic growth, and the job creation the Administration is hoping for,” Inhofe said.

Voinovich also favors policy that would create incentives for clean energy technology  “without the huge societal costs that would be incurred by ‘pricing' or taxing carbon.”

“This study underscores my concerns with attempts to impose severe near-term reductions in CO2 emissions from coal-fired power plants.  Simply put, the technology doesn't exist to meet these mandates while maintaining an affordable and reliable base of electric power,” Voinovich said.  

You can find the entire GAO report online here .

Highlights from HUD-DOT-EPA Live Chat about Sustainable Communities

Submitted by Victoria Broadus on July 16, 2010

Yesterday, the White House Office of Urban Affairs hosted a live-streamed, hour-long Q&A session on the Obama administration's Sustainable Communities Initiative , featuring:

The questions chosen for the discussion were all submitted and voted on at Planetizen readers. Here are some of the highlights:







  1. Access to the same training, education and networking as the communities that receive funding.
  2. Ability to keep application on file to reapply in the future.
  3. Incentives: HUD is working toward creating incentives in other HUD funds to recognize these communities in competitions.
  4. Feedback: HUD wants your feedback about how this Preferred Sustainability Status can  be useful.






House Appropriations Chairman Supports Funding for 'Civic Activism' on Climate

The leader of the House appropriations panel that oversees U.S. EPA's budget said he would support additional funding for efforts to spur "civic activism" on environmental issues, including climate change.

Rep. Jim Moran (D-Va.), chairman of the House Interior and Environment Appropriations Subcommittee, met with EPA Administrator Lisa Jackson and other agency leaders today to discuss the Gulf spill response, outreach programs and other agency initiatives. Moran also hosted a town hall session at EPA headquarters, where he said authoritative science and outreach efforts are key to environmental protection.

The Obama administration has recommended $10 billion for EPA in fiscal 2011, a $300 million cut. House and Senate appropriators have not moved on budgets for the agency, which received about $2.7 billion more this year than it did at the end of President George W. Bush's presidency.

"We want to see that increase continue, and as long as EPA stands up and speaks out on behalf of the American public, it will increase," Moran said. "One of the things we were talking about with Administrator Jackson, who said she feels very strongly about this, is EPA needs to have the ability -- to be given the ability -- to outreach more to communities."

Moran said he does not expect a price on carbon to emerge from energy and climate legislation on Capitol Hill this year, making it more urgent that the public understand EPA's work on greenhouse gas regulations.

He referred in particular to the agency's "tailoring" rule, which would limit the number of stationary sources that would be subject to regulations on greenhouse gas emissions. Moran said the recently finalized rule, which would affect the "worst sources of pollution" rather than small businesses, would have wide public support if people knew about it.

"A lot of Congress doesn't even have any idea. They don't realize that it's a very substantial compromise," Moran said. "That kind of information needs to get out, and you have that information. You need to be empowered to get it out, and we have a receptive leadership now that hopefully will give you the means to do so. I don't think the American people wholly understand what's at stake."

Just as health-focused campaigns against smoking led to a steep decline in cigarette use, outreach efforts could produce a new generation of voters who care more about issues such as polluted water, toxic chemicals or climate change, Moran said.

As an example, he pointed to a Northern Virginia program that enables elementary schools to test for for chemicals in nearby bodies of water, teaching students about pollution in the process.

"Even more than federal agencies committed to protecting and preserving our environment, what scares some of the big polluters and the big extraction industries, and so on, is civic activism," he said. "They'll pay millions to try to suppress that, but you can't suppress it, and there's no country in the world that has a stronger capability for civic activism than the United States. We just need to inform them and mobilize them."

Moran's visit was part of an effort to learn about the agencies within the purview of his subcommittee, spokeswoman Emily Blout said. Chosen as head of the panel in March after previous Chairman Norm Dicks (D-Wash.) moved to the Defense subcommittee, Moran intends to hold similar meetings with officials from the Interior Department.

A major fight over EPA regulations would likely arise during the appropriations process one way or the other, meaning the agency's budget may end up being folded into an omnibus package. The subcommittee may not mark up an appropriations bill this year, Moran has said.

Rep. Mike Simpson (R-Idaho), the subcommittee's ranking member, said last month that he was "not real optimistic" about the prospect of a markup ( E&E Daily , June 10).

Outreach or 'propaganda'?

During the town hall meeting, Jackson pointed to several examples of outreach at EPA, referring in particular to the agency's "livability" and environmental justice initiatives. She said she also intends to expand outreach on the Emergency Planning and Community Right-to-Know Act, using the Internet and other technology to make more environmental information available at the local and neighborhood levels.

While those sorts of programs would face limited opposition, additional climate change outreach efforts would be a particularly hard sell. When the issue is a political minefield like climate change, political opponents often criticize outreach initiatives, claiming federal agencies should not spend taxpayer money on what are essentially advertising campaigns for the administration's chosen policy.

Marlo Lewis, a senior fellow at the Competitive Enterprise Institute, a free-market advocacy group, said education and outreach campaigns may be used to skirt restrictions on lobbying by federal agencies. On the issue of greenhouse gas regulations, EPA would be particularly prone to "scare tactics" and "propaganda," he said.

"There is some kind of line between simply explaining what you're doing so that the public you're trying to serve can see the benefit of what you're doing, and building a clientele and a constituency to put pressure on Congress," Lewis said. "Whatever opinion you may have on climate change, there is no shortage of information available to the public today. What is EPA going to say beyond what it's already said in its endangerment rule? I don't think you have to do things like scare kids in school so that they come home and lobby their parents."

At one point during the town hall meeting, Jackson interjected to remind officials in attendance about the Hatch Act, a 1939 statute that bars civil servants from taking part in partisan activity.

"As much as we care about those issues, because of the Hatch Act, you don't lobby on those issues," Jackson said.

"Oh yeah, the old Hatch Act. Oh yeah. I forgot to mention it," Moran replied.

Copyright 2010 E&E Publishing. All Rights Reserved.


EPA Fracking Meeting Held In Denver

CATHERINE TSAI | 07/13/10 10:44 PM

DENVER — Natural gas industry groups on Tuesday urged the Environmental Protection Agency to limit the scope of an upcoming study on the effects of a natural gas extraction process known as fracking.

Some environmental groups want the federal agency to also examine eventual effects on air quality. The EPA held the second of four public meetings to gather comments about its upcoming study on how drinking water might be affected by a method of extracting natural gas.

The process – called hydraulic fracturing, or fracking – pumps water and chemicals underground at high pressure to help extract trapped oil and natural gas. The fluids help open fractures in shale formations, allowing natural gas to flow from the breaks into a well.

Fracking has been around for decades, but amid a natural gas drilling boom, members of Congress have questioned whether it could taint drinking water or harm human health. Critics said a 2004 EPA study that found no evidence of threats to drinking water was flawed.

The EPA doesn't regulate fracking, leaving that process to states. U.S. Reps. Diana DeGette and Jared Polis, both Colorado Democrats, are among those pushing for federal oversight.

Besides potential effects on drinking water, critics have raised concerns including whether fracking, which can use millions of gallons of water, could deplete aquifers.

America's Natural Gas Alliance, an advocacy group for the gas industry, submitted comments last week that, in part, supported focusing the study on effects on drinking water. It also sought input on the makeup of EPA study and advisory panels.

"History demonstrates that hydraulic fracturing can generate abundant, secure energy supplies, without adverse consequences to drinking water," alliance President and CEO Regina Hopper said in a letter to the EPA.

Las Animas County resident Tracy Dahl, though, suspects that his southern Colorado well, which has produced clean, clear drinking water for the last seven years, was muddied by fracking at an adjacent property June 30.

Leo Motors Exhibits Electric Trucks with Zinc Air Fuel Cell Range Extenders

17 July 2010

Leo Motors, Inc. displayed two electric trucks equipped with a new Zinc Air Fuel Cell (ZAFC) system as a range-extender at the EV Korea 2010 Expo. Leo filed for patents on the ZAFC technology in 2008.

The refuelable ZAFC oxidizes zinc pellets, generating the power to recharge the Li-ion polymer battery pack. Leo has developed a fuel distribution system for the even distribution of the zinc pellets into the stack. Leo also developed a mechanism to halt power generation when the battery is fully charged, and for collection of the zinc oxide sludge from the stack.

The performance of the ZAFC generator was tested by the Korea Electric Technology Institute, run by the Korea government, Leo said.

The trucks on display were converted from traditional internal combustion engines to EVs. The e-Porter is a one ton, (2,200 lb load) truck, while the e-Labo is a half ton pick-up truck. Leo also exhibited an electric passenger car, motorcycle, utility EV, and five e-scooters at the event.

Friday, July 16, 2010 02:25 PM ET

Friday, July 16, 2010 01:41 PM ET

The Goldman Sachs Trojan horse

At first glance, the SEC settlement looked like a gift. But it may also provide an opening for lawyers to attack

Andrew Leonard

How is this a "mistake?"

Goldman admitted a mistake? How is this a mistake?

They knew what they were doing.

—flibidyfloo Read flibidyfloo's other letters Permalink
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There is a weakness in their argument

And it's revealed here, in a statement that could only come from a true insider:

...[I]t is hard to see how anything in the settlement, if affirmed, would be negative for private parties considering lawsuits against sellers of CDOs....

This is great for the private parties directly impacted by this scheme who wish to obtain redress. But these private parties remain amongst the financial fraternity who were recklessly trading with each other. For the hundreds of thousands who were indirectly affected by these shenanigans--people who lost their jobs, their homes, etc. due to the financial implosion caused by Goldman's and others' recklessness--there is no redress here. The government supposedly acts in society's behalf, and society took a huge hit due to this criminal behavior. And in this respect the $550 million remains paltry, even insulting in its puniness, especially given the sums used to bail "Goldie" out.

—ramoncreager Read ramoncreager's other letters Permalink
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So let's recap...

The penalty for wholesale grand theft on a scale larger than the GDP of most countries is a "black eye". And any investor large enough to be able to afford a better laywer than Goldman Sachs might get their money back.

I'm still waiting for the good news here.

—IaintBacchus Read IaintBacchus's other letters Permalink
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If you told me I could make $500,000 next year

and for the next say five years, and tat at the end I'd have to pay $250k of it back.. I'd pretty much take the offer without worrying about the details. It's completely ridiculous to look at the amount of money they're paying in the settlement as *any* kind of a deterrent. In reality, it's an incentive-- saying to the crooks of the world "Here! Do this, and you'll only have to give back <5%!!"

This closes the government's involvement. Who wants to bet that the people Goldman defrauded will be successful at suing them? Do any of you honestly think Goldman can't afford to outlawyer the competition? To delay any settlement or judgment *decades* in civil court?

1. By then, inflation will have, once again, rendered any settlement paltry in comparison to the money they made right here and now.

2. By then, the malefactors will have long since retired.

What exactly about all this constitutes a "defeat" for GS?

—pragma Read pragma's other letters Permalink
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Analysts and financial journos are such ignorant people - this is waht every lawyer thought

But wow, the stock went up!! Again and again, I see a company do something that is actually painful, and people think they won...

In any of these regulatory cases the fines are dwarfed by the civil liability. There are banks, big banks, all over the world, who are ready to sue Goldman to unwind a huge number of massively loss-making deals - and even the release from AIG good be in jeopardy. There is literally billions of dollars and Euros on the line here, and at least some of the cases will be in non-US courts which will be highly unsympathetic.

And no, the finance houses will sue Goldman because their claims are too large and too strong to let rest - they have a duty to their shareholders in the end.

—MacK.. Read MacK..'s other letters Permalink
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Sure! How much do you think Goldman will pay out in the end then? 5 billion? 10? Do you know how much money they made off their activities? Saying "the fine dwarfs the civil liability" is only appropriate if the company's overall gains are commensurate with the eventual liability.

Link in sig to GS's financials. Note that their equity, in a lot of ways the most accurate measure of how well a company is growing, has gone up about $28bn in the last two years alone.

Do you think they will end up paying out $28 billion in compensation? Do you realize that equity reflects bonuses, ie every dollar you pay out in bonus is one that doesn't go to the company's worth, aka equity?

The sheer idiocy of people who think the kleptocracy is going to suffer at the hands of those it stole from boggles my mind.

COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing

Final Listing Decision: Delist from 303(d) list

(being addressed by USEPA approved TMDL)

Factors Leading to Failures in 

Predicting Post-Mine Water Quality 

and Acid Mine Drainage 

In the report comparing predicted and actual water

quality at hard rock mines (Kuipers et al. 2006), the

authors identified two types of characterization failures

that led to differences between predicted water quality as

speculated in EIS documents and the actual water quality

either during or after mining began. The two characterization

failure types were: 1) insufficient or inaccurate characterization

of the hydrology, and 2) insufficient or inaccurate geochemical

characterization of the proposed mine. Inaccurate pre-mining

characterization and interpretation can, therefore, result in a

failure to recognize or predict water quality impacts. The

authors reported primary causes of hydrologic characterization

failures as follows: overestimations of dilution, lack of hydrological

characterization, overestimations of discharge volumes, and

underestimations of storm size. The primary causes of

geochemical characterization failures were identified as:

lack of adequate geochemical characterization, in terms of sample

representativeness and sample adequacy.

In the 25 case study mines, the authors identified mitigation failures

with the following primary causes: mitigation measures were not

identified or they were inadequate, or not implemented; waste rock

mixing and segregation was not effective, liners leaked, tailings

were spilled, or embankments failed, and land application

discharge was not effective. The authors provided a table

summarizing these failures (Table 1) for the 25 case study mines.

Table 1. Water Quality Predictions Failure Modes, Root Causes

and Examples from Case Study Mines (Kuipers et.al, 2006).

Failure Mode
Root Cause
Hydrologic Characterization
Lack of hydrologic characterization
Royal Mountain King, CA; Black Pine, MT
Dilution overestimated
Greens Creek, AK; Jerritt Canyon, NV
Amount of discharge underestimated
Mineral Hill, MT
Size of storms underestimated
Zortman and Landusky, MT
Geochemical Characterization
Lack of adequate geochemical characterization
Jamestown, CA; Royal Mountain King, CA; Grouse Creek, ID; Black Pine, MT
Sample size and/or representation
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Golden Sunlight, MT; Mineral Hill, MT; Zortman and Landusky, MT; Jerritt Canyon, NV
Mitigation not identified, inadequate, or not installed
Bagdad, AZ; Royal Mountain King, CA; Grouse Creek, ID
Waste rock mixing and segregation not effective
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Jerritt Canyon, NV
Liner leak, embankment failure or tailings spill
Jamestown, CA; Golden Sunlight, MT; Mineral Hill, MT; Stillwater, MT; Florida Canyon, NV; Jerritt Canyon, NV; Lone Tree, NV; Rochester, NV
Land application ineffective
Beal Mountain, MT 
Acid Mine Drainage and Effects on Fish Health and Ecology: A Review 

U.S. Fish and Wildlife Service, Anchorage Fish and Wildlife Field Office,
Anchorage, Alaska, 99501
Prepared by:
Reclamation Research Group, LLC, Bozeman, Montana
June 2008
Suggested Citation: Jennings, S.R., Neuman, D.R. and Blicker, P.S. (2008). “Acid Mine Drainage and Effects on Fish Health and Ecology: A Review”. Reclamation Research Group Publication, Bozeman, MT.

