IRON MOUNTAIN MINES INSTITUTE

Correction: the caption above; Sacramento River; is a waterbody commonly known as Keswick Lake

A chemical process to leach copper concentrates in the presence of a concentrated solution of sulfates and chlorides. The process includes forming a high reactivity chemical paste containing a high concentration of ions in the liquid phase of the paste which react with copper ores and forms a series of soluble salts. The salts are extracted by a simple wash. Mixing equipment for handling high viscosity liquids is used. The total mixing time is about 5 minutes, after which the paste is poured into a rectangular mold, of several hundred meters per side, and is left to settle and breathe. During settling, water and sulfuric acid are added at intervals to replace that consumed by the reactions taking place during the aeration, until the reactions have virtually ended. This treatment results in a dry, very resistant mass, containing the copper extracted in form of chlorine salts, and sulfate.

"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitutional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed. 91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).

ABOLISH EPA-CERCLA-SUPERFUND: EX POST FACTO; BILL OF ATTAINDER; CRIME OF INFAMY

CERTIORARI

Is, or is not, the act contrary to the provisions of the fifth amendment
to the Constitution of the United States?

Does, or does not, the act, directly or indirectly, deprive any person
of property without due process of law?

Is the State deprived by the Act of any right guaranteed to it in the Constitution
of the United States, or therein implied?

NOTICE: IMPOSITION OF PROPRIETARY CONTROL BY THE RESIDENT DEPUTY FIRE MARSHALL - FOREST WARDEN - LAST CHANCELLOR OF THE GALES & STANNARIES - OCTOBER 2010

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR GENERAL - DISASTER ASSISTANCE DIRECTORATE

FACILITY COMPLIANCE AUDIT

With petitions to relocate & survey the Gold Bar, Grey Squirrel, Owl, Red Star, Oversight, Foresight, Backsight, & Finegold, Homestake, Homestake extension, and Homestake fraction, Noble, Scott, Hornet Gold & Silver, Richmond Quartz, Baltic, Wasp, Congress, Busy Bee, Westbourne, Thistle, Ole Hanson, Bennington, Wedge, Keystone, Claremont and Monte Carlo, Mocop, Midget, Tuxedo, Highland, Prince Albert and Velvet, Big Dipper & Last Link, Flanders, Harding, Hoover, Pershing, Esther, Alice, Crown Point, Kitchener et al, Pershing et al, Paradise et al, Minnesota et al, Mountain Copper et al, &c. Lode Mining Patents, and the Camden and Magee Agricultural College Patent by Military Scrip Bounty Warrant Freehold land in lieu of Mr. T.W. Arman.

The Great Eastern, Bookeeper, Sunset, Mitchell Bros. No. 1, Polar Star, Time Check, Telephone, Liberty Group, New Year Mine, Hidden Treasure, Ohio, Lode Mining Patents &c.

[$ 482] P. Property in Custodia Legis. Property in custodia legis cannot be acquired by adverse possession. 69

EMERGENCY PLANNING, COMMUNITY RIGHT-TO-KNOW, POLLUTION PREVENTION

"U.S. Marshall McKeough explained the object of the meeting in a few pertinent remarks. He said that Mr. Hutchens told him on
yesterday that unless they give up the water in the creek aforesaid, that he, Hutchens, would take a body of
men and take the water by force of arms and hold the same until he and his men were whipped off the ground.

His party as above mentioned claim right of possession of the water, and are suing for Breach of Patent and holding over by force of arms.

In this dilemma Mr. Arman calls upon all his fellow-miners and countrymen to assist him in defending his rights, agreeable to the old miners' laws.

They said that this was a serious affair, they are willing to defend the old established miners' laws and the right."

“Whenever the legislators endeavor to take away and destroy the property of the people, . . . they put themselves into a state of war with the people who are thereupon absolved from any further obedience . . . .” Id.  222, at 233 (emphasis added). Locke

[$ 542] 5. Effect of Possession by Tenant. Within the rule that actual possession of part of a tract of land under color of title gives constructive possession to the extent of the boundaries designated in the conveyance, the possession of part of a tract of land by a tenant of the holder of color of title, who has been put into possession under a lease which does not restrict the possession to any definite part of the tract, will give the lessor constructive posses sion coextensive with the boundaries of his deed,* 4 since the possession of the tenant inures to the benefit of the lessor; 35 and it is not material that only a small part of the land is actually occupied. 38 It has also been held in a number of decisions that even though the lease restricts the possession of the tenant to a definite portion of the tract, his possession will, by construction, be extended to the boundaries of the deed under which the lessor claims, 37 provided of course no one else is in actual possession of the balance of the tract. 38 And in other decisions, where the opinion does not show definitely whether the lease contained such a restriction, the rule is broadly otherwise expressed, if one claiming under an assurance of title defining boundaries places a tenant in possession without limiting him to any definite part, the tenant's possession will extend to the landlord's boundaries, although the land actually occupied is but a small part of the whole Bell v. North American Coal, etc Co., 155 Fed. 712, 84 CCA 60.

Possession by one's tenant is his own possession. State v. Harmon, 57 W. Va. 447, 50 SK 828

City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) (upholding award of $1.45 million for the temporary taking of 37.5 acres of oceanfront property); Loveladies Harbor, Inc. v. United States , 28 F.3d 1171 (Fed. Cir. 1994) (upholding $2.6 million damage award for wetlands takings); Whitney Benefits, Inc. v. United States , 926 F.2d 1169 (Fed. Cir. 1991) (awarding $60 million, plus interest, for taking of coal deposit); Cooley v. United States , 46 Fed. Cl. 538 (2000) (awarding $2,065,200.42, plus interest, for taking of thirty-three acres); Fla. Rock Indus., Inc. v. United States , 45 Fed. Cl. 21 (1999) (awarding $752,444, plus interest, from the date of taking); E. Minerals Int'l., Inc. v. United States , 39 Fed. Cl. 621 (1997) (awarding $19.6 million for loss of leasehold interest in coal deposit), judgment rev'd, appeal dismissed sub nom. Wyatt v. United States , 271 F.3d 1090 (Fed. Cir. 2001), cert. denied sub nom. E. Minerals Int'l, Inc. v. United States, 122 S. Ct. 1960 (2002). - Lode law of 1866 - LAW OF MAY IO, 1872.

"Sec. 2319. All valuable mineral deposits in lands belonging
to the United States, both surveyed and unsurveyed, are
hereby declared to be free and open to exploration and purchase,
and the lands in which they are found to occupation
and purchase, by citizens of the United States and those who
have declared their intention to become such, under regulations
prescribed by law, and according to the local customs
or rules of miners in the several mining districts, so far as
the same are applicable and not inconsistent with the laws of
the United States.

"Pursuant to adjournment meeting met at 1 o'clock, were called to order by the tenant-in-chief, Mr. Hutchens.
Committee reported as follows, having thoroughly investigated the laws and customs of the miners of Iron Mountain.:

We fully concur in the opinion that Mr. Arman is fully entitled to all the water from the mines and
in Slickrock Creek, Boulder Creek, Spring Creek, and Flat Creek, except four torn-heads each, which is allowed for the beds of the streams ; also that the burning of his forest and buildings, pillage of stone, sequestration of ore wastes,
and the destruction of his dam and other property and the taking of his water from his race by force of arms are malicious acts, and should not be submitted to by those who are in favor of law and order.
"On motion, the report was received and the committee discharged.
"On motion it was 'Resolved, That we assist Mr. Arman in turning the water into his race and that we sustain him to the last extremity in keeping it in the race.'
"On motion, the meeting then adjourned for the purpose of carrying this resolution into effect."

RETROACTIVE LIABILITY UNDER SUPERFUND: TIME TO SETTLE THE ISSUE

NANCY K. KUBASEK , [*]
CARRIE WILLIAMSON , [**]
AND RACHAEL VIGIL [***]

Copyright © 1997 Florida State University Journal of Land Use & Environmental Law

I. INTRODUCTION

Over the past two years, reauthorization of Superfund legislation has been a hotly debated topic. [1] A primary issue in these debates has been to what extent should retroactive liability be limited under the law. [2] Before Congress acted on any proposal to limit retroactive liability, a federal district court judge issued a controversial ruling holding that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) [3] did not apply retroactively to impose liability for waste disposed prior to the law's enactment in 1980. The controversial case was United States v. Olin , [4] decided by Senior District Court Judge Hand in May 1996. Even though this decision was later reversed on appeal, this case briefly gave hope to those who did not favor retroactive liability. [5]

In Olin , the United States filed an action under CERCLA against the Olin Corporation, a Virginia corporation that operates a chemical plant in Alabama. [6] A proposed consent decree was filed with the complaint. [7] After reviewing the parties' briefs on constitutional and statutory issues relating to CERCLA, Judge Hand denied the consent decree and dismissed the case on two grounds. [8] First, Congress did not clearly express an intent that the liability provision of CERCLA should be applied retroactively, as required by the decision in Landgraf v. USI Film Products . [9] Second, the application of CERCLA violated the Commerce Clause as interpreted in United States v. Lopez . [10]

Even though the circuit court struck down the Olin decision on appeal, [11] a number of industry and insurance groups were supportive of the lower court decision and believed that the court correctly stated the law regarding retroactive liability. [12] For example, the Washington Legal Foundation, the American Insurance Association, the National Association of Independent Insurers, and the Reinsurance Association of America publicly expressed their support for the lower court ruling. [13] Moreover, some Republicans in Congress called the original decision a "watershed event in Superfund reform." [14] Even though Judge Hand attempted to restrict retroactive liability, this issue may not be resolved until Congress amends the Superfund law or the United States Supreme Court addresses the precise issue of retroactive liability under CERCLA.

This article addresses the issue of retroactive liability in hopes of proffering a legislative solution to the divisive issue. Part II examines the history of CERCLA. Part III analyzes the reasoning of the Olin decision, how other courts reacted, and its reversal in Olin II . Part IV examines the ongoing debate in Congress. Part V concludes by suggesting a legislative solution to this issue, and calling for legislation affirming CERCLA retroactive liability.

II. A LEGISLATIVE AND CASE LAW HISTORY OF CERCLA

A. Initial Purpose and Passage of CERCLA

Although various laws existed in 1979 that addressed many impacts hazardous substances had on the environment, [15] Congress recognized that a gap existed in those regulations. [16] That gap encompassed the problems caused by inactive or abandoned waste disposal sites described as the most serious health and environmental problem of the decade. [17] Thus, CERCLA was passed to provide for the cleanup of inactive hazardous wastes sites. [18] CERCLA was actually an amalgamation of several bills. [19] Although little consensus existed on certain aspects of the combined Senate and House bill, [20] Congress realized the importance of legislation that would immediately address the problem of inactive or abandoned waste sites. [21] Therefore, both the House and the Senate passed the compromise bill, CERCLA. [22]

B. Early Interpretations of Retroactivity

While CERCLA was enacted in 1980, the issue of retroactive liability was not raised in the courts until 1983 when Brown v. Georgeoff [23] was heard. [2] 4 Georgeoff addressed the question of imposing liability on contributors for pre-enactment waste activities. [25] Although no court had yet ruled on the issue of retroactive liability under CERCLA, Judge Dowd facilitated his decision in Georgeoff by applying the general reasoning that previous courts used when deciding the issue of retroactivity under other statutes. [26] Using Judge Sirica's framework in Windsor v. State Farm Insurance Co., [27] Judge Dowd first examined the language of CERCLA, specifi cally examining Section 107. [28] The State argued that the past tense verb usage "must be construed to apply to conduct occurring before the enactment." [29] Judge Dowd noted that other sections of CERCLA supported the view that CERCLA should be applied to pre-enactment conduct. [30] Due to CERCLA's ambiguous wording, Judge Dowd examined the legislative history of the statute. [31] He concluded that "[t]he Congressional intent to make industry pay for the cleanup costs must be interpreted as an intent to authorize lawsuits which impose liability retroactively upon transporters." [32]

Another early case that addressed retroactive liability was United States v. Northeastern Pharmaceutical & Chemical Co. ( Northeastern Pharmaceutical ). [3] 3 In Northeastern Pharmaceutical , the court concluded that Sections 104, [34] 106(a),3 [5] and 107(a) [36] of CERCLA were intended to apply retroactively. [37] Equally important, the court recognized that "Congress intended to have the chemical industry, past and present, pay for the costs of cleaning up inactive hazardous waste sites." [38]

In its analysis of section 107, the Northeastern Pharmaceutical court relied on Usery v. Turner Elkhorn Mining Co. [3] 9 In Usery , the Supreme Court ruled that general retroactive liability is constitutional. [40] Following the Usery case, "CERCLA's imposition of liability for past acts is rational and satisfies the Due Process Clause of the Fifth Amendment." [41]

Although the Northeastern Pharmaceutical court ruled that Sections 104, 106(a), and 107(a) applied retroactively, it also ruled that those sections did not apply retroactively to response costs incurred before December 11, 1980. [42] The court's conclusion was based on the absence of explicit statutory language that would make the defendants liable for pre-CERCLA costs. [43] This decision was reversed on appeal in 1986. [44] During the period between the initial hearing of Northeastern Pharmaceutical and its appeal, other cases addressed similar questions of retroactive liability. [45] The most important case decided in this period was United States v. Shell Oil Co . [46]

In Shell Oil , the district court addressed two issues regarding the retroactive application of CERCLA. First, pursuant to CERCLA are parties liable for pre-enactment actions? [47] Second, does CERCLA hold responsible parties liable for pre-enactment government in curred response costs? [48] In response to the first issue, Judge Carrigan pointed to other court decisions where liability was imposed on responsible parties for acts committed before CERCLA's enactment. [49] As for the second issue, Judge Carrigan drew his own conclusion based on the retroactive nature of CERCLA and the act's legislative history, finding that responsible parties are liable for pre-enactment government response costs. [50]

Judge Carrigan examined both statutory provisions [51] and legislative history to support his conclusions. [52] Thus, the court in Shell Oil was the first to rule that pre-enactment incurred government response costs were recoverable under CERCLA. On appeal, the circuit court in Northeastern Pharmaceutical [53] adopted the reasoning applied by the Shell Oil court when it held that "the district court erred in finding that CERCLA does not authorize recovery of pre-enactment response costs." [54] This effectively reversed the judgment that pre-enactment response costs were not recoverable.

C. The Reauthorization of CERCLA and its Aftermath

While courts were grappling with the issue of retroactive liability, Congress began to consider reauthorizing CERCLA. Congress realized that the problems created by abandoned and inactive waste sites were worse than originally anticipated. [55] CERCLA allotted only $1.6 billion for the Superfund, [56] and Congress recognized that this amount would be insufficient to fund the enormous cleanup that was needed. [57] Congress decided that the program needed to continue, [58] but how much the Superfund increase would be and who would pay for such an increase was still undetermined. [59] Thus, several bills were presented to amend CERCLA. [60]

The taxing authority of the Superfund expired in September 1985. [61] Congress realized that timely passage of legislation was needed if necessary cleanups were to continue. [62] However, because it had not come to an agreement on reauthorization, Congress passed a two month, $150 million extension to allow the cleanups to continue. [63] A second loan providing $48 million was passed in August 1986. [64]

A congressional committee began meeting in February and continued to meet until the bill was passed in both the Senate and House. [65] Finally, on October 17, 1986, approximately one year past the expiration of the Superfund taxing authority, President Reagan signed the act, thereby amending CERCLA and establishing the Superfund Amendments and Reauthorization Act (SARA). [66]

SARA greatly impacted several components of CERCLA. [67] Had Congress been dissatisfied with the application of retroactivity under CERCLA, this issue would have been addressed through the reauthorization. However, Congress did not restrict retroactive liability in SARA. [68] Thus, after CERCLA was amended in 1986, numerous cases continued to hold that CERCLA imposed retroactive liability. [69] Moreover, some commentators claim that CERCLA, with its imposition of retroactive liability, has been successful. [70] Although the legality of retroactive liability was infrequently raised after the enactment of SARA, a discussion of retroactive liability did occur when Congress engaged in discussions of the proposed reauthoriza tion in 1995. [71] However, discussions did not focus on whether retro active liability could be imposed, but instead on whether CERCLA should be amended to abolish retroactive liability. [72] The issue appeared to be settled until 1996 when Olin rekindled the debate about the existence of retroactive liability. [73]

III. UNITED STATES V . OLIN CORPORATION

A. A Review of the District Court's Reasoning

In Olin, District Court Judge Hand came to a conclusion which contradicted the case history of CERCLA. [74] Judge Hand concluded "Section (a) and Section 106(a) . . . are not retroactive." [75] What started as an ordinary case to recover cleanup costs became a milestone case that shocked legal commentators across the country. [76]

Judge Hand provides a lengthy argument for his decision. First, Hand maintains that the Eleventh Circuit had not "squarely addressed" the issue of retroactive. [77] Next, although Judge Hand recognizes the multitude of federal cases that have directly addressed the issue of CERCLA's retroactivity, [78] he asserts that all of these cases were decided before the Supreme Court's decision in Landgraf v. USI Film Prods . [79] While Judge Hand notes that the defendants argued that Landgraf should be influential, he also notes that the Justice Department countered that CERCLA's retroactivity is "well-settled" and not affected by Landgraf because the decision "announced no new constitutional rules, and in no way impacts this case law." [80] Judge Hand concludes that Landgraf was significant in terms of retroactive liability. [81] He suggests that "not all the courts which have applied CERCLA to pre-enactment conduct have agreed that it is retroactive." [82]

Next, Judge Hand asserts that because Landgraf "addresses a rule of statutory construction," [83] the Justice Department cannot credibly argue that '[t]he result in Landgraf is unremarkable.'" [84] Judge Hand suggests that the Justice Department easily dismissed Landgraf because the case "demolishes the interpretive premises on which prior cases had concluded CERCLA is retroactive." [85] As an example, Judge Hand proffers the finding of Brown v. Georgeoff . [86] While the court in Georgeoff recognized a historical "presumption favoring a prospective only application of a statute," [87] Judge Hand describes how the court applied a presumption in favor of retroactivity. [88] Because Landgraf disapproved of the premises for the decision in Georgeoff , Judge Hand argues that " Georgeoff and the cases which rely on its analysis—and which do not do their own analysis—cannot be considered persuasive." [89] Judge Hand continues by noting that only two other cases do their own analysis of retroactivity, [9] 0 United States v. Shell Oil Co. [9] 1 and United States v. Northeastern Pharmaceutical & Chemical Co., Inc., [92] and both cases approvingly refer to Georgeoff . [93] Furthermore, Judge Hand enumerates various problems with the reasoning in Shell and Northeastern Pharmaceutical . [94]

Yet Judge Hand recognizes that "prior to Landgraf , lower federal courts would have tended to minimize the importance of the presumption against retroactivity." [95] He concludes that Landgraf "does at least clarify the analysis of retroactivity and, therefore, does 'impact this case.'" [96]

Judge Hand next offers a summary of the majority opinion of Landgraf , stating that the opinion requires a court

1) to determine a) whether Congress has expressly stated the statutes reach and b) if not, whether the text and legislative history have 'clearly prescribed' Congress' intent to apply the provision retroactively; 2) if not, whether the provision actually has 'retro active effect' on the party or parties in the litigation, and 3) if so, to apply the traditional presumption against retroactivity—absent a clear congressional intent to the contrary. [97] In accordance with the Landgraf framework, Judge Hand begins by addressing the first question, "Has Congress Expressed Its Intent On CERCLA Retroactivity?" [98] The judge offers a lengthy discussion of both the statutory language [99] and legislative history [100] before concluding that both "fail to demonstrate a clear congressional intent for retroactivity." [101] Hence, following Landgraf's framework, a presumption against retroactive liability for CERCLA exists. [102]

Because the court ruled that no Congressional intent for CERCLA's retroactive liability existed, the court next examined the question, "Does CERCLA Have a Retroactive Effect?" [103] In the Olin decision, Judge Hand determined that CERCLA "certainly has 'retroactive effect' because . . . it easily falls within the explanatory language of that term." [104] Yet the Olin court applied Landgraf's decision about compensatory damages to the financial liabilities under CERCLA, ruling that the damages in this provision do not apply when there is an absence of Congressional intent. [105]

In the final step of the Landgraf analysis, Judge Hand asks, "Should the Presumption Against Retroactivity be Applied?" [10] 6 In Landgraf , the court examined whether a particular section of an act "should govern cases arising before its enactment." [10] 7 The Olin court argued that CERCLA posed the threat of punitive damages, [108] and "liability under CERCLA would require compensation for actions which when taken violated no federal or state law." [109] Based on this reasoning, the Olin court decided that CERCLA liability is the type of liability that "does not apply retroactively without clear congressional intent." [110]

Judge Hand's Olin decision continued by criticizing the Justice Department's reliance on Northeastern Pharmaceutical , a case that characterizes CERCLA as "overwhelmingly remedial and retroactive" and as having a "backward focus." [111] He suggests that legislation "cannot be remedial if the conduct being 'remedied' was lawful at the time of its occurrence," [112] and asserts that the "backward focus" of CERCLA is not persuasive. [113] Finally, Judge Hand asserts that the Justice Department's argument "boils down to a claim that CERCLA must be read to be retroactive," and he presents an argument against the Justice Department's claim. [114]

Judge Hand ultimately concludes that neither the Justice Department nor the pre- Landgraf cases established that Section 107(a) is "the sort of provision that must be understood to operate retro actively because a contrary reading would render it ineffective." [115] Therefore, the court ruled that "Section 107(a) and Section 106(a) as linked to it in this case are not retroactive." [116]

B. Other Courts' Reactions to the Olin Reasoning

Several questionable aspects regarding Olin's reasoning existed. First, the analogy between Landgraf and Olin was questionable. While Olin addressed retroactivity pertaining to hazardous waste damage, Landgraf examined retroactivity pertaining to civil rights. [117] Most importantly, the damaging effects in each situation are quite different. In Olin , the effects of the past action are still harmful to those individuals who live near the areas of abandoned waste sites. In contrast, in the civil rights case, Landgraf , the effects of the action would probably have been more damaging in the past. Thus, one important difference between Landgraf and Olin is that the effects of the damages of the past action is more presently harmful in cases involving environmental waste. [118]

Furthermore, Congress reauthorized CERCLA twice and did not attempt to change the liability provisions, even though many cases had arisen questioning retroactive liability. [119] While Congress had the opportunity to change the liability provisions both in 1986 and 1990, they did not implement any changes because the matter seemed to be settled. [120] Since Congress did not take steps to change the court's interpretation imposing retroactive liability implied that the court's imposition of such liability was in fact consistent with the Congressional intent.

While waiting for the appeal, several cases highlighted deficiencies in Judge Hand's argument. In Nevada v. United States and Atlantic Richfield Co. , [121] Judge Hagen, in applying the Landgraf framework, concluded that Congress "clearly intended CERCLA to reach backward and impose liability upon those who are responsible for ongoing environmental deterioration resulting from wastes which had been dumped in the past." [122]

In reaching this decision, Judge Hagen first noted that instead of setting forth a new rule of law regarding retroactivity, Landgraf simply clarified that earlier decisions "did not erode the traditional presumption against retroactivity." [123] Moreover, Judge Hagen stated that Landgraf requires "clear evidence of Congressional intent" as opposed to a "clear statement of Congressional intent." [124] Judge Hagen next determined that the "negative implication analysis set forth in United States v. Shell Oil , 605 F. Supp. 1064 (D. Colo. 1985) . . . is far more persuasive in the CERCLA case than it was in the Landgraf case." [125] Judge claimed that "it is clear that the entire scheme of the statute contemplates retroactive liability for response costs, but not for natural resource damages." [126] However, Shell Oil does not discuss the distinction of natural resource damages. [127]

Judge Hagen further ruled that the Shell Oil court "clearly applied the presumption and found it outweighed by overwhelming evidence of congressional intent on retroactivity." [128] Finally, Judge Hagen concluded that "the clear intent of Congress was to provide for retroactive application of the CERCLA liability provision." [129] Judge Hagen did not comment on the Olin decision itself because that case had not yet been published at the time Judge Hagen made his ruling.

However, other courts did specifically find the Olin decision flawed. On July 15, 1996, the Gould Inc. v. Battery & Tire Serv. [130] court rejected the Olin decision, [131] and on August 22, 1996, the United States v. Alcan Corp. [132] court offered a one-sentence order that rejected the defendant's arguments that relied on Olin . [133] Finally, on September 27, 1996, in United States v. Rohm and Haas Co. , [134] the court disagreed with Olin by ruling that Congress intended CERCLA to be applied retroactively. [135] These decisions underscore that courts should not follow in the footsteps of Olin , but instead should follow the well-established precedent that CERCLA is retroactive. The Eleventh Circuit agreed with these other courts when it reversed the Olin decision.

C. The Olin Appeal

On March 25, 1997, the 11th Circuit reversed the Olin decision. [13] 6 In Olin II , the court flatly rejected the conclusion that Lopez altered the constitutional standard for federal statutes regulating intrastate activities. [137] In reaching this decision, the Olin II court first categorized the activity at issue. Rejecting the government's argu ment, [138] the court determined that the issue was "disposal of hazardous waste at the site of production." [139] In determining that this issue affected interstate commerce, the court relied on a Senate committee report, which cited improper on-site waste disposal as a significant factor in chemical contamination in agriculture losses and the Lopez decision. [140]

Following Landgraf , the Olin II court also reviewed CERCLA's language, structure, purpose, and legislative history to determine if retroactive liability applies. Based on its analysis, the Olin II court concluded that the district court mistakenly found no insight into Congress' intent. [14] 1 The Olin II court made this determination based on legislative history, which "confirms that Congress intended to impose retroactive liability for cleanup. [142] This decision supports the Eleventh Circuit's implicit holding of retroactive liability found in several cases, including Redwing Carriers v. Saraland Apartment , [14] 3 Florida Power & Light Co. v. Allis Chalmers Corp ., [14] 4 and South Florida Water Management District v. Montalvo . [145] In each of these cases, the acts which gave rise to the contamination occurred before CERCLA was enacted. In Olin , the Eleventh Circuit specifically states that the district court's ruling on retroactive liability "runs contrary to all other decisions on point." [146] In reaching this conclusion, the Olin II court rendered many companies' one ray of judicial hope obsolete.

Until the United States Supreme Court makes a decisive ruling about retroactive liability, companies will continue to argue against retroactive liability. Unless the highest court renders a final decision on this issue, many companies may be reluctant to settle claims regarding retroactive liability, which may delay cleanups across the country. Since a decision from the United States Supreme Court is at least a year away, it is imperative that Congress take a clear stand with respect to retroactive liability as soon as possible.

IV. THE CONGRESSIONAL APPROACH TO RETROACTIVITY

Even though the courts appear settled on whether retroactive liability exists under CERCLA, Congress is divided over whether to keep retroactive liability. [147] Whether one takes the existence of the Congressional debate as supporting the validity of retroactivity, or simply view Congress as confused or trying to correct an erroneous misinterpretation of CERCLA, at some point in the near future, a legislative solution to the question is necessary.

While the debates in Congress over reauthorization of the Superfund do not focus exclusively on the issue of retroactivity under the Act, certain retroactive application of CERCLA liability laws provided the major focus for the last set of arguments in Congress in 1996 that this article examines. [148] In the ongoing debate over reauthorization, the issue of retroactivity is considered one of the divisive "linchpins" of the program. [149]

In 1995, Republican Representative Michael G. Oxley of Ohio and Republican Senator Robert C. Smith of New Hampshire, generated two proposals in the House and the Senate, respectively, which aimed to eliminate retroactive liability. [150]

Senator Smith's proposal initially aimed to eliminate the retroactive liability provision for companies that dumped waste prior to 1980, the year the Superfund was enacted. [151] In addition, Senator Smith wanted to change the section of the current liability system that holds only one business responsible for payment of an entire site's cleanup. [152] Senator Smith's proposal would have repealed that section, holding each polluter responsible only for his proportionate share. [153]

Also, Senator Smith placed greater emphasis on cost efficiency in clean-up efforts. [154] His bill would have required the Environmental Protection Agency (EPA) to choose the clean-up remedy that provides the most inexpensive protection for human health and the environment. [155] Another major provision of Senator Smith's bill would have placed a cap on the number of new sites that the EPA could add to the list of Superfund sites. [156] In each of the three years after enactment, the EPA would only be able to add thirty new sites. [157] Finally, Senator Smith's bill gave states more power and potential responsibility with regard to Superfund sites within their borders. [158] According to Senator Smith's bill, states would have been able to chose whether to veto placing a site on the national priorities list, and following federal cleanup standards, cleanup the site on their own. [159]

Representative Oxley's bill, though with similar objectives as Senator Smith's, had its own particular provisions. One difference was a provision directed at small businesses and municipalities that could have affected up to 250 Superfund sites, along with the multitude of businesses that dump into those sites. [160] This provision would have fully exempted some parties from liability if, after June 1995, they had dumped waste at a site that had already accepted municipal solid waste from another party or parties. [161]

Another provision of Representative Oxley's bill provided a different kind of exemption for some small businesses. [162] A business could have become exempt from all liability if it contributed less than one percent of the waste to a Superfund site prior to 1987. [163] Representative Oxley chose the 1987 date since that is when record-keeping requirements were fully implemented. [164] The 1987 date pleased many insurance companies because it is also the year that they changed their policies to avoid paying future Superfund-related claims. [165] In addition, Representative Oxley's bill also allowed for government rebates that would come out of the Superfund, [166] and companies that dumped waste before 1987 could apply for reimbursement. [167]

While neither party in Congress was willing to give up in the early stages of drafting and reviewing the proposed bills, each acknowledged that future negotiations regarding the Superfund program were dependent on the outcome of the 1996 November election. [168]

Members of both parties of Congress accepted that any changes to the Superfund program regarding retroactive liability would rely prominently on bipartisan compromise, and would proceed gradually, if at all. [169] However, after more than a year of concentrated efforts [170] to obtain a bipartisan compromise on Senate Bill 1285, the Republican-developed Superfund bill proposed by Senator Smith was pronounced dead during the week of July 15, 1996. [171] This signified the end of hope for bipartisan agreement for Superfund revision until after the November 1996 elections. Both Democrats and Republicans waited to see if their side might gain more of an upper hand on the issue after the elections. [172] A Dole victory might have led the Republican's to achieve their desired repeal of retroactive liability, while a win for Clinton would imply a more moder ate, but still bipartisan, drafting of a compromise. [173]

Now in his second term as President, President Clinton once again must work with a Republican-led Congress. This time, he is even more likely to emphasize moderation on issues, in an attempt to stress bipartisan compromise and balance, especially on sticky topics like the environment. [174] One of the most binding features of the Clinton presidency is the Republican Congress' priority to balance the federal budget. [175] With that priority as a guideline, it is likely to dictate future legislation. Where the Superfund is concerned, debates over making site cleanup even more cost effective, and continuing the push to reduce liability standards to avoid expensive litigation, are not going to go away. Moreover, with less money to spend, President Clinton will be under continual pressure to pursue moderate measures. [176] Republicans will also be stressing moderation and compromise since they realize that they must reach a middle ground with the President and his administration if they want to successfully carry out their own agenda. [177]

Environmental policy will be a challenge for the President and Congress. The ideal middle ground hoped for in other areas is especially distant here due to warring interest groups and fiscal tightening. Environmental policy success lies in creative approaches to old issues, on a more incremental level. [178] In fact, the first Superfund reform bill of 1997 did not explicitly address the issue of retroactive liability. [179] The primary features of the bill were (1) the creation of a fair-share allocation of multiparty sites to replace joint and several liability; (2) the elimination of liability for small contributors; and (3) the provision of $60 million in funding to states and localities to spur the cleanup and redevelopment of sites. [180] Even some of the strongest supporters for the elimination of retroactive liability began the year by conceding that such repeal does not have a chance of surviving Democratic opposition. [181] To date, this bill is still facing committee hearings. [182]

On November 9, 1997 Representative Oxley modified his 1986 bill and reintroduced it as the Superfund Reform Act. [183] Like its predecessor, this bill curtails retroactive liability. For example, retro active liability would not occur for: (1) releases occurring in connection with arranging for disposal, treatment, transport, or acceptance of hazardous substances prior to 1987 at non-federally owned National Priority Listed facilities; (2) releases at facilities which only handle municipal solid waste or sewage sludge; or (3) de micromis releases. [184] The bill has just begun the committee hearing process. [185]

V. CONCLUSION : A LEGISLATIVE SOLUTION

Despite the fact that current legislative proposals do not provide for a repeal of retroactive liability, the issue is still a matter of concern to many in Congress. [186] As noted previously, this issue is one that needs immediate resolution. Adding to the pressures to overhaul the program, is the unknown future role of industry taxes that have, until recently, helped to pay for the cleanup program. [187] The taxes actually expired December 31, 1995, [188] though the program can be successfully funded by a surplus until fiscal year 2000. [189] However, some parties involved do not want to reauthorize these taxes until there is greater certainty that Congress will successfully overhaul the Superfund program. [190] This pending funding limitation, suggested by leaders of the authorizing committees, is aimed to pressure Congress to revise the Superfund program. [191]

The legitimacy of retroactive liability cannot be delayed while Congress waits to make a decision on the future role of industry taxes. Congress needs to settle the issue of retroactive liability by amending the act with language such as: "Liability under this act is retroactive." Even though many Republicans oppose maintaining the provision for retroactive liability on the grounds that it is unfair to punish companies for actions that, when carried out, were fully legal, [192] the limitations introduced in House Rule 3000 should not alter how courts presently apply retroactive liability. Even though several Republicans argue that being more lax with liability standards will slow down the clutter of litigation that now consumes the time and focus of many companies, preventing them from overseeing the actual cleanup of their sites, [193] any laceration may result in individual tax payers paying for the clean up. [194]

There is another equally persuasive unfairness argument. A number of companies have had substantial retroactive liabilities imposed upon them, but they have already resolved most of them. [195] Therefore, not only do they have little to gain from the repeal, but they have been placed at a disadvantage vis-à-vis their competitors who have not been good corporate citizens and who have managed to thus far evade their liability for hazardous sites created prior to 1980. [196] Thus, in terms of fairness, the case for retaining retroactivity seems to be stronger.

An additional consideration concerns companies involved with lawsuits against their insurers for remediation costs from settlements with the EPA. These companies might find that courts will hold that since there is no retroactive liability, settlements paid for a form of liability that does not exist are merely gratuitous. [197] Such a result would be extremely unfair.

Easing up on liability standards for companies sends a strong message to polluters that they can easily shake the blame for pollution and environmental damage and simply let the federal govern ment pay for the costs of cleaning up polluted sites. [198] In addition, a full repeal of retroactive liability is not cheap. The Congressional Budget Office reported that repealing retroactive liability would cost the federal government from $800 million to $1.3 billion a year. [199] As a result, taxpayers would likely become the targets to bear the burden of cleaning up many sites, even when the company responsible for the costly damages is known. [200] Much of the tax burden for Superfund has thus far fallen on the chemical and petroleum companies. When these taxes are reauthorized, if there is not retroactive liability, a most logical source of money will be could come from an increase chemical and petroleum companies' taxes.

Major opponents of repealing retroactive liability, like Carol Browner, administrator of the EPA, allege that a repeal would only prolong the cleanup process, require more money from taxpayers, and send the wrong message to polluters. [201] If correct, such allegations further support the need for Congress to pass a simple amendment to CERCLA, clearly stating that the liability under the act is retroactive.

The legitimacy of retroactive liability will not be resolved until the United States Supreme Court speaks or Congress takes action. A careful review of Olin and subsequent cases leads to the conclusion that if the issue reaches the Supreme Court, the Court will likely uphold retroactive liability. However, an appeal of Olin to the highest court for resolution of this issue will take at least another year. There is no point in waiting over a year for the court to act; Congress should take action itself by affirming the act's retroactive liability.

_______________________________

[*] Professor of Legal Studies, Bowling Green State University. B.S. Education, 1978, Bowling Green State University; J.D., 1981, University of Toledo College of Law. Since this speech was written as part of Ms. Browner's duties as a U.S. Government employee, the Journal 's copyright provision does not attach. Please credit the U.S. Environmental Protection Agency whenever reproducing any parts of this speech.

[**] Research assistant to Professor Kubasek. .

[***] Research assistant to Professor Kubasek. .

[1] See infra Part III. .

[2] See id.

3. Pub. L. No. 95-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601-9675) (1994)). .

[4] 927 F. Supp. 1502 (S.D. Ala. 1996), rev'd , 107 F.3d 1506 (11th Cir. 1997). .

[5] See infra notes 12-14 and accompanying text. .

[6] See 927 F. Supp. at 1504. .

[7] See id . .

[8] See id. .

[9] 511 U.S. 244 (1994) (deciding that since Congress did not expressly allow for retroactive application of the Civil Rights Act of 1991, the Act could not be applied retroactively in a Title VII case). .

[10] 514 U.S. 549 (1995) (holding that Congress exceeded its commerce clause authority when it passed the Gun-Free School Zones Act since possess of a gun was not an economic activity that substantially affected interstate commerce). .

[11] See Olin , 107 F.3d 1506 (11th Cir. 1997) (reversing the district court by holding that there was no commerce clause violation and that CERCLA liability costs do apply retroactively). .

[12] See Insurers Have Their Say , H AZARDOUS W ASTE N EWS , Sept. 16, 1996, available in 1996 WL 7981946. .

[13] See id . .

[14] Mark D. Tucker, Retroactive Liability is Challenged , NAT'L. L.J., Oct. 14, 1997, at Cl. .

[15] See, e.g., Clean Air Act (CAA), 42 U.S.C.A. § 7041 (1997) (regulating air pollution emissions); Clean Water Act (CWA), 33 U.S.C.A. § 1251 (1997) (regulating toxic water pollutants); Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2601 (1997) (regulating potentially toxic chemicals used in commerce); Solid Waste Disposal Act (SWDA), as amended by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.A. § 6901 (1997) (establishing a comprehensive system to regulate hazardous waste from its creation to its disposal). .

[16] See S. R EP . N O . 69-848, at 101-12 (1980), reprinted in 1 A L EGISLATIVE H ISTORY OF T HE C OMPREHENSIVE E NVIRONMENTAL R ESPONSE , C OMPENSATION , AND L IABILITY A CT O F 1980 (S UPERFUND ) [hereinafter 1 L EGISLATIVE H ISTORY ] ("[T]he regulations do not address those situations where an owner is unknown or is unable to pay the cleanup costs, nor do they address the cleanup of spills, illegal dumping or releases generally."). .

[17] See 1 L EGISLATIVE H ISTORY , supra note 16, at 2 ("The legacy of past haphazard disposal of chemical wastes and the continuing danger of spills and other releases of dangerous problems pose what many call the most serious health and environmental challenge of the decade."). .

[18] See id. (stating that CERCLA was to "provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites."); Administration Testimony to the Subcomm . on Env't Pollution & Resource Protection, Comm. on Env't & Public Works , 96th Cong. (1980) reprinted in 1 L EGISLATIVE H ISTORY , supra note 16, at 55 (statement of Sen. John C. Culver) ("In these hearings, we are searching for solutions to the problems of how to cleanup old hazardous waste dump sites that now threaten our environment, and for ways to cleanup future spills of hazardous wastes."); id. at 100 (statement of Thomas C. Jorling, Assistant Administrator, Water & Waste Managt., EPA) ("The proposed legislation addresses releases to the environment of oil, hazardous substances, and hazardous wastes from spills and from inactive and abandoned disposal sites."). .

[19] See H.R. 7020, 96th Cong. (1980), reprinted in 2 A L EGISLATIVE H ISTORY OF T HE COMPREHENSIVE E NVIRONMENTAL R ESPONSE , C OMPENSATION , AND L IABILITY A CT OF 1980 (S UPERFUND ), at 391-463 [hereinafter 2 L EGISLATIVE H ISTORY ] (describing the Hazardous Waste Containment Act of 1980).

[A]n act to amend the Solid Waste Disposal Act to provide authorities to respond to releases of hazardous waste from inactive hazardous waste sites which endanger public health and the environment, to establish a Hazardous Waste Response Fund to be funded by a system of fees, to establish prohibitions and requirements concerning inactive hazardous waste sites, to provide liability of persons responsible for release of hazardous waste at such sites, and for other purposes. Id .; H.R. 85, 96th (1980), reprinted in 2 L EGISLATIVE H ISTORY , at 1016-1114 (describing the Comprehensive Oil Pollution Liability and Compensation Act as "a bill to provide a comprehensive system of liability and compensation for oil-spill damage and removal costs, and for other purposes."); S. 1480, 96th Cong. (1980), reprinted in 1 L EGISLATIVE H ISTORY , supra note 16, at 462-552 (describing the Environmental Emergency Response Act as "a bill to provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites."). .

[20] See Letter from Robert T. Stafford & Jennings Randolph to Rep. James J. Florio (Dec. 2, 1980), in 1 L EGISLATIVE H ISTORY , supra note 16, at 774-75.

On Monday, November 24, the Senate passed a compromise "superfund" bill . . . . That the bill passed at all is a minor wonder . . . Specific mention has been made of adding an oil spill provision. That was suggested in the Senate, but agreement could not be reached on a specific provision, so none was offered . . . Some disagreed with increasing the size of the Fund. Others disagreed with the creation of a private right of action, whether against a Fund or against a spiller. Others disagreed with preemption provisions. Others disagreed with limitations on liability, especially as they related to inland oil barges. In short, we could not even reach a consensus, much less unanimity.

Id. .

[21] See 1 L EGISLATIVE H ISTORY , supra note 16, at 762 (statement of Sen. Domenici) ("[T]he problem of hazardous substances must be addressed, and this body is acting in a responsible manner by passing legislation in this Congress."); id. at 765 (statement of Sen. Weicker) ("[W]e cannot let any time pass before we take the problem of hazardous wastes head on. We must pass the superfund bill now."); id. at 767 (statement of Sen. Riegle) ("I . . . hope the House will act on it before adjournment. We cannot afford to wait any longer in establishing the necessary framework and funding to meet the hazards posed by toxic wastes."); id. at 784 (statement of Rep. Florio) ("The time is now to deal with this problem . . . The concern is whether we are going to have legislation or whether we are not going to have legislation."). .

[22] The Senate passed the compromise bill on Nov. 24, 1980. See 1 L EGISLATIVE H ISTORY , supra note 16, at 560. The House passed the compromise bill on December 3, 1980. See 1 L EGISLATIVE H ISTORY , supra note 16, at 776. For further discussion of the legislative history of the bills, see Frank P. Grad, A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act ("Superfund") , 8 C OLUM . J. E NVTL . L. 1 (1982). .

[23] 562 F. Supp. 1300 (N.D. Ohio 1983). .

[24] However, several earlier cases had compared CERCLA to RCRA to illustrate RCRA's inadequacies. See generally United States v. Waste Indus., 556 F. Supp. 1301, 1317 (E.D.N.C. 1982) ("Congress recognized . . . a gap existed in the regulatory scheme fashioned through the RCRA. That gap involved the problems caused by inactive waste disposal sites . . . [t]he Superfund legislation was designed to fill that void."). See also United States v. Wade, 546 F. Supp 785 (1982); Philadelphia v. Stepan Chem. Co., 544 F. Supp 1135 (E.D. Pa. 1982); Grad, supra note 22, at 35 ("CERCLA picks up where RCRA leaves off, i.e., when untoward emergencies occur, or when spills occur at current or no longer active sites by making provisions for protection after a site has been closed."). .

[25] In Georgeoff , the state attempted to cleanup the hazardous waste disposal site owned by Summit National Liquid Services (SNLS), commonly known as Deerfield Dump (Dump). See 562 F. Supp. at 1300. The state alleged that an assortment of hazardous wastes had been left at the Dump. See id . The Dump went through a series of owners after SNLS went out of business in 1979; however, the waste left at the Dump continued to pose a threat to the source of drinking water in the area. See id. .

[26] See id. at 1303 (quoting J. Story in Society for Propagating the Gospel v. Wheeler , 22 F.Cas. 756, 767 (C.C.D.N.H. 1814) (No. 13, 156) (defining a retroactive law as one that "creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past . . ."). .

[27] See 509 F. Supp. 342 (D.D.C. 1981).

The Court's analysis must begin with the fundamental rule of law that the meaningful intent of a statute is to be sought first in the language it is framed. If the language is plain and unambiguous, then there is no need to enlist the rules of interpretation, and the duty of the Court is to enforce the act according to its terms . . . . When the imperative character necessary to demonstrate retroactive intent cannot be assigned to the words of the Act, the Court must look at the various indica of Congressional intent.

Georgeoff , 562 F. Supp. at 1308. .

[28] See Georgeoff , 562 F. Supp. at 1308-09. Section 9607 provides for liability under CERCLA:

(a) Covered persons; scope; recoverable costs and damages; interest rate; "comparable maturity" date

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—

(A) all cost of removal or remedial action incurred by the United States Government or a States or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources, includeing the reasonable costs of assessing injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

42 U.S.C.A. § 9607 (1983). .

[29] 562 F. Supp . at 1310. .

[30] See id. at 1311. Judge Dowd describes the frequent references to "inactive" waste disposal sites and concludes that Congress intended to focus on the past, rather than future conduct. See id. (citing 42 U.S.C. § 9601 (20) (A) (iii) which states in the Preamble the purpose "to provide for . . . the cleanup of inactive hazardous waste disposal sites). .

[31] See id. at 1311-12 ("A more generalized examination of the Congressional debates concerning CERCLA indicates an unequivocal Congressional intent to effect the complete cleanup of existing hazardous waste facilities."). Quoting from Senator Tsongas, the court states that "the need for an emergency Federal response to deal with abandoned waste sites and chemical spills is real, and it is immediate." Id. Furthermore, Judge Dowd notes Senator Danforth's statement that "[w]e have no time to lose . . . I believe the clear consensus is that we must cleanup abandoned hazardous dump sites as soon as possible." Id. .

[32] Id. at 1313-14. Judge Dowd also concluded that the liability provisions of CERCLA may be applied retroactively to transporters. See id. at 1314. .

[33] 579 F. Supp. 823 (W.D. Mo. 1984), aff'd in part, rev'd in part , 810 F.2d 726 (8th Cir. 1986), cert. denied , 484 U.S. 848 (1987). According to the initial findings of fact in the case, Northeastern Pharmaceutical's president and vice-president "[k]new [the company's] manufacturing process produced by products that contained toxic substances, including dioxin, that could be harmful to human health." Id. at 833. In July 1971, a plant supervisor put drums containing hazardous wastes in a trench on the Denny farm. See id. In 1979, the EPA received an anonymous tip that waste materials had been disposed at the Denny farm. See id. The court stated that

[b]ecause of the region's soil conditions, there was a substantial likelihood of the hazardous wastes in the Denny farm site entering the environment and going into the ground farm site entering the environment and going into the ground water system; whereupon, the contaminants may have come into contact with members of the public who may have been adversely affected by their exposure to these wastes.

Id. .

[34] 42 U.S.C. § 9604 (granting the federal officials general authority to respond to hazardous waste pollution by cleaning up the source and lessening its effects). .

[35] 42 U.S.C. § 9606. This section provides for abatement actions:

(a) Maintenance, jurisdiction, etc.

In addition to any other action taken by a State or local government, when the President determines that there may be imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public I interest and the equities of the case may require. The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment.

Id. .

[36] See supra note 28 (discussing CERCLA's liability provision). .

[37] See Northeastern Pharmecuetical , 579 F. Supp. at 839 ("There can be little doubt that sections 104 and 107(a) were intended to apply retroactively."); s ee also Georgeoff , 562 F. Supp. at 1302-12; Waste Indus ., 556 F. Supp. at 1316-17; Wade , 546 F. Supp. at 792-93; Stepan Chem. Co ., 544 F. Supp. at 1140-41. In Northeastern Pharmecuetical , the court states that "section 106(a) applies to inactive sites and that the same persons listed as liable under section 107(a) are liable under section 106(a) . . . [t]o read sections 104, 106(a), and 107(a) otherwise would be to emasculate the purpose of CERCLA and the intent of Congress." 579 F. Supp. at 839. .

[38] 579 F. Supp. at 840 (citing 126 C ONG . R EC . S14962-963 (daily ed. Nov. 24, 1980) (remarks of Sen. Randolph); id. at S14966 (remarks of Sen. Stafford); id. at S14972 (remarks of Sen. Tsongas); 126 C ONG . R EC . H11799 (daily ed. Dec 3, 1980) (remarks of Rep. Jeffords)). .

[39] 428 U.S. 1 (1976) (deciding black lung benefit provisions of Coal Mine Health and Safety Act of 1969 were constitutionally sound). .

[40] See 428 U.S. at 16 ("[O]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations . . . This is true even though the effect of the legislation is to impose a new duty or liability based on past acts."). The court reasoned that "the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of employees' disabilities to those who have profited from the fruits of their labor." Id. at 18. .

[41] 579 F. Supp. at 841 ("Congress rationally considered the imposition of liability for the effects of past disposal practices as a means to spread the costs of cleanup on those who created and profited from the waste disposal-generators, transporters, and disposal site owners/ operators."). S ee also Georgeoff , 562 F. Supp. at 1312; S. Rep. No. 848, at 33-34 (1980), reprinted in 1980 U.S. C ODE C ONG . & A DMIN . N EWS 6119. .

[42] See 579 F. Supp. at 841. Other cases agreeing that response costs incurred before CERCLA enactment were unrecoverable include United States v. Morton-Thiokol, Inc. , No. 83-4787 (D.N.J. July 2, 1984), and United States v. Wade , 546 F. Supp. 785 (E.D. Pa. 1982) ( Wade I ). .

[43] See 579 F. Supp. at 843 ("It is difficult to believe that if Congress had intended to make the defendants liable for pre-CERCLA expenses, it would not have said so explicitly and clearly in the statutory language, committee reports, or floor debates."). .

[44] See United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986). .

[45] See Jones v. Inmont Corp . , 584 F. Supp. 1425, 1428 (N.D. Ohio 1984) ("Past generators of hazardous wastes are responsible parties under [the liability] provision."); United States v. Onatti & Goss, 630 F. Supp. 1361 (D.N.H. 1985) (holding that the retroactive application of CERCLA Sections 106-107 does not violate the Constitution). .

[46] 605 F. Supp. 1064 (D. Colo. 1985). Shell Oil addressed the disposal of wastes at the Rocky Mountain Arsenal owned by the United States. See id. The Army used the Arsenal for "manufacture, testing, demilitarization, disposal, and other handling of various chemical agents and munitions." Id. The United States has leased property to Shell since 1947 for the "manufacture, packaging, and other handling of pesticides, herbicides, and other chemicals." Id. at 1067. Both the Army's wastes and all of some portion of Shell's wastes were disposed of through a common system. See id. When the waste disposal systems failed, it released into the environment "hazardous substances comprised of co-mingled wastes generated by the Army, Shell, and other Arsenal tenants. The released chemicals have killed migratory and other birds, fish and wildlife, have contaminated air, land, groundwater, lakes, and other surface waters within the Arsenal, and have contaminated or threaten to contaminate the environment outside the Arsenal." Id . By administrative order in 1975, the State of Colorado instructed the Army and Shell to stop the discharge of specific chemicals and cleanup the sources of specific chemicals. See id. .

[47] See id. at 1072. .

[48] See id. .

[49] See id. Those cases to which Judge Carrigan refers are the following: United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984 (D.S.C. February 23, 1984), aff'd in part , United States v. Monsanto, 858 F.2d 100 (4th Cir. 1988); United States v. Conservation Chem. Co., 589 F. Supp. 59 (W.D. Mo. 1984); United States v. Northeastern Pharm. & Chem. Co. 579 F. Supp. 823 (W.D. Mo. 1884); United States v. A.&F. Materials Co., 578 F. Supp. 1249 (S.D. Ill. 1984); United States v. Price, 577 F. Supp. 1103 (D.N.J. 1983); Brown v. Georgeoff, 562 F. Supp. 1300 (N.D. Ohio 1983); United States v. Outboard Marine Corp., 556 F. Supp. 54 (N.D. Ill. 1982); United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100 (D.Minn. 1982); United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982). .

[50] See Shell Oil , 605 F. Supp. at 1073 ("I conclude that the unavoidably retroactive nature of CERCLA, and Congress' decision in CERCLA to impose the cost of cleaning up hazardous waste sites on the responsible parties rather than on taxpayers, strongly indicate Congressional intent to hold responsible parties liable for pre-enactment government response costs."). .

[51] See id. at 1073-77. Because this case is often cited, the reasoning behind Judge Carrigan's conclusion is extremely important. Judge Carrigan discusses both the government and Shell's arguments. First, Shell argued that the use of "shall" in § 107(a)(4) that any person who accepts shall be liable implies intent of prospective application of the liability provision. See id. at 1073. The government responded by arguing that all other verbs in section 107(a) are in the past tense. See id. at 1073. Judge Carrigan concluded the "congressional intent to either impose or withhold liability for response costs incurred before CERCLA cannot be divined from the verb tenses in § 107(a)." Id.

Second, Shell contended that, if costs are to be recoverable, response and remedial actions must be compatible with the revised NCP (National Contingency Plan). See id. at 1074. In response, the government argued that in the definition section 101(31) of CERCLA, NCP refers to both the original and revised NCP. See id. Thus, the government claimed, recovery would not be limited to post-CERCLA response costs. See id. Judge Carrigan concludes that the "NCP consistency requirement does not preclude recovery of costs incurred before CERCLA's enactment." Id. at 1075.

Third, Shell noted that section 302(a) states "[u]nless otherwise provided, all provisions of this Act shall be effective on the date of enactment of this Act." Id. The government asserted that this date simply provides the date when an action can first be brought and time begins for issuing regulations. See id. at 1064. Judge Carrigan agreed and "[did] not interpret § 302(a) to limit liability for response costs to those incurred after December 11, 1980." Id. Furthermore, the government argued, while § 107(a) does not specifically address time limits for recovery for incurred costs, §§ 107(f) and 111(d) provide specific time limits on recovery for pre-enactment natural resource damages. See id. Thus, if Congress had wanted to restrain the recovery for pre-enactment response costs, it would have explicitly stated so. See id. Judge Carrigan concluded, "Section 107(f) provides that there may be no recovery for damage to natural resources occurring wholly before enactment . . . Accordingly, one must conclude that funds so spent before enactment are recoverable." Id. at 1076.

After examining the arguments, Judge Carrigan offered this reasoning for his conclusion:

Construing section 107(a) to preclude recovery of pre-enactment response costs would carve out an exception to the general retroactive scheme of the statute for those most severe situations where as here, the government's response commenced prior to enactment of the statute. I cannot believe that Congress could have intended to protect the public by imposing liability on the responsible parties, yet except the sites where response had already commenced because the situations were the most imminently threatening. Such an interpretation would penalize the government for prompt response and provide and undeserved windfall to the parties who had created, then abandoned, some of the most egregious sites. I decline to presume that Congress intended this irrational result.

Thus, I conclude from the statute's explicit limitation on recovery of certain natural resource damages, and its failure to limit retroactive recovery of response costs, that CERCA authorizes recovery of response costs, whether incurred before or after its enactment. I hold that Congress, in CERCLA, has overridden the presumption against retroactive application of statutes. The legislative history fully supports this conclusion.

Id. at 1076-77. .

[52] See id. at 1077-79. Again, Judge Carrigan lays out Shell's argument. First, Shell highlighted the deletion of Section 3072, a provision that authorized the recovery of pre-enactment response costs, from H.R. 7020. See id. at 1077 ("Section 3072 of H.R. 7020, 96th Cong., 2d Sess. (1980) (as introduced) provided: 'The provisions of this subpart and subpart C shall apply to releases of hazardous waste without regard to whether or not such releases occurred before, or occur on or after, the date of the enactment of the Hazardous Waste Containment Act of 1980.'"). Judge Carrigan asserts that this provision "applied to liability for response costs without distinguishing between costs incurred before and after enactment; the provision addressed only the time when the releases occurred. . . . There is accordingly no reason to read the deletion as evidence of intent to preclude recovery of pre-CERCLA response costs." Id.

Next, Shell claimed that the deletion of § 4(n) from the enacted compromise bill shows Congress' intent not to authorize recovery for pre-response costs. The pertinent portion of this section (from S. 1480, as introduced), as cited by Judge Carrigan, read as follows:

(n)(1) No person (including the United States, the Fund, or any State) may recover under the authority of this section, nor may any money in the Fund be used under Section 6 of this Act for the payment of any claim, for damages specified under subsection (a)(2)(A), (B), (C),(D),(G), or (E) (other than for loss resulting from personal injury) of this section, nor may any money in the Fund be used under section 6(a) (1) (E) or (F) of this Act, where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before the enactment of this Act.

Id. at 1078. Judge Carrigan determined that Shell's interpretation of the § 4(n) was wrong. He asserted that the time limitations imposed by § 4(n) were included in CERCLA as the §§ 107(f) and 111(d) restrictions of natural resource damages. See id. at 1079. Therefore, he states, "the scheme of § 4(n) in limiting recovery for pre-enactment damages, but not response costs, was maintained in the final statute. The legislative history of § 4(n), including the comments emphasizing that recovery of removal costs is not to be limited by retroactivity concerns, therefore applies to the statute as passed." Id.

After reviewing Shell's arguments, Judge Carrigan states his reasoning for his conclusion that CERCLA authorizes recovery of pre-enactment response costs.

I conclude that the whole purpose and scheme of CERCLA is retrospective and remedial. Where Congress has intended a liability provision to have only prospective operation, as in the case of natural resource damages, Congress has so stated explicitly. (Sections 107(f) and 111(d), 42 U.S.C. §§ 9607(f) and 9611(d).) Congress did not explicitly limit or deny liability for response costs incurred before enactment. Consistent with the statutory scheme, I conclude that CERCLA authorizes recovery of pre-enactment response costs.

Id. .

[53] 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

54 Id. at 737. .

[55] See Amending and Extending the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Hearings before the Comm. on Env't and Public Works , 98th Cong., 2d Sess. 2 (1984) (statement of Sen. Randolph) ("We have gained . . . a fuller appreciation of the dangers to our citizens and communities by hazardous substances . . . Early in the implementation of Superfund, it became apparent that the problem was more widespread than even the members of the committee had realized."); id. at 16 (statement of Sen. Bradley) ("We now know that the magnitude of hazardous waste problems is even larger than we earlier feared."). .

[56] 42 U.S.C.A. § 9611 (1982). .

[57] See supra note 55, at 2 (statement of Sen. Randolph) ("This 5-year program, with the authorization of $1.6 billion is inadequate."); id. at 10 (statement of Sen. Bradley) ("The $1.6 billion currently available is clearly insufficient to make a significant dent in the task of cleaning up these dump sites."). .

[58] See supra note 55, at 1-1252. This collection of eight hearings before the Committee on Environment and Public Works addresses numerous issues pertaining to Superfund Reform. For example, the committee heard testimony on the health effects of Hazardous wastes on the April 11, 1984 hearing. S ee id. at 1-60. For the May 24, 1984 hearing, see id. at 657-900. Issues such as citizen participation were generally addressed at the May 16, 1984 hearing. See id. at 167-341. .

[59] See supra note 55, at 130-37 (testimony of Norman Nosenchuck, Director, Div. of Solid/Hazardous Waste, Dept. of Envtl. Conservation) (addressing the cost of cleanup per site in New York); id. at 161-66 (testimony of Charles Wilhelm and the position paper of the Association of State and Territorial Solid Waste Management Officials) ("The amount of the Fund should be increased to at least $9 billion . . . ."); id. at 241-59 (statement of Vance Hughes, Legislative Director of Clean Water Action Project) ("We recommend that the Senate adopt a non-expiring fund concept . . . We believe that it will be necessary for the fund to 'collect' $15 billion over the next five years."); id. at 287-335 (testimony of Jane L. Bloom, National Resources Defense Council) ("[T]he size of the Fund must be increased to at least $9 billion over 5 years and preferably to $2.4 billion per year as long as the job takes."); id. at 369-98 (discussing support of the Superfund through "waste end" taxes as opposed to feedstock taxes). The question of liability was largely addressed at the July 31, 1984 hearing. See id . at 947-1146. .

[60] See S.51, 99th Cong. (1985), reprinted in 2 A L EGISLATIVE H ISTORY OF T HE S UPERFUND A MENDMENTS AND R EAUTHORIZATION A CT OF 1986, at 413-54 [hereinafter SARA L EGISLATIVE H ISTORY ]. The Superfund Improvement Act of 1985 was a bill to extend and amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and for other purposes. This bill was initially introduced on January 3, 1985, and it reauthorized the Superfund to $7.5 billion. See 131 C ONG . R EC . S11995-S12034 (Sept. 14, 1985). The language of S.51 was inserted into H.R. 2500 since all tax bills must originate in the House. See 131 C ONG . R EC . S12158-S12168, S12184-S12209 (Sept 26, 1985). See also H.R. 2817, 99th Cong. (1985), reprinted in 3 SARA L EGISLATIVE H ISTORY , at 1540-1677; 131 C ONG . R EC . 16573-75 (June 20, 1985); id. at 1535-39 (introducing J.R. 2817); H.R. 3852, 99th Cong. (1985), reprinted in 5 SARA L EGISLATIVE H ISTORY , at 3567-4017; H.R.Res No. 331, 99th Cong. (1985); id. at 4019-22 (proposing H.R. 3852 as an amendment in the nature of a substitute); 131 C ONG . R EC . H11547-65 (Dec. 10, 1985), id. at 4269-4301 (passing the bill, which authorized $10 billion for the Superfund); id. at H11595, reprinted in 5 SARA L EGISLATIVE H ISTORY , at 4356 (inserting the text of H.R. 2817 in the place of the Senate-passed H.R. 2005). .

[61] See supra note 3, at 94 Stat. 2797 ("The taxes imposed by this section shall not apply after September 30, 1985. . . ."). .

[62] See 131 C ONG . R EC . (Jan 3, 1985) (statement of Sen. Lautenberg)

[I]t is vital that the Congress take up consideration of the Superfund program as soon as possible. The Superfund program expires in September. It is imperative that Superfund be reauthorized with sufficient lead time so that the Environmental Protection Agency can gear up to run as expanded and accelerated program.

Id. .

[63] See H.J. Res. 573, 99th Cong. (1986), reprinted in 7 SARA L EGISLATIVE H ISTORY , at 5402-5403. Passed on March 20, 1986, this extension provided a loan from the general fund. See Letters from Lee M. Thomas, EPA administrator, to Rep. John D. Dingell & Sen. Robert T. Stafford (Sept. 22, 1986), reprinted in 132 C ONG . R EC . H9627 (daily ed. October 8, 1986). The EPA Administrator, Lee Thomas, had informed Congress that if the EPA did not receive new funding by April 1, he would have to shut down the Superfund program. See id. .

[64] See H.J. Res. 713, 99th Cong., 2d Sess. (1986), reprinted in 7 SARA L EGISLATIVE H ISTORY , at 5411-5412. .

[65] See 132 C ONG . R EC . H9032 (daily ed. Oct. 3, 1986), reprinted in 6 SARA L EGISLATIVE H ISTORY 4817; see H.R. Conf. Rep. 962, 99th Cong. (1986), reprinted in 1986 U.S. C ODE C ONG . & A DMIN . N EWS 3276, reprinted in 6 SARA L EGISLATIVE H ISTORY , at 4818; 132 C ONG . R EC . S14,943 (daily ed. Oct. 3, 1986), reprinted in 6 SARA L EGISLATIVE H ISTORY , at 5243. The bill passed the Senate the same day it was reported. See 132 C ONG . R EC . H9634 (daily ed. Oct. 8, 1986), reprinted in 6 SARA L EGISLATIVE H ISTORY , at 5386-87. The House passed the bill on October 8. See id. .

[66] Pub. L. No. 99-499, 100 Stat. 1613 (1986). .

[67] See David J. Hayes & Conrad B. MacKerron, Superfund II: A New Mandate, A BNA Special Report , 17 Env't Rep. 1, 128 (BNA) (Feb. 13, 1987). ("The 1986 Superfund Amendments have dealt with many different problems that arose under the first five years of the program by generally increasing the government's authority to control the cleanup process and providing a greatly increased, stable source of funding."). SARA increased the Superfund to $8.5 billion over five years for the Environmental Protection Agency and other federal agencies to cleanup abandoned and inoperative waste sites. See id. at 1. "The 8.5 billion for the hazardous waste cleanup program will be raised through a new $2.5 billion broad based tax on business income and a sharply increased tax on petroleum . . . ." Id . at 2. SARA also added numerous revisions:

The revisions add strict cleanup standards strongly favoring permanent remedies at waste sites, stronger EPA control over the process of reaching settlement with parties responsible for waste sites, a mandatory schedule for initiation of cleanup work and studies, individual assessments of the potential threat to human health posed by each waste site, and increased state and public involvement in the cleanup decision-making process, including the right of citizens to file lawsuits for violations of the law.

Id . at 1.

In the summary of key changes to statue, the authors that SARA had the following effect:

[T]he Act recodified the liability concepts included in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. In particular, Congress has validated the principles of strict, joint, and several liability for responsible parties. The Department of Justice persuaded Congress that these principles, which hold each responsible party potentially liable for the full cost of a cleanup, provide the necessary legal 'club' to induce parties to enter into cleanup settlements with the government. Congress did not explicitly incorporate these concepts in the language of the superfund, but it re-affirmed the applicability of strict, joint, and several liability throughout its consideration of the superfund amendments.

Id. at 19. .

[68] See supra note 67 (discussing liability under SARA). .

[69] See United States v. Montrose Chem. Corp., 835 F. Supp. 534 (C.D. Cal. 1993), rev'd , California V. Montrose Chem. Corp., 104 F.3d 1507 (9th Cir. 1997); United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988), cert. denied , 490 U.S. 1106 (1989); United States v. Shell Oil Co., 841 F. Supp. 962 (C.D. Cal. 1993); HRW Sys. Inc. v. Wash. Gas Light Co., 823 F. Supp. 318 (D. Md. 1993); Abbot Lab. v. Thermo Chem., Inc., 790 F. Supp. 135 (W.D. Mich. 1991); United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991); Kelley v. Thomas Solvent Co., 714 F. Supp. 1439 (W.D. Mich. 1989); Amland Properties Corp. v. ALOCA, 711 F. Supp. 784 (D.N.J. 1989); United States v. Hooker Chem. & Plastics Corp., 680 F. Supp. 546 (W.D. N.Y. 1988); United States v. Mottolo, 695 F. Supp. 621 (D.N.H. 1988); United States v. Miami Drum Serv. Inc., 25 E.R.C. 1469 (S.D. Fla. 1986); United States v. Tyson, 25 E.R.C. 1897 (E.D. Pa. 1986); United States v. Dickerson, 640 F. Supp. 448 (D. Md. 1986). .

[70] See Lewis M. Barr, CERCLA Made Simple: An Analysis of the Cases Under the Compre hensive Environmental Response, Compensation, and Liability Act of 1980 , 45 T HE B US . L AW . 923, 1000 (1990) ("Ten years after its enactment, and four years after its major refinement, CERCLA is working more or less as Congress intended."); see also William A. Montgomery Jr., Constitutional Implications of CERCLA: Due Process Challenges to Response Costs and Retroactive Liability , 31 W ASH . U. J. U RB . & C ONTEMP . L. 279, 288 (1987) ("The control and cleanup of releases of hazardous substances into the environment is a legitimate governmental objective. The liability provisions of CERCLA are a rational means of attaining that end because it is fair to place liability on those who benefit from the creation of the hazardous waste."). But see George C. Freeman, Jr., Inappropriate and Unconstitutional Retroactive Application of Superfund Liability, 42 T HE B US . L AW . 215-248 (1986). .

[71] See id. .

[72] See id. .

[73] See United States v. Olin, 927 F. Supp. 1502 (S.D. Ala. 1996). .

[74] See id. Olin is a Virginia corporation that owned and operated a chemical plant in McIntosh, Alabama. See id. at 1503. The United States alleged that the Olin plant site was actually two sites. Site 1 includes 20 acres on the southern edge of the property, on which an active chemical-production facility operates. See id. at 1504. This site contains a number of "solid waste-management units," both active and inactive, many of which have been closed and treated for the removal of hazardous substances. See id. The government claims that "in 1952 Olin Mathieson began operating a mercury-cell chloralkali plant on Site 1 which generated and released wastewater containing mercury into Site 2 until 1974. This plant ceased operating in 1982." Id. at 1504. Furthermore, in 1955 "Olin Mathieson built a 'crop-protection-chemicals' plant which discharged waste water into Site 2 until 1974." Id.

Because these two plants ran from the 1950's to late 1982, "mercury and chloroform, which are alleged to be hazardous substances under 42 U.S.C. §9601(14), were released into Site 1." Id. Although most of the supposed contamination occurred before December 11, 1980, the government argued that a threat of continued releases at and from Site 1 existed. Id. at 1506. "According to the remedial investigation report, any contaminants still at Site 1 affect groundwater there mostly by migrating through the alluvial aquifer . . . . Indeed, the record reflects that any contamination at Site 1 is of such minimal proportions as not to constitute any hazard to the public." Id. at 1506-07. Along with the action against Olin, the Justice depart ment filed a proposed consent decree. See id. at 1505. Before it would rule on the consent decree, the court requested two briefs. The defendant additionally raised the issue of CERCLA's retroactivity, claiming that "Congress did not intend for CERCLA to be retroactive and that if it did, CERCLA violates the Due Process Clause and unconstitutionally delegates legislative power to the EPA." Id. at 1507. The Justice Department responded to the claims concerning retroactivity. Hence, Judge Hand examined these arguments about retroactivity to form his decision. See id. .

[75] Id. at 1519. Judge Hand also concluded that CERCLA violated the Commerce Clause as interpreted in United States v. Lopez , 514 U.S. 549 (1995). .

[76] See, e.g., Mark D. Tucker , "Retroactive Liability" Is Challenged , NAT'L L.J., Oct. 14, 1996, at C1 (discussing Judge Hand's "unanticipated decision" that CERCLA could not be applied retroactively). This unusual decision brought about an impassioned response from the Department of Justice. See, e.g., Congress Wanted CERCLA Applied Retroactively, Government Says in Brief , 9 No. 9 MLRSF 4 (Aug. 9, 1996) ("A federal judge who found in May that CERCLA did not apply retroactively to waste cites created before its enactment seriously misinterpreted a recent Supreme Court decision on the Commerce Clause, the U.S. Department of Justice argued . . . .").

While many commentators were surprised at the decision, they generally believed that the decision would be short-lived. See, e.g. , Superfund: Retroactive Liability Decision Seen Unlikely to Survive Certain Appeal , S OLID W ASTE R EP ., Aug. 1, 1996 , available in 1996 WL 8264604. Accord ing to Adam Babich of the Washington-based Environmental Law Institute, the decision could create a "short flurry of activity." Id. However, he believed that decision would be short lived because Judge Hand "went the other way on an issue that was settled." Id. .

