IRON MOUNTAIN MINES INSTITUTE

 

"Pardon me?" (...one directed more towards the plaintiffs. )

" I think that I've been de facto discharged?" Mr. Bill Logan.

How Much Circumstantial Evidence Is Enough To Establish Liability?

More Than Just Proximity and a Bad Name

MR. ARMAN: So how in the heck do you pardon me? How am I

expected to run my business with EPA stopping me on every

move that I make? Pardon me?

THE COURT: All right. That sounds more like a

rhetorical question and one directed more towards the plaintiffs.

I don't need to hear anything further. I've made my rulings.

 

Mr. Arman, you realize that Mr. Hutchens is not an attorney; correct?

MR. ARMAN: Yes, I do.

THE COURT: You recognize that he can't represent the

corporation, and he can't represent you in a court of law.

Do you understand that?

MR. ARMAN: No, I do not.

THE COURT: Do you understand, Mr. Hutchens, that --

MR. ARMAN: He's representing me, your Honor,

personally.

THE COURT: Well, you understand he's not a lawyer;

correct?

MR. ARMAN: I do know he's not a lawyer, but he should

have been one a long time ago.

Evidence that merely “presents probabilities rather than proof,” “relies upon a collection of facts that could be summarized as 'if it is there, it must be theirs,'” or is “vague and imprecise, of questionable reliability, and therefore not sufficiently probative to create an issue for trial” is insufficient to hold a party liable under CERCLA

THE FIVE REQUIRED ELEMENTS OF A LAWSUIT

A. Real Injury or Wrong.

B. Jurisdiction.

C. Statute of Limitations.

D. Immunity.

E. Facts and Evidence.

MR. CORCORAN: Your Honor, let me give you the docket

numbers. First, docket number 1261, the original notice of

joinder, that was only Mr. Hutchens. The one spot signed by

Mr. Arman included 1266 which is actually three documents.

It consists of a petition to reopen, a counterclaimants' memo

or memorandum --

THE COURT: I have that in front of me.

MR. CORCORAN: -- and an interpleader. All those were

filed I believe under single docket number of 1266. Of those

two, the petition and the interpleader, were signed by

Mr. Arman. Another was 1270 which are objections. 1269,

also objections. 1271, preconference statement. We are not

alleging that all those were not signed by Mr. Arman.

THE COURT: Say that again. Which ones?

MR. CORCORAN: There's a document that was filed this

morning by Mr. Hutchens. It was served on us last Friday,

the 15th. The title of it is "Petitioners' Preconference

Responses and Reply to Order of Honorable Judge John A.

Mendez," and then it goes on.

THE COURT: Okay.

MR. CORCORAN: That document, it has about 12 pages,

maybe 10 pages of case citations. At page 13, it begins

narrative. And in the first few paragraphs of that,

Mr. Hutchens acknowledges that he was signing Mr. Arman's

name, but he indicates that it was with various forms of

authorization.

THE COURT: Okay. For the record, Mr. Hutchens, you

are not an attorney; is that correct?

MR. HUTCHENS: That's correct.

THE COURT: Okay.

MR. CORCORAN: The subsequent filings by Mr. Hutchens

and Mr. Arman collectively I think evidence his presumption

of having joined or intervened in this case.

THE COURT: They do. Mr. Corcoran, give me the docket

number again.

MR. CORCORAN: Your Honor, it's docket 1261.

THE COURT: Okay.

MR. CORCORAN: The date is March 10th that it was filed.

THE COURT: Got it.

MR. CORCORAN: Excuse me. It was entered on

March 11th. It was dated March 10th.

THE COURT: And that's the first sort of appearance

made by Mr. Hutchens; is that correct?

MR. CORCORAN: Yes. And I should add one thing, your

Honor. The plaintiffs actually received some documents that

are styled as filings that never actually appeared to end up

in the record. So we have been dealing with some additional

documents, and you should be aware that that's part of the

confusion and prejudice that we're claiming.

THE COURT: When is the first time that you got notice

that Mr. Hutchens was attempting to get involved in this

case?

MS. PADILLA: I think when he filed these pleadings

styled notice of joinder. We did file an opposition jointly

with the United States to that.

THE COURT: Okay.

MR. CORCORAN: Your Honor, if I could add one thing

about his involvement. In the various filings we've seen,

his claim of authority derives from two sources. One is a

joint venture which he has never produced and never

evidenced. But the other is a power of attorney which we do

have. I believe if I'm recalling correctly, and I can check

if you'd like, that that was dated March 13th of this year,

2008.

THE COURT: Okay. Mr. Arman, you are a party to this

case. Is there anything you want to say?

MR. ARMAN: Yes, your Honor.

THE COURT: Go ahead.

MR. ARMAN: If I'm permitted.

THE COURT: You are permitted.

MR. ARMAN: I'd like to raise a complaint.

THE COURT: Go ahead.

MR. ARMAN: I've been restricted from using my

property since March of last year. I have to go through two

gates. I have to get permission to go through these gates.

I have to -- I am monitored over 30 different locations on my

property. And if I'm not reported in, there is some record

kept of that. I can't use my property. I can't use it. I

cannot enjoy it. I cannot spend a weekend up there. I've

had different contractors help me on different projects.

They have to be off the property at 3:00 o'clock. They

cannot come up there on a weekend. It is a total absolute

disaster of owning a property, a beautiful property like Iron

Mountain Mines, and I cannot use it because the people

sitting right over there are keeping me from using it. And I

think that that is terrible. And I'd like to have you know

this, that I am being treated horribly as an owner of

property, and I asked -- I have lawyers, and I asked one of

them, he said well, Ted, they're just penalizing you. The

whole issue is penalizing you. Penalizing me over some

incident that occurred back in March where this group, AIG,

and that group are utilizing all of my buildings and they're

not paying me any rent. And I figured anything that's left

in my buildings belongs to me, and I will treat it that way.

And there's so many other issues,

THE COURT: Okay. Mr. Arman, go ahead.

MR. ARMAN: Yes, your Honor. The government put a

lien on my property which makes it almost impossible for me

to raise money. I've had all kinds of opportunities for

money to come in, but that lien is blocking it. And,

secondly, we have enough projects going up there to where we

could make enough money to pay off anything that we need to

pay off, and yet EPA interferes with my business where I

cannot operate. And some of the people are sitting right

here who are doing that interference.

White House issues scientific integrity memo

Guidelines are intended to help increase public trust in science
President Obama's science and technology advisor issued a memo to federal science agencies Friday to guide them in making rules to ensure scientific integrity.
The memo, which applies to executive branch departments and agencies such as the Department of Agriculture and the National Science Foundation, is “several steps in the right direction,” said Al Teich, the director of science policy at the American Association for the Advancement of Science (AAAS).
Director of the White House Office of Science and Technology Policy John Holdren sent out the guidelines after a March 2009 memo by Obama emphasized the need for public trust in science. In that memo, Obama highlighted principles of scientific integrity that he said would be at the core of his administration's approach to science policy.
New guidelines

The new memo is meant to provide further guidance to the heads of federal scientific departments and agencies, the White House announced Friday.
Scientific integrity in government. The memo outlines guidelines for open communication among federal scientists and the public, including making data available online.? 
Public communications. Agencies are required to offer “articulate and knowledgeable” spokespersons to explain scientific findings to the media and public. The memo requires that agencies put mechanisms in place to resolve disputes about decisions to proceed with or refuse media interviews.
Federal advisory committees. These committees, or FACs, are tasked with providing scientific advice for policy decisions. The memo requires transparency in recruiting committee members. It also requires that any conflict of interest information be publicly available. Finally, agencies are to be prohibited from revising committee recommendations, protecting the independence of FACs.
Professional development for federal scientists. Agencies and departments must encourage scientists to publish and present freely. Scientists should also be allowed to participate in professional enrichment activities like sitting on journal editorial boards.
Some of the changes are significant, said AAAS's Teich, including a rule that federal scientists must put their results into context by highlighting uncertainties and including best- and worse-case scenarios. [Read: White House Wonders if Climate Will Be Hostage to Politics ]
“There's a natural tendency on the part of people to want to put their research results in the most favorable light,” Teich told LiveScience. The requirements will force federal researchers to “take a different perspective, and a much more open and balanced perspective, if in fact it's implemented the way it's written,” Teich said.
In the memo, Holdren gave department and agency heads 120 days to report their progress in setting rules to meet the guidelines.
“All in all, we're pleased, but the word ‘appropriate' appears a half a dozen times in this document, and that means there's a lot of discretion for these agencies as to how they implement it,” Teich said, adding, “They've talked the talk, now we'll see if they walk the walk, and we hope they do.”
Politics and scienceThese guidelines may help prevent situations where political ideology interferes with the communication of scientific information, according to Neal Lane, a professor of public policy at Rice University. These incidents included the editing of an Environmental Protection Agency report to the point where it glossed over the risks of climate change .
“Those are the kinds of things that should not ever happen in any administration, whatever the party is,” he told LiveScience. “These agencies are large complex organizations with many layers and sometimes you can find people who don't know the science in a position to influence what the agency puts out about the science.”
Hopefully, these guidelines will prevent this from happening in the future, according to Lane.
Wendy Wagner, a professor at the University of Texas School of Law and a member scholar at the Center for Progressive reform had some reservations about the lack of guidance in the memo for how agencies should use non-federal science data in setting regulations.
“On the whole, however, the new policy is an important step forward,” Wagner said in a statement. “Hopefully it will be followed by many more positive directives on science-policy in the not too distant future.”
Michael McPhaden, president of the American Geophysical Union and a National Oceanic and Atmospheric Adminsitration scientist, lauded the guidelines emphasis on peer review, transparency, and the lifting of restrictions on government scientists' activities in professional societies.
“This is really a revolutionary document,” McPhaden told LiveScience.
LiveScience Senior Writer Wynne Parry contributed reporting to this article.

A Watershed Moment for the Clean Water Act

The Fifth Circuit erred in according absolute priority to the subject-matter jurisdiction requirement on the ground that it is nonwaivable and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. Although the character of the two jurisdictional bedrocks unquestionably differs, the distinctions do not mean that subject-matter jurisdiction is ever and always the more “fundamental.” Personal jurisdiction, too, is an essential element of district court jurisdiction, without which the court is powerless to proceed to an adjudication. Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 , 382. In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies–lack of complete diversity–rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by §1332, but not by Article III of the Constitution, see State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523 , 530—531, is absent. In contrast, Ruhrgas relies on the constitutional due process safeguard to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 , 702. The Steel Co. jurisdiction-before-merits principle does not dictate a sequencing of jurisdictional issues. A court that dismisses for want of personal jurisdiction, without first ruling on subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles underlying Steel Co. Pp. 8—10. RUHRGAS AG v. MARATHON OIL

In most instances, subject-matter jurisdiction will involve no arduous inquiry, and both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first. Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex state-law question, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.

145 F.3d 211, reversed and remanded.

   

Ginsburg, J., delivered the opinion for a unanimous Court.   

   

EX PARTE APPLICATION FOR ORDER CONTINUING HEARING DATE ON THE UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT THEREOF

   

  ADMISSION OF ADMINISTRATIVE RECORD - CERTIFICATE OF APPEAL

The ongoing environmental calamity at Iron Mountain Mine has created new major and modified existing stationary sources that would require air permits prior to beginning emissions that becomes an enforceable part of the new process for determining the required emission control technology - criteria pollutants  such as sulfur dioxide, nitrogen dioxide, carbon dioxide, carbon monoxide, particulate and volatile organic compounds exceed a “significance” threshold, the permittee is required to analyze available and technically feasible control technology with the goal of selecting the best available control technology (BACT) for new or modified emissions.

PHYEW! I BEG YOUR PARDON.

CERCLA EPCRA Administrative Reporting Exemption For Air Releases

Travelin' in Time: Iron Mountain has rich history

Ah ... the good old days

A major health and environmental hazard because of the huge volumes of poisonous sulphurous dioxide gases released into the air. The company made token attempts to prevent the spread of the poisonous gases, resulting in Superior Court lawsuits that closed the smelter by court order in 1907. ...