Table of Contents 
Purpose ............................................................................................................................... 1 
Acid Mine Drainage Overview ........................................................................................... 1 
Chemistry of Acid Rock Drainage .................................................................................. 1 
Acid Mine Drainage ........................................................................................................ 3 
Effect of Acid Mine Drainage on Aquatic Resources ........................................................ 5 
Major Environmental Incidents Caused by Acid Mine Drainage ....................................... 7 
Prediction of Acid Mine Drainage ...................................................................................... 7 
Assessment of Acid Rock Drainage and Metals Release ................................................. 11 
Water Quality and Acid Mine Drainage: Pre-mine Predictions and Post-mine Comparisons ....... 13 
Factors Leading to Failures in Predicting Post-Mine Water Quality and Acid Mine Drainage .....14 
Treatment of Acid Mine Drainage .................................................................................... 16 
Recommendations for Acidic Drainage Minimization ..................................................... 16 
Summary ........................................................................................................................... 19 
References and Literature Cited ........................................................................................ 20

In Alaska, several large mine projects are currently proposed, ranging from open-pit, hard rock mines to strip mines for extracting coal. These large-scale projects have the potential to impact fish and wildlife resources through alteration or removal of vast areas of habitat. The U.S. Fish and Wildlife Service (Service) is responsible for managing fish and wildlife resources for the American public and in carrying out its mission, participates in pre-development activities for industrial projects. This report was commissioned to provide information to the Conservation Planning Assistance branch of the Anchorage Fish and Wildlife Field Office to aid in review of documents required as part of the permit process with the U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers and the State of Alaska.
Acid Mine Drainage Overview 
Acid rock drainage (ARD) is produced by the oxidation of sulfide minerals, chiefly iron pyrite or iron disulfide (FeS2). This is a natural chemical reaction which can proceed when minerals are exposed to air and water. Acidic drainage is found around the world both as a result of naturally occurring processes and activities associated with land disturbances, such as highway construction and mining where acid-forming minerals are exposed at the surface of the earth. These acidic conditions can cause metals in geologic materials to dissolve, which can lead to impairment of water quality when acidic and used by terrestrial or aquatic organisms.
metal laden discharges enter watersChemistry of Acid Rock Drainage 
The reaction of pyrite with oxygen and water produces a solution of ferrous sulfate and sulfuric acid. Ferrous iron can further be oxidized producing additional acidity. Iron and sulfur oxidizing bacteria are known to catalyze these reactions at low pH thereby increasing the rate of reaction by several orders of magnitude (Nordstrom and Southam 1997). In undisturbed natural systems, this oxidation process occurs at slow rates over geologic time periods. When pyrite is exposed to oxygen and water it is oxidized, resulting in hydrogen ion release - acidity, sulfate ions, and soluble metal ions as shown in equation 1. The acidity of water is typically expressed as pH or the logarithmic concentration of hydrogen ion concentration in water such that a pH of 6 has ten times the hydrogen ion content of neutral pH 7 water.
2FeS2 (s) + 7O2 + 2H2O –> 2Fe+2 + 4SO4-2 + 4H+ (1)
Further oxidation of Fe+2 (ferrous iron) to Fe+3 (ferric iron) occurs when sufficient oxygen is dissolved in the water or when the water is exposed to sufficient atmospheric oxygen (equation 2).
2Fe+2 + ½ O2 + 2H+ –> 2Fe+3 + H2O (2)
Ferric iron can either precipitate as Fe(OH)3 , a red-orange precipitate seen in waters affected by acid rock drainage, or it can react directly with pyrite to produce more ferrous iron and acidity as shown in equations 3 and 4.
2Fe+3 + 6H2O <–> 2Fe(OH)3 (s) + 6H+ (3)
14Fe+3 + FeS2 (s) + 8H2O –> 2SO4 -2 + 15Fe+2 + 16H+ (4)
When ferrous iron is produced (equation 4) and sufficient dissolved oxygen is present the cycle of reactions 2 and 3 is perpetuated (Younger, et al., 2002). Without dissolved oxygen equation 4 will continue to completion and water will show elevated levels of ferrous iron (Younger, et al., 2002). The rates of chemical reactions (equations 2, 3, and 4) can be significantly accelerated by bacteria, specifically Thiobacillus ferrooxidans. Another microbe, Ferroplasma Acidarmanus, has been identified in the production of acidity in mine waters (McGuire et al. 2001)
Hydrolysis reactions of many common metals also form precipitates and in doing so generate H+. These reactions commonly occur where mixing of acidic waters with
substantial dissolved metals blend with cleaner waters resulting in precipitation of metal hydroxides on stream channel substrates (Equations 5 through 8).
Al+3 + 3H2O <–> Al(OH)3(s) + 3H+ (5)
Fe+3 + 3H2O <–> Fe(OH)3(s) + 3H+ (6)
Fe+2 + 0.25 O2 + 2.5 H2O <–> Fe(OH)3(s) + 2H+ (7)
Mn+2 + 0.25 O2 + 2.5 H2O <–> Mn(OH)3(s) + 2H+ (8)
Metal sulfide minerals in addition to pyrite may be associated with economic mineral deposits and some of these minerals may also produce acidity and SO4-2. Oxidation and hydrolysis of metal sulfide minerals pyrrhotite (Fe1-xS), chalcopyrite (CuFeS2), sphalerite ((Zn, Fe)S) and others release metals such as zinc, lead, nickel, and copper into solution n addition to acidity and SO4-2 (Jennings et al., 2000; Younger et al., 2002).
  Acid Mine Drainage 
Acid rock drainage occurs when sulfide ores are exposed to the atmosphere, which can be enhanced through mining and milling processes where oxidation reactions are initiated. Mining increases the exposed surface area of sulfur-bearing rocks allowing for excess acid generation beyond natural buffering capabilities found in host rock and water resources. Collectively the generation of acidity from sulfide weathering is termed Acid Mine Drainage (AMD).1 Mine tailings and waste rock, having much greater surface area than in-place geologic material due to their smaller grain size, are more prone to
1 As this literature review is focused on mining, the term AMD will be used in the text, yet rocks found in undisturbed environments are similarly able to generate acidity (or ARD) without the anthropogenic influence of mining. The term Mine Influence Water is also synonymous.
generating AMD. Since large masses of sulfide minerals are exposed quickly during the mining and milling processes, the surrounding environment can often not attenuate the resulting low pH conditions. Metals that were once part of the host rock are solubilized and exacerbate the deleterious effect of low pH on terrestrial and aquatic receptors. Concentrations of common elements such as Cu, Zn, Al, Fe and Mn all dramatically increase in waters with low pH. Logarithmic increases in metal levels in waters from sulfide-rich mining environments are common where surface or groundwater pH is depressed by acid generation from sulfide minerals.2 These environmental, human health, and fiscal consequences, if not mitigated, can have long-lasting effects. Acid mine drainage continues to emanate from mines in Europe established during the Roman Empire prior to 467 AD (CSS, 2002). Georgius Agricola's De Re Metallica (1556), the first and seminal treatise on mining exhibits detailed woodcut illustrations not only of the known mechanics of 16th Century mining, but also depictions of the devastation of streams. The cost of mitigation of environmental damage from acid mine drainage is great. The U.S. Forest Service (USFS) estimates that between 20,000 to 50,000 mines are currently generating acid on lands managed by that agency; with negative impacts from these mines affecting some 8,000 to 16,000 km of streams (USDA, Forest Service 1993). Many of these mines are small abandoned facilities located in remote areas of the western United States and originating prior to modern environmental controls. However, several large scale mines developed in the latter half of the twentieth century have declared bankruptcy and left tax payers with the responsibility of treating acid waters in perpetuity. Examples include the Zortman Landusky Mine in Montana, the Summitville Mine in Colorado, and the Brohm Mine in South Dakota. The largest and most expensive sites that EPA has listed under the Comprehensive Environmental Resource Compensation and Liability ACT (CERCLA; aka Superfund) are mining sites in the West, including Iron Mountain Mine in California, Bunker Hill in Idaho, and the Butte-Clark Fork River complex in Southwestern Montana. Human health risks and ecological injury, chiefly from elevated metals, have been identified by EPA and natural resource trustees at many of these mega-mining Superfund sites.
Acidic drainage has been identified as the largest environmental liability facing the Canadian mining industry and is estimated at $2 to $5 billion dollars (MEND 2001). In response to the challenge presented by mitigation of AMD, 200 technology-based reports were generated to evaluate sampling, prediction, prevention, treatment and monitoring of potentially acid-generating materials and locations. A 1986 estimate for Canada suggests
2 Note: The authors recognize that AMD and elevated metal levels in water are inextricably linked, however the purpose of this report is to assess the effect of acidity on fisheries independent from elevated metals.
that acid-generating tailings cover 12,000 hectares plus an additional 350 million tons of mine waste rock were noted (MEND 2001).
Effect of Acid Mine Drainage on Aquatic Resources 
Once acid drainage is created, metals are released into the surrounding environment, and become readily available to biological organisms. In water, for example, when fish are exposed directly to metals and H+ ions through their gills, impaired respiration may result from chronic and acute toxicity. Fish are also exposed indirectly to metals through ingestion of contaminated sediments and food items. A common weathering product of sulfide oxidation is the formation of iron hydroxide (Fe(OH)3), a red/orange colored precipitate found in thousands of miles of streams affected by AMD. Iron hydroxides and oxyhydroxides may physically coat the surface of stream sediments and streambeds destroying habitat, diminishing availability of clean gravels used for spawning, and reducing fish food items such as benthic macroinvertebrates. Acid mine drainage, characterized by acidic metalliferous conditions in water, is responsible for physical, chemical, and biological degradation of stream habitat.
Water contaminated by AMD, often containing elevated concentrations of metals, can be toxic to aquatic organisms, leaving receiving streams devoid of most living creatures (Kimmel 1983). Receiving waters may have pH as low as 2.0 to 4.5, levels toxic to most forms of aquatic life (Hill 1974). Data relating to specific effects of low pH on growth and reproduction (Fromm 1980) may be related to calcium metabolism and protein synthesis. Fromm (1980) suggested that a “no effects” level of pH for successful reproduction is near 6.5, while most fish species are not affected when the pH is in a range from 5.5 to 10.5. Howells et al. (1983) reported interactions of pH, calcium, and aluminum may be important to understanding the overall effects on fish survival and productivity. Several reports indicate low pH conditions alter gill membranes or change gill mucus resulting in death due to hypoxia. Hatchery raised salmonids can tolerate pH 5.0, but below this level hemeostatic electrolyte and osmotic mechanisms become impaired (Fromm 1980).
A study of the distribution of fish in Pennsylvania streams affected by acid mine drainage (Cooper and Wagner 1973) found fish severely impacted at pH 4.5 to 5.5. Ten species revealed some tolerance to the acid conditions of pH 5.5 and below; 38 species were found living in waters with pH values ranging from 5.6 to 6.4; while 68 species were found only at pH levels greater than 6.4. Further, these investigators reported complete loss of fish in 90% of streams with waters of pH 4.5 and total acidity of 15 mg/L. Healthy, unpolluted streams generally support several species and moderate abundance of
individuals; whereas impacted streams are dominated by fewer species and often low to moderate numbers of only a few organisms. Streams affected by acid mine drainage are poor in taxa richness and abundance. In older studies (Warner 1971), more species of insects and algae were found in unpolluted West Virginia streams (pH > 4.5) compared to those streams polluted by acid (pH 2.8 to 3.8). Reductions of benthic fauna in a West Virginia stream severely affected by acid mine water were reported by Menendez (1978). In more recent studies (Farag et al. 2003), some streams in the Boulder River watershed in Montana impacted by nearly 300 abandoned metal mines are devoid of all fish near mine sources. Populations of brook trout (Salvelinus fontinalis), rainbow trout (Oncorhynchus mykiss), and cutthroat trout (O. clarki) were found further downstream and away from sources of acid mine drainage. In a 2003 study evaluating the effect of localized habitat degradation from a gold mine near the Yukon River (in AK?) on population structure of salmon, it was suggested that coho salmon (O. kisutch) may be at risk of losing genetic diversity due to localized habitat degradation (Olsen et al. 2004). The abandoned Britannia copper mine in British Columbia has been releasing acid mine drainage into local waters for many years. Investigators compared fish abundance, distribution and survival at contaminated and non-contaminated areas (Barry et al. 2000). Chum salmon (O. keta) fry abundance was significantly lower near the impacted waters (pH < 6 and dissolved copper > 1 mg/L) than the reference area. The investigators also reported that laboratory bioassays confirmed acid mine drainage from the Britannia Mine was toxic to juvenile chinook (O. tshawytscha) and chum salmon. Chinook salmon smolt transplanted to surface cages near Britannia Creek experienced 100% mortality within 2 days (Barry 2000).
The scientific literature is replete with studies designed to quantify the adverse environmental effects of acid mine drainage on aquatic resources. Most recent investigations focus on multiple bioassessments of large watersheds. These assessments include water and sediment chemistry, benthic macroinvertebrate sampling for taxa richness and abundance, laboratory acute water column evaluations, laboratory chronic sediment testing, caged fish within impacted streams, and development of models to explain and predict impacts of acid mine drainage on various aquatic species (Soucek et al. 2000, Woodward et al. 1997, Maret and MacCoy 2002, Hansen et al. 2002, Kaeser and Sharpe 2001, Baldigo and Lawrence 2000, Johnson et al. 1987, Griffith et al. 2004, Schmidt et al. 2002, Martin and Goldblatt 2007, Beltman et al. 1999, Hansen et al. 1999, Boudou et al. 2005).
Major Environmental Incidents Caused by Acid Mine Drainage 
Releases of acid mine waters containing elevated metal and cyanide concentrations with resulting impacts to landscapes and waterways have been documented by several organizations (UNEP 2002). Fish kills resulting from the uncontrolled release of acid and metals from mine wastes into receiving streams have been reported from world wide areas in which hard rock mining, milling, and smelting activities have occurred. In 1998, a mine flood incident in Spain deposited some 6 million m3 of acid water over the banks of the Guadiamar River with metal and sulfide rich sediments. The U.S. EPA described 66 incidents in which environmental injuries from mining activities are detailed (EPA 1995). Nordstrom and Alpers (1999) reported that millions, perhaps billions, of fish have been killed from mining activities in the U.S. during the past century.
In 1989, a large fish kill (> 5000 salmonids) in Montana's Clark Fork River resulted when acid, metalliferous tailings and efflorescent metal salts were flushed into the river during a thunderstorm event. Within 20 minutes, the acidity of the river water was reduced by several orders of magnitude, and copper concentrations rose dramatically. Fish gill tissue copper levels indicated acute toxicity (Munshower et al. 1997). The Sacramento River in California has experienced several fish kills due to sudden releases of acid water from upstream mine areas; more than 20 fish kills were reported since 1963, and in 1967, at least 47,000 fish died (Nordstrom et al. 1977).
Prediction of Acid Mine Drainage 
Accurate prediction of acidic drainage from proposed mines is recognized by both industry and government as a critical requirement of mine permitting and long-term operation. Substantial emphasis has been placed on prediction of acid drainage associated with coal development in the Eastern U.S. (Pennsylvania DEP 1998; Skousen and Ziemkiewicz, 1996), and metal mining in the Western U.S. and in Canada (MEND 2001). The standard protocols for evaluating geologic materials for their ability to produce AMD are generally agreed upon within the scientific community, yet much uncertainty remains in the ability of scientists and engineers to predict the ultimate drainage quality years in the future, as many complex variables influence acid generation and neutralization.
The backbone of predicting acid generating potential from any geologic formation is the ability to characterize the presence and quantity of both acid-forming minerals and
neutralizing minerals in the geologic materials to be unearthed during mining operations. Typically samples are collected by drilling during exploration, analyzed and interpreted with respect to their risk of acid formation. Methods for characterizing acid-forming minerals were developed during the 1970's in areas of the eastern U.S. mined for coal (Smith et al., 1974). Ultimately, these techniques lead to a standardized EPA protocol for characterization of mine soil and overburden (Sobek et al., 1978). In these analytical approaches, the amount of sulfur present in geologic materials is measured and attributed to being either an acid-forming mineral such as pyrite (FeS2) or non-acid-forming mineral such as gypsum (CaSO4?2H2O). The relative amount of acid-forming minerals is then contrasted to the amount of neutralizing minerals such as calcite (CaCO3) to develop a prediction of the probability of acid generation. The ratio of neutralization potential (NP) to acid potential (AP) is commonly presented in graphical interpretations with the inference that geologic materials with an abundance of NP are unlikely to generate acidic drainage. In Eastern coal mines NP:AP ratios <1 commonly produce acidic drainage, NP:AP ratios between 1 and 2 may produce either acidic or neutral drainage and NP:AP ratios >2 should produce alkaline water (Skousen et al., 2002). However, this index does not always accurately predict the resultant acid generation from a mine. Of 56 mines evaluated by Skousen and others (2002) 11% did not conform to the expected results based on NP:AP ratios, including four sites with ratios > 2: these sites eventually produced acidic drainage. Furthermore, the applicability of the experimental findings from West Virginia coal deposits hosted in sedimentary rock to metal mines developed in igneous parent material is unknown. Sedimentary sulfide mineralization is caused by diagenetic interaction between microbes, Fe and S in a low temperature saturated environment resulting in formation of poorly crystallized pyrite while igneous pyrite is formed by high temperature magmatic fluids or molten rock cooling slowly to form well developed crystalline structure. Mineralogical variation between each geologic domain causes dissimilar reactivity to weathering conditions and leads to laboratory variability in assessment. Recurrence of inaccurate interpretations between laboratory and field data has caused investigators to reexamine the adequacy of the analytical methods. Because of the challenges inherent in interpreting laboratory data and predictive models, forecasting future water quality impacts from AMD should not be considered routine and robust, rather they should be considered an area of uncertainty and on-going research.
If the rates of weathering and availability of acid-forming and neutralizing minerals are dissimilar the potential exists that acid-generation may overwhelm the pool of resident NP. Slowly reacting neutralizing minerals may lead to generation of acidic water. Sherlock and others (1995) evaluated the rates of weathering of sulfides, carbonates and silicates and determined that sulfide minerals reacted fastest and cautioned that conventional methods of prediction do not consider the specific mineralogy and reaction kinetics are at risk of erroneous interpretations and predictions.
Research has also focused on the presence of minerals which are detected by the NP analytical method, yet do not contribute to production of alkalinity. Siderite (FeCO3) has been found in mining environments and while contributing to the measured NP, no actual neutralization has been observed in the field (Frisbee and Hossner, 1989). In an evaluation of 31 overburden3 samples containing siderite, pyrite, calcite and quartz using 4 dissimilar methods for NP determination, siderite-containing samples showed wide variation in NP between three laboratories (Skousen et al., 1997). Using the standard Sobek (1978) test for NP, Weber and others (2004) showed that up to 432 hours may be required for complete hydrolysis of siderite-containing samples in laboratory testing, implying that inaccurate interpretations of NP are common for rock containing this siderite since routine laboratory tests would not be run for such a great length of time. The limitations of laboratory testing for NP without supporting mineralogical characterization can often lead to overestimation of NP (Lawrence and Scheske, 1997; Paktunc, 1999). Conventional laboratory methods for determination of NP employ wet chemical methods where the presence of carbonates in soil is made based on titration of a sample with acid followed by back titration with a base. No determination of the mineralogical source of carbonate is made by the NP test. Similarly, quantification of acid-forming minerals is challenging in a laboratory setting. Analysis of total sulfur levels is routinely accomplished using standardized laboratory equipment, however the typical Sobek method employs subsequent acid extractions to distinguish between acid-forming minerals containing sulfur and non-acid sulfur minerals. In research using pure mineral samples, Jennings and Dollhopf (1995) showed that conventional analytical methods failed to accurately characterize acid-forming minerals. Incomplete recovery of sulfur-bearing minerals has been observed using the Sobek method since a residual sulfur fraction is commonly observed in laboratory testing implying the standard method of dissolution failed to solubilize or dissolve the sulfide found in the sample. Regional variation is observed in the interpretation of residual sulfur leading to non-standardized findings. The residual sulfur component is commonly characterized as non-acid forming organic sulfur in sedimentary rock and as acid-forming sulfide in metal mining samples. Collectively, the static tests described have significant limitations in accurately predicting whether acidic drainage will form.
Kinetic4 tests are commonly run as a companion to static5 testing to measure the weathering behavior of geologic material when exposed to field conditions. Kinetic tests
3 Overburden is defined as geologic material overlying a resource of interest. In surface mining overburden is typically removed as waste material.