[77] See 927 F. Supp. at 1507 ("[A] panel of the Eleventh Circuit recently referred to CERCLA as being retroactive. Virginia Properties Inc. v. Home Ins. Co., 74 F. 3d 1131, 1132 (11th Cir., 1996). The issue of retroactivity, however, was not before that court."). .

[78] See id. Judge Hand recognizes the following federal cases: In the Matter of Penn. Cent., 944 F.2d 164 (3rd Cir. 1991); Aetna Cas. & Sur. Co. v. Pintlar Corp., 948 F.2d 1507 (9th Cir. 1991); O'Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989); United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986); HRW Sys. v. Wash. Gas, 823 F. Supp. 318 (D. Md. 1993); United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991); Philadelphia v. Stepan Chem., 748 F. Supp. 283 (E.D. Pa. 1990); Kelley v. Solvent Co., 714 F. Supp. 1439 (W.D. Mich. 1989); O'Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988); United States v. Hooker Chem. & Plastics, 680 F. Supp. 546 (W.D.N.Y. 1988); United States v. Dickerson, 640 F. Supp 448 (D. Md. 1986); United States v. Onatti, Inc. 630 F. Supp. 1361 (D.N.H. 1985); Town of Boonton v. Drew Chem., 621 F. Supp. 663 (D.N.J. 1985); United States v. Conservation Chem. Co., 619 F. Supp. 162 (W.D. Mo. 1985); United States v. Shell Oil, 605 F. Supp. 1064 (D. Colo. 1985); Jones v. Inmont, 584 F. Supp. 1425 (S.D. Ohio 1984): United States v. S. C. Recycling Disposal Co., 653 F. Supp. 984 (D.S.C. 1984); United States v. Northeastern Pharm. & Chem. Co., 579 F. Supp. 823 (W.D. Mo. 1984); United States v. Price, 577 F. Supp 1103 (D.N.J. 1983); Ohio v. Georgeoff, 562 F. Supp. 1300 (N.D. Oh. 1983); United States v. Wade, 546 F. Supp. 785 (E.D. Pa. 1982). .

[79] 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229 (1994). See also Olin , 927 F. Supp. at 1507. The defendants cited Freeman George Clemon, Jr ., A Public Policy Essay: Superfund Retroactivity Revisited, 50 B US . L AW . 663 (Feb. 1995). Freeman argues that section 107(a) of CERCLA could not meet the test of the statutory construction offered in Justice Stevens' majority opinion in Landgraf. See id. at 665. Moreover, Freeman claims that neither the text of the statute nor the legislative history could support the retroactive application. See id. .

[80] 927 F. Supp. at 1508. Judge Hand cites the Plaintiffs Memorandum on the Retroactivity of CERCLA and Due Process Issues. The plaintiff maintains that "[e]very court to face CERCLA retroactivity challenges has rejected the arguments advanced here. Indeed, courts have uniformly held that (1) Congress clearly and unequivocally intended retroactive application of CERCLA; and (2) such a liability scheme is rationally related to a legitimate governmental interest." Id. .

[81] See id. .

[82] Id. Judge Hand cites the following cases: United States v. South Carolina Recycling & Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1984), aff'd in part and vacated in part , 858 F.2d 160 (4th Cir. 1988), cert. denied , 490 U.S. 1106 (1989); United States v. Diamond Shamrock Corp. No. C80-1857, 1981 WL 137997, at *1 (N.D. Ohio May 29, 1981); United States v. Price, 523 F. Supp. 1055 (D.N.J 1981), aff'd , 688 F.2d 204 (3d Cir. 1982). South Carolina Recycling concluded that the act was not "retroactive," but applied CERCLA on the theory that because the previous disposal continued to cause or threatened to cause releases after the Act's effective data. See 653 F. Supp. at 984. .

[83] Id. .

[84] Id. .

[85] Id. at 1508-09. Judge Hand argues that Landgraf destroys the interpretive premises of previous cases by "attempting to clarify confusion regarding the interpretive rules applicable to retroactivity." Id. at 1508. "Our precedents on retroactivity left doubts about what default rule would apply in the absence of congressional guidance, and suggested that some provisions might apply to cases arising before enactment while others might not." Id. (comparing Bowen v. Georgetown Univ. Hosp ., 488 U.S. 204 (1988) with Bradley v. Richmond Sch. Bd ., 416 U.S. 696 (1974)). The court continues: "In reaffirming the traditional presumption against retroactive legislation, Landgraf disproves language in Bradley which had appeared to reverse that traditional presumption." Id. at 1508-09. Bradley allowed an award of attorneys' fees "on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in a manifest injustice or there is a statutory direction or legislative history to the contrary." 416 U.S. at 711. Furthermore, the Landgraf court states that "[a]lthough the language suggests a categorical presumption in favor of application of all new rules of law, we now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely 'retroactive' effect." Landgraf , 511 U.S. at 277. .

[86] Judge Hand claims that the court in Georgeoff "did exactly what Landgraf disapproves. Georgeoff began quite appropriately by 'initially determin[ing] the standard to be applied in determining whether a statute should be applied retroactively.'" 927 F. Supp. at 1509 (citing Georgeoff , 562 F. Supp. at 1306). .

[87] Olin , 927 F. Supp. at 1508. .

[88] See id. In a footnote, Judge Hand recounts the Georgeoff court's explanation of the presumption.

Since the principal basis for the presumption against retroactivity is the threat of raising a constitutional issue, the reduction of that constitutional issue must necessarily reduce the need to interpret CERCLA to avoid raising that constitutional issue. The weight of the presumption therefore being reduced , a more lenient approach in reviewing claims that the presumption has been over-ridden may be appropriate. After Thorpe and Bradley , the presumption against retroactivity has arguably been changed to a presumption in favor of retroactivity. That presumption can only be over-ridden where there is a clear legislative directive to limit the statute to a prospective application or the change in law would cause manifest injustice to the party adversely affected.(emphasis added).

Id. at 1507, n. 9. .

[89] Id. at 1509. .

[90] See id. Judge Hand states that "the rest of the cases basically rely on one or more of these three cases and other cases which cite these cases." Id. at 1509. .

[91] 605 F. Supp. at 1064. .

[92] 810 F.2d 726 (8th Cir. 1986). .

[93] See 605 F. Supp. at 1072; 810 F.2d at 733. .

[94] See Olin , 927 F. Supp. at 1509. First, Judge Hand states that "neither case explains how it is applying the presumption against retroactivity; but like Georgeoff , both cases demonstrate little regard for the presumption." Id. Judge Hand recognizes that the Shell Oil court analyzes the statutory provisions as well as the "general scheme and purpose" of CERCLA, and the court concludes that CERCLA is "unavoidably retroactive." 605 F. Supp at 1073. Judge Hand also cites Landgraf stating "that retroactive application of a new statute would vindicate its purpose more fully . . . is not sufficient to rebut the presumption against retroactivity." Landgraf , 511 U.S. at 285-86. Judge Hand further criticizes the court in Shell because "[o]ther than its discussion of 'general purpose and scheme,' Shell Oil does not explain precisely what overrides the presumption against retroactivity." 927 F. Supp. at 1509. In regard to Northeastern Pharma ceutical , Judge Hand maintains that the case "treats the presumption itself lightly, devotes only one sentence to the statutory language, relies on Shell Oil and Georgeoff among other cases, and offers one paragraph about the statutory scheme." Id. at 1510. In a footnote, Judge Hand offers the discussion of the presumption by the Court in Northeastern Pharmaceutical :

The district court correctly found Congress intended CERCLA to apply retroactively. (citation omitted). We acknowledge there is a presumption against the retroactive application of the statutes. See United States v. Security Industrial Bank, 459 U.S. 70, 79 (1982). We hold, however, that CERCLA §302(a), is "merely a standard 'effective date' provision that indicated the date when an action can first be brought and when the time begins to run for issuing regulations and doing other future acts mandated by the statute." United States v. Shell Oil Co. , 605 F.Supp. 1064, 1075 (D. Colo. 1985); cf. Von Allmen v. Conn.t Teachers Retirement Bd, 613 F.2d 356, 359-60 (2d Cir. 1979) (veterans statute).

Although CERCLA does not expressly provide for retroactivity, it is manifestly clear that Congress intended CERCLA to have retroactive effect. The language used in the key liability provision, CERCLA §107, 42 U.S.C. § 9607, refers to actions in the past tense: "any persons who . . . at the time of disposal of any hazardous substances owned or operated," CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2), "any person who arranged with a transporter for transport of disposal," CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3), and "any person who . . . accepted any hazardous substances for transport to . . . sites selected by such person," CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4).

Further, the statutory scheme itself is overwhelmingly remedial and retroactive. CERCLA authorizes the EPA to force responsible parties to cleanup inactive or abandoned hazardous substance sites, CERCLA § 106, 42 U.S.C. § 9606, and authorizes federal, state, and local governments and private parties to cleanup such sites and then seek recovery of their response costs from, responsible parties, CERCLA § 104, 107, 42 U.S.C. § 9604, 9607. In order to be effective, CERCLA must reach past conduct. CERCLA's backward looking focus is confirmed by the legislative history. . . .

Id. at 1510. .

[95] Id . .

[96] Id. at 1510-11. As support for this claim that Landgraf has an impact on Olin, Judge Hand offers the following footnote: " See also Leonard Charles, The Civil Rights Act of 1991, Retroactivity, and Continuing Violations , 28 U. R ICHMOND L. R EV . 1363 (1994) ("Prior to Landgraf , the Court had utilized two conflicting presumptions regarding the retroactivity of civil legislation."). See Nelson Lund, Retroactivity, Institutional Incentives, and the Politics of Civil Rights , 1995 P UB . I NT . L. R EV . 87 (1995); Duncan B. Hollis, Employment Discrimination Law, Statutory Retroactivity , 36 B.C. L. R EV . 373, 385 (1995) ("Beyond the scope of the § 1981 cases, however, Rivers , in conjunction with Landgraf , does much to resolve the confusion surrounding what test a court should apply when a case implicates a statue enacted after the violative conduct occurred."). .

[97] 927 F. Supp. at 1511. While Judge Hand summarized the analysis, he also included major portions of the opinion. See id. at 1510-12. .

[98] Id. at 1512. .

[99] See id. at 1512-13. First, Judge Hand simply states, "CERCLA contains no language explicitly stating that it is retroactive." Id. at 1512. However, he acknowledges that Landgraf's "discussion of other (i.e., non-express) statutory language and legislative history establishes that these should be considered in determining congressional intent." Id. at 1512. Therefore, Judge Hand examines the non-express statutory language.

Because Landgraf instructs that answers to retroactivity issues can vary among the provisions, Judge Hand examines sections 106(a) and 107(a). First, in regard to section 106(a), Judge Hand states that "[a]though injunctive relief is ordinarily prospective, when it requires a party to spend funds related to actions taken prior to CERCLA's enactment, such relief is nevertheless retroactive. Thus to the extent that the government's claims under 106(a) and 107(a) relate to actions taken prior to the effective date of CERCLA, they involve the issue or retroactivity." Id. at 1512-13.

Moreover, Judge Hand maintains that the Justice Department relies only on Northeastern Pharmaceutical 's observation, citing that "[t]he language used in the key liability provision, CERCLA § 107 . . . refers to actions and conditions in the past tense." 810 F.2d at 733. In contrast, the Court proffers the decision in Georgeoff.

Despite these statutory arguments, the Court is unable to declare that the statute evidences the 'imperative character' required to overcome the presumption against retroactivity. Regardless, these provisions provide some evidence that Congress intended CERCLA to apply retroactively. The Court, therefore, will consider these statutory terms indicia, of a Congressional intent to allow retroactive application of CERCLA.

562 F. Supp. at 1311.

Judge Hand next states that the court in Shell Oil agrees with Georgeoff's decision that "the statutory language in CERCLA is not sufficient to establish retroactivity . . . ." Id . at 1513. Therefore, the Court concludes that "the language of Section 107 provides 'no clear evidence of Congressional intent,' as required by Landgraf , that CERCLA's liability provisions be given retroactive effect." 927 F. Supp. at 1513.

Furthermore, Judge Hand states that Section 106 "contains no language indicating congressional intent to authorize relief that is retroactive." Id. The Justice Department argues that, "although it reaches pre-enactment conduct, legislation designed to alleviate a continuing public nuisance does not act retroactively." 562 F. Supp. at 1304. However, Landgraf rules out this attempt to dodge the issue of retroactivity. .

[100] See Olin, 927 F. Supp. at 1513-16. Judge Hand initially states that "CERCLA itself has almost no legislative history." Id. at 1513. He relies on arguments from Frank P. Grad, Treatise on Environmental Law Sec. 4A.02[2][a], at 4A-51 (1994). See id. at 1514. Grad states, "the actual bill which became Public Law No. 96-510 had virtually no legislative history at all" and that most of CERCLA's legislative history comes from "bills introduced which contributed to some extent to the final act." Id.

The Court acknowledges that in Landgraf , it considered a previous bill as part of legislative history. More importantly, the Court in Landgraf strongly regarded the fact that a bill that had explicitly provided for retroactivity has been vetoed the previous year. Because the later legislation did not contain the explicit provision for retroactivity, the Landgraf court inferred that "it seems likely that one of the compromises that made it possible to enact the 1991 version was an agreement not to include the kind of explicit retroactivity command found in the 1990 bill." Landgraf , 511 U.S. at 262.

Morever, Judge Hand recognizes that the court in Georgeoff stated, "the precise issue of retroactivity . . . was not addressed in Congressional debates." 562 F. Supp. at 1311. The Justice Department highlights that one of the differences between CERCLA and the civil rights statute examined in Landgraf is that no other bill before CERCLA explicitly supported retroactivity. See 927 F. Supp. at 1508. Judge Hand responds to this argument by stating the absence of a vetoed bill discussing retroactivity "does not strengthen the case for retroactivity. It only means that what Justice and other courts have labeled the legislative history of CERCLA may not be as clear as was the legislative history of the Civil Rights Act considered in Landgraf ." Id. at 1514. In an attempt to demonstrate clear intent of CERCLA's retroactivity, the Justice Department argues that the "history, as analyzed by the courts, demonstrates unequivocally that Congress was concerned about the past, pre-enactment acts of disposal." Id.

However, Judge Hand dismisses the Justice Department's argument by stating the following:

The argument of the Justice, relying as it does on past cases, fails to overcome the presumption against retroactivity because those prior cases do not follow the analysis of Landgraf and because they find clarity in legislative history which does not exist. Many of the past cases are unclear about two things which are dis tinguished in Landgraf : congressional intent and retroactive effect. As discussed below, Landgraf struggles with the term 'retroactive.' The majority excludes cer tain statutes from the presumption against retroactivity, specifically procedural and jurisdictional statutes.

511 U.S. at 244.

Approving of Justice Story's discussion in Society for Propagation of the Gospel v. Wheller , 22 F.Cas. 756 (No. 12, 156) (CCDNH 1814), the majority states that "[a] statute does not operate 'retroactively' merely because it is applied in a case arising from conduct antedating the statute's enactment . . . ." 511 U.S. at 269. In other words, the fact that legislation might have retroactive effect does not necessarily mean that Congress clearly intended it to be so applied. .

[101] 927 F. Supp. at 1516. .

[102] See id. .

[103] Id. .

[104] Id. The Court continues by stating that "the Justice Department's attempt in this case to impose liability under § 107(a) largely on actions occurring prior to the statute's effective date 'would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.'" Id. at 1516. .

[105] See id. Judge Hand states that "[w]hat Landgraf said about compensatory damages can be said about the financial liabilities under CERCLA for pre-enactment conduct: [t]he new damages remedy in Sec. 102, we conclude, is the kind of provision that does not apply to events antedating its enactment in the absence of clear congressional intent." Id. .

[106] Id. at 1516-19. .

[107] Landgraf , 511 U.S. at 280. The Court focuses on a particular section and then "distinguishes between a procedural provision of that section (jury trial right) which would 'presumably apply to cases . . . regardless of when the underlying conduct occurred,' and its punitive and compensatory damages provision." Id. at 281. While the Landgraf court interpreted punitive damages not to be retroactive, the court struggled with classifying the provision that authorized the recovery of compensatory damages because the "conduct itself was already unlawful—only the remedy was new. . . despite the differences between the compensatory damages provision." 927 F. Supp. at 1517. .

[108] See Olin, 927 F. Supp. at 1516. According to Judge Hand,

"§ 106 does provide for fines for failure to comply with an executive branch abatement order; such fines are clearly punitive. Section 107(c)(3) also authorizes punitive, treble damages. The EPA uses the threat of punitive damages as a negotiating tool. Given the very real threat of punitive damages, CERCLA retro activity poses very nearly the same 'ex post facto' danger referred to in Landgraf ."

Id. at 1517. "According to Landgraf , a provision for punitive damages should not be construed as retroactive unless the language forces that conclusion." Id. at 1517. .

[109] Id. at 1516. .

[110] Id. The court in Olin stated "even on the compensatory damages issue, Landgraf says, 'it is the kind of provision that does not apply in the absence of clear congressional intent.' Certainly, under Landgraf principles, CERCLA liability is the kind that does not apply retroactively without clear congressional intent." Id. at 1517. .

[111] Id. .

[112] Id. at 1518. .

[113] See id. First, the court cites Landgraf , stating that "compensatory damages are quin tessentially backward-looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not 'compensate' by distributing fund from the public differs, but by requiring particular employers to pay for harms they caused." Id. Second, the court again cites Landgraf , stating that the fact that "retroactive application of [this] statute would its purpose more fully . . . is not sufficient to rebut the presumption against retroactivity." Id. at 1518 (citing 511 U.S. at 285-86). .

[114] The court claims that only one sentence, in isolation, provides support for the Justice Department's argument. "Section 102 is plainly not the sort of provision that must be understood to operate retroactively because a contrary reading would render it ineffective.' Id. at 1518. Judge Hand further acknowledges that Congress addresses present as well as future problems. See id. However, the court makes the following argument:

It does not follow . . . that the liability provision 'must be interpreted to be retroactively because a contrary reading would render it ineffective.' The Court continues by stating that in regard to pre-enactment releases. "the purpose of CERCLA can be covered through the Superfund. The EPA, however, has chosen to recover as much as possible from private parties, no doubt in part due to Congress' failure to provide sufficient resources to pay for cleaning all the sites, even as the need was thought to be in 1980. See Georgeoff , 562 F.Supp. at 1312-13. While Georgeoff takes the lack of funding as an indication of congressional intent to make CERCLA retroactive, lack of funding does not render the operation of the statute itself ineffective in the sense used in Landgraf.

Id . .

[115] 927 F. Supp. at 1519. .

[116] Id. .

[117] See id. at 1502; Landgraf , 511 U.S. at 244. .

[118] See id. .

[119] See supra notes 33-54, and accompanying text for a discussion of cases decided before the reauthorization of CERCLA. .

[120] See id. .

[121] 925 F. Supp. 691 (D.Nev. 1996). .

[122] Id . at 704 (citing Shell Oil , 605 F. Supp. at 1072). .

[123] Id. at 693. The earlier cases that the court refers to include Bradley v. Richmond School Board , 416 U.S. 696 (1969) (authorizing application of statutory attorney's fees provision to a prevailing party in litigation commenced before the provision's effective date) and Thorpe v. Hous. Auth. of Durham , 393 U.S. 268 (1969) (authorizing application of a regulation requiring local housing authority to give pre-eviction notice of reasons and opportunity to an eviction commenced before issuance of the regulation). See Landgraf , 511 U.S. at 276-80. .

[124] 925 F. Supp. at 693. .

[125] Id. at 694 ("Congress implicitly authorized retroactive application of the third category of liability, damages to natural resources, section 107(a)(4)(C).") (quoting Shell Oil , 605 F. Supp at 1076)). In contrast, Olin does not specifically address this section of Shell . .

[126] Id. at 695 ("[T]he distinction between retroactive damages liability and retroactive response cost liability was maintained in the final version of CERCLA as the §§ 107(f) and 111(d) limitations on recovery of natural resource damages."). .

[127] See generally Shell Oil , 605 F. Supp at 1064-86. .

[128] Atlantic Richfield, 925 F. Supp at 695 (citing Shell Oil , 605 F. Supp. at 1064, 1069, 1076-77). .

[129] Id. As support for this conclusion, Judge Hagen offered the following footnote:

See, e.g., Colloquy between Senators Stafford and Hart in Senate Debate on S. 1480, Nov. 24, 1980 (noting term "hazardous substances" in S. 1480 will cover existing abandoned radium-contaminated sites in Colorado); Remarks of Rep. Vento in House Debate on S. 1480, Dec. 3, 1980 (noting bill is designed in part "to cleanup our environment from past improperly disposed of hazardous wastes;" delay in passage of bill will "prolong the overall danger"); Remarks of Rep. Fisher in House Debate on S. 1480, Dec. 3, 1980 (noting bill will deal with "problems of toxic waste disposed of years ago"); Remarks of Rep. Martin in House Debate on S. 1480, Dec. 3, 1980 ("[A]bandoned orphaned collection of unlabeled crud . . . will not clear themselves up"); Remarks of Rep. Lent in House Debate on S. 1480, Dec. 3, 1980 (noting RCRA contains a gap "respecting the past disposal of chemical wastes . . . it is necessary to enact legislation to assist in the cleaning of these sites"); Remarks of Rep. LaFalce in House Debate on S.1480, Dec. 3, 1980 (noting bill "deal[s] with the problem of abandoned waste sites"); Remarks of Rep. Gore in House Debate on S. 1480, Dec 3, 1980 (pointing out that 3000 abandoned hazardous chemical waste sites in the U.S. "need to be dealt with"); Remarks of Rep. Brown in House Debate on S. 1480, Dec. 3, 1980 (establishing that in contrast to other environmental legislation, this bill deals with "who pays for cleaning up the environmental mess we have created"); Statement of Sen. Muskie ("Our present laws are not enough . . . We must correct those omissions in the law having to do with past hazardous waste disposal methods."); Letter, September 25, 1979, from Douglas M. Costle, Admin.,U.S.E.P.A., to Jennings Randolph, Chairman, Senate Committee on Environment and Public Works, reprinted in S. Rep. No. 96-848, July 11, 1980 (providing for response at "abandoned and inactive' sites; bill "would establish liability for costs expended by the government to cleanup past disposal practices that today are threatening public health and the environment"; liability provisions are not retroactive because "they merely codify longstanding common law rules relating to liability for hazardous products and undertakings"); S. Rep. No. 96-848, July 11, 1980, additional Views of Senators Domenici, Bentsen, and Baker ("S. 1480 . . . substantially chang(es) existing common law (in some cases retroactively")).

Id. at 695 n.8. .

[130] 933 F. Supp. 431 (M.D. Pa. 1996). .

[131] See id. at 438. The Court came to the following conclusion:

[ Olin ] is the only Court to date to hold that CERCLA does not apply retroactively. Several courts, including the Third Circuit, have addressed the issue of CERCLA's retroactivity. See In the Matter of Penn Central, 944 F.2d 164 (3rd Cir. 1991). Furthermore, all of the cases this Court has cited in rejecting Defendants liability arguments have applied CERCLA retroactively without formally ruling on the issue. Accordingly, we are unpersuaded by a single Alabama District Court case which is surrounded by a myriad of opinions that apply CERCLA retroactively, either directly or implicitly. Thus, we will reject Defendants arguments on retroactivity grounds.

Id. .

[132] 96 F.3d 1434 (3d. Cir. 1996), cert. denied , 117 S. Ct. 2479 (1997). .

[133] 1 Federal Court Upholds Retroactive Application of Superfund; Holds Alcan Corp Liable for 1985 Oil Slick , DOJ N EWS R ELEASE , available in 1996 WL 481778. .

[134] 790 F. Supp. 1255 (E.D. Pa. 1992). .

[135] See id. This case examined several factors similarly to Olin . See id. First, the Court found that CERCLA's express language supports a finding of clear congressional intent to apply CERCLA retroactively. See id. The Court specifically found persuasive the past tense language used in 42 U.S.C. § 9607(a)(2), (a)(3), and (a)(4). Next, the court made the following ruling:

The legislative history of CERCLA supports a finding that Congress intended CERCLA to apply retroactively. The fact that inactive sites are discussed separately from new sites and the fact that inactive sites are discussed first suggests to this Court 1) that the existence of inactive sites such as Love Canal prompted Congress to pass CERCLA, and 2) that CERCLA was intended to impose liability on those parties responsible for such inactive sites. To effectuate this result, CERCLA must be applied retroactively. To find otherwise would be to ignore a significant portion of the legislative history of the Act. Moreover, a contrary finding would frustrate the primary purpose of the Act.

Id. .

[136] 107 F.3d 1506 (1997) [hereinafter Olin II ]. .

[137] See id. at 1510 ("[A]lthough Congress did not include in CERCLA either legislative findings or a jurisdictional element, the statute remains valid as applied in this case because it regulates a class of activities that substantially affects interstate commerce."). Id. .

[138] See id. The government argued that the issue was "releases of hazardous substances generally." Id. .

[139] Id. .

[140] See id . at 1510-11. The court only references Lopez when concluding that "the regulation of intrastate, on-site waste disposal constitutes an appropriate element of Congress' broader scheme to protect interstate commerce and industries thereof from pollution." Id . at 1511. .

[141] See id. at 1514. .

[142] Id. .

[143] 94 F.3d 1489 (11th Cir. 1996) (holding against original property owner already held responsible for cleanup costs under CERCLA in action against general and limited partners of current owner). .

[144] 85 F.3d 1514 (11th Cir. 1996) (deciding that the district court was correct in granting summary judgement in favor of manufacturers who were sued under CERCLA by buyer because electrical transformers contained polychlorinated biphenyls (PCBs)). .

[145] 84 F.3d 402 (11th Cir. 1996) (concluding that landowners who contracted for pesticide aerial spraying were not liable since they did not arrange for disposal as defined under CERCLA). .

[146] Olin II , 107 F.3d at 1511. .

[147] See Allan Freedman, With Bipartisan Deal Elusive, Superfund Effort Dies , 54 C ONG . Q. W KLY . R EP . 2044 (1996) [hereinafter Freedman I]. .

[148] See id. .

[149] See Allan Freedman, GOP Woos Democrats in Talks Over New Superfund Plan , 54 C ONG . Q. W KLY . R EP . 614 (1996). .

[150] See Issue: Superfund , 54 C ONG . Q. W KLY . R EP . 31 (1996). .

[151] See S. 1285, 104th Cong. § 701(b) (1995).

(iv) NO RETROACTIVE LIABILITY—

(I) Compensatory Restoration—There shall be no recovery from any person under of this section of the costs of compensatory restoration for a natural resource injury, destruction, or loss that occurred prior to December 11, 1980.

(II) Primary Restoration—There shall be no recovery from any person under this section for the costs of primary restoration if the natural resource injury, destruction, or loss for which primary restoration is sought and release of the hazardous substance from which the injury resulted occurred wholly before December 11, 1980.

Id. .

[152] See Allan Freedman, Senate Plan Would Shift Costs, Narrow Scope of Superfund, 53 C ON . Q. W KLY . R EP . 1923 (1995) [hereinafter Freedman II]. .

[153] See S. 1285, 104th Cong. § 501 (1995).

(B) CONDUCT PRIOR TO DECEMBER 11, 1980—

IN GENERAL—For any mandatory allocation facility that is otherwise excluded by subparagraph (A), an allocation process shall be conducted for the sole purpose of determining the percentage share of responsibility attributable to activity of each potentially responsible party prior to December 11, 1980.

Id. § 501(b).

(k) EQUITABLE FACTORS FOR ALLOCATION—The allocator shall prepare a non-binding allocation of percentage shares of responsibility to each allocation party and to the orphan share, in accordance with this section and without regard to any theory of joint and several liability based on—

(1) the amount of hazardous substances contributed by each allocation party; (2) the degree of toxicity of hazardous substances contributed by each allocation party; (3) the mobility of hazardous substances contributed by each allocation party; (4) the degree of involvement of each allocation party in the generation, transportation, treatment, storage, or disposal of hazardous substances; (5) the degree of care exercised by each allocation party with respect to hazardous substances, taking into account the characteristics of the hazardous substances; (6) the cooperation of each allocation party in contributing to any response action and in providing complete and timely information to the allocator; and (7) such other equitable factors as the allocator determines are appropriate.

Id. § 501(k). .

[154] See Freedman II, supra note 152, at 1923. .

[155] S. 1285, 104th Cong. § 701(c)(4) (1995).

(3) SELECTION OF RESTORATION METHOD—

When selecting appropriate restoration measures, including natural recovery, a trustee shall select the most cost-effective method of achieving restoration.

Id. .

[156] See Freedman II, supra note 152, at 1923. .

[157] S. 1285, 104th Cong. § 802 (1995).

(A) LIMITATION—

During each of the 3 12-month periods following the date of enactment of this subsection, the Administrator may add not more than 30 new vessels and facilities to the National Priorities List.

(B) PRIORITIZATION—

The Administrator shall prioritize the vessels and facilities under the subparagraph (A) on a national basis in accordance with the threat to human health and the environment presented by each of the vessels and facilities, respectively.

Id. .

[158] See Freedman II, supra note 152, at 1923. .

[159] S. 1285, 104th Cong. § 201(a) (1995).

(A) NONCOMPREHENSIVE DELEGATION STATES—

A non-comprehensive delegation State shall implement each applicable provision of this Act (including regulations and guidance issued by the Administrator) so as to perform each delegated authority with respect to a delegated facility in the same manner as would the Administrator with respect to a facility that is not a delegated facility.

(B) COMPREHENSIVE DELEGATION STATES—

(i) IN GENERAL—A comprehensive delegation State shall implement applicable provisions of this Act or of similar provisions of State law in a manner comporting with State policy, so long as the remedial action that is selected protects human health and the environment to the same extent as would a remedial action selected by the Administrator under Section 121.

Id. .

[160] See Allan Freedman, Oxley Treads a Fine Line in Revising Superfund, 53 C ONG . Q. W KLY . R EP . 2990 (1995) [hereinafter Freedman III]. .

[161] See H.R. 2500, 104th Cong. § 202(a) (1995).

(A) EXEMPTION FROM LIABILITY—Subject to subparagraph (B), no person (other than the United States or a department, agency or instrumentality of the United States) shall be liable for costs or damages referred to in subsection (a) with respect to a release or threatened release of a hazardous substance from a facility that—

(i) on June 15, 1995, was listed on the National Priorities list; and

(ii) on or before June 15, 1995, was authorized by the appropriate State or local government to accept, and did accept for disposal household waste (from single and multiple dwellings, hotels, motels, and other residential sources).

Id. .

[162] See Freedman III, supra note 160, at 2990. .

[163] See H.R. 2500, 104th Cong. § 203(a) (1995).

(1) DE MINIMIS CONTRIBUTOR EXEMPTION FROM RETROACTIVE LIABILITY—In the case of a facility or vessel not owned by the United States listed on the National Priorities List, no person described in paragraph (3) or (4) or sub section (a) (other than the United States or a department, agency or instrumentality of the United States) shall be liable under subsection (a) for any costs under this section if no activity of such person described in such paragraph (3) or (4)—

(A) occurred after January 1, 1987, and

(B) resulted in the disposal or treatment of more than 1 percent of the volume of materials containing hazardous substances at such facility or vessel.

Id . .

[164] See Allan Freedman, Businesses May Escape Cleanup Costs , 53 C ONG . QWKLY . R EP 2174 (1995). .

[165] See Freedman II, supra note 152, at 1923. .

[166] See Freedman III, supra note 160, at 2990. .

[167] See H.R. 2500, 104th Cong. § 201(a) (1995).

(g) REIMBURSEMENT FOR RETROACTIVE LIABILITY—(1) In the case of a facility or vessel not owned by the United States listed on the National Priorities Lists, a person (other than the United States or any department, agency, or instrumentality of the United States) shall be eligible for reimbursement from the Fund for 50 percent of any costs referred to in Section 107(a) paid or incurred by such person after October 18, 1995, to the extent that—

(A) such person's liability under Section 107 is attributable to a status or activity of such person (as described in paragraph (1), (2), (3), or (4) of subsection (a) that existed or occurred prior to January 1, 1987, and

(B) such costs are attributable to response activities carried out after October 18, 1995.

Id. .

[168] See id. .

[169] See Allan Freedman, Superfund Negotiators Hope For Bipartisan Compromise , 54 C ONG . Q. W KLY . R EP . 1041 (1996). .

[170] See Issue: Superfund , 54 CONG . Q. WKLY . REP . 2440 (1996). .

[171] See Freedman I, supra note 147, at 2044 (1996). .

[172] See id. .

[173] See id. .

[174] See David Hosansky, President Expected To Travel Center Lane to 21st Century , 54 CONG . QWKLY . REP . 3222 (1996). .

[175] See id. .

[176] See id. at 3224. .

[177] See id . .

[178] See Allan Freedman, President Expected To Travel Center Lane to 21st Century , 54 C ONG . Q. W KLY . R EP . 2818 (1996). .

[179] Senate Bill 8, the Superfund Cleanup Acceleration Act, was introduced before the Senate on January 21, 1997, by Senator Bob Smith and his co-sponsor, Senator John Chafee of Rhode Island. See Bill Introduces Fair-Share Cleanup Liability , 4 INS REG 9, available in 1997 WL 7880063. .

[180] See id. .

[181] See Miles Moore, GOP Makes 2nd Try at Superfund Reform , T IRE B US ., Feb. 3, 1997. .

[182] See Bill Summary & Status for the 105th Congress (visited January 4, 1998) . As of Sept. 4, 1997, hearings on Senate Bill 8 were occurring in the Committee on Environment and Public Works. See id. .

[183] See H.R. 3000, 105th Cong. (1997). Thirty-nine representatives co-sponsored this bill. See id . Including this bill and Senate Bill 8, members of Congress have introduced at least fifteen other bills to amend CERCLA. See Bill Summary & Status for the 105th Congress , (viewed Jan. 17, 1998) . .

[184] See id . § 201(a). In addition, this bill absolves of liability certain owners or operators who acquired the contaminated facility by inheritance or bequest. It also limits liability for certain owners or operators who are tax-exempt organizations and certain municipalities and other owners of National Priority Listed landfills. The bill exempts from liability: (1) construc tion contractors whose liability is based solely on a contracted construction activity at the facility; (2) certain railroad owners or operators of spur tracks; or (3) persons whose liability is based on a status as a holder of a pipeline right-of-way or easement or of a gas or oil lease if such a person does not cause or contribute or consent to the release or threat of release. See id. .

[185] See Bill Summary & Status for the 105th Congress (visited January 4, 1998) . On Nov. 9, 1997 the bill was referred to the Committee on Commerce, the Committee on Transportation and Infrastructure, and Ways and Means. See id. .

[186] "I would like to eliminate retroactive liability . . . . It is 'fundamentally un-American . . . . I will die hard on this issue,' says Representative Shuster." Mark Hoffman, Superfund Reform Redux: Calls to Repeal Retroactive Liability Continue, Legislators Say , 2 B US . I NS ., 1997 WL 8293787. .

[187] See Freedman I, supra note 147, at 2044. .

[188] See id. .

[189] See id. .

[190] Rep. Archer, Chair of the House Ways & Means Comm., said that he will do what he can to ensure that taxes to refinance the Superfund will not be re-authorized until the program has been completely reformed. See Hoffman, supra note 186. .

[191] See Freedman I, supra note 147, at 2044. .

[192] See id. .

[193] See id. .

[194] See infra note 200 and accompanying text. .

[195] See Tucker, supra note 76, at C1. .

[196] See id. .

[197] See id. .

[198] See Allan Freedman, Superfund Cleanup , 54 C ONG . Q. W KLY . R EP . 544 (1996). .

[199] See Allan Freedman, Superfund Rewrite Focuses on Retroactive Liability , 53 C ONG . Q. W KLY . R EP . 1173 (1995). .

[200] See id. .

[201] See Allen Freedman, Administration Opposes GOP's Superfund Bill, 54 C ONG . Q. W KLY . R EP . 1167 (1996). .

Whether the law is in force at any given time is for the jury. Harvey vs. Ryan, 42 Cal. 626.

KEEPER OF THE ROLL, THE DEER AND THE WOOD - CHIEF-IN-EQUITY

RESIDENT-AT-LAW

SPECIAL DEPUTY SERGEANT INSPECTOR GENERAL

HIGH WARDEN OF THE ARBORETUM, GALES, AND STANNARIES

MORMAER OF THE GRAN DUCADO DE ARMANSHIRE MANOR

First Exchequer of the Pleas of the Freeminers by writ of Quo warranto

Last Chancellor to the Curia Regis of the Armanshire by writ of Quominus

FACILITY COMPLIANCE AUDITOR

The U.S. District Court for the District of Maryland has determined that the requirements for innocent landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do not apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section 107 cost recovery action against a waste generator because the landowner had fulfilled the innocent landowner requirements that were in place when the property was purchased.

The case involves a contaminated site where Mineral Pigments Corporation (which later became known as Rockwood Pigments NA, Inc.) dumped metal-bearing wastes into sand and gravel pits during the 1960s and 1970s. Later, 1325 G Street Associates ( G Street ) bought the site without realizing that it was contaminated.

The court ruled that Rockwood must reimburse G Street more than $181,000 for past response costs. Further, the court held that Rockwood is liable for G Street 's future response costs at the site. The September 7, 2004 decision was handed down in 1325 G Street Associates, LP v. Rockwood Pigments NA, Inc. (Docket Number: DKC 2002-1622).

Site History

Since the 1960s, Mineral Pigments Corporation (now Rockwood Pigments NA, Inc.) has manufactured metal-based pigments for use in paints and other products at its facility in Beltsville , Maryland . Wastes containing chromium, lead, and zinc are generated during the processes. From the late 1960s to the early 1970s, pigment wastes were disposed in mined-out sand and gravel pits located on land then owned by the Contee Sand and Gravel Company, Inc. (CSG). The CSG site is located approximately one mile west of the Mineral Pigments facility. During this period, about 50,000 gallons of liquid waste sludge containing lead, chromium, and zinc were dumped at the CSG site every two weeks....

 

INNOCENCE, PRESUMPTION OF - The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require a person to prove his innocence or produce any evidence at all. The Government has the burden of proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not guilty.

Presumption of Innocence

The concept of the presumption of innocence had its roots in the Common Law, long established in Britain and thence in America . Besides being a part of the environment of justice in which our Founders lived, the concept is central to the ideas of Freedom and Due Process of Law. In addition, the common sense of any reasonably enlightened people must dictate that a person accused is innocent until proven guilty, just as much as they would believe that the other rights of defendants must be reasonably protected. Those protections for the accused were incorporated by the Founders into the Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights , and could not have been of any import had there not first been a presumption of innocence.

A close parallel to the presumption of innocence is the presumption of freedom -- that freedom is not something the government rations to the people, but rather a birthright the people own in its entirety, to be loaned back in small parts to the government with their knowing consent. The presumption of freedom is guaranteed by the Ninth and Tenth Articles of the Bill of Rights -- too often made light of today, but of key importance to the concept of individual Liberty . Those Articles demand, in essence, that unless specifically stated to the contrary by the Constitution, the people shall be presumed to own every freedom, as well as the power of self-determination.

If a citizen cannot be presumed innocent until proven guilty, he likewise will not be presumed to have freedom without an argument over his right to that freedom. At that juncture, both freedom and innocence yield to the convenience of government.

In both cases, the opposite must prevail if we are to call ourselves Americans.

 

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

 

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, ? ? 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, ? 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.
Greenleaf traces this presumption to Deuteronomy , and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens . Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration , as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

[click on more to read additional quotes]

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent ." Dig. L. XLVIII, Tit. 19, 1. 5.
"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56.
"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.
"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says : "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally ." De Laudibus Legum Angliae, Amos' translation, Cambridge , 1825.

[*456] Lord Hale (1678) says : "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."

 

  • Purchasers who acquire property without knowledge of contamination on the property.
Sec. 9601. Definitions   For purpose of this subchapter-- (1) The term ``act of God'' means an unanticipated grave natural disaster or other 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.

 

(35)(A) The term ``contractual relationship'', for the purpose of section 9607(b)(3) of this title, includes, but is not limited to, land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless the real property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of the evidence: (i) At the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility. (ii) The defendant is a government entity which acquired the facility by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation. (iii) The defendant acquired the facility by inheritance or bequest.   In addition to establishing the foregoing, the defendant must establish that the defendant has satisfied the requirements of section 9607(b)(3)(a) and (b) of this title, 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), is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action. (B) Reason to know.-- (i) All appropriate inquiries.--To establish that the defendant had no reason to know of the matter described in subparagraph (A)(i), the defendant must demonstrate to a court that-- (I) on or before the date on which the defendant acquired the facility, the defendant carried out all appropriate inquiries, as provided in clauses (ii) and (iv), into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and practices; and (II) the defendant took reasonable steps to-- (aa) stop any continuing release; (bb) prevent any threatened future release; and (cc) prevent or limit any human, environmental, or natural resource exposure to any previously released hazardous substance.   (ii) Standards and practices.--Not later than 2 years after January 11, 2002, the Administrator shall by regulation establish standards and practices for the purpose of satisfying the requirement to carry out all appropriate inquiries under clause (i). (iii) Criteria.--In promulgating regulations that establish the standards and practices referred to in clause (ii), the Administrator shall include each of the following: (I) The results of an inquiry by an environmental professional. (II) Interviews with past and present owners, operators, and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility. (III) Reviews of historical sources, such as chain of title documents, aerial photographs, building department records, and land use records, to determine previous uses and occupancies of the real property since the property was first developed. (IV) Searches for recorded environmental cleanup liens against the facility that are filed under Federal, State, or local law. (V) Reviews of Federal, State, and local government records, waste disposal records, underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records, concerning contamination at or near the facility. (VI) Visual inspections of the facility and of adjoining properties. (VII) Specialized knowledge or experience on the part of the defendant. (VIII) The relationship of the purchase price to the value of the property, if the property was not contaminated. (IX) Commonly known or reasonably ascertainable information about the property. (X) The degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.   (iv) Interim standards and practices.-- (I) Property purchased before may 31, 1997.--With respect to property purchased before May 31, 1997, in making a determination with respect to a defendant described in clause (i), a court shall take into account-- (aa) any specialized knowledge or experience on the part of the defendant; (bb) the relationship of the purchase price to the value of the property, if the property was not contaminated; (cc) commonly known or reasonably ascertainable information about the property; (dd) the obviousness of the presence or likely presence of contamination at the property; and (ee) the ability of the defendant to detect the contamination by appropriate inspection.   (II) Property purchased on or after may 31, 1997.--With respect to property purchased on or after May 31, 1997, and until the Administrator promulgates the regulations described in clause (ii), the procedures of the American Society for Testing and Materials, including the document known as ``Standard E1527-97'', entitled ``Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process'', shall satisfy the requirements in clause (i).   (v) Site inspection and title search.--In the case of property for residential use or other similar use purchased by a nongovernmental or noncommercial entity, a facility inspection and title search that reveal no basis for further investigation shall be considered to satisfy the requirements of this subparagraph.   (C) Nothing in this paragraph or in section 9607(b)(3) of this title shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this chapter. Notwithstanding this paragraph, if the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under section 9607(a)(1) of this title and no defense under section 9607(b)(3) of this title shall be available to such defendant. (D) Nothing in this paragraph shall affect the liability under this chapter of a defendant who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance which is the subject of the action relating to the facility.

 

(Pub. L. 96-510, title I, Sec. 101, Dec. 11, 1980, 94 Stat. 2767; Pub. L. 96-561, title II, Sec. 238(b), Dec. 22, 1980, 94 Stat. 3300; Pub. L. 99-499, title I, Secs. 101, 114(b), 127(a), title V, Sec. 517(c)(2), Oct. 17, 1986, 100 Stat. 1615, 1652, 1692, 1774; Pub. L. 100-707, title I, Sec. 109(v), Nov. 23, 1988, 102 Stat. 4710; Pub. L. 103-429, Sec. 7(e)(1), Oct. 31, 1994, 108 Stat. 4390; Pub. L. 104-208, div. A, title I, Sec. 101(a) [title II, Sec. 211(b)], title II, Sec. 2502(b), Sept. 30, 1996, 110 Stat. 3009, 3009-41, 3009-464; Pub. L. 104-287, Sec. 6(j)(1), Oct. 11, 1996, 110 Stat. 3399; Pub. L. 106-74, title IV, Sec. 427, Oct. 20, 1999, 113 Stat. 1095; Pub. L. 107-118, title II, Secs. 211(a), 222(a), 223, 231(a), Jan. 11, 2002, 115 Stat. 2360, 2370, 2372, 2375.)

 

The Solid Waste Disposal Act, referred to in pars. (14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of Pub. L. 89- 272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94- 580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (Sec. 6901 et seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (Sec. 6921 et seq.) and IX (Sec. 6991 et seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables.

 

The Federal Water Pollution Control Act, referred to in par. (39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, also known as the Clean Water Act, which is classified generally to chapter 26 (Sec. 1251 et seq.) of Title 33, Navigation and Navigable Waters. Section 311(c) of the Act was amended generally by Pub. L. 101-380, title IV, Sec. 4201(a), Aug. 18, 1990, 104 Stat. 523, and no longer contains provisions directing the publishing of a National Contingency Plan. However, such provisions are contained in section 1321(d) of Title 33. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Toxic Substances Control Act, referred to in par. (39)(B)(iv), (viii)(II), is Pub. L. 94-469, Oct. 11, 1976, 90 Stat. 2003, as amended, which is classified generally to chapter 53 (Sec. 2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables.   Amendments   2002--Par. (35)(A). Pub. L. 107-118, Sec. 223(1), in introductory provisions substituted ``deeds, easements, leases, or'' for ``deeds or'' and in concluding provisions substituted ``the defendant has satisfied'' for ``he has satisfied'' and inserted before period at end ``, 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), is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action''. Par. (35)(B). Pub. L. 107-118, Sec. 223(2), added subpar. (B) and struck out former subpar. (B) which read as follows: ``To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.'' Par. (39). Pub. L. 107-118, Sec. 211(a), added par. (39). Par. (40). Pub. L. 107-118, Sec. 222(a), added par. (40). Par. (41). Pub. L. 107-118, Sec. 231(a), added par. (41). 1999--Par. (20)(D). Pub. L. 106-74, which directed the amendment of subpar. (D) by inserting ``through seizure or otherwise in connection with law enforcement activity'' before ``involuntary'' the first place it appears, could not be executed because the word ``involuntary'' does not appear in subpar. (D). 1996--Pars. (8), (16). Pub. L. 104-208, Sec. 101(a) [title II, Sec. 211(b)], substituted ``Magnuson-Stevens Fishery'' for ``Magnuson Fishery''. Par. (20)(E) to (G). Pub. L. 104-208, Sec. 2502(b), added subpars. (E) to (G). Par. (26). Pub. L. 104-287 substituted ``section 60101(a) of title 49'' for ``the Pipeline Safety Act''. 1994--Par. (26). Pub. L. 103-429 substituted ``a hazardous liquid pipeline facility'' for ``pipeline''. 1988--Par. (23). Pub. L. 100-707 substituted ``Disaster Relief and Emergency Assistance Act'' for ``Disaster Relief Act of 1974''. 1986--Pub. L. 99-499, Sec. 101(f), struck out ``, the term'' after ``subchapter'' in introductory text. Pars. (1) to (10). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (11). Pub. L. 99-499, Sec. 517(c)(2), amended par. (11) generally. Prior to amendment, par. (11) read as follows: ``The term `Fund' or `Trust Fund' means the Hazardous Substance Response Fund established by section 9631 of this title or, in the case of a hazardous waste disposal facility for which liability has been transferred under section 9607(k) of this title, the Post-closure Liability Fund established by section 9641 of this title.'' Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Pars. (12) to (15). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (16). Pub. L. 99-499, Sec. 101(a), (f), inserted ``The term'', struck out ``or'' after ``local government,'' inserted ``, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe'', and substituted a period for the semicolon at end. Pars. (17) to (19). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (20)(A). Pub. L. 99-499, Sec. 101(f), inserted ``The term''. Pub. L. 99-499, Sec. 101(b)(2), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: ``in the case of any abandoned facility, any person who owned, operated, or otherwise controlled activities at such facility immediately prior to such abandonment.'' Pub. L. 99-499, Sec. 101(b)(3), in provisions following subcl. (iii), substituted a period for the semicolon at end. Par. (20)(B), (C). Pub. L. 99-499, Sec. 101(b)(3), substituted ``In the case'' for ``in the case'' and a period for the semicolon at end. Par. (20)(D). Pub. L. 99-499, Sec. 101(b)(1), (f), added subpar. (D). The part of Sec. 101(f) of Pub. L. 99-499 which directed the amendment of par. (20) by changing the semicolon at end to a period could not be executed in view of the prior amendment of par. (20) by Sec. 101(b)(1) of Pub. L. 99-499 which added subpar. (D) ending in a period. Par. (21). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (22). Pub. L. 99-499, Sec. 101(c), (f), inserted ``The term'' and ``(including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)'', substituted a period for the semicolon at end. Par. (23). Pub. L. 99-499, Sec. 101(f), inserted ``The terms'' and substituted a period for the semicolon at end. Par. (24). Pub. L. 99-499, Sec. 101(d), (f), inserted ``The terms'' and substituted ``and associated contaminated materials'' for ``or contaminated materials'' and ``welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.'' for ``welfare. The term does not include offsite transport of hazardous substances, or the storage, treatment, destruction, or secure disposition offsite of such hazardous substances or contaminated materials unless the President determines that such actions (A) are more cost-effective than other remedial actions, (B) will create new capacity to manage, in compliance with subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.], hazardous substances in addition to those located at the affected facility, or (C) are necessary to protect public health or welfare or the environment from a present or potential risk which may be created by further exposure to the continued presence of such substances or materials;''. The part of Sec. 101(f) of Pub. L. 99- 499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (24) by Sec. 101(d) of Pub. L. 99-499 which substituted language at end of par. (24) ending in a period for former language ending in a semicolon. Par. (25). Pub. L. 99-499, Sec. 101(e), (f), inserted ``The terms'' and ``, all such terms (including the terms `removal' and `remedial action') include enforcement activities related thereto.'' The part of Sec. 101(f) of Pub. L. 99-499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by Sec. 101(e) of Pub. L. 99-499 inserting language and a period at end of par. (25). Pars. (26), (27). Pub. L. 99-499, Sec. 101(f), inserted ``The terms'' and substituted a period for the semicolon at end. Par. (28). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for the semicolon at end. Par. (29). Pub. L. 99-499, Sec. 101(f), inserted ``The terms'' and substituted a period for the semicolon at end. Par. (30). Pub. L. 99-499, Sec. 101(f), inserted ``The terms''. Par. (31). Pub. L. 99-499, Sec. 101(f), inserted ``The term'' and substituted a period for ``; and''. Par. (32). Pub. L. 99-499, Sec. 101(f), inserted ``The terms''. Pars. (33) to (36). Pub. L. 99-499, Sec. 101(f), added pars. (33) to (36). Par. (37). Pub. L. 99-499, Sec. 114(b), added par. (37). Par. (38). Pub. L. 99-499, Sec. 127(a), added par. (38). 1980--Pars. (8), (16). Pub. L. 96-561 substituted ``Magnuson Fishery Conservation and Management Act'' for ``Fishery Conservation and Management Act of 1976''.     Effective Date of 1996 Amendment   Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L. 104-208 provided that the amendment made by that section is effective 15 days after Oct. 11, 1996. Amendment by section 2502(b) of Pub. L. 104-208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L. 104-208, set out as a note under section 6991b of this title.     Effective Date of 1986 Amendment   Section 4 of Pub. L. 99-499 provided that: ``Except as otherwise specified in section 121(b) of this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of this Act [enacting subchapter IV of this chapter and sections 9616 to 9626, 9658 to 9660, and 9661 of this title and sections 2701 to 2707 and 2810 of Title 10, Armed Forces, amending sections 6926, 6928, 6991 to 6991d, 6991g, 9601 to 9609, 9611 to 9614, 9631, 9651, 9656, and 9657 of this title and section 1416 of Title 33, Navigation and Navigable Waters, and renumbering former section 2701 of Title 10 as section 2721 of Title 10] shall take effect on the enactment of this Act [Oct. 17, 1986].'' Amendment by section 517(c)(2) of Pub. L. 99-499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99-499, set out as an Effective Date note under section 9507 of Title 26, Internal Revenue Code.     Effective Date of 1980 Amendment   Section 238(b) of Pub. L. 96-561 provided that the amendment made by that section is effective 15 days after Dec. 22, 1980.     Short Title of 2002 Amendments   Pub. L. 107-118, Sec. 1, Jan. 11, 2002, 115 Stat. 2356, provided that: ``This Act [enacting section 9628 of this title, amending this section and sections 9604, 9605, 9607, and 9622 of this title, and enacting provisions set out as notes under this section and section 9607 of this title] may be cited as the `Small Business Liability Relief and Brownfields Revitalization Act'.'' Pub. L. 107-118, title I, Sec. 101, Jan. 11, 2002, 115 Stat. 2356, provided that: ``This title [amending sections 9607 and 9622 of this title and enacting provisions set out as a note under section 9607 of this title] may be cited as the `Small Business Liability Protection Act'.'' Pub. L. 107-118, title II, Sec. 201, Jan. 11, 2002, 115 Stat. 2360, provided that: ``This title [enacting section 9628 of this title and amending this section and sections 9604, 9605, and 9607 of this title] may be cited as the `Brownfields Revitalization and Environmental Restoration Act of 2001'.''     Short Title of 1996 Amendment   Section 2501 of div. A of Pub. L. 104-208 provided that: ``This subtitle [subtitle E (Secs. 2501-2505) of title II of div. A of Pub. L. 104-208, amending this section and sections 6991b and 9607 of this title and enacting provisions set out as a note under section 6991b of this title] may be cited as the `Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996'.''     Short Title of 1992 Amendment   Pub. L. 102-426, Sec. 1, Oct. 19, 1992, 106 Stat. 2174, provided that: ``This Act [amending section 9620 of this title and enacting provisions set out as a note under section 9620 of this title] may be cited as the `Community Environmental Response Facilitation Act'.''     Short Title of 1986 Amendment   Section 1 of Pub. L. 99-499 provided that: ``This Act [enacting subchapter IV of this chapter and sections 9616 to 9626, 9658 to 9662, 11001 to 11005, 11021 to 11023, and 11041 to 11050 of this title, sections 2701 to 2707 and 2810 of Title 10, Armed Forces, and sections 59A, 4671, 4672, 9507, and 9508 of Title 26, Internal Revenue Code, amending this section, sections 6926, 6928, 6991 to 6991d, 6991g, 9602 to 9609, 9611 to 9614, 9631, 9651, 9656, and 9657 of this title, sections 26, 164, 275, 936, 1561, 4041, 4042, 4081, 4221, 4611, 4612, 4661, 4662, 6154, 6416, 6420, 6421, 6425, 6427, 6655, 9502, 9503, and 9506 of Title 26, and section 1416 of Title 33, Navigation and Navigable Waters, renumbering former section 2701 of Title 10 as section 2721 of Title 10, repealing sections 9631 to 9633, 9641, and 9653 of this title and sections 4681 and 4682 of Title 26, and enacting provisions set out as notes under this section, sections 6921, 6991b, 7401, 9620, 9621, 9658, 9660, 9661, and 11001 of this title, section 2703 of Title 10, sections 1, 26, 4041, 4611, 4661, 4671, 4681, 9507, and 9508 of Title 26, and section 655 of Title 29, Labor] may be cited as the `Superfund Amendments and Reauthorization Act of 1986'.''     Short Title   Section 1 of Pub. L. 96-510 provided: ``That this Act [enacting this chapter, section 6911a of this title, and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters, and section 11901 of Title 49, Transportation, and enacting provisions set out as notes under section 6911 of this title and sections 1 and 4611 of Title 26] may be cited as the `Comprehensive Environmental Response, Compensation, and Liability Act of 1980'.''   Transfer of Functions   For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out as a note under section 5841 of this title.   Territorial Sea and Contiguous Zone of United States   For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under section 1331 of Title 43, Public Lands.     Definitions   Section 2 of Pub. L. 99-499 provided that: ``As used in this Act [see Short Title of 1986 Amendment note above]--

 

``(1) CERCLA.--The term `CERCLA' means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.). ``(2) Administrator.--The term `Administrator' means the Administrator of the Environmental Protection Agency.''  

 

 

Geoffrey Chaucer makes reference to the Serjeants in the Canterbury Tales , writing:

"A serjeant of the law, ware and wise,
That often hadde ben at the parvis,
Ther was also, full rich of excellence.
Discreet he was and of great reverence,
He sened swiche; his wordes were so wise,
Justice he was ful often in assise,
By patent, and by pleine commissiun;
For his science, and for his high renoun,
Of fees and robes had he many on." [ 3 ]

 

Let him who takes a thief, or to whom one taken is given, and he then lets conceals the theft, pay for the thief according to his wer. If he be an ealdorman, let him forfeit his shire, unless the king is willing to be merciful to him. [ 8 ]

That a thief shall be pursued.... If there be present need, let it be made known to the hundredman, and let him make it known to the tithingmen; and let all go forth to where God may direct them to go. Let them do justice on the thief, as it was formerly the enactment of Edmund I . [ 9 ]

And the man who neglects this, and denies the doom of the hundred, and the same be afterwards proved against him, let him pay to the hundred xxx. pence; and for the second time lx. pence, half to the hundred, half to the lord. If he do so a third time, let him pay half a pound; for the fourth time, let him forfeit all that he owns, and be an outlaw, unless the king allow Him to remain in the country. [ 10 ]

In 920 AD, King Edward the Elder set forth that the reeve or gerefa of the shire, a royal official, should hold court each month to try cases of both civil and criminal matters. The modern term “sheriff” originates from the Saxon " shire reeve" and the term gerefa . [ 11 ] The shire reeve was the earliest public official charged specifically with keeping the King's peace.

I will that each reeve have a gemot always once in four weeks, and so do that every man be worthy of folk-right; and that every suit have an end, and a term when it shall be brought forward. If that any one disregard, let him make bot as we before ordained. [ 12 ]

The Norman invasion of England eventually disrupted the Saxon hundreds system. Gradually, disregard for collective responsibility in conserving the peace led to relaxed requirements for the King's subjects to appear at each session of court. The baronage and clergy were no longer required to appear unless specifically required, and persons having matters before the court could have attorneys appear on their behalf. [ 13 ] In response to the loss of this collective responsibility, Henry III of England appointed four specific knights in each county deemed responsible for conserving the peace.

By virtue of the office of general conservator of the peace throughout the whole kingdom, the High Warden may commit all violators of the peace, or bind them in recognizances to keep it; but the other Judges are only so in their own Courts.

"The principal, the vital defect in the existing law," says
Chief Justice Beatty (Report, page 396), "is this permission
to make local rules. There are, I have reason to believe,
other important defects in the law, but as to most of these
there are more competent judges, and I leave it to them to
point out the evil and suggest a remedy. But as to- the practical
workings of the local rules and customs of miners, when
allowed the force of law, I have very decided opinions, which
I feel that my means of knowledge justify me in stating with
some confidence in their correctness. I believe that the
whole subject of mining locations is an extremely simple
one,, which may easily, and certainly therefore ought to be,
regulated by one general law, the terms and existence of
which shall be established by public and authentic records,
and not left to be proved in every case by the oral testimony
of witnesses, or by writing contained in loose papers or memorandum-
books, such as are often dignified by the name of
'mining records.' I am convinced, moreover, that the tainting
of every mining title in the land at its very inception
with the uncertainty which results from the actual or possible
evistence of rules affecting its validity, perfectly authentic evidence
of which is nowhere to be found, is a stupendous evil.
Experience has demonstrated that such an uncertain state
of the law is a prolific source of litigation, and no experience
is required to convince any man of ordinary intelligence that

it must have the effect of depreciating the value of all unpatented
claims by deterring the more prudent class of capitalists
from investing in them. That the subject is simple enough
to be embraced in one general law is proved by the fact that
the laws of the various districts, although differing in details,
are in substance identical, and are substantially contained in
the existing acts of Congress.

Water Rights:

Water rights in California can be held by any legal entity. There are no restrictions on who can hold water rights, thus the owner can be an individual, related individuals, non-related individuals, trusts, corporations, government agencies, etc.. Water rights are considered real property (they can be owned separately from the land on which the water is used or diverted) and can be transferred from one owner to another, both temporarily or permanently. Any transfer (sale, lease, or exchange) is subject to approval by the State Water Board through the application process discussed above. Approval is granted upon finding that the transfer would not result in injury to any other water right and would not unreasonably affect fish, wildlife, or other instream beneficial use.

An appropriative water right in California can be maintained only by continuous beneficial use, and can be lost by five or more continuous years of non-use. Riparian rights, on the other hand, cannot be lost through non-use. Appropriative rights can also be lost through abandonment, but to constitute abandonment of an appropriative right, there must be the intent not to resume the beneficial use of the water right. As a result, abandonment is always voluntary. The rights to waters lost through abandonment or non-use revert to the public, but only after notice has been given and a public hearing is held.

Adjudications:

In California, adjudication can be initiated through the court or through statutory procedures. Court initiated adjudication occurs when a water right lawsuit is filed in court (all surface and ground water rights may be included in this procedure). In the case of a court initiated adjudication, the court often asks the State Water Board to act a referee and to conduct an investigation and report back. Statutory adjudications result when one or more entities claim a right from a specific source and file a petition with the State Water Board. The statutory procedure can be used to determine all rights to any body of water including percolating groundwater. The result of a statutory adjudication is a decree that integrates all rights on the water source and sets quantity, season, priority, etc..

 

California statute«.— (1) Under Civ. Code § 1007, the running of limitations operates on the state in respect to any property not dedicated to public use as soon as adverse possession thereof begins without reference to a presumed grant. Peo. v. Banning Co., 140 P 587. (2) A reservation of swamp lands of the state from s.-ile by state statute is a mere restriction on the general power delegated to the officers of the state to sell swamp lands, and the lands may be acquired by adverse possession, unless dedicated to a public use. Peo. v. Banning Co., 140 P 587. (3) Where tidelands of the state have been dedicated to a public use, there can be no adverse possession thereof to start the running of limitations against any action by the state or its authorized agencies to assert the public right or such possession as will give title by prescription to the adverse claimants against the public right. Peo. v. Banning Co., 140 P 587. (4) It has been held by the supreme court of the United States that the statute declares that the people of the state will not sue any person for or in respect of any real property by reason of the right or title of the people to the same, unless certain facts exist, was held to be obviated, as regards land in the bay of San Francisco beyond the established harbor line, by the act creating the board of state harbor commissioners and directing them to take possession of all that portion of the bay lying beyond the established harbor line. Weber v. Harbor Comrs., 18 Wall. 57, 68, 21 L. ed. 798. The court In this case said:

"It is contended with much force that the statute only applies to lands which the State holds, as private proprietor, for sale or other disposition, and in respect to which the title may be lost by adverse possession, as defined in the same statute, and not to lands which she holds as sovereign In trust for the public. . . . Where lands are held by the State simply for sale or other disposition, and not as sovereign in trust for the public, there Is some reason in requiring the assertion of her rights within a limited period, when any portion of such lands Is intruded upon, or occupied without her permission, and the policy of the statute would be carried out by restricting its application to such cases."

11-] In Minnesota it is held, however, under the statutory provision that the limitations for the commencement of actions "shall apply to the same actions when brought in the name of the state, or in the name of any officer," etc., that no distinction can be made between actions brought as "sovereign" or In a governmental capacity and those brought as "proprietary" or such as a private person might bring. St. Pnul v. Chicago, etc., R. Co., 45 Minn. 387, 48 NW 17.

46. Buckner v. Ktrkland, 110 S W 399, 33 KyL 603.

47. State v. Seattle, 57 Wash. 602, 107 P 827, 27 LRANS 11S8.

48. Rochester v. Kennedy, 229 Pa. 251, 78 A 133; Bagley v. Wallace, 16 Serg. & R. (Pa.) 245; State v. Arledge, 18 S. C. L. 401, 23 AmD 145. And see cases Infra this note. Compare Chamberlain v. Ahrens, 55 Mich. Ill, 20 NW 814 (where it was said that before the express statutory enactment title could be acquired to land owned by the state and held In a proprietary right as distinguished from lands held In trust for the public).

??] Where lands have been forfeited to the »täte under the delinquent tax laws or otherwise, (1) they cannot be the subject of adverse possession while the title thus acquired remains in the state. Bagley v. Wallace, 16 Serg. & R. (Pa.) 245. (2) And if the lands were held adversely to the owner at the time of the forfeiture the adverse character of the occupancy ceases when the state acquires title and cannot be asserted against either the state or its grantee. Armstrong v. Morrill, 14 Wall. (U. S.) 120, 20 L. ed. 765; Hall v. Gittings, 2 Harr. & J. (Md.) 112: Levasser v. Washburn, 11 Gratt. (52 Va.) 572. 578; Hale v. Branscum, 10 Gratt. (51 Va.) 418; Staats v. Board, 10 Gratt. (51 Va.) 400; Hall v. Webb, 21 W. Va. 318. In Levas.scr v. Washburn, supra, it was said; "It Is true, in a certain sense, the commonwealth takes the land on forfeiture in the same plight and condition in which It stood at the time of the forfeiture. The commonwealth takes the estate and title of the former owner, and no other. If at the time of the forfeiture his title were absolutely bound by the adversary possession of another, it may be no title would vest in the commonwealth, unless it were saved by the existence of her lien on the land for arrears of taxes; a point upon which I express no opinion. But if when the forfeiture accrued the right of entry still remained to the owner, though an ad versary possession had been commenced, the possession as to her must lose Its adversary character, and she must take and hold the subject with the same rights, privileges and immunities which pertain to any other lands held by her In her demesne. I can perceive no good reason why any discrimination should be made, or why she should hold forfeited lands upon different principles and with diminished privileges from those applying to other subjects of similar character."

| $ 448] 2. Time When the Statute Commences to Run—a. General Rule. The statute begins to run against a grantee of the sovereignty only from the time when he acquires title; in view of the rule excluding the government from the operation of the

statute an occupancy prior to that time will not be deemed adverse and can have no effect to give title by adverse possession against grantees of the federal 53 or state governments. 64 The applications of this general rule, however, are not uniform, as will hereinafter appear.

[§ 449] b. Applications of Rule—(1) Introductory Statement. Since there is a difference of opinion as to just when the title of the federal or state government passes to a grantee 55 the cases do not agree in the application of the above stated general rule.

[4 450] (2) Grantees of the Federal Government—(a) Rule That Patent Must Issue—aa. In General. On the ground that the title of the United States does not pass until the issuance of a patent it is held by one line of cases that the statute runs against a purchaser from the federal government only from the date of his patent. 50

[b] Escheat. —Title by adverse possession cannot be acquired in lands which have escheated to the state. Harlock v. Jackson, 5 S. C. L. 254, 6 S. C. L. 135: Ellis v. State, 3 Tex. Civ. A. 170, 21 SW 68. 24 SW 660.

Obiter dictum

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An obiter dictum (plural obiter dicta , often referred to simply as dicta or obiter ) is Latin for a statement "said by the way." Merriam-Webster Online Dictionary gives obiter dictum three definitions:

  • "literally, something said [ dictum ] in passing [ obiter ] . . ."
  • "an incidental remark or observation"
  • "an incidental and collateral opinion that is uttered by a judge but is not binding"

In the third meaning, an obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument." [ 1 ] Unlike the rationes decidendi , obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis , statements constituting obiter dicta are therefore not binding, although in some jurisdictions, such as England and Wales , they can be strongly persuasive.

An example of an instance where a court opinion may include obiter dicta is where a court rules that it lacks jurisdiction to hear a case or dismisses the case on a technicality. If the court in such a case offers opinions on the merits of the case, such opinions may constitute obiter dicta . Less clear-cut instances of obiter dicta occur where a judge makes a side comment in an opinion to provide context for other parts of the opinion, or makes a thorough exploration of a relevant area of law. Another example would be where the judge, in explaining his ruling, provides a hypothetical set of facts and explains how he or she believes the law would apply to those facts.

In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta . A quoted passage of obiter dicta may become part of the holding or ruling in a subsequent case, depending on what the latter court actually decided and how that court treated the principle embodied in the quoted passage.

Obiter dicta can be influential. One example in United States Supreme Court history is the 1886 case Santa Clara County v. Southern Pacific Railroad . A passing remark from Chief Justice Morrison R. Waite , recorded by the court reporter before oral argument, now forms the basis for the doctrine that juristic persons are entitled to protection under the Fourteenth Amendment . Whether or not Chief Justice Waite's remark constitutes binding precedent is arguable, but subsequent rulings treat it as such.

In other instances, obiter dicta can suggest an interpretation of law that has no bearing on the case at hand but might be useful in future cases. The most notable instance of such an occurrence is the history of the famous Footnote 4 to United States v. Carolene Products Co. (1938), which while rejecting use of the Due Process Clause to block most legislation suggested that the clause might be applied to strike down legislation dealing with questions of "fundamental right." This obiter dictum is generally considered to have led to the doctrine of strict scrutiny (and subsequently intermediate scrutiny ) in racial-, religious-, and sexual-discrimination cases, first articulated in Korematsu v. United States (1944).

The arguments and reasoning of a dissenting opinion also constitute obiter dicta . These, however, might also be cited should a court determine that its previous decision was in error, as when the United States Supreme Court cited Justice Oliver Wendell Holmes, Jr. 's dissent in Hammer v. Dagenhart when it overturned Hammer in United States v. Darby Lumber Co.