No one lives on the mountain today. There is only one remaining privately owned piece of property on the mountain — Iron Mountain Mine, and that is owned by Ted Arman. All the rest of the mountain property is owned by an agency of the federal government — the Bureau of Reclamation, the U.S. Forest Service, or the Department of Reclamation. 

Iron Mountains Mines, Inc. purchased the property in 1976. In 1983, Iron Mountain Mine was placed on the Environmental Protection Agency's National Priority List, making it eligible as a Superfund cleanup site. Cleanup investigative work by the federal government began that year.

NEWS FROM TED ARMAN - RECENT NOTICE -COURT FILING

The last reforestation was attempted on the mountain after World War II to replace the trees that had been killed from the smelter fumes. Even though 2.6 million seedlings were planted, the acidic soil and slope instability rendered the project a failure. Nature had largely healed itself since then until the Motion fires 2 years ago destroyed thousands of acres.

Now we have irrigation available, we should try again.

The cartel "is the most pervasive and harmful criminal antitrust conspiracy ever uncovered," declared Joel Klein, chief of the Justice Department's antitrust division. The price-fixing ring "hurt the pocketbook of virtually every American consumer, anyone who took a vitamin, drank a glass of milk, or had a bowl of cereal," he said.

Fulfilling the Promise of Earth Day (continued)

 

MEETING THE CHALLENGE Today, Superfund is more flexible, more effective, more sensible, and more affordable -- seeking to achieve the best environmental results for the least cost.

But the proof of Superfund's success is found in our backyards.

500,000 TONS READY & WAITING IN THE BRICK FLAT PIT

Because of innovative thinking and flexibility, a site that was once the subject of community unrest has been transformed into a center of community pride. When the Federal government settled with the PRPs ..., two Trusts were formed... current and former landowners. The Trusts facilitated the cleanup of the site and its eventual redevelopment.

FEMA and FEMA programs.

Voluntary Private Sector Preparedness Program (PS-Prep)
The small business preparedness plan is part of the Private Sector Preparedness Accreditation and Certification Program (PS-Prep) - a 9/11 Commission-recommended voluntary partnership between DHS and the private sector to improve businesses' preparedness and resilience for disasters and emergencies. PS-Prep enables private sector entities to receive emergency preparedness certification from a DHS program created in coordination with the private sector.

Homeland Security Presidential Directive-7 December 17, 2003

(800) 621-FEMA / TTY (800) 462-7585
3 Step Guide for Assistance

 

SUBJECT:

Critical Infrastructure Identification, Prioritization, and Protection

REPORT TO CONGRESS.—Not later than 210 days after the date of enactment of this Act, the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security and the Committee on Transportation and Infrastructure of the House of Representatives a report detailing—
(1) any action taken to implement section 524(b) of the Homeland Security Act of 2002, as added by subsection (a), including a discussion of—
(A) the separate methods of classification and certification for small business concerns (under the meaning given that term in section 3 of the Small Business Act (15 U.S.C. 632)) as compared to other private sector entities; and American National Standards Institute’s
National Fire Protection Association Standard on Disaster/
Emergency Management and Business Continuity Programs
(ANSI/NFPA 1600).’’.
(e)
CLERICAL AMENDMENTS.—The table of contents in section 1(b) of such Act is further amended by adding at the end the following:
‘‘Sec. 523. Guidance and recommendations. ‘‘Sec. 524. Voluntary private sector preparedness accreditation and certification program.’’.
(f) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated such sums as may be necessary to carry out this section and the amendments made by this section.
SEC. 902. RESPONSIBILITIES OF THE PRIVATE SECTOR OFFICE OF THE DEPARTMENT.
(a) IN GENERAL.—Section 102(f) of the Homeland Security Act of 2002 (6 U.S.C. 112(f)) is amended—
(1) by redesignating paragraphs (8) through (10) as paragraphs (9) through (11), respectively; and
(2) by inserting after paragraph (7) the following:
‘‘(8) providing information to the private sector regarding
voluntary preparedness standards and the business justification
for preparedness and promoting to the private sector the adoption of voluntary preparedness standards;’’.
(b) PRIVATE SECTOR ADVISORY COUNCILS.—Section 102(f)(4) of the Homeland Security Act of 2002 (6 U.S.C. 112(f)(4)) is amended—
(1) in subparagraph (A), by striking ‘‘and’’ at the end;
(2) in subparagraph (B), by inserting ‘‘and’’ after the semicolon at the end; and
(3) by adding at the end the following: ‘‘(C) advise the Secretary on private sector preparedness issues, including effective methods for— ‘‘(i) promoting voluntary preparedness standards to the private sector; and
‘‘(ii) assisting the private sector in adopting voluntary preparedness standards;’’.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

---oOo---

BEFORE THE HONORABLE JOHN A. MENDEZ, JUDGE

---oOo---

UNITED STATES OF AMERICA ,

Plaintiff,

vs.

IRON MOUNTAIN MINES, INC.,

and T.W. ARMAN,

Defendants.

/

No. Civ. S-91-768

---oOo---

REPORTER'S TRANSCRIPT

STATUS CONFERENCE

THURSDAY, DECEMBER 17, 2008

---oOo---

Reported by: KELLY O'HALLORAN, CSR #6660

APPEARANCES

For the Plaintiff:

UNITED STATES DEPARTMENT OF JUSTICE

ENVIRONMENTAL AND NATURAL RESOURCES DIVISION

P.O. Box 7611

Washington , DC 20044

BY: LARRY CORCORAN

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

P.O. Box 70550

OAKLAND , CA 94612

BY: MARGARITA PADILLA

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

NATURAL RESOURCES LAW SECTION

1300 I Street

Sacramento , CA 95814

BY: SARA J. RUSSELL

For the Defendant:

LOGAN & GILES, LLP

2175 North California Blvd., Suite 910

Walnut Creek , CA 94596

BY: WILLIAM A. LOGAN, JR.

 

SACRAMENTO , CALIFORNIA

THURSDAY, DECEMBER 17, 2008, 11:00 A.M.

---oOo---

THE CLERK: Calling Civil S-91-768; United States

versus Iron Mountain Mines, Inc., et al.

Counsel, state your appearances for us, please.

THE COURT: Slowly state your appearances. Go ahead.

MR. LOGAN: Your Honor, William Logan, counsel of

record for the defendants Iron Mountain Mines, Inc., and

Mr. T. W. Arman. Mr. Arman is in the courtroom with me

today.

THE COURT: Okay. Mr. Logan. Next.

MR. CORCORAN: Larry Corcoran with the Department of

Justice, your Honor, representing the United States and the

Environmental Protection Agency.

THE COURT: All right.

MS. PADILLA: Margarita Padilla, your Honor, from the

California Department of Justice. I represent the California

Department of Toxic Substances Control.

MS. RUSSELL: Sara Russell also with the California

Department of Justice representing the California Regional

Water Quality Control Board.

THE COURT: Okay. How did we get here? Well, on

November 17th, 2008, I got a document entitled "Plaintiffs'

Request for Status Conference to Address Filings by John F.

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 3 of 32

2

Hutchens."

Is Mr. Hutchens here?

MR. HUTCHENS: I am, your Honor.

THE COURT: All right. And where is Mr. Arman?

MR. LOGAN: He's sitting over there.

THE COURT: Okay. Mr. Arman is here as well. All

right.

MR. ARMAN: I'm here, your Honor.

THE COURT: In the ECF, the document filed by the

plaintiffs, the request for status conference indicated that

there was a proposed order. But when I click on the proposed

order, all I get is the plaintiffs' request for status

conference again.

Was there a proposed order submitted? And if so, can

I have a copy of it?

MR. CORCORAN: The answer is I thought there was.

THE COURT: So did I. At least it indicates in the

docket there's a proposed order. But as I said, when I

clicked on it, all I got was a second copy of your request.

MR. CORCORAN: I will confess I don't have it with me.

I can tell you what it was supposed to have said, and we can

certainly get it for you, your Honor.

THE COURT: That's okay.

MR. LOGAN: Your Honor, if I may, I happen to have a

copy of a proposed order. I think we were also served by

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 4 of 32

3

regular mail. It has a document attached to my copy, an

Exhibit A, which is an e-mail from me.

THE COURT: I do have Exhibit A.

MR. LOGAN: I'll be happy to provide my copy to the

Court.

THE COURT: Okay. If I could have a copy of the

proposed order, that would be great.

MR. LOGAN: But I don't know if the e-mail was

intended to be included with the proposed order.

MR. CORCORAN: I believe it was an exhibit to the

request for status conference, the application for status

conference.

THE COURT: Okay. And I do want to indicate for the

record I do have Exhibit A, which is an October 16, 2008,

e-mail from Mr. Logan to Mr. Hutchens. It's an e-mail, at

the top it says from John Hutchens to Sara Russell, Larry

Corcoran, John Lyons. And then below that, it says from

William Logan to John Hutchens. So it looks like it's an

e-mail from Mr. Logan, from you to Mr. Hutchens.

MR. LOGAN: If I may, your Honor, one point on that

e-mail.

THE COURT: Go ahead.

MR. LOGAN: That was intended to be a privileged

communication. There may be an issue of inadvertent waiver.

I'm not sure. But for the record, I'd just like to say that

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 5 of 32

4

that e-mail was intended to be a privileged communication.

THE COURT: So it's Mr. Hutchens that gave it to the

plaintiffs?

MR. LOGAN: Correct, your Honor.

THE COURT: Okay. I don't want to get off track here,

but it raised the question is Mr. Hutchens your client?

MR. LOGAN: No, your Honor, he is not.

THE COURT: Then how do you claim a privilege on the

e-mail?

MR. LOGAN: My client asked me to communicate directly

with Mr. Hutchens on matters related to this case.

THE COURT: And how does that make the e-mail

privileged?

MR. LOGAN: As I understood it from my client,

Mr. Hutchens and my client had some sort of joint venture and

so that Mr. Hutchens had an appropriate interest in the

proceeding with my client that made the continued privileged

communications appropriate.

THE COURT: Okay. All right. Getting back to the

plaintiffs' request for the status conference, the plaintiffs

provided some history to the Court with respect to this case

and then indicate that Mr. Hutchens has filed a number

documents which, according to plaintiffs, have introduced a

great deal of confusion into this case which needs to be

resolved, and hopefully we will resolve those today. Among

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 6 of 32

the issues that plaintiffs wish to address at the status

conference are:

One, whether Mr. Hutchens may join or intervene in

this case. In other words, whether he's made a timely

showing that he has a legal interest which will be impeded or

impaired by a decision in this case and that his interests

are not adequately represented by the present defendants.

And even if he's made such a showing, whether joinder or

intervention at this late date should be granted under

applicable standards and case law. Plaintiffs submit that

Hutchens has utterly failed to meet the requirements for

joinder or intervention, citing docket number 1263.

Two, determine who has prepared and who has signed the

documents bearing the signature of Mr. Arman.

Three, determine whether Mr. Logan continues to

represent defendants Arman and IMMI and, if not, determine

whether Mr. Arman will continue to represent himself and

which attorney will represent IMMI.

Four, if the Court is inclined to hold a hearing on

any of Hutchens' recent filings, to address how Hutchens must

clarify his requests or motions in order to allow the Court

and parties to understand them; to require Hutchens to state

with specificity the facts upon which he relies in making his

allegations and requests; determine whether, to the extent

Hutchens challenges prior rulings of the Court, he must

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 7 of 32

6

comply with Local Rule 78-230(k); and to get guidance from

the Court as to which of the issues raised by Hutchens the

Court wishes the plaintiffs to respond, if any.

According to the plaintiffs -- and Mr. Logan, let me

know if you disagree in terms of the posture of this case --

back on December 8, 2000, over eight years ago, the Court

entered a consent decree setting the liability of defendant

Rhone-Poulene, a successor to Stauffer Chemical Company. And

then defendants Arman and IMMI, current owners of the site,

were not parties to that settlement combined in the 2000

consent decree.