4 Kinetic tests of mine waste are typically accomplished by monitoring the chemical constituents in water resulting from simulated laboratory weathering or actual field site weathering of mine waste materials over a period of months to years. Water is leached through the geologic material and recovered as drainage.
may be run in a laboratory column or in the field in large containers. The quality and quantity of leachate is subsequently evaluated to offer a supporting interpretation to static testing. Six large columns each containing 1.6 tons of waste rock were evaluated over a period of 3 years showing two pH controls: 1) sulfide oxidation with calcite dissolution sustaining a neutral pH, and 2) simultaneous silicate and sulfide weathering occurring at an equilibrium pH of 3-4 (Stromberg and Banwart, 1999). During the period of investigation the columns either remained at near-neutral pH or became acidic after 0.5 to 3 years lag time. The lag time in appearance of low pH was caused by mineralogical reactions occurring in the waste rock that either neutralized the acidity formed until exhausted or rendered non-reactive, or the acid reactions required a period of time to initiate. In a companion study Stromberg and Banwart (1999) showed there was a large difference in weathering rates based on particle size. In the columns particles smaller than 0.25 mm were responsible for approximately 80% of both the sulfide oxidation and silicate dissolution. Calcite particles larger than 5-10 mm were found to react too slowly to neutralize acid produced by sulfide oxidation. Similar unique reaction kinetics has been observed at the Bingham Canyon Mine in Utah where fresh waste rock exhibits a paste pH6 of 7.0. Within 6 years the pH of the waste rock dumps declines to 4.7 further decreasing to pH 3.7 after 50 years of weathering (Borden 2001). Scharer and others (2000) observed that NP was strongly related to particle size and particles greater than ¼ inch (6.4 mm) were only 20% consumed at the onset of acid conditions. Kinetic data on the depletion rate of NP supplemented by geochemical modeling suggests that waste rock with NP/AP ratios as high as 5 may turn acidic in the long term: this is much different than the results mentioned above by Skousen (2002) who identified 2 as the ratio below which NP/AP ratios would generally not become acidic. If neutralizing minerals are depleted or non-reactive long-term generation of acidic drainage may be initiated with potentially dire ecological consequences if untreated.
Notable uncertainty exists in the long-term predictions of acid generation from geologic materials found in mining environments. Evaluation of Environmental Impact Statements from 25 mines performed by Kuipers and others (2006) showed 15 of 25 mines (60%) exceeded surface water quality standards for metals and pH after permitting.
5 Static testing is the laboratory analysis of geologic materials for chemical characteristics such as total metal levels, pH or total S. Static testing is the analysis of the bulk concentrations in rock or soil material.
6 Paste pH or saturated paste pH is the measurement of pH in a slurry of soil or rock with deionized water after allowing time for reaction of the slurry. Paste pH is a measure of the soil solution indicative of the acidity of soil water in the context of plant growth or leaching to groundwater.
Similarly, kinetic tests performed using humidity cells7 over a 3 to 7 year period showed that rates of acid generation have a 50% chance of stabilizing within one year while the remainder of the humidity cells fluctuated significantly throughout the test periods (Morin and Hutt, 2000).
Assessment of Acid Rock Drainage and Metals Release 
Canada's Mine Environment Neutral Drainage (MEND) Program was implemented to develop and apply new technologies to prevent and control acid drainage. Recognizing acid drainage as the greatest environmental problem facing the mining industry and the regulatory agencies' responsibility to protect the environment and safeguard human health, the MEND Program was funded jointly by Natural Resources Canada and The Mining Association of Canada. In 2005, MEND released a report titled List of Potential Information Requirements in Metal Leaching/Acid Rock Drainage Assessment (ML/ARD) and Mitigation Work (Price 2005). The purpose of this document is to improve the assessment and mitigation of metal leaching/acid rock drainage. It achieves this goal by providing a comprehensive list of information and data necessary to assess the potential for ML/ARD, and multiple strategies for mitigation. The document is intended to be used as a general guide for the mining industry, regulators, environmental advocacy groups, and other stakeholders. The MEND program uses the term ‘Acid Rock Drainage' to describe the acidic water drainage from mines.
The MEND report (Price 2005) recommends a set of informational variables and data that should be generated and developed so that informed decisions can be made with respect to the potential for acid drainage and toxic metal release. These recommendations were intended to mitigate the consequences of sulfide mineral oxidation caused by mining, milling, and other process involved in metal resource development. These information requirements are summarized in the following statements:
General site characteristics: location, access, climate, ecology, history of previous mining, waste materials, geology, hydrology, mineralogy, descriptions of all materials that will be excavated or exposed, soils, reclamation objectives, end land uses, data tables, relevant figures, and other pertinent information. This is not exhaustive and site-specific information and data will be required.
7 Humidity cells are laboratory equipment to simulate weathering of rock in a small benchtop enclosure where soil or rock is repeatedly wetted and dried over a period of months to years to monitor changes in drainage water quality. A humidity cell is a specialized type of kinetic testing.
Specific material characterization and predictions of ML/ARD: The ability to accurately predict the potential for ML/ARD requires a careful and complete characterization of all materials and waste types under the probable weathering (oxygen, bacteria, moisture, volumes of materials, etc.) conditions. Representativeness and adequacy of samples collected, measures of variability and uncertainty, and analytical procedures selected need to be appropriate. Industry-regulatory quality assurance and quality control procedures need to be followed. To be complete, predictions and assessments are to be made pre-mining (baseline data), during the operational phase, post-mining, and long-term. The document defines specific tests to define the geological and mineralogical properties of materials.
Static and kinetic tests: Static tests require appropriate sampling intensity, sample preparation, determinations of elemental concentrations (total and water soluble), and full acid-base accounting. Kinetic tests are recommended to evaluate reaction rates and to predict and measure drainage chemistry. Humidity cell, column test and actual field verification tests should be conducted. Monitoring of site drainage (seeps, mine drainage, pit lakes, etc.) should include parameters to be evaluated and the frequency of monitoring during and post-mining.
Assessments of waste materials: Waste materials may include waste rock, tailings, treatment wastes, low grade ore and overburden materials. All media require assessments and predictions for acid drainage and releases of metals. Post-disposal weathering of waste piles, including changes in pH, carbonate content, soluble weathering products (acid water and metals). Thermal properties, pore gas composition, and oxygen concentrations may be significant parameters in the assessments of long-term water quality degradation.
The MEND document (Price 2005), also provides an approach to interpretation and display of the above characterization data. Identification of ARD generating materials is important, but toxicity from metals with neutral pH can be significant factors and are not to be overlooked. Predicting drainage chemistry is based on data and information gathered and their proper interpretation. Factors include the weathering environment and climate, data predicting ARD/ML potential, anticipated rates of leaching from mine wastes and mine workings, metal releases based on kinetic tests and geochemical modeling. Additional issues are in stream alkalinity, dilution, and natural attenuation.
Estimating environmental and ecological impacts should be based on identifying potential receptors, endangered species, sensitivity and distributions of selected species and forms of exposure. A conceptual site model can be useful in determining mechanisms of contaminant release, contaminant pathways and receptors of concern. Acute and
chronic toxicity testing of identified aquatic and terrestrial receptors and pre- and post-mining monitoring programs are recommended.
In the United States, the National Research Council (1999) took up the issue of metal mining recognizing the controversy associated with permitting and compliance of hardrock mining. The committee was well versed on the potential deleterious impacts of mining and spent most of their deliberations contemplating the weaknesses of the existing regulatory framework. Recommendations were put forward for the Federal agencies consideration suggesting greater coordination and use of the best available scientific practices. This report did not explore technical topics such as AMD in detail, rather the recommendations were policy oriented.
Water Quality and Acid Mine Drainage: Premine Predictions and Postmine Comparisons 
A major and unique study (Kuipers et al. 2006) was conducted comparing predicted and actual water quality at several mines in the United States. The overall purpose of this study was to examine the reliability of pre-mining water quality predictions at hard rock mining operations. The approach included reviews of the history and accuracy of water quality predictions in Environmental Impact Statements (EISs) for major hard rock mines and then examined and compared actual water quality to the predictions postulated in the EISs. A total of 183 mines were identified, with 71 having reviewed EISs. The investigation focused on 25 mines for in-depth analysis. Nearly all of the EISs reviewed reported that they expected acceptable water quality (concentrations lower than relevant standards) after mitigation was taken into account. Data analyses in this report, in general, refuted these EIS predictions. The following are major findings of the investigation:
Surface water: Sixty percent of the case study mines (15/25) exceeded surface water quality standards due to mining-related activities. Of these, four (17%) noted a low potential to exceed standards, seven (47%) a moderate potential, two a high potential, and three had no information in their EISs for surface water quality impacts in the absence of mitigation measures. The specific water quality parameters exceeding standards varied between sites and were not specifically identified in the report.
Ground water: The majority (64% or 16/25) of the case study mines also exceeded drinking water standards in groundwater. At three of the mines, all in Nevada, the elevated concentrations of metals that did not meet the standards may be related to baseline conditions. However, due to mining activities, 52% of the case study mines
clearly exceeded standards in surface water. In terms of post-mitigation groundwater quality impacts, 77% (10/13) of the mines that predicted low groundwater quality impacts in their EISs were above the water quality standards. Most mines predicted no impacts to groundwater quality after mitigation were in place, but in the majority of case study mines, impacts have occurred.
Metals of Concern: Elements that most often exceeded standards or that had increasing concentrations in groundwater or surface water included toxic heavy metals such as copper, cadmium, lead, mercury, nickel, or zinc (12/19 or 63% of mines), arsenic and sulfate (11/19 or 58% of mines for each) and cyanide (10/19 or 53% of mines).
Acid mine drainage: The majority of the case study mines (18/25 or 72%) predicted low potential for acid drainage in one or more EISs. Of the 25 case study mines, 36% have developed acid drainage on site to date. Of these 9 mines, 8 (89%) predicted low acid drainage potential initially or had no information on acid drainage potential. The Greens Creek Mine in Alaska initially predicted moderate acid drainage potential but later predicted low potential for acid drainage for an additional waste rock disposal facility. Therefore, nearly all the mines that developed acid drainage either underestimated or ignored the potential for acid drainage in their EISs.
Factors Leading to Failures in Predicting PostMine Water Quality and Acid Mine Drainage 
In the report comparing predicted and actual water quality at hard rock mines (Kuipers et al. 2006), the authors identified two types of characterization failures that led to differences between predicted water quality as speculated in EIS documents and the actual water quality either during or after mining began. The two characterization failure types were: 1) insufficient or inaccurate characterization of the hydrology, and 2) insufficient or inaccurate geochemical characterization of the proposed mine. Inaccurate pre-mining characterization and interpretation can, therefore, result in a failure to recognize or predict water quality impacts. The authors reported primary causes of hydrologic characterization failures as follows: overestimations of dilution, lack of hydrological characterization, overestimations of discharge volumes, and underestimations of storm size. The primary causes of geochemical characterization failures were identified as: lack of adequate geochemical characterization, in terms of sample representativeness and sample adequacy.
In the 25 case study mines, the authors identified mitigation failures with the following primary causes: mitigation measures were not identified or they were inadequate, or not
implemented; waste rock mixing and segregation was not effective, liners leaked, tailings were spilled, or embankments failed, and land application discharge was not effective. The authors provided a table summarizing these failures (Table 1) for the 25 case study mines.
Table 1. Water Quality Predictions Failure Modes, Root Causes and Examples from Case Study Mines (Kuipers et.al, 2006).
Failure Mode
Root Cause
Hydrologic Characterization
Lack of hydrologic characterization
Royal Mountain King, CA; Black Pine, MT
Dilution overestimated
Greens Creek, AK; Jerritt Canyon, NV
Amount of discharge underestimated
Mineral Hill, MT
Size of storms underestimated
Zortman and Landusky, MT
Geochemical Characterization
Lack of adequate geochemical characterization
Jamestown, CA; Royal Mountain King, CA; Grouse Creek, ID; Black Pine, MT
Sample size and/or representation
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Golden Sunlight, MT; Mineral Hill, MT; Zortman and Landusky, MT; Jerritt Canyon, NV
Mitigation not identified, inadequate, or not installed
Bagdad, AZ; Royal Mountain King, CA; Grouse Creek, ID
Waste rock mixing and segregation not effective
Greens Creek, AK; McLaughlin, CA; Thompson Creek, ID; Jerritt Canyon, NV
Liner leak, embankment failure or tailings spill
Jamestown, CA; Golden Sunlight, MT; Mineral Hill, MT; Stillwater, MT; Florida Canyon, NV; Jerritt Canyon, NV; Lone Tree, NV; Rochester, NV
Land application ineffective
Beal Mountain, MT
Treatment of Acid Mine Drainage 
Water treatment for elevated metal levels and acidity is a common outcome of acid mine drainage. The effectiveness and feasibility of water treatment is highly variable depending on the treatments employed and unique site characteristics. Water treatment installations may include both passive and active systems. Passive water treatment systems, typically wetlands, operate without chemical amendments and without motorized or mechanized assistance. In contrast active water treatment systems are highly engineered water treatment facilities commonly employing chemical amendment of acid mine water to achieve a water quality standard specified in a discharge permit. In-depth evaluation of AMD treatment options was not performed as part of this literature review; rather emphasis was placed on prevention of AMD formation. Active treatment systems are operational at the Berkeley Pit, Butte, Montana; Britannia Beach, British Columbia; Iron Mountain Mine, Shasta County, California; and, Idaho Springs/Clear Creek, Colorado. Passive treatment systems are most frequently employed in Appalachian coal mining regions for control of acidic drainage. Semi-passive treatment systems are also in use where alkaline amendments are added to surface water at remote sites such as the Summitville Superfund site, Colorado.
Recommendations for Acidic Drainage Minimization 
Acidic drainage from mines is observed at many mine sites and the undesirable consequences of acidification are well known. Every effort should be employed to minimize the causes of acid generation. Because mineralogy and other factors (particle size, reactivity of NP and presence of oxidizers) that influence AMD formation are highly variable from one mine to another, and among different geologic materials within a proposed mine site, accurate prediction of future acid generation is difficult at best. Predicting the potential for AMD formation is costly, and of questionable reliability (Kuipers et al. 2006). In addition, concern has arisen over the lag time between waste emplacement and observation of an acid drainage problem. With acid generation, there is no general method to predict its long-term duration or to predict when acidic drainage will commence. There are historical, and now modern mining examples of long-term AMD generation requiring active treatment in perpetuity. There are two primary approaches to addressing AMD: circumvent mining sulfide rich ore deposits with high AMD potential, and implementing mitigation measures to limit potential AMD impacts. It is noted that avoiding mining of sulfide ores with the potential to form AMD may be difficult because they are most often associated with the mineral resource of interest.
Selective handling and avoidance of sulfide ore and overburden is a strategy for minimizing the risk of future acid generation (Skousen et al., 1998). In a review of selective handling of acid-forming materials in coal mining in the Eastern U.S., Perry and others (1997) found that selective handling had not eliminated acid formation due in part to the inherent difficulty in segregating benign overburden from acid-forming waste. In some mining operations acid-forming minerals can be avoided through the mine planning process or through using underground mining rather than surface mining.
Mine waste isolation and avoidance of oxidizing conditions can be performed using several methods that keep sulfides isolated from oxygen. Subaqeous disposal of tailings and waste rock below the water table is commonly practiced in Canada as a protocol for mine reclamation (Samad and Yanful, 2004). Paste backfill is a mining methodology for minimization of acid formation by backfilling mine workings using a mixture of mine tailings, Portland cement and other binders to create a waste disposal option that is both geotechnically stable and geochemically non-reactive since sufficient NP can be added to neutralize any future acidity (Benzaazoua, T.B. and B. Bussiere, 2002). Depyritization of tailings can be accomplished to remove sulfide minerals from waste products to create a benign sand fraction suitable to use as a general backfill and a companion low-volume sulfide concentrate requiring careful disposal. Most mine tailings contain small amounts of sulfide minerals that can be readily separated from non-acid forming silicate minerals using conventional mineral processing equipment to create a cleaned material with sufficient NP to ameliorate any future acidity (Benzaazoua, B. et al., 2000).
In many cases, the measures described above are most effective when used in combination and adapted to the situation at a specific site. For the most part, only limited data are available to document the long-term effectiveness of any of these controls. The Kuipers Report (2006) provides a unique view of the failure to predict the formation of AMD at many hardrock mines. There are many research investigations being conducted by university, government, and industrial entities to develop new treatment strategies for AMD. The transfer of laboratory data to site-specific conditions (climate, geology, physical properties of ores, etc.) can be problematic and significantly impact their feasibility and performance in the field.
Thorough baselines studies of the biological, hydrologic, and geochemical conditions characteristic of the unique site are required to provide a basis for long-term monitoring and provide an insight into mechanistic processes involved in AMD evolution (Edwards et al., 2000). Associated financial assurances for resource mitigation in the event of default of a mine property are also required (NRC, 1999) to ensure both short-term and long-term mitigation of AMD and the associated impacts to water quality and fisheries.
Based on review of the acid mine drainage literature it is clear that severe world-wide ecological consequences, especially for aquatic resources, have resulted from mining ore deposits with acid-forming minerals. Accurate prediction of the onset and aggressiveness of low-quality acidic water discharge is perilously difficult using the best available science. Multiple complex geochemical, biological and hydrologic factors create a daunting task for mining engineers to profitably recover mineral resources while preventing discharges of metals and acidity to surface and ground water. The deleterious effects of elevated metals levels and acidity to salmonids are clearly reported in the scientific literature. The inevitability of impacts to fisheries from AMD caused by mining is an open question and dependent on the outcome of complex geochemical reactions and human attempts to understand and mitigate their consequences. The track record of industry is replete with problems, thus little comfort is afforded by extensive pre-mine studies.
Acid mine drainage commonly forms as a result of natural geochemical processes that oxidize metal sulfides exposed at the earth's surface by mining. Oxidation of sulfur and hydrolysis of iron result in acid-sulfate waters which have been observed at thousands of historic mine sites and at operational mines where mitigation measures have failed to prevent the release of acid mine drainage to down-gradient surface waters. Resultant low pH conditions mobilize metals from waste materials resulting in degradation of water quality and impairment of aquatic health. Acid mine drainage and associated weathering products commonly result in physical, chemical and biological impairment of surface water. Pre-mine characterization of the risk of AMD formation is often inaccurate leading to notable post-mine risk to fisheries. Fisheries have been impaired world-wide by releases of AMD from mining areas. The mining industry has spent large amounts of money to prevent, mitigate, control and otherwise stop the release of AMD using the best available technologies, yet AMD remains as one the greatest environmental liabilities associated with mining, especially in pristine environments with economically and ecologically valuable natural resources. Problematic to the long-term operation of large scale metal mines is recognition that no hard rock surface mines exist today that can demonstrate that AMD can be stopped once it occurs on a large scale. Evidence from literature and field observations suggests that permitting large scale surface mining in sulfide-hosted rock with the expectation that no degradation of surface water will result due to acid generation imparts a substantial and unquantifiable risk to water quality and fisheries.
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Marc Beauchamp: Redding's 'Taj Mahal' quietly turns 10