 

obiter dictum in the whole decision of
Judge Ross is the following: "The power to absolutely
prevent the use of such waters for the objectionable purposes
necessarily includes the power to prescribe the terms and
conditions upon which they may be so used." (81 Fed. Rep.
254.) Taken in connection with the facts of the case, however,
this language would simply mean : "The power to absolutely
prevent the use of such waters for the objectionable
purposes necessarily includes the power to prescribe the
terms and conditions without which they mav not be so used."
P*"^~ The decision simply decides the constitutional right of the
government to protect the navigability of the streams by
closing down, through legislation, any hydraulic mine in
these watersheds which has not submitted itself to the jurisdiction
of the commission. The miner will not be heard
to say in resistance that he is being deprived of his property
without due process of law. That is settled, but that is all
that is settled, by the judicial construction thus far given to
the Act. Is the working of the Act reciprocal? The miner
is bound with hooks of steel; but how about the farmer is
he likewise bound? Is the State of California bound? For
the purposes of any miner who desires to take his chances
under the act, the test of its constitutionality should be made
in some case brought against a company or person operating
under a duly obtained permit from the commission, and
not in a case against a company or person not operating
under such permit. Moreover, the test should be made in
defending a case where a farmer attacks the Act on the
ground that some constitutional right of his is being
abridged, or where the people of the State of California (on
relation of the Attorney-General) attack it on the ground
that some of their constitutional rights are being abridged,
by the action of a miner operating under a duly obtained permit
from the commission. No other test will settle the point.
The permit of the commission is already a finality as far as
the miner is concerned. Is it a finality as far as the farmer
and the State are -concerned? To settle this point, the ques

tions to be presented by a farmer or by the State, under the
two sets of cases above set forth, are the following : Is, or
is not, the act contrary to the provisions of the fifth amendment
to the Constitution of the United States? Does, or
does not, the act, directly or indirectly, deprive any person
of property without due process of law? Is the State deprived
by the Act of any right guaranteed to it in the Constitution
of the United States, or therein implied? It is contended
in behalf of the miner that neither the farmer nor the
State is deprived by the Act of any property or right without
due process of law; that, inasmuch as the commission has
complete jurisdiction to modify or revoke its permit at any
time, the farmer and the State are not necessarily deprived
by the Act of any "day in court" either may desire. Obviously,
unless the permit of the commission contemplated by
the Act is a finality as far as the courts are concerned, the
statute is an injury instead of a boon to the miner. If, however,
the permit is such a finality, and the Act is declared
constitutional in such a case as the above, then the farmer
and the State will, instead of going intO' the courts, have to
submit to the jurisdiction of the commission equally with
the miner, and the present threatened interminable litigation
would be at an end. The sooner the question is conclusively
settled the better, if there is to< be any practical resumption
of hydraulic mining in the basins of the Sacramento and
San Joaquin Rivers.
In the basins of the Klamath and the Trinity, on the
other hand, hvdraulic mining is happily free. Nature, that
has handicapped the industry in one section of the State, has
favored it in another. These rivers are non-navigable, and
their banks for the most part precipitous. In these river
basins the only foe the industry has to contend with is the
occasional blackmailer. The courts have, however, mitigated
the power of these people for evil in two well-considered
decided cases. The rule of the decisions with reference
to hydraulic mining or navigable streams is separated
by a district cleavage from the rule with reference to non

navigable running streams. Judge Field, always the friend
of mining, in a decision of the Supreme Court of the
United States (Atchison vs. Peterson, 20 Wallace, 507), upheld
the refusal of the lower court (in Montana) to issue a
writ of injunction where a prior appropriator of water claimed
his water was injured by tailings from a hydraulic mine,
pointed out the extreme reluctance that should guide courts
in the issuance of this writ, and held that the question
whether, upon a petition or bill, asserting the prior rights of
the first appropriator have been invaded, a court of equity
will interfere to restrain the acts of the party complained of,
will depend on the character and extent of the injury alleged,
whether it be irremediable in its nature, whether an action at
law would afford adequate remedy, whether the parties are
able to respond for the damages resulting from the injury, and
other considerations.
Nor is the adjoining mine owner permitted to become a
dog in the manger. The Supreme Court of this State on
March 18, 1896, rendering its decision in the case of Jacob
vs. Day, (in Cal. 571), held that the use of water for the
purpose of carrying off the tailings, and the construction of
a ditch to aid therein, are as essential to the successful conduct
of hydraulic mining, as is the first use to which the water
is put in washing down the natural bank; and that the title
to an adjoining mine passes under patent from the United
States subject to the easement of the right of way for a ditch
used, in accordance with focal mining customs, as a tailrace
from a hydraulic mine across the patented ground prior to
the patent under the provisions of sections 2339 and 2340
of the Revised Statutes of the United States. That the easement
for the tailrace of a hydraulic mine is not an easement
for drainage within the meaning of section 2338 of the Revised
Statutes of the United States, excluding easements for
drainage from the purview of the act of Congress; but it is
a right to the use of water for mining purposes and for the
construction of ditches for such purposes within the meaning
of sections 2339 and 2340 of said statutes. That an ease

ment must be used in such a manner as to impose as slight
a burden and damage as possible; but where a tailrace of a
hydraulic mine is an easement upon patented mining ground,
the fact that the running of tailings through the tailrace in
the ordinary course of mining caused a small portion of the
ground alongside of the ditch to cave down and wash away,
and caused the tailrace to cut farther into the bedrock, but
without material and appreciable injury to the plaintiff, does
not entitle the owner of the patented ground to an injunction.
While the. law of mining has through enactment and decision
gradually become settled, until there remains but comparatively
few doubtful points to be still construed, and but
few amendments to better the legislation we already have,
mining itself in the great ledges of California is little more
than begun. It is true that, except where some ancient
river channel is occasionally found, the days of the placers
are passing with the romance and the glamour of
the Pioneers. Quartz mining is destined, however, to
be a permanent industry of the State. New men,
new methods, and increased facilities for operations have
made of it a recognized business instead of a gamble. The
history of the law of mining in the future will more and more
partake of the general features incident to litigation growing
out of other industries, and the element of uncertainty will
be confined more and more to that element of uncertainty
found in all litigation; that which is produced by the shifting
sands of evidence,
-JOHN F. DAVIS.
Jackson, Cal., Dec. 9, 1901

fraud."—(1) The word "fraud," as used in the statute providing that possession, to be the foundation of prescription, cannot originate in fraud, the fraud meant is actual fraud—a moral fraud, a wrongful act, and not a legal act which the law denominates a fraud regardless of the bona fides of the parties. Dixon v. Patterson, 135 Ga. 183, 69 SE 21: Floyd v. Ricketson, 129 Ga. 668, 59 SE 909; Bower v. Cohen, 126 Ga. 35, 54 SE 918: Arnold v. Limeburger, 122 Ga. 72, 49 SE 812; Street v. Collier, 118 Ga. 470, 45 SE 294; Connell v. Culpepper, 111 Ga. 805, 35 SE 667; Lee v. Ogden, 83 Ga. 325, 10 SE 349 [disappr Hunt v. Dunn, 74 Ga. 120]; Ware v. Barlow, 81 Ga. 1, 6 SE 465; Wingfleld v. Virgin, 51 Ga. 139. (2) "To defeat prescriptive title the fraud of the party claiming thereunder must be such as to charge his conscience. He must be cognizant of the fraud, not by constructive, but by actual notice." Shingler v. Bailey, 135 Ga. 666, 668, 70 SE 563 (per Atkinson, J.). (3) An honest mistake of law as to the effect of the writing cannot of course, amount to a moral fraud as against the true owner. Bower v. Cohen, supra.

98. Stark v. Starr, 22 F. Cas. No. 13,307, 1 Sawy. 15.

[a] Good faith, as contemplated by the law of prescription, has relation to the actual existing state of the mind, whether so from Ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from good legal standards of law or reason. It is not necessary therefore that the person claiming prescription should have taken the instrument relied on as evidence of his title under such honest belief only as would be entertained by an ordinarily intelligent man that the paper would give him a good title. If such paper was in law color of title and was taken honestly and In good faith, the degree of intelligence with which this was done would be immaterial. It is the bona fides which is important and not the amount of knowledge or mental capacity constituting the basis thereof. Lee v.

"Ordinary intelligence might, upon bare inspection know that an apparent title was worthless; and if the bona fides of the holding were to be tested by that standard, many cases would doubtless occur where a person of a lower order of Intelligence, in his ignorance of law, would learn with surprise that he had occupied the land and held his color of title in bad faith, while he believed in fact that it was genuine and sufficient."

[b] Bad faith cannot be Imputed to a claimant (1) by reason of failure, for several years after execution, to record the deed which is claimed to give color of title, there being no statute requiring it (Rawson v. Fox, 65 111. 200); or (2) because the deed described the land conveyed as situated in a disputed territory (Cornelius v. Giberson, 25 N. J. L. 1); or (3) because the claimant, a mortgagee who purchased at foreclosure sale, filed an insufficient affidavit as a basis for service by publication (Reedy v. Camfield, 159 111. 254, 42 NE 833); or (4) because the claimant, a purchaser at a tax sale, failed to comply with the statutory requirements as to notice governing the execution of tax deeds (Duck Island Club v. Bexstead, 174 111. 435, 51 NE 831; Dalton v. Lucas, 63 111. 337. And see also Whitney v. Stevens, 89 111. 53): or (5) because the deed under which the claimant holds was the result of a sale by a trustee not made in strict conformity to law (Brady v. Walters, 55 Ga. 25); or (6) because It appeared from the recitals in the deed that the property was sold at a day later than that fixed by statute (Hardin v. Crate, 60 111. 215); or (7) because the grantee in a tax deed failed to give notice of his application therefor, rendering the deed ineffectual to establish paramount title (Jackson v. Larson, 24 Colo. A. 548, 136 P 81); or (8) because at the time land was purchased from a widow something was said as to the possibility of her deceased husband's children having some interest in the land (Weng-er v. Thompson, 128 Iowa 750, 105 NW 333)-; or (9) because the contract of purchase under which claimant held was a verbal one, and the decree enforcing It reversible for error, the grantee not being bound to know the legal effect of a verbal contract for land or that a decree enforcing It was erroneous (Sexson v. Barker, 172 111. 361, 50 NE 109 [crit and not foil Bowman v. Wettig, 39 111. 416]); or (10) because the deed under which claimant holds shows on its face that the grantor is a nonresident alien incapable of inheriting (Hughes v. Wyatt. 146 Iowa 392, 125 NW 334); or (11) where the claimant, being aware of an outstanding tax title, goes to the holder, shows him his deed, and declares his purpose to be perfectly fair with him, and Is inTermed by the latter that he has no knowledge of possessing any Interest n the property, and that, if he ascertains that he does, he will Inform the purchaser, but never does so (Clark v. Sexton. 122 Iowa 310, 98 NW 127).


FEDERAL SUPREME COURT RECOGNITION.


The Supreme Court of the United States gave full recognition to the binding force of the local rules, regulations, usages and customs before the sanction of federal statutory enactment, and to the doctrine that they constitute the American common law of mines.

Sparrow vs. Strong, 3 Wall. 97, decided in 1865.
Jennison vs. Kirk, 98 U. S. 453, decided in 1878.

Mr. T.W. Arman, proprietor of Iron Mountain Mine, splashing in acid mine drainage; "the world's worst water"?

PARAMOUNT TITLE

As Justice Stone of the United States Supreme Court wrote in the 1930 case of  Collie v Ferguson :

"Events subsequent to the seizure do not give rise to liens against a vessel in custodia legis ."

Extent of the Taking

It is well established that a physical taking is defined by the government's corporeal violation of private property. As the Supreme Court has noted, “where real estate is actually invaded . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Loretto v. Teleprompter Manhattan CATB Corp ., 458 U.S. 419, 427 (1982)

(quoting Pumpelly v. Green Bay Co. , 80 U.S. (13 Wall.) 166 (1871)). The Court has similarly emphasized that, “[t]he hallmark of a physical taking is government occupation of real property.”

Alameda Gateway, Ltd. v. United States , 45 Fed. Cl. 757, 762 (1999), quoting Loretto , 458 U.S. at 426 (1982).

However, it has also recognized the possibility of compensable stigmatic injuries that extend beyond the tangible aspects of a physical taking. In Hendler v. United States , it held that “if fear of a hazard would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.” Hendler v. United States , 38 Fed. Cl. 611, 625 (1995) (quoting United States v. 760.807 Acres of Land , 731 F.2d 1443, 1447 (9th Cir. 1984)), aff'd 175 F.3d 1374 (Fed. Cir. 1999); see also Shelden v. United States , 34 Fed. Cl. 355, 373 (1995) (reducing post-taking fair market value of property due to stigma associated with erosion and earthquake damage).

Iron Mountain Mines, Inc. and T.W. Arman contends that the physical taking of the Open Pit produced a compensable impact on the entire Property's value. Iron Mountain Mines, Inc. and T.W. Arman claims that the remedial action produced two linked effects flowing from the EPA's physical occupation of the Open Pit. The first effect was the physical taking of the Open Pit itself, which continues to prevent Iron Mountain Mines, Inc. and T.W. Arman from commercially exploiting the Open Pit. The second effect was the diminution of the Property's overall market value due to the stigma associated with possible liability to any buyer for the CERCLA action. It should be noted that this “stigma” amounts to considerably more than a mental attitude on the part of buyers. It is based upon a very real possibility that any commercial activity on the property might lead to regulatory prohibition or real physical danger. While Iron Mountain Mines, Inc. and T.W. Arman are not convinced that in fact the Property is unusable, it seems clear that a reasonably prudent buyer would consider that quite probable, and be unwilling to purchase the property at any positive price.

 

Iron Mountain Mines, Inc. and T.W. Arman have expert testimony stating that, “the mere existence of this huge quantity of waste on the property, even in a constructed repository, creates too great a potential [CERCLA] liability for anyone to consider purchasing the land.”

In summary, Iron Mountain Mines, Inc. and T.W. Arman's experts in the valuation of contaminated property argue that anyone buying the Property before the EPA completes the removal action and removes the sludge from the Open Pit would potentially bear liability under CERCLA for costs incurred in the removal action.

Consequently, a reasonable purchaser would discount the purchase price of the Property by at least the amount of the liability assumed in the post-removal action condition of the Property.

 

Similarly, Iron Mountain Mines, Inc. and T.W. Arman will present evidence that once the presence of hazardous waste has stigmatized property, a reasonable purchaser of said property would discount the sales price for the costs of removal of all of the offending material currently disposed in the Brick Flat Pit. Iron Mountain Mines, Inc. and T.W. Arman noted that the stigma flows from the possibility of leakage of contaminants from the waste in the Open Pit and the potential “consequent liability placed upon Iron Mountain Mines, Inc. and T.W. Arman under CERCLA.”.

According to Iron Mountain Mines, Inc. and T.W. Arman, it follows that just compensation should be the difference between the Property's pre-taking fair market value and the sum resulting from the cost of the removal of the hazardous waste in the Open Pit added to the CERCLA liability incurred by the Property's Iron Mountain Mines, Inc. and T.W. Arman.

The stigma associated with general contamination dramatically affects the entire Property's value.

Hendler and Shelden permit recovery for diminution in value due to the general fear of a hazard caused by a taking, assuming that the hazard's affect on marketability is measurable. See Hendler , 38 Fed. Cl. at 625 (quoting United States v. 760.807 Acres of Land , 731 F.2d 1443, 1447 (9th Cir. 1984)

(“[I]f fear of a hazard would affect the price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.”)); see Shelden , 34 Fed. Cl. at 373. It is generally recognized that general market perception of contamination on a future development site results in the depreciation of property value.

The Iron Mountain Mines, Inc. and T.W. Arman's argument is that the Open Pit's taking negatively impacts the entire Property's value on the basis of the evidence.

In analyzing this impact, the' computations regarding the Property's diminution in value as a result of the stigma associated with hazardous waste.

The Removal Action As A Special Benefit

When only a portion of private property is physically taken, the amount of compensation

owed for the property of Iron Mountain Mines, Inc. and T.W. Arman must be reduced by any special benefits from the government action accruing to the remainder of the property. Hendler , 38 Fed. Cl. at 1380. Special benefits are benefits which inure to the particular property suffering the taking, rather than to the general public. The United States may argue that the removal action conferred a special benefit upon the

Property which we should deduct from any ultimate damages valuation.

Such arguments, however, leads nowhere. Even if the Court accepts the government's argument that the removal action benefits the Property's value, the United States will be unable to include any evidence regarding the amount by which such benefit increases the Property's value. Thus, no offset of compensable damages for the benefits allegedly conferred by the removal action are possible.

Having resolved these issues, let us now turn to the determination of the Property's fair market value as a function of calculating the just compensation owed to the Iron Mountain Mines, Inc. and T.W. Arman.

Just compensation for a taking under the Fifth Amendment requires that a deprived owner be put “in the same position monetarily as he would have occupied if his property had not been taken.” Almota Farmers, 409 U.S. at 474 (internal citations omitted). The necessary corollary to this basic damages principle is that the Court may not place a deprived owner in a better position by a Fifth Amendment taking recovery than if the taking at issue had not occurred.

The fair market value of the highest and best use of the Property before and after the remedial action.

urts to be the best evidence of fair market value, and thus preferable to other forms of valuation.” Stearns Co., Ltd. v. United States , 53 Fed. Cl. 446, 458 (2002) (citing United States v. 50 Acres of Land , 469 U.S. 24 (1984)); Kirby Forest Indus.

Inc. v. United States , 467 U.S. 1 (1984). Other valuation methods may prove useful, but a

comparable sales methodology is a generally superior indicator of value if an active real estate

market existed in the vicinity of the subject property prior to the taking. See Florida Rock Indus. ,

Inc. v. United States , 45 Fed. Cl. 21, 35 (1999) (citing Whitney Benefits, Inc. v. United States , 18

Cl. Ct. 394, affirmed 926 F.2d 1169 (Fed. Cir.), cert. denied , 502 U.S. 952 (1991)).

Here, Iron Mountain Mines, Inc. and T.W. Arman valued the Property's worth for mining since no comparable comparison was or is available, and by analyzing the Property's pre-taking future income stream.

Iron Mountain Mines, Inc. and T.W. Arman claims that future income stream analysis is appropriate here because the valuation of mineral interests is preferably done by determining the present value of a future income stream. Iron Mountain Mines, Inc. and T.W. Arman supports this view by arguing that the federal government, in its Uniform Appraisal Standards for Federal Land Acquisitions, states that, “[p]roperty having a highest and best use for mineral production may be appraised utilizing an income approach when comparable sales are lacking.” Uniform Appraisal Standards at 23-24 (internal citations omitted). Iron Mountain Mines, Inc. and T.W. Arman further points to Whitney Benefits, Inc. v. United States , in which the Federal Circuit approved of the use of future income stream analysis, as support for the relevance of future

income stream analysis in the present case. See 962 F.2d 1169 (Fed. Cir. 1991).

Deprived owners Iron Mountain Mines, Inc. and T.W. Arman are entitled to interest on just compensation awarded pursuant to Fifth Amendment takings. Stearns Co., Ltd, v. United States , 53 Fed. Cl. 446, 466 (2002) (citing Kirby Forest Indus. v. United States , 467 U.S. 1 (1984)). Thus, we award Iron Mountain Mines, Inc. and T.W. Arman compounded prejudgment interest from the date of the taking until the date of the judgment. See Id . (citing United States v. Thayer-West Point Hotel Co ., 329 U.S. 585, 588 (1947); Miller v. United States , 223 Ct. Cl. 352, 360 (1980). We date the taking as having occurred on January 1 st , 1989, as the first day of the production for their solution mining plan, for the calculation of pre-judgment interest. The Iron Mountain Mines, Inc. and T.W. Arman also uses this date because it marks the beginning of the physical intrusion from which all damages in this matter arise. Interest computation will be based upon the Contracts Disputes Act, 41 U.S.C. §§ 601-13 (1982). See Jones v. United States , 3 Cl. Ct. 4, 7 (1983). The Iron Mountain Mines, Inc. and T.W. Arman further seeks awards of attorney fees and costs incurred as a result of litigation to Iron Mountain Mines, Inc. and T.W. Arman under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 42 U.S.C. § 4601 et seq. (1995 & 2002 Supp.).

T.W. Arman and Iron Mountain Mines, Inc. also seek compensation for stigmatic injuries, for malicious prosecution with malice, fraud, oppression, deceit, despotism and tyranny. T.W. Arman and Iron Mountain Mines, Inc. have been unfairly blamed for the endangerment and possible extinction of salmon and trout in the Sacramento River, a crime of infamy if ever there was one, not withstanding that there is no evidence that any fish have been killed in the affected reaches of the Sacramento River since at least 1969, seven years before T.W. Arman and Iron Mountain Mines, Inc. purchased the property, or that T.W. Arman and Iron Mountain Mines, Inc. did not actively mine the massive sulfide ores found to be the source of the minerals passively migrating from the property and alleged to pose an “imminent and substantial endangerment” to the environment, and in disregard and concealment and non-disclosure of contributory factors, particularly the United States contributory negligence in the construction of dams that destroyed the habitat of the salmon and trout necessary for their reproduction, and without consideration of other factors affecting the fishes demise, such as urban run-off, untreated sewage, ranching, farming, global warming, and other forms of habitat destruction, such as other mining operations in the watershed of the Sacramento River.

When the EPA first conducted its remedial investigation of Iron Mountain Mines, it considered “Among the remedial action alternatives that could be implemented by the EPA, the total removal of the source and sediments in the receiving waters (Alternative CA-10) is considered the only remedy for the Iron Mountain Mine site which is capable of meeting project cleanup objectives and the full requirements of the Clean Water Act (CWA). This alternative would effectively eliminate discharges from Iron Mountain and restore all tributaries to pristine condition. This alternative was based on total removal of all the source of contamination and haloing and disposing of them in a RCRA-approved facility.”

Without digressing to consider the ludicrous notion of disposing of millions of tons of valuable ore and mining by-products in a landfill, it will suffice to recognize that having recognized that there was a viable alternative that was fully protective of human health and the environment, the EPA elected to proceed with a remedial action (removal) that was less than fully protective of human health and the environment, and then and thereafter disregarded its duty and responsibility.

For these reasons T.W. Arman and Iron Mountain Mines, et al dispute the United States lawful authority to conduct these CERCLA remedial actions (removal) and demand the return and restoration of rights, privileges, and immunities of patent title to the possession and enjoyment of Iron Mountain Mines, Inc. property.

Because the United States has no lawful jurisdiction for its actions, and the only remedy found to be fully protective of human health and the environment is to finish the mining begun 150 years ago, which is what T.W. Arman and Iron Mountain Mines, Inc. were doing before the EPA interfered, the EPA should be found liable for the taking of private property for the public benefit requiring just compensation, and should be found liable for contributory negligence in the unlawful disposal of nonhazardous wastes.

CONCLUSION

Iron Mountain Mines, Inc. and T.W. Arman allege that the EPA's remedial (removal) action constituted a taking of the Iron Mountain Mines, Inc. and T.W. Arman's property warranting just compensation to Iron Mountain Mines, Inc. and T.W. Arman under the Fifth Amendment.

We therefore seek an award to Iron Mountain Mines, Inc. and T.W. Arman of $7,074,500,000 (billion) in just compensation, nonupled damages, plus interest, attorney's and expert fees, and costs.

EPA/ DOJ NRDC

Larry Martin Corcoran ESQ.,
Re: Iron Mountain
Dear Mr. Corcoran,
In reply to your advisory of April 21, 2010, be advised that I am informed Mr. Arman
was coerced and intimidated, that his actions in filing the “Notice” were a result of coercion by
your personnel, that agents of the EPA/DOJ have lied to Mr. Arman about the effects of the
pleadings I have filed and intimidated him into believing that if I remain in service to Mr.
Arman, particularly for the Takings & 2 EPA/AIG legal issues which you have acknowledged
and which litigation you have been previously responsible for, no settlement will be reached.
I have assured Mr. Arman that I believe your settlement offer will be forthcoming shortly.
As the duly recorded Private Special Deputy Attorney General Levying Officer and Warden
of the Gales, Forests, and Stannaries for Iron Mountain Mines, Inc. and Mr. T.W. Arman,
Private Commissioner to the EPA, FEMA, FERC, BSSC; TIPRA conformity expert and deputy
Mayor of Minnesota and the Iron Mountain Water & Fire Marshall, (private offices delegated
aside of the ordinary business of the joint venturers), it also remains my duty to prosecute
trespassers, dumpers, polluters, and any other violators of citizens civil rights. Mr. Arman and
I wish to avoid any appearance of impropriety or conflict of interest in regards to the complete
development of Iron Mountain Mine property and the honor and dignity of Mr. T.W. Arman.
As to your relevancy or intelligence I am not a judge, however, as Mr. Arman has seen
fit to record several documents concerning our joint venture agreement in Shasta County, it
seems peculiar that you are only acknowledging this most recent “notice” from Mr. Arman in
regards to my capacity for agency, factor, expert, Warden and other office in his service.
As you seem to suddenly be aware that Mr. Arman is sovereign absolute patent title
owner of Iron Mountain, and are acknowledging such title is in effect a grant to Mr. Arman as
supreme authority and ruler of his patent title property; please also recognize that certain
obligations have been conveyed to me which must remain fully in force.
For the sake of clarification, I should like to point out that I remain devoted and duty
bound to the service of Mr. Arman. The notice of termination of previous business agreements
is in fact consistent with our joint venture agreements under present circumstance, despite
the apparently unilateral negation of prior agreements by Mr. Arman. While it may seem
inconsistent with modern U.S. business practices or even in violation of the business code,
and is surely objectionable to any mine labor organizer, I voluntarily submitted to this
servitude. If you read my pleadings again you will perhaps comprehend the necessity of this.
The original preliminary joint venture with Mr. Arman, and subsequent amendment, which
was considered by us to be a relatively modest, even insignificant aspect of Iron Mountain
Mines, Inc. overall business plan, has now been shown, on account of the tremendous recent
Iron Mountain Mines, Inc.
P.O. Box 992867, Redding, CA 96099
Tel (530) 275-4550 Fax (530) 275-4559
discoveries of nano-catalytic properties of derivatives of the sludge, to potentially be the most
profitable and environmentally beneficial business enterprise of all.
This necessitates a complete revision of the business agreement, and requires decisions about
retaining inventory and/or leasing catalysts, facilities, personnel, housing and community
development, and making determinations of the merits of the various technologies and
allocating resources for agriculture, sustainability, social and community economic factors, &c.
As these are decisions which will ultimately have to be decided by Mr. Arman, who will
determine the nature of the future business plans, etc., it is necessary to acknowledge that
the original agreement to merely extract the valuable metals from the sludge is no longer
considered to be in Mr. Arman’s best interest. Consequently, we will be reevaluating every
technology decision. (I defer to Mr. T.W. Arman’s preeminence and wisdom in this matter.)
Mr. Arman’s concern that any of my pleadings might state or suggest that I have an
ownership interest in his property is understandable considering the history of EPA actions
and the EPA lien which remains on his property. As I have repeatedly acknowledged, my
interests at Iron Mountain remain at the will and pleasure of Mr. T.W. Arman. My adverse
claim is therefore entirely in servient heritage to the real owner of Iron Mountain Mine Mr.
T.W. Arman, against the known joint and several trespassers in felonious unlawful detainer
and the reckless negligent endangerment holding over against Mr. T.W. Arman, (you).
I have no lien for money or damages against T.W. Arman’s Iron Mountain property.
I do have a beneficial personal property of an undivided interest in the sludge disposed
upon the brick flat pit. This in and of itself is not I think per se a real property conveyance,
however, I also have a 50 year renewable lease agreement that attaches to the mineral rights,
and miners have lived in the vicinities of Iron Mountain for 130 years.
In short, while I presently want nor need a real property interest in Iron Mountain, I
enjoy a substantial fully vested and accrued legal interest in the Iron Mountain properties,
and I am vested with every authority to speak for both Mr. T.W. Arman and for Iron
Mountain Mines, Inc. not withstanding any statements to the contrary by Mr. Logan, any
statements or notices intimidated or coerced from Mr. T.W. Arman, or in violation of the
vested and accrued existing rights of the locators, in violation of the express terms and
conditions of the joint venture agreement and amendment, for the future citizens and miners,
or the “Re-working group for environmental justice” of Iron Mountain and Minnesota in
regards to continuing proceedings with government agencies or contractor(s).
I look forward to further correspondence with you now that you have embraced the new
open government initiative of Mr. President Obama and administrator Jackson.
April 21, 2010 Sincerely,
Mr. John F. Hutchens

42 U.S.C. 9607 (l) Federal lien   (1) In general   All costs and damages for which a person is liable to the United States under subsection (a) of this section (other than the owner or operator of a vessel under paragraph (1) of subsection (a) of this section) shall constitute a lien in favor of the United States upon all real property and rights to such property which-- (A) belong to such person; and (B) are subject to or affected by a removal or remedial action.   (2) Duration   The lien imposed by this subsection shall arise at the later of the following: (A) The time costs are first incurred by the United States with respect to a response action under this chapter. (B) The time that the person referred to in paragraph (1) is provided (by certified or registered mail) written notice of potential liability.   Such lien shall continue until the liability for the costs (or a judgment against the person arising out of such liability) is satisfied or becomes unenforceable through operation of the statute of limitations provided in section 9613 of this title.   (3) Notice and validity   The lien imposed by this subsection shall be subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest is perfected under applicable State law before notice of the lien has been filed in the appropriate office within the State (or county or other governmental subdivision), as designated by State law, in which the real property subject to the lien is located. Any such purchaser, holder of a security interest, or judgment lien creditor shall be afforded the same protections against the lien imposed by this subsection as are afforded under State law against a judgment lien which arises out of an unsecured obligation and which arises as of the time of the filing of the notice of the lien imposed by this subsection. If the State has not by law designated one office for the receipt of such notices of liens, the notice shall be filed in the office of the clerk of the United States district court for the district in which the real property is located. For purposes of this subsection, the terms ``purchaser'' and ``security interest'' shall have the definitions provided under section 6323(h) of title 26.     9609 (d) Awards   The President may pay an award of up to $10,000 to any individual who provides information leading to the arrest and conviction of any person for a violation subject to a criminal penalty under this chapter, including any violation of section 9603 of this title and any other violation referred to in this section. The President shall, by regulation, prescribe criteria for such an award and may pay any award under this subsection from the Fund, as provided in section 9611 of this title.  

9613

(f) Contribution   (1) Contribution   Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.   (2) Settlement   A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.   (3) Persons not party to settlement   (A) If the United States or a State has obtained less than complete relief from a person who has resolved its liability to the United States or the State in an administrative or judicially approved settlement, the United States or the State may bring an action against any person who has not so resolved its liability. (B) A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in paragraph (2). (C) In any action under this paragraph, the rights of any person who has resolved its liability to the United States or a State shall be subordinate to the rights of the United States or the State. Any contribution action brought under this paragraph shall be governed by Federal law.   (2) Actions for recovery of costs   An initial action for recovery of the costs referred to in section 9607 of this title must be commenced-- (A) for a removal action, within 3 years after completion of the removal action, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under section 9604(c)(1)(C) of this title for continued response action; and (B) for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action, except that, if the remedial action is initiated within 3 years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action brought under this subparagraph.   In any such action described in this subsection, the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages. A subsequent action or actions under section 9607 of this title for further response costs at the vessel or facility may be maintained at any time during the response action, but must be commenced no later than 3 years after the date of completion of all response action. Except as otherwise provided in this paragraph, an action may be commenced under section 9607 of this title for recovery of costs at any time after such costs have been incurred.

 

(3) Contribution   No action for contribution for any response costs or damages may be commenced more than 3 years after-- (A) the date of judgment in any action under this chapter for recovery of such costs or damages, or (B) the date of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages.

 

(h) Timing of review   No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following: (1) An action under section 9607 of this title to recover response costs or damages or for contribution. (2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order. (3) An action for reimbursement under section 9606(b)(2) of this title. (4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site. (5) An action under section 9606 of this title in which the United States has moved to compel a remedial action.   (i) Intervention   In any action commenced under this chapter or under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] in a court of the United States , any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person's ability to protect that interest, unless the President or the State shows that the person's interest is adequately represented by existing parties.   (j) Judicial review   (1) Limitation   In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.   (2) Standard   In considering objections raised in any judicial action under this chapter, the court shall uphold the President's decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.   (3) Remedy   If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the response costs or damages that are not inconsistent with the national contingency plan, and (B) such other relief as is consistent with the National Contingency Plan.   (4) Procedural errors   In reviewing alleged procedural errors, the court may disallow costs or damages only if the errors were so serious and related to matters of such central relevance to the action that the action would have been significantly changed had such errors not been made.   (l) Notice of actions   Whenever any action is brought under this chapter in a court of the United States by a plaintiff other than the United States , the plaintiff shall provide a copy of the complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency.

 

(b) Final plan   Notice of the final remedial action plan adopted shall be published and the plan shall be made available to the public before commencement of any remedial action. Such final plan shall be accompanied by a discussion of any significant changes (and the reasons for such changes) in the proposed plan and a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations under subsection (a) of this section.   (c) Explanation of differences.   After adoption of a final remedial action plan-- (1) if any remedial action is taken, (2) if any enforcement action under section 9606 of this title is taken, or (3) if any settlement or consent decree under section 9606 of this title or section 9622 of this title is entered into,   and if such action, settlement, or decree differs in any significant respects from the final plan, the President or the State shall publish an explanation of the significant differences and the reasons such changes were made.

 

(e) Grants for technical assistance   (1) Authority   Subject to such amounts as are provided in appropriations Acts and in accordance with rules promulgated by the President, the President may make grants available to any group of individuals which may be affected by a release or threatened release at any facility which is listed on the National Priorities List under the National Contingency Plan. Such grants may be used to obtain technical assistance in interpreting information with regard to the nature of the hazard, remedial investigation and feasibility study, record of decision, remedial design, selection and construction of remedial action, operation and maintenance, or removal action at such facility.   (2) Amount   The amount of any grant under this subsection may not exceed $50,000 for a single grant recipient. The President may waive the $50,000 limitation in any case where such waiver is necessary to carry out the purposes of this subsection. Each grant recipient shall be required, as a condition of the grant, to contribute at least 20 percent of the total of costs of the technical assistance for which such grant is made. The President may waive the 20 percent contribution requirement if the grant recipient demonstrates financial need and such waiver is necessary to facilitate public participation in the selection of remedial action at the facility. Not more than one grant may be made under this subsection with respect to a single facility, but the grant may be renewed to facilitate public participation at all stages of remedial action.   (f) Competition   Response action contractors and subcontractors for program management, construction management, architectural and engineering, surveying and mapping, and related services shall be selected in accordance with title IX of the Federal Property and Administrative Services Act of 1949.\3\ The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this chapter. Such procedures shall be followed by response action contractors and subcontractors.

 

9620

a) Application of chapter to Federal Government   (1) In general   Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title. Nothing in this section shall be construed to affect the liability of any person or entity under sections 9606 and 9607 of this title.   a) Selection of remedial action   The President shall select appropriate remedial actions determined to be necessary to be carried out under section 9604 of this title or secured under section 9606 of this title which are in accordance with this section and, to the extent practicable, the national contingency plan, and which provide for cost-effective response. In evaluating the cost effectiveness of proposed alternative remedial actions, the President shall take into account the total short- and long-term costs of such actions, including the costs of operation and maintenance for the entire period during which such activities will be required.   (b) General rules   (1) Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such treatment should be the least favored alternative remedial action where practicable treatment technologies are available. The President shall conduct an assessment of permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or contaminant. In making such assessment, the President shall specifically address the long-term effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account: (A) the long-term uncertainties associated with land disposal; (B) the goals, objectives, and requirements of the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]; (C) the persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous substances and their constituents; (D) short- and long-term potential for adverse health effects from human exposure; (E) long-term maintenance costs; (F) the potential for future remedial action costs if the alternative remedial action in question were to fail; and (G) the potential threat to human health and the environment associated with excavation, transportation, and redisposal, or containment.   The President shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable. If the President selects a remedial action not appropriate for a preference under this subsection, the President shall publish an explanation as to why a remedial action involving such reductions was not selected. (2) The President may select an alternative remedial action meeting the objectives of this subsection whether or not such action has been achieved in practice at any other facility or site that has similar characteristics. In making such a selection, the President may take into account the degree of support for such remedial action by parties interested in such site.   (c) Review   If the President selects a remedial action that results in any hazardous substances, pollutants, or contaminants remaining at the site, the President shall review such remedial action no less often than each 5 years after the initiation of such remedial action to assure that human health and the environment are being protected by the remedial action being implemented. In addition, if upon such review it is the judgment of the President that action is appropriate at such site in accordance with section 9604 or 9606 of this title, the President shall take or require such action. The President shall report to the Congress a list of facilities for which such review is required, the results of all such reviews, and any actions taken as a result of such reviews.   (d) Degree of cleanup   (1) Remedial actions selected under this section or otherwise required or agreed to by the President under this chapter shall attain a degree of cleanup of hazardous substances, pollutants, and contaminants released into the environment and of control of further release at a minimum which assures protection of human health and the environment. Such remedial actions shall be relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant. (2)(A) With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if-- (i) any standard, requirement, criteria, or limitation under any Federal environmental law, including, but not limited to, the Toxic Substances Control Act [15 U.S.C. 2601 et seq.], the Safe Drinking Water Act [42 U.S.C. 300f et seq.], the Clean Air Act [42 U.S.C. 7401 et seq.], the Clean Water Act [33 U.S.C. 1251 et seq.], the Marine Protection, Research and Sanctuaries Act [16 U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801 et seq.], or the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]; or (ii) any promulgated standard, requirement, criteria, or limitation under a State environmental or facility siting law that is more stringent than any Federal standard, requirement, criteria, or limitation, including each such State standard, requirement, criteria, or limitation contained in a program approved, authorized or delegated by the Administrator under a statute cited in subparagraph (A), and that has been identified to the President by the State in a timely manner,   is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 9604 of this title or secured under section 9606 of this title shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation. Such remedial action shall require a level or standard of control which at least attains Maximum Contaminant Level Goals established under the Safe Drinking Water Act [42 U.S.C. 300f et seq.] and water quality criteria established under section 304 or 303 of the Clean Water Act [33 U.S.C. 1314, 1313], where such goals or criteria are relevant and appropriate under the circumstances of the release or threatened release. (B)(i) In determining whether or not any water quality criteria under the Clean Water Act [33 U.S.C. 1251 et seq.] is relevant and appropriate under the circumstances of the release or threatened release, the President shall consider the designated or potential use of the surface or groundwater, the environmental media affected, the purposes for which such criteria were developed, and the latest information available. (ii) For the purposes of this section, a process for establishing alternate concentration limits to those otherwise applicable for hazardous constituents in groundwater under subparagraph (A) may not be used to establish applicable standards under this paragraph if the process assumes a point of human exposure beyond the boundary of the facility, as defined at the conclusion of the remedial investigation and feasibility study, except where-- (I) there are known and projected points of entry of such groundwater into surface water; and (II) on the basis of measurements or projections, there is or will be no statistically significant increase of such constituents from such groundwater in such surface water at the point of entry or at any point where there is reason to believe accumulation of constituents may occur downstream; and (III) the remedial action includes enforceable measures that will preclude human exposure to the contaminated groundwater at any point between the facility boundary and all known and projected points of entry of such groundwater into surface water   then the assumed point of human exposure may be at such known and projected points of entry. (C)(i) Clause (ii) of this subparagraph shall be applicable only in cases where, due to the President's selection, in compliance with subsection (b)(1) of this section, of a proposed remedial action which does not permanently and significantly reduce the volume, toxicity, or mobility of hazardous substances, pollutants, or contaminants, the proposed disposition of waste generated by or associated with the remedial action selected by the President is land disposal in a State referred to in clause (ii). (ii) Except as provided in clauses (iii) and (iv), a State standard, requirement, criteria, or limitation (including any State siting standard or requirement) which could effectively result in the statewide prohibition of land disposal of hazardous substances, pollutants, or contaminants shall not apply. (iii) Any State standard, requirement, criteria, or limitation referred to in clause (ii) shall apply where each of the following conditions is met: (I) The State standard, requirement, criteria, or limitation is of general applicability and was adopted by formal means. (II) The State standard, requirement, criteria, or limitation was adopted on the basis of hydrologic, geologic, or other relevant considerations and was not adopted for the purpose of precluding onsite remedial actions or other land disposal for reasons unrelated to protection of human health and the environment. (III) The State arranges for, and assures payment of the incremental costs of utilizing, a facility for disposition of the hazardous substances, pollutants, or contaminants concerned.   (iv) Where the remedial action selected by the President does not conform to a State standard and the State has initiated a law suit against the Environmental Protection Agency prior to May 1, 1986, to seek to have the remedial action conform to such standard, the President shall conform the remedial action to the State standard. The State shall assure the availability of an offsite facility for such remedial action. (3) In the case of any removal or remedial action involving the transfer of any hazardous substance or pollutant or contaminant offsite, such hazardous substance or pollutant or contaminant shall only be transferred to a facility which is operating in compliance with section 3004 and 3005 of the Solid Waste Disposal Act [42 U.S.C. 6924, 6925] (or, where applicable, in compliance with the Toxic Substances Control Act [15 U.S.C. 2601 et seq.] or other applicable Federal law) and all applicable State requirements. Such substance or pollutant or contaminant may be transferred to a land disposal facility only if the President determines that both of the following requirements are met: (A) The unit to which the hazardous substance or pollutant or contaminant is transferred is not releasing any hazardous waste, or constituent thereof, into the groundwater or surface water or soil. (B) All such releases from other units at the facility are being controlled by a corrective action program approved by the Administrator under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.].   The President shall notify the owner or operator of such facility of determinations under this paragraph. (4) The President may select a remedial action meeting the requirements of paragraph (1) that does not attain a level or standard of control at least equivalent to a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation as required by paragraph (2) (including subparagraph (B) thereof), if the President finds that-- (A) the remedial action selected is only part of a total remedial action that will attain such level or standard of control when completed; (B) compliance with such requirement at that facility will result in greater risk to human health and the environment than alternative options; (C) compliance with such requirements is technically impracticable from an engineering perspective; (D) the remedial action selected will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, criteria, or limitation, through use of another method or approach; (E) with respect to a State standard, requirement, criteria, or limitation, the State has not consistently applied (or demonstrated the intention to consistently apply) the standard, requirement, criteria, or limitation in similar circumstances at other remedial actions within the State; or (F) in the case of a remedial action to be undertaken solely under section 9604 of this title using the Fund, selection of a remedial action that attains such level or standard of control will not provide a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Fund to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the relative immediacy of such threats.   The President shall publish such findings, together with an explanation and appropriate documentation.   (e) Permits and enforcement   (1) No Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section. (2) A State may enforce any Federal or State standard, requirement, criteria, or limitation to which the remedial action is required to conform under this chapter in the United States district court for the district in which the facility is located. Any consent decree shall require the parties to attempt expeditiously to resolve disagreements concerning implementation of the remedial action informally with the appropriate Federal and State agencies. Where the parties agree, the consent decree may provide for administrative enforcement. Each consent decree shall also contain stipulated penalties for violations of the decree in an amount not to exceed $25,000 per day, which may be enforced by either the President or the State. Such stipulated penalties shall not be construed to impair or affect the authority of the court to order compliance with the specific terms of any such decree.

 

f) State involvement   (1) The President shall promulgate regulations providing for substantial and meaningful involvement by each State in initiation, development, and selection of remedial actions to be undertaken in that State. The regulations, at a minimum, shall include each of the following: (A) State involvement in decisions whether to perform a preliminary assessment and site inspection. (B) Allocation of responsibility for hazard ranking system scoring. (C) State concurrence in deleting sites from the National Priorities List. (D) State participation in the long-term planning process for all remedial sites within the State. (E) A reasonable opportunity for States to review and comment on each of the following: (i) The remedial investigation and feasibility study and all data and technical documents leading to its issuance. (ii) The planned remedial action identified in the remedial investigation and feasibility study. (iii) The engineering design following selection of the final remedial action. (iv) Other technical data and reports relating to implementation of the remedy. (v) Any proposed finding or decision by the President to exercise the authority of subsection (d)(4) of this section.   (F) Notice to the State of negotiations with potentially responsible parties regarding the scope of any response action at a facility in the State and an opportunity to participate in such negotiations and, subject to paragraph (2), be a party to any settlement. (G) Notice to the State and an opportunity to comment on the President's proposed plan for remedial action as well as on alternative plans under consideration. The President's proposed decision regarding the selection of remedial action shall be accompanied by a response to the comments submitted by the State, including an explanation regarding any decision under subsection (d)(4) of this section on compliance with promulgated State standards. A copy of such response shall also be provided to the State. (H) Prompt notice and explanation of each proposed action to the State in which the facility is located.   Prior to the promulgation of such regulations, the President shall provide notice to the State of negotiations with potentially responsible parties regarding the scope of any response action at a facility in the State, and such State may participate in such negotiations and, subject to paragraph (2), any settlements. (2)(A) This paragraph shall apply to remedial actions secured under section 9606 of this title. At least 30 days prior to the entering of any consent decree, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4) of this section, the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, the State may become a signatory to the consent decree. (B) If the State does not concur in such selection, and the State desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State shall intervene in the action under section 9606 of this title before entry of the consent decree, to seek to have the remedial action so conform. Such intervention shall be a matter of right. The remedial action shall conform to such standard, requirement, criteria, or limitation if the State establishes, on the administrative record, that the finding of the President was not supported by substantial evidence. If the court determines that the remedial action shall conform to such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State may become a signatory to the decree. If the court determines that the remedial action need not conform to such standard, requirement, criteria, or limitation, and the State pays or assures the payment of the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State shall become a signatory to the decree. (C) The President may conclude settlement negotiations with potentially responsible parties without State concurrence. (3)(A) This paragraph shall apply to remedial actions at facilities owned or operated by a department, agency, or instrumentality of the United States . At least 30 days prior to the publication of the President's final remedial action plan, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4) of this section, the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, or does not act within 30 days, the remedial action may proceed. (B) If the State does not concur in such selection as provided in subparagraph (A), and desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State may maintain an action as follows: (i) If the President has notified the State of selection of such a remedial action, the State may bring an action within 30 days of such notification for the sole purpose of determining whether the finding of the President is supported by substantial evidence. Such action shall be brought in the United States district court for the district in which the facility is located. (ii) If the State establishes, on the administrative record, that the President's finding is not supported by substantial evidence, the remedial action shall be modified to conform to such standard, requirement, criteria, or limitation. (iii) If the State fails to establish that the President's finding was not supported by substantial evidence and if the State pays, within 60 days of judgment, the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be selected to meet such standard, requirement, criteria, or limitation. If the State fails to pay within 60 days, the remedial action selected by the President shall proceed through completion.   (C) Nothing in this section precludes, and the court shall not enjoin, the Federal agency from taking any remedial action unrelated to or not inconsistent with such standard, requirement, criteria, or limitation.

 

(c) Effect of agreement   (1) Liability   Whenever the President has entered into an agreement under this section, the liability to the United States under this chapter of each party to the agreement, including any future liability to the United States , arising from the release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant not to sue in accordance with subsection (f) of this section. A covenant not to sue may provide that future liability to the United States of a settling potentially responsible party under the agreement may be limited to the same proportion as that established in the original settlement agreement. Nothing in this section shall limit or otherwise affect the authority of any court to review in the consent decree process under subsection (d) of this section any covenant not to sue contained in an agreement under this section. In determining the extent to which the liability of parties to an agreement shall be limited pursuant to a covenant not to sue, the President shall be guided by the principle that a more complete covenant not to sue shall be provided for a more permanent remedy undertaken by such parties.   (2) Actions against other persons   If an agreement has been entered into under this section, the President may take any action under section 9606 of this title against any person who is not a party to the agreement, once the period for submitting a proposal under subsection (e)(2)(B) of this section has expired. Nothing in this section shall be construed to affect either of the following: (A) The liability of any person under section 9606 or 9607 of this title with respect to any costs or damages which are not included in the agreement. (B) The authority of the President to maintain an action under this chapter against any person who is not a party to the agreement.   (d) Enforcement   (1) Cleanup agreements   (A) Consent decree   Whenever the President enters into an agreement under this section with any potentially responsible party with respect to remedial action under section 9606 of this title, following approval of the agreement by the Attorney General, except as otherwise provided in the case of certain administrative settlements referred to in subsection (g) of this section, the agreement shall be entered in the appropriate United States district court as a consent decree. The President need not make any finding regarding an imminent and substantial endangerment to the public health or the environment in connection with any such agreement or consent decree.   (B) Effect   The entry of any consent decree under this subsection shall not be construed to be an acknowledgment by the parties that the release or threatened release concerned constitutes an imminent and substantial endangerment to the public health or welfare or the environment. Except as otherwise provided in the Federal Rules of Evidence, the participation by any party in the process under this section shall not be considered an admission of liability for any purpose, and the fact of such participation shall not be admissible in any judicial or administrative proceeding, including a subsequent proceeding under this section.   (C) Structure   The President may fashion a consent decree so that the entering of such decree and compliance with such decree or with any determination or agreement made pursuant to this section shall not be considered an admission of liability for any purpose.   (2) Public participation   (A) Filing of proposed judgment   At least 30 days before a final judgment is entered under paragraph (1), the proposed judgment shall be filed with the court.   (B) Opportunity for comment   The Attorney General shall provide an opportunity to persons who are not named as parties to the action to comment on the proposed judgment before its entry by the court as a final judgment. The Attorney General shall consider, and file with the court, any written comments, views, or allegations relating to the proposed judgment. The Attorney General may withdraw or withhold its consent to the proposed judgment if the comments, views, and allegations concerning the judgment disclose facts or considerations which indicate that the proposed judgment is inappropriate, improper, or inadequate.   (3) 9604(b) agreements   Whenever the President enters into an agreement under this section with any potentially responsible party with respect to action under section 9604(b) of this title, the President shall issue an order or enter into a decree setting forth the obligations of such party. The United States district court for the district in which the release or threatened release occurs may enforce such order or decree.   (e) Special notice procedures   (1) Notice   Whenever the President determines that a period of negotiation under this subsection would facilitate an agreement with potentially responsible parties for taking response action (including any action described in section 9604(b) of this title) and would expedite remedial action, the President shall so notify all such parties and shall provide them with information concerning each of the following: (A) The names and addresses of potentially responsible parties (including owners and operators and other persons referred to in section 9607(a) of this title), to the extent such information is available. (B) To the extent such information is available, the volume and nature of substances contributed by each potentially responsible party identified at the facility. (C) A ranking by volume of the substances at the facility, to the extent such information is available.   The President shall make the information referred to in this paragraph available in advance of notice under this paragraph upon the request of a potentially responsible party in accordance with procedures provided by the President. The provisions of subsection (e) of section 9604 of this title regarding protection of confidential information apply to information provided under this paragraph. Disclosure of information generated by the President under this section to persons other than the Congress, or any duly authorized Committee thereof, is subject to other privileges or protections provided by law, including (but not limited to) those applicable to attorney work product. Nothing contained in this paragraph or in other provisions of this chapter shall be construed, interpreted, or applied to diminish the required disclosure of information under other provisions of this or other Federal or State laws.   (2) Negotiation   (A) Moratorium   Except as provided in this subsection, the President may not commence action under section 9604(a) of this title or take any action under section 9606 of this title for 120 days after providing notice and information under this subsection with respect to such action. Except as provided in this subsection, the President may not commence a remedial investigation and feasibility study under section 9604(b) of this title for 90 days after providing notice and information under this subsection with respect to such action. The President may commence any additional studies or investigations authorized under section 9604(b) of this title, including remedial design, during the negotiation period.   (B) Proposals   Persons receiving notice and information under paragraph (1) of this subsection with respect to action under section 9606 of this title shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under section 9606 of this title. Persons receiving notice and information under paragraph (1) of this subsection with respect to action under section 9604(b) of this title shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under section 9604(b) of this title.   (C) Additional parties   If an additional potentially responsible party is identified during the negotiation period or after an agreement has been entered into under this subsection concerning a release or threatened release, the President may bring the additional party into the negotiation or enter into a separate agreement with such party. (3) Preliminary allocation of responsibility   (A) In general   The President shall develop guidelines for preparing nonbinding preliminary allocations of responsibility. In developing these guidelines the President may include such factors as the President considers relevant, such as: volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors. When it would expedite settlements under this section and remedial action, the President may, after completion of the remedial investigation and feasibility study, provide a nonbinding preliminary allocation of responsibility which allocates percentages of the total cost of response among potentially responsible parties at the facility.   (B) Collection of information   To collect information necessary or appropriate for performing the allocation under subparagraph (A) or for otherwise implementing this section, the President may by subpoena require the attendance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the President deems necessary. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States . In the event of contumacy or failure or refusal of any person to obey any such subpoena, any district court of the United States in which venue is proper shall have jurisdiction to order any such person to comply with such subpoena. Any failure to obey such an order of the court is punishable by the court as a contempt thereof.   (C) Effect   The nonbinding preliminary allocation of responsibility shall not be admissible as evidence in any proceeding, and no court shall have jurisdiction to review the nonbinding preliminary allocation of responsibility. The nonbinding preliminary allocation of responsibility shall not constitute an apportionment or other statement on the divisibility of harm or causation.   (D) Costs   The costs incurred by the President in producing the nonbinding preliminary allocation of responsibility shall be reimbursed by the potentially responsible parties whose offer is accepted by the President. Where an offer under this section is not accepted, such costs shall be considered costs of response.   (E) Decision to reject offer   Where the President, in his discretion, has provided a nonbinding preliminary allocation of responsibility and the potentially responsible parties have made a substantial offer providing for response to the President which he rejects, the reasons for the rejection shall be provided in a written explanation. The President's decision to reject such an offer shall not be subject to judicial review.   (4) Failure to propose   If the President determines that a good faith proposal for undertaking or financing action under section 9606 of this title has not been submitted within 60 days of the provision of notice pursuant to this subsection, the President may thereafter commence action under section 9604(a) of this title or take an action against any person under section 9606 of this title. If the President determines that a good faith proposal for undertaking or financing action under section 9604(b) of this title has not been submitted within 60 days after the provision of notice pursuant to this subsection, the President may thereafter commence action under section 9604(b) of this title.   (5) Significant threats   Nothing in this subsection shall limit the President's authority to undertake response or enforcement action regarding a significant threat to public health or the environment within the negotiation period established by this subsection.   (6) Inconsistent response action   When either the President, or a potentially responsible party pursuant to an administrative order or consent decree under this chapter, has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President.   (f) Covenant not to sue   (1) Discretionary covenants   The President may, in his discretion, provide any person with a covenant not to sue concerning any liability to the United States under this chapter, including future liability, resulting from a release or threatened release of a hazardous substance addressed by a remedial action, whether that action is onsite or offsite, if each of the following conditions is met: (A) The covenant not to sue is in the public interest. (B) The covenant not to sue would expedite response action consistent with the National Contingency Plan under section 9605 of this title. (C) The person is in full compliance with a consent decree under section 9606 of this title (including a consent decree entered into in accordance with this section) for response to the release or threatened release concerned. (D) The response action has been approved by the President.   (2) Special covenants not to sue   In the case of any person to whom the President is authorized under paragraph (1) of this subsection to provide a covenant not to sue, for the portion of remedial action-- (A) which involves the transport and secure disposition offsite of hazardous substances in a facility meeting the requirements of sections 6924(c), (d), (e), (f), (g), (m), (o), (p), (u), and (v) and 6925(c) of this title, where the President has rejected a proposed remedial action that is consistent with the National Contingency Plan that does not include such offsite disposition and has thereafter required offsite disposition; or (B) which involves the treatment of hazardous substances so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances, such that, in the judgment of the President, the substances no longer present any current or currently foreseeable future significant risk to public health, welfare or the environment, no byproduct of the treatment or destruction process presents any significant hazard to public health, welfare or the environment, and all byproducts are themselves treated, destroyed, or contained in a manner which assures that such byproducts do not present any current or currently foreseeable future significant risk to public health, welfare or the environment,   the President shall provide such person with a covenant not to sue with respect to future liability to the United States under this chapter for a future release or threatened release of hazardous substances from such facility, and a person provided such covenant not to sue shall not be liable to the United States under section 9606 or 9607 of this title with respect to such release or threatened release at a future time.   (3) Requirement that remedial action be completed   A covenant not to sue concerning future liability to the United States shall not take effect until the President certifies that remedial action has been completed in accordance with the requirements of this chapter at the facility that is the subject of such covenant.   (4) Factors   In assessing the appropriateness of a covenant not to sue under paragraph (1) and any condition to be included in a covenant not to sue under paragraph (1) or (2), the President shall consider whether the covenant or condition is in the public interest on the basis of such factors as the following: (A) The effectiveness and reliability of the remedy, in light of the other alternative remedies considered for the facility concerned. (B) The nature of the risks remaining at the facility. (C) The extent to which performance standards are included in the order or decree. (D) The extent to which the response action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility. (E) The extent to which the technology used in the response action is demonstrated to be effective. (F) Whether the Fund or other sources of funding would be available for any additional remedial actions that might eventually be necessary at the facility. (G) Whether the remedial action will be carried out, in whole or in significant part, by the responsible parties themselves.   (5) Satisfactory performance   Any covenant not to sue under this subsection shall be subject to the satisfactory performance by such party of its obligations under the agreement concerned.   (6) Additional condition for future liability   (A) Except for the portion of the remedial action which is subject to a covenant not to sue under paragraph (2) or under subsection (g) of this section (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an exception to the covenant that allows the President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such liability arises out of conditions which are unknown at the time the President certifies under paragraph (3) that remedial action has been completed at the facility concerned. (B) In extraordinary circumstances, the President may determine, after assessment of relevant factors such as those referred to in paragraph (4) and volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors, not to include the exception referred to in subparagraph (A) if other terms, conditions, or requirements of the agreement containing the covenant not to sue are sufficient to provide all reasonable assurances that public health and the environment will be protected from any future releases at or from the facility. (C) The President is authorized to include any provisions allowing future enforcement action under section 9606 or 9607 of this title that in the discretion of the President are necessary and appropriate to assure protection of public health, welfare, and the environment.   (g) De minimis settlements   (1) Expedited final settlement   Whenever practicable and in the public interest, as determined by the President, the President shall as promptly as possible reach a final settlement with a potentially responsible party in an administrative or civil action under section 9606 or 9607 of this title if such settlement involves only a minor portion of the response costs at the facility concerned and, in the judgment of the President, the conditions in either of the following subparagraph (A) or (B) are met: (A) Both of the following are minimal in comparison to other hazardous substances at the facility: (i) The amount of the hazardous substances contributed by that party to the facility. (ii) The toxic or other hazardous effects of the substances contributed by that party to the facility.   (B) The potentially responsible party-- (i) is the owner of the real property on or in which the facility is located; (ii) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and (iii) did not contribute to the release or threat of release of a hazardous substance at the facility through any action or omission.   This subparagraph (B) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance.   (2) Covenant not to sue   The President may provide a covenant not to sue with respect to the facility concerned to any party who has entered into a settlement under this subsection unless such a covenant would be inconsistent with the public interest as determined under subsection (f) of this section.   (3) Expedited agreement   The President shall reach any such settlement or grant any such covenant not to sue as soon as possible after the President has available the information necessary to reach such a settlement or grant such a covenant.   (4) Consent decree or administrative order   A settlement under this subsection shall be entered as a consent decree or embodied in an administrative order setting forth the terms of the settlement. In the case of any facility where the total response costs exceed $500,000 (excluding interest), if the settlement is embodied as an administrative order, the order may be issued only with the prior written approval of the Attorney General. If the Attorney General or his designee has not approved or disapproved the order within 30 days of this referral, the order shall be deemed to be approved unless the Attorney General and the Administrator have agreed to extend the time. The district court for the district in which the release or threatened release occurs may enforce any such administrative order.   (5) Effect of agreement   A party who has resolved its liability to the United States under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially responsible parties unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.   (6) Settlements with other potentially responsible parties   Nothing in this subsection shall be construed to affect the authority of the President to reach settlements with other potentially responsible parties under this chapter.   (7) Reduction in settlement amount based on limited ability to pay   (A) In general   The condition for settlement under this paragraph is that the potentially responsible party is a person who demonstrates to the President an inability or a limited ability to pay response costs.   (B) Considerations   In determining whether or not a demonstration is made under subparagraph (A) by a person, the President shall take into consideration the ability of the person to pay response costs and still maintain its basic business operations, including consideration of the overall financial condition of the person and demonstrable constraints on the ability of the person to raise revenues.   (C) Information   A person requesting settlement under this paragraph shall promptly provide the President with all relevant information needed to determine the ability of the person to pay response costs.   (D) Alternative payment methods   If the President determines that a person is unable to pay its total settlement amount at the time of settlement, the President shall consider such alternative payment methods as may be necessary or appropriate.   (8) Additional conditions for expedited settlements   (A) Waiver of claims   The President shall require, as a condition for settlement under this subsection, that a potentially responsible party waive all of the claims (including a claim for contribution under this chapter) that the party may have against other potentially responsible parties for response costs incurred with respect to the facility, unless the President determines that requiring a waiver would be unjust.   (B) Failure to comply   The President may decline to offer a settlement to a potentially responsible party under this subsection if the President determines that the potentially responsible party has failed to comply with any request for access or information or an administrative subpoena issued by the President under this chapter or has impeded or is impeding, through action or inaction, the performance of a response action with respect to the facility.   (C) Responsibility to provide information and access   A potentially responsible party that enters into a settlement under this subsection shall not be relieved of the responsibility to provide any information or access requested in accordance with subsection (e)(3)(B) of this section or section 9604(e) of this title.   (9) Basis of determination   If the President determines that a potentially responsible party is not eligible for settlement under this subsection, the President shall provide the reasons for the determination in writing to the potentially responsible party that requested a settlement under this subsection.   (10) Notification   As soon as practicable after receipt of sufficient information to make a determination, the President shall notify any person that the President determines is eligible under paragraph (1) of the person's eligibility for an expedited settlement.   (11) No judicial review   A determination by the President under paragraph (7), (8), (9), or (10) shall not be subject to judicial review.   (12) Notice of settlement   After a settlement under this subsection becomes final with respect to a facility, the President shall promptly notify potentially responsible parties at the facility that have not resolved their liability to the United States of the settlement.   (h) Cost recovery settlement authority   (1) Authority to settle   The head of any department or agency with authority to undertake a response action under this chapter pursuant to the national contingency plan may consider, compromise, and settle a claim under section 9607 of this title for costs incurred by the United States Government if the claim has not been referred to the Department of Justice for further action. In the case of any facility where the total response costs exceed $500,000 (excluding interest), any claim referred to in the preceding sentence may be compromised and settled only with the prior written approval of the Attorney General.   (2) Use of arbitration   Arbitration in accordance with regulations promulgated under this subsection may be used as a method of settling claims of the United States where the total response costs for the facility concerned do not exceed $500,000 (excluding interest). After consultation with the Attorney General, the department or agency head may establish and publish regulations for the use of arbitration or settlement under this subsection.   (3) Recovery of claims   If any person fails to pay a claim that has been settled under this subsection, the department or agency head shall request the Attorney General to bring a civil action in an appropriate district court to recover the amount of such claim, plus costs, attorneys' fees, and interest from the date of the settlement. In such an action, the terms of the settlement shall not be subject to review.   (4) Claims for contribution   A person who has resolved its liability to the United States under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement shall not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.   (i) Settlement procedures   (1) Publication in Federal Register   At least 30 days before any settlement (including any settlement arrived at through arbitration) may become final under subsection (h) of this section, or under subsection (g) of this section in the case of a settlement embodied in an administrative order, the head of the department or agency which has jurisdiction over the proposed settlement shall publish in the Federal Register notice of the proposed settlement. The notice shall identify the facility concerned and the parties to the proposed settlement.   (2) Comment period   For a 30-day period beginning on the date of publication of notice under paragraph (1) of a proposed settlement, the head of the department or agency which has jurisdiction over the proposed settlement shall provide an opportunity for persons who are not parties to the proposed settlement to file written comments relating to the proposed settlement.   (3) Consideration of comments   The head of the department or agency shall consider any comments filed under paragraph (2) in determining whether or not to consent to the proposed settlement and may withdraw or withhold consent to the proposed settlement if such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate.   (j) Natural resources   (1) Notification of trustee   Where a release or threatened release of any hazardous substance that is the subject of negotiations under this section may have resulted in damages to natural resources under the trusteeship of the United States , the President shall notify the Federal natural resource trustee of the negotiations and shall encourage the participation of such trustee in the negotiations.   (2) Covenant not to sue   An agreement under this section may contain a covenant not to sue under section 9607(a)(4)(C) of this title for damages to natural resources under the trusteeship of the United States resulting from the release or threatened release of hazardous substances that is the subject of the agreement, but only if the Federal natural resource trustee has agreed in writing to such covenant. The Federal natural resource trustee may agree to such covenant if the potentially responsible party agrees to undertake appropriate actions necessary to protect and restore the natural resources damaged by such release or threatened release of hazardous substances.   (k) Section not applicable to vessels   The provisions of this section shall not apply to releases from a vessel.   (l) Civil penalties   A potentially responsible party which is a party to an administrative order or consent decree entered pursuant to an agreement under this section or section 9620 of this title (relating to Federal facilities) or which is a party to an agreement under section 9620 of this title and which fails or refuses to comply with any term or condition of the order, decree or agreement shall be subject to a civil penalty in accordance with section 9609 of this title.   (m) Applicability of general principles of law   In the case of consent decrees and other settlements under this section (including covenants not to sue), no provision of this chapter shall be construed to preclude or otherwise affect the applicability of general principles of law regarding the setting aside or modification of consent decrees or other settlements.

 

Sec. 9625. Section 6921(b)(3)(A)(i) waste     Sec. 9657. Separability; contribution   If any provision of this chapter, or the application of any provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances and the remainder of this chapter shall not be affected thereby. If an administrative settlement under section 9622 of this title has the effect of limiting any person's right to obtain contribution from any party to such settlement, and if the effect of such limitation would constitute a taking without just compensation in violation of the fifth amendment of the Constitution of the United States, such person shall not be entitled, under other laws of the United States , to recover compensation from the United States for such taking, but in any such case, such limitation on the right to obtain contribution shall be treated as having no force and effect.   Sec. 9628. State response programs

 

 

Sec. 9659. Citizens suits     (a) Authority to bring civil actions   Except as provided in subsections (d) and (e) of this section and in section 9613(h) of this title (relating to timing of judicial review), any person may commence a civil action on his own behalf-- (1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter (including any provision of an agreement under section 9620 of this title, relating to Federal facilities); or (2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, including an act or duty under section 9620 of this title (relating to Federal facilities), which is not discretionary with the President or such other officer.   Paragraph (2) shall not apply to any act or duty under the provisions of section 9660 of this title (relating to research, development, and demonstration).   (b) Venue   (1) Actions under subsection (a)(1)   Any action under subsection (a)(1) of this section shall be brought in the district court for the district in which the alleged violation occurred.   (2) Actions under subsection (a)(2)   Any action brought under subsection (a)(2) of this section may be brought in the United States District Court for the District of Columbia .   (c) Relief   The district court shall have jurisdiction in actions brought under subsection (a)(1) of this section to enforce the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title), to order such action as may be necessary to correct the violation, and to impose any civil penalty provided for the violation. The district court shall have jurisdiction in actions brought under subsection (a)(2) of this section to order the President or other officer to perform the act or duty concerned.   (d) Rules applicable to subsection (a)(1) actions   (1) Notice   No action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff has given notice of the violation to each of the following: (A) The President. (B) The State in which the alleged violation occurs. (C) Any alleged violator of the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title).   Notice under this paragraph shall be given in such manner as the President shall prescribe by regulation.   (2) Diligent prosecution   No action may be commenced under paragraph (1) of subsection (a) of this section if the President has commenced and is diligently prosecuting an action under this chapter, or under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] to require compliance with the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 9620 of this title).   (e) Rules applicable to subsection (a)(2) actions   No action may be commenced under paragraph (2) of subsection (a) of this section before the 60th day following the date on which the plaintiff gives notice to the Administrator or other department, agency, or instrumentality that the plaintiff will commence such action. Notice under this subsection shall be given in such manner as the President shall prescribe by regulation.   (f) Costs   The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.   (g) Intervention   In any action under this section, the United States or the State, or both, if not a party may intervene as a matter of right. For other provisions regarding intervention, see section 9613 of this title.   (h) Other rights   This chapter does not affect or otherwise impair the rights of any person under Federal, State, or common law, except with respect to the timing of review as provided in section 9613(h) of this title or as otherwise provided in section 9658 of this title (relating to actions under State law).   (i) Definitions   The terms used in this section shall have the same meanings as when used in subchapter I of this chapter.

 

Stand down: Legal help among options to assist homeless veterans

ANDERSON — Homeless veterans who have legal problems could get some much-needed help during this weekend's Stand Down at the Shasta District Fair grounds.

A special court is being established at the fifth annual Stand Down sponsored by the nonprofit North Valley Stand Down Association in which homeless Shasta County veterans can resolve misdemeanor and infraction offenses, as well as help to try to settle traffic ticket, child support and other issues.

Jim Richards, chairman of the North Valley Stand Down Association, said this is the first time the Shasta County Superior Court has gotten involved in the three-day event, which features a variety of free services for homeless north state veterans, including medical and dental care.

Court will be held inside a building, and not a tent, at the fairgrounds. Shasta County Superior Court Commissioner Jennifer Dollard will preside, accompanied by a court clerk, Senior Deputy District Attorney Kelly Kafel, Deputy Public Defender Dena Horton and Stacy Larson, a family law facilitator.

“We will try to help as best we can,” said Horton, who volunteered for the court duty and performed similar work at a previous Stand Down in Sacramento.

“We were pretty busy,” she said, adding she doesn't know what to expect at the Anderson event.

Superior Court Executive Officer Melissa Fowler-Bradley agrees.

“We might be flooded with people,” or business could be slow, she said.

“But we wanted to give it a try,” she said. “We're kind of testing it out.”

Such homeless veterans' courts have been held at other Stand Downs in California and the nation, Horton said, but they do not tackle felony or DUI issues due to their seriousness and complexity.

“It's just minor stuff,” Richards said.

The court convenes Friday, Horton said, adding that those who are ordered by Commissioner Dollard to perform community service may have to do that work, or at least a chunk of it, at the Stand Down.

“We really hope to help as many people as possible,” she said.

The Stand Down is being billed as “a hand up, not a hand out,” and offers a variety of services for veterans, including temporary shelter, food, clothing, counseling, hygiene comfort kits and medical and employment services.

Veterans with pets also could get help for their animal companions.

Anderson Veterinary Clinic will be available on a case-by-case basis to provide vaccinations and other services, an office spokeswoman said.

For more information about the Stand Down or to volunteer or donate, call Richards at 530-365-0342.

More information can be found at nvsda.org.

Spanish and Mexican law.— The rule limiting the possession of one without color of title to the land actually occupied was fully recognized by the Spanish and Mexican law, as applied in the territory acquired by the United States from Spain or Mexico. Sunol v. Hepburn, 1 Cal. 254.

1. Ark.—.Bradbury v. Dumond, 80 Ark. 82, 96 SW 390; Nlcklace v. Dlckerson, 65 Ark. 422, 46 SW 945.

Cal.—Garrison v. Sampson, 15 Cal. 93.

