Government Attacked For AIG Bailout - TIME FOR REFORM!

The Congressional Oversight Panel attacked the Treasury for two aspects of its bailout of AIG.

“By providing a complete rescue that called for no shared sacrifice among AIG's creditors, the Federal Reserve and Treasury fundamentally changed the relationship between the government and the country's most sophisticated financial player.”

“The AIG rescue demonstrated that Treasury and the Federal Reserve would commit taxpayers to pay any price and bear any burden to prevent the collapse of America's largest financial institutions and to assure repayment to the creditors doing business with them.”

"History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control over governments by controlling money and its issuance." - James Madison

The word decapitation can also refer, on occasion, to the removal of the head from a body that is already dead. This might be done to take the head as a trophy , for public display , to make the deceased more difficult to identify, for cryonics or for other reasons.

In an analogous fashion, decapitation can also refer to the removal of a head of an organization. If, for example, the leader of a country were killed, that might be referred to as 'decapitation'. It is also used of a political strategy aimed at unseating high-profile members of a party, as used by the Liberal Democrats in the United Kingdom general election, 2005 .

(Caput inter nubila condit. )

false claims of unusual exigency - coercive monopoly fraud


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

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

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.”

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

“The fact remains that AIG's rescue broke all the rules, and each rule that was broken poses a question that must be answered.” - Ms. Elizabeth Warren, Congressional TARP oversight panel chairwoman






States may make whatever laws they wish (consistent with their State Constitutions) except as prohibited by the US Constitution. Only Laws made by Congress, which are pursuant to the Constitution, qualify as part of the General Government Law of the Land.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State  to the Contrary notwithstanding. [emphasis added]

Federal sovereign immunity

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

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

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

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

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

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

errare humanum est, sed perseverare diabolicum

'to err is human, but to persist is diabolical.'

extra territorium jus dicenti impune non paretur


EPA Overreach

by Iain Murray June 15, 2010

Conductivity: an inappropriate measure of water quality, says NMA

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

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

The answer to both questions is -no.

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

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

Non-Settling Potentially Responsible Party May Intervene in CERCLA Action

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



U.S. Supreme Court upholds Kern County ban on L.A. sewage sludge In refusing to review the city's claim, the high court sends the issue back to U.S. District Court for evaluation. The city may re-file in state court. By Louis Sahagun, Los Angeles Times, June 8, 2010
The U.S. Supreme Court's refusal to review Los Angeles' claim that a voter-approved ban on dumping sewage sludge in Kern County violates federal interstate commerce laws has plunged the city into a period of municipal distress over the best way to handle its processed human waste.

The petition aimed to quash a Kern County law known as Measure E, which was approved in 2006 to block shipments from Southern California of more than 450,000 tons a year of treated wastes known as bio-solids to Green Acres, a farm the city bought in 1999 at a cost of about $15 million.

The sludge is tilled into the 4,700-acre farm's soil to fertilize crops, including corn.

The Supreme Court declined to comment last week, letting stand a previous 9th U.S. Circuit Court of Appeals decision that the city and its allies, including the Orange County Sanitation District, lacked standing to sue under the commerce clause of the U.S. Constitution because the case involved transfers of a commodity from one portion of the state to another.

The case has been sent back to Los Angeles U.S. District Court Judge Gary A. Feess, who must decide whether to maintain jurisdiction over remaining state-level claims or allow a state court to handle them.

Those claims are that Measure E is preempted by the California Integrated Waste Management Act, which requires local agencies to recycle their wastes, including bio-solids, and that it exceeds its own police powers by exerting authority over another government entity's operations.

Kern County wants Feess to back out of the case, which would require Los Angeles to start all over in state court. Los Angeles would prefer that Feess retain jurisdiction and reaffirm his 2007 ruling that struck down the ban as unconstitutional.

Regardless of Feess' ultimate decision, Edward Jordan, assistant city attorney for Los Angeles, has no intention of dropping his legal challenges against Measure E.

"Our position is that it would be a waste of judicial resources to have this case fully briefed all over again in state court," he said. "But we will re-file in state court if we have to. People have a right to have ballot measures, but local governments cannot go against the State Integrated Waste Management Act."

Kern County officials said the ban was intended to protect underground water and the local environment from possible contamination and emissions from diesel trucks. However, campaign slogans such as "Measure E will stop L.A. from dumping on Kern," and "We've got the bully next door flinging garbage over his fence into our yard" suggested that the law was aimed at slamming the door on Los Angeles' sludge.

In its petition to the Supreme Court, the city warned that the 9th Circuit's decision, coupled with the Kern County ban, could unleash discriminatory trade war restrictions among municipalities in the same state. Blocking the transfer of the sludge would also increase air pollution by causing city trucks to haul the waste hundreds of miles to landfills in Arizona at an annual cost of more than $4 million.

"We've got a $100-million investment in Green Acres," said former Los Angeles Deputy City Atty. Keith Pritsker. "There is no way we are going to walk away from it."

The case is of particular interest to Steve Fan, manager of the 144-acre Hyperion Treatment Plant, the city's oldest and largest wastewater treatment plant.

The plant, just south of Los Angeles International Airport, receives about 350 million gallons of waste water a day via 6,500 miles of sewage lines. The waste is treated with heat and digested by certain strains of bacteria to produce methane gas, which is used to generate electricity and a substance Fan described as "clumpy and very dark with the consistency of wet cake."

"Each day, 28 trucks depart in the early morning — when there is less traffic — with a total 630 tons of wet cake," he said. "By the time it is applied to the land at Green Acres it is a steaming 120 degrees. It meets all state and federal requirements for bacterial counts and heavy metals. The farm is surrounded with a 500-foot-wide buffer zone."

"We really try to be good neighbors there," he said. "The problem is the general concept, perhaps."
Third Circuit Clarifies Availability of Cost Recovery Claims Under Section 107 of CERCLA TITLE 5 > PART III > Subpart A > CHAPTER 29 > SUBCHAPTER I > § 2902May 26, 2010 In an April 12, 2010, opinion, the U.S. Court of Appeals for the Third Circuit clarified which claims are available to different classes of potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In Agere Systems Inc. v. Advanced Environmental Technology Corp ., No. 09-1814, 602 F.3d 204, 2010 WL 1427582 (3d Cir. Apr. 12, 2010), the court denied Section 107 cost recovery claims to PRPs who had been granted contribution protection after settling with EPA or a state, while allowing Section 107 claims by PRPs involved in private party settlements. CERCLA provides PRPs with three potential avenues to recover costs from other PRPs. Under Section 107(a), a party that has incurred costs to clean up a contaminated site may recover those costs from other PRPs. Courts have generally found Section 107 imposes joint and several liability such that the plaintiff could recover 100 percent of its costs from defendants. Defendants in turn could bring contribution claims to defray the potential impact of joint and several liability. Under Section 113(f)(1), a PRP may seek contribution from any other PRP during or following a civil action under Section 106 or 107 of CERCLA. See Cooper Industries, Inc. v. Aviall Services , Inc., 543 U.S. 157 (2004) (denying PRP a contribution action under 113(f)(1) unless it had been sued in a 106 or 107 action). Under Section 113(f)(3)(B), a PRP who has resolved CERCLA liability to a governmental unit through settlement may seek contribution from any other PRP. Courts applying Section 113 allocate response costs among liable PRPs based on their “fair share” using equitable factors. In Agere , five plaintiffs who incurred costs in the cleanup of the Boarhead Farms Superfund Site in Pennsylvania asserted claims under both Sections 107 and 113. One significant benefit that CERCLA gives to PRPs who enter into a settlement with the government is contribution protection — such PRPs are shielded from future contribution liability for the matters addressed in the settlement that might have been brought against them by other PRPs. In the Third Circuit, however, this protection now comes with a price. Shielded PRPs do not have recourse to the potentially higher joint and several recovery provided under 107(a), and must instead rely solely on recovery based on equitable (and several) contribution liability under 113(f). The court based its holding in part on the desire to balance the allocation of cleanup costs. When a plaintiff PRP brings a 107(a) action for complete recovery against a defendant PRP, the defendant generally can file a contribution counterclaim under 113(f)(1). In this way, as recognized by the Supreme Court in United States v. Atlantic Research , 551 U.S. 128 (2007), the defendant can “fend off” the joint and several claim and thereby effectively convert the action to one in contribution where each PRP, including the plaintiff, can be assigned some share of liability. In cases where a PRP has gained contribution protection, however, the Third Circuit found this strategy becomes impossible; the defendant would be barred from bringing any 113(f) contribution counterclaim in response to the 107(a) claim and thus, a shielded plaintiff could potentially recover 100 percent of its costs — including its own share — from the defendant. The Third Circuit  found this to be “a perverse result, since a primary goal of CERCLA is to make polluters pay.”  Thus, the court denied the 107(a) claims to the PRPs with contribution protection. While the court closed the door of 107(a) availability to one group of PRPs, it opened it to another. Although most of the plaintiffs in this case entered into two consent decrees with the government, Agere Systems Inc. and TI Group Automotive Systems LLC did not. These two did, however, voluntarily enter into private settlement agreements with the other plaintiffs, wherein all the settling parties contributed to a common fund from which the costs of remediation were paid. Section 107(a) permits recovery of costs a party “incurred” in cleaning a site. In Atlantic Research , the Supreme Court found that that this language does not encompass costs paid as a result of a court judgment or settlement agreement payment where such payments are not incurred directly in cleanup activities, but rather reimburse other parties for costs they incurred. Carpenter argued that, because Agere and TI's payments were made in connection with a settlement agreement, they did not qualify for 107(a) recovery. The Court of Appeals disagreed, holding that the Supreme Court's decision was made in a different context and noting the distinction between a settlement agreement which requires a party to reimburse others for past costs incurred and an agreement which requires the party to conduct on-going work and incur its own response costs. In addition, the ordinary meaning of the word “incurred” should include all payments made for on-going work, regardless of whether payments were made into a group trust or directly incurred in cleanup activities. The court seemed particularly concerned that Agere and TI be given adequate opportunities for contribution recovery. These parties were not eligible for 113(f)(1) contribution claims as they were never subject to a civil action under CERCLA. Nor were they eligible for 113(f)(3)(B) contribution claims as they had not “resolved” their liability to any governmental unit. To also deny them a 107(a) claim would act as a complete bar to recourse under CERCLA. This holding, the court said, also encourages PRPs to voluntarily take responsibility for cleanup costs by ensuring that, regardless of government involvement, they will have some cost recovery claim available to them. This decision attempts to resolve questions raised by the recent Supreme Court CERCLA decisions as to when Section 107 or 113 are applicable, and will likely have far-reaching impacts, not the least of which will be felt in bankruptcy proceedings. Bankruptcy Code Section 502(e)(1)(B) mandates disallowance of contingent contribution claims of entities co-liable with the debtor to a third-party creditor. Section 113(f) contribution claims against bankrupt PRPs for their share of future cleanup costs are particularly vulnerable to this provision of the Code. In denying 107(a) direct actions to PRPs who have gained contribution protection through settlements with the government, and limiting such PRPs to contribution claims, the Third Circuit has also significantly limited (if not eliminated) the ability of these PRPs to recover any future costs against a PRP debtor's estate. Courts across the country, including the Supreme Court, have long wrestled with the interplay between 107(a) and 113(f). Though not clear in the statute, it seems increasingly evident that, at least in the Third Circuit, while PRPs are not barred outright from a 107(a) claim, they may not utilize the more generous joint and several liability aspects of 107(a) if the PRP has obtained contribution protection. A question remains, however, as to whether costs incurred “outside” the settlement agreement and, thus, not subject to contribution protection, could be recovered as part of the 113 claim based on that settlement or a 107 claim. The line between 107 and 113 recoverable costs continues to be somewhat muddied as a result of the Supreme Court decisions, and the circuit courts continue to try to define these lines. § 2902. Commission; where recorded (a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President. (b) The commission of an officer in the civil service or uniformed services under the control of the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Defense, the Secretary of a military department, the Secretary of the Interior, the Secretary of Homeland Security, or the Secretary of the Treasury shall be made out and recorded in the department in which he is to serve under the seal of that department. The departmental seal may not be affixed to the commission before the commission has been signed by the President. (c) The commissions of judicial officers and United States attorneys and marshals, appointed by the President, by and with the advice and consent of the Senate, and other commissions which before August 8, 1888, were prepared at the Department of State on the requisition of the Attorney General, shall be made out and recorded in the Department of Justice under the seal of that department and countersigned by the Attorney General. The departmental seal may not be affixed to the commission before the commission has been signed by the President. TITLE 5 App. > FEDERAL > § 2 § 2. Findings and purpose (a) The Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government. (b) The Congress further finds and declares that— (1) the need for many existing advisory committees has not been adequately reviewed: (2) new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary; (3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established; (4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees; (5) the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and (6) the function of advisory committees should be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved. TITLE 5 App. > FEDERAL > § 5 § 5. Responsibilities of Congressional committees; review; guidelines (a) In the exercise of its legislative review function, each standing committee of the Senate and the House of Representatives shall make a continuing review of the activities of each advisory committee under its jurisdiction to determine whether such advisory committee should be abolished or merged with any other advisory committee, whether the responsibilities of such advisory committee should be revised, and whether such advisory committee performs a necessary function not already being performed. Each such standing committee shall take appropriate action to obtain the enactment of legislation necessary to carry out the purpose of this subsection. (b) In considering legislation establishing, or authorizing the establishment of any advisory committee, each standing committee of the Senate and of the House of Representatives shall determine, and report such determination to the Senate or to the House of Representatives, as the case may be, whether the functions of the proposed advisory committee are being or could be performed by one or more agencies or by an advisory committee already in existence, or by enlarging the mandate of an existing advisory committee. Any such legislation shall— (1) contain a clearly defined purpose for the advisory committee; (2) require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee; (3) contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment; (4) contain provisions dealing with authorization of appropriations, the date for submission of reports (if any), the duration of the advisory committee, and the publication of reports and other materials, to the extent that the standing committee determines the provisions of section 10 of this Act to be inadequate; and (5) contain provisions which will assure that the advisory committee will have adequate staff (either supplied by an agency or employed by it), will be provided adequate quarters, and will have funds available to meet its other necessary expenses. (c) To the extent they are applicable, the guidelines set out in subsection (b) of this section shall be followed by the President, agency heads, or other Federal officials in creating an advisory committee. TITLE 5 App. > INSPECTOR > § 2 § 2. Purpose and establishment of Offices of Inspector General; departments and agencies involved In order to create independent and objective units— (1) to conduct and supervise audits and investigations relating to the programs and operations of the establishments listed in section 11 (2) ; (2) to provide leadership and coordination and recommend policies for activities designed (A) to promote economy, efficiency, and effectiveness in the administration of, and (B) to prevent and detect fraud and abuse in, such programs and operations; and (3) to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action; there is established— (A) in each of such establishments an office of Inspector General, subject to subparagraph (B); and (B) in the establishment of the Department of the Treasury— (i) an Office of Inspector General of the Department of the Treasury; and (ii) an Office of Treasury Inspector General for Tax Administration. TITLE 5 App. > INSPECTOR > § 9 § 9. Transfer of functions (a) There shall be transferred— (1) to the Office of Inspector General— (A) of the Department of Agriculture, the offices of that department referred to as the “Office of Investigation” and the “Office of Audit”; (B) of the Department of Commerce, the offices of that department referred to as the “Office of Audits” and the “Investigations and Inspections Staff” and that portion of the office referred to as the “Office of Investigations and Security” which has responsibility for investigation of alleged criminal violations and program abuse; (C) of the Department of Defense, the offices of that department referred to as the “Defense Audit Service” and the “Office of Inspector General, Defense Logistics Agency”, and that portion of the office of that department referred to as the “Defense Investigative Service” which has responsibility for the investigation of alleged criminal violations; (D) of the Department of Education, all functions of the Inspector General of Health, Education, and Welfare or of the Office of Inspector General of Health, Education, and Welfare relating to functions transferred by section 301 of the Department of Education Organization Act [ 20 U.S.C. 3441 ]; (E) of the Department of Energy, the Office of Inspector General (as established by section 208 of the Department of Energy Organization Act); (F) of the Department of Health and Human Services, the Office of Inspector General (as established by title II of Public Law 94–505); (G) of the Department of Housing and Urban Development, the office of that department referred to as the “Office of Inspector General”; (H) of the Department of the Interior, the office of that department referred to as the “Office of Audit and Investigation”; (I) of the Department of Justice, the offices of that Department referred to as (i) the “Audit Staff, Justice Management Division”, (ii) the “Policy and Procedures Branch, Office of the Comptroller, Immigration and Naturalization Service”, the “Office of Professional Responsibility, Immigration and Naturalization Service”, and the “Office of Program Inspections, Immigration and Naturalization Service”, (iii) the “Office of Internal Inspection, United States Marshals Service”, (iv) the “Financial Audit Section, Office of Financial Management, Bureau of Prisons” and the “Office of Inspections, Bureau of Prisons”, and (v) from the Drug Enforcement Administration, that portion of the “Office of Inspections” which is engaged in internal audit activities, and that portion of the “Office of Planning and Evaluation” which is engaged in program review activities; (J) of the Department of Labor, the office of that department referred to as the “Office of Special Investigations”; (K) of the Department of Transportation, the offices of that department referred to as the “Office of Investigations and Security” and the “Office of Audit” of the Department, the “Offices of Investigations and Security, Federal Aviation Administration”, and “External Audit Divisions, Federal Aviation Administration”, the “Investigations Division and the External Audit Division of the Office of Program Review and Investigation, Federal Highway Administration”, and the “Office of Program Audits, Urban Mass Transportation Administration”; (L) (i) of the Department of the Treasury, the office of that department referred to as the “Office of Inspector General”, and, notwithstanding any other provision of law, that portion of each of the offices of that department referred to as the “Office of Internal Affairs, Tax and Trade Bureau”, the “Office of Internal Affairs, United States Customs Service”, and the “Office of Inspections, United States Secret Service” which is engaged in internal audit activities; and (ii) of the Treasury Inspector General for Tax Administration, effective 180 days after the date of the enactment of the Internal Revenue Service Restructuring and Reform Act of 1998 [July 22, 1998], the Office of Chief Inspector of the Internal Revenue Service; (M) of the Environmental Protection Agency, the offices of that agency referred to as the “Office of Audit” and the “Security and Inspection Division”; (N) of the Federal Emergency Management Agency, the office of that agency referred to as the “Office of Inspector General”; (O) of the General Services Administration, the offices of that agency referred to as the “Office of Audits” and the “Office of Investigations”; (P) of the National Aeronautics and Space Administration, the offices of that agency referred to as the “Management Audit Office” and the “Office of Inspections and Security”; (Q) of the Nuclear Regulatory Commission, the office of that commission referred to as the “Office of Inspector and Auditor”; (R) of the Office of Personnel Management, the offices of that agency referred to as the “Office of Inspector General”, the “Insurance Audits Division, Retirement and Insurance Group”, and the “Analysis and Evaluation Division, Administration Group”; (S) of the Railroad Retirement Board, the Office of Inspector General (as established by section 23 of the Railroad Retirement Act of 1974); (T) of the Small Business Administration, the office of that agency referred to as the “Office of Audits and Investigations”; (U) of the Veterans' Administration, the offices of that agency referred to as the “Office of Audits” and the “Office of Investigations”; and  [1] (V) of the Corporation for National and Community Service, the Office of Inspector General of ACTION;  [1] (W) of the Social Security Administration, the functions of the Inspector General of the Department of Health and Human Services which are transferred to the Social Security Administration by the Social Security Independence and Program Improvements Act of 1994 (other than functions performed pursuant to section 105(a)(2) of such Act), except that such transfers shall be made in accordance with the provisions of such Act and shall not be subject to subsections (b) through (d) of this section; and (2) to the Office of the Inspector General, such other offices or agencies, or functions, powers, or duties thereof, as the head of the establishment involved may determine are properly related to the functions of the Office and would, if so transferred, further the purposes of this Act, except that there shall not be transferred to an Inspector General under paragraph (2) program operating responsibilities. (b) The personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available or to be made available, of any office or agency the functions, powers, and duties of which are transferred under subsection (a) are hereby transferred to the applicable Office of Inspector General. (c) Personnel transferred pursuant to subsection (b) shall be transferred in accordance with applicable laws and regulations relating to the transfer of functions except that the classification and compensation of such personnel shall not be reduced for one year after such transfer. (d) In any case where all the functions, powers, and duties of any office or agency are transferred pursuant to this subsection, such office or agency shall lapse. Any person who, on the effective date of this Act [Oct. 1, 1978], held a position compensated in accordance with the General Schedule, and who, without a break in service, is appointed in an Office of Inspector General to a position having duties comparable to those performed immediately preceding such appointment shall continue to be compensated in the new position at not less than the rate provided for the previous position, for the duration of service in the new position. TITLE 5 App. > ETHICS > TITLE IV > § 402 Prev | Next § 402. Authority and functions How Current is This? (a) The Director shall provide, in consultation with the Office of Personnel Management, overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency, as defined in section 105 of title 5 , United States Code. (b) The responsibilities of the Director shall include— (1) developing, in consultation with the Attorney General and the Office of Personnel Management, rules and regulations to be promulgated by the President or the Director pertaining to conflicts of interest and ethics in the executive branch, including rules and regulations establishing procedures for the filing, review, and public availability of financial statements filed by officers and employees in the executive branch as required by title II of this Act; (2) developing, in consultation with the Attorney General and the Office of Personnel Management, rules and regulations to be promulgated by the President or the Director pertaining to the identification and resolution of conflicts of interest; (3) monitoring and investigating compliance with the public financial disclosure requirements of title II of this Act by officers and employees of the executive branch and executive agency officials responsible for receiving, reviewing, and making available financial statements filed pursuant to such title; (4) conducting a review of financial statements to determine whether such statements reveal possible violations of applicable conflict of interest laws or regulations and recommending appropriate action to correct any conflict of interest or ethical problems revealed by such review; (5) monitoring and investigating individual and agency compliance with any additional financial reporting and internal review requirements established by law for the executive branch; (6) interpreting rules and regulations issued by the President or the Director governing conflict of interest and ethical problems and the filing of financial statements; (7) consulting, when requested, with agency ethics counselors and other responsible officials regarding the resolution of conflict of interest problems in individual cases; (8) establishing a formal advisory opinion service whereby advisory opinions are rendered on matters of general applicability or on important matters of first impression after, to the extent practicable, providing interested parties with an opportunity to transmit written comments with respect to the request for such advisory opinion, and whereby such advisory opinions are compiled, published, and made available to agency ethics counselors and the public; (9) ordering corrective action on the part of agencies and employees which the Director deems necessary; (10) requiring such reports from executive agencies as the Director deems necessary; (11) assisting the Attorney General in evaluating the effectiveness of the conflict of interest laws and in recommending appropriate amendments; (12) evaluating, with the assistance of the Attorney General and the Office of Personnel Management, the need for changes in rules and regulations issued by the Director and the agencies regarding conflict of interest and ethical problems, with a view toward making such rules and regulations consistent with and an effective supplement to the conflict of interest laws; (13) cooperating with the Attorney General in developing an effective system for reporting allegations of violations of the conflict of interest laws to the Attorney General, as required by section 535 of title 28 , United States Code; (14) providing information on and promoting understanding of ethical standards in executive agencies; and (15) developing, in consultation with the Office of Personnel Management, and promulgating such rules and regulations as the Director determines necessary or desirable with respect to the evaluation of any item required to be reported by title II of this Act. (c) In the development of policies, rules, regulations, procedures, and forms to be recommended, authorized, or prescribed by him, the Director shall consult when appropriate with the executive agencies affected and with the Attorney General. (d) (1) The Director shall, by the exercise of any authority otherwise available to the Director under this title, ensure that each executive agency has established written procedures relating to how the agency is to collect, review, evaluate, and, if applicable, make publicly available, financial disclosure statements filed by any of its officers or employees. (2) In carrying out paragraph (1), the Director shall ensure that each agency's procedures are in conformance with all applicable requirements, whether established by law, rule, regulation, or Executive order. (e) In carrying out subsection (b)(10), the Director shall prescribe regulations under which— (1) each executive agency shall be required to submit to the Office an annual report containing— (A) a description and evaluation of the agency's ethics program, including any educational, counseling, or other services provided to officers and employees, in effect during the period covered by the report; and (B) the position title and duties of— (i) each official who was designated by the agency head to have primary responsibility for the administration, coordination, and management of the agency's ethics program during any portion of the period covered by the report; and (ii) each officer or employee who was designated to serve as an alternate to the official having primary responsibility during any portion of such period; and (C) any other information that the Director may require in order to carry out the responsibilities of the Director under this title; and (2) each executive agency shall be required to inform the Director upon referral of any alleged violation of Federal conflict of interest law to the Attorney General pursuant to section 535 of title 28 , United States Code, except that nothing under this paragraph shall require any notification or disclosure which would otherwise be prohibited by law. (f) (1) In carrying out subsection (b)(9) with respect to executive agencies, the Director— (A) may— (i) order specific corrective action on the part of an agency based on the failure of such agency to establish a system for the collection, filing, review, and, when applicable, public inspection of financial disclosure statements, in accordance with applicable requirements, or to modify an existing system in order to meet applicable requirements; or (ii) order specific corrective action involving the establishment or modification of an agency ethics program (other than with respect to any matter under clause (i)) in accordance with applicable requirements; and (B) shall, if an agency has not complied with an order under subparagraph (A) within a reasonable period of time, notify the President and the Congress of the agency's noncompliance in writing (including, with the notification, any written comments which the agency may provide). (2) (A) In carrying out subsection (b)(9) with respect to individual officers and employees— (i) the Director may make such recommendations and provide such advice to such officers and employees as the Director considers necessary to ensure compliance with rules, regulations, and Executive orders relating to conflicts of interest or standards of conduct; (ii) if the Director has reason to believe that an officer or employee is violating, or has violated, any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct, the Director— (I) may recommend to the head of the officer's or employee's agency that such agency head investigate the possible violation and, if the agency head finds such a violation, that such agency head take any appropriate disciplinary action (such as reprimand, suspension, demotion, or dismissal) against the officer or employee, except that, if the officer or employee involved is the agency head, any such recommendation shall instead be submitted to the President; and (II) shall notify the President in writing if the Director determines that the head of an agency has not conducted an investigation pursuant to subclause (I) within a reasonable time after the Director recommends such action; (iii) if the Director finds that an officer or employee is violating any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct, the Director— (I) may order the officer or employee to take specific action (such as divestiture, recusal, or the establishment of a blind trust) to end such violation; and (II) shall, if the officer or employee has not complied with the order under subclause (I) within a reasonable period of time, notify, in writing, the head of the officer's or employee's agency of the officer's or employee's noncompliance, except that, if the officer or employee involved is the agency head, the notification shall instead be submitted to the President; and (iv) if the Director finds that an officer or employee is violating, or has violated, any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct, the Director— (I) may recommend to the head of the officer's or employee's agency that appropriate disciplinary action (such as reprimand, suspension, demotion, or dismissal) be brought against the officer or employee, except that if the officer or employee involved is the agency head, any such recommendations shall instead be submitted to the President; and (II) may notify the President in writing if the Director determines that the head of an agency has not taken appropriate disciplinary action within a reasonable period of time after the Director recommends such action. (B) (i) In order to carry out the Director's duties and responsibilities under subparagraph (A)(iii) or (iv) with respect to individual officers and employees, the Director may conduct investigations and make findings concerning possible violations of any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct applicable to officers and employees of the executive branch. (ii) (I) Subject to clause (iv) of this subparagraph, before any finding is made under subparagraphs (A)(iii) or (iv), the officer or employee involved shall be afforded notification of the alleged violation, and an opportunity to comment, either orally or in writing, on the alleged violation. (II) The Director shall, in accordance with section 553 of title 5 , United States Code, establish procedures for such notification and comment. (iii) Subject to clause (iv) of this subparagraph, before any action is ordered under subparagraph (A)(iii), the officer or employee involved shall be afforded an opportunity for a hearing, if requested by such officer or employee, except that any such hearing shall be conducted on the record. (iv) The procedures described in clauses (ii) and (iii) of this subparagraph do not apply to findings or orders for action made to obtain compliance with the financial disclosure requirements in title 2  [1] of this Act. For those findings and orders, the procedures in section 206 of this Act shall apply. (3) The Director shall send a copy of any order under paragraph (2)(A)(iii) to— (A) the officer or employee who is the subject of such order; and (B) the head of officer's or employee's agency or, if such officer or employee is the agency head, to the President. (4) For purposes of paragraphs (2)(A)(ii), (iii), (iv), and (3)(B), in the case of an officer or employee within an agency which is headed by a board, committee, or other group of individuals (rather than by a single individual), any notification, recommendation, or other matter which would otherwise be sent to an agency head shall instead be sent to the officer's or employee's appointing authority. (5) Nothing in this title shall be considered to allow the Director (or any designee) to make any finding that a provision of title 18, United States Code, or any criminal law of the United States outside of such title, has been or is being violated. (6) Notwithstanding any other provision of law, no record developed pursuant to the authority of this section concerning an investigation of an individual for a violation of any rule, regulation, or Executive order relating to a conflict of interest shall be made available pursuant to section 552 (a)(3) of title 5 , United States Code, unless the request for such information identifies the individual to whom such records relate and the subject matter of any alleged violation to which such records relate, except that nothing in this subsection shall affect the application of the provisions of section 552 (b) of title 5 , United States Code, to any record so identified.