Holy war looming over Iron Mountain

chowty dar - Judge John A. Mendez

Some states chafe at Pentagon control in disasters

By DAVE GRAM (AP) MONTPELIER, Vt. — When squabbling between Louisiana's Democratic governor and the Republican Bush administration delayed some troops getting to New Orleans after Hurricane Katrina, many blamed raw politics.

But nearly five years later, as another calamity — the BP oil spill — grips the Gulf region, questions linger about who's in charge when both state National Guard personnel and federal troops are called to respond to disaster.

Now Vermont Gov. Jim Douglas, chairman of the National Governors Association, has assumed leadership of a panel created by Congress to try to resolve the questions. President Barack Obama asked Douglas and Washington Gov. Christine Gregoire to co-chair the panel known as the Council of Governors, which is set to hold its second meeting with Pentagon officials next month.

US Appeals Court overturns EPA decision on mine

Shaking Things Up in Marcellus: Drilling Company Announces Voluntary Disclosure of Chemicals

Posted on July 20, 2010 | Filed Under: Clean Water , Most Endangered Rivers , Protecting Rivers

Jessie Thomas-Blate
Coordinator, Most Endangered Rivers

You never know what is going to happen next in the Marcellus Shale !  You may recall that we listed the Upper Delaware  and Monongahela  Rivers on our list of America's Most Endangered Rivers ™ this year, due to the threat of natural gas extraction.  One of the actions we are asking for is passage of the FRAC Act , which would require full disclosure of the chemicals used in the hydraulic fracturing process. 

Well, this past Wednesday, Range Resources , one of the companies drilling in the Marcellus, announced that it will voluntarily disclose the chemicals  that it is using at each well site on the internet for the public to see! 

Currently, the industry is divided on whether or not to follow suit.  So far, no one else has made that same commitment.  This move by Range is a big deal because it could change the game that is being played over this chemical disclosure issue.  It is particularly significant because Range, one of the dominant drillers in the area, was the first company to drill and complete a well in the Marcellus Shale in Pennsylvania.

One reason speculated for this decision is that Range is hoping to prove that federal regulation of the natural gas industry is not necessary.  This, of course, leads us back to the FRAC Act, which would additionally repeal the natural gas industry's exemptions from the Safe Drinking Water Act , Clean Water Act , CERCLA , and other laws enacted to protect our health and drinking water supplies.  Basically, it makes the oil and gas industry subject to the same environmental laws as everyone else.  (Why shouldn't they be?)  Passage of the FRAC Act is also important to guarantee that all companies disclose their chemical use so that people know what to look for when trying to determine if their water has been contaminated.

On a related note, I saw the documentary Gasland  this week, and it was great (and also very upsetting)!   I know that the industry has produced a debunking report of the movie.  However, Josh Fox, the Director, has debunked the debunk !  If you have HBO, you should definitely check out Gasland!  Either way, TAKE ACTION !


Crackdown on copper, threat to wildlife and water


Push is on across California to reduce pollution from the toxic metal

By Michael Gardner , U-T SACRAMENTO BUREAU


Sunday, June 13, 2010 at 12:04 a.m.

Drivers and boaters unwittingly threaten endangered fish — and potentially affect drinking-water deliveries in the long term — every time they hit the brakes or brush paint on boat hulls.

The culprit is copper, which even in microscopic amounts can throw off the navigation system that steers migratory fish home to spawn. The metal also interferes with the sense of smell that important species such as salmon use to avoid predators and find food. In Southern California, copper can harm many kinds of fish, shell fish and other species in the food chain.

Regulators, legislators and port managers across California are trying to tackle copper pollution with more environmentally friendly products, proposed laws and cleanup orders, including some being tested in San Diego County. The changes could end up costing residents more every time they buy brakes or repaint their vessels, but momentum is building to move ahead.

“Copper is toxic. It destroys marine life — plants and animals,” said state Sen. Christine Kehoe , D-San Diego. “We must take steps to clean it up.”

Kehoe has drafted legislation, Senate Bill 346, that would replace most of the copper in vehicle brake pads.

Automakers and brake manufacturers say Kehoe's proposal goes too far, too fast because cost-effective alternatives aren't readily available. The legislation will get its first test before an Assembly committee Tuesday. Gov. Arnold Schwarzenegger hasn't taken a stand on the issue.

Washington was the first state to enact legislation to reduce copper in brakes, spurred by the desire to safeguard its salmon fishery. Similar bills are up for consideration in Rhode Island and New York. In Alaska , activists are fighting a mine that they fear will taint the prized wild-salmon waterways of Bristol Bay.

“Fish live in a chemical soup, so it's crucial to their survival that they interpret the chemicals accurately,” said Carol Ann Woody, who has researched the issue in Alaska. “For fish, their sense of smell is like our vision.”

It isn't just fish that are affected.

San Diego County and other parts of the state have endured major cuts to their water supply so more could be diverted to help populations of salmon and smelt rebound. If copper-cutting efforts don't succeed, fishery regulators could demand even more water to boost fish runs.

Copper protects brakes from overheating and controls shuddering when the pedal is applied. Copper dust becomes airborne when drivers use their brakes, and it settles on streets and sidewalks. When rain falls, the particles wash down storm drains and eventually into creeks and bays.

Under Kehoe's measure, vehicle brakes sold in California couldn't have more than 0.5 percent copper by 2025. Brakes in passenger cars generally contain 3 percent to 25 percent copper.

Automakers and brake manufacturers prefer the state of Washington's model, which sets a 5 percent cap by 2021. They want to make sure that the replacement compounds won't create problems for human and environmental health.

“We don't want to come up with an alternative that is worse,” said Charles Territo, a spokesman for a coalition of automakers tracking the legislation.

The brake industry is wary of being boxed into adopting replacements that might not be as effective in meeting federal safety standards for how long it takes to stop a car and control vibrations, said Anne Wilson , a spokeswoman for another industry group, the Motor and Equipment Manufacturers Association.

“We have to have safe products, and that is going to take money and that is going to take time,” Wilson said.

Kehoe said Californians have proved that they will pay a little more to protect the environment, and she doubts the law will inflate prices or pose an insurmountable obstacle for the industry.

In San Diego County, storm-water officials welcome Kehoe's bill because they are under orders by pollution regulators to reduce the amount of dissolved copper in the Chollas Creek watershed by more than 62 percent during the next eight years and by even larger amounts over two decades.

State and federal regulators can impose steep fines if they don't see enough progress toward fulfilling provisions of the U.S. Clean Water Act .

Chollas Creek is one of the most polluted waterways in the region; about 50 percent of the copper in its flow comes from brake dust, according to the San Diego Storm Water Department.

The city's officials and environmentalists agree that it would be cheaper to limit copper in brakes and other products than building water-treatment plants or cleaning up compounds after they have entered storm-water pipes or settled into a riverbed.

“It has been proven time and again that the least expensive way to keep copper out of waterways like Chollas Creek is to stop contamination at the source,” said Stacey Sullivan, policy director of the nonprofit group Sustainable Conservation, which is lobbying for Kehoe's bill.