[?] "The 'squatters' sovereignty Is confined to his dominion." Slaven v. Dority, 142 Ky. 640, 645, 134 SW 1166 (per Miller, J.).

[b] Effect of special statutory provisions.—A statute providing that "the possession of a part of a tract or lot of land in the name of the whole tract claimed, and exercising during the time of such possession the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole tract," did not apply where one entered without color of title, but the possession of such a one would still be restricted to his actual possession. Fúgate v. Pierce, 49 Mo.

2. U. S.—Fräser v. Hunter, 9 F. Cas. No. 5,063, 5 Cranch C. C. 470.

[$ 498] 2. Reason for Eule. The reason on which the rule is based is that when au entry is not under color of title there is no invasion or disseizin which notifies the true owner of a claim asserted by another person, or which gives him a right of action except as to the land actually occupied. 8

[$ 499] 3. Limitations and Exceptions to Rule— a. In Kentucky. In Kentucky, while the general rule is recognized, 4 the courts of that state have placed an important limitation on its operation. Briefly stated it is this: One who without color of title enters on land having well defined boundaries marked on it, or which he himself marks thereon, and who occupies and uses a part, claiming the whole, acquires possession coextensive with the boundaries, 5 unless some part is in the actual possession of another, 0 or there is a conflict as to the boundary with another which is older or superior and the owner of the latter has entered on the boundary. 7 This character of possession is obviously constructive in its nature but has been descrihcd as "constructive actual possession," 8 whatever that may mean. It is essential, however, to the operation of this principle

that there should be a well marked boundary around the land claimed. 9 And a claim of title by adverse possession based on a marking of boundaries cannot be extended back of the date of such marking. 10 So also it has been held that if the claimant has the right to enter upon a part of the land within the boundary, and not to enter on another part, and his actual entry is only on the part to whicli he has the right, he acquires no possession beyond such part, although he may intend to take possession of the whole ;'° Vi and the same rule applies to the possession of his grantee, although the conveyance is of all the land within the boundary. 1014

(2) A grant from the state, to constitute title or color of title, "must be effectual to convey to the grantee whatever right or title the government had In the land, at the time of making the grant. It need not necessarily carry with it the paramount title; but it must be title, as against the government, valid in itself when tested by itself, and not tried by the title of others. It must have intrinsic validity, as between the parties to It; though it may be relatively void, as respects the rights of third persons. If It be absolutely void, a nullity, it cannot be said to be a grant, or the basis of a transfer of the title from the government." Smith v. Power, supra; Williamson v. Brown, supra.

(3) It has accordingly been held that a patent void for want of authority of the officer issuing It does not give color of title. Bates v. Bacon, 66 Tex. 348, 1 SW 256; League v. Rogan, 59 Tex. 427; Texas Land, etc., Co. v. State. 1 Tex. Civ. A. 616, 23 SW 258.

(4) And under a constitutional provision reserving land for a school fund and providing for a sale thereof under regulation prescribed by law a patent as a homestead donation of land reserved as school land Is neither title nor color of title within the state in the instrument. 02

Executory Contracts and Bonds for Title. While there, are decisions which hold without any qualification that an executory contract of purchase or bond for title does not constitute color of title, on the ground that such instrument does not purport to convey title, 2 the weight of authority is that such an instrument will give color of title as

against all persons whomsoever after payment of
the purchase money,* especially after he has received
a conveyance under a decree of court. 4 On the
other hand, according to the fair weight of authority,
an executory contract to convey or bond for title
does not give color of title before payment of the
purchase money as against the vendor, 5 although
there is ample authority for the view that it will
give color of title against a stranger."

Parol Gift or Purchase. As heretofore shown 38 the weight of authority is to the effect that a written instrument is necessary to give color of title, and where this view prevails a vendee or donee in possession under a parol gift or purchase holds without color of title, although his vendor may have what would be color of title in him if he were in possession of the premises.' 40 But in jurisdictions where a written instrument is unnecessary a person holding under a parol purchase or gift is considered as holding under color of title. 41

\\\ 394] 5. Judgments or Decrees—a. In General. Judgments or decrees purporting to vest title under which possession of land is taken constitute color of title, 42 and this is in general true, although the decree or judgment is for any reason irregular or even void. 43 However, as is the case with instruments generally, 44 a judgment or decree does not give color of title where it does not purport to convey

|b] A void Judgment of sequestration may constitute color of title. Jones v. Thomas, 124 Mo. 586, 28 SW 76.

44. See supra ( 33i.

[( 396] c. In Condemnation Proceedings. Condemnation proceedings may constitute color of title when possession has been taken and held under them, notwithstaflding irregularities of procedure which may render them invalid. 65 But in order for the judgment or decree to constitute color of title it is essential that it should describe the land 66 and purport to convey title, 67 and that a final order should have been entered confirming the commissioners' report and reciting that the damages have been paid, and limitations do not start to run until such order. 68 Occupation under irregular condemnation proceedings which did not in any manner indicate the bounds of the proposed right of way or the quantity of land to be appropriated is confined to the pedis possessio, and such proceedings do not give color of title. 69

45. Converse v. Calumet River R. Co., 195 111. 204, 62 NE 887; Southern Iron, etc., Co. v. Schwoon, 124 Tenn. 176. 135 SW 785.

Failure to make all tenant* partie*.—(1) It has been held thai the decree of a proper court making partition purports on its face to convey title and constitutes good color of title, even though some of the tenants in common are not made parties to the suit in which it Is rendered. Wright v. Slice, 173 111. 571, 51 NE 71. (2) However, under anolher slatute of this state which provides that the title relied on must be "deducible of record, from this State or the United States," mere color of title is not sufficient and a prima facie title is required. Hence a title based on a decree for partition rendered in a suit in which certain persons were nol parlies and hence not bound Is not prima facie title against them and cannot be availed of as a bar under this section. Carpenter v. Fletcher, 239 111. 440, 88 NE 162. .(3) And in another jurisdiction it has been held that the statute cannot be invoked lo sustain the title to land acquired under a judicial sale in a partition suit between strangers to the true title, as against the real owner who was not a party to such suit. Alexander v. Gordon, 101 Fed. 91, 98, 41 CCA 228 (where it was said: "If the purpose of this statute was to devest the title of the owner of land in this way, It is unconstilutlonal. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and renders judgment without trial. It would not be due process of law").

[4 453] bb. Lands Granted by Special Acts of Congress. Where an act of congress relating to public lands amounts to a direct grant of the fee in pressenti the statute will begin to' run from the time when the title passes, even though a patent has not been issued. 02 This rule has been frequently applied in the case of grants of land by congress to railroad companies. 83 However, if land is granted on the implied condition of reverter, in the event that the grantee ceases to use it for that 'purpose, an individual cannot acquire any portion thereof by adverse possession in any event, and a statute

prescription. Teddlie v. McNeely, 104 La. 603, 29 S 247.

RESTORE THE SWAMPS IN WASHINGTON AND SACRAMENTO

Native American farmers settle with USDA for $760 million

By Spencer S. Hsu and Krissah Thompson Washington Post Staff Writers
Tuesday, October 19, 2010; 5:17 PM

The Obama administration announced a $760 million settlement Tuesday to resolve charges by thousands of Native American farmers and ranchers who say that for decades the Agriculture Department discriminated against them in loan programs.

The farmers have fought for 11 years and through three administrations to resolve the case.

"The settlement announced today will allow USDA and the Native American farmers involved in the lawsuit to move forward and focus on the future," Attorney General Eric H. Holder Jr. said in a statement.

The roughly 50-page agreement resolves a class-action lawsuit brought in 1999 by nearly 900 people, covering Department of Agriculture actions dating to 1981.

"This settlement marks a major turning point in the important relationship between Native Americans, our nation's first farmers, and the USDA," said lead plaintiffs' attorney Joseph M. Sellers, a partner at the Cohen Milstein Sellers & Toll law firm in Washington.

Under the agreement, the department would pay $680 million in damages and forgive $80 million of outstanding farm loan debt.

The federal government also agreed to create a Native American Farmer and Rancher Council to advise USDA, appoint a department ombudsman, provide more technical assistance to Native American borrowers and conduct a systematic review of farm loan program rules - all to improve access to farm aid programs.

Sellers credited the Obama administration with opening the door to talks after taking office and seeing "long-standing . . . and festering" problems in farm programs.

"With the entry of the new administration, we saw a decided change in the attitude of the government to this litigation," Sellers said. "Rather than kicking it down the road, they really seemed open to working with us."

The financial payments will not require approval by Congress but could be paid from a judgment fund maintained by the Justice Department.

"We have been waiting nearly three decades for this day to come," said plaintiff Marilyn Keepseagle, whose name along with that of her husband, George, leads the case. "This settlement will help thousands of Native Americans who are still farming and ranching."

A claims process will be publicized in rural and often remote Native American communities.

"Today's settlement can never undo wrongs that Native Americans may have experienced in past decades, but combined with the actions we at USDA are taking to address such wrongs, the settlement will provide some measure of relief to those alleging discrimination," Agriculture Secretary Tom Vilsack said. "The Obama administration is committed to closing the chapter on an unfortunate civil rights history at USDA and working to ensure our customers and employees are treated justly and equally."

 

Kentucky Coal Association Sues EPA
Posted Monday, October 18, 2010

The state's Energy and Environment Cabinet joins the KCA in challenging EPA's interim guidance for conductivity in streams.

The Kentucky Coal Association filed suit Oct. 18 contesting the legality of the U.S. Environmental Protection Agency's oversight of Kentucky's coal mine permitting activities.

The suit, filed in the U.S. District Court for the Eastern District of Kentucky in Pikeville, names the EPA and EPA Administrator Lisa Jackson as defendants.

Kentucky Gov. Steve Beshear directed the state's Energy and Environment Cabinet to join the KCA in the lawsuit.

“In late September of this year, the EPA continued its onslaught against Kentucky's coal industry by vetoing numerous KPDES (Kentucky Pollutant Discharge Elimination System) permits that the Kentucky Division of Environmental Protection (DEP) had proposed to issue for coal mining activities,” read a media release from the KCA.

“The EPA took this action notwithstanding the fact that it had approved the issuance of the same type of permit for nearly 30 mining activities as recently as six months ago, concluding that the permits were consistent with CWA requirements.”

Beshear said the EPA's decisions threaten to “end the responsible mining of coal and eliminate the jobs of an estimated 18,000 Kentucky miners who depend on mining for their livelihood.”

The legal action centers on the EPA's application of April 1 interim guidance that establishes benchmarks for electrical conductivity in streams below coal mining operations in Appalachia.

The agency has objected to the issuance of 11 Clean Water Act permits written by the Kentucky Division of Water, permits that are similar to some allowed earlier in the year, according to the media release from the governor's office.

“EPA is not allowing formal legal challenges to those specific permit objections until EPA itself re-writes and issues the permit to its satisfaction,” the release reads. “For individual (Clean Water Act) permits where the state is unable to resolve the EPA objection in the 90-day period allowed, EPA will become the permitting and enforcement authority for those mining operations for the life of that permitting action. EPA is under no timeframe to take any final action in response to their objection letter.”

Click here to read the complaint. (PDF File)

 

CONTACTS:

Stacy Kika

Kika.stacy@epa.gov

202-564-0906

202-564-4355

FOR IMMEDIATE RELEASE

October 19, 2010

EPA to Provide Technical Assistance on Sustainable Growth and Development

More information on the Smart Growth Assistance Program: http://www.epa.gov/smartgrowth/sgia.htm

More information on the partnership: http://www.epa.gov/smartgrowth/partnership/index.html

View the partnership progress report: http://www.epa.gov/smartgrowth/pdf/partnership_year1.pdf

 

OBITER DICTA FOR THE SPECIAL DEPUTY HIGH WARDEN

PRIVATE ATTORNEY GENERAL LEVYING OFFICER

Governmental Controls: Types of institutional controls that impose land or resource restrictions using the authority of an existing unit of government (e.g., state legislation, local ordinance, well drilling permit, etc.). NONE!

Consent Decree: Legal document approved by a judge that formalizes an agreement reached between EPA and companies, governments, or individuals associated with contamination at the sites (potentially responsible parties (PRPs)) through which PRPs will take certain actions to resolve the contamination at a Superfund site. NOT THIS PRP

[$ 512] (2) Adjoining Lots under One Inclosure. Although a tract may be subdivided into a number of smaller lots separated by partitions, possession of one may, nevertheless, be constructive possession of all if inclosed by a common fence. 00 This, it has been held, is true, although the title to the different lots may be derived from different sources. 01

Empowering Safe Lands & Watersheds

1. To invest with power, especially legal power or official authority. Stakeholder Meetings/CEQA

Iron Mountain Mine advancing the development of renewable energy on potentially uncontaminated land

WHY IS IT A GOOD IDEA TO BUY A PROPERTY WITHIN A SUPERFUND SITE?

LOCATION, location, location. Many Superfund sites have advantageous and desirable locations. Some federal, state, and local government agencies offer grants, loans, and tax incentives to encourage development and revitalization of contaminated and formerly contaminated properties and surrounding areas.
Superfund sites throughout the country have been transformed into major shopping centers, business parks, residential subdivisions, and recreational facilities. Many more Superfund sites are being revitalized for use by small businesses. A large number of Superfund sites are suitable for revitalization even while cleanup on the property progresses. (See http://www.epa.gov/superfund/ programs/recycle/ for more information on revitalization of Superfund sites). Integrating the reuse of a Superfund site into the cleanup can often occur smoothly, which minimizes future surprises regarding undiscovered contamination.

HOW DO I IDENTIFY ALL OF THE PARTIES I HAVE TO DEAL WITH TO BUY THE SITE OR A PROPERTY WITHIN THE SITE AND HOW IS EPA INVOLVED?
THERE is no simple solution to identify all of the parties associated with a Superfund site but the process begins with the current owner. As with the purchase of any property, negotiations to buy a Superfund site begin with the current owner who can be identified through property title or tax records. EPA rarely owns the site being cleaned up. Generally, EPA’s Regional offices may assist in addressing the following questions:

What is the current status of a site’s cleanup and what are EPA’s future anticipated actions?

Is the proposed redevelopment compatible with a site’s cleanup and with the existing and potential future property use restrictions? Note: EPA does not offer guarantees of compatibility.

Is the prospective purchaser aware of the applicable landowner liability protections under Superfund?

How can EPA work with the prospective purchaser to settle or resolve any EPA liens?7
EPA is willing to work with prospective purchasers to clarify a property’s cleanup status and potential liability issues including the existence and satisfaction of EPA liens and property use restrictions. States also have cleanup programs and prospective purchasers should contact the appropriate state environmental agency to make certain they are aware of planned or ongoing state-lead cleanup actions at the property.

We hereby execute our sovereign absolute authority which allows intervention as of right in any civil or administrative action to obtain remedies by any citizen having an interest which is or may be adversely affected; all citizen complaints submitted pursuant to the procedures specified in §123.26(b)(4); permissive intervention authorized by statute, rule, or regulation; October 14, 2010 Citizens seek to join suit over EPA mining rules

Identify the breakdowns in management that allowed actions prohibited by EPA ethics policies to occur and implement accountability.

TOXIC NEWS: IRON MOUNTAIN MINE ANNOUNCES SAFETY OFFICERS' SEISMIC HOSPITAL TASKFORCE 5 (SOS-HT5) TO DEVELOP BUILDING MATERIALS FOR THE MANDATED SAFE HOSPITAL CONSTRUCTION AND NEW BUILDING CODE DUE 2030

Iron Mountain Mine remediation comprises a range of best practices that may be applied throughout the private remedy operations. The best management practices of green remediation provide potential means to improve waste management; conserve or preserve energy, fuel, water, and other natural resources; promote sustainable long-term stewardship; and reduce adverse impacts on the local community during and after remediation activities. Green remediation can also complement efforts to return the private site to productive use in a sustainable manner, such as utility-scale production of renewable energy, utility scale hydropower, utility scale photovoltaic, utility scale wind, utility scale biorefinery and biopower, etc..
Utilization of green remediation strategies within the scope of the private response help ensure a protective remedy. It may be possible to lessen the long-term negative effects of the governments previous actions on the site. With the presently operating removal action green remediation practices may be used to upgrade or optimize treatment systems.

Iron Mountain Mine remediation strategies complement site reuse involving sustainable activities and property development in accordance with smart growth principles and green building practices.

In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA's management and enforcement capability: 1 EPA's organization and infrastructure; 2 Oversight of delegations to States; and 3 Performance measurement.

We believe that the underlying issues persist. EMANCIPATE T.W. ARMAN & IRON MOUNTAIN MINE

Innocent and “Unknowing” Purchasers

Entities that acquire property and had no knowledge of the contamination at the time of purchase may be eligible for CERCLA’s third- party defense for certain purchasers of contaminated property. CERCLA §§ 107(b)(3), 101(35)(A)(i). This defense, added to CERCLA in the Superfund Amendments and Reauthorization Act of 1986 (Public Law 99-499), provides entities with an affirmative defense to liability if they conducted all appropriate inquiries prior to purchase and complied with other pre- and post-purchase requirements. The 2002 Brownfields Amendments partially amended the innocent purchaser defense by elaborating on the all appropriate inquiry requirement. See the “All Appropriate Inquiries” text box on page 17.
The innocent purchaser defense may provide liability protection to some owners of contaminated property -- especially those that purchased property prior to January 1, 2002, and are therefore ineligible for the bona fide prospective purchaser protection -- but generally most post-2002 prospective purchasers will not rely on this defense because of the requirement that the purchaser have no knowledge of contamination at the site.
Several of EPA’s guidance documents discuss the innocent purchaser third-party defense, including the Common Elements guidance, discussed below in Section II.A.5 beginning on page 21.

 

The synopsis for this grant opportunity is detailed below, following this paragraph. This synopsis contains all of the updates to this document that have been posted as of 03/23/2009 . If updates have been made to the opportunity synopsis, update information is provided below the synopsis.

If you would like to receive notifications of changes to the grant opportunity click send me change notification emails . The only thing you need to provide for this service is your email address. No other information is requested.

Any inconsistency between the original printed document and the disk or electronic document shall be resolved by giving precedence to the printed document.

Description of Modification

Corrected Title

Document Type: Modification to Previous  Grants Notice
Funding Opportunity Number: PD-10-1179
Opportunity Category: Discretionary
Posted Date: Mar 23, 2009
Creation Date: Oct 20, 2010
Original Closing Date for Applications: Mar 03, 2011    Full Proposal Window: February 1, 2011 - March 3, 2011 Full Proposal Window: August 15, 2011 - September 15, 2011
Current Closing Date for Applications: Mar 03, 2011    Full Proposal Window: February 1, 2011 - March 3, 2011 Full Proposal Window: August 15, 2011 - September 15, 2011
Archive Date:
Funding Instrument Type: Grant
Category of Funding Activity: Science and Technology and other Research and Development
Category Explanation:
Expected Number of Awards: 0
Estimated Total Program Funding: $0
Award Ceiling:
Award Floor:
CFDA Number(s): 47.041  --  Engineering Grants
Cost Sharing or Matching Requirement: No
 

Eligible Applicants

Unrestricted (i.e., open to any type of entity above), subject to any clarification in text field entitled "Additional Information on Eligibility"

Additional Information on Eligibility:


Agency Name

National Science Foundation

Description

The Environmental Implications of Emerging Technologies program provides support to develop and test the environmental effects of new technologies. Fundamental and basic research is sought to establish and understand outcomes as a result of the implementation of new technologies such as nanotechnology and biotechnology. The program also supports research on the development and refinement of sensors and sensor network technologies that can be used to measure a wide variety of physical, chemical, and biological properties of interest in characterizing, monitoring, and understanding environmental impacts.The program emphasizes engineering principles underlying technology impacts. Innovative production processes, waste reduction, recycling, and industrial ecology technologies are of interest. All of these have implications that would be relevant to this program. Current areas of support include: * Understanding and mitigating how new developments in nanotechnology and biotechnology will interact with the environment * Nanotechnology environmental, health, and safety implications and applications * Predictive methodology for the interaction of nanoparticles with the environment and with the human body, including predictive approaches for toxicity * Fate and transport of natural, engineered, and incidental (by-product) nanoparticles * Risk assessment and management of the effect of nanomaterials in the environment * Sensor and sensor network technologies as they relate to the measurement of these environmental implicationsCurrent areas of support for this program do not include biomedical and nanotoxicology topics involving clinical trials.All proposed research should be driven by engineering principles, and presented in an environmental health and safety or environmental sensor context. Proposals should include involvement of at least one engineering student.The duration of unsolicited awards is generally one to three years. The average annual award size for the program is $100,000. Small equipment proposals of less than $100,000 will also be considered and may be submitted during these windows. Any proposal received outside the announced dates will be returned without review.The duration of CAREER awards is five years. The submission deadline for Engineering CAREER proposals is in July every year. Please see the following URL for more information: http://www.nsf.gov/pubs/2008/nsf08051/nsf08051.jsp.Proposals for Conferences, Workshops, and Supplements may be submitted at any time, but must be discussed with the program director before submission.Grants for Rapid Response Research (RAPID) and EArly-concept Grants for Exploratory Research (EAGER) replace the SGER program. Please note that proposals of these types must be discussed with the program director before submission. Further details are available in the PAPPG download, available below. Please refer to the Proposal and Award Policies and Procedures Guide (PAPPG), January 2009, (NSF 09-1) when you prepare your proposal.

Link to Full Announcement

NSF Program Description 09-1179

If you have difficulty accessing the full announcement electronically, please contact:

NSF grants.gov support
grantsgovsupport@nsf.gov
If you have any problems linking to this funding announcement, please contact

Synopsis Modification History

The following files represent the modifications to this synopsis with the changes noted within the documents. The list of files is arranged from newest to oldest with the newest file representing the current synopsis. Changed sections from the previous document are shown in a light grey background.

File Name Date
Modification #4 Sep 27, 2010
Modification #3 Mar 11, 2010
Modification #2 Nov 16, 2009
Modification #1 Nov 16, 2009
Original Synopsis Mar 23, 2009
 

During the New Deal Era, the Supreme Court began to depart from the Lochner era constitutional interpretation of the Commerce Clause , Due Process , and the Contract Clause.

In Home Building & Loan Association v. Blaisdell 290 U.S. 398 (1934), the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose. The law was enacted to prevent mass foreclosures during a time of economic hardship in America . The kind of contract modification performed by the law in question was arguably similar to the kind that the Framers intended to prohibit. The Supreme Court held that this law was a valid exercise of the state's Police Power . It found that the temporary nature of the contract modification and the emergency of the situation justified the law.. [ 18 ]

Further cases have refined this holding, differentiating between governmental interference with private contracts and interference with contracts entered into by the government. Succinctly, there is more scrutiny when the government modifies a contract to alter its own obligations. (See United States Trust Co. v. New Jersey , 431 U.S. 1 (1977).) [ 18 ]

Modification of Private Contracts

The Supreme Court laid out a three-part test for whether a law violates the Contract Clause in Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983). First, the state regulation must substantially impair a contractual relationship. Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." 459 U.S. at 411-13 Third, the law must be reasonable and appropriate for its intended purpose. This test is similar to rational basis review. [ 18 ]

Modification of Government Contracts

In United States Trust Co. v. New Jersey , the Supreme Court held that a higher level of scrutiny was needed for situations where laws modified the government's own contractual obligations. In this case, New Jersey had issued bonds to finance the World Trade Center and had contractually promised the bondholders that the collateral would not be used to finance money losing rail operations. Later, New Jersey attempted to modify law to allow financing of railway operations, and the bondholders successfully sued to prevent this from happening. [ 19 ]

"Mr. Chairman: EPA's ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation's waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA's current organization and a commitment to implement best practices."

A Primer in Constitutional law

Congress' enumerated powers

Webster's American Dictionary of the English Language (1828), says re “constitution”:

...In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power ; and in the United States, the legislature is created, and its powers designated, by the constitution.

The federal government * has three branches: Article I of the Constitution creates the legislative branch (Congress) & lists its powers; Article II creates the executive branch & lists its powers; and Article III creates the judicial branch & lists its powers.

Article I, § 8, grants to Congress the powers:

  1. To lay certain taxes;
  2. To pay the debts of the United States;
  3. To declare war and make rules of warfare, to raise and support armies and a navy and to make rules governing the military forces; to call forth the militia for certain purposes, and to make rules governing the militia;
  4. To regulate commerce with foreign Nations, and among the States, and with the Indian Tribes;
  5. To establish uniform Rules of Naturalization;
  6. To establish uniform Laws on Bankruptcies ;
  7. To coin money and regulate the value thereof;
  8. To fix the standard of Weights and Measures;
  9. To provide for the punishment of counterfeiting;
  10. To establish post offices and post roads;
  11. To issue patents and copyrights;
  12. To create courts inferior to the supreme court; and
  13. To define and punish piracies and felonies committed on the high seas, and offenses against the Laws of Nations.



Other provisions of the Constitution grant Congress powers to make laws regarding:

  1. An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);
  2. Elections of Senators & Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);
  3. After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); **
  4. A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);
  5. To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)
  6. A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);
  7. Implementation of the Full Faith and Credit clause (Art. IV, §1); and,
  8. Procedures for amendments to The Constitution (Art. V).

The 13th, 14th, 15th, 16th, 19th, 23rd, 24th, & 26th Amendments grant additional powers to Congress respecting civil rights & voting rights, the public debt [lawfully incurred], income tax , successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.

The Constitution authorizes Congress to exercise throughout the States these and only these powers !

4. Two provisions of the Constitution grant to Congress broad legislative powers over specifically defined geographical areas :

a) Article I, §8, next to last clause, grants to Congress “exclusive Legislation” over the following geographically tiny areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. As James Madison said in federalist no. 43 at 2., it is necessary for the government of the united states to have “complete authority” at the seat of government, and over forts, magazines, etc. established by the federal government.

b) article iv, §3, cl. 2 grants to congress power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states (as opposed to property belonging to individual states). as these territories became states, congress' powers under this article were terminated.

5. thus, congress has no authority to bail out financial institutions, businesses, and homeowners who don't pay their mortgages; no authority to take control of our health care; no authority to pass laws denying secret ballots to employees who are solicited for membership by labor unions; no authority to take away your ira's and other retirement accounts , no authority to pass laws respecting energy consumption or “emissions”, education, housing, etc., etc., etc.

Therefore, the laws which Congress has passed on such topics are unconstitutional as outside the scope of the legislative powers granted to Congress by The Constitution. We the People did not give such powers to Congress when we ordained & established the Constitution, created the Congress, and listed its 21 enumerated powers. And these powers are not granted to Congress in any of the Amendments.

6. If you look at The List of powers We granted to Congress, you will see that Congress' legislative powers fall into three categories:

a) International commerce and war;

b) Domestically, the establishment of an uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy law, a [limited] power over interstate commerce, and mail delivery. Congress also has the power to establish lower federal courts and make rules for naturalization.

c) Protection of civil and voting rights.

That's about it! All other powers are retained by the States or the People!

7. You ask, “How can Congress make all these laws if they are unconstitutional? How can what you say be true?”

Congress gets away with it because We are ignorant of what our Constitution says; and We have been indoctrinated into believing that Congress can do whatever they want!

But consider Prohibition: During 1919 everyone understood that the Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).

8. But during the regime of Franklin D. Roosevelt (FDR), all three branches of the federal government abandoned the Constitution: FDR proposed “New Deal” programs; Congress passed them. At first, the Supreme Court ruled (generally 5 to 4) that these programs were unconstitutional as outside the legislative powers granted to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal side, and the Court started approving FDR's programs (5 to 4).

9. Since then, law schools don't teach the Constitution! Instead, they teach decisions of the FDR-dominated Supreme Court which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that three clauses, the “general welfare” clause, the “interstate commerce” clause and the “necessary & proper” clause, permit Congress to do whatever it wants!

10. “Well”, you ask, “what about ‘ the general welfare clause' ? Doesn't that give Congress power to pass any law on any subject as long as it is for the ‘general Welfare of the United States' “? NO, IT DOES NOT!

First , you must learn what “welfare” meant when the Constitution was ratified: “Welfare” as used in the Preamble & in Art. 1, §8, cl. 1, U.S. Constitution, meant

Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government (Webster's, 1828).

But The American Heritage Dictionary of the English Language (1969), added a new meaning: “Public relief—on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when new meanings are substituted for original meanings?

Second, James Madison addresses this precise issue in federalist no. 41 (last 4 paras): madison points out that the first paragraph of art. i, §8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms.  so, yes! the powers of congress really are restricted to those listed hereinabove.

OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace & prosperity, and the enjoyment of the ordinary blessings of society & civil government, was possible only with a civil government which was strictly limited & restricted in what it was given power to do!

11. “OK”, you say, “but what about ‘ the commerce clause ' (Art. I, §8, cl. 3)?  Doesn't that give Congress power to pass laws on any subject which ‘affects' ‘interstate commerce' “? NO, IT DOES NOT! In federalist no. 22 (4th para) and federalist no. 42 (11th &12th paras), alexander hamilton & james madison explain the purpose of the “interstate commerce” clause: it is to prohibit the states from imposing tolls and tariffs on articles of import and export—merchandize—as they are transported through the states for purposes of buying and selling. that's what it does, folks; and until the mid-1930's and fdr's “new deal”, this was widely understood. ***

12.“well, then”, you say, “doesn't the ‘necessary & proper' clause' (Art. I, §8, last clause) allow Congress to make any laws which the people in Congress think are ‘necessary & proper'?” NO, IT DOES NOT! Alexander Hamilton says the clause merely gives to Congress a right to pass all laws necessary & proper to execute its declared powers ( federalist no. 29 , 4th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power ( federalist no. 33 , 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” ( federalist no. 33 , 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy . ( federalist no. 33 , 4th para). james madison agrees with hamilton's explanation. ( federalist no. 44 , 10th-17th paras). in other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.

13. The 10th Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So! If a power is not delegated by the Constitution to the federal government; and if the States are not prohibited (as by Art. I, § 10) from exercising that power ; then that power is retained by the States or by The People. And WE are The People ”!

14. Our Framers insisted repeatedly that Congress is restricted to its enumerated powers. James Madison says in federalist no. 45 (9 th para):

The powers delegated by the proposed Constitution to the federal government are few and defined . Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce ; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….[emphasis added]

In Federalist No. 39 (14th para):

...the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.

and in Federalist No. 14 (8th para):

...the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…

15. In all its recent legislation, Congress ratchets up its concerted pattern of lawless usurpations. The executive branch and the federal courts approve it. Such is the essence of tyranny. They are “ruling” without our consent, and hence the federal government is now illegitimate. PH

* “Federal” refers to the form of government: An alliance of States with close cultural & economic ties associated in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas.

** Some object that our Constitution endorsed slavery. During the 18th century, slavery was universal. Article I, § 9, clause 1, is our Proclamation to the World that WE would abolish the slave trade! Of course, James Madison wanted the “barbarism” & “unnatural traffic” of the slave trade abolished immediately ( Federalist Paper No. 42 , 6 th para).

*** See Justice Clarence Thomas' concurring opinion in united states v. lopez (1995). justice thomas' opinion shows why those disposed to usurp attack him so virulently.

 

 

Document Detail


Document ID: 2010-0021996 Assessor Parcel #: Please Contact Assessor's Office
Recorded on: 7/22/2010 4:04:42 PM Book Page #: No Book Page Found
No. of Pages: 5 Image: Documents can only be viewed in Records Office, Internet access is not available.

RESCISSION

Grantors:

Grantees:

IRON MOUNTAIN MINE INC BOONE, MARTIN
ARMAN, TED W DEPOE BAY LLC
IRON MOUNTAIN MINE LLC FORTRESS CAPITAL PARTNERS LLC
ESSENTIAL SOLUTIONS INC LOPEZ, STEPHAN B
OMNI FINANCIAL LLC
ORBIS FINANCIAL LLC

 

 

Shares of fertilizer producers soar

Food prices and agriculture exchange traded funds (ETFs) both may reflect the news contained in the USDA's harvest projections.

The U.S. Department of Agriculture cut its harvest projections for corn, soybeans and wheat, adding fuel to the commodity-rally fire . Meanwhile, further concerns about a food shortage are becoming a reality. Scott Kilman and Liam Pleven for The Wall Street Journal report that the agency's decision to cut its month-old corn projection by 3.8% was startling to many. [ Commodity ETFs Are Leading The Charge. ]

Historically, though, the USDA's forecast for corn crops is still the third-largest ever.

Economists expect farmers to respond to high grain prices by planting millions more acres of corn and wheat , which should benefit sellers of seed and chemicals to farmers such as Monsanto Co. and DuPont Co. The larger threat comes from using other farmland for those commodities in a shortage in order to make up. This could in turn create another shortage.

 

IRON MOUNTAIN MINE - HEMATITAN™ $1200/TON - $45/ 5 gal. plus shipping fax to 530-275-4559

EPA/ CALIFORNIA DTSC/ CAL-EPA/ REGIONAL WATER QUALITY CONTROL BOARD: COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing;

WORK TAKEOVER

NCP, 40 CFR§300.435(f)(2), states, “A remedy becomes ‘operational and functional' either one year after construction is complete, or when the remedy is determined concurrently by EPA and the State to be functioning properly and is performing as designed, whichever is earlier.

VINDICATION OF FALSE CLAIMS, EPA ACTIONS ARE ARBITRARY AND CAPRICIOUS, AN ABUSE OF PROCESS AND DISCRETION, THE GOVERNMENTS CONDUCT IS INTENTIONAL AND MALICIOUS RECKLESS NEGLIGENT ENDANGERMENT WITH ULTERIOR MOTIVES.

IRON MOUNTAIN MINE IS NOT RESPONSIBLE FOR ANY HEAVY METAL CONTAMINATION OF THE SAN FRANCISCO BAY

COPPER COMES PRIMARILY FROM AUTOMOBILE BRAKE WEAR IN BAY AREA STORM WATER RUN-OFF AND BOAT PAINT

CADMIUM COMES FROM THE MOTH-BALL FLEETS FLAKING PAINT AND OLD BATTERIES

ZINC IS NOT POLLUTION, IT IS A NUTRIENT (LIKE COPPER)

IRON MOUNTAIN HAS NO MERCURY HALO, SO ASK YOUR DENTIST

KESWICK LAKE AND THE CABECERA DEL RIO DE BUENAVENTURA (OLD SACRAMENTO) TO REDBLUFF DAM HAVE THE SAFEST FISH TO EAT IN THE STATE OF CALIFORNIA

COPPER, ZINC, IRON, MAGNESIUM, MANGANESE, SULFUR, CALCIUM, MOLYBDENUM, PHOSPHORUS, POTASSIUM, ETC. HUNGRY YET?

Administrative and National Policy Requirements
1. A listing and description of general EPA Regulations applicable to the award of assistance agreements may be viewed at: http://www.epa.gov/ogd/AppKit/applicable_epa_regulations_and_description.htm.
2. Executive Order 12372, Intergovernmental Review of Federal Programs, may be applicable to awards resulting from this announcement. Applicants selected for funding may be required to provide a copy of their proposal to their State Point of Contact (SPOC) for review, pursuant to Executive Order 12372, Intergovernmental Review of Federal Programs. This review is not required with the proposal and not all states require such a review.
3. Applicable regulations include: 40 CFR Part 30 (Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations), 40 CFR Part 31 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments) and 40 CFR Part 40 (Research and Demonstration Grants). Applicable OMB Circulars include: OMB Circular A-21 (Cost Principles for Educational Institutions) relocated to 2 CFR Part 220, OMB Circular A-87 (Cost Principles for State, Local and Indian Tribal Governments) relocated to 2 CFR Part 225, OMB Circular A-102 (Grants and Cooperative Agreements With State and Local Governments), OMB Circular A-110 (Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations) relocated to 2 CFR Part 215, and OMB Circular A-122, (Cost Principles for Non-Profit Organizations) relocated to 2 CFR Part 230

 

IRON MOUNTAIN MINE CONSTRUCTION COMPLETE 2005

E.P.A. to Revoke Mining Permit

By THE ASSOCIATED PRESS Published: October 15, 2010

CHARLESTON, W.Va. (AP) -- The Environmental Protection Agency said Friday that it was following through with its year-old plan to revoke a crucial permit for West Virginia's largest mountaintop removal mine, saying the operation would cause irreversible damage to the environment and wildlife. Arch spokeswoman Kim Link said the company will defend its permit "vigorously." She warned that if EPA follows through on the veto, the state's economy and tax base will suffer. Arch planned to invest $250 million, create 250 well-paying jobs and generate tens of millions of dollars in tax revenues "in a region that desperately needs both," she said. Link said the ruling effectively puts every U.S. business on notice that a legally issued Clean Water Act permit "can be revoked at any time according to the whims of the federal government." "Clearly, such a development would have a chilling impact on future investment and job creation," she said.

THE PHONY NEGATIVE 3.6 pH AMD TRICK - THE PHONY RUSTY SHOVEL TRICK

DELETE FINAL NPL LISTING

"The Billion Dollar Settlement" Cashout Advance, Iron Mountain Mine Superfund
Cashout Advances are funds received by EPA, a state, or PRP under the terms of a
settlement agreement (e.g., consent decree) to finance response action costs at a specified
Superfund site. Under CERCLA Section 122(b)(3), cashout funds received by EPA are
placed in site-specific, interest bearing accounts known as special accounts and are used for
potential future work at such sites in accordance with the terms of the settlement agreement.
Funds placed in special accounts may be disbursed to PRPs, to states that take responsibility
for the site, or to other Federal agencies to conduct or finance response actions in lieu of EPA
without further appropriation by Congress. As of September 30, 2009 and 2008, cashout
advances are $572 million and $489 million as restated, respectively.

a private party may “recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 551 U.S. 128, 131

MOAs Are Missing Key Regulatory Requirements
MOAs were missing key requirements of Title 40 CFR 123.24. MOA documents also lacked MOA-specific program regulations contained in Title 40 CFR 123.26 and 123.27. For each of the 46 criteria, OIG rated the MOA as a “0” (does not address this element), “1” (addresses the element in some way), or “2” (addresses the element verbatim or in synonymous language). Figure 2-1 shows that across all regulatory criteria, MOAs did not contain 39 percent of the criteria, and that 61 percent of regulatory criteria are either not addressed or only partially addressed. EPA should define the requirements for management control of a nationally consistent enforcement program, and then review each State MOA to determine which MOAs are adequate and which MOAs need to be revised.

MOAs did not address key regulatory requirements for MOA documents. For example, the CFR requires that States establish data management systems to support their compliance evaluation activities. Twenty percent of the MOAs did not contain any language about a data management system. This does not mean the State does not have such a system or that the system is not discussed in another document. However, because the primary, required document, the MOA, does not mention it, EPA cannot readily determine whether there is nationwide uniformity in data management systems.
MOAs also did not include a number of the additional regulatory program requirements contained in Title 40 CFR 123.26 and 123.27. These additional requirements correspond to the programmatic deficiencies that OECA identified in its first-round State Review Framework evaluations (data quality, identification of significant violations, the timeliness of enforcement actions, and penalties). For example, the CFR requires that States establish minimum civil penalty policies, such as the ability to assess at least a $5,000 penalty per day for each NPDES violation. The State Review Framework identified penalty calculation as a comprehensive weakness. Fifty-four percent of MOAs did not include any language about minimum civil penalty standards (i.e., received a score of “0” for this element). Only 1 of the 46 MOAs specified that the minimum penalty per day, per violation, would be $5,000 (a score of “2”).
MOAs most comprehensively addressed the MOA-specific regulations (CFR 123.24), containing these requirements 77 percent of the time. MOAs contained fewer requirements in the non-MOA-specific monitoring and inspections section (65 percent for CFR 123.26) and fewest in the enforcement section (36 percent for CFR 123.27). For example, 63 percent of the MOAs did not include language verifying that no other State enforcement agreement could override the MOA, as required by CFR 123.24(c). Eighty percent of MOAs did not note whether the State had the authority to enter any permitted facility (123.26(c)). Figure 2-2 shows how the percentage of missing regulations varied according to the CFR section under review.

The Act of September 28th, 1850, establishing a District Court in the State, was it enacted by Congress
"that all the laws of the United States which are not locally inapplicable shall have the same force and effect within the
said State of California as elsewhere within the United States."

FREE MINING.

Though no general federal laws were extended by Congress over the late acqusitions from Mexico* for more
than two years after the end of the war, the paramount title to the public lands had vested in the federal government
by virtue of the provisions of the treaty of peace, and the public land itself had become part of the public domain of
the United States. (The Supreme Court of California did afterward, when first organized, in Hicks vs. Bell, 3 Cal., 219,
attempt by certain obiter dicta to put forth the doctrine of the paramount title being in the State of California, but this
attempt at judicial legislation was soon after abandoned and reversed.) The army of occupation, however, offered no
opposition to the invading army of prospectors. The miners were in 1849 twenty years ahead of the railroad and the electric
telegraph, and the telephone had not yet been invented.
In the parlance of the times, the prospectors "had the drop on the army." In Colonel Mason's unique report on the situation
which confronted him, discretion waits upon valor. "The entire gold district," he wrote, "with few exceptions of grants
made some years ago by the Mexican authorities, is on land belonging to the United States. It was a matter of serious
reflection with me how I could secure to the government certain rents or fees for the privilege of procuring this gold;
but upon considering the large extent of the country, the character of the people engaged, and the small scattered
force at my command, I am resolved not to interfere, but permit all to work freely." It is not recorded whether the
resolute Colonel was conscious of the humor of his resolution.

"Persons who have not given this subject special attention," said Senator Stewart of Nevada, addressing the United
States Senate in support of the Bill of 1866, "can hardly realize the wonderful results of this system of free mining.
The incentive to the pioneer held out by the reward of a gold or silver mine, if he can find one, is magical upon the sanguine
temperament of the prospector. For near a quarter of a century a race of men, constituting a majority by far of
all the miners of the West, patient of toil, hopeful of success, deprived of the associations of home and family, have devoted
themselves, with untiring energy, to sinking deep shafts, running tunnels thousands of feet in solid granite,
traversing deserts, climbing mountains, and enduring every conceivable hardship and privation, exploring for mines, all
founded upon the idea that no change would be made in this system that would deprive them of their hard-earned treasure.
Some of these have found valuable mines, and a sure prospect of wealth and comfort when the appliances of
capital and machinery shall be brought to their aid. Others have received no compensation but anticipation no reward
but hope. . ,>-:.; I assert, and no* one familiar with the subject will question the fact, that the sand plains, alkaline
deserts, and dreary monuments of rock and sagebrush of the great interior, would have been as worthless today as when
they were marked by geographers as the Great American Desert, but for this system of free mining fostered by our own
neglect, and matured and perfected by our generous inaction."

CALIFORNIA COMMON LAW OF MINES.
The prospectors and miners, were, then, at the start,
simply trespassers upon the public lands as against the government
of the United States, with no laws to guide, restrain
or protect them, and with nothing to fear from, the military
authorities. They were equal to the occasion. "Finding
themselves far from the legal traditions and restraints of the
settled East," says the report of the Public Lands Commission
of 1880, "in a pathless wilderness, under the feverish

excitement of an industry as swift and full of chance as the
throwing of dice, the adventurers of 1849 spontaneously instituted
neighborhood or district codes of regulations, which
were simply meant to define and protect a brief possessory
ownership. The ravines and river bars which held the placer
gold were valueless for settlement or home-making, but were
splendid stakes to hold for a few short seasons and gamble
with nature for wealth or ruin.
"In the absence of State and Federal laws competent to
meet the novel industry, and with the inbred respect for
equitable adjustments of rights between man and man, which
is the inheritance of centuries of English common law, the
miners only sought to secure equitable rights and protection
from robbery by a simple agreement as to the maximum
size of a surface claim, trusting, with a well-founded confidence,
that no machinery was necessary to enforce their
regulations other than the swift, rough blows of public opinion.
The gold seekers were not long in realizing that the
source of the dust which had worked its way into the sands
and bars, and distributed its precious particles over the bed
rocks of rivers, was derived from solid quartz veins, which
were thin sheets of mineral material enclosed in the foundation
rocks of the country. Still in advance of any enactments
by legislature or congress, the common sense of the miners,
which had proved strong enough to govern with wisdom
the ownership of placer mines, rose to meet the question of
lode claims, and decreed that ownership should attach to the
thing of value, namely, the thin, sheet-like veins of quartz,
and that a claim should consist of a certain horizontal block
of the vein, however it might run, but extending indefinitely
downward with a strip of surface, on or embracing the vein's
outcrop, for the placing of necessary machinery and buildings.
Under this theory, the lode was the property, and the
surface became a mere easement.
"This early California theory of a mining claim, consisting
of a certain number of running feet of vein with a strip of land
covering the surface length of the claim, is the obvious foundation
for the federal legislation and present system of public

disposition and private ownership of the mineral lands west
of the Missouri River. Contrasted with this is the mode of
disposition of mineral-bearing- lands east of the Missouri
River, where the common law has been the one rule, and
where the surface tract has always carried with it all minerals
vertically below it.
"The great coal, iron, copper, lead, and zinc wealth east
of the Rocky Mountains, have all passed with the surface
titles, and there can be little doubt that if California had been
contiguous to the eastern metallic regions, and its mineral
development progressed naturally with the advance of home
making- settlements, the power of common law precedent
would have governed its whole mining history. But California
was one of those extraordinary historic exceptions
that defy precedent and create original modes of life and
law. And since the developers of the great precious metal
mining of the far West have for the most part swarmed out
of the California hive, California ideas have not only been
everywhere dominant over the field of industry, but have
stemmed the tide of federal land policy and given us a statute
book with English common law in force over half the land
and California common law ruling in the other."
"The discovery of gold in California/' says Justice Field,
speaking from, the Supreme Bench of the United States, "was
followed, as is well known, by an immense immigration into
the State, which increased its population within three or four
years from a few thousand to several hundred thousand. The
lands in which the precious metals were found belonged
to the United States, and were unsurveyed and not open
by law to occupation and settlement. Little was known of
them further than that they were situated in the Sierra Nevada
mountains. Into these mountains the emigrants in vast
numbers penetrated, occupying the ravines, gulches and canyons
and probing the earth in all directions for the precious
metals. Wherever they went they carried with them the love
of order and system of fair dealing which are the prominent
characteristics of our people. In every district which they occupied
they framed certain rules for their government, by

which the extent of ground they could severally hold for
mining was designated, their possessory right to such ground
secured and enforced, and contests between them either
avoided or determined. These rules boie a marked similarity,
varying in 'the several districts only according to the
extent and character of the mines; distinct provision being
made for different kinds of mining, such as placer mining,
quartz mining, and mining in drifts or tunnels. They all
recognized discovery, followed by appropriation, as the
foundation of the possessor's title, and development by working
as the condition of its retention. And they were so
framed as to secure to all comers within practicable limits
absolute equality of right and privilege in working the mines.
Nothing but such equality would have been tolerated by the
miners, who were emphatically the law-makers, as respects
mining upon the public lands in the State. The first appropriator
was everywhere held to have, within certain well-defined
limits, a better right than others to the claims taken up;
and in all controversies, except as against the government,
he was regarded as the original ownej;, from whom title was
to be traced. * * * These regulations and customs
were appealed to in controversies in the State Courts, and
received their sanction; and properties to the value of many
millions rested upon them. For eighteen years, from 1848
to 1866, the regulations and customs of miners, as enforced
and moulded by the Courts and sanctioned by the legislation
of the State, constituted the law governing property in mines
and in water on the public mineral lands."
Jennison vs. Kirk, 98 U. S. 453.
ORIGIN OF RULES AND REGULATIONS.
There is considerable difference of opinion whether these
rules and regulations were the spontaneous creation of the
miners of
"
'49 and the spring of '50." Mr. Gregory Yale,
in his valuable treatise on "Mining Claims and Water
Rights," contends that they are not, and claims that Senator
Stewart of Nevada, in his brilliant letter to Senator Ramsey,
of Minnesota, ascribes undeserved merit to the early miners

in pronouncing them the authors of the local rules and customs.
He does not, however, criticise the even more positive
language of Chief Justice Sanderson in the decision of the
case of Morton vs. Solambo Copper Mining Company, He
calls attention to the similarity between these rules and regulations
and certain features of the Mexican ordinances, of
the Spanish Code, of the regulations of the Stannary Convocations
among the tin bounders of Devon and Cornwall, and
of the High Peak Regulations for the lead mines of Derby.
He says in the earlier days of placer digging in California
the large influx of miners from the western coast of Mexico
and from South America dictated the system of work to
Americans; that the latter, with few exceptions from the gold
mines of North Carolina and Georgia, and from the lead
mines of Illinois and Wisconsin, were almost entirely inexperienced
in this branch of industry; that the Cornish miners
soon spread themselves through the State, and added largely
by their experience, practical sense, and industrious habits,
in bringing the code into something like shape. With all
deference due to any^ opinion expressed by Mr. Yale, it
appears to me that he has in this chapter failed sometimes to
distinguish between the practical work in mining taught the
pioneers by their Mexican, Chilenian and Cornish associates
and their comrades from the southern gold, and western lead
states, and the framing of -rules and regulations. The hints
and suggestions on the pan and rocker and long torn and
sluice do not necessarily include instructions on a code of
mining in a situation absolutely as novel to the persons from
whom they learned how to mine as it was to the pioneers
themselves. The mining land in North Carolina, Georgia,
Illinois and Wisconsin is all held under principles founded on
the common law of England. Nor is it necessary to hold
with Mr. Yale and General Halleck that the Mexican system
was the foundation for the rules and customs adopted, for in
the matter of lode claims that system is the direct antithesis
of the California system, the former recognizing vertical
planes through the exterior boundaries and the latter recognizing
the extra-lateral right. The mere fact that the Mexi

can system recognized discovery as the source of title and
development as the condition of holding it, need not cause us
to jump to the conclusion that in these respects the rules and
customs of Californians were a conscious imitation of the
Mexican system, especially when the two systems are so
radically dissimilar in other points. In a region where the
only title could be possessory, and possibly temporary, under
the law, what other arrangement in these respects than the
one adopted could have suggested itself to the pioneers?
May it not be simply another illustration of the fact that,
with the same problem and the same environment, the human
mind has in different ages often arrived at the same practical
solution. Even the idea of the story of the Jumping Frog
of Calaveras need not necessarily be deemed a conscious
imitation of its Boeotian prototype.
The California pioneers who were Americans did not have
to learn the science of organization from their foreign associates.
The instinct of organization was a part of their
heredity. Professor Macy, of Johns Hopkins University,
once wrote : "It has been said that if three Americans meet
to talk over an item of business, the first thing they do is to
organize." This trait is as characteristic as the one of periodically
saving the country by assembling in mass meeting
and passing resolutions. Californians were not the first
American early settlers upon the public domain of the United
States who were left for a time without statutory law, federal
or local. The institutional beginnings of more than one
western state, notably of Wisconsin and Iowa, furnish a most
interesting parallel, and the groundwork of their rules and
regulations, except with regard to' the extra-lateral right in
mining, are in many respects absolutely identical. The lead
miners of Dubuque who on the I7th of June, 1830, assembled
around an old cottonwool log, stranded on an island, and
appointed a committee of five miners to draw up regulations
for their government, would have been surprised to be told
in after years that the rules they framed had any other source
for their inspiration than the courage, the necessities and the
resourcefulness of intelligent frontiersmen.

"Obviously no customs or laws could be adopted without
some kind of consensus or assent on the part of the mining
community. This was at first generally merely the agreement
of the particular company or camp, which might have
its own separate and distinct rules and regulations different
from all its neighbors; but by degrees meetings of the miners
of different camps and at length of whole neighborhoods
were held, until finally it became common to form what
are known as mining districts, embracing large tracts of territory
and to adopt laws applicable to and effective throughout
the whole territory so included. * * * And there
were a great many hundreds of them. Nearly every bar,
flat and gulch had its separate rules. Their jurisdictions
were ferequently changed, some consolidating into large
districts and others dividing into smaller ones the changes
being dependent chiefly upon the character as to homogeneousness
or otherwise of the mining region embraced and
the convenience for the miners of access to a common place
of meeting."

History of the Bench and Bar of California, Historical Sketch of the Mining Law in California.

DESCRIPTION OF RULES AND REGULATIONS.
Mr. Ross Browne, in his preliminary report on the Mineral
Resources of the West, made in 1867 (p. 226), in describing
the nature of these regulations, says :
"It is impossible to obtain, within the brief time allowed
for this preliminary report, a complete collection of the mining
regulations, and they are so numerous that they would
fill a volume of a thousand pages. There are not less than
five hundred mining districts in California, two hundred in
Nevada, and one hundred each in Arizona. Idaho and Ore

gon, each with its set of written regulations. The main
objects of the regulations are to fix the boundaries of the
district, the size of the claims, the manner in which claims
shall be marked and recorded, the amount of work which
must be done to secure the title, and the circumstances
under which the claim is considered abandoned and open to
occupation by new claimants. The districts usually do not
contain more than a hundred square miles, frequently not
more than ten, and there are in places a dozen within a
radius of ten miles. In lode mining, the claims are usually
two hundred feet long on the lode; in placers the size depends
on the character of the diggings and the amount of labor
necessary to open them. In hill diggings, where the pay
dirt is reached by long tunnels, the claim is usually a hundred
feet wide, and reaches to the middle of the hill. Neglect to
work a placer claim for ten days in the season when it can be
worked is ordinarily considered as an abandonment. The
regulations in the different districts are so various, however,
that it is impossible to reduce them to a few classes comprehending
all their provisions."
The most succinct and accurate description of the rules
and regulations of the California miners, and especially of
the manner of marking the boundaries of the claims, both
placer and lode, is from the pen of Chief Justice Beatty
(Report Public Land Commission, p. 396) :
"When placer mining began in California there was no
law regulating the size of claims or the manner of holding
and working them, and local regulations by the miners
themselves became a necessity. They were adopted, not
because the subject was too complicated or difficult for
general regulation, but because they were needed at once
as the sole refuge from anarchy. The first and most important
matter to be regulated was the size of claims, and the
earliest miners' rules contained little else than a limitation
of the maximum amount of mining ground that one miner
might hold. That being determined, he was left to take
possession of his claim and work it as he pleased.

PRIOR APPROPRIATION RIGHTS (SPRING CREEK DEBRIS DAMS, SLICKROCK CREEK DEBRIS DAM, CEMENTACION, &C.)

RIPARIAN RIGHTS

Supreme Court's Denial of Certiorari in Apex Oil Leaves Standing Seventh Circuit Ruling that Environmental Cleanup Injunctions are Not Dischargeable in Bankruptcy

By David B. Hird
Published on October 18, 2010

Sometimes, a decision by the Supreme Court not to take a case can be almost as significant as a decision by the Court.  That is certainly the case with the Supreme Court's decision on October 4, 2010 to deny the petition for certiorari by the losing defendant in United States v. Apex Oil Co. , 579 F.3d 734 (7th Cir. 2009 ).  The consequence of the Court's refusal to take the case is to reinforce a trend in the case law holding that the federal or State government's right to compel a debtor to perform an environmental cleanup may not be dischargeable under the U.S. Bankruptcy Code, even if the only way that the debtor could comply is to spend substantial amounts of money.

The Apex Oil case addressed a critical issue at the intersection between environmental law and bankruptcy law which has reverberated through the courts for the last 25 years:  Is the government's right to injunction ordering a debtor to perform an environmental cleanup (and to spend money doing so) a “claim” that can be discharged in bankruptcy?

From a debtor's financial perspective, an order compelling it to spend money on environmental cleanup has the same effect as an order compelling it to pay damages on a contract or tort claim.  In each scenario, there is a monetary obligation based on an event that occurred prior to the bankruptcy petition.  But the significant difference is that in the case of a cleanup injunction, the debtor does not pay the money directly to the government, but rather pays a contractor to perform the cleanup activities that the government wants done.

The Bankruptcy Code provides for the discharge of “debts,” which are defined as a “liability on a claim.”  11 U.S.C. § 101(12).  A “claim” in turn is defined to include both a “right to payment” and a “right to an equitable remedy for breach of performance if such breach gives rise to a right to payment.”  11 U.S.C. § 101(5) .  For 25 years, the courts have struggled with the question whether a government demand that a debtor spend its money to perform an environmental cleanup falls within the second prong of that definition.

The early cases appeared to support the concept that an obligation to spend money for environmental cleanup is a “claim” and may be discharged.  The first significant decision was by the Supreme Court itself in Ohio v. Kovacs , 469 U.S. 274 (1985), a case in which the State of Ohio had succeeded in having a lower court appoint a receiver to manage the cleanup of a toxic landfill.  The State also sought to compel Kovacs, the former owner-operator of the landfill, to provide funds for the receiver's cleanup.  The Supreme Court itself held that the State's demand was a “claim” in Kovacs' chapter 7 case and was barred by his discharge.  A few years later, the Sixth Circuit in United States v. Whizco, Inc. , 841 F.2d 147 (6th Cir. 1988), held that the federal government could not compel a former operator of a strip mine to spend money to restore the mine site because that too was a “claim” discharged in the mine operator's bankruptcy case.

After Kovacs and Whizco , however, the decisions began to trend in the opposite direction.  In In re Chateaugay Corp. , 944 F.2d 997 (2d Cir. 1991), the Second Circuit ruled that the presence of hazardous substances in the soil and groundwater under a debtor's property represented continuing pollution, and therefore the debtor could be compelled to spend money to clean up the property and that obligation was not subject to discharge in the debtor's bankruptcy case.  But Chateaugay only addressed cleanup obligations with respect to property that the debtor continues to own and operate, recognizing that, under 28 U.S.C. § 959(b), a debtor in possession had a statutory obligation to operate its property in accordance with applicable law.  Then, the Third Circuit in In re Torwico Electronics, Inc. , 8 F.3d 146 (3d Cir. 1993), held that a debtor's obligation to fund a cleanup was not a “claim” and was not dischargeable, even though the debtor did not own the property and its lease had expired four years earlier.  The Third Circuit held that the debtor had a continuing obligation to clean up waste that it had left behind.

The Seventh Circuit's 2009 decision in Apex Oil continued the trend, finding that a reorganized debtor's obligation to pay for an environmental cleanup of property that it did not own was not a claim and was not dischargeable, although the only way the debtor could comply was to pay $150 million to a contractor to perform the work.  Judge Posner, writing for the Seventh Circuit, held that because the government had brought its claim under section 7003(a) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §  6973(a) , a statute that allows the government to sue for an injunction to compel a cleanup, but does not allow the government to sue for money, the government's right to an injunction was not a “claim” under section 101(5) of the Bankruptcy Code.  In the Seventh Circuit's view, the right to a RCRA injunction “was not a right to an equitable remedy,” the breach of which gave “rise to a right to payment,” but RCRA did not provide for a monetary recovery, and therefore was not a “claim” under section 101(5).  579 F.3d at 736.  Further, Judge Posner concluded that the fact that it would cost the defendant money to perform the work required under the injunction did not make it a “right to payment.”  Id. at 737.

An interesting facet of Apex is that the government brought the case under section 7003(a) of RCRA, rather than under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”).  Section 7003(a) of RCRA was adopted in 1976, four years before the adoption of CERCLA in 1980.  Generally, the U.S. Environmental Protection Agency (“EPA”) prefers to bring cases under CERCLA, rather than section 7003(a) of RCRA, in part because CERCLA provides for both injunctive relief and the recovery of cleanup costs spent by the government.  42 U.S.C. §§ 9606(a), 9607(a).  But although the record in the Apex case indicated that EPA first began to address the contaminated site at issue under CERCLA, the government made a deliberate decision to bring its case against Apex only under RCRA.  The reason for this decision is apparent: If the government had sued under CERCLA, Apex could have argued that CERCLA creates an alternate right to monetary and therefore the government's right is exactly the sort of equitable right which can give rise to a right to payment.  By suing under RCRA, the government hoped to forestall that argument, and its strategy worked.

In its petition for certiorari, Apex made exactly this point: The government had a “right to payment” under CERCLA, but was trying to avoid that characterization by bringing its claim under a RCRA provision it would otherwise not have used.  Apex also argued that the Seventh Circuit was inconsistent with both the Supreme Court's decision in Kovacs and the Sixth Circuit's decision in Whizco .  But these arguments did not persuade the Supreme Court to grant certiorari.

The consequence of the Supreme Court's decision not to take the Apex case is to reinforce the trend of cases holding that cleanup injunctions are not dischargeable in bankruptcy, even if the only means of compliance is for the debtor to spend money.  While the question of whether an injunction under CERCLA is a dischargeable claim has not yet been decided, it may not matter because the federal and state governments will be careful in future cases to demand injunctions against debtors and reorganized debtors under RCRA and other statutory authorities that do not permit the recovery of money, rather than under CERCLA.

For a corporate debtor that is liquidating, this decision will have little consequence: Once the debtor is without assets, it is incapable of complying with a cleanup injunction.  But for a corporate debtor that is reorganizing, the Supreme Court's refusal to consider the Apex case may be highly significant.  It means that the debtor's discharge is not likely to protect it from injunctions to perform environmental cleanups in the future.

This leaves the reorganizing debtor with two alternative strategies.  First, in planning for reorganization, it can make sure that the newly emerging entity will have sufficient financial resources to meet its cleanup obligations.  Second, it can attempt to settle its environment cleanup obligations in the context of its bankruptcy case.  Often, the federal government (and sometimes the states) are more flexible in settling environmental obligations with reorganizing debtors than they would be with ordinary commercial entities, and terms may be negotiated which protect the reorganized debtors from environmental liabilities that are not subject to the discharge.  It is frequently in the debtor's interest to reach an amicable resolution of these liabilities with the government in the course of its reorganization process, rather than emerging from the chapter 11 process to face unresolved government demands, as Apex did.

 

United States Hazardous Waste Engineering Environmental Protection Research Laboratory Agency Cincinnati OH 45268 Research and Development EPN600/S2-88l019 Mar. 1988

EPA Project Summary

Metal Value Recovery from Metal Hydroxide Sludges: Removal of Iron

L. G. Twidwell and D. R. Dahnke are with Montana College of Mineral Science and Technology, Butte , MT 59701 .

John F. Martin is the €PA Project Officer (see below) The complete report, entitled “Metal Value Recovery from Metal Hydroxide Sludges: Removal of Iron and Recovery of Chromium,” (Order No. PB 88- 176 078lAS; Cost: $25.95, subject to change) will be available only from: National Technical Information Service 5285 Port Royal Road Springfield , VA 22 16 1 The EPA Project Officer can be contacted at: Hazardous Waste Engineering Research Laboratory U.S. Environmental Protection Agency Cincinnati , OH 45268

Results and Conclusions

An extremely large data base has been generated during the course of the present study for both the bench-scale and the large-scale test work. The bench-scale study results support the following conclusions:

The emphasis of the project was directed toward investigating the application of phosphate precipitation as a means of selectively separating iron and chromium from divalent cation species.
These objectives have been accomplished. Flowsheets and alternatives are discussed in the body of the main report. The developed flowsheets have been verified to be feasible by laboratory test work and selective metal value separations have been shown to be possible, e.g., iron and chromium can be separated from divalent metals such as zinc, nickel, and cadmium. Large-scale test work has also verified that effective separations are feasible and practical, and an economic evaluation has been performed showing that an excellent return on investment is possible.

NIST Releases 2009 Department of Commerce Technology Transfer Report

 

An efficient solution for the single-step synthesis of 4CaO * Al2O3 * Fe2O3 powders
Robert Ianos¸a)
“Politehnica” University of Timis¸oara, Faculty of Industrial Chemistry and Environmental
Engineering, Timis¸oara 300006, Romania
(Received 29 April 2008; accepted 8 October 2008)
Single-phase nanocrystalline 4CaOAl2O3Fe2O3 powders were prepared directly from
the combustion reaction using a new cost-effective, time-saving, and environmentally
friendly version of solution combustion synthesis. Instead of a single fuel, a fuel mixture
of urea and b-alanine was used. It was shown by x-ray diffraction, energy-dispersive
x-ray analysis, thermogravimetric analysis, and optical microscopy that this new version
of the solution combustion synthesis allows the maximization of the exothermic effect
associated with the combustion reaction. On the other hand, it was shown that the
traditional version of combustion synthesis involving the use of a single fuel, such as urea
or b-alanine, does not ensure the formation of Ca4Al2Fe2O10 unless subsequent thermal
treatments are applied. It was suggested that the occurrence of combustion reactions
cannot be regarded only in terms of adiabatic temperature, as the kinetic aspects overrule
the thermodynamic ones.

CALIFORNIA - EPA DELISTING IRON MOUNTAIN MINE!

"the revised PHG of 300 g/L is two orders of magnitude greater than the applicable numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life." Rick Sugarek, EPA project manager for Iron Mountain Mine Superfund cleanup, 2008 5 year review.

CALIFORNIA - COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Not one biota, not one iota; No further evidence required to facially apparent facts

05/01/ 1986 P R C Environmental Management, Inc. Environmental Protection Agency - Office of Waste Programs Enforcement Endangerment assessment draft final rpt, w/TL to T Mix fr T Brisbin 51189

12/15/2000 C H 2 M Hill Environmental Protection Agency - Region 6FSP, QAPP, Health & Safety Plan for surface-water sampling 103636

03/17/1997 Charles Alpers / US Geological Survey Richard Sugarek / Environmental Protection Agency - Region 9Ltr: Transmits QAPP, draft workplan, & draft FSP, w/attchs

08/01/2001C H 2 M HillEnvironmental Protection Agency - Region 9Amended QAPP for air & surface-water sampling (QAPP & amendment 1)165834

Keswick dam to Cottonwood Creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;

EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in the five signed RODs
(EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004
)

The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (James Madison, Federalist 45 )

PROCLAMATION TERMINATING THE NATIONAL EMERGENCY, 2010-0021996 Shasta County Court

Sec. 123.27 Requirements for enforcement authority. (a) Any State agency administering a program shall have available the following remedies for violations of State program requirements: (1) To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment; Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment. (2) To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit; (3) To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows: (i) Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation. (ii) Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation. Note: States which provide the criminal remedies based on ``criminal negligence,'' ``gross negligence'' or strict liability satisfy the requirement of paragraph (a)(3)(ii) of this section. (iii) Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation. Note: In many States the State Director will be represented in State courts by the State Attorney General or other appropriate legal officer. Although the State Director need not appear in court actions he or she should have power to request that any of the above actions be brought. (b)(1) The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation. (2) The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act; Note: For example, this requirement is not met if State law includes mental state as an element of proof for civil violations. (c) A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation. Note: To the extent that State judgments or settlements provide penalties in amounts which EPA believes to be substantially inadequate in comparison to the amounts which EPA would require under similar facts, EPA, when authorized by the applicable statute, may commence separate actions for penalties. Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations; In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended: Procedures which enable the State to assess or to sue any persons responsible for unauthorized activities for any expenses incurred by the State in removing, correcting, or terminating any adverse effects upon human health and the environment resulting from the unauthorized activity, whether or not accidental; Procedures which enable the State to sue for compensation for any loss or destruction of wildlife, fish or aquatic life, or their habitat, and for any other damages caused by unauthorized activity, either to the State or to any residents of the State who are directly [[Page 249]] aggrieved by the unauthorized activity, or both; and Procedures for the administrative assessment of penalties by the Director. (d) Any State administering a program shall provide for public participation in the State enforcement process by providing either: (1) Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in Sec. 123.26(b)(4); (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action. (e) Indian Tribes that cannot satisfy the criminal enforcement authority requirements of this section may still receive program approval if they meet the requirement for enforcement authority established under Sec. 123.34. (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14178, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 50 FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 58 FR 67981, Dec. 22, 1993]

CONTACT:

EPA Press Office

press@epa.gov

202-564-6794

FOR IMMEDIATE RELEASE

October 21, 2010

Partnership for Sustainable Communities Awards Grants to Build Infrastructure Nationwide

EPA, HUD and DOT Work Together Through Coordinated Grant Program

WASHINGTON – Today at the National Press Club, administration officials highlighted recent grants released by the Partnership for Sustainable Communities to support more livable and sustainable communities across the country. The Partnership, which consists of the U.S. Environmental Protection Agency (EPA), U.S. Department of Transportation (DOT), and U.S. Department of Housing and Urban Development (HUD), builds economic competitiveness by connecting housing with good jobs, transportation, and more.  Last week, agencies began releasing local grants to support sustainable living nationwide.  The combined sum of the agencies' grants is $409.5 million.

“We're working to change the way government works, and that means investing tax dollars wisely and well,” President Obama said in a statement.  “We want to make sure that when we're building infrastructure, we're considering how housing, transportation, and the environment all impact each other.  These grants are designed to get the biggest bang for our tax dollar buck.”         

Over the past year, EPA, HUD, and DOT have worked together to promote better outcomes for communities and more effective federal investments through better targeted federal resources, removal of existing federal regulatory and policy barriers to smart and sustainable development, as well as aligned agency priorities that will ensure lasting collaboration. 

“These grants will help boost economic development with the goal that all Americans can afford to live in communities with access to employment, schools and transportation options,” said HUD Secretary Shaun Donovan.  “Communities across the country offered bold, unique proposals to plan and build sustainably based on their own local resources, landscape, culture and ingenuity.  With this partnership we can lay the foundation for sustainable economic prosperity for generations to come by helping communities that share problems start sharing solutions.”

Coordinating federal investments in infrastructure, facilities, and services meets multiple economic, environmental, and community objectives with each dollar spent.  The Partnership is helping communities across the country to create more housing choices, make transportation more efficient and reliable, reinforce existing investments, and support vibrant and healthy neighborhoods that attract businesses.

“These investments represent an unprecedented new way of working together.  And they set a powerful example for how we can reward true excellence, effective partnerships, and the good stewardship of taxpayer dollars,” said Transportation Secretary Ray LaHood. “Americans can rebuild their communities - not just in spite of enormous economic challenges, but as the means for overcoming them.”

At a time when every dollar the federal government invests in jumpstarting the economy is critical, the President's plan ensures that all these agencies are coordinating efforts and targeting resources with precision. This collaboration gets better results for communities and uses taxpayer money more efficiently.  Reflecting this new collaboration, these grants were judged by a multidisciplinary review team, drawn from eight federal agencies and from partners in philanthropy. 

"President Obama has made clear that sustainable communities with affordable housing and access to a broad range of transportation options are vital to rebuilding the foundation for prosperity in this country,” EPA Administrator Lisa P. Jackson said. “This Partnership is bringing our efforts together, allowing our resources to have more impact, and ensuring that we are collaborating on the housing, transportation and environmental needs that are essential to the success of every community. Our work has already helped to create healthier communities and open up better opportunities to attract new jobs and investments.”