Texas Governor Perry Declares War on the EPA By Hilary Hylton / Austin Monday, Jun. 07, 2010 EPA announces $10 million for Communities to Combat Climate Change WASHINGTON – The U.S. Environmental Protection Agency (EPA) is making available up to $10 million in grants to local governments to establish and carry out initiatives to reduce greenhouse gas emissions. Under the Climate Showcase Communities program, EPA expects to award approximately 25 cooperative agreements ranging from $100,000 to $500,000, with approximately five percent of the funds ($500,000) being made available specifically for tribal governments. Local governments, federally recognized Indian tribal governments, and inter-tribal consortia are eligible for grants to create sustainable community actions that can be used elsewhere, generate cost-effective greenhouse gas reductions and improve the environmental, economic, public health, and social conditions in a community. A 50 percent cost share is required for recipients, with the exception of tribal governments and intertribal consortia, which are exempt from matching requirements under this grant. The grant program is administered by EPA's Local Climate and Energy Program, an initiative to assist local and tribal governments to identify, implement, and track policies and programs that reduce greenhouse gas emissions within their operations and surrounding communities. Over the course of the grant program, EPA will offer training and technical support to grant recipients, and share lessons learned with communities across the nation. This is the second round of funding for the Climate Showcase Communities program. Last year, EPA selected 25 projects to receive $10 million in grants. Proposals are due by July 26, 2010, at 4:00 p.m. EDT. Grants are expected to be awarded in February 2011. More information on the grants: News: At Last, A Victory For Corporate Governance The $35.5 billion bid by Prudential for AIA, the Asian insurance arm of AIG, was controversial from day one. The sheer size of the deal, the way it was sprung on the market, the way it was to be financed and the involvement of the Financial Services Authority all conspired to ensure that this deal would end up being one of the most significant of 2010, no matter what the outcome. In the event, the Pru's decision to abandon the bid--because it was unable either to convince enough of its shareholders that the price was acceptable, or AIA's parent that ... MEDIA MATTERS
Top White House reporter joins leftist group Leaving to 'do Lord's work' after oil spill, 'combat climate change' Posted: June 15, 2010
10:25 pm Eastern

By Chelsea Schilling
© 2010 WorldNetDaily
The president of the White House Correspondents' Association – a group that's the subject of a complaint over alleged discrimination at its annual black-tie dinner in Washington – is leaving his post to "perform the Lord's work" and help "combat climate change " through leftist environmental advocacy. WHCA President Ed Chen, correspondent for Bloomberg News, is known for his "greening" of the annual dinner – including having the association buy carbon credits to offset the travels of Jay Leno and President Obama's motorcade. Now he is leaving to become the federal communications director for the one of the world's largest and most influential environmental lobbying groups, Natural Resources Defense Council – an organization he joined in 2006 before taking a job with Bloomberg News in 2007. Politico's Mike Allen obtained the following e-mail by Chen concerning his change of careers : My regret over leaving one of the world's largest – and certainly the most ambitious – news organizations is offset by a sense of urgency in resuming doing the Lord's work, particularly after the BP oil spill. That debacle was a divine signal to redouble my efforts to help clean up the environment, help America kick its petroleum addiction , and help public officials find the wisdom and courage to do the right thing to combat climate change before it's too late. So, I'm returning to the Natural Resources Defense Council (in Washington), soon to be reachable at: EChen(at) Allen noted, "The ease with which reporters seem able to jump between reporting and advocacy seems to be increasing, and fewer people seem to be surprised or shocked within Beltway circles. Still, it is this ease and comfort that will likely reinforce notions across the country that all journalists are bias[ed] and largely toward Democratic-friendly organizations." The blog Newsbusters noted that Chen is now the 16th major media figure to join the Obama administration or aligned unions and left-wing environmental groups. According to Brent Baker , vice president of research at the Media Research Center, the 15 other figures include the following:

News of Chen's new position comes just as Obama announced several members of the NRDC and National Geographic Society will serve in a special commission to investigate the BP oil spill in the Gulf of Mexico. As WND reported , the NRDC was named in a 2008 investigation as one of several charitable and environmental organizations claiming to be nonpartisan that were suspected of using donations to funnel money to Democratic Party politicians. Sen. James Inhofe, R-Okla., ranking member of the Senate Environment and Public Works Committee, referred to several charitable and environmental organizations as "wolves dressed in sheep's clothing." "Campaigns to 'save the cuddly animals' or 'protect the ancient forests' are really disguised efforts to raise money for Democratic political campaigns," Inhofe said while speaking on the Senate floor. "Environmental organizations have become experts at duplicitous activity, skirting laws up to the edge of illegality, and burying their political activities under the guise of nonprofit environmental improvement." Inhofe's report focused on organizations such as Greenpeace, the Environmental Defense Fund, the Natural Resources Defense Council, the League of Conservation Voters and the Sierra Club. Discover the Networks noted that NRDC receives financial backing from numerous left-leaning sponsors, including George Soros' Open Society Institute, the Rockefeller Brothers Fund, the MacArthur Foundation, the New York Times Company Foundation, the Heinz Family Foundation and many others. The group also reports that NRDC received an estimated $2.6 million from the Environmental Protection Agency during the first three years of the George W. Bush administration and subsequently used the money to fund anti-Bush radio ads in battleground states prior to the 2004 election.   Daley to feds: 'Go swim in the Potomac' EPA Marks World Environment Day
Marking the culmination of a full 20 years of planning and development, the Bureau of Land Management and its many partners this morning will dedicate the final leg of a trail running the full length of the eastern side of Keswick Reservoir. Open to all non-motorized users — horses, cyclists, trail runners, dog walkers — the single-track dirt trail runs from Keswick Dam Road north above the lake, connecting to an existing network that leads all the way to Shasta Dam. The final stretch isn't quite finished, but another week or so's work will link the trail to the stress-ribbon bridge on the Sacramento River Trail, just downstream from Keswick Dam. With multiple access points, loops, and side routes to waterfalls and overlooks, the Keswick-area trails can accommodate casual morning nature strolls and off-road ultramarathons alike. And they open to recreational users a beautiful stretch of the Sacramento River canyon that, until recently, demanded venturesome bushwhacking. It was in 1990 that the McConnell Foundation first doled out a grant to Shasta County to study converting the old railroad grade on the west side of Keswick Reservoir into a trail. Today that is the nearly fully paved Sacramento River Rail Trail, and the opportunities have grown rich on both sides of the river in what the BLM calls the “Interlakes Special Recreation Management Area.” There have been roadblocks along the way. Toxic old mine sites peppered the area beneath Iron Mountain Mine on Keswick's west shore. Post-Sept. 11, security concerns near Shasta Dam slowed development. And the route includes some private property, whose owners generously opened their land to easements. Through it all, the BLM, local governments and several private foundations toiled steadily toward scratching their vision into the hillsides. It's a tremendous accomplishment that local residents will enjoy for years. Everyone involved deserves our gratitude. And the best way to thank them? Get out and use it.  College of the Hummingbird - Center for Health, and the Institute for Liberty & Independence, (CHILI) Our Mission The College of the Hummingbird - Center for Health, and Institute for Liberty & Independence, (CHILI) works side-by-side with the nation's top emergency responders in the public and private sector to develop plans, policies, and strategies that ensure the safety of citizens in the event of natural or man-made catastrophes, (we'll bring the chili) and assure the defence and protection of the consitution. To fulfill that mission, CHILI focuses on general emergency preparedness planning, continuity of operations planning and training, preparation of special needs populations during emergencies, mass evacuation and sheltering planning, emergency communication systems, hospital coordination, table top and field emergency response exercises, the provision of adequate energy supplies during emergencies, and therefore is in need of grant writing assistance for governmental institutions seeking to provide funding for emergency planning efforts and similar needs. Iron Mountain Mine Re-Working Group Open Government & Communities Engagement Initiative Action Plan, June  2010 
In December 2009, EPA’s Office of Solid Waste and Emergency Response (OSWER) circulated for public comment a draft 
Proposed Action Plan for its Community Engagement Initiative. EPA received and incorporated public comments on the  draft Plan and also developed the OSWER Community Engagement Initiative Iplementation Plan. The Implementation Plan  lays out specific actions and activities that EPA will undertake to achieve the goals and objectives of this Action Plan.
The Community Engagement Initiative will enhance EPA’s Office of Solid Waste and Emergency Response 
and regional office engagment with local communities and other stakeholders (e.g., state and local governments, tribes, academia, private industry,  other federal agencies, non profit organizations) to help them meaningfully participate in government decisions on land cleanup,  emergency preparedness and response, and the management of hazardous substances and waste.
This effort provides an opportunity for OSWER to refocus and renew its vision for community engagement, 
build on public involvement practices, and apply them consistently in EPA processes. Specifically, the Community  Engagement Initiative focuses on taking active measures to reach out to communities and stakeholders, identifying steps  EPA will take to engage these communities and stakeholders in the policy development and implementation procsses, and  evaluating the effectiveness of changes in processes and procedures.
Basis for Action  

The cleanup of contaminated land and pollution and the management of hazardous substances and waste 
by EPA directly  affect communities long after the work is finished. For example, the cleanup of a hazardous waste site involves critical decisions  that affect the surrounding communities: What are the potential exposures to the contamination and what are the risks?  Who is responsible for the contamination and what government programs are available to oversee the cleanup?  Will the cleanup affect adjacent properties? What measures will protect the health and safety of the community  during and after the cleanup? Will the cleanup allow for future uses of the site that are consistent with current  community goals and plans? What agreements are being made with responsible parties or developers that may  affect the community? Who will be responsible for overseeing and maintaining the protectiveness of the remedy  (including any institutional controls), and if it is the local community, will they be able and are they willing to  meet the responsibilities? Will financial and technical assistance be provided?

Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan

In addition to site specific actions, EPA may also affect communities through its national regulations and policies that 
affect the management of underground storag tanks, solid waste and hazardous substances, as well as their associated  transportation routes and storage facilities. Individual properties, development and land use plans, business operations,  local economies, or other vital interests of a community may be affected by EPA regulations and policies.
Guiding Principles 
The purpose of this Action Plan is to present guiding principles, goals, and actions to enhance OSWER’s relationships 
with communities as we carry out our mission to protect human health and the envionment.
Proactively Include Communities in Decision Making Processes: The people who are most affected by EPA decisions 
should have influence over the outcome. Effective community engagement is about a process of interactions that builds  relationships over time and recognizes and emphaizes the community’s role in identifying concerns and participating in  formulating solutions. It establishes a framework for collaboration and deliberation. In the broadest sense, community  engagement in environmental decision making is the inclusion of the community in the process of defining the problem  and developing solutions and alternatives. The level of engagement varies by site and issue. Most models of public  involvement in environmental policy making allow for a range of citizen participation and interaction. The level  of participation is influenced by access to information, the skills and resources of the community members,  degree and frequency of communication, and the nature of the action. The size and makeup of an affected  community is often relative to the size and scope of the problem being addressed by the EPAaction – ranging  from a few residents living near a remote leaking underground storage tank, to large populations in towns and  cities that could potentially be affected by a new regulation. EPA should manage its resources in smart and  effective ways to ensure community engagement  
Make Decision Making Processes Transparent, Accessible and Understandable, and Include a Diversity of Stakeholders: 
A transparent, interactive relationship with all stakeholders, especially community stakeholders, must be a fundamental  principle of EPA’s cleanup, emergency preparedness and response, and hazardous substances and waste management  programs. Transparency and access is essential to meaningful, deliberate and fair stakeholder participation in EPA decision making processes.  Community stakeholders should have the opportunity to be engaged early and frequently in decision making processes and have easy access to understandable information that allows them to participate  meaningfully. When the decision making process is transparent, includes a diversity of stakeholders,  and prepares stakeholders to meaningfully participate, EPA is obligated to 1) substantially consider  all stakeholder concerns, and 2) make timely decisions on public health protectiveness and community benefits.  OSWER will refocus its efforts to improve its processes to be transparent and accessible, and present environmental  information in a variety of forms and through  multiple venues so that a diverse community of stakeholders can  participate in an informed way, including disadvantaged and at‐risk populations.
Explain Government Roles and Responsibilities: 
There are usually numerous governmental agencies involved in decision making processes.  However, many community members see the various agencies as one entity. For this reason, successful  community engagement must be coupled with solid and thoughtful interagency collaboration.  OSWER programs should explain exactly what EPA can and cannot do and the roles and responsibilities of other governmental agenies.  It is important for community members to understand what role EPA can play and what EPA cannot deliver. Ensure Consistent Participation by Responsible Parties: Given the role of regulated entities and responsible parties in conducting cleanups,  EPA must ensure that responsible parties engage community stakeholders in accordance with these principles.  Responsible parties conduct and/or fund the great majority of response activities and often work in consultation with EPA personnel  on community outreach activties or provide funding to communities to get technical assistance.  This is consistent with EPA’s commitment to first require responsible parties to provide funding and conduct site  cleanup actiities before using public resources. EPA will continue this practice of overseeing responsible party implementation  of community engagement activities.
Goals of this Action Plan 
EPA invites you to provide input to this Action Plan. This Action Plan is intended to be a working document, and specific  actions will be developed and refined with ongoing feedback and input from communities and other stakeholders,  local governments, tribes, states, and EPA program offices. When reviewing the proposed actions, please consider  the following questions: Are there certain best practices that should be scaled up? Are there specific components of  guidance and policy that we should evaluate? Among these actions, which are the highest priority? Are there additional  areas on which we should focus? What are the best mechanisms to effectively communicate progress?
This initiative involves EPA programs dealing with brownfields, federal facilities, leaking underground storage tanks, the 
Resource Conservation and Recovery Act (RCRA), enforcement, the Comprehensive Environmental Response,  Compensation and Liability Act (CERCLA –Superfund), the Emergency Planning and Community Right to Know Act  (EPCRA), and the Clean Air Act Risk Management Program. Many of EPA’s programs are delegated to states and tribes.  For those programs, EPA will continue to work closely with states, tribes, and local governments to achieve our shared  goals for meaningful and effective community engagement. The results of the Community Engagement Initiative will  be evaluated on a regular basis and considered in annual planning procss. The success of the Community Engagement  Initiative is strongly dependent on partnerships and effective communication with the ublic and among government agencies. 
Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan

OSWER will lead this initiative in coordination with the EPA regions, the Office of Enforcement and Compliance 
Assurance (OECA), OECA’s Office of Environmental Justice, and other EPA offices to achieve the following goals:
I. Develop transparent and accessible decision‐making processes to Enhance meaningful community stakeholder participation 
Engage stakeholders in the decision making process before it is started 
To the extent practicable, provide early and frequent opportunities for stakeholders to participate 
II. Present information and provide technical assistance in ways that will enable community stakeholders to better  understand envirnmental issues and participate in an informed way during the decision making process  
III. Produce outcomes that are responsive to stakeholder concerns and are aligned with community needs and long
term goals to the extent practicable 
Enhance EPA’s culture of valuing community perspectives 
Evaluate and measure the effectiveness of community engagement activities 
Objectives and Actions 
The following objectives listed under each goal1 will be informed and advanced through specific actions conducted by EPA  region and OSWER programs in Fiscal Years 2010 and 2011.  The actions will lead to improved processes and tools for EPA  to work with communities to design specific community engagemen activities and plans. The level of community engagement  for any particular site or issue may vary based on the nature of the problem, the make up and needs of the community,  and the anticipated scope of site or project work.
Implementation plans and schedules are in development and will identify specific actions and the roles of OSWER programs, 
regions and other involved EPA offices 1 Goals are mutually supportive, and some objectives overlap among goals. But for clarity, each objective is listed once, under one goal.
2 For example, for Goal 2, Objective 3 – Technical Assistance, OSWER programs will closely review Technical Assistance
Grant (TAG) regulations / guidance and other technical assistance processes to determine opportunities to improve them and award technical assistance support to broad and diverse stakeholder groups. And for Objective 5 – Delivery of Information, Regions may look for specific opportunities to pilot new processes and technologies to provide information to at-risk communities near hazardous waste sites. Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan
Before starting the decision making process, EPA should make sure the various segments of affected communities 
are engaged and have an opportunity to be represented in theprocess,  especially disadvantaged and at risk populations  and work with community stakeholders to:
Conduct a community stakeholder analysis 
Define the decision making process and determine decision points and schedule 
Determine forums and opportunities for stakeholder participation 
Determine what information will be made available for review and when 
Explain legal and resource issues 
OSWER and regions will conduct activities to inform and improve:
Objective 1: Decision making Processes: Identify and revise critical decision making processes, guidance, and 
rulemaking procedures to support more enhanced, transparent, and upfront collaboration with community stakeholders 
Objective 2: Enforcement Processes: Identify and evaluate how enforcement processes can advance the goals of community 
EPA should present complex scientific and technical information so that all members of the community, including at
risk and non English speaking populations, can participate in an informed way. EPA should also help  communities to easily access electronic information systems.   OSWER and regions will conduct activities to inform, improve and develop:
Objective 3: Technical Assistance: Evaluate existing technical assistance processes and pursue specific actions to 
1) improve and broaden the availability of technical assistance to communities and  2) enable broad and diverse community representation in decision making processes 
Objective 4: Risk Communication: Evaluate and improve risk communication practices and provide cross
program training so that hazard information is presented accurately and in ways that are clearly  understandable to various commnity stakeholders 
Objective 5: Delivery of Information: Evaluate how information is delivered to at‐risk and remote communities 
and develop options for improvement – to enhance communities’ ability to be informed and meaningfully participate  in decision making processes. Issues include: electronic access/digital divide; simplified information;  location of information; timely release of information 
EPA programs have a long history of working with communities to achieve successful results. OSWER should build upon 
good examples of community engagement practices and ensure that key principles are applied effectively and consistently  to all critical EPA processes.  OSWER should regularly evaluate and, when appropriate, revise its measures and goals for meaningful community engagement.  OSWER and regions will conduct activities to inform, improve and develop:
Objective 6: Community Engagement Training: Develop and provide a training program to: 1) strengthen fundamental 
community engagement skills of key personnel to enable effective community engagement practices and strtegies for projects  and sites, and 2) enhance “One site, One team” project management approaches to enable all team members to understand  project and community facts, communicate a consistent message to the public and ensure that decisions are based on the results  of community consultation  Objective 7: Measures: Evaluate and measure the effectiveness of community engagement activities to promote continual  improvement and identify needs nd opportunities for future action 
Objective 8: Local Workforce Development: Evaluate and promote job training and the use of local labor on environmental 
projects. This agreement will support collaborative efforts to improve air quality, safe drinking water, management of toxic substances, environmental governance, and water resource management across Iron Mountain Mine, during the time period 2010-2015. The goal of the cooperation is to reinforce owner's rights, miner's rights, resident's rights, other civil rights, and which are now strengthening their environmental laws, ministries, and compliance mechanisms. Cooperation could include technical assistance, training, and joint project development. Circuit questions FERC's jurisdiction
JUSTICE IN EYRE! The Recovery Act’s combined spending and tax provisions are estimated to cost $787 billion, including $4 billion for the Environmental Protection Agency’s (EPA) Clean Water State Revolving Fund (SRF). " Eritis insuperabiles, si fueritis inseparabiles. Explosum est illud diverbium: Divide, & impera, cum radix & vertex imperii in obedientium consensus rata sunt. " [You would be insuperable if you were inseparable. This proverb, Divide and rule, has been rejected, since the root and the summit of authority are confirmed by the consent of the subjects.] Lord Coke TERMS OF THE CLEAN WATER ACT NPDES: Purpose & Issuance: PURPOSE is to ID and limit the MOST HARMFUL of pollutants that we know about (not all just "most harmful"). (pollutants may change depending on body of water). ISSUED by states if they have a program approved by EPA (not many do).Iron Mountain Mine is not a threat to public health or safety. The doctrine of state nullification was first expressed by Thomas Jefferson in the Kentucky Resolution in 1798 and by James Madison that same year in the Virginia Resolution. They were both written in response to the Alien And Sedition Acts and were to become known as the “Principles of 98”. In the Virginia Resolution, Madison affirmed the duty of a state's legislature to actively interpose themselves between the power grabbing fed government and citizens in the respective states who are victimized by unconstitutional laws. Whereas Jefferson made the case in the Kentucky Resolution that states do have the authority to judge the constitutionality of federal laws, Madison outlined the responsibilities of the legislatures to act on this authorization. Merely affirming the power to pass judgment on constitutional issues means little, if that power lacks the legislative determination to be invoked. Taken as a whole the doctrine of nullification is the affirmation of state sovereignty where We The People hold the final authority. The Tenth Amendment codifies in law this principal of popular sovereignty where the states created the federal government to be our agent for certain enumerated purposes and nothing more. The world teeters on the brink of a new age of rage By Simon Schama Published: May 22 2010 03:00 | Last updated: May 22 2010 03:00 Far be it for me to make a dicey situation dicier but you can't smell the sulphur in the air right now and not think we might be on the threshold of an age of rage. The Spanish unions have postponed a general strike; the bloody barricades and the red shirts might have been in Bangkok not Berlin; and, for the moment, the British coalition leaders sit side by side on the front bench like honeymooners canoodling on the porch; but in Europe and America there is a distinct possibility of a long hot summer of social umbrage. Historians will tell you there is often a time-lag between the onset of economic disaster and the accumulation of social fury. In act one, the shock of a crisis initially triggers fearful disorientation; the rush for political saviours; instinctive responses of self-protection, but not the organised mobilisation of outrage. Whether in 1789 or now, an incoming regime riding the storm gets a fleeting moment to try to contain calamity. If it is seen to be straining every muscle to put things right it can, for a while, generate provisional legitimacy. Act two is trickier. Objectively, economic conditions might be improving, but perceptions are everything and a breathing space gives room for a dangerously alienated public to take stock of the brutal interruption of their rising expectations. What happened to the march of income, the acquisition of property, the truism that the next generation will live better than the last? The full impact of the overthrow of these assumptions sinks in and engenders a sense of grievance that 'Someone Else' must have engineered the common misfortune. The stock epithet the French revolution gave to the financiers who were blamed for disaster, was "rich egoists". Our own plutocrats may not be headed for the tumbrils but the fact that financial catastrophe, with its effect on the "real" economy came about through obscure transactions designed to do nothing except produce short-term profit aggravates a sense of social betrayal. At this point, damage-control means pillorying the perpetrators: bringing them to book and extracting statements of contrition. This is why the psychological impact of financial regulation is almost as critical as its institutional prophylactics. Those who lobby against it risk jeopardising their own long-term interests. Should governments fail to reassert the integrity of public stewardship, suspicions will emerge that, for all the talk of new beginnings, the perps and new regime are cut from common cloth. Both risk being shredded by popular ire or outbid by more dangerous tribunes of indignation.  JUDGE SPRAGUE ON THE LAWS AGAINST PIRACY. Published: May 19, 1861 - The New York Times At the opening of the United States Circuit Court in Boston on May 16, Judge SPRAGUE delivered a charge to the Grand Jury, in which he defined the state of our laws with reference to the crime of piracy. After citing provisions from the laws of 1790, 1820, 1825, 1846 and 1847, as to what constitutes the general crime, with the different degrees of penalty, the Judge remarks that these enactments were founded upon the clause in the Constitution which gives Congress the power to define and punish piracy. But the constitutional power to regulate commerce also affords a basis for additional penal enactments, covering all possible aggressions and depredations upon our commerce. The Judge then lays down the following important principles, the bearing of which will be sufficiently evident in the present crisis: "These statutes being enacted pursuant to the Constitution are of paramount authority, and cannot be invalidated or impaired by the action of any State or States, and every law, ordinance and constitution made by them for that purpose, whatever its name or form, is wholly nugatory and can afford no legal protection to those who may act under it. But suppose that a number of States undertake by resolution to throw off the Government of the United States and erect themselves into an independent nation, and assume in that character to issue commissions authorizing the capture of vessels of the United States, will such commissions afford protection to those acting under them against the penal laws of the United States? Cases have heretofore arisen where a portion of a foreign empire -- a colony -- has undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the rights of an independent nation, and in such cases it has been held that the relation which the United States should hold to those who thus attempt and claim to institute a new Government, is a political rather than a legal question; that, if those departments of our Government which have a right to give the law, and which regulate our foreign intercourse and determine the relation in which we shall stand to other nations, recognize such new and self-constituted Government as having the rights of a belligerent in a war between them and their former rulers, and the United States hold a neutral position in such war, then the judiciary, following the other departments, will to the same extent recognize the new nation. But if the legislative and executive, departments of the Government utterly refuse to recognize such new Government, or to acknowledge it as having any belligerent or national rights, and instead of taking a neutrel attitude endeavor by force to suppress depredations on commerce by such assumed Government, as violating the rights and infringing the laws of the United States, then the judiciary will hold that such depredations are not to be considered as belligerent and entitled to the immunities of lawful war, but as robbery or other lawless depredations, subject to the penalties denounced by our laws against such offences. The judiciary certainly cannot accept a more indulgent rule towards these who are in open rebellion against the authority if the United States, or toward aliens cooperating with and acting under the assumed authority of such rebels. While the other departments of the Government and the nation refuse to regard any State or association of States as having the rights of a belligerent, or as carrying on legitimate war, and are exerting not only moral but physical force against them as rebels and lawless aggressors upon the United States and its citizens, the Courts also must so regard them, and cannot admit that any legislation or assumption of power by such State or States can authorize acts in violation of the laws of the United States, or change the character of offences under them. There is another view. Mere rebellion absolves no man from his allegiance. Citizens of the United States, therefore, may not only be subject to the penalties of treason, but if they commit hostilities upon the commerce of the United States, under a commission from any foreign nation, even the oldest and best established, such as England or France for example, they may be dealt with as pirates by the express enactments in the ninth section of the statute of 1790, which has already been referred to. And aliens, who are subjects or citizens of any foreign State with whom we have a treaty, such as is described in the statute of 1847, chapter 51, which has already been quoted; if, in violation of such treaty, they make war upon the United States, or cruise against our vessels or property, under a commission from any foreign government, however long acknowledged, may, by the clear provisions of that statute, be dealt with as pirates. If aliens, subjects of a nation with whom we have no such treaty, commit acts of hostility upon our commerce, under the alleged authority or commission of a new and self-created government claiming to be independent, it may be material to inquire whether such government is to be regarded as having the immunities of a belligerent, or whether such aliens may be treated as robbers on the seas; and this inquiry will be governed by the principles which I have already stated. -CITE- 18 USC CHAPTER 115 - TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES 01/05/2009 -

Federal sovereign immunity versus state environmental fines.