Two other copper-reduction initiatives are taking shape in San Diego Bay, which has become a laboratory to study ways to reduce copper contamination.

A main source of contamination along marine shores is copper-based hull paint, which kills algae and other organisms when they attach themselves to boats. Boaters use copper-laced paint because even thin layers of algae growth can slow the vessel and boost its fuel consumption.

As the paint sloughs off, copper particles foul the water and the sediment.

The San Diego Regional Water Quality Control Board has set 2022 as the deadline to reduce levels of dissolved copper by 76 percent at Shelter Island Yacht Basin in northern San Diego Bay. It's a tall order because the roughly 2,300 boats docked at Shelter Island marinas are continuously leaching copper. Similar problems have been reported at America's Cup Harbor, Coronado Cays, Glorietta Bay, the Chula Vista Marina and elsewhere.

Officials at the Unified Port of San Diego are studying Shelter Island in the hope of figuring out how many boats have copper-based paint and developing eco-friendly alternatives. They also are seeking a $600,000 state grant to apply noncopper paint to more vessels.

“There are a lot of people looking at us to see how we are going to get the boaters to transition away from copper-based paint,” said Karen Holman, a senior environmental specialist for the port district.

Hornblower Cruises & Events doesn't dock vessels at Shelter Island, but it's voluntarily leading efforts to find copper-free paints for its seven tour boats in San Diego Bay. The initiative involves an unusual test on the hull of the Newport Hornblower: multicolored stripes of nine copper-free paints.

Jim Unger, vice president for Hornblower in San Diego, said it's imperative to test alternatives now. A big concern is cost, which could run 50 percent higher for noncopper paint.

“We could become a good customer if paint companies can move on from their old technology,” Unger said.


TITLE 5 > PART I > CHAPTER 3 > § 301 Miner's Apex Law Application

§ 301. Departmental regulations - Creation by General Mining Law

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

§ 302. Delegation of authority

(a) For the purpose of this section, “agency” has the meaning given it by section 5721 of this title. (b) In addition to the authority to delegate conferred by other law, the head of an agency may delegate to subordinate officials the authority vested in him— (1) by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency; and (2) by section 3702 of title 44 to authorize the publication of advertisements, notices, or proposals.

§ 305. Systematic agency review of operations

(a) For the purpose of this section, “agency” means an Executive agency, but does not include— (1) a Government controlled corporation; (2) the Tennessee Valley Authority; (3) the Virgin Islands Corporation; (4) the Atomic Energy Commission; (5) the Central Intelligence Agency; (6) the Panama Canal Commission; or (7) the National Security Agency, Department of Defense. (b) Under regulations prescribed and administered by the President, each agency shall review systematically the operations of each of its activities, functions, or organization units, on a continuing basis. (c) The purpose of the reviews includes— (1) determining the degree of efficiency and economy in the operation of the agency's activities, functions, or organization units; (2) identifying the units that are outstanding in those respects; and (3) identifying the employees whose personal efforts have caused their units to be outstanding in efficiency and economy of operations.

§ 306. Strategic plans

(a) No later than June 30th, 2010, the head of each agency shall submit to the Director of the Office of Management and Budget and to the Congress a strategic plan for program activities. Such plan shall contain— (1) a comprehensive mission statement covering the major functions and operations of the agency; (2) general goals and objectives, including outcome-related goals and objectives, for the major functions and operations of the agency; (3) a description of how the goals and objectives are to be achieved, including a description of the operational processes, skills and technology, and the human, capital, information, and other resources required to meet those goals and objectives; (4) a description of how the performance goals included in the plan required by section 1115 (a) of title 31 shall be related to the general goals and objectives in the strategic plan; (5) an identification of those key factors external to the agency and beyond its control that could significantly affect the achievement of the general goals and objectives; and (6) a description of the program evaluations used in establishing or revising general goals and objectives, with a schedule for future program evaluations. (b) The strategic plan shall cover a period of not less than five years forward from the fiscal year in which it is submitted. The strategic plan shall be updated and revised at least every three years, except that the strategic plan for the Department of Defense shall be updated and revised at least every four years. (c) The performance plan required by section 1115 of title 31 shall be consistent with the agency's strategic plan. A performance plan may not be submitted for a fiscal year not covered by a current strategic plan under this section. (d) When developing a strategic plan, the agency shall consult with the Congress, and shall solicit and consider the views and suggestions of those entities potentially affected by or interested in such a plan. (e) The functions and activities of this section shall be considered to be inherently Governmental functions. The drafting of strategic plans under this section shall be performed only by Federal employees. (f) For purposes of this section the term “agency” means an Executive agency defined under section 105 , but does not include the Central Intelligence Agency, the Government Accountability Office, the Panama Canal Commission, the United States Postal Service, and the Postal Regulatory Commission.

July 19, 2010 EPA Offers Guidance on Employee Participation In Safety Inspections

The Environmental Protection Agency (EPA) has issued interim guidance it says will provide greater transparency in the agency's chemical safety inspection process. Under the new guidance, EPA inspectors will offer employees and their representatives the opportunity to participate in chemical safety inspections. Also, EPA will require that state and local agencies adopt similar procedures. The regulator believes that close involvement by employees in inspections is an effective way to protect workers and communities.

The guidance pertains to inspections conducted by EPA under its Risk Management Program (RMP). Through it EPA works to reduce risks to surrounding communities that result from the management, use, or storage of hazardous chemicals. Owners and operators of covered facilities must develop a risk management plan, which includes facility plans for prevention and response to chemical accidents.

EPA expects to issue final guidance on employee participation in its RMP later this year. The Agency has provided more information at www.epa.gov/oem/content/rmp/index.htm .



EPA plans next stage of Superfund cleanup: Mine waste efforts now focus on polluted water

June 16--The silver and lead mines that once flourished in Burke Canyon are a distant memory, but a negative aspect of their legacy lives on in the metals that wash down the narrow canyon near Wallace.

Piles of old waste rock -- left over from Burke's boomtown days in the early 1900s -- leach cadmium, lead, arsenic and zinc into Canyon Creek. Decades after the mines closed, parts of the creek remain too toxic for fish.

As the U.S. Environmental Protection Agency charts the next phase of Superfund cleanup in the Coeur d'Alene basin, agency officials are focusing on historic mine waste's role in polluting rivers and streams.

"As water flows through those areas, it's continually exposed to contamination," said Bill Adams, a Superfund program manager.

At a meeting Thursday in Kellogg, EPA officials will discuss plans for improving water quality. The work is part of a proposed expansion of Superfund cleanup that would cost $1.3 billion over the next three decades.

By tackling upstream pollution, the cleanup would improve downstream water quality in Lake Coeur d'Alene, said Anne Dailey, who's also an EPA Superfund manager.

Thursday's meeting will give local residents a taste of what's in the proposal and how they can be involved in the decision-making. A formal 45-day comment period starts in mid-July, with another public meeting scheduled for August.

The plan targets the upper portion of the south fork of the Coeur d'Alene River, where more than 300 old mining sites have been identified, including the Burke Canyon waste rock piles. The plan also looks at ways to keep polluted groundwater from mixing with cleaner surface water and identifies areas where water treatment is needed.

Part of the challenge is the sheer prevalence of mine tailings. Until 1968, waste rock was dumped into the south fork of the Coeur d'Alene River after most of the minerals were removed. Tailings were also used as construction fill. Parts of Interstate 90 are built on waste rock.

EPA wouldn't try to remove tailings from underneath the freeway or buildings, Dailey said. That isn't practical, she said.

The second phase of Superfund cleanup expands on earlier work. Removing polluted soil from residential yards was an early priority to reduce children's risk of lead exposure. Some communities still need yard remediation, and that work will continue, Adams said.

"Human health continues to be our first priority," Daily said.

A settlement with Asarco will help pay for the cleanup. In December, the mining company agreed to pay the federal government $1.8 billion for cleanup of 80 toxic sites across the nation. About $500 million will be spent on Superfund work in the Coeur d'Alene Basin, Dailey said.

----- WASHINGTON BUREAU -- The U.S. Department of Health and Human Services may get the authority to study the idea of regulating long term care insurance products at the federal level.

Biomass power plants wary of EPA carbon accounting

7/18/2010, 9:00 a.m. PDT JEFF BARNARD The Associated Press

(AP) — GRANTS PASS, Ore. - Oregon and other states with lots of trees have been counting on generating more electricity by burning forest thinnings and logging leftovers as a promising future source of green jobs and renewable energy as well as a way to pay for projects to prevent forest fires.

But a rule issued by the Environmental Protection Agency in May has the biomass industry, and more than 60 members of Congress, worried that biomass may lose its long-standing green status, and be lumped in with coal as a greenhouse gas polluter.

The rule focuses on big coal-fired plants and oil refineries in counting up just how much greenhouse gas the country releases into the atmosphere. The agency says it will be considering biomass as the process unfolds.

© 2010 Associated Press. All Rights Reserved.

H.R. 4173: Feds Could Get Jurisdiction Over LTC Insurance 

The conference committee responsible for reconciling the House and Senate versions of H.R. 4173 – the big financial services bill – agreed Tuesday to add an LTC insurance jurisdiction study amendment to Title V of the bill.

In addition to giving HHS the authority to look at whether the federal government should regulate LTC insurance, and, if so, how much the federal government should be involved in regulating the product, the measure would let the House Energy and Commerce Committee get involved in studies of issues related to LTC products.

The amendment was proposed by House Energy and Commerce Committee Chairman Henry Waxman, D-Calif.

The conference committee is continuing to work on H.R. 4173 today, but it is putting off final action on Title V while congressional staffers propose compromises on sections of the title other than the LTC jurisdiction study provision.

The LTC insurance jurisdiction study measure would affect a Title V provision that calls for a proposed Federal Insurance Office to study how the federal government should handle insurance regulation.

Waxman says HHS “is the primary agency with expertise and experience in the area of long term care.”

The FIO and HHS should work together to develop "the best recommendations and advice for the future of these types of products,” Waxman says.

Jack Dolan, a staffer at the American Council of Life Insurers, Washington, says lawmakers seem to be confusing LTC insurance with health insurance.

“The amendment demonstrates the lack of knowledge on the Hill of our products,” Dolan says.

Wednesday, June 16, 2010 10:52 AM ALL POSTS

Energy policy is beyond EPA's mission William O'Keefe CEO, George C. Marshall Institute June 15 THE WASHINGTON POST

William O'Keefe is CEO at the George C. Marshall Institute, a think tank that promotes better use of science in public policy. He is a former COO at the American Petroleum Institute.

Tuesday, July 20, 2010

ARA Reacts To Proposed Pesticide General Permit

July 21, 2010

The Agricultural Retailers Association (ARA) has filed comments in response to the EPA's proposed pesticide general permit (PGP) for aquatic pesticide application.

In the comments, ARA reminded EPA of the interaction between the Clean Water Act (CWA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and that FIFRA was intended to have primacy over pesticide use. ARA commented that agricultural terrestrial applicators would not need to be included in the permit due to application technology, buffers, and the statutory exemptions for agricultural irrigation return flows and stormwater runoff. ARA also suggested that EPA:


On June 2, EPA released its draft National Pollutant Discharge Elimination System (NPDES) permit for point source discharges from the application of pesticides to waters of the U.S. EPA developed the general permit in response to a decision by the Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA). The court vacated EPA's 2006 rule that exempted FIFRA-compliant aquatic pesticide applications from the Clean Water Act requirements. Due to the Sixth Circuit's decision, aquatic pesticide applications will require NPDES permits when the court's mandate takes effect on April 9, 2011.

EPA's draft permit regulates four pesticide use patterns: (1) mosquito and other flying insect pest control, (2) aquatic weed and algae control, (3) aquatic nuisance animal control, and (4) forest canopy pest control.

Terrestrial pesticide applications to control pests on agricultural crops are not included in the draft permit. Any use patterns not covered by this proposed draft permit would need to obtain coverage under an individual permit if they involve pesticide application that result in point source discharges to waters of the U.S.

EPA intends to issue a final general permit by December 2010. Once finalized, the general permit will provide coverage for discharges where EPA is the NPDES-permitting authority: Alaska, New Mexico, Massachusetts, New Hampshire, Oklahoma, and certain areas of Texas. In the other 44 states, the state NPDES authorities will issue the permits.

Senior EPA Analyst: "Government [Agencies] Have Been Sock Puppets for BP In This Cover Up"

I have previously noted that dispersants are being used to cover up the amount of oil spilled, and that they are making the effects of the oil spill worse. I have also pointed out that dispersant Corexit is extremely toxic to people. See this and this .

The senior policy analyst at the EPA's Office of Solid Waste and Emergency Response - and former the EPA ombudsman's chief investigator - agrees , telling Democracy Now today:

Corexit is one of a number of dispersants, that are toxic, that are used to atomize the oil and force it down the water column so that it's invisible to the eye . In this case, these dispersants were used in massive quantities, almost two million gallons so far, to hide the magnitude of the spill and save BP money. And the government—both EPA, NOAA, etc.—have been sock puppets for BP in this cover-up . Now, by hiding the amount of spill, BP is saving hundreds of millions, if not billions, of dollars in fines, and so, from day one, there was tremendous economic incentive to use these dispersants to hide the magnitude of the gusher that's been going on for almost three months.


We have people, wildlife—we have dolphins that are hemorrhaging. People who work near it are hemorrhaging internally. And that's what dispersants are supposed to do. EPA now is taking the position that they really don't know how dangerous it is, even though if you read the label, it tells you how dangerous it is. And, for example, in the Exxon Valdez case, people who worked with dispersants, most of them are dead now. The average death age is around fifty. It's very dangerous, and it's an economic—it's an economic protector of BP, not an environmental protector of the public.


Who saves money by using these toxic dispersants? Well, it's BP. But then the next question—I've only seen one article that describes it— who owns BP? And I think when you look and see who owns BP, you find that it's the majority ownership, a billion shares, is a company called BlackRock that was created, owned and run by a gentleman named Larry Fink. And Vanity Fair just did recently an article about Mr. Fink and his connections with Mr. Geithner, Mr. Summers and others in the administration. So I think what's needed, we now know that there's a cover-up. Dispersants are being used. Congress, at least three Congress folks—Congressman Markey, Congressman Nadler and Senator Mikulski—are on the case. And I think the media now has to follow the money, just as they did in Watergate, and tell the American people who's getting money for poisoning the millions of people in the Gulf.


The sole purpose in the Gulf for dispersants is to keep a cover-up going for BP to try to hide the volume of oil that has been released and save them hundreds of millions, if not billions, of dollars of fines. That's the purpose of using the dispersants, not to protect the public health or environment . Quite the opposite.
I have also previously pointed out the similarities between the government's handling of 9/11 and the oil gusher. Kaufman gives some insight about the parallels:

[Question] You've made comparisons between Corexit, the use of Corexit and hiding BP's liability, and what happened at Ground Zero after the attacks of September 11th, Hugh Kaufman.

[Kaufman] Yeah, I was one of the people who—well, I did. I did the ombudsman investigation on Ground Zero, where EPA made false statements about the safety of the air, which has since, of course, been proven to be false. Consequently, you have the heroes, the workers there, a large percentage of them are sick right now, not even ten years later, and most of them will die early because of respiratory problems, cancer, etc., because of EPA's false statements.