Then on September 30, 2002, this Court granted

plaintiffs' summary judgment motion as to CERCLA liability of

the defendants Arman and IMMI. That's docket number 1241,

filed on October 1, 2002.

Any disagreement with either of those representations,

Mr. Logan?

MR. LOGAN: None, your Honor.

THE COURT: Okay. And then there were judicially

supervised settlement efforts between plaintiffs Arman and

IMMI which were unsuccessful.

So the only remaining issue in this case is the amount

of the unreimbursed response costs of plaintiffs which the

Court has already ruled that the defendants Mr. Arman and

IMMI are liable.

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 8 of 32

7

And according to the plaintiffs' briefing, I thought I

saw this in here, the plaintiffs plan to file a motion for

summary judgment on that issue. Is that correct? You just

haven't done it yet?

MR. CORCORAN: Correct, your Honor.

THE COURT: Where did I see that? Here it is. Page

7. Plaintiffs plan to file a motion for summary judgment to

recover past response costs incurred through February 1996 by

the United States , and through March 1996 by DTSC. Those

dates were selected at a hearing on April 25, 1996, and fact

discovery was closed on September 9, 1996, as to the first

phase of plaintiffs' costs.

Mr. Logan, let me begin with you and I guess focus on

question number 2. Are you still in this case? And if so,

in what capacity?

MR. LOGAN: Well, I think I am not. In looking at the

Court's local rules, I think that unless Mr. Arman is

prepared to discharge me now in open court with the Court's

approval, I would need to file a formal motion to withdraw.

A little background for the Court, however.

THE COURT: Okay. Let me just make sure I'm clear for

the record. You have not filed a motion to withdraw.

MR. LOGAN: That's correct.

THE COURT: Go ahead and remain seated as long as you

keep the microphone close to you so we can hear you.

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 9 of 32

8

MR. LOGAN: Thank you, your Honor.

THE COURT: It's actually number 3. The question is

determine if Mr. Logan continues to represent defendants

Arman and IMMI.

MR. LOGAN: After the judicially supervised settlement

negotiations did not result in a settlement, each of the

parties, we filed a joint status conference statement. This

was in May of 2005. I think May 20th exactly. It's an

important document for the Court because it's the last report

by the parties in terms of the status of the case, and it

includes the defendants' positions on the remaining liability

and damages issues. And there's, to cut it short, there's a

very important question as to whether that consent decree

applies to the past response costs. It was our position that

it does. Plaintiffs have received plenty of money. To the

extent Mr. Arman has liability or Iron Mountain Mines does,

we're not there yet. The plaintiffs have been overpaid.

Plaintiffs say otherwise, that they somehow carved out these

past response costs so they could go after Mr. Arman. That's

obviously not an issue for today, but I think it's important

that the Court understand that.

THE COURT: Well, what was the September 30, 2002,

summary judgment motion?

MR. LOGAN: That was on CERCLA liability only.

THE COURT: Okay.

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9

MR. LOGAN: And it did not address once, if liability

were found, didn't plaintiffs have any response costs that

were presently recoverable. And as I understand it, what

they're talking about is response costs through 1996. So

that will be the issue for the Court if the plaintiffs

proceed.

As I indicated in the joint status report, we did not

at the time believe that settlement discussions had been

fully exhausted, and we urged the Court to return the parties

to further settlement discussions. And I also indicated that

if the Court were to set a further active case schedule in

terms of either discovery or further motion practices that

there may be a motion to withdraw.

That is essentially where we are now. The Court never

responded to the joint status report. Plaintiffs' counsel

sent a couple of letters to Judge Levi requesting that he set

a status conference. There was no response to any of those

requests. So the case has been dormant for the last three

and a half years.

THE COURT: Okay.

MR. LOGAN: So we're kind of where we were in May

of 2005. I think that I've been de facto discharged. I have

a hunch Mr. Arman may want to be heard today. So if he's

prepared to discharge me and if that's satisfactory to the

Court, we would accept that. We can submit a proposed order

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10

to the Court for the record.

THE COURT: Mr. Arman.

MR. ARMAN: Yes, sir.

THE COURT: Just remain seated and make sure the

microphone's close to you.

MR. ARMAN: Yes, your Honor.

THE COURT: The question is are you prepared to

dismiss Mr. Logan from representing you? The problem,

Mr. Logan, is that doesn't allow me to discharge you as

counsel for the corporation. So even if Mr. Arman dismisses

you as his personal counsel, the corporation has to be

represented.

MR. LOGAN: I had intended to include he's the senior

officer of the corporation. And there had been a prior

motion to withdraw by some predecessor counsel in this case

as to Mr. Arman and the corporation. That motion was

granted, and I think Judge Levi gave them some period of time

to find substitute counsel.

THE COURT: What motion was granted?

MR. LOGAN: There was a motion to withdraw by the

Baker & McKenzie firm some years ago.

THE COURT: Who originally represented him?

MR. LOGAN: Who had represented Mr. Arman and Iron

Mountain Mines, the corporation. And that motion had been

granted with the proviso that Mr. Arman had a certain period

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11

of time within which to seek substitute counsel for the

corporate entity. I mean I would suggest if we make the

formal motion, I think that's where we're ultimately going to

end up. If the Court would like a formal motion, obviously

we're happy to make it.

THE COURT: I'd prefer a formal motion because I'm not

inclined to grant a motion to withdraw absent new counsel

being available to represent the corporation, because

obviously the corporation can't represent itself. The

question is whether you have, in fact, relieved Mr. Logan of

his duties as your attorney, or whether you want to do that

today, or what you understand your relationship or status is

with respect to Mr. Logan continuing to represent you and the

corporation.

MR. ARMAN: Yes, your Honor. I do not mind relieving

him as our attorney.

THE COURT: Okay. Despite that, I think you need to

file a formal motion to withdraw.

MR. LOGAN: Okay. Understood.

THE COURT: You can indicate in the motion that

Mr. Arman indicated that he was not opposed to the motion,

but I think I want it in writing.

MR. LOGAN: Okay.

THE COURT: Mr. Arman, apparently there have been

documents bearing your signature. And Mr. Corcoran, which

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documents, I'm looking at page 8 of your request for status

conference, number 2, which documents in particular are you

referring to there?

MR. CORCORAN: Your Honor, can I answer your question

in two parts?

THE COURT: Go ahead and sit down. Just make sure

you've got a microphone in front of you so my court reporter

can hear you.

MR. CORCORAN: Your Honor, let me give you the docket

numbers. First, docket number 1261, the original notice of

joinder, that was only Mr. Hutchens. The one spot signed by

Mr. Arman included 1266 which is actually three documents.

It consists of a petition to reopen, a counterclaimants' memo

or memorandum --

THE COURT: I have that in front of me.

MR. CORCORAN: -- and an interpleader. All those were

filed I believe under single docket number of 1266. Of those

two, the petition and the interpleader, were signed by

Mr. Arman. Another was 1270 which are objections. 1269,

also objections. 1271, preconference statement. We are not

alleging that all those were not signed by Mr. Arman. A

number of them appear to be his signature or something other

than what had originally bothered us, which was what appeared

to be a digital copy of his signature which you could

recognize in part by a discontinuous straight line across the

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13

T.

The addendum I wanted to add to this, your Honor, is

if you look at the document that Mr. Hutchens filed this

morning, and I'm not sure if it's reached the Court, there's

an admission there that some early documents were not signed

by Mr. Hutchens. They were signed by Mr. -- excuse me --

were not signed by Mr. Arman, were instead signed by

Mr. Hutchens.

THE COURT: Say that again. Which ones?

MR. CORCORAN: There's a document that was filed this

morning by Mr. Hutchens. It was served on us last Friday,

the 15th. The title of it is "Petitioners' Preconference

Responses and Reply to Order of Honorable Judge John A.

Mendez," and then it goes on.

THE COURT: Okay.

MR. CORCORAN: That document, it has about 12 pages,

maybe 10 pages of case citations. At page 13, it begins

narrative. And in the first few paragraphs of that,

Mr. Hutchens acknowledges that he was signing Mr. Arman's

name, but he indicates that it was with various forms of

authorization.

THE COURT: Okay. For the record, Mr. Hutchens, you

are not an attorney; is that correct?

MR. HUTCHENS: That's correct.

THE COURT: Okay.

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MR. HUTCHENS: I do have a copy of what was filed this

morning for you if you'd like.

THE COURT: That's okay. I can pull it up.

Mr. Arman, you realize that Mr. Hutchens is not an

attorney; correct?

MR. ARMAN: Yes, I do.

THE COURT: You recognize that he can't represent the

corporation, and he can't represent you in a court of law.

Do you understand that?

MR. ARMAN: No, I do not.

THE COURT: Do you understand, Mr. Hutchens, that --

MR. ARMAN: He's representing me, your Honor,

personally.

THE COURT: Well, you understand he's not a lawyer;

correct?

MR. ARMAN: I do know he's not a lawyer, but he should

have been one a long time ago.

THE COURT: Do you understand that it's against the

law for someone to, one, impersonate a lawyer or to file

pleadings in a court of law proposing that he is acting as

counsel. And Mr. Hutchens, I'm going to advise you of your

Fifth Amendment rights. First of all, that you have a right

to remain silent. That anything you say could and would be

used against you in a court of law. And that impersonating a

lawyer or trying practice law in a court without a valid

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15

license is a crime. And I want to make sure the record's

clear that you've been so advised of your rights and that you

be very careful as to what you say here today. And I would

suggest that you not saying anything without advice of

counsel given the just initial representation by Mr. Arman

that he believes that you're representing him.

Go ahead, Mr. Arman.

MR. ARMAN: Yes. He's not representing me as an

attorney or anything to do with the legal portion of being an

attorney. He never has and never will.

THE COURT: Well, do you understand that he's filed

documents in this court, and apparently either you've

authorized him to sign your name or he's signed your name on

your behalf?

MR. ARMAN: Not as an attorney, your Honor. Only as

helping me with my problem, but not as an attorney.

THE COURT: That's a distinction that is not a

distinction. Only attorneys can practice in a court of law,

or you, Mr. Arman, can represent yourself. You can represent

yourself. You can't hire someone who is not an attorney to

represent you. I want to make sure you understand that.

Do you understand that?

MR. ARMAN: I do.

THE COURT: Okay. All right. I don't want to, as far

as the plaintiffs, as far as that question number 2, given

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the possible criminal liability, I'm not going to delve any

further into that. I don't think it's critical in terms of

resolving the issues that you've asked me to resolve here to

determine who's prepared and signed documents.

MR. CORCORAN: I understand, your Honor.

THE COURT: And again, given the agreement and

admission by all that Mr. Hutchens is not a licensed attorney

and is not a party to this case and is not authorized to file

any pleadings in this case, that that's as far as the Court

will go in terms of the record.

The issue, I think the key one is whether Mr. Hutchens

may join or intervene in this case and whether he has some

type of legal interest.

Mr. Logan, you don't represent Mr. Hutchens, so I

assume -- maybe I shouldn't assume, but is there anything you

want to say on behalf of Mr. Hutchens, or do you want to get

involved in this issue, or are you going to just back out of

it?

MR. LOGAN: We do not represent Mr. Hutchens. I have

nothing to say on his behalf.

THE COURT: Okay. Let me ask plaintiffs which of the

documents purports to act as a motion to join or intervene.

MR. CORCORAN: Your Honor, the one we treated as a

motion to join or intervene was docket 1261, filed on

March 10th. It was titled simply a notice of joinder, and it

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17

was presumed to join by filing the statement.

THE COURT: Okay. I want to pull that up. Hang on.

MR. CORCORAN: Your Honor, if I could add one thing.

THE COURT: Go ahead.

MR. CORCORAN: The subsequent filings by Mr. Hutchens

and Mr. Arman collectively I think evidence his presumption

of having joined or intervened in this case.

THE COURT: They do. Mr. Corcoran, give me the docket

number again.

MR. CORCORAN: Your Honor, it's docket 1261.

