[Federal Register: November 30, 2010 (Volume 75, Number 229)] [Notices] [Page 74045-74046] From the Federal Register Online via GPO Access [] [DOCID:fr30no10-78] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-SFUND-2010-0894; FRL-9233-7] Guidance on Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of availability. ----------------------------------------------------------------------- SUMMARY: EPA is interested in soliciting individual stakeholder input regarding the issues addressed in the EPA interim final guidance, titled Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites. The Agency will consider the information gathered from this notice and other sources before finalizing this guidance. DATES: Comments must be received on or before January 14, 2011, 45 days after publication in the Federal Register. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- SFUND-2010-0894 by one of the following methods: Follow the on-line instructions for submitting comments. E-mail: Fax: (202) 566-9744 Mail: U.S. Environmental Protection Agency; EPA Docket Center, Superfund Docket, Mail Code 28221T; 1200 Pennsylvania Avenue, NW., Washington, DC 20460 Hand Delivery: EPA Docket Center--Public Reading Room; EPA West Building, Room 3334; 1301 Constitution Avenue, NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND- 2010-0894. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at , including any [[Page 74046]] personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through or . The http:// website is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at . Docket: All documents in the docket are listed in the http:// index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in or in hard copy at the EPA Docket Center--Public Reading Room, EPA/DC, EPA West, Room 3334; 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Superfund docket is (202) 566-0276. FOR FURTHER INFORMATION CONTACT: Chip Love, phone: (703) 603-0695, e- mail: , Construction and Post Construction Management Branch, Assessment and Remediation Division, Office of Superfund Remediation and Technology Innovation (mail code 5204P), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. SUPPLEMENTARY INFORMATION: EPA's interim final guidance on Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites addresses some of the common issues that may be encountered during the cleanup process and provides recommendations on how ICs can complement other response actions (such as engineered response action components) at a site. This interim final guidance also provides an overview of EPA's policy regarding the roles and responsibilities of the parties involved in the various aspects of planning, implementing, maintaining, and enforcing institutional controls. The guidance is available at http:// . This guidance does not represent a regulation, and is not subject to the formal provisions of the Administrative Procedures Act. However, EPA recognizes the potential importance of this guidance to its Federal, state, local, and tribal partners, to the regulated community, and to the public, and therefore through this Federal Register notice seeks public input on the topics addressed in this interim final guidance and its implementation. This public input opportunity will be available until January 14, 2011. EPA intends to evaluate whether any changes to the interim final guidance are appropriate and expects to issue a final version of this guidance. For purposes of this Federal Register notice, EPA in particular seeks input on the following: Are there ways EPA can better evaluate the capacity, willingness, and financial assurance of state, tribal and local governments to assist with ICs and engineering controls when such controls are necessary at a site? What potential barriers exist with respect to state, local, and tribal government involvement with ICs and what tools or possible solutions could EPA promote to improve the awareness of and involvement in IC activities? How can site managers better engage and involve affected community stakeholders and local land use decision-makers concerning ICs that may be needed and relied upon to complement other response actions (i.e., engineered response action components) at cleanup sites? How can information concerning ICs and the underlying land and/or resource use restrictions be made more available to local land use decision-makers? How can EPA better identify and account for the full life cycle costs of ICs? EPA intends to accept input on the interim final guidance until January 14, 2011. EPA also intends to fully consider all public input in evaluating whether changes to the interim final guidance are appropriate, and to issue a final version of this guidance. Dated: November 23, 2010. Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response. [FR Doc. 2010-30111 Filed 11-29-10; 8:45 am] BILLING CODE 6560-50-P

"We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution."

"I cannot believe that the historic powers of our courts . . . or the rights of citizens, confirmed as these have been for so long by an unbroken line of decisions, have been or can be overthrown and subverted, merely by the fact that the question of the court's power to issue the order violated may be doubtful and not merely frivolous. . . ." (67 S.Ct. 726, 91 L.Ed. 945.) (See also 60 Harv. L. Rev. 811, noting the weak background of authority supporting the doctrine and discussing the policies for and against it; 72 Harv. L. Rev. 1569; 76 Harv. L. Rev. 106.)

What is Environmental Justice?

Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

Polluters Get Stimulus Funds, Escape Environmental Oversight

By Jessica Roberts on November 30, 2010

Billions of dollars in stimulus funds from the Obama administration, designed to promote clean energy and create jobs, have been doled out to some of the nation's biggest polluters while exempting them from basic environmental oversight, according to an investigation by the Center for Public Integrity .

Regulatory Flexibility Act / Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA)

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Small Business Panel on Financial Responsibility Requirements for Hard Rock Mining

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Nationally acclaimed scientist Wilma Subra agrees that the process lacks valid community participation. “Complete, adequate, timely and on-going community participation in the Superfund Remedial process is desperately needed.” According to Dr. Subra, “The current process exposes the community to unacceptable risks.”

“We need full and equitable community oversight and involvement in the remediation process to ensure our own health and protection.” says Marie Harrison of Greenaction.

Chairman, Senate Committee on Environment and Public Works
December 6, 2010

McCollum sues the feds over new water rules

Flanked by the incoming attorney general and incoming agriculture commission, Attorney General Bill McCollum announced Tuesday that the state is suing the federal government for imposing an "unfair" and "capricious" water quality rule.

The lawsuit, filed in federal district court in Pensacola, alleges that the rule by the federal Environmental Protection Agency is "not based on scientifically sound methodology" and were adopted "just to settle a lawsuit" by environmental groups and citizens.

Attorney General-elect Pam Bondi and the newly-elected Agriculture Commissioner Adam Putnam said they will continue to lawsuit because they view the newly announced rules a violation of Florida's rights.

The federal government announced in November new water pollution standards that set specific numeric caps on pollutant levels for Florida lakes and rivers. Earthjustice attorney David Guest , who filed the original lawsuit against the federal government for failing to enforce the federal Clean Water Act, said the challenged by the Republican attorney general on behalf of landowners and agricultural interests was expected.

"The lawsuit is a waste of taxpayer dollars,'' Guest said in a statement. "Instead of protecting public health, the state is usuing our tax dollars to side with polluters."

He said that the standards are designed to keep "poorly treated sewage, fertilizer and animal waste out of public waters."

But Putnam, and current Agriculture Commissioner Charles Bronson , said that the new rules will be too expensive.

"It's going to cost the taxpayerse of this state billions and billions,'' Bronson said. He said the rules appeared to single out Florida for toughter water quality standards than other state and were based on inaccurate science.

The suit was filed in the same court that McCollum hand selected for another lawsuit against the federal government, the state's challenge to the federal health care reform plan.

Read more:

Regulators raid AstraZeneca and Nycomed | Find Prescription Drugs
By admin
Regulators raid AstraZeneca and Nycomed European antitrust regulators have launched a fresh series of raids this week on pharmaceutical companies, including.

Florida sues EPA over new water pollution controls

MIAMI (Reuters) - Florida filed a lawsuit against the Environmental Protection Agency on Tuesday to block new water pollution controls in the recession-hit state.

All Appropriate Inquiries

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General Information
  • Summary of EPA Listening Session on All Appropriate Inquiries Rule (PDF) (31 pp, 1.1M)

    On March 17, 2010, the Environmental Protection Agency held a listening session on EPA's All Appropriate Inquiries Final Rule, as promulgated on November 1, 2005. The purpose of the March 17 listening session was for EPA to listen to the views of stakeholders and the general public on the current standards and practices for all appropriate inquiries. A summary of the discussions held during the listening session that includes copies of written comments that EPA received in response to the listening session is attached here.

  • Fact Sheet on EPA Brownfields Grants, CERCLA Liability, and All Appropriate Inquiries (PDF) (3 pp, 191K)
    Publication Number: EPA 560-F-09-026
    April 2009

  • EPA Recognizes Two ASTM Standards as Compliant with All Appropriate Inquiries

    EPA now recognizes both ASTM International's E1527-05 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" and ASTM E2247-08 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland and Rural Property" as compliant with the All Appropriate Inquiries Regulation. Either of these ASTM International Phase I standards may be used to satisfy the statutory requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

  • EPA Published Final Rule on All Appropriate Inquiries

    The Environmental Protection Agency published a final rule setting federal standards for the conduct of all appropriate inquiries. The rule was published in the Federal Register on November 1, 2005. The final rule and preamble is available below.

    The final rule establishes specific regulatory requirements for conducting all appropriate inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. The final rule went into effect on November 1, 2006, one year following the date of publication.

    As of November 1, 2006, parties must comply with the requirements of the All Appropriate Inquiries Final Rule, or follow the standards set forth in the ASTM E1527-05 Phase I Environmental Site Assessment Process, to satisfy the statutory requirements for conducting all appropriate inquiries. All appropriate inquiries must be conducted in compliance with either of these standards to obtain protection from potential liability under CERCLA as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser.

  • Response to Public Comments

    The preamble to the final rule setting federal standards for the conduct of all appropriate inquiries includes a summary of the public comments received in response to the proposed rule, which was published on August 26, 2004 (see below for information on the proposed rule). The preamble to the final rule also includes a summary of EPA's responses to many of the issues raised in public comments. Specific responses to individual comments are provided in the document "Response to Comment Document," October 2005.

  • Comparison of Final Rule to Interim Standard (ASTM E1527-00)

    The new final regulation is not significantly different from the interim standard established by Congress in the Brownfields Amendments to CERCLA. The interim standard was the ASTM E1527-00 Phase I Environmental Site Assessment Process. The final rule differs in such areas as the definition of environmental professional, certain interviewing requirements, and the documentation of data gaps that may affect an environmental professional's ability to render an opinion regarding the environmental conditions of a property. A comparison of the requirements established in the final rule and the requirements of the interim standard are provided in a document titled "Comparison of the Final All Appropriate Inquiries Standard and the ASTM E1527-00 Environmental Site Assessment Standard."

  • Background

    The Small Business Liability Relief and Revitalization Act (the Brownfields Amendments) clarifies CERCLA liability provisions for certain landowners and potential property owners. The Brownfields Amendments provide liability protections for certain property owners, if the property owners comply with specific provisions outlined in the statute, including conducting all appropriate inquiries into present and past uses of the property and the potential presence of environmental contamination on the property. The Brownfields Amendments amend Section 101(35)(B) of CERCLA and require EPA to promulgate regulations that establish federal standards and practices for conducting all appropriate inquiries. The all appropriate inquiries standards and practices are relevant to:

    • the innocent landowner defense to CERCLA liability (§101 (35));
    • the contiguous property exemption to CERCLA liability (§107 (q));
    • the bona fide prospective purchaser exemption to CERCLA liability (§107 (r)(1) and (§101 (40)); and
    • the brownfields site characterization and assessment grant programs (§104 (k)(2)).

    All Appropriate Inquiries Statutory Language from the Small Business Liability Relief and Revitalization Act

    • January 2002

    All Appropriate Inquiries Criteria Analysis/Comparison to State, Federal, and Commercial Assessment Approaches (PDF) (168 pgs, 935K)

    • Publication Number: EPA-500-F-03-229
      June 10, 2003


EPA Seeks Small Business Input on Financial Responsibility Requirements for Hard Rock Mining

Release date: 12/06/2010

Contact Information: Richard Yost,, 202-564-7827, 202-564-4355

WASHINGTON -- The U.S. Environmental Protection Agency (EPA) invites small businesses to participate in a Small Business Advocacy Review (SBAR) panel on a proposed rule that would establish financial responsibility requirements for classes of facilities within the hard rock mining industry. The requirements will help ensure that owners and operators of the facilities, not taxpayers, foot the bill for environmental cleanup.

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

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

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

Small Business Panel on Financial Responsibility Requirements for Hard Rock Mining

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

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

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

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

What is a Small Business Advocacy Panel?

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

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

Information about what constitutes a " small business " is available at the Small Business Administration's website . A " small government " is defined as a jurisdiction serving a population of 50,000 residents or fewer. A “ small organization ” is defined as any “not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” For purpose of this proposed rule, small businesses pertaining to mining except for oil and gas include any operator who employs fewer than 500 employees. This proposed rule may also affect primary metal manufacturers or processors with North American Industry Classification System (NAICS) starting with 331. The criteria for small businesses for metal manufacturers or processors range from 500 to 1,000 employees depending on the six digit NAICS code. To learn more, review EPA's fact sheet, What Potential Small Entities Should Know About the Small Business Advocacy Review Panel Process (2009) (PDF) (4 pp, 19 K) .

How Can I Get Involved?

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

You may nominate yourself to serve as a SER by following the directions in the next section. Depending on the volume of responses, EPA may not be able to invite all qualified candidates to participate as SERs. Generally, SERs will be asked to review background information, listen to informational briefings, and provide oral and written advice and recommendations to the Panel. One face-to-face meeting is typically held with the SERs in Washington, DC; a toll-free conference line is provided for this meeting.

Additional information about the Small Business Regulatory Enforcement Fairness Act is available in the following fact sheet: What Small Entities Should Know About EPA and the Small Business Regulatory Enforcement Fairness Act (2009) (PDF) (4 pp, 20K) .

Who Should I Contact?

SERs must:

  • be small and expect to be subject to requirements of the proposed rule; or
  • represent potentially regulated small entities exclusively or at least primarily represent such entities (e.g., a trade association that exclusively or primarily represents small entities). Nominees such as these will be evaluated on a case by case basis.

Individuals who are interested in potentially serving as a SER should send a message to or call Sarah Dale ((202) 564-6998) by no later than 12/20/2010. In the message, please provide:

  • your name;
  • the name of your company, governmental jurisdiction, or not-for-profit organization;
  • the size of your company, governmental jurisdiction, or not-for-profit organization;
  • your address; and
  • your contact information.
  • USE THIS AS THE SUBJECT LINE OF YOUR EMAIL: SER Self-Nomination for Panel on Financial Responsibility Requirements for Hard Rock Mining

Please remember: Depending on the volume of responses, EPA may not be able to invite all qualified candidates to participate as SERs.

Environmental Interests

Information System Information System ID Environmental Interest Type Data Source Last Updated Date Supplemental Environmental Interests:

ICIS -09-1987-0013
ICIS -09-1990-0018
ICIS -09-1997-0008
ICIS -09-1997-0157

Additional EPA Reports:  

MyEnvironment Cleanups in My Community Site Demographics Watershed Report

Standard Industrial Classification Codes (SIC)

Data Source SIC Code Description Primary



Facility Codes and Flags

EPA Region: 09
Duns Number:
Congressional District Number: 02
Legislative District Number:
HUC Code/Watershed: 18020112 / SACRAMENTO-UPPER CLEAR
US Mexico Border Indicator: NO
Federal Facility: NO
Tribal Land: NO

Alternative Names

Alternative Name Source of Data


No Organizations returned.

National Industry Classification System Codes (NAICS)

Data Source NAICS Code Description Primary

Facility Mailing Addresses

Affiliation Type Delivery Point City Name State Postal Code Information System


Affiliation Type Full Name Office Phone Information System Mailing Address

Query executed on: DEC-08-2010

Additional information for CERCLIS or TRI sites:

This information resource is not maintained, managed, or owned by the Environmental Protection Agency (EPA) or the Envirofacts Support Team. Neither the EPA nor the Envirofacts Support Team is responsible for their content or site operation. The Envirofacts Warehouse provides this reference only as a convenience to our Internet users.

  • National Library of Medicine (NLM) TOXMAP

Listed Water Information

CYCLE : 2006

Click here to see metadata for this report.
Cycle: 2006     State: CA     List ID: CAL5244001220020730101915
State Basin Name: CENTRAL VALLEY
Listed Water Map Link: Map Impaired Water


Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines, Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. Iron Mountain Mines, Inc., et al., (EDCal No. S-91-0768 DFL/JFM)

Other Impaired Water 303(d) List Information
The most current report available for this water body is 2006.
Data are also available for these years: 2004 2002

State List IDs:

Cycle State List ID
2002 CAL5244001220020730101915 
2004 CAL5244001220020730101915 
2006 CAL5244001220020730101915 

State Impairments:

State Impairment Parent Impairment Priority Rank Targeted Flag Anticipated TMDL Submittal

Total Maximum Daily Load (TMDL) Information:

There were no TMDLs reported to EPA by the state.

Watershed Information:

Watershed Name Watershed States

Section 303(d) List Fact Sheet for Watershed
Sacramento-Upper Clear

Number of Waters listed by State for Watershed

State Name Waters on List Effective Listing Cycle
CALIFORNIA color.gif3 2006
Total Number of Waters Listed: 3

Waters Listed By Waterbody

Waterbody Name Waterbody Type Waters on List
NOTE: Click on the underlined "Waters on List" value to see a listing of those waters.
Total Number of Listed Waters: 3

Causes of Impairment

Impairment Name Causes of Impairment Reported Percent of Reported
NOTE: Click on the underlined "Causes of Impairment Reported" value to see a listing of those waters with the impairment.
COPPER color.gif3 30.00
ZINC color.gif3 30.00
ACID MINE DRAINAGE color.gif2 20.00
CADMIUM color.gif2 20.00
Total Number of Causes of Impairment Reported: 10

Approved TMDLs by Pollutants since October 1, 1995

There were no Approved TMDLs reported to EPA by the state for this watershed. EPA is in the process of collecting TMDL information from the states. Because these efforts are on-going, there may be additional approved TMDLs that were not found here.

Approved TMDLS by EPA Fiscal Year (October 1 through September 30) since October 1, 1995

There were no Approved TMDLs reported to EPA by the state since October 1995.

TMDL Document Search

Full Text Search of TMDL Documents is available here .

Water | Wetlands, Oceans, Watersheds | Watershed Protection



1. See memorandum to Record, from Stephen Hoffman, USEPA and Shahid Mahmud, USEPA. Re : Mining Classes Not Included in Identified Hard Rock Mining Classes of Facilities. June 2009.

David Weaver
Headquarters, Washington                                   
Dec. 6, 2010 RELEASE : 10-326 DOE and NASA Reach Cleanup Agreements with the State of California for the Santa Susana Field Laboratory WASHINGTON -- The Department of Energy and NASA signed Administrative Orders on Consent (AOC) with the California Environmental Protection Agency today that define the process for the characterization and cleanup end-state of portions of the Santa Susana Field Laboratory (SSFL).

The agreements come after more than 10 months of negotiations and extensive public comment on the conceptual framework for cleanup outlined in the Agreement in Principle and additional public comment on the legally enforceable process and procedures in the draft Administrative Order on Consent.

"By working closely with the State of California, we have reached an historic agreement that will allow the Department to carry out its important cleanup work and protect the health of both the surrounding community and the environment," Secretary of Energy Steven Chu said.

"NASA is pleased to join with the Department of Energy and the State of California in signing these agreements and will do its part to assist with the Santa Susanna cleanup," NASA Administrator Charles Bolden said. "We are committed to working with these partners to address the environmental concerns at this former test site."

U.S. Sen. Barbara Boxer, D-Calif., chairman of the Senate Committee on Environment and Public Works, said: "The landmark agreements announced today between NASA, the Department of Energy and the State of California are an important step toward real protection for families who live near the Santa Susana Field Laboratory. For many years, I have strongly supported the state's and communities' efforts to ensure that a comprehensive cleanup is conducted at Santa Susana that protects the health of the public, including children and pregnant women. I am pleased that NASA and the Department of Energy have stepped up to the plate and agreed to clean up the Santa Susana site to the levels California has determined will provide the greatest protection to nearby communities."

DOE's agreement is a commitment to clean up Area IV and the Northern Buffer Zone of the SSFL to background levels for both chemical and radiological constituents.

DOE's AOC includes several key steps needed to reach the desired end-state of a cleanup to background.
-     The U.S. Environmental Protection Agency (USEPA) will determine the radiological background for each radionuclide based upon its on-going radiological background study.
-     The California Department of Toxic Substances Control (DTSC) will determine the chemical background for each potential chemical constituent based upon its on-going chemical background study.
-     The USEPA will determine, through the ongoing radiological characterization survey, the nature and extent of any remaining radiological contamination.
-     DTSC will determine the nature and extent of any remaining chemical contamination based on the previously submitted chemical sampling results, results from co-locating samples with USEPA for chemical analysis, and any DTSC determined necessary additional sampling.
-     A major component of the framework is the involvement of USEPA to serve as technical advisor to DTSC and DOE. USEPA will perform confirmatory sampling after DOE has completed cleanup to help ensure all cleanup goals have been met. USEPA also will approve for use DOE identified areas of backfill.
In addition to providing the legal framework for the agreement, the Administrative Order on Consent also outlines a process to address the court-ordered Environmental Impact Statement.

The Administrative Order on Consent can be found at:

Ruckelshaus saw some of the presidential papers from that era, including a Clean Water Act document on which Nixon had handwritten "bullshit" in a marginal note. 

Florida Officials File Lawsuit Against EPA Over Federal Intrusion Into State's Clean Water Program

TALLAHASSEE, FL – Florida Attorney General Bill McCollum, Agriculture
Commissioner Charles Bronson, Attorney General-elect Pam Bondi and
Agriculture Commissioner-elect Adam Putnam today announced that the State
of Florida has filed a lawsuit against the federal Environmental
Protection Agency (EPA) over the agency's intrusion into Florida's
previously approved clean water program.

The lawsuit alleges that the EPA's action is inconsistent with the intent
of Congress when it based the Clean Water Act on the idea of cooperative
federalism whereby the States would be responsible for the control of
water quality with oversight by the EPA. Control of nutrient loading from
predominately non-point sources involves traditional States' rights and
responsibilities for water and land resource management which Congress
expressly intended to preserve in the Clean Water Act. It specifically
alleges that the EPA rule and the January 2009 necessity determination by
the EPA for promulgating numeric nutrient criteria for Florida's waters
were arbitrary, capricious, and an abuse of discretion, and requests the
court to enjoin the EPA Administrator from implementing the numeric
criteria for Florida in the rule.

“We all want clean water for Florida, and we all believe that
scientifically sound and responsible numeric nutrient criteria will
improve efforts to achieve this goal. Florida was in the process of
developing such criteria under an EPA-approved plan when the EPA decided
to preempt the state's plan,” said Attorney General McCollum. “The EPA
numeric nutrient rule and its proposed criteria are not based on
scientifically sound methodology, and were adopted in an arbitrary and
capricious manner just to settle a lawsuit. I appreciate the commitments
made by my successor, Attorney General-elect Pam Bondi, and the next
Commissioner of Agriculture, Adam Putnam, to continue protecting Florida's
rights, citizens and waterways through this lawsuit.”

“I have been concerned from the beginning that EPA's actions related to
numeric nutrient criteria in Florida waters were not based on factual,
verifiable science,” said Commissioner Bronson, who is a separately named
plaintiff in the lawsuit. “Florida has always been a leader in taking
steps necessary to improve water quality and I was disappointed that EPA
did not incorporate many of the state's suggestions on the proposed rule.
The final rule as written would place a severe financial burden on the
citizens of Florida while not necessarily improving the state's waters.
The action being taken today is unfortunate but necessary to ensure EPA
makes decisions affecting Floridians based on sound science. I am pleased
that Attorney General-elect Bondi and Agriculture Commissioner-elect
Putnam recognize the great importance of this issue and will continue to
protect our citizens from unnecessary and costly regulations.”

“These new rules will have a drastic financial impact on local governments
and communities who are already working to comply with Florida's existing
standards under the Clean Water Act. Our communities cannot afford these
new regulations which may not, in the long run, result in any meaningful
improvements to our water quality beyond what our state has already
implemented,” said Attorney General-elect Bondi. “As Florida's next
Attorney General, I will continue this lawsuit and will stand up on behalf
of our citizens and our taxpayers.”

“I am grateful to Attorney General McCollum and Commissioner Bronson for
their leadership, and I look forward to working with Attorney
General-Elect Bondi on this critically important issue. This regulation is
estimated to cost consumers and localities billions of dollars and, in
some cases, will require technology that may not be attainable,” said
Commissioner-elect Putnam. “While we all would have preferred to avoid
this litigation, this is but one strategy we will pursue to see that sound
science prevails. I am hopeful the end result of today's action will be
the continued protection and improvement of Florida waters in a way that
makes both scientific and economic sense. As Florida's next Commissioner
of Agriculture, I will make achieving that goal a top priority of my

Prior to the EPA's announcement that it would be implementing new rules
for Florida, the state had been diligently working through its Total
Maximum Daily Load (TMDL) Program to adopt numeric standards for impaired
bodies of water. The EPA had already approved Florida's program on the
basis that it was sufficient to meet the requirements of the Clean Water
Act, referenced in a letter dated September 28, 2007. Additionally, as
recently as January of last year, the EPA praised Florida for implementing
“some of the most progressive nutrient management strategies in the
nation.” Florida's plan had a timetable for implementation through 2011.

Despite the fact that Florida was working to implement its approved plan
and was seeing successes, the EPA reversed its determinations in 2009 and
informed the state that new federal rules and criteria would be developed
and implemented by the EPA, preempting the approved state plan. The EPA's
announcement was based on its effort to settle a lawsuit pending against
the agency. At the time of its announcement, the EPA said that “making
such a determination could give the EPA a basis to propose a settlement to
the plaintiffs or to request that the court dismiss the case.”

According to the state's lawsuit, the EPA has continued to rely on a
methodology that is not scientifically sound and not site specific for
Florida's waters. In April, the EPA's own Science Advisory Board joined
the chorus of the Florida Department of Environmental Protection, the
Florida Department of Agriculture and Consumer Services, the University of
Florida Institute of Food and Agricultural Sciences, the Florida
Legislature and others expressing serious concerns that the EPA's methods
for developing nutrient standards are scientifically flawed.

Also of significant concern to the state is the cost implication of
implementing the new criteria. Studies produced by the Florida Department
of Environmental Protection and the Florida Department of Agriculture and
Consumer Services, as well as two independent studies all show that the
impact to Florida's economy will be in the billions. The EPA's anticipated
cost is the outlier, projecting a cost closer to $200 million. Costs for
implementation are likely to be uneven across the state – high in some
places, minimal in others. Unfortunately, the impact on the areas where
the cost will be high is not offset by low costs elsewhere. These costs
will be borne by the local users or in the case of government-owned
utilities by higher tax rates.

A copy of the lawsuit, which was filed today in the federal court in
Pensacola, is available online at:$file/epacompliant.pdf

Contact: Sandi Copes
Phone: 850.245.0150

U.S. EPA’s
February 4, 2008

EPA's two-year appropriations are:
Environmental Programs and Management (EPM) Appropriation
The EPM appropriation account encompasses a broad range of abatement, prevention, and compliance activities, and personnel compensation, benefits, travel, and expenses for all programs of the Agency except Science and Technology (S&T), Hazardous Substance Superfund (HSSF), Leaking Underground Storage Tank (LUST) Trust Fund, Oil Spill Response (OSR), and the Office of the Inspector General (OIG). Abatement, prevention, and compliance activities include setting environmental standards, issuing permits, monitoring emissions and ambient conditions and providing technical and legal assistance toward enforcement, compliance, and oversight. In most cases, the states are directly responsible for actual operation of the various environmental programs. In this regard, the Agency’s activities include oversight and assistance in the facilitation of the environmental statutes. In addition to program costs, this account funds a large portion of the administrative costs associated with the operating programs of the Agency, including support for executive direction, policy oversight, resources management, general office and building services for program operations, and direct implementation of all Agency environmental programs except those previously mentioned for Headquarters, the ten EPA Regional offices, and all non-research field operations.
Science and Technology (S&T) Appropriation
EPA's Science and Technology (S&T) appropriation account funds the scientific knowledge and tools necessary to support decisions leading to improved protection of human health and the environment, and to advance the base of understanding of environmental sciences. Thus, S&T appropriation account funds most EPA research. The Agency's efforts using S&T funds are conducted through extramural contracts, grants, and cooperative agreements with universities, industries, other private commercial firms, nonprofit organizations, state and local government, and Federal agencies, as well as through intramural work performed at EPA's laboratories and various field stations and field offices.
The S&T Appropriation account funds activities such as developing and improving sampling and analytical methods and instruments for measuring pollutants; determining the effects of pollutants on human health, ecosystems, and the general environment; researching the processes that relate to pollution; evaluating technologies for preventing and controlling pollution; and developing guidelines and research tools to improve risk assessments. The S&T Account also provides operating expenses for most Agency research facilities. This includes categories such as personnel salary & benefits, laboratory supplies and materials, operation and maintenance of lab facilities, equipment, Information Technology (IT) support, human resource development, and printing. Beginning in FY 1996, this account also funds Hazardous Substances research appropriated in the Superfund Account and transferred to the S&T appropriation account. The appropriated Superfund funds are available for obligation for only two (2) years once transferred into the S&T account.
Office of Inspector General (OIG)
This appropriation provides funding for EPA audit and investigative functions and program evaluations to identify and recommend corrective actions of management, program, and administrative deficiencies which create conditions for existing or potential instances of fraud, waste, and mismanagement. The audit function provides contract audit, performance audit, and financial audit services. Contract audits provide professional judgments, findings, and recommendations to Agency contracting officials on accounting and financial matters relative to negotiation, award, administration, repricing, and settlement of contracts. Performance audits review and evaluate all facets of Agency operations. Grant audits focus on the effectiveness of individual projects, reasonableness of costs, and adequacy of management systems. The investigative function provides for the detection and investigation of improper and illegal activities involving programs, personnel, and operations.
In addition to program costs, this account funds PC&B, travel, and administrative costs associated with the OIG program.

There are historically two sources of funds for the budget authority in the OIG account: a.) General Revenues, b.) the Superfund Trust Fund. Although the SF appropriation is provided to EPA from the SF Trust Fund as a no-year appropriation, the appropriated Superfund funds are available for obligation for only two (2) years once transferred into the IG account. The Agency’s financial coding structure ensures that both OIG sources of funds are tracked separately to provide proper accounting. Budget authority that is not obligated during the fiscal year is not “drawn down” from the respective funding source.
3. No-Year Appropriations are available for obligation without fiscal year limitation. They remain available until expended, rescinded or otherwise withdrawn. In order for an appropriation to be no-year, it must be expressly stated as such in the appropriating language.
EPA's no-year appropriations are:
Hazardous Substance Response Trust Fund (Superfund)
The Superfund appropriation is provided to carry out the legislative mandates of CERCLA as amended by SARA by addressing the problems of uncontrolled hazardous waste sites and spills. The legislation mandates that EPA (1) provide emergency response to hazardous waste spills; (2) take emergency action at hazardous waste sites that pose an imminent hazard to public health or environmentally sensitive ecosystems; (3) engage in long-term planning, remedial design, and construction to clean up hazardous waste sites where no financially responsible party can be found; (4) take enforcement actions to require responsible private parties to clean up hazardous waste sites; and (5) take enforcement actions to recover costs where the fund has been used for cleanup.
In addition to program costs, this account funds PC&B, travel, and administrative costs associated with the Agency’s Superfund program.
Leaking Underground Storage Tanks Trust Fund (LUST)
The LUST Appropriation Account is provided to carry out the legislative mandates of SARA by conducting corrective action for releases from leaking underground storage tanks containing petroleum and other hazardous substances. EPA implements the LUST Program through state cooperative agreements which enable states to conduct corrective actions to protect human health and the environment. The trust fund is also used for enforcement by forcing responsible parties to finance corrective actions and by providing the states with the authority to recover costs from responsible parties for state funds expended for cleanup of abandoned tanks.
The Energy Policy Act of 2005 authorized the use of funds contained in the LUST Trust Fund for leak detection, prevention, related inspection and enforcement activities. However, Congress must also appropriate funds from the LUST Trust Fund for these purposes for EPA to use LUST appropriations to carry out the Energy Policy Act.
In addition to program costs, this account funds PC&B, travel, and administrative costs associated with the Agency’s LUST Program.
c. Buildings and Facilities (B&F) Appropriation
Funds are appropriated to EPA’s Buildings and Facilities Account each year to cover the necessary major repairs and improvements to existing installations which house the Agency. This appropriation also covers new construction projects when authorized. Minor repairs and improvements to existing appropriations act.
Oil Spill Liability Trust Fund
This Appropriation Account, authorized by the Federal Water Pollution Act (FWPA) and amended by the Oil Pollution Act (OPA) of 1990, provides funds for preventing and responding to releases of oil and other petroleum products in navigable waterways. EPA is responsible for directing all cleanup and removal activities posing a threat to public health and the environment; conducting inspections, including inducing responsible parties to undertake cleanup actions; reviewing containment plans at facilities; reviewing area contingency plans; pursuing cost recovery of fund-financed cleanups; and conducting research and oil cleanup techniques. Funds are provided through the OSLTF established by the OPA and managed by the U.S. Coast Guard.
In addition to program costs, this account funds PC&B, travel, and administrative costs associated with the Agency’s Oil Spill Program.
e. State and Tribal Assistance Grants (STAG) Appropriation
The State and Tribal Assistance Grants (STAG) appropriation includes three components: (1) Infrastructure Grants including State Revolving Funds (SRF), (2) Categorical STAG Grants, and (3) other specified grant programs (i.e., Alaska Native Villages, Diesel Retrofits, and work along the Mexican Border).
Funding for the SRFs comprise the largest part of the STAG account. These funds are used to capitalize revolving loan funds in each state which provide loans to municipalities for major wastewater and drinking water infrastructure projects. There are two types of water infrastructure SRFs: Clean Water SRF (CWSRF) and Drinking Water SRF (DWSRF).
The states loan these funds to municipalities for the infrastructure projects, who then pay back their loan by making payments back into the state SRF account. The state can then make more loans (hence the term "revolving") to other municipalities. The Water Quality Act of 1987 (WQA) reauthorized the “construction grants” program through 1990 and provided for its phase-out and replacement with a State Revolving Fund (SRF) program, to be capitalized by grants to the States.]
Categorical State and Tribal Assistance Grants (STAG) provide financial assistance to states and tribes in numerous environmental categories by program. These grants help states and tribes develop the technical, managerial, and enforcement capacity to operate the environmental programs that monitor drinking water systems, implement water quality standards, combat air pollution, promote the use of safer pesticides, manage hazardous waste, and assure compliance with Federal environmental laws. In addition, Categorical STAG funds are available in specified amounts appropriated for certain grant programs identified in the statute.
The Omnibus Rescissions and Appropriations Act (ORAA) of 1996 (P.L. 104-134) provided EPA permanent authority within the STAG account to award Performance Partnership Grants (PPGs). PPGs permit states and tribes to combine STAG "categorical grants” (i.e. air, water) into one or more grants, to be used for addressing the unique priorities of each state or tribe. PPGs were created to reduce the burden on and increase the flexibility for state and tribal governments that need to manage and implement their environmental protection programs, and at the same time produce the results-oriented performance necessary to address the most pressing concerns and achieve a clean environment.

There are a number management and staff levels involved with funds control at EPA (for an illustration showing the relationships of these, see Exhibit 2520-2-1). The positions associated with funds control within EPA range from National Program Managers (NPMs) to funding document originators. This section will briefly describe the roles and responsibilities of each of these key players regarding funds control and focus mostly on the Funds Control Officers (FCOs).
All levels of responsibility for funds control should ensure that no expenditures be authorize or created as an obligation under any appropriation or fund in excess of the amount available [31 U.S.C 1341(a)]. All personnel responsible for administrative control of funds should familiarize themselves with the following legal requirements found in:
a. Antideficiency Act (31 U.S.C. 1341(a);
b. OMB Circular A-11, Part 4; and
c. EPA’s Administrative Control of Appropriated Funds Manual (RMDS 2520).
The Administrator and the twelve (12) Assistant Administrators (AAs) in headquarters are National Program Managers (NPMs) who control resources. These thirteen (13) NPMs, who are normally political officials, formulate budgets for EPA’s national programs and offices including the regional program components. NPMs responsibilities include planning, formulating, and justifying budgets for national EPA programs, making adjustments to national program budgets (e.g., headquarters/regional splits) as needed, and preparing program operating guidance. For example, the AA for the Office of Water has national budget responsibilities for the entire EPA Water Program.
The Responsible Planning and Implementation Officers (RPIOs) are the 24 EPA senior managers responsible for planning and implementing operating plans, using and accounting for resources, and reviewing programs. This consist of 24 individuals who are the Administrator, the (12) headquarters Assistant Administrators, including the Inspector General, and the ten (10) Regional Administrators. Each RPIO has program operations to administer and a budget to execute.
In terms of properly utilizing funds for the purpose for which they were appropriated, the RPIOs, their Allowance Holders (AHs), and FCOs bear sole responsibility. No other Agency organizations are fully aware of the obligating activities and the decisions behind them that transpire on a day-to-day basis. , The RPIOs are presumed to be the most knowledgeable EPA entity regarding what is permissible in the authorizing statutes for their programs. Additionally, the RPIOs are active participants during the process of budget formulation, the OMB submission, the Congressional Justification, and all subsequent stages of the legislative history behind the appropriations act. They receive copies of the House, Senate, & Conference Committee Appropriation Reports and are kept informed of what is in the Public Law for their programs. The OGC is available to assist them in any interpretation of ambiguous language. The actions taken by the RPIOs’ in executing their portion of the budget is subject to audit and review by the OIG, GAO, Congressional Committees, Agency management, etc. RPIOs are held accountable responsibility for the utilization of their funds.

Each Regional Administrator (RA) is both a Responsible Planning and Implementation Officer (RPIO) and an Allowance Holder (AH). RAs are not NPMs since they have a primary responsibility for regional, not national, administration and budget execution for all programs in the states and territories within their region. RAs coordinate on budget formulation and execution with NPMs and present regional budget planning concerns through the Lead Region process.
Lead Regions are designated for each major program (Water, Air, etc.) and they are responsible for representing the designated program with the appropriate NPM in developing priorities, budgets, and work year estimates for the regional program components. Lead Regions are rotated every two years and are also responsible for working with their respective NPM to identify and synthesize the issues of all ten (10) regions into a "regional view" that can be effectively factored into Agency decision-making. The list of Lead Regional Coordinators can be found at NPMs are responsible for soliciting and using this contribution from their Lead Region on major decisions.
As RPIOs, Regional Administrators are responsible for overseeing the execution of their allowances and for the review of budget reprogrammings before they are sent to the Office of Budget (OB). In carrying out his or her responsibilities, a RA typically depends heavily upon their Assistant Regional Administrator (ARA) and an individual in the ARA's office who serves essentially as a Budget Officer. In many Regions, this individual is the Regional Comptroller.
The SROs are Senior Executive Service (SES) managers who are designated by and report to the Administrator, the 10 RAs, the GC, the Inspector General, and nine AAs. Additionally, one SES manager is designated by the Deputy Administrator for the Office of the Administrator (OA). The CFO approves all SRO designations upon initial designation, and annually thereafter. In line with the CFO Act (CFOA) of 1990, SROs must have the knowledge, skills and abilities in resource management necessary for the position.
SROs are typically Deputy Assistant Administrators (DAA) and Assistant Regional Administrators (ARAs). The SRO is accountable for the Headquarters Office's or Region's, effective resource management, including acquisition, assistance, budget, financial management and management integrity.
SRO accountability, like the accountability of other EPA managers and officials, cannot be delegated, even if SRO functions are delegated. When SROs are temporarily absent, the individual acting for the SRO must be appraised of SRO responsibilities. In cases where a resource requirement may involve more than one program or Regional Office, the SROs of all affected offices share responsibility. While the SROs are accountable for resource management in their respective Headquarters Offices or Regions, the CFO has overall responsibility for these resources. Specifically, the SROs:
1. advise the CFO on fiscal resource management issues, including acquisition, assistance, budget, financial management and management integrity. Extramural resources within this scope include contracts, simplified acquisitions, grants, loans, and cooperative and interagency agreements;
2. oversee, assess and advocate accountable fiscal resource management;

3. ensure compliance with fiscal resource management laws and regulations while furthering program mission;
4. ensure appropriate and effective systems, procedures, management controls, communication and outreach are in place for accountable fiscal resource management;
5. ensure appropriate and effective planning, assessment, monitoring and control for accountable fiscal resource management;
6. ensure that assistance and acquisition mechanisms are used for work appropriate to their purposes;
7. review and approve the following extramural management actions and funding requests. SRO concurrence is required for all:
a. requests for contract advisory and assistance services;
b. procurement requests (PRs) not including requests for incremental funding over $1 million and;
c. agreements for Federal funding assistance when total project costs are expected to be $5 million or more for continuing program grants and over $1 million for project grants.
8. ensure -- by working through established organizational structure -- that program or Regional resource managers [e.g., Contracting Officer Representatives (CORs), project officers (POs), work assignment managers (WAMs), delivery order project officers (DOPOs); grants management officers; funds control and financial management officers; and their supervisors:
a. are working within their workload limitations;
b. have Agency-required training and experience, and receive appropriate program or office-specific training that is available; and,
c. have appropriate resource management responsibilities in their position descriptions and performance standards.
9. manage and certify completion of the Annual Review of Unliquidated Obligations for current and prior year travel and simplified acquisitions, as described in Chapter 3, Part IV.A.
In Headquarters, Senior Budget Officers (SBOs) greatly assist the NPMs and SROs in carrying out the responsibilities listed previously and serve as the primary liaison between the Office of Budget (OB) and the Allowance Holders (AHs). The SBO:
1. has the lead role for managing the budget formulation process on behalf of their HQ NPM;
2. usually has the lead role in coordinating the budget execution activities for their HQ RPIO;
3. reviews, approves, processes or forwards budget reprogrammings and coordinates with the Office of Budget (OB) as needed;

4. reviews each Allowance Holder (AH) Operating Plan (Op Plan) and spending utilization to ensure that funds controls and program goals are being met; and,
5. manages the review of Headquarters current year unliquidated obligations to determine their validity and viability, as required by the CFO.
The Regional Comptroller serves as the Region’s manager on all matters related to budget and finance responsibilities and functions. This position is the primary point of contact for the OCFO (Office of Budget Office, Office of Financial Management, and Office of Planning, Analysis and Accountability) and National Program Managers on regional budget and financial matters. This position is also analogous to the Senior Budget Officer, however, on the Regional level yet works with the Senior Budget Officer when addressing national environmental program issues.
The Regional Comptroller is responsible for:
1. coordinating budget formulation and execution processes and decisions on resources (dollars and FTEs) at the Regional level;
2. managing the execution of the budget at the Regional level following Agency fund control policies, guidelines, and procedures;
3. oversees utilization of Regional resources and prepares reprogramming requests as necessary;
4. ensuring resources are utilized according to government-wide and Agency budget and financial policies and procedures;
5. accounting and reporting on resource utilization according to Agency and government-wide financial accounting standards and policies;
6. manages Regional data systems to account for resources and coordinates with centralized Financial Servicing Offices (FSOs) on payments of payroll, contracts, grants, assistance agreements, and Superfund activities. Works with Headquarters Office of Financial Management (OFM) on IFMS financial policy and accounting issues.
7. maintains close working relationship with Regional Grants Management Offices to facilitate proper and timely award of Agency grants;
8. manages the review of unliquidated obligations with all Regional offices to facilitate timely expenditures of Regional resources.
9. serves as the Regional point of contact for budget and financial investigations audits on the use of Regional resources.
The Regional Budget Officer (RBO) serves as the Region's point of contact on all matters dealing with budget formulation, operating plan development, and budget execution. In both areas, the RBO must communicate with HQ NPMs and OB on all budget matters, especially with regard to furnishing information and advice on Regional programs and objectives.

4. Special Accounts / Cashouts - This is funding that EPA receives from APotentially Responsible Parties@ through agreements or legal settlements in the Superfund program. The funding is intended to pay for future work at specific sites and EPA is authorized to A retain and use@ these funds by section 122(b)(3) of CERCLA. It should be noted that funds collected in these accounts that are used for performing reimbursable work count against the Agency’s FTE/work-year ceilings.
5. Federal Technology Transfer Act (FTTA) - This is authority for Cooperative Research and Development Agreement (CRADA) income and royalty payments from licensing agreements with private firms which will pay royalties to the Federal Government for an exclusive license to use Federally-developed technology. FTTA CRADA funds are held in trust for the co-operators and may be used solely for specified purposes. CRADA funds are subject to recertification and the same internal controls as appropriated funds.
FTTA royalty funds lapse at the end of the fiscal year following the one during which they were received.
6. Advance State Match/State Cost Share - This is the percentage of site response costs matched by the individual states either after-the-fact, or under rare circumstances, in advance in the Superfund program.
7. Reimbursable Workyears (FTEs) - Additional workyears to undertake the terms of an agreement can only be provided by OMB and FTEs should not be written into any agreement during budget execution. In the past, in the rare instances where OMB has agreed that reimbursable FTEs were appropriate and justifiable, the FTE were granted during the budget planning cycles (either the OMB submission or the Operating Plan development stage).
8. FIFRA IPAs - Intergovernmental Personnel Act employees under the Federal Insecticide, Fungicide and Rodenticide Act of 1972.
9. Recycling Fees - Collections from the Agency's recycling program.
Not all instances for which EPA uses the reimbursable allowance mechanism are situations of actual reimbursement. Many are up-front collections (such as fee programs, intergovernmental agreements, and cash outs) where the agency has statutory authority to retain and use funds, and it is the best mechanism for OMB to provide the obligational authority to the Agency. In all cases, however, where other organizations are providing funding, there is a net zero impact (the result is neither an increase nor decrease) upon EPA's Enacted Appropriations following disbursement and/or reimbursement. Also, the reimbursable apportionment authority is not a budgetary resource until an agreement is entered into (if an IAG) or funds are received (If a collection) and the apportionment authority is thereby funded.

Reimbursable authority must be obtained from the Office of Budget (OB) in the form of a reimbursable Advice of Allowance prior to commitment or obligation of any of the resources described above. However, before authority can be issued, the OB must have received documentation that an IAG has been executed or that funds have been collected by the Agency. For example, an EPA office that has entered into an IAG cannot act upon the agreement until they have forwarded an official executed copy to the OB and receiveda reimbursable allowance to commit and obligate against. Reimbursable Advices of Allowance are issued through the Integrated Financial Management System (IFMS) and are reflected in the Operating Plan as reimbursable appropriations.
Those appropriation accounts for which EPA receives Reimbursable Authority from OMB are: EPM, S&T, LUST, Superfund, OIG, and Oil Spills. Since reimbursable agreements may involve any of the budget object classes, authority will be issued in the appropriation for which the object class and/or work being performed is appropriate. Because there is a net zero impact upon EPA's enacted appropriations, ceilings and floors, if any, do not apply except in the case of Reimbursable work years (FTE).
Reimbursable work years (FTE) which accrue as a result of charging PC&B against a reimbursable agreement are subject to an RPIO's own direct FTE ceiling. In other words, an RPIO cannot exceed its work year ceiling (direct plus reimbursable FTE).
Not all unfunded Agency reimbursable authority and not all unobligated reimbursable allowances expire at year-end. If the reimbursing Agency's funding has not expired at year end, RPIOs can request a reimbursable allowance in the new fiscal year to cover any unobligated portion of their agreement(s).
For more on reimbursable interagency agreements and the reimbursable process, see Chapter 4 of RMDS 2550C entitled: Interagency Agreements.

A Funds Control Officer's signature on a document signifies that the document has been personally reviewed for accuracy, that all accounting data is accurate and complete, that the transaction has been accepted in IFMS, and that the funds are available as to purpose, time, and amount. There may be rare exceptions when a transaction may not accepted into IFMS. These rare exceptions happen before IFMS is opened at the beginning of a fiscal year.
It is the FCO’s responsibility to ensure that all of these actions have taken place before forwarding the document to other Agency officials. These officials will be relying on the FCOs signature to indicate that the funds will not be altered, revised, or withdrawn prior to obligation without advance notice, or until the recipient of the document is notified in writing.
This section will cover the essential items on funding documents that an FCO should review, and common funding problems an FCO may encounter after committing the funds and how those problems are resolved. Since an FCO’s realm of responsibility may vary between depending on whether they are located in HQ or the Regions, not all of these functions may actually be performed by the FCO. However, in either location, the FCO is directly responsible for, or subject to, coordinating with other personnel on the following activities.
A lack of attention to detail in properly reviewing a funding document could result in a violation of the Anti- Deficiency Act. Therefore, the FCO should ensure that the following information is correctly cited on the document before committing the funds in IFMS:
1. Correct Appropriation: Chapter 1 Part III describes the different appropriations used by the Agency and their purpose. The FCO must ensure that the funds cited are being used for the appropriate purpose. The FCO may also need to apply the "Pick and Stick” rule to determine whether or not the document is funding something from one appropriation that traditionally may have been funded from a different appropriation. This rule was covered in Chapter 1 (Part II, A 1).
2. Correct Account Number: See Chapter 3, Part I for description of the 6-Field IFMS Account Code and how to enter this information.
3. Correct Object Class Code: See Chapter 3, Part I for description. FCOs must ensure that the document cites the correct sub-object class code in terms of properly categorizing the item, coinciding with the appropriation cited and properly identifying the item as being administrative or programmatic in nature. For further information, FCOs should review RMDS 2590 which contains a description of all of the Agency's sub-object class codes.
4. Correct SFO Code: Chapter 2, Part II describes the roles and responsibilities of an SFO. The SFO closes out commitments and enters obligations into IFMS. Thus, all funding documents must cite the proper SFO code in order to reach their proper destination and be processed. The correct SFO code is based upon the FCO's geographic location and/or on the type of funding document being processed. See Exhibit 2520-2-3 for the correct SFO code to use for each type of funding document.
5. Accurate Mathematics: FCOs must ensure that, when more than one quantity of an item is being procured, the total cost of the purchase is correct. Thus, the estimated unit price multiplied by the quantity must equal the total price/cost shown on the document.
If the funding document is citing more than one appropriation and one of them is a Trust Fund appropriation, the FCO must make sure that the Trust Fund layoff percentages used in calculating the costs against each appropriation are correct, and that the document cites the appropriate corresponding accounting information. For more information on the concept of Trust Fund Layoffs, see Chapter 4(G).
6. Correct Signatures: FCOs must ensure that the document has all the proper signatures (Initiator and/or Approving Official). Actions sometimes require different levels of approval, such as international travel which requires higher level approvals than domestic travel. Based on the amount of an item being procured, Bankcard purchases might need a Contracting Officer‘s (who has a warrant) signature. FCOs should be familiar with all persons authorized to sign for their organization. By checking for signatures, the FCO is assured that the document has been reviewed by the appropriate individuals. (If multiple organizations are involved, all appropriate FCOs are responsible.) Also, OAM requires that some types of procurement have signatures from individuals outside of the FCO's office. For example, for the purchase of any Information Technology (IT) equipment, the funding document must have the SIRMO's (Senior Information Resource Management Official) signature. For the procurement of furniture or renting of conference space, the document must have a signature from the Facilities Management & Services Division (FMSD).
7. Proper Funding Vehicle: Most commonly used funding documents at EPA are fairly self-explanatory (i.e. Travel Authorization and Travel Voucher for travel related expenses). However, there are some instances where the FCO needs to apply policy guidance. Although the document may originate with the Contracting Officer Representative (COR), the FCO must also know when it is appropriate to use a contract but not a grant or cooperative agreement. The Federal Grant & Cooperative Agreement Act (FGCAA), 31 U.S.C. 6301 et. seq., provides that grant and cooperative agreements must be awarded when the principal purpose is to carry out a public purpose of support or stimulation authorized by statute, rather than to acquire services or products which directly benefit the government. In interpreting the FGCAA, EPA Order 5700.1, states:
If an office or laboratory's principal purpose, in undertaking a project, is to obtain a product or service for the direct benefit or use of the Agency, or any part of the Federal government including the legislative and judicial branches, a contract, rather than a grant (assistance agreement), must be used.
There is one exception. It is when services -- for the direct benefit or use of the Agency -- are related to the Senior Environmental Employee (SEE) Program, which is authorized by the Environmental Programs Assistance Act. In this case it is more appropriate for this program that was established by Congressional legislation and is awarded through SEE grants.
Once the document has been properly reviewed, and all financial data is correct, the funds are ready to be committed. Committing funds reserves a specified amount for a specific purpose. Commitments help managers to estimate how much individual spending actions will cost and to predict overall expenditures based on actions that are not yet obligations. Since large procurements often take months to award, it is essential that FCOs ensure that committed funds remain available throughout the entire procurement
1. Funds Availability Check
The first thing an FCO must do after reviewing the document is a funds availability check. A document cannot be committed if sufficient funds are not available. If allowances have been established at the RC level, the two key tables to observe in IFMS are the SASP and SAIN Tables. For those Allowance Holders whose funds are not distributed to a lower level, funds availability can be confirmed in the ALLT or ALST Tables. If funds are available, then the document can be committed. However, if there are insufficient funds, the commitment may not be processed and it may be necessary to submit a reprogramming request. Although IFMS will not lock out such a spending action unless the AH total is insufficient at the appropriation level, spending another RC's resources within the same Allowance violates Agency policy. If the Operating Plan has not been established at the RC level, an office must have alternate procedures in place to determine RC balances. See Section II of this chapter for more information on reprogrammings. The FCO initiates the reprogramming request based on their own organizational level. For example, an FCO at the RC level would contact the AH. An FCO at the AH level would contact the SBO. Remember, the type of reprogramming required (RR or RP) will determine the level of approvals needed. If there are insufficient funds and a reprogramming cannot be accomplished, then the spending action cannot be undertaken.
Entering Documents into IFMS and Travel Manager
If funds are available, the FCO enters the funding document into IFMS as a Requisition (RQ) or into Travel Manager as a Travel Order (TO). While the RQ is entered as a commitment, TOs are entered as an obligation. The FCO (or IFMS) will assign the document a Document Control Number (DCN). The DCN is
then written on the funding document. A DCN should never be written on a funding document without having been entered into IFMS first. The number on the document and in IFMS must match. Putting the "next in line DCN" on a document without actually committing the funds into IFMS is poor fiscal management. It is essential that data on funding documents be accurate, legible and consistent with what is entered into IFMS. If any changes are made to the funding document after it has been sent forward, the FCO must immediately notify the obligating official of the changes.
It is critical that the FCO maintain organized and accurate records of all the funding documents processed throughout the fiscal year. According to EPA's Record Management Manual, all funding documents and records related to IFMS should be held for up to 3 years after they are filed and final payment has been made, then retired to the Federal Records Center. After the document has been entered into IFMS and the funds are committed, the FCO may choose to transmit the document or return it to the originator for transmittal to the obligating official, according to local office procedures.
Obligating officials are EPA employees who have been delegated authority to legally obligate the government to pay for goods and services. Obligating officials, including Contracting and Grants Officers, know how to process an obligation, and what constitutes evidence of the obligation. Obligating officials forward a copy of the obligating documents to the SFO to officially record the obligation of funds in IFMS. Obligating officials will also forward copies of the obligating document to the originator and/or to the FCO. The copies may be marked "Receiving Report" and "Originator". If the originator is someone other than the FCO, internal procedures should be established to ensure that the originator forwards a copy to the FCO. This is especially true with Training Requests, which are obligated as Purchase Orders on the same form and usually returned to the trainee for submission to the vendor. It is important that the FCO maintain a copy of all obligating documents in their files to facilitate any reconciliation that may be necessary.
Unfunded Procurement Requests (PRs) for Planning Purposes
Many Federal Agencies use Planning Purpose PRs (PPPRs) in their procurement process. Traditionally, these types of PRs are non-funded actions that are used in initiating procurement efforts that will take a long time to award, as well as for procurement actions that must begin on, or soon after, the start of the next fiscal year (i.e., contracts for service-related contracts that an Agency uses every fiscal year).
Currently, in OAM, the Procurement Initiation Notice (PIN) has replaced the planning PR (PPPR) for new procurements using other than simplified acquisition procedures. Exercising options, renewing leases, maintenance agreements and other requirements submitted subject to the availability of funds are initiated by the Project Officer (PO) using a PPPR. In order to start the procurement process in a timely manner, a PPPR is necessary to help the procurement office determine how much money the Agency needs for a given good or service, and using that estimate as a base during the negotiating process with a contractor. Once a contract is negotiated in terms of cost, a Contracting Officer (CO) will then request a revised PR (from those offices that submitted PPPRs) that reflects the negotiated amount prior to obligating the contract.
When planning PRs are done for a service that will be required in a new fiscal year, federal procurement regulations require that the PR contain the following statement: "This PR is for planning purposes only, does not constitute a contract or a commitment to a contract, does not constitute a contract or a commitment to a contract, and is subject to the availability of funds at the time of award." This statement is placed on PRs to ensure compliance with the Antideficiency Act (no funds may be obligated on any government contract in advance of an appropriation) and the bona fide needs rule (an appropriation may only be obligated to meet a legitimate need that exists during the period of availability). See Chapter 1 for further information.
A good example of when the Agency uses planning PRs is with maintenance contracts. Maintenance is a service that is continually required every fiscal year. To negotiate a price with a contractor for maintenance, the Office of Acquisition Management (OAM) first determines how many program offices within the Agency will need the service. OAM will send out an annual call letter (during the summer months) requesting that those offices needing maintenance service send them a planning PR containing a cost estimate (based on previous years) for how much the office expects to pay for their maintenance costs. These planning PRs are then used by OAM as a base when negotiating with a contractor for the actual cost of the contract.
Offices that fail to provide a planning PR (or a revised PR after the contract costs have been negotiated) to OAM for a service or good, and then actually receive a service or good from a contractor may create an unauthorized procurement. See Section I for more on unauthorized procurements.
For more information on Planning PRs, see section, paragraphs C and E of the Contracts Management Manual at:

AIG Role Still Haunts James Cole's Chances to be Deputy Attorney General

by  Beatrice Edwards on  December 07, 2010 ( The Whistleblogger / 2010 )

As the 111th Congress draws to a close, the heat is on to confirm James Cole as Deputy Attorney General. Despite the last-minute push, Cole still has serious problems that haunt and disqualify him from taking a senior position at the Justice Department.

From 2005 through December 2009, James Cole served as an independent monitor in the Compliance Office of the American International Group (AIG), placed there by the Securities and Exchange Commission (SEC) as part of a deal that allowed AIG to escape prosecution for fraud.

While Americans and their elected representatives are notorious for their short attention spans, it's worth remembering, in this case, that AIG was the corporation that nearly drove the US economy off a cliff in September 2008. AIG's Financial Products Division (AIG-FP), based in London, wrote credit default swaps involving staggering amounts of money that had to be covered with a US government bailout in the range of $180 billion.

The AIG rescue, courtesy of US taxpayers, was the single largest bailout of any corporation that went belly up in the Great Recession. In the aftermath, Congressional investigators found that Cole had specifically exempted AIG-FP from his oversight. When Senator Charles Grassley (R-Iowa) asked him for a written explanation of the lapse, Cole replied that AIG-FP was doing too many of these deals for him to monitor (Question h, p. 5). He allowed the division to design its own risk analysis model to assess the viability of the swaps AIG-FP itself was writing. He left it at that.

Nor was Cole forthcoming in answering Grassley about what he had done at AIG. As we reported at the time:

Cole's entire response set to Grassley's questions about his role at AIG before, during and after the financial collapse that nearly took out the international economic system is reminiscent of NPR's “Not My Job” segment (also known as “Someone Else's Problem”) .

As markets around the world still struggle to recover, and the cold light of day hits the epidemic of financial crime still eating away at economic stability , the US Justice Department needs a new Deputy Attorney General who is more responsible than James Cole.

Beatrice Edwards is International Reform Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization.


NASA is responsible for the environmental cleanup of the federal real property at the Santa Susana Field Laboratory. The NASA-held (federal) portion of the site has been used historically for the research, development and testing of rocket engines associated with the Apollo and Space Shuttle Programs. Under NASA's AOC, the agency will work with the California Department of Toxic Substances Control to determine the chemical background for each potential chemical constituent, based on its on-going chemical background study. The agency also will work with DTSC to determine the nature and extent of any remaining chemical contamination based on the previously submitted chemical sampling results, and any DTSC-determined necessary additional sampling.
  Originally developed as a remote site to test rocket engines and conduct nuclear research, the 2,850-acre SSFL, located in the hills between Chatsworth and Simi Valley, is owned primarily by the Boeing Company, with small portions administered by NASA. The former Atomic Energy Commission conducted nuclear research on nuclear-powered space vehicles and sodium coolant mediums at 10 small reactors at the Energy Technology Engineering Center -- 90 acres within SSFL Area IV -- from the 1950s until 1988.     

Several EPA documents are available that can provide more
information on the RFA/SBREFA, the Agency’s small entity
compliance assistance efforts and the elements of a regulatory
flexibility analysis. These documents and further assistance with any
RFA/SBREFA questions are available from the SBAC, SBAC Staff,
or from the RFA/SBREFA website, listed below.
Small Business Advocacy Chair
Alexander Cristofaro
Small Business Advocacy Chair Staff
Lanelle Wiggins, Team Leader
(202) 566-2372;
Lakeshia Walker
(202) 564-6571;
Caryn Muellerleile
(202) 564-2855;
Nathaniel Jutras
(202) 564-0301;

Regulatory Flexibility Act / Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA)

What is a "Small Business"?
The RFA/SBREFA references the definition of "small business" found in the Small Business Act. The Small Business Act further authorizes the Small Business Administration (SBA) to define "small business" by regulation.
What is a "Small Government"?
The RFA/SBREFA defines "small governmental jurisdiction" as the government of a city, county, town, school district or special district with a population of less than 50,000.
What is a "Small Organization"?
The RFA/SBREFA defines "small organization" as any "not-for-profit enterprise which is independently owned and operated and is not dominant in its field."

EPA is developing a regulation that would require financial responsibility for clean-up of contaminated sites within the hard rock mining industry. Find out if you are eligible to nominate yourself to serve as a Small Entity Representative (SER) for an upcoming panel to explore potential small business impacts.


Who Are We

Who Are They

EPA Small Business Advocacy Chair (SBAC)

Alexander Cristofaro, SBAC
Office of Policy

The position of the Small Business Advocacy Chair (SBAC) was created by the Small Business Regulatory Enforcement Fairness Act (SBREFA) amendments to the Regulatory Flexibility Act (RFA). The SBAC is responsible for guidance and oversight of the Agency's implementation of the RFA as amended by SBREFA and serves as the permanent chair of all Small Business Advocacy Review (SBAR) Panels. The SBAC is responsible for all aspects of the SBAR Panel process. The Environmental Protection Agency (EPA) Administrator designated Alexander Cristofaro to fulfill the Agency's responsibilities in this regard.

SBAC Staff

Name Phone Email
Lanelle Wiggins (202) 566-2372
Table row
Nathaniel Jutras (202) 564-0301
Table row
Caryn Muellerleile (202) 564-2855
Lucinda Power (202) 566-0356

The SBAC staff provides guidance, training, recordkeeping, reporting and general support in EPA's implementation of the RFA/SBREFA. They provide coordination and support for the SBAR Panel process to make each SBAR Panel as efficient and productive as possible. They also advise EPA's program offices on how the RFA/SBREFA Panel process can fit into their rulemaking schedule, how to involve SBA and OMB in the process, and the implications of the results of their screening analysis, among other things.

EPA's SBREFA Web site is managed by the Office of Policy (OP)

Office of Regulatory Policy and Management | Office of Policy | RFA/SBREFA Home


Regulatory Flexibility Act
as amended by
Small Business Regulatory Enforcement Fairness Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 601 et seq , was signed into law on September 19, 1980. The RFA imposes both analytical and procedural requirements on EPA and on other federal agencies. The analytical requirements call for EPA to carefully consider the economic impacts rules will have on small entities. The procedural requirements are intended to ensure that small entities have a voice when EPA makes policy determinations in shaping its rules.

The Small Business Regulatory Enforcement Fairness Act (SBREFA), Pub Law No. 104-121, was signed into law on March 29, 1996. SBREFA enacted a variety of provisions, including several amendments to the RFA. In short, SBREFA amended the RFA to require EPA to convene a small business advocacy review panel prior to proposing any rule that will have a significant economic impact on a substantial number of small entities. It also added a provision that allows small entities adversely affected by a final rule to challenge the agency's compliance with the RFA's requirements in court.

For the purposes of the Small Business Advocacy Review Panel process, small entity includes small businesses, small governments and small organizations. The term "small business" is defined by law in the Small Business Act and the term "small government and small organization" are defined by law in the Regulatory Flexibility Act.

Small Entity Definitions: Small Business
Small Government
Small Organization



Office of Whistleblower Protection Program – Federal Statutes

Holy war looming over Iron Mountain?

“EPA messed up my business.”

- Ted Arman

EPA Really Cares About Stormwater Enforcement

Posted on December 3, 2010 by Seth Jaffe

When EPA creates a web page solely addressing one stormwater settlement , you can safely assume that EPA thinks it is important and is trying to send a message. Thus, EPA's announcement earlier this week of a settlement with Beazer Homes to resolve allegations that Beazer Homes violated federal stormwater requirements at construction sites in 21 – count ‘em, 21 – states should make everyone in the construction industry sit up and take notice.

The settlement requires Beazer Homes to pay a penalty of $925,000 (mostly to EPA, but some to each of the states). EPA estimated a price tag for the injunctive relief of almost $9,487,384. Basically, the consent decree simply requires Beazer Homes to comply with stormwater regulations, but EPA has imposed certain management requirements on Beazer Homes to ensure that compliance really will happen. Beazer Homes must develop an overall stormwater compliance program, designate a nationwide stormwater compliance manager, and also identify division-level compliance managers who must inspect every construction site within their jurisdiction at least quarterly to ensure that individual sites are in compliance. 

Stormwater is clearly one of EPA's top priorities. The press release for the Beazer Homes settlement states so explicitly:

Keeping contaminated stormwater out of America's waters is one of EPA's national enforcement initiatives.

As concerns about nutrients increase, and EPA faces pressure from citizen groups regarding TMDLs for nutrients, we should only expect more such announcements. An ounce of prevention might be worth $9,487,384 of cure (not including a penalty).