Publication: Air Force Law Review
Publication Date: 22-MAR-06

Format: Online - approximately 12776 words
Delivery: Immediate Online Access

Article Excerpt

II. BACKGROUND A. Fiscal Law Concerns B. History of Sovereign Immunity III. OVERVIEW OF MAJOR ENVIRONMENTAL LEGISLATION A. Acts Not Subjecting Federal Facilities to State Fines 1. Clean Water Act 2. Comprehensive Environmental Response, Compensation and Liability Act 3. Toxic Substances Control Act 4. Emergency Planning and Community Right-to-Know Act 5. Pollution Prevention Act B. Acts Subjecting Federal Facilities to State Fines 1. Resource Conservation and Recovery Act 2. Safe Drinking Water Act 3. Toxic Substances Control Act: Lead-Based Paint C. Act Where State Fine Issue is Unsettled: Clean Air Act IV. CONCLUSION


Over the past several decades, Congress has enacted numerous laws designed to protect human health and the environment. All major environmental statutes provide a mechanism for individual states to assume the primary responsibility for enforcing these laws and regulations. In order for a state to receive the delegation of authority to run a particular environmental program, the state must first enact adequate laws and regulations to satisfy the U.S. Environmental Protection Agency (EPA) that the state can properly enforce environmental standards as least as stringent as those imposed by federal law. "Cooperative federalism" is a system whereby the federal government establishes statutory minimum standards and procedural requirements and then the states enact implementation and enforcement programs subject to EPA approval and oversight. (1) The delegation of primary responsibilities to the states has led to a complex system of intertwining federal and state environmental statutes and regulations.

Congress has amended most federal environmental statutes several times over the years to improve upon or expand the original design of the environmental protection schemes. Congress has also amended environmental laws to clarify its intent in the face of contrary court opinions. (2) This is particularly true with regard to waivers of federal sovereign immunity. (3) Without a clear and unambiguous waiver of sovereign immunity, federal law prohibits agencies from expending funds to comply with state environmental laws and regulations. (4)

Federal facilities take a particularly staunch stance on this concept when it comes to the payment of state environmental fines and penalties. States are clearly responsible for the majority of environmental enforcement actions (5) and some argue that federal facilities are among the worst at environmental compliance. (6) One of the primary goals of environmental enforcement is deterrence. (7) Conceptually, the fear that they will be substantially fined if they are caught is a deterrent to violating environmental laws. It is not difficult to see the conflict between the states' responsibility to enforce environmental compliance and a federal facility's claim that it does not have to pay fines for particular environmental violations. (8)

States assert that, without the authority to impose monetary fines against federal facilities, they are powerless to ensure environmental compliance. Such claims imply that federal facilities will not comply with environmental laws absent the threat of a punitive fine. This implication is erroneous. Over the years, federal facilities have worked hard to correct violations cited in enforcement actions, and the vast majority of these had no fines associated with them. The availability of sovereign immunity as a defense against punitive fines only acts as a shield to the payment of the fine, not as a sword against complying with the underlying statute. The implication also ignores the fact that federal employees are still subject to criminal prosecution. (9)

This article addresses the current status of the ever-changing nature of the law regarding federal sovereign immunity as it relates to the payment of state-imposed environmental fines. (10) Prior to exploring the current status of the law in this area, the article provides background information regarding the doctrine of sovereign immunity. The review of the major environmental legislation is organized into three categories: those not subjecting federal facilities to state fines, those that do, and those where the issue is unsettled. Federal facilities are not subject to punitive state fines under the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Emergency Planning and Community Right-to-Know Act, and the Pollution Prevention Act. Federal facilities are subject to state fines for violations of hazardous waste regulations under the Resource Conservation and Recovery Act including its Underground Storage Tank provisions, the Safe Drinking Water Act, and the Toxic Substances Control Act's lead-based paint provisions.

Lastly, the authority for states to fine federal facilities under the Clean Air Act is in active litigation. After reviewing the current state of the law, it will become apparent that the trend is toward greater state authority. In that regard, another one of the great timbers in the sovereign immunity palisade will soon fall as federal facilities begin paying state fines for Clean Air Act violations.


A. Fiscal Law Concerns

When laced with having to pay a relatively minor fine for an undisputable environmental violation, installations often would prefer to just pay the fine to achieve a quick solution, without regard to sovereign immunity. The primary reason for this attitude is that installations value existing goodwill with the regulatory agencies and fear damaging the relationship if they balk at paying the fine. However, when installations explain why federal law prevents payment of the fine, usually good installation-regulator relationships remain intact. That is not to say, however, that state regulators always agree with the application of sovereign immunity--as evidenced by the body of case law resulting from litigation over the issue.

As a general proposition, federal agencies have no authority to use appropriated funds to pay fines or penalties resulting from their activities. (11) Only when an express statutory waiver of sovereign immunity exists may a federal agency do so. (12) The reason is that the Anti-Deficiency Act (ADA), (13) prohibits federal agencies from expending appropriated funds unless authorized by law. (14) Most importantly for those involved, federal employees are subject to adverse personnel actions (15) and criminal sanctions (16) for violating the ADA . Regulators are usually sensitive to the fact that installation personnel could possibly go to jail for paying a fine for which sovereign immunity has not been waived. Experienced regulators know that sometimes they have to agree to disagree, and, if necessary, let the lawyers sort out the conflicting legal interests.

B. History of Sovereign Immunity

The United States, as sovereign, is immune from suit except when it consents to be sued. (17) A court's jurisdiction to entertain a suit against the United States is defined by the terms of the consent. (18) Similarly, states may not enforce their regulations upon the United States and its agencies unless the United States consents to such regulation. (19)

Most courts and commentators agree that the idea behind our doctrine of sovereign immunity originated in the British common law with the axiom "the king can do no wrong" and the resulting inability of British subjects to sue the king in his own courts. (20) However, not all commentators agree that that is an accurate interpretation of the British history or that the doctrine was appropriately derived from that history. Some courts and commentators argue that British subjects had avenues of recourse against the king if he "did wrong," and some argue that the axiom "the king can do no wrong" really meant that the king was obliged to do no wrong because of his position of responsibility over his subjects. (21) In addition, some courts and commentators have argued that the assertion that British common law is the basis for our doctrine of sovereign immunity is incongruous with the ideals on which this country was founded and that, in fact, there is consent to suit contained in our Constitution. (22)

Although the history regarding the British common law is not clear, it is clear that British common law in some way initially contributed to what has evolved into the contemporary doctrine of sovereign immunity that we have in the United States . The idea that the sovereign could not be sued in his own courts was adopted in the United States , regardless of the reliability of the perceived history.

Unlike state sovereign immunity, however, federal sovereign immunity has no constitutional basis in the United States . (23) The doctrine of sovereign immunity in the United States has been established by the courts rather than the Constitution and, it can be argued, also has contemporary bases for its existence. (24)

In 1821, Justice Marshall decided a case in favor of the United States on the grounds that it could not be sued: "The universally received opinion is, that no suit can be commenced or prosecuted against the United States ; that the judiciary act does not authorize such suits." (25) The first Supreme Court to decide a case solely upon the idea that the federal government is immune from suit did so in 1846. (26) This Court found that "There was no jurisdiction of this case in the Circuit Court, as the government is not liable to be sued, except with its own consent, given by law. Nor can a decree or judgment be entered against the government for costs." (27) The Supreme Court continued to find that the federal government holds such a protection. (28)

Edwin M. Borchard is credited with inventing the phrase "sovereign immunity" in his article, Government Liability in Tort, published in the Yale Law Journal in 1921. (29) Courts began quoting Borchard's article and using the label "sovereign immunity" after that time. (30)

The development of the doctrine of sovereign immunity in the United States includes the Supreme Court identifying the characteristics of a waiver of sovereign immunity. The Supreme Court declared that a waiver of sovereign immunity must be unequivocally expressed in statutory text and may not be implied or inferred; it must be construed strictly in favor of the sovereign and not read for more than what the language strictly allows. (31) Since any waiver must appear clearly in the statutory text, legislative history cannot be used to clarify any ambiguity. (32) Where a waiver would subject federal facilities to regulation under state law, the rule requiring the waiver to be unambiguous applies with special force. "Because of the fundamental importance of the principles shielding federal installations and activities from regulation by the State, an authorization of state regulation is found only when and to the extent there is a 'clear congressional mandate,' 'specific congressional action' that makes this authorization of state regulation 'clear and unambiguous.'" (33) Likewise, the Supreme Court has insisted upon a particularly unambiguous statement where the alleged waiver would affect the public rise. (34) Moreover, the Supreme Court has commented sovereign immunity may only be waived by congressional legislation and that an agent of the federal government cannot waive sovereign immunity. (35) Given the ground rules established by the Supreme Court for waivers of sovereign immunity, environmental practitioners have no choice but to construe waivers very narrowly.


A. Acts Not Subjecting Federal Facilities to State Fines

1. Clean Water Act

In 1972, Congress enacted the Clean Water Act (CWA), also known as the Federal Water Pollution Control Act. 33 U.S.C. [section] 1251-1376. The objective of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (36) In order to achieve this objective, the CWA sets forth several ambitious goals and policies intended to control water pollution. (37) Furthermore, Congress specifically recognized the primary responsibility and rights of the states to control water pollution. (38) The most visible and mature program under the CWA is the National Pollutant Discharge Elimination System (NPDES). (39) The NPDES provides for the issuance of NPDES permits by the EPA or by authorized states. (40) In general, NPDES permits are required for discharges into the waters of the United States . (41) The permits impose limitations on the discharge of pollutants and establish related monitoring and reporting requirements in order to protect and improve the cleanliness of our Nation's waters. Lack of a required permit or noncompliance with a permit constitutes a violation of the CWA. (42)

The seminal case addressing sovereign immunity in an environmental law context is Dep't of Energy v. Ohio . (43) In this case, the Supreme Court resolved a split in the circuit courts (44) as to whether Congress waived sovereign immunity from liability for civil fines imposed by states for past violations of the CWA or Resource Conservation and Recovery Act (RCRA). (45) In reaching its conclusion, the Court drew a distinction between "coercive" and "punitive" fines. (46) Coercive fines are those imposed on federal facilities "to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively." (47) Punitive fines are those imposed to punish past violations of environmental laws. (48)

The State of Ohio argued that both the CWA's citizen-suit (49) and federal facilities sections (50) waive sovereign immunity for the fines in question. The Supreme Court disagreed. Regarding the citizen-suit provision, the Court reasoned that, although suit may be brought against the United States , the civil-penalties section (51) applies only to "persons" and the CWA does not include the United States in the definition of "person." (52) After extensive parsing of the federal facilities section, the Court also concluded that, because the statement of waiver is not unequivocal as to punitive fines, no waiver could be interpreted. (53) However, the Court did find a clear waiver for coercive fines. (54)

As a result of Dep't of Energy v. Ohio , Congress quickly enacted the Federal Facilities Compliance Act (FFCA) of 1992. (55) This act effectively overruled Dep't of Energy v. Ohio as it pertains to RCRA; (56) however, it notably did not address the CWA aspects of the case. (57) Consequently, Dep't of Energy v. Ohio is still good law as applied to the CWA, and federal facilities continue to be immune from state-imposed punitive fines for CWA violations. (58)

2. Comprehensive Environmental Response, Compensation and Liability Act

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), (59) was enacted in 1980 in response to the serious environmental and health risks posed by industrial pollution. (60) "CERCLA is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites." (61) If a hazardous waste site meets certain conditions, the EPA may use the "Hazardous Substances Superfund" (62) to finance remediation of the site. Suits may be brought under CERCLA [section] 107 to ensure those parties actually responsible for environmental contamination, in whole or in part, are responsible for funding the cleanup. (63)

The Superfund Amendments and Reauthorization Act of 1986 added section 120, the Federal Facilities section, to CERCLA. (64)

The waiver of sovereign immunity in CERCLA [section] 120, (65) provides that agencies of the United States shall be subject to and comply with CERCLA in the same manner and to the same extent as any nongovernmental entity. (66) Furthermore, the waiver (67) imposes state law (68) requirements concerning removal and remedial action on federal facilities not included on the National Priorities List. (69)

However, when it comes to state-imposed, punitive, civil penalties, the United States Court of Appeals for the First Circuit concluded [section] 120 of CERCLA does not waive the federal government's sovereign immunity. (70) The Court followed the rationale of the Supreme Court in Dep't of Energy v. Ohio , and held that, because the language of CERCLA [section] 120 was not clear and unequivocal as to punitive civil penalties, a waiver of sovereign immunity could not be found. (71) Therefore, federal facilities do not pay state imposed fines under CERCLA. (72)

3. Toxic Substances Control Act

The Toxic Substances Control Act (TSCA) was enacted in 1976 by Congress in an effort to prevent injury to human health and the environment caused by chemical substances and mixtures. (73) The act and its amendments primarily serve to do the following three things: (1) require those who manufacture and process chemical substances and mixtures affecting health and the environment to collect data regarding those effects; (2) regulate chemical substances and mixtures which pose imminent hazards; and (3) assure that innovation and commerce in such chemical substances do not present unreasonable risk. (74) The primary chemical substances and the activities regarding those substances that are affected by the act are asbestos, lead-based paint, and radon. (75) In addition, regulations promulgated under the act stringently regulate polychlorinated biphenyls and many other toxic substances. (76)

TSCA does not contain a waiver of sovereign immunity with regard to enforcement or administrative fines or penalties. Both 15 U.S.C. [section] 2615 and 15 U.S.C. [section] 2616 discuss penalties and enforcement; however, both discuss penalties and enforcement against a "person." Because "person" is not defined in the statute, no case can be made that Congress "clearly and unambiguously" waived sovereign immunity with regard to the statute. (77) Consequently, federal facilities do not pay state fines for violations of the general TSCA statute; however, see the discussion below regarding the Residential Lead-Based Paint Hazard Reduction Act of 1992. (78)

4. Emergency Planning and Community Right-to-Know Act

The Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. [subsection] 11001-11050, was passed in 1986 to ensure adequate emergency planning at the local level for threats against releases of extremely hazardous substances. (79) Although EPCRA does not apply to federal facilities, (80) Executive Order 13148, Greening the Government Through Leadership in Environmental Management, mandates that federal facilities comply with certain EPCRA planning and reporting requirements. This includes the Toxic Release Inventory reporting requirements of EPCRA [section] 313 (81) and the emergency planning and reporting responsibilities of EPCRA [subsection] 301-312. (82) The Executive Order tasks EPA to consult the other federal agencies to monitor compliance. (83)

Given that EPCRA does not apply directly to federal facilities and contains no waiver of sovereign immunity provision, clearly federal facilities are not subject to any fines for noncompliance. (84) Even Executive Order 13148 states that it is not intended to create any right or benefit enforceable by law against the United States . (85)

5. Pollution Prevention Act

The Pollution Prevention Act (PPA) (86) was enacted by Congress in 1990 to further the national policy of reducing or preventing pollution at its source, safely recycling pollution that cannot be prevented, safely treating pollution that cannot be prevented or recycled, and disposing or releasing pollution in an environmentally safe manner only as a last resort. (87) Although the PPA does not apply to federal facilities, (88) Executive Order 13148 mandates that federal facilities comply with section 6607 of the PPA. (89) This section requires the submission of a toxic chemical source reduction and recycling report for each toxic chemical required to be reported in the annual toxic chemical release form (Form R) under EPCRA [section] 313. (90) The Executive Order tasks EPA to consult the other federal agencies to monitor compliance. (91)

Given that the PPA does not apply directly to federal facilities and contains no waiver of sovereign immunity provision, clearly federal facilities are not subject to any fines for noncompliance. (92) Again, Executive Order 13148 states that it is not intended to create any fight or benefit enforceable by law against the United States . (93)

B. Acts Subjecting Federal Facilities to State Fines

1. Resource Conservation and Recovery Act

RCRA (94) governs the management and disposal of hazardous waste. The permit program is primarily administered by the EPA, (95) but is usually delegated to states with approved programs. (96) When enacting RCRA, Congress declared it national policy to reduce or eliminate the generation of hazardous wastes as expeditiously as possible and to treat, store, or dispose of waste in such a manner that will minimize present and future threats to human health and the environment. (97)

The Court in Dep't of Energy v. Ohio (98) also addressed sovereign immunity under RCRA. In this case, the Supreme Court had to decide whether Congress waived sovereign immunity from liability for civil fines imposed by states for past violations of RCRA or the Clean Water Act. (99) As explained earlier, the Court drew a distinction between "coercive" and "punitive" fines. (100) It defined coercive fines as those imposed on federal facilities "to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively" (101) and punitive fines as those imposed to punish past violations of environmental laws. (102)

As with the CWA, the State of Ohio argued that RCRA's citizen-suit (103) and federal facilities sections (104) waive sovereign immunity for the fines in question. As with the CWA, the Supreme Court disagreed. The Court reasoned that, although suit may be brought against the United States , the civil-penalties section (105) only applies to "persons" and, at the time of the decision, RCRA did not include the United States in the definition of "person." (106) The Court also concluded that the federal facilities section did not waive sovereign immunity for punitive fines because the language of the statute only extended to coercive sanctions. (107)

Congress passed the FFCA of 1992 (l08) that effectively overruled Dep't of Energy v. Ohio as it pertains to RCRA. The FFCA of 1992 added the United States to the definition of "person" (109) and clearly waived sovereign immunity in the federal facilities section of the law. (110) Consequently, federal facilities can no longer rely on sovereign immunity as protection from state-imposed punitive fines for hazardous waste law violations. (111) Notably, however, the FFCA of 1992 did not address the Clean Water Act aspects of Dep't of Energy v. Ohio .