THE COURT: Okay.

MR. CORCORAN: The date is March 10th that it was

filed.

THE COURT: Got it.

MR. CORCORAN: Excuse me. It was entered on

March 11th. It was dated March 10th.

THE COURT: And that's the first sort of appearance

made by Mr. Hutchens; is that correct?

MR. CORCORAN: Yes. And I should add one thing, your

Honor. The plaintiffs actually received some documents that

are styled as filings that never actually appeared to end up

in the record. So we have been dealing with some additional

documents, and you should be aware that that's part of the

confusion and prejudice that we're claiming.

THE COURT: Was Mr. Hutchens involved in any way back

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in May of 2005, Mr. Logan?

MR. LOGAN: Not to my knowledge, your Honor.

THE COURT: Or Mr. Corcoran.

MR. CORCORAN: Your Honor, I should say that I'm new

to the case in the last year. I have no personal knowledge.

I'm not aware of any. Ms. Padilla and Ms. Russell from the

state were involved earlier.

THE COURT: Ms. Padilla or Ms. Russell, was

Mr. Hutchens involved in any way?

MS. PADILLA: Not to our knowledge.

THE COURT: When is the first time that you got notice

that Mr. Hutchens was attempting to get involved in this

case?

MS. PADILLA: I think when he filed these pleadings

styled notice of joinder. We did file an opposition jointly

with the United States to that.

THE COURT: Okay.

MR. CORCORAN: Your Honor, if I could add one thing

about his involvement. In the various filings we've seen,

his claim of authority derives from two sources. One is a

joint venture which he has never produced and never

evidenced. But the other is a power of attorney which we do

have. I believe if I'm recalling correctly, and I can check

if you'd like, that that was dated March 13th of this year,

2008.

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THE COURT: Okay. Mr. Arman, is there anything you

want to add or say?

Well, let me start first with Mr. Logan. Other than I

know you're going to file a motion to withdraw, is there

anything you want to add or say for purposes of this status

conference, other than I know that you have on behalf of

Mr. Arman requested that the Court at least respond to the

May 2005 joint status conference, which I will now that

you've drawn it to my attention take another look at it and

then respond to it and the request in that joint status

conference. But other than that, is there anything else you

want to add for purposes of today's conference.

MR. LOGAN: I think, your Honor -- and I thank the

Court for focusing on the status conference statement. I

have some thoughts, but I'm concerned and I do not want to

take a position or say something that is contrary to my

client's wishes, and it's not entirely clear to me what my

client's wishes are in terms of this proceeding. So I would

prefer to remain silent on that.

THE COURT: Okay. Mr. Arman, you are a party to this

case. Is there anything you want to say?

MR. ARMAN: Yes, your Honor.

THE COURT: Go ahead.

MR. ARMAN: If I'm permitted.

THE COURT: You are permitted.

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MR. ARMAN: I'd like to raise a complaint.

THE COURT: Go ahead.

MR. ARMAN: I've been restricted from using my

property since March of last year. I have to go through two

gates. I have to get permission to go through these gates.

I have to -- I am monitored over 30 different locations on my

property. And if I'm not reported in, there is some record

kept of that. I can't use my property. I can't use it. I

cannot enjoy it. I cannot spend a weekend up there. I've

had different contractors help me on different projects.

They have to be off the property at 3:00 o'clock. They

cannot come up there on a weekend. It is a total absolute

disaster of owning a property, a beautiful property like Iron

Mountain Mines, and I cannot use it because the people

sitting right over there are keeping me from using it. And I

think that that is terrible. And I'd like to have you know

this, that I am being treated horribly as an owner of

property, and I asked -- I have lawyers, and I asked one of

them, he said well, Ted, they're just penalizing you. The

whole issue is penalizing you. Penalizing me over some

incident that occurred back in March where this group, AIG,

and that group are utilizing all of my buildings and they're

not paying me any rent. And I figured anything that's left

in my buildings belongs to me, and I will treat it that way.

And there's so many other issues, I don't want to bring it up

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21

right now. I just covered that portion of it if you don't

mind, your Honor.

THE COURT: Mr. Corcoran or Ms. Padilla or

Ms. Russell, do you want to respond?

MR. CORCORAN: I do, your Honor.

THE COURT: If you remain seated so you're near the

mike.

MR. CORCORAN: Sorry.

THE COURT: That's okay.

MR. CORCORAN: First, and I think most important, of

course, it's not relevant to anything we're dealing with at

the moment, but it's also not true. There was an incident in

March of the preceding year.

THE COURT: March of 2007?

MR. CORCORAN: That's my understanding. Well, there

was an incident in the last two years, about early 2007, I

believe, in which two things actually happened. One is some

cable was taken by one of Mr. Arman's contractors, a salvager

really for the copper. That cable was important to the

operation of the cementation plant. It was meant as a backup

facility. It had existed before EPA started working. It was

to remain in working order in case there were problems with

the primary treatment facility.

In addition to that incident where it was reported as

a theft, it was investigated but nothing came of it, there

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22

was also an incident in which Mr. Arman came on the property

and refused to follow the CB radio procedures. The purpose

of these procedures are that the site is on Iron Mountain , as

the name implies. It is a windy construction road that works

through it. For safety reasons, the EPA contractor on-site

requires that people on the road use a CB and report their

position so they can avoid collisions with vehicles going up

and down. Mr. Arman refused to cooperate in that. And for

that reason, he was on that occasion denied access. He has

not been denied access in other instances now that he has

agreed to observe the CB radio procedures, which are safety

procedures. He has access at any time day or night that he

likes. The issue that he's raising is his contractors. The

EPA still requires that his contractors either be in his

presence, in which case they can be there after 3:00 o'clock,

on the weekends, or if they're not in his presence, two

things are required. One is they can only be there during

business hours because of this prior problem of contractors

taking things and damaging things. The EPA contractor

on-site, the site manager, wants to be able to have personnel

who can assure that there aren't any problems. They also,

they being EPA and its own contractor, require that anyone

coming on the site claiming authority for Mr. Arman first

identify why they're there, what they're going to be doing.

You might call it a work plan, but it can be oral. And,

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23

secondly, that they establish that they actually have

authority from Mr. Arman.

So in that sense, although EPA's purpose is to protect

itself, it's also protecting Mr. Arman from people who claim

to be working for him but are not. And, indeed, there has

been at least one incident in which someone did attempt to

misuse his property. Admittedly, it's a little different.

They were using it as collateral for, I believe, it was for a

loan.

THE COURT: Let me stop you there, because I probably

should listen to the first sentence you said, which is none

of which is relevant to any issue in this case. Right?

MR. CORCORAN: Yes, your Honor.

THE COURT: Okay. All right. Taking up the real

purpose for the status conference today, Mr. Logan, I'll just

begin with you and reiterate, if you would, please, get a

motion to withdraw on file as soon as possible so I can set a

hearing for that. Coordinate with Mr. Vine, obviously, and

the local rules in terms of setting the hearing so we can

take up that issue and see how this case before the Court is

going to proceed.

Mr. Corcoran, Ms. Padilla, and Ms. Russell, in terms

of your anticipated plan to file a summary judgment motion,

I'd like to see that as soon as possible as well.

MR. CORCORAN: Your Honor, in fairness, I should tell

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24

you I'm new both to the field and to this. I'm told that

will take on our side at least three months.

THE COURT: Okay.

MR. CORCORAN: I'm anticipating that we would be doing

this towards the end of spring, early summer.

THE COURT: That's fine.

MR. CORCORAN: Okay.

THE COURT: Mr. Arman, as far as you're concerned, you

need to start looking for a new attorney. You need to work

with Mr. Logan in locating a new attorney. As I indicated,

Mr. Hutchens cannot represent you. He cannot represent the

corporation.

In terms of Mr. Hutchens' requests to intervene, that

is not properly before the Court. Mr. Hutchens, you are

barred from filing any further papers with this Court until

you are properly made a party to this case. My suggestion is

that you hire a lawyer if you want to try to intervene and

have that lawyer educate you on local rules, proper filings.

Any and all filings that have been accepted by this Court

from Mr. Hutchens, the Court is going to order that those be

stricken because they're not properly filed before this

Court. They probably should not have been filed, but we

accepted them anyway. I'm going to strike all of

Mr. Hutchens' filings to date. He is not an attorney. He is

not a party. He has not properly filed a motion to join.

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25

And in that respect, that answers the plaintiffs' question.

You do not have to respond to anything filed by Mr. Hutchens

because it's not properly before the Court.

MR. CORCORAN: Your Honor, may I ask one point?

THE COURT: Go ahead.

MR. CORCORAN: Would that include items that were

filed jointly with Mr. Arman? And I believe there were one

or two that were nominally only Mr. Arman, although they

mirrored those by Mr. Hutchens.

THE COURT: Those would because Mr. Logan has not been

relieved as counsel, and Mr. Logan didn't file those. And

under the local rules, Mr. Logan, those would have had to

come from you. They can't come from your client. So yes,

they would include any of those documents.

MR. CORCORAN: Thank you, your Honor.

THE COURT: I think that takes care of all the issues

raised by the plaintiffs. And, Mr. Logan, I will again take

under consideration your request to perhaps order further

settlement discussions I think as set forth, as you

indicated, in the May 2005 joint status conference.

MR. LOGAN: If I might just comment on that. And I

was trying to refresh my recollection with the plaintiffs'

counsel. Something after that statement was filed. We did

have some effort at further discussions.

THE COURT: Okay.

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26

MR. LOGAN: Frankly, I can't recall why it didn't

advance to the point of further discussions.

THE COURT: Okay.

MR. LOGAN: So I would certainly encourage those

discussions, as this should be resolved.

MR. CORCORAN: Your Honor, Ms. Padilla can address

whether anything else happened, but I would like to make one

thing clear for the United States for the benefit of

Mr. Logan or anyone else who comes into the case. What I

find when I go through the correspondence is that the United

States, through Mr. Glazer, a number of times responded to

settlement comments and suggestions of the defendants by

saying that we, the United States , were not getting

sufficient specificity. There was no dollar amount

mentioned, no indication how the payment would be made, nor

what collateral there would be. The United States wanting

the property put up as collateral. My reading, I would agree

with the same thing, that even in the latest offer that I saw

in the letter from Mr. Logan, which was dated in June, I

think late June 2003, there was a suggestion that there would

be a sum offered to be made in installments with the property

as collateral. If there's to be any further discussions, we

need dollar amounts and schedules. No more conceptual

discussions. We've seen that time and again, and we're

wasting our time to continue with that.

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27

THE COURT: Ms. Padilla, anything you want to add?

MS. PADILLA: Your Honor, I was speaking with

Mr. Logan earlier, and we were trying to reconstruct what

happened. But my recollection also was these settlement

conferences were before Magistrate Judge Moulds. And we came

back a number of times. And, of course, for some of the

reasons Mr. Corcoran articulated, the lack of specificity and

other issues that came up in the course of the settlement

conference, that I think Magistrate Moulds himself thought

that they were not productive to go any further, and at which

point in time I think there was correspondence, as I recall,

from Mr. Glazer, Mr. Corcoran's predecessor, to Magistrate

Moulds, and then when it was determined that further

settlement discussions under his supervision wouldn't be

fruitful, that's when we contacted -- yes, in June of 2007, I

had sent Judge Levi a letter, and by this time Tom Boer, I

believe, had taken over for Mr. Glazer and requested a status

conference to get the case back on track, and it didn't

happen.

THE COURT: Okay. All right.

MS. RUSSELL: If I may, your Honor, that letter

specifically informs the Court that settlement discussions

had basically failed.

THE COURT: Okay. I'll take a look at all those. I

may still order all of you back to settlement before

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28

Judge Moulds. I'll take it under consideration. But all of

this may be impacted by, obviously, Mr. Logan's motion to

withdraw, so we're going to take that up first.

MR. LOGAN: Okay.

THE COURT: Okay. Mr. Arman, go ahead.