[Federal Register: December 28, 2007 (Volume 72, Number 248)] [Proposed Rules] [Page 73700-73708] From the Federal Register Online via GPO Access [] [DOCID:fr28de07-31] [[Page 73700]] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 302 and 355 [EPA-HQ-SFUND-2007-0469; FRL-8511-4] RIN 2050-AG37 CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This notice of proposed rulemaking provides notice of, and requests comments, including any relevant data, on a proposed administrative reporting exemption from particular notification requirements under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and the Emergency Planning and Community Right-to-Know Act, also known as Title III of the Superfund Amendments and Reauthorization Act. Specifically, the proposed administrative reporting exemption applies to releases of hazardous substances to the air where the source of those hazardous substances is animal waste at farms. Nothing in this proposed rule, however, would change the notification requirements if hazardous substances are released to the air from any other source other than animal waste at farms (i.e., ammonia tanks), as well as releases of any hazardous substances from animal waste to any other environmental media, (i.e., soil, ground water, surface water) when the release of those hazardous substances is at or above its reportable quantity per 24 hours. This administrative reporting exemption is protective of human health and the environment and consistent with the Agency's goal to reduce reporting burden where there would likely be no Federal, state or local emergency response to such release reports. Eliminating such reporting will allow emergency response officials to better focus on releases where the Agency is more likely to take a response action. Finally, in proposing this administrative reporting exemption from the notification requirements under the Comprehensive Environmental Response, Compensation, and Liability Act, section 103(a) and the Emergency Planning and Community Right to Know Act, section 304, EPA is not proposing to limit any of its authorities under CERCLA sections 104 (response authorities), 106 (abatement actions), 107 (liability), or any other provisions of the Comprehensive Emergency Response, Compensation, and Liability Act or the Emergency Planning and Community Right to Know Act in this rulemaking. DATES: Comments must be received on or before March 27, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- SFUND-2007-0469, by one of the following methods: Follow the on-line instructions for submitting comments. E-mail: . Fax: (202) 566-9744. Mail: Superfund Docket, Environmental Protection Agency, Mail code: [2822T], 1200 Pennsylvania Ave., NW., Washington, DC 20460. Hand Delivery: EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND- 2007-0469. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through or e-mail. The Web site is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e- mail comment directly to EPA without going through , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at . For additional instructions on submitting comments, go to Unit I.B of the SUPPLEMENTARY INFORMATION section of this document. Docket: All documents in the docket are listed in the index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in or in hard copy at the Superfund Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Superfund Docket is (202) 566-0276. FOR FURTHER INFORMATION CONTACT: Lynn M. Beasley, Regulation and Policy Development Division, Office of Emergency Management (5104A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-1965; fax number: (202) 564-2625; e-mail address: . SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in the following outline: I. General Information A. Does This Action Apply to Me? B. What Should I Consider As I Prepare My Comments for EPA? C. What Is the Statutory Authority for This Rulemaking? D. Which Hazardous Substances Are We Proposing to Exempt From the Notification Requirements of CERCLA and EPCRA? II. Background III. Summary of This Action A. What Is the Scope of This Proposed Rule? B. Proposed Definitions C. What Is Not Included Within the Scope of This Proposed Rule? D. What Is EPA's Rationale for This Administrative Reporting Exemption? E. What Are the Economic Impacts of This Administrative Reporting Exemption? IV. Statutory and Regulatory Reviews A. Executive Order 12866 (Regulatory Planning and Review) B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132 (Federalism) [[Page 73701]] F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) G. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211 (Energy Effects) I. National Technology Transfer and Advancement Act of 1995 (``NTTAA'') J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) I. General Information A. Does This Action Apply to Me? ------------------------------------------------------------------------ Type of entity Examples of affected entities ------------------------------------------------------------------------ Industry................................. NAICS Code 111--Crop Production. NAICS Code 112--Animal Production. State and/or Local Governments........... State Emergency Response Commissions, and Local Emergency Planning Committees. Federal Government....................... National Response Center. ------------------------------------------------------------------------ This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility is affected by this action, you should carefully examine the criteria in section III.A of this proposed rule and the applicability criteria in Sec. Sec. 302.6 and 355.40 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. What Should I Consider as I Prepare My Comments for EPA? In an effort to implement the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA) more efficiently, EPA is proposing to establish an administrative reporting exemption from the notification requirements of CERCLA and EPCRA for releases of hazardous substances, such as ammonia and hydrogen sulfide, to the air where the source of the release is animal waste at farms. The Agency believes that a federal response to such notifications is impractical and unlikely. In addition, nothing in this proposal would limit EPA's authority to take action under its various authorities under CERCLA sections 104 (response authorities), 106 (abatement actions), 107 (liability), or any of provisions of CERCLA or EPCRA (other than ECPCRA section 304) through this rulemaking. Therefore, when submitting comments, remember to: Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). Follow directions--The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. Describe any assumptions and provide any technical information and/or data that you used. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. Provide specific examples to illustrate your concerns, and suggest alternatives. Explain your views as clearly as possible. Make sure to submit your comments by the comment period deadline identified. C. What Is the Statutory Authority for This Rulemaking? Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986, gives the Federal government broad authority to respond to releases or threats of releases of hazardous substances from vessels and facilities. The term ``hazardous substance'' is defined in section 101(14) of CERCLA primarily by reference to other Federal environmental statutes. Section 102 of CERCLA gives the Environmental Protection Agency (EPA) authority to designate additional hazardous substances. Currently there are approximately 760 CERCLA hazardous substances, exclusive of Radionuclides, F-, K-, and Unlisted Characteristic Hazardous Wastes. CERCLA Section 103(a) calls for immediate notification to the National Response Center (NRC) when the person in charge of a facility has knowledge of a release of a hazardous substance equal to or greater than the reportable quantity (RQ) established by EPA for that substance. In addition to the notification requirements established pursuant to CERCLA section 103, section 304 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq., requires the owner or operator of certain facilities to immediately report to State and local authorities releases of CERCLA hazardous substances or any extremely hazardous substances (EHSs) if they exceed their RQ (see 40 CFR 355.40). This proposed rule only applies to CERCLA section 103 notification requirements, including the provisions that allow for continuous release reporting found in paragraph (f)(2) of CERCLA section 103, and EPCRA section 304 notification requirements. The Agency has previously granted such administrative reporting exemptions (AREs) where the Agency has determined that a federal response to such a release is impracticable or unlikely. For example, on March 19, 1998, the Agency issued a final rule (see 63 FR 13459) that granted exemptions for releases of naturally occurring radionuclides. The rule entitled, Administrative Reporting Exemptions for Certain Radionuclide Releases (``Radionuclide ARE''), granted exemptions for releases of hazardous substances that pose little or no risk or to which a Federal response is infeasible or inappropriate (see 63 FR 13461). The Agency relies on CERCLA sections 102(a), 103, and 115 (the general rulemaking authority under CERCLA) as authority to issue regulations governing section 103 notification requirements. The Agency relies on EPCRA section 304 as authority to issue regulations governing EPCRA section 304 notification requirements, and EPCRA section 328 for general rulemaking authority. D. Which Hazardous Substances Are We Proposing to Exempt From the Notification Requirements of CERCLA and EPCRA? EPA proposes to exempt certain releases of hazardous substances to the air from the notification requirements of CERCLA and EPCRA, as implemented in 40 CFR 302.6 and 40 CFR 355.40, respectively. Specifically, we are proposing to exempt those hazardous substance releases which are emitted to the air (typically during digestion, break-down or decomposition) from animal waste at farms. Although ammonia and hydrogen sulfide are the most recognized hazardous substances that are emitted from animal waste, there may also be some amounts of additional hazardous substances released. Ammonia is a by-product of the break-down of urea and proteins that are [[Page 73702]] contained in animal waste. Hydrogen sulfide is another by-product of the break-down of animal waste. These hazardous substances can be emitted when animal waste is contained in a lagoon or stored in under- floor manure pits in some animal housing, manure stockpiles, or in the open where animals congregate. Open air or dry manure stockpiles are not generally associated with significant hydrogen sulfide emissions. Additional hazardous substances may be emitted to the air from animal waste.\1\ These hazardous substances would typically be subject to the notification requirements of CERCLA section 103 and EPCRA section 304 once their RQ is met or exceeded. However, this proposed rule will extend the administrative reporting exemption to all hazardous substances emitted to the air from animal waste at farms. --------------------------------------------------------------------------- \1\ Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs. National Research Council of the National Academies, The National Academies Press, Washington, DC (2003), p. 54. Additional hazardous substances may include nitrous oxide (NO) and volatile organic compounds (VOCs). The major constituents of VOC emissions could include organic sulfides, disulfides, C 4 to C 7 aldehydes, trimethylamines, C 4 amines, quinoline (RQ = 5000 pounds), dimethylpyrazine, and C 3 to C 6 organic acids, along with lesser amounts of aromatic compounds and C 4 to C 7 alcohols, ketones, and aliphatic hydrocarbons. --------------------------------------------------------------------------- II. Background Under CERCLA section 103(a), the person in charge of a vessel or facility from which a CERCLA hazardous substance has been released into the environment in a quantity that equals or exceeds its RQ must immediately notify the NRC of the release. A release is reportable if an RQ or more is released into the environment within a 24-hour period (see 40 CFR 302.6). This reporting requirement serves as a trigger for informing the Federal government of a release so that Federal personnel can evaluate the need for a response in accordance with the National Contingency Plan (NCP) and undertake any necessary response action in a timely fashion. The NRC is located at the United States Coast Guard (USCG) headquarters and is the national communications center for the receipt of all pollution incidents reporting. The NRC is continuously manned for processing activities related to receipt of the notifications. NCP regulations, 40 CFR 300.125, require that notifications of discharges and releases be made telephonically and state that the NRC will immediately relay telephone notices of discharges (i.e., oil) or releases (i.e., hazardous substances) to the appropriate predesignated federal on-scene coordinator (OSC). The NRC receives an average of approximately 34,000 \2\ notifications per year. Of those notifications, averages of approximately 33,700 \3\ discharge or release notifications are relayed to EPA. --------------------------------------------------------------------------- \2\ Average number of notifications from years 2000-2006, National Response Center statistics available at, . See Superfund Docket EPA-HQ- SFUND-2007-0469 for a summary table. \3\ Average number of notifications made to EPA from years 2000- 2006, National Response Center statistics available at, . The average was calculated from those notifications that went to the EPA Regions 1 through 10, including notifications to the EPA Regions for Continuous Releases. See Superfund Docket EPA-HQ-SFUND-2007-0469 for a summary table. --------------------------------------------------------------------------- Under EPCRA section 304(a), three release scenarios require notification. First, if a release of an extremely hazardous substance occurs from a facility at which a hazardous chemical is produced, used, or stored, and such release requires a notification under section 103(a) of CERCLA, the owner or operator of a facility shall immediately provide notice to the community emergency coordinator for the local emergency planning committees (LEPC) for any area likely to be affected by the release and to the State emergency planning commission (SERC) of any State likely to be affected by the release. (EPCRA section 304(a)(1)) EPCRA section 304(a) also requires the owner or operator of the facility to immediately provide notice under EPCRA section 304(b) for either of the following two scenarios: [cir] If the release is an extremely hazardous substance, but not subject to the notifications under section 103(a) of CERCLA. (EPCRA section 304(a)(2)) [cir] If the release is not an extremely hazardous substance and only subject to the notifications under section 103(a) of CERCLA. (EPCRA section 304(a)(3)) EPCRA notification is to be given to the community emergency coordinator for each LEPC for any area likely to be affected by the release, and the SERC of any state likely to be affected by the release. Through this notification, state and local officials can assess whether a response action to the release is appropriate. EPCRA section 304 notification requirements apply only to releases that have the potential for off-site exposure and that are from facilities that produce, use, or store a ``hazardous chemical,'' as defined by regulations promulgated under the Occupational Safety and Health Act of 1970 (OSHA) (29 CFR 1910.1200(c)) and by section 311 of EPCRA. In establishing the RQs for the various hazardous substances, EPA adjusted the statutory RQs of CERCLA hazardous substances based on specific scientific and technical criteria that relate to the possibility of harm from the release of a hazardous substance in a reportable quantity. (See 50 FR 13456, April 4, 1985.) The adjusted RQs did not reflect the determination that a release of a substance will be hazardous at the RQ level and not hazardous below that level. EPA did not, at the time, make such a determination because the actual hazard will vary with the unique circumstances of the release. Instead, the RQs reflect the Agency's judgment of which releases should trigger notification to the federal government so that the government may assess to what extent, if any, a federal removal or remedial action may be necessary. (See 50 FR 13465.) For the purposes of making RQ adjustments under CERCLA, EPA adopted the five RQ levels of 1, 10, 100, 1000, and 5000 pounds originally established pursuant to CWA section 311 (see 40 CFR part 117). The Agency adopted the five-level system primarily because: (1) It has been successfully used pursuant to the CWA, (2) the regulated community was familiar with these five levels, and (3) it provided a relatively high degree of discrimination among the potential hazards posed by different CERCLA hazardous substances. The methodology used for adjusting RQs begins with an evaluation of the intrinsic physical, chemical, and toxicological properties of each designated hazardous substance. The intrinsic properties examined-- called ``primary criteria''--are aquatic toxicity, mammalian toxicity (oral, dermal, and inhalation), ignitability, reactivity, and chronic toxicity.\4\ In addition, substances that were identified as potential carcinogens were evaluated for their relative activity as potential carcinogens. --------------------------------------------------------------------------- \4\ Chronic toxicity was defined as toxicity resulting from repeated or continuous exposure to either a single release or multiple releases of a hazardous substance. --------------------------------------------------------------------------- The Agency ranks each intrinsic physical, chemical, and toxicological property on a five-tier scale, associating a specific range of values on each scale with a particular RQ value. Thus, each substance receives several tentative RQ values based on its particular properties. For example, ammonia received a tentative RQ of 100 pounds based on its aquatic toxicity levels; however, for the intrinsic property, mammalian toxicity (inhalation), ammonia received a tentative RQ value of 1000 pounds. The lowest of all of the tentative RQs for [[Page 73703]] each hazardous substance becomes the ``primary criteria RQ'' for that substance. After the primary criteria RQs are assigned, substances are further evaluated for their susceptibility to certain extrinsic degradation processes. These ``secondary criteria'' are biodegradation, hydrolysis, and photolysis, or ``BHP.'' If the hazardous substance degrades relatively rapidly to a less harmful compound through one or more of these processes when it is released into the environment, the primary criteria RQ is raised one level. The single RQ assigned to each hazardous substance on the basis of the primary criteria and BHP becomes the adjusted RQ for that substance. The single RQ approach was adopted to provide a relatively simple reporting system that does not unduly burden either EPA or the regulated community. Since releases into more than one medium often occur, the single RQ approach prevents confusion. Section 102(a) of CERCLA expressly authorizes the Administrator to set a single quantity for each hazardous substance, and the legislative history emphasizes the virtues of simplicity and administrative convenience. (For a more detailed discussion of the methodology that was used to establish the RQs for hazardous substances, see 50 FR 13465, Apr. 4, 1985.) Owners and operators of farms, like all other facilities, are required to report the release of hazardous substances into the environment \5\ in accordance with CERCLA section 103 and EPCRA section 304 when it meets or exceeds the RQ of the hazardous substance. For example, releases into the environment of ammonia or any other hazardous substance, from tanks located on a farm, at or above an RQ are reportable under CERCLA section 103 and EPCRA section 304. --------------------------------------------------------------------------- \5\ Environment means, ``(A) the navigable waters, the waters of the contiguous zone, and the ocean waters for which the natural resources are under the exclusive management authority of the United States * * *, and (B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.'' See CERCLA section 101(8). --------------------------------------------------------------------------- In 2005, EPA received a petition from the National Chicken Council, National Turkey Federation, and U.S. Poultry & Egg Association, seeking an exemption from CERCLA and EPCRA reporting requirements for ammonia emissions from poultry operations. The Agency published a notice in the Federal Register on December 27, 2005 (70 FR 76452) that acknowledged receipt of the petition and requested public comment. The comment period closed on March 27, 2006. Also, in 2005, EPA offered the owners and operators of animal agricultural operations an opportunity to sign up for an air monitoring study. The purpose of the air monitoring study is to develop emissions estimating methodologies for all animal agricultural operations.\6\ Over 2600 animal feeding operations, representing over 14,000 farms, signed up for the study. The monitoring study which began in the spring of 2007 includes 25 representative sites (lagoons or barns) on 21 different farms in 10 states (NC, NY, IA, WI, CA, KY, TX, WA, IN, and OK). The sites will be monitored for two years, allowing the Agency to account for emissions variability by season, and for the effect of any seasonal operational changes (such as pumping out lagoons), that could have an effect on emission levels. At the end of the monitoring study, EPA will use the data along with any other relevant, available data to develop emissions estimating methodologies. The monitoring study results will be publicly available upon completion of the study. In addition, EPA will publish the emissions estimating methodologies based on these results, within 18 months of the study's conclusion. Thus, such information will be widely available to the public. --------------------------------------------------------------------------- \6\ The National Academy of Sciences, Board on Agriculture and Natural Resources appointed a 16-person ad hoc committee, the Committee on Air Emissions from Animal Feeding Operations, to evaluate the scientific information needed to address issues raised by EPA regarding CAA regulation of air emissions from animal feeding operations (AFOs) and the U.S. Department of Agriculture aid to farmers in mitigating the effects of air emissions with modified agricultural practices. One of the findings of that Committee was, in part, direct measurements of air emissions at all AFOs are not feasible. Nevertheless, measurements on a statistically representative subset of AFOs are needed. --------------------------------------------------------------------------- III. Summary of This Action A. What Is the Scope of This Proposed Rule? The scope of this proposed rule is limited to releases of hazardous substances to the air from animal waste at farms. Specifically, the Agency is proposing an administrative reporting exemption from the CERCLA section 103 and EPCRA section 304 notification requirements as implemented in 40 CFR 302.6 and 302.8 and 40 CFR 355.40, respectively. The scope of this proposed rule is intended to include all hazardous substances that may be emitted to the air from animal waste at farms. (See Section I.D. for further discussion of which hazardous substances we are proposing to include within the administrative reporting exemption.) B. Proposed Definitions In proposing this rule, the Agency believes it is important to provide clarity with respect to the scope of the proposed reporting exemption. Therefore, the Agency is proposing definitions for animal waste and farm (to be added to the Code of Federal Regulations) that only pertains to regulations promulgated pursuant to CERCLA section 103 and EPCRA section 304, specifically 40 CFR 302.3 (definitions) and 40 CFR 355.20 (definitions). Animal Waste--means manure (feces, urine, other excrement, and bedding, produced by livestock that has not been composted), digestive emissions, and urea. The definition includes animal waste when mixed or commingled with bedding, compost, feed, soil and other materials typically found with animal waste. The Agency is not aware of any existing definition for animal waste and thus, seeks comment from the public on the appropriateness, clarity and completeness of this definition. The Agency also is limiting the proposed reporting exemption to animal waste that is generated on farms, and is proposing a specific definition for farm under this proposal. For this proposed exemption only, EPA defines farm, by using the definition found in the National Agricultural Statistics Service (NASS) Census of Agriculture, and adopting it. Also, the Agency recognizes that Federal and state research farms utilizing farm animals are subject to the conditions experienced on other farms; therefore, EPA proposes to include Federal and state poultry, swine, dairy and livestock research farms. Farm--means (a.) any place whose operation is agricultural and from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year. Operations receiving $1,000 or more in Federal government payments are counted as farms, even if they have no sales and otherwise lack the potential to have $1,000 or more in sales; or, (b.) a Federal or state poultry, swine, dairy or livestock research farm. EPA seeks comment on the proposed definition for a farm, and whether an alternative definition may be more appropriate. In addition, the Agency is aware that animal waste also is generated at other facilities, such as zoos and circuses. Because the focus of this proposal is on animal waste generated or found at farms, we are not proposing to expand the reporting [[Page 73704]] exemption beyond such facilities. However, the Agency requests comment on whether the reporting exemption should be expanded to other types of facilities that also generate animal waste, and if so, what other types of facilities should be included in the reporting exemption. Any alternative approaches presented must include an appropriate rationale and supporting data in order for the Agency to be able to consider them for final action. C. What Is Not Included Within the Scope of This Proposed Rule? As noted previously, this administrative reporting exemption is limited in scope to those releases of hazardous substances to the air from animal waste at farms. EPA is not proposing to exempt from CERCLA section 103 or EPCRA section 304 notification requirements for releases of hazardous substances from animal waste to any other environmental media or at any other facilities other than farms (i.e., meat processing plants, slaughter houses, tanneries). In addition, EPA is not proposing to exempt from CERCLA section 103 or EPCRA section 304 notification requirements of any release of hazardous substances to the air from any source other than animal waste at farms. The Agency believes that there could be releases to the air from other sources of hazardous substances at farms where an emergency response to that release may be possible. For example, EPA is not proposing to exempt ammonia releases from ammonia storage tanks at farms. In addition, notification of a release of a hazardous substance, which meets or exceeds its RQ, from animal waste to any environmental media (other than air) is still required under this proposal. Thus, notification that there was a release of a hazardous substance that meets or exceeds the RQ where stored animal waste is released into water (i.e., a lagoon burst) would still be required under this proposal. Such notifications would alert the government to an emergency situation that could pose serious environmental consequences if not immediately addressed. Hence, those releases to the environment would still be reportable at or above their RQ as they are more likely to result in a response action from Federal, state or local governments. No EPCRA statutory requirements, other than the emergency hazardous substance notification requirements under EPCRA section 304, are included within this proposal. The proposal does not limit the Agency's authority under CERCLA sections 104 (response authorities), 106 (abatement actions), 107 (liability), or any other provisions of CERCLA and EPCRA to address releases of hazardous substances from animal waste at farms. D. What Is EPA's Rationale for This Administrative Reporting Exemption? EPA's rationale for this administrative reporting exemption is based on the purpose of notifying the NRC, and SERCs and LEPCs when a hazardous substance is released, and then the likelihood that a response to that release would be taken by any government agency. Upon receipt of a notification from the NRC, EPA determines whether a response is appropriate. See 40 CFR 300.130(c). If it is determined that a response is appropriate, the NCP regulations describe the roles and responsibilities for responding to the release. Thus, the question that EPA considered is whether the Agency would ever take a response action, as a result of such notification, for releases of hazardous substances to the air from animal waste at farms. We believe not and, thus, are proposing to no longer require such reporting. This conclusion is based in part on EPA's experience.\7\ Specifically, to date, EPA has not initiated a response to any NRC notifications of ammonia, hydrogen sulfide, or any other hazardous substances released to the air where animal waste at farms is the source of that release. Moreover, we cannot foresee a situation where the Agency would take any future response action as a result of such notification of releases of hazardous substances from animal waste at farms because in all instances the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely. Typically, if a response is taken as a result of a release notification, the government may require monitoring or make recommendations to local officials regarding evacuations and shelter-in-place. While this may be an appropriate response to hazardous substances releases from tanks, pipes, vents or in train derailment situations where the emergency may result in acute exposures, the Agency does not believe that this is a necessary or appropriate response to the release of hazardous substances to the air from animal waste at farms. --------------------------------------------------------------------------- \7\ Notifications must still be made when and if hazardous substances are released to the air at farms from any other source (other than animal waste), as well as releases of any hazardous substances from animal waste to any other environmental media (i.e., soil, groundwater and surface water). --------------------------------------------------------------------------- Several states have indicated that such response actions are unlikely to be taken as a result of a notification of releases of hazardous substances from animal waste at farms. EPA received 26 comment letters from state and/or local emergency response agencies in its request for public comment on the 2005 petition from the National Chicken Council, National Turkey Federation, and U.S. Poultry & Egg Association (``poultry petition''). All of those commenters supported granting the poultry petition--that is, exempting from CERCLA and EPCRA reporting requirements for ammonia emissions from poultry operations. Generally, those agencies supported the petition because they are aware of the operations in their jurisdictions, were concerned about the resource implications of receiving the notifications (i.e., having to process the notifications), and would not conduct an emergency response as a result of the notifications. Thus, the comments received from state and/or local emergency response agencies is consistent with EPA's view. Furthermore, the Agency does not need to receive such notifications in order to enforce applicable CWA, CAA, RCRA, and/or other applicable CERCLA and EPCRA regulations at farms. EPA still retains those enforcement authorities to address threats to human health and the environment. We estimate that the private sector, state and local, and the Federal governments spend approximately three hours per release to prepare and process episodic notifications and 24.5 hours to process continuous release notifications.\8\ --------------------------------------------------------------------------- \8\ For episodic releases, this estimate was calculated using the burden hours described in the Information Collection Requests 1049.10 and 1395.06 for episodic releases of hazardous substances to the NRC and emergency notifications to SERCs and LEPCs. For continuous releases, this estimate was calculated using the burden hours described in the Information Collection Request 1445.06 for continuous release reporting requirements. Supporting statements for both information collection requests are available in the Superfund Docket, EPA-HQ-SFUND-2007-0469. --------------------------------------------------------------------------- Based on these reasons, the Agency believes it is appropriate to propose to eliminate the reporting requirement under CERCLA section 103 and EPCRA section 304 for hazardous substances released to the air at farms where the source of those hazardous substances is animal waste. Nevertheless, the Agency solicits comments on whether there might be a situation where a response would be triggered by such a notification of the release of hazardous substances to the air from animal waste [[Page 73705]] at farms, and if so, what an appropriate response would be. Any comments that would support such an action should include an appropriate rationale in order for the Agency to be able to consider it for final action. E. What Are the Economic Impacts of This Administrative Reporting Exemption? This proposed administrative reporting exemption will reduce the costs of complying with CERCLA section 103 and EPCRA section 304 for those farms that release hazardous substances to air from animal waste. Entities that are expected to experience a reduction in burden and cost include both the farms that are no longer required to report those releases, as well as the Federal, state and local governments responsible for receiving the reports. The economic analysis completed for this proposed rule is available in the docket for this rulemaking and is based on the underlying economic analyses that were completed for the regulations that established the notification requirements.\9\ We estimate that this proposed rule will reduce burden on farms associated with making notifications under CERCLA section 103 and EPCRA section 304 by approximately 3,432,000 hours over the ten year period beginning in 2009 and associated costs by approximately $160,173,000 over the same period. We estimate that this proposed rule will also reduce burden on Federal, State and local governments responsible for receiving and processing the notifications under CERCLA section 103 and EPCRA section 304 by approximately 161,000 hours over the ten year period beginning in 2009 and associated costs by approximately $8,109,000 over the same period. In evaluating the potential burden and cost savings to those farms that would no longer be required to make notifications under CERCLA section 103 and EPCRA section 304 and the government entities that are no longer required to receive and process such notifications, we used the same universe as used in the 2003 CAFO Rule (see 68 FR 7176, Feb 12, 2003). We also assumed that over the ten year period (2009-2018) that there would be a declining number of CAFOs; however, some of those operations would increase in size. --------------------------------------------------------------------------- \9\ The following documents are available in the Superfund Docket, EPA-HQ-SFUND-2007-00469: Regulatory Impact Analysis of Reportable Quantity Adjustments Under Sections 102 and 103 of the Comprehensive Environmental Response, Compensation, and Liability Act, Volume 1 (March 1985); Regulatory Impact Analysis in Support of Rulemaking Under Sections 302, 303, and 304 of Title III of the Superfund Amendments and Reauthorization Act of 1986 (April 1987); and Economic Analysis in Support of the Continuous Release Reporting Regulation Under Section 103(f)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (April 1990). --------------------------------------------------------------------------- IV. Statutory and Regulatory Reviews A. Executive Order 12866 (Regulatory Planning and Review) Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a ``significant regulatory action.'' The Order defines ``significant regulatory action'' as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Pursuant to the terms of Executive Order 12866, it has been determined that this proposed rule is a ``significant regulatory action'' because it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this proposed rule to the Office of Management and Budget (OMB) for review and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. Rather, this proposed rule represents a reduction in burden for both industry and the government by administratively exempting the reporting requirement for releases of hazardous substances to the air from animal waste at farms. OMB has previously approved the information collection requirements contained in the existing regulations 40 CFR part 302 and 40 CFR part 355 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. and has assigned OMB control number 2050-0046, EPA ICR number 1049.10 for 40 CFR 302.6 (Episodic releases of oil and hazardous substances), OMB control number 2050-0086, EPA ICR number 1445.06 for 40 CFR 302.8 (Continuous release reporting requirements) and OMB control number 2050-0092, EPA ICR number 1395.06 for 40 CFR 355 (Emergency planning and notification). A copy of the OMB approved Information Collection Request (ICR) may be obtained by writing to: Director, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1700. EPA ICR number 1049.10 covers collection requirements for notification of episodic releases of oil and hazardous substances; EPA ICR number 1445.06 covers collection requirements for the continuous release reporting requirements; and EPA ICR number 1395.06 covers collection requirements for the notification requirements for releases of hazardous substances and extremely hazardous substances to both SERCs and LEPCs. Each of these information collections are affected by this proposed rule. However, this proposed rule represents a reduction in the burden for both industry and the government through an administrative reporting exemption from those reporting requirements. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies [[Page 73706]] that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives ``which minimize any significant economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This rulemaking will relieve regulatory burden because we propose to eliminate the reporting requirement for releases of hazardous substances to the air from animal waste at farms. We expect the net reporting and recordkeeping burden associated with reporting air releases of hazardous substances from animal waste at farms under CERCLA section 103 and EPCRA section 304 to decrease. This reduction in burden will be realized by small and large businesses. We have therefore concluded that this proposed rule will relieve regulatory burden for all affected small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ``Federal mandates'' that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or tribal governments or the private sector. That is, the proposal imposes no enforceable duty on any state, local or tribal governments or the private sector; rather, this proposed rule will result in burden reduction in the receipt of notifications of the release to the air of hazardous substances, primarily ammonia and hydrogen sulfide, from animal waste at farms. Additionally, EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. This proposed rule reduces regulatory burden and the private sector is not expected to incur costs exceeding $100 million. Thus, the proposal is not subject to the requirements of Sections 202 and 205 of UMRA. E. Executive Order 13132 (Federalism) Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ``meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.'' ``Policies that have federalism implications'' is defined in the Executive Order to include regulations that have ``substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.'' This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. There are no state and local government bodies that incur direct compliance costs by this proposed rulemaking. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comment on this proposed rule from state and local officials. F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) Executive Order 13175, entitled ``Consultation and Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ``meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' This proposed rule does not have tribal implications, as specified in Executive Order 13175. This proposed rule does not significantly or uniquely affect the communities of Indian tribal governments, nor would it impose substantial direct compliance costs on them. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks) The Executive Order 13045, entitled ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be ``economically [[Page 73707]] significant'' as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866. H. Executive Order 13211 (Energy Effects) This proposed rule is not a ``significant energy action'' as defined in Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This proposed rule will reduce the burden associated with the notification of releases to air of hazardous substances from animal waste at farms. I. National Technology Transfer and Advancement Act of 1995 (``NTTAA'') Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. As discussed in the Background section of the preamble for this proposed rule, the adjusted RQs do not reflect the determination that a release of a substance will be hazardous at the RQ level and not hazardous below that level. Instead, the RQs reflect the Agency's judgment of which releases should trigger notification to the federal government so that the government may assess to what extent, if any, a federal removal or remedial action may be necessary. In addition, the requirement to notify the government under CERCLA section 103 and EPCRA section 304 does not require the notifying entity to take any specific action to address the release. Therefore because the notification is not specifically designed to protect human health or the environment and EPA has determined that a response action would be unlikely, EPA does not believe that exempting these releases from CERCLA section 103 and EPCRA section 304 notification requirements will have a disproportionately high and adverse human health or environmental effect on minority or low-income populations. This proposed rule addresses information collection requirements for CERCLA section 103 and EPCRA section 304. No EPCRA programs, other than the emergency notification program under EPCRA section 304, are included in this proposal and the Agency is not proposing to limit CERCLA sections 104 (response authorities), 106 (abatement actions), 107 (liability), or any other provisions of CERCLA through this proposed rulemaking. The Agency also retains its authority to apply existing statutory provisions in its efforts to prevent minority and or low-income communities from being subject to disproportionately high and adverse impacts and environmental effects. We therefore have determined that this proposal does not have a disproportionately high and adverse human health or environmental effects on minority or low- income populations. List of Subjects 40 CFR Part 302 Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. 40 CFR Part 355 Air pollution control, Chemicals, Disaster assistance, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Dated: December 20, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION 1. The authority citation for part 302 continues to read as follows: Authority: 42 U.S.C. 9602, 9603, 9604; 33 U.S.C. 1321 and 1361. 2. Section 302.3 is amended by adding in alphabetical order the definitions of ``Animal waste'' and ``Farm'' to read as follows: Sec. 302.3 Definitions. * * * * * Animal Waste means manure (feces, urine, other excrement, and bedding, produced by livestock that has not been composted), digestive emissions, and urea. The definition includes animal waste when mixed or commingled with bedding, compost, feed, soil and other typical materials found with animal waste. * * * * * Farm means: (1) Any place whose operation is agricultural and from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year. Operations receiving $1,000 or more in Federal government payments are counted as farms, even if they have no sales and otherwise lack the potential to have $1,000 or more in sales; or (2) A Federal or state poultry, swine, dairy or livestock research farm. * * * * * 3. Section 302.6 is amended by adding paragraph (e)(3) to read as follows: [[Page 73708]] Sec. 302.6 Notification requirements. * * * * * (e) * * * (3) Releases to the air of any hazardous substance from animal waste at farms. * * * * * PART 355--EMERGENCY PLANNING AND NOTIFICATION 4. The authority citation for part 355 continues to read as follows: Authority: 42 U.S.C. 11002, 11004, and 11048. 5. Section 355.20 is amended by adding in alphabetical order the definitions of ``Animal waste'' and ``Farm'' to read as follows: Sec. 355.20 Definitions. * * * * * Animal Waste as used in Sec. 355.40 only, animal waste means manure (feces, urine, other excrement, and bedding, produced by livestock that has not been composted), digestive emissions, and urea. The definition includes animal waste when mixed or commingled with bedding, compost, feed, soil and other typical materials found with animal waste. * * * * * Farm as used in Sec. 355.40 only, farm means: (1) Any place whose operation is agricultural and from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year. Operations receiving $1,000 or more in Federal government payments are counted as farms, even if they have no sales and otherwise lack the potential to have $1,000 or more in sales; or (2) A Federal or state poultry, swine, dairy or livestock research farm. * * * * * 6. Section 355.40 is amended by adding paragraph (a)(2)(viii) to read as follows: Sec. 355.40 Emergency release notification. (a) * * * (2) * * * (viii) Any release to the air of a hazardous substance from animal waste at farms. * * * * * [FR Doc. E7-25231 Filed 12-27-07; 8:45 am] BILLING CODE 6560-50-P

What to Expect from TSCA Reform Now

12/04/2010 — By jeanmariec

The new Safe Chemicals Act 2010, introduced by Senator Frank Lautenberg (D-New Jersey), this year, to the Subcommittee on Superfund, Toxics and Environmental Health, is a long-overdue reform of the 1976 Toxic Substances Control Act. If passed, the Safe Chemicals Act will compel manufacturers to develop and submit safety-testing data on chemicals produced. Only those chemicals shown to be safe, according to the EPA's classification regimen, will be allowed on the market. This is where costs can rise for the small business owner and also put a dent in larger businesses.

Cal Dooley, CEO of ACC, Interviewed

After the lame-duck session of Congress convened, on November 15, 2010, Cal Dooley, CEO of the American Chemical Council, gave an interview in which he stated that the new, more Republican Congress will influence how TSCA reform and other bills affecting the chemical industry will be positioned. From the ACC perspective, a commitment to safety must be balanced with ensuring that any policies that are developed by the EPA and other agencies allow the US chemical industry to be at the forefront of developing innovations and technologies. Dooley explained that this approach is crucial to maintaining the chemical manufacturing base in the United States.

The ACC Board of Directors considers TSCA reform one of their highest priorities and the ACC is building a strong alliance of stakeholders committed to advancing the principles of the Safe Chemical Act and others that are proposed by the Environmental Protection Agency (EPA). At the same time, in citing EPA reform, Dooley said that the ACC will urge the agency to not produced rules so onerous that they impede investment in the United States. In light of the Safe Chemicals Act, ACC has some concerns that EPA perhaps has not yet struck the right balance.

Safe Chemicals Act 2010 and the 111 th Congress

This year, the U.S. Senate Committee on Environment and Public Works headed by Senator Lautenberg, collected testimony to support the passage of Safe Chemicals Act 2010 by the 111th Congress. Among other topics discussed was that of CNN's Dr. Sanjay Gupta and other panel members titled: “Risks of Toxic Chemicals to Children's Health.” The overall impetus of the TSCA reform bill is to take preventative measures against the detrimental consequences of ubiquitous chemical use. One of the key mandates of the Safe Chemicals Act is to encourage progress in the green chemistry arena towards minimizing toxic risk from chemicals.

Minimizing toxic risk from chemicals will require incentives to businesses with innovative technology, which is good news for all parties in the chemical industry.

The lame-duck session of the 111th Congress is to consider several pieces of legislation before the entry of the new 112th Congress this coming January. For energy and environment legislation, the House has already passed a cap-and-trade bill and an oil spill response bill. Another energy-related bill that is likely to pass during the lame-duck session is a proposal to encourage the production of electric and natural gas vehicles, because the bill has bipartisan support. Senate Majority Leader Harry Reid (D-Nev.) has scheduled a cloture vote for Wednesday on the bill promoting the Natural Gas and Electric Vehicles Act of 2010.

But it appears that other major bills, including the Safe Chemicals Act, TSCA reform, will be left for next year's Congressional sessions. Until it is passed, it is difficult for us to estimate the financial burden for meeting the amended TSCA legislation, but it could range from thousands to millions of dollars, depending on the size of the manufacturer and the amount of chemicals in the inventory of the specific industry.

The Six Key Mandates of the Safe Chemicals Act of 2010:

1- Requires manufacturers to develop and submit a minimum data set for each chemical that they produce to the EPA.

2- The EPA will identify and prioritize chemicals by their likely risk, based on their use in production.

3- Besides setting up a chemical risk triage system (described above), the bill allows the EPA to manage and ban high-risk chemicals.

4- The burden of proving the safety of a chemical rests on chemical manufacturers and users rather than on the government. The chemical cannot be sold unless EPA's safety standards are met.

5- The bill establishes a public database to house the chemical information submitted to the EPA and the decisions made by the EPA about chemicals.

6- The bill requires the EPA to establish a program to develop incentives for safer alternatives. A network of research centers will be established to conduct green chemistry research and alternatives analysis. The bill will allow new, “green” chemicals into the market using an expedited safety review process.

By JeanMarie Calvillo, Ph.D., Safetec Regulatory Specialist

Home > NASPAA Initiatives > Community Engagement Projects >

Small Community Outreach Project for Environmental Issues (SCOPe).

SCOPe is a community-based initiative to engage elected officials and staff of local governments in discussions contributing to early regulatory development. SCOPe was created to bridge the gap between small entities and federal regulators, and findings are widely disseminated to policy makers, rule writers and other interested organizations. SCOPe meetings and discussions are led by faculty in NASPAA graduate programs of public affairs and administration and/or local government institutes. These programs and institutes regularly provide development, training, and evaluation services to local governments. The SCOPe outreach network is built on this extraordinary resource and the trusted relationships that exist between local governments and NASPAA programs. As neutral experts with a public service mission SCOPe teams bring the highest caliber of professional expertise to the early consultation process.

From 1998 until 2004, SCOPe was funded through a cooperative agreement between the U.S. EPA's Office of Policy, Economics, and Innovation and NASPAA. Current SCOPe activity is funded by a contract between the EPA's Office of Policy, Economics, and Innovation, and NASPAA, and focuses on e-rulemaking capabilities in small communities.

Project Reports [ view/download in Acrobat Reader Format ]

EPA Delivers Holiday ‘Sucker Punch' to U.S. Economy

Warner Todd Huston | December 4, 2010 

From the Heartland Institute…

While we were all preparing to see family and friends over the Thanksgiving, Obama's Environmental Protection Agency was exploiting the holiday lull to sneak through new regulatory “guidance” that threatens to inflict further damage to the U.S. economy.  The Heartland Institute has been on the case since the EPA gave the public just 15 days (with a long holiday weekend smack dab in the middle) to weigh in on the process. You can see all of Heartland's coverage at  this link .

A post at Heartland's policy blog, Somewhat Reasonable , also outlines the situation. I pass this information along in case you want to share with your readers this attempt to get “cap” without the “trade” implemented by bureaucratic fiat, after the real bill flopped in Congress. You can also get a sense of what's happening by reading below my signature.

Jim Lakely
Communications Director
The Heartland Institute

Heartland Institute Explains the Unconstitutional Power Grab

While you were getting ready for the Thanksgiving holiday, the Environmental Protection Agency was cooking up a turkey of its own — a new “permitting guidance for greenhouse gases” that is unconstitutional and would extend the reach of Obama's EPA into how nearly every American business may operate. It's nothing less than a sucker punch to the U.S. economy, and an end-run around failed “cap-and-trade” bills that would deliver cap without the trade.

The Heartland Institute  worked over the holiday weekend to draw attention to this outrage, and will continue to do so in the days and weeks ahead.

Check out Heartland's coverage of this issue by  clicking here .

Heartland's senior fellow for legal affairs, Maureen Martin, summarizes this bureaucratic power grab:

On November 15, Obama's EPA issued a 100-page, highly technical “guidance” document proposing that as of January 2, 2011, large sources of greenhouse gas emissions—such as power plants, steel operations, and petroleum refineries—be required to obtain preconstruction and operating permits limiting their greenhouse gas emissions and to install the “best available” technology to do so.

Comments on these new rules are due on or before December 1, 2010, a 14-day period interrupted by the four-day Thanksgiving holiday. And EPA says it will review only comments on technical aspects of the new rule.

Previously, no such permits were needed, and no greenhouse gas limits existed. It is widely agreed such new rules will drive up the costs of electricity, iron and steel, gasoline, and anything else produced by large operations, with these costs passed along to consumers already staggered by a jobless “recovery” from the recession.

James M. Taylor, Heartland's senior fellow for environmental policy, has also weighed in:

Forcing power plants to purchase and implement the “best available” technology to reduce greenhouse gas emissions every time a plant is built or any kind of significant maintenance or renovations occur, however, means by definition that electricity prices are going to start rising in a manner that will make the economy-shocking energy price spikes during the summer of 2008 seem downright wimpy by comparison.

For more information on this subject, click here. If you'd like to interview any of Heartland's environmental policy experts for a story, please contact Tammy Nash ( ) or Jim Lakely ( ) via email, or call 312/377-4000.

The Heartland Institute is a 26-year-old national nonprofit organization based in Chicago. Our mission is to discover, develop, and promote free-market solutions to social and economic problems.

EPA Releases Interim Guidance on Institutional Controls for Public Comment
December 3, 2010
On November 30, the U.S. Environmental Protection Agency (EPA) published notice of its interim final
guidance, “Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing
Institutional Controls at Contaminated Sites” (Guidance). The Guidance provides agency personnel with
information and recommendations for planning, implementing, maintaining, and enforcing institutional
controls (ICs) for Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), Brownfields, federal facility, underground storage tank (UST), and Resource Conservation
and Recovery Act (RCRA) site cleanups. This Guidance has the potential to affect both ongoing and
completed cleanups done under these federal programs. Comments on this interim final Guidance are
due to EPA by January 14, 2011.
ICs are nonengineered instruments used to minimize the potential for human exposure to contamination
and to protect the integrity of a response action. ICs include administrative and legal controls such as
easements, zoning controls, and deed notices.
This Guidance seeks to clarify the roles and responsibilities of government agencies and private parties
in implementing and maintaining ICs at contaminated properties. To that end, the Guidance contains
recommendations for full life-cycle planning of ICs; an evaluation of their effectiveness; language
drafting considerations; implementation of specific proprietary, governmental, and informational
controls; monitoring and reporting to maintain ICs; and the enforcement of proprietary and
governmental controls.
The Guidance spans 27 pages and discusses a myriad of considerations.1 The following are highlights
from the Guidance:
 Full life-cycle planning recommendations. The Guidance recommends full life-cycle planning
during remedy selection that should include input from outside sources in order to ensure that the
most appropriate response, including any ICs, is selected. Site leads are encouraged to document,
in writing, any arrangements between parties for the implementation, maintenance, and
1 The full version of the Guidance is located online at

[Federal Register: November 30, 2010 (Volume 75, Number 229)] [Notices] [Page 74045-74046] From the Federal Register Online via GPO Access [] [DOCID:fr30no10-78] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-SFUND-2010-0894; FRL-9233-7] Guidance on Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of availability. ----------------------------------------------------------------------- SUMMARY: EPA is interested in soliciting individual stakeholder input regarding the issues addressed in the EPA interim final guidance, titled Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites. The Agency will consider the information gathered from this notice and other sources before finalizing this guidance. DATES: Comments must be received on or before January 14, 2011, 45 days after publication in the Federal Register. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- SFUND-2010-0894 by one of the following methods: Follow the on-line instructions for submitting comments. E-mail: Fax: (202) 566-9744 Mail: U.S. Environmental Protection Agency; EPA Docket Center, Superfund Docket, Mail Code 28221T; 1200 Pennsylvania Avenue, NW., Washington, DC 20460 Hand Delivery: EPA Docket Center--Public Reading Room; EPA West Building, Room 3334; 1301 Constitution Avenue, NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND- 2010-0894. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at , including any [[Page 74046]] personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through or . The http:// website is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at . Docket: All documents in the docket are listed in the http:// index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in or in hard copy at the EPA Docket Center--Public Reading Room, EPA/DC, EPA West, Room 3334; 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Superfund docket is (202) 566-0276. FOR FURTHER INFORMATION CONTACT: Chip Love, phone: (703) 603-0695, e- mail: , Construction and Post Construction Management Branch, Assessment and Remediation Division, Office of Superfund Remediation and Technology Innovation (mail code 5204P), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. SUPPLEMENTARY INFORMATION: EPA's interim final guidance on Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites addresses some of the common issues that may be encountered during the cleanup process and provides recommendations on how ICs can complement other response actions (such as engineered response action components) at a site. This interim final guidance also provides an overview of EPA's policy regarding the roles and responsibilities of the parties involved in the various aspects of planning, implementing, maintaining, and enforcing institutional controls. The guidance is available at http:// . This guidance does not represent a regulation, and is not subject to the formal provisions of the Administrative Procedures Act. However, EPA recognizes the potential importance of this guidance to its Federal, state, local, and tribal partners, to the regulated community, and to the public, and therefore through this Federal Register notice seeks public input on the topics addressed in this interim final guidance and its implementation. This public input opportunity will be available until January 14, 2011. EPA intends to evaluate whether any changes to the interim final guidance are appropriate and expects to issue a final version of this guidance. For purposes of this Federal Register notice, EPA in particular seeks input on the following: Are there ways EPA can better evaluate the capacity, willingness, and financial assurance of state, tribal and local governments to assist with ICs and engineering controls when such controls are necessary at a site? What potential barriers exist with respect to state, local, and tribal government involvement with ICs and what tools or possible solutions could EPA promote to improve the awareness of and involvement in IC activities? How can site managers better engage and involve affected community stakeholders and local land use decision-makers concerning ICs that may be needed and relied upon to complement other response actions (i.e., engineered response action components) at cleanup sites? How can information concerning ICs and the underlying land and/or resource use restrictions be made more available to local land use decision-makers? How can EPA better identify and account for the full life cycle costs of ICs? EPA intends to accept input on the interim final guidance until January 14, 2011. EPA also intends to fully consider all public input in evaluating whether changes to the interim final guidance are appropriate, and to issue a final version of this guidance. Dated: November 23, 2010. Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response. [FR Doc. 2010-30111 Filed 11-29-10; 8:45 am] BILLING CODE 6560-50-P

Ninth Circuit: Anti-Injunction Act, CERCLA Do Not Bar State Court Environmental Claims

Posted on December 2, 2010 by Teeple Leonard & Erdman

In a recent case out of Montana, the question was raised whether, in an environmental case, a purported polluter can obtain an injunction in Federal Court against a subsequently filed State Court proceeding.  The Ninth Circuit's answer was a resounding “no.”   ( Montana v. BNSF Railway Company )

BNSF Railway Company and its predecessors in interest operated a railroad maintenance and fueling facility near Livingston, Montana.  In 1988, the State of Montana, alleging that the land upon which the facility was located was contaminated with diesel fuel and other contaminants, filed an environmental suit against BNSF in Federal Court, which included a claim under the Montana “little CERCLA” law.  (“CECRA”, Mont. Code Ann. Sec. 75-10-705, et. seq.)

In 1990, BNSF and the State entered into a consent decree requiring BNSF to conduct a remedial investigation, and laying out a plan for implementation of a final remedy.  The consent decree did not apply to any claims by persons or parties other than those named in the decree.  As late as November 2010, the State of Montana continues to pursue remediation under the consent decree.

In 2007, 152 private plaintiffs filed claims against BNSF in Montana state court alleging contamination of private property and seeking various remedies.  BNSF then moved in Federal court to enjoin the prosecution of the private parties' state court actions.  The state court plaintiffs opposed BNSF's motion, citing the Federal Anti-Injunction Act, which prohibits Federal courts from entering injunctions restraining state court proceedings, with the exception that Federal Courts may enjoin state court proceedings in order to protect or effectuate the Federal court's judgments.

In this case, BNSF argued that the private parties' investigation and restoration claim was identical to the State's earlier claim in the consent decree litigation, and since those claims and issues had already been decided, a conflict between the Federal court and the state court cases was possible.  In the event of such a conflict, or possible conflict, the exception to the anti-injunction prohibition could be applicable.

The Ninth Circuit panel held, however, that there was no conflict between the Federal consent decree case and the state court cases.  Nothing in CERCLA, the Court said, pre-empts a state court cause of action for environmental cleanup and/or damages.  Furthermore, the Court noted that the Federal and state court actions were not identical, therefore the Federal action did not decide the issues presented by the subsequent state court claim.

While the ruling in this case is not remarkable, it represents another in a long string of cases that hold that, in most situations, state court actions for environmental clean-up and/or monetary damages are not pre-empted or precluded by prior or contemporaneous Federal cases involving the same sites and parties.

Agency Name

National Science Foundation


The Environmental Sustainability program supports engineering research with the goal of promoting sustainable engineered systems that support human well-being and that are also compatible with sustaining natural (environmental) systems. These systems provide ecological services vital for human survival. The long-term viability of natural capital is critical for many areas of human endeavor. Research in Environmental Sustainability typically considers long time horizons and may incorporate contributions from the social sciences and ethics.This program supports engineering research that seeks to balance society's need to provide ecological protection and maintain stable economic conditions. There are four principal general research areas which are supported, but others can be proposed: * Industrial Ecology * Green Engineering * Ecological Engineering * Earth Systems EngineeringTopics of interest in Industrial Ecology include advancements in modeling such as life cycle assessment, materials flow analysis, input/output economic models, and novel metrics for measuring sustainable systems. Understanding materials flow and taking advantage of such understanding to substitute less toxic, longer lived materials are important areas for consideration. The effects of substituted materials on waste streams can be explored. Innovations in industrial ecology are encouraged. Engineering tools for estimating costs and ramifications of sustainable development must be developed, tested, and evaluated.In Green Engineering, research is encouraged to advance the sustainability of chemical processes, other manufacturing processes, green buildings, and infrastructure. Many programs in the Engineering Directorate support research in environmentally benign manufacturing or chemical processes. The Environmental Sustainability program supports research that would affect more than one chemical or manufacturing process or that takes a systems or holistic approach to green engineering for infrastructure or green buildings. Of particular interest is the next generation of water and wastewater treatment that will dramatically decrease material and energy use, consider new paradigms for delivery of services, and promote longer life for engineered systems. Improvements in distribution and collection systems that will advance smart growth strategies and ameliorate effects of growth are research areas that are supported by Environmental Sustainability. Innovations in prevention and management of storm water, wastewater technology, indoor air quality, recycling and reuse of drinking water, and other green engineering techniques to support sustainable construction projects may also be fruitful areas for research.Ecological Engineering topics should focus on the engineering aspects of restoring ecological function to natural systems. Engineering research in enhancement of natural capital to foster sustainable development is encouraged. Many communities are involved in stream restoration, revitalization of urban rivers, and rehabilitation of wetlands that require engineering input. What is the fundamental engineering knowledge that is necessary for ecological engineering to function sustainability?Earth Systems Engineering considers aspects of large scale engineering research that involve mitigation of greenhouse gas emissions, adaptation to climate change, and other global scale concerns.All proposed research should be driven by engineering principles, and be presented explicitly in an environmental sustainability context. Proposals should include involvement in engineering research of at least one graduate student, as well as undergraduates. Incorporation of aspects of social, behavioral, and economic sciences is welcomed.The duration of unsolicited awards is generally one to three years. The average annual award size for the program is $100,000. Any proposal received outside the announced dates will be returned without review.The duration of CAREER awards is five years. The submission deadline for Engineering CAREER proposals is in July every year. Please see the following URL for more information: for Conferences, Workshops, and Supplements may be submitted at any time, but must be discussed with the program director before submission.Grants for Rapid Response Research (RAPID) and EArly-concept Grants for Exploratory Research (EAGER) replace the SGER program. Please note that proposals of these types must be discussed with the program director before submission. Further details are available in the PAPPG download, available below. Please refer to the Proposal and Award Policies and Procedures Guide (PAPPG), January 2009, (NSF 09-1) when you prepare your proposal.

Link to Full Announcement

NSF Program Description 09-7643

Bill Ruckelshaus on EPA: 'Battered Agency Syndrome?'

Dec 4 2010, 4:45 PM ET

CAMBRIDGE, Mass. -- With an angry crop of conservative Republicans about to grab the reins of power in the House of Representatives, the Environmental Protection Agency is once again in danger of  "battered agency syndrome," said Bill Ruckelshaus, the moderate Republican who headed the 40-year-old agency during the Nixon and Reagan administrations.

As the respected granddaddy and founding administrator of EPA, Ruckelshaus, now 78-years-old, is worried about his offspring at a time when some members of his own party ran for Congress on a platform of abolishing the controversial regulatory agency. Incoming House committee chairs plan endless oversight hearings to rake EPA over the coals on the hot button issue of climate change. With congressional gridlock over greenhouse gas legislation, the Obama administration is under scrutiny as to how far it will go in regulating the problem using EPA's existing powers under the Clean Air Act.

EPA seems to be a lightning rod for the anti-government fervor that strikes Washington on a regular basis, Ruckelshaus said in an interview Friday at a Harvard University conference on the agency's 40th birthday. For veterans of environmental battles of yore, to some degree "it's déjà vu all over again" (thanks Yogi!). "It's cyclical. The more active EPA is, the more controversy," said Ruckelshaus, who was appointed by President Nixon as the first administrator when the agency opened for business on December 3, 1970.

Later, after a Newt Gingrich-led backlash against the Clinton administration ushered in a Republican-controlled House with anti-regulatory sentiments in the 1994 mid-term elections, Ruckelshaus expressed concern that "violent swings" in power were having a "devastating effect on EPA."

His warnings, in a 1995 essay published on the agency's 25th birthday, are highly reminiscent of where we are today:

"We should be able to recognize certain repeating patterns. And so we do. We recognize, as perhaps the newer members of Congress do not, that the current rhetorical excess is yet another phase in a dismaying pattern. The anti-environmental push of the nineties is prompted by the pro-environmental excess of the late eighties, which was prompted by the anti-environmental excess of the early eighties, which was prompted by the pro-environmental excess of the seventies, which was prompted.... But why go on. The pattern is quite clear. The new Congress may believe that it is the vanguard of a permanent change in attitude toward regulation, but unless the past is no longer prologue, the pendulum will swing back, and we will see a new era of pro-environmental movement in the future."

As he said then, the constant pendulum swings take their toll: "The impact of all this on the agency is devastating. EPA suffers from battered agency syndrome.... Why is EPA now the agency everyone loves to hate?"

In his talk Friday, Ruckelshaus recalled the environmental fervor of 1970, when "we had the smell, touch, and feel type of pollution" with visibly dirty air and water that compelled both the Nixon administration and Congress to act. He noted that Nixon talked about "making peace with nature" in his 1970 State of the Union address, adding, "Can you imagine a conservative Republican saying that today?"

Sixteen major pieces of environmental legislation to clean up the air, water, solid waste, protect endangered species, and so forth, were enacted during the Nixon administration, said Ruckelshaus, all with strong bipartisan support. EPA was created to carry them out. "Citizens were demanding something be done, and the government was responding," he said.

But Nixon himself was hardly an environmentalist. In fact, Ruckelshaus said, Nixon became increasingly disillusioned with his own environmental initiatives as the 1972 election neared and felt Congress was going too far. At a celebration of Earth Day's 40th anniversary last spring at the Nixon library, Ruckelshaus saw some of the presidential papers from that era, including a Clean Water Act document on which Nixon had handwritten "bullshit" in a marginal note. Nonetheless, Nixon "had the most extraordinary record any President has ever had," he said.

It is Ruckelshaus himself, however, who has gained rock star status in the environmental world for his steady and constant leadership over the past four decades and his record of high integrity and bipartisanship in times of crisis. At the end of the Nixon presidency, as the Watergate scandal engulfed Washington, Ruckelshaus took over as acting director of the FBI and then moved to the Justice Department, where he famously resigned during the "Saturday Night Massacre" rather than carry out Nixon's orders to fire Watergate special prosecutor Archibald Cox. In 1983, after Reagan Administration EPA head Anne Gorsuch resigned amidst controversy, Ruckelshaus rode back into Washington to become the agency's 5th Administrator.

Today, Ruckelshaus, a longtime Seattle resident in the other Washington who backed Obama for President in 2008, is concerned once again that EPA finds itself in the political crosshairs. Asked by this correspondent how serious the threat to EPA is this time around, he responded cryptically that he was doing "threat analysis to figure out how big the threat is," later explaining that he was privately consulting with several former EPA administrators about the depth of the agency's current troubles.

Wearing a black jacket with tan patches on the elbows, the lanky, grey-haired lawyer drew a standing ovation from the crowd attending the EPA anniversary conference, which was organized by the Harvard University Center for the Environment as well as Harvard's schools of law, government, and public health. "We have made solid progress," Ruckelshaus said, "but we can't relax or begin to slide backwards.... We've got a lot left to do."

He was largely preaching to the choir in a pro-environment audience filled with many present and former EPA alums. However, one of the speakers, C. Boyden Gray, a longtime Washington insider and White House legal counsel to President George H.W. Bush, cautioned in an interview that current environmental concerns in the nation's Capitol were not just on the Republican side of the aisle. Gray noted that Midwestern and Southern Democrats had also questioned the Senate climate change legislation and that Sen. Jay Rockefeller (D-WV) was among those seeking to delay EPA action on greenhouse gas emissions. "Politically it's something EPA just ought to wait on," said Gray, who championed market initiatives to curb acid rain and ozone-depleting chemicals in the early 90s.

But Lisa Jackson , the energetic 48-year-old chemical engineer who is EPA's 12th administrator, spoke proudly in her keynote address of the Obama administration's "aggressive environmental agenda" and her hopes to get bipartisan support to "meet on a common ground." Jackson, who worked her way up the EPA ranks for 16 years before going on to become New Jersey's environment commissioner, noted that the recent mid-term elections were "threatening to roll back EPA's efforts. " She contended that the "message last month was not that people want less environmental protection.... There is no evidence environmental protection hinders economic growth."

She delivered that message throughout the celebratory anniversary week, including a Wall Street Journal op-ed arguing that "a clean environment strengthens our economy." Jackson, who paid tribute to Ruckelshaus "as the standard every single administrator strives to meet," also drew a standing ovation following her talk.

One of those listening closely was 19-year-old Julia Mason, a Harvard sophomore majoring in environmental science and public policy who was energized after hearing "superstars" Ruckelshaus and Jackson talk. "I am absolutely concerned" about what is happening in Washington, she said. "With a lot of opposition, it's really difficult to accomplish anything."

Mason is part of a younger generation coming along to help carry out the grass roots environmental agenda, as college students did some 40 years ago. She found out that change isn't easy while working in her hometown of Alamo, CA to get solar panels installed in the schools there. Her take-home message: "Take small steps, be persistent and patient, and you can make progress."

Reg Stat is the EPA site of all the activity published by the Agency in the Federal Register covering the period between calendar years 2005-2009. The site offers summary statistics using statistical data in the form of charts, tables and brief summary overviews to inform the public about the types of documents published annually.

Total Volume of Published Documents


Total Federal Register Activity

Statistics on the total number of documents published each year in the Federal Register

  • By EPA Program Offices and Regions
  • By Regulatory Stages (Notices, Proposals, Final Rules)
  • By Type

Key Statistics on "Administrator-Signed Rules"

The focus of the site is to provide basic metrics on the more prominent rules signed by the EPA Administrator during the last five years. (Read the definition of "Administrator-Signed rules")


Distribution of Administrator-Signed Rules

Statistics on Administrator-Signed rules by EPA program office, Region, and year

  • By EPA Program Offices and Regions
  • By Regulatory Stages (Notices, Proposals, Final Rules)
  • By Frequency
  • Proposed and Finalized in Same CY

Development Time of Administrator-Signed Rules

Statistics on the time it takes to move from initiation to publication on a final rule

  • By EPA Program Offices
  • By Regulatory Stages
  • Histograms

Regulatory Review of Administrator-Signed Rules

Statistics on regulatory actions designated "significant" under EO 12866, "Regulatory Planning and Review"

  • By EPA Program Offices
  • Average and Median Review Times
  • Histograms

News Releases By Date

EPA Seeks Small Business Input on Financial Responsibility Requirements for Hard Rock Mining

Release date: 12/06/2010

Contact Information: Richard Yost,, 202-564-7827, 202-564-4355

WASHINGTON -- The U.S. Environmental Protection Agency (EPA) invites small businesses to participate in a Small Business Advocacy Review (SBAR) panel on a proposed rule that would establish financial responsibility requirements for classes of facilities within the hard rock mining industry. The requirements will help ensure that owners and operators of the facilities, not taxpayers, foot the bill for environmental cleanup.

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

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

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

More information:

Greenlaw from NRDC China , NRDC China Program, Beijing is a web resource created and operated by the Natural Resources Defense Council (NRDC) and the China Environmental Culture Promotion Association (CECPA). It is China's first web resource devoted to strengthening environmental protection in China through law, policy and the power of the public. NRDC is a leading international environmental group with offices in Beijing and various locations in the United States. CECPA is the leading organization in China focused on promoting environmental culture. If you have any feedback about our newsletter or the Greenlaw website, feel free to send us an e-mail at Visit our new English site at .

Who They Are

NRDC is the nation's most agressive action group of more than 350 lawyers, scientists and other professionals.

Their Priorities

  • Curbing Global Warming and Creating the Clean Energy Future
  • Reviving the World's Oceans
  • Defending Endangered Wildlife and Wild Places
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  • Fostering Sustainable Communities

Quick Facts

  • Founded: 1970
  • Mission: To safeguard the Earth: its people, its plants and animals and the natural systems on which all life depends. Read more
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  • Staff: 300+ lawyers, scientists and policy experts
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var articleheadline = "AstraZeneca raided in EC competition investigation";

AstraZeneca raided in EC competition investigation

By Sarah Arnott

Saturday, 4 December 2010

Europe's competition watchdog has raided a string of pharmaceutical companies including AstraZeneca over possible collusion in delaying the introduction of cheap, generic drugs.

AstraZeneca was the only company yesterday to admit to involvement in the inquiry – with regards to an ulcer and heartburn treatment called esomeprazole which the company sells branded as Nexium.

"We can confirm we are subject of inspections by certain competition authorities which relate to alleged practices regarding esomeprazole in Europe," a spokeswoman for AstraZeneca said yesterday. "We are co-operating with the authorities. AstraZeneca takes compliance with all laws seriously and has a fundamental commitment to doing business in an ethical and proper manner."

AstraZeneca was just one of several drugs companies subject to "unannounced inspections" by European and national regulators on 30 November.

The European Commission stressed that the raids were only a preliminary step in its investigations, and were not indications of guilt. But it said that its concerns, if born out, would constitute a violation of Europe's anti-trust rules which prohibit restrictive business practices.

The watchdog "has reason to believe" that the companies concerned "may have acted individually or jointly, notably to delay generic entry for a particular medicine", the Commission said in a statement yesterday.

European Union Competition Commissioner Joaquin Almunia backed up the commission's move in a speech in Brussels. "We have the responsibility to ensure that consumers are not charged unjustified bills for their medical needs," Mr Almunia said. "I will continue to enforce with determination competition rules in the pharmaceutical sector."

The competition authority's latest raids are part of a long-running European investigation into patent settlements in the drug industry.

Launching a series of investigations last January, the commission expressed concern that consumers' access to lower-priced medicines was being delayed or blocked "where an originator company pays of a generic competitor in return for delayed market entry of a generic drug".

Full patent protection does not run out until 2014 on Nexium – which was AstraZeneca's top-selling drug last year, grossing $5bn (£3.2bn) in worldwide sales. But "data exclusivity" expired in March – allowing rival drug companies to rely on AstraZeneca's research when filing for a licence to produce a generic copy of the drug (and take their chances with regards to the originator's intellectual property).

A number of companies in Germany and Spain have produced generic versions of esomeprazole in recent months. In Germany, AstraZeneca has sought injunctions against them, and the company is also defending against claims in other EU countries that the Nexium patents are invalid.

The raids this week are not AstraZeneca's first brush with Europe's anti-trust authorities. It has previously come under commission scrutiny for blocking or delaying market access to generic versions of its drugs and, in 2005, was ruled in breach of EU rules with regards to a similar drug called Losec and fined €60m (£51m).

Robert Vidal, at European law firm Taylor Wessing, said yesterday: "It is striking that the commission has chosen to initiate a new investigation and inflict more pain on the same company over a similar drug. The commission is confident that the law relating to 'market abuse' cases is on its side and it may be trying to make an example of companies like AstraZeneca in order to deter other companies from implementing similar practices."

AIG returns to bond market

By Nicole Bullock in New York

Published: December 1 2010 01:05 | Last updated: December 1 2010 03:24

AIG paid a premium on its return to the credit markets with its first bond sale since its rescue by the government two years ago.

The insurer sold $2bn of bonds with a $1.5bn tranche priced at a spread, or risk premium of 362.5 basis points over US Treasuries.

American International Group (AIG), Maiden Lane II and III


American International Group (AIG) is a large, diversified financial services company that, as of June 30, 2008, reported consolidated total assets of slightly more than $1 trillion. During the months prior to September 2008, short-term funding markets had come under severe stress, placing significant liquidity pressures on AIG that hindered its ability to obtain adequate funding from banking institutions or in the market, and threatened to prompt a default by the firm.

The potential failure of AIG during the financial crisis posed significant systemic risks: AIG's insurance subsidiaries were among the largest in the United States; state and local governments that had lent money to AIG might have suffered losses; retirement plans had purchased insurance from AIG; banks and insurance banks had large exposures to AIG; a default by AIG on its commercial paper likely would have disrupted the entire commercial paper market. These potential disruptions to financial markets and losses by other major financial institutions, at a time when the financial system was already under severe stress, likely would have resulted in a significant further reduction in the availability of credit to businesses and households, worsening the recession.

A range of programs to support AIG were authorized by the Federal Reserve under the authority of Section 13(3) of the Federal Reserve Act, which permitted the Board, in unusual and exigent circumstances, to authorize Reserve Banks to extend credit to individuals, partnerships, and corporations. The programs are administered by the Federal Reserve Bank of New York (FRBNY). In addition to the programs described below, AIG also obtained funding through the Commercial Paper Funding Facility .

AIG Revolving Credit Facility

On September 16, 2008, the Federal Reserve announced that it would lend to AIG to provide the company with the time and flexibility to execute a plan that would allow it to restructure to maximize its value. Initially, the FRBNY extended a line of credit to AIG for up to $85 billion. The revolving credit facility was established to assist AIG in meeting its obligations as they came due and to facilitate a process under which AIG would sell certain of its businesses in an orderly manner, with the least possible disruption to the overall economy.

Initially, under the terms of the agreement, interest was to accrue at a rate of the three-month Libor plus 850 basis points, with a floor of 350 basis points on the three-month Libor. The loan had a two-year maturity, and was collateralized by a substantial portion of the assets of AIG and its primary non-regulated subsidiaries as well as its equity interest in all of the regulated subsidiaries. The loan was expected to be repaid from the proceeds of the sale of the firm's assets. In consideration for the establishment of the credit facility, the AIG Credit Facility Trust, a trust established for the sole benefit of the U.S. Department of the Treasury, received a 79.9 percent equity interest in AIG.

On November 10, 2008, the Federal Reserve and the Treasury announced a restructuring of the government's support for AIG to enhance AIG's ability to repay the credit extension while retaining adequate time to dispose of its assets to achieve favorable returns. As part of the restructuring, the Treasury acquired $40 billion in newly issued preferred stock in AIG, using funding from the Troubled Asset Relief Program (TARP). In addition, the maturity of the loan from the FRBNY was extended to five years, and the maximum amount of credit available under the facility was reduced from $85 billion to $60 billion. The interest rate applicable to outstanding advances on the line was reduced to the three-month Libor plus 300 basis points, and the fee on available, but undrawn funding under the facility was reduced to 75 basis points.

On March 2, 2009, the Federal Reserve and the Treasury announced a second restructuring of the financial assistance to AIG, which included the creation by the Treasury of a new equity capital facility for AIG of up to approximately $30 billion. As part of this restructuring, the terms of the credit facility were again adjusted to remove the 350 basis point floor from the three-month Libor. In addition, the outstanding balance of the credit facility was reduced by approximately $26 billion in exchange for the Federal Reserve's receipt of preferred interest in two of AIG's major life insurance subsidiaries, and the total amount of credit available under the revolving credit facility was reduced from $60 billion to $35 billion.

On September 30, 2010, the FRBNY, AIG, and the Treasury entered into an agreement in principle for a series of integrated transactions to recapitalize AIG, including the repayment of all amounts owed to the FRBNY under the revolving credit facility.  In the interim, one of AIG's subsidiaries, American Life Insurance Company (ALICO), was sold to a third party, and another subsidiary, American International Assurance Company Ltd. (AIA), successfully completed an initial public offering (IPO). Initial cash proceeds of these transactions in excess of $26 billion are on deposit in segregated accounts at the FRBNY pending the consummation of the recapitalization plan. The parties are continuing to work on definitive documentation to implement the agreement in principle.