In addition to RCRA governing the management and disposal of solid and hazardous waste, Subchapter IX governs the regulation of underground storage tanks (USTs). (112) Like the hazardous waste permit program, the UST program is primarily administered by the EPA, (113) but may be delegated to states with approved programs. (114) Congress enacted the RCRA UST provisions in order to ensure improved release detection and prevention practices and to develop corrective action measures for UST leaks and spills necessary to protect human health and the environment. (115)

Until August 2005, the RCRA UST federal facilities provision (116) did not waive sovereign immunity as it applied to state-imposed punitive fines for UST violations. (117) In the Energy Policy Act of 2005, Congress expressly waived sovereign immunity as it applies to "all civil and administrative penalties and fines" for UST volitions "regardless of whether such penalties or fines are punitive or coercive in nature." (118) So, federal facilities are no longer immune from punitive fines for violation of state UST regulations. (119)

2. Safe Drinking Water Act

In 1974, Congress enacted the Safe Drinking Water Act (SDWA), 42 U.S.C. [subsection] 300f-300j-26, to ensure the development of a regulatory mechanism that protects the quality of publicly supplied drinking water. Under the SDWA, the EPA and the state environmental agencies share responsibility for administering the safe drinking water programs. As required by the SDWA, the EPA promulgated national primary drinking water regulations (NPDWR) designed to prevent contamination of public water systems. (120) These NPDWRs are the standards applicable to all public water systems in the nation and may be enforced by the EPA or a state. (121) A state can receive primary enforcement responsibilities for public water systems provided it can show EPA that its safe drinking water program is no less stringent than the NPDWRs and that the state has an effective enforcement mechanism. (122)

The SDWA also provides for protection of the purity of drinking water at its source. State Underground Injection Control programs are designed to prevent subsurface waste disposal to ensure contaminants do not reach drinking water sources. (123) The Sole Source Aquifer program is a federal grant program that reimburses states 50% of their cost in developing state programs to identify and preserve "critical aquifer protection areas." (124) The Wellhead Protection Area program is designed to protect surface and subsurface watershed areas that surround wells that are used to supply public water systems with drinking water. (125)

After the enactment of the SDWA Amendments of 1996, (126) no doubt exists about the waiver of sovereign immunity. (127) Congress used the language from the FFCA of 1992 (128) to modify the federal facilities section of the SDWA to clearly and unequivocally waive sovereign immunity for "all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature or are imposed for isolated, intermittent, or continuing violations." (129) The state must use all funds collected from federal facilities for fines or penalties only for environmentally beneficial projects or to defray environmental protection of enforcement costs. (130) Clearly, federal facilities are subject to penalties imposed by states for SDWA violations.

3. Toxic Substances Control Act: Lead-Based Paint

In 1992, after the Supreme Court decided Dep't of Energy v. Ohio , Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992. (131) This Act amended TSCA by adding to it the Lead-Based Paint Reduction Act (subchapter IV of TSCA). (132) Even though there is no blanket TSCA waiver, Congress in this amendment waived sovereign immunity with regard to lead-based paint and lead-based paint activities. (133) Not only does this waiver require the federal government to comply with all federal, state, interstate, and local substantive and procedural lead-based paint requirements, it expressly waives any immunity applicable to the United States with regard to these requirements. (134) All punitive civil and administrative fines and penalties are specifically included. (135) The waiver is clear and unambiguous and subjects federal facilities to punitive and coercive fines and penalties for violations of state regulations covering federal lead-based paint and lead-based paint activities. (136) TSCA lead-based paint requirements primarily affect the Air Force with regard to military family housing and military housing activities. (137)

C. Act Where State Fine Issue is Unsettled: Clean Air Act

The Clean Air Act (CAA) (138) is a comprehensive national program that makes the states and the federal government partners in the struggle against air pollution. (139) The purposes of the CCA are to protect the quality of the Nation's air resources, encourage advancements in air pollution control, provide resources to state and local governments for the execution of their air pollution control programs, and to aid in the control of regional air pollution. (140) In general, the primary goal of the CAA is air pollution prevention. (141)

Congress included a waiver of sovereign immunity in section 118(a) of the CAA. The question of whether [section] 118(a) of the CAA, waives the United States ' sovereign immunity from state-imposed civil penalties for violations of state air pollution control laws has been addressed by various courts. (142) Predictably, some courts have held that Congress did not waive sovereign immunity for state-imposed CAA fines, (143) while others decided to the contrary. (144) These conflicting judicial decisions have created uncertainty regarding the payment of state-imposed fines under the CAA. (145)

At the time this article was written, the Department of Justice (Do J) position continues to be that sovereign immunity is not waived for state-imposed CAA fines. (146) However, given the uncertainty of the issue, the Air Force has published the following guidance: (147)

--States in the Sixth Circuit: The Department of Defense (DoD) will continue to pay state penalties as a result of the holding in United States v. Tennessee Air Pollution Control Board, 185 F.3d 529 (6th Cir. 1999).

--States in the Ninth Circuit: DoJ agreed with the services' recommendation not to appeal California v. U.S. , No. 98AS00723 (Super. Ct. of Cal. , Sacramento Co., March 18, 2002). DoD may negotiate and settle other pending and future penalty assessments. States in the Eleventh Circuit: To preserve the United States ' litigation posture for the anticipated appeal of the Jacksonville case, DoD will not negotiate or pay any state CAA penalties. (148)

--States in all other circuits: Coordination will be obtained from DoJ on a case-by-case basis prior to entering into negotiation for the settlement of state CAA penalties.

--All states in all circuits: When settling a state CAA penalty case, the written agreement memorializing the settlement shall expressly state that the Air Force does not admit liability and must remain silent with regard to the issue of sovereign immunity. (149)

It is clear that changes in the law and policy regarding payment of state-imposed CAA fines are inevitable. (150)


The law of sovereign immunity as it applies to federal facility compliance with environmental regulations has undergone significant changes over the past several decades. The law in this area will continue to change in the near future. Numerous court decisions and congressional reaction to those decisions have created uncertainty in where the law is headed and inconsistency in how various environmental statutes are enforced against agencies of the federal government. As noted, more changes are certainly in the making; however, one trend is clear--the trend toward more state authority. Every time Congress has acted to resolve a conflict, they have acted to enhance state authority over federal entities.

The environmental statutes can be divided into three categories with regard to sovereign immunity for state imposed fines: those subjecting federal facilities to state fines, those that do not, and those where the issue is unsettled. Federal facilities are subject to state fines for violations of RCRA, SWDA, and the TSCA's lead-based paint provisions. Federal facilities are not subject to punitive state fines under the CWA, CERCLA, EPCRA, and PPA. Lastly, the authority for states to fine federal facilities under the CAA is in active litigation. Whether a facility pays state CAA fines depends on the U.S. judicial circuit in which the facility is located. If the issue is resolved in a manner consistent with current trends, all federal facilities will eventually be subject to state CAA fines. This will happen either because court decisions in various jurisdictions will rule against the use of sovereign immunity in the area of CAA fines or because Congress will act to ensure federal facilities are subject to state CAA fines.

(1) Connecticut v. EPA, 696 F.2d 147, 151 (2d Cir. 1982). EPA retains parallel authority to enforce federal standards even though a program has been delegated to a state. However, for delegated programs, it is EPA policy to take enforcement action only when the state fails to take timely and appropriate action, the state requests EPA to take the lead or participate in a joint action, or other limited circumstances are present, as outlined in the Policy Framework for Implementing State/EPA enforcement Agreements (July 1993). EPA OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, THE YELLOW BOOK: GUIDE TO ENVIRONMENTAL ENFORCEMENT AND COMPLIANCE AT FEDERAL FACILITIES V-18 (1999).

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

(3) All major environmental statutes contain waivers of sovereign immunity; however, the Supreme Court reads these waivers very narrowly. See Lane v. Pena, 518 U.S. 187, 192-93 (1996). For examples of where Congress waived sovereign immunity in other contexts, see The Tucker Act, 24 Stat. 505 (1887), as amended, 28 U.S.C. [subsection] 1346(a), (b), (d) (1964) and The Federal Torts Claim Act, 28 U.S.C. [subsection] 2671-80 (1988).

(4) Matter of: Veterans Administration - False Alarm Charges, B-219532, 65 Comp. Gen. 61 (1985) [hereinafter B-219532].

(5) ARNOLD W. REITZE, JR., AIR POLLUTION LAW [section] 20-3(a)(3) (1995).

(6) U.S. Dep't of Energy v. Ohio , 503 U.S. 607, 630 (1992) (White, J., dissenting). See Rebecca Heintz, Note: Federal Sovereign Immunity and Clean Water: A Supreme Misstep, 24 ENVTL. L. 263 (1994); see also Kyle Bettigole, Defending Against Defense: Civil Resistance, Necessity and the United States Military's Toxic Legacy, 21 B.C. ENVTL. AFF. L. REV. 667 (1994).

(7) The other goals are: (1) correction of violations to protect public health and welfare; (2) equitable treatment of polluters to prevent violators from gaining an economic advantage and to protect the basic enforcement mechanism of self-policing; (3) punishment; and (4) maximize enforcement by effective use of limited resources. REITZE, supra note 5, [section] 20-1 (1995).

(8) See Donald W. Stever, Perspectives on the Problem of Federal Facility Liability for Environmental Contamination, 17 ENVTL. L. REP. (ENVTL. L. INST.) 10, 114 (1987).

(9) See Margaret K. Minister, Federal Facilities and the Deterrence Failure of Environmental Laws: The Case for Criminal Prosecution of Federal Employees, 18 HARV. ENVTL. L. REV. 137 (1994); see also Stephen Herm, Criminal Enforcement of Environmental Laws on Federal Facilities, 59 GEO. WASH. L. REV. 938 (1991).

(l0) Whether the EPA is authorized to fine other federal agencies for environmental violations is not a sovereign immunity issue and is therefore beyond the scope of the article. However, various footnotes will address the issue.

(11) B-219532, supra note 4.

(12) Id. It should also be noted that federal agencies are prohibited from paying interest unless there is specific language in the waiver of sovereign immunity that specifically allows payment of interest. Library of Congress v. Shaw, 478 U.S. 310 (1986).

(13) 31 U.S.C [section] 1341 (Lexis 2006).

(14) Id. [section] 1341 (a)(1)(B).

(15) Id. [section] 1349. An officer or employee of the U.S. Government or of the District of Columbia government violating section 1341(a) or 1342 of the ADA is subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.

(16) Id. [section] 1350. An officer or employee of the U.S. Government or of the District of Columbia government knowingly and willfully violating section 1341(a) or 1342 of the ADA can be fined not more than $5,000, imprisoned for not more than 2 years, or both. See also Office of Personnel Management v. Richmond , 496 U.S. 414 (1990).

(17) United States v. Sherwood, 312 U.S. 584, 586 (1941).

(18) Id. at 586; United States v. Shaw, 309 U.S. 495, 500 (1940).

(19) See Hancock v. Train, 426 U.S. 167 (1976); EPA v. California , 426 U.S. 200, 211 (1976) ("Federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous.").

(20) See United States v. Lee, 106 U.S. 196, 205-209 (1882); Edwin M. Borchard, Government Liability in Tort, 34 YALE L.J. l, 4 (1924); William R. Hartl, Sovereign Immunity: An Outdated Doctrine Faces Demise in a Changing Judicial Arena, N. DAK. L. REV. 401 (1993); R. Matthew Molash, If You Can't Save Us, Save Our Families: The Feres Doctrine and Servicemen's Kin, 1983 U. ILL. L. REV. 317 (1983).

(21) See Owen v. City of Independence, 445 U.S. 622 (1980) ("Although it has never been understood how the doctrine of sovereign immunity came to be adopted in the American democracy, it apparently stems from the personal immunity of the English Monarch as expressed in the maxim, 'The King can do no wrong.' It has been suggested, however, that the meaning traditionally ascribed to this phrase is an ironic perversion of its original intent: 'The maxim merely meant that the King was not privileged to do wrong. If his acts were against the law, they were injuriae (wrongs). Bracton, while ambiguous in his several statements as to the relation between the King and the law, did not intend to convey the idea that he was incapable of committing a legal wrong.'"); Langford v. United States, 101 U.S. 341,343 (1879) ("It is to be observed that the English maxim does not declare that the government, or those who administer it, can do no wrong; for it is a part of the principle itself that wrong may be done by the governing power, for which the ministry, for the time being, is held responsible; and the ministers personally, like our President, may be impeached; or, if the wrong amounts to a crime, they may be indicted and tried at law for the offence. We do not understand that either in reference to the government of the United States , or of the several States, or of any of their officers, the English maxim has an existence in this country."); Borchard, supra note 20, at 4; Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1 (1967); Heintz, supra note 6.

(22) Susan Randall, Sovereign Immunity and the Uses of History, 81 NEB. L. REV. 1 (2002) (arguing that the concept of sovereign immunity has no basis in acceptance and adoption by this country in its founding as we were trying to escape such ideas of sovereign control as "the king could do no wrong," and arguing that the Constitution likely subjects the federal government to the power of the federal courts in Article III).

(23) See Nevada v. Hall, 440 U.S. 410, 415 (1978); Nestor M. Davidson, Constitutional Mass Torts: Sovereign Immunity and the Human Radiation Experiments, 96 COLUM. L. REV. 1203 (1996); see also Justice Brennan's dissenting opinion in Edelman v. Jordan, 415 U.S. 651, 687 (1974) (refering to the "nonconstitutional but ancient doctrine of sovereign immunity"); Heintz, supra note 6.

(24) For a discussion of the contemporary bases for the common law doctrine in this country, see Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 VAND. L. REV. 1529 (1992) (discussing that sovereign immunity protects our common resources by forcing individuals to bear their own losses suffered at the hands of government and that sovereign immunity is justified, if at all, as a means of protecting the freedom of action of the elected branches from judicial incursions).

(25) Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).

(26) United States v. McLemore, 45 U.S. (4 How.) 286 (1846).

(27) Id. at...

From the preamble to Supreme Court Rule 4 "The legal profession's relative autonomy carries with it special responsibilities of self government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar." Salmon stronghold bills (HR 2055 and S 817 ): Although Pacific salmon conservation bills have won biparitisan support in both chambers and from the Obama Administration, there may not be time to finish work on them before the 111 th Congress draws to a close. The programs proposed under the current bills differ from current conservation efforts, in that they call for investment in the healthiest—rather than the most endangered—salmon spawning runs. This “salmon stronghold” approach was well received in an April 15 Senate Commerce Committee hearing, as it was by the House Natural Resources Committee last June, but has not been scheduled for markup by either panel. fons capitis curator aquarum For some R.I. communities, cleanup of Superfund sites means a long haul 11:52 AM EDT on Wednesday, June 16, 2010 By Talia Buford