For more information on the Partnership for Sustainable Communities fact sheet: http://www.whitehouse.gov/sites/default/files/uploads/SCP-Fact-Sheet.pdf

For more information about the Partnership for Sustainable Communities: http://www.epa.gov/smartgrowth/pdf/partnership_year1.pdf

HEY ETHYL, IT'S LEAD POISONING PREVENTION WEEK!

GET THE LEAD OUT.

October 13, 2010

September 2010 Superfund Green Remediation Strategy

Filed under: Environmental Remediation , Publications — Laura B. @ 9:11 am

The September 2010 Strategy reflects extensive public comment on the Agency's August 2009 Strategy and EPA response to the input. It also reflects refined EPA policy, modified activities within the key actions, and other developments as green remediation matures. View or download at http://www.epa.gov/superfund/greenremediation/ .

Residential property owners that purchase contaminated property after January 2002, can take advantage of the statutory BFPP protection. The Brownfields Amendments addressed residential property owners by clarifying the type of pre-purchase investigation (i.e., all appropriate inquiry) that a residential property owner must conduct to obtain BFPP status. Specifically, an inspection and title search that reveal no basis for further investigation will satisfy all appropriate inquiry for a residential purchaser. CERCLA § 101(40)(B)(iii).

After the enactment of the Brownfields Amendments, EPA issued a policy on May 31, 2002, Bona Fide Prospective Purchasers and the New Amendments to CERCLA, which discusses the interplay of the legislatively created BFPP and EPA’s use of PPAs. In that policy, EPA stated that in most circumstances, PPAs will no longer be needed for a party to enjoy liability relief under CERCLA as a present owner. There will continue to be, however, limited circumstances under which EPA will consider entering into a PPA, such as:
• Significant environmental benefits will be derived from the project in terms of cleanup;
• The facility is currently involved in CERCLA litigation such that there is a very real possibility that a party who buys the facility would be sued by a third party;

Unique, site-specific circumstances when a significant public interest will be served.
Despite the liability relief assurances to BFPPs which the above-referenced guidance documents provide, many prospective purchasers of contaminated property wanted further protection from EPA for cleanup work performed by them under EPA supervision. As a result of this need and to further encourage reuse and redevelopment on contaminated sites, EPA, jointly with the Department of Justice (DOJ), issued a model administrative order titled Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser, for use as an agreement with a BFPP who intends to perform removal work at its property. The purpose of the model is to promote land reuse and revitalization by addressing liability concerns associated with acquisition of contaminated property. In particular, the removal work to be performed under the model must be of greater scope and magnitude than the “reasonable steps to prevent releases” which must be performed by BFPPs if they are to maintain their protected status under the statute.
The model provides a covenant not to sue for “existing contamination” and requires the person performing the removal work to reimburse EPA’s oversight costs. Contribution protection is also provided. The model is for use at sites of federal interest where the work is more significant and complex than other contaminated sites.

From the public perspective, the incentives to private investors catalyze projects that provide societal benefits, ranging from job creation to public health improvements. The more state and local governments and communities are aware of the benefits of and opportunities for vacant property redevelopment, the more they can seek ways to encourage investors to consider such projects.
CONCLUSION
There are significant economic, fiscal, environmental, and public health benefits of redeveloping vacant properties instead of developing greenfields. With the recent passage of the historic ARRA, state and local officials face numerous decisions about how, when, and where to invest funds to stimulate the economy. Investing in the redevelopment of vacant properties, including petroleum brownfields, and using the tools described above, will maximize the public investment value of those dollars.
One of the most important steps to reducing the barriers to such redevelopment is for state, local, and tribal decision-makers to engage in immediate outreach efforts to disseminate information about redevelopment opportunities and processes, as well as the significant financial and technical assistance mechanisms available to help with such efforts. One of the most promising strategies is corridor redevelopment – encouraging projects that simultaneously redevelop multiple vacant properties, including petroleum brownfields. This approach represents a tremendous opportunity for investors, with two significant advantages: the properties themselves are inexpensive, for their size often renders them unmarketable individually, while the inclusion of petroleum brownfields and the area-wide redevelopment approach makes the project eligible for myriad additional federal and state funding programs. In addition to outreach efforts and encouraging corridor redevelopment, state, local, and tribal decision-makers can also facilitate redevelopment by making policy changes that mitigate some of the historical obstacles to petroleum brownfield and vacant property redevelopment.

ORIGINAL INSITU MINING PLAN REJECTED WITHOUT EXPLANATION BY THE EPA

Mine operator restarting NM mining operation

Associated Press - October 21, 2010 1:35 PM ET

PHOENIX (AP) - Mine operator Freeport-McMoRan says it plans to restart mining and milling operations at its Chino copper mine in New Mexico.

The company shut the mine down in 2008 because of global economic conditions.

The Phoenix-based company says the ramp up of mining and milling activities will significantly increase production at Chino, which is currently producing small amounts of copper from existing leach stockpiles. Planned mining and milling rates are expected to be achieved by the end of 2013.

The cost of equipment and mill refurbishment is estimated at about $150 million.

Freeport-McMoRan says restarting operations would increase copper production by 150 million to 200 million pounds per year.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

 

Is 'Too Big To Fail' Really Over?

 

Ag Groups Write EPA on TMDL Proposal and Water Quality Strategy

The National Association of Wheat Growers issued the following news release:

NAWG and other agricultural organizations joined with two sets of comments sent this week to the Environmental Protection Agency expressing deep concerns about the Agency's water regulation strategy.

In one letter, the groups responded directly to proposed Total Maximum Daily Load requirements, known as TMDLs, for the Chesapeake Bay watershed, which were created as part of a lawsuit settlement between EPA and the Chesapeake Bay Foundation.

The TMDL proposal is concerning to many in the states that could be regulated by it and many in the agricultural community, in part because it could easily become a model for watersheds around the country.

The groups requested EPA withdraw the draft TMDL or, barring that, make public the models its scientists relied upon to develop it and allow for a comment period on the modeling formula.

They told Agency officials that withdrawing the current proposal and working with Chesapeake watershed jurisdictions (six states and the District of Columbia) would allow EPA to "correct deficiencies in its modeling" and reconcile EPA TMDL proposals with existing nutrient management proposals in at least two states, Maryland and Virginia.

The second set of comments provided broader recommendations on a draft "Strategy for Achieving Clean Water" document released by EPA in August. That document outlined in depth actions EPA plans to take with regards to nutrient management across the United States, in some ways mirroring the TMDL proposal already in place in the Chesapeake Bay watershed.

The groups pointed out that the "Draft Strategy is neither a draft nor a strategy" but rather a statement of EPA's agenda as it relates to water quality. The agriculture groups submitting comments this week urged broad reconsideration of EPA's goals, taking into account the financial and social costs associated with certain regulations, as well as ensuring all regulations are science-based. The comments also urged EPA to view landowners as part of the solution to water quality problems and as stakeholders who should be engaged in discussions of any new requirements.

The two documents sent this week are just the latest in official and informal comments to EPA from agricultural representatives, who are working intensively in a coalition environment and as individuals to address an onslaught of new proposed regulations and court decisions that require EPA to act. These efforts are focused on ensuring EPA officials have adequate and accurate information about the nature of agricultural production and efforts already underway to improve water quality, particularly in the Chesapeake Bay region.

THE ARCADIAN MANIFESTO AND ITS CONSEQUENCES

map of California Mine Lands the EPA wants jurisdiction of as "abandoned" - California is 103 million acres of land

Regarding questions about the U.S. Environmental Protection Agency's promotion of “beneficial uses” and the close ties between those EPA efforts and industry lobby groups (see posts here and here ).

Now this week, a report from the EPA's own Inspector General has some criticism of the agency's actions regarding a Web site promoting “beneficial uses”:

EPA's C2P2 Website presented an incomplete picture regarding actual damage and potential risks that can result from large-scale placement of CCRs. In its May 2010 proposed rule, EPA showed that environmental risks and damage can be associated with the large-scale placement of unencapsulated CCRs. According to EPA's proposed rule, unencapsulated use of CCRs may result in environmental contamination, such as leaching of heavy metals into drinking water sources. The proposed rule identified seven cases involving large-scale placement, under the guise of beneficial use, of unencapsulated CCRs, in which damage to human health or the environment had been demonstrated. EPA states in its proposed rule that it does not consider large-scale placement of CCRs as representing beneficial use. However, EPA's C2P2 Website, which contained general risk information, did not disclose this EPA decision and did not make the seven damage cases readily accessible.

The C2P2 Website also contained material that gave the appearance that EPA endorses commercial products. Such an endorsement is prohibited by EPA ethics policies and communications guidelines. We identified 9 of 23 case studies on the Website that reference commercial products made with CCRs or patented business technologies. All 23 of the studies were marked with EPA's official logo but none had the required disclaimer stating that EPA does not endorse the commercial products.

Although EPA has suspended active participation in C2P2 during the rulemaking process, the C2P2 Website remained available for public searches, information, and education. The C2P2 Website contained incomplete risk information on the beneficial use of CCRs. The C2P2 Website also contained apparent or implied EPA endorsements that are prohibited by EPA policies.

How Sites are Deleted from the NPL


EPA must delete a final NPL site if no response was required to protect human health or the environment.

Guidance for Deleting Sites from the National Priorities List

Templates for direct final deletion notices are available at: http://www.epa.gov/superfund/programs/npl_hrs/tempdel.pdf

THE STATE OF CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCE CONTROL (DTSC) MUST RETRACT AND APOLOGIZE FOR THIS PROPAGANDA

BENEFICIAL, NUTRITIOUS AND ESSENTIAL TO MOST PLANTS AND ANIMALS, ESPECIALLY HUMANS

THE ONLY AQUATIC ORGANISM THE GOVERNMENT CLAIMS TO REPRESENT FOR DAMAGES AGAINST MR. T.W. ARMAN AND IRON MOUNTAIN MINES, INC. UNDER THE ENDANGERED SPECIES ACT IS WINTER RUN CHINOOK SALMON, THE UNITED STATES BAIRD HATCHERIES' HYBRID SPORT FISH OF THE EXTINCT MCCLEOD RIVER, WHICH WAS EXTERMINATED BY CONSTITUTIONAL REFERENDUM OF THE PEOPLE OF CALIFORNIA IN 1934 AND EXECUTED WITH THE CONSTRUCTION OF THE SHASTA DAM BY THE UNITED STATES IN 1943.

ALL SPECIES OF FISH ARE AND HAVE ALWAYS BEEN HEALTHY AND GOOD TO EAT IN THE CABECERA DEL RIO DE BUENAVENTURA (Maps by Albert Finley (1826) & Albert Gallatin (1836) labels the current Sacramento River as the Buenaventura) TRUST WATER HABITATS OF NOAA BELOW KESWICK DAM.

TOXICITY THRESHOLD? HOW ABOUT WE ALL DESPERATELY NEED THESE ESSENTIAL NUTRIENTS.

THE ONLY FISH KILLS WE COULD VERIFY WERE CLEARLY CAUSED BY THE CONSTRUCTION OF THE UNITED STATES CALIFORNIA DAMS.

SURE DO GET SOME BARREN HILLS AND MUDDY RUN-OFF AFTER YOU LET THE FOREST BURN UP.

THERE ARE NO MERCURY OR METHYL-MERCURY HAZARDS AT IRON MOUNTAIN MINE, AND THE DISSOLVED METALS ARE IRON, COPPER, ZINC, SILVER, AND GOLD. SEEMS MORE LIKE THE GROUND WATER IS A HAZARD TO US GETTING THE METALS OUT.

POTENTIAL THREAT? NOW I GET IT. YOU WOULDN'T KNOW AN ACTUAL THREAT UNTIL IT BIT YOU.

MAJOR IMPACTS? MORE LIKE MAJOR IMPROVEMENTS; SINCE WHEN IS THAT A CRIME?

IF IT WAS IDENTIFIED SO EARLY IN CALIFORNIA, WHY IS THE FEDERAL EPA HERE NOW?

WHAT SOLUTION? SPEAKING OF WHICH, WHAT ABOUT THOSE DAM IMPROVEMENTS?

 

Asarco wants to join legal fight over EPA records

Posted: Oct 19, 2010 By JOSH FUNK
AP Business Writer

OMAHA, Neb. (AP) - The Asarco mining company wants to join Union Pacific's legal fight over Environmental Protection Agency records about lead contamination in Omaha, because Asarco hopes to recover millions from companies involved in the contamination.

The information Union Pacific and Asarco want relates to 5,600 lead-contaminated properties in Omaha. The EPA and Union Pacific have been trying for years to settle who should pay several hundred million dollars to clean up the lead.

The Omaha-based railroad sued in June after obtaining e-mails in which EPA officials discussed deleting records.

Asarco paid $200 million as part of a settlement with the EPA because it ran a lead smelter in Omaha for more than 50 years before the smelter closed in 1997. Asarco did not admit fault in the settlement.

Attorney Greg Evans said the EPA documents might help Asarco recover compensation from companies that contributed to the contamination.

"We need to make sure we have a clear understanding of the cause of the contamination," Evans said.

EPA officials did not immediately respond to messages Tuesday.

Union Pacific is also trying to learn what caused the lead contamination because the railroad argues that lead house paint is the real problem. The EPA blames industrial sources of lead, especially Asarco's smelter, for the contamination, and Asarco's smelter operated on land leased from UP for several years before Asarco bought the land in 1946.

Railroad officials hope the records they are requesting will prove that Union Pacific isn't responsible for the contamination.

Union Pacific spokesman Tom Lange said the railroad supports Asarco's petition to become a plaintiff in the lawsuit.

But a federal judge will determine whether Tucson, Ariz.-based Asarco is allowed to join the case.

Before Asarco's motion was filed Monday, mediation talks between Union Pacific and the EPA were scheduled to begin Nov. 12. A computer expert has also been assigned to review the EPA's data and its plan to protect information.

Union Pacific said in its lawsuit that the document destruction may date back to at least 2004. The company quoted several e-mails in which an EPA supervisor encourages employees to delete messages so the railroad won't be able to obtain the information under the Freedom of Information Act.

Union Pacific said the EPA responded slowly to the records requests it submitted in 2002, 2003, 2004 and 2009. The railroad said it found the e-mails about destroying documents buried in more than 1.1 million pages of records the EPA did provide, but is not sure whether the agency provided everything requested.

Asarco has asked for some of the same information Union Pacific is seeking, and Evans said Asarco filed its own lawsuit in 2008 over the EPA's response to its requests.

Much of eastern Omaha has been designated a superfund site by the EPA because of the extent of lead contamination, which can endanger children's health, causing decreased intelligence, slow growth and behavior problems. The EPA has been working to clean up the site for several years.

The EPA has already removed and replaced the soil at nearly 6,000 properties in Omaha. The total cost of the EPA cleanup is likely to exceed $400 million, according to agency estimates.

VETERANS ‘IN THE DARK' ABOUT ENVIRONMENTAL HAZARDS

October 17, 2010 posted by Robert O'Dowd · 3 Comments

“No mama, no popa, no Uncle Sam.

No aunts, no uncles, no nephews, no nieces.

No rifles, no planes, or artillery pieces.

And nobody gives a damn.

We're the sick and dead who lived and worked on contaminated land.”

Veteran Service Organizations are not providing critical health information to their memberships on military installations that are EPA Superfund sites.   

(WASHINGTON, DC) – Veteran Service Organizations (VSOs) have not notified veterans of their possible exposure to environmental hazards at 130 military installations on the EPA National Priority List (Superfund sites).

There's a critical need for the VSOs to exercise leadership by identifying the 130 military bases on the NPL, including the EPA internet link to Contaminants of Concern for each base.   

There is no legal requirement or interest by the Defense Department or any government agency to notify veterans that they may have been exposed to toxic chemicals, radiation or other environmental hazards.

It's unlikely that the government will step into this role without specific legislation.  Under intense pressure from Congress, the Marine Corps at Camp Lejeune established a website registry for veterans who may have been affected by TCE contaminated drinking water at the base.

A number of Congressional hearings were held, bills introduced into Congress to provide medical care to veterans and their dependents, but as of this date, the Marine Corps has not accepted responsibility for illnesses and deaths linked to the contaminated well water. 

With 130 military bases on the EPA National Priority List (EPA Superfund), veterans are at risk of exposure to environmental hazards. 

The mission of VSOs is to serve veterans and support their needs. Nothing can be more important than your health.  There's no magic pill for exposure to an environmental hazard.  Medical care providers need to know when a patient has been exposed to particular environmental hazards to provide appropriate medical care.  Failure to provide this critical information is inexcusable.   

Not everyone who was stationed on an EPA Superfund base was exposed to an environmental hazard, but an indeterminate number were and the health effects are serious. 

Emails to the national headquarters of the American Legion, VFW, the Marine Corps League and other VSOs asking them to alert their membership of possible exposure to toxic chemicals were left unanswered. 

This is not rocket science.  The information on environmental hazards is resident on the EPA Superfund database.  The link to the websites is contained in this article.  This is literally a ‘no brainer.'  Any VSO with a website only has to cut and paste the list of military bases. 

Courtesy: Salem-News.com

MCAS El Toro Example .  Marine Corps Air Station El Toro, California, has been an EPA Superfund site since 1990. In 1985, the Orange County Water District found trichloroethylene (TCE) and tetrachloroethylene (PCE) in shallow irrigation wells down gradient of the base.

Before knowledge of the adverse health effects on humans from exposure to these TCE and PCE were known, they were commonly used as degreasers for aircraft and vehicles.

In 1990, MCAS El Toro was placed on EPA's National Priorities List (NPL) primarily because of a plume of toxic waste of TCE and PCE spreading off base several miles which threatened the local water supply. In 1993, MCAS El Toro was placed on the DoD BRAC list and officially closed in 1999.

At El Toro, the Navy identified 25 contaminated areas on base, including landfills containing both hazardous and solid waste; buried drums of explosives and low-level radioactive waste; and areas where PCBs, battery acids, leaded fuels, and other hazardous substances were dumped or spilled. The Navy spent millions of dollars in cleaning up the former base.

At a September 2010 Irvine City Council meeting, the Navy estimated that it would take 40 years to complete the environmental clean-up at El Toro.

Assuming a Marine veteran “connects the dots of military services to a current medical condition,” their only remedy is to file a claim with the Veterans Administration, assuming they are aware of what happened to them and unless they lived in Orange County, California that's unlikely.

EPA's Contaminants of Concern

For military bases that are EPA Superfunds, EPA defines environmental hazards as Contaminants of Concern (COC's).

According to EPA, “COC's are the chemical substances found at the site that the EPA has determined pose an unacceptable risk to human health or the environment. These are the substances that are addressed by cleanup actions at the site.”

“ Identifying COC's is a process where the EPA identifies people and ecological resources that could be exposed to contamination found at the site, determines the amount and type of contaminants present, and identifies the possible negative human health or ecological effects that could result from contact with the contaminants.”

A link to the list of COC's is shown on the first page of each EPA Superfund website under the caption, “ view contaminants of concern at this site.”  The health effects from exposure to a particular COC at MCAS El Toro can be obtained by clinking on the ATSDR Profile as shown below. 

CAS # Contaminant Name Contaminated

Media

Area of Site

Found (OU)

More Information
71-55-6 1,1,1-TCA Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
71-55-6 1,1,1-TRICHLOROETHANE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
71-55-6 1,1,1-TRICHLOROETHANE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
79-34-5 1,1,2,2-PCA Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
79-00-5 1,1,2-TCA Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
79-00-5 1,1,2-TRICHLOROETHANE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
75-34-3 1,1-DCA Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
75-35-4 1,1-DCE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
75-35-4 1,1-DICHLOROETHENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
107-06-2 1,2-DCA Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
540-59-0 1,2-DCE Ground Water BASEWIDE GROUNDWATER (01)
107-06-2 1,2-DICHLOROETHANE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
540-59-0 1,2-DICHLOROETHENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02)
540-59-0 1,2-DICHLOROETHENE Soil SOIL VOC SOURCE AREA: SITE 24 (02)
78-87-5 1,2-DICHLOROPROPANE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
78-93-3 2-BUTANONE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
78-93-3 2-BUTANONE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
78-93-3 2-BUTANONE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
591-78-6 2-HEXANONE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
50-29-3 4,4-DDT Soil SOIL SITES: 8, 11, 12 (03) ATSDR Profile
72-54-8 4,4-DICHLORODIPHENYLDICHLOROETHANE Soil SOIL SITES: 8, 11, 12 (03) ATSDR Profile
108-10-1 4-METHYL-2-PENTANONE Ground Water BASEWIDE GROUNDWATER (01)
108-10-1 4-METHYL-2-PENTANONE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02)
67-64-1 ACETONE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
67-64-1 ACETONE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
67-64-1 ACETONE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
7429-90-5 ALUMINUM (FUME OR DUST) Soil NFA SITES (06) ATSDR Profile
7429-90-5 ALUMINUM (METAL) Soil NFA: SITES 7 & 14 (07)
11097-69-1 AROCLOR-1254 Soil SOIL SITES: 8, 11, 12 (03)
11096-82-5 AROCLOR-1260 Soil SOIL SITES: 8, 11, 12 (03)
7440-38-2 ARSENIC Soil NFA SITES (06) ATSDR Profile
7440-38-2 ARSENIC Soil NFA: SITES 7 & 14 (07) ATSDR Profile
7440-38-2 ARSENIC Soil BURN PITS: SITE 16 (09) ATSDR Profile
71-43-2 BENZENE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
71-43-2 BENZENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
71-43-2 BENZENE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
205-99-2 BENZO(B)FLUORANTHENE Soil SOIL SITES: 8, 11, 12 (03)
205-99-2 BENZO(B)FLUORANTHENE Soil NFA SITES (06)
207-08-9 BENZO(K)FLUORANTHENE Soil NFA SITES (06)
56-55-3 BENZO[A]ANTHRACENE Soil NFA SITES (06)
50-32-8 BENZO[A]PYRENE Soil SOIL SITES: 8, 11, 12 (03)
50-32-8 BENZO[A]PYRENE Soil NFA SITES (06)
50-32-8 BENZO[A]PYRENE Soil NFA: SITES 7 & 14 (07)
7440-41-7 BERYLLIUM Soil BURN PITS: SITE 16 (09) ATSDR Profile
75-27-4 BROMODICHLOROMETHANE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
75-27-4 BROMODICHLOROMETHANE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
75-25-2 BROMOFORM Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
75-15-0 CARBON DISULFIDE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
75-15-0 CARBON DISULFIDE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
75-15-0 CARBON DISULFIDE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
56-23-5 CARBON TETRACHLORIDE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
56-23-5 CARBON TETRACHLORIDE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
56-23-5 CARBON TETRACHLORIDE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
108-90-7 CHLOROBENZENE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
67-66-3 CHLOROFORM Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
67-66-3 CHLOROFORM Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
74-87-3 CHLOROMETHANE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
74-87-3 CHLOROMETHANE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
218-01-9 CHRYSENE Soil NFA SITES (06)
53-70-3 DIBENZO(A,H)ANTHRACENE Soil SOIL SITES: 8, 11, 12 (03)
53-70-3 DIBENZO(A,H)ANTHRACENE Soil NFA SITES (06)
53-70-3 DIBENZO(A,H)ANTHRACENE Soil NFA: SITES 7 & 14 (07)
53-70-3 DIBENZO(A,H)ANTHRACENE Soil BURN PITS: SITE 16 (09)
124-48-1 DIBROMOCHLOROMETHANE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
124-48-1 DIBROMOCHLOROMETHANE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
60-57-1 DIELDRIN Soil SOIL SITES: 8, 11, 12 (03) ATSDR Profile
100-41-4 ETHYLBENZENE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
100-41-4 ETHYLBENZENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
100-41-4 ETHYLBENZENE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
193-39-5 INDENO(1,2,3-CD)PYRENE Soil NFA SITES (06)
7439-96-5 MANGANESE Soil NFA SITES (06) ATSDR Profile
7439-96-5 MANGANESE Soil NFA: SITES 7 & 14 (07) ATSDR Profile
7439-96-5 MANGANESE Soil BURN PITS: SITE 16 (09) ATSDR Profile
93-65-2 MCPP Soil SOIL SITES: 8, 11, 12 (03)
75-09-2 METHYLENE CHLORIDE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
75-09-2 METHYLENE CHLORIDE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
75-09-2 METHYLENE CHLORIDE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
127-18-4 PCE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
127-18-4 PCE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
127-18-4 PCE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
100-42-5 STYRENE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
100-42-5 STYRENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
TBD-00000010 TCA Ground Water BASEWIDE GROUNDWATER (01)
79-01-6 TCE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
79-01-6 TCE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
79-01-6 TCE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
127-18-4 TETRACHLOROETHENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
127-18-4 TETRACHLOROETHENE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
108-88-3 TOLUENE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
108-88-3 TOLUENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
108-88-3 TOLUENE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
79-01-6 TRICHLOROETHENE Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
79-01-6 TRICHLOROETHENE Ground Water BURN PITS: SITE 16 (09) ATSDR Profile
79-01-6 TRICHLOROETHENE Soil SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
79-01-6 TRICHLOROETHYLENE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
75-69-4 TRICHLOROFLUOROMETHANE Ground Water BASEWIDE GROUNDWATER (01)
75-01-4 VINYL CHLORIDE Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
1330-20-7 XYLENES Ground Water BASEWIDE GROUNDWATER (01) ATSDR Profile
1330-20-7 XYLENES Ground Water SOIL VOC SOURCE AREA: SITE 24 (02) ATSDR Profile
1330-20-7 XYLENES Soil SOIL VOC

MILITARY BASES ON THE NPL (EPA SUPERFUND)

US Air Force

Air Force Plant #4 (General Dynamics)

Fort Worth TX

Air Force Plant 85

Columbus OH

Air Force Plant PJKS

Littleton CO

American Lake Gardens/McChord AFB

Tacoma WA

Andersen Air Force Base

Yigo GU

Andrews Air Force Base

Andrews Air Force Base MD

Arnold Engineering Development Center (USAF)

Tullahoma/Manchester TN

Brandywine DRMO

Brandywine MD

Castle Air Force Base (6 Areas)

Merced CA

Chanute Air Force Base

Rantoul IL

Dover Air Force Base

Dover DE

Edwards Air Force Base

Edwards AFB CA

Eielson Air Force Base

Fairbanks AK

Ellsworth Air Force Base

Ellsworth AFB SD

Elmendorf Air Force Base

Anchorage AK

F.E. Warren Air Force Base

Cheyenne WY

Fairchild Air Force Base (4 Waste Areas)

Spokane WA

George Air Force Base

Victorville

CA

Griffiss Air Force Base (11 Areas)

Rome NY

Hanscom Field/Hanscom Air Force Base

Bedford MA

Hill Air Force Base

Hill AFB UT

Homestead Air Force Base

Homestead Air Force Base FL

Loring Air Force Base

Limestone ME

Luke Air Force Base

Glendale AZ

March Air Force Base

Riverside CA

Mather Air Force Base (AC&W Disposal Site)

Mather CA

McChord Air Force Base (Wash Rack/Treatment Area)

Tacoma WA

McClellan Air Force Base (Ground Water Contamination)

McClellan AFB CA

McGuire Air Force Base #1

Wrightstown NJ

Mountain Home Air Force Base

Mountain Home ID

Norton Air Force Base (Lndfll #2)

San Bernardino CA

Pease Air Force Base

Portsmouth/Newington NH

Plattsburgh Air Force Base

Plattsburgh NY

Rickenbacker Air National Guard (USAF)

Lockbourne OH

Robins Air Force Base (Landfill #4/Sludge Lagoon)

Houston County GA

Tinker Air Force Base (Soldier Creek/Building 3001)

Oklahoma City OK

Travis Air Force Base

Travis AFB CA

Twin Cities Air Force Reserve Base (Small Arms Range Landfill)

Minneapolis MN

Tyndall Air Force Base

Panama City FL

Williams Air Force Base

Chandler AZ

Wright-Patterson Air Force Base

Dayton OH

Wurtsmith Air Force Base

Oscoda MI

US Army

Aberdeen Proving Ground (Edgewood Area)

Edgewood MD

Aberdeen Proving Ground (Michaelsville Landfill)

Aberdeen MD

Alabama Army Ammunition Plant

Childersburg AL

Anniston Army Depot (Southeast Industrial Area)

Anniston AL

Cornhusker Army Ammunition Plant

Hall County NE

Fort Devens

Fort Devens MA

Fort Devens-Sudbury Training Annex

Sudbury MA

Fort Dix (Landfill Site)

Pemberton Township NJ

Fort Eustis (US Army)

Newport News VA

Fort George G. Meade

Odenton MD

Fort Lewis (Landfill No. 5)

Tacoma WA

Fort Lewis Logistics Center

Tillicum WA

Fort Ord

Marina CA

Fort Richardson (USARMY)

Anchorage AK

Fort Riley

Junction City KS

Fort Wainwright

Fort Wainwright AK

Iowa Army Ammunition Plant

Middletown  IA

Joliet Army Ammunition Plant (Load-Assembly-Packing Area)

Joliet IL

Joliet Army Ammunition Plant (Manufacturing Area)

Joliet IL

Lake City Army Ammunition Plant (Northwest Lagoon)

Independence MO

Letterkenny Army Depot (PDO Area)

Franklin County PA

Letterkenny Army Depot (SE Area)

Chambersburg PA

Lone Star Army Ammunition Plant

Texarkana TX

Longhorn Army Ammunition Plant

Karnack TX

Louisiana Army Ammunition Plant

Doyline LA

Materials Technology Laboratory (USARMY)

Watertown

MA

Milan Army Ammunition Plant

Milan TN

Natick Laboratory Army Research, Development, and Engineering Center

Natick MA

New Brighton/Arden Hills/TCAAP (USARMY)

New Brighton MN

Picatinny Arsenal (USARMY)

Rockaway Township NJ

Riverbank Army Ammunition Plant

Riverbank CA

Rocky Mountain Arsenal (USARMY)

Adams County CO

Sacramento Army Depot

Sacramento CA

Savanna Army Depot Activity

Savanna IL

Schofield Barracks (USARMY)

Schofield HI

Seneca Army Depot

Romulus NY

Sharpe Army Depot

Lathrop CA

Sunflower Army Ammunition Plant

Desoto KS

Tobyhanna Army Depot

Tobyhanna PA

Tooele Army Depot (North Area)

Tooele UT

Tracy Defense Depot (USARMY)

Tracy CA

Umatilla Army Depot (Lagoons)

Hermiston OR

US Army/NASA Redstone Arsenal

Huntsville AL

Weldon Spring Former Army Ordnance Works

St. Charles County MO

West Virginia Ordnance (USARMY)

Point Pleasant WV

US Coast Guard

Curtis Bay Coast Guard Yard

Baltimore MD

US Navy

Adak Naval Air Station

Adak AK

Alameda Naval Air Station

Alameda CA

Allegany Ballistics Laboratory (USNAVY)

Mineral County WV

Bangor Naval Submarine Base

Silverdale WA

Bangor Ordnance Disposal (USNAVY)

Bremerton WA

Barstow Marine Corps Logistics Base

Barstow CA

Brunswick Naval Air Station

Brunswick ME

Camp Lejeune Military Res. (USNAVY)

Onslow County NC

Camp Pendleton Marine Corps Base

Camp Pendleton CA

Cherry Point Marine Corps Air Station

Havelock NC

Concord Naval Weapons Station

Concord CA

Davisville Naval Construction Battalion Center

North Kingstown RI

El Toro Marine Corps Air Station

El Toro CA

Indian Head Naval Surface Warfare Center

Indian Head MD

Jackson Park Housing Complex (USNAVY)

Kitsap County WA

Jacksonville Naval Air Station

Jacksonville FL

Marine Corps Combat Development Command

Quantico VA

Marine Corps Logistics Base

Albany GA

Moffett Naval Air Station

Moffett Field CA

Naval Air Development Center (8 Waste Areas)

Warminster Township PA

Naval Air Engineering Center

Lakehurst NJ

Naval Air Station, Whidbey Island (Ault Field)

Whidbey Island WA

Naval Air Station, Whidbey Island (Seaplane Base)

Whidbey Island WA

Naval Amphibious Base Little Creek

Virginia Beach VA

Naval Computer and Telecommunications Area Master Station Eastern Pacific

Wahiawa HI

Naval Industrial Reserve Ordnance Plant

Fridley MN

Naval Security Group Activity

Sabana Seca PR

Naval Surface Warfare Center – Dahlgren

Dahlgren VA

Naval Undersea Warfare Engineering Station (4 Waste Areas)

Keyport WA

Naval Weapons Industrial Reserve Plant

Bedford MA

Naval Weapons Station – Yorktown

Yorktown VA

Naval Weapons Station Earle (Site A)

Colts Neck NJ

Navy Ships Parts Control Center

Mechanicsburg PA

New London Submarine Base

New London CT

Newport Naval Education & Training Center

Newport RI

Norfolk Naval Base (Sewells Point Naval Complex)

Norfolk VA

Norfolk Naval Shipyard

Portsmouth VA

NWS Yorktown – Cheatham Annex

Yorktown VA

Parris Island Marine Corps Recruit Depot

Parris Island

SC

Patuxent River Naval Air Station

Patuxent River MD

Pearl Harbor Naval Complex

Pearl Harbor

HI

Pensacola Naval Air Station

Pensacola FL

Port Hadlock Detachment (USNAVY)

Indian Island WA

Portsmouth Naval Shipyard

Kittery ME

Puget Sound Naval Shipyard Complex

Bremerton WA

South Weymouth Naval Air Station

Weymouth MA

St. Juliens Creek Annex (U.S. Navy)

Chesapeake VA

Treasure Island Naval Station-Hunters Point Annex

San Francisco CA

USN Air Station Cecil Field

Jacksonville FL

Washington Navy Yard

Washington DC

Whiting Field Naval Air Station

Milton FL

Willow Grove Naval Air and Air Reserve Station

Horsham PA

Yuma Marine Corps Air Station

Yuma AZ

 

The federal business energy investment tax credit available under 26 USC § 48 was expanded significantly by the Energy Improvement and Extension Act of 2008 (H.R. 1424), enacted in October 2008. This law extended the duration -- by eight years -- of the existing credits for solar energy, fuel cells and microturbines; increased the credit amount for fuel cells; established new credits for small wind-energy systems, geothermal heat pumps, and combined heat and power (CHP) systems; allowed utilities to use the credits; and allowed taxpayers to take the credit against the alternative minimum tax (AMT), subject to certain limitations. The credit was further expanded by The American Recovery and Reinvestment Act of 2009 , enacted in February 2009.  

In general, credits are available for eligible systems placed in service on or before December 31, 2016:

In general, the original use of the equipment must begin with the taxpayer, or the system must be constructed by the taxpayer. The equipment must also meet any performance and quality standards in effect at the time the equipment is acquired. The energy property must be operational in the year in which the credit is first taken.  

Significantly, The American Recovery and Reinvestment Act of 2009 repealed a previous restriction on the use of the credit for eligible projects also supported by "subsidized energy financing." For projects placed in service after December 31, 2008, this limitation no longer applies. Businesses that receive other incentives are advised to consult with a tax professional regarding how to calculate this federal tax credit.  


* The American Recovery and Reinvestment Act of 2009, which allows PTC-eligible facilities to use the 30% ITC, has implications for some technologies that were already potentially eligible for either incentive in some form. Certain geothermal and open- or closed- loop biomass systems (including biomass CHP projects) now qualify for a 30% tax credit through December 31, 2013, the in-service deadline for these technologies under the PTC. Wind-energy systems of all sizes -- not only systems of 100 kW or less -- also now qualify for the 30% ITC through the wind-energy PTC in-service deadline of December 31, 2012. Applicants should refer to the eligibility definition contained in the PTC to determine if and how their project might qualify for this treatment.

Contact:
Public Information - IRS
U.S. Internal Revenue Service
1111 Constitution Avenue, N.W.
Washington, DC 20224
Phone: (800) 829-1040
Web Site: http://www.irs.gov

 

AGENDA Public Meeting Central Valley Regional Water Quality Control Board September 23, 2010– 9:00 a.m. Central Valley Regional Water Quality Control Board

Litigation filed by the Board against other parties: Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines, Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. Iron Mountain Mines, Inc., et al., (EDCal No. S-91-0768 DFL/JFM)

Groundwater Quality Protection Strategy
Central Valley Region
“Roadmap”
August 2010
REGIONAL WATER QUALITY CONTROL BOARD
CENTRAL VALLEY REGION
CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY

"RULE OF THE ROAD, STAY OUT OF DITCH"

 

 

Eighth Circuit reverses CAFA remand and holds that doubts about the application of CAFA jurisdictional exceptions should be resolved in favor of federal jurisdiction

Daily scoreboard

1. From the Ipsos/Reuters Poll : Ma'am Barbara Boxer 46%, Republican Carly Fiorina 45%.

There may be a race in California after all.

GOOD.

2. From the London Daily Mail : “Ugly Meter: The 59p iPhone app that tells you how good-looking (or not) you are.”

Guys in junior high used to do this for free. (From Alexander Hamilton Junior High's playground: “Yo momma's so ugly, they moved Halloween to her birthday.”)

The app separates fools from their money. Cool.

GOOD.

3. From the Associated Press: “It seemed too good to be true: You bought a house in foreclosure at a fraction of the former price. Maybe you even knocked out a wall or two and remodeled with all the money you saved.But now thousands of foreclosures around the country may be invalid because of bank paperwork problems… The situation is murkier for people who bought their homes with cash and didn't bother with title insurance.”

Get rich quick usually turns out to be become poorer quicker.

EVIL.

4. From the New York Times : “Brad Woodhouse, spokesman for the Democratic National Committee, is the latest ally of President Obama to go after the dangers of undisclosed money in the political process… But just a couple of years back, Mr. Woodhouse was the president of a political organization that took donations without disclosing the identities of the donors.”

People who are named Woodhouse shouldn't throw fire-bombs.

Comeuppance!

GOOD.

5. From Fox News : “Federal authorities said Friday that intelligence they obtained about a possible threat to the U.S. homeland from Pakistan was based on a source who had lied to them the whole time. The development comes one day after Fox News reported  that the U.S. government had obtained information indicating the group that orchestrated the failed Times Square bombing may be looking to strike again.”

Gee. Terrorists lie. Who would have thought?

EVIL.

6. From the London Daily Mail : “The drilling of the longest railway tunnel in the world has been completed, 14 years after it began. The last few yards of rock were removed earlier today, opening the 35.4-mile Gotthard Base link through the Swiss Alps which will allow trains to transport goods and passengers to and from Italy — and shave an hour off journey times. The £624 million tunnel through the Gotthard massif, including the 8,200-foot Piz Vatgira, is part of a larger project to remove heavy goods vehicles from roads in a bid to preserve Switzerland's pristine Alpine landscape.”

It would take Americans 14 years just to get the EPA permits.

GOOD.

7. From the Wall Street Journal : “Cotton prices touched their highest level since Reconstruction on Friday, as a string of bad harvests and demand from China spark worries of a global shortfall.”

$1.1980 a pound?

Now wait just a cotton-pickin' minute, that's way too much.

EVIL.

8. From Schwabe, Williamson & Wyatt : “On June 2, 2010, the United States Environmental Protection Agency (EPA) released a draft National Pollutant Discharge Elimination System (NPDES) permit that would regulate and authorize certain pesticide applications under the Clean Water Act. The proposed Pesticide General Permit (PGP) will regulate applications of pesticides into or near the waters of the United States to control mosquitoes, aquatic weeds and algae and nuisance animals, and forest canopy pests. The EPA estimates that 365,000 applicators, performing 5.6 million pesticide applications per year, will be subject to the new permit.”

Who needs bo weevils to destroy cotton when the EPA can make sure it is never planted?

EVIL.

9. From the Washington Post : “Facing Republican complaints about big government and federal salaries, President Obama said Friday that government agencies might leave some vacancies unfilled as his administration looks for ways to save money.”

He's like the guy who ordered the 12-pound bacon cheeseburger, fries and onion rings then demanded a diet drink because he's on a diet.

GOOD.

10. From the Associated Press: “The U.S. government will vigorously enforce federal laws against marijuana even if voters next month make California the first state to legalize pot, Attorney General Eric Holder says.”

Hey hippies, put down the bong, pick up the 10th Amendment and take ‘em to court.

Eric Holder? What the hell were you smoking when you elected Barack Obama president.

Oh yea. That.

EVIL.

11. From Politico : “Delaware Republican Christine O'Donnell raised a substantial $3.8 million during the last three months, more than twice what her Democratic opponent raised, but it hasn't yet thinned his substantial lead in most polls.”

Money talks, but it don't vote.

GOOD.

12. From CNN : “a whopping 85% of college seniors planned to move back home with their parents after graduation last May, according to a poll by Twentysomething Inc., a marketing and research firm based in Philadelphia. That rate has steadily risen from 67% in 2006.”

Parents you have been warned. Change the locks by May.

If necessary, get a restraining order. The constables will likely frown upon firing anything bigger than buckshot at them.

EVIL.

13. From Glenn Reynolds : “These days, the Baptists support Israel more than the Jews.”

Ow. Good observation…

GOOD.

14. From Ken Langone, a co-founder of Home Depot : “We opened the front door in 1979, also a time of severe economic slowdown. Yet today, Home Depot is staffed by more than 325,000 dedicated, well-trained, and highly motivated people offering outstanding service and knowledge to millions of consumers. If we tried to start Home Depot today, under the kind of onerous regulatory controls that you have advocated, it's a stone cold certainty that our business would never get off the ground, much less thrive. Rules against providing stock options would have prevented us from incentivizing worthy employees in the start-up phase — never mind the incredibly high cost of regulatory compliance overall and mandatory health insurance. Still worse are the ever-rapacious trial lawyers.”

If they thought of someone other than themselves, Bill Gates, Steve Jobs and those evil men who started Google would write similar letters.

EVIL.

15. Beautiful fall day.

GOOD.

Finals score: GOOD 8, EVIL 7.

 

ANTITRUST - PIRACY - EXTORTION - MALICE - ABUSE - ERRORS OF IMPUNITY & MISCARRIAGE OF JUSTICE - RELIGION - COERCIVE MONOPOLY = SLAVERY

Entity Number Date Filed Status Entity Name Agent for Service of Process
C0818998 06/21/1977 ACTIVE IRON MOUNTAIN MINES, INC. T. W. ARMAN
Entity Name: IRON MOUNTAIN MINES, INC.
Entity Number: C0818998
Date Filed: 06/21/1977
Status: ACTIVE
Jurisdiction: CALIFORNIA
Entity Address: 9940 BUSINESS PARK DR #185
Entity City, State, Zip: SACRAMENTO CA 95827
Agent for Service of Process: T. W. ARMAN
Agent Address: 9940 BUSINESS PARK DR #185
Agent City, State, Zip: SACRAMENTO CA 95827

 

Business Entity Information
Status:   Default File Date:   2/27/2001
Type:   Domestic Limited-Liability Company Entity Number:  LLC2027-2001
Qualifying State:  NV List of Officers Due:  2/28/2010
Managed By:  Managing Members Expiration Date:  2/27/2501
NV Business ID:  NV20011022183 Business License Exp:


Registered Agent Information
Name:   GKL RESIDENT AGENTS/FILINGS, INC. Address 1:   1000 EAST WILLIAM STREET STE 204
Address 2:  City:   CARSON CITY
State:   NV Zip Code:   89701
Phone:  Fax: 
Mailing Address 1:  Mailing Address 2: 
Mailing City:  Mailing State:   NV
Mailing Zip Code: 
Agent Type:   Commercial Registered Agent - Corporation
Jurisdiction:   NEVADA Status:   Active
View all business entities under this registered agent


Financial Information
No Par Share Count:  0 Capital Amount:  $ 0
No stock records found for this company


Officers Include Inactive Officers
 Manager - TED ARMAN
Address 1:   PO BOX 992867 Address 2: 
City:   REDDING State:   CA
Zip Code:   96099 Country: 
Status:   Active Email: 

 

Entity Number Date Filed Status Entity Name Agent for Service of Process
200035010105 11/29/2000 ACTIVE LIGHTHORSE VENTURES, LLC STEPHEN LOPEZ
Entity Name: LIGHTHORSE VENTURES, LLC
Entity Number: 200035010105
Date Filed: 11/29/2000
Status: ACTIVE
Jurisdiction: CALIFORNIA
Entity Address: 1600 S MAIN ST STE 325
Entity City, State, Zip: WALNUT CREEK CA 94596
Agent for Service of Process: STEPHEN LOPEZ
Agent Address: 1600 S MAIN ST STE 325
Agent City, State, Zip: WALNUT CREEK CA 94596

SOLICITOR OF WILLIAM LOGAN OF LOGAN & GILES, LIGHTHORSE VENTURES LLC PAID RETAINER OF $140,000

PETITION FOR CLASS ACTION FAIRNESS ACT CERTIFICATION


LIGHTHORSE VENTURES LLC ET AL  DEFENDANT  HUTCHENS VS LIGHTHORSE VENTURES LLC ET AL  FRAUD  CIVMSC07-00955 05/04/2007 

Viewed Date Action Text Disposition Image
11/04/2010 9:00 AM DEPT. 02  HEARING ON OSC RE: ATTORNEY JEREMIAH LEAHY FAILURE TO APPEAR IN COURT ON 09/02/2010 IN DEPARTMENT TWO - Minutes
11/04/2010 9:00 AM DEPT. 02  SPECIAL SET HEARING ON: DEFAULT PROVE-UP HEARING SET BY DEPT TWO - Minutes
09/03/2010  ORDER TO SHOW CAUSE FILED Not Applicable  N/A 
09/02/2010 9:00 AM DEPT. 02  SPECIAL SET HEARING ON: DEFAULT PROVE-UP HEARING SET BY DEPT TWO - Minutes
Complete 
08/27/2010 9:30 AM DEPT. 02  SPECIAL SET HEARING ON: DEFAULT PROVE-UP HEARING SET BY DEPT TWO - Minutes
Complete 
07/28/2010  STATEMENT OF FACTS AND ISSUES (DEFENDANT) FILED Not Applicable  N/A 
07/28/2010 11:00 AM DEPT. 02  COURT TRIAL - LONG CAUSE/ 3 DAY(S) - Minutes
COMPLETED 
07/26/2010 9:05 AM DEPT. 02  COURT TRIAL - LONG CAUSE/ 3 DAY(S) - Minutes
NOT HEARD/CONT 
04/01/2010 9:00 AM DEPT. 02  SPECIAL SET HEARING ON: TRIAL SETTING CONFERENCE SET BY COURT - Minutes
COMPLETED 
02/01/2010 9:00 AM DEPT. 02  JURY TRIAL - LONG CAUSE/ 6 DAY(S) VACATED 
01/21/2010 9:00 AM DEPT. 02  HEARING ON OSC RE: FAILURE TO APPEAR BY JEREMIAH LEAHY, COUNSEL FOR PLAINTIFF @ ISSUE CONF. HELD 12/18/09 - Minutes
COMPLETED 
12/18/2009 3:00 PM DEPT. 02  ISSUE CONFERENCE - Minutes
COMPLETED 
11/13/2009 4:00 PM DEPT. 02  ISSUE CONFERENCE - Minutes
NOT HEARD/CONT 
09/01/2009 9:00 AM DEPT. 02  JURY TRIAL - LONG CAUSE/ 6 DAY(S) - Minutes
NOT HEARD/CONT 
08/14/2009 4:00 PM DEPT. 02  ISSUE CONFERENCE - Minutes
NOT HEARD/CONT 
07/01/2009 9:00 AM DEPT. 02  HEARING ON MOTION TO/FOR SET ASIDE THE DEFAULT OF PAUL HOFFMAN FILED BY PAUL HOFFMAN - Minutes
DENIED 
06/12/2009  MOTION TO/FOR SET ASIDE DEFAULT FILED BY PAUL HOFFMAN
06/12/2009  RETURN CHECK FEE PAID BY PAUL HOFFMAN FOR CHECK RETURNED FOR MOT TO SET ASIDE DEFAULT Not Applicable 
06/10/2009 9:00 AM DEPT. 02  HEARING ON MOTION TO/FOR SET ASIDE THE DEFAULT OF PAUL HOFFMAN FILED BY PAUL HOFFMAN - Minutes
Complete 
06/08/2009 9:00 AM DEPT. 02  JURY TRIAL - LONG CAUSE/ 6 DAY(S) - Minutes
NOT HEARD/CONT 
06/04/2009  CORRESPONDENCE MEMO RE: MONEY ORDER FOR RETURNED CHECK Not Applicable 
05/18/2009  THE FILING OF YOUR PAPERS WILL BE VOID FOR ALL PURPOSES Not Applicable 
05/18/2009  CLERK'S TICKLER TO CHECK FOR PAYMENT OF RETURNED CHECK WAS SET FOR 6/18/09 AT 7:00 IN DEPT. FIS
05/18/2009  IF THE FEES HAVE NOT BEEN PAID BY 06/18/09 Not Applicable 
05/18/2009  PLEASE RETURN THIS NOTICE WITH YOUR PAYMENT OF $65.00 Not Applicable 
05/18/2009  YOUR CHECK AS DESCRIBED BELOW HAS BEEN RETURNED UN-PAID BY YOUR BANK FOR THE FOLLOWING REASON: NOT SUFFICIENT FUNDS Not Applicable 
05/18/2009  WALNUT CREEK, CA 94596-8812 Not Applicable 
05/18/2009  1600 S. MAIN ST. STE. 325 Not Applicable 
05/18/2009  PAUL HOFFMAN Not Applicable 
05/18/2009  ** VOID ** GC 70617(A) MOTION FEE Not Applicable 
05/15/2009 9:00 AM DEPT. 02  ISSUE CONFERENCE - Minutes
NOT HEARD/CONT 
05/04/2009  MEMORANDUM OF POINTS AND AUTHORITIES FILED BY PAUL HOFFMAN IN SUPPORT OF MOTION TO SET ASIDE DEFAULT Not Applicable  N/A 
05/04/2009  DECLARATION OF PAUL HOFFMAN FILED RE: IN SUPPORT OF MTN TO SET ASIDE DEFAULT Not Applicable  N/A 
05/04/2009  DECLARATION OF DONALD TENCONI FILED RE: IN SUPPORT OF MTN TO SET ASIDE DEFAULT OF HAOFFMAN Not Applicable  N/A 
05/04/2009  PROOF OF SERVICE BY MAIL OF NTC OF MTN TO SET ASIDE DEFAULT OF HOFFMAN ON [SEE LIST] FILED; SERVED ON 04/24/09 Not Applicable  N/A 
05/04/2009  MOTION TO/FOR SET ASIDE DEFAULT FILED BY PAUL HOFFMAN
05/04/2009  HEARING ON MOTION WAS SET FOR 6/10/09 AT 9:00 IN DEPT. 02
03/06/2009  DEFENDANT LIGHTHORSE VENTURESLLC ET AL, STEPHEN B LOPEZ, NORTHSTAR LAND COMPANY LLC ADDS ATTORNEY PRO/PER Not Applicable 
03/06/2009  JAMES SMITH REMOVED AS AN ATTORNEY ON THIS CASE Not Applicable 
03/06/2009  DISCHARGE OF ATTORNEY AS TO LIGHTHORSE VENTURES LLC, NORTHSTAR LAND CO, LLC & STEPHEN LOPEZ Not Applicable  N/A 
03/04/2009  (U.J.) ANSWER TO 2ND AMENDED COMPLAINT OF JOHN HUTCHENS FILED BY LIGHTHORSE VENTURESLLC ET AL, STEPHEN B LOPEZ Not Applicable  N/A 
03/04/2009  STIPULATION TO SET ASIDE DEFAULT OF LIGHTHORSE AND STEPHAN LOP FILED Not Applicable 
02/26/2009  CLERK'S CERTIFICATE OF MAILING OF UNREPORTED MINUTE ORDER FILED 2/26/09 SENT TO ALL PARTIES Not Applicable 
02/26/2009  UNREPORTED MINUTE ORDER FILED RE: CONTINUANCE OF ISSUE CONFERENCE AND TRIAL DATES Not Applicable  N/A 
02/10/2009  STIP & ORDER TO SET ASIDE DEFAULT SEND TO D-2 FOR SIGNATURE Not Applicable  N/A 
01/13/2009  MEDIATOR'S REPORT RECEIVED: DID NOT TAKE PLACE SCHEDULED ON 12/01/08, MEDIATOR TIME SPENT 0 HOURS Not Applicable 
01/09/2009  DEFAULT ENTERED ON THE 2ND AMENDED COMPLAINT OF JOHN HUTCHENS AGAINST DEFENDANT LIGHTHORSE VENTURESLLC ET AL, PAUL HOFFMAN, STEPHEN B LOPEZ BY CLERK AS REQUESTED Not Applicable  N/A 
01/09/2009  REQUEST TO ENTER DEFAULT ON 2ND AMENDED COMPLAINT OF JOHN HUTCHENS FILED AS TO LIGHTHORSE VENTURESLLC ET AL, PAUL HOFFMAN, STEPHEN B LOPEZ Not Applicable  N/A 
01/09/2009  PROOF OF SERVICE BY MAIL FILED ON 2ND AMENDED COMPLAINT OF JOHN HUTCHENS AS TO LIGHTHORSE VENTURESLLC ET AL, PAUL HOFFMAN, STEPHEN B LOPEZ WITH MAILING DATE OF 10/23/08 Not Applicable  N/A 
01/08/2009  NOTICE OF/TO CHANGE OF ADDRESS FILED ON BEHALF OF JOHN F HUTCHENS, JEFFREY L HEATON Not Applicable  N/A 

Business Entity Search

 Entity Name  NV Business ID  Status  Type
IRON MOUNTAIN MINES, LLC
NV20011022183
Default
Domestic Limited-Liability Company
 Entity Name  NV Business ID  Status  Type
ESSENTIAL SOLUTIONS, INC.
NV19981381493
Default
Domestic Corporation

DEPARTMENT OF RECLAMATION, AGRICULTURE, FORESTRY, AND TIMBER (DRAFT)

General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-17411 Docketed: 10/29/2009
Nature of Suit: 1893 Environmental Matters
USA, et al v. T.W. Arman, et al
Appeal From: U.S. District Court for Eastern California, Sacramento
Fee Status: Paid
Case Type Information:
     1) civil
     2) united states
     3) null
Originating Court Information:
District: 0972-2 : 2:91-cv-00768-JAM-JFM
Court Reporter: Kelly Ann O'Halloran
Trial Judge: John A. Mendez, District Judge
     Date Filed: 06/12/1991
     Date Order/Judgment:      Date Order/Judgment EOD:      Date NOA Filed:      Date Rec'd COA:
     09/29/2009      09/29/2009      10/23/2009      10/29/2009
Prior Cases:
09-70047
Date Filed: 01/07/2009      Date Disposed: 02/18/2009      Disposition: Denied - Judge Order
09-71150
Date Filed: 04/20/2009      Date Disposed: 07/28/2009      Disposition: Denied - Judge Order

Current Cases:
     None


UNITED STATES OF AMERICA
                      Plaintiff - Appellee
Joan M. Pepin
Direct: 202-305-4626
[COR LD NTC Government]
DOJ - U.S. DEPARTMENT OF JUSTICE
Environment & Natural Resources Division
P.O. Box 23795, L'Enfant Plaza Station
Washington, DC 20026-3795

Larry Corcoran, Esquire, Assistant U.S. Attorney
Direct: 202-305-0370
[COR NTC Assist US Attorney]
DOJ - U.S. DEPARTMENT OF JUSTICE
Environmental Enforcement Section
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044-7611

Yoshinori H. T. Himel, Esquire, Assistant U.S. Attorney
Direct: 916-554-2760
[COR NTC Assist US Attorney]
USSAC - OFFICE OF THE U.S. ATTORNEY
Suite 10-100
501 I Street
Sacramento, CA 95814
STATE OF CALIFORNIA
                      Plaintiff - Appellee
Margarita Padilla, Supervising Deputy Attorney General
Direct: 510-622-2135
[COR NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (OAKLAND)
20th Floor
1515 Clay Street
Oakland, CA 94612-0550

Sara J. Russell, Esquire, Supervising Deputy Attorney General
Direct: 916-324-7853
[COR NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (SAC)
Suite 125
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
WILLIAM A. LOGAN, JR.
                      Appellant
William A. Logan, Jr.
Direct: 925-945-6792
[NTC Pro Se]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596
LOGAN & GILES LLP
                      Appellant
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596
v.

IRON MOUNTAIN MINES
                      Defendant
RHONE-POULNEC BASIC CHEMICALS COMPANY
                      Defendant
BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.
                      Defendant
T. W. ARMAN
                      Defendant - Appellant
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
(see above)
UNITED STATES OF AMERICA; STATE OF CALIFORNIA,

           Plaintiffs - Appellees,

   v.

WILLIAM A. LOGAN, Jr.; LOGAN & GILES LLP,

           Appellants,

   v.

IRON MOUNTAIN MINES; RHONE-POULNEC BASIC CHEMICALS COMPANY; BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.,

           Defendants,

and

T. W. ARMAN,

           Defendant - Appellant.
10/29/2009  1 
11 pg, 248.18 KB
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Transcript due for Orig Clerk USDC, Sacramento on 12/22/2009. Certificate of record due 12/29/2009. Appellant T. W. Arman, Appellant William A. Logan Jr. and Appellant Logan & Giles LLP opening brief due 02/08/2010. Appellee State of California and Appellee United States of America answering brief due 03/09/2010. Appellant's optional reply brief is due 14 days after service of the answering brief. [7112437] (GR)
10/29/2009  2 
10 pg, 211.73 KB
Filed Appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP Civil Appeals Docketing Statement. Served on 10/23/2009. [7112442] (GR)
12/10/2009  3 
2 pg, 30.85 KB
Filed order MOATT: (EC)Within 21 days after the date of this order, appellants shall move for voluntary dismissal of this appeal or show cause why it should not be dismissed for lack of jurisdiction. If appellants do not comply with this order, the Clerk shall dismiss this appeal pursuant to Ninth Circuit Rule 42-1. Briefing is suspended pending further order of the court. [7159804] (KD)
12/14/2009  4 
4 pg, 77.11 KB
Filed (ECF) Appellants William A. Logan, Jr. and Logan & Giles LLP response to order to show cause dated 12/10/2009. Date of service: 12/10/2009. [7164029] (WAL)
01/04/2010  5 
2 pg, 649.3 KB
Filed (ECF) notice of appearance of Joan M. Pepin for Appellee USA. Date of service: 01/04/2010. [7181008] (JMP)
01/04/2010  6  Added attorney Joan M. Pepin for USA, in case 09-17411. [7181057] (EL)
02/11/2010  7 
30 pg, 2.16 MB
Filed Appellant T. W. Arman motion "breatch of patent title, supersedeas writ de ejectione firmae....". Served on 02/08/2010. [7230966] (CW)
03/02/2010  8 
3 pg, 220.87 KB
Received from John F. Hutchens' notice regarding absolute & immediate injunctive relief. [7249887] (EL)
03/08/2010  9 
2 pg, 137.21 KB
Received from John Hutchens' Breve Soke, served on 03/05/2010 [7256642] (EL)
03/11/2010  10 
2 pg, 28.89 KB
Filed order (MARY M. SCHROEDER and EDWARD LEAVY): The court has received and reviewed the response to this court's order to show cause. The jurisdictional issue does not appear suitable for summary disposition. Accordingly, the order to show cause is discharged. The court strikes the filings submitted by John F. Hutchens, a non-party to this appeal, received on February 11, 2010, March 2, 2010 and March 8, 2010, from the docket. If appellant has not already done so, appellant shall within 14 days after the date of this order, designate any reporter's transcripts or serve on appellee a statement indicating that appellant does not intend to order any transcripts. See 9th Cir. R. 10-3.1(a). If appellant designates transcripts, the transcripts will be due April 26, 2010. The opening brief and excerpts of record are due May 26, 2010; the answering brief is due June 25, 2010; and the optional reply brief is due within 14 days after service of the answering brief. [7262669] (AF)
05/25/2010  12 
1 pg, 32.68 KB
Filed certificate of record on appeal. RT filed in DC 12/17/08, 9/23/09 [7351079] (EL)
05/26/2010  11  14 day oral extension by phone of time to file Appellant Logan & Giles LLP brief. Appellant Logan & Giles LLP opening brief due 06/09/2010. Appellee State of California and Appellee United States of America answering brief due 07/09/2010. The optional reply brief is due 14 days after service of the appellee brief. [7350286] (TH)
06/09/2010  13 
27 pg, 64.43 KB
Submitted (ECF) Opening brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 06/09/2010. [7366866] (WAL)
06/09/2010  14  Received non-party John Hutchens' UNDER the great SEAL absolute order for inspection petition for emergency review order for reinstatement of claims etc, served on 6/9/10. [7367056] (EL)
06/10/2010  15 
2 pg, 81.46 KB
Filed clerk order: The opening brief [ 13 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a blue cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7368096] (WP)
06/11/2010  16  Filed Appellants William A. Logan, Jr. and Logan & Giles LLP excerpts of record in 2 volumes. Served on 06/09/2010. [7374030] (WP)
06/17/2010  17  Received 7 paper copies of Opening brief [ 13 ] filed by William A. Logan, Jr. and Logan & Giles LLP. [7377357] (SD)
06/24/2010  18  Deleted Incorrect Docket Entry (LB)
06/24/2010  20  14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)
06/30/2010  19 
3 pg, 268.14 KB
Filed (ECF) Appellee State of California Correspondence: Letter to Clerk. Date of service: 06/30/2010 [7389577] (MP)
07/23/2010  21 
43 pg, 315.24 KB
Submitted (ECF) Answering brief for review. Submitted by Appellee USA. Date of service: 07/23/2010. [7415725] (JMP)
07/26/2010  22 
2 pg, 81.79 KB
Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)
07/26/2010  23  Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)
07/29/2010  24  Received 7 paper copies of Answering brief [ 21 ] filed by USA. [7422418] (SD)
08/05/2010  25  Oral extension of time granted to appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP. The reply brief is due 8/23/2010. [7435466] (LB)
08/23/2010  26 
7 pg, 24.79 KB
Submitted (ECF) Reply brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 08/23/2010. [7449230] (WAL)
08/24/2010  27 
2 pg, 81.79 KB
Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)
08/26/2010  28  Received 7 paper copies of Reply brief [ 26 ] filed by William A. Logan, Jr.. [7454559] (SD)
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-17411 Docketed: 10/29/2009
Nature of Suit: 1893 Environmental Matters
USA, et al v. T.W. Arman, et al
Appeal From: U.S. District Court for Eastern California, Sacramento
Fee Status: Paid
Case Type Information:
     1) civil
     2) united states
     3) null
Originating Court Information:
District: 0972-2 : 2:91-cv-00768-JAM-JFM
Court Reporter: Kelly Ann O'Halloran
Trial Judge: John A. Mendez, District Judge
     Date Filed: 06/12/1991
     Date Order/Judgment:      Date Order/Judgment EOD:      Date NOA Filed:      Date Rec'd COA:
     09/29/2009      09/29/2009      10/23/2009      10/29/2009
06/24/2010  20  14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)
06/30/2010  19  Filed (ECF) Appellee State of California Correspondence: Letter to Clerk. Date of service: 06/30/2010 [7389577] (MP)
07/23/2010  21  Submitted (ECF) Answering brief for review. Submitted by Appellee USA. Date of service: 07/23/2010. [7415725] (JMP)
07/26/2010  22  Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)
07/26/2010  23  Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)
07/29/2010  24  Received 7 paper copies of Answering brief [ 21 ] filed by USA. [7422418] (SD)
08/05/2010  25  Oral extension of time granted to appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP. The reply brief is due 8/23/2010. [7435466] (LB)
08/23/2010  26  Submitted (ECF) Reply brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 08/23/2010. [7449230] (WAL)
08/24/2010  27  Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)
08/26/2010  28  Received 7 paper copies of Reply brief [ 26 ] filed by William A. Logan, Jr.. [7454559] (SD)

LOGAN & GILES RETAINED BY STEPHEN LOPEZ AND LIGHTHORSE VENTURES LLC TO DEFEND TED ARMAN AND IRON MOUNTAIN MINES, INC.

Duke Energy Wins Verdict Reversal in EPA Lawsuit

“The Clean Air Act does not authorize the imposition of sanctions for conduct that complies with a state implementation plan that the EPA has approved,” U.S. Circuit Judge Richard Posner wrote in a 12-page decision. “The blunder was unfortunate but the agency must live with it.”

The appeals court also said that U.S. District Judge Larry J. McKinney , who presided over the trial in Indianapolis, improperly admitted expert testimony proffered by the EPA.

Duke said the work at the plants constituted routine maintenance and federal regulations weren't violated.

 

 

 

The mere execution of a lease does not necessarily make a tenant liable as an owner or operator under CERCLA § 107(a). However, as explained below, EPA recognizes the uncertainty regarding the potential liability of certain tenants under CERCLA, and the Brownfields Amendments’ explicit reference to tenants, and offers some general guidance below to be used by EPA in exercising enforcement discretion.
This memorandum addresses those circumstances in which EPA, on a site-specific basis, intends to exercise its enforcement discretion not to enforce against the following categories of tenants:

A tenant whose lease gives sufficient indicia of ownership to be considered an “owner” and who meets the elements of §§ 101(40)(A)-(H) and 107(r)(1).

CERCLA § 101(40) defines a BFPP as “a person (or a tenant of a person) that acquires ownership of a facility after [January 11, 2002]” and establishes that it meets certain threshold criteria and ongoing obligations identified at CERCLA § 101(40)(A) – (H).
EPA previously issued guidance to assist with implementation of the BFPP provision.

These guidance documents address many of the criteria a landowner must meet to qualify under the statute as a BFPP. As discussed below, these guidance documents also provide important information for tenants who may fall within the scope of this guidance.
b. Tenants with Indicia of Ownership
In assessing potential liability of a tenant under CERCLA, some courts engage in a fact-specific inquiry regarding the “indicia of ownership” found in the lease arrangement. Where a tenant’s lease arrangement may provide sufficient indicia of ownership, a court could consider the tenant to be an “owner” of a facility for purposes of CERCLA liability.

This guidance explains how EPA intends to exercise its enforcement discretion on a site-specific basis with respect to these tenants.
If a tenant has sufficient indicia of ownership to be an owner, EPA intends to exercise its enforcement discretion and consider the tenant to be a BFPP so long as the tenant complies with the requirements of CERCLA §§ 101(40)(A)–(H) and 107(r)(1). One requirement of section 101(40) is that a person must have “acquire[d] ownership” of the property after January 11, 2002. For purposes of exercising its enforcement discretion, therefore, EPA intends to treat those tenants with sufficient indicia of ownership as BFPPs if their lease agreement was entered into after January 11, 2002, provided they meet all of the requirements from section 101(40)(A)(H) (as described more fully in the Common Elements guidance) and section 107(r)(1). In general terms, the requirements of section 101(40)(A)-(H) are: (1) not dispose of hazardous substances at the property; (2) conduct all appropriate inquiries (AAI) into the previous ownership and uses of the property prior to executing the lease; (3) provide legally required notices; (4) take reasonable steps with respect to hazardous substance releases; (5) provide cooperation, assistance and access; (6) comply with land use restrictions and institutional controls; (7) comply with information requests and administrative subpoenas; and (8) not be affiliated with a liable party at the facility. Section 107(r)(1) provides, among other things, that to obtain liability protection, a BFPP must not impede the performance of a response action or natural resource restoration.
With respect to the “no affiliation” prohibition, section 101(40)(H)(i)(II) provides an exception where the affiliation “is created by the instruments by which title to the facility is conveyed or financed or by a contract for the sale of goods or services.” In essence, the exception makes clear that a person can acquire title to a property from a liable party and still establish itself as a BFPP. A lease, however, generally does not convey title to the property and thus would not fall within the scope of the exception. Therefore, for purposes of this guidance, where a tenant’s lease provides sufficient indicia of ownership such that the tenant could be considered an “owner,” EPA intends to exercise its enforcement discretion not to pursue those tenants, provided the other requirements discussed above are also met.

c. Tenants With “Derivative” BFPP Status
The BFPP definition in CERCLA § 101(40) includes the phrase “tenant of a person,” thereby providing that a tenant may derive BFPP status from an owner who satisfies the BFPP requirements. The tenant remains a BFPP and will receive the liability protections of section 107(r) as long as the owner maintains its BFPP status and the tenant does not: (1) dispose of hazardous substances at the facility, as provided by section 101(40)(A); or (2) impede the performance of a response action or natural resource restoration, as provided by section 107(r)(1). Please note that this means that as long as the owner maintains compliance with the requirements of section 101(40)(B)-(H), the tenant who has derived BFPP status does not have any independent duty to carry out those responsibilities (such as conducting AAI). However, if the owner loses its BFPP status whether by its own action or inaction or that of the tenant, the tenant generally would no longer be a BFPP.
If a tenant derivatively enjoys BFPP status through the owner and the owner loses its status through no fault of the tenant, EPA may exercise its enforcement discretion not to pursue the tenant under CERCLA § 107(a)(1).

EPA intends to exercise its enforcement discretion on a site-specific basis if the tenant, in a reasonable and appropriate manner considering all the circumstances and to the extent its lease permits: (1) does not dispose of hazardous substances on the property; (2) provides legally required notices; (3) takes reasonable steps with respect to hazardous substance releases; (4) provides cooperation, assistance and access; (5) complies with land use restrictions and institutional controls; (6) complies with information requests and
administrative subpoenas; and (7) does not impede any response action or natural resource restoration.6 See CERCLA §§ 101(40) and 107(r).

2 See “Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA (“Common Elements”)” (Bromm, 3/6/2003); and “Bona Fide Prospective Purchasers and the New Amendments to CERCLA” (Breen, 5/31/02). These documents may be found at: http://www.epa.gov/compliance/resources/policies/ cleanup/superfund/common-elem-guide.pdf and http://www.epa.gov/compliance/resources/policies/cleanup/ superfund/bonf-pp-cercla-mem.pdf respectively.
3 See, e.g., Commander Oil v. Barlo Equip. Corp., 215 F.3d 321 (2d Cir. 2000) (holding that certain lessees may have the requisite indicia of ownership vis-à-vis the property to be de facto “owners” for the purposes of CERCLA liability).4 Note that if the tenant is otherwise affiliated with the PRP owner or has an affiliation with another responsible party at the site, the lease is designed to allow the landlord or tenant to avoid its CERCLA liability, or the tenant is potentially liable for reasons other than its status as a tenant, then EPA will likely decline to exercise its enforcement discretion.
5 See discussion at footnote 4 above.