The revolving credit facility was established under the authority of Section 13(3) of the Federal Reserve Act, which permitted the Board, in unusual and exigent circumstances, to authorize Reserve Banks to extend credit to individuals, partnerships, and corporations.

Securities Borrowing Facility for AIG

As of October 1, 2008, AIG had drawn down approximately $62 billion of the revolving credit facility. As expected, these drawdowns had been used, in part, to settle transactions with counterparties returning securities that had been borrowed from AIG in exchange for cash. In light of the expectation that additional securities borrowing counterparties would decide not to renew their securities borrowing positions with AIG, and the continuing fragile position of the financial markets, on October 8, 2008, the FRBNY was authorized to extend credit to certain AIG subsidiaries in exchange for a range of securities. Under this program, the FRBNY could borrow up to $37.8 billion in investment-grade, fixed-income securities from AIG in return for cash collateral. This program allowed AIG to replenish its liquidity, and the securities served as collateral to protect the FRBNY.

The securities borrowing facility for AIG was discontinued after the establishment of the Maiden Lane II facility, which is discussed in greater detail below. All securities were returned to AIG and all cash collateral was returned to FRBNY. As part of the restructuring announced on November 10, 2008, the FRBNY created Maiden Lane II LLC, and the proceeds from the establishment of the LLC were used to repay in full the securities borrowing arrangement and terminate that program.

The securities borrowing facility was established under the authority of Section 13(3) of the Federal Reserve Act, which permitted the Board, in unusual and exigent circumstances, to authorize Reserve Banks to extend credit to individuals, partnerships, and corporations.

Maiden Lane II LLC and Maiden Lane III LLC

On November 10, 2008, the Federal Reserve and the Treasury announced a restructuring of the government's financial support to AIG.  As part of this restructuring, two new limited liability companies (LLCs), Maiden Lane II LLC and Maiden Lane III LLC, were created. On December 12, 2008, the FRBNY began extending credit to Maiden Lane II LLC, which was formed to purchase residential mortgage-backed security (RMBS) assets from AIG subsidiaries. Details of the terms of the loan are published on the FRBNY website . Maiden Lane II LLC was funded with a $19.5 billion senior loan from the FRBNY and $1 billion from AIG through a contingent purchase price adjustment. The loan extended by the FRBNY is collateralized by the asset portfolio. The proceeds from the assets held by Maiden Lane II LLC are used to repay the loan to the FRBNY, including accrued interest. The loan has a stated six-year term that may be extended at the discretion of the FRBNY. The loan has an interest rate of the one-month Libor plus 100 basis points. Under the terms of the deal, proceeds from the portfolio are paid out in the following order: operating expenses of Maiden Lane II LLC, principal to the FRBNY, interest due to the FRBNY, and deferred payment and interest due to AIG. Any remaining funds will be shared by the FRBNY and AIG, with 5/6 going to the FRBNY.

On November 25, 2008, the FRBNY began extending credit to Maiden Lane III LLC, a limited liability company formed to purchase multi-sector collateralized debt obligations (CDOs) on which AIG had written credit default swap and similar contracts in return for the cancellation of those contracts. Details of the terms of the loan were published on the FRBNY website . Maiden Lane III LLC was funded with a $24.3 billion senior loan from the FRBNY and a $5 billion equity contribution from AIG. The loan from the FRBNY is collateralized by the portfolio of assets. The proceeds from the assets held by Maiden Lane III LLC are used to repay the loan to the FRBNY, including accrued interest. The senior loan was issued with a stated term of six years that may be extended by the FRBNY. The interest rate on the loan is the one-month Libor plus 100 basis points. Under the terms of the deal, payments from the proceeds of the portfolio are made in the following order: operating expenses of Maiden Lane III LLC, principal due to the FRBNY, interest due to the FRBNY, principal due to AIG, and interest due to AIG. Any remaining funds will be shared by the FRBNY and AIG, with 67 percent going to the FRBNY.

The loans to Maiden Lane II LLC and Maiden Lane III LLC were extended under the authority of Section 13(3) of the Federal Reserve Act, which permitted the Board, in unusual and exigent circumstances, to authorize Reserve Banks to extend credit to individuals, partnerships, and corporations.

Preferred interest in AIA Aurora LLC and ALICO Holdings LLC

On December 1, 2009, the FRBNY received preferred interest in two special purpose vehicles, AIA Aurora LLC and ALICO Holdings LLC, that were formed to hold the outstanding common stock of AIG's largest foreign insurance subsidiaries, American International Assurance Company Ltd. (AIA) and American Life Insurance Company (ALICO). In exchange, the outstanding balance of, and the amount of credit available excluding capitalized interest and fees, under the revolving credit facility was reduced. By establishing the AIA and ALICO SPVs as separate legal entities, these transaction positioned AIA and ALICO for future IPOs or sales.

Authorization to extend credit to AIG's domestic life insurance companies

On March 2, 2009, the Federal Reserve and the Treasury announced another restructuring of the government's support for AIG. As part of the restructuring plan, the Federal Reserve Board authorized the FRBNY to lend up to approximately $8.5 billion in credit to special purpose vehicles (SPVs) that would be established by domestic life insurance subsidiaries of AIG. The SPVs would repay the loans from the net cash flows they receive from designated blocks of existing life insurance policies held by the parent insurance companies. The proceeds of this new credit would be used to repay an equivalent amount of borrowing by AIG under the revolving credit facility established by the FRBNY in September 2008. The amounts lent, the size of the haircuts, and other terms of the loans would be determined based on valuations acceptable to the FRBNY. No credit was extended to AIG under this arrangement.


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The following information on the AIG revolving credit facility is provided (on a weekly Wednesday basis):

Data Description
Date As-of date for data presented
Balance Total amount of loan outstanding, in millions of dollars
Facility ceiling Maximum amount available under line of credit, in millions of dollars
Interest rate The nominal annualized interest rate charged to AIG on the loan amount, in percent
Principal Component of outstanding balance, in millions of dollars
Capitalized interest Component of outstanding balance, in millions of dollars
Commitment fees Fee based on unused amount under line of credit. Component of outstanding balance, in millions of dollars

The following information on AIG Securities Borrowing Facility transactions is provided:

Data Description
Loan date The date of the trade
Borrower AIG Inc. is the borrower in all transactions
Loan amount The total dollar amount lent by the FRBNY on the particular trade date, in billions of dollars
Interest rate Interest rate determined pursuant to Master Securities Loan Agreement, which varied according to the type of collateral. The maximum and minimum rates charged on each particular trade date have been included, in percent
Collateral The total market value with interest of the collateral pledged on the particular trade date, in billions of dollars
UST & Agency Unsecured debt issued by the U.S. Department of the Treasury, federal government agencies, and government-sponsored enterprises. Includes agency-guaranteed MBS/CMOs, in millions of dollars
Municipal Securities issued by state and local governments and agencies, in millions of dollars
Corporate Corporate securities (excluding convertible bonds and equities) and money market instruments, in millions of dollars
MBS/CMO Agency Mortgage-backed securities (MBS) and collateralized mortgage obligations (CMO) issued by government-sponsored enterprises, in millions of dollars
Funds lent, by entity Breakdown of dollar amount lent by FRBNY by AIG subsidiary, in millions of dollars

The following information on Maiden Lane II LLC transactions is provided (on a quarterly basis from December 2008 to October 2010):

Data Description
FRBNY senior loan Loan from the FRBNY to Maiden Lane II LLC, in millions of dollars
Principal balance (including accrued and capitalized interest) Total amount of the loan outstanding, including accrued and capitalized interest as of quarter end, in millions of dollars
Accrued and capitalized interest during quarter Interest on the loan that was accrued and added to the balance of the loan, in millions of dollars
Repayment during quarter Repayment from proceeds of the portfolio, in millions of dollars
AIG fixed deferred purchase price

As part of the asset purchase agreement, AIG subsidiaries were entitled to receive from Maiden Lane II LLC a fixed deferred purchase price plus interest on the amount. This obligation is subordinated to the senior loan extended by the FRBNY, and it reduced the amount paid by Maiden Lane II LLC for the assets by a corresponding amount

Summary of RMBS Portfolio Composition, Cash and Cash Equivalents, and Other Assets and Liabilities, Fair Value

Alt-A (ARM) Residential mortgage-backed securities (RMBS) backed by Alternative-A (Alt-A) adjustable rate mortgages (ARM), in millions of dollars
Subprime RMBS backed by subprime mortgages, in millions of dollars
Option ARM RMBS backed by Option ARMs, in millions of dollars
Other Includes all asset sectors that, individually, represent less than 5 percent of aggregate outstanding fair value of securities in the portfolio, in millions of dollars
Cash and cash equivalents Holdings of cash or other comparable, short-term, highly liquid assets, in millions of dollars
Other assets Includes interest and principal receivable and other receivables, in millions of dollars
Other liabilities Includes accrued expenses and other payables, in millions of dollars
Securities portfolio distribution by credit rating Based on fair value, and the lowest of all ratings for each security, in percent

The following information on Maiden Lane III LLC transactions is provided (on a quarterly basis from December 2008 to October 2010):

Data Description
FRBNY senior loan Loan from the FRBNY to Maiden Lane II LLC, in millions of dollars
Principal balance (including accrued and capitalized interest) as of quarter end Total amount of the loan outstanding, including accrued and capitalized interest as of quarter end, in millions of dollars
Accrued and capitalized interest during quarter Interest on the loan that was accrued and added to the balance of the loan, in millions of dollars
Repayment during quarter Repayment from proceeds of the portfolio, in millions of dollars
AIG equity contribution As part of the asset purchase agreement, AIG purchased a $5 billion equity contribution, which is subordinated to the senior loan extended by FRBNY, in millions of dollars.
Summary of Portfolio Composition, Cash and Cash Equivalents, and Other Assets and Liabilities, Fair Value
High-Grade ABS CDO High-grade asset-backed security collateralized debt obligations (ABS CDO), in millions of dollars
Mezzanine ABS CDO Mezzanine asset-backed collateralized debt obligations (ABS CDO), in millions of dollars
Commercial real estate CDO Commercial real estate-backed collateralized debt obligations (CDO), in millions of dollars
RMBS, CMBS, & Other Residential mortgage-backed securities (RMBS), commercial mortgage backed securities (CMBS), and other securities, in millions of dollars
Cash and cash equivalents Holdings of cash or other comparable, short-term, highly liquid asset, in millions of dollars
Other assets Includes interest and principal receivable and other receivables, in millions of dollars
Other liabilities Includes accrued expenses and other payables, in millions of dollars
Securities portfolio distribution by credit rating Based on fair value, and the lowest of all ratings for each security, in percent

The following information on the preferred interest in AIA Aurora LLC and ALICO Holdings LLC is provided:

Data Description
Date As-of date for data presented
Preferred interests in AIA Aurora LLC Book value of preferred interest, in millions of dollars
Accrued dividends on preferred interests in AIA Aurora LLC Amount of dividends that have been accrued, in millions of dollars
Preferred interests in ALICO Holdings LLC Book value of preferred interest, in millions of dollars
Accrued dividends on preferred interests in ALICO Holdings LLC Amount of dividends that have been accrued, in millions of dollars
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Facilities and Programs

Last update: December 3, 2010


The information below is provided as required by the Wall Street Reform and Consumer Protection Act. The page will be updated as reports and other information becomes available.

Reports prepared by the Comptroller General
Under section 714 of title 31, United States Code.

Annual Federal Reserve System financial statements
Annual audited financial statements of the Federal Reserve System and independent auditors' reports.

Reports to the Committee on Banking, Housing, and Urban Affairs of the Senate (Relating to Emergency Lending Authority)

  • Reports on Emergency Lending Authorized Pursuant to Section 13(3) of the Federal Reserve Act since July, 21, 2010 In accordance with Section 1101 of the Dodd-Frank Act, the Board will publish reports issued to the Congress not later than seven days after the Board authorizes any new loan or other financial assistance under Section 13(3) of the Federal Reserve Act. The Board also will publish written updates every 30 days with respect to any such loan or other financial assistance. There have been no new emergency loans authorized by the Board.

Other information about the liquidity and credit programs and other monetary policy tools that the Federal Reserve used to respond to the financial crisis

  • Reports Pursuant to Section 129 of the Emergency Economic Stabilization Act of 2008 The Federal Reserve filed reports with Congress pursuant to section 129(b) of the Emergency Economic Stabilization Act of 2008. The reports provided updates concerning the lending facilities established by the Board under section 13(3) of the Federal Reserve Act that are currently outstanding. In October 2009, the Board began to incorporate these reports into its monthly report on "Credit and Liquidity Programs and the Balance Sheet."

  • Credit and Liquidity Programs and the Balance Sheet monthly reports The Federal Reserve prepares these monthly reports as part of its efforts to enhance transparency in connection with its various programs to foster market liquidity and financial stability and to ensure appropriate accountability to the Congress and the public concerning policy actions taken to address the financial crisis.

  • Transaction data Transaction detail related to the liquidity and credit programs and other monetary policy tools that the Federal Reserve used to respond to the financial crisis that emerged during the summer of 2007.

Other information helpful in understanding the accounting, financial reporting, and internal controls of the Federal Reserve Board and the Federal Reserve Banks

International Lease Finance Prices $1 Bln Senior Notes Offering


(RTTNews) - International Lease Finance Corp., a wholly owned subsidiary of American International Group, Inc. (AIG: News ), said Thursday that it has priced and entered into an agreement to issue and sell, its public offering of $1.0 billion aggregate principal amount of 81/4% senior notes due 2020.

The notes will be issued by International Lease Finance at the initial price of 99.160% of the principal amount. The offering is expected to close on December 7.

The aggregate net proceeds from the sale of the notes, after deducting underwriting discounts and commissions, fees and estimated offering expenses, will be about $976.4 million and will be used by International Lease Finance for general corporate purposes, including the repayment of existing indebtedness.

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Debacle over drinking water deals a blow to CDC and EPA

When it comes to something as simple and basic as ensuring that our drinking water doesn't poison our children, you'd think federal scientists and environmentalists would hustle to give the public the fullest and most reliable information as quickly as possible.

You'd also think the Centers for Disease Control and Prevention and the Environmental Protection Agency would go out of their way to publicize it when the government's own research finds that the risk posed by lead in the water nationwide is greater than previously described, and that one of the EPA's top recommended solutions is useless.

You'd be wrong.

Those are two important lessons to be drawn from Wednesday's release of a CDC report on the 2004 crisis of lead in the water in the District. In the official research paper, the nation's premier public health agency finally confirmed in full scientific detail that it completely bungled its initial work that tried to minimize the risk in the water.

I'm glad that the CDC ended years of denial and stonewalling. But its credibility suffered considerably because it took so long and acted only under sustained pressure from safe-water advocates, the media and Congress.

"They were too quick to publish a flawed study, and they were too slow to retract it, when they knew that others were relying on it," said Rep. Brad Miller (D-N.C.), chairman of a House subcommittee that issued a blistering report in May of the CDC's handling of the issue.

Moreover, the CDC and EPA have done virtually nothing this week to alert the public about the report even though it raises major questions about government policies on lead pipes used in between 3 million and 6 million households nationwide.

The report contains two troubling findings. First, it says that young children and expectant mothers are at elevated risk of lead poisoning if they live in homes served by lead pipes, regardless of the age of the housing and even if the water in the system as a whole is considered safe by EPA standards.

Basically, that puts in question the safety of drinking water in numerous houses in older neighborhoods in cities including Washington, Chicago, Detroit and Providence, R.I.

"What it does is say that the EPA lead in water standard is not itself sufficient to stop higher incidence of blood lead in children," said Marc Edwards, the award-winning Virginia Tech environmental engineering professor who spearheaded the long campaign that ultimately forced the CDC to reverse itself.

When exposed to lead, young children risk suffering diminished IQ. The main threat in old homes comes from lead in paint and dust, and the added danger posed by water is subtle and hard to quantify. But the new report says it's real.

"We need public education," Edwards said. "It's not a cause for panic, but that change in the CDC message is very profound."

Edwards suggested that residents of District homes served by lead pipes follow D.C. Water's recommendations to have their water tested. If the household includes children under the age of 6, it'd be wise to use filtered or bottled water, or at least flush the pipes for a couple of minutes before drinking.

The CDC report also confirmed something that Edwards and other experts concluded years ago: It does no good to replace just some lead pipes serving a home. It's necessary to remove them all to be sure of solving the problem.

Many specialists, including some at the EPA, believe partial replacements actually make the problem worse, at least temporarily. That's partly because the work can dislodge lead particles within the pipes.

The implications of the new finding are potentially staggering. They suggest that the EPA, which officially supports partial lead-pipe replacements, has been giving the public bad and costly advice since 1991 despite growing pressure to alter its position.

For instance, under EPA guidance, the District spent $97 million for 17,000 replacements. Of those, 15,000 were the partial variety found to be worthless at best.

To its credit, D.C. Water sharply reduced partial replacements in 2008. It decided they were aggravating the problem. The exception is when such work is necessary to fix broken pipes, in which case D.C. Water pays for lead monitoring and filters.

Recommending partial replacements is "still part of the [EPA] rule, in spite of this fairly large and extensive field test in Washington, D.C., that indicates it doesn't work," D.C. Water General Manager George S. Hawkins said.

"That rule ought to be changed Monday," he said.

As of Friday afternoon, however, despite requests from journalists, the EPA hadn't commented.

Miller, who heads the investigations and oversight subcommittee of the House Science and Technology Committee, said he suspected the CDC took so long to issue its report partly because of the human instinct "to be slow to admit error." Miller also faulted a tendency in government agencies to want to reassure the public even when the facts warranted otherwise.

"There has been a tendency . . . to kind of pat people's hands and say everything's fine when there are real questions about whether the public health is being endangered by environmental exposures," Miller said. However, he added, government's proper role "is to tell people the Lord's own truth. And if that causes people to worry, then they should worry."

I dislike promoting public anxiety, but amen to that.

"A little rebellion now and then is a good thing” – Thomas Jefferson

In October of 1941, counties in southern Oregon and Northern California were upset with the condition of roads throughout their counties. Their claims were that lack of proper roads and bridges were hindering the economic development of the area, particularly by making it difficult to gain access to and transport out the areas two biggest natural resources: copper and timber. The roads were oiled dirt roads that after rain or snow became impassable. The “greatest copper belt in the far West” was located there and the roads made it extremely difficult to mine and transport the copper ore. The counties were Curry, Josephine, Jackson, and Klamath, Oregon and Del Norte, Siskiyou, and Modoc, California.

Gilbert Gable, then mayor of Port Orford, Oregon proposed that the seven counties should secede from their respective states and form a new state, which would at the time have been the 49th state in the union. This concept found sympathy throughout the area and on November 17th 1941, county representatives met in Yreka, CA and voted to allocate $100 to researching the formation of the 49th state. On November 19th, 1941, the Siskiyou Daily News offered up a $2 prize for the best name submitted for the new state and the name Jefferson, after Thomas Jefferson, was eventually chosen. Yreka was chosen as the capital.

After that, by November 27th, 1941 citizens of the State of Jefferson began stopping traffic on Highway 99, brandishing hunting rifles and handing out copes of their Proclamation of Independence:

    You are now entering Jefferson, the 49th State of the Union.

    Jefferson is now in patriotic rebellion against the States of California and Oregon.

    This State has seceded from California and Oregon this Thursday, November 27, 1941.

    Patriotic Jeffersonians intend to secede each Thursday until further notice.

    For the next hundred miles as you drive along Highway 99, you are traveling parallel to the greatest copper belt in the far West, seventy-five miles west of here.

    The United States government needs this vital mineral. But gross neglect by California and Oregon deprives us of necessary roads to bring out the copper ore.

    If you don't believe this, drive down the Klamath River Highway and see for yourself. Take your chains, shovel and dynamite.

    Until California and Oregon build a road into the copper country, Jefferson, as a defense minded state, will be forced to rebel each Thursday and act as a separate State.

    (Please carry this proclamation with you and pass them out on your way.)

    State of Jefferson Citizens Committee
    Temporary State Capitol, Yreka

This act, of course, immediately began making headlines, and the San Francisco Chronicle even sent out a young reporter by the name of Stanton Delaplane, to cover the secession. He even earned a Pulitzer Prize for the series of articles he wrote. By December 4th, with the state seceding every Thursday until recognized, Judge John C. Childs was inaugurated as the governor of the new state and followed by a torchlight parade led by two bears, Scratchy and Itchy.

A State Seal was created which consisted of a gold pan on which two X's were painted on the bottom. The two X's symbolized how the new state was double crossed by both Salem, Oregon and Sacramento, California. This seal is on the state flag.

The new state was going to have no sales tax, no property tax, and no income tax. Red light districts and gambling halls would be opened and the revenue from these would fund the state.

Newsreels of the events occurring in Jefferson were to air nationally on December 8th, but on December 7th Pearl Harbor was bombed by the Japanese thus throwing the United States into World War II and ending the secession of the California and Oregon counties that comprised the new state. The newsreels were shelved and both states fixed the roads and bridges in order to access the timber and copper required for the war effort. The secession movement died out.

But the concept of the State of Jefferson carried on. Today the idea of Jefferson still exists and has grown to include several other counties including Coos, Douglas, and Lake in Oregon and Humboldt, Trinity, Shasta, Lassen, Mendocino, Tehama, Glenn, Butte, and Plumas in California. If this area were to become its own state, it would have over 423,000 people, but would still have the least population of any other US state. The original idea behind the State of Jefferson has been commemorate by the State of Jefferson Scenic Byway that runs between Yreka, CA and O'Brien, OR. Near the California / Oregon border there's a turn out spot with three informational displays talking about the area.

Ultimately the 1941 attempt of seceding was very much unlike any other secession movement. There was no violence, but instead joy and merriment. Much of the actions of the state were viewed as almost a joke by the rest of the country. Most people who were stopped by barricades and given the Proclamation of Independence laughed at the entire affair, thinking that the locals were just playing a big prank. Ironically, the method in which the secession occurred actually worked. The areas issues and problems were brought to light to the entire country and who knows, had it not been for the atrocity of World War II, Jefferson very well may have become the 49th state in the union.

It is important to note that actually seceding would have been rather difficult for the new state as under the Constitution, it was required that they had both the approval of the U.S. Congress and the legislatures of both Oregon and California.


We have buried our dead once already

By Gary Lake Daily News Posted Nov 30, 2010

Medford, Ore. —

CREATOR, I am not wise, Spiritually mature or as kind to my enemies as I wish I could be. I am perplexed at the path you have chosen for me, and the battles it leads my family and friends into. I know not why these things are happening again to my people by neighboring Tribes that experienced the very same thing when gold was discovered along the Klamath River 160 years ago.
With great conviction of my heart I DO KNOW this ... Today Water is the NEW Gold, and the Shasta People are being subjected to soft-genocidal practices and socioeconomic extermination tactics that will forever wipe a great race of People from the books of history if the dams are removed along the Klamath River, that are entirely inside aboriginal Shasta Lands.
NOWHERE in the Klamath Basin Restoration Agreement (KBRA) are the Shasta People recognized. The Klamath Hydro Settlement Agreement (KHSA) exposes the Shasta People's burial grounds, Spiritual sites, ceremonial grounds and villages which are currently protected by reservoirs behind the dams that are to be taken out.
Said agreements will expose Shasta Human remains to be stolen and sold by looters for horrific private collections. The KHSA creates land transfers for fish and restoration purposes with no regard whatsoever to the original aboriginal Peoples of said territory, the Shasta People.
Great Creator, on this historic day of peace and friendship I humbly ask that you will open the hearts of the good Karuk, Yurok, Hoopa and Klamath People and let them think about what it is that their leaderships are about to do ... The Shastas have buried our dead once already, and then helplessly watched them covered over by water denying our access to practice certain inalienable human rights of Shasta Customs and Cultural practices.
We are fraught with the idea of having to collect bones from the banks of the river and once again bury that of which are not stolen or lost forever. How can we soothe the Spirits of so many souls when their bodies are scattered in pieces and strewn along the muddy banks of a ruined river?!
On this day that has duplicit meaning to Native Americans and non-Indians alike, I pray for compassion, Love and proper action with regards to the Shasta People. Sincerely and with great respect, God Bless ALL American People.

Gary Lake is a Konomihu-Shasta Indian from Medford, Ore. who has been spending much of his time of late in Yreka.

Copyright 2010 Siskiyou Daily News. Some rights reserved

CropWorld North America 2011 Conference

February 8 and 9, 2011 at The Westin in Charlotte, North Carolina

Viewpoints: Water wars hinder sound decision-making

By Stan Dean
Special to The Bee Published: Friday, Dec. 3, 2010 - 12:00 am | Page 17A

It is unfortunate that the wastewater discharge permit for the Sacramento Regional County Sanitation District is being updated in such a frenzied atmosphere. Normally, the Regional Water Quality Control Board would step through its procedures to update the permit and come out with requirements that protect our waterways in a reasonable manner.

However, California's water wars surrounding the Sacramento-San Joaquin Delta have escalated the politics, increased the stakes and ramped up the rhetoric and myths. In addition, the water board may or may not have a quorum on its hearing date Thursday, yet it still plans to hear the permit item – with or without a quorum, further complicating the decision-making process.

In this pressured environment the water board is stretching its discretion to the limit, and perhaps beyond its legal authority, by writing a very strict permit that is not supported by compelling, sound science. It is troubling that the strict permit mandates could cost the Sacramento region $2 billion in new wastewater treatment processes, raising rates for homeowners from $20 per month to about $60 per month, with proportional increases on businesses.

The Delta ecosystem is suffering a serious collapse. However, there is still no consensus on the most important drivers in the declining health of the Delta. The effects of water exports, invasive species, habitat loss and water quality have all been cited. The newly formed Delta Stewardship Council will be making a renewed effort to prioritize the causes of the Delta decline, but this has not yet happened.

There are valid questions remaining. Is water quality 1 percent of the problem, 5 percent of the problem, 20 percent of the Delta problems? We simply don't know.

In some respects, the wastewater treatment plant improvements required by the permit are like a big experiment; try it and see if it works. If this experiment were to cost $200 million, passing the price tag to Sacramento ratepayers might be acceptable; however, $2 billion is another matter.

Despite efforts to pin blame for the Delta's decline on the ammonia in the sanitation district's discharge, the science on the issue is contradictory and incomplete. We do know, however, that we should remove about half of the ammonium we discharge today to protect future conditions in the Delta, because science has given us a clear answer to that question. This reduction would actually return ammonia concentrations in the Delta to levels that existed in the 1980s, long before the ecosystem problems we are experiencing today.

But the current draft permit goes much further by mandating the removal of all ammonia – although the impacts of that action have not been studied and the need to do so remains unproven.

The permit also requires expensive filtration and disinfection technology that would have little noticeable effect on conditions in the Delta.

The Sacramento Regional County Sanitation District has the job of protecting public health, protecting the environment and keeping costs to our ratepayers affordable.

The district takes these responsibilities seriously. Our 99.9 percent compliance rate and more than $20 million investment in environmental efforts over the past decade clearly demonstrate our commitment to protecting the Sacramento River.

However, our responsibility to our ratepayers requires that we demand that regulatory actions be proven to be necessary, reasonable and based on sound and compelling science, as the Clean Water Act and California Water Code dictate.

Unfortunately, most of the water board's draft permit recommendations do not meet those criteria.

The Sacramento Regional County Sanitation District is not – as some have claimed – ignoring science or simply being obstinate.

We do, however, believe that it is our obligation to seek a reasonable balance between environmental protection and cost to ratepayers.

That is why we cannot support the regional board's draft permit recommendations.

Read more:

CAFA Helped the Court to Exercise Supplemental Jurisdiction

Adoma v. University of Phoenix, Inc . , No. CIV.S-10-0059 LKK/GG, 2010 WL 3431804 (E.D. Cal. Aug 31, 2010).

In this case, although a District Court in California disposed of all the federal claims, it exercised supplemental jurisdiction over the remaining state law claims because the plaintiffs established that the amount in controversy exceeded the threshold requirements of CAFA.

The plaintiffs, Adoma and Abbaszadeh, who worked as Enrollment Counselors for University of Phoenix and its parent company, brought an action under the FLSA and California Labor Code.

The plaintiffs alleged that the defendants maintained two computer systems regarding Enrollment Counselors' work--one system tracked the Counselors' availability for taking enrollment calls and another was used to track overtime hours worked.  The overtime work recorded by the former system was not recorded by the latter system; thus, the plaintiffs claimed they were not paid for “off-the-clock” overtime. The plaintiffs also asserted that the defendants paid them the wrong hourly rate for overtime, and that the defendants caused employees to miss meal periods. In addition, the plaintiffs brought state law claims for waiting time penalties and for inaccurate pay stubs.

Other suits for overtime pay were pending against the defendants--one of which was-- Sabol v. The University of Phoenix, No. CV 09-03439-JCJ (E.D. Pa.). Because, the Sabol court certified a nationwide FLSA collective action; under first filed rule, this Court transferred the FLSA claims to the Sabol court, and thus declined to exercise jurisdiction over the FLSA claims advanced in this case. 

Because the order transferring the FLSA claims to Sabol court disposed of all federal claims and the complaint only asserted supplemental jurisdiction as a basis for jurisdiction over state law claims, the Court ordered supplemental briefing regarding subject matter jurisdiction. After the parties briefed the Court, it concluded that it had jurisdiction over the plaintiffs' state law claims under CAFA, 28 U.S.C. §1332(d).

While holding so, the Court noted that the defendants were citizens of Arizona and the named plaintiffs were citizens of California. Besides, the Court found that the aggregation of potential class members' claims established that the amount in controversy exceeded §5 million.

The Court stated that the potential class included well over 1,000 members.  On the “off-the-clock” overtime claim for which named plaintiff Adoma sought class certification, she alleged individual compensatory damages in excess of $34,000 and claims that evidence already produced demonstrated $4,732.47 in liability.  On the plaintiffs' claim for statutory waiting time penalties, the plaintiffs sought up to the statutory maximum of $4,000 per employee (albeit only for a sub-class estimated to include 500 to 700 employees).  The defendants argued that Adoma was entitled to no more than $1,750 in waiting time penalties.  The Court remarked that even the reduced figures, if aggregated, exceeded the jurisdictional amount.   ( E.g., 1,000 class members x $4,700 + $1,750 x 500 = $5,575,000.) Because the amount “in controversy” for these claims exceeded the statutory threshold, the Court found that the jurisdiction over class claims was proper under §1332(d).

Accordingly, the Court exercised supplemental jurisdiction over the plaintiffs state law claims pursuant to 28 U.S.C. §1367.


Power Industry Eyes Work With EPA On Plan To Avoid Rule 'Train Wreck'

Power industry officials are crafting a strategy for working with EPA to avoid fears of a "train wreck" of compliance costs and other burdens from pending agency air, water, waste and climate rules due within the next five years, though other industry officials are looking to the GOP-led House next year to restrict EPA's rulemaking authority.

Key Adviser Floats EPA -DOE Plan To Address Reliability Impacts Of Rules

The chair of a key Department of Energy (DOE) advisory panel is suggesting a new EPA-DOE process to assess the impact pending EPA rules could have on electric grid reliability, an emerging proposal for resolving fears from industry, lawmakers and others that a slew of agency rules will have adverse impacts on electricity generation.

Groups Push Major Electric Power Sector Overhaul To Boost Clean Energy

The Center for American Progress (CAP) is pushing a major overhaul of the electric power sector including changes to the tax structure and new FERC directives to promote clean energy resources, but some industry observers doubt whether the plan will gain traction in the divided 112th Congress because it could raise utility costs.

Likely Inaction On RES During Lame Duck Shifts Focus To Grants Renewal

Congress is unlikely to pass a renewable electricity standard (RES) in the lame duck session, say congressional staffers and renewable energy industry officials, prompting industry groups to shift their focus to having lawmakers instead pass an extension of a federal grants program for renewable energy projects.

FERC Touts 'Transformative' Proposal For Integrating Renewables In Grid

FERC officials say a new commission proposal offers "transformative" plans for how to better integrate renewable energy resources into the electricity grid, including provisions requiring utilities to schedule transmission on 15-minute intervals which could benefit wind, solar and other renewable sources by providing greater scheduling accuracy.

Industry Sees Upton Allowing EPA Auto GHG Rules As Energy Panel Chair

Rep. Fred Upton's (R-MI) bid to chair the Energy & Commerce Committee next year is winning support from some automobile industry officials who say the lawmaker would likely allow EPA's greenhouse gas (GHG) rules for cars to continue, compared to Rep. Joe Barton (R-TX), who might try to limit or scrap the rules if he takes the committee's top spot.

Foes Seek To Expand Limits On EPA Climate Rules Beyond Rockefeller Plan

Industry groups and lawmakers are weighing options to expand the scope of a proposal by Sen. Jay Rockefeller (D-WV) to block EPA from regulating greenhouse gases (GHGs) from stationary sources by also exempting pending air permits from GHG limits or excluding GHGs from case-by-case permit technology reviews.

States, Industry Eye GOP To Strip DOE Of Nuclear Waste Fund Authority

State utility commissioners and nuclear power industry officials say they are looking to key Republicans to take up a bill next year that would end what they say is DOE's sub-par management of a federal fund for building a central nuclear waste repository, arguing that the plan echoes the GOP's campaign arguments of fiscal responsibility.

Lack Of Cleanup Plan Could Sideline Nuclear Waste Panel, Activists Warn

Recent reports that EPA and other agencies are struggling to determine who would oversee cleanup in the event a major nuclear power plant accident dispersed radiation offsite could overshadow the efforts of a presidential commission intended to devise a strategy for managing the plants' radioactive waste, anti-nuclear activists are warning.

DOE, EPA, Treasury Work On Financing To Help Facilities Meet Boiler Rule

DOE is in talks with EPA and the Department of Treasury to find ways to help facilities pay for the cost of installing emission controls on hundreds of thousands of boilers covered by the agency's pending air toxics rule for the units, an apparent nod to industry, lawmakers and others who have decried the high cost of the rule.

EPA Vows 'Case-By-Case' Oversight To Ensure TRI Reporting For Coal Ash

EPA officials are vowing to conduct "case-by-case" oversight to ensure power plants and other generators of coal ash and coal combustion residuals (CCRs) report their waste releases to the agency's Toxics Release Inventory (TRI) even before the agency makes its landmark determination on whether to strictly regulate the waste as "hazardous."

Newsroom Notes

Honda Suggests California ZEV Rule May Thwart National GHG Standard

American Honda company officials are questioning California regulators about whether a proposed overhaul of the state's zero-emission vehicle (ZEV) standards may thwart efforts by state and federal agencies to reach a deal on a new round of national greenhouse gas (GHG) and fuel economy rules for 2017-2025 model-year vehicles. The company officials are suggesting that several compliance options for meeting the new GHG standards may be blocked by the proposed ZEV regulation, which generally requires automakers to ramp up sales of hybrid-electric, plug-in electric, battery-electric and fuel-cell vehicles between now and 2025.

Industry Criticizes Lack Of Detail In EPA's Draft E15 Tanks Guidance

Some petroleum industry experts are criticizing EPA's just-released draft guidance on the compatibility of underground storage tanks (UST) with fuels that contain more than 15 percent ethanol (E15) and biodiesels, saying the document presents little new relevant information for tank owners and operators on how to prevent leaks due to corrosion.

Utilities, States Oppose Future Policies As Part Of FERC Transmission Plan

Several utilities and state officials are urging FERC to reject a proposal endorsed by the renewable energy industry and others to require consideration of future public policies in transmission planning, arguing that inclusion of hypothetical policy directives could create planning logjams and usurp legislative and regulatory policy-making powers.

Activists Reject Challenges Over FERC Jurisdiction For Transmission Plan

Environmentalists are rejecting claims that FERC lacks jurisdiction to implement a sweeping proposal to reform transmission planning and cost allocation, arguing that the changes are vital to ensure just and reasonable rates and maintain grid reliability while calling for FERC to clarify how to include renewable energy and other public policy goals in transmission planning.

Grid Planners Urge FERC To Clarify Public Policy Goals In Transmission Plan

Electricity grid operators are urging FERC to clarify what constitutes a public policy objective that would need to be considered as part of planning processes within the commission's sweeping transmission reform proposal, warning that a definition that is too broad could create a policy "circus" that may spur lawsuits.


Pharmaceutical Industry Questions Legality Of EPA Drug Disposal Guidance

The pharmaceutical industry is questioning the legality of an EPA guidance laying out prescriptive measures for hospitals to reduce the influx of drugs in wastewater -- and ultimately to source waters -- saying it is beyond the scope of EPA's jurisdiction and is inconsistent with other federal requirements.

Water Agencies Blast California Plan To Set Numeric Toxicity Limits

Wastewater treatment and stormwater agencies in California are criticizing a state plan to set statewide numeric whole effluent toxicity (WET) objectives and use those objectives to set effluent limitations, arguing that the policy is scientifically and technically flawed and would result in many discharges being falsely labeled as "toxic" and therefore in violation of water quality standards.

EPA Extends Comment Period For Proposed Water Test Method Changes

EPA is granting a 30-day extension to its comment period for proposed changes to acceptable procedures for testing wastewater effluent, heeding calls from some industry groups that the original 60-day comment period was insufficient to properly analyze and comment on the thousands of pages of supporting documents included in the proposed rule.

Risk Policy Report - 11/23/2010

Facing Fears Over Rules' Costs, EPA Moves To Increase Benefits' Estimates

EPA is moving to update and likely raise some of its years-old estimates for quantifying the health and mortality benefits of its regulations, such as the value of reduced asthma cases or lives saved, a policy that could help the agency fend off growing criticisms from industry and GOP lawmakers that its rules are too costly while providing little benefit.

Activists, Industry At Odds Over Future Of Key 'Green' Chemistry Standard

Environmentalists and industry groups are at odds over the adequacy of a landmark proposal for a national green chemistry standard, with some environmentalists calling for the "green" moniker to be dropped because the draft standard does not allow consumers to assess the relative toxicity and energy efficiency of various chemicals.

EPA Sees Hurdles In Bid To Extend Endocrine Testing To Water Toxics

EPA's plan to expand its controversial and oft-delayed endocrine disruptor screening program (EDSP) to require testing of drinking water contaminants as well as pesticides presents new challenges for the agency in large part because it is more difficult to identify parties responsible for testing ubiquitous water contaminants than registered pesticides.

Industry Shifts Burden To GOP House For Crafting TSCA Proposal In 2011

Chemical industry officials are downplaying environmentalists' suggestions that the burden rests with industry to offer a legislative proposal for reforming the Toxic Substances Control Act (TSCA) next year, saying they are looking to the GOP-led House in the 112th Congress to take the lead on crafting a proposal.

EPA Extends Comment Period For Proposed Water Test Method Changes

EPA is granting a 30-day extension to its comment period for proposed changes to acceptable procedures for testing wastewater effluent, heeding calls from some industry groups that the original 60-day comment period was insufficient to properly analyze and comment on the thousands of pages of supporting documents included in the proposed rule.

Activists Aim To Force Agency Consultation On Dispersants' Species Impacts

The Center for Biological Diversity (CBD) is seeking to force EPA and the Coast Guard to consult with wildlife agencies on the endangered species impacts from dispersants and other oil spill response technologies before preauthorizing their use in Alaska.

Activists Seek EPA Enforcement To Push Policy For 'New' Nano-Pesticides

Environmentalists are urging EPA to reconsider the safety of an already-registered copper-based wood treatment pesticide because it contains nanoscale ingredients, a case that if brought could begin to implement, and possibly expand, a long-stalled agency policy subjecting existing pesticides that contain nanoscale material to regulation as "new" products.

EPA Seeks Expert Advice To Complete Phthalates Assessment Urged By NAS

EPA is planning to hold an expert consultation to provide advice on how the agency should respond to recommendations from the National Academy of Sciences (NAS) as it assesses the cumulative risks of six phthalates -- a review that will likely grapple with warnings from the Academy and others that any cumulative assessment will underestimate risk if it does not include other chemicals that also act upon the same target organs.

Data On Particulate Link To Higher Blood Pressure May Justify Strict Air Rules

Researchers are pointing to new data they say strengthens the link between traffic emissions of fine particulate matter (PM2.5) and increased blood pressure, which could help resolve inconsistencies with existing research on the issue and "further strengthen" the justification for EPA emission rules to reduce PM2.5.

Industry Sees State, TSCA Legal Challenges To Green Chemistry Rules

Industry groups subject to California's landmark green chemistry regulations are likely to file a lawsuit in state court arguing the state's toxics department is overstepping its authority by requiring the release of confidential business information (CBI) or trade secrets, according to sources.

GOP Vow For Permanent Security Plan Could End Water Utility Exemption

Rep. Peter King (R-NY), incoming chair of the Homeland Security Committee, is vowing to make permanent authorization of interim Department of Homeland Security (DHS) chemical security rules a top priority next year, which sources say is unlikely to require companies to use inherently safer technologies, or less risky alternative chemicals and processes.

Advisers Urge USGS To Better Justify Major Water Quality Monitoring Plan

Federal science advisers are supporting the U.S. Geological Survey's (USGS's) plan to triple the size of its water quality monitoring program -- used by EPA and other agencies in regulatory decisions -- but are urging USGS to better justify the proposal, which could help a future push to win vital new congressional funding for the project.

EPA Plans New TRI Method For Launching Emergency Planning Efforts

EPA is revising its method for determining whether local officials must revise their emergency response plans to prevent harm from some Extremely Hazardous Substances (EHS), a rulemaking EPA is launching in response to an industry request to re-examine the rationale for listing the herbicide paraquat dichloride as an EHS when it is handled as a solid in an aqueous solution.

Industry May Urge OMB To Expand EPA's Planned TRI Waiver For 'Products'

Wood treatment and other industry groups are planning to ask the White House Office of Management and Budget (OMB) to expand a planned EPA rule that industry says unlawfully narrows a long-standing policy clarifying when toxic releases from many finished wood products are exempt from reporting to the Toxics Release Inventory (TRI).


Industry, Activists Craft Model Fracking Rules To Strengthen State Measures

Industry and environmentalists have begun working together on model rules that states could adopt to govern well construction and other underground requirements for energy operations that use the controversial practice of hydraulic fracturing, or fracking, an approach one source says could complement voluntary audits of state oil and gas rules.


Update - FDA Bill in Senate

Despite the delays, the so-called "Food Safety Modernization Act" ( S.510 ) remains a major threat to local food networks and market-based food systems. S.510 empowers the FDA with totalitarian authority over the whole gamut of food, and would give the regulatory agency the ability to wantonly impose burdensome requirements on even the smallest of food processors, e.g. a local family farm.

Hoping to quell the concerns of liberty activists, proponents of expanding the government's control over what we put into our own bodies point to the latest version of S.510, which includes a few provisions that recognize the difference in scale between large manufacturing plants and your local farms; however, the vast majority of these provisions are actually left to the FDA's discretion. In other words, it will be up to whomever Obama puts in charge of the FDA to decide whether or not your local food network is crushed by federal regulations, or simply shut down if the G-men have "reason to believe" the food on the premises is contaminated....

EPA Seeks To Stop States' Use Of Strict Discharge Limit For Building Sites

EPA is taking steps to stop a host of states from using its strict numeric discharge limit for the construction industry while the agency revises it, a move that could address industry fears that states would use the water quality limit in their permits even though EPA is revising it due to data errors.

EPA Stormwater Rule To Include 'Flow' Metrics For Discharge Permits

EPA plans to introduce first-time "flow" metrics in stormwater permits as part of its upcoming post-construction stormwater rule, providing measurable endpoints for water quality in permits, rather than just requirements for actions to mitigate the amount and quality of stormwater entering waters.

Obama Floats Preempting EPA GHG Rules In Exchange For Clean Energy

Following his party's Election Day rebuke, President Obama has opened the door to preempting EPA authority to regulate greenhouse gases (GHGs) in exchange for a scaled-back bipartisan agreement that would at least begin to address the problem of climate change by encouraging development of clean energy choices.

Water Policy Report - 11/22/2010

Activists Challenge Landmark EPA Rule For Florida Water Nutrient Criteria

Environmentalists are asking a federal court to invalidate a controversial provision in EPA's precedent-setting nutrient criteria for Florida that allows stakeholders to petition for site-specific alternate criteria (SSAC) for specific waterbodies, charging that EPA's approach allowing the SSACs to be applied to an entire waterbody, rather than a specific permit holder, is unlawful.

EPA Delays Implementation Of Landmark Numeric Nutrient Rule In Florida

EPA is delaying by 15 months implementation of its landmark rule setting strict numeric nutrient limits for Florida's lakes and flowing waters, granting calls from recently elected GOP officials but rejecting calls from industry and other critics for a lengthier delay for scientific review.

Bolstering EPA Efforts, USDA Plans To Strengthen Nutrient Guide For Farms

The U.S. Department of Agriculture (USDA) is poised to propose ways to strengthen its nutrient management standards for farms, a move that could bolster several pending EPA and state efforts to curtail nutrient pollution from crop and livestock production that is harming water quality nationwide.

EPA Support For Key 'Pristine' Waters Program Leaves Open Questions

EPA has partially approved Kentucky's landmark plan for determining how to provide increased protection to pristine waters, but activists say the agency's action fails to clarify which waters are subject to the strict requirements and could potentially spark further litigation and intensified lobbying to have EPA address the issue in a pending rulemaking.

EPA Could Use Strict Mining Guide In Enforcement Over Existing Permits

EPA is pursuing an aggressive new enforcement strategy to address adverse environmental impacts from mountaintop mining projects and is considering retroactive application of its strict new Clean Water Act (CWA) permitting guidelines in enforcement actions against existing surface mining water permits, sources say.

Ruling Could Boost Bill To Exempt 'Samaritan' Mine Cleanups From Permits

A just-issued appellate court's ruling that cleanup activities on abandoned coal mine sites are subject to Clean Water Act (CWA) permitting requirements could boost prospects in the next Congress for long-stalled bipartisan legislation that would provide "Good Samaritan" waivers from those requirements for mine cleanups, Senate and other sources say.

EPA Mining Guidance Obstructing State Issuance Of Reclamation Permits

EPA requirements in the agency's landmark Clean Water Act (CWA) permitting guidance for surface mining projects is obstructing West Virginia's issuance of water permits that the state must obtain before it can proceed with cleanup activities at abandoned mining sites, according to state sources and documents.

Industry, States Move To Deny EPA 'Home Court' Advantage In Guidance Suits

Industry and states involved in various lawsuits challenging EPA's surface mining crackdown argue those cases should remain separate and centered in Appalachia, rather than consolidated into a single proceeding in the District of Columbia as the agency has asked, according to new court filings.

Monday, November 29, 2010

High Court Won't Hear Everglades Pollution Case

     (CN) - The nation's high court on Monday refused to disturb a lower court's ruling that the transfer of polluted water from one body of water to another doesn't violate the Clean Water Act.
     In June 2009, the federal appeals court in Atlanta allowed the Southern Florida Water Management District to pump agricultural runoff into Lake Okeechobee in southern Florida without a permit.
     Environmental groups, including the Friends of the Everglades and the Miccosukee Tribe, said the pumping violated the Clean Water Act, but the 11th Circuit said a regulation recently issued by the Environmental Protection Agency changed that.
     The new regulation interpreted the phrase "navigable waters" in the Act's ban on adding pollutants to "navigable waters from any point source" to mean all bodies of water within the United States.
     This so-called "unitary waters theory" meant that pollutants could be transferred from one body of water to another without requiring a permit.
     Friends of the Everglades said the regulation didn't match the goals of the Clean Water Act and would result in "horrible hypotheticals," including the pumping of the most polluted water in the country into the most pristine lake.
     But the 11th Circuit deferred to the EPA's interpretation, calling it "reasonable and therefore permissible."
     The Supreme Court left that ruling intact by deciding not to hear the environmentalists' appeal. 

How to incorporate sustainability concepts into EPA programs.





(real parties in interest), “Two Miners”

Under God, Indivisible; Patentee, Grantee








Breve capitalis justiciarius noster and ad placita coram nobis tenenda, Alodium and Alodarii; detinue sur bailment; subpoena ad testificandum; LIBEL, SLANDER, DEFAMATION OF CHARACTER, POISONING OF REPUTATION

IV. Conversion may be either, 1. by a wrongful taking a personal chattel; 2. by some other illegal assumption of ownership, or by illegally using or misusing it; or 3. by a wrongful detention.

The wrongful taking of the goods of another who has the right of possession, is of itself a conversion, and so is the compelling of a party to deliver up goods; and whenever trespass will lie for taking goods of the plaintiff wrongfully, trover will also lie. 3 Wils. 19 ; Willes, 33 ; 2 Saund. 47 A; Cro. Eliz. 824. Thus trover lies against the assignees under a commission of bankrupt, where they compel a party to deliver up his property when he was not subject to the bankrupt laws. 3 B. Sr R. 2; 6 J. B. Moore, 56, S. C. And if goods be wrongfully seized as a distress, though they be not removed from the place in which they were, yet trover may be supported, because the possession in point of law is changed by their being seized as a distress. Willes, 56. And a seizure of goods under a fieri facia* after a party's bankruptcy, ana a removal of them to a broker's, is a sufficient conversion. 3 Campb. 396. And this action may be supported after an acquittal of the defendant for the felonious taking of goods. 12 East,

In the case of a conversion by wrongful taking, it is not necessary to prove a demand and refusal. 1 Sid. 164; 6 Afod. 212; Bui. N. P. 44; 1 Mark. 173 ; 3 B. Sr B. 2; 6 /. B. Moore, 56, S. C. And the intent of the party is immaterial ; for, although the defendant acted under a supposition that he was justified in what he did, he will be equally liable to this action. 4 M. Sf S. 260. But if the possession was obtained under colour of a contract, trover cannot be sustained, 3 Campb. 299, 352; 3 Taunt. 274; unless a case of fraud can be proved. 7 Taunt. 59; 1 B. Sf C. 514.

So the wrongful assumption of the property or right of disposing of goods, may be a conversion in itself, and render unnecessary a demand and refusal, 5 East, 407; 6 East, 540; 4 Taunt. 24; 2 B. Sf B.Z; 6 J. B. Moore, 56, S. C.; 4 Taunt. 799 ; as well as any tender of charges, 1 Campb. 410 ; 2 M. Sf S. 298; 3 Campb. 472, 473. Thus a sale of a ship, which was afterwards lost at sea, made by the defendant, who claimed under a defective conveyance from a trader before his bankruptcy, is a sufficient conversion to enable the assignees of the bankrupt to maintain trover, without showing a demand and refusal. 5 East, 407, 420.

So where a person entrusted with the goods of another, puts them into the hands of a third person, contrary to orders, it is a conversion. 4 T. R. 2G4. And if one tenant in common sell the other's goods without his consent, it is a conversion, and trover is maintainable, 5 B. Sf A. 395 ; and where a carrier, Peake, C. N. P. 49 ; 5 Burr. 2825; see 1 Taunt. 391 ; 1 Campb. 409, 439, ante; or a wharfinger, 2 B. $ A. 702, by mistake, delivers goods to a wrong person, trover may be supported, though it would be otherwise if they were left by accident, lb. 41, n.; and if a person illegally make use of a thing found or delivered to him, it is a conversion in itself, Cro. Eliz. 219; or if a bailee, merely to keep or carry, and having no beneficial interest, misuse a chattel entrusted to him, Id. ibid.; as if a carrier draw out part of the contents of a vessel, and fill it with water, 1 Stra. 576 ; or if a carrier or wharfinger break open a box containing goods, or sell them. 2 Salk. 655. So an irregularity in a distress taken damage feasant may amount to a conversion, Cro. Jac. 148 ; Bac. Ab., Trover, B.; though not in the case of a distress for rent, when we have seen trover cannot be supported, 1 Hen. Bla. 10; and a party will be personally liable for the conversion to the use of another, although he acted under a supposition that he was justified in what he did. 4 M. $ S. 259.

But unless there be an illegal assumption of property, trover cannot in general be supported for a mere non-feasance, C East, 540; 2 B. Sf A. 701; and therefore if a carrier, or other bailee, by negligence, lose goods entrusted to his care, the remedy in general must be case or assumpsit, 5 Burr. 2825 ; 2 Saund. 47; Peake, C. N. P. 240; and an agent selling at an underprice is not liable to an action of trover, 3 Taunt. 117 ; and the retention of property under the decree of a court of competent jurisdiction, is no conversion. 4 J. B. Moore , 361.

In the preceding instances proof of the act of the defendant is sufficient without evidence of a demand and refusal, 4 Taunt. 801; but where the plaintiff is not prepared to prove some such actual assumption of property, trover cannot be supported without proof of a demand and refusal, or at least a neglect to deliver the goods. Bui. N. P. 44; 2 Saund. 47 e; 13 East, 177, 197 ; 1 Campb. 439 ; 5 M. Sf S. 105.

If in trover an actual conversion cannot be proved, then proof is to be had of a demand made, before the action brought, of the thing for which the action is commenced, and that the thing demanded was not delivered. In this case, though an actual conversion may not be proved, a demand, and refusing to deliver the things demanded, is a sufficient evidence to the jury that he converted the same, till it appears to the contrary. 10 Rep. 56, 491 ; 2 Lil. 619.

Where a defendant really comes to the possession by finding, denial is a conversion; but if he had the goods, &c. by delivery, there denial is no conversion, but evidence of conversion : and in both cases the defendant hath a lawful possession, either by finding or by delivery ; and where the possession is lawful, the plaintiff must show a demand and a refusal, to make a conversion : though if the possession was tortious, as if the defendant takes away the plaintiff's har, the very taking is a sufficient proof of the conversion, without proving a demand and refusal. Sid. 264 ; 3 Salk. 365.

By Holt, C. J., the denial of goods to him who hath a right to demand them, is a conversion; and after a demand and refusal, if the defendant tender the goods, and the plaintiff refuse to receive them, that will go only in mitigation of damages, not to the right of the action of trover, for the plaintiff may have that still. Mod. Cas. 212.

An action of trover and conversion may be brought for goods, although the goods came into possession of the plaintiff before the action is brought, which doth not purge the wrong, or make satisfaction for that which was done to the plaintiff by detaining the goods. If a man takes ray horse and rides him, and afterwards delivers him to me, trover lies against him, for this is a conversion, and the re-delivery is no bar to the action. 1 Dane. Abr. 21 ; 2 Lil. 618.

But it has been recently held, that a demand and refusal are evidence only, and are not conclusive of the fact of conversion, and they are cured by a subsequent tender of the goods before action brought. 1 Moo. Sf Sc. 459.

Where a trader, on the eve of his bankruptcy, made a collusive sale of his goods to the defendant, it was decided that the assignees could not maintain trover without proving a demand and refusal, 2 Hen. Bla. 135 ; 2 Esp. Rep. 96 ; or where the sheriff, having taken goods in execution after a secret act of bankruptcy, has not proceeded to sell. 3 Campb. 396 ; sed vide 4 M. § S. 268.

Such a demand and non-compliance are prima facie evidence of a conversion, and will induce a jury to find it, unless the defendant adduce evidence to negative the presumption ; as that he being a carrier, &c. lost the goods by negligence, &c. Bui. N. P. 44; 2 Saund. 47 e.; Peake's Lam of Evidence, 298; or that he had reasonable grounds for doubting the plaintiff's right, and offered to deliver them to the right owner. 3 Campb. 215 n.; 2 Bulst. 310; 5 J. B. Moore, 559, 266, n.; 2 B. <£ P. 464; 5 B. Sf A. 247. And where the demand of the things for which the action is brought is not made by the plaintiff himself, who is the owner, but by another person on his account, a refusal by the defendant, on the ground that he does not know to whom the things belong, or that the person who applies for them is not properly empowered to receive them, or until he is satisfied by what authority the application is made, this will not be such a refusal as to create a conversion. 1 Esp. N. P. C. 87 ; and see J. B. Moore, 259. In an action of trover against an agent, if the plaintiff rely on a refusal to deliver up the property as evidence of a conversion, it must amount to an absolute and not a mere qualified one; and on an agent's refusal to deliver up the goods without his master's directions, it is not sufficient to render him personally liable. 5 B. $ A. 247 ; 2 Mod. 242.

A refusal by a bailee to deliver goods to the real owner without the authority of the bailor, who has in fact no lien, is sufficient evidence of a conversion. 1 B. <$• A. 450.

Where the plaintiff sold utensils in a brewhouse to T. who paid for them, and was to take them away, but the defendant being possessed of the brewhouse, the utensils were demanded of him by the plaintiff's attorney, accompanied by T., when the defendant said he would not deliver them to any body, and afterwards the plaintiffs repaid T. and brought trover for the goods : the Court of King's Bench held that this demand and refusal were sufficient evidence of conversion to support the action, without any new demand after the re-payment to T. 5 M. Sr S. 105.

A. brought an action of trespass against B. for taking away a filly; B. justified the taking as the servant of C. ; the jury found a verdict for A., with damages, subject to a reference to D. one of the jurors, to ascertain to whom she belonged (which was to depend on whether a scar should appear on a certain part of her body, and in case it should, the verdict for A. was to stand; if not, it was to be entered for B.) The filly was delivered to D. by consent of all parties, and he made his award, and found her to belong to A., and accordingly ordered the verdict for him to stand. C, ten days after the award, demanded the filly of D., who refused to deliver her, and a fortnight afterwards C. brought an action of trover for her recovery: held that the detention of the filly by D. did not, under the circumstances, amount to a conversion; as C. was no party to the original action, and as it did not appear that he was authorized by B. to make the demand, to whom alone D. was bound to deliver her, he only being liable to the damages awarded to A. 5 Moore, 259 ; 2 B. 4- B. 447.

In trover against several defendants, all cannot be found guilty on the same count, without proof of a joint conversion by all. 1 M. Sr S. 588.

In trover for a bond, the plaintiff need not show the date, for the bond being lost or converted, he may not know the date: and if he should set out the date and mistake it, he would fail in his action. Cro. Car. 262. If the defendant find the bond and receive the money, action of account lieth against the receiver, and not trover. Cro. Eliz. 723.

Where the trover of goods is in one county, and the conversion in another county, the action brought for these goods may be laid in the county where the conversion was, or in any other county, as it is only a transitory action; and neither the place of trover nor conve rsion, are traversable. Pash. 23 Car. B. R.

Formerly under the general issue Not Guilty the special matter might have been given in evidence to prove the plaintiff had no cause of action, or to entitle the defendant to the thing in controversy. 2 Bulst. 313. Vide also 2 Salk. 654; Yelv. 198 ; Cro. Car. 27 ; 2 Lil. 622.

But the plea of Not Guilty now operates as a denial only if the breach of duty or wrongful act alleged to have been committed by the defendant, and all other pleas in denial must take issue on some particular matter of fact alleged in the declaration. See further, Not Guilty.

The jury are not limited to find as damages the mere value of the property at the time of the conversion, but they at their discretion find the value at a subsequent time, as damages. 1 C. Sr P. 625.

In trover for a bill of exchange, the damages are to be calculated according to the amount of the principal and interest due upon the bill at the time of the conversion. 3 Campb. 477.

After a plaintiff had recovered damages under a writ of inquiry in trover for the conversion of his title-deeds, the court permitted satisfaction of the damages to be entered on the roll, on the terms of the defendant's delivering up the deeds and paying all the costs as between attorney and client incurred by the plaintiff in the cause, and placing the as good a situation as he stood in before the cause of action accrued. 1 D. $ It. 201.

None shall be held to special bail in action of trover or detinue without a judge's order. Reg. Gen. K. B. and C. P. Hil. 48 Geo. 3. 9 East, 325; 1 Taunt. 203.

TRUCE, treuga.~\ A league or cessation of arms. Anciently there were keepers of truces appointed; as King Edward III. constituted, by commission, two keepers of the truce between him and the king of Scots, with this clause, nos voluntes treugam prcediclam quantum ad nos pertinct observari, fyc. Rot. Scot. 10 Edw. 3. See Conservators of the Truce, Safe Conduct. Ministries of T.W. Arman.







1414. As between appropriators, the one first in time is the first in right. QUO WARRANTO

1530. Novation is the substitution of a new obligation for an existing one. MANDAMUS

Congress has the right to make any law that is ‘necessary and proper' for the execution of its enumerated powers (Art. I, Sec. 8, Cl. 18). Signature:________________________________ in loco parentis

/s/ John F. Hutchens, parens patriae ; Tenant in-Chief; Warden of the Arboretum, Gales & Stannaries

I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are herein stated on my own information or belief, and as t those matters, I believe them to be true.

Date: October 28, 2010_ Signature:______ _________________________ parens, parens, parens.

Verified affidavit: /s/ John F. Hutchens, Chancellor & High Warden, Palatine & General Commissioner

Grantees Agent for Mr. T.W. Arman, expert, Mormaer & Special Deputy Levying Officer of Record.







USDC-CES Civ. 2:91-cv-00768 - USCA No. 09-17411,

USCFC No. 09-207 L, &c. CLASS ACTIONS -

CLERKS NOTICE: Detinue sur bailment-trover


Terris, bonis et calallis rehabendis post purgationem . A writ for a clerk to recover his lands, goods, and chattels formerly seized, after he had cleared himself of the felony of which he was accused, and delivered to his ordinary to be purged. Reg. Orig. 68.


The Courts Jurisdiction

This Court has jurisdiction of this case under 28 U.S.C. § 1491 (the Tucker Act) as a “claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department . . . .” This Court enjoys concurrent jurisdiction in equity with other Courts.


Petitioners are entitled to relief because they are the owners/ operators of Iron Mountain Mines, with vested and accrued existing rights of the locators, including all of the rights, privileges, and immunities of patent title, and including rights and immunities for agricultural college land grants, bounty warrant freehold estates, and General mining law claims and mineral patents.

§ 26. Locators' rights of possession and enjoyment; exclusive right.

§ 29. Patents; …the affidavits required made by authorized agent conversant with the facts.

§ 30. Adverse claims; judicial determination of right of possession;

§ 31. Oath: agent or attorney in fact, title may be verified by the oath of any duly authorized agent.

§ 33. Existing rights; all the rights and privileges conferred.

§ 40. Verification of affidavits before officer authorized to administer oaths within land district

§ 51. Vested and accrued rights; by priority of possession, rights vested and accrued,

…the possessors and owners of such vested rights shall be maintained and protected in the same;


In California , a complaint simply alleging the ownership by plaintiff of his mining location and the claim by defendant without right of an adverse interest has been held to allege enough.

In any event the party seeking to have a trust declared must make out a case against the patentee by evidence that is plain and convincing beyond reasonable controversy." It has been held that such a suit is clearly within the jurisdiction of the federal courts, regardless of the citizenship of the parties. In proceedings under Rev.Stat. §§ 2325, 2326 to determine adverse claims to locations of mineral lands, it is incumbent upon the plaintiff to show a location which entitles him to possession against the United States This is therefore an adverse claims proceeding.

In proper cases patentees will be held to be trustees for others equitably entitled to the land.

If the patentee bring ejectment, the trust may be set up as an equitable defense in Jurisdictions where such defenses are allowed.

Where a co-owner has been excluded from the patent the patentees become trustees for him to the extent of his interest, and it seems that he need not await the issuance of patent before suing.

Laches will operate as a bar.

Extent of the Taking

It is well established that a physical taking is defined by the government's corporeal violation of private property. As the Supreme Court has noted, “where real estate is actually invaded . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Loretto v. Teleprompter Manhattan CATB Corp., 458 U.S. 419, 427 (1982) (quoting Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871)). The Court has similarly emphasized that, “[t]he hallmark of a physical taking is government occupation of real property.” Alameda Gateway, Ltd. v. United States , 45 Fed. Cl. 757, 762 (1999), quoting Loretto, 458 U.S. at 426 (1982).

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

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

Two Miners has expert testimony stating that, “the mere existence of this huge quantity of waste on the property, even in a constructed repository, creates too great a potential [CERCLA] liability for anyone to consider purchasing the land.”

In summary, Iron Mountain Mines experts in the valuation of contaminated property argue that anyone buying the Property before the EPA completes the removal action and removes the sludge from the Open Pit would potentially bear liability under CERCLA for costs incurred in the removal action.

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

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

According to Iron Mountain Mines, it follows that just compensation should be the difference between the Property's pre-taking fair market value and the sum resulting from the cost of the removal of the hazardous waste in the Open Pit added to the CERCLA liability incurred.

The stigma associated with general contamination and burden of infamy associated with natural resource damage and fish extinction dramatically affects the entire Property's value.

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

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

Iron Mountain Mines argument is that the Open Pit's taking negatively impacts the entire Property's value on the basis of the evidence.

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

The Removal Action as a Special Benefit

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

owed for the property of Iron Mountain Mines must be reduced by any special benefits from the government action accruing to the remainder of the property. Hendler, 38 Fed. Cl. at 1380. Special benefits are benefits which inure to the particular property suffering the taking, rather than to the general public. The United States placed a statutory lien for “unrecovered past response costs” and stated that the removal action conferred a special benefit upon the Property which we should deduct from any ultimate damages valuation, and inferred that it was justified as a “windfall” lien.

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

Having resolved these issues, let us now turn to the determination of the Property's fair market value as a function of calculating the just compensation owed to Iron Mountain Mines.

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

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

A reasonable valuation of the Property's value as a mine before the EPA's removal action estimates the Property's value based upon the 20 million plus tons of proven ore reserves plus 5 million tons of probable reserves and the assay of minerals and the prices of Gold, Silver, Copper, Zinc, Iron, Aluminum, Magnesium, Manganese, Vanadium, Titanium, Cobalt, Nickel, and other minerals and by-products at close to $18,400,000,000 (billion). Assuming the EPA estimate of mining and remediation at $1.400,000,000 (billion) is correct, The fair market value would be $17,000,000,000 (billion). Add to that a fair market value of the land surface (4,400 acres) for the future complete development (1 billion), yields a gross takings value of $18,000,000,000 (billion) of Just Compensation Valuation. Additional value of the estimated 20 billion tons of building stone available incidental to mineral resources indicates a total potential value of $72 billion.

Iron Mountain Mines calculates the fair market value of mining on the Property prior to the taking by determining the present value of the future income stream of minerals that could have mined on the Property absent the taking over a twenty year period. This methodology required an estimate of the annual production of minerals on the Property to determine the present value of the future royalty income stream.

T.W. Arman and John Hutchens assume that solution mining would have averaged annual production of 500,000 tons of mineral products and a royalty of $100,000,000 (million) per year. Multiplying projected annual production by this royalty rate, annual royalties from January 1989 until January 2009 would be $2,000,000,000.

T.W. Arman and John Hutchens therefore believe the present value of lost mining opportunity on the Property as of January 1, 1989, to the present at $2,000,000,000.

It is well established that “comparable sales are considered by the courts to be the best evidence of fair market value, and thus preferable to other forms of valuation.” Stearns Co., Ltd. v. United States , 53 Fed. Cl. 446, 458 (2002) (citing United States v. 50 Acres of Land, 469 U.S. 24 (1984)); Kirby Forest Indus. Inc. v. United States , 467 U.S. 1 (1984). Other valuation methods may prove useful, but a comparable sales methodology is a generally superior indicator of value if an active real estate market existed in the vicinity of the subject property prior to the taking. See Florida Rock Indus., Inc. v. United States , 45 Fed. Cl. 21, 35 (1999) (citing Whitney Benefits, Inc. v. United States , 18 Cl. Ct. 394, affirmed 926 F.2d 1169 (Fed. Cir.), cert. denied, 502 U.S. 952 (1991)).

Here, Iron Mountain Mines valued the Property's worth for mining since no comparable comparison was or is available, by analyzing the Property's pre-taking future income stream.

Iron Mountain Mines claims that future income stream analysis is appropriate here because the valuation of mineral interests is preferably done by determining the present value of a future income stream. Iron Mountain Mines support this view by arguing that the federal government, in its Uniform Appraisal Standards for Federal Land Acquisitions, states that, “[p]roperty having a highest and best use for mineral production may be appraised utilizing an income approach when comparable sales are lacking.” Uniform Appraisal Standards at 23-24 (internal citations omitted). Iron Mountain Mines further points to Whitney Benefits, Inc. v. United States , in which the Federal Circuit approved of the use of future income stream analysis, as support for the relevance of future income stream analysis in the present case. See 962 F.2d 1169 (Fed. Cir. 1991).