MR. ARMAN: Yes, your Honor. The government put a

lien on my property which makes it almost impossible for me

to raise money. I've had all kinds of opportunities for

money to come in, but that lien is blocking it. And,

secondly, we have enough projects going up there to where we

could make enough money to pay off anything that we need to

pay off, and yet EPA interferes with my business where I

cannot operate. And some of the people are sitting right

here who are doing that interference.

So how in the heck do you -- pardon me -- how am I

expected to run my business with EPA stopping me on every

move that I make? Pardon me.

THE COURT: All right. That sounds more like a

rhetorical question and one directed more towards the

plaintiffs. I don't need to hear anything further. I've

made my rulings. I'll again wait for motions from both sides

and again may issue a further order concerning settlement

discussions.

With that, we are adjourned.

MR. CORCORAN: Thank you, your Honor.

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 30 of 32

29

MS. PADILLA: Thank you, your Honor.

(Proceedings concluded at 12:01 p.m.)

Case 2:91-cv-00768-JAM-JFM Document 1276 Filed 01/16/2009 Page 31 of 32

III. PROCEDURAL BASIS FOR RECONSIDERATION
A. Local Rule Permits Reconsideration
Local Rule 230(j) permits an application for reconsideration of any motion that was granted
or denied in whole or on part based upon facts or “circumstances” that did not exist or were not
known at the time of the original motion.
B. Case Law Permits Reconsideration
“A district court has the inherent power to reconsider and modify its interlocutory orders prior
to the entry of judgment . . ..” Smith v. Massachusetts (2005) 543 US 462, 475, 125 S.Ct. 1129,
1139. The court’s inherent power extends to prior rulings in the same litigation, including those by a
different judge. Santamarina v. Sears, Roebuck & Co. (7th Cir. 2006) 466 F3d 570, 572; Local Rule
230(j). A party may seek reconsideration of the ruling on a summary judgment motion. Taylor v.
Knapp (9th Cir. 1989) 871 F2d 803, 805. An intervening change in the controlling law is a proper
basis for reconsideration. School Dist. No. 1J, Multnomah County v. ACandS, Inc. (9th Cir. 1993) 5
F3d 1255, 1266; Kona Enterprises, Inc. v. Estate of Bishop (9th Cir. 2000) 229 F3d 877, 890.
In appropriate circumstances, a court may award (partial) summary judgment to a non-moving
party, provided the moving party knows this and has an opportunity to respond. Cool Fuel, Inc. v.
Connett (9th Cir. 1982) 685 F2d 309, 311. See also The Rutter Group, FEDERAL CIVIL PROCEDURE
BEFORE TRIAL, § 14:328 (court may grant motion for opposing party without need for cross-motion).

Plaintiffs are on notice, and in fact Plaintiffs noted this possibility in their original Reply
memorandum. Plaintiffs’ Reply Memorandum dated June 2, 2002 at p. 18, fn. 18.
IV. RELEVANT PROCEDURAL HISTORY
The United States and the State of California moved for partial summary judgment on the
issue of liability. They sought an order of this Court that Defendants were jointly and severally liable
for the cost of their response costs. In opposition, Defendants submitted extensive evidence and
argued (i) that they should not be liable at all, and (ii) if found liable, that liability should not be joint
and several, but should be apportioned because their responsibility was “divisible” based upon
chronological, volumetric and geographic considerations. For convenience we attach as Exhibit B
hereto a copy of the Brief in support of the Opposition. The relevant section begins at page 19. The
evidentiary record to which it cites is voluminous and is in the records of this Court.
In a single short paragraph at the end of the Order Judge Levi denied what he called the
“divisibility of harm defense.” In so doing, he stated: “[g]iven the nature of the pollution at the site,
it would be difficult to identify distinct harms.” (Both emphases added) (Order, Ex. A hereto, p.4).
He suggested that IMMI’s and Arman’s divisibility arguments, since they did not purport to divide up
the contamination itself into distinct harms, would have to be presented in the second stage of a
contribution proceeding. Ibid. He did not analyze whether there was a “reasonable basis” for
apportionment.

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

Benefits for the Community

Working together to identify the issues affecting the future of emergency management will provide the emergency management community a holistic view of key future issues and needs. The network of participants will also benefit by learning from and interacting with a broader set of professionals who have similar interests and/or distinct expertise.  Additionally, the SFI provides an opportunity to further align the emergency management community's disparate missions and activities.

EPA has paid no rent for all the years of its experiment at Iron Mountain Mine.

EPA Regulations: A Moratorium on Industrial Construction?

Central Banking 101: What the Fed Can Do as "Lender of Last Resort"

Asarco tries to revive its own EPA records lawsuit

Regional water utilities sue EPA (LAWSUIT)

Critical Infrastructure

Protecting and ensuring the continuity of the critical infrastructure of the United States are essential to the nation's security, public health and safety, economic vitality, and way of life.

  • Critical infrastructure are the assets, systems, and networks, whether physical or virtual, so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, public health or safety, or any combination thereof.

Homeland Security Presidential Directive 7 (HSPD-7) established U.S. policy for enhancing critical infrastructure protection by establishing a framework for the Department's partners to identify, prioritize, and protect the critical infrastructure in their communities from terrorist attacks. The directive identified 17 critical infrastructure sectors and, for each sector, designated a federal Sector-Specific Agency (SSA) to lead protection and resilience-building programs and activities. HSPD-7 allows for the Department of Homeland Security to identify gaps in existing critical infrastructure sectors and establish new sectors to fill these gaps. Under this authority, the Department established an 18th sector, the Critical Manufacturing Sector, in March 2008.

Each of the Sector-Specific Agencies developed a Sector-Specific Plan that details the application of the NIPP framework to the unique characteristics of their sector.

FINAL JUDGMENT? order?

Our Sacred Honor ... to Support and Defend

By Mark Alexander · Friday, November 14, 2008

In 1776, an extraordinary group of men signed a document that affirmed their God-given right to "life, liberty, and the pursuit of happiness." By attaching their signatures to our great Declaration of Independence, they, in effect, were signing their potential death warrants.

Indeed, the last line of our Declaration reads, "For the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor."

Many of these men, and many of their countrymen, the first generation of American Patriots, would die fighting for American liberty.

A decade later, their liberty having been won at great cost, our Founders further codified their independence and interdependence by instituting yet another historic document, our Constitution.

The Constitution specifies in Article VI, clause 3:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..."

Bound by Oath to support...

The Constitution also prescribes the following oath to be taken by the president-elect: "I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Preserve, protect and defend...

Commissioned and enlisted military personnel are also required by statute to "solemnly swear, that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same...", though the officer's oath doesn't include any provision that they obey orders.

Against all enemies, foreign and domestic...

Notably, all these oaths mandate the preservation, protection, support and defense of our Constitution as ratified , not the so-called "living constitution" as amended by judicial activists populating what Thomas Jefferson predicted would become "the despotic branch."

Plan to Stay in Business

 

Business continuity planning must account for all hazards (both man-made and natural disasters). You should plan in advance to manage any emergency situation. Assess the situation, use common sense and available resources to take care of yourself, your co-workers and your business's recovery.

  • Be Informed
    Know what kinds of emergencies might affect your company.
  • Continuity Planning
    Carefully assess how your company functions, both internally and externally.
  • Emergency Planning
    Your employees and co-workers are your business's most important and valuable asset.
  • Emergency Supplies
    Think first about the basics of survival: fresh water, food, clean air and warmth.
  • Deciding to Stay or Go
    Shelter-in-place or evacuate, plan for both possibilities.
  • Fire Safety
    Fire is the most common of all business disasters.
  • Medical Emergencies
    Take steps that give you the upper hand in responding to medical emergencies.
  • Influenza Pandemic
    The federal government, states, communities and industry are taking steps to prepare for and respond to an influenza pandemic.

Additional Resources

For more information on business continuity, see these additional documents from FEMA. The National Continuity Program can be reached at FEMA-STTLContinuity@dhs.gov or by phone, at 1-202-646-4145.

EPA's orphan share policy provides money from the Trust Fund to reduce the liability of PRPs that agree to perform cleanups. Allowing the Trust Fund (rather than PRPs) to pay for orphan shares enhances fairness and creates a major incentive for the PRPs to perform cleanups and to settle claims without litigation -- thereby decreasing the overall costs of the cleanup. $1 Billion Settlement Reached at Iron Mountain Mine Site

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

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

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

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

DOE Issues Plan to Ensure Access to Critical Materials

Rockefeller Seeks Vote This Month to Stop EPA Rules

Failure Mode - Final Listing Decision: Delist from 303(d) list

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

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

Lawson Mine: The SOW requires that the site operator have a licensed surveyor monitor critical adit components on an annual basis, and that the survey be conducted under the direction of a qualified engineer with mining experience. The most recent survey was performed on October 27,2007.

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

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

Factors Leading to Failures in Predicting Post-Mine Water Quality and Acid Mine Drainage ...

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

ENCOURAGING ECONOMIC REDEVELOPMENT
Many people have the feeling that if an area becomes contaminated with toxic waste, it will be a toxic wasteland forever. It may be cleaned up, it may be safe, but the best that can happen after the Superfund label of environmental contamination is placed on the property is for it to be fenced off, becoming a permanent economic blemish on a community.

But that perception is incorrect. Hundreds of contaminated properties have been cleaned up and turned into office parks, industrial centers, shopping centers, residential areas, tourist centers, and wetlands. Sites that were once abandoned or underused have now become valuable community resources. Areas that once helped to drag the local economy down are now generating new tax revenue creating jobs and serving as catalysts for broader revitalization.

Successful reuse of once-contaminated properties is happening all over the country. Communities and EPA; developers and State officials; local political leaders and large corporations -- all are joining together as partners to make reuse happen.

Reusing Superfund Sites:

The keys to successful cleanup and reuse are the community and the partnerships it can create. Each community decides how far and how wide the benefits of reusing a Superfund site will extend. But it is the partnerships that provide the fuel for success. Successful cleanup and reuse has required strong relationships between communities, EPA, local businesses, large corporations, State governments, and local officials.

 

The Iron Mountain aerial tramway

DOE to fund up to $50 million on solar energy technologies


Energy Secretary Steven Chu today announced the Department's intent to fund up to $50 million to test and demonstrate innovative technologies that will lead to cost-competitive solar energy technologies. 

The demonstration program will be a critical link between the Department of Energy's advanced technology development programs and full-scale commercialization efforts.  The Nevada National Security Site (NNSS) will serve as a proving ground for cutting-edge solar technologies, such as concentrating solar thermal power and concentrating photovoltaic energy, which can be used for utility applications in the Southwestern United States where there is an abundance of solar energy.  

“This funding will allow the Department to further test advanced and innovative solar energy technologies in real-world conditions, providing critical data for companies and communities looking to invest in large-scale solar projects,” said Secretary Chu.  “The Solar Demonstration Zone in Nevada is part of an integrated effort to expand the solar energy industry, helping to put America on a path to a sustainable energy future and create the jobs of the 21st century economy.”

The Department expects to announce the Funding Opportunity Announcement early next year.  Potential technology applications include Concentrated Solar Power systems that use mirrors to reflect and concentrate sunlight on a heat absorbing fluid, convert it to steam, and ultimately generate electricity, as well as Concentrated Photovoltaic Power that uses lenses to concentrate sunlight to improve the efficiency of conventional photovoltaics.  The demonstration projects as part of the Solar Demonstration Zone will be deployed at a large enough scale to provide useful operating and economic data for the eventual deployment of solar energy projects at utility-scale, which are typically grid-connected projects larger than 20 megawatts. 
The Solar Demonstration Zone at the Nevada National Security Site will complement the Department of Interior's Bureau of Land Management's 24 Solar Energy Study Areas (SESAs) on public lands across the Southwest United States by providing essential data about the commercial viability of the most advanced solar technologies.

As part of DOE and the Department of Interior's continuing collaboration, the Departments are working together to implement this project, including conducting environmental reviews and coordinating necessary infrastructure planning for the site.  Department of Energy funding for the project is dependent upon congressional appropriations. The full Notice of Intent is available at www.fedconnect.net and searching under Reference Number DE-FOA-0000233.