 


III. Tools to Address Tenant Liability Concerns
The statutory protections found at CERCLA § 107(r)(1) and §101(40) are self-implementing, and EPA generally will not be involved with facility-specific transactions or determinations of BFPP status. There may be instances on a site-specific basis, however, where EPA determines that it would be necessary and appropriate to address a tenant’s liability concerns through an existing tool or policy (e.g., a comfort/status letter or a prospective lessee agreement).7 In addition, EPA may use such tools on a case-by-case basis where it is appropriate to address liability concerns of tenants not covered by this guidance.
IV. Agency Contacts
EPA welcomes comments on the guidance and its implementation. For more information, please contact Erin Smith at (202) 564-2038 (smith.erin@epa.gov) or Susan Boushell at (202) 564-2173 (boushell.susan@epa.gov), in the Office of Enforcement and Compliance Assurance, or Sven-Erik Kaiser at 202-566-2753 (kaiser.sven-erik@epa.gov), in the Office of Solid Waste and Emergency Response.
cc: Director, Office of Site Remediation and Restoration, Region I Director, Emergency and Remedial Response Division, Region II Director, Hazardous Site Cleanup Division, Region III Director, Waste Management Division, Region IV Directors, Superfund Division, Regions V, VI, VII and IX Assistant Regional Administrator, Office of Ecosystems Protection and
Remediation, Region VIII Director, Office of Environmental Cleanup, Region X Director, Office of Environmental Stewardship, Region I Director, Environmental Accountability Division, Region IV Regional Counsel, Regions II, III, V, VI, VII, IX, and X Assistant Regional Administrator, Office of Enforcement, Compliance, and
Environmental Justice, Region VIII Marcia E. Mulkey, Director, Office of Site Remediation Enforcement David R. Lloyd, Director, Office of Brownfields and Land Revitalization Mary Kay Lynch, Associate General Counsel, Office of General Counsel Bruce S. Gelber, Chief, Environmental Enforcement Section, Department of Justice EPA Tenants/BFPPs Workgroup EPA BART National Workgroup
6 Although there is no AAI requirement for a tenant with derivative BFPP status, a tenant may need to obtain information on the prior uses of the property to have an informed basis on which to comply with these requirements.
7See http://cfpub.epa.gov/compliance/resources/policies/cleanup/ for a listing of the available tools and policies.

New project to connect state and federal water systems

2 billion tons building stone to dam the Golden Gate

NEPA Blanket Purchase Agreement

***** UNDER SCHEDULE 899, SPECIAL ITEM NUMBER 899-1*****

The Contractor, as an Independent Contractor and not as an agent of the Government, shall furnish the necessary personnel, services, facilities, equipment and materials, unless otherwise provided by the contract, to provide National Environmental Policy Act (NEPA) Documentation to consist of a Project Management Plan, Environmental Assessments (EAs), and Environmental Impact Statements (EISs) in accordance with the Statement of Work, and specific installation sites identified on applicable Orders.

A Multiple Award GSA Blanket Purchase Agreement (BPA) will be established against which Firm-Fixed Priced Orders may be placed. The Government intends to award THREE (3) BPAs from this solicitation. Resultant Firm-Fixed Price Orders shall be competed among all Contractors.

Please see http://aec.army.mil/usaec/business/index.html  for more information on the NEPA Blanket Purchase Agreement Renewal.

This service is provided to you at no charge by US Army Environmental Command .

The rule of law is a legal maxim according to which no one is immune to the law . The phrase has been used since the 17th century, but the concept can be traced to ancient Greece. Aristotle gave it as, "law should govern". In Roman Law , a sovereign is personally immune ( legibus solutus ), but people with grievances may sue the treasury. [ 2 ]

One way to be free from the rule of law is by denying that an enactment has the necessary attributes of law. The rule of law has therefore been described as "an exceedingly elusive notion" [ 3 ] giving rise to a "rampant divergence of understandings". [ 4 ] A dichotomy can be identified between two principal conceptions of the rule of law: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. [ 5 ]

The rule of law also encompasses the idea that the law should consist of general principles and not make special exceptions of particular groups, individuals or residents of particular regions etc.

1 Energy: Many Superfund cleanups involve energy intensive technologies. Green remediation strategies focus on opportunities to improve energy efficiency and use renewable energy sources.
2 Air and atmosphere: Many Superfund cleanups involve onsite and offsite emissions that may be reduced by applying the most appropriate advanced technologies and sound field practices.
3 Water: Superfund cleanups may also involve consumption of water. Green remediation strategies focus on reducing water consumption, and reusing treated water.
4 Land and ecosystems: Superfund sites often involve degraded onsite and offsite ecosystems and may have conditions that make the site unsafe for human or other use. Green remediation strategies focus on remedial actions that minimize further harm to the area, protect land resources and ecosystems at or near the site, and foster the return of sites to ecological, economic, social, or other uses.
5 Materials and waste: Site remediation may use significant amounts of raw materials and sometimes generates its own hazardous and non-hazardous wastes, including materials and debris that often are shipped offsite. Green remediation strategies offer opportunities to reduce materials consumption and waste generation, use recycled and local materials and spent products, and purchase environmentally preferred products.

Funding (grants, loans, bonds, etc.)
Information current as of July 2009; please refer to www.dsireusa.org and the federal Web sites provided, or contact the points of contact identified above for more up to date information. Federal Incentives for Clean and Renewable Energy – Page 1
Department of Energy (DOE) Recovery and Reinvestment Funding Opportunities
www.energy.gov/recovery/funding.htm
The American Recovery and Reinvestment Act of 2009 (ARRA) designates $16.8 billion for the Office of Energy Efficiency and Renewable Energy (EERE) divided across several EERE programs, including funding opportunities for biomass, solar, and wind projects, and block grants, which provide funds to units of local and state government, Indian tribes, and territories to develop and implement projects to improve energy efficiency and reduce energy use and fossil fuel emissions in their communities.
Clean Renewable Energy Bonds (CREB)
www.irs.gov/pub/irs-drop/n-09-33.pdf
Provides 0% interest bonds to finance public sector renewable energy projects. ARRA authorizes the allocation of as much as $1.6 billion for CREBs.
USDA Rural Energy for America Program (REAP)
www.rurdev.usda.gov/rbs/busp/9006grant.htm
Provides agricultural producers and rural small businesses with funding for renewable energy systems. Grants are limited to 25% of a proposed project's cost, and a loan guarantee may not exceed $25 million.
U.S. Department of Treasury – Renewable Energy Grants
www.treas.gov/recovery
Authorized by ARRA, provides grants equal to 30% of the basis of the property for solar, fuel cells, small wind turbines, and other qualified facilities.
U.S. Department of Energy (DOE) – Loan Guarantee Program
www.lgprogram.energy.gov
Offers loan guarantees for energy efficiency, renewable energy and advanced transmission and distribution projects. ARRA extends the authority of the DOE to issue loan guarantees and appropriated $6 billion for the program.
Tax Incentives (abatements, deductions, credits, etc.)
Renewable Electricity Production Tax Credit (PTC)
www.irs.gov/pub/irs-pdf/f8835.pdf
Provides a per kilowatt hour (kWh) tax credit for electricity generated by qualified energy resources during the taxable year. ARRA revised the credit by: (1) extending the in-service deadline; and (2) allowing facilities that qualify for the PTC to opt instead to take the federal business energy investment tax credit (ITC) (see below) or an equivalent cash grant (see above) from the U.S. Department of Treasury. Preliminary guidance is at www.irs.gov/pub/irs-drop/n-09-52.pdf.

Business Energy Investment Tax Credit (ITC)
Provides a tax credit for equipment placed in service before 2016, including 30% for solar, small wind turbine, and fuel cells. ARRA expanded the credit and repealed a previous limitation on the use of the credit for eligible projects also supported by "subsidized energy financing."
Qualifying Advanced Energy Project ITC
www.dsireusa.org/library/includes/incentive2.cfm?Incentive_Code=US02F&State=federal&currentpageid=1&ee=1&re=1
Provides an ITC to encourage the development of a U.S.-based renewable energy manufacturing sector. In any taxable year, the investment tax credit is equal to 30% of the qualified investment required for an advanced energy project. Any taxpayer receiving this credit may not also receive the Business Energy ITC.
Renewable Energy Production Incentive (REPI)
apps1.eere.energy.gov/repi/
Provides per kWh annual incentive payments of 1.5¢/kWh to new qualifying renewable energy facilities.
Technical Assistance and Other Incentives
Modified Accelerated Cost-Recovery System (MACRS)
www.dsireusa.org/documents/Incentives/US06Fa.htm
Allows businesses to recover investment in certain property through depreciation deductions. ARRA extended the terms of the program.

Points of Contact

Internal Revenue Service, www.irs.gov
CREB and MARCS
IRS Public Information, (800) 829-1040
Renewable Electricity PTC, Federal Business Energy ITC
IRS Assistance for Businesses, (800) 829-4933
U.S. Department of Agriculture, Rural Business-Cooperative Service REAP, www.rurdev.usda.gov/rbs/, (202) 690-4730
U.S. Department of Treasury, www.ustreas.gov
Renewable Energy Grants, Qualifying Advanced Energy Project ITC
(202) 622-2000 or 1603Questions@do.treas.gov
U.S. Department of Energy, www.doe.gov, www.eere.energy.gov,
Recovery Funding,www.energy.gov/recovery/index.htm, (888) 363-7289
Loan Guarantees, Loan Guarantee Program Office, (202) 586-8336

Funding (grants, loans, bonds, etc.)
U.S. Environmental Protection Agency (EPA) Brownfields Grants
www.epa.gov/swerosps/bf/pilot.htm
Assessment Grants www.epa.gov/brownfields/assessment_grants.htm
Provides funding for a grant recipient to inventory, characterize, assess, and conduct planning and community involvement related to brownfield sites. An eligible entity may apply for up to $200,000 to assess a site. Assessment proposals may be submitted by coalitions of eligible entities to pool their grant funds. Assessment coalitions may submit only one proposal up to $1,000,000. The performance period for these grants is three years.
Cleanup Grants
www.epa.gov/brownfields/cleanup_grants.htm
Provides funding to brownfield properties that have been determined to have an actual release or a substantial threat of release for a hazardous substance. An individual applicant can apply for up to $1,000,000. Coalitions of eligible entities may apply together under one applicant for up to $1,000,000 per eligible entity. Loans may also be used at sites with a release or substantial threat of release of a pollutant or contaminant that may present an imminent or substantial danger to public health or welfare.
Revolving Loan Fund Grants
www.epa.gov/brownfields/rlflst.htm
Provides funding to brownfield properties that have been determined to have an actual release or substantial threat of release of a hazardous substance. An individual applicant can apply for up to $1,000,000. Coalitions of eligible entities may apply together under one applicant forup to $1,000,000 per eligible entity.
Job Training Grants
www.epa.gov.brownfields/jobs.htm
Provides funding up to $200,000 over two years. Applicants must establish procedures to ensure that graduates will be employed in brownfields and/or environmental work that involve the assessment, cleanup, and/or redevelopment of contaminated sites with a focus on the graduates’ respective communities.
Training, Research, and Technical Assistance Grants
www.epa.gov/brownfields/trta.htm
Provides funding for eligible entities or nonprofit organizations to provide brownfields training, research, and technical assistance to individuals and organizations. The maximum amount of funding available per applicant is $1,500,000. Applicants may propose performance periods of up to five years, with the maximum annual funding not to exceed $300,000.
Tax Incentives (abatements, credits, deductions, etc.)
Brownfields Tax Incentive
www.epa.gov/brownfields/bftaxinc.htm
Allows environmental cleanup costs at eligible properties to be fully deductible in the year incurred, rather than capitalized and spread over a period of years. Hazardous substances or petroleum must be present or potentially present on the property. The taxpayer must incur the eligible expenses for use in a trade or business or for the production of income; or the property must be properly included in the taxpayer’s inventory. The taxpayer must obtain a statement from a designated state agency verifying a property’s eligibility (see www.epa.gov/brownfields/stxcntct.htm for a list of contacts). The Brownfields Tax Incentive has been extended through December 31, 2009.

Technical Assistance

The Revitalization Handbook Addresses environmental cleanup liability risks associated with the revitalization of contaminated property or sites. Limitations on Liability There are different types of contaminated property in the United States. Prospective purchasers, developers, and lenders may hesitate to get involved with properties that have real or perceived contamination because they fear that they might be held liable under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the Resource Conservation and Recovery Act (RCRA). The vast majority of contaminated properties, however, will not require EPA’s attention under CERCLA, RCRA, or any other federal law. More often, the state will oversee any needed cleanup under the state laws, many of which provide liability relief to prospective purchasers. Additional state-specific liability relief information is provided in the State-specific Incentive Sheets. Additional private mechanisms such as insurance and indemnity provisions can further clarify and account for potential liability issues. Brownfields Amendments www.epa.gov/brownfields/sblrbra.htm In January 2002, CERCLA was amended through enactment of Public Law 107-118, ("Brownfields Amendments"). Among other things, the Brownfields Amendments address certain liability concerns to encourage redevelopment. The Brownfields Amendments provide new liability protection for certain parties: innocent landowner, contiguous property owner, or bona fide prospective purchaser (BFPP). To be eligible, parties must: conduct All Appropriate Inquiries in compliance with 40 CFR Part 312, prior to acquiring the property; comply with all Continuing Obligations after acquiring the property; and not be affiliated with any liable party.
United States
Quick Facts

Number of EPA CERCLIS Sites: 12,617

Sites identified for potential investigation under the federal Superfund Program

Number of EPA Brownfields Properties: 17,759

Properties being funded or addressed under the EPA Brownfields Program

There may be some overlap among the categories listed and sites listed may not represent all potentially contaminated sites in the United States.

Points of Contact

Office of Brownfields and Land Revitalization www.epa.gov/brownfields EPA Brownfields Grants www.epa.gov/swerosps/bf/pilot.htm, (202) 566-2777 Brownfields Limitations on Liability, The Revitalization Handbook www.epa.gov/brownfields/liab.htm, (202) 566-2777 Brownfields Tax Incentive Sven-Erik Kaiser, kaiser.sven-erik@epa.gov, (202) 566-2753

Obama Faltering on Pledge to Restore the Role of Science

One year after the White House was supposed to chart a new course for the role of scientists and the integrity of scientific information in government, federal employees and the public continue to await reform.

On March 9, 2009, President Obama issued a memo instructing the White House Office of Science and Technology Policy to develop within 120 days recommendations for ensuring scientific integrity in the federal government. Obama's memo identified six principles OSTP was to follow in crafting the recommendations.

For a time, things appeared to be progressing swimmingly. OSTP invited public comment on the development of the recommendations, and even allowed people to comment on specific principles via the office's blog.

But then the 120-day mark, July 9, 2009, passed without an announcement. The months continued to pass by and still, no recommendations on scientific integrity, let alone a plan for implementing those recommendations.

Now, on the one-year anniversary of the due date, criticism of the White House is increasing. The group Public Employees for Environmental Responsibility says the scientific integrity recommendations are still very much needed and points to the Obama administration's handling of the BP oil disaster as evidence:

The muddled federal response to the massive BP oil spill in the Gulf of Mexico illustrates a lack of scientific transparency and candor in agency decision-making. Key examples include –

Even amid such criticism, the White House remains silent. The White House's failure to, at the very least, provide the public with a status update on the scientific integrity principles is unacceptable – particularly when the issue involves restoring and maintaining integrity in government decisionmaking.

Update : Dan Froomkin at the Huffington Post points out that OSTP Director John Holdren discussed the scientific integrity recommendations on OSTP's blog June 18. Holdren wrote, “I am pleased to report here that the process, though slower than many (including myself) had hoped, has resulted in what I believe is a high-quality product that I anticipate finalizing and forwarding to the President in the next few weeks.”

AIG Asked Federal Judge To Deny Class-Action Status To Lawsuit Brought Against It By Other Insurance Companies

AIG asked a federal judge to deny class-action status to a lawsuit brought against it by other insurance companies, according to a Wall Street Journal report.
In documents that were filed in a federal district court in Illinois, lawyers for AIG accursed two insurers that are plaintiffs in the case of acting "at the behest" of Liberty Mutual Insurance.

 

AIG $2 Billion Treasury Backstop Shows Rating Firms' Influence

October 14, 2010,

Oct. 15 (Bloomberg) -- American International Group Inc.'s plan to exit U.S. ownership includes a new $2 billion backstop from the Treasury Department after credit raters said the company may need emergency capital as it regains independence.

The funds will be available when the government converts its preferred stake into common stock and can be drawn through March 2012 or until AIG sells at least $2 billion in shares, the New York-based insurer said in a Sept. 30 filing. AIG must maintain investment-grade ratings to execute its plan, which hinges on selling bonds and stock to private investors as the government withdraws support.

The 2008 bailout of AIG has been revised four times, swelling to $182.3 billion, in part to prevent rating downgrades that would trigger payments from AIG on mortgage-linked derivative contracts and hurt the firm's ability to attract insurance buyers. Moody's Investors Service, Fitch Ratings and Standard & Poor's have been criticized by lawmakers for giving top grades to housing-linked bonds before that market collapsed.

“By doing things like demanding more capital, rating firms have become the de facto regulator of AIG,” said Jonathan Hatcher, a Jefferies Group Inc. analyst in New York and a former Federal Deposit Insurance Corp. bank examiner. “This is very much a negotiation between AIG, the government and the rating agencies, and no one in that room wants egg on their face.”

The facility was created to address rating firms' concerns that AIG could be pressed for cash after the U.S. withdrawal begins in the first quarter, said two people with knowledge of the plan. AIG will owe a 5 percent dividend to Treasury on the funds, which are carved out of an existing bailout line. AIG paid 10 percent on Treasury's initial preferred stake and was then permitted to skip dividends as the bailout was revised.

‘Something Adverse'

“What do you do if something adverse were to happen in between the time the government winds down its support and the company fully completes its restructuring plan?” said Julie Burke, managing director at Fitch. Treasury's commitment “is a step to provide liquidity coverage during this interim period.”

AIG, once the world's largest insurer, protects property owners against natural disasters including hurricanes and earthquakes. Mark Herr, an AIG spokesman, and Mark Paustenbach, a Treasury spokesman, declined to comment.

The four main insurance rating firms, which include A.M. Best Co., affirmed their grades of AIG after the announcement last month of the company's restructuring plan. Standard & Poor's rates AIG's debt at A-, which is five levels higher than it would be without federal support.

‘Such Deference'

Moody's said that while the plan was a sign of progress, it raised the risk that the U.S. exits before AIG is ready. The firm “could become vulnerable if it does not fully revitalize its core operations and substantially exit non-core businesses before parting ways with the government,” Bruce Ballentine of Moody's said in an Oct. 4 note.

“Concerns about rating downgrades drove government policy in regard to AIG,” Elizabeth Warren, then-chairman of the Congressional Oversight Panel, wrote in June. “That this small group of private firms was able to command such deference from the federal government raises questions about their role within the marketplace and how effectively and accountably they have wielded their power.”

Rating firms provide judgments on how a debt issuer's actions may impact their credit grades, said Burke of Fitch and Ballentine of Moody's. Fitch “gives our opinions and highlights any positives or shortcomings but we don't set terms, all we do is provide our opinion,” Burke said.

Ballentine said that Moody's analysts “are observers, and we make credit judgments on steps the company has taken.”

Life Insurance

The facility will be created when Treasury converts its $49.1 billion investment in AIG into common stock for sale to the public, the company said.

As part of the restructuring, AIG will retire its Federal Reserve credit line, using sale proceeds of two non-U.S. divisions, AIA Group Ltd. and American Life Insurance Co. AIG will use as much as $22 billion from an existing Treasury line to help cover separate Fed obligations.

To repay remaining commitments, AIG may use additional funds from the sale of AIA, Alico, and a pair of Japan insurers. MetLife Inc. has agreed to buy Alico for about $15.5 billion, Prudential Financial Inc. struck a deal to acquire the Japan units for $4.8 billion, and AIA is planning a public offering in Hong Kong.

If necessary, AIG will also repay the U.S. with proceeds from sales of its Taiwan unit, plane-leasing business and stakes in mortgage-linked bonds contained in separate bailout funds.

Bailed Out

The insurer was first rescued in September 2008 by the Fed after rating downgrades triggered collateral payments to trading partners. Its bailout included a $60 billion Fed credit line, a Treasury investment of as much as $69.8 billion and up to $52.5 billion to buy mortgage-linked assets owned or backed by AIG.

Rating firms may have downgraded AIG if the government hadn't restructured its bailout in November 2008 and again in March 2009 to improve AIG's liquidity, Treasury Chief Restructuring Officer Jim Millstein said in May. Concern about rating actions also constrained the government's ability to demand discounts from AIG's trading partners as they wound down derivatives, he said.

Downgrades below investment grade would have been a “death knell” to AIG's ability to sell policies, Millstein said.

--With assistance from James Sterngold in New York. Editors: Dan Kraut, Dan Reichl

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

Uncle Leon, we never knew you

 

COMING TOGETHER FOR THE SAFE WATERSHED REFORM-ACT:

MILITARY JUSTICE - VETERANS BENEFITS - BOUNTY WARRANT FREEHOLD

FEASIBILITY

Iron Mountain Mine strategy outlines specific action to ensure a protective remedy within the Superfund statutory and regulatory framework, as established by the Comprehensive Environmental Response, Compensation, and Liability Act and the National Oil and Hazardous Substances Pollution Contingency Plan. Opportunities to decrease the environmental footprint and maximize the environmental outcome of a cleanup exist throughout a project life. Iron Mountain Mine Superfund Remediation Strategy sets out current regulation of the Superfund Remedial Program to eliminate the demand placed on the EPA during delisting.

Many of the strategic actions can be addressed through policy and guidance compliance, resource development, and attention to the rule of law:

 

SPRING CREEK WATERSHED - SUGARLOAF WATER DISTRICT

Attorney General Cuccinelli rails against EPA

Update: Governor Manchin Sues EPA

October 6, 2010 tags: EPA , mountaintop removal mining , administrative law , coal mining by Rhead Enion

West Virginia Governor Joe Manchin announced Tuesday that West Virginia is filing suit to, as the Governor put it, stop EPA's “attempts to destroy the coal-mining industry and our way of life.”  The Charleston Gazette has a good summary of the suit .  The suit seeks to invalidate EPA's recent review of Clean Water Act permits for mining and block EPA from implementing a stricter water quality standard.  Front and center will be the Spruce Mine mountaintop removal (MTR) permit, currently under EPA review (see my earlier blog post here ).

Taking a page from the environmentalists' playbook, West Virginia will focus on whether EPA met its procedural requirements—such as public comment—when considering stricter standard and reviewing the MTR permit.

Governor Manchin is running for the Senate seat formerly occupied by the late Senator Robert Byrd.  Polling to date shows a very close race , and Governor Manchin will certainly take advantage of what, at least in West Virginia, would be considered positive press.  (The Governor did claim that the suit has been in the works since before Senator Byrd's death.)

The law firm representing West Virginia in the suit, curiously enough, is Bailey and Glasser: the same firm that won an appeal about ten years ago after the late U.S. District Judge Charles H. Haden basically shut down mountaintop removal by prohibiting mining waste in permanent and seasonal streams.  Judge Haden's ruling was a monumental, if short-lived, achievement for the environmental movement and is described in Coal River .

 

Thursday's top of the scroll: Army Corps new report, “Building Strong Collaborative Relationships for a Sustainable Water Resources Future”

 

the Dodd-Frank financial reform bill , signed into law this July, requires extractive companies listed on the New York Stock Exchange to disclose payments to governments . The provision was supported by Publish What You Pay , an international civil society coalition promoting transparency for extractive industries. President Obama highlighted the law in his address to the United Nations on Sept. 23.

13. United States - State Relationship. The relationship between the United States
and the State regarding this Consent Decree and oversight and support of the Work by the Site
Operator shall be governed by the Memorandum of Understanding Regarding The Iron
22 1 Mountain Mine Superfund Site Between The United States Environmental Protection Agency
and The California Department Of Toxic Substances Control and The California Central Valley
Regional Water Quality Control Board ("MOU"), attached hereto as Appendix H.
A. Oversight and Support Agencies. EPA shall serve as the Oversight
Agency, and the State plaintiffs shall designate the State agency(ies) that will serve as the

Support Agency unless and until EPA and the State plaintiffs modify this relationship as set
2 forth in the MOU.

AIG to Repay TARP; ‘Glimpsing Sunshine'

October 11th, 2010

Article by Meg Green

Copyright: A.M. Best Company, Inc.
Source: BestWire Services

American International Group Inc.'s top officer said the company is “glimpsing sunshine” as it announced plans to repay its debt to the federal government, plus said it would sell two Japanese life insurance companies to U.S.-based life insurer Prudential Financial Inc. for $4.8 billion.

“You'll recall that in early August, we said we could see the light at the end of the tunnel,” said Robert Benmosche, chief executive of AIG, in an audio statement on the company's website. “Today, we are glimpsing at a lot of sunlight — an awful lot of sunlight.”

He said the announcement marks a momentous step forward for AIG, “and a new beginning for all of us.”

AIG Star Life Insurance Co. Ltd. and AIG Edison Life Insurance Co. Ltd. will be sold to Prudential Financial (NYSE: PRU) for $4.2 billion in cash, and Prudential will assume $600 million in third-party debt under the agreement.

Under the plan to repay its government bailout, AIG would pay back $20 billion in senior secured debt under the Federal Reserve Bank of New York Credit Facility through parent company resources and proceeds from the disposal of AIG assets, including the planned initial public offering in Hong Kong in late October of its Asian life insurance unit, AIA Group.

AIG said it expects AIA to generate at least $2 billion in operating profit for the fiscal year ended Nov. 30, 2010, ahead of AIA's IPO. AIG has moved forward with its IPO plans for AIA after a proposed $35.5 billion sale to U.K.-based Prudential plc fell through in June (BestWire, Sept. 28, 2010).

AIG also said its pending $15.5 billion sale of American Life Insurance Co. to MetLife Inc. would help fund the repayment.

The insurance group will also seek to return the FRBNY's $26 billion holding of preferred interest in two AIG-related special-purpose vehicles through proceeds from future asset monetizations.

AIG said it would also convert the remaining $49.1 billion in Troubled Asset Relief Program preferred shares outstanding into stock to be held by the U.S. Treasury. With that exchange, Treasury will own 92.1% of AIG's common stock. AIG said the conversion will not take place until after the FRBNY credit facility is repaid in full, and the U.S. Treasury is expected to sell its stake in AIG on the open market.

Industry watchers had warned that if the shares are sold too quickly, it could dilute the value of the company and its stock.

 

Although these actions will result in a streamlined and — through the reduction of debt — strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. government provision of support, including availability of significant liquidity, A.M. Best Co. commented. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources, A.M. Best said.

Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent). A.M. Best said AIG's issuer credit rating of bbb is unchanged following the announcement and that the rating outlook remains negative.

As of Sept. 20, AIG (NYSE: AIG) still owed the U.S. government about $128.2 billion in debt (BestWire, Sept. 20, 2010).

Japan is “a market we know well. A market where we've had great success and momentum over the last 30 years,” said John Strangfeld, chairman and CEO of Prudential Financial, in a conference call Sept. 30.

Strangfeld noted Japan is the third-largest economy in the world, and the second-largest life insurance market. The acquisition of the AIG companies will allow Pru to broaden its distribution and “significantly increase the scale of our operations in Japan.”

The AIG Star and AIG Edison transactions are expected to close in the first quarter of 2011, subject to regulatory approval and other closing conditions.

The transaction is expected to result in a $1.2 billion pretax goodwill impairment charge on AIG's third-quarter results.

Shares of AIG were trading at $37.93 the morning of Sept. 30, up 1.28% from the previous close.

Shares of Prudential were trading at $54.10, down 4.30%. Prudential Insurance Company of America currently has a Best's Financial Strength Rating of A+ (Superior).

(By Meg Green, senior associate editor, BestWeek: Meg.Green@ambest.com )

Originally Posted at InsuranceNewsNet on September 30, 2010 by Meg Green.

OLDWICK, N.J., SEPTEMBER 30, 2010
A.M. Best Co . has commented that the issuer credit rating of "bbb" of American International Group, Inc . (AIG) (New York, NY) [NYSE: AIG] is unchanged following the announcement of actions to restructure the financial assistance provided to AIG by the U.S. Treasury Department and the Federal Reserve Bank of New York (FRBNY). The rating outlook remains negative. The ratings of all AIG subsidiaries are unchanged.

The announcement of a plan to repay the FRBNY Credit Facility and to convert the various ownership interests of the U.S. Government to common equity, which will ultimately be sold to public investors, marks the beginning of the final phase of the process begun in September 2008 to stabilize AIG. While the specific details of the plan are now being made public, it has been the expectation since the initiation of the government's involvement that such involvement would not be permanent. As such, the announcement of this final plan is not itself a trigger for rating action by A.M. Best.

Under the proposal, the line of credit extended to AIG by the FRBNY will be repaid before the end of the first quarter of 2011, primarily using proceeds from the initial public offering of AIA Group Limited (AIA) and the previously-announced sale of American Life Insurance Company (ALICO) to MetLife, Inc . In addition, most of the preferred interests in special purpose vehicles (SPVs) established to facilitate the sale of AIA and ALICO currently held by the FRBNY will be transferred to the U.S. Treasury Department in a series of transactions. These two actions will result in the repayment of the outstanding balance on the FRBNY Credit Facility of approximately $20 billion and termination of the Facility.

Following the transactions above, the $49 billion of Series E and F preferred shares held by the U.S. Treasury as well as the Series C preferred shares held by the AIG Credit Facility Trust will be converted into approximately 1.7 billion common shares, which the Treasury will sell over time as market conditions permit. The Treasury's preferred interest in the SPVs will be redeemed through future asset monetizations of designated assets, and these obligations are without recourse to AIG.

Concurrently, the FRBNY and U.S. Treasury have agreed to create a bridge finance facility of approximately $2 billion derived from the Series F preferred shares. These Series F shares will be converted to Series G mandatory convertible preferred stock, which will be available for AIG to draw upon until March 31, 2012, or until AIG completes its primary equity offering of no less than $2 billion, whichever occurs first. The Series G will automatically convert into AIG Common Stock on March 31, 2012, unless it is not drawn or is drawn and redeemed prior to that date.

Although these actions will result in a streamlined and—through the reduction of debt—strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. Government provision of support, including availability of significant liquidity. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources. A.M. Best will continue to monitor the execution of the multi-faceted plan and will review the ratings as events emerge.

Ten-Year Swap means an agreement reached between the Company and the Scheduled
Contractor whereby the Scheduled Contractor is prepaid for the first ten years of Expected
Clean-Up Costs and the Company receives certain financial assurances as more fully described
in the Agreement for Insurance for and Work at the Iron Mountain Superfund Site.
oo. Termination Date means the earliest of the following:
1. The ending date of the period set forth in Item 3 of the Declarations; or
2. Cancellation of the Policy pursuant to Section VI, Paragraph F.
pp. Trust One means the Iron Mountain Mine Remediation Trust I, established pursuant to, and
governed by, the laws of the State of California, which shall hold certain rights, title, and other
interests with respect to certain plant and fixed equipment at the Site.
QQ. Trust Two means the Iron Mountain Mine Remediation Trust II established pursuant to,
and governed by, the laws of the State of California and established to qualify as a trust
established pursuant to Section 4688 of the United States Internal Revenue Code.

12. Financial Assurance
a) In the event the Company ceases to be at least "A rated" by A.M. Best, or an equal or better
rating by a leading industry rating agency, should A.M. Best not exist, the Company shall provide
prompt notice to the Named Insureds and financial assurance in one or more of the following
forms:
1. A

(f) Financial test and corporate guarantee for closure. (1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of either paragraph (f)(1)(i) or (ii) of this section:

(i) The owner or operator must have:

(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and

(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(ii) The owner or operator must have:

(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and

(B) Tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(2) The phrase “current closure and post-closure cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§264.151(f)). The phrase “current plugging and abandonment cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§144.70(f) of this title).

(3) To demonstrate that he meets this test, the owner or operator must submit the following items to the Regional Administrator:

(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and

(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.

(4) An owner or operator of a new facility must submit the items specified in paragraph (f)(3) of this section to the Regional Administrator at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal.

(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Regional Administrator within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.

(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must send notice to the Regional Administrator of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.

(7) The Regional Administrator may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (f)(1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (f)(3) of this section. If the Regional Administrator finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, the owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.

(8) The Regional Administrator may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Regional Administrator will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.

(9) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:

(i) An owner or operator substitutes alternate financial assurance as specified in this section; or

(ii) The Regional Administrator releases the owner or operator from the requirements of this section in accordance with §264.143(i).

(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a “substantial business relationship” with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (8) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). The certified copy of the guarantee must accompany the items sent to the Regional Administrator as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a “substantial business relationship” with the owner or operator, this letter must describe this “substantial business relationship” and the value received in consideration of the guarantee. The terms of the guarantee must provide that:

(i) If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.143(a) in the name of the owner or operator.

(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Regional Administrator. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Regional Administrator, as evidenced by the return receipts.

(iii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Regional Administrator within 90 days after receipt by both the owner or operator and the Regional Administrator of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.

demonstration that the Company satisfies the requirements of 40 C.F.R. Part 264.143(f)

for the Terminal Payment;
2. A guarantee to perform the obligations of the Company under the Terminal Payment by one
or more parent corporations or subsidiaries, or by one or more unrelated corporations that
have a substantial business relationship with the Company;
3. A surety bond guaranteeing the Terminal Payment;
4. One or more irrevocable letters of credit equaling the Terminal Payment; or
5. A trust fund.
b) If the Company seeks to provide financial assurance through a guarantee by a third party
pursuant to Paragraph a.2 above, the Company shall demonstrate that the guarantor satisfies the
requirements of 40 C.F.R. Part 264.143(f). If the Company seeks to demonstrate its ability to
provide financial assurance by means of the financial test or the corporate guarantee pursuant to
paragraph a.2 it shall resubmit sworn statements conveying the information required by 40 C.F.R.
Part 264.143(f) annually, on the anniversary of the effective date of the Policy. In the event that
the Oversight Agency, after a reasonable opportunity for review and comment by the Support
Agency, determines at any time that the financial assurances provided pursuant to this section
are inadequate, the Company shall, within 30 days of receipt of notice of the Oversight
Agency's determination, obtain and present to the Oversight Agency for approval one of the
other forms of financial assurance listed above. The Company's inability to demonstrate financial
ability to perform under the Policy shall not excuse performance of such activities.
c) The Company may change the form of financial assurance provided under this section at any
time, upon notice to and approval by the Oversight Agency, provided that the new form of
assurance meets the requirements of this section. In the event of a dispute, the Company may
change the form of the financial assurance only in accordance with the final administrative or
judicial decision resolving the dispute.


Advancing Sustainable Agriculture Through the Committee on World Food Security

Last year, the United States joined the global community in endorsing the Rome Principles for the eradication of hunger and global food insecurity. The principles recognize that no one country alone, no matter how generous, can win the fight to end hunger, and they embrace not only the coordinated action of the donors and our developing country partners, but also include a strong role for the multilateral organizations. The United States regularly participates in all global multilateral organizations related to hunger relief and food security. In fact, as the U.S. Representative, my team and I serve as the leaders for our work in the various Rome-based forums.

This week, I, along with Ambassador Patricia Haslach, Deputy Coordinator for Diplomacy for the Global Hunger and Food Security Initiative, and an interagency team from the U.S. State Department, USAID, the Millennium Challenge Corporation, and the U.S. Department of Agriculture are representing the United States at the 36th Committee on World Food Security (CFS). The CFS is a unique international body — one where all stakeholders, including member states, civil society organizations, and the private sector, are represented.

Working together with our partners, we will create a CFS that serves as the global platform for sharing best practices , identifying gaps, and creating tools that will support the work of countries to develop and implement their own sustainable agriculture programs. These tools will include a mapping instrument that will help us all better understand the results realized from our agriculture and nutrition related investments and activities. We're also working to ensure that CFS supports locally owned and created country-led processes. The country-led process represents a key factor in our Feed the Future Initiative . This process recognizes the importance of empowering countries while providing the tools necessary to accelerate the growth of their agricultural sector, reduce food insecurity, and improve nutrition, particularly in young children.

Reducing global food insecurity and malnutrition is no easy task. But, I am reasonably optimistic that we will reach our goal. This week, I witnessed the true value of the CFS (and the work of the United States) in this fight to end hunger and malnutrition when representatives from Rwanda, Bangladesh , and Haiti each made presentations. Their presentations included honest stories of the challenges they have faced in their countries and what they are doing to overcome those obstacles. By sharing their experiences and lessons learned, they in turn helped the international community (particularly other developing countries) understand how to better implement sustainable food security strategies and ultimately eliminate hunger and improve nutrition worldwide.

 

AIG currently has the equivalent of a single-A-minus credit rating from Moody's Investors Service and Standard & Poor's, but that investment-grade rating is largely due to the financial support the U.S. government has provided.

Absent government support, AIG would have a noninvestment-grade, or "junk," credit rating. AIG chief executive Robert Benmosche has said the company is trying to get its "stand-alone" rating back to single-A, which would entail sharply lowering its debt, maintaining or improving the profitability of its insurance businesses, reducing risk and disposing of noncore units. Last week, AIG reached a deal to sell 80% of its debt-heavy and loss-making consumer-finance business, removing a key drag on its finances.

Over the past year, various banks and insurers that received funds from the Treasury's Troubled Asset Relief Program repaid what they owed the government after raising money from investors from stock and debt sales. "A necessary step for other institutions was accessing the capital markets on their own before they went to the government with a plan to repay TARP," said Robert Riegel, managing director of Moody's U.S. Insurance team. He notes, however, that AIG's situation is more complicated because of the size and scale of its bailout.

Much of what AIG owes the New York Fed is expected to be repaid with cash from asset sales, though a portion could come from new debt issues. The annual interest rate on AIG's loan from the New York Fed is currently about 3.35%.

The regional Fed bank is looking to recoup a separate $55 billion in equity holdings from sales of AIG's overseas life insurance businesses and from mortgage securities previously linked to the insurer. The Treasury Department separately has a $49 billion investment in AIG preferred shares, some of which are widely expected to be converted in the future into AIG common stock and sold to investors.

According to MarketWatch, following the latest news, Standard & Poor's Rating Services announced that it would maintain AIG's credit rating at A-, but plans to conduct a review in light of the plan, which it called “a positive credit development.” S&P is likely to raise its stand-alone credit rating for the firm from BB to BBB+, and possibly even higher by the end of 2010.

 

Determining AIG's Worth

The rules for push-down accounting, which the Securities and Exchange Commission's staff laid out in a 2001 memo , hinge on rigid numerical tests for determining if a company has become “substantially wholly owned” by another entity. The method is prohibited with less than 80 percent ownership, permitted if ownership is 80 percent or more but less than 95 percent, and required (with some exceptions) at 95 percent or more.

The process works like this. When a transaction or series of deals results in a company becoming substantially owned by another entity, the new owner allocates its purchase price among the assets and liabilities it acquired, using their newly assigned fair values. Those values then are pushed down to the acquired company, which can cause either positive or negative adjustments to the items on its balance sheet.

Real World Numbers

The effects of push-down accounting on AIG's books probably would be sizeable. As of June 30 , AIG said 54 percent of the $850.5 billion of assets on its balance sheet were measured at fair value on a recurring basis, meaning 46 percent weren't. Just 4 percent of its $745.9 billion of liabilities were.

One example of an asset carried at cost, rather than fair value, is a $29 billion line on AIG's books called deferred acquisition costs, which include sales commissions and other expenses related to acquiring and renewing customers' insurance policies. These deferred costs aren't saleable. It is money out the door. Their fair value wouldn't be anywhere close to $29 billion in the real world. Yet that figure represented 38 percent of AIG's shareholder equity as of June 30.

Other fair-value adjustments could result in increases to AIG's equity. For instance, AIG said the fair values for some liabilities were lower than what its balance sheet showed.

An AIG spokesman, Mark Herr , declined to comment for this column, as did a Treasury spokesman, Mark Paustenbach . My guess is that neither Treasury nor AIG wants to highlight that push- down accounting is back on the table as an option. If more investors knew that it was, they just might demand the additional transparency.

IX. ACCESS AND INSTITUTIONAL CONTROLS
3 22. The Settling Parties shall comply with the access and institutional control
4 requirements contained in the Access Agreement attached to this Consent Decree as Appendix
5 M.
6 23. The Site Operator shall comply with the access and institutional control
7 requirements contained in the SOW.
8 24. If the Oversight Agency or the Support Agency determines that land/water use
9 restrictions in the form of state or local laws, regulations, ordinances or other governmental
10 controls are needed to implement the interim remedies selected in the RODs, ensure the
11 integrity and protectiveness thereof, or ensure non-interference therewith, the Site Operator
12 shall cooperate with the efforts of the Oversight Agency or Support Agency to secure such
13 governmental controls, in accordance with the SOW.
14 25. Subject only to the provisions of this Consent Decree governing the specific
15 rights and obligations of the Released Parties and the Site Operator, the United States and the
16 State retain all of their access authorities and rights, as well as all of their rights to require
17 land/water use restrictions, including enforcement authorities related thereto, under CERCLA,
18 RCRA and any other applicable federal or state law, statutes, or regulations.
19 X. REPORTING REQUIREMENTS
20 26. The Site Operator shall comply with all reporting requirements as specified in
21 the SOW.

 

5. MATTERS NOT COVERED BY THE CONSENT DECREE.
5.1 Decisions relating to remedy selection.
5.1.1 Decisions regarding selection of future remedial actions. The Parties to
this MOU agree that with respect to any future investigation and remedy
selection regarding the IMM Site, the Parties will follow the process and
procedures set forth in CERCLA and the NCP. The Parties further
understand and agree that nothing in the MOU limits the State's rights
under Section 114 of CERCLA or any other applicable law, or the rights
and responsibilities of any Party under Section 121 of CERCLA or any
other applicable law.
5.1.2 Decisions regarding amending prior remedial actions. The Parties to
this MOU agree that with respect to adopting an ESD or amending the

remedial actions in place at the time of the entry of the Consent Decree or
remedies implemented after the entry of the Consent Decree, EPA and the
State will follow the process and procedures set forth in CERCLA and the
NCP. The Parties further understand and agree that nothing in this MOU
limits the State's rights under Section 114 of CERCLA or any other
applicable law, or the rights and responsibilities of any Party under
Section 121 of CERCLA or any other applicable law.
5.1.3 Waiver of ARARs for existing and future RODs. The Parties to this
MOU agree to consider the appropriateness of a permanent waiver of the
applicable or relevant and appropriate requirement ("ARAR") with respect
to the standard for receiving waters, including, but not limited to Spring
Creek, as to existing and future RODs for the IMM Site. If at some point
EPA determines that no further RODs will be issued for the IMM Site,
EPA will inform the State in writing at the earliest possible date and the
issue of the waiver of ARARs will be reviewed as soon as thereafter as
practicable.
5.1.4 Changes to CERCLA. If in the future CERCLA changes in a material
manner so as to impact the expectation of the Parties with respect to the
process arid procedure for amending remedies at a federal Superfund site,
the Parties will agree to meet and formulate a process for future remedy
selection that is consistent with applicable state and federal laws in force at
that time.

IMMI's STRATEGY FOR ACHIEVING THE SAFE WATERSHED REFORM-ACT (SWR)

Court for the Eastern District shall be held at Redding.

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HJZkgsS

28 USC 84 - Sec. 84. California

US Code - Title 28: Judiciary and Judicial Procedure

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HIWPdJQ

 

a private party may “recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 551 U.S. 128, 131

October 11, 2010 CERCLA 'Arranger' Liability Narrowed

 

See also Madison 's explanation of the purpose of the 9 th Amendment in response to Hamilton 's objection in Federalist 84 :

1. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general (i.e. Federal) government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the 4 th resolution (i.e. the original draft of the 9 th amendment)” (James Madison, U.S. House of Representatives, June 8, 1789)

 2. “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution” (An early version of the 9 th amendment—the last clause of the 4 th resolution—as submitted by James Madison, June 8, 1789).

 

 

CERCLA allows PRPs to seek contribution from one another in order to apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs.

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.”

BRICK FLAT LIME SLUDGE FOR SALE - 500K TONS AVAILABLE

IRON MOUNTAIN MINE IS IN THE LIBRARY OF CONGRESS

Treasury puts AIG TARP loss at $5 billion

Posted by Colin Barr October 5, 2010 3:51 pm

The government's most controversial bailout is still under water, if just barely.

Treasury said Tuesday in its two-year retrospective on the Troubled Asset Relief Program that the net cost of TARP's AIG ( AIG ) bailout at current market prices is $5.1 billion. The cost of the AIG bailout has been subject of considerable head scratching in recent days, with TARP winding down and the terms of federal assistance to AIG changing for the umpteenth time .

 

Moody's Investors Service affirmed American International Group's (AIG) A3 long-term issuer rating and negative outlook, reflecting the rating agency's concerns about the possible end of government support for the insurer.

The Moody's announcement comes in the wake of AIG's announcement of its plan to repay the U.S. Government.

Under the plan, AIG said it would repay its $20 billion direct debt to the Federal Reserve Bank of New York (FRBNY) and the $26 billion in interest the FRBNY has in two special purpose vehicles (SPVs) using its own resources and proceeds from other assets, including an initial public offering of American International Assurance Co. Ltd (AIA) on the Hong King Stock Exchange and proceeds from the $15.5 billion sale of American Life Insurance Co. (ALICO) to MetLife Inc.

Additionally, as part of the plan, $49.1 billion of preferred shares held by the Treasury Department would be converted into about 1.66 billion shares of AIG common stock. The Treasury will then sell the shares to the public over time.

Bruce Ballentine, Moody's lead analyst for AIG, said in a statement, “The proposed repayment plan signals AIG's progress in stabilizing its core insurance operations and exiting noncore businesses. It also points the way toward a sustainable capital structure.”

However, Moody's added that the plan “hastens the end of explicit government support for AIG, which has been an important consideration in the company's ratings.”

Moody's noted that the government will retain significant ownership of AIG for the near term, but the rating agency said it “believes that the ownership stake and implicit support will decline over the next couple of years. Therefore, the ratings of AIG and its subsidiaries will increasingly depend on their stand-alone credit profiles, raising the risk of downgrades if the credit metrics do not improve as expected.”

To attain a stable rating, Moody's said AIG must improve the intrinsic credit profiles of Chartis and SunAmerica Financial Group (SFG). AIG must also exit or de-risk noncore businesses, maintain robust liquidity within its major operations, and develop a standalone capital structure consistent with the company's current ratings.

Moody's said AIG could be downgraded if it fails to “improve certain credit metrics of the core insurance operations, such as profitability, reserve adequacy at Chartis and investment performance at SFG.”

Retention of noncore business risks that could strain capital and liquidity, and an inadequate standalone capital structure could also lead to a downgrade, Moody's said.

EPA Observes Children's Health Month

Dam Inspection By Owner

Scholar

PDF] COURT OF APPEALS FOR THE NINTH CIRCUIT

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Ex rel. TWO MINERS & 360, 2744, 4400, 8000, 52,000, 103 million ACRES of LAND ... TW ARMAN
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Explaining the AIG exit

Andrew Ross Sorkin's column today is entirely based on what he learned talking to Jim Millstein, the chief restructuring officer at Treasury, who seems to be very happy to talk now that he's officially announced Treasury's plan to exit its investment in AIG. I spoke to him for 70 minutes this afternoon, and now have a much clearer idea of how Treasury is thinking, how its math works, and why there's a disconnect between Treasury and critics like Kid Dynamite .

Millstein made a number of interrelated points.

First, the really big picture here is being missed. There's now an end in sight to a huge and enormously complex corporate restructuring, of an entity — AIG — which was too big to fail, too big to manage, and which had an enormous black hole at its heart known as AIG Financial Products. Today, AIG is set to emerge as a viable entity roughly half its former size, small enough to fail, with the black hole gone. That's not only a substantial achievement; it's also a good proof of concept when it comes to the FDIC's new resolution authority.

This involved a big strategic change of direction at AIG and Treasury. When Treasury installed Ed Liddy as AIG CEO in the immediate aftermath of the bailout, says Millstein, the idea was very much to sell off everything — essentially, to liquidate AIG entirely. But that's no longer the vision: instead, the idea is now to keep AIG going as a good-sized US insurance company, with a very strong property and casualty franchise and a solid life insurance franchise to boot. That company looks as though it's going to be worth something north of $60 billion, given its inherent profitability and general stock-market valuations of insurers.

But there's an enormous difference between an insurance company you're trying to liquidate, on the one hand, and an insurance company which you want to survive as a going concern, on the other: it's not just a difference of taking various assets off the auction block. Rather, it all comes down to credit ratings: in order to be viable as a going concern, any insurance company needs a solid investment-grade credit rating.

If AIG was just selling off its assets or putting its insurance operations into run-off mode, then its credit rating wouldn't matter so much — although the higher AIG's credit rating, the easier it becomes to unwind AIGFP's derivatives positions without facing enormous margin calls. But Treasury looked at the bids that AIG was receiving for its assets, and determined that they were being lowballed by the likes of MetLife, since potential buyers smelled a fire sale. As a result, Treasury needed to credibly be able to say that it didn't have to sell off all AIG's assets.

In order to do that, Treasury needed to take a large chunk of AIG's debt and convert it into some kind of equity. That's why Treasury ended up owning tens of billions of dollars in preferred stock: the ratings agencies don't consider preferred stock to be debt, and so they disregard it when assigning their ratings.

Now a lot of the arithmetic being done by the likes of Sorkin and KD is based on that preferred stock essentially being debt. After all, that's how AIG itself shows it on their website. But it's a very peculiar kind of debt: in fact, to a first approximation, it really is that nerdy joke, the zero-coupon perpetual bond. There's a dividend associated with the preferred stock, but AIG is under no obligation to pay it, and it's non-cumulative: if AIG doesn't pay the dividend then it doesn't remain on AIG's books as any kind of obligation. And there's no maturity date, either. So the obligation that AIG has to Treasury is essentially zero: it has to pay back $0 per year, in perpetuity.

The only real value to the preferred stock is that unless and until AIG starts paying the coupon, it can't make any dividend payments on its common stock. So the preferred stock is not entirely without value. But no one in their right mind would actually pay money for it.

So when Treasury swaps its preferred stock for common stock, it's swapping something with essentially zero secondary-market value for something much more liquid and marketable.

Of course, Treasury brought this on itself, back in February 2009, when it swapped cumulative preferred stock paying a 10 percent coupon for new non-cumulative preferred stock. Without that move, there would never have been any equity value in AIG at all — AIG would have been a loss-making entity in perpetuity. But of course Treasury owns most of the equity in AIG, so it essentially made the decision to swap debt in an insolvent AIG for equity in a solvent AIG. And the reasoning was that the liquidation value of an insolvent AIG was much lower than the market value of a solvent AIG which could operate as a going concern.

At some point, Treasury was always going to insist on converting its new zero-coupon perpetual bonds into something a bit more useful, like secured debt or unsecured debt or cumulative preferred stock or common stock. They were always a halfway house, a way of getting here from there. And in the end, Treasury decided that the easiest and most profitable thing to do would be to just convert them all into common stock.

I'm not sure I would have made the same decision. AIG is making about $8 billion a year at this point, which is more than enough to support a bit more in the way of debt without making too much of a dent in its credit rating. If Treasury had converted say $20 billion of its current preferred stock into new preferred stock paying a 5% coupon, that would pay Treasury $1 billion a year in perpetuity, and could probably be sold at or near par. Instead, that $1 billion a year is being valued on a p/e basis in the stock market, at between $8 billion and $12 billion. That's less than the $20 billion (ish) it would be worth if it looked more like debt.

But Treasury wants to exit its investment, and selling $20 billion of perpetual AIG preferred stock would be decidedly non-trivial. Selling AIG stock is a lot easier. So Treasury decided to simply convert everything to common stock, in an attempt to get out of the insurance business as quickly as possible.

Looked at this way, it's silly to assign hard dollar values to the Series E and Series F preferred stock and then complain when they're being swapped for equity worth less than that sum. Instead, the only number which matters is the total amount of money which Treasury ends up getting from selling off bits of AIG and, ultimately, AIG itself. And there's a secondary consideration, too: Treasury wants to do that sell-off as quickly as possible.

Treasury's exit strategy certainly maximizes the speed of the sell-off. And Millstein makes a credible case that at the end of the day, Treasury is going to get out of AIG more money than it put in — some $13 billion or so in profit. That sum is not nearly commensurate with the risk that Treasury took when it bailed out the insurer. But really, Treasury had no choice: when it was bailed out, AIG had a whopping $2.4 trillion in derivatives contracts, which would have caused major systemic consequences if they had been unwound in a Lehman-style forced liquidation. We would all be much poorer, today, if AIG had not been bailed out. Any profit on the bailout is just gravy.

So it's easy to get caught up in the weeds here. But rather than getting caught up with the relative valuations of Series C and Series F, the big picture is relatively simple: Treasury put about $47.5 billion into AIG, and the Fed added a bunch more. The Fed is soon going to get paid off in full, with interest. And Treasury is going to end up with an equity stake in AIG worth something north of $60 billion; it's optimistic that it'll be able to sell that stake in the market, much like it's selling off its Citigroup stake right now. That equity stake is a matter of choice; Treasury could have structured things many other ways, and probably could have ended up with something less liquid but more valuable if it had wanted to do so.

Millstein is a fan of common equity, and is looking forward to the day when he can start selling off the government's AIG stake in the secondary market. Then we'll be done with AIG, we won't have big losses to show for it, and we will have dealt with the AIGFP black hole in the interim. It's a pretty impressive achievement, all told. And the technical dynamics of exactly what the government is doing with its current slightly peculiar preferred stock are ultimately something of a distraction.

(A couple of footnotes, which don't fit into the broader narrative: right now, AIG has the right to borrow $22 billion more from Treasury, in the form of that Series F perpetual zero-coupon preferred stock, at any time. Under this exit plan, AIG has to use that whole credit line to pay off the Fed, and then needs to repay it with various asset sales, including the sale of the assets it's getting from the Fed. So the plan puts Treasury at less risk that suddenly it will have no choice but to send lots of money to a hungry AIG. And, AIG won't only be an insurance company: for the time being, it still owns an aircraft leasing company called ILFC. But it has said that ILFC is non-core, and it will be happy to sell it at the right price.)

 

It is well established that subject matter jurisdiction cannot be expanded or contracted “by prior action or
consent of the parties.” Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951)

 

NCP, 40 CFR§300.435(f)(2), states, “A remedy becomes ‘operational and functional' either one year after construction is complete, or when the remedy is determined concurrently by EPA and the State to be functioning properly and is performing as designed, whichever is earlier.

 

AG-GEL ESSENTIAL SOLUTIONS BROCHURE

 

Army Dam Inspection

Description

The Engineer Research and Development Center's (ERDC) Dam Inspection Team uses a mix of in-house personnel, Corps of Engineers' District personnel, and civilian consultants to help the U.S. Army Directorates of Public Works maintain compliance with regulations regarding dam safety.

Federal agencies are required by Public Law 92-367, as amended by Public Law 104-303, to inspect dams under their jurisdiction and to biennially report the data to the National Inventory of Dams (NID).

The ERDC Dam Inspection Team assists the Army's Installation Management Command and individual Army installations in complying with the Army's policy, as stated in Army Regulation 420-1. Army policy also requires that each installation have a current Emergency Action Plan (EAP) for each of the high- and significant-hazard dams and an EAP Standard Operating Procedure for low-hazard dams.

COURT MARSHALL OF THE EASTERN DISTRICT

Interior Does About-face on Scientific Integrity

This week, the Interior Department released a new policy to protect scientific integrity in the department. OMB Watch joined other public interest groups in submitting comments on the department's draft policy in September. The new policy attempts to address concerns, raised in those comments and others, that the draft policy did not go far enough to prevent abuses of the department's scientific activities and decision making.

Seal of the U.S. Department of the Interior

The new policy, released as an order of Interior Secretary Ken Salazar, drops many of the specifics of the draft policy. Instead, it establishes principles designed to be consistent with President Obama's 2009 scientific integrity memo . The particulars of the policy will be detailed in a future addition to the department's employee manual, as well as guidance and implementation plans developed by Interior bureaus and offices.

The new policy was praised by public interest groups including the Union of Concerned Scientists and Public Employees for Environmental Responsibility , who had criticized the earlier draft.

Interestingly, the new policy mentions that government-wide guidance on scientific integrity is "expected" in 2010 from the White House Office of Science and Technology Policy. That guidance, ordered in 2009 as part of the president's memo, is now more than a year overdue . Interior's statement suggests the guidance may finally be released before the end of this year.

( Gavin Baker 10/01/10;

Senate Could Vote on Food Safety Bill after Elections

On Wednesday, Senate Majority Leader Harry Reid filed a cloture motion on the beleaguered FDA Food Safety Modernization Act, according to Food Safety News.

As anyone who has been following the bill knows, this is not an insignificant development. Reid has said on several occasions that he wanted to take up the bill by this or that date – most recently before the Senate recessed for elections – but has failed to schedule debate or a vote.

The bill has support from Democrats, Republicans, consumer advocates, and the food industry. However, Reid had to file cloture on the bill, because Sen. Tom Coburn (R-OK) objected to an attempt to bring the bill to a vote under unanimous consent. Because of Coburn – who lodged his grievances with the bill only recently even though it cleared the committee stage in 2009 – the Senate will have to debate the bill and hold a procedural vote before passing it, a more time-consuming process.

As Food Safety News points out, the bill will have to compete with other priorities when the Senate returns:

Now the languishing measure may be one of the first bills up for consideration in November when Congress reconvenes after the election, although it will compete with a variety of high profile issues, including a defense authorization bill and whether to extend the Bush tax cuts. 

The FDA Food Safety Modernization Act isn't out of the woods yet, but this does provide some hope, and Reid was wise to make a move before the recess.

( Matthew Madia 10/01/10;

 

 

"EPA is attempting to address a problem which simply is not there." Rich Hillman, vice president of the Arkansas Farm Bureau.

"Farmers, ranchers, and foresters "are increasingly frustrated and bewildered by vague, overreaching, and unnecessarily burdensome EPA regulations,"

Chair of the Senate Committee on Agriculture, Nutrition and Forestry Blanche Lincoln

" You're hammering the little guy," Nebraska Republican Mike Johanns told EPA administrator Jackson.

Senator John Thune, a South Dakota Republican, delivered a blunt message from his constituents:

"The Environmental Protection Agency has become Public Enemy Number One of our farmers and ranchers."

CONTACT:
EPA Press Office
press@epa.gov

FOR IMMEDIATE RELEASE
September 30, 2010


EPA Administrator Addresses Farm, Ranch, and Rural Communities Federal Advisory Committee

Agency announces new committee members

WASHINGTON – Today U.S. Environmental Protection Administration Administrator Lisa P. Jackson addressed the newly-appointed members of the Farm, Ranch, and Rural Communities Federal Advisory Committee (FRRCC) during their first official meeting since being appointed. The FRRCC is an independent committee, established by EPA in 2008, that advises the agency on a wide range of environmental issues of importance to agriculture and rural communities. EPA also announced the new committee members, who were appointed in May.

This morning's remarks highlighted Administrator Jackson's ongoing efforts to engage American farmers and highlight opportunities for cooperation between the environmental and agricultural communities. Her speech follows EPA Deputy Administrator Bob Perciasepe's tour of Northern California farms last week, where he met with local farmers to see and discuss efforts from the agricultural sector to protect our nation's natural resources.

“EPA is working to ensure that American farmers, ranchers and rural communities are more environmentally sustainable and economically resilient than ever before,” said EPA Administrator Lisa P. Jackson. “America's farmers have a broad impact on everything from daily food prices to widespread environmental impacts to emerging fuel technologies. We need them to be part of our decision making process, and this meeting is yet another step in our engagement with the agricultural community.”

The new FRRCC members include: Steven S. Balling, Ph.D. (Chair), Del Monte Foods; Michael W. Brubaker, Senate of Pennsylvania; Suzy Friedman, Environmental Defense Fund; Steve McNinch, Western Plains Energy; Bill Snapp, Shoshone-Bannock Tribes; Peggy Beltrone, Cascade County Commission; Robert T. Burns, Ph.D., University of Tennessee; Omar J. Garza, Texas Mexico Border Coalition; Martha L. Noble, National Sustainable Agriculture Coalition; Alice Ann Sorenson, Ph.D., American Farmland Trust; George J. Boggs, Whatcom Conservation District; Gabriela Chavarria, Ph.D., Natural Resources Defense Council; Lee McDaniel, Harford Soil Conservation District; David D. Petty, Iowa River Ranch; G. Douglas Young (Deputy Chair), Spruce Haven Farm and Research Center; A. Richard Bonanno, Ph.D.; University of Massachusetts, Lawrence E. Clark, Farm Pilot Project Coordination; Tom McDonald, JBS Five Rivers Cattle Feeding; Jennie S. Hughes Popp, Ph.D., University of Arkansas; Ray E. Vester, E & M Farms Partnership; Daniel A. Botts, Florida Fruit and Vegetable Association; James W. Ford, Square “O” Consulting; Janis McFarland, Ph.D., Syngenta Crop Protection; Larry D. Sanders, Ph.D., Oklahoma State University; Lori A. Berger, Ph.D., California Specialty Crops Council; Robert L. Carlson, North Dakota Farmers Union; Archilus L. Hart, North Carolina Department of Agriculture; Bill Northey, Iowa Department of Agriculture and Land Stewardship; and Dennis H. Treacy, Smithfield Foods.

More information on the FRRCC: http://www.epa.gov/ocem/frrcc/

 

 

 

Due Process and the EPA's Enforcement of CERCLA: The Problem with Big Business Challenges to a Small Business Problem
Scott Corley
affiliation not provided to SSRN


April 15, 2010


Abstract:
In the past few years, a number of challenges have been mounted against the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically a challenge mounted by the General Electric Company has asserted that the Environmental Protection Agency's (EPA) pattern and practice of enforcing CERCLA violates due process under the Ex Parte Young and Mathews v. Eldridge tests.

Using an assertion that constitutional challenges to CERCLA are only likely to succeed when (1) the property interest infringed by the government is not strictly monetary; (2) the statute calls for a complete lack of pre-deprivation procedures; and (3) the statute's purported delay of review actually results in the complete preclusion of review, this paper argues that the EPA's enforcement of CERCLA raises serious constitutional concerns when it is applied against small businesses, but not when it is enforced against large corporations. This is because large corporations like GE will be able to bear the decontamination costs associated with CERCLA and still mount judicial challenges at the end of the process while smaller businesses will lose financing due to potentially astronomical environmental cleanup costs and penalties that can escalate at a rate of nearly $1 million per month. The result is that the statute's purported delay of review actually completely precludes review for smaller businesses but not for large corporations.

For this reason, the strongest argument that can be made concerning the constitutionality of the EPA's enforcement of CERCLA arises when environmental liabilities are imposed on small businesses. Ultimately, this context provides the clearest evidence that certain provisions of CERCLA have been enforced in a way that has violated the due process rights of certain potentially responsible parties (PRPs).

Keywords: EPA, CERCLA, Pattern and Practice, Due Process, General Electric v. Jackson, PRPs, UAOs, Mathews v. Eldridge, Ex Parte Young

Working Paper Series

 

EPA Should Revise Outdated or Inconsistent EPA-State Clean Water Act Memoranda of Agreement
What We Found
NPDES MOAs between EPA and States do not ensure Agency management control and effective oversight over a national program administered by States that is capable of providing equal protection to all Americans. EPA Headquarters does not hold EPA regional or State offices accountable for updating their MOAs when necessary and relies on other planning and management mechanisms to exercise control over State programs. However, MOAs are critical because they are the common denominator for State-authorized programs and should represent a common baseline. Outdated MOAs or MOAs that are not adhered to reduce EPA’s ability to maintain a uniform program across States that meets the goals of CWA sections 101 and 402. An effective national program must maintain consistent management control and oversight of State programs.
What We Recommend
We recommend that EPA ensure that all NPDES MOAs contain essential elements for a nationally consistent enforcement program, including CWA, Code of Federal Regulations, and State Review Framework criteria. We recommend that EPA develop and provide a national template and/or guidance for a model MOA; direct EPA regions to revise outdated or inconsistent MOAs to meet the national template and standards; and establish a process for periodic review and revision of MOAs, including when the CWA or Code of Federal Regulations are revised or when State programs change. Finally, we recommend that EPA establish a national, public clearinghouse of all current MOAs so that EPA, States, and the public have access to these documents.
EPA generally agreed with our recommendations, saying it would coordinate assessment and revision of NPDES MOAs with implementation of the CWA Action Plan. Three recommendations are open and one recommendation is listed as undecided. In its final response to this report, EPA should provide estimated or actual completion dates for all recommendations.

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe the problems the OIG has identified and corrective actions the OIG recommends. This report represents the opinion of the OIG and does not necessarily represent the final EPA position. Final determinations on matters in this report will be made by EPA managers in accordance with established audit resolution procedures.
The estimated cost of this report – calculated by multiplying the project’s staff days by the applicable daily full cost billing rates in effect at the time and adding travel costs – is $660,519.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this report within 90 calendar days. You should include a corrective actions plan for agreed-upon actions, including milestone dates. Your response will be posted on the OIG’s public Website, along with our comments on your response. Your response should be provided in an Adobe PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended. If your response contains data that you do not want to be released to the public, you should identify the data for redaction. We have no objections to the further release of this report to the public. This report will be available at http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact Wade Najjum at (202) 566-0832 or najjum.wade@epa.gov, or Dan Engelberg at (202) 566-0830 or engelberg.dan@epa.gov.

EPA’s Enforcement Performance Has Been Questioned
In 2005, EPA initiated the State Review Framework, a formal process using standardized criteria, collaboratively developed by OECA, EPA regions, States, and the Environmental Council of the States, to gauge State performance in compliance assurance and enforcement. EPA wanted to increase its oversight inspections and other direct actions in the States. EPA reviewed State data, inspection and enforcement files, negotiated commitments, management discussions with the State, and other existing assessments. Through its reviews, EPA identified four programmatic deficiencies in State enforcement: data quality, identification of significant violations, the timeliness of enforcement actions, and penalties.
In October 2009, the EPA Administrator testified before the House Transportation and Infrastructure Committee that EPA was falling short of expectations for effective and fair enforcement of the CWA:
Data available to EPA shows that, in many parts of the country, the level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low. For example, one out of every four of the largest Clean Water Act dischargers had significant violations in 2008. Many of these violations were serious effluent violations or failure to comply with enforcement orders. The government’s enforcement response to these violations is uneven across the country. For example, a violation in one State results in the assessment of mandatory minimum penalties, while in another State, no enforcement action is taken for the same violation. This situation creates a competitive disadvantage for States that are enforcing the law. We need to change this. Strong and fair compliance and enforcement across the country is vital to establishing a level playing field for industrial facilities, preventing some regions from attempting to achieve an economic advantage over others.

Both GAO and the EPA OIG have frequently reported on problems with the EPA-State enforcement relationship, noting key issues such as data quality, identification of violations, issuing enforcement penalties and other enforcement actions in a timely and appropriate manner, and general oversight issues. See Appendix B for a list of reports on these issues.
In its October 2009 testimony before the House Transportation and Infrastructure Committee, GAO reported that longstanding issues impact EPA and State enforcement efforts.2 For example, findings from a GAO enforcement report in 2000 demonstrated that local variations among EPA’s regional offices led to inconsistencies in the actions they take to enforce environmental requirements.3 In 2004, the EPA OIG responded to a congressional request to review the Region 3 NPDES program.4 In part, the OIG found that the MOAs between the States and Region 3 were all more than 10 years old at the time and included outdated requirements. These MOAs had not been revised as of the date of this report.

1 Testimony of Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency, Before the Committee on Transportation and Infrastructure, U.S. House of Representatives, October 15, 2009. http://www.epa.gov/ocir/hearings/testimony/111_2009_2010/2009_1015_lpj.pdf.

MOAs Are Missing Key Regulatory Requirements
MOAs were missing key requirements of Title 40 CFR 123.24. MOA documents also lacked MOA-specific program regulations contained in Title 40 CFR 123.26 and 123.27. For each of the 46 criteria, OIG rated the MOA as a “0” (does not address this element), “1” (addresses the element in some way), or “2” (addresses the element verbatim or in synonymous language). Figure 2-1 shows that across all regulatory criteria, MOAs did not contain 39 percent of the criteria, and that 61 percent of regulatory criteria are either not addressed or only partially addressed. EPA should define the requirements for management control of a nationally consistent enforcement program, and then review each State MOA to determine which MOAs are adequate and which MOAs need to be revised.

MOAs did not address key regulatory requirements for MOA documents. For example, the CFR requires that States establish data management systems to support their compliance evaluation activities. Twenty percent of the MOAs did not contain any language about a data management system. This does not mean the State does not have such a system or that the system is not discussed in another document. However, because the primary, required document, the MOA, does not mention it, EPA cannot readily determine whether there is nationwide uniformity in data management systems.
MOAs also did not include a number of the additional regulatory program requirements contained in Title 40 CFR 123.26 and 123.27. These additional requirements correspond to the programmatic deficiencies that OECA identified in its first-round State Review Framework evaluations (data quality, identification of significant violations, the timeliness of enforcement actions, and penalties). For example, the CFR requires that States establish minimum civil penalty policies, such as the ability to assess at least a $5,000 penalty per day for each NPDES violation. The State Review Framework identified penalty calculation as a comprehensive weakness. Fifty-four percent of MOAs did not include any language about minimum civil penalty standards (i.e., received a score of “0” for this element). Only 1 of the 46 MOAs specified that the minimum penalty per day, per violation, would be $5,000 (a score of “2”).
MOAs most comprehensively addressed the MOA-specific regulations (CFR 123.24), containing these requirements 77 percent of the time. MOAs contained fewer requirements in the non-MOA-specific monitoring and inspections section (65 percent for CFR 123.26) and fewest in the enforcement section (36 percent for CFR 123.27). For example, 63 percent of the MOAs did not include language verifying that no other State enforcement agreement could override the MOA, as required by CFR 123.24(c). Eighty percent of MOAs did not note whether the State had the authority to enter any permitted facility (123.26(c)). Figure 2-2 shows how the percentage of missing regulations varied according to the CFR section under review.
EPA Could Establish a National Baseline for CWA Implementation with an MOA Template
EPA faces a significant challenge: to implement a nationally consistent enforcement program that offers equal protection from pollution to all Americans. By renegotiating outdated or inconsistent MOAs according to a national template, EPA can establish a current baseline for national consistency. A national template could also ease the MOA negotiation process. EPA should identify the key requirements that should be delineated in MOAs, including the other programmatic concerns disclosed through the CFR and issues uncovered during OECA’s State Review Framework, and incorporate them into a national template.
The officials of OECA, EPA regions, and State organizations we spoke with agree that MOAs are out of date and should be renegotiated, but OECA also pointed out that the process could face State resistance because it might require considerable resources. Enforcement managers and officials in two of the four regions we spoke with indicated that MOA renegotiation would be a low priority for them and would require them to remove resources from other enforcement activities. However, in our opinion, the management control benefit justifies the resource requirement. For example, as a result of renegotiating MOAs, Region 4 enforcement staff reported that they improved baseline management control over EPA-State enforcement relationships. In the face of a disagreement over responsibilities, regional staff said they show State program staff where an enhanced requirement is written in the updated MOA, and the State program staff then carry out the requirement.
Staff from each region we interviewed and other stakeholders agreed that an EPA Headquarters model MOA would be beneficial in determining MOA adequacy.