Deprived miners T.W. Arman and John Hutchens are entitled to interest on just compensation awarded pursuant to Fifth Amendment takings. Stearns Co., Ltd, v. United States , 53 Fed. Cl. 446, 466 (2002) (citing Kirby Forest Indus. v. United States , 467 U.S. 1 (1984)). Thus, an award to T.W. Arman and John Hutchens with compounded prejudgment interest from the date of the taking until the date of the judgment is proper. See Id. (citing United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588 (1947); Miller v. United States, 223 Ct. Cl. 352, 360 (1980). We date the taking as having actually accrued as of March 9 th , 2007, as the day the EPA project manager and/ or the site operator replaced the gate at the property entrance and refused to provide T.W. Arman with the key or code. Previously the EPA and its contractors had not interfered with T.W. Arman's possession and enjoyment of the property, and the EPA has always averred that it makes no claim to a right of possession of the property, and the project manager has publicly proclaimed as recently as this year that Mr. Arman is free to do whatever he wants with the property, because he is the owner.

Petitioners appreciate every indulgence extended by the court in consideration of the overly verbose or turgid pleadings, and petitioners further acknowledge the courts tolerance of any inadvertence in the pleadings such as referring to the lost mining opportunity as a commencement of the takings, an reasonable misunderstanding of the meaning of a takings, and when the facts of the case indicate otherwise. The EPA and its contractors had until March of 2007 conducted themselves with due propriety for which Mr. Arman affectionately referred to them as “the janitors”. The EPA first published information indicating that it did not intend to perform additional RODs, (record of decision) in May of 2006, so in the absence of any protest of the CERCLA actions, no claim would be ripe for adverse possession until after that time.

Interest computation will be based upon the Contracts Disputes Act, 41 U.S.C. §§ 601-13 (1982). See Jones v. United States , 3 Cl. Ct. 4, 7 (1983). Iron Mountain Mines further seeks awards of attorney fees and costs incurred as a result of litigation to T.W. Arman and John F. Hutchens under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 42 U.S.C. § 4601 et seq. (1995 & 2002 Supp.). Attorney Fees: CERCLA Private Recovery Actions , 10 Pace Envtl. L. Rev . 393 (1992)

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

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

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

For these reasons T.W. Arman and John Hutchens dispute the United States lawful authority to conduct these CERCLA remedial actions (removal) and demand the return of the property and restoration of rights, privileges, and immunities of patent title to the possession and enjoyment of T.W. Arman and John F. Hutchens.

Because the United States, even with congressional approval, executive authorization, and district court decree, has no actual justification for its actions, and the only remedy found to be fully protective of human health and the environment is to finish the mining begun 150 years ago, the only remedy consistent with CA-10 of the administrative record, (complete removal of the source) which is what Iron Mountain Mines, Inc. was doing before the EPA interfered, the EPA should be found liable for the taking of private property for the public benefit requiring the payment of just compensation under the 5 th amendment of the constitution.

T.W. Arman used “due care” in the purchase of the property, because copper, zinc, and cadmium were not listed as “hazardous substances” under the provisions of the Clean Water Act (CWA) in 1976 when the property was purchased, and California laws regarding mining operations compliance with federal regulations show that Iron Mountain Mines was not in violation of any law.


T.W. Arman and John F. Hutchens claim that the EPA's remedial (removal) actions constitute a taking of the Iron Mountain Mines property warranting just compensation under the Fifth Amendment of the constitution of the United States for a partial takings of private property with actual damages of lost mining opportunities plus stigmatic injuries and property and incidental damages of $7,074,500,000 (billion). Petitioners seek an award of $7,074,500,000 (billion) in just compensation, with detinue sur bailment, reversion, remission, plus interest, attorney's fees, expert fees and costs. In the alternative that the United States actions are a condemnation that will prevent the lawful mining of Iron Mountain Mines, T.W. Arman and John F. Hutchens seek an award for the complete taking of private property for the public benefit requiring the payment of $18,000,000,000 (billion) in just compensation.

Plaintiff's “Two Miners” submit that plaintiff's mutual interests are undivided interests.

      Wherefore, the United States is liable for the taking of private property requiring the payment of just compensation under the 5 th amendment of the constitution of the United States, we demand judgment against the United States of seven billion, seventy four million, and five hundred thousand dollars for the partial takings and stigmatic injury, or eighteen billion dollars for the complete takings of the Iron Mountain Mines properties, plus interest, fees, and costs.


1. Plaintiffs in this matter demand exoneration by virtue of the innocent landowner defense, third party defense, and act of God defenses, for restitution of the property invaded for CERCLA actions entered and to void and vacate judgment, void and vacacte consent decree and vacate premises.

2. Plaintiffs demand just compensation for lost mining opportunity resulting from actions by the EPA represented as lawful police actions conducted for the public and environmental welfare, but found not to be fully protective of human health and the environment when such a remedy was offered by the plaintiffs at less expense, but prevented by the actions of the EPA on behalf of the United States. Plaintiffs seek further just compensation for illegitimate animus and vindictive actions, despotism and tyranny, false claims, and negligently arbitrary and capricious reckless endangerment and malicious prosecution.

3. Plaintiffs demand just compensation for the stigmatic injuries by the EPA.

4. Plaintiffs demand the creation and appointment of the Essential Products Administration, and the creation and appointment of the Special Deputy Attorney General thereof.

5. Plaintiffs demand review to contest the constitutionality of CERCLA, and request the court to certify constitutional questions to the United States Supreme Court.

6. Plaintiffs demand a determination of unfair and unjust burden upon T.W. Arman, John Hutchens, and Iron Mountain Mines et al that should be borne by the public as a whole.

7. Plaintiffs demand a determination of liability of the United States for contribution to hazardous waste disposal.

8. Plaintiffs demand retractions and exonerations by the government which allowed the character of T.W. Arman and Iron Mountain Mines to be libeled and slandered with abuse of process and malice to the severest possible unfair and unjust stigma with illegitimate animus and vindictive actions.






This is a paradigmatic issue for resolution by the Judiciary. The federal courts historically have resolved disputes over land, even when the United States military is occupying the property at issue.

In Megapulse, Inc. v. Lewis the court held that declaratory relief may be granted in the district court for unlawful government activities regardless of whether damages might also be available in the Claims Court .

As Justice (then Judge) Cardozo admonished, "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."

The ability of the United States plaintiffs to sue does not turn on whether certain rights which may belong only to the corporation may be asserted "derivatively" by the sole shareholder or on whether we should "lift the corporate veil."- The "standing" inquiry may be conducted along two different branches: first, whether there is a cognizable property interest under the United States Constitution directly assertable by a United States citizen-shareholder; and second, whether (a) there is a cognizable property interest directly belonging to the corporation, and (b) if so, the scope of a shareholder's right to assert that interest derivatively. The crucial issue here is whether the plaintiffs have constitutional rights of their own, which exist by virtue of their exclusive beneficial ownership, control, and possession of the properties and businesses allegedly seized.

Properly understood, the question is whether the plaintiffs' and the wholly owned [ California ] corporation have a judicially cognizable interest in the affected property sufficient to enable them to sue for an unconstitutional deprivation of the use and enjoyment of that private property. Because the plaintiffs have a protected property interest for the purposes of the claims asserted here they have standing to sue

The court must concede on standing that the plaintiffs as individuals "have a cognizable property interest in the land, which interest, since they are American citizens, is protected by the Constitution." (Ramirez, Dissenting Opinion of Scailia, J., at 1556).. If the 100% owner, T.W. Arman, has an interest protected by the United States Constitution, that is enough to compel the United States [Federal Claims] Court to go forward.

As such, cases involving corporate shareholders' attempts to sue for a violation of a constitutional right which attaches only to individuals when the challenged action affected only the corporation are inapposite. The approach taken in the instant case is consistent with the holdings of those cases by its focus on the nature of a shareholder's personal interests and injuries and his own constitutional rights in determining whether the shareholder has a right to sue.

[T]he Supreme Court has held that monetary relief for unauthorized Executive seizures is not available in the Claims Court . . . . `The taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of Congress, is not the act of the Government,' and hence recovery is not available in the Court of Claims.' . . .

[I]njunctive relief is available [in U.S. District Court] when the [property] owner proves that government officials lack lawful authority to expropriate his property.

Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1522 (D.C. Cir. 1984)(en banc) (emphasis in original) (footnote omitted), vacated on other grounds and remanded, 471 U.S. 1113 (1985), dismissed on other grounds, 788 F.2d 762 (D.C. Cir. 1986) (en banc), quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 127 n.16 (1974) (quoting Hooe v. United States, 218 U.S. 322,336 (1910)). Injunctive relief is also available in U.S. District Court `when the monetary compensation available exclusively in the Federal Court of Claims would be wholly inadequate to compensate the complainant for the alleged taking.' Transcapital Financial Corp., 44 F.3d at 1025.




§ 6973. Imminent hazard

(a) Authority of Administrator

Notwithstanding any other provision of this chapter, upon receipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court against any person (including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility) who has contributed or who is contributing to such handling, storage, treatment, transportation or disposal to restrain such person from such handling, storage, treatment, transportation, or disposal, to order such person to take such other action as may be necessary, or both. A transporter shall not be deemed to have contributed or to be contributing to such handling, storage, treatment, or disposal taking place after such solid waste or hazardous waste has left the possession or control of such transporter if the transportation of such waste was under a sole contractual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. The Administrator shall provide notice to the affected State of any such suit. The Administrator may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and the environment.

(b) Violations

Any person who willfully violates, or fails or refuses to comply with, any order of the Administrator under subsection (a) of this section may, in an action brought in the appropriate United States district court to enforce such order, be fined not more than $5,000 for each day in which such violation occurs or such failure to comply continues.

(c) Immediate notice

Upon receipt of information that there is hazardous waste at any site which has presented an imminent and substantial endangerment to human health or the environment, the Administrator shall provide immediate notice to the appropriate local government agencies. In addition, the Administrator shall require notice of such endangerment to be promptly posted at the site where the waste is located.

(d) Public participation in settlements

Whenever the United States or the Administrator proposes to covenant not to sue or to forbear from suit or to settle any claim arising under this section, notice, and opportunity for a public meeting in the affected area, and a reasonable opportunity to comment on the proposed settlement prior to its final entry shall be afforded to the public. The decision of the United States or the Administrator to enter into or not to enter into such Consent Decree, covenant or agreement shall not constitute a final agency action subject to judicial review under this chapter or chapter 7 of title 5 .

APA CLAIMS § 1491 (b)(4) § 706. Scope of review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.


(b) The application shall be executed under oath and shall include all of the following:

(1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. DEED (BOUNTY WARRANTS, PATENT TITLE FILED)

(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention.















(3) Limitations on Response.--The President shall not provide for a removal or remedial action under this section in response to a release or threat of release--

(A) of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found;

(3) A particular description of the property and a statement of its value. IRON MOUNTAIN MINES PROPERTIES includes 360 ACRES agricultural college patent from the United States of America State of California, 2384 ACRES mineral patents & fee simple from the United States, 137 THOUSAND ACRES IN CONDEMNATION , and 103 MILLION ACRES EXTRALATERAL TITLE WITH AN ESTIMATED VALUE OF $72 BILLION DOLLARS.

(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property ( SHASTA COUNTY , CALIFORNIA )

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.



(c) The requirements of subdivision (b) may be satisfied by one or more affidavits filed with the application.

512.020. (a) Except as otherwise provided in this section, no writ shall be issued under this chapter except after a hearing on a noticed motion.

(b) A writ of possession may be issued ex parte pursuant to this subdivision if probable cause appears that any of the following conditions exists:

(1) The defendant gained possession of the property by feloniously taking the property from the plaintiff. TRUE!

(iii) The ex parte issuance of a writ of possession is necessary to protect the property. TRUE!

512.070. If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court.

512.080. The writ of possession shall meet all of the following requirements:

(a) Be directed to the levying officer within whose jurisdiction the property is located.

(b) Describe the specific property to be seized.

(c) Specify any private place that may be entered to take possession of the property or some part of it.

(d) Direct the levying officer to levy on the property pursuant to Section 514. 010 if found and to retain it in custody until released or sold pursuant to Section 514.030.

(e) Inform the defendant of the right to object to the plaintiff's undertaking, a copy of which shall be attached to the writ, or to obtain redelivery of the property by filing an undertaking as prescribed by Section 515.020.

Written notice to terminate & deliver possession. August 17 2009

Almost 30 years after Congress instructed the Environmental Protection Agency (EPA) to require facility owners and operators to set aside funds for the clean-up of property that may be contaminated by hazardous substances, a federal court in California has held that the EPA may take additional time to draft and issue the regulations. The court held that while Congress required the EPA to issue such regulations, it granted the EPA some discretion in when to do so. The EPA has stated that it intends to require financial assurance for hardrock mining facilities first, and will also assess the need to regulate hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities and chemical manufacturers.

The regulations at issue are required under the Comprehensive Environmental Response, Compensation and Liability Act 1980 (commonly known as 'Superfund'). Superfund is commonly said to have been motivated by the notorious hazardous waste contamination discovered buried at Love Canal , New York .

Section 108 of Superfund requires the EPA to issue financial assurance requirements for certain types of facility based on the risk of injury from hazardous substances in operations at those facilities. Once issued, the regulations would require the operator of a covered facility to set aside funds or otherwise make funds available for a possible future clean-up of hazardous substances at the property. Without such funds, costly clean-ups may force potentially responsible parties into bankruptcy, leaving taxpayers with the bill, or lengthy litigation may ensue over the allocation of costs. The EPA was first required to publish a notice of those classes of facility which presented the highest level of risk of injury by December 11 1980. (1)

The December 1980 deadline passed without the EPA publishing the required notice. The statutory requirement languished until in recent years it received renewed attention. The EPA was sued in federal court in 2008 on the theory that it had failed to perform a non-discretionary duty under Superfund. The suit was brought under Superfund's citizen suit provision, which allows a private litigant to force non-discretionary agency action. In February 2009 the Northern District of California held in Sierra Club v Johnson (2) that the EPA had a mandatory duty to publish classes of facility which presented the greatest risk of injury. In July 2009 the EPA published a notice of these classes in the Federal Register, pursuant to the court's order. (3) In its notice the agency determined that it would promulgate the first financial assurance requirements for hardrock mining facilities, based on the extent of contamination from such facilities and the high costs of clean-up.

The EPA did not limit its inquiry to hardrock mining; the notice also stated that the EPA will examine the need for financial assurance at the following types of facility: "hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers." However, the Northern District of California held that the EPA is under no set deadline to issue the financial assurance requirements. Instead, the court held that:

"although Section 108(b) requires EPA to promulgate financial responsibility regulations and incrementally impose such requirements, Section 108(b) provides EPA with discretion as to when to promulgate such regulations. Unlike the duty to publish notice of classes, Section 108(b) does not include a date-certain deadline for the promulgation of financial responsibility regulations." (5)

In so doing, the court rejected "a bright line rule that only duties with date-certain deadlines are non-discretionary for the purpose of citizen suits under [Superfund]" and instead looked to legislative history to help determine whether the EPA's duty to promulgate regulations by a particular date was non-discretionary. To maintain a claim that the EPA has "unreasonably delayed" its duties under Superfund, the court held that plaintiffs may continue to press their claims under the Administrative Procedure Act, but must do so in another court. The court stated that:

"plaintiffs may bring an [Administrative Procedure Act] claim in the Court of Appeals for the D.C. Circuit alleging EPA unreasonably delayed in promulgating the financial responsibility regulations required under Section 108(b)."

Unless and until such a litigation is brought and decided, the timeline for financial assurance requirements under Superfund will remain unclear.

unrecovered past response costs for the EPA's unnecessary, unconstitutional, and improper activities. EQUITABLE ESTOPPEL


Superior Court of California, County of Shasta

Petitioners request leave of the court to file a complaint in intervention in the above captioned matter, where California has maintained a lien for a fine resulting from enforcement of federal discharge standards promulgated under the CWA.


Therefore, to “establish certain limits not to be transcended by the government.”

Given [mining's] unique political history, as well as the breadth of the authority that the [EPA] has asserted, the Court is obliged to defer not to the agency's expansive construction of the statute or to Congress' inconsistent judgment, but to prior rights and patent title to deny the [EPA] this power.…

“Full relief and restore possession to the party entitled thereto. a general verdict for plaintiff on a complaint which alleges that the plaintiff is entitled to the possession of certain described property, which is unlawfully detained by the defendant, and the possession of which the plaintiff prays to recover, is held by the United States Supreme Court to be sufficient.”

Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States , to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America ." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

It is not material whether the Libel be true, or whether the party against whom the Libel is made, be of good or ill fame; for in a settled state of Government the party grieved ought to complain for every injury done him in an ordinary course of Law, and not by any means to revenge himself, either by the odious course of libeling, or otherwise: He who kills a man with his sword in fight is a great offender, but he is a greater offender who poisons another, for in the one case he who is the party assaulted may defend himself, and knows his adversary, and may endeavour to prevent it: But poisoning may be done so secret that none can defend himself against it; for which cause the offence is the more grievous, because the offender cannot easily be known; And of such nature is libeling, it is secret, and robs a man of his good name, which ought to be more precious to him than his life, & difficillimum est invenire authorem infamatoriae scripturae; because that when the offender is known, he ought to be severely punished. Every infamous libel, aut est in scriptis, aut sine scriptis; a scandalous libel, in scriptis; when an epigram, rhyme, or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published, 1. Verbis aut cantilenis: As where it is maliciously repeated or sung in the presence of others. 2. Traditione, 7 when the libel or copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis 8 may be, 1. Picturis, as to paint the party in any shameful and ignominious manner. 2. Signis, as to fix a Gallows, or other reproachful and ignominious signs at the parties door or elsewhere. That if anyone finds a Libel (and would keep himself out of danger), if it be composed against a private man, the finder either may burn it, or presently deliver it to a Magistrate: But if it concerns a Magistrate, or other public person, the finder of it ought presently to deliver it to a Magistrate, to the Intent that by examination and industry, the Author may be found out and punished. And libelling and calumniation is an offence against the Law of God. For Leviticus 17, Non facias calumniam proximo. Exod. 22 ver. 28, Principi populi tui non maledices. Ecclesiastes 10, In cogitatione |[126 a] tua ne detrahas Regi, nec in secreto cubiculi tui diviti maledices, quia volucres coeli portabunt vocem tuam, & qui habet pennas annuntiabit sententiam. Psal. 69. 13, Adversus me loquebantur qui sedebant in porta, & in me psallebant qui bibebant vinum. Job. 30. ver. 7. & 8, Filii stultorum & ignobilium, & in terra penitus non parentes, nunc in eorum canticum versus sum, & factus sum eis in proverbium. 9 And it was observed, that Job, who was the Mirrour of patience, as appeareth by his words, became quodammodo impatient when Libels were made of him; And therefore it appeareth of what force they are to provoke impatience and contention. And there are certain marks by which a Libeller may be known: Quia tria sequuntur defamatorem famosum: 11 1. Pravitatis incrementum, increase of lewdness: 2. Bursae decrementum, decrease of money, and beggary: 3. Conscientiae detrimentum, shipwreck of conscience.”

Selected Writings of Sir Edward Coke, vol. I





Date: November 19, 2009 _under oath, Signature:

s/John F. Hutchens, grantees agent, tenant-in–chief, administrator; Iron Mountain Mines, Inc.



Verification affidavit:

I, John F. Hutchens, hereby state that the same is true of my own knowledge, except as to matters which are herein stated on my own information or belief, and as to those matters, I believe them to be true.

Affirmed this day: November 19, 2009

Grantee's agent of record; Signature:

s/ John F. Hutchens, authorized agent for T.W. Arman & Iron Mountain Mines, Inc.


Today's redistricting battles reminiscent of 1780s

Richmond, Va. -- By Tyler Whitley | TIMES-DISPATCH STAFF WRITER
Published: November 27, 2010

Years before the term was coined, Patrick Henry tried to gerrymander James Madison out of a Virginia congressional seat.

The two had quarreled over whether Virginia should ratify the Constitution. Gov. Patrick Henry was against it; James Madison favored it.

Madison won the 1789 election by a handful of votes.

In his book " James Madison and the Struggle for the Bill of Rights," historian Richard Labunski relates how the two men struggled in scenes reminiscent of today's redistricting battles.

Based on the 2010 census, the Virginia General Assembly will draw up new congressional districts and new legislative districts next year.

Furious at Madison's success in getting Virginia to endorse the Constitution, Henry was able to force him to run in a House of Representatives district packed with anti-Federalists. He then recruited a war hero, James Monroe , to run against Madison .

Henry also persuaded the General Assembly to approve a bill that would prevent Madison from running in a friendlier district.

The 5th Congressional District then consisted of Madison's home county of Orange, Monroe's home county of Spotsylvania , and Culpeper , Louisa , Goochland , Fluvanna , Albemarle and Amherst counties.

To choose the counties, Henry looked at the results of the voting when Virginians elected delegates to the state ratifying convention, looking at their pro-Constitution, Federalist leanings or their anti-Constitution, anti-Federalist leanings. Albemarle and Orange were the only counties whose delegates voted to ratify the Constitution.

Because voters were required to be male, 21 years or older and property owners, Labunski estimated 5,189 men were eligible to vote in the eight counties.

Shy and reticent, Madison at first didn't want to go back to the district to campaign, but friends convinced him he should. He did not like to ask for votes. Monroe , meanwhile, was known for his warm personality.

The race was a tough one, fought during cold winter months. At one point, Madison suffered a frostbitten nose while riding to a campaign appearance. There was 10 inches of snow two days before the Feb. 2, 1789, election. According to a log at Madison's home, Montpelier, the temperature at sunrise on Election Day was 2 degrees.

Madison won 1,308 to 972. About 44 percent of the eligible voters cast ballots.

Years later, Monroe succeeded Madison as president , after serving as his secretary of state and secretary of war.

The word "gerrymander" was first used after Elbridge Gerry, as governor of Massachusetts , was involved in the creation of a legislative district in 1812 that resembled a salamander. Gerry went on to serve as vice president under Madison in 1813 and 1814.

Historical Documents

Introduction and Contents

(New, Jan. 21, 2007) This page contains links to a growing number of documents, dating back almost 3800 years to the time of Hammurabi, that have been among the cornerstones of human civilzation. They have influenced our perceptions and practice of statecraft, diplomacy, and the rights and responsibilities of communities, and of individuals. Their influence has persisted, often over centuries, as part of the conditions in which we live now and envision the future.

These entries are divided into two main sections: Foundations, or fundamental documents of civilization and state, and Contemporaries, documents, laws, treaties, etc. arising at specific times. You will find lists for both sections immediately below, with the links, in turn, below them. There may be two or more links for each document, including commentaries, historical background, and more. The documents are in approximately chronological order. All documents are in English; some may include versions in the original language, as well. Unless noted otherwise, the linked documents are complete.

Are there additional materials that you'd like to see linked here? We welcome leads to key documents from nations and peoples worldwide. Let us know, and we will try to find and post them.

Geotrees offers this information in the pursuit of knowledge, understanding, reconciliation and peace among the peoples and nations of the earth.


  • The Code of Hammurabi
  • Translations of the Holy Qur'an, or Koran
  • The Magna Carta
  • New! (Sunday, January 21, 2007)  The Constitution of the Iroquois Nations, or Great Law of Peace
  • The US Declaration of Independence
  • The US Constitution, including Bill of Rights and Subsequent Amendments
  • The Federalist Papers, or The Federalist
  • The James Madison Papers
  • "Common Sense," "The Crisis," "The Rights of Man," and "The Age of Reason" by Thomas Paine
  • Declaration of the Rights of Man (Revolutionary France)
  • The Emancipation Proclamation
  • The European Constitution
  • The European Convention on Human Rights, with Its Five Protocols
  • The Constitution of Iraq, and Transitional Law of Administration
  • New! (Wednesday, January 10, 2007)  Adolf Hitler's Mein Kampf , or "My Struggle"
  • The Downing Street Memo and Related Documents
  • The 2001 US Patriot Act
  • The Presidential Signing Statements of George W. Bush, 2001 and Since
  • The Geneva Conventions and Protocols
  • "Faith, Reason and the University," from Pope Benedict's address at Regensberg University; plus his subsequent personal apology
  • The US Uniform Code of Military Justice (UCMJ)
  • Manual for Courts-Martial, United States , 2005 edition
  • S.3930 - The Military Commissions Act of 2006
  • New! (Friday, December 29, 2006)  The Iraq Study Group Report
  • New! (Wednesday, January 10, 2007)  The President's Address to the Nation on Iraq , January 10, 2007.

Additional documents will follow.

Many host sites, such as the US National Archives, offer links of their own to biographical, scholarly, or related items. Documents are often available in downloadable, printable form for your convenience.

Sources' Objectivity:   Our source sites are often organizations, government or private, with their own causes and agendas. We choose them, however, because they make the documents themselves available in their original integrity, and we may offer links from different sources for a given document. By exploring the variety of knowledge and perspective available, the reader can develop a fuller, richer grasp of the contexts in which those documents and their ideas breathe and live.

We invite the reader to distinguish the documents themselves from any opinion or commentary associated with them. In fact, partisan commentary itself is always an interesting subject of rational study, analysis, and evaluation. We welcome you to the opportunity.

Knowledge and Empowerment, Personal and Shared:   Our source for the presidential signing statements link, Mr. Ron Benjamin, made an important point in his note to "the Tree": "I have mixed emotions about being labeled as the source of the link: while it is the truth that I directed you to it, the associated AltaVista search took about 5 minutes and could just as easily have been done by others."

Ron reminds us that everyday people in the community, using tools available to most of us, can uncover and share important, empowering information in a relatively short time. Sometimes just a few minutes is all it takes to move from ignorance to knowledge, from bewilderment to understanding and, perhaps, to transformation. And the power of this process multiplies as we share it with others, including our young people. Let's not sell anyone short!

Special thanks, then, to Ron, and to all our contributors. We look forward to learning about what's important to you, and to making it available to others on Geotrees.Com.   TOP


A.   Foundations

The Code of Hammurabi (ca. 2500 BC)
From Leb.Net. / "Translated by LW KIng. With commentary from Charles F. Horne, PhD (1915) and The Eleventh Edition of the Encyclopaedia Britannica, 1910 by the Rev. Claude Hermann Walter Johns, MA Litt.D."  

Translations of the Holy Qur'an, or Koran
"The Qur'an (also known as the Koran) is the primary sacred text of Islam. Devout Muslims believe that only an Arabic version of this text is the actual Qur'an, so please be aware of this." (The Internet Sacred Text Archive). Posted to Geotrees on Tuesday, September 19, 2006.   TOP

The Magna Carta
From the US National Archives / "Featured Documents" section. In user-friendly modern English.   TOP

The Constitution of the Iroquois Nations, or Great Law of Peace
(Sunday, January 21, 2007)   "The Great Binding Law - ?GAYANASHAGOWA." From the Indigenous Peoples Literature site. Additional links and information to come.   TOP

The United States Declaration of Independence
From the US National Archives / "Charters of Freedom" section.   TOP

The United States Constitution, with Bill of Rights and Subsequent Amendments
The entire Constitution, including the Bill of Rights, US Constitution, and Amendments 11 through 27, each with its own link below. From the US National Archives / "Charters of Freedom" section.   TOP

The Federalist Papers, also known as The Federalist
From the Library of Congress / "THOMAS Legislative Information on the Internet" section, which also includes extensive information and links for Congressional activities.   TOP

The James Madison Papers
From the Library of Congress' American Memory collection. When the linked page appears, see the links "Browse Collection by: Title / Name / Series" options in the left-hand column. Thanks to Irene Martinez for the suggestion, and for the link.   TOP

"Common Sense" (1776) by Thomas Paine
From the website of The Constitution Society, "a private non-profit organization dedicated to research and public education on the principles of constitutional republican government. It publishes documentation, engages in litigation, and organizes local citizens groups to work for reform." You can reach their home page using the core of the URL here. And. . . Thanks to Irene Martinez for the suggestion, and for the link.   TOP

Four Foundation Documents by Thomas Paine
(From the Thomas Paine pages on the UsHistory.Org website, which includes introductory and biographical information, as well. And. . . Thanks yet again to Irene Martinez for the suggestion, and for the link.)   TOP

The Declaration of the Rights of Man, Approved by the National Assembly of France, August 26, 1789
From the Avalon Project at Yale Law School.   TOP

The Emancipation Proclamation, complete text
From the National Park Service's website on the Battle of Sharpesburg, aka Antietam Creek.   TOP

The European Constitution
Includes related and supporting pages from the University of Zaragoza, or Unizar, site.   TOP

The European Convention on Human Rights, with its Five Protocols
The document, with links. from the HR-NET Hellenic Resources Network site. Carried on a number of other sites, with additional links, as well. Thanks to Ulrike Scholl-Dorn for the suggestion.   TOP

The Constitution of Iraq:  Draft Constitution, and the Transitional Law of Administration
Documents in the development of Iraq's constitution: 1) current partial text of the proposed draft constitution; and 2) the earlier Coalition Provisional Authority (CPA) Law of Administration for the State of Iraq, on the CPA website. Both as of Wednesday, August 25, and updated by their source sites.   TOP


B.   Contemporaries

Adolf Hitler's Mein Kampf ("My Struggle"), the complete text
What were the psychological and mental conditions that catalyzed Nazi Germany and World War II? How did Hitler make the choices he did? What parallels may they have throughout history, in the roots of the future, and in human nature generally? This book may help find the answers. "A Project Gutenberg of Australia eBook."  

The Downing Street Memo, complete text, with links
The same complete document, as hosted on two different sites, each with its own secondary comments, and links to other relevant primary documents.   TOP

The 2001 US Patriot Act
Presented by the Electronic Privacy Information Center, or EPIC.   TOP

The Presidential Signing Statements of George W. Bush, 2001 - 2006
Presented by , which provides links to the statements with annotations, and to related bills and laws, at the White House and US Government Printing Office (GPO) websites. Posted to Geotrees on Wednesday, July 5, 2006.

Thanks to Mr. Ron Benjamin of the OurWPFW discussion group on Yahoogroups for finding this connection. Please see our related comments in the introduction at page top. And thanks, too, to Max Obewszewski of the Baltimore American Friends Service Committee, or AFSC, for posting the US News article to his mailing list. Contact Max at mobuszewski( AT )   TOP

The Geneva Conventions and Protocols
Links to the four Conventions and their three Protocols, on the International Red Cross and Wikipedia sites, plus an online Reference Guide from the Society of Professional Journalists. Posted to Geotrees on Sunday, September 17, 2006.   TOP

"Faith, Reason and the University," The Pope's Address at Regensberg University, September 12, 2006, plus His Apology, September 16.
Links to the pope's address, including his quotes about the early history of Islam, in edited extract from The Times of London , and to his subsequent apology, carried in The New York Times . Posted to Geotrees on Monday, September 18, 2006. UPDATE, September 24, 2006: The complete text of the speech is now available on the Zenit News Service site; link below.   TOP

US Uniform Code of Military Justice (UCMJ)
Both of the following links are to the Cornell University Law School's Legal Information Institute, or LLI. The US Code contains the UCMJ within it as Title 10, Subtitle A, Part II, Chapter 47, and you will find the following link to the UCMJ within the link to the US Code. Posted to Geotrees on Friday, September 22, 2006.   TOP

Manual for Courts-Martial, United States , 2005 Edition
A large (10 MB+, 900 page) .pdf file, which will download when you click on the link. Depending on the browser used, some may be able to read the Manual on line. After downloading, you will need the free Adobe Acrobat Reader to view this file. Posted to Geotrees on Friday, September 22, 2006.   TOP

S.3930 - The Military Commissions Act of 2006
This bill was signed into law by President Bush on Wednesay, October 18. The link here will take you to the Library of Congress' "Thomas" function, with links to four successive versions of the bill. These versions reflect the forms of the bill from its introduction in the Senate. The second link, to Wikipedia, offers background and related information, as well.   TOP

The Iraq Study Group Report
Use this link to go to the site of the United States Institute of Peace, or USIP. "USIP was the facilitating organization for the Iraq Study Group (ISG), co-chaired by James A. Baker, III, and Lee H. Hamilton. As such, USIP is the repository for the ISG's official report, titled The Iraq Study Group Report: The Way Forward - A New Approach , which was downloaded more than 1.5 million times from USIP's Web site in the first two weeks after the launch of the report on December 6, 2006."   TOP

President Bush's Address to the Nation on Iraq, January 10, 2007
This link displays the full text of Mr. Bush's address on the "News and Policies" web page on the official White House site. Use this site to see other news and information concerning the White House per se, and the activities and personnel of the current administration.   TOP


HOW TO READ THE FEDERALIST PAPERS by Anthony A. Peacock, page 19 and following).

One tenant of conservatism is that of having the smallest possible government.

That is sometimes misunderstood, especially by liberal/progressives (deliberately, in some cases).

The phrase "the smallest possible government" does not really mean that we should have a "small" government. Rather it means that we should have a limited government.

It means government limited to the powers enumerated in the Constitution and established by the consent of those governed .

The authors of The Federalist (Alexander Hamilton, James Madison, and John Jay), who called themselves Publius, asked in Federalist 51 “what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

By this he (they) meant that both citizens and government had to be controlled.

The best way to control government is to limit its powers. The federal government of the Constitution was to be a government of enumerated and limited powers.

Aggregate interests would be served by the federal government. All other interests, local and particular, would be served by "state legislatures (The Federalist 10:77-8).

Plubius enumerated four principal interests of the new constitutional union:

1) "The common defense of its members"

2) “The preservation of the public peace, as well against internal convulsions as external attacks”

3) “The regulation of commerce with other nations and between the States”; and

4) “The superintendence of [America's] intercourse,political and commercial, with foreign countries.”(The Federalist 23:149)

Publius affirms that men are both self-interested and ambitious. Their opinions are driven more by passion and self love than they are by reason. This connection between self-love and one's opinions is what leads so readily to faction, that most “dangerous vice” of popular governments that “a well constructed Union” must “break and control.” (Read more about this HERE .)

According to Plubius, men's personal opinions are of little import when compared to the necessity of firm and specific rules set forth in the Constitution.

The Constitution, as revealed by Plubius, was intended to mitigate two basic forms of
political conflict: conflict that originates in human passion, especially collective passion such as pride, hatred, and vanity, and conflict that originates in interests, specifically those related to property.

The two principal ends that the Constitution was to secure were the public good and private or individual rights.

The Constitution sought to mitigate the effects of faction by, on the one hand, making it difficult for a majority faction to infringe individual rights or to undermine the public good and, on the other hand, channeling faction into the less volatile forms of human conflict anchored in disputes over interests or property.

In Federalists 9–14, Publius shows how commerce, at least as directed and moderated by the new Constitution, can also promote comity, union, and American greatness. In fact, the most distinct elements of the improved “science of politics” that Publius introduces in Federalist 9 are not the four specific improvements to that science that we learn in any basic American government class: separation of powers, legislative checks and balances, an independent judiciary, and representation of the people.

Rather, the most novel and important contribution to political science that the Constitution will make is “the ENLARGEMENT of the ORBIT,” the extended sphere of territory over which the new federal republic will preside. (9:67)

According to Plubius, Constitutionalism rejected two long-standing assumptions of classical and modern political thought: first, that only in direct democracies or small republics could stability and virtue be promoted and, second, that commerce was debasing and that its promotion spurred inequality, avarice, selfishness, vanity, and undue consumption and pursuit of luxury, as Jean-Jacques Rousseau, perhaps the most famous critic of 18th century commercial society, had maintained.

Institutionally, constitutional provisions such as the separation of powers, checks and balances, the federal structure of government, and the variety of terms and methods of election for Members of Congress and the President could check factions after they had formed. Such factions, however, needed to be undermined before they could form at the level of society as well.

The enlarged republic created by the Constitution would directly assist this object. As Publius famously put it:

"Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.” (10:78)

The upshot of all of this is that the purpose of the Constitution is to protect and preserve the union while, at the same time, allowing individuals their specific rights, unencumbered by a powerful centralized government.

There are no restrictions imposed on citizens in the Constitution, rather there are restrictions on the powers of government.

If Plubius were alive today, he (they) would be horrified at the enormous powers that have been ascribed to the federal government at the expense of individual freedoms.

According to Plubius, there should never be a law "for the good of society as a whole" that usurped the rights of the individual.

Active Liberty : Interpreting our Democratic Constitution , by Stephen Breyer

reviewed by
Jerome Braun


Supreme Court Justice Stephen Breyer has published a book on judicial philosophy that achieves notice less because of its content than because of the author's post. The book argues for a "sociological" approach to legal interpretation, which Breyer admits has many rivals in approaches based on direct interpretation of legal language, on historical analysis of what led to this use of language, on the meaning of the language when it was written, and reliance on legal precedent pertaining to this language. What Breyer adds to sociological approaches is an imputing of values, which opens up such analyses to criticisms for being naïve, superficial, historically incorrect, short-sighted, vain, arrogant, or just plain wrong.  I am not saying Breyer is guilty of all these criticisms, but that he sets himself up for them.

A basic no-no of legal analysis, and of moral analysis too, is bombastic rhetoric. In law schools students are endlessly warned about this reckless inferring of moral effects rather than proving moral effects of certain actions, but they learn when they get out (if they don't know so already) that lawyers are paid to win.  In any case, judges, for appearances' sake if for nothing else, rarely come up with the ruling, “I don't know.”  The result is dependence on ‘burden of proof' reasoning where a state of affairs is assumed to exist, not proven to exist, because it is assumed that the existence of society depends on this state of affairs. This is the dead opposite of the ideal of the scientific method where many aspects of the state of nature are not understood, and are openly admitted to not being understandable within the present state of knowledge.  Models are used in science, but are not mistaken for reality, or shouldn't be.

Lawyers have noticed the dangers posed by judicial supremacy.  Stuart Taylor in Slate quoted Thomas Jefferson in 1819 about John Marshall's Supreme Court:  "The Constitution…is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please,” and Abraham Lincoln regarding the 1857 Dred Scott decision which treated slavery as eternal:  “If the policy of Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made,” Lincoln said, "the people will have ceased to be their own rulers.”

The checks and balances among the three branches collapse if the Supreme Court claims to be the final arbiter of constitutional behavior. Judicial supremacy reflects the British tradition, at least of the 18th century, that the judicial branch be free of political interference, plus the natural law tradition (more emphasized in America than in Britain ) that judged law by supposedly indisputable moral standards and a common law tradition that the law would not countenance an absurdity. You might say that since medieval European monarchs were, above all, judges and war leaders, the Supreme Court in our mixed polity is the monarchical aspect of government, sharing the powers of monarchical sovereignty with the President (who gets the war powers part, plus some powers related to foreign affairs), except that the President is not elected for life, Supreme Court judges are. Like monarchs, when judges violate standards the social reaction is unpredictable because there is no defined method for dealing with them. By the same logic, revolutions are justified by arguments of natural law.

Therefore the question arises, does this book reflect an understanding of the place of the Supreme Court in our constitutional scheme of things, or does it reflect special pleading and a desire for aggrandizement of the power of this institution? Just like the monarch who claims to be serving only "the will of the people," Breyer's analysis provides no method for actually determining when "the will of the people" is being served and when it isn't. The reason social science claims that it tries to be a science is because it tries to be objective, and is sensitive to situations where "the facts speak for themselves." Breyer offers no method for determining when "the will of the people" is not being followed since, by definition, institutions that have some connection to an election, no matter how remote, are democratic.  Although he says that rules that encourage participation by the mass of citizens in government are a good thing, he never shows what standards he uses since there are times when he obviously doesn't believe democracy is such a good thing, as when it interferes with judicial supremacy in interpreting the Constitution.  ‘Democracy at work' for him means everything the government does is democracy at work. 

Just as predecessors on the late 19th century Supreme Court absorbed too much of Spencer's Social Statics , so that they believed Social Darwinism explained how a modern economy worked, so Breyer seems to have read too much into such works as Gordon S. Wood's The Creation of the American Republic 1776-1787 , coming away with the belief that because the governments that arose after the American Revolution were more democratic than colonial governments that therefore the Federal Government was the perfectly realized Democracy. In fact, all governments of Europe and America in the 18th century derived legitimacy by a bundle of claims, to conformity, to natural law, natural religion, the production of virtue in society, and the standards of "moderate" government, for which democracy, republicanism, and even monarchism were considered means rather than ends.

No doubt crediting a government with reflecting "the will of the people" - no matter the truth - is an important source of legitimacy in our times.  It is now the only source of legitimacy, unlike the 18th century which took for granted the importance of community as the source for legitimacy in government, and a model for its proper functioning, even though it was slowly decaying and ceding power to bureaucracy.  Breyer's whole concept of democracy is convoluted. He tries to show the American Constitution instituted a democratic government by using an idiosyncratic definition of democratic government based on "the will of the people". This was obviously not the case in the original American Constitution which not only limited the right to vote (not for women, not for slaves, and not for people who did not meet minimal property qualifications), but confined popular control to the House of Representatives, not the Senate or the Presidency.  The Constitution, however, was adaptable to more democratic control later on.

For that matter, 18th century Europe boasted republican governments, particularly the United Provinces of the Netherlands and the Swiss Confederation, which served as models for the U.S. although Britain was more influential. In the 18th century, democracy, given poverty and lack of mass education, widely was considered impractical because of the dangers of mob rule. Even Thomas Jefferson, who supported democratic government, was the head of a party called the Republican Party, later the Democratic-Republican Party (a term used mostly by historians, and originally a faction of the party that supported Andrew Jackson) and only some time after Jefferson 's death called the now familiar Democratic Party.  It would be as if the present day Democratic Party would be called a socialist party because certain members support socialism.

Breyer moves from his originalist argument of the Constitution reflecting the will of the people to an evolutionary argument that more participation is to be encouraged, so, whatever his glossing over 18th century conditions, he is right that now we encourage active participation of citizens. Thus, he offers an argument for deferring to legislative enactment of laws as reflecting the will of the people, without at the same time giving up the right of the Supreme Court to supervise the process or intervene, without being hampered by original intent.

Now there are circumstances when a small leap is justified, such as when the right to regulate interstate commerce is extended to modern modes of transportation analogous to the way the horse and buggy and maritime transportation was regulated. This latitude doesn't mean a judge can announce himself a cross-dressing monarchist and declare that republican government means monarchy because if only the writers of the Constitution knew what he knows now they would agree with him. There is a basic principle of Constitutional interpretation that a vague generality or value cannot overrule a specific requirement laid out in the Constitution. Even this rule in a sense can be overruled if it would result in an absurdity, but such occasions are few and far between.

Breyer seems to believe in this rule of Constitutional interpretation - except when he doesn't. The same can be said for his general approach to interpreting laws.  The second half of the book is actually quite good, and is by far the most useful part.  He details the reasoning used to make distinctions relevant to judging cases in free speech, the relation between the Federal government and the states, privacy, affirmative action, and statutory interpretation. Even when he relies on arguments relating to fostering the public good, the arguments have some plausibility.  He admits that his views differ from some colleagues on the Supreme Court. It is when he offers special pleading on the preferred status of the Supreme Court, and ignores all the issues regarding the breakdown of checks and balances, that his arguments seem self-serving.  I suppose he's just human, which is why "Who will guard the guardians?" is as true of the Supreme Court as anyone else. 

What are the consequences of the exalted status of the American Supreme Court for American democracy?  A democratic government reflects direct input from the people, unlike Justice Breyer's definition which is any government that arises from an election and afterward is almost independent of the people. Let's look at examples: In the presidential election of 1876 the disputed returns in a number of Southern states led to a dramatic impasse. Ultimately, five Supreme Court justices serving on a 15 member Electoral Commission together with five members from each house of Congress. The result, with voting on partisan lines, was to give the election to Rutherford B. Hayes, the Republican candidate. Fast forward to the disputed presidential election of 2000, and disputed returns in Florida were resolved by the U.S. Supreme Court to favor the Republican candidate, George W. Bush. This was after the Florida Supreme Court resolved the election in a way to favor the Democratic candidate, Al Gore. The election had to be resolved by courts because there was no method in place to determine what to do, other than the courts. Alas, no one but the courts were ready and interested in intervening. 

Courts have the responsibility for enforcing the nation's values, not the values of the members of the courts. As a practical matter, however, how can this be enforced? In many ways it can't, not without a public outcry over abuses, or a public monitoring of the courts.  Another result is that the abortion issue was not resolved by Rowe vs. Wade since it did not settle public discussion. Instead of discussing the effects of abortion on society, the legalistic arguments of both sides, the right to privacy versus "respect" for life convinced no opponent because both arguments were filled with "rights talk" that avoided dealing with practical consequences. Breyer would like public discussions of practical matters, but this ends up being done by judges and not by the public, and judges are not more practical than the public at large, though they certainly are richer and more secure.

The dynamic basis of democracy is creating and enforcing laws that reflect the concrete circumstances of the public affected by laws, not the vague clichés of armchair moralists and/or opportunists. Yet, just as "Who will guard the guardians?" is a problem for monarchies, so too is it for judiciaries as well.  One consequence of trying an ‘end run' around Congress by creating ad-hoc "rights" is to guarantee that right-wing activists will push their own version of "rights."  In many ways it is harder than ever to rein in giant corporations because of all the "rights" the courts have given them.  At a certain point "rights talk" interferes with democracy when the rights are not the creation of the democratic process, but merely the creation of courts and are indistinguishable from mere wants, which always must be judged against a context of reasonableness.

There has been a severe deterioration both of community and of conceptions of the common good. One reason there is a tendency for government to misuse eminent domain is that the concept of public purpose has become muddled.  While this mechanism was once used for taking private land for building roads, bridges, and so on, there is a tendency today to favor anything that produces economic growth, even if it only benefits the already rich. So private land is given to real estate developers, as if all economic growth is a public good, which is an absurdity. Meanwhile, many non-business activists act as if they are only victims, demanding equality of result rather than equality of opportunity.  While government, and the courts, get whip-sawed between these two ideologies, the common good is ignored.  The courts are part of this vicious cycle of ignorance. The danger is that they step in to create social order because no one else is protecting the public good. ‘Better than nothing' is the excuse for judicial activism. Better than do-nothing legislatures and do-nothing executives, claim the judges. Well, that isn't good enough, when we can have real yet unrealized democracy as an alternative. 



"In all cases, our analysis of the applicability of the protections of the Constitution must be made in light of existing circumstances as well as our historic traditions,"(1) Judge Reinhardt, Ninth Circuit


The Supreme Court has held that a modern procedure must satisfy the substance of the English common law jury trial in 1791 to be constitutional under the Seventh Amendment.

Summary judgment is a significant reason for the dramatic decline in the number of jury trials in civil cases in federal court. Judges extensively use the device to clear the federal docket of cases deemed meritless. There is also the mandatory use of summary judgment prior to settlement. While scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is that the Supreme Court settled the issue a century ago in Fidelity & Deposit Co. v. United States . But a review of that case reveals that the conventional wisdom is wrong: the constitutionality of summary judgment has never been resolved by the Supreme Court.

Petitioners declare that summary judgment is unconstitutional. The question is governed by the Seventh Amendment which provides that “[i]n Suits at common law, . . . the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Supreme Court has held that “common law” in the Seventh Amendment refers to the English common law in 1791. No procedure similar to summary judgment existed under the English common law and summary judgment violates the core principles or “substance” of the English common law. Summary judgment is unconstitutional.

Writ of certiorari,


You should reconsider the opinion that argument is unnecessary.


You should reconsider that Iron Mountain Mines, Inc. has quit claimed Iron Mountain mine real property to T.W. Arman, Mr.T.W. Arman is the sole absolute sovereign supreme original patent title owner.


You should reconsider that plaintiffs have in their pleadings substantively forgiven the tortfeasors for their errors of recognizable religious (holistic) dogmatic ideology and irrational fear based waste.

“One Co-tenant may recover the whole estate in ejectment against strangers.”

King Solomon Co. v. Mary Verna Co. 22 Cal . App. 528, 127 P 129, 130


“The owner is not liable for pollution of stream incidental to placer mining, or to washing iron ore. It is classed among non-actionable injuries. Nor will such use of the stream be enjoined even if an action lies, except in willful or extreme cases. Clifton Co. v. Pye 87 Ala. 468 6So 192. Hill v. King 4 M.R. 533. 8 Cal. 337, Atchison v. Peterson 1 M.R. 583 20 Wall 501.


California Statute Sec. 1426 7/1/09


In the absence of clearly expressed legislative intent, retrospective operation will not be given to statutes, nor, in absence of such intent, will a statute be construed as impairing rights relied upon in past conduct when other legislation was in force. Union Pacific R. Co. v. Laramie Stock Yards, ante, p. 231 U. S. 190 .


The objective of the public trust is always evolving so that a trustee is not burdened with outmoded classifications favoring the original and traditional triad of commerce, navigation and fisheries over those uses encompassing changing public needs. National Audubon Society v. Superior Court, supra, at p. 434.


Section 5937 "is a legislative expression of the public trust doctrine." California Trout, Inc. v. State Water Resources Control Board, 255 Cal. Rptr. 184,209,212 (Cal. Ct. App. 1989». The public trust doctrine and section 5937 overlap, addressing the fisheries at different levels of generality. The public trust doctrine has long protected fisheries used by commercial and recreational fishers, and more recent case law has expanded the doctrine to include the general public's right to preserve fisheries and their related habitat for their intrinsic environmental value as ecological units. Marks v. Whitney, 6 Cal. 3d 251, 259,491 P.2d 374, 380 (1971 ) (establishing that the doctrine changes in tandem with changing public values and scientific understanding) and National Audubon Soc'y v. Superior Court of Alpine Cty, 33 Cal.3d 419,435,658 P.2d 709 ( Cal. 1983), cert denied, 464 U.S. 977 (1983).


(administrative agencies are not required to, nor should they, regulate the present and future within the inflexible limits of yesterday); Michigan v. Thomas, 805 F.2d 176 (6th Cir.1986) (Environmental Protection Agency could apply its definition of "reasonably available control technology" to disapprove proposed state dust rules where it had approved similar rules of other states, in light of new knowledge); cf. International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Daniel, 439 U.S. 551, 566 n. 20,99 S.Ct. 790, 58 L.Ed.2d 808 (1979) (deference due administrative agencies is due in part because of willingness to accord some measure of flexibility to an agency as it encounters new and unforeseen problems over time).


Citing California Trout, Inc. v. Superior Court, 218 Cal.App.3d 187,266 Cal.Rptr. 788, 801 (1990) (ordering the water board to establish flow rates based on available data while proceeding with more elaborate studies), the Supreme Court of Hawaii directed the state water agency to use "the best information presently available" in protecting public trust values. In re Water Use Permit Applications, 94 Hawai'i 97, 9 P.3d 409 ( Hawai'i , 2000). The Court emphasized the importance of comprehensive and pro-active planning in a region where growth and its attendant demands on groundwater outstrip the region's limited supply. The Court eloquently summed up the role of a water agency: "The constitutional framers and the legislature designed the Commission as an instrument for judicious planning and regulation, rather than crisis management. ... [The public trust] concept implies not only the power to protect the resources but the responsibility to do so long before any crisis develops [citing Stand. Comm. Rep. No. 77 in 1 Proceedings, at 688] . . .. [T]he water code should serve as a tool and an incentive for planning the wise use of Hawaii 's water resources, rather than as a water crisis and shortage management mechanism [citing Stand. Comm. Rep. No. 348, in 1987 House Journal, at 126263]."


It is not possible to consider the relevant wildlife statutes without considering the framework of the public trust doctrine. The non-codified public trust doctrine remains important both to confirm the state's sovereign supervision and to require consideration of public trust uses in cases filed directly in the courts. National Audubon, 33 Cal. 3d 419 at n. 27. See also, Kootenai Envtl. Alliance v. Panhandle Yacht Club, Inc., 105 Idaho 622, 671 P.2d 1085, 1095 ( Idaho 1983) (Mere compliance with legislation is not sufficient). The government cannot act outside of the boundaries of the public trust doctrine with respect to public trust resources. San Carlos Apache Tribe v. Superior Court ex reI. Maricopa County , 193 Ariz. 195,972 P.2d 179, 199 (1999) ("The public trust doctrine is a constitutional limitation on legislative power ....").


2715. No provision of this chapter or any ruling, requirement, or policy of the board is a limitation on any of the following:


(a) On the police power of any city or county or on the power of any city or county to declare, prohibit, and abate nuisances.


(b) On the power of the Attorney General, at the request of the board, or upon his own motion, to bring an action in the name of the people of the State of California to enjoin any pollution or nuisance.


Petitioners have shown good cause to be excused for any inadvertence which might otherwise call for a dismissal and to reconsider more than the unadorned complaints


Petitioners reallege and incorporate by reference each claim and objection.


Damages accrued since 1978, when the Regional Water Quality Control Board (RWQCB) commenced enforcement of the Clean Water Act as amended in Dec. 1977 of federal discharge limits for copper, cadmium, and zinc as “hazardous wastes” with issuance of National Pollution Discharge Elimination System (NPDES) permits to mining companies. (Ex Post Facto law 1).

The federal state government agencies plot to abrogate patent title mine lands of the United States.


Petitioners seek joinder for vindication of innocent landowner's act of God and third party defenses.


Petitioners seek joinder as defendants pursuant to §6973 imminent hazard, authority of administrator citizen suit emergency intervention arbitrary and capricious reckless negligent endangerment.


Petitioner seeks joinder as defendants to each Court contributing to or evading judgment in this matter.


Corrections: No trial was held to hear the defense of Mr. Arman or IMMI as the innocent landowner or passive site operator, notwithstanding that the previous owners (Rhone Polenc, Stauffer Chemical, Mountain Copper Co. et al) were found joint and severally liable, and were found to be the RP (responsible party) for the “disposal” of hazardous wastes, were found to have a contractual obligation to assume 100% of the mining liability, and who settled without admission of the United States Claims.



380. In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants; and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action, against whom the judgment has passed..


Joint and Several Trespassers ejectment; CORAM VOBIS incidental and peremptory mandamus


Including an accounting of the damages. Leave for QUO WARRANTO administrative mandamus.


Where an agent commits an active trespass on behalf of his principal, such principal is a “joint trespassers” with the agent. Williams v. Inman, 57 S.E. 1000, 1010, 1 Ga.App. 321.


“Persons engaged in committing the same trespass are “joint and several trespassers,” and not “joint trespassers,” exclusively. Like persons liable on a joint and several contract, they may all be sued in one action, or one may be sued alone, and cannot plead the nonjoinder of the others in abatement; and so far is the doctrine of several liability carried that the defendants, where more than one are sued in the same action, may sever in their pleas, and the jury may find several verdicts, and on several verdicts of guilty may assess different sums as damages.” The executive officer of a corporation, who is the stockholder, and full management of its affairs, who's rights were violated by defendants who instigated and controlled the joint and several trespassers in willfully infringed complainants mine, and for bringing disrepute to the corporation, and violating environmental law to spoil said property, diminish its value, and claim a lien upon said property for recompensation for unnecessary arbitrary and capricious actions under color of law .


Because of the corporeal and perpetual injuries, including the damages found due complainant, on an accounting, a suit will lie against them to recover the property and the amount of such decree from them individually, when, through their control and influence, they caused the corporation to be unable to transfer its property and to declare and pay dividends pending the suit against it, by which it was rendered substantially yet falsely insolvent. See Saxlehner v. Elsner, 140 Fed. 938, 941 adopting the definition I Lovejoy v. Murray , 3 Wall. 1, 18 L. Ed. 129.






“It has been justly thought a matter of importance to determine from what source the United States derives its authority... The question here proposed is whether our bond of union is a compact entered into by the states, or whether the Constitution is an organic law established by the People. To this we answer: ‘We the People... ordain and establish this Constitution'...





Therefore, to “establish certain limits not to be transcended by the government.”


Given Iron Mountain Mines unique history, as well as the breadth of the authority that the [EPA] has asserted, the Court is obliged to defer not to the agency's expansive construction of the statute, but to Mr. Ted Arman's consistent judgment to deny the [EPA] this power.…


“Full relief and restore possession to the party entitled thereto; Mr. Ted Arrman's Iron Mountain Mine. a general verdict for plaintiff on a complaint which alleges that the plaintiff is entitled to the possession of certain described property, which is unlawfully detained by the defendant, and the possession of which the plaintiff prays to recover, is held by the United States Supreme Court to be sufficient.”

Environmentalism has become America's new religion …time to consider separation of church and state

by Hugh Holub on Oct. 05, 2010

The environmental movement in the United States has morphed from a science-based debate about the real impacts of air and water and soil pollution into something radically different.

Environmentalism has becomes America's new religion.

Originally environmental issues were framed around solid evidence of negative impacts of certain human activities like  toxic discharges into the air and water that harmed people.

There were clear science-based cause and effects addressed.

But now environmentalism has taken on a very different tone.

There is a theological bent to the environmental debate casting God (the planet  Earth or Gaia) against Satan (human beings).

Humans are seens as a scourge on the planet and everything we do is counter to the planet.

Michael Crichton described this best in his 2003 speech about environmentalism becoming a religion:

“Today, one of the most powerful religions in the Western World is environmentalism.

“Environmentalism seems to be the religion of choice for urban atheists. Why do I say it's a religion? Well, just look at the beliefs. If you look carefully, you see that environmentalism is in fact a perfect 21st century remapping of traditional Judeo-Christian beliefs and myths.

“There's an initial Eden, a paradise, a state of grace and unity with nature, there's a fall from grace into a state of pollution as a result of eating from the tree of knowledge, and as a result of our actions there is a judgment day coming for us all. We are all energy sinners, doomed to die, unless we seek salvation, which is now called sustainability. Sustainability is salvation in the church of the environment. Just as organic food is its communion, that pesticide-free wafer that the right people with the right beliefs, imbibe.”

The first thing that went out the door with the new environmental religion was science.

No longer are we debating what has happened..the debate is about what could happen. No science…just belief.

Read Jonathan DuHamels' post about a recent conference about the Saguaro National Monument .

One does not have to prove a cause and effect relationship between human activity and damage to the environment. The arguments are all about belief that humans are the source of harm oir change in the enviroment.

The environment changes constantly due to natural cycles and causes. But in the religious environmental world all change is negative and presumptively human-caused.

Another aspect of the religious dimension of environmentalism is that there are no rules in the battle to protect the environment against the evil humans.

Radical environmentalists have become jihadists, setting fire to laboratories, making false claims about the human-environment interface, and organizing large groups that look a lot like churches to fund their crusades.

The end justiifies the means to the religious environmentalists.

Consider the “ Climategate ” incident…scientists actively surpression data that disagreed with their claim humans are causing global warming.

Jonathan DuHamel published a very interesting article on changes to carbon dioxide in the atmosphere .

This sets up a very important question for the relationship between US constitutional law and the environmental movement.

If environmentalism is being practiced as a religion, it has no place being enshrined in our laws. The separation of church and state must be applied to the environmental movement and their agenda.

We cannot allow religious environmentalists to  use our legal system to impose their religious dogma on our country. And a lot of environmental goals are nothing more than religious beliefs aimed at punishing the wicked humans and forcing society to adhere to environmental religious beliefs.

We need to base law and policy on science…not on belief and especially not on the premise that one or another human activity is evil.

A good example of environmentalism as a religion being practiced in a legal context is the Endangered Species Act.

It is presumed by the environmental religionists that humans are the sole cause of extinction and that this law can be used to force humans to comply with new rules to protect God's children…the plants and animals of Earth.

No longer are radical environmentalists focused on real extinction of an entire species…as with the recent argument over Arizona's bald eagles …the argument is extinction of a specific population in a specific location. That the eagles of Montana are the same species as the eagles in Arizona doesn't matter. Arizona's population is threatened according to the radical environmentalists.

The real goal of the Arizona eagle argument was  to attack human land uses viewed as threatening the Arizona eagles. The Endangered Species Act is just a weapon to use against those who violate the religious goals of the priests of the environmental movement.

One should note that under the Endangered Species Act, a habitat protection plan can be imposed where an allegedly endangered species could live. It doesn't matter if a particular plant or animal never actually lived in a particular place… that they could have lived there is enough to invoke federal power to order change to human activity.

What is needed is a full-on challenge to any effort by radical environmentalists to impose their religious beliefs on society via our legal system.

Federal agencies and the courts must now look at allegations by environmental groups to see if there really is a scientific basis for the claims made by environmentalsist…or are the arguments just religious dogma.

Here are some interesting articles about Environmentalism as a Religion:

Environmentalism as Religion
While people have worshipped many things, we may be the first to build shrines to garbage.

By Paul H. Rubin

Wall Street Journal April 22 2010

….Consider some of the ways in which environmental behaviors echo religious behaviors and thus provide meaningful rituals for Greens:
• There is a holy day—Earth Day.
• There are food taboos. Instead of eating fish on Friday, or avoiding pork, Greens now eat organic foods and many are moving towards eating only locally grown foods.
• There is no prayer, but there are self-sacrificing rituals that are not particularly useful, such as recycling. Recycling paper to save trees, for example, makes no sense since the effect will be to reduce the number of trees planted in the long run.
• Belief systems are embraced with no logical basis. For example, environmentalists almost universally believe in the dangers of global warming but also reject the best solution to the problem, which is nuclear power. These two beliefs co-exist based on faith, not reason.
• There are no temples, but there are sacred structures. As I walk around the Emory campus, I am continually confronted with recycling bins, and instead of one trash can I am faced with several for different sorts of trash. Universities are centers of the environmental religion, and such structures are increasingly common. While people have worshipped many things, we may be the first to build shrines to garbage.
• Environmentalism is a proselytizing religion. Skeptics are not merely people unconvinced by the evidence: They are treated as evil sinners. I probably would not write this article if I did not have tenure….



The truth about the destructive religion of Environmentalism

….The bottom line: The most consistent, dedicated environmentalists want you, and everyone else, to die. It's as simple as that.

Any other supposed goals are a means to that ultimate end; the destruction of industrial civilization around the world means the death of the vast majority of current humanity. They know this – you should too. Every single smaller goal of environmentalism is consistent with that ultimate goal; do not be deluded into thinking that environmentalism is about improving your life or any human life.

Environmentalism is not about a desire to have cleaner water and air. It is now a full-fledged religion, and its main tenet is “raw nature” as god-like, and Mankind as a plague infecting it. If you support environmentalism, the fact is that you're supporting an ideology that promotes the destruction of Mankind – and concretely, that includes yourself and everyone you care about.


And Michael Crichton's famous speech in 2003 about environmentalism morphing into a religion…

by Michael Crichton – San Francisco – September 15, 2003

I have been asked to talk about what I consider the most important challenge facing mankind, and I have a fundamental answer. The greatest challenge facing mankind is the challenge of distinguishing reality from fantasy, truth from propaganda. Perceiving the truth has always been a challenge to mankind, but in the information age (or as I think of it, the disinformation age) it takes on a special urgency and importance.

We must daily decide whether the threats we face are real, whether the solutions we are offered will do any good, whether the problems we're told exist are in fact real problems, or non-problems. Every one of us has a sense of the world, and we all know that this sense is in part given to us by what other people and society tell us; in part generated by our emotional state, which we project outward; and in part by our genuine perceptions of reality. In short, our struggle to determine what is true is the struggle to decide which of our perceptions are genuine, and which are false because they are handed down, or sold to us, or generated by our own hopes and fears.

As an example of this challenge, I want to talk today about environmentalism. And in order not to be misunderstood, I want it perfectly clear that I believe it is incumbent on us to conduct our lives in a way that takes into account all the consequences of our actions, including the consequences to other people, and the consequences to the environment. I believe it is important to act in ways that are sympathetic to the environment, and I believe this will always be a need, carrying into the future. I believe the world has genuine problems and I believe it can and should be improved. But I also think that deciding what constitutes responsible action is immensely difficult, and the consequences of our actions are often difficult to know in advance. I think our past record of environmental action is discouraging, to put it mildly, because even our best intended efforts often go awry. But I think we do not recognize our past failures, and face them squarely. And I think I know why.

I studied anthropology in college, and one of the things I learned was that certain human social structures always reappear. They can't be eliminated from society. One of those structures is religion. Today it is said we live in a secular society in which many people—the best people, the most enlightened people—do not believe in any religion. But I think that you cannot eliminate religion from the psyche of mankind. If you suppress it in one form, it merely re-emerges in another form. You can not believe in God, but you still have to believe in something that gives meaning to your life, and shapes your sense of the world. Such a belief is religious.

Today, one of the most powerful religions in the Western World is environmentalism. Environmentalism seems to be the religion of choice for urban atheists. Why do I say it's a religion? Well, just look at the beliefs. If you look carefully, you see that environmentalism is in fact a perfect 21st century remapping of traditional Judeo-Christian beliefs and myths.
There's an initial Eden, a paradise, a state of grace and unity with nature, there's a fall from grace into a state of pollution as a result of eating from the tree of knowledge, and as a result of our actions there is a judgment day coming for us all. We are all energy sinners, doomed to die, unless we seek salvation, which is now called sustainability. Sustainability is salvation in the church of the environment. Just as organic food is its communion, that pesticide-free wafer that the right people with the right beliefs, imbibe.

Eden, the fall of man, the loss of grace, the coming doomsday—these are deeply held mythic structures. They are profoundly conservative beliefs. They may even be hard-wired in the brain, for all I know. I certainly don't want to talk anybody out of them, as I don't want to talk anybody out of a belief that Jesus Christ is the son of God who rose from the dead. But the reason I don't want to talk anybody out of these beliefs is that I know that I can't talk anybody out of them. These are not facts that can be argued. These are issues of faith.

And so it is, sadly, with environmentalism. Increasingly it seems facts aren't necessary, because the tenets of environmentalism are all about belief. It's about whether you are going to be a sinner, or saved. Whether you are going to be one of the people on the side of salvation, or on the side of doom. Whether you are going to be one of us, or one of them.
Am I exaggerating to make a point? I am afraid not. Because we know a lot more about the world than we did forty or fifty years ago. And what we know now is not so supportive of certain core environmental myths, yet the myths do not die. Let's examine some of those beliefs.

There is no Eden. There never was. What was that Eden of the wonderful mythic past? Is it the time when infant mortality was 80%, when four children in five died of disease before the age of five? When one woman in six died in childbirth? When the average lifespan was 40, as it was in America a century ago. When plagues swept across the planet, killing millions in a stroke. Was it when millions starved to death? Is that when it was Eden?
And what about indigenous peoples, living in a state of harmony with the Eden-like environment? Well, they never did. On this continent, the newly arrived people who crossed the land bridge almost immediately set about wiping out hundreds of species of large animals, and they did this several thousand years before the white man showed up, to accelerate the process. And what was the condition of life? Loving, peaceful, harmonious? Hardly: the early peoples of the New World lived in a state of constant warfare. Generations of hatred, tribal hatreds, constant battles. The warlike tribes of this continent are famous: the Comanche, Sioux, Apache, Mohawk, Aztecs, Toltec, Incas. Some of them practiced infanticide, and human sacrifice. And those tribes that were not fiercely warlike were exterminated, or learned to build their villages high in the cliffs to attain some measure of safety.

How about the human condition in the rest of the world? The Maori of New Zealand committed massacres regularly. The dyaks of Borneo were headhunters. The Polynesians, living in an environment as close to paradise as one can imagine, fought constantly, and created a society so hideously restrictive that you could lose your life if you stepped in the footprint of a chief. It was the Polynesians who gave us the very concept of taboo, as well as the word itself. The noble savage is a fantasy, and it was never true. That anyone still believes it, 200 years after Rousseau, shows the tenacity of religious myths, their ability to hang on in the face of centuries of factual contradiction.

There was even an academic movement, during the latter 20th century, that claimed that cannibalism was a white man's invention to demonize the indigenous peoples. (Only academics could fight such a battle.) It was some thirty years before professors finally agreed that yes, cannibalism does indeed occur among human beings. Meanwhile, all during this time New Guinea highlanders in the 20th century continued to eat the brains of their enemies until they were finally made to understand that they risked kuru, a fatal neurological disease, when they did so.

More recently still the gentle Tasaday of the Philippines turned out to be a publicity stunt, a nonexistent tribe. And African pygmies have one of the highest murder rates on the planet.