For more information on the Solar Energy Technologies Program and solar funding opportunities, please visit the Solar Program's website.

 

"PUT IT TO BED, LIGHTS OUT" MAGNA MATER, LIBER PATER

Preamble : “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution…”

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." –James Madison in Federalist No. 45

 

Search Superfund Site Information

COPPER MOUNTAIN MINE

Site Information

Site Info | Aliases | Operable Units | Contacts
Actions | Contaminants | Site-Specific Documents


Site Name COPPER MOUNTAIN MINE
Street OFF HWY 299 4MI NW OF REDDING
City / State / ZIP REDDING, CA 96001
NPL Status Site is Part of NPL Site
Parent Site IRON MOUNTAIN MINE
EPA ID CAD983641366
EPA Region 09
County SHASTA
Federal Facility Flag Not a Federal Facility
Incident Category Mines/Tailings

IRON MOUNTAIN MINE (EPA ID: CAD980498612)

GPRA Measures

Measure Status

  Final Site Assessment Decision

Yes (12/30/1982)

  Human Exposure Under Control

Under current conditions at this site, potential or actual human exposures are under control.

  Contaminated Ground Water Migration Under Control

EPA is working to ensure that contaminated ground water migration is under control.

 

Saltwater Fishing License Repealed for Select Towns
Patch
Seven Long Island townships regain jurisdiction over local waters through a patent hundreds of years old. By Michael Spellman | Email the author | 7:12pm ...
See all stories on this topic »

"The patent grants the respective Towns the authority and the sole control over all the fisheries, fowling, sand, weed, and waters within the said Town," the attorney said.

 

 

A Great Week for Liberty

"The powers delegated by the proposed Constitution to the federal government are few and defined." --James Madison in Federalist No. 45

Has the solar industry finally proven itself a viable source of energy?

  • December 16th, 2010 12:11 am ET

When the Department of Energy issues a loan guarantee for $400 million to solar manufacturer Abound Solar Manufacturing LLC, it sends a message that solar is a serious investment.  Yesterday, U.S. Department of Energy Steven Chu finalized the loan guarantee for Abound to produce thin-film solar panels. The investment will enhance their facilities in Longmont, CO and Tipton, IN to churn out 840 megawatts of solar panels a year using thin films of Cadmium-Telluride (CdTe) that are deposited onto glass panels.  Abound estimates the investment to produce 1,200 new jobs to support their ongoing manufacturing and operations in both Colorado and Indiana.  In addition, the investment will produce hundreds of construction jobs and an estimated 1,600 supply chain jobs throughout the Midwest, including Wisconsin, Minnesota, Tennessee and Ohio.

Abound's competitor, First Solar, uses the same ultra-thin CdTe technology and is considered the world's leading manufacturer of the thin film Photovoltaic modules.  First Solar, headquartered in Tempe, AZ, claims Germany as its largest market due to incentives from government subsidies that offer a premium price for solar over conventional energy sources, such as coal.  The announcement of Chu's loan may have influenced First Solar's stock price, which moved up 2.63 to 139.67 this morning giving investors confidence in the technology.

Other indications that the solar industry is showing confidence of planting its foot strongly is evidenced by innovative downstream supply chain operations, such as Sungevity, an Oakland, CA based solar installer, who announce today that it has raised $15 million to expand its market to the east coast. The three-year old startup's fast growth has taken advantage of creative financing for its operations and purchasing/leasing options for its customers.  They sell/lease their thin-film photovoltaic systems online, cutting out layers of sales and installers, and providing buyers the option of leasing the system for no money down and a monthly payment that immediately is offset by the savings on their electric bills.

"Pioneering projects like this are what will help the U.S. recapture the lead when it comes to supporting innovation in the global clean energy economy," Secretary Chu said. "Not only is this investment creating thousands of jobs, but it is also increasing our renewable energy manufacturing capacity and putting us on the path for our future prosperity." 

EPA Issues Water Infrastructure Sustainability Policy

By Patrick Crow, Washington Correspondent

The U.S. Environmental Protection Agency (EPA) has issued its long-awaited Clean Water and Drinking Water Infrastructure Sustainability Policy.

EPA said U.S. communities face challenges in making upgrades and repairs to their aging sewer systems and treatment facilities. It said that making the infrastructure last longer while increasing its cost-effectiveness is essential to protecting human health and the environment -- and maintaining safe drinking water.

The federal policy emphasizes the need to continue promoting sustainable water infrastructure. It also focuses on working with states and water systems to use planning processes that result in projects that are cost effective, resource efficient, and consistent with community sustainability goals. It encourages utility management practices to build and maintain the technical, financial, and managerial capacities needed to ensure long-term sustainability.

EPA drafted the policy with input from its federal, state, and local partners. It will provide technical assistance and target funding sources to support the sustainability of water infrastructure.

Deputy Administrator Bob Perciasepe said, "Through cost-effective, resource-efficient techniques -- like green water infrastructure alternatives -- this policy aims to make our communities more environmentally and economically sustainable. These smart investments in our water infrastructure, along with increased awareness of the importance of these investments, can keep our water cleaner and save Americans money."

Separately, EPA issued its 5-year strategic plan (for fiscal years 2011 to 2015) with five goals for advancing its environmental and human-health mission. They are: acting on climate change and improving air quality; protecting waters; cleaning communities and advancing sustainable development; ensuring the safety of chemicals and preventing pollution; and enforcing environmental laws.

Incineration Rule

EPA has proposed standards under Section 129 of the Clean Air Act (CAA) that would affect the options that local governments have for the management of sewage sludge.

The National Association of Clean Water Agencies (NACWA) said nearly a fifth of all the sewage sludge produced annually in the U.S. is burned in incinerators. It said EPA's proposed new source performance standards could effectively eliminate the construction of new incinerators, and the tougher standards for existing ones could force many communities to abandon incineration as early as 2016.

The association said EPA now regulates the incinerators under regulations in Section 405 of the Clean Water Act (CWA). NACWA has urged that incinerators be regulated under Section 112 of the CAA but it said EPA, in response to a series of court rulings, developed the proposed standards under Section 129.

EPA has estimated the new standards will require most existing incinerators to install additional pollution control devices at a total capital cost of more than $200 million and annual operating costs of $100 million. The agency said some of those costs would be avoided since many public wastewater utilities would abandon incineration and send their sludge to a landfill instead. NACWA said EPA's analysis understated the costs and environmental impacts of placing sludge in landfills.

NACWA said, "Rather than encouraging upgrades to newer, cleaner incinerators paired with energy recovery that can offset a significant amount of the energy needs for treating wastewater, the proposed standards will result in many of the nation's wastewater utilities abandoning their significant capital investments and simply sending an energy-rich secondary material for disposal in a landfill.

"During a period of time where municipalities are facing enormous economic challenges and an ever-expanding regulatory landscape, it is critical for EPA to ensure its policies are environmentally and economically sound, and ensure those policies allow municipalities to manage their resources wisely and engage in practices that can maximize their resources and limit their carbon footprint."

Climate Change Study

The American Water Works Association (AWWA) will lead a two-year study on how municipalities can forecast water demand within the context of anticipated climate change.

The project, funded by a National Oceanic and Atmospheric Administration grant, will provide recommendations on how to improve current water demand forecasting and identify areas of essential future research.

The study will include an assessment of current computer models, workshops to identify knowledge gaps, development of research priorities, and recommendations for reducing risk through improved demand forecasting. Researchers will conduct model simulations at two drinking water utilities.

AWWA Executive Director David LaFrance said, "This project is historic in its focus. Most studies on climate change and drinking water have focused on the supply side, looking at water resources. The examination of water demand adds an important new perspective."

AWWA Director of Federal Relations Alan Roberson will serve as principal investigator for the project. Other members of the team will include faculty from George Washington University in Washington, D.C., and the University of Colorado at Boulder, along with staff from the environmental facilitator, Kearns & West.

In other Washington news:

  • EPA has notified the Office of Management and Budget that it plans to regulate the chemical perchlorate under the Safe Drinking Water Act. EPA will have up to two years to propose a rule after the decision to regulate is published.
  • A National Center for Atmospheric Research study has warned that global warming may cause the U.S. and other heavily populated countries to face the threat of severe and prolonged drought in coming decades.
  • The National League of Cities said the economic recession is continuing to hurt municipalities. It said cities have reported their revenues will decline 3.2% and spending 2.3% next year. NLC said those cutbacks are the largest in the history of its annual surveys.
  • The American Farm Bureau Federation is opposing a Senate bill, the Chesapeake Clean Water and Ecosystem Restoration Act. It warned, "The bill makes sweeping changes to the CWA and sets adverse water policy precedents that would impact watersheds throughout the nation."

 

Citing GAO, Industry Seeks 'Tenacious' Scrutiny Of EPA's Mine Permit Delays

The National Mining Association (NMA) is calling for "tenacious" congressional scrutiny of EPA's review of dozens of mountaintop mining permits after the Government Accountability Office (GAO) found that agency efforts to strengthen its reviews of the Army Corps of Engineers permits has left nearly half of them in limbo for more than a year.

State Supreme Court Seen Leaning Toward Industry In RWQCB Fee Case

Attorneys following a potentially precedential lawsuit argued before the California Supreme Court this week say judges on the panel are likely to side with industry groups that contend state water board fees are illegal taxes. Based on the justices' comments at this week's hearing, it appears unlikely the high court will back the validity of the board's fees, sources said.

California Plans New Enterprise Zones With Emphasis on Renewable Energy

Published Dec. 15, 2010

California's Department of Housing and Community Development is planning to create two new Enterprise Zones, which offer tax credits and other benefits, aimed at renewable energy companies.

The department said it will release a request for proposals in January 2011.

Officials also announced conditional designations of three new Enterprise Zones statewide, in Anaheim, Harbor Gateway and the Santa Clarita Valley.

The California Enterprise Zone Program targets economically distressed areas using state and local incentives to promote business investment and job creation. By encouraging entrepreneurship and employer growth, the program seeks to create and sustain economic expansion. 

"The Schwarzenegger administration has approved 36 Enterprise Zones in the last four years, the first new designations in the program since it was started in 1986.  This program is vital in being able to compete in the global market to attract and retain businesses in California, while at the same time increasing the number of jobs with state and local incentives," said Lynn L. Jacobs, director of the Department of Housing and Community Development, in a news release.

Businesses within Enterprise Zones are eligible for substantial tax credits and benefits. Designations last for 15 years, with expiring zones to be replaced with new ones. Among the benefits are:

  • Firms can earn $37,440 or more in state tax credits for each qualified employee hired.
  • Corporations can earn sales tax credits on purchases of $20 million per year of qualified machinery and machinery parts.
  • Up-front expensing of certain depreciable property is available.
  • Lenders to Enterprise Zone businesses may receive a net interest deduction.
  • Unused tax credits can be applied to future tax years, stretching out the benefit of the initial investment.
  • Enterprise Zone companies can earn preference points on state contracts.
  • Up to 100 percent of a net operating loss may be carried forward. Net operating losses may be carried forward 15 years. 

The next step in the designation process will be the department's issuance of a conditional designation letter to each of the new zones.  The letters will outline conditions that must be met to be granted final designation as an Enterprise Zone. Examples of conditions include a signed memorandum of understanding with the department that includes performance measures and benchmarks.

The department said it will release a request for proposals in January 2011 for the Enterprise Zones expiring in early 2012, with conditional awards to be announced in August 2011.  There will be a strong emphasis on renewable energy, such as solar and wind, in this round of applications, with an additional 100 bonus points to be awarded for applications that demonstrate that commitment.

The Enterprise Zone program is one of California's largest and most successful economic development tools. The Governor's Office of Economic Development , which was established earlier this year to help start, expand and keep businesses in California, will work with the Department of Housing and Community Development to market the program for companies in California. 