Region 4 developed a regional template for use in its MOA renegotiations. Regional enforcement officials reported that the template did not change much between the beginning and end of negotiations. A Region 10 enforcement program manager suggested that a model MOA that would serve as a foundational reference document could help to clarify the core oversight responsibilities. Region 10 staff stated that a model MOA could identify EPA and State expectations with respect to inspection, timely follow-up, data quality, transparency, and adequate response. In addition, the Environmental Council of the States said its member States would be interested in discussing a model MOA.
Conclusion
The current state of the MOAs means that EPA cannot assure it has effective management control over State programs that assures the public that CWA objectives are being achieved. EPA has not established a national template defining the key requirements necessary for current, robust MOAs. In addition, EPA has not developed a periodic review system to determine which MOAs remain adequate and which need to be revised to remain current with changing regulations. MOAs should establish the foundations for nationally consistent enforcement, defining the baseline roles and responsibilities for EPA and States. MOAs should also be the basis for assessing States’ ability and commitment to administer EPA’s NPDES program in accordance with the CWA. The CFR requires MOAs to outline the basic parameters of the EPA-State relationship and ensure CWA goals are being met through State-authorized programs. To ensure that MOAs fulfill their intended function, EPA must put in place a system that maintains and oversees consistent management controls over State programs. To ensure transparency and accountability, EPA should maintain a publicly available MOA repository, making these documents available to all States, EPA regions, and the public.
Recommendations
We recommend that the Deputy Administrator:
2-1 Develop a national MOA template including essential requirements derived from the updated CWA, CFR requirements, and State Review Framework findings.
2-2 Develop a systematic approach to identify which States have outdated or inconsistent MOAs; renegotiate and update those MOAs using the MOA template; and secure the active involvement and final, documented concurrence of Headquarters to ensure national consistency.
2-3 Establish a process for reviewing MOAs on a regular basis, taking into account legislative and management changes that affect the adequacy of the MOA.
2-4 Maintain a publicly available repository of MOAs.
Agency Response and OIG Comment
EPA’s Deputy Administrator provided the Agency response, coordinating comments from OECA and OW. The Deputy Administrator generally agreed with these recommendations and provided an outline of corrective actions that he would take in response to the recommendations.
The Deputy Administrator agreed with recommendations 2-1, 2-3, and 2-4.
In response to recommendation 2-2, the Deputy Administrator stated that renegotiating MOAs with States can be time consuming and may not be always be the best use of EPA resources. Deficiencies in State enforcement programs may be better addressed through other solutions and approaches. The Deputy Administrator proposed that OECA and OW integrate MOA assessment into a coordinated State program review process to identify and correct MOAs that present the greatest barriers to State program performance.
The OIG responds by noting that the draft report and the final report both make mention of the other mechanisms EPA uses to manage programs, even noting that there is a layered system of management controls (see page 2, for example). However, the report emphasizes that while EPA uses other mechanisms, the only required mechanism is the authorization MOA. The way in which EPA regions and States use other mechanisms varies, but the MOA is the only document that each State must have. For this reason, it is important that authorization MOAs be up to date and compliant with the CFR.
While acknowledging EPA’s need to maintain flexibility, the OIG believes that MOAs are a critical building block of State enforcement programs. Depending on how it is constructed, a systematic State program review process that contains a strategy for updating outdated or inconsistent MOAs could address our recommendation. We will list the status of recommendation 2-2 as “undecided,” and list the other recommendations as “open.” We look forward to a detailed strategy and timeline for implementation in the Agency’s 90-day response to this final report.

List of CFR Criteria for MOA Assessment1
CFR
Criterion
1
123.24(a)
MOA executed by the State Director and the Regional Administrator and approved by Administrator
2
MOA meets all requirements of paragraph (b)
3
MOA has no provisions restricting EPA’s statutory oversight responsibility
4
123.24(b)
Provisions for prompt transfer from EPA to the State of pending permit applications and any other relevant program operation information
5
MOA contain procedure for transfer of any existing permits for administration
6
MOA contain specific procedure for transfer of administration if a State lacks administration authority for permits issued by Federal government
7
MOA contain provisions specifying classes and categories of permit applications, draft permits, and proposed permits for Regional Administrator review
8
MOA contain provisions specifying the frequency and content of reports, documents and other information which the State is required to submit to EPA
9
MOA contain provisions allowing EPA to routinely review State records, reports, and files relevant to the administration and enforcement of the approved program
10
MOA contain provisions for coordination of compliance monitoring activities by the State and by EPA and EPA inspection of select facilities or activities within State
11
MOA contain procedures to assure coordination of enforcement activities
12
MOA contain provisions, when appropriate, for joint processing of permits by the State and EPA for facilities or activities which require permits from both EPA and the State under different programs per § 124.4
13
MOA contain provisions for modification of the MOA in accordance with this part
14
123.24(c)
MOA, the annual program grant and the State/EPA Agreement should be consistent. If the State/EPA Agreement indicates that a change is needed in the Memorandum of Agreement, the Memorandum of Agreement may be amended through the procedures set forth in this part.
15
State/EPA Agreement cannot override MOA
16
123.24(d)
MOA specify the extent to which EPA will waive its right to review, object to, or comment upon State-issued permits under section 402(d)(3), (e) or (f) of CWA
17
123.26(a)
State programs shall have procedures for receipt, evaluation, retention and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for possible enforcement of failure to submit these notices and reports).
18
123.26(b)
State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements.
19
The State shall maintain a program which is capable of making comprehensive surveys of all facilities and activities subject to the State Director's authority to identify persons subject to regulation who have failed to comply with permit application or other program requirements. Any compilation, index or inventory of such facilities and activities shall be made available to the Regional Administrator upon request;
20
The State shall maintain a program for periodic inspections of the facilities and activities subject to regulation.
1 MOA assessment excludes the review of 123.24(b)(ii) and 123.27(e) as noted within the Scope and Methodology.
18
10-P-0224
CFR
Criterion
21
These inspections shall be conducted in a manner designed to: Determine compliance or noncompliance with issued permit conditions and other program requirements;
22
These inspections shall be conducted in a manner designed to: Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and other forms supplying monitoring data; and
23
These inspections shall be conducted in a manner designed to: Verify the adequacy of sampling, monitoring, and other methods used by permittees and other regulated persons to develop that information;
24
The State shall maintain a program for investigating information obtained regarding violations of applicable program and permit requirements; and
25
The State shall maintain procedures for receiving and ensuring proper consideration of information submitted by the Public about violations. Public effort in reporting violations shall be encouraged, and the State Director shall make available information on reporting procedures.
26
123.26(c)
The State Director and State officers engaged in compliance evaluation shall have authority to enter any site or premises subject to regulation or in which records relevant to program operation are kept in order to copy any records, inspect, monitor or otherwise investigate compliance with the State program including compliance with permit conditions and other program requirements. States whose law requires a search warrant before entry conform with this requirement.
27
123.26(d)
Investigatory inspections shall be conducted, samples shall be taken and other information shall be gathered in a manner (e.g., using proper “chain of custody” procedures) that will produce evidence admissible in an enforcement proceeding or in court.
28
123.26(e)
Maintaining a comprehensive inventory of all sources covered by NPDES permits and a schedule of reports required to be submitted by permittees to the State agency;
29
Initial screening (i.e., pre-enforcement evaluation) of all permit or grant-related compliance information to identify violations and to establish priorities for further substantive technical evaluation;
30
When warranted, conducting a substantive technical evaluation following the initial screening of all permit or grant-related compliance information to determine the appropriate agency response;
31
Maintaining a management information system which supports the compliance evaluation activities of this part; and
32
Inspecting the facilities of all major dischargers at least annually.
33
123.27(a)
To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment;
34
Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment.
35
To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit;
36
To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows:
37
Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation.
19
10-P-0224
CFR
Criterion
38
Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation.
39
Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation.
40
123.27(b)
The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation.
41
The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act;
42
123.27(c)
A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation.
43
Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations;
44
In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended:
45
123.27(d)
Any State administering a program shall provide for public participation in the State enforcement process by providing either:
46
Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in §123.26(b)(4); (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action.

Catalyst for Improving the Environment

Citations for: Withdrawal of Proposed Rules; Discontinuing Rulemaking Efforts Listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions

Explore citations and references

Citations

 

 

Inhofe Says EPA's New Boiler Rule Could Kill Nearly 800,000 Manufacturing Jobs

 

Congress punts tough vote until after November election

Yolo Congressman says Dems care only about themselves By The Associated Press and Democrat staff

WASHINGTON - A deeply unpopular Congress is bolting for the campaign trail without finishing its most basic job - approving a budget for the government year that begins on Friday. Lawmakers also are postponing a major fight over taxes, two embarrassing ethics cases and other political hot potatoes until after the Nov. 2 elections.

With their House and Senate majorities on the line, Democratic leaders called off votes and even debates on all controversial matters.

Northern California Congressman Wally Herger said "by deciding to adjourn Congress to begin their fall campaigns without stopping trillions of dollars in job killing tax hikes, it's clear that the only jobs House Democrats truly care about are their own."

Herger, who is a Repbublican representing the 1st Congressional District, stated "millions of small businesses, the backbone of American job creation, are faced with tax increases that will force them to shed more jobs to stay afloat."

 

AUGUST 31 - JUDICIAL - ADMINISTRATIVE - LEGISLATIVE REVIEW OF IRON MOUNTAIN MINE REMEDIATION BEGINS IN NINTH CIRCUIT COURT

 

FEMA 800-480-2520

External affairs 202-646-2781

Acquisitions 202-646-1275

"the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects." Madison wrote this before adoption of the 10th Amendment, which restates, "the powers not delegated to the United States by the Constitution ... are reserved to the states respectively, or to the people." This restriction of powers was intended to be the single greatest bulwark of American liberty.

The following grant opportunity postings were made on the Grants.gov Find Opportunities service:

NSF
National Science Foundation
Catalysis and Biocatalysis
Modification 2
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=50508



NSF
National Science Foundation
Environmental Implications of Emerging Technologies
Modification 4
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=46228



NSF
National Science Foundation
Environmental Sustainability
Modification 4
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=45815



NSF
National Science Foundation
Cooperative Studies Of The Earth's Deep Interior
Modification 2
http://www07.grants.gov/search/search.do?&mode=VIEW&oppId=45693

NIST Releases 2009 Department of Commerce Technology Transfer Report

Released: 10/15/2010 3:00 PM EDT
Source: National Institute of Standards and Technology (NIST)

Newswise — The National Institute of Standards and Technology (NIST) has released the 2009 Technology Transfer Report, an annual report summarizing the technology transfer activities and achievements of the U.S. Department of Commerce's scientific research agencies, including NIST, the National Oceanic and Atmospheric Administration and the National Telecommunications and Information Administration's Institute for Telecommunication Sciences. In addition to performance metrics, the report features anecdotes that demonstrate how investment in research and development improves the lives of American citizens and spurs the development of new products.

Technology transfer is an essential mission of federal laboratories that leverages the creative intellectual capital of government scientists and the nation's investments in science and technology to strengthen the American economy and the nation's ability to compete in world markets.

“Department of Commerce labs contribute to the economy through their research, research that results in the invention of new technologies or the improvement of existing technologies,” says Paul Zielinski, director of NIST's Technology Partnerships Office. “Transferring that technology from the public to the private sector translates taxpayer dollars into economic growth and the creation of new jobs.”

As one example of technology transfer, the report describes how NIST researchers, together with the Fire Protection Research Foundation, the Fire Department of New York City (FDNY) and the Polytechnic Institute of New York University, have studied the effects of wind on fires in high-rise buildings. Based on NIST's recommendations, the FDNY amended their standard operating procedures for apartment dwellings and produced new training materials to teach their 11,000 members how to employ these new technologies. This effort has caught the attention of firefighters worldwide.

An electronic version of this report and versions from previous fiscal years are available online. www.nist.gov/tpo/publications/upload/2009-Tech-Transfer-Rept-FINAL.pdf


 

Debate on Interior/EPA Spending Bill Indefinitely Postponed

September 16, 2010 by senatus

Senator Dianne Feinstein (D-CA) — who “oversees the Appropriations panel's subcommittee overseeing Interior Department and Environmental Protection Agency spending — said debate on the appropriations bill in the committee is indefinitely postponed, in part over concerns about efforts to delay EPA climate regulations,” The Hill reports.

“It's off the calendar,” Feinstein told reporters Thursday. “A decision will have to be made about whether it goes back on or out.”

EPA Stuns Industry with Plans to Kill Climate Leaders Program

May 19th 1980 Federal Register

 

INSTITUTIONAL CONTROLS

Institutional controls are non-engineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedy. Although it is EPA's expectation that treatment or engineering controls will be used to address principal threat wastes and that groundwater will be returned to its beneficial use whenever practicable, ICs play an important role in site remedies because they reduce exposure to contamination by limiting land or resource use and guide human behavior at a site. For instance, zoning restrictions prevent site land uses, like residential uses, that are not consistent with the level of cleanup.

Often, ICs are a critical component of the cleanup process and are used by the site manager to ensure both the short- and long-term protection of human health and the environment. For this reason it is important to understand what constitutes an IC. Specifically for EPA, ICs:

. are non-engineered instruments such as administrative and/or legal controls that minimize the potential for human exposure to contamination by limiting land or resource use;
. are generally to be used in conjunction with, rather than in lieu of, engineering measures such as waste treatment or containment;
. can be used during all stages of the cleanup process to accomplish various cleanup-related objectives; and,
. should be “layered” (i.e., use multiple ICs) or implemented in a series to provide overlapping assurances of protection from contamination.

ICs are vital elements of response alternatives because they simultaneously influence and supplement the physical component of the remedy to be implemented. On the one hand, the right mix of ICs can help ensure the protectiveness of the remedy; on the other, limitations in ICs may lead to reevaluation and adjustment of the remedy components, including the proposed ICs. At some sites, remedy contingencies may protect against uncertainties in the ability of the ICs to provide the required long-term protectiveness. These points illustrate how important it is for site managers to evaluate ICs as thoroughly as the other remedy components in the Feasibility Study (FS) or Corrective Measures Study (CMS), when looking for the best ICs for addressing site-specific circumstances. Adding ICs on as an afterthought without carefully thinking about their objectives, how the ICs fit into the overall remedy, and whether the ICs can be realistically implemented in a reliable and enforceable manner, could jeopardize the effectiveness of the entire remedy.

Often ICs are more effective if they are layered or implemented in series. Layering means using different types of ICs at the same time to enhance the protectiveness of the remedy. For example, to restrict land use, the site manager may issue an enforcement tool [e.g., Unilateral Administrative Order (UAO)]; obtain an easement; initiate discussions with local governments about a potential zoning change; and enhance future awareness of the restrictions by recording them in a deed notice and in a state registry of contaminated sites. Also, the effectiveness of a remedy may be enhanced when ICs are used in conjunction with physical barriers, such as fences, to limit access to contaminated areas.
ICs may also be applied in series to ensure both the short- and long-term effectiveness of the remedy. For example, the site manager may use an enforcement tool to require the land owner to obtain an easement from an adjacent property owner in order to conduct ground water sampling or implement a portion of the active remedy. This easement may not be needed for the long-term effectiveness of the remedy and is terminated when the construction is complete. At another site, the site manager may use an Administrative Order on Consent (AOC) or permit condition to prohibit the land owner from developing the site during the investigation. Later, the site manager may add a provision to the Consent Decree (CD) or the permit requiring the land owner to notify EPA if the property is to be sold and to work with the local government to implement zoning restrictions on the property.

CERCLA as amended by SARA, the NCP and RCRA support the use of ICs in remediation of a site:
CERCLA—Section 121(d)(2)(B)(ii)(III) refers to the use of enforceable measures (e.g., ICs) as part of the remedial alternative at sites. EPA can enforce the implementation of ICs, but not necessarily their long term maintenance. For example, the local government with zoning jurisdiction may agree to change the zoning of the site to prohibit residential land uses as part of the remedy, but the local government retains the authority to change the zoning designation in the future. EPA is authorized, under CERCLA section 104(j), to acquire (by purchase, lease or otherwise) real property interests, such as easements, needed to conduct a remedial action provided that the state in which the interest is to be acquired is willing to accept transfer of the interest following the remedial action. Transfers of contaminated Federal property are subject to special deed requirements under CERCLA sections 120(h)(3)(A)(iii) and 120(h)(3)(C)(ii)(I) and (II).
NCP—the NCP provides EPA’s expectations for developing appropriate remedial alternatives, including ICs under CERCLA. In particular, it states that EPA expects to use treatment to address the principal threats posed by sites; engineering controls for wastes that pose relatively low risk or where treatment is impracticable; and a combination of the two to protect human health and the environment [40 CFR 300.430(a)(1)(iii)(A), (B), and (C)]. In appropriate situations, a combination of treatment, containment, and ICs may be necessary. The NCP also emphasizes the use of ICs to supplement engineering controls during all phases of cleanup and as a component of the completed remedy, but cautions against their use as the sole remedy unless active response measures are determined to be impracticable [40 CFR 300.430(a)(1)(iii)(D)]. In the case where ICs are the entire remedy, the response to comments section of the preamble to the NCP states that special precautions must be made to ensure the controls are reliable (55 Federal Register, March 8, 1990, page 8706). Recognizing that EPA may not have the authority to implement such controls, the NCP requires that (for fund financed sites) the state assure that the ICs implemented as part of the remedial action are in place, reliable, and will remain in place after the initiation of operation and maintenance [40 CFR 300.510(c)(1)]. Lastly, for Superfund financed and private sites, the NCP also requires the state to hold any interest in property that is acquired (once the site goes into O&M) to ensure the reliability of ICs [40 CFR 300.510(f)].
RCRA—RCRA requirements are imposed through legal mechanisms different from those used under CERCLA. In RCRA, authorized states are the primary decision makers, this results in a wide variety of state-specific mechanisms being available. This fact sheet does not attempt to list all of the state and local IC mechanisms, but to identify key principles for the use of ICs. If the IC is being imposed through a RCRA permit, steps should be taken to ensure that long-term enforcement is not lost through property transfer or permit expiration. Cleanups under RCRA are conducted in connection with the closure of regulated units and facility-wide corrective action either under a permit [RCRA sections 3004(u) and (v)], interim status order [RCRA section 3008(h)] or imminent hazard order [RCRA section 7003] or other authorities. It should also be noted that landfill closure requirements under 40 CFR 264.119 require deed notices that the land has been used to manage hazardous waste, although the notice itself does not restrict future use. EPA expects to use a combination of methods (e.g., treatment, engineering, and institutional controls) under RCRA, as appropriate, to achieve protection of human health and the environment. EPA also expects to use ICs, such as water and land use restrictions, primarily to supplement engineering controls, as appropriate, for short- and long-term management to prevent or limit exposure to hazardous wastes and constituents. ICs are not generally expected to be the sole remedial action.

Proprietary Controls—These controls, such as easements and covenants, have their basis in real property law and are unique in that they generally create legal property interests. In other words, proprietary controls involve legal instruments placed in the chain of title of the site or property. The instrument may include the conveyance of a property interest from the owner (grantor) to a second party (grantee) for the purpose of restricting land or resource use. An example of this type of control is an easement that provides access rights to a property so the Potentially Responsible Party (PRP), facility owner/operator, or regulatory agency may inspect and monitor a groundwater pump-and-treat system or cover system. The benefit of these types of controls is that they can be binding on subsequent purchasers of the property (successors in title) and transferable, which may make them more reliable in the long-term than other types of ICs.
However, proprietary controls also have their drawbacks. Property law can be complicated because a property owner has many individual rights with respect to his or her property. To illustrate this point, property rights can be thought of as a bundle of sticks, with each stick representing a single right (e.g., the right to collect rents). The terminology, enforceability, and effect of each of these rights is largely dependent upon real property common law and the state where the site is located. A property owner can convey certain rights to other entities (either voluntarily or involuntarily through condemnation) and keep other rights. For example, if it is determined that a long-term easement is required to ensure remedy protectiveness, this “right” would need to be transferred by the property owner to another entity. For the easement to bind subsequent purchasers, some states require that the entity be an adjacent property owner. This may complicate long-term monitoring and enforcement since the party receiving the right (the grantee) is often not an adjacent property owner. To eliminate this problem, a proprietary control may be established “in gross.” This means that the holder of the control (the grantee) does not need to be the owner of the adjacent property. However, it should be noted that easements in gross may not be enforceable under the laws of some states. State property laws governing easements should therefore be researched before this type of IC is selected in order to determine its enforceability in that jurisdiction.
A distinction at Federal sites being transferred to the private sector is that CERCLA sections 120(h)(3)(A)(iii) and 120(h)(3)(c)(ii) and (iii) require that property interests be retained by the Federal government. At active Federal sites, proprietary controls may not be an option because a deed does not exist or the landholding Federal agency lacks the authority to encumber the property. However, the landholding Agency may be willing to enter a Memorandum of Understanding (MOU) with EPA and/or state regulators providing for specific IC implementation plans, periodic inspections and other activities which it will undertake (in lieu of deed restrictions) to assure that ICs for the active site will remain effective.
Enforcement and Permit Tools with IC Components—Under sections 104 and 106(a) of CERCLA, UAOs and AOCs can be issued or negotiated to compel the land owner (usually a PRP) to limit certain site activities at both Federal and private sites; CDS can also be negotiated at private sites under 122(d). Similarly, EPA can enforce permits, conditions and/or issue orders under RCRA sections 3004(a), 3004(u) and (v), 3008(h), or 7003. These tools are frequently used by site managers, but may also have significant shortcomings that should be thoroughly evaluated. For example, most enforcement agreements are only binding on the signatories, and the property restrictions are not transferred through a property transaction. For example, if a PRP under CERCLA signs a CD or receives a UAO and then sells his or her property, many types of ICs would not be enforceable against the next owner. This could jeopardize the protectiveness of the remedy. One possible solution to this problem is to ensure that the enforcement tool contains provisions requiring EPA or state notification and/or approval prior to a property transfer. In this instance, EPA could negotiate an agreement with the new owner. Another solution is to require signatories of an enforcement document to implement additional long-term institutional controls such as information devices or proprietary controls (i.e., layering).
Informational Devices—Informational tools provide information or notification that residual or capped contamination may remain on site. Common examples include state registries of contaminated properties, deed notices, and advisories. Due to the nature of some informational devices (e.g., deed or hazard notices) and their potential non-enforceability, it is important to carefully consider the objective of this category of ICs. Informational devices are most likely to be used as a secondary “layer” to help ensure the overall reliability of other ICs.

ICs at Federal Facilities
Because of Federal ownership, there are significant differences in the way ICs are applied at Federal facilities. Some proprietary or governmental controls cannot be applied on active Federal facilities. However, for properties being transferred as part of a base closure, the Department of Defense does have the authority to restrict property by retaining a property interest (i.e., an easement intended to assure the protectiveness of the remedy). For active bases, ICs are commonly addressed through remedy selection documents, base master plans, and separate MOUs. More detailed information on ICs and Federal facilities is contained in “Institutional Controls: A Reference Manual (Workgroup Draft - March 1998)” and in the FFRRO IC guidance ("Institutional Controls and Transfer of Real Property under CERCLA Section 120(h)(3)(A), (B), or (C)," January, 2000).
Legal Mechanisms for Imposing ICs Under CERCLA and RCRA
CERCLA and RCRA employ the same types of ICs to reduce exposure to residual contamination. However, as explained below, EPA’s legal authority to establish, monitor and enforce ICs varies significantly between the two programs. As a result, officials involved in cleanups need to appreciate the range of options available under each program before determining whether, and to what extent, ICs should be incorporated into a remedial decision.
At CERCLA sites, EPA often imposes ICs via enforcement tools (e.g., UAOs, AOCs, and CDs). Since these enforcement tools only bind the parties named in the enforcement document, it may be necessary to require the parties to implement ICs that “run with the land” (i.e., applied to the property itself) in order to bind subsequent land owners. For Fund-lead CERCLA sites, the lead agency has the responsibility for ensuring ICs are implemented. Legal mechanisms such as UAOs, AOCs and CDS should also require reporting to EPA and/or the state of any sale of the property.
Under RCRA, ICs are typically imposed through permit conditions or by orders issued under section 3008(h). In certain circumstances cleanup may also be required under the imminent hazard order authority of section 7003. In the case where an IC is meant to continue beyond the expiration of a permit, an order may be required to ensure the IC remains in effect for the long term RCRA permit writers should incorporate ICs as specific permit conditions, where appropriate. By doing so, such conditions would be enforceable through the permit. At the same time, permit writers should consider whether additional ICs are available (e.g., governmental and/or proprietary controls) to ensure that subsequent property owners will be aware of, and bound by, the same types of restrictions. Similar factors should be considered when preparing RCRA corrective action orders to ensure that both the current facility owner/operator and any subsequent property owners are subject to effective and enforceable ICs that will minimize exposure to any residual contamination.
One significant difference between RCRA and CERCLA is that RCRA generally does not authorize EPA to acquire any interests in property. Therefore, many proprietary controls (such as easements) will require the involvement of third parties (e.g., states or local governments) under RCRA.
ICs and Future Land Use
Land use and ICs are usually linked. As a site moves through the Superfund Remedial Investigation/Feasibility Study (RI/FS) or RCRA Facility Investigation/Corrective Measures Study (RFI/CMS), site managers should develop assumptions about reasonably anticipated future land uses and consider whether ICs will be needed to maintain these uses over time. EPA’s land use guidance (Land Use in CERCLA Remedy Selection Process, OSWER Directive No. 9355.7-04, May 25, 1995) states that the site manager should discuss reasonably anticipated future uses of the site with local land use planning authorities, local officials, and the public, as appropriate, as early as possible during the scoping phase of the RI/FS or RFI/CMS. Where there is a possibility that the land will not be cleaned up to a level that supports unlimited use and unrestricted exposure, the site manager should also discuss potential ICs that may be appropriate, including legal implementation issues, jurisdictional questions, the impact of layering ICs and reliability and enforceability concerns. It is also important for the site manager to recognize that, in addition to land uses, ICs can be used to affect specific activities at sites (e.g., fishing prohibitions).
Screening ICs
The need for ICs can be driven by both the need to guard against potential exposure and to protect a remedy. If any remedial options being evaluated in the FS or CMS leave waste in place that would not result in unrestricted use and unlimited exposure, ICs should be considered to ensure that unacceptable exposure from residual contamination does not occur. However, ICs may not be necessary if the waste that is left at the site allows for unrestricted use and unlimited exposure. Remedy options that typically leave residual wastes on site and necessitate ICs include capping waste in place, construction of containment facilities, natural attenuation and long-term pumping-and-treatment of groundwater.
ICs should be evaluated in the same level of detail as other remedy components. ICs are considered response actions under CERCLA and RCRA. ICs must meet all statutory requirements, and are subject to the nine evaluation criteria outlined in the NCP (40 CFR 300.430 (e)(9)(i)) for CERCLA cleanups. The balancing criteria recommended for corrective actions should generally be used in evaluating ICs under RCRA. However, before applying these criteria, the site manager should first make several determinations: *&%#@^$_jf FASCISTS AND COMMUNISTS!

Determining the Role of Local Governments
CERCLA, RCRA, and the NCP do not specify a role for local governments in implementing the selected remedy. However, a local government is often the only entity that has the legal authority to implement, monitor and enforce certain types of ICs (e.g., zoning changes). While EPA and the states take the lead on CERCLA and RCRA response activities, local governments have an important role to play in at least three areas: (1) determining future land use; (2) helping engage the public and assisting in public involvement activities; and (3) implementation and long-term monitoring and enforcement of ICs. Therefore, it is critical that the site manager and his or her state counterpart involve the appropriate local government agency in discussions on the types of controls that are being considered. The capability and willingness of the local government to implement and ensure the short- or long-term effectiveness of the proposed ICs should be considered during the RI/FS or RFI/CMS. In certain cases, cooperative agreements may be considered to assist local governments in the implementation, monitoring and enforcement of required ICs.

ICs in CERCLA Removal Actions
ICs will rarely be a component of true emergencies where a time critical action serves as the only response at a site. It is more likely that a site manager will choose ICs as a component of a non-time critical removal action or during a follow-up remedial action. A post-removal site control agreement must be completed before commencing a fund-financed removal action where ICs are included in post-removal site control (OSWER Directive No. 9360.22-02). As in the remedial process, begin considering ICs when conducting an analysis of land use assumptions during the removal decision-making process. Where a final, site-wide, non-time critical removal remedy decision will be made, ICs should be thoroughly and rigorously evaluated with all other response actions in the Engineering Evaluation/Cost Analysis (EE/CA). In short, because ICs are considered to be actions, apply the full criteria required by
the NCP for EE/CA evaluations. It is anticipated that ICs would not be chosen as the sole action for a removal.

It is fundamental that a remedy under RCRA or CERCLA that includes ICs meet the following threshold criteria:
• protect human health and the environment; and • for CERCLA sites, comply with Applicable or Relevant and Appropriate Requirements (ARARs).
The site manager for RCRA facilities should also consider whether remedies that include ICs:
• attain media cleanup standards or comply with applicable standards for waste management; and
• control the source(s) of releases so as to reduce or eliminate, to the extent practicable, further releases of hazardous waste that might cause threats to human health and the environment.
Balancing Criteria
The site manager evaluates the individual, layered or series of ICs to determine their respective strengths and weaknesses. ICs are also evaluated in combination with engineered controls to identify the key tradeoffs that should be balanced for the site. Following are balancing criteria required by CERCLA and the NCP and recommended by the RCRA program in guidance.
Long-term effectiveness and permanence (CERCLA) or reliability (RCRA)—Under both CERCLA and RCRA, this factor assesses the permanence/reliability and effectiveness of ICs that may be used to manage treatment residuals or untreated wastes that remain at the site over time. When evaluating whether an IC will be effective over the long-term, the site manager should consider factors such as: whether the property is a government-owned site or a privately-owned site that is likely to change hands; the applicability of ICs to multiple property owners; the size of the area to be managed; the number of parcels; the contaminated media to be addressed; the persistence of the contamination; whether site contamination is well-defined; and whether local governments or other governing bodies are willing and able to monitor and enforce long-term ICs. The site manager should also consider the contaminated media to be addressed by the ICs. Different ICs may be required for different media.
Where ICs must be effective for a long period, either proprietary or governmental controls should be considered because they generally run with the land and are enforceable. However, both proprietary and governmental controls have weaknesses in terms of long-term reliability. For example, with proprietary controls, common law doctrines may restrict enforcement by parties who do not own adjoining land. This can render proprietary controls ineffective if EPA or another party capable of enforcing the control is not the owner of the adjacent property. To eliminate this problem, proprietary controls may be established "in gross," signifying that the holder of the control does not need to be the owner of the adjacent property. However, some courts do not recognize in gross proprietary controls.
At some sites, governmental controls may be preferable to proprietary controls. For example, the site manager might work with a local government to pass an ordinance to restrict construction or invasive digging that might disturb or cause exposure to covered residual lead contamination in a large residential area. The implementation of government controls might be considered a beneficial addition to information tools that may be forgotten over the long term or an enforcement action that would be binding only on certain parties.
Proprietary controls would likely be deemed impractical at such a site due to the complex and uncertain task of obtaining easements from multiple property owners.
Like proprietary controls, the use of governmental controls may not be effective over the long term. Of primary concern are the political and fiscal constraints that may affect the ability of a state or local government to enforce the controls. Similarly, governmental controls may be problematic when the local or state government is or may become the site owner or operator because of the appearance of a conflict of interest. Regardless of the control selected, its viability over the long term needs to be closely evaluated.
Reduction of toxicity, mobility, or volume through treatment—
This CERCLA and RCRA criterion does not apply since ICs are not treatment measures.
Short-term Effectiveness—Short-term effectiveness of ICs at CERCLA and RCRA sites should be evaluated with respect to potential effects on human health and the environment during construction and implementation of the remedy. In order to satisfy this criterion, the remedy might entail the use of an IC through an enforcement order to compel the PRP to restrict certain uses of the groundwater at or down gradient from the site during remediation.

After remediation is complete, other ICs might be implemented if residual contamination remains on site (i.e., implementing ICs in series).
Implementability—This CERCLA and RCRA criterion evaluates the administrative feasibility of an action and/or the activities that need to be coordinated with other offices and agencies. Implementation factors that generally should be considered for ICs include whether the entity responsible for implementation possesses the jurisdiction, authority, willingness and capability to establish, monitor and enforce
ICs. A proper analysis of implementability can be complex, considering such diverse factors as the extent to which land being restricted is owned by liable parties and the willingness and capability
of the local government or other authority responsible for establishing controls for land or resource use.
Cost—This CERCLA and RCRA criterion includes estimated capital and O&M costs. In CERCLA, estimated costs for implementing, monitoring, and enforcing ICs should be developed. For example, cost estimates for ICs might include legal fees associated with obtaining easements restricting land use, the costs of purchasing property rights (e.g.., groundwater rights, easements), or the wages of the state or local government personnel that will regularly monitor the IC to ensure that it has not been violated. It is interesting to note that once the total life-cycle costs of implementing, monitoring and enforcing an IC – which may exceed 30 years – are fully calculated, it may actually be less costly in the long term to implement a remedy that requires treatment of the waste. For more information on estimating response costs, see “A Guide to Developing and Documenting Cost Estimates During the Feasibility Study,” EPA 540-R-00-002, OSWER 9355.0-
075. In RCRA, costs historically have played a less prominent role in remediation selection. Typically cost estimates are expected to be developed at the discretion of the owner/operator, although implementors should take into account sites where ICs are inappropriately costly.


Modifying Criteria
Typically the site manager presents the proposed remedy, including ICs to the state, local government, and community for comment prior to implementation. The issues and concerns of these stakeholders may result in modifications to the remedy and are addressed by the site manager in the remedy decision document. Following is a discussion of these modifying criteria (note: these criteria are only recommended in RCRA guidance).
State Acceptance—The site manager should make the appropriate state authorities aware of the basis and scope of the ICs to be implemented under CERCLA or RCRA, and what role, if any, the state is expected to play to make ICs an effective part of the remedy. The state can formally express its concerns about the use of ICs, in general, and its role, in particular, or indicate its willingness to take on the responsibility for implementing and enforcing the proposed ICs. If the state’s position is uncertain at the time the remedy is selected (e.g., for CERCLA sites, when the ROD is signed or, for RCRA facilities, when the permit/order is issued or modified), it may be necessary to outline contingent remedial approaches in the decision documents. Specifically, remedies that require long-term ICs to remain protective may require alternative actions (e.g., additional soil removal) if the ICs are later determined to be unenforceable or cannot meet the
remedial objectives. Alternatively, at a RCRA site, it may be necessary to leave a facility under a permit or other mechanism enforceable by the regulating agency. If the state’s willingness or ability to implement or enforce an IC changes after remedy selection, the protectiveness of the remedy should generally be re-evaluated and, when necessary, remedial decisions revised. Under CERCLA, this may require an Explanation of Significant Differences (ESD), or even a ROD amendment. Under RCRA, a permit modification or change to a corrective action order may
be necessary. It is important to note that under no circumstances can a Fund-financed CERCLA remedial action be initiated without receiving state assurances on ICs and property transfer.
Local Government and Community Acceptance—Involving the community and local government early during the remedy decision process will enable the site manager to more fully evaluate IC options. Discussions with the local government and community give the site manager the opportunity to:
• gather local government and community input on the proposed ICs;
• identify whether a particular stakeholder group may be harmed as a result of a proposed IC (for example, will a ban on fishing cause an economic hardship in the community);
• receive comment on the impacts of the potential ICs on religious or cultural customs and beliefs (e.g., preventing access to property which grows the plants that are used in a tribal ceremony); and
• determine if the community has special needs in regards to the IC (for example, will it be necessary to publish informational devices in multiple languages).
In addition, the local government and community’s response to certain types of ICs and the willingness and capability of the local government to monitor ICs will help the site manager determine whether the ICs will be effective overall. This is especially important if nearby property owners will need to agree to implement proprietary controls or if other governmental ICs (e.g., zoning changes) will have an impact on the community. Early involvement will also enable the community to work with the local government to develop innovative approaches to using ICs, especially in light of any future land use plans.
As with other aspects of the proposed remedy, the community should have the opportunity to comment on the proposed IC component of the remedy during the public comment period. It may be necessary to educate the community about ICs so that its members understand how the different ICs may impact their property and activities. Under CERCLA, it may also be possible, as long as all appropriate requirements are met, to provide a Technical Assistance Grant to the community so they can hire a technical expert to assist them in evaluating ICs and the overall remedy.
In some cases, it may be appropriate not to identify the exact IC required at the time of the remedy decision. In these instances the critical evaluation of the available ICs should still be conducted and the specific objective(s) of the ICs should be clearly stated in the ROD or other decision document. Examples of when this flexibility may be appropriate are contingent remedies based on pilot studies or if a remedy would not be implemented for several years and the state is developing enabling language for Conservation Easements authority.

Conclusion
The ICs outlined in this fact sheet can be important elements of environmental cleanups. ICs play an important role in limiting risk and are often needed to ensure that engineered remedies are not affected by future site activities. When selecting ICs, the site manager needs to evaluate the situation at the site, define the needs that ICs are intended to address, identify the kinds of legal and other tools available to meet these needs, and ensure the ICs are implemented effectively. All of this requires up-front planning and working closely with the Regional office attorneys, the state, community, and PRPs or facility owner/operators. Key concepts to keep in mind when implementing ICs are provided in the text box below.
If you have questions regarding the material covered in this fact sheet, consult the draft document, “Institutional Controls: A Reference Manual” or contact your Regional Coordinator in the OERR Technical Regional Response Center. For information on model language for enforcement or legal documents used to implement ICs, consult your Regional Counsel, OSRE or the Office of General Counsel.

NINTH CIRCUIT GRANTS NON-SETTLING PRPS A RIGHT TO INTERVENE TO PROTECT INTERESTS IN CONTRIBUTION AND IN THE FAIRNESS OF PROPOSED CONSENT DECREE

 

 

EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in the five signed RODs
(EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004)

 

Office of Inspector General's Report on NOAA Fisheries Enforcement

EPA OIG issued two prior reports on environmental justice:

EPA Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities (Report No. 2006-P-00034, September 18, 2006, http://www.epa.gov/oig/reports/2006/20060918-2006-P-00034.pdf)

EPA Needs to Consistently Implement the Intent of the Executive Order on
Environmental Justice (Report No. 2004-P-00007, March 1, 2004,
http://www.epa.gov/oig/reports/2004/20040301-2004-P-00007.pdf).

In the 2006 report, the OIG found that EPA senior management had not sufficiently directed program and regional offices to conduct environmental justice reviews in accordance with Executive Order 12898.

Conclusion
Executive Order 12898 directs federal agencies to make achieving environmental justice part of its mission to the greatest extent practicable and permitted by law. The Executive Order states that it is intended only to improve the internal management of the executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. Consequently there are no enforcement provisions for environmental justice guidelines.

Today's Schedule

Arthur A. Elkins, Jr.. Inspector General, Office of Inspector General

TIME EVENT
3:30-4:30 PM Courtesy Meeting with Senator Collins, Ranking Member of the Committee on Homeland Security and Governmental Affairs
Washington, DC
Closed Press

The Commerce Office of Inspector General initiated and is continuing a nationwide review of the policies and practices of NOAA's Office of Law Enforcement (OLE) and General Counsel for Enforcement and Litigation (GCEL).

Any comments or concerns can be submitted directly to the following email address: NOAAFisheriesReview@oig.doc.gov .



2010

















2009









2008





2003



1998

Superfund/Land

Public Comment Process

 

 

Improving waste management and cleanup.

Report Title

Date

EPA Should Improve Oversight of Long-Term Monitoring at PAB Oil and Chemical Services, Inc., Superfund Site in Louisiana , Report No. 10-P-0229, [ Report PDF - 27pp, 314KB ] [ At a Glance PDF - 38KB ]

September 21, 2010

Independent Ground Water Sampling Generally Confirms EPA's Data at Wheeler Pit Superfund Site in Wisconsin , Report No. 10-P-0218, [ Report PDF - 13pp, 1581KB ] [ At a Glance PDF - 46KB ]

September 8, 2010

EPA Should Improve Oversight of Long-term Monitoring at Bruin Lagoon Superfund Site in Pennsylvania , Report No. 10-P-0217 [ Report PDF - 22pp, 254KB ] [ At a Glance PDF - 33KB ]

September 8, 2010

EPA's Office of Research and Development Performance Measures Need Improvement, Report No. 10-P-0176, [ Report PDF - 47pp, 261KBB ] [ At a Glance PDF - 42KB ]

August 4, 2010

EPA Should Improve Its Oversight of Federal Agency Superfund Reviews, Report No. 10-P-0133 [ Report PDF - 39pp, 213KB ] [ At a Glance PDF - 38KB ]

June 2, 2010

EPA Activities Provide Limited Assurance of the Extent of Contamination and Risk at a North Carolina Hazardous Waste Site, Report No. 10-P-0130 [ Report PDF - 45pp, 399KB ] [ At a Glance PDF - 46KB ]

May 17, 2010

EPA Should Improve Its Contractor Performance Evaluation Process for Contractors Receiving Recovery Act Funds, Report No. 10-R-0113 [ Report PDF - 22pp, 189KB ] [ At a Glance PDF - 41KB ]

April 26, 2010

EPA's BioWatch Role Reduced, Report No. 10-P-0106 [ Report PDF - 8pp, 176KB ] [ At a Glance PDF - 34KB ]

April 20, 2010

Region 6 Needs to Improve Oversight Practices, Report No. 10-P-0100, [ Report PDF - 28pp, 162KB ] [ At a Glance PDF - 33KB ] [ Appendix B PDF - 31pp, 1.5MB ] [ Related Correspondence - PDF 10pp, 478KB ]

April 14, 2010

EPA Should Continue Efforts to Reduce Federal Advances and Federal Special Accounts, Report No. 10-P-0093, [ Report PDF - 15pp, 118KB ] [ At a Glance PDF - 34KB ]

March 31, 2010

EPA Can Improve Its Preparation and Use of Independent Government Cost Estimates for Superfund Contracts, Report No. 10-P-0065 [ Report PDF - 25pp, 159KB ] [ At a Glance PDF - 40KB ]

February 16, 2010

Changes in Conditions at Wildcat Landfill Superfund Site in Delaware Call for Increased EPA Oversight, Report No. 10-P-0055, [ Report PDF - 36pp, 793KB ] [ At a Glance PDF - 94KB ]

January 27 , 2010

Lack of Final Guidance on Vapor Intrusion Impedes Efforts to Address Indoor Air Risks, Report No. 10-P-0042, [ Report PDF - 23pp, 169KB ] [ At a Glance PDF - 40KB ]

December 14 , 2009

Congressionally Requested Inquiry into EPA's Response to a Report of a Leaking Well in North Carolina and the National Response Center Hotline , Report No. 10-P-0027, [ Report PDF - 15pp, 124KB ] [ At a Glance PDF - 40KB ]

November 10 , 2009

Independent Sampling Generally Confirms EPA's Data at the Jones Sanitation Superfund Site in New York , Report No. 09-P-0243, [ Report PDF - 17pp, 387KB ] [ At a Glance PDF - 51KB ]

September 23, 2009

EPA Has Improved Efforts to Reduce Unliquidated Obligations in Superfund Cooperative Agreements, But a Uniform Policy Is Needed, Report No. 09-P-0241, [ Report PDF - 14pp, 150KB ] [ At a Glance PDF - 47KB ]

September 22, 2009

Regional Public Liaison Program Needs Greater Focus on Results and Customer Awareness, Report No. 09-P-0176, [ Report PDF - 20pp, 172KB ] [ At a Glance PDF - 40KB ]

June 24, 2009

Contaminated Soil Waste Repository at East Mission Flats, Idaho , Report No. 09-P-0162 [ Report PDF - 32pp, 437KB ] [ At a Glance PDF - 45KB ]

June 8, 2009

EPA Needs to Improve Internal Controls to Increase Cost Recovery, Report No. 09-P-0144 [ Report PDF - 34pp, 325KB ] [ At a Glance PDF - 48KB ]

April 27, 2009

Results of Hotline Complaint Review for California Superfund Site, Report No. 09-P-0131 [ Report PDF - 25pp, 284KB ] [ At a Glance PDF - 40KB ]

March 31, 2009

Improved Management of Superfund Special Accounts Will Make More Funds Available for Clean-ups, Report No. 09-P-0119 [ Report PDF - 61pp, 525KB ] [ At a Glance PDF - 48KB ]

March 18, 2009

Results of Independent Groundwater Sampling at Neal's Dump Superfund Site, Report No. 09-P-0110 [ Report PDF - 9pp, 284KB ] [ At a Glance PDF - 45KB ]

March 4, 2009

EPA's Safety Determination for Delatte Metals Superfund Site Was Unsupported, Report No. 09-P-0029 [ Report PDF - 60pp, 1.1MB ] [ At a Glance PDF - 56KB ]

November 19, 2008

A Region 5 Penalty Reduction Was Unjustified and Undocumented, Report No. 08-P-0291 [ Report PDF - 30pp, 243KB ] [ At a Glance PDF - 47KB ]

September 29, 2008

EPA Has Initiated Strategic Planning for Priority Enforcement Areas, but Key Elements Still Needed, Report No. 08-P-0278 [ Report PDF - 40pp, 403KB ] [ At a Glance PDF - 55KB ]

September 25, 2008

EPA Should Continue Efforts to Reduce Unliquidated Obligations in Brownfields Pilot Grants, Report No. 08-P-0265 [ Report PDF - 18pp, 311KB ] [ At a Glance PDF - 101KB ]

September 16, 2008

Corrective Actions Were Generally Implemented at Stauffer Chemical Company Superfund Site, Tarpon Springs , Florida , Report No. 08-P-0264 [ Report PDF - 17pp, 262KB ] [ At a Glance PDF - 99KB ]

September 16, 2008

Follow-up on Audit of Undistributed Site Costs Finds Corrective Actions Not Complete, Report No. 08-P-0236 [ Report PDF - 30pp, 448KB ] [ At a Glance PDF - 141KB ]

August 25, 2008

EPA Decisions to Delete Superfund Sites Should Undergo Quality Assurance Review, Report No. 08-P-0235 [ Report PDF - 59pp, 419KB ] [ At a Glance PDF - 47KB ]

August 20 , 2008

Follow-up Review on Progress at Escambia Treating Company Superfund Site, Pensacola , Florida , Report No. 08-P-0200 [ Report PDF - 18pp, 566KB ] [ At a Glance PDF - 264KB ]

July 14, 2008

Making Better Use of Stringfellow Superfund Special Accounts, Report No. 08-P-0196 [ Report PDF - 14pp, 547KB ] [ At a Glance PDF - 282KB ]

July 9, 2008

Improved Controls Would Reduce Superfund Backlogs, Report No. 08-P-0169 [ Report PDF - 40pp, 583KB ] [ At a Glance PDF - 213KB ]

June 2, 2008

EPA Needs to Track Compliance with Superfund Cleanup Requirements, Report No. 08-P-0141 [ Report PDF - 26pp, 531KB ] [ At a Glance PDF - 270KB ]

April 28, 2008

EPA Can Recover More Federal Superfund Money, Report No. 08-P-0116 [ Report PDF - 28pp, 256KB ] [ At a Glance PDF - 47KB ]

March 26, 2008

Making Better Use of Superfund Special Accounts in Region 8, Report No. 08-P-0102 [ Report PDF - 9pp, 120KB ] [ At a Glance PDF - 50KB ]

March 17, 2008

Followup on Information Concerning Superfund Cooperative Agreements with New York and New Jersey , Report No. 08-2-0099 [ Report PDF - 6pp, 404KB ] [ At a Glance PDF - 209KB ]

March 4, 2008

EPA Should Continue to Improve Its National Emergency Response Planning, Report No. 08-P-0055 [ Report PDF - 27pp, 303KB ] [ At a Glance PDF - 50KB ]

January 9, 2008

Limited Investigation Led to Missed Contamination at Ringwood Superfund Site, Report No. 2007-P-00039 [ Report PDF - 23pp, 429KB ] [ At a Glance PDF - 52KB ]

September 25, 2007

Cheyenne River Sioux Tribe Outlays Reported Under Five EPA Assistance Agreements, Report No. 2007-4-00078 [ Report PDF - 50pp, 703KB ] [ At a Glance PDF - 62KB ]

September 24, 2007

Complete Assessment Needed to Ensure Rural Texas Community Has Safe Drinking Water Report No. 2007-P-00034 [ Report PDF - 23pp, 498KB ] [ At a Glance PDF - 51KB ]

September 11, 2007

Making Better Use of Superfund Special Account Funds for Thermo Chem, Report No. 2007-S-00002 [ Report PDF - 6pp, 164KB ] [ At a Glance PDF - 104KB ]

August 20, 2007

Superfund's Board of Directors Needs to Evaluate Actions to Improve the Superfund Program, Report No. 2007-P-00029 [ Report PDF - 19pp, 263KB ] [ At a Glance PDF - 115KB ]

August 1, 2007

EPA Needs to Take More Action in Implementing Alternative Approaches to Superfund Cleanups, Report No. 2007-P-00026 [ Report PDF - 45pp, 490KB ] [ At a Glance PDF - 82KB ]

June 6, 2007

EPA Can Improve Its Managing of Superfund Interagency Agreements with U.S. Army Corps of Engineers, Report No. 2007-P-00021 [ Report PDF - 34pp, 806KB ] [ At a Glance - 59KB ]

April 30, 2007

Environmental Justice Concerns and Communication Problems Complicated Cleaning Up Ringwood Mines/Landfill Site, Report 2007-P-00016 [ Report PDF - 32pp, 451KB ] [ At a Glance PDF - 60KB ]

April 2, 2007

EPA Has Improved Five-Year Review Process for Superfund Remedies, But Further Steps Needed, Report No. 2007-P-00006 [ Report PDF - 50pp, KB ] [ At a Glance PDF - KB ]

Dec. 5, 2006

EPA Needs to Plan and Complete a Toxicity Assessment for the Libby Asbestos Cleanup, Report No. 2007-P-00002 [ Report PDF - 12pp, 133KB ] [ At a Glance PDF - 62KB ]

Dec. 5, 2006

EPA's Management of Interim Status Permitting Needs Improvement to Ensure Continued Progress, Report No. 2007-P-00005 [ Report PDF - 29pp, 494KB ] [ At a Glance PDF - 60KB ]

Dec. 4, 2006

Lessons Learned: EPA's Response to Hurricane Katrina, Report No. 2006-P-00033, [ Report PDF - 29pp, 289KB ] [ At a Glance PDF - 55KB ]

Sept. 14, 2006

EPA Could Improve Its Redistribution of Superfund Payments to Specific Sites, Report No. 2006-P-00027 , [ Report - PDF 26pp, 387KB ] [ At a Glance - PDF, 51KB ]

July 31, 2006

EPA Provided Quality and Timely Information on Hurricane Katrina Hazardous Material Releases and Debris Management, Report No. 2006-P-00023 [ Report - 1MB PDF, 28pp ] [ At a Glance - 76KB PDF ]

May 2, 2006

EPA Can Better Implement Its Strategy for Managing Contaminated Sediments Report No. 2006-P-00016 [ Report - 1686KB PDF, 44pp ] [ At a Glance - 43KB PDF ]

March 15, 2006

EPA Can Better Manage Superfund Resources Report No. 2006-P-00013 [ Report - 449KB PDF,42pp ] [ At a Glance - 49KB PDF ]

Februrary 28, 2006

Office of Underground Storage Tanks Has Improved Contract Administration, But Further Action Needed Report No. 2006-P-00012 [ Report - 134KB PDF,10pp ] [ At a Glance - 51KB PDF ]

February 28, 2006

Rulemaking on Solvent-Contaminated Industrial Wipes Report No. 2006-P-00001 [ Report - 266KB PDF, 31pp ] [ At a Glance - 60KB PDF ]

October 4, 2005

Continued EPA Leadership Will Support State Needs for Information and Guidance on RCRA Financial Assurance Report No. 2005-P-00026 [ Report - 349KB PDF, 26pp ] [ At a Glance - 51KB PDF ]

September 26, 2005

EPA Practices for Identifying and Inventorying Hazardous Sites Could Assist Similar Department of the Interior Efforts [ Report - 1MB PDF, 42pp ] [ At a Glance - 61KB PDF ]

Aug. 22, 2005

EPA Can Better Manage Brownfields Administrative Resources - Report No. 2005-P-00017 [ Report - 477KB, 48pp, PDF ] [ At a Glance - 44KB, 1pp, PDF ]

June 7, 2005

Brownfields Competition Process for Awarding Grants Complied With Act, Report No. 2005-P-00009 [ Report - 115KB PDF ] [ At a Glance - 39KB PDF ]

March 7, 2005

Tribal Superfund Program Needs Clear Direction and Actions to Improve Effectiveness, Report No. 2004-P-00035 [ 668KB PDF ]

September 30, 2004

Ombudsman Report: Review of Actions at Industrial Excess Landfill Superfund Site, Uniontown , Ohio Report 2004-P-00031 [ 12MB PDF ]

September 29, 2004

OIG Response to Congressional Request on Superfund Administrative Costs Briefing, Report No. 2004-S-00004 [ 193KB PDF ]

September 15, 2004

Multiple Actions Taken to Address Electronic Waste, But EPA Needs to Provide Clear National Direction, Report No. 2004-P-00028 [ 1.57MB PDF ]

September 1, 2004

Some States Cannot Address Assessment Needs and Face Limitations in Meeting Future Superfund Cleanup Requirements, Report No. 2004-P-00027 [ 259KB PDF ]

September 1, 2004

Substantial Progress Made, But Further Actions Needed in Implementing Brownfields Program, Report 2004-P-0020 [ 1267KB PDF ]

June 21, 2004

Review of Actions at Stauffer Chemical Company Superfund Site, Tarpon Springs , Florida , Report 2004-P-00018 [ 1,795KB PDF ]

June 3, 2004

Idaho Superfund Credit Claim Under EPA Support Agency Cooperative Agreement No. V990431-01 Report No. 2004-4-00016 [ 206KB PDF ]

June 2, 2004

The Office of Underground Storage Tanks: Contract Administration and Performance Measures Concerns Report No. 2004-P-00014 [ 445KB PDF ]

March 31, 2004

Nationwide Identification of Hardrock Mining Sites [ 1.83MB PDF ]

March 31, 2004

Audit Report: New Mexico Environment Department Costs Claimed Under Cooperative Agreement No. V986338-01 Report No. 2004-4-00015 [ 92KB PDF ]

March 31, 2004

Review of EPA's Response to Petition Seeking Withdrawal of Authorization for Idaho 's Hazardous Waste Program [126KB PDF]

February 5, 2004

Immediate Action Needed to Address Weaknesses in EPA Efforts to Identify Hazardous Waste Sites in Indian Country [ 481KB PDF ]

January 30, 2004

Congressional Request on Funding Needs for Non-Federal Superfund Sites [ 362KB PDF ]

January 7, 2004

Pollution Prevention: Effectiveness of EPA's Efforts to Encourage Purchase of Recycled Goods Has Not Been Demonstrated [ 166KB PDF ]

September 22, 2003

Implementation, Information, and Statutory Obstacles Impede Achievement of Environmental Results from EPA's National Hardrock Mining Framework [ 2.99MB PDF ]

August 7, 2003

Improving Nationwide Effectiveness of Pump-and-Treat Remedies Requires Sustained and Focused Action to Realize Benefits [ 181KB PDF ]

March 27, 2003

EPA Region 10 Needs to Improve Oversight of Remediation Activities at the Hanford Superfund 100K-Area [ 1.04MB PDF ]

November 4, 2002

EPA Response to Senate Environment and Public Works Committee on Funds Needs for Superfund Sites [ 185KB PDF ]

October 25, 2002

EPA Review of Contaminants and Increased Funding Levels Needed to Ensure Continued Compliance with Superfund at Oak Ridge [ 433KB PDF ]

September 26, 2002

Nikki L. Tinsley's June 24, 2002 letter to Congressman Dingell (includes attachments) [ 2.3MB PDF ]

June 24, 2002

Land Application of Biosolids, Report No. 2002-S-000004 [ 485KB PDF ]

March 28, 2002

Evaluation of Superfund Environmental Indicators [ 162KB PDF ]

December 27, 2001

EPA Region III's Management of Tranguch Gasoline Site, Hazleton , Pennsylvania - (2001-P-00015) [ PDF - 440 Kb ]

August 29, 2001

Superfund Interagency Agreements - (2001-P-00011) [ PDF - 230 Kb ]

June 22, 2001

Superfund - Remedial Project Manager Turnover at Superfund Sites - (2001-M-000015) [ PDF - 78 Kb ]

June 15, 2001

EPA's Actions Concerning Asbestos-Contaminated Vermiculite in Libby , Montana - (2001-S-7) [ 2,074KB PDF ]

March 31, 2001

RCRA Financial Assurance for Closure and Post-Closure - (2001-P-007) [ 253KB PDF ]

March 30, 2001

Appropriate Violator Classifications and Timely Initial Enforcement Actions Would Strengthen Montana 's RCRA Enforcement Program - (000762-2001-P-00004) [ 686KB PDF ]

March 28, 2001

RCRA CORRECTIVE ACTION - RCRA Corrective Action Focuses on Interim Priorities -- Better Integration with Final Goals Needed - (2000-P-0028) [ PDF - 1388Kb ]

September 29, 2000

SUPERFUND - Update on Brownfields Initiative to Revitalize Urban Areas - (2000-P-00027) [ PDF - 173Kb ]

September 29, 2000

Resources Management Division Superfund Division - Audit of Superfund Consolidated Cooperative Agreement Awarded to Ohio Environmental Protection Agency - (2000-P-00020) [ PDF - 319Kb ]

September 15, 2000

Memorandum of Review on EPA's Management of the Abex Superfund Site - (2000-S-00006) [ PDF - 56Kb ]

August 31, 2000

Report on the Tank Waste Remediation System (TWRS) Program for the Hanford Federal Facility (2000-P-00012) [ PDF - 489Kb ]

March 30, 2000

Office of Research and Development - Audit of Extramural and Property Management at the Atlantic Ecology Division (2000-P-00015) [ PDF - 1,361Kb ]

March 29, 2000

Biosolids Management and Enforcement (2000-P-10) [ PDF - 326Kb ]

March 20, 2000

Superfund: Backlog of Five-Year Review Reports Increased Nearly Threefold (99P-218) [ PDF - 95Kb ]

September 30, 1999

Administration of Superfund Special Accounts Needs Improvement (99P-214) [ PDF - 326Kb ]

September 28, 1999

Identification and Enforcement of RCRA Significant Non-Compliers by EPA Region III and Virginia Department of Environmental Quality (99P-215) [ PDF - 172Kb ]

September 20, 1999

Region 2's Enforcement of the Resource Conservation and Recovery Act (9910224) [ PDF - 312Kb ], [ Exec Summary ]

July 21, 1999

Superfund Sites Deferred to RCRA (9100116) [ PDF - 165Kb ]

March 31, 1999

EPA Controls Over RCRA Permit Renewals (9100115) [ PDF - 24Kb ]

March 30, 1999

Resource Conservation and Recovery Act Significant Non- Complier Enforcement (9100110) [ PDF - 257Kb ]

March 23,1999

RCRA Significant Non-Complier Identification and Enforcement By The Rhode Island Department of Environmental Management [ PDF - 1,566Kb ]

January 21, 1999

EPA Had Not Effectively Implemented Its Superfund Quality Assurance Program - September 30, 1998 (8100240) [ Executive Summary ], [ PDF - 308Kb ]

September 30, 1998

Region 9's Controls Over Superfund Oversight Cost Billing - September 30, 1998 (8100259) [ PDF - 39Kb ]

September 30, 1998

Region 1's Implementation of Superfund Administrative Reforms - September 29, 1998 (8100254) [ Executive Summary ], [ PDF-88Kb ]

September 29, 1998

EPA's Management of the State Deferral Program - September 10, 1998 (8100234) [ PDF - 98Kb ]

September 10, 1998

Environmental Data Quality at Superfund Removal Actions in Region 9 - September 4, 1998 (8100223) [ Executive Summary ], [ PDF - 1,145Kb ]

September 4, 1998

Region 5 Oversight of PRP-lead Remedial Design and Remedial Action - August 17, 1998 (8100208) [ Executive Summary ], [ PDF - 84Kb ]

August 17, 1998

Region 2's Billing of Superfund Oversight Costs - August 13, 1998 (8100206) [ Executive Summary ], [ PDF - 101Kb ]

August 13, 1998

Replacement Housing at the Austin Avenue Radiation Site - March 30, 1998 (8100090) [ Executive Summary ], [ PDF - 2,604Kb ]

March 30, 1998

Brownfields: Potential for Urban Revitalization - March, 27, 1998 (8100091) [ Executive Summary ], [ PDF - 88Kb ]

March, 27, 1998

RD/RA Negotiation Time Frames - March 27, 1998 (8400015) [ PDF - 5Kb ]

March 27, 1998

Assessment of Controls Over Emergency Removal Actions at Methyl Parathion Sites (7400069) (PDF - 59KB)

September 23, 1997

Report of Audit of Region 3's Billing of Superfund Oversight Costs (7100292) [ PDF - 83KB ]

September 22, 1997

Final Report of Audit on the Maryland Department of the Environmental Leaking Underground Strorage Tank Program (7100290) [ PDF - 120KB ]

September 17, 1997

EPA Can Do More to Help Minimize Hardrock Mining Liabilities (7100223) [ PDF - 462KB ]

June 11, 1997

Biennial Hazardous Waste Data: Opportunity for Improvement (7100114) [ HTML ]

April 29, 1997

Animal Waste Disposal Issues (7100142) [ HTML ]

April 21, 1997

Further Improvements Needed in the Administration of RCRA Civil Penalties (7100146) [ HTML ]

April 14, 1997

Laboratory Data Quality at Federal Superfund Facilities (7100132) [ HTML ]

April 7, 1997

Consolidated Report on EPA's Leaking Underground Storage Tank Program (6100264) [ HTML ]

February 2, 1997

Review of Barriers to Superfund Site Cleanups (6400016) [ HTML ]

February 2, 1997

Environmental Data Quality at DOD Superfund Sites in Region 9 [ Summary ] | [ Full ]

January 6, 1997

Manifesting Requirements on Hazardous Waste Generators [ Summary ] | [ Full text ]

November 15, 1996

Agency Management of the Superfund Technical Assistance Grant Program (6100160) [ HTML ]

1996

Region 8 Needed to Further Improve Interagency Agreement Oversight to Ensure Efficient Summitville Site Cleanup (6400019) [ HTML ]

1996

Region 9 Data Quality Oversight at the Aerojet Superfund Site (6400044) [ HTML ]

1996

 

No further evidence required to facially apparent facts

A District Court in California declined to remand the action to state court holding that the defendant is not bound to submit “summary-judgment-type evidence” as long as the jurisdictional amount was either “facially apparent” from the complaint or was shown to be “more likely than not” by the facts alleged in the removal petition.

 

1933        The California state legislature approved the Central Valley Project which included the Shasta and Friant Dams. It became a federally built water system to sustain California agriculture. The Friant dam was completed in 1944.
    (SFC, 12/29/99, Z1 p.1)

1940-1949    During the 1940s the Associated Sportsmen of California repeatedly warned of damage to the salmon population near Redding and urged the government to release water from Shasta Lake to dilute the poisons from Iron Mountain.
    (SFEC,11/2/97, p.A13)(SSFC, 8/29/10, p.A15)


1957        Iron Mountain mine owners blamed the federal government for fish kills. They held that the Shasta federal dam caused the buildup of pollutants and that previously flows from Spring Creek were rendered harmless by dilution in the Sacramento River.
    (SFEC,11/2/97, p.A13)

1928 Water Policy -- Voters lay a legal cornerstone for water policy in their arid state, stating that water rights are subject to a requirement that water be used in a "reasonable" and "beneficial" manner. This for the first time establishes the legal principal of water conservation. (Constitutional amendment, proposed by the Legislature, approved by 77.2 percent of voters.)

1933 Central Valley Project - The Legislature authorizes construction of a state Central Valley Project, to consist of Shasta Dam on the upper Sacramento River near Redding, Friant Dam on the upper San Joaquin River near Fresno, and other dams and canals. Fifty-two percent of voters in a referendum uphold the Legislature's action in a December special election that attracts a light turnout of less than 900,000. (More than 2 million had come to the polls a year earlier.) In 1935 the financially strapped state, unable to sell bonds for a state Central Valley Project, surrenders the plan to the federal government, which authorizes construction as the federal Central Valley Project.

1935 Pollution Control - - The Dickey Water Pollution Act, the first of the modern clean-water laws, creates a State Water Pollution Control Board.

1959 State Water Project -- The Burns-Porter Act orders construction of the State Water Project, to consist of Oroville Dam on the Feather River , the California Aqueduct from the Sacramento-San Joaquin River Delta to Southern California , and other dams and canals. The following year, a narrow 51.5 percent majority of voters authorizes the $1.75 billion bond act that will finance the project. At the time it's the largest bond issue ever approved by a state. Support in more populous Southern California outweighs opposition in the north. Declares Governor Brown of the California Aqueduct: "We are going to build a river 500 miles long… to correct an accident of people and geography."

1969 Clean Water - - The Porter-Cologne Water Quality Control Act is adopted as one of the nation's strongest anti-pollution laws and becomes a model for the federal Clean Water Act of 1972.

1970 Environmental Impact Reports -- Reacting to an oil spill in the Santa Barbara Channel, lawmakers with Governor Reagan's signature enact the California Environmental Quality Act to require environmental impact reports before any project is undertaken that "could have a significant effect on the environment."

1972 Waste Management - Legislation creates the California Waste Management Board to oversee the safe disposal of California's growing waste. In 1989 the program is revamped and a new board, with the same name, charged with developing plans for reducing disposable waste through reuse and recycling. Goals are set for cutting waste in California's communities by 25 percent by 1995 and 50 percent by 2000. In 1989 the state has 35 municipal curbside recycling programs; by 1995 it has nearly 500.

1980 Peripheral Canal -- The Legislature, with Jerry Brown's signature, authorizes construction of a canal around the periphery of San Francisco Bay to connect the Sacramento River with the California Aqueduct, rather than continuing to draw water through the Sacramento-San Joaquin River Delta. The Peripheral Canal is killed by voter referendum in 1982, rejected by 62.7 percent of voters.

1981 Cleanup of Toxic Wastes - A year after Congress creates the Superfund program, California establishes its own fund to clean up sites contaminated by toxic wastes. State and federal officials by 1994 identify 265 "high priority" cleanup sites in California.

1990 Cal EPA - - Governor Wilson creates the California Environmental Protection Agency, with cabinet status, to coordinate environmental regulatory programs. A Department of Pesticide Regulation is put under its jurisdiction.

1994 Incompetent Judges --Voters endorse a constitutional amendment offered by the Legislature to permit greater public oversight in disciplining corrupt, biased or incompetent judges. The Commission on Judicial Performance is given authority to remove or censure judges and its disciplinary hearings will be open to the public. (Approved by 63.7 percent of voters.)

The California Legislature authorized the future Central Valley Project as a state project in 1933. The act authorized the sale of "revenue" bonds not to exceed $170 million.

Even with the authorized revenue bonds, California found itself unable to finance the project. The state could not get the project approved for loans and grants under the National Recovery Act. Harry W. Bashore reported to Reclamation on the upper San Joaquin Relief Project that the State Engineer considered Kennett Reservoir the cornerstone for the entire Central Valley Project. California applied to the Federal Emergency Administration of Public Works (FEA) for grants and loans, and created the Water Project Authority. The Committee on Rivers and Harbors of the House of Representatives recommended $12 million of Federal money for construction of Kennett (Shasta) Dam because of the national benefits to navigation and flood control on the Sacramento River. After reviewing the investigations, the California Joint Federal-State Water Resources Commission, the United States Senate Committee on Irrigation and Reclamation, the Bureau of Reclamation, and the Army Corps of Engineers approved and recommended the plan.

California amended its application to the FEA in 1934, and the Water Project Authority became effective. President Franklin D. Roosevelt issued an executive allocation of $20 million, later reduced to $4.2 million, under the Emergency Relief Appropriation Act, for construction of the Central Valley Project on September 10, 1935. Apparently officials assumed the approval was valid under the Emergency Relief Appropriation Act of 1935. The Supreme Court case of the United States v. Arizona (295 U.S. 174) threatened the assumption. Before 1935, the government sometimes started irrigation projects using relief funds without conforming to the Reclamation Acts, but the court's decision said the Secretary of the Interior and the Federal Emergency Administrator of Public Works did not have the authority to construct Parker Dam, on the Colorado River, without the consent of Congress. The Supreme Court ruled that such an approach violated reclamation laws.

Authorization of the Central Valley Project could not take place at the time because there were no executive branch findings and approval of feasibility. The technical problems, however, did not stop authorization of the project. Active participation by Reclamation, in matters relating to the Central Valley, started in September 1935, at meetings in Sacramento and Berkeley. Reclamation Commissioner Elwood Mead, Chief Engineer Raymond F. Walter, Construction Engineer Walker R. Young, and State Engineer Edward Hyatt attended the meeting. Secretary of the Interior Harold Ickes sent the feasibility report to the President on November 26, 1935. Roosevelt approved Central Valley Project, including Kennett (Shasta), Friant, and Contra Costa (Delta) Divisions, on December 2, 1935.

The Rivers and Harbors Act of 1937, re-authorized the Central Valley Project, and authorized $12 million for it. The Rivers and Harbors Act listed improvement of navigation, regulation, and flood control of the Sacramento and San Joaquin Rivers as the first priorities of the Central Valley Project. Reclamation's primary purpose, supplying water for irrigation and domestic use followed these priorities, and power generation ended up the last priority on the list.