In short, the romantic view of the natural world as a blissful Eden is only held by people who have no actual experience of nature. People who live in nature are not romantic about it at all. They may hold spiritual beliefs about the world around them, they may have a sense of the unity of nature or the aliveness of all things, but they still kill the animals and uproot the plants in order to eat, to live. If they don't, they will die.

And if you, even now, put yourself in nature even for a matter of days, you will quickly be disabused of all your romantic fantasies. Take a trek through the jungles of Borneo, and in short order you will have festering sores on your skin, you'll have bugs all over your body, biting in your hair, crawling up your nose and into your ears, you'll have infections and sickness and if you're not with somebody who knows what they're doing, you'll quickly starve to death. But chances are that even in the jungles of Borneo you won't experience nature so directly, because you will have covered your entire body with DEET and you will be doing everything you can to keep those bugs off you.

The truth is, almost nobody wants to experience real nature. What people want is to spend a week or two in a cabin in the woods, with screens on the windows. They want a simplified life for a while, without all their stuff. Or a nice river rafting trip for a few days, with somebody else doing the cooking. Nobody wants to go back to nature in any real way, and nobody does. It's all talk-and as the years go on, and the world population grows increasingly urban, it's uninformed talk. Farmers know what they're talking about. City people don't. It's all fantasy.

One way to measure the prevalence of fantasy is to note the number of people who die because they haven't the least knowledge of how nature really is. They stand beside wild animals, like buffalo, for a picture and get trampled to death; they climb a mountain in dicey weather without proper gear, and freeze to death. They drown in the surf on holiday because they can't conceive the real power of what we blithely call “the force of nature.” They have seen the ocean. But they haven't been in it.

The television generation expects nature to act the way they want it to be. They think all life experiences can be tivo-ed. The notion that the natural world obeys its own rules and doesn't give a damn about your expectations comes as a massive shock. Well-to-do, educated people in an urban environment experience the ability to fashion their daily lives as they wish. They buy clothes that suit their taste, and decorate their apartments as they wish. Within limits, they can contrive a daily urban world that pleases them.
But the natural world is not so malleable. On the contrary, it will demand that you adapt to it-and if you don't, you die. It is a harsh, powerful, and unforgiving world, that most urban westerners have never experienced.

Many years ago I was trekking in the Karakorum mountains of northern Pakistan, when my group came to a river that we had to cross. It was a glacial river, freezing cold, and it was running very fast, but it wasn't deep—maybe three feet at most. My guide set out ropes for people to hold as they crossed the river, and everybody proceeded, one at a time, with extreme care. I asked the guide what was the big deal about crossing a three-foot river. He said, well, supposing you fell and suffered a compound fracture. We were now four days trek from the last big town, where there was a radio. Even if the guide went back double time to get help, it'd still be at least three days before he could return with a helicopter. If a helicopter were available at all. And in three days, I'd probably be dead from my injuries. So that was why everybody was crossing carefully. Because out in nature a little slip could be deadly.

But let's return to religion. If Eden is a fantasy that never existed, and mankind wasn't ever noble and kind and loving, if we didn't fall from grace, then what about the rest of the religious tenets? What about salvation, sustainability, and judgment day? What about the coming environmental doom from fossil fuels and global warming, if we all don't get down on our knees and conserve every day?

Well, it's interesting. You may have noticed that something has been left off the doomsday list, lately. Although the preachers of environmentalism have been yelling about population for fifty years, over the last decade world population seems to be taking an unexpected turn. Fertility rates are falling almost everywhere. As a result, over the course of my lifetime the thoughtful predictions for total world population have gone from a high of 20 billion, to 15 billion, to 11 billion (which was the UN estimate around 1990) to now 9 billion, and soon, perhaps less. There are some who think that world population will peak in 2050 and then start to decline. There are some who predict we will have fewer people in 2100 than we do today. Is this a reason to rejoice, to say halleluiah? Certainly not. Without a pause, we now hear about the coming crisis of world economy from a shrinking population. We hear about the impending crisis of an aging population. Nobody anywhere will say that the core fears expressed for most of my life have turned out not to be true. As we have moved into the future, these doomsday visions vanished, like a mirage in the desert. They were never there—though they still appear, in the future. As mirages do.

Okay, so, the preachers made a mistake. They got one prediction wrong; they're human. So what. Unfortunately, it's not just one prediction. It's a whole slew of them. We are running out of oil. We are running out of all natural resources. Paul Ehrlich: 60 million Americans will die of starvation in the 1980s. Forty thousand species become extinct every year. Half of all species on the planet will be extinct by 2000. And on and on and on.

With so many past failures, you might think that environmental predictions would become more cautious. But not if it's a religion. Remember, the nut on the sidewalk carrying the placard that predicts the end of the world doesn't quit when the world doesn't end on the day he expects. He just changes his placard, sets a new doomsday date, and goes back to walking the streets. One of the defining features of religion is that your beliefs are not troubled by facts, because they have nothing to do with facts.

So I can tell you some facts. I know you haven't read any of what I am about to tell you in the newspaper, because newspapers literally don't report them. I can tell you that DDT is not a carcinogen and did not cause birds to die and should never have been banned. I can tell you that the people who banned it knew that it wasn't carcinogenic and banned it anyway. I can tell you that the DDT ban has caused the deaths of tens of millions of poor people, mostly children, whose deaths are directly attributable to a callous, technologically advanced western society that promoted the new cause of environmentalism by pushing a fantasy about a pesticide, and thus irrevocably harmed the third world. Banning DDT is one of the most disgraceful episodes in the twentieth century history of America. We knew better, and we did it anyway, and we let people around the world die and didn't give a damn.

I can tell you that second hand smoke is not a health hazard to anyone and never was, and the EPA has always known it. I can tell you that the evidence for global warming is far weaker than its proponents would ever admit. I can tell you the percentage the US land area that is taken by urbanization, including cities and roads, is 5%. I can tell you that the Sahara desert is shrinking, and the total ice of Antarctica is increasing. I can tell you that a blue-ribbon panel in Science magazine concluded that there is no known technology that will enable us to halt the rise of carbon dioxide in the 21st century. Not wind, not solar, not even nuclear. The panel concluded a totally new technology-like nuclear fusion-was necessary, otherwise nothing could be done and in the meantime all efforts would be a waste of time. They said that when the UN IPCC reports stated alternative technologies existed that could control greenhouse gases, the UN was wrong.

I can, with a lot of time, give you the factual basis for these views, and I can cite the appropriate journal articles not in whacko magazines, but in the most prestigeousscience journals, such as Science and Nature. But such references probably won't impact more than a handful of you, because the beliefs of a religion are not dependant on facts, but rather are matters of faith. Unshakeable belief.

Most of us have had some experience interacting withreligious fundamentalists, and we understand that one of the problems with fundamentalists is that they have no perspective on themselves. They never recognize that their way of thinking is just one of many other possible ways of thinking, which may be equally useful or good. On the contrary, they believe their way is the right way, everyone else is wrong; they are in the business of salvation, and they want to help you to see things the right way. They want to help you be saved. They are totally rigid and totally uninterested in opposing points of view. In our modern complex world, fundamentalism is dangerous because of its rigidity and its imperviousness to other ideas.

I want to argue that it is now time for us to make a major shift in our thinking about the environment, similar to the shift that occurred around the first Earth Day in 1970, when this awareness was first heightened. But this time around, we need to get environmentalism out of the sphere of religion. We need to stop the mythic fantasies, and we need to stop the doomsday predictions. We need to start doing hard science instead.

There are two reasons why I think we all need to get rid of the religion of environmentalism.

First, we need an environmental movement, and such a movement is not very effective if it is conducted as a religion. We know from history that religions tend to kill people, and environmentalism has already killed somewhere between 10-30 million people since the 1970s. It's not a good record. Environmentalism needs to be absolutely based in objective and verifiable science, it needs to be rational, and it needs to be flexible. And it needs to be apolitical. To mix environmental concerns with the frantic fantasies that people have about one political party or another is to miss the cold truth—that there is very little difference between the parties, except a difference in pandering rhetoric. The effort to promote effective legislation for the environment is not helped by thinking that the Democrats will save us and the Republicans won't. Political history is more complicated than that. Never forget which president started the EPA: Richard Nixon. And never forget which president sold federal oil leases, allowing oil drilling in Santa Barbara: Lyndon Johnson. So get politics out of your thinking about the environment.

The second reason to abandon environmental religion is more pressing. Religions think they know it all, but the unhappy truth of the environment is that we are dealing with incredibly complex, evolving systems, and we usually are not certain how best to proceed. Those who are certain are demonstrating their personality type, or their belief system, not the state of their knowledge. Our record in the past, for example managing national parks, is humiliating. Our fifty-year effort at forest-fire suppression is a well-intentioned disaster from which our forests will never recover. We need to be humble, deeply humble, in the face of what we are trying to accomplish. We need to be trying various methods of accomplishing things. We need to be open-minded about assessing results of our efforts, and we need to be flexible about balancing needs. Religions are good at none of these things.

How will we manage to get environmentalism out of the clutches of religion, and back to a scientific discipline? There's a simple answer: we must institute far more stringent requirements for what constitutes knowledge in the environmental realm. I am thoroughly sick of politicized so-called facts that simply aren't true. It isn't that these “facts” are exaggerations of an underlying truth. Nor is it that certain organizations are spinning their case to present it in the strongest way. Not at all—what more and more groups are doing is putting out is lies, pure and simple. Falsehoods that they know to be false.

This trend began with the DDT campaign, and it persists to this day. At this moment, the EPA is hopelessly politicized. In the wake of Carol Browner, it is probably better to shut it down and start over. What we need is a new organization much closer to the FDA. We need an organization that will be ruthless about acquiring verifiable results, that will fund identical research projects to more than one group, and that will make everybody in this field get honest fast.

"We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries." --Thomas Jefferson: Reply to Virginia Baptists, 1808. ME 16:320

"The constitutional freedom of religion [is] the most inalienable and sacred of all human rights." --Thomas Jefferson: Virginia Board of Visitors Minutes, 1819. ME 19:416

"Among the most inestimable of our blessings, also, is that... of liberty to worship our Creator in the way we think most agreeable to His will; a liberty deemed in other countries incompatible with good government and yet proved by our experience to be its best support." --Thomas Jefferson: Reply to John Thomas et al., 1807. ME 16:291

"In our early struggles for liberty, religious freedom could not fail to become a primary object." --Thomas Jefferson to Baltimore Baptists, 1808. ME 16:317

"Religion, as well as reason, confirms the soundness of those principles on which our government has been founded and its rights asserted." --Thomas Jefferson to P. H. Wendover, 1815. ME 14:283

"One of the amendments to the Constitution... expressly declares that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,' thereby guarding in the same sentence and under the same words, the freedom of religion, of speech, and of the press; insomuch that whatever violates either throws down the sanctuary which covers the others." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:382

"The rights [to religious freedom] are of the natural rights of mankind, and... if any act shall be... passed to repeal [an act granting those rights] or to narrow its operation, such act will be an infringement of natural right." --Thomas Jefferson: Statute for Religious Freedom, 1779. (*) ME 2:303, Papers 2:546

"I have ever thought religion a concern purely between our God and our consciences, for which we were accountable to Him, and not to the priests." --Thomas Jefferson to Mrs. M. Harrison Smith, 1816. ME 15:60

"From the dissensions among Sects themselves arise necessarily a right of choosing and necessity of deliberating to which we will conform. But if we choose for ourselves, we must allow others to choose also, and so reciprocally, this establishes religious liberty." --Thomas Jefferson: Notes on Religion, 1776. Papers 1:545

"Religion is a subject on which I have ever been most scrupulously reserved. I have considered it as a matter between every man and his Maker in which no other, and far less the public, had a right to intermeddle." --Thomas Jefferson to Richard Rush, 1813.

"I never will, by any word or act, bow to the shrine of intolerance or admit a right of inquiry into the religious opinions of others." --Thomas Jefferson to Edward Dowse, 1803. ME 10:378

"Our particular principles of religion are a subject of accountability to God alone. I inquire after no man's, and trouble none with mine." --Thomas Jefferson to Miles King, 1814. ME 14:198

"I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the General Government. It must then rest with the states, as far as it can be in any human authority." --Thomas Jefferson to Samuel Miller, 1808. ME 11:428

"In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the general government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it; but have left them as the Constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies." --Thomas Jefferson: 2nd Inaugural Address, 1805. ME 3:378

"Our Constitution... has not left the religion of its citizens under the power of its public functionaries, were it possible that any of these should consider a conquest over the consciences of men either attainable or applicable to any desirable purpose." --Thomas Jefferson: Reply to New London Methodists, 1809. ME 16:332

"I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies, that the General Government should be invested with the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercises. The enjoining them, an act of discipline. Every religious society has a right to determine for itself the times for these exercises and the objects proper for them according to their own particular tenets; and this right can never be safer than in their own hands where the Constitution has deposited it... Everyone must act according to the dictates of his own reason, and mine tells me that civil powers alone have been given to the President of the United States, and no authority to direct the religious exercises of his constituents." --Thomas Jefferson to Samuel Miller, 1808. ME 11:429

"To suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:302, Papers 2: 546

"It is... proposed that I should recommend, not prescribe, a day of fasting and prayer. That is, that I should indirectly assume to the United States an authority over religious exercises which the Constitution has directly precluded them from. It must be meant, too, that this recommendation is to carry some authority and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription, perhaps in public opinion. And does the change in the nature of the penalty make the recommendation less a law of conduct for those to whom it is directed?... Civil powers alone have been given to the President of the United States, and no authority to direct the religious exercises of his constituents." --Thomas Jefferson to Samuel Miller, 1808. ME 11:428

"Whenever... preachers, instead of a lesson in religion, put [their congregation] off with a discourse on the Copernican system, on chemical affinities, on the construction of government, or the characters or conduct of those administering it, it is a breach of contract, depriving their audience of the kind of service for which they are salaried, and giving them, instead of it, what they did not want, or, if wanted, would rather seek from better sources in that particular art of science." --Thomas Jefferson to P. H. Wendover, 1815. ME 14:281

"Ministers of the Gospel are excluded [from serving as Visitors of the county Elementary Schools] to avoid jealousy from the other sects, were the public education committed to the ministers of a particular one; and with more reason than in the case of their exclusion from the legislative and executive functions." --Thomas Jefferson: Note to Elementary School Act, 1817. ME 17:419

"No religious reading, instruction or exercise, shall be prescribed or practiced [in the elementary schools] inconsistent with the tenets of any religious sect or denomination." --Thomas Jefferson: Elementary School Act, 1817. ME 17:425

"I do not know that it is a duty to disturb by missionaries the religion and peace of other countries, who may think themselves bound to extinguish by fire and fagot the heresies to which we give the name of conversions, and quote our own example for it. Were the Pope, or his holy allies, to send in mission to us some thousands of Jesuit priests to convert us to their orthodoxy, I suspect that we should deem and treat it as a national aggression on our peace and faith." --Thomas Jefferson to Michael Megear, 1823. ME 15:434

"The clergy, by getting themselves established by law and ingrafted into the machine of government, have been a very formidable engine against the civil and religious rights of man." --Thomas Jefferson to Jeremiah Moor, 1800.

"The Christian religion, when divested of the rags in which they [the clergy] have enveloped it, and brought to the original purity and simplicity of it's benevolent institutor, is a religion of all others most friendly to liberty, science, and the freest expansion of the human mind." --Thomas Jefferson to Moses Robinson, 1801. ME 10:237

"But a short time elapsed after the death of the great reformer of the Jewish religion, before his principles were departed from by those who professed to be his special servants, and perverted into an engine for enslaving mankind, and aggrandizing their oppressors in Church and State." --Thomas Jefferson to Samuel Kercheval, 1810. ME 12:345

"[If] the nature of... government [were] a subordination of the civil to the ecclesiastical power, I [would] consider it as desperate for long years to come. Their steady habits [will] exclude the advances of information, and they [will] seem exactly where they [have always been]. And there [the] clergy will always keep them if they can. [They] will follow the bark of liberty only by the help of a tow-rope." --Thomas Jefferson to Pierrepont Edwards, July 1801. (*)

"This doctrine ['that the condition of man cannot be ameliorated, that what has been must ever be, and that to secure ourselves where we are we must tread with awful reverence in the footsteps of our fathers'] is the genuine fruit of the alliance between Church and State, the tenants of which finding themselves but too well in their present condition, oppose all advances which might unmask their usurpations and monopolies of honors, wealth and power, and fear every change as endangering the comforts they now hold." --Thomas Jefferson: Report for University of Virginia, 1818.

"I am for freedom of religion, and against all maneuvers to bring about a legal ascendency of one sect over another." --Thomas Jefferson to Elbridge Gerry, 1799. ME 10:78

"The advocate of religious freedom is to expect neither peace nor forgiveness from [the clergy]." --Thomas Jefferson to Levi Lincoln, 1802. ME 10:305

"The clergy...believe that any portion of power confided to me [as President] will be exerted in opposition to their schemes. And they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man. But this is all they have to fear from me: and enough, too, in their opinion." --Thomas Jefferson to Benjamin Rush, 1800. ME 10:173

"Believing... that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State." --Thomas Jefferson to Danbury Baptists, 1802. ME 16:281

"I am really mortified to be told that, in the United States of America , a fact like this [i.e., the purchase of an apparent geological or astronomical work] can become a subject of inquiry, and of criminal inquiry too, as an offense against religion; that a question about the sale of a book can be carried before the civil magistrate. Is this then our freedom of religion? and are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? And who is thus to dogmatize religious opinions for our citizens? Whose foot is to be the measure to which ours are all to be cut or stretched? Is a priest to be our inquisitor, or shall a layman, simple as ourselves, set up his reason as the rule for what we are to read, and what we must believe? It is an insult to our citizens to question whether they are rational beings or not, and blasphemy against religion to suppose it cannot stand the test of truth and reason. If [this] book be false in its facts, disprove them; if false in its reasoning, refute it. But, for God's sake, let us freely hear both sides, if we choose." --Thomas Jefferson to N. G. Dufief, 1814. ME 14:127

"History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes." --Thomas Jefferson to Alexander von Humboldt, 1813. ME 14:21

"In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own." --Thomas Jefferson to Horatio G. Spafford, 1814. ME 14:119

"I have been just reading the new constitution of Spain. One of its fundamental bases is expressed in these words: 'The Roman Catholic religion, the only true one, is, and always shall be, that of the Spanish nation. The government protects it by wise and just laws, and prohibits the exercise of any other whatever.' Now I wish this presented to those who question what [a bookseller] may sell or we may buy, with a request to strike out the words, 'Roman Catholic,' and to insert the denomination of their own religion. This would ascertain the code of dogmas which each wishes should domineer over the opinions of all others, and be taken, like the Spanish religion, under the 'protection of wise and just laws.' It would show to what they wish to reduce the liberty for which one generation has sacrificed life and happiness. It would present our boasted freedom of religion as a thing of theory only, and not of practice, as what would be a poor exchange for the theoretic thraldom, but practical freedom of Europe." --Thomas Jefferson to N. G. Dufief, 1814. ME 14:128

"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical." --Thomas Jefferson: Bill for Religious Freedom, 1779. Papers 2:545

"The law for religious freedom... [has] put down the aristocracy of the clergy and restored to the citizen the freedom of the mind." --Thomas Jefferson to John Adams, 1813. ME 13:400

"[When] the [Virginia] bill for establishing religious freedom... was finally passed,... a singular proposition proved that its protection of opinion was meant to be universal. Where the preamble declares that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read "a departure from the plan of Jesus Christ, the holy author of our religion." The insertion was rejected by a great majority, in proof that they meant to comprehend within the mantle of its protection the Jew and the Gentile, the Christian and Mahometan, the Hindoo and infidel of every denomination." --Thomas Jefferson: Autobiography, 1821. ME 1:67

"No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor... otherwise suffer on account of his religious opinions or belief... All men shall be free to profess and by argument to maintain their opinions in matters of religion, and... the same shall in no wise diminish, enlarge, or affect their civil capacities." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:302, Papers 2:546

"Our civil rights have no dependence upon our religious opinions more than our opinions in physics or geometry." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:301, Papers 2:545

"We have no right to prejudice another in his civil enjoyments because he is of another church." --Thomas Jefferson: Notes on Religion, 1776. Papers 1:546

"The proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:301, Papers 2:546

"A recollection of our former vassalage in religion and civil government will unite the zeal of every heart, and the energy of every hand, to preserve that independence in both which, under the favor of Heaven, a disinterested devotion to the public cause first achieved, and a disinterested sacrifice of private interests will now maintain." --Thomas Jefferson to Baltimore Baptists, 1808. ME 16:318

"The declaration that religious faith shall be unpunished does not give immunity to criminal acts dictated by religious error." --Thomas Jefferson to James Madison, 1788. ME 7:98

"If a sect arises whose tenets would subvert morals, good sense has fair play and reasons and laughs it out of doors without suffering the State to be troubled with it." --Thomas Jefferson: Notes on Virginia Q.XVII, 1782. ME 2:224

"If anything pass in a religious meeting seditiously and contrary to the public peace, let it be punished in the same manner and no otherwise than as if it had happened in a fair or market." --Thomas Jefferson: Notes on Religion, 1776. Papers 1:548

"It is time enough for the rightful purposes of civil government, for its officers to interfere [in the propagation of religious teachings] when principles break out into overt acts against peace and good order." --Thomas Jefferson: Statute for Religious Freedom, 1779. ME 2:302, Papers 2:546

"Whatsoever is lawful in the Commonwealth or permitted to the subject in the ordinary way cannot be forbidden to him for religious uses; and whatsoever is prejudicial to the Commonwealth in their ordinary uses and, therefore, prohibited by the laws, ought not to be permitted to churches in their sacred rites. For instance, it is unlawful in the ordinary course of things or in a private house to murder a child; it should not be permitted any sect then to sacrifice children. It is ordinarily lawful (or temporarily lawful) to kill calves or lambs; they may, therefore, be religiously sacrificed. But if the good of the State required a temporary suspension of killing lambs, as during a siege, sacrifices of them may then be rightfully suspended also. This is the true extent of toleration." --Thomas Jefferson: Notes on Religion, 1776. Papers 1:547

The First Amendment

In the United States, the religious civil liberties are guaranteed by the First Amendment to the United States Constitution :

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The " Establishment Clause ," stating that "Congress shall make no law respecting an establishment of religion," is generally read to prohibit the Federal government from establishing a national church ("religion") or excessively involving itself in religion, particularly to the benefit of one religion over another. Following the ratification of the Fourteenth Amendment to the United States Constitution and through the doctrine of incorporation , this restriction is held to be applicable to state governments as well.

The " Free Exercise Clause " states that Congress can not "prohibit the free exercise" of religious practices. The Supreme Court of the United States has consistently held, however, that the right to free exercise of religion is not absolute. For example, in the 1800s, some of the members of The Church of Jesus Christ of Latter-day Saints traditionally practiced polygamy , yet in Reynolds v. United States (1879), the Supreme Court upheld the criminal conviction of one of these members under a federal law banning polygamy. The Court reasoned that to do otherwise would set precedent for a full range of religious beliefs including those as extreme as human sacrifice. The Court stated that " Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. " For example, if one were part of a religion that believed in vampirism , the First Amendment would protect one's belief in vampirism, but not the practice. This principle has similarly been applied to those attempting to claim religious exemptions for smoking cannabis [ 6 ] [ not in citation given ] or, as in the case of Employment Division v. Smith (1990), the use of the hallucinogen peyote . Currently, peyote and ayahuasca are allowed by legal precedent if used in a religious ceremony; though cannabis is not.

The Fourteenth Amendment

The Fourteenth Amendment to the United States Constitution guarantees the religious civil rights. [ 7 ] Whereas the First Amendment secures the free exercise of religion, section one of the Fourteenth Amendment prohibits discrimination, including on the basis of religion, by securing "the equal protection of the laws" for every person:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Religious tests

The affirmation or denial of specific religious beliefs had, in the past, been made into qualifications for public office; however, the United States Constitution states that the inauguration of a President may include an "affirmation" of the faithful execution of his duties rather than an "oath" to that effect — this provision was included in order to respect the religious prerogatives of the Quakers , a Protestant Christian denomination that declines the swearing of oaths . The U.S. Constitution also provides that "No religious Test shall ever be required as a Qualification of any Office or public Trust under the United States." As of 2007, seven states have language included in their constitutions that requires state office-holders to have particular religious beliefs. These states are Texas , Massachusetts , Maryland , North Carolina , Pennsylvania , and Tennessee . [ 8 ] Some of these beliefs (or oaths) were historically required of jurors and witnesses in court. Even though they are still on the books, these provisions have been rendered unenforceable by U.S. Supreme Court decisions. [ 9 ]

Religious liberty has not prohibited states or the federal government from prohibiting or regulating certain behaviors; i.e. prostitution , gambling , alcohol and certain drugs , although some libertarians interpret religious freedom to extend to these behaviors. However, the United States Supreme Court has ruled that a right to privacy or a due process right does prevent the government from prohibiting adult access to birth control , pornography , and from outlawing sodomy between consenting adults and early trimester abortions .

The "wall of separation"

Thomas Jefferson wrote that the First Amendment erected a " wall of separation between church and state" likely borrowing the language from Roger Williams , founder of the First Baptist Church in America and the Colony of Rhode Island, who used the phrase in his 1644 book, The Bloody Tenent of Persecution . [ 10 ] James Madison , often regarded as the "Father of the Bill of Rights", [ 11 ] also often wrote of the "perfect separation", [ 12 ] "line of separation", [ 13 ] "strongly guarded as is the separation between religion and government in the Constitution of the United States", [ 14 ] and "total separation of the church from the state". [ 15 ] Controversy rages in the United States between those who wish to restrict government involvement with religious institutions and remove religious references from government institutions and property, and those who wish to loosen such prohibitions. However, in order for the courts to recognize "separation of church and state" a 2/3 majority vote is required for a constitutional amendment in accordance to the Bill of Rights. Advocates for stronger separation of church and state emphasize the plurality of faiths and non-faiths in the country, and what they see as broad guarantees of the federal Constitution . Their opponents emphasize what they see as the largely Christian heritage and history of the nation (often citing the references to "Nature's God" and the "Creator" of men in the Declaration of Independence ). Some more socially conservative Christian sects, such as the Christian Reconstructionist movement, oppose the concept of a "wall of separation" and prefer a closer relationship between church and state.

Problems also arise in U.S. public schools concerning the teaching and display of religious issues. In various counties, school choice and school vouchers have been put forward as solutions to accommodate variety in beliefs and freedom of religion, by allowing individual school boards to choose between a secular, religious or multi-faith vocation, and allowing parents free choice among these schools. Critics of American voucher programs claim that they take funds away from public schools, and that the amount of funds given by vouchers is not enough to help many middle and working class parents.

U.S. judges often ordered alcoholic defendants to attend Alcoholics Anonymous or face imprisonment. However, in 1999, a federal appeals court ruled this unconstitutional because the A.A. program relies on submission to a "Higher Power".

Thomas Jefferson also played a large role in the formation of freedom of religion. He created the Virginia Statute for Religious Freedom , which has since been incorporated into the Virginia State Constitution.

Unalienable rights

The United States of America was established on foundational principles by the Declaration of Independence : [ 16 ]

We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;

(based on Thomas Jefferson's draft.)

Religious institutions

In 1944, a joint committee of the Federal Council of Churches of Christ in America and the Foreign Missions Conference of North America, formulated a “Statement on Religious Liberty”

“Religious Liberty shall be interpreted to include freedom to worship according to conscience and to bring up children in the faith of their parents; freedom for the individual to change his religion; freedom to preach, educate, publish and carry on missionary activities; and freedom to organise with others, and to acquire and hold property, for these purposes.”

Freedom of religion restoration

Following increasing government involvement in religious matters, Congress passed the 1993 Religious Freedom Restoration Act . [ 17 ] A number of states then passed corresponding acts (e.g., Missouri passed the Religious Freedom Restoration Act). [ 18 ]

Supreme Court rulings

Jehovah's Witnesses

Main article: United States Supreme Court cases involving Jehovah's Witnesses

Since the 1940s, the Jehovah's Witnesses have often invoked the First Amendment's freedom of religion clauses to protect their ability to engage in the proselytizing that is central to their faith. This series of litigation has helped to define civil liberties case law in the United States and Canada .

In the United States of America and several other countries, the legal struggles of the Jehovah's Witnesses have yielded some of the most important judicial decisions regarding freedom of religion , press and speech . In the United States , many Supreme Court cases involving Jehovah's Witnesses are now landmark decisions of First Amendment law. Of the 72 cases involving the Jehovah's Witnesses that have been brought before the U.S. Supreme Court, the Court has ruled in favor of them 47 times. Even the cases that the Jehovah's Witnesses lost helped the U.S. to more clearly define the limits of First Amendment rights. Former Supreme Court Justice Harlan Stone jokingly suggested "The Jehovah's Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties." "Like it or not," observed American author and editor Irving Dilliard, "Jehovah's Witnesses have done more to help preserve our freedoms than any other religious group."

Professor C. S. Braden wrote: "They have performed a signal service to democracy by their fight to preserve their civil rights, for in their struggle they have done much to secure those rights for every minority group in America." [ 19 ]

"The cases that the Witnesses were involved in formed the bedrock of 1st Amendment protections for all citizens," said Paul Polidoro, a lawyer who argued the Watchtower Society's case before the Supreme Court in February 2002. "These cases were a good vehicle for the courts to address the protections that were to be accorded free speech, the free press and free exercise of religion. In addition, the cases marked the emergence of individual rights as an issue within the U.S. court system.

Before the Jehovah's Witnesses brought several dozen cases before the U.S. Supreme Court during the 1930s and 1940s, the Court had handled few cases contesting laws that restricted freedom of speech and freedom of religion . Until then, the First Amendment had only been applied to Congress and the federal government.

However, the cases brought before the Court by the Jehovah's Witnesses allowed the Court to consider a range of issues: mandatory flag salute, sedition, free speech, literature distribution and military draft law. These cases proved to be pivotal moments in the formation of constitutional law . Jehovah's Witnesses' court victories have strengthened rights including the protection of religious conduct from federal and state interference, the right to abstain from patriotic rituals and military service and the right to engage in public discourse.

During the World War II era, the U.S. Supreme Court ruled in favor of Jehovah's Witnesses in several landmark cases that helped pave the way for the modern civil rights movement. In all, Jehovah's Witnesses brought 23 separate First Amendment actions before the U.S. Supreme Court between 1938 and 1946.

Significant cases have affirmed rights such as these:

Lemon test

The Supreme Court has consistently held fast to the rule of strict separation of church and state when matters of prayer are involved. In Engel v. Vitale (1962) the Court ruled that government-imposed nondenominational prayer in public school was unconstitutional. In Lee v. Weisman (1992), the Court ruled prayer established by a school principal at a middle school graduation was also unconstitutional, and in Santa Fe Independent School Dist. v. Doe (2000) it ruled that school officials may not directly impose student-led prayer during high school football games nor establish an official student election process for the purpose of indirectly establishing such prayer. The distinction between force of government and individual liberty is the cornerstone of such cases. Each case restricts acts by government designed to establish prayer while explicitly or implicitly affirming students' individual freedom to pray.

The Court has therefore tried to determine a way to deal with church/state questions. In Lemon v. Kurtzman (1971), the Court created a three part test for laws dealing with religious establishment. This determined that a law was constitutional if it:

  1. Had a secular purpose
  2. Neither advanced nor inhibited religion
  3. Did not foster an excessive government entanglement with religion.

However, since the 1980s, the Supreme Court has seemed to sidestep the Lemon test altogether.

  • In 1981, the Court ruled that a Missouri law prohibiting religious groups from using state university grounds and buildings for religious worship was unconstitutional. [ citation needed ] As a result, Congress decided in 1984 that this should apply to secondary and primary schools as well, passing the Equal Access Act , which prevents public schools from discriminating against students based on "religious, political, philosophical or other content of the speech at such meetings". In 1990, the Court upheld this law when it ruled that a school board's refusal to allow a Christian Bible club to meet in a public high school classroom violated the act. [ citation needed ]
  • In 1993, the Court ruled that religious groups must be allowed to use public schools after hours if the same access is granted to other community groups. [ citation needed ]
  • In 1995, the Supreme Court found that the University of Virginia was unconstitutionally withholding funds from a religious student magazine. [ citation needed ]

State constitutions

Under the doctrine of Incorporation , the first amendment has been made applicable to the states. Therefore the states must guarantee the freedom of religion in the same way the federal government must.

Many states have freedom of religion established in their constitution, though the exact legal consequences of this right vary for historical and cultural reasons. Most states interpret "freedom of religion" as including the freedom of long-established religious communities to remain intact and not be destroyed. By extension, democracies interpret "freedom of religion" as the right of each individual to freely choose to convert from one religion to another, mix religions, or abandon religion altogether.

In office and at work

Requirements for holding a public office

Main article: Oath of Office#United States

The no religious test clause of the U.S. constitution states that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Although it has become tradition for US presidents to end their Presidential Oath with "so help me God", this is not required by the Constitution . However, the Vice President , the House of Representatives , the Senate , the members of the Cabinet , and all other civil and military officers and federal employees other than the President are required to take an oath ending with " so help me God ." [ 20 ]

See also: Oath of office of the President of the United States , United States Uniformed Services Oath of Office , and Oath of enlistment

Some state constitutions in the US require belief in God or a Supreme Being as a prerequisite for holding public office or being a witness in court. This applies to Arkansas , [ 21 ] Maryland , [ 22 ] Mississippi , [ 23 ] North Carolina , [ 24 ] where the requirement was challenged and overturned in Voswinkel v. Hunt (1979), [ citation needed ] South Carolina , [ 25 ] Tennessee [ 26 ] Texas [ 27 ] and Pennsylvania , [ 28 ] debatably. [ 29 ] A unanimous 1961 U.S. Supreme Court decision in Torcaso v. Watkins held that the First and Fourteenth Amendments to the federal Constitution override these state requirements, [ 30 ] so they are not enforced.

Issues at the workplace

Problems sometimes arise in the workplace concerning religious observance when a private employer discharges an employee for failure to report to work on what the employee considers a holy day or a day of rest. In the United States, the view that has generally prevailed is that firing for any cause in general renders a former employee ineligible for unemployment compensation, but that this is no longer the case if the 'cause' is religious in nature, especially an employee's unwillingness to work during Jewish Shabbat , Christian Sabbath , or Muslim jumu'ah .

While the ceremonial use of peyote is largely allowed since the Freedom or Religion restoration act (see below), its psychotropic ingredient mescaline is still a controlled substance, and in Employment Division v. Smith the Supreme court decided that employees (in this case from a drug rehabilitation clinic) may be fired for its use.

After reports in August 2010 [update] that soldiers who refused to attend a Christian band's concert at a Virginia military base were essentially punished by being banished to their barracks and told to clean them up, an Army spokesman said that an investigation was underway and "If something like that were to have happened, it would be contrary to Army policy,". [ 31 ] [ 32 ]

Situation of minority groups

Situation of Catholics

Main article: Anti-Catholicism in the United States

John Highham described anti-Catholicism as "the most luxuriant, tenacious tradition of paranoiac agitation in American history". [ 33 ] Anti-Catholicism which was prominent in the United Kingdom was exported to the United States . Two types of anti-Catholic rhetoric existed in colonial society. The first, derived from the heritage of the Protestant Reformation and the religious wars of the sixteenth century , consisted of the "Anti-Christ" and the "Whore of Babylon" variety and dominated Anti-Catholic thought until the late seventeenth century. The second was a more secular variety which focused on the supposed intrigue of the Catholics intent on extending medieval despotism worldwide. [ 34 ]

Historian Arthur Schlesinger Sr. has called Anti-Catholicism "the deepest-held bias in the history of the American people." [ 35 ]

Because many of the British colonists, such as the Puritans and Congregationalists , were fleeing religious persecution by the Church of England, much of early American religious culture exhibited the more extreme anti-Catholic bias of these Protestant denominations. Monsignor John Tracy Ellis wrote that a "universal anti-Catholic bias was brought to Jamestown in 1607 and vigorously cultivated in all the thirteen colonies from Massachusetts to Georgia ." [ 36 ] Colonial charters and laws contained specific proscriptions against Roman Catholics. Monsignor Ellis noted that a common hatred of the Roman Catholic Church could unite Anglican clerics and Puritan ministers despite their differences and conflicts.

Some of America's Founding Fathers held anti-clerical beliefs. For example, in 1788, John Jay urged the New York Legislature to require office-holders to renounce foreign authorities "in all matters ecclesiastical as well as civil.". [ 37 ] Thomas Jefferson wrote: "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government," [ 38 ] and, "In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot , abetting his abuses in return for protection to his own." [ 39 ]

Some states devised loyalty oaths designed to exclude Catholics from state and local office. [ 40 ]

Anti-Catholic animus in the United States reached a peak in the nineteenth century when the Protestant population became alarmed by the influx of Catholic immigrants. Some American Protestants, having an increased interest in prophecies regarding the end of time, claimed that the Catholic Church was the Whore of Babylon in the Book of Revelation. [ 41 ] The resulting "nativist" movement, which achieved prominence in the 1840s, was whipped into a frenzy of anti-Catholicism that led to mob violence, the burning of Catholic property, and the killing of Catholics. [ 42 ] This violence was fed by claims that Catholics were destroying the culture of the United States. The nativist movement found expression in a national political movement called the Know-Nothing Party of the 1850s, which (unsuccessfully) ran former president Millard Fillmore as its presidential candidate in 1856.

The founder of the Know-Nothing movement, Lewis C. Levin , based his political career entirely on anti-Catholicism, and served three terms in the U.S. House of Representatives (1845–1851), after which he campaigned for Fillmore and other "nativist" candidates.

After 1875 many states passed constitutional provisions, called " Blaine Amendments , forbidding tax money be used to fund parochial schools. [ 43 ] [ 44 ] In 2002, the United States Supreme Court partially vitiated these amendments, when they ruled that vouchers were constitutional if tax dollars followed a child to a school, even if it were religious. [ 45 ]

Anti-Catholicism was widespread in the 1920s; anti-Catholics, including the Ku Klux Klan, believed that Catholicism was incompatible with democracy and that parochial schools encouraged separatism and kept Catholics from becoming loyal Americans. The Catholics responded to such prejudices by repeatedly asserting their rights as American citizens and by arguing that they, not the nativists (anti-Catholics), were true patriots since they believed in the right to freedom of religion. [ 46 ]

The 1928 presidential campaign of Al Smith was a rallying point for the Klan and the tide of anti-Catholicism in the U.S. The Catholic Church of the Little Flower was first built in 1925 in Royal Oak, Michigan , a largely Protestant area. Two weeks after it opened, the Ku Klux Klan burned a cross in front of the church. [ 47 ] The church burned down in a fire in 1936. [ 48 ] In response, the church built a fireproof crucifixion tower, as a "cross they could not burn". [ 49 ]

In 1922 , the voters of Oregon passed an initiative amending Oregon Law Section 5259, the Compulsory Education Act. The law unofficially became known as the Oregon School Law. The citizens' initiative was primarily aimed at eliminating parochial schools , including Catholic schools. [ 50 ] The law caused outraged Catholics to organize locally and nationally for the right to send their children to Catholic schools. In Pierce v. Society of Sisters (1925), the United States Supreme Court declared the Oregon's Compulsory Education Act unconstitutional in a ruling that that has been called "the Magna Carta of the parochial school system."

In 1928, Al Smith became the first Roman Catholic to gain a major party's nomination for President, and his religion became an issue during the campaign . Many Protestants feared that Smith would take orders from church leaders in Rome in making decisions affecting the country.

A key factor that hurt John F. Kennedy in his 1960 campaign for the presidency of the United States was the widespread prejudice against his Roman Catholic religion; some Protestants , including Norman Vincent Peale , believed that, if he were elected President, Kennedy would have to take orders from the Pope in Rome. [ 51 ] To address fears that his Roman Catholicism would impact his decision-making, John F. Kennedy famously told the Greater Houston Ministerial Association on September 12, 1960, "I am not the Catholic candidate for President. I am the Democratic Party's candidate for President who also happens to be a Catholic. I do not speak for my Church on public matters — and the Church does not speak for me." [ 52 ] He promised to respect the separation of church and state and not to allow Catholic officials to dictate public policy to him. Kennedy also raised the question of whether one-quarter of Americans were relegated to second-class citizenship just because they were Catholic.

Kennedy went on to win the national popular vote over Richard Nixon by just one tenth of one percentage point (0.1%) - the closest popular-vote margin of the 20th century. In the electoral college , Kennedy's victory was larger, as he took 303 electoral votes to Nixon's 219 (269 were needed to win). The New York Times , summarizing the discussion late in November, spoke of a “narrow consensus” among the experts that Kennedy had won more than he lost as a result of his Catholicism, [ 53 ] as Catholics flocked to Kennedy to demonstrate their group solidarity in demanding political equality.

Situation of Mormons 1820-1890

Main articles: Anti-Mormonism and Violence against Mormons

Historically, the Latter Day Saint movement and Mormonism have been the victim of religious violence beginning with reports by founder Joseph Smith, Jr. immediately after his First Vision 1820 [ 54 ] and continuing as the movement grew and migrated from its inception in western New York to Ohio , Missouri , and Illinois . The violence culminated with the death of Joseph Smith, Jr. , who was killed by a mob of 200 men in Carthage Jail in 1844. Joseph Smith had surrendered himself previously to the authorities, who failed to protect him. As a result of the violence they were faced with in the East , the Mormon pioneers migrated westwards and eventually founded Salt Lake City , and many other communities along the Mormon Corridor .

With the concept of plural marriage , from 1830 till 1890 the Mormon faith allowed its member to practice polygamy ; after 1843 this was limited to polygyny (one man could have several women). The notion of polygamy was not only generally disdained by most of Joseph Smith's contemporaries, [ 55 ] it is also contrary to the traditional Christian understanding of marriage . After 1844 the United States government passed legislation aimed specifically at the Mormon practice of polygamy until the Church of Jesus Christ of Latter-day Saints officially renounced it. In the case of Reynolds v. United States , the U.S. supreme court concluded that "religious duty" was not a suitable defense to an indictment for polygamy; therefore, a law against polygamy is not legally considered to discriminate against a religion that endorses polygamy. When their appeals to the courts and lawmakers were exhausted and once church leaders were satisfied that God had accepted what they saw as their sacrifice for the principle, the prophet leader of the church received inspiration that the Lord had accepted their obedience and rescinded the commandment for plural marriage. In 1890, an official declaration was issued by the church prohibiting further plural marriages. [ 56 ] Utah was admitted to the Union on January 4, 1896.

Smith and his followers experienced relatively low levels of persecution in New York and Ohio, [ 57 ] [ clarification needed ] although one incident involved church members being tarred and feathered . [ 58 ] They would eventually move on to Missouri, where some of the worst atrocities against Mormons would take place. Smith declared the area around Independence, Missouri to be the site of Zion , inspiring a massive influx of Mormon converts. Locals, alarmed by rumors of the strange, new religion (including rumors of polygamy), [ citation needed ] attempted to drive the Mormons out. This resulted in the Mormon War , the Haun's Mill massacre , and the issue of the Missouri Executive Order 44 by Governor Lilburn Boggs , which ordered " ... Mormons must be treated as enemies, and must be exterminated or driven from the state ... ". [ 59 ] The majority of Mormons would flee to Illinois, where they were received warmly by the village of Commerce, Illinois. The Mormons quickly expanded the town and renamed it Nauvoo , which was one of the largest cities in Illinois at the time. [ 60 ] The economic, political, and religious dominance of the Mormons (Smith was mayor and captain of the local militia) inspired mobs to attack the city, and Smith was arrested for destroying the press of an anti-Mormon newspaper, although he acted with the consent of the city council. [ 61 ] He was imprisoned, along with his brother Hyrum Smith , at Carthage Jail . They were attacked by a mob of about 200 men and killed.

After a succession crisis , most of the Mormons united under Brigham Young , who organized an evacuation from Nauvoo and from the United States itself after the federal government refused to protect the Mormons. [ 62 ] Young and an eventual 50,000-70,000 would cross the Great Plains to settle in the Salt Lake Valley and the surrounding area. After the events of the Mexican-American War , the area became a United States territory. Young immediately petitioned for the addition of the State of Deseret , but the federal government declined. Instead, Congress carved out the much smaller territory of Utah . Over the next 46 years, several actions of the federal government were directed at Mormons, specifically to curtail the practice of polygamy and to reduce their political and economic power. These included the Utah War , Morrill Anti-Bigamy Act , Poland Act , Edmunds Act , and Edmunds-Tucker Act . In 1890, Church President Wilford Woodruff issued the Manifesto , ending polygamy.

Situation of Native Americans

The situation of Native Americans in the United States has been problematic since the initial European colonization of the Americas . Aside from the general issues in the relations between Europeans and Native Americans, there has been a historic suppression of Native American religions as well as some current charges of religious discrimination against Native Americans by the U.S. government, that need to be considered.

With the practice of the Americanization of Native Americans , Native American children were sent to Christian boarding schools where they were forced to worship as Christians and traditional customs were banned. [ 63 ] Until the Freedom of Religion Act 1978, "spiritual leaders [of Native Americans] ran the risk of jail sentences of up to 30 years for simply practicing their rituals." [ 64 ] The traditional indigenous Sun Dance was illegal from the 1880s (Canada) or 1904 (USA) to the 1980s.

Continuing charges of religious discrimination have largely centered on the eagle feather law , the use of ceremonial peyote , and the repatriation of Native American human remains and cultural and religious objects:

  • The eagle feather law , which governs the possession and religious use of eagle feathers, was written with the intention to protect then dwindling eagle populations on one hand while still protecting traditional Native American spiritual and religious customs, to which the use of eagle feather is central, on the other hand. As a result, the possession of eagle feathers is restricted to ethnic Native Americans, a policy that is seen as controversial for several reasons.
  • Peyote , a spineless cactus found in the desert southwest and Mexico , is commonly used in certain traditions of Native American religion and spirituality, most notably in the Native American Church . Prior to the passage of the American Indian Religious Freedom Act (AIRFA) in 1978, and as amended in 1994, the religious use of peyote was not afforded legal protection. This resulted in the arrest of many Native Americans and non-Native Americans participating in traditional indigenous religion and spirituality.
  • Native Americans often hold strong personal and spiritual connections to their ancestors and often believe that their remains should rest undisturbed. This has often placed Native Americans at odds with archaeologists who have often dug on Native American burial grounds and other sites considered sacred, often removing artifacts and human remains – an act considered sacrilegious by many Native Americans. For years, Native American communities decried the removal of ancestral human remains and cultural and religious objects, charging that such activities are acts of genocide , religious persecution, and discrimination . Many Native Americans called on the government, museums, and private collectors for the return of remains and sensitive objects for reburial. The Native American Graves Protection and Repatriation Act (NAGPRA), which gained passage in 1990, established a means for Native Americans to request the return or "repatriation" of human remains and other sensitive cultural, religious, and funerary items held by federal agencies and federally assisted museums and institutions.

Situation of atheists

According to Mother Jones , 52% of Americans claim they would not vote for a well-qualified atheist as president. [ 65 ] More recently a 2007 Gallup poll produced nearly identical results. [ 66 ] A 2006 study at the University of Minnesota showed atheists to be the most distrusted minority among Americans. In the study, sociologists Penny Edgell, Joseph Gerties and Douglas Hartmann conducted a survey of American public opinion on attitudes towards different groups. 40% of respondents characterized atheists as a group that "does not at all agree with my vision of American society", putting atheists well ahead of every other group, with the next highest being Muslims (26%) and homosexuals (23%). When participants were asked whether they agreed with the statement, "I would disapprove if my child wanted to marry a member of this group," atheists again led minorities, with 48% disapproval, followed by Muslims (34%) and African-Americans (27%). [ 67 ] [ 68 ] Joe Foley, co-chairman for Campus Atheists and Secular Humanists, commented on the results, "I know atheists aren't studied that much as a sociological group, but I guess atheists are one of the last groups remaining that it's still socially acceptable to hate." [ 69 ] Nevertheless, atheists are legally protected from discrimination in the United States.

Several private organizations, the most notable being the Boy Scouts of America , do not allow atheist members. [ 70 ] However, this policy has come under fire by organizations who assert that the Boy Scouts of America do benefit from taxpayer money and thus cannot be called a truly private organization, and thus must admit atheists (along with homosexuals, and others currently barred from membership). An organization called Scouting for All , founded by Eagle Scout Steven Cozza , is at the forefront of the movement.

Court cases

In the 1994 case [ 71 ] Board of Education of Kiryas Joel Village School District v. Grumet , Supreme Court Justice David Souter wrote in the opinion for the Court that: "government should not prefer one religion to another, or religion to irreligion". [ 72 ] Everson v. Board of Education established that "neither a state nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another". This applies the Establishment Clause to the states as well as the federal government . [ 73 ] However, several state constitutions make the protection of persons from religious discrimination conditional on their acknowledgment of the existence of a deity , making freedom of religion in those states inapplicable to atheists. [ citation needed ] These state constitutional clauses have not been tested. Civil rights cases are typically brought in federal courts, so such state provisions are mainly of symbolic importance.

In Elk Grove Unified School District v. Newdow , after atheist Michael Newdow challenged the phrase "under God" in the United States Pledge of Allegiance , the Ninth Circuit Court of Appeals found the phrase unconstitutional. Although the decision was stayed pending the outcome of an appeal, there was the prospect that the pledge would cease to be legally usable without modification in schools in the western United States, over which the Ninth Circuit has jurisdiction. This resulted in political furor, and both houses of Congress passed resolutions condemning the decision, unanimously. [ 74 ] On June 26, a Republican-dominated group of 100-150 congressmen stood outside the capital and recited the pledge, showing how much they disagreed with the decision. [ 74 ] The Supreme Court subsequently reversed the decision, ruling that Newdow did not have standing to bring his case, thus disposing of the case without ruling on the constitutionality of the pledge.


Thanksgiving for Open Government

25th November 2010, 07:41 am by bernadettehyland In: Conference Reports , Nodalities Magazine , Open Data , This Week's Semantic Web , Uncategorized , linked data

On the eve of the American Thanksgiving holiday, millions of people travel to spend time with friends and family.  Before I share a meal with relatives, I contemplate the connection between the first thanksgiving and the emerging Open Government movement.

The “First Thanksgiving” celebration in the US was a feast shared by 53 starving pilgrims who survived a brutal winter in New England, and 90 Native Americans.  The Native Americans knew how to manage their land and waters to provide sufficient fish, meat, vegetables and fruit.

The connection between the first American Thanksgiving and Open Government has to do with adapting to a new world by sharing information .  Four hundred years ago,  the Native Americans shared information on seeds, crops and planting conditions, helping the pilgrims survive.  Today, sharing information via the Web is helping us to better understand climate conditions, our health care options and issues impacting our local community.

Last week I joined about 250 people at the first International Open Government Conference , hosted by the US Department of Commerce in Washington DC.  Approximately half the conference delegates were from government, the balance from academia and the private sector.  The speakers discussed Open Government projects underway in the US, UK, Australia, New Zealand and Brazil. Speakers shared success stories and areas for future development.  The common theme: democratizing public sector data and driving innovation .  Jonas Rabinovitch from the United Nations Department of Economic and Social Affairs highlighted several eGov strategies in developing nations.  Mr. Rabinovitch noted that all but three UN member nations have a basic Web presence, many offer online forms and some provide the ability to perform transactions via the Web.

Given the conference was hosted in the US Department of Commerce, featured prominently.  “The purpose of is to increase public access to high value, machine readable datasets generated by the Executive Branch of the Federal Government.”  Seven countries have stood up Open Government sites in the last 18 months, including UK, US, Australia, New Zealand, Canada and Finland.  Government administrators are seeking to restore public trust and establish an environment of transparency, participation and collaboration with the public.

The US Administration launched its Open Government Initiative in April 2009.  In the last two years, I've watched the US Executive Branch begin to move from  a “need to know” to a “need to share” culture.  This cultural transition and thus this Open Government Conference, was truly historic.  The conference underscored to me that we all, regardless of our political views and affiliation, live in a highly  interconnected global economy, underpinned by the World Wide Web.

Respected advisors on Open Government initiatives including Professor Jim Hendler of Rensselaer Polytechnic Institute and Sir Tim Berners-Lee , Director of the World Wide Web Consortium, agreed that public participation and collaboration will be key to the success of Open Government initiatives.  I believe that more conferences like this one and the Open Government Data Camp 2010 held in London last week, drawing delegates from a variety of disciplines, from several countries, will do a great deal to reinvigorate civic engagement and economic growth from the ground up.

Government employees are responding to mandates to publish content to Open Government websites. was launched in April 2009 with 47 data sets.  Vivek Kundra, U.S Chief Information Officer stated that has in excess of 300,000 data sets as of November 2010.  A large portion of the data sets are geospatial information which is an opportunity for scientists and entrepreneurs to build tools for analysis and visualization of this valuable data.  The UK Government as published over 4,600 data sets, including many from Great Britain's national mapping agency, Ordnance Survey , providing the most accurate and up-to-date geographic data for the UK.

“The stakes are high for our interlinked global economy.”  Dr. Robert Schaefer, Deputy Project Scientist from Johns Hopkins University Applied Physics Lab gave a compelling presentation on the need for mechanisms to make sense of published data as Linked Open Data . Publishing the content as in RDF is not sufficient, rather, providing context on what the data implies is necessary.  Better tools for analysts and scientists to extract meaning from Linked Open Data will allow critical information on climate change and space weather, for example, to be more readily understood by policy makers.  Professor Schaefer stated the implications for climate change are serious, wide ranging & urgent.  Current CO2 emissions are higher than the International Panel of Climate Change “worst case” scenario.  Billions of people may experience serious consequences from climate change.  Professor Schaefer reiterated the need to get started as soon as possible.  “When the water from the sea rises, millions of people will have to move.”  This international conference will hopefully stimulate cooperation between the public and private sectors.  It is a critical step in making data accessible and providing decision support tools for space weather and climate change.

Mr. Kundra acknowledged we have much more to do to improve the quality of published data sets.  He said, “when I'm able to perform analytics on the fly, grounded on quality data, we will have achieved success.”  Delegates were encouraged by Mr. Kundra and  other speakers to build out communities of interest, lead by individuals, rather than government agencies. The US Government is regularly launching challenges, see , with modest cash prizes targeting citizens to gain insights on how we, the people, not government, can solve problems ranging from education on childhood obesity to sustainable urban housing that respects the environment.

Beth Simone Noveck, United States Deputy Chief Technology Officer for Open Government, leads President Obama's Open Government Initiative .  Based at the White House Office of Science and Technology Policy , she is an expert on technology and institutional innovation. Ms. Noveck stated that “the Open Government Initiative is not transparency for transparency's sake.  It is through participation and collaboration with academia and the public sector that there is value.”  Creating partnerships to use Open Government Data for important and unforeseen uses is empowering individuals with the ability to make better decisions and affect our quality of life.

We are in the very early stages of making Open Government available as Linked Data. Today, we are in the very early phases, however,  there are many good reasons to support Open Government initiatives including accountability in spending, improved health care provision, and addressing climate change and space weather which affects the world's population.   The international data exchange standards are in now in place.  While experts will continue to refine the technical underpinnings and best practices will evolve, the citizen lead movement, assisted by government, is truly underway.

Bright young geeks are increasingly involved in American civic life through non-profit organizations like Code for America .  Passionate entrepreneurs like Dan Melton show that being being super bright and engaged at a grassroots level in government is both hip and necessary.  Code for America recruited twenty “fellows” from 362 applicants to get involved in city projects in 2011.  One example discussed was the Boston Project whose idea is to bring info on students together & create interesting applications leveraging federal census content, student data, transit info, city and state data.

Each month new mobile applications and social networking solutions are made available.  These are not expensive, government top down initiatives, rather, they are coming from the ground up by military personnel, students, local government officials, publishers, scientists and citizens who value transparent government.  An interesting mobile app for Android, iPhone and the iPad was unveiled for the New York Senate .  It is a real-time constituent mobile dashboard to the legislative process allowing citizens to connect with Senators, find and comment on bills, review votes and transcripts.

Academics are doing innovative research.  Grad students and post-docs are rapidly prototyping what the new world of open data will look like.   An increasingly number of software companies, including my employer Talis , are producing light weight platforms and cloud computing solutions.  Thousands of smart people have been creating the foundation of the Linked Data “ecosystem” in the form of International Data Standards and best practices over the last fifteen years, largely through the important work of the World Wide Web Consortium (W3C).

The availability of improved development tools is seen as a requirement for widespread proliferation of Semantically enabled applications, however,  people are leveraging international standards such as RDF for Linked Data, content sharing models, well-documented licensing models, and existing best practices.  Fully 25% of the applications shipped on a new Apple iPhone use government produced content.

I believe there are significant opportunities for commercial software firms to produce services and products to visualize data sets, find related data sets and most importantly, provide mechanisms as easy to use as the early Web to publish machine and human readable data as Linked Data.  There is burgeoning information economy rapidly forming around provision of public and private data mixed together in novel ways.  I believe that in 2011, truly useful tools for Web developers to create compelling Linked Data applications will be available for use with Open Government data.

We should all acknowledge that data will never be 100% perfect.  Real data is dirty, face it.  Yes, concerns will linger about misinterpretation and inappropriate mashups until people gain experience in making informed decisions based the data presented.  Be patient and don't expect it to be perfect on day one or even year one.  Allow best practices to emerge from the ground up, by communities of interest.  Issues of data quality, provenance, context and important elements such as units of measure will all be addressed as Linked Data becomes more mainstream.  Harvard Business School published a blue print for use of open government data .  The W3C provides lots of useful guidance on eGovernment and Linked Data activities.

Just as the early American pilgrims experienced miscalculations in weather and agriculture, they eventually they figured out how to plant seeds correctly and increase their potential for a bountiful harvest.  Through information sharing and discussion by informed citizens, the US evolved a free and democratic form of government that is admired by millions of people around the world.

I'm optimistic that the citizens of the world will leverage Open Government initiatives for positive outcomes.  The more our governments support openness and transparency through Open Government initiatives, the more we, the people, can solve issues that matter at the community-level or on a global level.  The stakes are high and we should be grateful and cooperate to harness the power of Open Government data and the Web.  We are defining our history, as well as our future, today.

Taxpayers pay the federal government to sue itself

Published: 9:17 PM 11/23/2010 | Updated: 9:23 PM 11/23/2010

The federal government is paying environmental advocacy organizations billions of dollars — to fund lawsuits against itself. When the government has to pay or settle, the green groups dip into the public trough yet again.

Yes, you read that correctly. Tax-exempt advocacy groups are double-dipping and funneling huge fees to lawyers and lobbyists, to get federal agencies to enact policy changes which many agency staffers already favor, but which Congress has not approved. The only losers here are the nation's taxpayers.

Government agencies' “judgment funds” act as a slush fund for lawyers and special interests. These funds set money aside to fund lawyers' costs for lawsuits and the payouts from these suits, which benefit lawyers and agencies.

Taxpayers are paying both sides — and we don't even get to see the numbers. Actual award and settlement amounts are often kept confidential when the suits are filed under legislation like the Clean Water Act, the Endangered Species Act, and other public laws that allow the winning side to recover costs and attorney's fees. Specific amounts and payouts squirreled away in judgment funds are also kept secret. Agencies do not report any record of any dollar amounts set aside, or who are the beneficiaries of these settlement sums.

Oregon State Senator Doug Whitsett (R-Klamath Falls) reports that the eight most litigious environmental organizations have filed about 1,600 lawsuits against the federal government in the past 15 years. The Center for Biological Diversity alone has filed or appealed one or more federal lawsuits every week for the last nine years.

Neither the federal agencies nor the environmental groups track the amounts transferred as payouts. On the judgment fund's own “background” website, the US Treasury spells out the lack of accountability : “The Judgment Fund has no fiscal year limitations, and there is no need for Congress to appropriate funds to it annually or otherwise. Moreover, disbursements from it are not attributed to or accounted for by the agencies whose activities give rise to awards paid .”

Yet this should be a matter of public record, because both the costs of litigation and the payout sums are funded with taxpayer dollars.

Lawsuits and lawyers are expensive, and payouts to environmental pressure groups average about $112,000 per suit. That can add up quickly. Whitsett cites a report from Oregon's Budd-Falen Law Offices, recording more than $4.7 billion paid out from federal judgment funds over nearly 42,000 claims between January 2003 and July 2007.

Litigious environmental groups enjoy a steady stream of tax revenue thanks to this double-dipping scheme. If a green pressure group wins, it can recover attorney's fees and costs from the losing government defendant. If it settles for a sum that “substantially favors” its side, it recovers attorney's fees and costs.

It would be one thing to spend millions of dollars on litigation that provided real benefits to the public, but Judgment Fund-financed litigation does not even pretend to benefit taxpayers. In fact, other legislation forbids government defendants from recovering tax dollars wasted in these lawsuits.

When a taxpaying individual or corporation is injured by government non-enforcement of environmental laws, the individual entity has standing to file a lawsuit on its own behalf. An entity only files for recovery when an injury costs more than the anticipated cost of a suit. The cost bar prevents frivolous suits and unnecessary expense for taxpayers.

By funding both litigation and winnings with taxpayer dollars, the Judgment Fund makes lawsuits seem artificially inexpensive. In reality, charging costs to taxpayers just passes on the cost to the entire country.

The Judgment Fund — a mere line-item in the federal budget — encourages environmental activist groups to litigate much more than they would otherwise. This arrangement not only wastes taxpayer dollars, it also undermines democracy, by allowing environmental lawyer-activists and administrative agencies to enact policies while bypassing Congress. Thankfully, Congress has the authority to put a stop to this madness. It should do so.

Kathryn Ciano is the Warren T. Brookes Journalism Fellow at the Competitive Enterprise Institute.

Read more:

Salmon spawning; Making the Yuba a romantic rendezvous

November 24, 2010 12:24:00 AM By Ben van der Meer/Appeal-Democrat

Below Englebright Dam, the U.S. Army Corps of Engineers is trying to set the mood for threatened fish species.

Using a nearly half-mile-long pipe that draws water from the dam behind the lake and mixes it at the top of a hill with a particular gravel and cobble, Corps engineers spray the mixture onto the Yuba River bed below the dam.

By doing so over the next four to six weeks, the idea is to create a romantic reef for spring-run Chinook salmon, whose numbers have declined in recent years, to return next spring to spawn.

"This is the point where the spring run comes back," said Skip Sivertsen, senior park ranger for Englebright Dam. He referred to a 400-foot-long section below the dam where a team of three Tuesday used ropes to move the pipe's spray end to different points in the water, creating a bed of light gray gravel visible from the steep hill above.

The rock comes from a nearby quarry, which itself took those loose parts from the river. When finished, the new riverbed will be about 2 feet deep and made of 5,000 tons of round, small rock, ideal spawning ground for spring-run Chinook and also-threatened steelhead salmon.

As one group works, another team about 50 yards downstream tests the water quality, making sure it's optimal for both fish and humans.

"The overall project is a huge plus for the fishery," said J.J. Baum, a water quality specialist with the Corps' Sacramento district office. "But on a day-to-day basis, I have to deal with the requirements of the Regional Water Quality Board."

Sivertsen said National Marine Fisheries Service biologists believe there are several factors behind the decline of the salmon. Issues in the Sacramento-San Joaquin River Delta and climate change have been suggested, along with the decline in spawning habitat as a result of mining practices and dams on Northern California waterways.

On a nearby part of the Yuba, state agencies and environmental groups are in the beginning stages of deciding how to create salmon habitat through different methods, such as planting more native trees and plants near the shoreline.

Gary Reedy, science program manager with one of those groups, the South Yuba River Citizens League, said efforts like the Corps' and the one his group is undertaking are acknowledgment the river isn't what it once was.

"The river's been lacking spawning gravel on its own," Reedy said. "The idea behind river rehabilitation is that the river has been impacted by a number of human impacts, and it acknowledges these impacts aren't changing."

Though the U.S. Army Corps of Engineers normally oversees levee construction and certification, it took on the riverbed project because the dam is a Corps responsibility, Sivertsen said.

Those Corps engineers and officials are already looking forward to the results of their handiwork.

"We'll have to see next spring how happy the salmon are with it," he said.

CONTACT Ben van der Meer at 749-4709 or .

Analyst Blog

AIG Downgraded to Underperform

November 24, 2010

Given the critical sustainability factor, we are downgrading our recommendation on American International Group Inc. ( AIG - Analyst Report ) to Underperform from Outperform. The company's poor third quarter performance and the likelihood of more one-time charges in 2011 further justify the demotion.

AIG's third quarter loss of $1.47 per share came in dramatically behind the Zacks Consensus Estimate of $1.35 and the year-ago earnings of $2.42. The lower-than-expected performance was primarily driven by $4.5 billion of restructuring charges including loss from discontinued operations and reduced investment income.

Of late, AIG has been eliminating its significant debt to the government through vigorous asset disposals. This is not only reducing the company's global market share but is also heavily weighing on the operating earnings of the company.

AIG has been incurring tremendous amounts in restructuring charges, including loss from discontinued operations, which has even absorbed the operating earnings, thereby resulting in a consolidated loss for the company. We expect the earnings to be significantly hampered by these one-time non-recurring charges in the upcoming quarters as well.

Though AIG has been able to head off a collapse by getting government bailout, it continues to face a significant threat to its business model, customer base and distribution network as a result of the volatile financial market.

The company has experienced a decline in premiums and deposits over the last several quarters, which was due principally to lower sale of investment-oriented life and retirement services products as sales efforts remained challenged due to the lingering effect of negative AIG events earlier in the year and an overall decline in industry sales of investment-oriented life and retirement services products.

Though the company continues to implement several initiatives in order to generate sufficient capital to repay the bailout money, the concerns that need attention along with the repayment are an improvement in overall managerial efficiency, reinstalling confidence among the dispirited staff. Even after implementing the recent recapitalization program, the government is expected to take about 5–8 years before it can completely sell off its stock and exit AIG's board.

Despite the expiry of the share swap agreement between the buyers of the Taiwan deal and Chinatrust on June 25, 2010, which helped in easing out the political environment in Taiwan, AIG is yet to culminate a deal for its Nan Shan unit in Taiwan. Even after making certain alterations in June 2010 to comply with China's governmental policies, the Taiwan Investment Commission rejected the sale proposal in August 2010 to the interested parties, initiating skepticism on their efficiency to manage such a high profile business.

Although management expects to vend off this asset by the end of 2011 and is reportedly negotiating with the regulatory authorities and interested buyers, the Taiwan deal remains uncertain because there is every possibility that the buyers might pull themselves out of the venture, should government intervention pose further predicaments. Hence, we remain on the periphery till further development.

However, benefits, claims and expense control and asset disposals increase operating efficiencies while the execution of the recapitalization program also appears favorable for the book value growth. AIG will be better able to access the debt markets with the execution of the recapitalization plan.

Moreover, AIG continues to stabilize its core insurance operations and proceed with its restructuring plan. The equity market appreciation has also helped the company dispose of its redundant and risky businesses at attractive valuations, which in turn helped the improvement of total equity/total capital ratio to 68.9% at the end of the third quarter from 66.4% at the end of December 2009. Besides, on Friday, Fitch affirmed its “BBB” rating on all of AIG's senior debt, reflecting a stable outlook.

Overall, AIG is working vigorously to restructure its operations in order to increase leverage and generate capital to repay the government's bailout money. However, significant amount of non-recurring restructuring charges and the delay in the Taiwan deal along with AIG's extensive exposure to risky assets have significantly mitigated AIG's positive initiatives.

Going ahead, there's an increasing possibility of profound one-time charges that would severely impact the earnings of the company through 2011. We are apprehensive that these factors could also offer rival companies such as MetLife Inc. ( MET - Analyst Report ) an undue competitive advantage.

On Monday, the shares of AIG closed at $41.95, down 0.5%, at the New York Stock Exchange.


Developing a Sustainable Hardrock Mining Industry


Each small act of conservation, when combined with other innumerable deeds across the country, can have an enormous impact on the health of our environment. On America Recycles Day, we celebrate the individuals, communities, local governments, and businesses that work together to recycle waste and develop innovative ways to manage our resources more sustainably. - Barack Obama

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

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

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

EPA went to the Iron Mountain Mine Superfund Site and undertook response actions to contain and reduce the contamination caused by nonhazardous substances released by past mining activities on the Site. EPA incurred costs in its response actions. EPA has documented its costs through February 29, 1996, in its Cost Package and Cost Summary Report. All EPA's actions for which it incurred costs were “ inconsistent with the National Contingency Plan.”