“California's economic recovery and its future growth can greatly benefit from additional business incentives. I applaud the Department of Housing and Community Development for working to make the state more business-friendly,” said Joel Ayala, director of the Governor's Office of Economic Development. “In creating two ‘Renewable Energy' Enterprise Zones, California continues its commitment to developing the industries of tomorrow. The additional Enterprise Zones will lead to more job creation and business investment, which will further accelerate our economic recovery. ”

More information on the Enterprise Zone program is available by visiting http://www.hcd.ca.gov/fa/cdbg/ez .

 

Developing a Sustainable Hardrock Mining Industry

 

"SHOVELS FIRST AND LAWYERS LATER"

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

The Colbert ReportMon - Thurs 11:30pm / 10:30c
The Word - Unrequited Gov
www.colbertnation.com
Colbert Report Full EpisodesPolitical Humor & Satire Blog</a>March to Keep Fear Alive
 

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.

The Colbert ReportMon - Thurs 11:30pm / 10:30c
The Word - Ownership Society
www.colbertnation.com
Colbert Report Full EpisodesPolitical Humor & Satire Blog</a>March to Keep Fear Alive

Fulfilling the Promise of Earth Day (Continued)

Click on the link to view or hide details.

New threats posed by toxic waste sites
continue to be discovered

In 1996, the State of New Jersey responded to a discharge of an unknown liquid in a housing development. Subsequent investigations revealed elevated levels of creosote seeping into the basements of homes. New Jersey and EPA began an investigation of the site, which found that the contamination was extensive. In 1998, responsibility of the site was transferred from the State to EPA.

EPA conducted extensive soil sampling and found that the levels of carcinogenic materials were at unacceptable levels for at least 19 homes. EPA initiated a Removal Action to reduce the threat of contamination for these 19 families by providing temporary covers for their homes. In 1999, the Federal Creosote site was added to the NPL.

EPA's cleanup requires the permanent relocation of residents from an estimated 10-19 properties. The selected remedy also includes the excavation of contaminated soils for thermal treatment and disposal.

Twenty years after the passage of CERCLA, the Federal Creosote site demonstrates that the threats first given wide publicity by Love Canal can continue to the present day. The big difference is that now there is a strong Superfund program to address these threats before they become major dangers.

FACING NEW CHALLENGES
Wildlife habitats. Transportation centers and shopping malls. These are the just some of the successes of Superfund.

As Superfund enters its third decade, EPA faces four central challenges:

  • The Agency will continue the cleanup of NPL sites, as well as address immediate contamination problems through Removal Actions across the country;

  • EPA will continue to ensure that cleanup remedies remain protective of human health and the environment for years to come;

  • As new sites are identified, EPA will share responsibility with States, Tribes, and other stakeholders to work with communities and PRPs to get these sites cleaned up efficiently; and

  • The Agency will continue to serve as a catalyst to promote redevelopment at both brownfields and former Superfund sites.

Because of Superfund, sites that were once dangerous have been made safe. Land that was once desolate has been restored to productive use for communities across America. And new toxic waste sites are prevented from occurring in the first place by the presence of Superfund.

This is Superfund on its 20th anniversary. Now entering its third decade, Superfund will continue its evolution to meet the new challenges of a clean and safe environment -- the promise of Earth Day.

EPA has primary responsibility for implementing Superfund, but because of the complexity of hazardous waste issues, the Agency has relied on the respective strengths of the following Federal partners to carry out its mission of protecting human health and the environment:

GENERAL INFORMATION
ENVIRONMENT & NATURAL
RESOURCES
 
Ignacia S. Moreno
Assistant Attorney General
 
Office of the Assistant Attorney General
(202) 514-2701

The Environment and Natural Resources Division, which is organized into ten sections, has primary responsibilities for litigation as well as appellate and policy work on behalf of the United States regarding:

Prevention and Clean Up of Pollution

Environmental Challenges to Federal Programs and Activities

Stewardship of Public Lands and Natural Resources

Property Acquisition for Federal Needs

Wildlife Protection

Indian Rights and Claims

With offices across the United States, the Division is the nation's environmental lawyer, and the largest environmental law firm in the country.

Fisheries Law Enforcement Updates
As part of its ongoing efforts to improve its enforcement program, NOAA is undertaking a number of actions. Check here for updates on our corrective action plans, the eHotline , draft penalty policy, priority setting, and other activities.

Legislative history indicates that a principal goal in creating section 113 was to clarify and confirm “the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.” S. REP. NO. 99-11, at 44 (1985).

 

CA- 5 Sacramento National Marine Fisheries Service (NMFS)

Office of Law Enforcement Sacramento Field Office

NOAA's Office of Law Enforcement is dedicated primarily to the enforcement of laws that protect and regulate our nation's living marine resources and their natural habitat. NMFS' special agents and enforcement officers have specified authority to enforce over 37 statutes, as well as numerous treaties related to the conservation and protection of marine resources and other matters of concern to NOAA. Due the geographic location of Sacramento and the Sacramento River and its numerous tributaries, the Sacramento Office of Law Enforcement spends the majority of its time working Endangered Species salmon cases. Traditional law enforcement as well as a collaborative approach has helped change the way people are using water in the west, a positive reflection for salmon.

http://www.nmfs.noaa.gov/ole/sw_southwest.html

Resolve to be Ready in 2011
Start today: get a kit , make a plan , be informed

Prepare your community: join your Community Emergency Response Team

Create your emergency plan with your family

 

Public Private Partnerships

A team approach to emergency management

We invite private sector organizations from across the nation to provide models that highlight collaborative efforts with government entities to increase disaster resilience. There is a compelling argument and ample evidence that every community would benefit from public-private collaboration in emergency management. We are better able to serve our neighbors, fellow citizens, and our nation's disaster survivors in particular, when public sector and private sector representatives are both active members of the same team. Administrator Craig Fugate, who tirelessly advocates for a teamwork approach, told a gathering of U.S. private sector leaders last year, "There's no way government can solve the challenges of a disaster with a government-centric approach. It takes the whole team. And the private sector provides the bulk of the services every day in the community."

FEMA operates in all ten regions when disaster strikes. Each region has a unique model that encompasses foundational core attributes, being publically accessible; dedicated; resourced; engaged; and sustainable. Most regional models are engaged in sharing situational awareness, either through a dedicated liaison, established communication protocols, individual business representation within an emergency operation center, or in rare cases, fully staffed business emergency operations centers.  Some models are built on legal agreements, Memoranda of Agreement or Understanding (MOA or MOU) between public agencies and private sector organizations.  Some programs practice joint participation in training and exercises, and others invest time in identifying community resources that are available for response.  The following are successful models of partnerships and examples of effective collaboration, coordination and communication between public and private emergency management entities within the regions.

Disclaimer: FEMA's Private Sector Division of the Office of External Affairs facilitates information sharing and good practices for developing effective public-private partnerships. This Web site and its contents are provided for informational purposes only, without warranty or guarantee of any kind, and do not represent the official positions of the US Department of Homeland Security. For more information on the Private Sector Division, please email FEMA-private-sector@dhs.gov or visit www.FEMA.gov/privatesector .

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Private Sector in the NRCC


  • Private Sector in the NRCC ( PDF 105KB, TXT 9KB)

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2011 FEMA Earthquake Safety & Mitigation for Schools Webinars


  • Earthquake Safety & Mitigation for Schools ( PDF 195KB, TXT 6KB)

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National Level Exercise NLE 2011 Private Sector Participation

National Level Exercise NLE 2011 will be an operations-based exercise centered on the scenario of a catastrophic earthquake in the New Madrid Seismic Zone, encompassing four FEMA Regions (IV, V, VI and VII) and eight Central U.S. Earthquake States: Alabama, Arkansas, Kentucky, Illinois, Indiana, Mississippi, Missouri and Tennessee. NLE 2011 will exercise initial incident response and recovery capabilities, to test and validate existing plans, policies and procedures to include the New Madrid Catastrophic Plan (currently under development).  NLE 2011 will be conducted in May 2011.   If you have any questions regarding NLE 2011 please contact us at Private.SectorNLE@dhs.gov .

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Strategic Foresight Initiative

The goal of this Strategic Foresight Initiative is to engage the emergency management community in exploring issues, trends and other factors that could impact the future of emergency management and to expand the community's strategic planning for the future. Additional information is available at www.fema.gov/about/programs/oppa/strategic_foresight_initiative.shtm .

Voice your opinion and share your insight on national policies when they are open for comment. Take part in events and activities throughout the year, and find other current opportunities to strengthen public-private collaboration.

Last Modified: Monday, 06-Dec-2010 10:50:06 EST

 

EPA Grandstanding

Posted on December 13, 2010 by Vorys

We've reported frequently on the efforts by U.S. EPA to inject itself (yes, pun intended) into the hydraulic fracturing debate.  Now the NYT is reporting that the Regional Director for EPA Region 6 has issued an order to a Texas producer to provide water supplies to residents whose water wells have been impacted by methane and benzene (see here ).  To do so, however, EPA has ignored the work of the Texas Railroad Commission, which has stated that EPA's actions are premature:  " Texas officials accused EPA of grandstanding and making 'false claims' about its actions. 'If this is another EPA action designed to reach predetermined conclusions and to generate headlines rather than conduct a successful environmental investigation, then the public is poorly served,' TRC member Elizabeth Ames Jones said. 'The commission will not deny due process to the parties involved in spite of the false claims made against our investigative actions by the EPA staff.'" 

 

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. 867 words

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. 1148 words

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. 870 words

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. 1475 words

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. 1382 words

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. 1042 words

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. 820 words

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. 1347 words

New York Balks, Other States Bend To EPA Pressures Over Bay WIPs

New York officials are continuing to resist EPA pressure to take stricter measures to control nutrient and sediment pollution loading in the Chesapeake Bay watershed, while Virginia and Pennsylvania -- which had previously expressed strong and repeated opposition to EPA's approach -- are acquiescing to agency demands, sources say. 680 words

Farm Groups Lobby Senate Agriculture Panel To Block Chesapeake Bill

Farm groups are urging members of the Senate agriculture committee to block consideration of controversial Chesapeake Bay cleanup legislation in the lame-duck session due to their concerns that the bill would expand EPA rights to impose requirements upon farmers in the region. 677 words

USGS Recommends Tabling Impervious Surface Data In Bay Barometer

An official with the U.S. Geological Survey (USGS) has recommended suspending the use of EPA's impervious surface estimation datasets as part of the Chesapeake Bay Program's annual Bay Barometer report for two years because they lack consistency over time and require additional analysis to improve their accuracy. 1006 words

EPA Resists Corps Plan To Relax Wetlands Permits For Clean Energy Plants

EPA has expressed "significant concerns" over an Army Corps of Engineers proposal that would soften Clean Water Act (CWA) dredge-and-fill permit requirements for renewable energy projects, and offered to work with the Corps and other federal agencies to ensure that the new rules result in minimal environmental harm, according to an EPA spokesperson. 905 words

Industry Opposes EPA Bid To Dismiss Suit Over Diesel 'Fracking' Permits

The oil and gas industry is opposing EPA's bid to dismiss a lawsuit challenging the agency's policy to require Safe Drinking Water Act (SDWA) permits for drilling operations that use diesel in their hydraulic fracturing, or "fracking," process, arguing EPA cannot rely on a regional, years-old court ruling to justify the policy. 883 words

Activists Say EPA Oil, Gas Discharge Data Ignores Strict Norwegian Limits

Environmentalists seeking a strict Clean Water Act "zero-discharge" limit for the oil and gas sector off the Alaska coast are asking EPA to stop circulating what they say is outdated information from Norway on that country's rules for the sector, saying the data fails to acknowledge stringent new Norwegian discharge limits they want EPA to adopt. 458 words

Industry, Water Group Urge EPA To Delay Chromium 6 Assessment

The chemical industry and a group of southern California municipalities and water districts are urging EPA to delay finalizing its strict draft assessment of the oral cancer risks of chromium 6 (Cr6) until pending studies are completed, arguing that the new data will strengthen the scientific basis of the assessment. 883 words