And you've got the same thing going on in the Gulf, EPA administrators saying the same thing, that the air is safe and the water is safe. And the administrator misled Senator Mikulski on that issue in the hearings you talked about. And basically, the problem is dispersants mixed with oil and air pollution. EPA, like in 9/11—I did that investigation nine years ago—was not doing adequate and proper testing. Same thing with OSHA with the workers, they're using mostly BP's contractor. And BP's contractor for doing air testing is the company that's used by companies to prove they don't have a problem.


Censored Gulf news: People bleeding internally, millions poisoned says 'EPA whistleblower'

July 21, 9:44 AM Human Rights Examiner Deborah Dupre'

... \we have dolphins that are hemorrhaging. People who work near it are hemorrhaging internally. And that's what dispersants are supposed to do... Congressman Markey and Nadler, as well as Senator Mikulski, have been heroes... Mark Kaufman, EPA whistleblower, Democracy Now!

Poisoning millions of people

In its report, EPA Whistleblower Accuses Agency of Covering Up Effects of Dispersant in BP Oil Spill Cleanup, Democracy Now! states that "many lawmakers and advocacy groups say the Obama administration is not being candid about the lethal effects of dispersants," so Amy Goodman interviewed Hugh Kaufman, a senior policy analyst at the EPA's Office of Solid Waste and Emergency Response and a leading critic of the decision to use Corexit" who disclosed how the officials are lying about many things related to the catastrophe poisoning "millions of people." (Listen: Real Audio Strea or MP3 Download)

The rushed transcript includes Kaufman saying, "And I think the media now has to follow the money, just as they did in Watergate, and tell the American people who's getting money for poisoning the millions of people in the Gulf. (Emphasis added)

"While concerns over the impact of chemical dispersants continue to grow, Gulf Coast residents are outraged by a recent announcement that the $20 billion government-administered claim fund will subtract money cleanup workers earn by working for the cleanup effort from any future claims.

The "Vessels of Opportunity" program has employed hundreds of Gulf Coast out of work people because of the spill which Kaufman says is viewed as yest another way "to limit the number of lawsuits against BP."

"And the government—both EPA, NOAA, etc.—have been sock puppets for BP in this cover-up . (Emphasis added)

Kaufman concurs with MSNBC's report last week, that "sole purpose in the Gulf for dispersants is to keep a cover-up going for BP to try to hide the volume of oil that has been released and save them hundreds of millions, if not billions, of dollars of fines... not to protect the public health or environment. Quite the opposite.."

He says to follow the money, and that leads to individuals in the Obama Administration, naming Mr. Geithner, Mr. Summers with close ties to Larry Fink who owns BlackRock that owns most BP shares.

He commented on the children being poisoned:

"...you know, when you're on the sand with your children and they dig, and there's a little water?—they documented there was over 200 parts per million of oil waste in the water, and it's not noticeable to the human eye...  On top of it, the contamination in one of the samples was so high that when they put the solvent in, as a first step in identifying how much oil may be in the water, the thing blew up, just as he said, probably because there was too much Corexit in that particular sample."

When Goodman asked Kaufman to comment on the similarities between the Ground Zero of the Gulf catastrophe and what happened at Ground Zero of 911, he explained that he did the ombudsman investigation on Ground Zero, "where EPA made false statements about the safety of the air" ... since proven to be false.

Red herring: No more tests needed. Corexit known to be dangerous.

" The largest ingredient in Corexit is oil. But there are other materials. And when the ingredients are mixed with oil, the combination of Corexit or any dispersant and oil is more toxic than the oil itself. But EPA has all that information.

"That's a red herring issue being raised, that we have to somehow know more information. When you look at the label and you look at the toxicity sheets that come with it, the public knows enough to know that it's very dangerous. The National Academy of Science has done work on it. Toxicologists from Exxon that developed it have published on it.

"So, we know enough to know that it's very dangerous, and to say that we just have to know more about it is a red herring issue. We know plenty. It's very dangerous."

"[T]he media now has to follow the money, just as they did in Watergate, and tell the American people who's getting money for poisoning the millions of people in the Gulf."

No mention was made by the whistleblower about military involvement in this operation, nor that the DoD has been in bed with EPA, testing disperants on unwitting individuals and large populations for decades.

With all eyes on big bad BP, could it be the real red herring?

Climate policy is energy policy and that is beyond EPA's mission and competence.

Government agencies have a hard enough time with their assigned missions without attempting to perform ones that are beyond their expertise and competence.

EPA knows, as does Congress, that the Clean Air Act was never intended to cover regulation of CO2. The Act's legislative history and the 1990 reauthorization makes that abundantly clear. The Supreme Court made a bad decision in imputing authority that explicitly was never granted. Furthermore, it did not say that EPA must regulate; only that it had the authority to do so.

The first thing that Congress should now do is to make its intent clear by legislative action, either by passing Senator Rockefeller's proposal or using the appropriations process to deny EPA funds to regulate CO2. Then, it should abandon the flawed efforts built on cap and trade. No serious and objective analysis shows cap and trade is an effective mechanism. It is one that will harm the economy, harm consumers and make traders and those who can game the system rich.

The climate change risk is a long-term challenge that will be best addressed by technology--faster deployment of current technology and incentives to speed the development of new technology. Congress should focus on actions that bring about those two objectives cost-effectively in concert with actions to promote strong economic growth.

The best and most honest action that Congress can take is a simple, straightforward carbon tax with the proceeds returned to taxpayers through the reduction in a more distorting tax like the payroll tax.

federal government is inappropriate, improper & inadequate

§ 801. Congressional review

(a)(1)(A) Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing -

(i) a copy of the rule;

(ii) a concise general statement relating to the rule, including whether it is a major rule; and

(iii) the proposed effective date of the rule.

(B) On the date of the submission of the report under subparagraph (A), the Federal agency promulgating the rule shall submit to the Comptroller General and make available to each House of Congress -

(i) a complete copy of the cost-benefit analysis of the rule, if any;

(ii) the agency's actions relevant to sections 603, 604, 605, 607, and 609;

(iii) the agency's actions relevant to sections 202, 203, 204, and 205 of the Unfunded Mandates Reform Act of 1995; and

(iv) any other relevant information or requirements under any other Act and any relevant Executive orders.

(C) Upon receipt of a report submitted under subparagraph (A), each House shall provide copies of the report to the chairman and ranking member of each standing committee with jurisdiction under the rules of the House of Representatives or the Senate to report a bill to amend the provision of law under which the rule is issued.

(2)(A) The Comptroller General shall provide a report on each major rule to the committees of jurisdiction in each House of the Congress by the end of 15 calendar days after the submission or publication date as provided in section 802(b)(2). The report of the Comptroller General shall include an assessment of the agency's compliance with procedural steps required by paragraph (1)(B).

(B) Federal agencies shall cooperate with the Comptroller General by providing information relevant to the Comptroller General's report under subparagraph (A).

(3) A major rule relating to a report submitted under paragraph (1) shall take effect on the latest of-

(A) the later of the date occurring 60 days after the date on which -

(i) the Congress receives the report submitted under paragraph (1); or

(ii) the rule is published in the Federal Register, if so published;

(B) if the Congress passes a joint resolution of disapproval described in section 802 relating to the rule, and the President signs a veto of such resolution, the earlier date -

(i) on which either House of Congress votes and fails to override the veto of the President; or

(ii) occurring 30 session days after the date on which the Congress received the veto and objections of the President; or

(C) the date the rule would have otherwise taken effect, if not for this section (unless a joint resolution of disapproval under section 802 is enacted).

(4) Except for a major rule, a rule shall take effect as otherwise provided by law after submission to Congress under paragraph (1).

(5) Notwithstanding paragraph (3), the effective date of a rule shall not be delayed by operation of this chapter beyond the date on which either House of Congress votes to reject a joint resolution of disapproval under section 802.

(b)(1) A rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval, described under section 802, of the rule.

(2) A rule that does not take effect (or does not continue) under paragraph (1) may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.

(c)(1) Notwithstanding any other provision of this section (except subject to paragraph (3)), a rule that would not take effect by reason of subsection (a)(3) may take effect, if the President makes a determination under paragraph (2) and submits written notice of such determination to the Congress.

(2) Paragraph (1) applies to a determination made by the President by Executive order that the rule should take effect because such rule is -

(A) necessary because of an imminent threat to health or safety or other emergency;

(B) necessary for the enforcement of criminal laws;

(C) necessary for national security; or

(D) issued pursuant to any statute implementing an international trade agreement.

(3) An exercise by the President of the authority under this subsection shall have no effect on the procedures under section 802 or the effect of a joint resolution of disapproval under this section.

(d)(1) In addition to the opportunity for review otherwise provided under this chapter, in the case of any rule for which a report was submitted in accordance with subsection (a)(1)(A) during the period beginning on the date occurring -

(A) in the case of the Senate, 60 session days, or

(B) in the case of the House of Representatives, 60 legislative days, before the date the Congress adjourns a session of Congress through the date on which the same or succeeding Congress first convenes its next session, section 802 shall apply to such rule in the succeeding session of Congress.

(2)(A) In applying section 802 for purposes of such additional review, a rule described under paragraph (1) shall be treated as though -

(i) such rule were published in the Federal Register (as a rule that shall take effect) on -

(I) in the case of the Senate, the 15th session day, or

(II) in the case of the House of Representatives, the 15th legislative day, after the succeeding session of Congress first convenes; and

(ii) a report on such rule were submitted to Congress under subsection (a)(1) on such date.

(B) Nothing in this paragraph shall be construed to affect the requirement under subsection (a)(1) that a report shall be submitted to Congress before a rule can take effect.

(3) A rule described under paragraph (1) shall take effect as otherwise provided by law (including other subsections of this section).

(e)(1) For purposes of this subsection, section 802 shall also apply to any major rule promulgated between March 1, 1996, and the date of the enactment of this chapter.

(2) In applying section 802 for purposes of Congressional review, a rule described under paragraph (1) shall be treated as though -

(A) such rule were published in the Federal Register on the date of enactment of this chapter; and

(B) a report on such rule were submitted to Congress under subsection (a)(1) on such date.

(3) The effectiveness of a rule described under paragraph (1) shall be as otherwise provided by law, unless the rule is made of no force or effect under section 802.

(f) Any rule that takes effect and later is made of no force or effect by enactment of a joint resolution under section 802 shall be treated as though such rule had never taken effect.

(g) If the Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency may infer any intent of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval.


Wednesday, June 16, 2010

"Vicious Spies and Killers under the Mask of Academic Physicians" (Pravda 1-13-53)

This January 1953 cartoon from the Soviet humor magazine Krokodil (Crocodile) shows a doctor being unmasked as a poisoner of the Soviet political and military leadership. Money from foreign intelligence agencies is falling out of the doctor's pocket.

Today global warming denialists are spreading paranoid conspiracy theories about "dishonest" climate scientists fabricating their scientific research in order to take over the world. The denialists call global warming a "hoax," but really the denialists are spreading the hoax. The denialists can't back up their claims with peer-reviewed research, so they mischaracterize what climate scientists write and point out small errors. The denialists accuse the scientists of being greedy for government funds, but the denialists get money from the fossil fuel companies. Some denialists even stole emails from the Climatic Research Unit at the University of East Anglia, posted the emails on the Internet, and mischaracterized what the emails said. Denialists call the climate scientists "extremists," but really the denialists are the extremists.

The denialist conspiracy theories are spread by Pravda , Russia Today , Fox News , Senator James Inhofe, Inhofe's former aid Marc Morano, Putin's former Advisor Andrei Illarionov (on the Libertarian CATO Institute site), Lord Monckton (on the Science and Public Policy site), The Heartland Institute, Virginia's Attorney General Ken Cuccinelli, some 9-11 Truth Movement sites, and elsewhere on blogs and in the media.

The vast conspiracies that people like Senator Inhofe, Marc Morano, Lord Monckton, Attorney General Cuccinelli, Andrei Illarionov, and their meretricious fossil fuel sponsors have supposedly nosed out are evidently led by the U.S. Academy of Science, the CIA, the Pentagon, fifteen agencies of the U.S. government, the United Nations, and the Vatican. Actually, these organizations are all trying to prepare our people for the consequences of global warming, and they need our help.

I believe the climate scientists, not these paid mouthpieces who posted stolen emails on a Russian server. I have seen that the denialists mischaracterize and falsify the research of the climate scientists. In other words, the denialists don't quote what the scientists actually say honestly. They don't debate honestly. They have lied to me.

The denialists' paranoid conspiracy theories about the plots of climate scientists reminds me of the anti-Semitic conspiracy theories in that infamous fabrication, The Protocols of the Elders of Zion. This literary hoax is about Jews plotting to take over the world. The denialists' conspiracy theories also remind me of a number of past attacks on science and scientists that have been mounted by the Soviet government.

Today, I am going to post a link to an article that appeared in Pravda on January 13, 1953 during Stalin's rule. This article is the beginning of the infamous "Doctors' Plot." According to this conspiracy theory, "killer doctors" (Jews) "dishonored the holy banner of science" by using their scientific expertise in an attempt to exterminate the Soviet leadership. People now laugh at this propaganda, but it is not so different than the attacks being made on our climate scientists today.

The infamous Pravda article is titled "Vicious Spies and Killers under the Mask of Academic Physicians" (1-13-53) .

When I read what the global warming denialists write about our great scientists, it reminds me of this Pravda article. I am not going to let dishonest denialists persecute and intimidate our scientists. We need our scientists to be free to concentrate on their research so we will know how to prepare for global warming and how to mitigate its consequences.

Senators load financial overhaul with irrelevancies

AIG's problems far greater than Bush officials told public

WASHINGTON — At the peak of the 2008 financial crisis, then-Treasury Secretary Henry Paulson and top Federal Reserve officials told the nation that there was an urgent need for the government to lend $85 billion to the American International Group so the giant insurer's temporary cash squeeze wouldn't trigger global financial chaos.

Nearly two years later, taxpayers are on the hook for twice that amount, and it now appears that Paulson and senior Federal Reserve officials either plunged ahead without understanding AIG's financial situation and the risks it posed to taxpayers — or were less than candid about one of the largest corporate bailouts in U.S. history.


Law and Order: AIG

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

June 8, 2010

Corporate Dissolution Laws Trump CERCLA Liability

By Linda Larson

An old adage goes something like this: “There are only three things that are certain: death, taxes and CERCLA liability.” But perhaps not (at least as to CERCLA liability), according to the Second Circuit. In Marsh v. Rosenbloom, (“Marsh”) the Second Circuit recently held that once a corporation has closed its doors, dissolved and distributed any remaining assets to the shareholders, the CERCLA liability of its former shareholders is extinguished. The case arose in a cost recovery action filed by New York State against a dissolved corporation and its shareholders more than three years after the wind-up period established by Delaware's corporate dissolution statute. The case examined the tensions between CERCLA and the Delaware General Corporate Law. But because many states have corporate dissolution provisions similar to Delaware's and in light of the sheer number of businesses that are incorporated in Delaware, the case may well have broad application nationwide.