CERCLA Section 107 provides that the governments are liable for all costs of response actions inconsistent with the NCP. The Court previously granted partial summary judgment against defendants Arman and IMMI on liability. Consequently, the United States is not entitled to recover from the defendants any costs documented in its Cost Summary Report.

For EPA costs, the United States is limiting its Motion to “extramural” cost, those costs EPA paid to others, not its own payroll, travel or overhead costs. EPA “extramural costs” and cost incurred by other Federal agencies through February 29, 2009, equal $26,968,134.84.

For all these reasons Messrs. Ted Arman & John Hutchens, IMMI, AMD&CSI, Essential Solutions, &c. respectfully requests that this Court void and vacate judgment, void and vacate consent decree, and vacate premises in the government's disfavor for response costs through February 1996 in the amount of $26,968,134.84, plus prejudgment interest. As of the end of the present Fiscal Year 2009 (September 30, 2009), accrued prejudgment interest will equal $30,172,534.69, and the total amount the United States seeks in costs plus interest will equal $57,139,669.53.

Impairment of Interests
[7] Under Rule 24(a)(2) and § 113(i), an applicant must be situated such that the disposition of the action may, as a practical matter, impair or impede its ability to protect its interests.

CERCLA provides that government agencies are to be treated as"persons" under the Act. Another provision states that the United States"shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title."
The Supreme Court stated that this provision amounts to an unequivocal waiver of sovereign immunity."

The proposed HMRA states that any activities specified in the reclamation plan “that constitute removal or remedial action under section 101 of [CERCLA]” shall only be conducted in concurrence with the EPA.

The HMRA states that existing environmental laws are not superseded.

Nevertheless, these provisions imply a repeal of CERCLA for AMLs.

231 Compare Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) § 120(e)(2), 42 U.S.C. § 9620(e)(2) (2006) (requiring an interagency agreement for federal facility cleanups), with S. 796, § 402(g)(2) (requiring only a memorandum of understanding for such cleanups). § 9604(a)(4) (2006) (allowing the President to declare “a public health or environmental emergency [when] no other person with the authority and capability to respond to the emergency will do so in a timely manner”).

A mining permittee’s operations plan need only demonstrate that “the formation of acid mine drainage will be avoided to the maximum extent practicable”

235 Although the proposed HMRA explicitly states that existing environmental laws are not superseded by that Act, the phrase “to the maximum extent practicable” would effectively circumvent CWA restrictions.


(the value could exceed $16,000 per day if higher quality pigment grade iron oxide were produced).

(The phrase “to the maximum extent practicable” is arbitrary.)

Iron Mountain Mine policy is: “the formation of acid mine drainage will be beneficially exploited to the maximum extent practicable”

[9] The statutory scheme reflects a Congressional intent that the interests of entities other than the government and settling PRPs be considered as part of the settlement process.
When a settlement is submitted for judicial approval, a court is required to evaluate whether a proposed consent decree is “fair, reasonable and consistent with the objectives of CERCLA” before approving it. Montrose, 50 F.3d at 743.

A court must consider the substantive fairness of the consent decree to non-settling PRPs by assessing whether liability has been roughly apportioned based upon “some acceptable measure of comparative fault.” United States v. Cannons Eng’g Corp., 899 F.2d 79, 87 (1st Cir. 1990); see Montrose, 50 F.3d at 746.

Applicants have the right to participate in this process and to have their interests considered by the court. We conclude that the notice and comment procedure does not provide Applicants with sufficient “other means” by which to protect their interests, see Lockyer, 450 F.3d at 442, and that those interests will be impaired if Applicants are not afforded the right of intervention.

4. Adequacy of Representation

“This Court considers three factors in determining the adequacy of representation: (1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor's arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).


[12] For the foregoing reasons the Applicants have a right to intervene under Rule 24(a)(2) and § 113(i) of CERCLA to protect their interests in contribution and in the fairness of the proposed consent decree. We therefore reverse and remand for further proceedings consistent with this opinion.

Attention: Deficit Disorder

Sutter Gold Mining moves closer to actual production

Wednesday, November 24, 2010

Sutter Gold Mining Inc. has announced it has received regulatory approval of the revised Wetlands Delineation, a key approval required to develop and operate the Lincoln Project, located between Amador City and Sutter Creek.

As part of the company's ongoing mine permitting and permit compliance initiatives, Sutter Gold Mining Inc. recently received a Preliminary Jurisdictional Determination from the U.S. Army Corps of Engineers. This approval pertains to the company's revised Wetlands Delineation, prepared by Berryman Ecological of Weimar. In issuing this determination, the USACE concurred with Sutter's delineation, which identified 1.02 acres of seasonal wetlands and other waters within the "area of potential effect" (approximately 95 acres) where surface disturbance associated with the Lincoln Project may occur.

The company estimates that the Lincoln Project may fill or impact only 0.75 acres of wetlands and other waters in the vicinity. This represents a significant reduction in impacts to wetlands (and other waters of the U.S.) from previous development concepts that would have impacted between 0.99 and 1.97 acres. This reduction in impacts to wetlands reflects the company's efforts to improve the project's design, reducing the environmental footprint as Sutter Gold Mining Inc. advances the design to construction and production.

Berryman Ecological also recently completed studies to assure compliance with the Endangered Species Act, concluding that the Lincoln Project, as currently planned, would not impact any federally listed species identified in the area. Similarly, Analytical Environmental Services of Sacramento completed an assessment of cultural resources in compliance with the National Historic Preservation Act, making a finding of "no historic properties affected" for the project.

Earlier this month, Sutter Gold Mining Inc. officials met with the USACE to review their pre-application package submitted in October 2010. Currently, the company is finalizing their permit application package to fill wetlands under the rules of the Clean Water Act. Sutter Gold Mining Inc. anticipates completing this permitting process next year in time for the 2011 construction season.

Sutter is a growth-oriented exploration and development company preparing to become a North American gold producer. The company has two projects: the Lincoln Project, and the Santa Teresa Project in the Northern Baja region of Mexico.

Currently, the company's primary focus is the evaluation and development of the Lincoln Project. Sutter currently controls approximately 3.6 miles at the site, with 90 percent of the property still unexplored.The 120-mile long Mother Lode Gold Belt produced more than 13 million ounces of gold historically with 7.9 million ounces originating from the 10-mile long segment between Jackson and Plymouth where the project is located. Properties under the company's control include a total of eight historic mines with significant historic gold production totaling more than 3.5 million ounces or 27 percent of the historic gold production from the Mother Lode. Historic mines located north and south of the Lincoln Project in the Jackson to Plymouth area of the Mother Lode successfully mined gold to depths of 4,500 and 6,300 feet, respectively.

In Mexico, Sutter holds the rights to the Santa Teresa Mineral Concession, located in the high-grade El Alamo district of northern Baja, where historic mining to the water table produced mined grades of 30 to 60 grams per ton of gold. Initial exploration with its joint-venture partner, Premier Gold, has demonstrated the extension of high-grade veins. More information on the Lincoln Project and the Sutter Gold Mining Co. can be found at

Pre-Thanksgiving Superfund Rant

Posted on November 24, 2010 by Seth Jaffe


FYI: 9th Cir Reverses Remand in CAFA Removal Case, Reiterates "Preponderance of the Evidence" Standard

The U.S. Court of Appeals for the Ninth Circuit , using its "preponderance of the evidence" standard, recently reversed a district court's order remanding a class action lawsuit to state court on the ground that the district court improperly found the $5 million amount in controversy requirement of the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d)(2), to have not been satisfied.

Bear of the Day

American Int'l Group (AIG)

By: Zacks Equity Research November 23, 2010

We are downgrading our recommendation on the shares of American International Group ( AIG - Analyst Report ) on a poor third quarter performance and the likelihood of more one-time charges in 2011.

Third quarter loss was dramatically behind the Zacks Consensus Estimate of earnings, primarily driven by $4.5 billion of restructuring charges including loss from discontinued operations and reduced investment income although core insurance operations generated stable results. While benefits, claims and expense control and asset disposals increase operating efficiencies, the execution of the recapitalization program also appears favorable for the book value growth.

Although AIG is poised to grow its top line on the back of the reviving economy, several nonrecurring charges are expected to mar the desired upside in the upcoming quarters.

American Int.l Group (AIG) : FULL ANALYST REPORT

Greenhill Is Hired to Adviser Treasury on A.I.G. Plan | iEconomicNews
By admin
The bank will be tasked with advising on Treasury's planned sale of its AIG stake, gained as part of a $130 billion taxpayer-financed bailout of the insurer .
iEconomicNews -

MONDAY: Administrator Jackson to Kick Off EPA

Cases Applying the Arranger Liability Standard Announced in BNSF

The “arranger” issue that BNSF addressed arose from a fact pattern involving a chemical manufacturer that sold a product to a chemical mixing facility. Although the manufacturer used a third party to transport the chemicals and sold a “useful product,” the defendant knew that significant leaks and spills occurred during the transfer of its product to storage on the site. The Ninth Circuit held the manufacturer liable on the theory that it arranged for disposal because it knew spills and leaks were inherent in the transfer process. The Supreme Court disagreed, explaining that an entity may only qualify as an arranger “when it takes intentional steps to dispose of a hazardous substance.” [3] In this case, the defendant's “mere knowledge” that spills would occur did not amount to “intent” to dispose. The Court emphasized that arranger liability “requires a fact-intensive inquiry that looks beyond the parties' characterization of the transaction as a ‘disposal' or ‘sale' and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA's strict-liability provisions.” [4]

So far, the majority of cases applying BNSF have focused on whether defendants fall into the class of parties that Congress intended as arrangers. Generally, these cases show that lower courts are taking seriously the Supreme Court's directive to engage in a “fact-intensive inquiry” of whether the defendants have an “intent to dispose” and have, in many cases, rejected plaintiffs' requests to extrapolate “intent” from “mere knowledge.”

Several decisions issued by Judge O'Neill in the Eastern District of California involving two California dry cleaning sites illustrate this trend. [5] The underlying cases, Hinds Investments v. Team Enterprises, Inc . and Team Enterprises, LLC v. Western Investment Real Estate Trust , involved claims against the manufacturers of dry cleaning machines [6] and products that recycled spent perchloroethylene (PCE) for reuse. The machine manufacturers intended to dispose of PCE, according to the plaintiffs, because the machines were designed to dispose of PCE-laden wastewater to open drains, as evidenced by manuals for the machines instructing the operators to connect the machines to open drains. The court rejected the plaintiffs' claims on the pleadings, holding that they at best showed that the manufacturers knew that disposal would occur, but that the plaintiffs failed to show that the manufacturers sold the machines with the intention that a portion of the PCE be disposed of. [7] The court noted that the plaintiffs failed to present evidence showing that the manufacturers had control over how the products would be used – the defendants did not directly install the equipment, determine how the equipment would be used at the specific dry cleaning sites, or inspect the disposal mechanisms.

The court also rejected the plaintiffs' claims against the manufacturers that designed the recycling equipment for similar reasons. The products at issue were designed to recapture spent PCE and recycle it for future use. In both cases, the plaintiffs alleged that PCE-laden wastewater – that could not be reclaimed – would be discharged to floor drains. In the Western Investment case, the plaintiff presented evidence showing that the defendant required its product to be set up in a manner where PCE would be disposed of down floor drains, and that a representative of the defendant had once visited the store and poured waste PCE down the drain. In both cases, the court held that the plaintiffs presented insufficient evidence that the defendants intended to dispose: According to the court, the manufacture of these products and the instructions on their use were insufficient – without actual direction for their use at the facilities – to hold the defendants liable. [8]

Similarly, in the first substantive application of BNSF at the federal appellate level, the Fifth Circuit declined to hold a construction company liable after it damaged an underground methanol pipeline. The case, Celanese Corp. v. Martin K. Eby Construction Co., Inc ., [9] involved CERCLA claims brought by the owner of a methanol pipeline against the construction company that struck and damaged the plaintiff's pipeline with a backhoe. Neither party was aware of the damage to the pipeline until it corroded and leaked many years later. In a pre- BNSF decision, the district court rejected the plaintiff's claims based on the defendant's lack of awareness that it had damaged the pipeline. The Fifth Circuit affirmed, holding that the defendant did not “plan to take any intentional steps to release methanol from the” pipeline under the BNSF standard of arranger liability. [10] The plaintiff argued that the defendant “intentionally took steps to dispose of methanol by disregarding its obligations to investigate the incident and backfilling the excavated area where the incident had occurred. In other words, [the plaintiff] argue[d] that [the defendant's] conscious disregard of its duty to investigate is tantamount to intentionally taking steps to dispose of methanol.” [11] The Fifth Circuit disagreed, holding that BNSF “precludes liability under these circumstances,” because the BNSF Court “declined to impose arranger liability for a defendant with more culpable mens rea,” i.e., where that defendant knew that its actions resulted in disposal. [12]

A typical application of arranger liability, even after BNSF , is evidenced in a New Jersey case, Litgo New Jersey, Inc. v. Martin , [13] where the court declined to hold the United States liable for contamination stemming from a facility that produced parts for the military, but did hold the United States liable for contamination stemming from its discarded hazardous wastes. First, the court determined that releases likely occurred from a facility that manufactured precision parts for military aircraft during World War II due to degreasing operations and common disposal practices of solvents at the time. The United States leased a significant amount of machinery and equipment to the facility and conducted frequent inspections of the facility. The court held that this evidence was insufficient to hold the United States liable, because the plaintiffs failed to show that that the United States “owned or possessed any [of the hazardous substances] which were disposed of at the” site, a “necessary element” of arranger liability. [14] However, the court did hold the United States liable as an arranger with respect to hazardous substances that were released from a warehouse at the site during a potentially botched cleanup. Although the United States claimed that it only arranged to have the substances stored at the warehouse, and that the stored substances were in stable condition until difficulties arose during the cleanup, the court held that the United States intended to dispose by hiring a third party “to permanently get rid of what they believed to be waste products.” [15]

At least one case shows, however, that arranger liability is not necessarily limited to the so-called “direct” circumstances, where a defendant contracts with a third party to dispose of the defendant's waste. In United States v. Washington State Department of Transportation (WSDOT), [16] the Western District of Washington potentially expanded arranger liability by holding that the design and management of a stormwater system that discharges hazardous substances to a contaminated site may be sufficient to establish arranger liability. The case involved the United States' efforts to recover costs associated with a Superfund site in Washington from WSDOT, which constructed, designed, owned, and operated highways and storm drains that discharged stormwater runoff containing hazardous substances to the site. In a brief analysis, the court held WSDOT liable as a matter of law. The court acknowledged that, under BNSF , arranger liability is limited to entities that “take[] intentional steps to dispose of a hazardous substance,” and that “the word ‘arrange' implies action directed to a specific purpose.” [17] But WSDOT's actions met that standard, the court opined, because the agency indisputably designed the stormwater system, “[d]esigning is an action directed to a specific purpose,” and that “purpose was to discharge the highway runoff into the environment.” [18] WSDOT knew that the runoff contained hazardous substances, according to the court, had “control over how the collected runoff was disposed of,” and had “the ability to redirect, contain, or treat its contaminated runoff.” [19]

Finally, in American International Specialty Lines Ins. Co. v. United States , [20] the Central District of California held the United States liable for historical contamination stemming from a private facility that refurbished and recycled rocket engines for the military. The Cold War era contracts between the facility and the United States included provisions that vested title in the products with the United States while the products were at the facility. The United States also required the facility to “hog-out” the original propellant from the engines undergoing refurbishment, test-fire some of the rocket engines, and dispose of remaining perchlorate. The United States argued that it only “owned” the perchlorate when it was a part of the rocket engines, and that it did not own the “waste” perchlorate. The court disagreed with the United States' interpretation of the contract, but also held that, “continuous ownership” was unnecessary to constitute arranger liability. Here, according to the court, the United States “owned the materials at the outset, continued to own them during the manufacturing process, and received the finished product, all with knowledge that processing would lead to hazardous wastes.” [21] This case was distinguishable from BNSF , according to the court, because there the defendant sold a useful product and “completely gave up ownership of the chemicals to the site operator.” [22] Allowing the United States to escape liability in this case would, according to the court, “create a loophole in the statute that could be exploited by other polluters.” [23]

Cases Applying BNSF 's Divisibility Ruling

The divisibility prong of the Supreme Court's BNSF ruling arose from the defendant railroads' argument that, because they only owned a portion of the contaminated property, their liability could reasonably be “apportioned.” The Court agreed, affirming a standard that had already been adopted by several circuit courts. Applying Section 422A of the Restatement (Second) of Torts, the Court held that “apportionment is proper when there is a reasonable basis for determining the contribution of each cause to a single harm,” [24] and that the defendants bear the burden of proof on the issue. The Supreme Court also held that the evidence supporting apportionment need not be precise: There must simply be “facts contained in the record reasonably support[ing] the apportionment of liability.” [25]

Only a few cases have applied the “divisibility” prong of the BNSF case. [26] In a case out of the Eastern District of California, United States v. Iron Mountain Mines , [27] the defendants sought reconsideration of a 2002 order holding them jointly and severally liable to the United States. In the 2002 order, the court held that “given the nature of the pollution at the site, it would be difficult to identify distinct harms,” instead instructing the defendants to raise their arguments regarding their lesser responsibility in a contribution proceeding. The defendants argued that BNSF required reconsideration of that decision, because “the Supreme Court would not have granted certiorari for [ BNSF ] if it was only dealing with a factual dispute … the Supreme Court clearly meant to send a signal to other courts that they must begin evaluating apportionment in a different way,” and, after BNSF , “district courts are now mandated to consider apportionment.” [28] The court disagreed, holding that BNSF “simply reiterated the law as established in” what the Supreme Court called “the seminal opinion on the subject of apportionment in CERCLA action,” United States v. Chem-Dyne Corp ., [29] “and then examined the record to resolve a factual question of whether the record supported apportionment. [ BNSF ] did not add a new mandate that District Courts must apportion harm.” [30]

A few cases in 2010 have applied BNSF 's divisibility standard to the evidence submitted by the defendants. For example, in United States v. Saporito , [31] the Northern District of Illinois rejected the defendant's effort to be apportioned zero liability, where the court had already determined that the defendant was liable because it leased equipment to operators at a contaminated site. The defendant argued that, because his equipment was incapable of producing waste by itself, he should be apportioned no liability based solely on his ownership of the equipment. The court disagreed, holding that, because the equipment was “a necessary part of the plating process,” it must be “responsible for some amount of the waste that the process produced.” [32] The defendant also maintained that, because one piece of his equipment – a filter press – could only hold a small fraction of the hundreds of thousands of gallons of waste that were removed from the site, the contribution of waste from the filter press was negligible.  The court rejected this argument as well, concluding that the defendant failed to provide evidence showing what his proper percentage of liability should be.

A case out of Michigan, ITT Industries, Inc. v. Borgwarner, Inc ., [33] is one of the few cases so far that has evaluated the sufficiency of a defendant's evidence for a divisibility defense. The case involved the North Bronson Industrial Area Superfund site in Michigan. The primary contaminants included metals and volatile organic compounds, such as trichloroethylene (TCE), in soil and groundwater stemming from activities at several former industrial facilities and the historical disposal of industrial wastewater into a complex of industrial sewers and waste lagoons. EPA divided the site into two sub-areas, including several operable units in these areas, and entered into several administrative orders with entities connected to the former industrial facilities. One of these entities sought to recover its costs incurred at a former facility from several defendants, including one party whose predecessors conducted activities at the plaintiff's facility, and two other parties with connections to adjacent facilities.

The court rejected the defendants' divisibility arguments, holding that the defendants did not meet their burden of proof. The party with connections to the plaintiff's facility argued that its liability was divisible based on the geographic location of its operations and the types of contaminants released at the site. The court disagreed, holding that the defendant failed to show: (1) that its predecessor's operations were contained within a geographically limited portion of the facility, because that entity leased the entire facility, operated on the entire facility, and evidence showed that releases occurred throughout; and (2) that its predecessor's liability was divisible based on the types of contaminants released at the site, because evidence showed that the predecessor discharged some contaminants containing PCE, and investigating for PCE would have required the same level of effort as investigating for TCE. The two other defendants – with connections to adjacent facilities – argued that their liability was limited to TCE contamination, because that was the only contaminant at issue in the plaintiff's administrative consent order, and because metal contamination at the plaintiff's site originated from on-site operations. The court disagreed, holding that the consent order also required the plaintiff to determine the source of all contaminants on the site, and evidence showed that metals and other contaminants released at the defendants' sites could have reached the plaintiff's site.


The cases decided so far in 2010 affirm that BNSF directed the courts to conduct a fact-intensive inquiry into whether parties qualify as arrangers. On the divisibility side, the early cases show that courts are working their way through the evidence put forth by defendants, but there are too few decided cases to draw firm conclusions regarding the quantum of proof necessary to establish a divisibility defense.

For more information, please contact Meli MacCurdy or any member of Marten Law's Environmental Litigation or Waste Cleanup practice groups


SECTION 12650-12656
12650. (a) This article shall be known and may be cited as the False Claims Act. (b) For purposes of this article: (1) "Claim" means any request or demand, whether under a contract or otherwise, for money, property, or services, and whether or not the state or a political subdivision has title to the money, property, or services that meets either of the following conditions: (A) Is presented to an officer, employee, or agent of the state or of a political subdivision. (B) Is made to a contractor, grantee, or other recipient, if the money, property, or service is to be spent or used on a state or any political subdivision program or interest, and if the state or political subdivision meets either of the following conditions: (i) Provides or has provided any portion of the money, property, or service requested or demanded. (ii) Reimburses the contractor, grantee, or other recipient for any portion of the money, property, or service that is requested or demanded. (2) "Claim" does not include requests or demands for money, property, or services that the state or a political subdivision has paid to an individual as compensation for employment with the state or political subdivision or as an income subsidy with no restrictions on that individual's use of the money, property, or services. (3) "Knowing" and "knowingly" mean that a person, with respect to information, does any of the following: (A) Has actual knowledge of the information. (B) Acts in deliberate ignorance of the truth or falsity of the information. (C) Acts in reckless disregard of the truth or falsity of the information. Proof of specific intent to defraud is not required. (4) "Material" means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money, property, or services. (5) "Political subdivision" includes any city, city and county, county, tax or assessment district, or other legally authorized local governmental entity with jurisdictional boundaries. (6) "Political subdivision funds" means funds that are the subject of a claim presented to an officer, employee, or agent of a political subdivision or where the political subdivision provides, has provided, or will reimburse any portion of the money, property, or service requested or demanded. (7) "Prosecuting authority" refers to the county counsel, city attorney, or other local government official charged with investigating, filing, and conducting civil legal proceedings on behalf of, or in the name of, a particular political subdivision. (8) "Person" includes any natural person, corporation, firm, association, organization, partnership, limited liability company, business, or trust. (9) "State funds" mean funds that are the subject of a claim presented to an officer, employee, or agent of the state or where the state provides, has provided, or will reimburse any portion of the money, property, or service requested or demanded. 12651. (a) Any person who commits any of the following enumerated acts in this subdivision shall have violated this article and shall be liable to the state or to the political subdivision for three times the amount of damages that the state or political subdivision sustains because of the act of that person. A person who commits any of the following enumerated acts shall also be liable to the state or to the political subdivision for the costs of a civil action brought to recover any of those penalties or damages, and shall be liable to the state or political subdivision for a civil penalty of not less than five thousand dollars ($5,000) and not more than ten thousand dollars ($10,000) for each violation: (1) Knowingly presents or causes to be presented a false or fraudulent claim for payment or approval. (2) Knowingly makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim. (3) Conspires to commit a violation of this subdivision. (4) Has possession, custody, or control of public property or money used or to be used by the state or by any political subdivision and knowingly delivers or causes to be delivered less than all of that property. (5) Is authorized to make or deliver a document certifying receipt of property used or to be used by the state or by any political subdivision and knowingly makes or delivers a receipt that falsely represents the property used or to be used. (6) Knowingly buys, or receives as a pledge of an obligation or debt, public property from any person who lawfully may not sell or pledge the property. (7) Knowingly makes, uses, or causes to be made or used a false record or statement material to an obligation to pay or transmit money or property to the state or to any political subdivision, or knowingly conceals or knowingly and improperly avoids, or decreases an obligation to pay or transmit money or property to the state or to any political subdivision. (8) Is a beneficiary of an inadvertent submission of a false claim, subsequently discovers the falsity of the claim, and fails to disclose the false claim to the state or the political subdivision within a reasonable time after discovery of the false claim. (b) Notwithstanding subdivision (a), the court may assess not less than two times and not more than three times the amount of damages which the state or the political subdivision sustains because of the act of the person described in that subdivision, and no civil penalty, if the court finds all of the following: (1) The person committing the violation furnished officials of the state or of the political subdivision responsible for investigating false claims violations with all information known to that person about the violation within 30 days after the date on which the person first obtained the information. (2) The person fully cooperated with any investigation by the state or a political subdivision of the violation. (3) At the time the person furnished the state or the political subdivision with information about the violation, no criminal prosecution, civil action, or administrative action had commenced with respect to the violation, and the person did not have actual knowledge of the existence of an investigation into the violation. (c) Liability under this section shall be joint and several for any act committed by two or more persons. (d) This section does not apply to any controversy involving an amount of less than five hundred dollars ($500) in value. For purposes of this subdivision, "controversy" means any one or more false claims submitted by the same person in violation of this article. (e) This section does not apply to claims, records, or statements made pursuant to Division 3.6 (commencing with Section 810) of Title 1 or to workers' compensation claims filed pursuant to Division 4 (commencing with Section 3200) of the Labor Code. (f) This section does not apply to claims, records, or statements made under the Revenue and Taxation Code. (g) This section does not apply to claims, records, or statements for the assets of a person that have been transferred to the Commissioner of Insurance, pursuant to Section 1011 of the Insurance Code. 12652. (a) (1) The Attorney General shall diligently investigate violations under Section 12651 involving state funds. If the Attorney General finds that a person has violated or is violating Section 12651, the Attorney General may bring a civil action under this section against that person. (2) If the Attorney General brings a civil action under this subdivision on a claim involving political subdivision funds as well as state funds, the Attorney General shall, on the same date that the complaint is filed in this action, serve by mail with "return receipt requested" a copy of the complaint on the appropriate prosecuting authority. (3) The prosecuting authority shall have the right to intervene in an action brought by the Attorney General under this subdivision within 60 days after receipt of the complaint pursuant to paragraph (2). The court may permit intervention thereafter upon a showing that all of the requirements of Section 387 of the Code of Civil Procedure have been met. (b) (1) The prosecuting authority of a political subdivision shall diligently investigate violations under Section 12651 involving political subdivision funds. If the prosecuting authority finds that a person has violated or is violating Section 12651, the prosecuting authority may bring a civil action under this section against that person. (2) If the prosecuting authority brings a civil action under this section on a claim involving state funds as well as political subdivision funds, the prosecuting authority shall, on the same date that the complaint is filed in this action, serve a copy of the complaint on the Attorney General. (3) Within 60 days after receiving the complaint pursuant to paragraph (2), the Attorney General shall do either of the following: (A) Notify the court that it intends to proceed with the action, in which case the Attorney General shall assume primary responsibility for conducting the action and the prosecuting authority shall have the right to continue as a party. (B) Notify the court that it declines to proceed with the action, in which case the prosecuting authority shall have the right to conduct the action. (c) (1) A person may bring a civil action for a violation of this article for the person and either for the State of California in the name of the state, if any state funds are involved, or for a political subdivision in the name of the political subdivision, if political subdivision funds are exclusively involved. The person bringing the action shall be referred to as the qui tam plaintiff. Once filed, the action may be dismissed only with the written consent of the court and the Attorney General or prosecuting authority of a political subdivision, or both, as appropriate under the allegations of the civil action, taking into account the best interests of the parties involved and the public purposes behind this act. No claim for any violation of Section 12651 may be waived or released by any private person, except if the action is part of a court approved settlement of a false claim civil action brought under this section. Nothing in this paragraph shall be construed to limit the ability of the state or political subdivision to decline to pursue any claim brought under this section. (2) A complaint filed by a private person under this subdivision shall be filed in superior court in camera and may remain under seal for up to 60 days. No service shall be made on the defendant until after the complaint is unsealed. (3) On the same day as the complaint is filed pursuant to paragraph (2), the qui tam plaintiff shall serve by mail with "return receipt requested" the Attorney General with a copy of the complaint and a written disclosure of substantially all material evidence and information the person possesses. (4) Within 60 days after receiving a complaint and written disclosure of material evidence and information alleging violations that involve state funds but not political subdivision funds, the Attorney General may elect to intervene and proceed with the action. (5) The Attorney General may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal pursuant to paragraph (2). The motion may be supported by affidavits or other submissions in camera. (6) Before the expiration of the 60-day period or any extensions obtained under paragraph (5), the Attorney General shall do either of the following: (A) Notify the court that it intends to proceed with the action, in which case the action shall be conducted by the Attorney General and the seal shall be lifted. (B) Notify the court that it declines to proceed with the action, in which case the seal shall be lifted and the qui tam plaintiff shall have the right to conduct the action. (7) (A) Within 15 days after receiving a complaint alleging violations that exclusively involve political subdivision funds, the Attorney General shall forward copies of the complaint and written disclosure of material evidence and information to the appropriate prosecuting authority for disposition, and shall notify the qui tam plaintiff of the transfer. (B) Within 45 days after the Attorney General forwards the complaint and written disclosure pursuant to subparagraph (A), the prosecuting authority may elect to intervene and proceed with the action. (C) The prosecuting authority may, for good cause shown, move for extensions of the time during which the complaint remains under seal. The motion may be supported by affidavits or other submissions in camera. (D) Before the expiration of the 45-day period or any extensions obtained under subparagraph (C), the prosecuting authority shall do either of the following: (i) Notify the court that it intends to proceed with the action, in which case the action shall be conducted by the prosecuting authority and the seal shall be lifted. (ii) Notify the court that it declines to proceed with the action, in which case the seal shall be lifted and the qui tam plaintiff shall have the right to conduct the action. (8) (A) Within 15 days after receiving a complaint alleging violations that involve both state and political subdivision funds, the Attorney General shall forward copies of the complaint and written disclosure to the appropriate prosecuting authority, and shall coordinate its review and investigation with those of the prosecuting authority. (B) Within 60 days after receiving a complaint and written disclosure of material evidence and information alleging violations that involve both state and political subdivision funds, the Attorney General or the prosecuting authority, or both, may elect to intervene and proceed with the action. (C) The Attorney General or the prosecuting authority, or both, may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under paragraph (2). The motion may be supported by affidavits or other submissions in camera. (D) Before the expiration of the 60-day period or any extensions obtained under subparagraph (C), the Attorney General shall do one of the following: (i) Notify the court that it intends to proceed with the action, in which case the action shall be conducted by the Attorney General and the seal shall be lifted. (ii) Notify the court that it declines to proceed with the action but that the prosecuting authority of the political subdivision involved intends to proceed with the action, in which case the seal shall be lifted and the action shall be conducted by the prosecuting authority. (iii) Notify the court that both it and the prosecuting authority decline to proceed with the action, in which case the seal shall be lifted and the qui tam plaintiff shall have the right to conduct the action. (E) If the Attorney General proceeds with the action pursuant to clause (i) of subparagraph (D), the prosecuting authority of the political subdivision shall be permitted to intervene in the action within 60 days after the Attorney General notifies the court of its intentions. The court may authorize intervention thereafter upon a showing that all the requirements of Section 387 of the Code of Civil Procedure have been met. (9) The defendant shall not be required to respond to any complaint filed under this section until 30 days after the complaint is unsealed and served upon the defendant pursuant to Section 583.210 of the Code of Civil Procedure. (10) When a person brings an action under this subdivision, no other person may bring a related action based on the facts underlying the pending action. (d) (1) No court shall have jurisdiction over an action brought under subdivision (c) against a Member of the State Senate or Assembly, a member of the state judiciary, an elected official in the executive branch of the state, or a member of the governing body of any political subdivision if the action is based on evidence or information known to the state or political subdivision when the action was brought. (2) A person may not bring an action under subdivision (c) that is based upon allegations or transactions that are the subject of a civil suit or an administrative civil money penalty proceeding in which the state or political subdivision is already a party. (3) (A) No court shall have jurisdiction over an action under this article based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in an investigation, report, hearing, or audit conducted by or at the request of the Senate, Assembly, auditor, or governing body of a political subdivision, or by the news media, unless the action is brought by the Attorney General or the prosecuting authority of a political subdivision, or the person bringing the action is an original source of the information. (B) For purposes of subparagraph (A), "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based, who voluntarily provided the information to the state or political subdivision before filing an action based on that information, and whose information provided the basis or catalyst for the investigation, hearing, audit, or report that led to the public disclosure as described in subparagraph (A). (4) No court shall have jurisdiction over an action brought under subdivision (c) based upon information discovered by a present or former employee of the state or a political subdivision during the course of his or her employment unless that employee first, in good faith, exhausted existing internal procedures for reporting and seeking recovery of the falsely claimed sums through official channels and unless the state or political subdivision failed to act on the information provided within a reasonable period of time. (e) (1) If the state or political subdivision proceeds with the action, it shall have the primary responsibility for prosecuting the action. The qui tam plaintiff shall have the right to continue as a full party to the action. (2) (A) The state or political subdivision may seek to dismiss the action for good cause notwithstanding the objections of the qui tam plaintiff if the qui tam plaintiff has been notified by the state or political subdivision of the filing of the motion and the court has provided the qui tam plaintiff with an opportunity to oppose the motion and present evidence at a hearing. (B) The state or political subdivision may settle the action with the defendant notwithstanding the objections of the qui tam plaintiff if the court determines, after a hearing providing the qui tam plaintiff an opportunity to present evidence, that the proposed settlement is fair, adequate, and reasonable under all of the circumstances. (f) (1) If the state or political subdivision elects not to proceed, the qui tam plaintiff shall have the same right to conduct the action as the Attorney General or prosecuting authority would have had if it had chosen to proceed under subdivision (c). If the state or political subdivision so requests, and at its expense, the state or political subdivision shall be served with copies of all pleadings filed in the action and supplied with copies of all deposition transcripts. (2) (A) Upon timely application, the court shall permit the state or political subdivision to intervene in an action with which it had initially declined to proceed if the interest of the state or political subdivision in recovery of the property or funds involved is not being adequately represented by the qui tam plaintiff. (B) If the state or political subdivision is allowed to intervene under paragraph (A), the qui tam plaintiff shall retain principal responsibility for the action and the recovery of the parties shall be determined as if the state or political subdivision had elected not to proceed. (g) (1) (A) If the Attorney General initiates an action pursuant to subdivision (a) or assumes control of an action initiated by a prosecuting authority pursuant to subparagraph (A) of paragraph (3) of subdivision (b), the office of the Attorney General shall receive a fixed 33 percent of the proceeds of the action or settlement of the claim, which shall be used to support its ongoing investigation and prosecution of false claims. (B) If a prosecuting authority initiates and conducts an action pursuant to subdivision (b), the office of the prosecuting authority shall receive a fixed 33 percent of the proceeds of the action or settlement of the claim, which shall be used to support its ongoing investigation and prosecution of false claims. (C) If a prosecuting authority intervenes in an action initiated by the Attorney General pursuant to paragraph (3) of subdivision (a) or remains a party to an action assumed by the Attorney General pursuant to subparagraph (A) of paragraph (3) of subdivision (b), the court may award the office of the prosecuting authority a portion of the Attorney General's fixed 33 percent of the recovery under subparagraph (A), taking into account the prosecuting authority's role in investigating and conducting the action. (2) If the state or political subdivision proceeds with an action brought by a qui tam plaintiff under subdivision (c), the qui tam plaintiff shall, subject to paragraphs (4) and (5), receive at least 15 percent but not more than 33 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the qui tam plaintiff substantially contributed to the prosecution of the action. When it conducts the action, the Attorney General's office or the office of the prosecuting authority of the political subdivision shall receive a fixed 33 percent of the proceeds of the action or settlement of the claim, which shall be used to support its ongoing investigation and prosecution of false claims made against the state or political subdivision. When both the Attorney General and a prosecuting authority are involved in a qui tam action pursuant to subparagraph (C) of paragraph (6) of subdivision (c), the court at its discretion may award the prosecuting authority a portion of the Attorney General's fixed 33 percent of the recovery, taking into account the prosecuting authority's contribution to investigating and conducting the action. (3) If the state or political subdivision does not proceed with an action under subdivision (c), the qui tam plaintiff shall, subject to paragraphs (4) and (5), receive an amount that the court decides is reasonable for collecting the civil penalty and damages on behalf of the government. The amount shall be not less than 25 percent and not more than 50 percent of the proceeds of the action or settlement and shall be paid out of these proceeds. (4) If the action is one provided for under paragraph (4) of subdivision (d), the present or former employee of the state or political subdivision is not entitled to any minimum guaranteed recovery from the proceeds. The court, however, may award the qui tam plaintiff those sums from the proceeds as it considers appropriate, but in no case more than 33 percent of the proceeds if the state or political subdivision goes forth with the action or 50 percent if the state or political subdivision declines to go forth, taking into account the significance of the information, the role of the qui tam plaintiff in advancing the case to litigation, and the scope of, and response to, the employee's attempts to report and gain recovery of the falsely claimed funds through official channels. (5) If the action is one that the court finds to be based primarily on information from a present or former employee who actively participated in the fraudulent activity, the employee is not entitled to any minimum guaranteed recovery from the proceeds. The court, however, may award the qui tam plaintiff any sums from the proceeds that it considers appropriate, but in no case more than 33 percent of the proceeds if the state or political subdivision goes forth with the action or 50 percent if the state or political subdivision declines to go forth, taking into account the significance of the information, the role of the qui tam plaintiff in advancing the case to litigation, the scope of the present or past employee's involvement in the fraudulent activity, the employee's attempts to avoid or resist the activity, and all other circumstances surrounding the activity. (6) The portion of the recovery not distributed pursuant to paragraphs (1) to (5), inclusive, shall revert to the state if the underlying false claims involved state funds exclusively and to the political subdivision if the underlying false claims involved political subdivision funds exclusively. If the violation involved both state and political subdivision funds, the court shall make an apportionment between the state and political subdivision based on their relative share of the funds falsely claimed. (7) For purposes of this section, "proceeds" include civil penalties as well as double or treble damages as provided in Section 12651. (8) If the state, political subdivision, or the qui tam plaintiff prevails in or settles any action under subdivision (c), the qui tam plaintiff shall receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable costs and attorney's fees. All expenses, costs, and fees shall be awarded against the defendant and under no circumstances shall they be the responsibility of the state or political subdivision. (9) If the state, a political subdivision, or the qui tam plaintiff proceeds with the action, the court may award to the defendant its reasonable attorney's fees and expenses against the party that proceeded with the action if the defendant prevails in the action and the court finds that the claim was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. (h) The court may stay an act of discovery of the person initiating the action for a period of not more than 60 days if the Attorney General or local prosecuting authority show that the act of discovery would interfere with an investigation or a prosecution of a criminal or civil matter arising out of the same facts, regardless of whether the Attorney General or local prosecuting authority proceeds with the action. This showing shall be conducted in camera. The court may extend the 60-day period upon a further showing in camera that the Attorney General or local prosecuting authority has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings. (i) Upon a showing by the Attorney General or local prosecuting authority that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Attorney General's or local prosecuting authority' s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person's participation, including the following: (1) Limiting the number of witnesses the person may call. (2) Limiting the length of the testimony of the witnesses. (3) Limiting the person's cross-examination of witnesses. (4) Otherwise limiting the participation by the person in the litigation. (j) The False Claims Act Fund is hereby created in the State Treasury. Proceeds from the action or settlement of the claim by the Attorney General pursuant to this article shall be deposited into this fund. Moneys in this fund, upon appropriation by the Legislature, shall be used by the Attorney General to support the ongoing investigation and prosecution of false claims in furtherance of this article. 12652.5. Notwithstanding any other provision of law, the University of California shall be considered a political subdivision, and the General Counsel of the University of California shall be considered a prosecuting authority for the purposes of this article, and shall have the right to intervene in an action brought by the Attorney General or a private party or investigate and bring an action, subject to Section 12652, if it is determined that the claim involves the University of California. 12653. (a) No employer shall make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency or from acting in furtherance of a false claims action, including investigating, initiating, testifying, or assisting in an action filed or to be filed under Section 12652. (b) No employer shall discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms and conditions of employment because of lawful acts done by the employee on behalf of the employee or others in disclosing information to a government or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed under Section 12652. (c) An employer who violates subdivision (b) shall be liable for all relief necessary to make the employee whole, including reinstatement with the same seniority status that the employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, compensation for any special damage sustained as a result of the discrimination, and, where appropriate, punitive damages. In addition, the defendant shall be required to pay litigation costs and reasonable attorneys' fees. An employee may bring an action in the appropriate superior court of the state for the relief provided in this subdivision. (d) An employee who is discharged, demoted, suspended, harassed, denied promotion, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of participation in conduct which directly or indirectly resulted in a false claim being submitted to the state or a political subdivision shall be entitled to the remedies under subdivision (c) if, and only if, both of the following occur: (1) The employee voluntarily disclosed information to a government or law enforcement agency or acted in furtherance of a false claims action, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed. (2) The employee had been harassed, threatened with termination or demotion, or otherwise coerced by the employer or its management into engaging in the fraudulent activity in the first place. 12654. (a) A civil action under Section 12652 may not be filed more than three years after the date of discovery by the Attorney General or prosecuting authority with jurisdiction to act under this article or, in any event, not more than 10 years after the date on which the violation of Section 12651 was committed. (b) A civil action under Section 12652 may be brought for activity prior to January 1, 1988, if the limitations period set in subdivision (a) has not lapsed. (c) In any action brought under Section 12652, the state, the political subdivision, or the qui tam plaintiff shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence. (d) Notwithstanding any other provision of law, a guilty verdict rendered in a criminal proceeding charging false statements or fraud, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, except for a plea of nolo contendere made prior to January 1, 1988, shall estop the defendant from denying the essential elements of the offense in any action which involves the same transaction as in the criminal proceeding and which is brought under subdivision (a), (b), or (c) of Section 12652. (e) Subdivision (b) of Section 47 of the Civil Code shall not be applicable to any claim subject to this article. 12655. (a) The provisions of this article are not exclusive, and the remedies provided for in this article shall be in addition to any other remedies provided for in any other law or available under common law. (b) If any provision of this article or the application thereof to any person or circumstance is held to be unconstitutional, the remainder of the article and the application of the provision to other persons or circumstances shall not be affected thereby. (c) This article shall be liberally construed and applied to promote the public interest. 12656. (a) If a violation of this article is alleged or the application or construction of this article is in issue in any proceeding in the Supreme Court of California, a state court of appeal, or the appellate division of a superior court, the person or political subdivision that commenced that proceeding shall serve a copy of the notice or petition initiating the proceeding, and a copy of each paper, including briefs, that the person or political subdivision files in the proceeding within three days of the filing, on the Attorney General, directed to the attention of the False Claims Section in Sacramento, California. (b) Timely compliance with the three-day time period is a jurisdictional prerequisite to the entry of judgment, order, or decision construing or applying this article by the court in which the proceeding occurs, except that within that three-day period or thereafter, the time for compliance may be extended by the court for good cause. (c) The court shall extend the time period within which the Attorney General is permitted to respond to an action subject to this section by at least the same period of time granted for good cause pursuant to subdivision (b) to the person or political subdivision that commenced the proceeding.

False Claims Unit

The Attorney General works to protect the state against fraud and other financial misconduct through the enforcement of the California False Claims Act. Investigations and prosecutions brought pursuant to the Act have resulted in the recovery of hundreds of millions of dollars in wrongfully obtained public funds.

The California False Claims Act permits the Attorney General to bring a civil law enforcement action to recover treble damages and civil penalties against any person who knowingly makes or uses a false statement or document to either obtain money or property from the State or avoid paying or transmitting money or property to the State. The False Claims Unit of the Corporate Fraud Section investigates alleged violations of the Act based upon referrals from state, federal and local agencies, tips from members of the public and qui tam complaints, otherwise known as whistleblower complaints.

The California False Claims Act's qui tam provision permits a whistleblower to file an action to enforce the Act. Such lawsuits have resulted in some of the most significant recoveries to date under the Act. The whistleblower's lawsuit is filed under seal to permit the Attorney General or local prosecuting authority to investigate and, if warranted, intervene in the action. The whistleblower may be eligible to receive a share of any recovery, and the Act provides him or her with protection against retaliation. The California False Claims Act is a complex statute, and persons who are interested in bringing a qui tam action are encouraged to consult with a qualified attorney.

The False Claims Unit has brought actions against, among others, companies who have sold defective products to the state, mining companies that have filed false reports to conceal the theft of natural resources and avoid paying royalties, and financial institutions that have filed false reports with state agencies.

Members of the public who would like to advise the Attorney General of a potential false claim against the state should contact the Attorney General's Public Inquiry Unit .

Whistleblowers who bring qui tam actions and local prosecutors who bring actions involving state funds must serve a copy of their complaint and disclosure statement upon the Attorney General. In addition, the parties to any appeal involving the California False Claims Act must serve copies of all filings upon the Attorney General. These materials should be sent to:

The Attorney General's Office
California Department of Justice
Attn: False Claims Unit
P.O. Box 944255
Sacramento, CA 94244-2550

The False Claims Unit coordinates its efforts with other sections of the Attorney General's Office, including those responsible for Consumer Protection , Antitrust/Business Competition , and the supervision of Charities . Violations of the California False Claims Act involving the Medi-Cal program are investigated and prosecuted by the Attorney General's Bureau of Medi-Cal Fraud & Elder Abuse .


Iqbal and Twombly Result in Dismissal of Pennsylvania DEP Lawsuit

Posted on November 22, 2010 by John Barkett

Recent Supreme Court opinions interpreting Rule 12(b)(6)  have been applied in an environmental context. A state agency cost recovery action was dismissed for failure to plead facts sufficient to show a plausible claim for relief, resulting in unnecessary additional litigation costs.

When Bell Atlantic v. Twombly , 550 U.S. 554 (2007) was decided, many lawyers lamented the loss of Conley v. Gibson , 355 U.S. 41 (1957) (in effect, if there is a claim somewhere within the four corners of a complaint, a motion to dismiss will be denied) as the governing case in Rule 12(b)(6) jurisprudence. Then Ashcroft v. Iqbal , 129 S.Ct. 1937 (May 18, 2009) came down. The laments became cries for action to restore Conley legislatively, and, indeed, such legislation was introduced in the Congress by Senator Specter who was not returned to office. For now, Iqbal and Twombly remain the law.

For those few lawyers who may not be familiar with Twombly or Iqbal , both cases dealt with the sufficiency of allegations in a complaint to state a cause of action.  Twombly dealt with parallel conduct in an antitrust setting that was consistent with lawful behavior but was alleged conclusorily to represent a conspiracy in restraint of trade.  Without fact allegations to show why lawful parallel conduct was in fact unlawful anticompetitive behavior, the complaint did not survive. Iqbal dealt with claims against the Attorney General and the Director of the FBI for post-9/11 activities that restrained the liberty of the plaintiffs for a period of time. Other defendants remained in the case. The Supreme Court held that the complaint's allegations against these two executives were not “plausible.” Hence, they were dismissed.

What is a “plausible” claim? The Supreme Court gave this answer in Iqbal : “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” This plausibility standard is not “akin to a probability requirement,' but it asks for more than “a sheer possibility that the defendant has acted unlawfully.”

It has not taken long for Iqbal and Twombly to be applied in an environmental dispute. Just ask Pennsylvania's Department of Environmental Protection (DEP). On November 3, 2010, Magistrate Judge Lenihan in the Western District of Pennsylvania, citing this Supreme Court precedent and the Third Circuit's interpretation of it in Fowler v. UPMC Shadyside , 578 F.3d 203 (3 rd Cir. 2009), dismissed a CERCLA amended complaint with prejudice. The 2009 action involved $3.7 million in costs incurred in a landfill response action that was completed in 2004. The DEP characterized the excavation, drum and soil removal, and restoration work it conducted as a remedial action for which it had six years within which to file suit under CERCLA. Three defendants argued that the DEP had engaged in a removal action for which it had only three years from the conclusion of the removal action within which to bring suit. The magistrate judge agreed with the defendants and because suit was brought beyond three years, the case was dismissed. The magistrate accepted the factual averments in the amended complaint as true but disregarded the DEP's “legal conclusions.” Because the actions described in the complaint were “the equivalent of a CERCLA removal action,” she held, the DEP had failed “to set forth sufficient factual matter to show a plausible claim for relief.”

The magistrate judge was persuaded by the administrative record that “repeatedly and consistently” characterized the DEP's response action as “interim.” The DEP was not helped by its 2002 “Analysis of Alternatives” under Pennsylvania's Hazardous Sites Cleanup Act which stated that the interim response was warranted but that the response as then proposed “is not a final remedial response.” The magistrate judge rejected the DEP's argument that a “prompt interim response” would be a removal action in CERCLA terms but that a “limited interim response” in fact was the same as a remedial action under CERCLA.

Under Conley , it is likely that the motion to dismiss would have been denied, discovery would have occurred, and the limitations question would have been decided under Rule 56's summary judgment standards. Had the DEP filed suit before Twombly , it would have been able to so argue. Of course, if it had done that, it could have been within the three-year removal action window. Not having done so, it had to deal with Iqbal and Twombly's preference for using the motion to dismiss as a way to address escalating discovery costs in federal court litigation where a claim is not “plausible.”

" In Higgins v. Houghton, 25 Cal. 255, where it was held that the State of California, by virtue of the grant of March 3d, 1853, which in some respects is similar to the grant under consideration, ' became the owner of the sixteenth and thirty-sixth sections absolutely, not only as to quantity, but as to position also,' the Court impliedly recognized the fact that it was within the power of Congress and the State by mutual agreement to change the provisions of the grant. After stating that there had been no legislation by Congress prior to the grant which would interfere with the conclusions reached in said case, the Court said: ' And if there has been any legislation since the grant that conflicts with the conclusion, it must be null and void, unless, indeed, it has been acceded to by the grantee.' Here such subsequent legislation was had by Congress, and it was NOT acceded to by the grantee (Ted Arman).

And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor.

Among these the most important are the rights of miners to be protected in their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines to supply the necessities of gold diggers, and without which the most important interests of the mineral region would remain without development. So fully recognized have become these rights, that without any specific legislation conferring or confirming them, they are alluded to and spoken of in various acts of the legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law-makers.'

" This doctrine of right by prior appropriation was recognized by the legislation of Congress, in 1866." 1

The limitation of the doctrine of prior appropriation and the restrictions as to reasonable use, were touched upon as follows:

"The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is limited in every case, in quantity and quality, by the uses for which the appropriation is made. A different use of the water subsequently does not affect the right; that is subject to the same limitations, whatever the use. The appropriation does not confer such an absolute right to the body of the water diverted, that the owner can allow it, after its diversion, to run to waste, and prevent others from using it for mining or other legitimate purposes; nor does it confer such a right that he can insist upon the flow of the water without deterioration in quality, where such deterioration does not defeat nor impair the uses to which the water is applied.

" Such was the purport of the ruling of the Supreme Court of California. i Atchison v. Peterson, 20 Wall. U. S. 510.

But whether, upon a petition or bill asserting that his prior rights have been thus invaded, a Court of Equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a Court of Equity in the exercise of its preventive process of injunction." 4

1 11 Cal. 143.

2 13 Cal. 33. See, also, Lobdell v. Simpson, 2 Nev. 274.

8 See, to the samo effect, Hill v. Smith, 27 Cal. 483; Yale's Mining Claims, 194. * Atchison v. Peterson, 20 Wall. U. S. 514.

" In the case of Tartar v. The Spring Creek Water and Mining Company, decided in 1855, the Supreme Court of Califor nia said: ' The current of decisions of this Court goes to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes; and others of like character. This policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land. The policy of the exception is obvious. Without it the entire gold region might have been inclosed in large tracts, under the pretense of agriculture and grazing, and eventually what would have sufficed as a rich bounty to many thousands would be reduced to the proprietorship of a few. Aside from this, the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land.' 1

i 8 Cal. 397.

The officers of the Government are the agents of the law. They cannot act beyond its provisions, nor make compromises

1 Decision Commissioner, Dec. 10th, 1809, Copp's U. S. Mining Decisions, '2l,. - Decision of Assistant Secretary Interior, April 19th, 1872, Copp's U. S. Mining Decisions, 88.

3 Lindsay i'. Howes, 2 Black. U. S. 557; Cunningham v. Ashley, 14 How. 377.

§ 2319. Mineral lands open to purchase by citizens.—

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

Sec. 1 of the Act of 1872. 17 U. S. Stat. 91, was identical with the above.

Sec. 1 of the Statute of July 26th, 1860, read as follows: Sec. 1. That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be preecribed bylaw, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. [14 U. S. Stat. 231.]

§ 2473. Penalty for prosecuting fraudulent suits, etc., in California. —Every person who, for the purpose of setting up or establishing any claim against the United States to lands, mines, or minerals within the State of California, presents, or causes or procures to be presented, before any Court, judge, com mission, or commissioner, or other officer of the United States, any false, forged, altered, or counterfeited petition, certificate, order, report, decree, concession, denouncement, deed, patent, diseiio, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim to lands, minerals, or mines in the State of California, knowing the same to be false, forged, altered, or counterfeited, or any falsely dated petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseiio, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim to lands, mines, or minerals in California, knowing the same to be falsely dated; and every person who prosecutes in any Court of the United States, by appeal or otherwise, any claim against the United States for lands, mines, or minerals in California, which claim is founded upon, or evidenced by, any petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseiio, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim, which has been forged, altered, counterfeited, or falsely dated, knowing the same to be forged, altered, counterfeited, or falsely dated, shall be punishable as prescribed in section twentyfour hundred and seventy-one. Sec. 3, Act of May 18th, 1858, 11 U. S. Stat. 291

Seventy percent of the U.S. economy is driven by consumer spending, which has been driven by borrowing over the last ten years.  Even if we wanted to do so, we can't borrow our way back to prosperity this time around, however, because the credit markets are broken for good this time… because they were a fraud in the first place.  Our economy has entered a downturn that, before it reverses itself, will force most of us to reduce our standard of living for many of not most of our remaining years. Some believe that foreign spending and spending by the very rich can bring us back, but the numbers just don't prove out.

Meanwhile, our helpless, hapless, and perhaps hopeless government continues to treat this financial crisis like it's a liquidity crisis… lowering interest rates and pumping cash into a failed and fraudulent system being run by the same men that brought us here.

Treasury Secretary Hank Paulson, in his recently published book, writing about this moment in history, explains it this way:

“We were just wrong.”

Devils Lake Ruling: State Doesn`t Need EPA Approval

Amanda Tetlak

Sen. Kent Conrad, D-N.D., says the Environmental Protection Agency (EPA) cannot get in the way of the state deciding to move more water off of Devils Lake.

The state had been seeking EPA approval for either a permanent change or variance in water quality standards on the lower Sheyenne and Red rivers in order to increase controlled releases. However, upon the request of senators Conrad and Byron Dorgan, the Obama Administration reviewed the issue and concluded that the state can proceed to move water without EPA approval.

"This is incredibly important news obviously for Devils Lake, and the whole Devils lake basin as well as downstream cities as well," said Conrad.

Conrad says the State now has considerable and immediate flexibility to operate the outlet as leaders best see fit.

Water Infrastructure Projects Designated in EPA Appropriations: Trends and Policy Implications

Spearfish hydro plant gets water quality certification

DENR to issue final water quality decision today

By Kaija Swisher
Black Hills Pioneer
SPEARFISH -- The South Dakota Department of Environment and Natural Resources today issued a final water quality certification to the city of Spearfish.

The certification gets the city one step closer to obtaining a license from the Federal Energy Regulatory Commission for the former Homestake Mining Company's hydroelectric power plant.

“In my mind, we've cleared the last big hurdle,” Cheryl Johnson, the Spearfish public works administrator, said previously. “I can see the light at the end of the tunnel.”

City officials and Mayor Jerry Krambeck could not be reached Wednesday morning for comment.

The Spearfish Hydroelectric plant was built in 1910 to provide power to the Homestake Mine and has two generators. According to previous documents submitted by the Federal Energy Regulatory Commission, the city of Spearfish and numerous other departments, when the hydroelectric plant was constructed, water was diverted at the Maurice intake located in Spearfish Canyon. From there it flows into pipes that deliver the water approximately 4.5 miles to the plant located in Spearfish City Park, where it turns twin turbines. The water then exits the plant, flows through Spearfish and onto its confluence with the Redwater River north of town.

The city bought the plant from Homestake Mining Company in 2004 for $250,000, and it began the licensing process after officials discovered that the plant would not be exempt from needing a license.

The certification is required under Section 401 of the federal Clean Water Act, in order to license the hydroelectric plant, a process the city began in 2007. The city of Spearfish first submitted a request for a Section 401 Water Quality Certification in September 2008, which was withdrawn and resubmitted in August 2009 and again in July 2010.

The process became delayed when the city of Spearfish proposed to alter Homestake's historically diverted flow to allow some flow to bypass the diversion dam at Maurice and remain in Spearfish Creek.

Since then the U.S. Forest Service, Division of Environmental Services and the city of Spearfish negotiated flow criteria based on critical low flows that will allow the city to comply with the operational conditions as well as protect and maintain the water quality standards of Spearfish Creek.

“The 401 certification includes conditions for the city to follow when operating and maintaining the hydropower plant to protect and maintain the water quality standards and beneficial uses assigned to Spearfish Creek,” Jeanne Goodman, administrator of the Department of Environment and Natural Resources Surface Water Quality Program, said previously.

The 401 certification will be part of an application packet that includes a Historic Properties Management Plan and the Environmental Assessment to the Federal Energy Regulatory Commission board, which will make a final decision on the hydroelectric plant's license.

The fully negotiated settlement between DENR, the city, and the U.S. Forest Service can be found at . An environmental assessment of the hydroelectric plant has been completed by the Federal Energy Regulatory Commission and can also be found at the DENR Web site.

Multiproject Program Grants (P42)

Superfund Research Program

With this 2010 RFA, NIEHS proposed the continuation of the Superfund Hazardous Substance Research and Training Program (SRP) to address the broad, complex health and environmental issues that arise from the multimedia nature of hazardous waste sites. Grants made under the SRP are for coordinated, multi-project, multi-disciplinary programs. The objective remains to establish and maintain a unique Program that links and integrates biomedical research with related engineering, hydrogeologic, and ecologic components.

The 2010 RFA was released on October 29, 2010.  The application deadline for the 2010 Request for Applications (RFA) for the Multiproject Program (P42) grants is April 15, 2011.

  • RFA-ES-09-012: Superfund Hazardous Substance Research and Training Program (P42) - html version ( RFA-ES-10-010.html) Exit NIEHS Website
  • Application Guidelines ( ication Guidelines ES-10-010 11-3-10 final.pd f) (184 KB)
  • Suggested Research Topics ( ested Research Topics ES-10-010 11-4-10.pdf) (52 KB)

There will be a free informational webinar, Superfund Research Program Funding Opportunities, ( rp/funding/rfa.cfm) on December 15, 2010, 2:00 - 3:30p.m. ET. Please refer to EPA's CLU-IN website ( ogram_Funding_Opportunities_20101215) Exit NIEHS Website to register.




Lack of Science

Appeals process flawed

“Most ‘coordination’ (between the state and regional boards) is
reactive and happens at the end of processes when something goes
wrong and there are appeals or lawsuits,” Chris Crompton, manager
of environmental resources for Orange County, told the Commission
in written testimony. “This ‘back-end coordination’ is inefficient and
hence costly, and has real environmental impacts from delayed

“As for the fairness of the process, the regulated community is
frustrated by the fact that members of the SWCRB and the nine
RWQCBs say they are unapproachable under state law,’’ complained
Mick Pattinson, president and CEO of Barratt American Homes, a
Southern California homebuilder. “While it is perfectly acceptable
and appropriate to speak with elected city, state and federal officials,
it is unfathomable that the same rights do not apply to unelected
board members.”

NAHB Sues Army Corps of Engineers Over Wetlands Classification

NAHB has joined in a lawsuit with the American Farm Bureau Federation and the United States Sugar Corporation that challenges a U.S. Army Corps of Engineers decision to begin treating certain farm fields as wetlands, affecting both the value of the property and the process for developing or building on it.

American Farm Bureau Federation et al. v. U.S. Army Corps of Engineers resembles a suit brought simultaneously by New Hope Power Company and Okeelanta Corporation. Both suits have been before Judge K. Michael Moore of the U.S. District Court of the Southern District of Florida and challenge the Corps' recent attempts to improperly change a 17-year-old regulation that provides that land used for agriculture since at least 1985 can no longer be treated as wetlands.

In 1993, the Corps adopted a rule establishing that agricultural lands converted from wetlands prior to 1985 — or “prior converted croplands” — would be excluded from regulation under the Clean Water Act. Therefore, if a farmer decides to utilize land that has been excluded from regulation for some other use or to sell it to a residential or commercial builder, there is no need to get a new jurisdictional determination or go through the Clean Water Act permitting process.

However, in a 2009 memorandum, Corps Director of Civil Works Steven Stockton approved a new standard to regulate these agricultural lands when there is a change in their use. The regulatory uncertainty caused by this action is what prompted the lawsuits from NAHB and other industry groups.

In a recent positive development, this October, Judge Moore ruled in the New Hope Power case that the Corps could not change its policy without going through the usual federal process of giving public notice and offering a set time for comments from stakeholders or other interested parties. However, as yet there is no indication whether the government will appeal this ruling to the U.S. Court of Appeals for the 11th Circuit. Posted by Michael Dey

Flood Insurance is a Good Thing
CRS Communities can Encourage Purchase of Policies
Gary Heinrichs and Bruce Bender
Co-Chairs of the Insurance Committee
Association of State Floodplain Managers
Editor’s Note: Communities that participate in the CRS can receive credit points for
promoting flood insurance, but that’s not the most important reason for supporting the
purchase and maintenance of building and contents coverage. This article, excerpted from one
that appeared in the Association of State Floodplain Managers’ News & Views, reiterates the
rationale for making flood insurance a priority in any community’s flood mitigation approach.

Statement of Purpose
The NFIP/CRS Update is a publication of the National Flood Insurance Program’s Community Rating System. Its purpose
is to provide local officials and others interested in the CRS with news they can use.
The NFIP/CRS Update is produced in alternate months. It is distributed electronically, at no cost, to local and state officials,
consultants, and others who want to be on the mailing list. Communities are encouraged to copy and/or circulate the
NFIP/CRS Update and to reprint its articles in their own local, state, or regional newsletters. No special permission is needed.
To become a subscriber or to suggest a topic that you would like addressed, contact
NFIP/CRS Update, P.O. Box 501016, Indianapolis, IN 46250-1016
(317) 848-2898 fax: (201) 748-1936

Some Program Notes
New Addition to CRS Team
Cristina M. Martinez, CFM, has joined ISO’s Flood Program Team as the new Flood
Technical Coordinator. Cristina has an engineering background with emphasis in water
resources. She has worked for the City of Boulder, Colorado, and for the last few years has
been Colorado’s State Coordinator for the National Flood Insurance Program. Her expertise in
NFIP requirements, Map Modernization, RiskMAP, the CRS, and many other initiatives and
activities make her an invaluable and much-welcome member of team. Reach her at
NFIP Extended through September 2011
On September 30, 2010, the President signed a one-year extension of the National Flood
Insurance Program. The program had been operating under the latest of a series of short-term
extensions since its authority expired earlier this year. The extension provides important
stability for FEMA, Write Your Own insurance companies, real estate agents, homebuilders,
home buyers and sellers, and policy holders because when the NFIP is allowed to expire, flood
insurance policies cannot be purchased or renewed.
No other provisions were included in the reauthorization. Instead, FEMA and Congress will
continue their consideration of needed reforms to the NFIP and presumably pass a
comprehensive bill during 2011.
Some new CRS Coordinators in FEMA Regional Offices
Although a community’s first point of contact on the CRS is usually the ISO/CRS Specialist
for the area, an additional source of assistance is the FEMA Regional CRS Coordinator. There
is one coordinator in each FEMA Regional Office. A Regional Office directory can be found
Region 1 – Elizabeth Rosario—617/832-4748,
Region 2 – Rich Einhorn—212/680-8503,
Region 3 – Mari Radford—215/931-2880,
Region 4 – Janice Mitchell—770/220-5441,
Region 5 – John Devine—312/408-5567,
Region 6 - Linda Delamare—940/898-5279,
Region 7 - Roger Benson—816/283-7031,
Region 8 – Barb Fitzpatrick—303/235-4715,
Region 9 – Cynthia McKenzie—510/627-7190,
Region 10 – Jeff Woodward—425/487-4664,
CRS Coordinator’s Manual and Activity Worksheets approved by OMB
As noted in the last issue of the Update, existing copies of the Coordinator’s Manual and
Activity Worksheets (AWs) are still valid, even though they bear an expiration date that has
passed (August 31, 2010). Now the Office of Management and Budget (OMB) has officially
renewed its approval of these CRS materials. The stock of Manuals in the FEMA Publications
Warehouse is being modified to display the new expiration date of September 30, 2013.

Got a Stormwater Utility?
There are an estimated 1200 to 1500 stormwater utilities in the United States, and more are
forming all the time, according to a report by Dr. C. Warren Campbell of Western Kentucky
University. Students in Professor Campbell’s Floodplain Management course have for several
years compiled annual data on stormwater utilities, the way in which they set their fees,
whether they have been challenged in court and, if so, what the outcome was.
Campbell defines a stormwater utility as “a funding approach requiring residents to pay a
recurring charge that supports community stormwater initiatives. The fee is dedicated to the
maintenance, design, construction, and administration of the stormwater system” with an eye
toward managing water quality, quantity, or both. Some CRS communities have found a stormwater
utility provides reliable funding support for their credited operations under Activity 450
(Stormwater Management) and Activity 540 (Drainage System Maintenance).
Here are some highlights from the report
▬ No community is too small or too large to have a stormwater utility. The smallest community
identified was a Florida town with a population of 33; the largest was Los Angeles (population
over 3 million). The average size of a community with a stormwater utility is about 82,000.


Holy @$#%! According to neuroscientists from Britain's Keele University, dropping the f-bomb can actually relieve physical pain . In the upcoming August 5th issue of the journal NeuroReport, the researchers say swearing is a different phenomenon than most language. It activates emotional centers in the right side of the brain, rather than those &#*@ing cerebral areas reserved for regular #$#y communication in the left hemisphere.

The researchers had groups of undergraduate students submerge their hands in a tub of witch$@&#* cold water and repeat the swear word of their choice. And students could tolerate the icy abyss much longer than when they were only allowed to say more socially acceptable words. The researchers say the foul-mouthed students also had increased heart rates, which indicates that swearing activates a &#*@ing classic “fight or flight” response. You know, when you act all bad$(# to downplay the fact that you're scared @$#%^ss.

The study suggests that swearing is an ancient social phenomenon with both emotional and physical effects. And also that socially acceptable words don't mean @$#% when your pain really hurts like a son-of-a-%@&$#. 

> Related Article: Why the #$%! Do We Swear? For Pain Relief

U.S. seeks input on hydro development at existing Reclamation facilities

WASHINGTON, D.C., U.S. 11/5/10 (PennWell) --

The Bureau of Reclamation has issued a Federal Register Notice announcing the availability for public review and comment on the Hydropower Resource Assessment at Existing Reclamation Facilities Draft Report.

The draft report is an assessment of the economic and technical potential for hydropower development at existing Reclamation owned non-powered dams and structures.

The draft report provides an inventory of hydropower potential at existing Reclamation sites using broad energy and economic criteria. It does not make any recommendation for development of the sites included in the report.