Construction of the Central Valley Project started in the late 1930s. By 1939, the CVP apparently gained more attention for Reclamation from Federal officials. Secretary of the Interior Harold Ickes was one of the officials who paid little attention to Reclamation and the CVP early in the 1930s. At one point during the decade, Ickes offered to trade Reclamation to the Department of Agriculture in return for the Forest Service. The trade never went through, but reveals the lack of interest the Interior Secretary had for the agency.

 

 

EJ Collaborative Problem-Solving Cooperative Agreements Program

Grants & Programs Topics

Overview

The EJ CPS program requires selected applicants, or recipients, to use the Environmental Justice Collaborative Problem-Solving Model (EJ CPS Model) as part of their projects. The EJ CPS Model's purpose is to provide communities with information to help them develop proactive, strategic, and visionary approaches to address environmental justice issues, and to achieve community health and sustainability. Information on the EJ CPS Model can be found in the publication EPA's Environmental Justice Collaborative Problem-Solving Model PDF (44 pp, 1.5MB) . EPA's Office of Environmental Justice (OEJ) launched the Environmental Justice Collaborative Problem-Solving Cooperative Agreement (EJ CPS) program in 2003

Recent Awards

On June 5, 2007, EPA announced $1 million in grants across the country for improving the environment in low-income communities. These grants were awarded on May 15, 2007.

Environmental Justice Collaborative Problem-Solving Cooperative Agreement Program 2007 Awards: Project Descriptions PDF (3 pp, 19K)

Brochures, Fact Sheets, and Grantee Contacts

State Environmental Justice Cooperative Agreements (SEJCA)

Grants & Programs Topics

Overview

In 2009, EPA selected five state projects to receive funding up to $160,000 each, totaling $800,000.

Alaska The Alaska Department of Environmental Conservation Tribal Participation Protocol Development Project is working with Alaska Native tribal organizations to establish an early notification protocol for the Alaska Pollution Disposal and Elimination System permitting program. The objective of this protocol is to increase community involvement in the permitting process. The project will provide the training and tools for implementing the protocol. The best practices resulting from this project will be applied in other Alaska Department of Environmental Conservation programs and potentially to other State permitting programs.

California The California Department of Toxic Substances Control (DTSC) is working with community representatives, and local, state, and federal regulatory agencies to coordinate multiple environmental pollution mitigation activities. The project will identify inspection and enforcement activities, targeting specific pollution sources, and develop effective strategies for reducing or eliminating these sources in the affected communities. DTSC will also create education programs for community residents and develop compliance assistance programs for small businesses located in selected communities. The initiative will also be exploring options for creating education and job opportunities for community members living in selected communities.

Illinois The East St. Louis Residential Lead Paint Outreach Collaborative will provide community outreach and training to educate and involve residents in lead abatement and paint contamination throughout the City of East St. Louis. The project includes conducting research on the health effects of exposure to residential lead contamination. The outreach plan and public education program will also focus on the hazards of lead contamination, prevention measures, lead blood screening and abatement services. The overall mission of the collaborative is to prevent and eliminate childhood lead poisoning.

Pennsylvania The Pennsylvania Department of Environmental Protection, the Chester Environmental Partnership, and the Crozer-Keystone Health System have come together in a partnership to address the issues of asthma triggers, solid waste disposal, and children's environmental health. This project will combine in-home remediation and education with community-based efforts to reduce exposure to air pollution and solid waste. The program will be implemented in three phases:

  1. In-home assessments and baseline evaluations
  2. Asthma education and remediation through peer educators/counselors
  3. Remediation of improperly disposed of solid waste in the community.


South Carolina The South Carolina Department of Health and Environmental Control (DHEC) is implementing a pilot project program utilizing collaborative problem-solving. The goal of the pilot project is to build capacity while leveraging federal and state resources, to address the environmental and social justice concerns within the selected communities. DHEC will offer technical assistance to communities as they conduct environmental assessments and address environmental issues identified in the community. Each pilot project will meet specific criteria. There will be opportunities to participate in leadership development training designed to create organizational capacity, assist in developing strategies, and build partnerships.

Fact Sheet

Environmental Justice Showcase Communities

Grants & Programs Topics

The U.S. Environmental Protection Agency has committed $1,000,000 to address environmental justice challenges in ten communities across the nation. The Agency is providing $100,000 per project over the next two years to help alleviate the environmental and human health challenges facing many American communities.

The Environmental Justice Showcase Communities effort brings together governmental and non-governmental organizations and pools their collective resources and expertise on the best ways to achieve real results in communities.

Each Region throughout the country has communities with Environmental Justice concerns including:

Therefore, EPA will work to improve collaboration in the delivery of services to support communities with environmental justice issues.

The successes and lessons learned in these demonstration projects will be used to help guide the design and implementation of future Environmental Justice projects and will help EPA increase its ability to address local environmental challenges in more effective, efficient, and sustainable ways.

List of Showcase Communities

Envrionmental Justice Small Grants Program

Grants & Programs Topics

Overview

Fiscal Year 2009 marked the 15th anniversary of EPA's Environmental Justice Small Grants Program (EJSG). Since its inception in 1994, the Program has awarded more than $20 million in funding to 1,130 community-based organizations, and local and tribal organizations working with communities who are facing environmental justice issues.

The Environmental Justice Small Grants Program (EJSG), supports and empowers communities working on solutions to local environmental and public health issues. The Program assists recipients in building collaborative partnerships to help them understand and address environmental and public health issues in their communities. Successful collaborative partnerships involve not only well-designed strategic plans to build, maintain and sustain the partnerships, but also to work towards addressing the local environmental and public health issues.

Top of Page

Fact Sheets

Top of Page

Grant Recipients

Top of Page

Emerging Tools for Local Problem Solving

EPA’s Role in Environmental Justice
On February 11, l994, the President issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” which identified three goals:

To focus federal agency action on the environment and human health conditions in minority and low-income communities.

To promote nondiscrimination in federal programs that substantially affect human health and the environment.

To provide minority and low-income communities greater access to information on, and opportunities for public participation in, matters relating to human health and the environment.
The President encouraged federal agencies to reinvent the way the nation approaches environmental justice so that our day-to-day efforts would be more effective in protecting the public health and environment. EPA has a leadership role in helping federal agencies implement this executive order.

About the Small Grants Program
EPA recognized that community involvement was critical to environmental decision-making and made a commitment to invest resources in projects that would financially benefit affected communities. In fiscal year 1994, the Office of Environmental Justice established the Small Grants Program to provide financial assistance to eligible community groups (e.g., community-based grassroots organizations, churches, other nonprofit organizations, tribal governments) to address local environmental problems.
Each year, approximately $1 million are made available for the Environmental Justice Small Grants Program. These funds are divided equally among the 10 EPA regions, where the actual grants are awarded and managed. Awards range from $10,000 to $25,000 each. The amount awarded in a given year can vary depending on the availability of funds.
Grant proposals submitted for the Environmental Justice Small Grants Program are evaluated within the EPA region where the project is located through competitive review and evaluation. Award decisions are made based on established criteria, which include geographic balance, diversity of project recipients, and sustainability of benefits of projects after the grant is completed. The review criteria also require the applicant to demonstrate strong community involvement.

Goals
• Meaningfully involve and engage the community in planning the redevelopment and reopening.
• Build partnerships among community stakeholders through which environmental and other community issues concerning the former landfill site can be addressed.
• Ultimately, convert back into a useful community asset.

• Enhance the community’s understanding of environmental and public health information systems.
• Generate information about pollution in the community.
• Build community capacity for identifying local environmental justice problems.
• Involve the community in designing and implementing activities to address these concerns.

• Educate and train residents and youth to implement energy efficiency improvements in their neighborhoods.

• Facilitate information exchange among those who are affected by poisoning.
• Allow for the formation of an important partnership with Gardeners.
• Build community capacity to address environmental justice concerns by enabling community members to implement solutions to correct a local problem.

• Employ an environmental justice specialist to initiate community/grassroots/government interaction.
• Build capacity among youth to identify environmental justice problems, enhance problem-solving, and actively participate in solutions for affected communities.
• Hold the first Environmental Justice Awareness Conference.

• Train a core of neighborhood outreach leaders who live near the incinerator in the science and law of medical incineration, environmental networking, and grassroots organizing.
• Through these leaders, create a partnership between the community and the industry.

• Clean up trash, refuse, and other impacts to water quality in the Watershed.
• Identify wildlife and plants that grow in the Watershed.
• Identify riparian areas and possibly map these areas in the Watershed.
• Grow and develop relationships with tribal members and tribal entities.

• Learn more precisely the health and quality of life issues raised by living near freeways.
• Learn about air quality and mechanisms to protect the community from airborne toxins.
• Quantify, translate, and present the knowledge gained to the public in order to promote increased participation in environmental decision-making.

• Establish a working group of Americans familiar with NEPA training needs and challenges.
• Conduct a NEPA training needs assessment.
• Compile and assess existing NEPA training materials.

• Develop a simple resource brochure that covers the basics of the effects of the indoor environment on respiratory health, written for low-literacy understanding and produced in English and Spanish.
• Host a meeting for community leaders to learn about the environmental justice issues surrounding asthma and other respiratory illness.
• Disseminate information packages to all day care centers and elementary schools in the target neighborhood. Send packets to 80 pediatricians and respiratory specialists who might treat patients in the target area.

• Educate communities about the issues of sewage lagoons and the impacts these lagoons might have on the environment and human health.
• Participate in a health fair to further disseminate information to the public about clean water and solid waste disposal.
• Work with the Community Environmental Health Assessment Team to educate the affected counties and to demonstrate the benefits of using alternative solutions to sewage lagoons.

• Revive a lake monitoring database and collect more information.
• Initiate community-based partnerships.
• Create opportunities for future collaborative efforts in protecting surface water and ground water from polluted runoff.
• Utilize data to monitor interstate pollution and to develop regional strategies for reducing air pollution.

• Detect, assess, and evaluate the effects on and risks to human health related to hazardous substances.
• Survey, research, collect, and analyze data, which will be used to expand scientific knowledge and the community’s understanding of the effects of exposure to asbestos.
• Acquire contact information for as many of the identified individuals as possible to establish baseline.

• Detect, assess, and evaluate the effects on and risks to human health from hazardous substances.
• Ensure that the research relates to “hazardous substances,” as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 101(14).
• Research, collect, and analyze data, which will be used to expand the scientific knowledge and understanding of hazardous substances being transported.
• Expand the communities’ scientific knowledge and understanding of hazardous substance issuese.
• Train youth in approved research techniques.
• Publish a report documenting research results and outlining appropriate measures the community

• Train project participants to make presentations and assist them in facilitating the delivery of workshops and demonstrations that illustrate methods and resources related to healthy air, water, and soil.
• Perform hands-on environmental restoration work.
• Disseminate relevant information at all project events and make pertinent information available at project sites in English, Spanish, and Tongan.

• Use research to analyze and understand how air quality affects local low-income and minority communities.

• Inform rural residents about the health hazards associated with the improper management and/or storage of waste materials on their properties.
• Use outreach and education to facilitate the collection and recycling of waste products.
• Reduce the negative health impacts associated with incinerating and stockpiling waste on rural properties.

• Conduct onsite assessments of qualifying low-income residents referred by home-care workers and housing officials.

• Hold formal, classroom-style presentations featuring lectures, slides, posters, props, brochures, and pamphlets.
• Educate residents and the communities about the correlation between indoor quality and their health.

• Estimate particulate matter (PM) emission levels from heavy-duty mobile sources in the area.
• Monitor the concentrations of PM from those sources present in indoor air to better understand the levels of pollution to which residents are exposed.
• Help residents and environmental community workers to better organize and advocate for environmental justice rights, to identify sources of diesel pollution, and to bring together residents and business to improve environmental conditions.

• Produce a report that reveals new information about hazardous air pollutant emissions.

• In the same report, evaluate the risks exposure to hazardous air pollutants pose to the respiratory health

• Improve communications among native peoples and communities on oil and gas issues.
• Enhance native community capacity to identify and address environmental justice issues related to oil and gas development.
• Promote and enhance the native communities’ understanding of information needed to address oil and gas issues.

• Promote safe fishing and fish preparation.
• Organize community participation in cleanup initiatives.
• Encourage more aggressive actions to limit future discharge of toxins into the river.

• Increase community awareness about contaminated sites and sources of industrial air pollution.
• Educate the general public and policymakers about disproportionate environmental health risks.
• Increase community involvement in the Community Coalition for Environmental Justice’s (CCEJ’s) outreach, education, and advocacy efforts on environmental justice issues.

• Transfer oversight responsibilities from government agencies to community leaders within the community.
• Foster the framework and relationships necessary to address environmental justice issues through community outreach and the recruitment of stakeholders within the community.
• Expand the scope of environmental education.
• Assist in integrating volunteers into the Program.
• Conduct outreach presentations to low-income youth and families.

• Increase community understanding about environmental issues related to clean air and recycling.
• Conduct a comprehensive outreach campaign via public radio.
• Encourage public participation in protecting the environment.
• Provide printed information in Spanish.

• Create a process by which youth and their parents will become better educated and more involved with the environmental, programs and projects.
• Increase the capacity of youth and their parents to recognize and participate in finding solutions to the community problems of litter, dumping in the sea and on land, and improper disposal of household hazardous waste.

Subject Matter Contacts

Except for the mail code, these contacts all have the same address:

Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Subject Contact Mail Code Phone # Fax #
Air, indoor air, radiation, ozone, global warming, emissions trading Office of Air and Radiation
Wil Wilson (wilson.wil@epa.gov)
6101A 202-564-1954 202-564-1549
Native American, indigenous peoples, Alaskan Natives American Indian Environmental Office
Jill Nogi (nogi.jill@epa.gov)
4104 202-564-0804
Title VI Office of Civil Rights
Helena Wooden-Aguilar (wooden-aguilar.helena@epa.gov)
1201-A 202-343-9681
Enforcement, compliance, federal facilities, criminal enforcement (all media) Office of Enforcement and Compliance Assurance
Loan Nguyen (nguyen.loan@epa.gov)
2201A 202-564-4041 202-501-0701
Legal Office of General Council
David Coursen (coursen.david@epa.gov)
OGC legal advice is only available to EPA program offices, not to the public.
2322-A 202-564-0781 202-564-5541
Toxic chemicals, pesticides, farmworkers, toxics release inventory Office of Prevention, Pesticides & Toxic Substances
Fred Jenkins (jenkins.fred@epa.gov)
7409M 703-308-9597
Research, technology development Office of Reseach and Development
Jason Edwards (edwards.jason@epa.gov)
8104-R 202-564-5568 202-565-2925
Hazardous waste, land fills, Superfund, brownfields, spills Office of Solid Waste and Emergency Response
Pat Carey (carey.pat@epa.gov)
5101T 202-566-0199
Water, non-point sources, water discharges Office of Water
Alice Walker (walker.alice@epa.gov)
4102T 202-529-7534 202-269-3597
Grants & contracts Office of Admin. & Resources Mgt.
Leo Gueriguian (gueriguian.leo@epa.gov)
3102A 202-564-0388 202-564-1887
Information management Office of Environmental Information
Lorena Romero-Cedeno (romero-cedeno.lorena@epa.gov)
2812T 202-566-0978 202-566-0977
Policy analysis Office of Policy, Economics & Innovation
Kelly Maguire (maguire.kelly@epa.gov)
1807T 202-564-2273 202-566-2220
Congressional liaison Office of Congressional & Intergovernmental Relations
Carolyn Levine (levine.carolyn@epa.gov)
1301A 202-564-1859 202-501-1550
Public affairs Office of Public Affairs
Doretta Reaves (reaves.doretta@epa.gov)
1702A 202-564-7829 202-501-1773
Environmental justice Office of Environmental Justice
Jasmin Muriel (muriel.jasmin@epa.gov)
2201A 202-564-4287 202-501-0740

EJ Regional Contacts

Contact the regional coordinator for your state

REGION 1 (CT, ME, MA, NH, RI, VT)
REGION 2 (NJ, NY, PR, VI)
REGION 3 (DE, DC, MD, PA, VA, WV)
REGION 4 (AL, FL, GA, KY, MS, NC, SC, TN)
REGION 5 (IL, IN, MI, MN, OH, WI)
REGION 6 (AR, LA, NM, OK, TX)
REGION 7 (IA, KS, MO, NE)
REGION 8 (CO, MT, ND, SD, UT)
REGION 9 (AZ, CA, HI, NV, AS, GU)
REGION 10 (AK, ID, OR, WA)

REGIONAL CONTACTS OFFICE # FAX#
(CT, ME, MA, NH, RI, VT)
US EPA, REGION 1
Amy Braz
One Congress Street, 11th Floor
Boston, MA 02203-0001
E-mail: braz.amy@epa.gov
617-918-1346 617-918-0346
(NJ, NY, PR, VI)
US EPA, REGION 2
Terry Wesley
290 Broadway, Room 2637
New York, NY 10007
E-mail: wesley.terry@epa.gov
212-637-5027 212-637-4943
(DE, DC, MD, PA, VA, WV)
US EPA, REGION 3
Reginald Harris
1650 Arch St. (MC-3ECOO)
Philadelphia, PA 19103
E-mail: harris.reggie@epa.gov
215-814-2988 215-814-2905
(AL, FL, GA, KY, MS, NC, SC, TN)
US EPA, REGION 4
Cynthia Peurifoy
61 Forsyth Street
Atlanta, GA 30303
E-mail: peurifoy.cynthia@epa.gov
404-562-9649 404-562-9664
(IL, IN, MI, MN, OH, WI)
US EPA, REGION 5
Lara Lasky
77 West Jackson Blvd. C-14J
Chicago, IL 60604-3507
E-mail: lasky.lara@epa.gov
312-353-5614  312-582-5538
(AR, LA, NM, OK, TX)
US EPA, REGION 6
Shirley Augurson
Fountain Place, 12th Floor
1445 Ross Ave., (6RA-D)
Dallas, TX 75202-2733
E-mail: augurson.shirley@epa.gov
214-665-7401 214-665-6648
(IA, KS, MO, NE)
US EPA, REGION 7
Althea Moses
901 North 5th Street (ECORA)
Kansas City, KS 66101
E-mail: moses.althea@epa.gov
913-551-7649 913-551-9649
(CO, MT, ND, SD, UT)
US EPA, REGION 8
Art Palomares
1595 Wynkoop St.
Denver, CO 80202-1129
E-mail: palomares.art@epa.gov
303-312-6053
303-312-6191
(AZ, CA, HI, NV, AS, GU)
US EPA, REGION 9
Deldi Reyes
75 Hawthorne Street (CED-1)
San Francisco, CA 94105
E-mail: reyes.deldi@epa.gov
415-972-3795 415-947-8026
(AK, ID, OR, WA)
US EPA, REGION 10
Running Grass
1200 Sixth Avenue (CRE-164)
Seattle, WA 98101
E-mail: grass.running@epa.gov
206-553-2899 206-553-7176

In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA’s management and enforcement capability:
1 EPA’s organization and infrastructure;
2 Oversight of delegations to States; and
3 Performance measurement.

we believe that the underlying issues persist.

EPA’s Organization and Infrastructure
In July 1970, the first EPA Administrator formally organized EPA based upon existing environmental legislation that encompassed discrete media programs for water, air, pesticides, radiation, and solid waste, as well as 10 regional offices and a laboratory structure inherited from other federal agencies. However, President Nixon’s Advisory Council on Executive Organization, also known as the Ash Council, recommended organizing EPA according to functional categories (e.g., monitoring, research, standard-setting, enforcement, assistance) rather than along media lines (e.g., air, water, land). This recommended organizational approach was intended to recognize the interrelated nature of pollution problems, acknowledge that pollutants cut across media lines, encourage balanced budget and priority decisions between component functions, and permit more effective evaluations of total program performance.
However, the realities of environmental legislation made this type of integration difficult and would require an incremental, three-phased approach. The first phase of EPA organization was dominated by its discrete medium orientation. The second phase followed a hybrid functional/media structure similar to EPA’s current organization. Finally, the third phase would eliminate the media-oriented program offices in favor of the functional units recommended by the Ash Council. This was never realized. Studies we reviewed indicate that EPA’s failure to move to this third phase may hinder EPA’s ability to effectively enforce and oversee environmental laws.
OIG work has also shown that EPA’s organization has impeded achievement of environmental goals and efficient use of resources. Recurring themes include: inadequate coordination between EPA headquarters offices; inconsistencies in enforcement among EPA’s Regions; inadequate national (Agency) guidance, procedures, or priorities on programs; a lack of strategic plans that link program missions, goals, and performance measures; and decentralized management contributing to allocation and resource management problems. For example:
In a review of EPA’s Drinking Water Program, it was unclear whether the Office of Enforcement and Compliance Assurance (OECA) was adequately coordinating its efforts with the Office of Ground Water and Drinking Water (OGWDW). OECA reported that it has “substantive, regular, and consistent” coordination with OGWDW on both rule development and enforcement, while other sources indicated that OECA’s enforcement priorities may be out of alignment with those of OGWDW.
In a review that assessed EPA’s oversight and assistance of tribal community water systems, we found that the five Regions we reviewed varied in the quality of oversight they provided to tribal community water systems. One Region failed to monitor for certain contaminants, chose not to enter known monitoring violations into the Safe Drinking Water Information System, and did not conduct enforcement actions against the systems that committed these violations.
 EPA relies heavily on guidance to communicate Agency policy and regulations. OIG work has shown a culture in EPA that treats guidance as non-binding to parties, including EPA Regions, and accepting of guidance that is incomplete, draft, or interim. This could lead to inconsistent implementation and impede EPA’s ability to effectively enforce necessary actions since private parties may perceive unfairness and the absence of boundaries on their activities.
 In a review of the Border 2012 Program, a joint U.S.-Mexico effort to improve the environment and protect the health of people living along the border, we found that success varied across the different media areas as well as by leadership despite a program structure aimed at reducing stove-piping. Program implementation varied depending on the Region. There was no systematic roadmap that defined the relationships between resources, activities, and intended outcomes; nor were there management controls to ensure that results were documented or that goals were being achieved.
 An OIG review found that EPA’s decentralized management of the Superfund program contributes to allocation and resource management problems. EPA spreads its Superfund appropriation across a variety of offices and Regions. This has limited EPA’s opportunities to effectively manage Superfund resources for cleanup.
Oversight of Delegations to the States
EPA’s mission is to protect human health and the environment. To accomplish its mission, EPA develops regulations and establishes programs that implement environmental laws. These programs may be delegated to State, local, and tribal agencies that request to take primacy of the program. Delegation, however, does not relieve EPA of its statutory and trust responsibilities for protecting human health and the environment. EPA performs oversight of State, local, and tribal programs in an effort to provide reasonable assurance that delegated programs are achieving their goals. EPA does not have the resources to effectively administer all its responsibilities directly. EPA relies heavily on local, State, and tribal agencies for compliance and enforcement and to obtain performance data. In its FY 2007 Performance and Accountability Report, EPA states it delegated the responsibility for issuing permits and for monitoring and enforcing compliance to the States and tribes.
A critical management challenge to EPA is oversight of its delegations to States. Federal environmental statutes grant EPA a significant role in implementing the intent of the law, and also authorize a substantial role for States. However, quality data is often lacking to ensure that the intent of the law is met. Also, Federal requirements establish consistency for businesses and within industries nationwide. States’ discretion adds flexibility to address specific circumstances and local issues. However, joint implementation and enforcement leads to special challenges in interpretations, strategies, and priorities.
Our evaluations have shown that EPA’s oversight of State programs requires
improvement for several reasons. These include inconsistent enforcement guidance
interpretation; States and Regions not meeting minimum reporting requirements;
differing standards for State delegation agreements among the Regions; disagreements on
enforcement priorities between OECA and the Regions; inaccurate data systems; and
internal control deficiencies. For example:
 We found that EPA did not provide effective enforcement oversight of major facilities with National Pollutant Discharge Elimination System (NPDES) permits in long-term significant noncompliance. EPA inconsistently applied guidance defining timely formal enforcement actions. Also, EPA guidance did not provide meaningful direction on what constitutes “appropriate” actions. Timely and appropriate formal enforcement actions are important to minimize additional pollutants from being discharged into the nation’s waters to ensure protection of human health and the environment. We estimated that up to 51 million pounds of excess pollutant loads were discharged during our review period by 44 facilities reviewed, representing loads that could have been minimized.
 EPA and States did not maintain complete and accurate records of NPDES compliance and enforcement activities. Many Region and State files were incomplete, and data in EPA’s information systems were incomplete and inaccurate. Further, Regions and States did not report inspection-related violations in EPA’s Permit Compliance System. An accurate history of the compliance and enforcement activities at a facility is important for oversight and making future enforcement decisions. The lack of accurate information inhibits EPA’s ability to provide effective oversight to NPDES major facilities and thus protect human health and the environment from excess levels of toxic or harmful pollutants.
 We found Regions and States did not always oversee industrial users discharging into wastewater treatment plants without approved programs. EPA was working on developing guidance for overseeing categorical and significant industrial users discharging to plants without approved programs, but had put it off due to other priorities.
 In a review of EPA’s oversight and assistance of tribal community water systems, we found internal control deficiencies existed in administering EPA’s oversight in some of the Regions we reviewed. To varying degrees, tribal drinking water records were incomplete due to a failure to maintain oversight of system operations and/or poor records management. Internal controls are an important safeguard for ensuring that systems operate as intended. Deficiencies in these controls may indicate that the systems are vulnerable to failure, resulting in increased risk to public health.
Conclusion
Mr. Chairman, EPA’s ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation’s waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA’s current organization and a commitment to implement best practices.

Can Sustainable Farming Feed the World?

by Francis Thicke

 

Business Entity Search

 Entity Name  NV Business ID  Status  Type
IRON MOUNTAIN MINES, LLC NV20011022183 Default Domestic Limited-Liability Company
 Entity Name  NV Business ID  Status  Type
ESSENTIAL SOLUTIONS, INC. NV19981381493 Default Domestic Corporation

 

 

CONTACT:
Jalil Isa
isa.jalil@epa.gov

202-564-3226
202-564-4355

FOR IMMEDIATE RELEASE
September 22, 2010

EPA Hosts Historic Meeting on Environmental Justice

 

Obama administration cabinet members show commitment to healthy environment and strong economy for all Americans

 

WASHINGTON – Today, for the first time in more than a decade, U.S. Environmental Protection Agency Administrator Lisa P. Jackson and White House Council on Environmental Quality Chair, Nancy Sutley, reconvened the Interagency Working Group on Environmental Justice (EJ IWG) in a meeting held at the White House. The meeting, attended by five cabinet members, demonstrates the Obama administration's dedication to ensuring all Americans have strong federal protection from environmental and health hazards. Pollution like dirty air and contaminated water can have significant economic impacts on overburdened and low-income communities, driving away investment in new development and new jobs and exposing residents to potentially costly health threats. This historic gathering marks a recommitment to advancing the mandate of Executive Order 12898, “ Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations , ” which states that each agency, with the law as its guide, should make environmental justice part of its mission.

The role of the EJ IWG is to guide, support and enhance federal environmental justice and community-based activities. By coordinating the expertise and resources of federal government agencies, the EJ IWG will work to identify projects where federal collaboration can support the development of healthy and sustainable communities. The EJ IWG will also seek opportunities to provide green jobs training in communities in need and promote a clean energy economy.

Attendees at the meeting included Attorney General Eric Holder, Department of Justice; Secretary Ken Salazar, Department of Interior; Secretary Shaun Donovan, Department of Housing and Urban Development; Secretary Ray LaHood, Department of Transportation; Administrator Martha Johnson, General Services Administration; Carol Browner, senior advisor to the president on energy and climate change; John Holdren, director of the White House Office of Science and Technology Policy; Melody Barnes, director of the White House Office of Domestic Policy; and representatives from the following federal agencies: Labor, Health and Human Services, Energy, Education, Homeland Security, Commerce, Army, Agriculture and Defense, among others.

“Environmental challenges in low-income and minority communities are barriers to opportunity. Dirty air, polluted water and contaminated lands degrade health and the environment while discouraging investments and economic growth,” said EPA Administrator Lisa P. Jackson. “We believe that the burdens these communities face are best approached with collaborative efforts, built on the strengths brought by a team of different federal agencies. Revitalizing this workgroup creates an important chance to work together on environmental justice issues that have held back the prosperity of overburdened communities for far too long.”

“This country was built on the promise of equal opportunity for all of us, yet low-income families and minority communities shoulder a disproportionate amount of pollution and environmental degradation. We cannot and will not ignore these disparities,” said Nancy Sutley, chair of the White House Council on Environmental Quality. ”As the chair of the Council on Environmental Quality, I am committed to ensuring that environmental justice isn't just an afterthought - it's an integral part of our mission.”

“In too many areas of our country, the burden of environmental degradation falls disproportionately on low-income and minority communities – and most often, on the children who live in those communities,” Attorney General Eric Holder said. “Our environmental laws and protections must extend to all people, regardless of race, ethnicity, or socioeconomic status which is why the Department of Justice is committed to addressing environmental justice concerns through aggressive enforcement of federal environmental laws in every community.”

“At the Department of Transportation, one of our top priorities has been promoting livable communities in collaboration with HUD and EPA,” said U.S. Transportation Secretary Ray LaHood. “Through coordinated investments that improve access to affordable and sustainable housing and transportation opportunities, together we can improve the quality of life for communities across America .”

“As stewards of our natural resources and history, the Department of Interior has a special obligation to protect and promote our nation's resources for all communities and all persons,” said Secretary of the Interior Ken Salazar. “Every American deserves a healthy environment in which they can live, learn and play.”

“HUD joins with our colleagues in the Obama administration to make an unprecedented commitment to combating environmental justice discrimination that all too often affect disadvantaged communities,” said HUD Secretary Shaun Donovan. “At HUD we are committed to providing equal access to housing, mitigating risks to communities in disaster-prone areas, ensuring homes are free of health hazards, and working to create sustainable and inclusive communities across America so that a family's success is not determined by the zip code they live in.”

During the meeting, some immediate next steps for the EJ IWG group were identified; these include:

· Hold monthly EJ IWG meetings, including assigning senior officials from each agency to coordinate EJ activities.

· Organize regional listening sessions in 2011.

· Hold follow-up EJ IWG Principals Meetings in April and September 2011.

· Each agency will be tasked to develop or update their EJ strategy by September 2011.

· Plan a White House forum for EJ leaders and stakeholders on environmental justice.

Administrator Jackson highlighted examples of EPA's environmental justice efforts:

· Plan EJ 2014 —A four-year roadmap to help EPA develop stronger community relationships and increase the agency's efforts to improve environmental and health conditions in overburdened communities. The plan includes three main sections: Cross-cutting Agency Strategies, Tools Development, and Program Initiatives.

· EJ in Rulemaking Guidance —The “Interim Guidance on Considering Environmental Justice During the Development of an Action” is a step-by-step guide that helps EPA staff consider environmental justice at key points in the rulemaking process.

· Sustainable Communities Partnership —A collaborative Department of Housing and Urban Development, Department of Transportation, and EPA partnership to improve access to affordable housing, more transportation options, and lower transportation costs while protecting the environment in communities nationwide.

The principles of environmental justice uphold the idea that all communities overburdened by pollution – particularly minority, low income and indigenous communities – deserve the same degree of protection from environmental and health hazards, equal access to the decision-making process and a healthy environment in which to live, learn, and work. EPA serves as the lead for environmental justice issues in the federal government.

More information on the Interagency Working Group on Environmental Justice:

http://www.epa.gov/environmentaljustice/interagency/index.html

View photos from the meeting:

http://blog.epa.gov/administrator/2010/09/22/epa-hosts-historic-meeting-on-environmental-justice/

 

Subpart E--Procurement Standards of this part. Sec. 1274.902 Purpose (XXX 1995)

The purpose of this cooperative agreement is to conduct a shared resource project that will lead to REMINERALIZATION OF DEPLETED CROP LANDS .

This cooperative agreement will advance the technology developments and research which have been performed on IRON MOUNTAIN MINE . The specific objective is to OPTIMIZE AVAILABILITY OF MINERALS IN SOIL FOR CROPS .

This work will culminate in BETTER AND SAFER FOOD . Sec. 1274.903

 

Responsibilities (XXX 1995). (a) This cooperative agreement will include substantial [ EPA, DOJ, NOAA, NASA, DOE, DOI, FEMA, FWS, CALIFORNIA] _____________participation during performance of the effort. _______ and the Recipient agree to the following Responsibilities, a statement of cooperative interactions to occur during the performance of this effort . ??? and the Recipient shall exert all reasonable efforts to fulfill the responsibilities stated below. (b) ??? Responsibilities. Since ??? contractors may obtain certain intellectual property rights arising from work for ??? in support of this agreement, ??? will inform Recipient whenever ??? intends to use ??? contractors to perform technical engineering services in support of this agreement. The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ (c) Recipient Responsibilities. The Recipient shall be responsible for particular aspects of project performance as set forth in the technical proposal dated ____________, attached hereto (or Statement of Work dated ____________, attached hereto.) The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ Sec. 1274.904 Resource Sharing Requirements (XXX 1995). (a) NASA and the Recipient will share in providing the resources necessary to perform the agreement. ??? funding and non-cash contributions (personnel, equipment, facilities, etc.) and the dollar value of the Recipient's cash and/or in-kind contribution will be on a ________ ( ??? ) - ________ (Recipient) basis.

 

Congressional Oversight Panel Assesses the TARP on the Eve of Its Expiration

Finds Major Economic Weaknesses, Stigma, and Moral Hazard Remain

WASHINGTON, D.C. - The Congressional Oversight Panel today released its September oversight report, "Assessing the TARP on the Eve of Its Expiration." The Panel found that, although the Troubled Asset Relief Program (TARP) provided critical support to the financial markets at a time when market confidence was in freefall, the program has been far less effective in meeting its other statutory goals, such as supporting home values, retirement savings, and economic growth.

Under its original authorization, the TARP would have expired at the end of 2009. Late last year, however, the Secretary of the Treasury exercised his legal authority to extend the program until October 3, 2010, the latest date authorized by statute. This month, in anticipation of the final expiration of the TARP's most significant authorities, the Panel explored the program's overall effectiveness. The Panel found that:

Although the TARP quelled the financial panic in the fall of 2008, severe economic weaknesses remain even today. Since the TARP was authorized in October of 2008, 7.1 million homeowners have received foreclosure notices. Since their pre-crisis peaks, home values have dropped 28 percent, and stock indices -- which indicate the health of many Americans' most significant investments for college and retirement -- have fallen 30 percent. Given that Treasury was mandated by law to use the TARP to address these measures of the economy, their lingering weakness is cause for concern.

The TARP's extension served primarily to extend the implicit guarantee of the financial system. When the Secretary extended the TARP, he stated that any new use of funds would be limited to providing mortgage foreclosure relief, extending capital to small and community banks, and supporting the securitization market. He also noted that extending the TARP would preserve his authority to intervene swiftly in the event of another financial crash -- essentially prolonging the government's "implicit guarantee" of the financial system. In practice, this second justification proved by far the more significant, as Treasury did not add any additional funding to any programs intended to address the specific economic weaknesses identified by the Secretary.

The TARP's "stigma" has grown and may prove an obstacle to future financial stability efforts. Treasury's policy choices have been increasingly constrained by public anger about the TARP. For example, the TARP is today so widely unpopular -- due in part to shortcomings in Treasury's transparency and its implementation of TARP programs -- that some banks refused to participate in the Capital Purchase Program for fear of losing customers. The unpopularity of the TARP may mean that the government will not authorize similar policy responses in the future. Thus, the TARP's greatest consequence may be that the government has lost some of its ability to respond to financial crises.

Economists surveyed by the Panel raised severe concerns about moral hazard. The Panel sought the input of four prominent economists on the effectiveness of the TARP. These experts generally agreed both that the TARP was necessary to stabilize the financial system and that it had been mismanaged and could pose significant costs far into the future. Further, the economists unanimously felt that the program created significant moral hazard. TARP offered its funding on relatively generous terms, without requiring participating institutions to enter liquidation or receivership, remove failed managers, or wipe out existing shareholders. The fact that the government chose not to impose such stringent costs meant that the TARP's moral hazard costs were much greater than necessary.

The full report is available at http://cop.senate.gov/. The Congressional Oversight Panel will continue to issue monthly reports evaluating the TARP until the Panel's statutory authority expires on April 3, 2011.

The Congressional Oversight Panel was created to oversee the expenditure of the Troubled Asset Relief Program (TARP) funds authorized by Congress in the Emergency Economic Stabilization Act of 2008 (EESA) and to provide recommendations on regulatory reform. The Panel members are: J. Mark McWatters; Richard H. Neiman, Superintendent of Banks for the State of New York; Damon Silvers, Policy Director and Special Counsel for the AFL-CIO; Kenneth Troske, William B. Sturgill Professor of Economics at the University of Kentucky; and Elizabeth Warren, Leo Gottlieb Professor of Law at Harvard Law School.

 

TARP cop sees fraud cases rising

By David Lawder

WASHINGTON | Tue Sep 21, 2010 7:46pm EDT

WASHINGTON (Reuters) - The top bailout cop said evidence of fraud among banks that sought taxpayer funds was on the rise, and some of his investigations involve amounts exceeding $550 million.

Neil Barofsky, the special inspector general for the Troubled Asset Relief Program, told the Reuters Washington Summit on Tuesday that his office has 120 open investigations of banks that "reflect the full array of banks that applied for and received TARP funding."

These cases are likely to lead to criminal charges for more bank executives and founders, Barofsky said.

"I just see those numbers going up," he added.

Investigations by the SIGTARP, as his operation is known, so far have led to charges against eight bank executives, including Lee Farkas, former head of bankrupt mortgage lender Taylor, Bean and Whitaker.

Farkas is facing federal charges related to his participation in a scheme to fraudulently obtain $553 million in TARP funds for Montgomery, Alabama-based Colonial Bancshares. The investigation prevented the funds from being disbursed, and Colonial subsequently failed.

Barofsky said that some cases could top the Colonial case in terms of the dollar amount of attempted or actual theft from taxpayers. "We have investigations in, above, and below that range," he added.

The SIGTARP operation is expanding its staff and has opened branch offices in New York, Atlanta, Los Angeles and San Francisco to pursue these investigations, even as the $700 billion bailout program is set to cease new investments on October 3.

Barofsky, who rides around Washington in a black "plainclothes" Chevrolet Impala equipped with a siren and emergency lights, said SIGTARP will hit its peak staff and activity in the next two years, roughly trailing TARP's peak activity by about a year.

The operation will stay in business until the last dollar of bailout investments is repaid or written off, and because some programs could last 10 years, SIGTARP may have another eight to run. But Barofsky said it would likely scale back within a few years as investments are exited.

Barofsky also said he will audit the General Motors Co GM.UL initial public offering soon after it is completed, with the aim of correcting any deficiencies in the process to aid the government's exit from other investments, such as Chrysler Group, insurer American International Group ( AIG.N ) and automotive lender GMAC Financial Services.

AIG PROBE CONTINUING

Barofsky also said his staff is deep into an investigation of the New York Federal Reserve Bank's disclosures about controversial taxpayer-funded payments to AIG counterparty banks as part of the insurer's massive bailout.

Last January, the U.S. House of Representatives Committee on Oversights and Investigations, subpoenaed hundreds of thousands of pages of Fed documents involving the $62 billion in payments to Wall Street and foreign bank to liquidate credit default swap contracts written by AIG. However, the Fed did not provide the same documents to SIGTARP for a previous audit it conducted on the same bank payments.

Disclosure of the payments, often referred to as a "back door bailout" for banks, came months after they were made and fueled public anger over the $180 billion AIG rescue. Treasury Secretary Timothy Geithner, who ran the New York Fed at the time, denied any involvement in the disclosure decisions, but faced calls in Congress to resign over the controversy.

Judge refuses to dismiss AIG lawsuit

(Reuters) - A judge refused to dismiss a securities fraud lawsuit accusing American International Group Inc ( AIG.N ) of misleading investors about its exposure to subprime mortgages, which led to a liquidity crisis and $182.3 billion of federal bailouts.

Monday's ruling by U.S. District Judge Laura Taylor Swain allows the case to go forward and could pave the way for a trial over AIG's near collapse. The government rescue led taxpayers to take a nearly 80 percent stake in the New York-based insurer.

AIG spokesman Mark Herr declined to make an immediate comment.

Investors led by the State of Michigan Retirement Systems accused AIG, executives and directors of failing to disclose the risks that AIG had taken on through its portfolio of credit default swaps (CDS) and a securities lending program.

Swain wrote that the allegations in the class-action lawsuit were sufficient to suggest there was "a strong inference of fraudulent intent" in how AIG communicated publicly about the risks in the portfolio of credit default swaps.

She also said that plaintiffs made sufficient arguments to claim that AIG "materially misled the market" in hiding its "expansive" CDS underwriting, repeatedly expressing confidence in its ability to manage risk and justifying a May 2008 capital raising.

Among the defendants are Martin Sullivan, a former AIG chief executive; Joseph Cassano, who ran AIG's Financial Products unit, which managed the CDS portfolio; current and former directors; 34 banks that underwrote AIG securities, and former accountant PricewaterhouseCoopers LLP.

The lawsuit covers investors who owned AIG securities between March 16, 2006, and September 16, 2008, when AIG received its first bailout.

E. Powell Miller, a lawyer for the lead plaintiff, declined to make an immediate comment, saying he had yet to confer with his client.

Brad Karp, a lawyer for the banks, declined to make an immediate comment. James Gamble, a lawyer for the outside directors, declined to comment. Lawyers for Sullivan, Cassano and PwC did not immediately return calls seeking a comment.

Shares of AIG rose $1.67, or 4.6 percent, to $38.14 in afternoon trading on the New York Stock Exchange.

The case is In re: American International Group Inc 2008 Securities Litigation, U.S. District Court, Southern District of New York, No. 08-05072.

(Reporting by Jonathan Stempel; Editing by Maureen Bavdek and Steve Orlofsky)

 

Christ Statue and Spiritual Sanctuary MR. T.W. "TED" ARMAN, OWNER OF IRON MOUNTAIN MINE, LTD., PRESIDENT, CHAIRMAN, CEO OF IRON MOUNTAIN MINES, INC. OWNER OF IRON MOUNTAIN MINE, IRON MOUNTAIN, THE COPPER MOUNTAIN MINING CO., MOUNTAIN COPPER CO., IRON MOUNTAIN INVESTMENT CO., THE ARMAN CONSOLIDATED MINES, THE ARMAN CONSOLIDATED MINING CLAIMS, THE ARMAN MINES EQUITABLE TRUSTS, THE ARMAN SOVEREIGN WAR ON POVERTY FUND, THE ARMAN MINES CHARITABLE FOUNDATION, THE ARMAN MINES MINISTRY OF NATURAL RESOURCES FEDERATION, THE ARMAN LOST CONFIDENCE MINE, THE ARMAN AGRICULTURAL COLLEGE, THE ARMAN MINES HAZARD AND REMEDIATION DIRECTORATE, THE ARMAN MINES DISCHARGE ASSISTANCE DIRECTORATE, AND THE ARMAN MINES HUMMINGBIRD INSTITUTE COLLEGE OF THE HUMMINGBIRD CENTER FOR HEALTH INSTITUTE FOR LIBERTY AND INDEPENDENCE.

THE HUMMINGBIRD INSTITUTE IS ESTABLISHED AS A FOUNDATION FOR THE CARE OF THE IRON MOUNTAIN CHRIST STATUE AND SPIRITUAL RETREAT.

OLD WORLD MIX - MINERALS & METALS, PAINTS & STAINS, CATALYSTS & NANOMATERIALS, GRANITE & PORPHYRY, AGGREGATES & BUILDING STONE, COPPER, ZINC, SILVER, & GOLD

CALIFORNIA - EPA DELISTING IRON MOUNTAIN MINE! PROCLAMATION TERMINATING THE NATIONAL EMERGENCY

"the revised PHG of 300 g/L is two orders of magnitude greater than the applicable numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life." Rick Sugarek, EPA project manager for Iron Mountain Mine Superfund cleanup, 2008 5 year review. (How much is two orders of magnitude damages?)

COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Keswick dam to Cottonwood creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;

EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in the five signed RODs
(EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004
)

Christ Statue and Spiritual Sanctuary

CERCLA allows PRPs to seek contribution from one another in order to
apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively
or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by
leaving non-settling PRPs liable for all of the response costs
not paid by the settling PRPs.
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.”

New Report Casts Doubt On Government's AIG Investment, TARP 

NU Online News Service, Sept. 16, 3:26 p.m. EDT

WASHINGTON — American International Group (AIG) still relies largely on government funding for capital and liquidity, and “most observers” expect that the AIG Investment Program will generate “significant losses” to U.S. taxpayers, according to a new government report.

The Congressional Oversight Panel's September report on the Troubled Asset Relief Program (TARP)—called “Assessing the TARP on the Eve of Its Expiration”— also carries other distressing news.

It acknowledges that the program provided “critical support” to the financial markets at a time when market confidence was in freefall, but it states the program has been far less effective in meeting its other statutory goals, such as supporting home values, retirement savings, and economic growth.

And, because it failed to stem the decline in value of the assets of Americans, especially their securities and homes, the report says the TARP program is very unpopular amongst the public.

“Thus, the greatest consequence of the TARP may be that the government has lost some of its ability to respond to financial crises,” the report notes.

It adds that since TARP was authorized in October of 2008, 7.1 million homeowners have received foreclosure notices.

“Since their pre-crisis peaks, home values have dropped 28 percent, and stock indices—which indicate the health of many Americans' most significant investments for college and retirement—have fallen 30 percent,” the report states.

“Given that Treasury was mandated by law to use the TARP to address these measures of the economy, their lingering weakness is cause for concern,” according to the report.

The COP report was released on the “eve of the expiration of the program,” which is scheduled to end Oct. 3.

“Popular anger remains high about taxpayer support of America's largest banks, and that anger has only intensified in light of the continuing economic turmoil,” the report states.

The TARP's unpopularity may mean that, unless the program's effectiveness can be convincingly demonstrated, the government will not authorize similar policy responses in the future, according to the report.

Regarding AIG, it says the latest estimates by the Congressional Budget Office, the Office of Management and Budget and the Treasury project losses in the amount of $36 billion, $50 billion, and $45 billion, respectively, although the estimated losses have steadily decreased since the inception of the credit facility.

The report notes that Treasury's ability to recoup its investment depends on the value of AIG's common stock at the time Treasury sells its interests.

Therefore, the report states, the value of Treasury's substantial investment in AIG and the size of any gain or loss are dependent on many external variables, and “the protracted investment in AIG continues to create significant risks to taxpayers.”

The report adds that Treasury has invested approximately $47.5 billion in TARP funds in AIG. This investment is comprised of non-cumulative preferred stock in the amount of $40 billion and an equity capital facility under which AIG has drawn down $7.5 billion.

Including the $1.6 billion in unpaid dividends, AIG's outstanding TARP assistance equals $49.1 billion, the report explains.

In addition, AIG must repay $79.1 billion in outstanding debt to the Federal Reserve Bank of New York.

“The timing of Treasury's exit is complicated by the fact that AIG is not permitted to repay Treasury until it has fully repaid FRBNY,” the report states.

Treasury, the Federal Reserve, and AIG have stated that they are confident that AIG will fully repay FRBNY in the near future without “jeopardizing its financial viability,” according to the report.

"All our constitutional laws and our system of government are based upon the fact that the government is not permitted to do anything that violates this system... but if the government is in a position to increase the quantity of money, all these provisions become absolutely meaningless and useless." — Ludwig von Mises

 

TARP Oversight Panel: AIG Still a 'Significant Risk' to Taxpayers

September 20, 2010

American International Group Inc. still owes the federal government about $128.2 billion, and the Troubled Asset Relief Program's Congressional Oversight Panel has issued a report suggesting it's still hard to say whether that taxpayer investment will pay for itself.

"Whether Treasury will be able to exit its investments in AIG without substantial losses turns on AIG's ability to produce strong operating results and demonstrate that it is capable of functioning as a stand-alone investment-grade company without government support," the report said.

An attempt to reach AIG (NYSE: AIG) for comment on the TARP report wasn't immediately successful.

"AIG still relies largely on government funding for capital and liquidity, although there are recent indications that AIG is planning to issue bonds," the report said. "Treasury's ability to recoup its investment depends on the value of AIG's common stock at the time Treasury sells its interests. Therefore, the value of Treasury's substantial investment in AIG and the size of any gain or loss are dependent on many external variables, and the protracted investment in AIG continues to create significant risks to taxpayers."

The company's outstanding TARP help equals $49.1 billion, while its debt to the Federal Reserve Bank of New York is $79.1 billion. AIG has to repay FRBNY before it can turn to settling its debt with the Department of the Treasury.

In general, the report reflected increasing optimism in the federal agencies that AIG may recover, but it points out the company has offered no concrete time line for debt repayment.

"At this time, AIG cannot afford to divert the cash it is generating through its insurance operations towards repaying FRBNY, because it is still quite weak financially," the report said. "Both the timing of the government's exit from its involvement with AIG and the ultimate return on its investment are difficult to predict with confidence."

The panel's report also included views from academic experts. It quoted Alan Blinder, a professor of economics and public affairs at Princeton University, as saying that "regarding stabilizing institutions like AIG, one has to count TARP as a huge success." He said it threw a "security blanket around every large entity. This is not something you'd want to do under normal circumstances but was appropriate at the time. And the net cost to the taxpayers for this part of the program will, in the end, be very small. In that sense, TARP looks like a bargain."

Because Treasury will sell off the remaining warrant positions it holds in Hartford Financial Services Group Inc. and Lincoln National Corp., ending the financial connection between the two major insurers and the federal government, that leaves AIG as the only insurance company financially connected to TARP (BestWire, Sept. 9, 2010).

TARP is nearing its statutory expiration on Oct. 3.

AIG stock was trading at $36.67 on the afternoon of Sept. 20, up 2.89% from the previous close. Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent).

Hank Greenberg on the AIG Plan: ‘Disgraceful'

-By Shira Ovide and Serena Ng

Hank Greenberg hasn't worked for AIG in five years. But he still has plenty of strong opinions about the plan announced today for the government to unwind its majority ownership in the troubled insurer he once led.

“I think that's disgraceful to say they don't want me or shareholders to make money,” Greenberg, who left in 2005 amid an accounting probe, said to WSJ about the Treasury's reported efforts to carefully select the price of converting its $49 billion in AIG preferred shares into what will be a 92% stake in AIG's common stock .

Greenberg took issue with views attributed to Treasury officials that the government doesn't want to leave too much room for AIG's private investors to reap a windfall from their company stock. Greenberg remains one of AIG's largest private investors.

“It sounds like the old Soviet Union,” Greenberg said in another interview today. “When the government starts deciding who should make a profit and who should not, if you invested in a company, what kind of a message does that send?”

Greenberg also challenged the view, held by some federal officials, that it will take around a year and a half for the U.S. government to completely dispose of its AIG shares.

“I think it's going to take years, maybe a decade or more, for [the government] to sell down over 90% of the company,” Greenberg said in the Journal interview from Wednesday. “I'm not going to spend even a nickel to buy any more shares with the government owning so much stock.”

“As soon as they try to sell the stock it will go down,” making further sales more difficult, he predicted.

 

 

National ag groups ask EPA to reconsider water strategy nationally and in Florida


Thirty-six national agriculture groups are asking the U.S. Environmental Protection Agency to delay a proposed action on water quality in Florida and to reconsider its strategy nationally because of the expected costs.

The EPA has proposed numeric limits for nutrients including phosphorus and nitrogen in Florida's rivers, springs and lakes to reduce algae blooms and coastal red tide events. But the federal agency, which is scheduled to adopt a proposal on Oct. 15, faces opposition from state agriculture officials and the Florida Department of Environmental Protection along with utilities, cities and agriculture groups who say the limits will be too costly.

The Sept. 17 letter was sent by national groups including the American Farm Bureau Association, the National Association of State Departments of Agriculture, the National Milk Producers Federation and the U.S. Cattleman's Association. They asked EPA to delay the Oct. 15 action on the proposed criteria for lakes, streams and rivers and to combine it with criteria for Florida estuaries that are expected to be finalized in 2012.

Wastewater utilities in Florida have estimated the cost of complying with the new criteria as $98 billion over 30 years. The Florida Department of Agriculture and Consumer Services has estimated the initial cost for Florida farmers at $3 billion with annual costs at $902 million to $1.6 billion. The EPA has offered the much lower estimate of $130 million plus $11 million per year for agriculture, utilities and other industries.

The criteria being established in Florida will provide a template for EPA to use elsewhere in the nation when setting criteria, according to the letter from the 36 groups. They said the 1998 National Strategy for Development of Regional Nutrient Criteria should be updated to include new science to address concerns about the cost of such regulations.

"The goals of the Clean Water Act must not be set and pursued in isolation from all of the other important goals and priorities of society, including promoting vibrant, strong, job-creating businesses, economically strong communities and productive and valuable use of the land for agricultural and other purposes," the letter said.

An EPA spokesperson said Monday that the agency "is proposing a cost-effective rule to curb the impacts of nutrient pollution that decimates property values and can cause costly illnesses." Earthjustice attorney David Guest, who represents environmental groups in a lawsuit that led to EPA setting a timeline for proposing the criteria in Florida, dismissed what he said are the "phony economic arguments" from the agriculture industry.

"The real reason is when the numbers are set it is going to become so clear that agriculture is destroying the drinking water supplies and the rivers, lakes, and estuaries upon which our whole economy depends; and it is going to become so clear they have to clean up their act," Guest said.

(Story provided by the Florida Tribune . Photo and story copyrighted by Bruce Ritchie and FloridaEnvironments.com. Do not copy or redistribute without permission, which can be obtained by contacting brucebritchie@gmail.com.)

New and Revised Clean Water Act Methods Proposed

September 23rd, 2010

 

In August 2010 the EPA issued a notice proposing new and revised analytical methods to be used under the Clean Water Act (CWA) .

The proposed rule, entitled “Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; Analysis and Sampling Procedures”, will effect numerous EPA Methods , ASTM Methods, Standard Methods, and alternative test methods.

EPA methods:

ASTM methods:

In addition, the EPA has proposed adding eight alternate test procedures:

The Standard Methods to be impacted, include those for oil and grease, ammonia, boron, inorganic ions, arsenic, selenium, aluminum, beryllium, chemical oxygen demand, phosphorous, oxygen, potassium, silica, sulfate and sulfide.

In addition, EPA is proposing minimum quality control requirements to improve consistency across method versions; corrections to previously approved methods; and various changes to sample collection, preservation, and holding time requirements.

For complete information on these methods read the proposed rule by visiting
www.epa.gov/waterscience/methods/update/methodsprepub.pdf

 

 

September 20th, 2010 02:15am

TARS policy addresses regulatory inconsistency

By Dan Verel, Business Journal Staff Reporter

 

Improving Drinking Water Quality by Ensuring Water Quantity

Posted on September 22, 2010 | Filed Under: Clean Water , Protecting Rivers , Global Warming

Jenny Hoffner
Director, Water Supply

09-21-10 NACD Weighs in on EPA's Clean Water Strategy

Posted by Brian Allmer on September 21, 2010

 

Available Funding in Region 9

EPA supports two major types of grants:

Ongoing grants , which are commonly awarded to states, tribes, and U.S. territories to support and establish environmental programs;

Project-specific grants , which are typically competitive, and available to state and local governments, tribes, non-profit organizations, and educational institutions.

Funding Sources for Communities
Provides summaries of current Region 9 funding opportunities, contacts, and links to related documents. The Catalog of Federal Domestic Assistance (CFDA) provides a complete listing of all the different types of EPA grants. For a complete listing of EPA grant opportunities currently open, visit Grants.gov .

Funding Solicitations (Open RFPs)
Includes details about many of EPA Region 9's current funding opportunities, and how to submit a proposal.

Agriculture Grants
Grant funding for projects that explore ways to improve agricultural practices and reduce their environmental effects

Managing Your Special Appropriation Act Project
Guidance for special situations defined in EPA's annual Appropriations Act.

Region 9 Topics and Program

Information for Applicants

Before You Apply
You should be familiar with federal grant requirements before you apply. These requirements, established in law , Executive Order, federal regulation, and the OMB Circulars, often vary depending on the type of organization applying. For example, they establish which costs may be charged to a federal grant, how open competition is required for equipment, supplies, and contracts procured under a grant, and what efforts that must be taken to contract with women- and minority-owned firms.

Applying for a Grant
If you have been asked to submit a formal application for a grant by an EPA project officer or your proposal has been formally selected for funding by EPA Region 9, please follow these guidelines. In many cases, EPA Region 9 will send you additional guidance information with a Region 9 tracking number to help you apply for your specific program/project. If you are submitting a grant proposal , however, there is a different procedure (see Requests for Proposals ).

Managing Your Grant
Information for EPA grant recipients, including regulations, common forms, reports, and required certifications.

Water State Revolving Funds

General EPA Guidance on Section 1512 Recipient Reporting:

Federal Reporting:

Davis Bacon Act Regional Resources

EPA Civil Rights Obligations under The Recovery Act

EPA Notice to Grantees Re: ACORN Funding Prohibitions, August 17, 2010

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Agenda 5 27 May 2010 Litigation filed against the Regional and/or ...

Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines , Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. ...
www.co.merced.ca.us/BoardAgenda/2010/MG154943/.../5.TXT - Cached

[PDF]

Addressing Threats from Abandoned Mines in California Communities

File Format: PDF/Adobe Acrobat - Quick View
Effects to biota are often acute (fish kills). ? Effects to plants are long lasting (barren hill sides). Iron Mountain Mine , Shasta County ...
www.dtsc.ca.gov/SiteCleanup/upload/AML_Threat-presentation.pdf

Natural Resource Restoration Plans, NOAA Office of the General Counsel

Apr 21, 2010 ... Iron Mountain Mine Iron Mountain Mine Trustee Council. 2000. Final Restoration Plan for Natural Resource Injuries From Iron Mountain Mine . ...
www.gc.noaa.gov/natural-office2.html - Cached - Similar

Iron Mountain Mine Iron Mountain Mine Trustee Council. 2000. Final Restoration Plan for Natural Resource Injuries From Iron Mountain Mine. Report of the Iron Mountain Mine Natural Resource Trustee Council, U.S. Fish and Wildlife Service, U.S. Bureau of Land Management, U.S. Bureau of Reclamation (USBR), California Department of Fish and Game, and National Oceanic and Atmospheric Administration. Copies may be requested from: Eva Grey, USBR. [Southwest DARRP web site.]

10/19/2000: U.S., STATE ANNOUNCE LONG-TERM SETTLEMENT FOR IRON ...

The EPA listed Iron Mountain Mine as a federal Superfund site in 1983, ... Additional information on Iron Mountain Mine is available on the Web at ...
yosemite1.epa.gov/.../ 6d8c6077be9d48d68525697d005f3ad3!OpenDocument&Start=1&

RODS Abstract Information - Superfund Information Systems - EPA ...

The Iron Mountain Mine site includes mining property on the topographic ... Iron Mountain Mines , Inc. (IMMI) acquired a majority of the parcels to the mine ...
cfpub.epa.gov/superrods/index.cfm?fuseaction=data.rodinfo... - Cached

 

1. Although the majority confusingly states that "we join the other circuits that measure delay from when the movant was on notice that its interests may not be protected by a party already in the case," Maj. at 18 (emphasis added), the majority's application of this standard correctly measures delay from when the Nation could no longer reasonably believe its interests were adequately represented. See Maj. at 21 ("The Nation could never have reasonably thought that the state was representing the Nation's interests in recovering its damages.").

2. I express no view on whether the district court properly resolved Tyson's Rule 19 motion. Rather, I only point out that until that motion was resolved, the Nation could have reasonably believed that the district court would adopt the position of Coeur D'Alene II rather than the position of Coeur D'Alene I regarding the CERCLA trustee issue.

 

 

 

Shasta County , by M. E. Dittmar, Redding , California .

"The best foundation for communal prosperity is diversity of resource. A diversity of soil and climate assure a variety of agricultural, horticultural and pomological products. A diversity of industrial raw materials and forest resources invites industrial expansion. When a community embraces these, with a superabundance of water for power and irrigation, it offers a combination of advantages, rarely equalled (sic) and never excelled. These are the advantages that Shasta County at the extreme head of the Sacramento Valley possesses.

"In area Shasta is the largest geographical subdivision of the Sacramento River drainage, embracing 4,050 square miles within its borders - the States of Rhode Island and Delaware could be included in this area and leave a surplus of over 750 square miles.

"The increasing importance of irrigation as an aid to intensive agriculture, speeding up the soil, is generally recognized. As compared with dry farming and cereal crops exclusively, intensive agriculture, fruitgrowing (sic) and diversified husbandry, has increased the annual net profit from the soil many fold. In the last analysis, water on the land is as a rule more valuable than the land itself.

"According to official daily gauging records, the average annual run-off, originating within the limits of Shasta County , is 8,100,000 acre feet - a valuable irrigation and power asset.

"Over one-sixth of the potential water-power energy of California exists within the border of Shasta County . The development of cheap and convenient power means industrial development. Water, for power and for irrigation, is the 'open sesame' of Shasta's future.

"To utilize the power, Shasta has industrial raw materials to attract giants of capital and industry. The industrial metals, copper, iron and zinc, already highly developed and of the first magnitude in quantity; cement materials and great beds of fine quality clays; the elements essential for the manufacture of commercial fertilizers, on a scale to supply the greater part of the North American continent with calcium nitrates - destined to entirely supersede the sodium nitrates of Chile; hardwood timber for the manufacture of furniture, and vast forests of commercial pine and fir for the lumberman - containing over 5,250,000,000 feet (board measure) standing commercial timber.

"These resources represent the foundation for an industrial community that cannot be equalled (sic) for diversity, quantity and general advantages, within a like area anywhere in the United States .

In metal mining, Shasta has been in a class by itself, leading all other countries in California for the past eighteen years. The official statistics from 1897 - the year when her great sulphide ore bodies were first exploited - to 1914 (last year estimated) credit the county with a total output of $99,144,777, or an average of over $5,508,000 per year.

"More than two thousand men find employment at good wages, all the year round, in this great industry, and approximately $3,000,000 per annum are paid out within the borders of the county for wages and supplies.

"The great industrial metal, copper, is next to iron in importance, in the work of the world. In the past eighteen years Shasta has produced 488,211,278 pounds of this metal.

"To Shasta County is due the credit of the first important development on the Pacific Coast , in the production of iron ore, and the manufacture of pigiron by means of the electric furnace.

"The electric furnaces at Heroult have also been utilized in the manufacture of ferro-manganese, for the steel plants of the eastern portion of the United States . Here are grouped the iron ores, the elements essential in the manufacture of special steel, and a million horsepower of potential energy - the basis for the upbuilding of another Pittsburgh.

"In emphasizing the industrial present and future of Shasta County, we wish to make its importance apparent from the 'home market' viewpoint, with thousands of consumers finding remunerative and continuous occupation the producer has an advantage not frequently enjoyed, and this is particularly true where intensive cultivation is practiced, on smaller land holdings.

Deciduous fruit is grown on an extensive scale in the lower valleys and foothills. The culture of the prune is predominant, with peaches and pears a close second.

"The olive, one of the most stable orchard products, has demonstrated its superiority in Shasta County . Hundreds of contiguous acres are now planted to olive groves, and one of the largest groves in the State, containing 120 acres, planted more than twenty years ago, is also one of the most prolific in the State.

"The vine, in these higher but still semi-tropic latitudes, during the long sunny summer days, stores larger percentages of sugar in the grape - an advantage that will appeal to the viticulturist.

"No climatic reason exists why oranges should not be grown successfully, as the isothermal zone of the Central California valleys extends to the vicinity of Redding . Trees a score of years old or more, planted chiefly for ornamental purposes, attest the feasibility of citrus culture.

"Cereals of all kinds are grown in the main valley - especially in the Church Creek Bottoms - and in the mountain valleys of northeastern Shasta. A greater area is being devoted from year to year, to alfalfa, with the increase of irrigation - although three crops are usually cut without irrigation - and dairying and stock-raising are on the increase.

"The stock-grower, except where stock is wintered in the higher altitudes, does little winter feeding, utilizing instead a combination of summer and winter range, made possibly by the varying altitudes and the vast acreage of public domain in the forest reserves.

" Shasta County contains a number of thriving cities and towns. Redding is the county seat, a beautifully located city of about four thousand people (circa 1915), at the extreme head of the Sacramento Valley , where mountain and vale meet. It is the natural distributing center for a large area of Northern California, the center of industrial development, with large and prosperous business houses, excellent hotels, etc., up-to-date schools including the Shasta County high school, churches of various denominations, and all the more prominent fraternal organizations.

"The thriving towns of Anderson and Cottonwood are the chief fruit centers of Shasta, and thousands of tons of fruit, as well as agricultural products and livestock, are shipped annually from these points.

"Kennett is the center of smelting activity, and is an important industrial city of over two thousand people.

"Other towns of importance are Fall River and McArthur, in northeastern Shasta; Castella, La Moine and Delta, in the Sacramento Canyon ; De Lamar, French Gulch, the old pioneer county seat of Shasta, Coram and Keswick, in the mining districts; Millville and Ono represent smaller agricultural and stock-raising communities.

"The County is traversed by many good roads, and the streams are bridged with creditable permanent structures. The California State Highway is under construction, through the heart of Shasta, and State Highway laterals, into Trinity County to the west, connecting with the main trunk road at Redding , have been provided for.

"Shasta has excellent main line railroad facilities, with expansion in feeders and other main line construction assured in the near future.

"The beautiful in nature is blended with the utilitarian, in Shasta County . In the Shasta Canyon , enchanting vistas of Mount Shasta and the stately domes and spires of the Castle Crags offer an ever-changing panorama of indescribable grandeur, through verdant mountain recesses cut by the crystal river.

"The beautiful McCloud in all its pristine glory, where the gamey trout abounds, and the timid doe or stately buck emerges from their leafy lanes along the river's brink or mountain glades. The rugged gorges of the Pit, where masjesty (sic) and power impress the visitor. Beautiful Burney, the misty mistic (sic) falls that tumble over lava cliffs a hundred feet and more, to greet the onrush of the river - all these inspire.

"But nature, not content with her lavish bestowal of the majestic and beautiful, assays a new wonder - the awe-inspiring eruption of Mount Lassen . In a region of fantastic natural features, the mountain long quiescent now holds the center of the stage. Unique, as the only active crater in continental United States - remote from centers of population, that the release of its pent-up energies may fall harmless - it presents a spectacular climax in its periodical eruptions, forcing a mighty column of steam and volcanic ejecta, two miles and more in the air. This is Shasta's exclusive wonder, though visible for a hundred miles, and Congress recognizes its attractive powers by proposing to establish here the Lassen Volcanic National Park . The Lassen Trail Highway to Manzanita Lake , five miles from the crater summit, presents a route of easy access for the automobilist. The nature lover will find the lure of Shasta's natural wonders an inspirational revelation.

"The development of the manifold resources of Shasta County assures her a great future -

"The door of opportunity stands ajar.
Industrial opportunity for capital.
Land at reasonable prices for the home-seeker.
Delightful climate, and magnificent scenery.
The foundation of prosperity is secure.

"(Note. - For more detailed information, send for booklet on Shasta County , California , free, address Shasta County Promotion and Development Association, Redding , California . Or during the Fair at Shasta headquarters, California State Palace , P.P.I.E.)"

Shasta County Mineral Industry (circa 1919) – Excerpt from California Mineral Production for 1919, Bulletin No. 88 , by Walter W. Bradley, California State Mining Bureau, 1920, pp. 165.

Area: 3,858.
Population: 13,311 (1920 census)
Location: North-central portion of state.

" Shasta County stood eleventh in California among the mineral-producing counties for 1919, with an output valued at $2,912,718, as compared with the 1918 production worth $8,098,671. The marked decrease both in 1918 and 1919 was due to the falling off in the output of copper, the large plants of the Mammoth and Mountain copper companies being shut down most of the year. Not taking petroleum into account, Shasta for a number of years lead (sic) all of the counties by a wide margin; but in 1919 was passed by San Bernardino , Yuba, Amador, and Nevada among the 'metal' counties.

"Shasta's mineral resources include: Asbestos, barytes, brick, chromite, coal, copper, gold, iron, lead, lime, limestone, mineral water, molybdenum, pyrite, silver, soapstone, miscellaneous stone, and zinc.

"Lassen Peak is located in southeastern Shasta County

"Commercial production for 1919 was as follows:

(Headings for the information below are: Substance, Amount, and Value.)

Copper, 8,673,342 lbs., $1,613,242
Gold, ---, $425,000 (estimated)
Lime and limestone, ---, $29,100
Platinum, 121 oz., $21,075
Pyrite, 138,046 tons, $497,398
Silver,---, $155,000 (estimated)
Stone, miscellaneous, ---, $31,750
Other minerals,* ---, $40,153
(Total value) $2,912,718

(* Includes barytes, brick, iron ore, lead, mineral water, and zinc.)

CAL. HSC. CODE § 25375.5 : California Code - Section 25375.5

(a) Except as specified in subdivision (b), the procedures specified in Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and in Section 11513 of, the Government Code apply to the proceedings conducted by the board pursuant to this article.

(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804, and 805 of the Evidence Code apply to the proceedings conducted by the board pursuant to this article.

(c) The board may consider evidence presented by any person against whom a demand was made pursuant to subdivision (c) of Section 25372. The evidence presented by that person shall become a part of the record upon which the board's decision shall be based.

Nothing in this article shall require, or be deemed to require, pursuit of any claim against the board as a condition precedent to any other remedy.

(a) Compensation of any loss pursuant to this article shall preclude indemnification or reimbursement from any other source for the identical loss, and indemnification or reimbursement from any other source shall preclude compensation pursuant to this article.

(b) If a claimant recovers any compensation from a party in a civil or administrative action for a loss for which the claimant has received compensation pursuant to this article, the claimant shall reimburse the state account in an amount equal to the compensation which the claimant has received from the state account pursuant to this article. The Attorney General may bring an action against the claimant to recover the amount which the claimant is required to reimburse the state account, and until the account is reimbursed, the state shall have a lien of first priority on the judgment or award recovered by the claimant. If the state account is reimbursed pursuant to this subdivision, the state shall not acquire, by subrogation, the claimant's rights pursuant to Section 25380.

(c) The Legislature hereby finds and declares that it is the purpose of this section to pr