Journal Staff Writer
SMITHFIELD — There are few generalities that hold true when it comes to cleaning toxic-waste dumps or Superfund sites. Each site is different. Different soil. Different chemicals. Different circumstances. But for Superfund sites that end up on the U.S. Environmental Protection Agency National Priorities List — a compilation of the most contaminated areas in the country — it seems one thing is clear: what takes a short time to contaminate can often take a lifetime to clean up. One of the most contaminated sites in northern Rhode Island — the Davis Liquid Waste Superfund site — is entering its 25th year of remediation. EPA officials recently unveiled a multimillion-dollar long-term plan to clean the groundwater on the site, which served as a major chemical and tire dump in the late 1970s and early 1980s, when the dumping was legal. They say it will take at least 40 years for the groundwater to once again become drinkable, and 80 years for the water deep in the bedrock to be cleaned. The EPA identified the Davis Superfund site as a priority in 1983 and subsequently started work to remove the 6 million tires 1,400 drums and 15,000 laboratory containers of chemicals and waste. Then, the agency built a facility to treat the contaminated soil. What they could clean, they put back; what they couldn't, they disposed of off-site. The $24 million worth of work was paid for by the sources of the chemicals and tires. There are 13 Superfund sites in Rhode Island on the long-term cleanup or National Priorities List. All but three of them are in the monitoring phase, which means that treatment has been done and officials are watching the progress. “We revisit sites often,” Michael R. Jasinski, chief of the New Hampshire and Rhode Island Superfund Section for the U.S. EPA. “We have, on occasion, changed our decision at sites as we learn more, as the technology improves or as the cleanup doesn't proceed as quickly as possible.” That's what's happened with Davis. Originally, there was a plan to pump all of the water out of the ground, treat it, and then pump it back. But officials said the ground couldn't absorb the water quickly enough. So they began looking at alternatives. The revised groundwater treatment plan proposes drilling holes into the ground and then pouring in small particles of iron and other compounds such as molasses and lactic acid that will react with the contaminants. The reaction would help stimulate naturally occurring microbes that would help to break down the contaminants, said Byron Mah, EPA remedial project manager for the site. The process — called biological degradation — already naturally occurs, but injecting the compounds would speed the process. The first application would take a few weeks, Mah said, but EPA would re-administer the treatment and monitor the area for the next 40 years at least. The plan would cost $11.3 million, according to EPA estimates, Mah said. EPA will negotiate with the responsible parties to pay for the cleanup, he said, but no agreements have been reached yet on the groundwater cleanup. It's not just the contamination, but also the system of checks and balances the EPA has instituted for dealing with these types of sites. “The whole process takes awhile,” said Gary Jablonski, principle engineer at Rhode Island Department of Environmental Management. “We don't do everything at once. We do it step by step, draw out a work plan and then everyone has to agree on the work plan. We had to get rid of the tires. And then take care of the drums. There were a lot of things going on there –– the site doesn't just sit down. Stuff was going on in the early '90s, the mid '90s and 2,000s to get rid of the soil. Now we're on the groundwater. That's why it takes so long.” But the Davis site posed its own set of problems. Not the least of which was Davis himself. In years past, Davis took the EPA to court to keep them from trespassing on his property to clean the Superfund site, and would reportedly patrol his property with a gun and his dog, Bubba. On Tarkiln Road, signs along the road convey a stern message for anyone thinking of stepping onto Davis' property, much of which is protected by a barbed-wire topped fence. Keep Out. Private Property. “It just keeps adding another layer,” Jablonski of DEM said. “He has rights and we're not going against that. It's just something you don't think about. You think you can just go in there and get it done, but when someone won't let you on their property it takes a little bit of time.” Officials also had a veritable maze of potentially responsible companies to negotiate with to pay for the clean up at the Davis site. Companies as far away as New Jersey were suspected of dumping waste there. The site itself is easy to pass by. Trees and grass grow in the area seen from the main road. Houses have popped up on neighboring roads, but for the most part, resident's interest in the site has died off. A recent public meeting was attended by a handful of people, one of whom was Maxine Cavanagh, who lives on Log Road not far from the site. “I'm disappointed there aren't more people here,” she said after the meeting. “They just aren't interested.” UPDATE Superfund long-term cleanups Of the 13 Superfund sites in Rhode Island slated for long-term cleanups, three of them are still in the remediation phase. The rest of the sites are being monitored to track the progress of the cleanup treatments.Centredale Manor Restoration Project (North Providence): Testing and study of area and erection of fencing around site and design of soil caps began in 1999. The soil contaminated with dioxins, metals and other toxins was removed; signs were erected advising that fish caught in the Woonasquatucket River not be eaten. Currently, a feasibility study of long-term cleanup options was slated to be finished in 2009. Cost so far: $4 million has been set aside from the responsible companies for long-term cleanup efforts. Davis Liquid Waste (Smithfield): Cleanup began in 1985. Initial cleanup complete and water main and 300,000-gallon water storage tank installed and completed by 1997. Groundwater decontamination plan proposed, awaiting public feedback. Cost so far: $24 million paid by responsible companies, plus a proposed $11.3 million for groundwater cleanup. Peterson/Puritan Inc. (Cumberland/Lincoln): The former commercial site suffered a 6,000 gallon aerosol solvent spill in 1974, contaminating the sand and gravel aquifer that feeds into the Blackstone River and the Martin Street and Quinnville wells. Cleanup began in 1982 and residents in Lincoln were placed on municipal water. Treatment systems to clean the soil and groundwater were completed in 1998 and are maintained by the responsible parties. Cost so far: Not disclosed; paid by the responsible companies. CERCLA SECTION 128(a) STATE IMPLEMENTATION SUPPORT GRANTState's Sovereign Immunity under CERCLA Not Waived by Asserting RCRA CounterclaimFebruary 13, 2008 Steve Jones The State of New Jersey did not waive its sovereign immunity from suit by private parties under CERCLA when it asserted counterclaims against those same parties under RCRA and New Jersey state law, a federal court ruled last month. The plaintiff in the case, Litgo New Jersey, sued the New Jersey Department of Environmental Protection (“DEP”), seeking an order compelling DEP to investigate and remediate hazardous waste, as well as a declaratory judgment that DEP was liable for past and present costs for disposal of the waste. In a decision handed down in the case of Litgo New Jersey, Inc. v. Jackson , a federal district court held that the State of New Jersey's assertion of counterclaims under RCRA and under New Jersey's Industrial Site Recovery Act (“ISRA”) did not constitute a waiver of the state's Eleventh Amendment immunity from private claims under CERCLA. The decision does not break new ground, but it does stand as a reminder of the difficult situation private parties can find themselves in at a Superfund site in which the state government is a significant polluter. The United States Supreme Court created the problem in Seminole Tribe of Florida v. Florida, in which it held that, unless a state has affirmatively waived its immunity, as some states have done under their own state “mini-Superfunds,” or subjected itself to federal court jurisdiction by initiating litigation itself, the states may rely on the Eleventh Amendment to prevent private parties from pursuing them under CERCLA. As Litgo illustrates, in such circumstances, private parties may end up picking up the state's share. Superfund site is cleaned up 100 years ahead of schedule CERCLA TRUST FUNDS EXEMPT FROM TAXATION On April 12, 2010, Governor Arnold Schwarzenegger signed legislation that will exempt from California taxation escrow accounts that contain settlement funds used to perform cleanup actions pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The bill, entitled the Conformity Act of 2010, brings California in line with the federal government in making tax free the income on certain escrow accounts and settlement funds created for the purpose of remediating CERCLA hazardous waste sites. CERCLA Settlement Funds and Federal Law
Private parties who perform cleanup actions at CERCLA hazardous waste sites often use escrow accounts to manage third party settlements and other funds that are used to pay for the cleanup action. Traditionally, these accounts were subject to federal and state income tax and there was no effective way to generate a fair return that would avoid the federal and state tax on the income from such accounts. As a result, the funds available to perform the clean up were reduced.
Congress addressed this issue at the federal level when it passed the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA). TIPRA amended Section 468B(g) of the Internal Revenue Code (IRC) to provide that an escrow account, settlement fund or similar fund created after May 17, 2006, is to be treated as beneficially owned by the United States and exempt from taxation under the IRC if the settlement fund: (1) was established pursuant to a consent decree entered by a judge of a United States District Court; (2) was created for the receipt of settlement payments for the sole purpose of resolving claims under CERCLA; (3) is controlled (in terms of expenditures of contributions and earnings) by the government or its agency or instrumentality; and (4) provides that upon termination, any remaining funds will be disbursed to such government entity and used in accordance with applicable law. The TIPRA amendment reflects Congress' concern that the usual rule — subjecting such settlement funds to income taxation — might prevent parties from entering into prompt settlements with the Environmental Protection Agency for the cleanup of Superfund sites and reduce the ultimate amount of funds available for the sites' cleanup. In short, the tax exempt status of CERCLA settlement funds is aimed at encouraging dispute resolution. California Now Conforms to Federal Law
With the passage of the Conformity Act of 2010, the California Revenue and Taxation Code has been amended to incorporate the TIPRA amendment to 468B(g) of the IRC. The result is that most CERCLA settlement funds are now exempt from California in addition to federal tax.
Practical Details and Implications
Only CERCLA settlement funds that are exempt from federal tax will be exempt from California tax, and the California exemption applies only for tax years beginning on or after January 1, 2010. Estimated state tax payments due for 2010 need not be made and, if already made, should be refunded upon filing of the California tax return with respect to the CERCLA settlement fund. For those parties contributing to or considering creating a CERCLA settlement fund, the new legislation may result in significant tax savings, further encourage settlement, simplify tax preparation and ease compliance with tax regulations, to the overall benefit of CERCLA settlement fund contributors.
WASTE IRON MOUNTAIN TO CAP & TRADE LOS ANGELES SLUDGEUtah Authorizes Use of Eminent Domain to Seize Federal Land Tuesday, April 6th, 2010 by Courtney LeBoeuf , Esq. On Saturday, March 27, 2010, Utah governor Gary Herbert signed into law a pair of bills authorizing the use of eminent domain to seize some of the federal government's most valuable land in the state. In Utah, where the U.S. government owns more than 60% of the land, such a move could see the state realize millions of dollars if it is successful. Supporters are hopeful that passage of the bills will trigger a flood of similar legislation throughout the West, an area where lawmakers claim that federal land ownership hinders economic development and restricts states' abilities to generate tax revenue to adequately fund public schools.  Attorneys for the state's legislators admit that another goal of the legislation is to spark a U.S. Supreme Court battle that they admit has little chance of success. Utah plans to target three areas, including the Kaiparowits plateau in Grand Staircase-Escalante National Monument, which is home to large coal reserves.  The state could also invoke eminent domain on parcels of land where Interior Secretary Ken Salazar last year scrapped 77 oil and gas leases around national parks and wild areas. Using the state to condemn Federal land At a ceremony for the bill signing, Governor Herbert urged the legislatures of all western states to follow Utah's lead. CONDEMNATION OF THE CHAPPIE-SHASTA OHVA, ADVERSE CLAIMSExecutive Order 11988 requires federal agencies to avoid to the extent possible the long and short-term adverse impacts associated with the occupancy and modification of flood plains and to avoid direct and indirect support of floodplain development wherever there is a practicable alternative. In accomplishing this objective, "each agency shall provide leadership and shall take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the natural and beneficial values served by flood plains in carrying out its responsibilities" for the following actions:

GAO reportThe environmental impacts of OHV use, both direct and indirect, have been studied and documented over the past several decades. In fact, in 2004, the Forest Service Chief identified unmanaged motorized recreation as one of the top four threats to national forests, estimating that there were more than 14,000 miles of user-created trails, which can lead to longlasting damage. Potential environmental impacts associated with OHV use include damage to soil, vegetation, riparian areas or wetlands, water quality, and air quality, as well as noise, wildlife habitat fragmentation, and the spread of invasive species. For example, studies on the impacts of OHV use indicate that soil damage can increase erosion and runoff, as well as decrease the soil's ability to support vegetation. Additionally, research has shown that habitat fragmentation from OHV use alters the distribution of wildlife species across the landscape and affects many behaviors such as feeding, courtship, breeding, and migration; habitat fragmentation can also negatively affect wildlife beyond the actual amount of surface area disturbed by roads. In 2007, the U.S. Geological Survey reported that as a result of OHV use, the size and abundance of native plants may be reduced, which in turn may permit invasive or nonnative plants to spread and dominate the plant community, thus diminishing overall biodiversity. Another potential impact of OHV use is damage to cultural resources, including archaeologically significant sites such as Native American grave sites, historic battlefields, fossilized remains, and ruins of ancient civilizations. OHV use on federal lands generally increased from fiscal year 2004 through fiscal year 2008, according to a majority of field unit officials from the Forest Service, BLM, and Park Service. Most field unit officials reported that environmental impacts associated with OHV use occurred on less than 20 percent of the lands they manage, although a few field unit officials reported that 80 percent or more of their lands are affected. Most field unit officials also indicated that social and safety impacts occasionally occurred on their lands. Most field unit officials from all three agencies indicated that environmental impacts of OHV use occur on less than 20 percent of the lands they manage; a few field unit officials, however, reported that 80 percent or more of their lands are affected by OHV-related environmental impacts.7 Forest Service and BLM field unit officials were more likely to report greater percentages of land with environmental impacts than Park Service field unit officials. The OHV-related environmental impacts that field unit officials identified as most widespread were soil erosion, damage to vegetation, wildlife habitat fragmentation, and the spread of invasive species. For example, officials from the Tonto National Forest in Arizona noted that the main impact associated with OHV use in the forest has been soil erosion, particularly in areas with highly erodible soils (see fig. 4). Additionally, officials from BLM's Phoenix District in Arizona noted that OHV use has fragmented desert tortoise habitat because the tortoise can be disturbed by OHV noise. Other reported environmental impacts included damage to riparian zones and harm to threatened or endangered species. Specifically, 31 field unit officials (7 percent of units that reported having OHV use) indicated that at least one environmental impact of OHV use affected more than 80 percent of their lands. The severity of certain OHV-related environmental impacts, such as soil damage, may also depend on the ecosystem in which OHV use occurs (see fig. 5). For example, BLM officials from the El Centro Field Office in southern California explained that the Imperial Sand Dunes are dynamic and soil damage from OHV use tends to be minimal, since most tracks are quickly erased by the wind. In contrast, certain desert ecosystems, including those in Arches National Park , have sensitive soils, and recovery from OHV-related disturbance to soils and plant life can be very slow. Additionally, Forest Service officials from the Manti-LaSal National Forest in central Utah stated that soil erosion is a major environmental impact associated with OHV use on their forest. Damage to the forest's soils often occurs from OHV use in the late fall (after the first snow), when the ground is wet but not frozen. While officials at the Manti-LaSal National Forest said that these damaged areas could recover in about a year with rehabilitation efforts, the areas often take 4 to 5 years to recover because the forest lacks staff to rehabilitate the lands more quickly. Similarly, Park Service officials in Big Cypress National Preserve said that the environmental impacts primarily associated with OHV use include disturbance to soils and vegetation, as well as disruption to the hydrology of the wetland ecosystem. These officials further stated that while plant life regenerates fast, ruts from OHV use can persist for more than a decade. Social and safety impacts related to OHV use occasionally or rarely occur on federal lands; although, an annual average of about 110 OHV-related fatalities occurred nationwide from fiscal year 2004 through fiscal year 2008 according to data provided by field unit officials. Forest Service and BLM field unit officials reported a higher frequency of OHV-related social and safety impacts than did Park Service field unit officials. The most often reported of these social and safety impacts were conflicts between OHV and nonmotorized users, displacement of nonmotorized users, conflicts with private landowners, and irresponsible OHV operation. For example, Forest Service officials at the Manti-LaSal National Forest said that motorized recreationists have taken over trails managed for nonmotorized use, resulting in conflicts between motorized and nonmotorized users. Additionally, BLM officials at the Prineville District in central Oregon noted that private landowners adjacent to federal lands, frustrated with OHV users driving on their lands, have taken enforcement into their own hands by placing cables and rocks across trails to prevent unauthorized OHV use. BLM officials at the El Centro Field Office also said that many OHV-related violations are due to irresponsible behavior, such as failing to have a safety flag on an OHV or driving an OHV while under the influence of alcohol. Nearly all reported OHV-related fatalities occurred on Forest Service and BLM lands. Although a majority of field unit officials from all three agencies reported having no OHV-related fatalities from fiscal year 2004 through fiscal year 2008, some field unit officials did report fatalities—a maximum total of about 570 during that time frame at 117 field units. Specifically, Forest Service field unit officials reported about 250 fatalities at 68 field units, BLM about 320 fatalities at 45 field units, and Park Service 5 fatalities at 4 field units. While most field units that had OHV-related fatalities reported 5 or less, a few field unit officials reported between 10 and 75 fatalities. At a national level, the Forest Service's and BLM's management of OHVs is broadly guided by department-level strategic plans, as well as by morespecific agency-level plans. These plans, however, are missing some key elements of strategic planning—such as results-oriented goals, strategies to achieve the goals, time frames for implementing strategies, or performance measures to monitor incremental progress—that could improve OHV management. The Park Service has no extensive planning or guidance for managing OHV use, but this absence seems reasonable given that Park Service regulations limit OHV use to only a few units and that OHV use is not a predominant recreational activity on Park Service lands. The Department of Agriculture's strategic plan includes a goal to protect forests and grasslands. Within the context of this goal, the plan specifically mentions OHV management, identifying unmanaged motorized recreation as one of four key threats to national forests. The plan also identifies a performance measure to develop travel plans—which designate roads, trails, and areas that will be open to motorized travel—for all national forests, with a target of completing these plans by 2010. In addition to this department-level plan, the Forest Service has an agency-level strategic plan that identifies a goal of sustaining and enhancing outdoor recreation opportunities and, in particular, improving the management of OHV use. The Forest Service's strategic plan also reiterates the performance measure identified by the department-level plan—to develop travel management plans for all forests that designate OHV roads, trails, and areas. While the agency plan includes a goal—improving the management of OHV use—and one strategy to achieve the goal—designating motorized roads, trails, and areas—the plan does not identify strategies to address— or time frames to implement—other important aspects of OHV management as identified in the executive orders, such as implementing motorized-travel designations on the ground, communicating with the public, monitoring OHV trail systems, or enforcing OHV regulations. Given that the Forest Service has identified unmanaged motorized recreation as one of the top four threats to national forests, the agency's strategic plan provides insufficient direction on this management challenge. Similar to the Forest Service, BLM's management of OHV use is guided by departmental planning. The Department of the Interior's strategic plan identifies a broad goal of improving recreation opportunities for America , and BLM has two plans expanding on this goal for OHV-related activities. BLM's first plan, the “National Management Strategy for Motorized Off- Highway Vehicle Use on Public Lands,” was published in 2001 as a first step in developing a proactive approach to on-the-ground management of OHVs. The second plan, BLM's “Priorities for Recreation and Visitor Services,” was developed in 2003 and reconfirmed in 2007 as the agency's plan for recreation management, including OHV management. This recreation plan identifies numerous goals for OHV management, as well as strategies the agency can use to achieve each goal. For example, the plan identifies a goal of improving on-the-ground travel management and identifies three strategies to achieve that goal—conducting trails surveys to determine maintenance needs; implementing best management practices such as signs, maps, and the presence of agency staff in the field; and monitoring social outcomes and environmental conditions along trails. Despite identifying numerous goals and strategies to achieve the goals, BLM's recreation plan does not identify any time frames for implementing the strategies or any performance measures for monitoring incremental progress.8 For example, while the agency identifies a strategy of implementing best management practices, the agency identifies neither performance measures that could track the use of best management practices—such as the percentage of routes with signs or the number of field offices with up-to-date maps—nor time frames by which some of these best management practices should be implemented. Without performance measures and time frames, BLM cannot ensure that it is making progress on achieving its goals in a timely manner. Actions that agencies' field units reported taking to manage OHV use include supplementing federal funds with authorized outside resources (such as state grants), communicating with and educating the public, enforcing OHV regulations, and engineering and monitoring OHV trail systems. Additional efforts could improve communication with the public about OHV trails and areas and enforcement of OHV regulations. In addition, a majority of field unit officials reported that they cannot sustainably manage existing OHV areas; sustainable management would include having the necessary human and financial resources available to ensure compliance with regulations, educate users, maintain OHV use areas, and evaluate the existing OHV program. A limited number of staff for OHV management was identified as a great challenge for a majority of Forest Service field unit officials, most BLM field unit officials, and some Park Service officials. Field staff who work on OHV issues work in various capacities, such as managing volunteers, creating route systems, maintaining routes, educating users, and writing state grant applications, but most units do not have such staff. For example, at BLM's Phoenix District Office, OHV management staff maintain an ambassador program, which coordinates volunteers to educate users and promote safe, sustainable OHV use in the area. Managing this program requires one full-time manager plus 10 to 20 percent of the time of two additional staff. Officials from four field units we visited stated that although volunteers and partnerships can enhance OHV management, taking advantage of their labor requires a significant Conclusions Over the past 5 years, OHV use has increased on federal lands and has emerged as a national issue. Federal land management agencies have only recently begun to respond to this trend by revising their plans and how they manage OHV use, but they are having to do so in an environment of constrained budgetary and staff resources and other competing management priorities. Although they reported taking a variety of actions to manage OHV use in this environment, agency field unit officials reported that they cannot sustainably manage their OHV route systems. The likelihood that the Forest Service and BLM, in particular, will succeed in their efforts to enhance management of OHV use could be increased by improving the agencies' planning to include key strategic planning elements. Such enhancements could also help the agencies to more effectively address and manage some of the challenges that their field unit officials reported in managing OHV use on their lands, such as insufficient staffing levels and financial resources. In addition, developing more userfriendly maps and signs for their route systems and seeking more appropriate fines to deter violations of OHV regulations could provide all federal land users, including OHV users, a more enjoyable, quality experience while also potentially lessening environmental, social, and safety impacts resulting from OHV use. The GAO report states: In addition, a majority of officials reported they cannot sustainably manage their existing OHV use areas; sustainable management would include having the necessary human and financial resources to ensure compliance with regulations, educate users, maintain OHV use areas, and evaluate the OHV program. CRS Report for Congress July 11, 2006 Order Code RL33525gh th Recreation on Federal Lands Critics of OHVs raise environmental concerns, including the potential for damage to land and water ecosystems and wildlife habitat; noise, air, and water pollution; and a diminished experience for recreationists seeking quiet and solitude. Two executive orders define and generally guide administering OHV use on federal lands. The first (E.O. 11644, Feb. 8, 1972) defines an off-road vehicle, now commonly referred to as an off-highway vehicle, as “any motorized vehicle designed for or capable of cross country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain,” with exceptions for any registered motorboat or authorized or emergency vehicles. It was issued to “establish policies and provide for procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands.” The order directed each agency to develop and issue regulations to carry out this purpose and to provide for the designation of areas and trails on which OHVs may be permitted, and areas in which such vehicles would not be permitted. Agencies were to monitor the effects of OHV use and amend or rescind area designations or other actions taken pursuant to the order as needed to further the policy of the executive order. A subsequent executive order (E.O. 11989, May 24, 1977) amended the 1972 order to exclude military, emergency, and law enforcement vehicles from the definition of off-road vehicles (to which restrictions would apply). It provided authority to immediately close areas or trails if OHVs were causing or would cause considerable damage on the soil, vegetation, wildlife, wildlife habitat, or cultural or historic resources of particular areas or trails. Areas could remain closed until the manager determined that “the adverse effects have been eliminated and that measures have been implemented to prevent future recurrence.” Also, each agency was authorized to adopt the policy that areas could be closed to OHV use except for those areas or trails that are specifically designated as open to such use. This meant that only open areas would have to be marked, a lesser burden on the agencies. BLM and FS managers formulate guidance on the nature and extent of land uses, including OHV use, through regulations, national policies, land and resource management plans, and area-specific decisions. In 2004, the NPS conducted an internal survey of current OHV use, authorized and unauthorized, and the extent of OHV damage (if any) at NPS units to respond to concerns raised by Bluewater Network.2 Currently, NPS is developing regulatory guidance and planning documents for individual park units, and considering what elements of OHV management may best fit under a national OHV management strategy. Meanwhile, on November 29, 2005, Bluewater Network and two other conservation groups sued DOI and NPS over alleged OHV damage to park resources. On October 19, 2005, the NPS also released draft Management Policies for public review through February 18, 2006,3 part of ongoing efforts to review and revise policies guiding management throughout the National Park System, including changing recreational uses and evolving technologies.4 One much discussed proposed change would require “balance” between conservation and enjoyment of park resources, whereas current policy states that “conservation is to be predominant” in conservation/enjoyment conflicts (§ 1.4.3). The extent to which this and other changes represented a shift in emphasis for management of motorized and other recreation is unclear. However, NPS subsequently made extensive changes to its draft policies based on analysis of over 45,000 comments. On June 19, 2006, NPS released a revised draft 2006 Management Policies that largely restores current policy language and its emphasis on conservation (§ 1.4.3).5 The 109th Congress is considering legislation and conducting oversight on issues pertaining to recreation on federal lands. Several major issues are covered in this report, particularly motorized recreation on BLM and FS lands; use of personal watercraft and snowmobiles in certain National Park System units; overflights of national park units; and expansion of the National Trails System. Other issues addressed cover recreation within the National Wildlife Refuge System; recreation at federal (Corps and Bureau) water sites; recreation fees; and Colorado River management within Grand Canyon National Park . While this report focuses on recreation issues on federal lands, it does not cover additional issues affecting these lands comprehensively. For background on federal land management generally, see CRS Report RL32393, Federal Land Management Agencies: Background on Land and Resources Management, coordinated by Carol Hardy Vincent. Overview information on numerous natural resource use and protection issues is provided in CRS Report RL32699, Natural Resources: Selected Issues for the 109th Congress, coordinated by Nicole Carter and Carol Hardy Vincent. For information on NPS issues, see CRS Report RL33484, National Park Management, coordinated by Carol Hardy Vincent. Information on BLM and Forest Service lands is contained in CRS Issue Brief IB10076, Bureau of Land Management (BLM) Lands and National Forests, coordinated by Ross W. Gorte and Carol Hardy Vincent. For information on appropriations for federal land management agencies, see CRS Report RL33399, Interior, Environment, and Related Agencies: FY2007 Appropriations, coordinated by Carol Hardy Vincent and Susan Boren. Current Issues Motorized Recreation on BLM Land (by Carol Hardy Vincent) Background. The growing and diverse nature of recreation on BLM lands has increased the challenge of managing recreation and other land uses, and managing different types of recreation. Access to BLM lands for a variety of recreational purposes is viewed as important for fostering public health, public support for land management, and a stable economic base for communities that depend on recreation and tourism. It also has enhanced interest in protecting the ecological integrity of federal lands from environmental harm as a result of recreational use. Motorized OHV use, including use of dirt bikes and all-terrain vehicles, is a major recreational use of BLM lands that has been controversial. While motorized user groups often have opposed restrictions on OHV use, many environmentalists have been concerned about harm to natural and cultural resources. In some areas, OHV use may conflict with other types of recreation, such as hiking, that seek quiet and solitude on agency lands. There are also differing views on how effectively OHV authorities are being enforced. While BLM employs a variety of means of enforcement, including monitoring, law enforcement, signing and mapping, and emergency closures of routes, enforcement may be impeded in some locations due to their remoteness, insufficient signs, inadequate staff and resources, and other factors.Administrative Actions. Guidance on OHV use on BLM lands is provided in law, executive orders, and agency regulations and policies. Under agency regulations (43 C.F.R. § 8340), BLM has been designating public lands as open, limited, or closed to OHV use. As of October 31, 2005, the following designations had been made: open, where OHV use is permitted anywhere, 81.1 million acres; limited, where OHV use is in some way restricted, 126.7 million acres; and closed, where OHV use is prohibited, 11.6 million acres. The remaining 42.1 million acres of BLM land (mostly in Alaska ) are not currently designated. Other regulations govern OHV use in particular areas. For instance, on August 18, 2005, BLM issued final supplementary rules for its lands in Oregon and Washington , which include guidance on OHV use. The FY2007 BLM budget justification describes BLM's “most pressing challenge” as “comprehensively managing travel, off highway vehicles (OHVs), and public access in the West” (p. III-128). In FY2007, BLM plans to develop approximately 67 travel management plans, which will identify and designate roads and trails for motorized travel, and to begin implementation when the plans areCRS-5 6 The BLM Strategy and related documents are available at []. 7 Available at []. 8 Available at []. 9 Available at []. 10 Available at []. completed. The agency requested $63.8 million for recreation management generally for FY2007, a 2% reduction from the FY2006 level of $65.1 million. In passing H.R. 5386, the House approved $67.0 million for recreation management in FY2007, a 3% increase over FY2006 and a 5% increase over the Administration's request. BLM has issued two national strategies dealing with transportation on its lands. The National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands6 has multiple purposes, including to guide land managers in resolving OHV issues; to promote consistency of OHV decision- making; to highlight needed staff and funding for OHV management; to reduce conflicts among land users; to promote responsible OHV use and reduce habitat degradation; and to lead to an update of OHV regulations (which has not occurred to date). The National Mountain Bicycling Strategic Action Plan7 addresses mountain bicycling and other musclepowered mechanical transport. Further, to guide BLM managers in taking actions affecting recreation during FY2003-FY2007, in May 2003 BLM issued The BLM's Priorities for Recreation and Visitor Services.8 BLM revised its land use planning handbook in 2005 regarding motorized and non-motorized recreation.9 The agency makes OHV designations during the planning process, on an area-by-area basis, and such designations often have been contentious and complex. Although the agency is in the midst of a multi-year effort to develop and update land use plans, many plans do not currently address OHV use and other relatively recent issues. In some cases, the BLM and FS jointly address OHV use on their lands. For instance, an interagency plan governs OHV use on lands in Montana , North Dakota , and South Dakota . Joint management approaches, where federal lands are intermingled, can promote consistency and public understanding of OHV guidance. However, BLM and FS lands are different, and they are governed by separate authorities, making complete consistency on vehicular travel management difficult to achieve. Legislative Activity. A July 13, 2005, House Resources joint subcommittee hearing examined motorized recreational use on federal lands.10 Agency representatives discussed the increased popularity of OHV use on federal lands, development and implementation of travel management plans, and challenges of managing OHVs. Other witnesses testified on availability of federal lands for OHV use, and the effects of OHV use on human health, the economy, the environment, and other forms of recreation. Some pending measures affect OHV use in particular areas. For instance, H.R. 3603 contains provisions related to OHV use in central Idaho . They include conveying BLM land to the State of Idaho to establish a motorized recreation park, CRS-6 11 Off-Highway Vehicle Recreation in the United States , Regions and States (USDA-FS Southern Research Station, June 2005). Available via the FS website at [http://www.]. 12 70 Fed. Reg. 1023, Jan. 5, 2005. Also available via the FS website at [http://www.fs.]. 13 Detailed information and documents concerning the 2005 final rule are available via the FS website at []. 14 70 Fed. Reg. 68264-68291, Nov. 9, 2005. establishing a special management area on certain BLM and FS lands to provide opportunities for motorized and other recreation, and authorizing up to $1.0 million for the Secretary of Agriculture to grant to the State of Idaho for the off-road motor vehicle program. Motorized Recreation in the National Forests (by Ross W. Gorte) Background. The national forests are managed by the USDA Forest Service (FS) for a variety of uses, including many types of recreation — sightseeing, OHV use, backpacking, etc. — while preserving the productivity of the lands. Recreation use continues to grow, with OHV use among the fastest growing uses.11 The various uses and values of the national forests sometimes conflict with one another. For example, timber harvesting and OHV use may affect birdwatching and sightseeing, and can degrade water quality in certain settings. Decisions about what uses are allowed, and when and where, are made in comprehensive land and resource management plans prepared for each unit of the National Forest System, and at the project level. Because of multiple efforts to modify the planning regulations, many plan revisions were delayed. New planning regulations have recently been finalized,12 and plan revisions are now expected to proceed.13 Administrative Actions. Federal guidance on OHV use in E.O. 11644 and E.O. 11989 was incorporated into FS regulations, at 36 C.F.R. Part 295. Despite this guidance, not all forest plans have identified areas as open or closed to OHVs, and local practices as to OHV use vary. In 2004, the FS Chief identified unmanaged recreation — “increasing use of the national forests for outdoor activities ... , including the use of off-highway vehicles” — as a threat to the nation's forests and grasslands. In particular, OHV use has created many unauthorized roads and trails, which can be unsafe and harmful to other resources. In response, the FS has finalized new regulations to require forest plans to identify a system of roads, trails, and areas for motorized vehicle use and prohibit the use of OHVs and other motorized vehicles outside the designated system.14 Implementing directives are expected to be published for public comment during 2006, and decisions governing motorized uses are then to be made in forest planning (with public involvement) over the next four years. Opinions are divided over the importance and impact of the regulations. Some assert that the regulations do not go far enough, preferring that all OHV uses be prohibited in the national forests, because OHVs can (and sometimes do) damage CRS-7 15 65 Fed. Reg. 15077, effective April 20, 2000. national forest lands and resources. Others counter that the regulations penalize the majority of OHV users that obey the current rules and restrict off-highway uses at a time when other landowners and other federal and state agencies are reducing recreational access to their lands. The FY2007 FS budget proposes cutting recreation funds. Recreation management would be funded at $250.9 million, a $7.9 million (3%) reduction from the FY2006 level of $258.8 million. Trails funding would be $60.3 million, a $13.9 million (19%) reduction from the FY2006 level of $74.2 million, with a greater reduction (in dollars and percentage) in trails construction than in maintenance. Legislative Activity. The House-passed FY2007 Interior appropriations bill, H.R. 5386, restored or increased FS recreation and trails funding, compared to the request. Recreation management was approved at $262.0 million, $3.2 million (1%) above FY2006 and $11.1 million (4%) above the request. Trails funding was approved at $73.4 million, $0.8 million (1%) below FY2006 (all in construction) and $13.1 million (22%) above the request (increasing both construction and maintenance). On July 13, 2005, two subcommittees of House Resources held a joint hearing to examine motorized recreation use on federal lands. (See “Legislative Activity” under BLM, above.) To date, no comprehensive legislation addressing OHV use in national forests generally has been introduced in the 109th Congress. Hazard Mitigation Assistance (HMA) The Fiscal Year 2011 (FY11) Hazard Mitigation Assistance (HMA) application period opened on June 1, 2010 and the FY11 Hazard Mitigation Assistance Unified Guidance is now available. The  FY11 Hazard Mitigation Assistance Unified Guidance is available in the FEMA Library. The  FY10 Hazard Mitigation Assistance Unified Guidance is still available in the FEMA Library but does not apply to the FY11 HMA application cycle. Historic Settlement Reached on Iron Mountain Mine
On October 19, 2000, the United
States and the State of California
announced a settlement with Aventis
Crop Sciences USA, Inc. that could
approach $1 billion for future cleanup of
the Iron Mountain Mine Superfund Site
located nine miles northwest of Redding, California.
The settlement, on behalf of the U.S. EPA,
the U.S. Department of the Interior,
the U.S. Department of Commerce, and
several state agencies, is one of the largest
settlements with a single private party in the
history of the federal Superfund program. It
is also one of the biggest environmental settlements
for state environmental agencies.

WASHINGTON - As part of its developing Urban Waters Initiative, the U.S. Environmental Protection Agency (EPA) is making available up to $600,000 in grants for an eligible entity to establish and manage a national competitive urban watershed small grants program, and to provide urban watershed technical services. The successful applicant would support capacity building projects in urban communities that will lead to environmental, public health, and related economic benefits. As part of Administrator Jackson's priorities, EPA is developing an urban waters initiative to help communities – especially disadvantaged communities – access, restore and benefit from their waters and the surrounding land. Many urban waters have a wide range of environmental challenges including polluted runoff, sewer overflows, and other contamination. The goal is to help urban communities reconnect with and revitalize the waters that are an important part of their health and prosperity. The agency has requested $5.5 million in grant funds in the FY 2011 budget request under the Community Water Priorities program to focus resources on water quality protection efforts in urban waters. The urban watershed grant announced today will promote community stewardship by increasing the capacity of local watershed and community groups. Better understanding of their urban watersheds will lead to better decision-making, improved restoration and protection efforts. Questions about applying for the grant must be received by May 6, 2010 and proposals must be received by EPA by May 19, 2010. The selection of the successful applicant will be announced this summer. Eligible applicants are states, local governments, public and private nonprofit institutions/organizations, federally recognized Indian tribal governments, U.S. territories or possessions, and interstate agencies. WASHINGTON - The U.S. Environmental Protection Agency (EPA) announced today that it has selected $78.9 million in brownfields grants to communities in 40 states, four tribes, and one U.S. Territory. This funding will be used for the assessment, cleanup and redevelopment of brownfields properties, including abandoned gas stations, old textile mills, closed smelters, and other abandoned industrial and commercial properties. WASHINGTON – The U.S. Environmental Protection Agency (EPA) has published the first edition of its Open Government Plan. The plan discusses publishing EPA information online, improving the quality of the information, and creating a culture of open government. This is in response to President Obama's Open Government Directive, which outlines a plan for breaking down the barriers between the federal government and the public. Today, federal departments and agencies are putting forward concrete plans for making operations and data more transparent, and expanding opportunities for citizen participation, collaboration, and oversight. These steps will strengthen our democracy and promote efficiency and effectiveness across the government. "EPA is very focused on ensuring public access and participation in our activities,” said Linda Travers, principal deputy assistant administrator for EPA's Office of Environmental Information. ”With our new plan, we're not only meeting the objectives of the directive, but we're also building on our culture of promoting openness.” EPA's flagship initiative, Community Engagement, is an over-arching theme that focuses on outreach to disadvantaged communities, expanding public awareness of the rulemaking process, and improving access to environmental information through the development of mobile applications. The agency is focused on working with communities in innovative ways, with the goal of sharing best practices and lessons learned for future efforts. WASHINGTON – U.S. Environmental Protection Agency Administrator Lisa P. Jackson, who has highlighted strengthening tribal partnerships as a top priority during her tenure, today announced an internal restructuring that brings EPA's international and tribal programs together under one umbrella organization called the Office of International & Tribal Affairs (OITA). This restructuring was initiated in response to a request from the tribes to reconsider the proper location of the American Indian Environmental Office (AIEO). “ This change ensures that we approach our relationship with the sovereign tribal nations within our own country in the same way we approach our relationship with sovereign nations beyond U.S. borders,” said Administrator Jackson, “I am confident this move will result in new and positive directions for the EPA-Tribal partnership,” In early 2009, Administrator Jackson met with the National Congress of American Indians and announced her intention to review the American Indian Environmental Office's (AIEO) placement in the EPA structure. After consultation with the National Tribal Caucus and EPA leadership in July 2009, she announced the restructuring that would move AIEO from the Office of Water to the Office of International Affairs, and rename the office to reflect the inclusion. “Tribes and tribal lands face disproportionate environmental and public health concerns” said Michelle DePass, assistant administrator for the new OITA . “It is my honor to assume leadership of the American Indian Environmental Office – and I look forward to working with tribal communities as partners in overall efforts to address these pressing issues,” The President's 2011 budget request for the Agency includes a $41.4 million increase in tribal funding across the country, of which $30 million is targeted for new multi-media tribal grants. This new grant program will be tailored to address individual tribes' most serious environmental needs through the implementation of environmental programs, and will help tribes address their environmental priorities to the fullest extent possible. In addition, a 24 percent increase of $2.9 million is proposed to support new staff positions to oversee, provide guidance, and ensure accountability for the new grant program; an additional $8.5 million is provided for General Assistance Program grants which can be put towards programs and projects ranging from assistance for enforcement and compliance activities to education and job training, a 13 percent increase over final Fiscal Year 2010 budget levels. WASHINGTON – The U.S. Environmental Protection Agency will hold a three-day symposium in Washington , D.C. on March 17-19 to look for opportunities to better assess and address environmental justice in environmental policy and regulatory decision making. EPA Administrator Lisa P. Jackson and Peggy Shepard, Executive Director for WEACT for Environmental Justice will speak at the opening session of the symposium on March 17 starting at 8:30 a.m. Leaders from across the country including researchers, academics, policy-makers, non-governmental organizations, government officials, tribal leaders, Environmental Justice activists and community experts, among others will participate in this discussion. Administrator Jackson has made promoting environmental justice and expanding the conversation of environmentalism one of the seven key priorities of her tenure at EPA. The principles of environmental justice uphold the idea that all communities – particularly minority and underserved 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. Excerpts of Legislative Hearing on EPA's 2011 Budget Proposal
Senate Committee on Environment and Public Works
Cleaning Up Our Communities

(4) Among our highest priorities in this budget are investments in new and innovative strategies for cleaning up communities, especially to protect sensitive populations, such as children, the elderly, and individuals with chronic diseases. We will continue to focus on making safer, healthier communities. To clean up our communities, we're proposing investments that will get dangerous pollution out, and put good jobs back in.

This budget proposes $215 million for Brownfields, an increase of $42 million to support planning, cleanup, job training and redevelopment of Brownfields properties, especially in underserved and disadvantaged communities. EPA encourages community development by providing funds to support community involvement and is adding area wide planning efforts to enhance the positive impacts associated with the assessment and cleanup of Brownfields sites. Through area wide planning, particularly by focusing on lower income communities suffering from economic disinvestment, Brownfield properties can be redeveloped to help meet the needs for jobs, housing, and infrastructure investments that would help rebuild and revitalize these communities, as well as identify opportunities to leverage additional public and private investment. We'll also provide funding for assessment and cleanup of underground storage tanks and other petroleum contamination on Brownfields sites.