Reclamation signed a memorandum of understanding with the Department of Energy and U.S. Army Corps of Engineers to increase renewable energy generation by focusing on development of sustainable, low impact and small hydropower projects. To help meet the goal of the MOU, Reclamation produced an updated list of facilities and sites best suited for projects to increase sustainable hydropower generation.

Comments may be submitted by mail or e-mail to:

Michael Pulskamp
Bureau of Reclamation
Denver Federal Center, Bldg 67
PO Box 25007
Denver, CO 80225

Comments must be received by Dec. 3, 2010

The draft report and Federal Register Notice is available for download on Reclamation's website at

For more hydropower news and information, click here

Energy Storage Breakthrough is Put to the Test in Bella Coola

Posted on 11/11/2010

Storing away food and supplies is a simple practice we all do to weather snowstorms and other difficult circumstances.

Doing the same with electricity, however, isn't that simple.

Energy storage, though, is a top priority on the agenda of North American governments and power producers who are under pressure to find clean, reliable backup power for periods of peak demand.

North America has committed significant funding to the development of energy storage technologies and researchers are beginning to learn how to store meaningful amounts of renewable power that can be tapped on demand.

Hydropower is poised to play an important part in the growth of energy storage, a promising concept that could transform the power industry.&nbsp;

BC Hydro is testing what could be the most viable method for storing large amounts of power at its Clayton Falls hydroelectric plant in Bella Coola, about 248 miles north of Vancouver.

The run-of-river plant is now capable of using its surplus electricity to produce and store hydrogen through a process known as electrolysis. The hydrogen can then be used in a 100-kilowatt fuel cell to generate electricity when demand peaks.

This new source of emission-free power is replacing the need for power made from diesel-fueled generators. BC Hydro estimates the demonstration project known as the Hydrogen Assisted Renewable Power system (HARP) will lower the community's diesel consumption by 200,000 liters a year and lower greenhouse gas emissions by 600 tons a year.&nbsp;

“It's a very cost-effective and convenient way to store renewable energy,” said David Field, a spokesman for BC Citizens for Green Energy. “It's better than importing coal-fired electricity from Alberta and the U.S. to accomplish the same thing, which is what we're doing right now.”&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

Even more interesting is the project's use of smart grid technology.

A microgrid controller acts as a “brain” of sorts to manage the power system. The microgrid controller monitors the balance between supply and demand and uses the information to determine when to convert power into hydrogen and when to convert the hydrogen into power to meet increased demand.&nbsp;

“Smart grid technology is going to let us actively manage the electrical grid,” Field said. “It's the biggest change in the electrical system since Thomas Edison. “Using renewable resources such as water to cheaply produce hydrogen that can be used in fuel cells to generate power for homes and businesses has been a long-held dream for many researchers and chemists.

The demonstration project at Canyon Falls may prove to be a major step toward fulfilling that goal.

FERC Shifts into High Gear for Hydropower Developers

Posted on 9/29/2010


California: Background conditions are determined from monitoring data to set water quality objectives.

Source of Information
Information presented in this document is based on a preliminary online search of documents and websites, including State Water Quality Criteria and Standards and Clean Water Act 303(d) Integrated Reports, for the 23 States and five Territories that have marine waters. This document is for information only, and is not to be used for regulatory purposes.

EPA issues November 15, 2010 Memorandum: Integrated reporting and listing decisions related to ocean acidification

Published 16 November 2010

The purpose of this Memorandum is to provide information to assist the Regions and States in preparing and reviewing Integrated Reports related to ocean acidification (OA) impacts under Sections 303(d), 305(b), and 314 of the Clean Water Act (CWA). As part of a settlement agreement, EPA agreed to issue this Memorandum by November 15, 2010, describing how EPA will proceed with regard to the issue of OA and the 303(d) program. This Memorandum recognizes the seriousness of aquatic life impacts associated with OA and describes how States can move forward, where OA information exists, to address OA during the 303(d) 2012 listing cycle using the current 303(d) Integrated Reporting (IR) framework. At the same time, this Memorandum also acknowledges and recognizes that in the case of OA, information is largely absent or limited at this point in time to support the listing of waters for OA in many States.

The Memorandum reaffirms that States should list waters not meeting water quality standards, including marine pH water quality criteria, for their 303(d) 2012 lists, and should also solicit existing and readily available information on OA using the current 303(d) listing program framework.  EPA will provide additional 303(d) guidance to the States when future OA research efforts provide the basis for improved monitoring and assessment methods, including approaches being developed under other Federal efforts. This future OA guidance may be in the form of stand-alone OA IR guidance, or as part of EPA's routine, biennial IR update. EPA also encourages States to focus their efforts on OA-vulnerable waters (e.g., waters with coral reefs, marine fisheries, shellfish resources) that already are listed for other pollutants (e.g., nutrients) in order to promote ecological restoration.

United States Environmental Protection Agency , 15 November 2010. Web site .

EPA Could Add DC Sites To Superfund List

According to the Washington Examiner , EPA has notified the Metropolitan Washington Council of Governments that it will list three sites in Washington, D.C. on the Superfund National Priorities List.  They include: 1) the Kenilworth Landfill, 2) a Washington Gas property near the Anacostia River and 3) the PEPCO Benning Road power plant site.

These sites have been on the CERCLIS (Comprehensive Environmental Response, Compensation and Liability System) list for some time.  The DC City Council is concerned that it takes EPA too long to clean up sites once they are placed on the Priorities List, so a councilmember is introducing legislation to force property owners to clean up their sites.

When an abandoned or uncontrolled hazardous waste site is identified, information about the site is entered into a databased called CERCLIS.  The CERCL ACt was passed in 1980 and is more commonly knowns as Superfund.  The Superfund trust enables the government to clean up hazardous waste sites and then recover cleanup costs from pulluters. (Washington Examiner, 11/18/2010, AAEA "Our Unfair Share: Pollution in Washington, D.C., 1998)

Listing of Certified Organic Operations Now Available from the National Organic Program

November 17, 2010 19:32

Listing of Certified Organic Operations Now Available from the National Organic Program
Source: U.S. Department of Agriculture, Agriculture Marketing Service

The National Organic Program (NOP) made available today a complete listing of organic operations certified by U.S. Department of Agriculture accredited certifying agents during the 2009 certification year.

For the first time, the listing, available at, can be searched by keywords, name of operation, certifying agent, certificate numbers, primary and secondary scopes of certification, country, state, and products produced.

The database will serve as a useful tool to increase marketing opportunities for certified organic operations. It will also help consumers better locate sources of certified organic product.

+ National Organic Program search



  • U.S. Department of Agriculture

    Food insecure —At times during the year, these households were uncertain of having, or unable to acquire, enough food to meet the needs of all their members because they had insufficient money or other resources for food. Food-insecure households include those with low food security and very low food security .

    • 14.7 percent (17.4 million) of U.S. households were food insecure at some time during 2009.
    • Essentially unchanged from 14.6 percent in 2008.

    Low food security —These food-insecure households obtained enough food to avoid substantially disrupting their eating patterns or reducing food intake by using a variety of coping strategies, such as eating less varied diets, participating in Federal food assistance programs, or getting emergency food from community food pantries.

    • 9.0 percent (10.6 million) of U.S. households had low food security in 2009.
    • Essentially unchanged from 8.9 percent in 2008.

    Very low food security —In these food-insecure households, normal eating patterns of one or more household members were disrupted and food intake was reduced at times during the year because they had insufficient money or other resources for food. In reports prior to 2006, these households were described as “food insecure with hunger.” For a description of the change in food security labels, see “ Definitions of Hunger and Food Security .”

    • 5.7 percent (6.8 million) of U.S. households had very low food security at some time during 2009.
    • Unchanged from 5.7 percent in 2008.

    The defining characteristic of very low food security is that, at times during the year, the food intake of household members is reduced and their normal eating patterns are disrupted because the household lacks money and other resources for food. Very low food security can be characterized in terms of the conditions that households in this category typically report in the annual food security survey. Click here for a graph of the percentage of households reporting specific conditions.

    Fifty-six leading denominations and faith-based organizations released a joint letter Wednesday calling on the U.S. Senate to uphold the EPA's power to protect the environment and public's health through the Clean Air Act.

    In particular, the religious leaders , including Protestants, Jews, Unitarians and other faiths, noted that the effort by Sen. Jay Rockefeller (D-WV) to delay EPA controls on greenhouse gas emissions should be turned down.

    In December 2009, the EPA finalized its study on the effects of greenhouse gases, and announced that these emissions are indeed a threat to public health and welfare.

    Rockefeller's bill (S.3072) was introduced in March 2010, and would put the EPA's regulation of greenhouse gases and other air pollution on hold for two more years.

    The joint letter opens as follows:  "As communities and people of faith, we are called to protect and serve God's great Creation and work for justice for all of God's people.

    "We believe that the United States must take all appropriate and available actions to prevent the worst impacts of climate change; we therefore urge you to oppose any efforts to undermine the authority of the Clean Air Act (CAA) to regulate greenhouse gas emissions.

    "We have seen various challenges to the CAA this session including Senator Rockefeller's proposal to delay regulation of greenhouse gases under the Environmental Protection Agency. We urge you to protect the Clean Air Act and allow the EPA to use the full strength of the law to ensure that God's Creation and God's children remain healthy."

    (The full text of the joint letter and list of signers is available at ).

    According to the U.S. Climate Network , the Rockefeller bill is designed to give polluters free rein to dump carbon pollution into the atmosphere, and would release polluters from their responsibility to keep communities and people safe from harmful emissions.

    "As leaders in our communities of faith, we take very seriously our charge to act as stewards of God's Creation," said Rev. Harriet Olson, deputy general secretary of United Methodist Women. "Preserving a strong Clean Air Act and limiting the harm done by climate change are very important and concrete things we can do today working together as people of faith acting in that stewardship capacity."

  • Environmentalism as Religion

    While people have worshipped many things, we may be the first to build shrines to garbage.


    Many observers have made the point that environmentalism is eerily close to a religious belief system, since it includes creation stories and ideas of original sin. But there is another sense in which environmentalism is becoming more and more like a religion: It provides its adherents with an identity.

    Scientists are understandably uninterested in religious stories because they do not meet the basic criterion for science: They cannot be tested. God may or may not have created the world—there is no way of knowing, although we do know that the biblical creation story is scientifically incorrect. Since we cannot prove or disprove the existence of God, science can't help us answer questions about the truth of religion as a method of understanding the world.

    But scientists, particularly evolutionary psychologists, have identified another function of religion in addition to its function of explaining the world. Religion often supplements or replaces the tribalism that is an innate part of our evolved nature.

    Original religions were tribal rather than universal. Each tribe had its own god or gods, and the success of the tribe was evidence that their god was stronger than others.

    But modern religions have largely replaced tribal gods with universal gods and allowed unrelated individuals from outside the tribe to join. Identification with a religion has replaced identification with a tribe. While many decry religious wars, modern religion has probably net reduced human conflict because there are fewer tribal wars. (Anthropologists have shown that tribal wars are even more lethal per capita than modern wars.)

    It is this identity-creating function that environmentalism provides. As the world becomes less religious, people can define themselves as being Green rather than being Christian or Jewish.

    Consider some of the ways in which environmental behaviors echo religious behaviors and thus provide meaningful rituals for Greens:

    • There is a holy day—Earth Day.

    • There are food taboos. Instead of eating fish on Friday, or avoiding pork, Greens now eat organic foods and many are moving towards eating only locally grown foods.

    • There is no prayer, but there are self-sacrificing rituals that are not particularly useful, such as recycling. Recycling paper to save trees, for example, makes no sense since the effect will be to reduce the number of trees planted in the long run.

    • Belief systems are embraced with no logical basis. For example, environmentalists almost universally believe in the dangers of global warming but also reject the best solution to the problem, which is nuclear power. These two beliefs co-exist based on faith, not reason.

    • There are no temples, but there are sacred structures. As I walk around the Emory campus, I am continually confronted with recycling bins, and instead of one trash can I am faced with several for different sorts of trash. Universities are centers of the environmental religion, and such structures are increasingly common. While people have worshipped many things, we may be the first to build shrines to garbage.

    • Environmentalism is a proselytizing religion. Skeptics are not merely people unconvinced by the evidence: They are treated as evil sinners. I probably would not write this article if I did not have tenure.

    Some conservatives spend their time criticizing the way Darwin is taught in schools. This is pointless and probably counterproductive. These same efforts should be spent on making sure that the schools only teach those aspects of environmentalism that pass rigorous scientific testing. By making the point that Greenism is a religion, perhaps we environmental skeptics can enlist the First Amendment on our side.

    Mr. Rubin is a professor of economics at Emory University. He is the author of "Darwinian Politics: The Evolutionary Origin of Freedom" (Rutgers University Press, 2002).

    Moyers on America . Is God Green? Religion and the Environment | PBS

    How does your faith or religion or spirituality affect your perspective of environmentalism or creation care? blog. How does your faith or religion or ... environment .html - Cached - Similar

    New religion of environmentalism |

    Apr 22, 2010 ... Thursday was the 40th anniversary of Earth Day, which was celebrated this year, according to the Earth Day Network, by more than a billion ... religion -of- environmentalism -484726.html - Cached
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  • BHP fires broadside over mining tax

    Updated Tue Nov 16, 2010 5:06pm AEDT
  • BHP Billiton has warned the Federal Government to consider the country's attractiveness as an investment destination when finalising its position on the proposed mining tax.

    BHP's chairman Jacques Nasser has told shareholders at its annual general meeting in Perth that governments have a right to change tax systems.

    However he has urged the Federal Government to take into account the impact of any change on foreign investment.

    Mr Nasser says BHP has paid nearly $3 billion in taxes and royalties on its WA operations last year.

    And, he says any new tax regime should not negatively affect Australia's competiveness on a world stage.

    Mr Nasser also defended the company's decision to dump its hostile takeover bid for Canadian company PotashCorp.

    He says the company will continue to invest in Canada's potash basin and the bid money was part of the business strategy to add value for shareholders so he does not see it as a cost.

    It comes after a failed acquisition of Rio Tinto in 2008 and the collapse of a Rio Pilbara iron ore joint venture earlier this year.

    All three bids are believed to have cost a total of $800 million.

    Mr Nasser has also assured shareholders the inability to close the deals does not mean the company will be chasing smaller acquisitions of lesser quality.


    Green groups turned out in force to protest at the BHP meeting.

    Dozens of protesters were moved on by police after they became vocal outside the meeting at the Convention Centre.

    The groups have releaed an alternative annual report for BHP which questions its human rights and environment record.

    It says dispossessed people around a Colombian mine are now being helped but in Mozambique, a million people may be affected by a fume treatment bypass at an aluminium smelter.

    Report co-ordinator Natalie Lowry says BHP Billiton should show more leadership.

    "Make sure that all operations are at the highest environmental standards, that they are aware of community removals," she said.

    "The issue of human rights; BHP should avoid profiting from colonisation or military occupation."

    The report says the company should disclose all monies paid to governments, to avoid allegations like the claim that several million dollars paid for Cambodian bauxite concessions never made it into public coffers.


    WA's Conservation Council director Piers Verstegen says it is concerned about BHP's plans to mine uranium in the state.

    "If BHP has confidence in their ability to manage the extremely dangerous industry that is uranium mining, then they'd have no hesitation in subjecting this industry to a full, open and transparent public inquiry," he said.

    "So, we're concerned that BHP have acted behind the scenes to block this inquiry."

    Mr Verstegen says there is concern about the company's safety plans.

    "What we are particularly concerned about in Western Australia is BHP's pursuit of the Yeelirrie uranium mining proposal," he said.

    "There's a range of serious issues relating to this proposal, including the transport of radioactive material through communities."


    How Many People Lived in Food-Insecure Households?

    • In 2009, 50.2 million people lived in food-insecure households, including 17.2 million children.
    • Of these individuals, 12.2 million adults and 5.4 million children lived in households with very low food security.
    • Children's food security is affected to some extent in most food-insecure households. In 2009, 9 million children (12.1 percent of children) lived in households with food insecurity among children (see the ERS report, Food Insecurity in Households with Children: Prevalence, Severity, and Characteristics ). However, children are usually protected from substantial reductions in food intake even in households with very low food security. In 2009, 988,000 children (1.3 percent of the Nation's children) lived in households with very low food security among children.

Cook Inlet toxic dumping gains scrutiny

• 9th Circuit Court gives water pollution control to state, taking away federal oversight
By Sean Pearson
Homer Tribune

The state applauded a recent decision by the U.S. Ninth Circuit Court of Appeals that gives power over regulating water pollution from the federal to the state government, but while toxic dumping continues the change gives little comfort to conservation groups.
The higher court is upholding the transfer of the permitting program for discharges under the Federal Clean Water Act from the U.S. Environmental Protection Agency to the Alaska Department of Environmental Conservation. At the same time, the court sent back a Cook Inlet dumping permit for additional review.
The first decision has no impact on the second as of yet, since the EPA is still the permitting authority for Cook Inlet. That's not much consolation to a coalition of fishing, Alaska Native and conservation groups who continue to shake their heads about how to mitigate the dumping of toxic oil and metals into the fisheries-rich waters.
According to Cam Leonard, attorney handling the case for the Alaska Department of Law, the DEC is taking over the permitting process in four stages, with oil and gas being the very last.
“The DEC hasn't actually taken over the permitting process yet,” Leonard said. “That will happen a year from now. For now, the EPA retains permitting authority.”
In the most recent petition for review of an order of the Environmental Protection Agency, Cook Inletkeeper and four other petitioners had originally challenged the EPA's grant of a permit under the National Pollution Discharge Elimination System. The permit authorizes water pollution caused by continued operation of natural gas and oil extraction facilities in Cook Inlet.
On Oct. 21, the Ninth Circuit Court of Appeals issued an unpublished decision which left in place a Clean Water Act permit that the coalition says, “allows the oil and gas industry to virtually triple the amount of toxic pollution it dumps annually into Cook Inlet fisheries.”
The decision also recognized flaws in the State of Alaska's efforts to implement “anti-degradation” policy when establishing the dilution allowances or “mixing zones” for industry wastes. It remanded the permit to EPA to correct these deficiencies.
According to the coalition of fishing, and Alaska Native and conservation groups, the recent court opinion recognizes significant flaws in the State of Alaska's Clean Water Act permitting program, yet still allows toxic oil and gas dumping to continue unabated in Cook Inlet's rich and productive fisheries.
Cook Inlet is the only coastal waterbody in the United States where EPA allows the oil and gas industry to dump toxic drilling and production wastes into important subsistence, commercial and recreational fisheries. When Congress passed the Clean Water Act in 1972, it established five-year terms for discharge permits, with the intent that technology would improve over time and pollution eventually would be eliminated. However, according to the groups who brought the challenge to the oil and gas industry permit— Cook Inletkeeper, United Cook Inlet Drift Association, Cook Inlet Fishermen's Fund, the Native Village of Port Graham, and the Native Village of Nanwalek — the current permit vastly increases the amount of toxic dumping in Cook Inlet compared to the previous permit. The industry is now authorized to discharge approximately 100,000 gallons of oil and over 835,000 pounds of toxic metals each year.
For illustration, the groups point 100,000 gallons is what it takes to fill an Olympic size swimming pool.
“The oil and gas industry continues to put profits over our fisheries and the countless families they support,” said Bob Shavelson, Executive Director of Cook Inletkeeper. “When the oil jobs and taxes are gone, we'll still need healthy, intact fisheries to sustain our communities.
The court's decision clearly shows EPA needs to get serious about protecting our fisheries.”
When the DEC takes over in a year, and the new permitting process begins, the groups will monitor to see if promised changes take place in Cook Inlet water standards. In the meantime, public input will be sought by the DEC in meeting dates to be announced, according to state attorney Leonard.

Senate approves long-delayed $1.15 billion black farmer settlement

By Alexander Bolton - 11/19/10 05:05 PM ET

The Senate on Friday afternoon approved $1.15 billion to fund a long-awaited legal settlement between the Department of Agriculture and black farmers who claimed government discrimination.

The upper chamber also approved $3.4 billion to settle complaints that the Department of the Interior mismanaged Native American money accounts.

Senate Majority Leader Harry Reid (D-Nev.) touted one of the first legislative accomplishments of the lame-duck session.

“Black farmers and Native American trust account holders have had to wait a long time for justice, but now it will finally be served,” Reid said in a statement. “I am heartened that Democrats and Republicans were able to come together to deliver the settlement that these men and women deserve for the discrimination and mismanagement they faced in the past. 

“This issue has been of great importance to me, and I am pleased these long-suffering Americans can now receive the closure that they deserve,” Reid added.

The 1999 settlement between the Agriculture Department and black farmers is one of the biggest in civil rights settlements in history.

Black farmers accused the government in a lawsuit of denying them loans in favor of whites.

The Senate approved the measure Friday afternoon by unanimous consent. It includes an extension of Temporary Assistance for Needy Families program.

Republicans agreed to pass the measure after Democrats found offsets to pay for it.

A Senate Democratic aide said the cost of the measure will be covered by surplus funds in the Women, Infants and Children nutritional assistance program, reducing overpayment of unemployment benefits and extension of customs user fees.

The House must approve the bill before it goes to President Obama for a signature. The House, which Democrats will control for a few more weeks, is expected to pass it easily.


The Perils Ahead: Debt Limit, EPA Rules, “Green” California

November 17, 2010 Andrew McCarthy's National Review on Line (NRO) post laying out the political context of capping the debt limit –

“Very soon, Leviathan's credit card will be tapped out. Shortly after President Obama took office, Congress quietly raised the debt ceiling from $12.3 trillion to $14.2 trillion — an amount that strategically evaded the need to come back for more just before the midterm elections. At its current rate of profligacy, however, the government will steamroll past the current limit within a few months. It will need a new, higher max-out to keep the gravy train rolling. So, like clockwork, the punditocracy is in high dudgeon, warning the speaker-to-be and other GOP leaders: Don't even think about not raising the cap . Unless the ceiling is raised, we're told, life will end, the government will collapse, the global economy will sink into deep depression, the unemployed may have to make do on less than 99 weeks of ‘insurance,' etc. Go along, or prepare to be smeared as reckless maniacs. In short, it's TARP time all over again .”

Grasping the California Disaster

Highlighting another self-inflicted environmentalist wound, today George Gilder in his Wall Street Journal op-ed “California's Destructive Green Jobs Lobby Silicon Valley” explains

“Worst of all, economic sanity lost out in what may have been the most important election on Nov. 2 — and, no, I'm not talking about the gubernatorial or senate races. This was the California referendum to repeal Assembly Bill 32, the so-called Global Warming Solutions Act, which ratchets the state's economy back to 1990 levels of greenhouse gases by 2020. That's a 30% drop followed by a mandated 80% overall drop by 2050. Together with a $500 billion public-pension overhang, the new energy cap dooms the state to bankruptcy. Conservative pundits have lavished mock pity on the state. But as America's chief fount of technology, California cannot go down the drain without dragging the rest of the country with it .” 


Sunday, November 21, 2010

Denying Americans Their Own Energy

By Alan Caruba

What kind of government deliberately denies its citizens access to the energy they need to live, to conduct business, to transport goods, to travel, and to just turn on the lights? Answer: The United States of America.

In a letter to members of the G-20, the finance ministers and central bankers of leading industrial nations, President Obama said, “We should make sustained effort to carry through with our groundbreaking Pittsburgh commitment to phase out fossil fuel subsidies.”

The result of such action would give international energy companies in other nations a large competitive advantage while penalizing U.S. oil and natural gas companies.

As Dr. Richard Swier noted recently, “In the U.S., support for the oil and gas industry is largely about investment depreciation rules which are available to many industries.” Energy companies routinely put huge amounts of money at risk to explore, discover, and extract the so-called fossil fuels. Take away the subsidies and the cost of all energy use in the U.S. goes up.

Meanwhile, CNN Money reported on November 12 that “President Obama lifted his moratorium on deepwater oil drilling nearly a month ago, but the government still hasn't issued any new permits in the Gulf of Mexico. And most analysts say permits will be slow in coming through 2011.” (emphasis added)

This is great news for Saudi Arabia and bad news for Americans who think we should be accessing our own vast oil reserves. This failure to revive the oil drilling industry in the Gulf comes at a time when the price of a barrel of oil is rising while leaving thousands of oil industry workers in the Gulf States out of work.

A day earlier in an editorial in The Wall Street Journal it was revealed that while “President Obama continues to advertise the $814 billion stimulus and its green energy subsidy programs in particular as unqualified successes” an eight-page memo from his chief economic advisor, Larry Summers, environment and energy “czar”, Carol Browner, and policy aide, Ron Klain reveals that a $6 billion Department of Energy guarantee of loans and other disbursements was being resisted by the House budget office (OMB) and Treasury had found severe problems with “the economy integrity of government support for renewables.” (emphasis added)

Renewables is a code word for wind and solar energy projects. Loan guarantees, block grants, and government mandates often benefit large administration supporters such as General Electric and other political donors engaged in such projects.

One such project in Oregon would tap taxpayers for $1.2 billion while GE and Caithness Energy LLC would only put in about 11% of the project cost. It is corporate welfare that leaves the public with one of the two worst ways of generating electricity, as opposed to coal-fired and nuclear plants. Even hydroelectric power (generated by dams) is more reliable and less costly.

Back in October, Interior Secretary Ken Salazar approved a 50-megawatt Silver State Solar Project for Clark County, Nevada and three large solar power projects in California, all to be sited on federal land. This is not exactly what conservationists had in mind when such land was set aside. It diverts and wastes billions.

While all this is going on, the Environmental Protection Agency is still demanding that greenhouse gas emissions be reduced, the best known of which is carbon dioxide. They are referred to as “heat-trapping” gas and identified as the source of “global warming.” Only there is NO global warming and hasn't been for a decade as the Earth's overall temperatures have slid into a perfectly natural cooling cycle.

Thanks to Climategate, we now know that “global warming” was a complete fiction put forth by the United Nations Intergovernmental Panel on Climate Change.

The question no one at EPA wants to answer is this: if greenhouse gases trap heat, why don't they do it in the winter? If they are so powerful that they can trap heat, how come it gets cold as winter arrives in either the northern or southern hemispheres? Carbon dioxide does not trap heat, but more CO2 would in fact increase crop yields and aid forest and jungle growth worldwide.

According to, “Tough new rules proposed by the Environmental Protection Agency restricting greenhouse gas emissions would reduce the global mean temperature by only 0.006 to 0.0015 of a degree Celsius by the year 2100 according to the EPA's analysis.” In plain terms, no reduction whatever and none needed!

Greenhouse gas restrictions are nothing less than a criminal act against the citizens of the United States. It is utterly baseless, a fraud no less than “global warming.”

There are many other examples of what the government, under the present and preceding administrations going back to Jimmy Carter's, have been doing to choke off the acquisition of American's vast reserves of coal, natural gas, and oil.

This isn't a energy policy. It's a suicide pact to drive up the cost of energy for all Americans, diminishing our competitiveness, and making our lives harsher.

© Alan Caruba, 2010

Leo Motors Gets Order to Develop Agricultural Machinery


Leo Motors entered into an agreement with Tong Yang Mulsan Co., Ltd., one of the largest agricultural machinery companies in Korea, to develop electric tractors using the body and chassis from Tong Yang's internal combustion engine ( ICE ) tractors. Leo will develop the electric tractor using its proprietary electric power train including an electric motor, controller, battery management system ( BMS ), and power pack, and exploiting its unique electric car packaging technology. When the development is successful, Leo will have the opportunity to market its power trains to Tong Yang.

About Leo Motors

LEO MOTORS is a US public company based outside of Seoul, Korea, engaged in the development, manufacture and sale of Electric Vehicle ( EV ) power trains and components. Leo has developed many original EV power trains and has converted many models of existing internal combustion engine ( ICE ) vehicles into EVs, including scooters, motorcycles, highway speed sedans, buses and trucks. Leo Motors has also developed Zinc Air Fuel Cell Generator (ZAFCG) which will free EV's from range limitation with zero emissions.

Forward-Looking Statement

This press release includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. In addition to statements which explicitly describe such risks and uncertainties, readers are urged to consider statements labeled with the terms “believes,” “belief,” “expects,” “intends,” “anticipates,” “will,” or “plans” to be uncertain and forward looking. The forward-looking statements contained herein are also subject generally to other risks and uncertainties that are described from time to time in the company's reports and registration statements filed with the Securities and Exchange Commission.

Princeton Research, Inc.
Mike King, 702-650-3000

Read more:


EPA considers SW Colo creek polluted by historical mining

GLADSTONE, Colo. (AP) — Portions of upper Cement Creek that feeds into the Animas River in southwestern Colorado are being considered for listing as a Superfund site.

Heavy metals gushing from abandoned mines, some which operated in the late 1800s to early 1900s in the Gladstone area, are believed to be polluting the creek.

Site assessment manager for the EPA in Denver Sabrina Forrest told the Durango Herald that they hope to decide by February whether the area qualifies for Superfund cleanup.

EPA officials are looking at a cluster of mines as the potential source of contamination that include the American Tunnel, Gold King Number 7 level, the Mogul and Grand Mogul, and the Red and Bonita mines.

Idaho lawmakers blast EPA proposal

Cleanup plan too costly, Idaho delegation says

Idaho's congressional delegation is lambasting the U.S. Environmental Protection Agency's proposal to clean up historic mining waste in the Coeur d'Alene River's headwaters.

“Bloated” was how delegation members described the $1.3 billion plan with a list of projects that could take up to 100 years to complete.

The EPA's proposal would leave a “Superfund” stigma hanging over Idaho's Silver Valley for the next three generations, tainting the local tourism industry and potentially harming the region's remaining silver mines, they said.

“EPA proposes a massive undertaking on a scale that is hardly imaginable, possibly without precedent, and with no realistic way to pay for it,” said U.S. Sen. Mike Crapo, R-Idaho.

The criticism was levied in a joint statement also issued by U.S. Sen. Jim Risch and Reps. Walt Minnick and Mike Simpson.

Simpson is a ranking member of the House Appropriations Subcommittee on Interior and the Environment, which funds the EPA.

He predicted that Congress would reject the current plan and urged the EPA to build consensus in North Idaho around “a workable path forward.”

Regional EPA officials, meanwhile, said the 2,200-page plan is a realistic look at the decades of work needed to make the Upper Coeur d'Alene Basin safe for people and wildlife.

More than 300 old mine sites – an average of one per square mile – continue to leach lead, arsenic and other heavy metals into the Coeur d'Alene River's headwaters.

Stretches of some tributaries are too toxic to support fish. During flooding, the metals wash downstream into Lake Coeur d'Alene.

Polluted sediments along the beaches and floodplains also pose risks to people and wildlife, according to the EPA.

“We believe it's appropriate for EPA to come up with a blueprint for cleanup in the upper basin so the community and EPA understand the extent of the work,” Anne Daily, an EPA program manager, said in an earlier interview. “It helps us wisely spend the mo? ney on projects that will have the most benefit and limit the use of taxpayer money.”

Part of the cleanup money would come from the $447 million Asarco trust fund, created to pay for the mining company's environmental liabilities in the Coeur d'Alene Basin. At spending levels of $25 million per year, the cleanup work is expected to generate 425 new jobs in the Silver Valley.

But the plan faced hostile crowds at public hearings in the Silver Valley last summer. Local residents and politicians said it was too big and too costly.

Hecla Mining Co., which operates the Lucky Friday Mine in Mullan, Idaho, also opposes it. Hecla is the last major company that hasn't settled its historic pollution claims with the federal government. In earlier litigation, a federal judge ruled that Hecla was responsible for 31 percent of the historic mine tailings dumped in the Coeur d'Alene Basin.

The company employs about 350 workers at the Lucky Friday Mine.

A public comment period on the proposal ended Tuesday. EPA officials said they will review the comments and respond in writing to the issues raised.

   Further progress on permitting process for US power plant projects Amargosa and Palen

By signing the Record of Decision, US Secretary of the Interior Ken Salazar approved the right of way grant for the Solar Millennium Group's solar power plant facility in Nevada's Amargosa Valley on Monday. This approval marks an important pre-condition for the successful completion of the permitting process for the construction of two parabolic trough power plants as scheduled. Together, the two power plants will have a total capacity of approximately 500 megawatts (MW). Part of the electricity generated there will be supplied to Las Vegas, which is some 150 kilometers away. The planned thermal storage facilities will enable the two plants to supply the region with electricity even after the sun has set.

Based on the approval by the US Secretary of the Interior, the US Bureau of Land Management (BLM) has granted Solar Millennium LLC, Oakland, the American project development unit within the Solar Millennium Group, the right of way for public land at the Amargosa location. Due to the proximity to the Amargosa River, Solar Millennium must additionally seek approval with regards to the Water Clean Act from other U.S. authorities to obtain the final construction approval.

In announcing the Record of Decision, U.S. Secretary of the Interior Ken Salazar said," This solar facility is yet another critical component in the Department's growing renewable energy portfolio as we work to create strengthen our nation's energy security. Our commitment to the development of clean, renewable energy is creating new jobs that will aid in our economic recovery, protect our environment and transform the way our nation gets our energy."

In California another project location has taken an important hurdle in the approval process, as well. Last Friday, the responsible committee of the California Energy Commission (CEC) had recommended granting Solar Millennium LLC approval for the construction and operation of two solar-thermal power plants with a total capacity of about 500 MW at the Palen location in California. In its recommendation the committee had established that the planned power plants complied with the applicable laws, regulations and requirements, as was also the case with the Blythe project. The CEC will probably make its final decision on the construction permit after the expiry of a public comment period in mid-December.

Oliver Blamberger, CFO of Solar Millennium AG, said the company is pleased with the progress: "The two locations in Blythe and the Amargosa valley alone suffice to fill our order books for the years to come and make Solar Millennium the leading supplier of parabolic trough power plants." Regarding the financing of the two power plants in Nevada, Blamberger added, "In line with the financing structure of Blythe 1 and 2, an equity ratio of 20 to 30 percent is also planned for the Amargosa power plants. As with Blythe, we have already applied for the respective loan guarantees with the US Department of Energy in order to secure the debt capital."

Uwe T. Schmidt, Chairman and CEO of Solar Trust of America, illustrates the significance of the solar power plants for the economy in Nevada. "The construction of these two plants is not only another important milestone on the path towards sustainably converting our U.S. energy supply, but it also makes a very important contribution to reviving the local economy in Nevada. Solar Millennium expects to create more than 1,300 jobs at the Amargosa Valley location during construction, while the two power plants will provide more than 180 permanent operations and maintenance jobs once completed.

With a generating capacity of approximately 500 MW and thermal storage volume for 4.5 hours per plant, the two power plants will produce enough energy to power up 150,000 America homes on a reliable basis. In 2009, the company had already signed memorandum of understanding on a potential power purchase agreement with the utility Nevada Energy.

Josef Eichhammer, President of Solar Trust of America and CEO of Solar Millennium LLC remarks: "US politicians have it high on their agenda that California and Nevada take a leading position in utilizing the abundant solar resource for electricity generation and building up a solar industry and therefore we are very happy today to make a contribution with our planned innovative power plants to realize such objectives. Our decision to plan a power plant with dry cooling also helps to accelerate the approval process, as we need 90% less water to cool the steam cycle. We will now intensify our negotiations with utilities regarding the power purchase agreements as well as our engagement with the permitting authorities for the two plants, so we will be able to commence construction for both projects by the end of 2011."

Sunday, November 21, 2010

Wind White Wash

The greenies continually tell us that green is the way to go. Recently Jim Madden submitted a rebuttal to the Cape Vincent's Wind Committee's Economics Report. Below I have a story about a coordinated attempt by the AWEA, DOE & NREL to discredit another report.
Jefferson's leaning Left has a story today in it he mentions a report about green jobs published by Researchers at King Juan Carlos University this report concludes that every "green" job created by the wind industry eliminated 2.2 jobs elsewhere in the Spanish economy. apparently this report was disturbing to certain entities in the renewable energy sector ,so much so that they actively set out to discredit it .Below are a series of emails between the Obama administration's, Department of Energy( DOE), the National Renewable Energy Laboratory (NREL) and the American Wind Energy Association( AWEA )these emails show a desperate attempt to discredit the King Juan Carlos University report.


The Department of Energy is working hard using your tax dollars to promote wind energy. The latest thing I found was the report I published yesterday , from the NREL the DOE's research group titled Large Scale Offshore Wind Power in The United States.
The DOE also has a website Wind & Water Power Program

The Critical Objective ~

The program's critical objectives for enabling widespread offshore wind power deployment are to reduce the cost of energy generated by offshore wind turbines, and to reduce the timeline for deploying offshore wind.
How much money does it cost to produce & reduce the cost of wind power?
Our tax dollars are being thrown at this industry to get it established. Now more money is being thrown into the never ending wind industry abyss because we must make this inefficient unreliable power source more cost efficient, but by the time we get to this point we will never be able to recoup the money that was spent to arrive there, we will be at a point of diminishing return.
I am not surprised by this thinking. After all it is not their money that they are throwing into the abyss.
For your reading pleasure I have provided some emails in the scrbd format they are between people from the DOE, NREL, AWEA, all scrambling doing damage control discussing how to discredit a Spanish wind study that says that wind power destroys jobs and that the jobs that wind claims to create are based on artificial data.

Click the links below to read the FOIA request and the emails:

“Emails obtained under the Freedom of Information Act show how the Obama administration's Department of Energy is using the American Wind Energy Association (AWEA) — the lobbying arm of “Big Wind” in the U.S. — to coordinate political responses with two strongly ideological activist groups: the Union of Concerned Scientists (UCS), and the George Soros funded Center for American Progress (CAP).”

The emails expose active coordination between the Obama administration, the DoE and its National Renewable Energy Laboratory (NREL), and the AWEA . These emails show the Obama DoE using the AWEA as a conduit to both the CAP and the UCS, and taking steps to ensure that aspects of its coordination were not committed to paper (or email) because the emails might be revealed later.”


Iron Mountain Mine Institute

supergene copper/gold prospect

In ore deposit geology , supergene processes or enrichment occur relatively near the surface. Supergene processes include the predominance of meteoric water circulation with concomitant oxidation and chemical weathering . The descending meteoric waters oxidize the primary ( hypogene ) sulfide ore minerals and redistribute the metallic ore elements. Supergene enrichment occurs at the base of the oxidized portion of an ore deposit. Metals that have been leached from the oxidized ore are carried downward by percolating groundwater, and react with hypogene sulfides at the supergene-hypogene boundary. The reaction produces secondary sulfides with metal contents higher than those of the primary ore. This is particularly noted in copper ore deposits where the copper sulfide minerals chalcocite , covellite , digenite , and djurleite are deposited by the descending surface waters.


1000 tons per hour of wasted capacity since 1980


worlds largest private hydropower - pump storage development

Rediscovering Hydropower

IRON MOUNTAIN MINES. United States v. Iron Mountain Mines, Inc.; T.W. Arman; and Aventis Cropscience USA Inc., Civ. No. S-91-0768 DFL/JFM (E.D. Ca., Dec. 8, 2000); and State of California v. Iron Mountain, et al., Civ. No. C-91-1167 DFL/JFM (consolidated). [CERCLA] In one file or in smaller files (each approx. 600KB): [1] [2] [3] [4] [5] [6] [7] [8] [9] [Southwest DARRP web site.]


January 2009

Toward a Reformed State Agency
A new, ideal system should include the following characteristics:
1. A unified state water quality agency. Completely distinct
regional boards may have been appropriate in past decades,
but current common problems – urban stormwater, for
example, or impairments caused by the same contaminants –
call for a more centralized regulatory approach unified by a
common vision and common processes. A unified state
agency can better identify key problems and priorities in the
state and align resources to address those problems.
Efficiencies gained by a stronger bond between the state and
regions will lead to clean water outcomes faster and cheaper.
2. Local input. The need for local input on water quality
objectives remains important, as water bodies are unique,
with their own problems and solutions. Water quality
objectives should continue to be set at the regional level, with
vigorous debate and discussion among local stakeholders,
while still subject to state oversight.
3. A focus on accountability and outcomes. The public, and
policy-makers, have a right to clearer information from the
boards as to the state of the state’s waters, and to which
programs are effective – and which are not. Additionally, the
boards must re-focus their mission, from ensuring that
dischargers are abiding by their permits to this fundamental
question: Are the state’s programs protecting and improving
water quality?
4. Integrated science, accessible data. As water pollution
problems increase in complexity, there is a need for a stronger
scientific presence within board programs. The state board
needs scientific advisors to help guide and coordinate
research and utilize that research in regulation. In addition,
the boards’ dearth of water quality data must be rectified, and
it can be: There are numerous federal, state and local
agencies, as well as other groups, collecting information. The
state must pull that information into an integrated system
that allows the boards and others to access and use the
information that already has been gathered.

Effective May 20, 2010

D. Environmental Justice
The Water Boards shall promote enforcement of all health and environmental statutes within
their jurisdictions in a manner that ensures the fair treatment of people of all races, cultures, and
income levels, including minority and low-income populations in the state.
Specifically, the Water Boards shall pursue enforcement that is consistent with the goals
identified in Cal-EPA’s Intra-Agency Environmental Justice Strategy, August 2004
( as follows:
· Ensure meaningful public participation in enforcement matters;
· Integrate environmental justice considerations into the enforcement of environmental
laws, regulations, and policies;
· Improve data collection and availability of violation and enforcement information for
communities of color and low-income populations; and,
· Ensure effective cross-media coordination and accountability in addressing
environmental justice issues.
E. Facilities Serving Small Communities
The State Water Board has a comprehensive strategy for facilities serving small and/or
disadvantaged communities that extends beyond enforcement and will revise that strategy as
necessary to address the unique compliance challenges faced by these communities (see State
Water Resources Control Board Resolution No. 2008-0048). Consistent with this strategy,
reference in this Section E. to small communities is intended to denote both small and
disadvantaged small communities.

Class I priority violations include, but are not limited to, the following:
a. Significant measured or calculated violations with lasting effects on water quality
objectives or criteria in the receiving waters;
b. Violations that result in significant lasting impacts to existing beneficial uses of
waters of the State;
c. Violations that result in significant harm to, or the destruction of, fish or wildlife;
d. Violations that present an imminent danger to public health;
e. Unauthorized discharges that pose a significant threat to water quality;
f. Falsification of information submitted to the Water Boards or intentional withholding
of information required by applicable laws, regulations, or enforceable orders;
g. Violation of a prior enforcement action-- such as a cleanup and abatement order or
cease and desist order--that results in an unauthorized discharge of waste or
pollutants to water of the State; and

h. Knowing and willful failure to comply with monitoring requirements as required by
applicable laws, regulations, or enforceable orders because of knowledge that
monitoring results will reveal violations.

2. Class II Violations
Class II violations are those violations that pose a moderate, indirect, or cumulative threat to
water quality and, therefore, have the potential to cause detrimental impacts on human health
and the environment. Negligent or inadvertent noncompliance with water quality regulations
that has the potential for causing or allowing the continuation of an unauthorized discharge or
obscuring past violations is also a class II violation.
Class II violations include, but are not limited to, the following:
a. Unauthorized discharges that pose a moderate or cumulative threat to water quality;
b. Violations of acute or chronic toxicity requirements where the discharge may
adversely affect fish or wildlife;
c. Violations that present a substantial threat to public health;
d. Negligent or inadvertent failure to substantially comply with monitoring requirements
as required by applicable laws, regulations, or enforceable orders, such as not taking
all the samples required;
e. Negligent or inadvertent failure to submit information as required by applicable laws,
regulations, or an enforceable order where that information is necessary to confirm
past compliance or to prevent or curtail an unauthorized discharge;
f. Violations of compliance schedule dates (e.g., schedule dates for starting
construction, completing construction, or attaining final compliance) by 30 days or
more from the compliance date specified in an enforceable order;
g. Failure to pay fees, penalties, or liabilities within 120 days of the due date, unless the
discharger has pending a timely petition pursuant to California Water Code section
13320 for review of the fee, penalty, or liability, or a timely request for an alternative
payment schedule, filed with the Regional Water Board;
h. Violations of prior enforcement actions that do not result in an unauthorized
discharge of waste or pollutants to waters of the State;
i. Significant measured or calculated violations of water quality objectives or
promulgated water quality criteria in the receiving waters; and
j. Violations that result in significant demonstrated impacts on existing beneficial uses
of waters of the State.

3. Class III Violations
Class III violations are those violations that pose only a minor threat to water quality and
have little or no known potential for causing a detrimental impact on human health and the
environment. Class III violations include statutorily required liability for late reporting when
such late filings do not result in causing an unauthorized discharge or allowing one to
continue. Class III violations should only include violations by dischargers who are first time
or infrequent violators and are not part of a pattern of chronic violations.
Class III violations are all violations that are not class I priority or class II violations. Those
include, but are not limited to, the following:
a. Unauthorized discharges that pose a low threat to water quality;
b. Negligent or inadvertent late submission of information required by applicable laws,
regulations, or enforceable orders;
c. Failure to pay fees, penalties, or liabilities within 30 days of the due date, unless the
discharger has pending a timely petition pursuant to California Water Code section
13320 for review of the fee, penalty or liability; or a timely request for an alternative
payment schedule, filed with the Regional Water Board;
d. Any “minor violation” as determined pursuant to California Water Code section 13399
et seq. (see Appendix A. C.1a);
e. Negligent or inadvertent failure to comply with monitoring requirements when
conducting monitoring as required by applicable laws, regulations, or enforceable
orders, such as using an incorrect testing method;
f. Less significant (as compared to class II violations) measured or calculated violations
of water quality objectives or promulgated water quality criteria in the receiving
waters; and
g. Violations that result in less significant (as compared to class II violations)
demonstrated impacts to existing beneficial uses of waters of the State.

A. Hazardous Waste Facilities
At hazardous waste facilities where the Regional Water Board is the lead agency for corrective
action oversight, the Regional Water Board shall consult with Department of Toxics Substance
Control (DTSC) to ensure, among other things, that corrective action is at least equivalent to the
requirements of the Federal Resource, Conservation, and Recovery Act (RCRA).

California Regional Water Quality Control Board
Central Valley Region
Katherine Hart, Chair
415 Knollcrest Drive, Suite 100, Redding, California 96002
(530) 224-4845 �� Fax (530) 224-4857
California Environmental Protection Agency
Recycled Paper
Notice is hereby given that on March 31, 2010, a proposed Settlement Agreement in the bankruptcy matter, In re Lyondell Chemical Company, et al., Jointly Administered Bankruptcy Case No. 09-10023 (REG), was lodged with the United States Bankruptcy Court for the Southern District of New York.
The Central Valley Water Quality Control Board (Central Valley Water Board or Board) has been deemed to have filed proofs of claim in the bankruptcy proceedings of debtor Lyondell Chemical Company and 93 of its affiliates (collectively “Lyondell”). In the bankruptcy proceeding, the Board sought enforcement of environmental obligations at the Bully Hill and Rising Star Mine Sites, the Afterthought Mine, and the Kingsburg Winery. The proposed Settlement Agreement resolves the Central Valley Water Board’s claims against Lyondell.
Lyondell currently owns the Bully Hill and Rising Star Mine Sites, which are located in Shasta County. Pursuant to the Settlement Agreement, Lyondell will place the Bully Hill and Rising Star Mine Sites into an environmental custodial trust, which will hold title to the properties. $8,000,000 will be allocated to the environmental custodial trust, which will be dedicated to remediating the Bully Hill and Rising Star Mine Sites. Board staff will have oversight of the budget of the environmental custodial trust. The Board will release a financial assurances mechanism of $421,000 within thirty days of when Lyondell places the properties and remediation funds into the environmental custodial trust.
The Kingsburg Winery, in Fresno County, and the Afterthought Mine, in Shasta County, (hereafter referred to as the “Liquidated Sites”) are not sites that Lyondell currently owns, but are sites where Lyondell has incurred environmental obligations because of its prior involvement. The subsidiaries of Lyondell that were associated with the Liquidated Sites are to be dissolved during the course of the bankruptcy proceedings. To resolve liability at the Liquidated Sites, the Central Valley Water Board will receive an Allowed General Unsecured Claim of $500,000 against Millennium Holdings, LLC and an Allowed General Unsecured Claim of $500,000 against Millennium Petrochemicals, Inc. Cash received from these two claims will be deposited into the State Water Pollution Cleanup and Abatement Account, and will be used to remediate the Liquidated Sites.
Written comments on the proposed Settlement Agreement must be received by 5:00 p.m. on April 14, 2010. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to: or mailed to P.O. Box 7611, U.S. Department of Justice, Washington, D.C. 20044-7611. Please refer to In re Lyondell Chemical Company, et al., D.J. Ref. 90-5-2-1-2132/3. After the public comment period closes, the U.S. Department of Justice will transmit copies of comments received to the Central Valley Water Board for consideration.
The Settlement Agreement may be examined at the Central Valley Water Board’s Redding office, 415 Knollcrest Drive, Suite 100, in Redding. During the public comment period, the Settlement Agreement may also be examined at the following web site, For additional information, please contact Phil Woodward at (213) 576-6607 or
Date of Notice: April 1, 2010

Thursday, September 16, 2010, 10:00 a.m.
City of La Quinta
City Council Chambers
78-495 Calle Tampico
La Quinta, CA 92253

14. At any time during the regular session, the Board may adjourn to meet in closed
session to consider the appointment, employment, evaluation of performance, or
dismissal of a public employee [Authority: Government Code Section 11126(a)];
to consider evidence received in an adjudicatory hearing and deliberate on a
decision to be reached based on that evidence [Authority: Government Code
Section 11126(c)(3)]; to discuss significant exposure to litigation [Authority:
Government Code Section 11126(e)(2)(B)(i)]; to discuss whether to initiate
litigation [Authority: Government Code Section 11126(e)(2)(C)(i)]; or to discuss
initiated litigation [Authority: Government Code Section 11126(e)]. Discussion of
litigation is within the attorney-client privilege and may be held in closed session
[Authority: Government Code Section 11126(e)(2)].

Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines, Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. Iron Mountain Mines, Inc., et al., (EDCal No. S-91-0768 DFL/JFM)

2010, 10:00 a.m. in La Quinta.

Phil Woodward is Senior Engineering Geologist with the Central Valley Regional Water Quality Control Board.  He holds a B.A. in Aquatic Biology from the University of California, Santa Barbara, and an M.S. in Geology, from San Jose State University, as well as Professional Geologist, Certified Engineering Geologist, Certified Hydrogeologist Licenses.  He has been employed by the Regional Board in Redding for the past 23 years, and is responsible for regulatory oversight for the cleanup of abandoned mine.  Mr. Woodward is the Regional Board project manager for three Federal Superfund sites, including Iron Mountain Mine. 



Rick Sugarek - Environmental Protection Agency - Region 9

Phil Woodward Environmental Protection Agency - Region 9

Memo: Comments on Regional Bd proposed changes to standards for Sacramento River (Privileged, FOIA ex 5)






Rick Sugarek - Environmental Protection Agency - Region 9

Phil Woodward Environmental Protection Agency - Region 9

Memo: Comments re Stauffer studies to support request to modify water quality objectives for Cu, Zn & cadmium in Upper Sacto (Privileged, FOIA ex 5)




















Bob Chapman CH2M HILL

Joe Patten CH2M HILL

Ken Iceman CH2M HILL

Fritz Carlson CH2M HILL

Sergei Zelenkov CH2M HILL

Bill Bluck CH2M HILL

Ray Prettyman CH2M HILL

Mike Smith CH2M HILL


Phil Woodward CVRWQCB

Dennis Heiman CVRWQCB


Jim Rohrbach CVRWQCB


Rick Sugarek EPA

Tom Mix EPA

Ron Hill EPA

Keith Takata EPA

Bureau of Reclamation

Lester Kaufman - Bureau of Reclamation

Kirk Nordstrom U.S.G.S.

Dennis Wilson Dept. of Fish and Game

Mark Galloway – Dept. of Health Services

‘Climategate' lives on in federal court challenges to EPA greenhouse gas regulations


Genetically Modified Salmon

Also known as transgenic salmon. The U.S. Food and Drug Administration advisory panel began hearings in Washington on Sunday, on America's first genetically engineered food animal: the Atlantic salmon. This fish incorporates DNA from the ocean pout and the Chinook salmon to make it grow twice as fast as its wild relatives.

Instead of 3 years, the genetically modified fish reaches maturity in 18 months!

Aquaculture that produces tilapia and shrimp is already created to meet the demand for seafood, but farming genetically modified fish is a whole different matter.

The controversy? With drastically declining wild fish stocks becoming a serious concern, proponents argue that farming a fast-growing genetically modified fish is the safest and most economical way to meet consumers' insatiable demand for salmon, which is reported to be a heart healthy food because of the essential omega-3 fatty acids.

Proponents also insist that there's no danger in eating genetically modified food as they insist that raising them strictly in tanks will eliminate the risk of loosing a few into the wild where they would breed with wild salmon and "contaminate" the gene pool.

AquaBounty, the Boston-based company that designed the fish, told the FDA that the fish will be grown only in indoor tanks in inland areas, and Ohio has already been selected by the company as the place to "grow" these genetically modified fish.

However, opponents to such endeavors raise both health and environmental concerns.

Just as agribusiness exclusively sells genetically modified seeds, the company intends to sell eggs to growers in the U.S. as well as elsewhere. There's the whole ethical issue of one company holding the patented rights to create, own, and sell eggs to fish farmers. Won't this mean that all the ills of agribusiness will enter the realm of aquaculture?

The FDA briefing paper says it found that at least 95% of the eggs produced sterile fish and all of the eggs were female. Since no containment system is foolproof, it means that there's no guarantee that the few fish that manage to escape into the wild won't begin breeding with wild salmon or start decimating native species of wildlife.

Consumers who buy conventional produce without the organic certification, who buy processed foodstuff made from conventionally grown produce already eat genetically modified corn and soybeans; does this then follow that genetically modified fish will some day dominate the seafood market here in the U.S. and other nations?

One environmental concern is that the saltwater used to farm the salmon, when released in order to clean out the tanks, will wreck havoc in Ohio's freshwater streams and lakes. Regulators will have to decide whether the environmental cost and risk are acceptable, and to whom.

According to Bob Calala, president of the Ohio Aquaculture Association, indoor aquaculture is the wave of the future in Ohio. There is hope that a lack of demand from consumers who value seafood that isn't genetically modified might deter such a wave. Only time will tell the health and environmental consequences of a grand scale aquaculture of what some would call franken-fish, but by then, who knows whether or not it would be too late.


Water Surge

Hydropower, once shunned because of environmental concerns, is making a comeback


LEADVILLE, Colo.—The giant pipes wheeze and rumble, the whoosh of water coursing through them as noisy as a freeway. The Mount Elbert hydropower plant high in the Rocky Mountains isn't much to look at—or listen to. But to true believers, it's a road map to a greener future.

Hydropower, shunned just a few years ago as an environmental scourge, is experiencing a remarkable resurgence in the U.S. Dams are still viewed warily; in fact, Congress is considering dismantling four hydroelectric dams blamed for depleting salmon in the Klamath River basin in southern Oregon and northern California.

But engineers and entrepreneurs are pressing an alternative view of hydropower that doesn't involve new dams. They argue that plenty of efficient, economical energy can be wrung from other water resources, including ocean waves, free-flowing rivers, irrigation ditches—even the effluent discharged from wastewater treatment facilities.

There's a surge of interest, too, in adding small power plants to dams built years ago for flood control or navigation—as well as in turning reservoirs into battery packs of sorts, releasing energy when the grid needs it most.

Globally, hydropower provides 16% of electricity, slightly more than nuclear power and closing in on natural gas, according to the London-based International Hydropower Association.

In the U.S., by contrast, hydropower now provides about 7% of electricity generation. All other renewable sources combined account for about 3%.

Even without building large dams, expanding efforts to draw power from water could add 40,000 megawatts to the grid by 2025, says the Electric Power Research Institute, a nonprofit research firm in Palo Alto, Calif. That's the equivalent of putting at least two dozen new nuclear power plants online.

Pouring It On

Such estimates are stirring action. The U.S. Department of Energy spent nothing on hydropower research as recently as 2007 but allocated $50 million this year. The Federal Energy Regulatory Commission issued 50 preliminary permits for small hydro projects last year, up from 15 in 2007. At least two dozen states have mandated that utilities draw more power from renewable sources—and many include small hydropower as an option, along with wind and solar. Colorado Gov. Bill Ritter recently announced an agreement between his state and the federal government that will streamline the permitting process for developing small hydropower projects in Colorado.

The Department of Energy estimates a new hydro project in 2016 would generate power at a cost of $120 per megawatt-hour. By contrast, the cost per megawatt-hour would be $150 at a wind farm going online that year and nearly $400 at a photovoltaic solar array. (Those figures don't take into account various tax incentives meant to offset the cost of renewable energy, especially wind and solar.)

Hydro also has technical advantages over other renewables. Daily water flow in many areas is far more predictable than wind or sunshine. It's relatively easy to store the energy pent up in water so it can be released when the grid needs it most. And certain types of hydro plants can rev up from low power to full capacity within seconds.

"There remains tremendous untapped potential in North America," says Don Erpenbeck, a vice president at MWH, a global hydropower construction and engineering firm in Broomfield, Colo. "After decades of delay, we are starting to realize that potential."

But Mr. Erpenbeck adds that years-long waits for federal permits and high capital costs make hydropower a tough sell to some utilities and investors. Maximizing water energy in the U.S., he says, "is going to take some guts."

Countries such as Brazil and China remain committed to large hydroelectric dams and are forging ahead with big projects. Yet they are also looking at smaller solutions favored by environmentalists. The International Hydropower Association estimates that North America has developed nearly 70% of its available hydropower resources and Europe 75%. But the group sees huge potential in South America, Asia and especially Africa, where just 7% of resources have been developed.

Dam Smart

In the U.S., one strategy gaining popularity is to add power plants to some of the 80,000 existing dams that don't have hydroelectric capacity. Technological advances like turbines that are gentler on fish and oxygen-injection systems that help balance aquatic ecosystems have won favor even among some environmental groups.

In one such project, American Municipal Power Inc. is spending $2 billion to add power plants to three dams on the Ohio River and invest in additional hydropower elsewhere.

The utility's CEO, Marc Gerken, says the new hydropower will cost more initially than coal or natural gas. But after the construction costs are paid off in 30 years, the utility will enjoy cheap power for several decades because the fuel—the rushing river—is essentially free and the plant is designed to run without much maintenance for 60 or 70 years. AMP, based in Columbus, Ohio, is a nonprofit corporation owned and operated by municipal utilities in the six states the company serves.

Other technologies are more speculative. A much-ballyhooed experiment that involved suspending a turbine from a barge in the Mississippi River didn't prove to be worth expanding. The turbine is generating power, but Hydro Green Energy LLC, the Houston-based start-up that developed the device, says it has moved on to more promising ventures. "It's still a power-producing, money-making device," but the economics don't support expansion, says Vice President Mark Stover.

Several companies are experimenting with "low-head" turbines that can pull energy from relatively small volumes of water dropping as little as five feet over natural or man-made falls. One such project, launched by Natel Energy Inc. of Alameda, Calif., uses low-head technology to extract energy from an Arizona irrigation canal.

Federal scientists say some of these approaches look promising but need more study. "With these new technologies, nobody knows what their environmental impacts might be," says Doug Hall, who manages the water-energy program at the Department of Energy's Idaho National Laboratory.

Pump Action

A less-experimental technology, dating back more than a century, is also gaining currency as a means to store energy and back up the grid: pumped storage, the system used by the Mount Elbert hydro plant outside Denver.

The plant, sitting on the jewel-like Twin Lakes and managed by the Bureau of Reclamation, plays a key role in keeping lights on and air conditioners humming across the West.

At night, when demand on the power grid is low, the Mount Elbert plant sucks water from the lakes, sometimes using wind power to pump that water up into a reservoir above the plant. The reservoir acts as a liquid battery—a huge pool of potential energy.

As the day warms up and the grid shows signs of strain, workers begin to release the water down a 470-foot drop, through devices that turn the pent-up energy into usable electricity. The water eventually pours back into the lakes, where it can be recycled into power again the next evening.

Pumped storage is quite popular abroad; China has 2,200 projects under construction, and India and Ukraine aren't far behind. An analysis by MWH shows that countries as varied as Romania, Thailand, Switzerland, South Africa and Italy are also moving heavily into pumped-storage construction. The U.S. has lagged, but federal authorities saw a surge in permit applications in 2008 and again so far this year.

"No new dams are being built," says Dave Sabo, a senior adviser with the Bureau of Reclamation. But just about every other approach to hydropower, he says, is being studied and tested intensively. Says Mr. Sabo, "All this stuff is in play right now—pretty heavily."

Ms. Simon is a staff reporter in The Wall Street Journal's Dallas bureau. She can be reached at .

Printed in The Wall Street Journal, page R3

Report: Electric Grid R&D Must Parallel Expansion of Renewable Power

By JENNY MANDEL of Greenwire
Published: November 16, 2010

The Energy Department should expand its research on energy storage, long-distance electricity transmission and short-term weather forecasting in order to support the growing use of renewable energy, the American Physical Society says in a report released today.

Research and development is needed to prepare the electric grid for the coming onslaught of new solar and wind power, in much the way farmers must prepare the ground before sowing a crop, said Kathryn Clay, vice president of research and technology policy with the Alliance of Automobile Manufacturers and a member of the committee that wrote the report, at a press event.

"This is actually taking it a step higher in terms of the technical sophistication of the national grid," Clay said, contrasting the proposed work with calls by other groups to build new transmission lines.

The American Physical Society (APS) said the intermittency of wind and solar supplies, the location of prime wind and solar sites far from population centers on the East and West coasts, and the fragmentation of the national energy grid present challenges to integrating renewable energy.

Those challenges will become increasingly significant as more states implement renewable portfolio standards, the report says, as 30 states and the District of Columbia have already done.

Jim Misewich, a co-chairman of the report committee and associate lab director for basic science at DOE's Brookhaven National Laboratory, said many of the state standards are aimed at providing 20 percent of their electricity from renewables by 2020. Integrating that degree of renewable power would be a challenge under current conditions, he said, which effectively sets a 10-year time frame to address the weaknesses.

While experts do not know the precise load of renewables that the grid can handle, Clay said, "We don't want to run that experiment" to see when it starts to break down.

The report calls for a series of federal actions to address the challenges.

For energy storage, DOE should increase its electrochemical research and re-examine the technology options for batteries in the context of large-scale use, it said. Misewich stressed the value of reconsidering approaches that were discarded during the 1980s and 1990s, when program managers had different applications in mind, in light of changing needs.

On long-distance transmission, APS urged DOE to extend its work on high-temperature superconductivity and increase R&D on power electronics that can control power flows over split-second time periods.

To make wind and solar forecasting more useful to utilities, it called for additional research by the National Oceanic and Atmospheric Administration, National Weather Service and National Center for Atmospheric Research, as well as private companies, to improve the accuracy of reports hours to days in advance. That would reduce the need for fossil fuel standby power, reducing cost and improving the environmental performance of power providers.

Misewich and Clay said regulatory reforms by the Federal Energy Regulatory Commission and the North American Electric Reliability Corp. could help by clarifying how utilities can pay for energy storage improvements.

Clay said some of the R&D work suggested by APS is already before Congress in some form, while much of it is new. She said the panel decided against estimating the cost of the recommended work.

Copyright 2010 E&E Publishing. All Rights Reserved.

For more news on energy and the environment, visit .

NERSC supercomputing center breaks the petaflops barrier

November 16, 2010

BERKELEY, Calif. — The Department of Energy's National Energy Research Scientific Computing Center (NERSC), already one of the world's leading centers for scientific productivity, is now home to the fifth most powerful supercomputer in the world and the second most powerful in the United States, according to the latest edition of the TOP500 list, the definitive ranking of the world's top computers.

NERSC's newest supercomputer, a 153,408 processor-core Cray XE6 system, posted a performance of 1.05 petaflops (quadrillions of calculations per second) running the Linpack benchmark. In keeping with NERSC's tradition of naming computers for renowned scientists, the system is named Hopper in honor of Admiral Grace Hopper, a pioneer in software development and programming languages. The system, installed d in September 2010, is funded by DOE's Office of Advanced Scientific Computing Research.

Established in 1974, NERSC is located at Lawrence Berkeley National Laboratory in California and provides computing systems and services to more than 3,000 researchers supported by the Department of Energy (DOE). NERSC's users, located at universities, national laboratories, and other research institutions around the country, report producing more than 1,500 scientific publications each year as a result of calculations run at NERSC.

“While we are elated to have entered the petascale performance arena, we are especially excited by the computational science potential offered by Hopper,” said Kathy Yelick, Director of the NERSC Division and Associate Laboratory Director of Computing Sciences at Berkeley Lab. “We selected Cray as the system vendor after a competitive procurement based in large part on how proposed systems performed running our application benchmarks. Now that the system is installed and operational, we will begin our acceptance testing in which we run some of the most demanding scientific applications to ensure that Hopper will meet the day-to-day demands of our users.”

NERSC serves one of the largest research communities of all supercomputing centers in the United States. The center's supercomputers are used to tackle a wide range of scientific challenges, including global climate change, combustion, clean energy, new materials, astrophysics, genomics, particle physics and chemistry. The more than 400 projects being addressed by NERSC users represent the research mission areas of DOE's Office of Science.

The increasing power of supercomputers helps scientists study problems in greater detail and with greater accuracy, such as increasing the resolution of climate models and creating models of new materials with thousands of atoms. Supercomputers are increasingly used to compliment scientific experimentation by allowing researchers to test theories using computational models and analyzed large scientific data sets. NERSC is also home to Franklin, a 38,128 core Cray XT4 supercomputer with a Linpack performance of 266 teraflops (trillions of calculations per second). Franklin is ranked number 27 on the newest TOP500 list.

About NERSC and Berkeley Lab

The National Energy Research Scientific Computing Center (NERSC) is the primary high-performance computing facility for scientific research sponsored by the U.S. Department of Energy's Office of Science. Berkeley Lab is a U.S. Department of Energy national laboratory located in Berkeley, California. It conducts unclassified scientific research and is managed by the University of California for the DOE Office of Science.