California Health and Safety Code Section 25548
The California legislature, like Congress, took action in
1996 and enacted California Health and Safety Code section
25548–the California law analogous to CERCLA section
107(n). The stated intent of section 25548 is “to specify the
type of lender and fiduciary conduct that will not incur liability
for hazardous material contamination.” As such, section 25548
provides exemptions and limitations to potential fiduciary
liability under the environmental laws. Thus, section 25548

residually identifies the universe of potential liability for
fiduciaries. Specifically, section 25548 addresses the exceptions
to and limitations on “the liability of trustees, executors, and
other fiduciaries for hazardous material contamination involving
property that is part of the fiduciary estate.”
Section 25548.3 eliminates personal liability for fiduciaries by
confining their potential liability to the estate assets. The
caveats come in section 25548.5, which makes it clear that
fiduciaries do not have blanket immunity from liability under the
environmental laws.63 The protection of the limitation of liability
in section 25548.3 will not apply where (1) that liability results
from the fiduciary’s negligence or recklessness; (2) the fiduciary
conducts a removal or remedial action without providing proper
notice to the appropriate agency; (3) the potential liability
results from acts outside the scope of the fiduciary duties; (4)
the fiduciary relationship is fraudulent in that its raison d’être is
to avoid liability; or (5) the fiduciary is also a beneficiary, or
benefits from acting as fiduciary, in a manner over and above
that considered customary or reasonable for a fiduciary.

see also
United States v. Newmont USA Ltd., 504 F. Supp. 2d 1050, 1061–69 (E.D. Wash.
2007) (concluding, without actually adopting the “indicia of ownership” test in Long
Beach Unified Sch. Dist. v. Dorothy B. Godwin Cal. Living Trust, 32 F.3d 1364 (9th
Cir. 1994), that the United States held sufficient indicia of ownership in an Indian
reservation to be held an “owner” under CERCLA);

1. The defendant acquired title to the property subsequent to
the disposal or placement of the hazardous substance.
2. The defendant acquired title to the property through
inheritance or bequest.
3. The defendant “provides full cooperation, assistance, and
facility access to the persons that are authorized to conduct
response actions at the facility (including the cooperation
and access necessary for the installation, integrity,
operation, and maintenance of any complete or partial
response action at the facility).”
4. The defendant “is in compliance with any land use
restrictions established or relied on in connection with the
response action at a facility.”
5. The defendant “does not impede the effectiveness or
integrity of any institutional control employed at the facility
in connection with a response action.”

With respect to beneficiary ownership for CERCLA
purposes, creation of an express trust in California historically
vested full title of trust property in the trustee or trustees. The
California legislature repealed this statute in 1986, so the
modern rule may now apply. The modern rule holds that creation
of a trust divides title such that the trustee or trustees take legal
title, and the beneficiary or beneficiaries take equitable title.
For purposes of evaluating the potential CERCLA liability of a
trust beneficiary based on his or her status as owner, the initial
question is whether the equitable interest held by trust
beneficiaries is sufficient to support liability.

With respect to whether title was acquired via inheritance or
bequest, CERCLA defines neither “inheritance” nor
“bequest.” CERCLA case law also provides no clear rules or
definitions for what exactly constitutes an inheritance or
bequest. Reasoning from the dictionary definitions of
“inheritance,” “bequest,” and “devise,” property taken through
testamentary trusts or intestate succession would likely
constitute inherited or bequeathed property, as the property
interest transfers upon the death of the prior owner. No
federal court opinions addressing this issue of whether inter
vivos trusts or lifetime gifts constitute an inheritance or bequest
for purposes of the inheritance or bequest defense exist. The
only authority on point is Tamposi Family Investments, an
opinion of the Environmental Protection Agency Appeals Board.
In Tamposi, the Appeals Board rejected petitioner’s argument
that a gift from a father to a real estate investment partnership,
in which his children were the exclusive partners, should qualify
for the inheritance or bequest defense. Citing Black’s Law
Dictionary definitions for “inheritance,” “bequest,” and
“devise,” the Appeals Board found that the text of CERCLA

indicated that the inheritance or bequest defense was
inapplicable to inter vivos transfers, as the defense only applied
to transfers occurring upon death of the prior owner. Since it
is the sole authority on point and an analysis of CERCLA by an
arm of the EPA itself, courts considering the issue in the future
will likely find Tamposi highly persuasive and may defer to the
agency’s interpretation. Thus, the best option for settlors
wishing to protect beneficiaries from CERCLA liability during
the lifetime of the settlor is to use testamentary trusts and
devises in wills to transfer interests in impacted property. They
should then provide bequests to beneficiaries that may enjoy
limited liability status due to the form of business (such as an
LLC not comprised of beneficiary members). Combining these
steps with thoughtful timing of sales or distributions to occur
after cleanup, or in an otherwise protective manner, are also
optional protective measures. However, there is currently no
authority as to what structures will be effective. The most
important fact for beneficiaries to keep in mind is that the estate,
and therefore any property in trust, will always be fully liable if
the settlor was personally liable. The question is how to avoid or
minimize the personal liability of the beneficiaries. This
approach is entirely consistent with the settlor’s intent and legal
status: the settlor owned the property, the settlor was personally
liable, and the settlor intended to give the beneficiary what he
possessed during his life. 129 Id.
Although extremely persuasive, the decision is not a perfect interpretation of
CERCLA. Tamposi’s primary flaw is on the issue of inquiry. The Appeals Board
cites to the congressional comments on CERCLA as support for the contention that
individuals who take impacted property by inheritance or bequest must still conduct
“reasonable inquiry” into the contamination, even if they have no knowledge of the
inheritance or bequest. Id. at 125. Perhaps this was the intent of certain individual
members of Congress, but this failed to make its way into the text of the statue.
Nevertheless, the presence of this language in Tamposi raises the possibility that
some level of inquiry, albeit a very low level, will be required of owners who take
title by inheritance or bequest.
Potential beneficiaries may be able to disclaim property placed in trust for
their benefit. See, e.g., CAL. PROB. CODE § 15309 (West 2002) (“A disclaimer or
renunciation by a beneficiary of all or part of his or her interest under a trust shall
not be considered a transfer under Section 15300 or 15301.”). While an enticing
theoretical solution, practically this is not a good option where the property value
exceeds, or will exceed, the cost of remediation.

The California Code of Regulations addresses taxation rules
for changes in ownership in title 18, section 462. Section 462.160
pertains to trusts. Subsection (a) of section 462.160 provides the
general rule that transfer of real property interests into trusts, by
the settlor or anyone else, is a change in ownership; subsection
(b) provides instances excluded from this rule. Subsection (c)
provides the general rule that termination of a trust or any
portion of a trust, constitutes a change in ownership, and
subsection (d) provides the exceptions to this second general
rule. These rules for exclusions and exceptions–for example,
those transfers of interests that do not constitute changes in
ownership–are complex and are therefore presented in the
Appendix in tabular form in an attempt to simplify
comparisons. While untested in the courts, would-be settlors
and/or beneficiaries may be able to use these rules as a guide for
selecting trusts that will make CERCLA owner liability for the
beneficiaries less likely, or at least delay such potential liability
until such time as the property may be transferred with less or no risk.

Given the foregoing, it appears that the best overall strategy is
to anticipate transfers in property, to attempt to structure such
transfers to fall within the statutory defenses, and to preserve
and pursue rights against other potentially responsible parties.

Pre-Proposal Rules without a Scheduled Proposal Date : Other waste-related rules that have been announced by U.S. EPA but that are not yet proposed and do not have a scheduled proposal date include: (1) episodic generation rulemaking; (2) streamlining laboratory waste management in government research laboratories; (3) standards for the safe and environmentally protective placement of coal combustion residues as minefill in coal mines not regulated under the Surface Mining Control and Reclamation Act; (4) revisions to land disposal restrictions treatment standards and changes to recycling requirements for spent petroleum refining hydrotreating and hydrorefining catalysts; (5) revisions to RCRA Subtitle C financial test criteria; (6) revisions to reportable quantity values for F- and K-wastes under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); and (7) RCRA smarter waste reporting. 

(4)     Revisions to LDR Treatment Standards and Recycling Requirements for Petroleum Refining : Regarding the revisions to the land disposal restrictions, U.S. EPA is considering amending the treatment requirements for spent petroleum hydrorefining catalyst, Hazardous Waste Code K172, and p etroleum refinery primary oil/water/solids separation sludge s, Hazardous Waste Code F037. U.S. EPA is also considering a proposal to “encourage consistent levels of recycling” of spent petroleum hydrotreating and hydrorefining catalysts, Hazardous Waste Codes K171 and K172, respectively.

(7)     RCRA Biennial Reports : The “RCRA smarter waste reporting” is intended to decrease the regulatory burden on generators completing the RCRA Biennial Report by eliminating the form for waste shipped offsite.  Instead, U.S. EPA is proposing to: (1) substitute data from the e-Manifest system once legislation is enacted and the system is developed and operational; (2) present an option for facilities with static hazardous waste generation to report less frequently; and (3) improve the information the Agency receives from companies who manage their waste onsite.

EPA Overreach

by Iain Murray June 15, 2010

Conductivity: an inappropriate measure of water quality, says NMA

IM's June article on water management is at deadline for editorial contributions and here we note an interesting opinion from America's National Mining Association. The Environmental Protection Agency (EPA) recently issued guidance on water quality requirements for coal mines in Appalachia. The guidance relies solely on electric conductivity (also known as specific conductance) as an indicator of water quality impairment. The guidance establishes a range of between 300-500 microSiemens (a measure of conductivity) as triggering close scrutiny by EPA of the permit application and anything approaching or beyond 500 microSiemens as cause for EPA to deny a Clean Water Act (CWA) permit. These permits are required to operate coal mines and to conduct mine land reclamation in the region. EPA's guidance establishes a de facto water quality standard that interferes with the states' statutory authority to set water quality standards and issue permits. Implementation of the conductivity limit also will make EPA the final decision-maker on permits issued by the US Army Corps of Engineers and the Office of Surface Mining (OSM). The guidance is now open to public comment, but EPA has yet to make the underlying data available for outside peer review or public scrutiny.

Two questions arise from EPA's guidance:
Is conductivity an appropriate measure of water quality impairment? Are the conductivity levels set by EPA defensible or achievable?

The answer to both questions is -no.

Conductivity is a measure of a given quantity of water to conduct electricity at a specified temperature. It is predicated upon the presence of dissolved solids, which conduct an electrical charge. It is not a meaningful measure of contamination or the ability of a given body of water to meet its designated use.

Conductivity has generally been used in the field as a first screen for water quality. Elevated conductivity levels indicate that further analysis should be done to determine the specific water chemistry, i.e. the makeup of the specific dissolved particles in the water, and whether those particles occur in amounts that are demonstrated to impair aquatic life specific to that stream. The EPA guidance eliminates this vital step-an approach that is scientifically and legally deficient.

Non-Settling Potentially Responsible Party May Intervene in CERCLA Action

June 2, 2010 12:18 PM | No TrackBacks

US v. APW N. Am., No. 08-55996 , involved an appeal from the denial of a motion to intervene in an action filed by the EPA under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The court of appeals reversed, holding that, under CERCLA, a non-settling potentially responsible party (PRP) may intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP.

U.S. Supreme Court upholds Kern County ban on L.A. sewage sludge

Global Warming, the EPA, and Good Ideas Gone Bad

June 21, 4:09 PM Boston Environmental Policy Examiner Thomas Richard

The other day I was having a conversation with a friend, whom I'll brand a climate change on-the-fencer, about the EPA's latest foray into politics. I mentioned to him that when the EPA gets involved in directing social policy to repay their party's benefactors, in this case the Democrats, problems invariably ensue.

Originally created by President Richard Nixon in 1970 with the best of intentions, the EPA was an overly drastic response to the loud, still-fledgling environmental movement. Concern over our water and air was artificially inflated by the release of Rachel Carson's Silent Spring in the early '60s, a scathing, poorly researched book about the detrimental effects of pesticides, specifically DDT. In a nutshell, Carson's book claimed DDT was responsible for "harming and killing not only birds and animals, but also humans." This despite study after study showed the exact opposite.

After the EPA banned DDT in 1972 using the most spurious of science, the World Health Organization (WHO) followed suit and malaria made a roaring comeback in Africa, having almost been eliminated by the use of this pesticide. Since DDT was banned, it has been estimated that 40 million people have died from malaria. Only recently has the WHO reinstated its use in limited circumstances.

Another example of the EPA driving social policy is second-hand smoke. While non-smokers don't particularly care for a cigarette's malodorous aroma, the EPA once again used its powers to manipulate the science toward "better" community policy. As the late Michael Crichton, a medical doctor and famed writer, said in one of his numerous speeches on junk science, the science supporting the bans of second-hand smoke was openly fraudulent science:

In 1993, the EPA announced that second-hand smoke was "responsible for approximately 3,000 lung cancer deaths each year in non-smoking adults," and that it "impairs the respiratory health of hundreds of thousands of people." In a 1994 pamphlet the EPA said that the eleven studies it based its decision on were not by themselves conclusive, and that they collectively assigned second-hand smoke a risk factor of 1.19. (For reference, a risk factor below 3.0 is too small for action by the EPA, or for publication in the New England Journal of Medicine, for example.) Furthermore, since there was no statistical association at the 95% confidence limits, the EPA lowered the limit to 90%. They then classified second-hand smoke as a Group A Carcinogen.

This was openly fraudulent science, but it formed the basis for bans on smoking in restaurants, offices, and airports. California banned public smoking in 1995. Soon, no claim was too extreme. By 1998, the Christian Science Monitor was saying that "Second-hand smoke is the nation's third-leading preventable cause of death." The American Cancer Society announced that 53,000 people died each year of second-hand smoke. The evidence for this claim is non-existent.

In 1998, a Federal judge held that the EPA had acted improperly, had "committed to a conclusion before research had begun", and had "disregarded information and made findings on selective information." The reaction of Carol Browner, head of the EPA then, was: "We stand by our science….there's wide agreement. The American people certainly recognize that exposure to second-hand smoke brings…a whole host of health problems." Again, note how the claim of consensus trumps science. In this case, it isn't even a consensus of scientists that Browner evokes! It's the consensus of the American people.

Meanwhile, ever-larger studies failed to confirm any association. A large, seven-country WHO study in 1998 found no association. Nor have well-controlled subsequent studies, to my knowledge. Yet we now read, for example, that second-hand smoke is a cause of breast cancer. At this point you can say pretty much anything you want about second-hand smoke.

As with nuclear winter, bad science is used to promote what most people would consider good policy. I certainly think it is. I don't want people smoking around me. So who will speak out against banning second-hand smoke? Nobody, and if you do, you'll be branded a shill of RJ Reynolds. A big tobacco flunky. But the truth is that we now have a social policy supported by the grossest of superstitions. And we've given the EPA a bad lesson in how to behave in the future. We've told them that cheating is the way to succeed.

Note who was in charge when the EPA made these determinations: Carol Browner. The same Carol Browner who is now Obama's climate change czar. To hear her speak about global warming is like listening to the same rationalizations she used with second-hand smoke. "We stand by our science. There's wide agreement."

Not only is this history repeating itself, but Browner has handed off the duplicitous bayonet to Lisa Jackson, the EPA's current head. Not only is Jackson using the same unscrupulous playbook, she is adding new chapters in her attempts to regulate carbon dioxide (CO2).

This is not how a scientific organization works. But when a scientist is appointed by a politician, he or she is beholden to that party's pet peeves. In this case, crippling the U.S. economy through cap and tax schemes while China and India continue to spew as much CO2 as their countries deem necessary. These countries don't operate under a dome. Their CO2 expirations are worldwide.

And if CO2 does indeed cause global warming as the EPA would have us believe, it's contribution is so minuscule on a planetary scale that they have only consensus to fall back on. Just like DDT, second-hand smoke, and a host of other causes du jour, the EPA has shown us something that we can all agree on: it is a bureaucracy that has outlived its original purpose and should be dismantled and replaced with a truly scientific organization.

EPA Delays Enforcing Lead-Paint Rule

June 21, 2010 — U.S. Sen. Jim Inhofe declared victory in his months-long effort to provide relief to home renovators and others still scrambling to meet a federal agency's certification rules on lead-paint removal, reports Tulsa World .