In addition, we're proposing $1.3 billion for Superfund cleanup efforts across the country. We will continue to respond to emergencies, clean up the nation's most contaminated hazardous waste sites, and maximize the participation of liable and viable parties in performing and paying for cleanups. EPA will initiate a multiyear effort to integrate and leverage our land cleanup authorities to address a greater number of contaminated sites, accelerate cleanups, and put sites back into productive use while protecting human health and the environment. The new Integrated Cleanup Initiative represents EPA's commitment to bring more accountability, transparency and progress to contaminated site cleanups.

This budget also requests $27 million for a Healthy Communities Initiative which covers clean, green, healthy schools; community water priorities; sustainability and the air toxics monitoring in at risk communities I mentioned earlier. Six million dollars is requested for the Clean, Green, and Healthy Schools Initiative to support states and communities in promoting healthier school environments, to broaden the implementation of EPA's existing school environmental health programs including asthma, indoor air quality, chemical clean out, green practices, enhanced use of Integrated Pest Management, and safe handling of PCB-containing caulk. The Agency will work in partnership with the Department of Education and the Department of Health and Human Services to accomplish this initiative.

The Healthy Communities Initiative also includes an increase of $5 million for and Smart Growth work, including the Interagency Partnership for Sustainable Communities with the Departments of Transportation and Housing and Urban Development. The Smart Growth program works with federal partners and stakeholders to minimize the environmental impacts of development.

These modest investments will make real, measurable, improvements in a small number of pilot communities. In addition, the strategies that will be developed could be used in communities across the nation.
(6) Expanding the Conversation on Environmentalism and Working for Environmental Justice

We have begun a new era of outreach and protection for communities historically underrepresented in environmental decision making.  We are building strong working relationships with tribes, communities of color, economically distressed cities and towns, young people and others, but this is just a start.  We must include environmental justice principles in all of our decisions.  This is an area that calls for innovation and bold thinking, and I am challenging all of our employees to bring vision and creativity to our programs.  The protection of vulnerable subpopulations is a top priority, especially with regard to children.  Our revitalized Children's Health Office is bringing a new energy to safeguarding children through all of our enforcement efforts.  We will ensure that children's health protection continues to guide our path forward. The increased Brownfields investments I mentioned will target underserved and economically disadvantaged neighborhoods – places where environmental cleanups and new jobs are needed.

We're also proposing $9 million for Community Water Priorities in the Healthy Communities Initiative; funds that will help underserved communities restore urban waterways and address water quality challenges.

Furthermore, the FY 2011 President's Budget includes approximately $615 million for EPA's enforcement and compliance assurance program. This request reflects the Administration's strong commitment to vigorous enforcement of our nation's environmental laws and ensures that EPA will have the resources necessary to maintain a robust and effective criminal and civil enforcement program and pursue violations that threaten vulnerable communities.

(7) Building Strong State and Tribal Partnerships

Another hallmark of this budget is strengthening our state and tribal partnerships. The budget requests $1.3 billion in categorical grants for state and tribal efforts. State and local governments are working diligently to implement new and expanded requirements under the Clean Air Act and Clean Water Act. New and expanded requirements include implementation of updated National Ambient Air Quality Standards (NAAQS), for the first time addressing Greenhouse Gas (GHG) emissions, and addressing growing water quality issues, such as nutrient pollution. This increase includes the $25 million for greenhouse gas permitting activities already mentioned, as well as increases of $45 million for core work under air quality management grants and $15 million for air monitors, all of which I mentioned previously.

We are also requesting $274 million, a $45 million increase over 2010, to help states enhance their water quality programs. New funding will strengthen the base state, interstate and tribal programs, address new regulatory requirements, and support expanded water monitoring and enforcement efforts.

The request also includes increased support for our Tribal partners. In order to help tribes move beyond capacity building to implementation of their environmental programs, $30 million is budgeted for a new competitive Tribal Multimedia Implementation grant program. These grants are tailored to address an individual tribe's most serious environmental needs through the implementation of Federal environmental programs, and will build upon the environmental capacity developed under the Tribal General Assistance Program (GAP). To further enhance tribal capacity, this budget also includes an additional $9 million for GAP grants for a total of $71 million. GAP grants develop capacity to operate an environmental program, and support a basic environmental office or circuit rider that can alert the tribe and EPA to serious conditions that pose immediate public health and ecological threats.

These are the highlights of a budget that reduces costs while strengthening American communities and boosting the green economy. Responsible, targeted investments will protect our health and the environment, advance creative programs and innovative solutions, and help build a new foundation for our prosperity. Thank you again for inviting me to testify today and I look forward to answering your questions.
February 5, 2010 EPA Announces New Support for Sustainable Communities WASHINGTON – The U.S. Environmental Protection Agency today announced three steps to support communities' efforts to provide their citizens' with economic opportunity while reducing impacts on the environment. The actions will encourage state and local government to make their communities more sustainable by strategically aligning their environmental, transportation and housing investments. Top Obama Administration Officials to Promote Sustainable Communities, Environmental Justice at Smart Growth Conference

WASHINGTON – U.S. Housing and Urban Development (HUD) Secretary Shaun Donovan and Transportation Secretary Ray LaHood will visit Seattle on Thursday, February 4, to address the 9th Annual New Partners for Smart Growth Conference. They will be joined by Environmental Protection Agency Assistant Administrator Mathy Stanislaus.

Speaking before an audience of more than 1,500 key planners, public health professionals, developers, government staff and elected officials Secretaries Donovan and LaHood and Assistant Administrator Stanislaus will discuss the ways their agencies are working together through the Obama Administration's Partnership for Sustainable Communities to improve access to affordable housing, provide better transportation options, and protect public health and the environment.

“EPA, HUD and DOT are working together to rebuild our foundations for prosperity, a process that starts with rethinking the ways our communities grow,” said EPA Administrator Lisa P. Jackson. “The interagency Partnership for Sustainable Communities is working to give our communities what they need to grow and thrive with economic resilience and environmental sustainability.”

“I am proud to announce HUD's brand new Office of Sustainable Housing and Communities today,” said Donovan. “Working with our partners at DOT and EPA, this new office will help us streamline our efforts to create stronger, more sustainable communities by connecting housing to jobs, fostering local innovation and building a clean energy economy.”

“Our Partnership really is a new way of doing business in Washington , to help our nation meet 21st century challenges,” said LaHood. “Working together, we're creating jobs to revitalize our economy, while helping state and local transportation agencies to build the capacity they need to promote livable, walkable, sustainable communities.”

The President proposed $527 million in his budget for an ambitious new livability initiative at the U.S. Department of Transportation. Its Office of Livable Communities will be a focal point for initiatives such
as expanding transit in low-income neighborhoods. It will fund a grant program to help state and local transportation agencies provide more transportation choices that spur economic development.

The New Partners for Smart Growth Conference, taking place Feb. 4-6, is the premier national smart growth conference, bringing together experts from a wide range of disciplines to discuss transportation, housing and urban development, public health, equitable development, environmental protection, and other topics. The partnership agencies are working together more closely than ever before to meet the president's challenge to coordinate federal policies, programs, and resources to help urban, suburban, and rural areas build more sustainable communities.

The New Partners for Smart Growth Conference is managed by the Local Government Commission, in partnership with EPA, DOT, and other public and private sponsors.
"Superfund is also working to mitigate damage to wildlife habitats and ecosystems, and to begin the land restoration process at six sites that received Recovery Act funds. The Iron Mountain Mine site in California is an example where EPA is addressing toxic runoff containing copper, cadmium and zinc in the Sacramento River. Project funds have been used to dredge nearly 90,000 cubic yards of sediment to date, helping to improve conditions in the Sacramento River ecosystem. This project, like many others, would have otherwise been delayed if not for Recovery Act funding. (This testimony is perjury before congress. The only reason for the dredging was to increase generating capacity from Whiskeytown reservoir. The EPA hijacked over $7 million from the Iron Mountain operating funds to subsize this work. The dredging disturbed a tremendous amount of sediment that was visible for miles downstream, creating an indisputable endangerment for fish and the drinking water supply of Redding. Residents and fishermen complained) SUPREME COURT PLURALITY DECISION (JUSTICE SCALIA) ON FEDERAL CLEAN WATER ACT JURISIDICTION The jurisdictional standard is determined by the terms of the act. In SWANCC, the Supreme Court determined that the act was clear and should be read as written to avoid the constitutional questions raised by a broad interpretation of the act. As written -- If we look at 1251(a), Congress declares that its purpose is to protect the integrity of the Nation's waters. It used that term, Nation's waters. And then in -- in 1251(a)(1), it says it will accomplish this by eliminating the discharge of pollutants into the navigable waters, showing that it knows how to distinguish between all waters and navigable waters. And then in 1251(b), Congress says we will respect and defer to the States' primary responsibility to address local water pollution and to manage local land and water use. So the way that Congress intended to address this issue was to defer to the States to regulate pollutants upstream while Congress -- or while the Federal Government regulates downstream. That's a perfectly rational approach to this national problem. Congress determined that it would defer to the States instead of exercising any further power beyond its channels authority."Regulations as the Congress shall make." This power of Congress has rarely been exercised, except to refine the procedures for obtaining Court review of lower court decisions; over the years the trend has been for Congress to allow the Court maximum discretion in deciding whether to accept or reject a case. Of course, the very concept of Congress "allowing" the Court such discretion only reinforces that phrase in Section 2: ". . . supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." The Court is still beholden to Congress as to what cases it may hear, and under what set of regulations that elected body of representatives drafts and approves. The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power . It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body . The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
The Truth About Land Use in the United States
By George Wuerthner
Misunderstanding abounds about land use in the United States. By far the greatest impact on the American landscape comes not from urbanization but rather from agriculture. According to the U.S. Department of Agriculture, farming and ranching are responsible for 68 percent of all species endangerment in the United States. Agriculture is the largest consumer of water, particularly in the West. Most water developments would not exist were it not for the demand created by irrigated agriculture. If ultimate causes and not proximate causes for species extinction are considered, agricultural impacts would even be higher. Yet scant attention is paid by academicians, environmentalists, recreationists and the general public to agriculture's role in habitat fragmentation, species endangerment and declining water quality. The USDA report concludes that urbanization and rural residences (subdivisions) "do not threaten the U.S. cropland base or the level of agricultural production." This does not mean sprawl doesn't have impacts where it occurs. But the notion that sprawl is the greatest threat to biodiversity is absolutely false. When critics suggest that we don't have the money to buy land for wildlands restoration, they are forgetting agricultural subsidies, which amount to hundreds of billions of dollars. For what we spend to prop up marginal agricultural producers, we could easily buy most of the private farm and ranch land in the country This would be a far more effective way to contain sprawl, restore wildlands, bring back endangered species, clean up water, slow the spread of exotic species and reduce soil erosion. George Wuerthner is a Western Watersheds Project advisory board member who lives in Eugene, Oregon. "HEAD FOR THE HILLS" - webmaster The Community Follow-Up on Executive Order 12898

favente Deo, & auspice Christo, Contrariensium

In the memory of virtue when it is present, people imitate it, and they long for it when it has gone;
for their fruit will be useless, not ripe enough to eat, and good for nothing.

..a blameless life is ripe old age.

They will come with dread when their sins are reckoned up, and their lawless deeds will convict them to their face.

The salvation of the righteous, one another in repentance, and in anguish of spirit they will groan, and say,
‘These are persons whom we once held in derision and made a byword of reproach—fools that we were!
We thought that their lives were madness and that their end was without honour.

So it was we who strayed from the way of truth,

‘All those things have vanished like a shadow, and like a rumour that passes by; like a ship that sails through the billowy water, and when it has passed no trace can be found, no track of its keel in the waves; or as, when a bird flies through the air,
no evidence of its passage is found; the light air, lashed by the beat of its pinions and pierced by the force of its rushing flight,
is traversed by the movement of its wings, and afterwards no sign of its coming is found there; or as, when an arrow is shot at a target, the air, thus divided, comes together at once, so that no one knows its pathway.
So we also, as soon as we were born, ceased to be, and we had no sign of virtue to show, but were consumed in our wickedness.'
Because the hope of the ungodly is like thistledown carried by the wind, and like a light frost driven away by a storm;
it is dispersed like smoke before the wind, and it passes like the remembrance of a guest who stays but a day.

Therefore they will receive impartial justice as an invincible shield,
and sharpen stern wrath.

Listen therefore, and understand;
learn, O judges of the ends of the earth.
2 Give ear, you that rule over multitudes,
and boast of many nations.
3 For your dominion was given you from the Lord,
and your sovereignty from the Most High;
he will search out your works and inquire into your plans.
4 Because as servants of his kingdom you did not rule rightly,
or keep the law, or walk according to the purpose of God,
5 he will come upon you terribly and swiftly,
because severe judgement falls on those in high places.
6 For the lowliest may be pardoned in mercy,
but the mighty will be mightily tested.
7 For the Lord of all will not stand in awe of anyone,
or show deference to greatness;
because he himself made both small and great,
and he takes thought for all alike.
8 But a strict inquiry is in store for the mighty.
9 To you then, O monarchs, my words are directed,
so that you may learn wisdom and not transgress.
10 For they will be made holy who observe holy things in holiness,
and those who have been taught them will find a defence.
11 Therefore set your desire on my words;
long for them, and you will be instructed.

12 Wisdom is radiant and unfading,
and she is easily discerned by those who love her,
and is found by those who seek her.
13 She hastens to make herself known to those who desire her.
14 One who rises early to seek her will have no difficulty,
for she will be found sitting at the gate.
15 To fix one's thought on her is perfect understanding,
and one who is vigilant on her account will soon be free from care,
16 because she goes about seeking those worthy of her,
and she graciously appears to them in their paths,
and meets them in every thought.

17 The beginning of wisdom is the most sincere desire for instruction,
and concern for instruction is love of her,
18 and love of her is the keeping of her laws,
and giving heed to her laws is assurance of immortality,
19 and immortality brings one near to God;
20 so the desire for wisdom leads to a kingdom.

21 Therefore if you delight in thrones and sceptres, O monarchs over the peoples,
honour wisdom, so that you may reign for ever.
22 I will tell you what wisdom is and how she came to be,
and I will hide no secrets from you,
but I will trace her course from the beginning of creation,
and make knowledge of her clear,
and I will not pass by the truth;
23 nor will I travel in the company of sickly envy,
for envy does not associate with wisdom.
24 The multitude of the wise is the salvation of the world,
and a sensible king is the stability of any people.
25 Therefore be instructed by my words, and you will profit.

7 I also am mortal, like everyone else,
a descendant of the first-formed child of earth;
and in the womb of a mother I was moulded into flesh,
2 within the period of ten months, compacted with blood,
from the seed of a man and the pleasure of marriage.
3 And when I was born, I began to breathe the common air,
and fell upon the kindred earth;
my first sound was a cry, as is true of all.
4 I was nursed with care in swaddling cloths.
5 For no king has had a different beginning of existence;
6 there is for all one entrance into life, and one way out.

7 Therefore I prayed, and understanding was given me;
I called on God, and the spirit of wisdom came to me.
8 I preferred her to sceptres and thrones,
and I accounted wealth as nothing in comparison with her.
9 Neither did I liken to her any priceless gem,
because all gold is but a little sand in her sight,
and silver will be accounted as clay before her.
10 I loved her more than health and beauty,
and I chose to have her rather than light,
because her radiance never ceases.
11 All good things came to me along with her,
and in her hands uncounted wealth.
12 I rejoiced in them all, because wisdom leads them;
but I did not know that she was their mother.
13 I learned without guile and I impart without grudging;
I do not hide her wealth,
14 for it is an unfailing treasure for mortals;
those who get it obtain friendship with God,
commended for the gifts that come from instruction.

15 May God grant me to speak with judgement,
and to have thoughts worthy of what I have received;
for he is the guide even of wisdom
and the corrector of the wise.
16 For both we and our words are in his hand,
as are all understanding and skill in crafts.
17 For it is he who gave me unerring knowledge of what exists,
to know the structure of the world and the activity of the elements;
18 the beginning and end and middle of times,
the alternations of the solstices and the changes of the seasons,
19 the cycles of the year and the constellations of the stars,
20 the natures of animals and the tempers of wild animals,
the powers of spirits * and the thoughts of human beings,
the varieties of plants and the virtues of roots;
21 I learned both what is secret and what is manifest,
22 for wisdom, the fashioner of all things, taught me.

The Nature of Wisdom

There is in her a spirit that is intelligent, holy,
unique, manifold, subtle,
mobile, clear, unpolluted,
distinct, invulnerable, loving the good, keen,

23 beneficent, humane,
steadfast, sure, free from anxiety,
all-powerful, overseeing all,
and penetrating through all spirits
that are intelligent, pure, and altogether subtle.
24 For wisdom is more mobile than any motion;
because of her pureness she pervades and penetrates all things.
25 For she is a breath of the power of God,
and a pure emanation of the glory of the Almighty;
therefore nothing defiled gains entrance into her.
26 For she is a reflection of eternal light,
a spotless mirror of the working of God,
and an image of his goodness.
27 Although she is but one, she can do all things,
and while remaining in herself, she renews all things;
in every generation she passes into holy souls
and makes them friends of God, and prophets;
28 for God loves nothing so much as the person who lives with wisdom.
29 She is more beautiful than the sun,
and excels every constellation of the stars.
Compared with the light she is found to be superior,
30 for it is succeeded by the night,
but against wisdom evil does not prevail.

Bnei Ravrevaya

The raiser shall cease evils and wickedness, for thy commit falsehood, stranger.

When you shall go, that the judgment might be all your shields gone.

I will spread my net upon you, I will bring you down as the fowls of Heaven; I will chastise you, as your congregation has heard.

For I know your manifold transgressions afflicting the just and poor in the gate from his right.

Love the good and establish your judgment in the gate for perverting the balance of deceit.

Ye are cursed with a curse, for ye have robbed me, even this whole nation.

And I will rebuke the devourer for your sake.

We shall return, and discern between the righteous and the wicked, between him that serves God, and he that serves not.

Deo, Patriae, Tibi. Capitales justiciarii proprias regis causas terminant, ideo consideratum est per Curiam. Ex calce liberatus!

Mr. T.W. Arman; radix & vertex imperii; absolute Patent Title owner, Iron Mountain Mine & Agricultural College grantee

©2010 Iron Mountain Mines, Inc - Essential Solutions Inc. AMD&CSI, The HU/MOUNTAIN joint venture


TWO MINERS & 360, 2744, 4400, 8000, 52,000, 88,000, & 103 MILLION ACRES OF LAND v. UNITED STATES - Locke & Lode