( Nanowerk News ) There's good news in the search for the next generation of semiconductors. Researchers with the U.S. Department of Energy's Lawrence Berkeley National Laboratory (Berkeley Lab) and the University of California (UC) Berkeley, have successfully integrated ultra-thin layers of the semiconductor indium arsenide onto a silicon substrate to create a nanoscale transistor with excellent electronic properties. A member of the III–V family of semiconductors, indium arsenide offers several advantages as an alternative to silicon including superior electron mobility and velocity, which makes it an oustanding candidate for future high-speed, low-power electronic devices.
Fabricating an indium oxide (InAs) device starts with a) epitaxially growing and etching InAs into nanoribbon arrays that are get stamped onto a silicon/silica (Si/SiO2 ) substrate; b) and c) InAs nanoribbon arrays on Si/SiO2; d) and e) InAs nanoribbon superstructures on Si/SiO2.
"We've shown a simple route for the heterogeneous integration of indium arsenide layers down to a thickness of 10 nanometers on silicon substrates," says Ali Javey, a faculty scientist in Berkeley Lab's Materials Sciences Division and a professor of electrical engineering and computer science at UC Berkeley, who led this research.
"The devices we subsequently fabricated were shown to operate near the projected performance limits of III-V devices with minimal leakage current. Our devices also exhibited superior performance in terms of current density and transconductance as compared to silicon transistors of similar dimensions."
For all its wondrous electronic properties, silicon has limitations that have prompted an intense search for alternative semiconductors to be used in future devices. Javey and his research group have focused on compound III–V semiconductors, which feature superb electron transport properties. The challenge has been to find a way of plugging these compound semiconductors into the well- established, low-cost processing technology used to produce today's silicon-based devices. Given the large lattice mismatch between silicon and III-V compound semiconductors, direct hetero-epitaxial growth of III-V on silicon substrates is challenging and complex, and often results in a high volume of defects.
"We've demonstrated what we are calling an 'XOI,' or compound semiconductor-on-insulator technology platform, that is parallel to today's 'SOI,' or silicon-on-insulator platform," says Javey. "Using an epitaxial transfer method, we transferred ultrathin layers of single-crystal indium- arsenide on silicon/silica substrates, then fabricated devices using conventional processing techniques in order to characterize the XOI material and device properties."
The results of this research have been published in the journal Nature, in a paper titled, "Ultrathin compound semiconductor on insulator layers for high-performance nanoscale transistors." Co-authoring the report with Javey were Hyunhyub Ko, Kuniharu Takei, Rehan Kapadia, Steven Chuang, Hui Fang, Paul Leu, Kartik Ganapathi, Elena Plis, Ha Sul Kim, Szu-Ying Chen, Morten Madsen, Alexandra Ford, Yu-Lun Chueh, Sanjay Krishna and Sayeef Salahuddin.
To make their XOI platforms, Javey and his collaborators grew single-crystal indium arsenide thin films (10 to 100 nanometers thick) on a preliminary source substrate then lithographically patterned the films into ordered arrays of nanoribbons. After being removed from the source substrate through a selective wet-etching of an underlying sacrificial layer, the nanoribbon arrays were transferred to the silicon/silica substrate via a stamping process.
Javey attributed the excellent electronic performance of the XOI transistors to the small dimensions of the active "X" layer and the critical role played by quantum confinement, which served to tune the material's band structure and transport properties. Although he and his group only used indium arsenide as their compound semiconductor, the technology should readily accommodate other compound III/V semiconductors as well.
"Future research on the scalability of our process for 8-inch and 12-inch wafer processing is needed," Javey said.
"Moving forward we believe that the XOI substrates can be obtained through a wafer bonding process, but our technique should make it possible to fabricate both p- and n- type transistors on the same chip for complementary electronics based on optimal III–V semiconductors.
"Furthermore, this concept can be used to directly integrate high performance photodiodes, lasers, and light emitting diodes on conventional silicon substrates. Uniquely, this technique could enable us to study the basic material properties of inorganic semiconductors when the thickness is scaled down to only a few atomic layers."
This research was funded in part by an LDRD grant from the Lawrence Berkeley National Laboratory, and by the MARCO/MSD Focus Center at MIT, the Intel Corporation and the Berkeley Sensor and Actuator Center.
Berkeley Lab is a U.S. Department of Energy national laboratory located in Berkeley, California. It conducts unclassified scientific research for DOE's Office of Science and is managed by the University of California. Visit our Website at

Group Petitions EPA to Stop Sale of Nano-Copper Pesticides

(Beyond Pesticides, November 23, 2010) The International Center for Technology Assessment (ICTA) filed a legal petition with the Environmental Protection Agency (EPA), calling on the agency to use its pesticide regulation authority to halt the sale of untested nano-copper wood preservative products. The letter is the second ICTA challenge in the past two years of EPA's failure to regulate pesticidal nanomaterials. In 2008, ICTA, Beyond Pesticides, Friends of the Earth and others including filed a petition challenging EPA's failure to regulate nanosilver as a unique pesticide.

ICTA research found nano-copper-based wood preservative pesticides in wide use. Yet, despite EPA's two-year old policy to classify such pesticides as “new” and requiring further data, the agency has not treated them any different than larger particle based preservatives. The three nano-copper products highlighted in the letter are manufactured by Osmose, Inc. In each instance, although the active ingredient, copper carbonate, was purchased from another company, the copper carbonate is then milled by Osmose to produce nanoparticles of copper carbonate. A 2008 report notes that nano-copper preservatives have captured at least 50% of the North American wood preservative market. However, recent reports have noted that market capture could be as high as 75-80% now.

The ultra small size and chemical characteristics of manufactured nanoparticles can give them unique properties, but those same new properties–tiny size, vastly increased surface area to volume ratio, high reactivity–can also create unique and unpredictable human health and environmental risks. Failure to adequately test nanomaterials for their health and environmental hazard potential could lead to a new health crisis like that of asbestos or lead paint.

Scientists and researchers are becoming increasingly concerned with the potential impacts of nano-particles on public health and the environment. A new study by scientists from Oregon State University (OSU) and the European Union (EU) highlights the major regulatory and educational issues that they believe should be considered before nanoparticles are used in pesticides. The study was published October 2010 in the International Journal of Occupational and Environmental Health .

Copper nanoparticles could be released from the treated wood during sawing or machining, cleaning, through normal wear and tear, or from product decomposition, and then become available for potential inhalation or ingestion. Reports stated in early 2009 that over five billion board feet of wood have been treated with its “micronized” copper products, so the potential for consumer exposure to nanoscale copper particles could be quite large.

“To our knowledge, EPA has never evaluated the potential hazards associated with the nanoscale particles of copper carbonate in wood treatment products,” said Jaydee Hanson, Policy Director for ICTA. “Yet one of the companies issued a press release in 2009 in which it claimed that the “consumer safety” of its products has been “confirmed.”'

It has been the announced policy of EPA's Office of Pesticide Programs since at least 2008 to presume that any active or inert ingredient that is or contains nanoscale material is a ‘new' ingredient for regulatory purposes under its pesticide regulations. However, in each instance pesticide manufacturers failed to informed EPA that its products contains nanoscale particles. Consumers have also been left in the dark about their potential exposure as these products are currently being marketed under the ambiguous label “micronized” copper.

EPA itself has recently recognized that, “Nano copper is more acutely toxic than micro copper.” Studies of the acute toxicity of elemental copper nanoparticles (23.5 nm) in mice found “gravely toxicological effects and heavy injuries on kidney, liver, and spleen.” In a study comparing the toxicity of various metal oxide nanoparticles and carbon nanotubes, copper oxide nanoparticles (averaging 43 nm) were the most potent of all the nanoparticles tested at causing cytotoxicity and DNA damage. Although the potential toxicity of nanoscale particles of copper carbonate has not been equally well characterized, the results of the study with copper oxide nanoparticles are of particular concern because both copper oxide and copper carbonate include a bivalent copper ion. Additionally, copper is known to be toxic to aquatic organisms particularly during the larval stages of invertebrates, and algae and plant life can be affected as well.

ICTA is asking that EPA:

• immediately investigate the composition the known nano-copper based pesticides, and take appropriate administrative action; and
• thoroughly investigate other possible nano-copper products, including but not limited to copper-based wood treatment products currently available on the market, as similar actions under FIFRA may be necessary; and
• if EPA determines that any manufacturer of copper-based pesticide products, has distributed or sold any product that has a composition that differs from the composition of the registration of the product, EPA should take enforcement action under FIFRA Section 12(a)(1)(C); and
• finally, EPA should publish its long-awaited industry guidance on nano-scale pesticides (Docket No. EPA-HQ-OPP-2008-0650). A notice on pesticide products containing nanoscale materials was submitted to the US Office of Management and Budget on July 30, 2010; however, no further action has been taken.

In 2007 a broad international coalition of 40 consumer, public health, environmental, and labor organizations, including Beyond Pesticides, released the Principles for the Oversight of Nanotechnologies and Nanomaterials , calling for strong, comprehensive oversight of the new technology and its products. Beyond Pesticides has since advocated for a precautionary course of action in order to prevent unnecessary risks to the public, workers and the environment.

At its October 2010 meeting, the U.S. Department of Agriculture's (USDA) National Organic Standards Board (NOSB) passed a recommendation directing the USDA National Organic Program to prohibit engineered nanomaterials from certified organic products as expeditiously as possible. More details about the NOSB action can be found in our blog posting, NOSB Proposes Ban on Nanotechnology in Certified Organic Products .

Full copies of the letter as well as past legal petitions filed with EPA and FDA are available at .

Monday, November 22, 2010

EPA admits its rules would only reduce global temperature by 0.006 degrees in 90 years


"In rulemaking documents from April 2010, the EPA writes, “Based on the reanalysis the results for projected atmospheric CO2 concentrations are estimated to be reduced by an average of 2.9 ppm [parts per million] (previously 3.0 ppm),

Oct. 6, 2010 , " EPA estimates its greenhouse gas restrictions would reduce global temperature by no more than 0.006 of a degree in 90 years ," CNS News, C. Neefus

" Tough new rules proposed by the Environmental Protection Agency restricting greenhouse gas emissions would reduce the global mean temperature by only 0.006 to 0.0015 of a degree Celsius by the year 2100, according to the EPA's analysis.
  • As a side effect, these rules would “slow construction nationwide for years,” the EPA said in a June 3 statement.

Republican members of the Senate Environment and Public Works Committee highlighted those findings in a report released last week.

The GOP minority report , issued last Wednesday (9/29) , said a series of proposed and partially implemented new regulations on

  • industrial boilers, greenhouse gas emitters, and ozone levels will put
  • over 800,000 jobs at risk with little environmental benefit.

The authors cite the EPA's own staff to show that greenhouse gas regulations, which would require major sources of CO2 (carbon dioxide) to obtain permits and limit their output, could seriously harm the economy if implemented....

The EPA permits, under the Prevention of Significant Deterioration program, are already in place –

  • but would be significantly expanded to include greenhouse gases.

(D)uring this time , tens of thousands of sources each year would be prevented from constructing or modifying,” the EPA staff wrote.

  • “In fact, it is reasonable to assume that many of those sources will be forced to abandon altogether plans to construct or modify. As a result, a literal application (of the permit requirement) to GHG (greenhouse gas) sources would

slow construction nationwide for years, with all of the adverse effects that this would have on economic development.”

Because of these concerns, the EPA decided to create the “tailoring rule,” which changes the thresholds for being considered a major source of carbon;

  • they claim this will limit immediate 2011 exposure to the regulations to only 900 sources.

But Republicans on the Senate EPW committee said that

a federal court could strike the tailoring rule because it does not follow explicit guidelines set out for the process of issuing permits for pollutants in the Clean Air Act (CAA), which has its own threshold of 100-250 tons of CO2 equivalent a year.

“(T)he tailoring rule violates the plain language of the CAA . The Act defines ‘major sources' as those that emit more than 100-250 tons per year of a regulated pollutant.

  • In the tailoring rule, however, EPA arbitrarily changes those thresholds -- to 75,000 and 100,000 tons. For this reason,
  • the rule likely won't survive judicial scrutiny,” the staff wrote.

All of these complications stem from EPA's desire to regulate mobile sources of greenhouse gases -- primarily automobiles. By issuing a finding

  • last Spring that carbon dioxide is a danger to public health, the EPA is able to regulate mobile output of the gas;

but the ancillary effect is that stationary CO2 emitters -- factories, schools, office buildings -- are now subject to those Clean Air Act regulations as well.

But the benefit of regulating those mobile sources is, also by the EPA's own estimations,

  • as little as less than two thousandths of a degree in temperature reduction over a century.

In rulemaking documents from April 2010, the EPA writes, “Based on the reanalysis the results for projected atmospheric CO2 concentrations

  • are estimated to be reduced by an average of 2.9 ppm [parts per million] (previously 3.0 ppm),


Keeping an Eye on CERCLA While Exercising Remedies

Jeffrey B. Steiner and Jason R. Goldstein

New York Law Journal

November 17, 2010


Several years into a difficult economic climate, as commercial borrowers continue to default on loans secured by real property, a growing number of lenders face the prospect of employing the remedy of foreclosure. While financial institutions that make loans secured by commercial real estate are generally aware of the risks posed by foreclosing on real property that could or does in fact contain a hazardous substance covered by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 1 even sophisticated parties can place undue reliance on the protection of the statute's safe harbor for secured creditors or personal indemnities from borrower principals. While in certain circumstances the safe harbor protects foreclosing lenders from CERCLA liability, the scope of that protection is limited and, in many places, poorly defined. Even recent developments in CERCLA jurisprudence do not reveal a comprehensive or consistent body of law that lenders can rely on with more confidence than caution.

CERCLA, popularly called "Superfund," empowers the U.S. Environmental Protection Agency (the EPA) to compel the remediation of released hazardous substances by current "owners and operators" of the sites of such releases (referred to under the statute as "potentially responsible parties" (PRPs)). CERCLA imposes both strict liability and joint and several liability on PRPs. A lender who is deemed a PRP through its foreclosure on real estate collateral could therefore become fully liable for environmental conditions that the lender did not cause, the cost of which greatly exceeds the value of the bank's investment in the property and may predate by years the date on which the lender acquired the property.

Because of the effect a CERCLA designation may have on the credit available to owners of contaminated properties, from its inception CERCLA has contemplated an exemption for secured creditors. This exemption's tangled history, however, is indicative of the unsettledness that characterizes this area of law.

From enactment, CERCLA exempted from liability a lender that "holds indicia of ownership primarily to protect his security interest." 2 The legal uncertainty generated by this provision was later exacerbated by the decision in United States v. Fleet Factors , 3 in which the U.S. Court of Appeals for the Eleventh Circuit held that a lender could become liable as a PRP if its financial oversight provided it with the "capacity to influence" the borrower's environmental procedures. In response to Fleet Factors , the EPA issued a so-called Lender Liability Rule 4 in 1992 to provide specific guidance concerning types of activities lenders could take without triggering CERCLA liability. After lawmakers saw the Lender Liability Rule vacated on administrative grounds in 1994, 5 the U.S. Department of Justice and the EPA issued a similarly ill-fated joint memorandum that did not have the effect of law or provide comfort with respect to suits brought by private parties. 6 To address this lack of firm rule, Congress subsequently amended CERCLA by codifying the secured-creditor exemption as part of the U.S. Asset Conservation, Lender Liability and Deposit Insurance Act of 1996.

Under the amended CERCLA rules, lenders can rely on the secured creditor safe harbor by establishing (i) that prior to foreclosure, the lender was (A) a bona fide secured creditor and (B) never participated in the borrower's management and (ii) that subsequent to foreclosure, the lender neither owns nor operates the borrower's property except for the purposes of preserving its value.

To properly establish itself as a protected secured creditor, the lender must hold its security interest in the real property primarily to secure the repayment of money or another obligation of the borrower. Applicable security interests include "a right under a mortgage, deed of trust, assignment, judgment lien, pledge, security agreement, factoring agreement, or lease and any other right accruing to a person to secure the repayment of money, the performance of a duty, or any other obligation by a nonaffiliated person." 7 Although this determination is fairly straightforward, lenders should be advised that several courts in the past have gone beyond merely establishing the existence of the indicia to investigating the purposes behind holding them. 8

Secondly, the lender must establish the extent to which it may exercise prudent oversight over its loan collateral while maintaining sufficient distance from the actual management of the borrower's property. 9 CERCLA expressly excludes certain actions from qualifying as "participation in management," including (i) conducting property inspections; and (ii) requiring a response to the actual or threatened release of a hazardous substance. 10

However, while collateral oversight actions are largely acceptable and properly isolate a secured lender from environmental liability, CERCLA does provide that a lender will be deemed to have participated in the management of the borrower's property if it: (i) makes decisions or takes responsibility for or control of the property's hazardous substance handling or disposal; or (ii) exercises managerial control over day-to-day decision making with respect to environmental matters or the "operational functions" of the facility other than the functions of environmental compliance. 11 Without a bright-line test distinguishing permissible environmental monitoring activities from impermissible ones, lenders must mind their actions carefully to avoid liability.

Participating in Management

Establishing whether a lender participated in management is a fact-sensitive inquiry, for which only limited judicial guidance exists. Mechanical reliance on the statutorily enumerated activities could prove insufficient to insulate a lender from liability. For instance, a lender could incur CERCLA liability if its activities with respect to a property individually fall within the letter of the law but collectively place the lender in de facto control of the property's environmental matters. Generally speaking, a lender can expect not to be considered to be "participating in management" if it only acts in furtherance of the preservation of the underlying collateral in a manner consistent with market practice.

The lender must establish grounds for pre-foreclosure reliance on the secured creditor safe harbor as a necessary precondition for relying on it post-foreclosure. After seizing the property, the lender can preserve the safe harbor only by selling the foreclosed property promptly while not acting in a way that would cause it to be deemed a PRP. As a result, both the period of time in which the lender must sell the property and operation of that property in the interim can provide a basis for challenging a lender's post-foreclosure reliance on the safe harbor.

After foreclosure, the lender must make commercially reasonable efforts to divest itself of the property at the earliest commercially reasonable time on commercially reasonable terms, taking into account market, legal and regulatory considerations. 12 CERCLA does not indicate what length of time is considered commercially reasonable. The EPA has provided separate guidance that listing the property with a broker or advertising it for sale within 12 months of the foreclosure is generally acceptable, but has considered, and declined, to provide a bright-line rule for holding the property. As determining whether a holding period is commercially reasonable is clearly a fact-sensitive inquiry, lenders should thoroughly document their marketing efforts during the period. The lender should also be aware that at some point the tenure of possession could extend long enough for the lender to be deemed the property's owner or operator.

As discussed, the safe harbor provision permits the lender to operate the property while attempting to sell, re-lease, or otherwise dispose of property. This operation can take the form of maintaining or winding up any business activities on the property, addressing the actual or threatened release of the hazardous material, or otherwise taking steps to preserve the property's value. If the lender begins to act as a property owner (e.g., by expanding any business on the property or soliciting investors), however, it runs the risk of being deemed the property's owner or operator. This is another facts-and-circumstance inquiry that does not admit to a ready rule. The lender must therefore similarly document that all actions with respect to the property were taken merely to maintain the property's value. With today's lenders frequently taking over existing unsold condominium units, foreclosing mortgagees ought to carefully monitor their sales efforts to demonstrate active marketing.

Even if the lender successfully navigates the challenges of staying within the CERCLA secured creditor safe harbor, the limits of that exemption could pose further complications.

First, the safe harbor only insulates the lender from liability as a PRP under CERCLA. To the extent that an environmental liability is not governed by CERCLA (such as, for example, petroleum or natural gas, which are not defined as a "hazardous substances" under the statute), or liability is incurred under another federal or applicable state statute, the lender is not protected by CERCLA's safe harbor.

Second, the safe harbor provisions only protect the lender when it forecloses on the borrower's real property directly rather than foreclosing on the borrower's equity. Any mezzanine lender foreclosing on the membership interests of a borrower owning CERCLA-designated property would end up the borrower's parent or corporate successor, and thereby assume the property's CERCLA liability.

Third, the secured creditor exemption only offers lenders protection from liability for past contamination based upon their status as lenders or as owners after foreclosure; a lender's actions or omissions that cause new contamination can independently serve as a basis for deeming a lender an "operator" (and hence a PRP) of the property. 13

This responsibility for contamination can be imputed to a lender for actions that are relatively remote to the environmental liability. In one much-discussed case, New York v. HSBC USA, N.A. , 14 the State of New York claimed a lender was outside of the secured creditor exemption because it had instituted a lock-box on all of a borrower's operating funds, and denied disbursements necessary for the borrower to comply with environmental regulations.

The lender settled out of court for nearly $1 million in civil penalties and costs. Although the settlement precluded the creation of judicial precedent, the case demonstrates that lenders can be pursued for CERCLA damages for actions that could be seen as protective of the loan and not "participation in management." Any significant control over the company's environmental management, even through commonly used financing conventions such as cash management, could conceivably lead to a lender's liability for any resulting contamination or noncompliance.

Finally, as a practical concern, even if the lender can comfortably rely on the safe harbor from CERCLA liability, that protection will not be available to any prospective third party purchaser of the foreclosed property. This could have the effect of reducing the value of the collateral by the amount necessary to remediate any contamination. The lender is also at a disadvantage in negotiating sales with prospective purchasers, as holding on to the property for too long can cause the lender to be deemed the property's owner and operator.


In light of these concerns, a lender considering foreclosure should carefully review all reasonable alternatives. This does not mean, however, that the lender has no options in the face of a borrower with contaminated collateral.

The lender could foreclose on the property in reliance upon the environmental indemnities that are standard in most sophisticated loan agreements. Under typical environmental indemnification clauses, the borrower, its affiliates and its principals are liable for any costs incurred to clean up any contamination of the collateral. These clauses typically survive the loan's repayment or default, and can, if skillfully drafted, protect the lender even after the property's sale to a third party. Even if a lender does not intend to foreclose, a strong indemnification provision from a creditworthy individual or entity can serve as an insurance policy should an attempt be later made to characterize the lender as a PRP.

Alternatively, when appropriate, a lender can seek to have the property administered by a court-appointed receiver or other suitable fiduciary. Naturally the availability of these alternatives turns on underlying circumstances and applicable law; however, there are no grounds for assuming that either the borrower or the lender must always hold the real property.

In conclusion, a lender contemplating foreclosure on CERCLA-implicated property cannot assume that its status as a secured creditor automatically entitles it to the secured creditor safe harbor. A lender must have established its appropriate conduct with respect to the property's management before foreclosure and should have a plan for disposing of the property afterwards. An observance of the niceties of the law in these circumstances is particularly important to lenders, as federal and state environmental agencies attempting to fund remediation and PRPs seeking contributors are all incentivized to prove lender noncompliance. With caution and an acknowledgment of both the legal and practical aspects of the safe harbor, however, a lender can chart a course of action with as much confidence as this area of law permits.

Jeffrey B. Steiner and Jason R. Goldstein are members of DLA Piper (US). Matthew McDermott , an associate of the firm, assisted in the preparation of this article.


1. 42 U.S.C. §§9601 et seq.

2. 42 U.S.C. §9601(20)(A)(iii).

3. 901 F.2d 1550 (11th Cir. 1990), cert. denied, 498 U.S. 1046 (1991).

4. 57 Fed. Reg. 18344 (1992).

5. Kelley v. EPA , 15 F.3d 1100 (D.C. Cir. 1994).

6. Office of Enforcement and Compliance Assurance, Environmental Protection Agency, and Environment and Natural Resources Division, Department of Justice, Policy on CERCLA Enforcement Against Lenders and Government Entities that Acquire Property Involuntarily (Oct. 23, 1995).

7. 42 U.S.C. §9601(20)(G)(vi).

8. See, e.g., Monarch Tile Inc. v. City of Florence , 212 F.3d 1219 (11th Cir. 2000).

9. 42 U.S.C. §9601(20)(F).

10. 42 U.S.C. §9601(20)(F)(iv).

11. 42 U.S.C. §9601(20)(F)-(G).

12. 42 U.S.C. §9601(20)(E)(ii).

13. See, e.g., F.P. Woll Co. v. Fifth & Mitchell St. Corp. , 1997 WL 535936, unreported (E.D. Pa. 1997).

14. Docket No. 07-CV-3160 (Dec. 22, 2006 Consent Decree).

Jalil Isa (Media Inquiries Only)

November 17, 2010

EPA Releases New Draft Voluntary Guidelines for Selecting Safe School Locations

EPA provides new tools for communities making school siting decisions

WASHINGTON – The U.S. Environmental Protection Agency (EPA) today released draft voluntary guidelines to help communities protect the health of students and staff from environmental threats when selecting new locations for schools.

More than 1,900 new schools serving approximately 1.2 million children and costing more than $13 billion opened in the 2008-2009 school year. Major investments in our children's schools can be compromised if environmental hazards are not fully understood prior to selecting a school site. The voluntary guidelines also provide tools to help communities ensure that new locations for schools are accessible to the students they are intended to serve.

“EPA is offering tools to local officials and community residents looking to build schools that foster healthy, productive learning environments,” said EPA Administrator Lisa P. Jackson. “This guidance will help address the pressing environmental issues that parents, school boards and local residents often consider when making investments in their local schools. By offering guidance on long-term environmental and health concerns, it will also help local communities plan ahead and reduce the risk of costly changes down the road.”

The potential impacts on children's health and education, as well as the damage to the community when school environmental hazards are later identified, are significant. In some cases, schools have been closed and in other cases have undergone costly remediation.

The new draft voluntary guidelines will give local communities tools to help them consider environmental health issues in establishing school site selection criteria and in conducting effective environmental reviews of potential school sites. The draft guidelines recommend involving the public in the site selection process from the beginning to help ensure community support for these decisions.

EPA developed the draft guidelines in consultation with other federal agencies, states, school districts, community organizations, health care professionals, teachers, as well as environmental justice leaders, and children's health and environmental groups, among others.

The draft school siting guidelines are being made available for public comment for 90 days. Comments will be accepted until 4 pm EST on February 18, 2011.

To view and comment on the draft guidelines:

More information on the draft school siting guidelines and on protecting children's health in existing schools:

Note: If a link above doesn't work, please copy and paste the URL into a browser.

View all news releases related to miscellaneous topics

Otter criticizes EPA cleanup plan for N. Idaho

  • Posted November 17, 2010 at 10:27 a.m.

COEUR D'ALENE, Idaho (AP) - Gov. C.L. "Butch" Otter is criticizing a proposal by federal environmental regulators for expanding their cleanup of historic mining waste and contaminants in Idaho's Silver Valley region.

Otter outlined his concerns in a letter submitted Monday to the Environmental Protection Agency, which is taking public comments on its plan - called an amended Record of Decision - for extracting heavy metals, treating water and eliminating toxic mine sites along a 40-mile stretch of the South Fork of the Coeur d'Alene River basin.

The Republican governor urged the EPA to set reasonable goals and cautioned against any projects that could imperil existing or future mining in the region.

"In my view, the proposed ROD amendment must not go forward unless the EPA commits that cleanup work will not impede existing or future mining," according to Otter's letter, reported by the Coeur d'Alene Press. "Moreover, the proposed ROD is not acceptable unless the EPA identifies and commits to reasonable and achievable endpoints."

The EPA has spent nearly 20 years cleaning up the Superfund site in Kellogg that was once one of the most polluted places in the country, with arsenic and lead stripping the hillsides of vegetation and poisoning the blood of children.

The agency now wants to broaden the cleanup to outlying areas and more rivers and streams. The price tag is estimated at $1.3 billion and could take anywhere from 50 to 90 years to complete. The expansion would be partially funded by a recent $500 million settlement with Asarco, one of the successors of the Bunker Hill mine that is blamed for polluting the valley.

But there are mixed feelings in northern Idaho about such an extended and pricey expansion. Some residents and leaders would rather have the cleanup and EPA presence wind down and worry the agency's long-term presence will stunt the region's prospects for economic growth.

Otter said he talked with lawmakers and other leaders in the region before submitting his letter.

He urged the agency to set a defined and limited timeframe for the additional cleanup and to draft it in a way that focuses on human-health restoration.

He criticized the section of the proposal devoted to water treatment, calling it an open-ended plan to "wildly spend public resources and perform work that is of questionable value," according to the letter.

Dan Opalski, EPA director of environmental cleanup, said the agency will consider comments that have been submitted in the last four months. But he says the agency still has a mission to do use the best science and technology available to meet its legal mandate to clean up the environment.

"It's understandable that some people have serious concerns," Opalski said. "But ultimately, we'll be weighing all the input we receive ... and considering the underpinnings of science and the responsibilities we have under the law."

The public comment period ends Nov. 23.

Read more:

Governmental Controls: Types of institutional controls that impose land or resource restrictions using the authority of an existing unit of government (e.g., state legislation, local ordinance, well drilling permit, etc.).

Consent Decree: Legal document approved by a judge that formalizes an agreement reached between EPA and companies, governments, or individuals associated with contamination at the sites (potentially responsible parties (PRPs)) through which PRPs will take certain actions to resolve the contamination at a Superfund site.


CERCLA allows a private party to recover its attorney fees and expenses incurred in bringing a cost-recovery action pursuant to 42 U.S.C. Sec. 9607(a)(4)(B). reasonable and necessary costs of its cleanup, including the attorney fees and expenses incurred in bringing this cost-recovery action. IMMI would be a section 9613(f)(1) liable party only if it owned the site at the time the wastes were dumped or was responsible otherwise for the dumped wastes. See 42 U.S.C. Sec. 9607(a). Since that is not the case, IMMI is not a liable party and cannot be held liable under 42 U.S.C. Sec. 9613(f)(1)

IMMI has met the state cleanup standards, which is what 40 CFR Sec. 300.71(a)(4) required. Thus, the consent decree does not obligate IMMI to clean the site past what CERCLA and the NCP required

40 CFR Sec. 300.65(b)(3) requires removal actions to end after either one million dollars has been obligated or six months have elapsed from the date of the initial response.

CERCLA § 107(a)(4)(A) allows the government to recover all costs of removal or remedial action "not inconsistent with the national contingency plan." When the United States is seeking recovery of response costs, consistency with the NCP is presumed. Washington State Dept. of Transp., 59 F.3d at 799-800; United States v. Hardage, 982 F.2d 1436, 1442 (10th Cir.1992). The potentially responsible party has the burden of proving inconsistency with the NCP. Washington State DOT, 59 F.3d at 800. "To prove that a response action of the EPA was inconsistent with the NCP, a defendant must prove that the EPA's response action was arbitrary and capricious." Id.; 42 U.S.C. § 9613(j)(2).

2. Documentation

The NCP requires:

During all phases of response, the lead agency shall complete and maintain documentation to support all actions taken under the NCP and to form the basis for cost recovery.

40 C.F.R. § 300.160(a)(1) (1990).


5. Community Relations Plan

The NCP specifies the necessary community relations activities to be taken in a removal action. The 1990 NCP requires that in removal actions where "on-site action is expected to extend beyond 120 days from the initiation of on-site removal activities," the EPA shall prepare a formal community relations plan. 40 C.F.R. § 300.415(n)(3) (1990). The plan should address the public's concerns and outline any community relations activities that the EPA expects to undertake. Id. at (n)(3)(ii).

The 1985 NCP requires the same formal community relations plan, but the plan is required if the on-site removal activities are expected to extend beyond 45 days. 40 C.F.R. § 300.67(b) (1985).


Empowering Safe Lands & Watersheds

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

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


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


An Outdated System


THERE is no simple solution to identify all of the parties associated with a Superfund site but the process begins with the current owner. As with the purchase of any property, negotiations to buy a Superfund site begin with the current owner who can be identified through property title or tax records. EPA rarely owns the site being cleaned up. Generally, EPA’s Regional offices may assist in addressing the following questions:

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

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

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

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

The cleanup process proceeds as follows. The EPA places a site on
the National Priorities List ("NPL") if it poses a release threat mandating
long-term remedial evaluation and response.27 A Remedial Investigation
("RI") is then conducted to determine the extent of the contamination.28 A
Feasibility Study ("FS") follows to evaluate remediation and create site
management alternatives based on the RI. 29 The goals of the RI/FS process
are to determine what contaminants are present, determine the level of
dispersement in the environment, develop a list of potential cleanup method
alternatives, and use computer modeling to predict potential effects that each
alternative could present.3" The EPA considers the remedy alternatives
presented in the RI/FS according to nine factors: health protectiveness;
compliance with relevant laws and standards; long-term effectiveness and
permanence; reduction of toxicity, mobility, or volume through treatment;
short-term effectiveness; implementability; cost; state acceptance; and
community acceptance.3 The EPA issues a Record of Decision ("ROD")
that outlines a proposed remedial plan consisting of the Remedial Design
("RD") and Remedial Action ("RA").32 The ROD specifically selects a
remedial method from the RI/FS for the site that provides adequate protection
of public health, welfare, and the environment.33
The EPA implements the ROD in one of three ways. First, the EPA
can take over the site and hire a contractor to conduct the cleanup.34 When
the EPA takes over a site, it can sue PRPs to recover for CERCLA costs and
26 See United States v. Iron Mountain Mines, Inc., 881 F. Supp. 1432, 1446 (E.D. Cal.

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or
Superfund, Section 128(a); Notice of Grant Funding Guidance for State and Tribal
Response Programs for FY2011
AGENCY: Environmental Protection Agency.
ACTION: Notice.
SUMMARY: The Environmental Protection Agency (EPA) will begin to accept requests, from
December 1, 2010 through January 31, 2011, for grants to supplement State and Tribal Response
Programs. This notice provides guidance on eligibility for funding, use of funding, grant
mechanisms and process for awarding funding, the allocation system for distribution of funding,
and terms and reporting under these grants. EPA has consulted with state and tribal officials in
developing this guidance.
The primary goal of this funding is to ensure that state and tribal response programs include, or
are taking reasonable steps to include, certain elements and a public record. Another goal is to
provide funding for other activities that increase the number of response actions conducted or
overseen by a state or tribal response program. This funding is not intended to supplant current
state or tribal funding for their response programs. Instead, it is to supplement their funding to
increase their response capacity.
For fiscal year 2011, EPA will consider funding requests up to a maximum of $1.3 million per
state or tribe. Subject to the availability of funds, EPA regional personnel will be available to
provide technical assistance to states and tribes as they apply for and carry out these grants.

A. Overview
Section 128(a)(1)(B) describes the eligible uses of cooperative agreement funds by states and
tribes. In general, a state or tribe may use a cooperative agreement to "establish or enhance" their response programs, including elements of the response program that include activities
related to responses at brownfields sites with petroleum contamination. Eligible activities
include, but are not limited to, the following:
• Develop legislation, regulations, procedures, ordinances, guidance, etc.
that would establish or enhance the administrative and legal structure of
their response programs;
• Establish and maintain the required public record as described in Section VI;
• EPA considers activities related to maintaining and monitoring
institutional controls to be eligible costs under Section 128(a);
• Conduct limited site-specific activities, such as assessment or cleanup,
provided such activities establish and/or enhance the response program
and are tied to the four elements. In addition to the requirement per
CERCLA Section 128(a)(2)(C)(ii) to obtain public comment on cleanup
plans and site activities, EPA strongly encourages states and tribes to seek
public input regarding the priority of sites to be addressed and solicit input
from local communities, especially potential environmental justice
communities, communities with a health risk related to exposure to
hazardous waste or other public health concerns, economically
disadvantaged or remote areas, and communities with limited experience
working with government agencies. EPA will not provide Section 128(a)
funds solely for assessment or cleanup of specific brownfields sites; site specific activities must be an incidental part of an overall Section 128(a)
work plan that includes funding for other activities that establish or
enhance the four elements;
• Capitalize a revolving loan fund (RLF) for brownfields cleanup under
CERCLA Section 104(k)(3). These RLFs are subject to the same statutory
requirements and cooperative agreement terms and conditions applicable
to RLFs awarded under Section 104(k)(3). Requirements include a 20
percent match on the amount of Section 128(a) funds used for the RLF, a
prohibition on using EPA cooperative agreement funds for administrative
costs relating to the RLF, and a prohibition on using RLF loans or
subgrants for response costs at a site for which the recipient may be
potentially liable under Section 107 of CERCLA. Other prohibitions
contained in CERCLA Section 104(k)(4) also apply; or
• Purchase environmental insurance or develop a risk-sharing pool,
indemnity pool, or insurance mechanism to provide financing for response
actions under a state or tribal response program.

1. Timely survey and inventory

2. Oversight and enforcement authorities or other mechanisms;

3. Mechanisms and resources to provide meaningful opportunities for public participation;

4. Mechanisms or approval of a cleanup plan and verification and certification that cleanup is complete.

Region 9 EPA- AZ, CA, HI, NV, AS, GU
Eugenia Chow
75 Hawthorne St. (SFD-6-1)
San Francisco, California 94105
Phone (415) 972-3160 Fax (415) 947-3520
Glenn Kistner
75 Hawthorne St. (SFD-6-1)
San Francisco, California 94105
Phone (415) 972-3004 Fax (415) 947-3520

EPA Regional Compliance Assistance Coordinator

EPA is divided into ten regions. Each region has designated a central Compliance Assistance Coordinator to oversee regional actions. Regional compliance assistance activities include developing and conducting workshops and training sessions, responding to questions from the regulated community, developing and distributing guidance materials and providing direct on-site compliance assistance. To get information about your local Compliance Assistance Coordinator, select your state or territory from this list or from the map below.

Region/State Contact Web site
Region 1 (CT, MA, ME, NH, RI, VT) Mary Dever
(617) 918-1717
Region 2 (NJ, NY, PR, VI) Linda Longo
(212) 637-3565
Region 3 (DE, DC, MD, PA, VA, WV) Makeba Morris
(215) 814-2187
Region 4 (AL, FL, GA, KY, MS, NC, SC, TN) Wes Hardegree
(404) 562-9629
Region 5 (IL, IN, MI, MN, OH, WI) Donna Howard
(312) 886-6739
Region 6 (AR, LA, NM, OK, TX) Israel Anderson
(214) 665-3138
Region 7 (IA, KS, MO, NE) Neal Gilbert
(913) 551-7985
Region 8 (CO, MT, ND, SD, UT, WY) Kaye Mathews
(303) 312-6889
Region 9 (AS, AZ, CA, GU, HI, MP, NV, Trust Territories) Hilary Hecht
(415) 947-4266
Region 10 (AK, ID, OR, WA) Gabriela Carvalho
(206) 553-6698


Local Government Compliance Assistance Center

EPA, working with industry, academic institutions, environmental groups, and other agencies, sponsors compliance assistance centers that address the requirements of specific sectors.

The Local Government Environmental Assistance Network (LGEAN) is a "first-stop shop" providing environmental management, planning, funding, and regulatory information for local government elected and appointed officials, managers and staff.  LGEAN enables local officials to interact with their peers and others online.

Latest News and Updates

Local Governments Reimbursement Program
In the event of a release (or threatened release) of hazardous substances, EPA may reimburse local governments for expenses related to the release and associated emergency response measures. The Local Governments Reimbursement (LGR) Program provides a "safety net" of up to $25,000 per incident to local governments that do not have funds available to pay for response actions.

Operation Fresh Start is designed to empower individuals and communities as they recover from hurricanes, floods, earthquakes, and other natural disasters by providing resources and tools that can help rebuild communities, businesses, and homes using sustainable principles and technologies. Use the links located on the left to explore the many valuable resources available on this Web site.

Several organizations, agencies and businesses are fostering sustainable recovery and rebuilding after Hurricane Katrina and Hurricane Rita. Some online resources are linked below, ranging from news postings to restoration plans for individual buildings, neighborhoods, or regions. Someof these endeavors invite professional or pubic input in the recovery process, while others function as technical resources for environmentally, economically, and socially just rebuilding.

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

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


We believe that the underlying issues persist.


Innocent and “Unknowing” Purchasers

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


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

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

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

Description of Modification

Corrected Title

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

Eligible Applicants

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

Additional Information on Eligibility:

Agency Name

National Science Foundation


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

Link to Full Announcement

NSF Program Description 09-1179

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

NSF support
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Synopsis Modification History

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

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

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

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

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

Modification of Private Contracts

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

Modification of Government Contracts

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

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

A Primer in Constitutional law

Congress' enumerated powers



Shares of fertilizer producers soar

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

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

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

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


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











One of the essential minerals needed by our body, zinc is present in almost each and every cell. It is required by the body in the performance of a number of functions, though in very small amounts. It plays a vital role in the action of enzymes, which are nothing, but the proteins that are responsible for initiating important chemical reactions in the body. Zinc is also required for proper growth and sexual maturation of an individual. The mineral can be easily found in the food items that we eat in the daily course of life. So, if you take a balanced diet, complete with salads and fruits, there will be enough zinc in your body to perform all the necessary functions. Read on to explore the list of foods items that are high in zinc.
Zinc Rich Foods

  • All-bran cereal
  • Almonds
  • Artichoke
  • Avocado
  • Bananas
  • Beef
  • Blackberries
  • Brazil nuts
  • Brewers yeast
  • Cashew
  • Cauliflower
  • Cheese
  • Chicken (dark meat)
  • Chickpeas (including hummus and falafel)
  • Crab, Dungeness
  • Cucumber
  • Eggs
  • Fish
  • Kidney beans
  • Kiwi fruit
  • Lettuce
  • Lima beans
  • Liver
  • Milk
  • Olives
  • Onion
  • Oysters
  • Parmesan Cheese
  • Peaches
  • Peanuts
  • Peas
  • Pecan Nuts
  • Pine Nuts
  • Pork
  • Pumpkin seeds
  • Radish
  • Shellfish
  • Soya beans (including tofu products)
  • Spinach
  • Squash
  • Strawberries
  • Sunflower seeds
  • Sweet potatoes
  • Tomatoes
  • Turkey (dark meat)
  • Walnuts
  • Wheat Bran
  • Wheat Germ
  • Yogurt Benefits Of Zinc
    • Zinc is very helpful in skin treatment . It is very useful in treating acne and pimples. Zinc also helps in assisting the body to normalize the amount of oils on the skin. It not only helps in removing the acne and pimples but also keeps the skin supple and smooth. Taking foods rich in zinc will help you keep your skin healthy.
    • Eczema is mainly caused because of the deficiency of zinc in the body. Taking zinc supplements or foods rich in zinc will help in restoring the healing property of the body and treating eczema.  
    • Zinc promotes the synthesis of collagen, which is a necessary element of proper wound healing. Deficiency of zinc can lead to delayed wound healing. Take zinc rich foods on a regular basis.
    • The deficiency of zinc can cause enlargement of prostrate which in turn make it vulnerable to cancer. Take zinc supplements or foods rich in zinc such as yogurt, walnut, wheat bran, sweet potatoes to combat the problem.
    • If you are planning to lose weight , taking zinc rich food would be your best bet. Zinc not only assists in losing the weight but also controls the appetite making it easier for a person on diet.
    • If you are among those for whom a weather change brings about an attack of cold, then taking zinc supplements or zinc rich food would be good for you. Zinc helps in decreasing the severity of cold.
    • Zinc is also very essential for the proper functioning and repairing of DNA. Pregnant women should take zinc rich food for the proper growth of fetus.
    • It is also helpful in relieving from chronic fatigue. According to the doctors, fish oils contain which is very rich in zinc no other medications are required for curing chronic fatigue except the intake of fish oil rich in zinc content.
    • Zinc is also helpful in case of night blindness. Incorporate zinc rich foods in your diet especially, pork, olives, liver etc.
    • Zinc also acts as antioxidants and helps in regulating biological functions. It helps in diabetes control, increases immunity, keeps the stress level in check, and regulates the enzyme functions for a proper development.


What can foods high in copper do for you?

  • Help your body utilize iron
  • Reduce tissue damage caused by free radicals
  • Maintain the health of your bones and connective tissues
  • Help your body produce the pigment called melanin
  • Keep your thyroid gland functioning normally
  • Preserve the myelin sheath that surrounds and protects your nerves

What events can indicate a need for more high-copper foods?

  • Iron deficiency anemia
  • Blood vessels that rupture easily
  • Bone and joint problems
  • Elevated LDL cholesterol and reduced HDL cholesterol levels
  • Frequent infections
  • Loss of hair or skin color
  • Fatigue and weakness
  • Difficulty breathing and irregular heart beat
  • Skin sores

Excellent food sources of copper include calf's liver , crimini mushrooms , turnip greens and blackstrap molasses.



What is copper?

First recognized in the 1870's as a normal constituent of blood, copper is a trace mineral that plays an important role in our metabolism, largely because it allows many critical enzymes to function properly. Although copper is the third most abundant trace mineral in the body (behind iron and zinc), the total amount of copper in the body is only 75-100 milligrams, less than the amount of copper in a penny. Copper is present in every tissue of the body, but is stored primarily in the liver, so concentrations of the mineral are highest in that organ, with lesser amounts found in the brain, heart, kidney, and muscles.

How it Functions

What is the function of copper?

Copper is an essential component of many enzymes. Each of the copper-containing enzymes discussed below has a distinct function, indicating that copper plays a role in a wide range of physiological processes including iron utilization, elimination of free radicals, development of bone and connective tissue, and the production of the skin and hair pigment called melanin.

Iron Utilization

Approximately 90% of the copper in the blood is incorporated into a compound called ceruloplasmin, which is a transport protein responsible for carrying copper to tissues that need the mineral. In addition to its role as a transport protein, ceruloplasmin also acts as an enzyme, catalyzing the oxidation of minerals, most notably iron.

The oxidation of iron by ceruloplasmin is necessary for iron to be bound to its transport protein (called transferrin) so that it can be carried to tissues where it is needed. Because copper is necessary for the utilization of iron, iron deficiency anemias may be a symptom of copper deficiency.

Elimination of Free Radicals

Superoxide dismutase (SOD) is a copper-dependent enzyme that catalyzes the removal of superoxide radicals from the body. Superoxide radicals are generated during normal metabolism, as well as when white blood cells attack invading bacteria and viruses (a process called phagocytosis). If not eliminated quickly, superoxide radicals cause damage to cell membranes. When copper is not present in sufficient quantities, the activity of superoxide dismutase is diminished, and the damage to cell membranes caused by superoxide radicals is increased. When functioning in this enzyme, copper works together with the mineral zinc, and it is actually the ratio of copper to zinc, rather than the absolute amount of copper or zinc alone, that helps the enzyme function properly.

Development of Bone & Connective Tissue

Copper is also a component of lysyl oxidase, an enzyme that participates in the synthesis of collagen and elastin, two important structural proteins found in bone and connective tissue. Tyrosinase, a copper-containing enzyme, converts tyrosine to melanin, which is the pigment that gives hair and skin its color.

Melanin Production

As a part of the enzymes cytochrome c oxidase, dopamine hydroxylase, and Factor IV, copper plays a role in energy production, the conversion of dopamine to norepinephrine and blood clotting, respectively. Copper is also important for the production of the thyroid hormone called thyroxine and is necessary for the synthesis of phospholipids found in myelin sheaths that cover and protect nerves.

Deficiency Symptoms

What are deficiency symptoms for copper?

Because copper is involved in many functions of the body, copper deficiency produces an extensive range of symptoms. These symptoms include iron deficiency anemia, ruptured blood vessels, osteoporosis, joint problems, brain disturbances, elevated LDL cholesterol and reduced HDL cholesterol levels, increased susceptibility to infections due to poor immune function, loss of pigment in the hair and skin, weakness, fatigue, breathing difficulties, skin sores, poor thyroid function, and irregular heart beat.

Despite the fact that most Americans consume less than recommended amounts of copper in their diet, these symptoms of copper deficiency are relatively rare. However, certain medical conditions including chronic diarrhea, celiac sprue, and Crohn's disease result in decreased absorption of copper and may increase the risk of developing a copper deficiency. In addition, copper requires sufficient stomach acid for absorption, so if you consume antacids regularly you may increase your risk of developing a copper deficiency. Inadequate copper status is also observed in children with low protein intake and in infants fed only cow's milk without supplemental copper.

Toxicity Symptoms

What are toxicity symptoms for copper?

In recent years, nutritionists have been more concerned about copper toxicity than copper deficiency. Copper does not come from copper plumbing.

Excessive intake of copper when zinc levels are also low, may be a contributing factor in many medical conditions..

Postpartum depression has also been linked to high levels of copper. ( I think it's linked with the post partum) This is because copper concentrations increase throughout pregnancy to approximately twice normal values, and it may take up to three months after delivery for copper concentrations to normalize. Since excess copper is excreted through bile, copper toxicity is most likely to occur in individuals with liver disease or other medical conditions in which the excretion of bile is compromised.

The toxic effects of high tissue levels of copper are seen in patients with Wilson's disease, a genetic disorder characterized by copper accumulation in various organs due to the inadequate synthesis of ceruloplasmin (the protein that transports copper through the blood) by the liver. Wilson's disease primarily effects the liver, kidneys, and brain causing degenerative physiological changes (including cirrhosis of the liver, muscular rigidty and spastic contraction, and emotional disturbances) that are fatal if untreated. The treatment of Wilson's disease involves avoidance of foods rich in copper and any supplements containing copper and drug treatment with chelating agents that remove the excess copper from the body.

In 2000, the Institute of Medicine at the National Academy of Sciences established the following Tolerable Upper Intake Levels (ULs)for copper:

  • 0-12 months: not possible to establish a TUL, sources of copper must be from food and formula only
  • 1-3 years: 1000 micrograms
  • 4-8 years: 1000 micrograms
  • 9-13 years: 5000 micrograms
  • 14-18 years: 8000 micrograms
  • 19 years and older: 10,000 micrograms
  • Pregnant women 14-18 years: 8000 micrograms
  • Pregnant women 19 years and older: 10,000 micrograms
  • Lactating women 14-18 years: 8000 micrograms
  • Lactating women 19 years and older: 10,000 micrograms

How do cooking, storage, or processing affect copper?

It has been written that some Foods that require long-term cooking can also have their copper content substantially reduced. This is nonsense, cooking does not affect their original copper content. There is also no evidence that the processing of whole grains dramatically reduces copper content. In wheat, for example, the conversion of the whole grain into 66% extraction wheat flour (where 34% of the original grain is removed from the flour and discarded) results in a drop of about 70% in the original copper that was present. So what? You eat the chaff. If the copper was available in the soil it would be in the plant.

Many vegetables and whole grains now appear to be lower in copper than they were during the mid-1900's. The depletion of copper from soils is believed to be responsible for this lowered amount of copper.

Factors that Affect Function

Which factors might contribute to a deficiency of copper?

Unlike most minerals, copper appears to undergo absorption up into the body from the stomach. Proper levels of stomach acid are important for this absorption. For this reason, individuals with compromised stomach acid (hypochlorhydria) may be at increased risk of copper deficiency.

Because zinc can compete with copper in the small intestine and interfere with its absorption, persons who supplement with inappropriately high levels of zinc and lower levels of copper may increase their risk of copper deficiency.

Drug-Nutrient Interactions

What medications affect copper?

Oral contraceptives (birth control pills) increase the absorption of copper.

Copper may enhance the anti-inflammatory effects of the non-steroidal anti-inflammatory medications including etodolac (Lodine), ibuprofen, nabumetone (Relafen), naproxen, and oxaprozin.

The following medications may cause a decrease in copper levels:

  • AZT (Azidothymidine, Zidovudine, Retrovir) is used in the treatment of HIV infection and AIDS. AZT may reduce blood levels of copper.
  • Famotidine (Pepcid, Pepcid AD) and Nizatidine (Axid, Axid AR) belong to the class of drugs known as histamine blockers, which prevent the release of acid into the stomach and are used in the treatment of ulcers and acid indigestions. Because copper requires sufficient stomach acid for absorption, long-term use of famotidine may lead to copper deficiency.
  • Antacids (for example, Tums) may reduce copper absorption by decreasing the amount of hydrochloric acid in the stomach.
  • Penicillamine (Cuprimine, Depen) is a chelating agent used to reduce toxic copper deposits in people with Wilson's disease.

Nutrient Interactions

How do other nutrients interact with copper?

Copper is known to react with a variety of other nutrients, including iron, zinc, molybdenum, sulfur, selenium, and vitamin C. However, with respect to food, we haven't seen research evidence showing that other nutrients—including iron and zinc—interfere with absorption of copper. Similarly, while copper is known to interact with a variety of minerals once it has been absorbed up into the body, we have not seen research showing food-related problems in this regard. The situation is somewhat different, however, when it comes to dietary supplements that often provide minerals (or vitamins) in much higher doses than can be obtained from food. There's some evidence, although not conclusive, that zinc supplements, when taken at 50 milligrams or more on a daily basis over an extended period of time, can lower availability of copper. There's also some evidence (once again not conclusive) that high supplemental doses of vitamin C—in a range approaching 1,000 milligrams or more—may decrease copper availability. While not applicable to adults, there is also some evidence that in the formula feeding of infants, too much iron in a formula can lower absorption of copper from that formula.

Health Conditions

What health conditions require special emphasis on copper?

Copper may play a role in the prevention and/or treatment of the following health conditions:

  • Allergies
  • Anemia
  • Baldness
  • Bedsores
  • Heart Disease
  • Hypothyroid disease
  • Leukemia
  • Osteoporosis
  • Periodontal disease
  • Rheumatoid arthritis
  • Stomach ulcers

Form in Dietary Supplements

What forms of copper are found in dietary supplements?

As a dietary supplement, copper is primarily found in complex with organic acids like picolinic acid and gluconic acid, and amino acids like glycine and lysine. Inorganic forms of copper, like copper sulfate, are also available. All of these delivery forms have merit, and the choice of a specific copper supplement often depends on the need for amino acids or organic acids that are chelated with (attached to) copper.

Food Sources

What foods provide copper?

Excllent sources of copper include calf's liver , crimini mushrooms , turnip greens and molasses .

Very good sources of copper include chard, spinach, sesame seeds , mustard greens, kale , summer squash , asparagus , eggplant , and cashews .

Good sources of copper include peppermint, tomatoes , sunflower seeds , ginger, green beans, potato, and tempeh .

Introduction to Nutrient Rating System Chart

In order to better help you identify foods that feature a high concentration of nutrients for the calories they contain, we created a Food Rating System. This system allows us to highlight the foods that are especially rich in particular nutrients. The following chart shows the World's Healthiest Foods that are either an excellent, very good, or good source of copper. Next to each food name, you'll find the serving size we used to calculate the food's nutrient composition, the calories contained in the serving, the amount of copper contained in one serving size of the food, the percent Daily Value (DV%) that this amount represents, the nutrient density that we calculated for this food and nutrient, and the rating we established in our rating system. For most of our nutrient ratings, we adopted the government standards for food labeling that are found in the U.S. Food and Drug Administration's "Reference Values for Nutrition Labeling."

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




E.P.A. to Revoke Mining Permit

By THE ASSOCIATED PRESS Published: October 15, 2010

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



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


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

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




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


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

Terris, bonis et calallis rehabendis post purgationem. A writ for a clerk to recover his lands, goods, and chattels formerly seized, after he had cleared himself of the felony of which he was accused, and delivered to his ordinary to be purged. Reg. Orig. 68.

ii. Local Governments
Section 2504 of the Lender Liability Act validates the portion of the CERCLA Lender Liability Rule that addresses involuntary acquisitions by government entities. State or local governments that acquire property by involuntary means such as bankruptcy, tax delinquency, or abandonment are excluded from the definition of “owner or operator” in CERCLA, and therefore are not liable under CERCLA Section 107(a). CERCLA § 101(20)(D). There is also a third-party affirmative defense available for government entities that acquire property “by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation.” CERCLA § 101(35)(A)(ii).
EPA’s 1995 enforcement policy on involuntary acquisition by lenders and local governments was followed with the guidance memorandum, Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (October 20, 1995). These two policy memoranda clarified some of the issues surrounding involuntary municipal acquisition of properties. EPA provided further clarification on these issues in a fact sheet, The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities issued in December 1995. EPA continues to follow as guidance the Lender Liability Rule and the two 1995 guidance documents and subsequent fact sheets when addressing local government liability.
State or local government entities that acquire property after the enactment of the 2002 Brownfields Amendments and that are concerned
about potential contamination may want to seek the advice of counsel before taking title to ensure that they will have a liability protection (e.g., BFPP status or protection under the involuntary acquisition provision or third-party defense). State or local government entities should note that to achieve BFPP status, an entity must conduct AAI prior to purchase and comply with the other BFPP requirements. Conducting proper AAI prior to purchase is also important for state and local government entities relying on the BFPP protection for brownfield grant eligibility.

Abandoned mine cleanup ruling vs W.Va. upheld

November 08, 2010 @ 06:30 PM

The Associated Press

CHARLESTON, W.Va. (AP) — West Virginia regulators must obtain permits when they clean up abandoned mines.

That's the decision from a federal appellate court panel Monday in a case filed by conservation groups against state Environmental Protection Secretary Randy Huffman.

Three judges from the 4th U.S. Circuit Court of Appeals affirmed U.S. District Judge Irene Keeley's ruling requiring permits.

Keeley faulted the DEP for not setting acid mine drainage limits at 18 sites in northern West Virginia. Her January 2009 order concluded the state violated the Clean Water Act and allowed too much iron, manganese and aluminum into waterways.

Huffman argued that sets a dangerous precedent. A DEP spokeswoman did not immediately return a call to The Associated Press.


Emphatically saying what the law is, terminating the national emergency;

reforming legislation, abolishing holistic accounting & jurisprudence.

In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be sufficient, and if the same shall be denied, all the matters in the act mentioned and provided, applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for such of the periods mentioned in the act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter therein-before mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.


Empowering Safe Lands & Watersheds

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



By What Warrant he claims to have, use, and enjoy the liberties, privileges, and franchises aforesaid.

A writ which lies against any person or corporation that usurps any franchise or liberty against the king without good title, and is brought against the usurpers to show by what right or title they hold or claim such franchise or liberty. It also lies for misuser or nonuser of privileges granted ; and, by Bracton, it may be brought against one who intrudes himself as heir into land, ftc. Old Nat. Br. 149.











The EPA Permitorium

The agency's regulatory onslaught has stopped new power generation.

President Obama is now retrenching after his midterm rebuke, and one of the main ways he'll try to press his agenda is through the alphabet soup of the federal regulators. So a special oversight priority for the new Congress ought to be the Environmental Protection Agency, which has turned a regulatory firehose on U.S. business and the power industry in particular.

The scale of the EPA's current assault is unprecedented, yet it has received almost no public scrutiny. Since Mr. Obama took office, the agency has proposed or finalized 29 major regulations and 172 major policy rules.





Department of Energy pours funds into cleantech industry

By Dana Hull Posted: 11/14/2010

When Congress passed the landmark stimulus bill in 2009, more than $90 billion was targeted at clean energy -- the largest investment of federal dollars in the energy sector ever. Nearly $3 billion was awarded to the Bay Area from the Department of Energy alone.

The infusion of money came at a critical juncture, filling a void when the global financial crisis and U.S. recession made other sources of funding hard to come by.

The money ranged from a $1.37 billion loan guarantee for Oakland-based BrightSource Energy, which broke ground on its Ivanpah solar power plant in California's Mojave desert last month, to manufacturing tax credits and dozens of direct grants to local cleantech companies, universities, labs and cities. San Jose will use stimulus funds to replace 1,500 streetlights with energy-efficient and programmable LED lights.

"Without a doubt, this is probably one of the clearest successes of the Obama administration," said Steve Westly, a venture capitalist who invests in several cleantech companies. "In the middle of the recession it was hard for companies to get credit, and the DOE stepped in at the right time. It was stunningly smart, and the private sector followed in massive ways."

While the Department of Energy used stimulus dollars to fund mundane projects such as appliance rebates and weatherization assistance, it is also funneling money into fast-evolving cleantech industries, from electric vehicle battery and component manufacturing plants to advanced biofuels. The Recovery Act earmarks $4.5 billion to modernize the electric grid, $2.4 billion for carbon capture and storage, $2 billion for science research and $1.6 billion for renewables like biomass, solar and wind -- emerging sectors with a lot of Silicon Valley players.

"One of the big things we want to do is re-establish cleantech manufacturing," said Matt Rogers, a Piedmont resident and McKinsey consultant who managed the DOE's Recovery Act dollars. "We are not a substitute for, but a complement to, the venture capital community, and it's a very competitive process."

Competitive is an understatement. The department received more than 30,000 requests for funding, 80 percent of which were rejected. Several Silicon Valley cleantech companies hired consultants, often at considerable expense, to polish their applications, which usually required a "narrative" describing the company's technology, leadership team and business model as well as technical documents. Some applications ran more than 2,000 pages; some consultants commanded fees above half a million dollars.

The DOE's disbursement of Recovery Act funds has its critics. In September, Sen. Dianne Feinstein sent Energy Secretary Steven Chu a letter questioning why California, which has 12 percent of the nation's population, received only 6.6 percent of the money the department had available from the stimulus bill.

In Silicon Valley, much of the grumbling has centered on the lack of speed. The Energy Department is not designed to handle requests for loans and grants quickly, and many have urged the department to streamline the process.

"If there is a concern, it's that the DOE is not currently set up to operate at the speed of business, particularly the technology business," said Carl Guardino, president of the Silicon Valley Leadership Group. "When you take 18 to 24 months, that's three to four business cycles in Silicon Valley."

Coulomb Technologies, a Campbell start-up that makes charging stations for electric vehicles, first applied for an Energy Department grant in May 2009. Months passed, and by the fall CEO Richard Lowenthal heard it was likely out of the running.

But in January, the company received a letter from the Energy Department that essentially said: We like your application but we want to see some changes. Can Coulomb get formal agreements in place with three automakers? And with nine cities? In 45 days?

"If you think the DOE is just going to hand you a check -- it's not like that," said Lowenthal, who hired a team of people to manage Coulomb's application. "They make you earn that money. But I'm not complaining--they are spending public dollars."

Coulomb scrambled and nailed down partnerships with Ford, Chevrolet and smart USA. The work was worth it: the company was awarded a $15 million grant to install 5,000 residential and public charging stations in nine geographically diverse regions: The Bay Area, Austin, Detroit, Los Angeles, Orlando, New York, Redmond, Wash., Sacramento and Washington, D.C. Coulomb received its first DOE check in June of this year, 13 months after applying. On Tuesday, the company is scheduled to install the first of its charging stations funded by the grant in San Francisco.

"We had to prove that the electric vehicles were coming," said Lowenthal. "I see the DOE as an early adopter customer who is helping us to scale, and they are creating an electric vehicle industry in the United States."

Soladigm, a Milpitas start-up that makes energy-efficient windows, was awarded a $3.47 million grant to take its window technology out of the lab and into production.

"We are moving at a fast pace as a company, and this grant will help us go faster," said Soladigm CEO Rao Mulpuri. "We'll hire scientists that we couldn't have otherwise, and we'll get to commercialization quicker."

The Bay Area is widely regarded as the epicenter of cleantech in the United States, followed by Los Angeles, because of venture capital investment. California attracted $2.1 billion in venture capital in 2009, according to the Cleantech Group, far more than any other state.

But as Recovery Act dollars are doled out across the country, local cleantech companies have also benefitted in indirect ways. Several of the nation's leading utilities were awarded significant Energy Department grants to help them modernize the electric grid. In turn, they've hired Silicon Valley smart grid start-ups like eMeter in San Mateo and Silver Spring Networks in Redwood City.

AltaRock Energy in Sausalito, a geothermal company backed by Khosla Ventures and Kleiner Perkins, was awarded a $21.4 million grant to demonstrate its technology near Bend, Ore.

"Venture capitalists and the Department of Energy are both believers in trying to take a vision and turning it into a reality," said AltaRock CEO Don O'Shei. "VCs put their faith in technology, and see it as a way to change the economic landscape. The government is also thinking about the environment, energy independence and national security, and they want to catalyze technologies that will create whole new industries. If you look forward five years, and this is successful, the money will be like space program money."


“Toxic” doesn't do justice to Iron Mountain runoff

Iron Mountain Mine strategy outlines specific action to ensure a protective remedy within the Superfund statutory and regulatory framework, as established by the Comprehensive Environmental Response, Compensation, and Liability Act and the National Oil and Hazardous Substances Pollution Contingency Plan. Opportunities to decrease the environmental footprint and maximize the environmental outcome of a cleanup exist throughout a project life. Iron Mountain Mine Superfund Remediation Strategy sets out current regulation of the Superfund Remedial Program to eliminate the demand placed on the EPA during delisting.

Many of the strategic actions can be addressed through policy and guidance compliance, resource development, and attention to the rule of law:

  • Maximize use of renewable energy to power site operations, and identify methods for increasing energy efficiency;
  • Remedy optimization starting in fiscal year 2010;
  • Maximize efficient use of natural resources and energy during remedial actions;
  • Integrate energy sources and encourage best operational practices
  • Perfect and deploy technology for the reuse of treated water and increase potable water supply and irrigation with conservation, recharge of aquifers;
  • Identify additional onsite or offsite uses of materials or energy otherwise considered waste;
  • Include language in statements of work for removal action, remedial design, and remedial action procurement contracts; and
  • Help communities establish networks and training programs that enable citizens to gain proficiency and expertise.


Court for the Eastern District shall be held at Redding.

Read more:

28 USC 84 - Sec. 84. California

US Code - Title 28: Judiciary and Judicial Procedure

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

October 11, 2010 CERCLA 'Arranger' Liability Narrowed


See also Madison 's explanation of the purpose of the 9 th Amendment in response to Hamilton 's objection in Federalist 84 :

1. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general (i.e. Federal) government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the 4 th resolution (i.e. the original draft of the 9 th amendment)” (James Madison, U.S. House of Representatives, June 8, 1789)

 2. “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution” (An early version of the 9 th amendment—the last clause of the 4 th resolution—as submitted by James Madison, June 8, 1789).



CERCLA allows PRPs to seek contribution from one another in order to apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs.

We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is “yes.”


Treasury puts AIG TARP loss at $5 billion

Posted by Colin Barr October 5, 2010 3:51 pm

The government's most controversial bailout is still under water, if just barely.

Treasury said Tuesday in its two-year retrospective on the Troubled Asset Relief Program that the net cost of TARP's AIG ( AIG ) bailout at current market prices is $5.1 billion. The cost of the AIG bailout has been subject of considerable head scratching in recent days, with TARP winding down and the terms of federal assistance to AIG changing for the umpteenth time .


Moody's Investors Service affirmed American International Group's (AIG) A3 long-term issuer rating and negative outlook, reflecting the rating agency's concerns about the possible end of government support for the insurer.

The Moody's announcement comes in the wake of AIG's announcement of its plan to repay the U.S. Government.

Under the plan, AIG said it would repay its $20 billion direct debt to the Federal Reserve Bank of New York (FRBNY) and the $26 billion in interest the FRBNY has in two special purpose vehicles (SPVs) using its own resources and proceeds from other assets, including an initial public offering of American International Assurance Co. Ltd (AIA) on the Hong King Stock Exchange and proceeds from the $15.5 billion sale of American Life Insurance Co. (ALICO) to MetLife Inc.

Additionally, as part of the plan, $49.1 billion of preferred shares held by the Treasury Department would be converted into about 1.66 billion shares of AIG common stock. The Treasury will then sell the shares to the public over time.

Bruce Ballentine, Moody's lead analyst for AIG, said in a statement, “The proposed repayment plan signals AIG's progress in stabilizing its core insurance operations and exiting noncore businesses. It also points the way toward a sustainable capital structure.”

However, Moody's added that the plan “hastens the end of explicit government support for AIG, which has been an important consideration in the company's ratings.”

Moody's noted that the government will retain significant ownership of AIG for the near term, but the rating agency said it “believes that the ownership stake and implicit support will decline over the next couple of years. Therefore, the ratings of AIG and its subsidiaries will increasingly depend on their stand-alone credit profiles, raising the risk of downgrades if the credit metrics do not improve as expected.”

To attain a stable rating, Moody's said AIG must improve the intrinsic credit profiles of Chartis and SunAmerica Financial Group (SFG). AIG must also exit or de-risk noncore businesses, maintain robust liquidity within its major operations, and develop a standalone capital structure consistent with the company's current ratings.

Moody's said AIG could be downgraded if it fails to “improve certain credit metrics of the core insurance operations, such as profitability, reserve adequacy at Chartis and investment performance at SFG.”

Retention of noncore business risks that could strain capital and liquidity, and an inadequate standalone capital structure could also lead to a downgrade, Moody's said.

AIG Puts Rail-Car Arm Up for Sale


American International Group Inc. has put its rail-car subsidiary on the auction block, another small step by the giant insurer as it seeks to shed noncore assets to repay its bailout and regain independence from government ownership.

AIG Rail Services Inc., a Chicago business that is part of AIG's financial-services division, was set up around five years ago and provides rail-car leases and equipment financing to shipping companies, railroads and others in the North American rail industry. The company, a relatively small player in this space, leases out tank cars and freight cars used for transporting fuel, commodities, building materials and ...

Nov. 19, 2010, 11:53 a.m. EST

Fitch affirms AIG's 'BBB' issuer default rating

SAN FRANCISCO (MarketWatch) -- Fitch Ratings on Friday affirmed American International Group Inc.'s /quotes/comstock/13*!aig /quotes/nls/aig ( AIG 42.73 , +0.17 , +0.40% ) long-term issuer default rating at BBB and upgraded the ratings on the company's hybrid securities to BB- from B. The ratings agency noted that AIG's financial profile, when viewed without the the benefit of government involvement, has improved. "The upgrade of the ratings on AIG's subordinated hybrid securities reflects Fitch's reduced concerns about the potential for AIG to elect contractually available interest deferral options attached to these securities," it said. The outlook is stable.

EPA Observes Children's Health Month

Dam Inspection By Owner



9. Compliance With Applicable Law. The Site Operator shall comply with all
applicable federal and state laws as provided in the SOW. The activities conducted pursuant to
this Consent Decree, if approved by the Oversight Agency, shall be considered to be
consistent with the NCP.

Resource Record Details

Guidelines and Specifications for Flood Hazard Mapping Partners


The Safe Watershed Reform-Act (SWR) sets a vision for the watersheds of the United States to be safe. While we have certainly made progress toward that vision since 1972, we face challenges in attaining it.

In 1972 when the CWA was enacted, traditional point sources were thought to be the dominant cause of pollution. Now we have a better understanding of safe watersheds.


Over the last 30 years National Water Quality Inventories have documented pathogens as a