"I am very happy right now,'' the Oklahoma Republican said. "We won.''

Inhofe based his comments on a memo apparently from the U.S. Environmental Protection Agency (EPA) delaying enforcement of its own rule targeting work on homes built before 1978, according to the article.

"Since the RRP (Renovation, Repair, and Painting) Rule became effective on April 22, 2010, concerns have been raised by the regulated community regarding difficulties experienced in obtaining the rule required firm certification and renovation worker training,'' Assistant Administrator Cynthia Giles states in the memo provided by Senate staff.

Giles explained that the agency will not take enforcement action for violations of the certification rule until Oct. 1.

Enforcement, she writes, also will be put off for renovation workers who have applied or enrolled in a class by Sept. 30 and who complete that training by Dec. 31, according to Tulsa World .

"In view of the paramount importance of ensuring that all contractors follow the lead-safe work practices in the RRP rule, EPA will continue to enforce the work practice requirements in the rule, which protect children and reduce lead exposure,'' the memo states.

EPA's rule had its beginning several years ago.

Still, Inhofe and others believe EPA botched its implementation, specifically by not ensuring there would be enough classes for renovators and others who work on older homes to become certified, reports the article.

Fines for not complying could be as high as $37,500 per day, states Tulsa World .

In May, the U.S. Senate, in a bipartisan vote, passed legislation to block the fines temporarily, reports the article.

"I am pleased that the EPA listened to the clear bipartisan message sent by the Senate that the implementation of the lead-based paint rule was a disaster,'' said Inhofe, the top Republican on the Senate Environment and Public Works Committee.

"EPA has finally recognized the extreme difficulty in obtaining firm certification and worker renovation training.''

Sen. Susan Collins, R-Maine, who sponsored the May legislation, said efforts to rid lead-based paint from homes must continue, according to the article.

"Maine children are at particularly high risk for lead poisoning because more than 60 percent of our state's homes were built before lead-based paint was banned in 1978,'' Collins said.

"I appreciate that the EPA recognizes that it must boost the number of certified trainers in each state and that small contractors need more time to comply with EPA's rule.''

EPA's memo represents an about face, and the agency appeared to have been caught flatfooted by the senators' announcement, according to Tulsa World .

Inhofe believes the agency agreed to the delay in enforcement after it became clear Congress would continue using its leverage on the matter, reports the article.

EPA delays enforcing lead-paint removal rule

by: JIM MYERS World Washington Bureau
Saturday, June 19, 2010
6/19/2010 5:55:26 AM

WASHINGTON — U.S. Sen. Jim Inhofe declared victory Friday in his months-long effort to provide relief to home renovators and others still scrambling to meet a federal agency's certification rules on lead-paint removal.

"I am very happy right now,'' the Oklahoma Republican said. "We won.''

Inhofe based his comments on a memo apparently from the U.S. Environmental Protection Agency delaying enforcement of its own rule targeting work on homes built before 1978.

"Since the RRP (Renovation, Repair and Painting) Rule became effective on April 22, 2010, concerns have been raised by the regulated community regarding difficulties experienced in obtaining the rule required firm certification and renovation worker training,'' Assistant Administrator Cynthia Giles states in the memo provided by Senate staff.

Giles explained that the agency will not take enforcement action for violations of the certification rule until Oct. 1.

Enforcement, she writes, also will be put off for renovation workers who have applied or enrolled in a class by Sept. 30 and who complete that training by Dec. 31.

"In view of the paramount importance of ensuring that all contractors follow the lead-safe work practices in the RRP rule, EPA will continue to enforce the work practice requirements in the rule, which protect children and reduce lead exposure,'' the memo states.

EPA's rule had its beginning several years ago.

Still, Inhofe and others believe EPA botched its implementation, specifically by not ensuring there would be enough classes for renovators and others who work on older homes to become certified.

Fines for not complying could be as high as $37,500 per day.

In May, the U.S. Senate, in a bipartisan vote, passed legislation to block the fines temporarily.

"I am pleased that the EPA listened to the clear bipartisan message sent by the Senate that the implementation of the lead-based paint rule was a disaster,'' said Inhofe, the top Republican on the Senate Environment and Public Works Committee.

"EPA has finally recognized the extreme difficulty in obtaining firm certification and worker renovation training.''

Sen. Susan Collins, R-Maine, who sponsored the May legislation, said efforts to rid lead-based paint from homes must continue.

"Maine children are at particularly high risk for lead poisoning because more than 60 percent of our state's homes were built before lead-based paint was banned in 1978,'' Collins said.

"I appreciate that the EPA recognizes that it must boost the number of certified trainers in each state and that small contractors need more time to comply with EPA's rule.''

EPA's memo represents an about face, and the agency appeared to have been caught flatfooted by the senators' announcement.

It could not provide a comment or respond to questions.

In earlier comments, the agency had stressed the dangers of lead, the number of American children still poisoned by lead-based paint, as well as the timeline for developing the rule and implementing it.

Inhofe believes the agency agreed to the delay in enforcement after it became clear Congress would continue using its leverage on the matter.

CERCLA - PRPs Not Party to a Settlement Can Still Intervene in Settlement Approval

Authored By: James P. Ryan

Following the Eighth and Tenth Circuits, the United States Court of Appeals for the Ninth Circuit recently ruled that non-settling potentially responsible parties (PRPs) can be heard on the fairness of a settlement reached by other PRPs of claims brought by the government pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  In U.S. v. Aerojet General Corp. , No. 08-55996 (9th Cir. June 2, 2010), the Ninth Circuit, relying upon section 113(i) of CERCLA and Federal Rule of Civil Procedure 24(a)(2), held that non-settling PRPs have a right to intervene in actions filed seeking court approval of consent decrees. 

The action involved a CERCLA (or Superfund) site in California, in which a group of PRPs entered into a consent decree with the U.S. Environmental Protection Agency (EPA) to reimburse past costs in connection with activities undertaken by the EPA at the site and for implementation of the remedy prescribed in an Interim Record of Decision.  The EPA filed a "friendly" suit against the settling PRPs as a means to lodge a proposed consent decree that incorporated the settlement agreement.  Once approved by the court, the consent decree would insulate the settling PRPs from contribution claims from non-settling PRPs.  The non-settling PRPs filed a motion to intervene, which the district court denied.  The court then proceeded to enter the consent decree.  The non-settling PRPs appealed to the Ninth Circuit. 

The Ninth Circuit applied the four-part test for intervention required by Rule 24(a)(2) -- (1) timeliness, (2) a sufficiently protectable interest, (3) impairment of that interest, and (4) whether the intervener's interest are otherwise adequately protected -- which the Court noted was almost identical to the test set forth in CERCLA section 113(i).  The Ninth Circuit's analysis focused on the second and third elements. 

The Ninth Circuit first discussed the nature of a PRP's right to seek contribution, which is granted by CERCLA section 113(f).  It dismissed the conclusion reached by several district courts that such a right is contingent or speculative and, therefore, not sufficiently protectable to meet the requirement of a both Rule 24(a)(2) and section 113(i) that a party seeking to intervene have a sufficiently protectable interest.  In finding a sufficiently protectable interest at stake, the Ninth Circuit relied upon the statutory language of CERCLA section 113(f), which plainly provides a party with a right to contribution during or following a civil action under sections 106 or 107.  It buttressed this conclusion by noting that a finding of liability is not required before the right to contribution arises; the only necessary prerequisite is for the contribution claim to be made during or following the Section 106 or 107 action.   The Ninth Circuit further noted that CERCLA also requires that consent decrees be substantively fair, reasonable and consistent with the objectives of CERCLA.  The Ninth Circuit brushed aside policy arguments that intervention would hinder  early settlement of CERCLA actions and noted instead that intervention would further CERCLA's goal of requiring those responsible for the contamination to pay for the cleanup, by ensuring that settlements reflect a fair and reasonable allocation of liability.  Therefore, while the Court found the potential for impairment of CERCLA contribution rights to be the key to open the door for intervention, once in the tent non-settling PRPs will also be able to address the more immediate and perhaps more important consideration: whether the proposed settlement potentially would operate to foist disproportionate residual liability on the non-settling PRPs.

The Ninth Circuit next considered whether the interests of the non-settling PRPs would be impaired by the disposition of the EPA's consent decree.  The Court reasoned that the non-settling PRPs' contribution claims could be significantly affected by the resolution of action in which they were seeking to intervene.  The amount the non-settling PRPs would be able to recover under their contribution claims would definitely be impacted by the contribution bar upon the resolution of the EPA's claims against the settling PRPs.  Once the non-settling PRPs' contribution claims against the settling PRPs are barred, the value of those contribution claims is reduced to nothing.  The Ninth Circuit dismissed the assertion that CERCLA's notice and comment procedures adequately protect the non-settling PRPs' interests and concluded that, at least on the facts of this case, it was unlikely the government would substantially modify the consent decree given that the non-settling PRPs had already objected to the settlement before the comment period.  The Ninth Circuit also concluded that CERCLA section 113(i) evidenced a Congressional intent to have the federal courts evaluate whether proposed consent decrees were fair and reasonable. 

The most significant impact of the Ninth Circuit's Aerojet decision is to confirm that non-settling PRPs must have an opportunity to be heard when the government seeks judicial approval of settlements with some but not all PRPs.  Judicial review will necessarily focus on the amount the settling PRP pays in comparison to its appropriate allocable share to help ensure the settlement does not foist upon the non-settling PRPs a disproportionate share of the costs.  The Aerojet decision will not likely result in very many settlements being rejected by the courts; however, settling PRPs and the government will need to ensure that their settlements reflect a fair and reasonable allocation of liability and costs and should not view the act of seeking judicial approval of a settlement, in matters where there are non-settling PRPs, as a rubber stamp. 

James P. Ryan focuses his environmental practice on Comprehensive Environmental Response, Compensation, And Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) matters and their state analogs.  His clients include large multi-national corporations in a variety of sectors, including the healthcare and pharmaceutical industries.  He can be reached at jryan@nossaman.com or 202.887.1478.


Climate Bureaucracies Are The Choice Because They Perpetuate Problems

Written by Dr. Tim Ball, Canada Free Press | 15 April 2010

The power behind Obama doesn't care if he is a one term President. He would prefer it otherwise and an interesting battle looms as the Democratic Party rejects the incumbent African American President. Total government control is a far more important agenda than any individual political career. Many think it's good that Obama is showing his left wing agenda too quickly and too openly. They argue it will arouse reaction and this will cause a dramatic shift to the right in the November elections and beyond. It will, but it doesn't matter. While the pundits are distracted by political battles, Obama and the gang are bypassing elected officials and thereby the people by putting all the power in bureaucracies. They will guarantee the agenda and prevent any future politicians rescinding or reversing the major pattern.

CO2 was the vehicle chosen to destroy the industrialized nations by ‘proving' this byproduct was causing catastrophic global warming and climate change.  Cap and Trade has evolved as the ideal legislation because it controls energy and industry while creating revenue. It has survived exposure of the corrupt science, however, it isn't necessary because it likely won't get Senate approval. It doesn't matter because of the administrative power given to the EPA by the Supreme Court ruling that CO2 is a pollutant. This gives them complete control of energy and industry.  Growth of bureaucracies is a hallmark of totalitarianism and the death of freedom. As Mary McCarthy said, “Bureaucracy, the rule of no one, has become the modern form of despotism.”

Bureaucratic Frankenstein's

A politician explained that he opposed projects he defined as “Frankenstein”.  An example explains the difference between these and other projects. He would consider funding to write a book because it was finite, ending when the book was published. He would reject money to start a monthly journal – because once started the funding requirements don't end. Attempts to stop funding trigger charges of ending a “tradition'. You have to keep feeding the monster. This is part of the pattern in which today's privilege becomes tomorrow's right and entitlements never end.

Once you assign a problem to a bureaucracy, either by creating a new one or giving it to an existing one, you are guaranteeing the problem will not be resolved. Worse, the bureaucracy will expand and costs will grow. Much of the increased cost will go to preparing arguments for perpetuating the bureaucracy. This is done by claiming the problem has expanded and was far worse than previously understood. They are paid to confirm what is already established, not determine the truth.

Turf Wars

There are very few examples of bureaucracies being shut down. Often they're absorbed by another agency but this is not usually to improve resolution of the problem. It occurs because part of self-perpetuation of a bureaucracy involves not impinging on other bureaucracies. Turf wars are a constant part of bureaucracies. They don't prove anything, inhibit resolution of problems, and create further problems. A classic example was the problems and failures of turf conflicts identified after the 9/11 air attacks.

Maurice Strong knew what he was doing when he bypassed politics to achieve his goal of causing the collapse of the industrialized nations. He knew bureaucracies were the answer because they remain as politicians' come and go. Within the bureaucracies of the United Nations he had the World Meteorological Organization (WMO) that gave direct access to the climate bureaucracies of every nation. It was these people who controlled the Intergovernmental Panel on Climate Change (IPCC) supporting and promoting those scientists such as the ones from the Climatic Research Unit (CRU) who provided the science required for the objective.

It is no surprise John Houghton was the first Co-Chairman of the IPCC from 1988 to 2002. This overlapped with his bureaucratic role as Director General of the United Kingdom Meteorological Office (UKMO) from 1983 to 1991. However, as Phil Jones notes in a May 5, 2005 email to Kevin Trenberth, “IPCC has a lot of clout – much more than GCOS (Global Climate Observing System) and/or WMO.” He makes this argument to suggest IPCC should push for more weather stations and better determination of global temperature. A good idea but doing so would undermine the certainty of IPCC claims.  Steve McIntyre reports on this ironic event because it involved another influential bureaucrat, Susan Solomon, National Oceanic Atmospheric Administration's (NOAA) representative on the IPCC. Solomon, as Co-chair of Working Group I of the Science Report, illogically opposed Jones' proposal.

Meaningless Codes Of Ethics

How do you control bureaucrats? It's an issue of concern as attempts at legislation attest, but they are all vague and apparently unenforceable.  For example, the US has the Hatch Act, which relates to political activity of Federal Employees. But is that different from a code of ethics? NASA has ethical rules that involve misuse of position – but neither has inhibited the activities of NASA GISS Director James Hansen.

Apparently there are no codes or guidelines for IPCC members. The UN has general guidelines as follows; “Conflict of interest includes circumstances in which international civil servants, directly or indirectly, would appear to benefit improperly, or allow a third party to benefit improperly, from their association in the management or the holding of a financial interest in an enterprise that engages in any business or transaction with the organization.” Do they apply to IPCC? Does this mean they are guilty because they allowed Al Gore and others to benefit from carbon credits? It's unlikely because individual governments pay for the IPCC.

World Meteorological Organization (WMO) code of ethics likely don't apply either. They say in part, b) Refrain from acting in the course of their duties with respect to a matter in which they or someone with whom they have a close relationship, or from whom they are seeking employment or other benefit or favour, has a special interest” . Who then determines the appropriateness of the behavior and ethics of James Hansen, Phil Jones or Rajendra Pauchari? The answer is nobody and that is the advantage of bureaucracies. They are not accountable to anyone and if they get in trouble it's easy to set up whitewash investigations. Individuals, including Obama, will come and go but the totally unaccountable bureaucracy will persist. They will mindlessly pursue and expand the agenda they were ostensibly established to resolve: they are the cancer of the body politic.



Stacy Kika (News Media Only)

Kika.stacy@epa,gov 202-564-0906




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

what is fear, saith Solomon, but a betraying of the succours that reason offereth

Deo, Patriae, Tibi.


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