EPA Study Finds Slight Decrease In Drinking Water Systems' Violations

The percentage of drinking water systems that had extended periods of non-compliance with Safe Drinking Water Act (SDWA) requirements during 2006-2008 was 8 percent, a slight decrease from the 9 percent in the 2003-2005 time period, according to a new EPA report aimed at helping states to prioritize funding to correct the problems. 538 words

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. 1018 words

In Blow To Backers, EPA Bars Use Of ToxCast Tests For Endocrine Screening

EPA is blocking pesticide industry officials from using results from its in vitro toxicological testing program, ToxCast, in lieu of animal-based tests required by the controversial endocrine disruptor screening program (EDSP), a blow to industry and animal rights activists who hoped to use ToxCast results, which they view as a cheaper and less-destructive testing regime than is currently required by EDSP. 878 words

EPA Takes Steps To Expand List Of Chemicals Subject To TRI Reporting

EPA is expanding the list of chemicals that must be reported to its Toxics Release Inventory (TRI), moving to issue a final rule that will add 16 carcinogenic compounds to the list in what one key official says will be the biggest expansion of the program since the early 1990s. 645 words

Despite New Memo, EPA Downplays Use Of Water Law To Address CO2

EPA is downplaying environmentalists' novel efforts to use the Clean Water Act as a way to reduce carbon dioxide (CO2) emissions that may be contributing to high acidification levels in ocean waters, even as the agency issued a memo opening the door to stricter regulation of the emissions. 1212 words

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. 537 words

Oil Spill Commission Says EPA Lacked Dispersant Research Before Spill

The White House Gulf of Mexico oil spill commission has issued a draft report finding that EPA lacked adequate knowledge of the ecological or toxic effects of oil dispersants in deep water, or the effects of using them on a large scale -- but acted reasonably at the time given the limited knowledge they had on hand. 751 words

Home Builders File Statement Of Issues In TNW Decision Appeal

The National Association of Home Builders (NAHB) is asking an appellate court to decide whether a lower court erred in dismissing NAHB's lawsuit challenging EPA and the Army Corps of Engineers' decision that portions of an Arizona river are "traditionally navigable waters" (TNW) and therefore subject to EPA regulation. 456 words

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 could open the door for a new EPA program ending water utilities' exemption from security rules. 949 words

Inhofe Wants Boozman To Join Environment & Public Works Committee

Sen. James Inhofe (R-OK) says he wants Sen.-elect John Boozman (R-AR) to take one of two additional seats Republicans could gain on the Environment & Public Works Committee (EPW) next year, and Boozman's office says the lawmaker is interested in taking the position. 403 words

Senate Bill To Reduce Lead Content In Drinking Water Fixtures 'Hotlined'

Sen. James Inhofe (R-OK), ranking member on the environment committee, says senators have "hotlined" for unanimous consent approval later today a bipartisan legislative proposal to tighten lead limits for plumbing fixtures that ferry drinking water into homes. 258 words

Vitter Will Not Challenge Inhofe To Be Environment Panel Ranking Member

Sen. David Vitter (R-LA) says he does not intend to challenge Sen. James Inhofe (R-OK) for the top ranking slot on the Environment & Public Works Committee (EPW) in the 112th Congress, quelling speculation that arose this summer over a potential Vitter push to take the position from Inhofe. 298 words

House GOP Plans For Extensive EPA Oversight Face Key Staffing Hurdles

House Republicans' plans for extensive committee oversight of EPA in the 112th Congress -- including broad reviews of agency rules and environmental statutes -- could face key hurdles as the GOP looks to quickly hire staff with the necessary expertise to achieve the political and other goals of the hearings, sources say. 1170 words

Blue Green Alliance Pushes For SRF Prevailing Wage Requirements

The Blue Green Alliance of labor and environmental groups is urging passage during the lame duck congressional session of several items on their legislative wish list, including prevailing wage requirements for all future EPA clean water and drinking water loans. 471 words

Facing Utility Fight, EPA Eyes Pact Setting Schedule For Cooling Water Rule

EPA and environmentalists are close to signing a settlement that is expected to delay a planned deadline for the agency's upcoming Clean Water Act rule governing power plants' cooling water intakes, a rule that sources say is also expected to back industry's request to allow for flexible, site-specific requirements, in addition to its across-the board technology mandates. 1402 words

EPA Agrees To Rule Deadline For New Limits On Power Plant Discharges

EPA has agreed to a legal deadline to establish effluent limitations guidelines (ELG) for coal-fired power plants in a settlement agreement with environmentalists who had threatened to sue over the 1982 standards, providing activists with a legally enforceable agreement to force EPA to finalize the rule regardless of the outcome of the next presidential election. 765 words

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. 956 words

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. 943 words

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. 948 words

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. 618 words

Superfund Report - 12/13/2010

EPA Expected To Issue Hudson Remedy But Late GE Lobbying Raises Fears

New York officials and environmentalists are raising concerns that EPA may be softening General Electric's (GE) PCB-cleanup requirements at the Hudson River, though activists say the agency appears poised to announce its cleanup decision in time to enforce it and before GE launches an expected legal challenge to the agency's enforcement authority. 1047 words

EPA's Integrated Cleanup Plan Appears To Sidestep Key Groups' Concerns

EPA is seeking public comment on a just-released plan for integrating various cleanup programs but the 28-page implementation document appears to sidestep concerns raised by stakeholders that the effort emphasizes redevelopment over cleanup and includes a controversial and undefined measure of the Superfund program's progress. 1012 words

Stakeholders See Strengths In New EPA Institutional Controls Guidance

Local government and community activist sources are generally pleased with EPA's recently released guidance on planning, maintaining and enforcing institutional controls (IC), noting the document's encouragement of community input in IC planning and its discussion of the complexity in using such controls at contaminated sites that lack cleanup and are potentially open to unrestricted uses. 737 words

OIG Urges EPA to Consider Site Priority When Doling Out Tank Grants

EPA's Office of Inspector General (OIG) is pushing the agency to ensure that it considers requirements of the Solid Waste Disposal Act (SWDA) when issuing leaking underground storage tank (LUST) trust fund grants, a measure EPA failed to account for when disbursing stimulus money for cleanups, according to a recent report. 556 words

EPA, Navy Elevate Dispute Over Vapor Intrusion Cleanup At California Site

EPA Region IX officials have elevated a dispute with the Navy over the military service's refusal to address vapor intrusion at a California Superfund site that is testing the reach of an enforceable interagency cleanup accord to address instances of newly discovered contamination pathways long after cleanup remedies have been implemented. 1314 words

State Regulator Questions Timing Of Federal Guidance On Vapor Intrusion

EPA's plans to release a comprehensive guidance in 2012 on addressing vapor intrusion are coming too late, as many states have already put their own policies -- with widely varying standards -- in place, a state regulator told a defense environmental research forum last week. 1072 words

High Court Declines To Review Significance of Past Liability To Future Claims

The Supreme Court is allowing to stand a recent ruling that adds to an existing split among federal appellate courts over whether parties can automatically be held responsible for future cleanup work if they have not already been found liable for past cleanup actions at the site in question. 865 words

Justices Suggest Sidestepping Key Precedent To Address FOIA Exemption

Key Supreme Court justices are suggesting the court could resolve questions over the release of sensitive Navy safety information without relying on a long-standing precedent governing Freedom of Information Act (FOIA) exemptions, criticizing the federal government for trying to manipulate FOIA and telling a citizen activist he could prevail without rejecting the earlier ruling. 847 words

U.S., Media Groups Urge High Court To Deny Corporate FOIA Privacy Rights

The U.S. government, press organizations and public interest groups are urging the Supreme Court to construe narrowly a disclosure exemption from the Freedom of Information Act (FOIA), denying that corporations can be shielded from public disclosure requirements via a right to "personal privacy" like that afforded individuals. 1301 words

Facing GOP Attack, White House Steps Up Review Of Key EPA Policies

Facing a growing push by the incoming House GOP majority to stymie EPA and other agencies' rules, the White House is stepping up its oversight of EPA and other agencies' pending policies in a move that the administration's regulatory review czar Cass Sunstein argues is helping to address industry concerns about the costs of the policies. 1266 words

Activists Fail To End Delayed OMB Review Of EPA's Dioxin Cleanup Goals

The White House Office of Management & Budget (OMB) has extended its review of EPA's interim dioxin cleanup goals, despite a push by environmentalists urging the White House to complete the review because, they say, states and federal agencies will waste resources trying to determine adequate cleanup levels without it. 745 words

Lawmakers Say EPA Waste Rule May Boost Water Contamination From Oil

A bipartisan group of more than two dozen lawmakers is urging EPA to reconsider provisions in a pending waste rule that they say could discourage recycling by requiring used oil to be tested before it can be burned as fuel, which could spur improper disposal of the oil and increase the risk of water contamination. 570 words

Utility Experts Downplay Prospects For Blackouts Due To Slew Of EPA Rules

Utility officials and others are downplaying a recent high-profile North American Electric Reliability Corporation (NERC) report warning of adverse electricity grid reliability impacts from pending EPA air, water, and waste rules for the utility sector, saying the rules' impacts are less severe than predicted and will not lead to blackouts. 1095 words

Waste Industry Weighs Legal Challenge Over RCRA Delisting Decision

Hazardous waste disposal and recycling companies are raising concerns about EPA's decision to move forward with delisting tank wastes from a Texas oil refinery that could set a precedent for delisting other refinery waste even though the agency received only negative comments on its proposal, with one industry source saying EPA's actions may be illegal. 882 words

Drop In EPA Criminal Enforcement Cases Linked To New 'Tiering' System

EPA's number of new criminal enforcement cases dropped between fiscal year 2009 and FY10, but the decrease is intentional and attributable to a new "tiering" system the agency is using to better target criminal enforcement on cases with the best deterrent effect, a key EPA enforcement official says. 1572 words

EPA Reveals Mixed Results With Fiscal Year 2010 Enforcement Data

EPA is touting its enforcement figures for fiscal year 2010 as reflecting an "all-time EPA record" for the value of injunctive relief -- pollution controls and other measures to improve the environment -- it won through enforcement actions, though the data also show drops in the number of civil and criminal enforcement cases opened. 1375 words

New California Tax Measure Could Snarl Product Stewardship Initiatives

Supporters of new California laws designed to increase paint and carpet recycling are waiting to see if the new programs can get off the ground in the wake of a voter-passed initiative that could make it more difficult to implement fee-based environmental programs. 935 words

ECOS Preparing To Help States Better Document Brownfields Investments

The Environmental Council of the States (ECOS) is developing recommendations on how states should collect the right information to document the economic benefits of investments in brownfields cleanups, in addition to the amount of environmental restoration completed, in order to protect brownfields programs from budget cuts. 630 words

Industry Cites Early Study Data To Target EPA's Strict Chromium Estimates

Industry-funded toxicologists are citing preliminary data from their extensive hexavalent chromium (Cr6) studies to suggest that the metal does not cause cancer when ingested in the way EPA outlines in its draft Cr6 risk assessment -- a suggestion that could lead to calls for EPA to soften the assessment. 857 words

Science Advisers, Industry At Odds Over EPA Lead Dust Hazard Models

EPA science advisers are leaning toward encouraging the agency to use a model to assess the impact of lead dust on child blood levels that is contrary to the wishes of industry groups but are withholding final judgment until the agency conducts additional analysis. 589 words

EPA Prepares Rulemaking To Clarify TRI Requirements For Metal Mining

EPA is moving closer to issuing a long-awaited proposal intended to clarify Toxic Release Inventory (TRI) reporting requirements for releases from metal mining facilities, which is expected to define when releases of naturally occurring toxic substances from the industry's "manufacturing" and "processing" activities are subject to reporting. 1041 words

In Landmark TRI Expansion, EPA Rejects Industry Plea To Drop NTP Data

EPA is, for the first time since the Clinton administration, expanding the list of chemicals whose releases must be reported to the Toxics Release Inventory (TRI), while rejecting industry requests to drop its use of National Toxicology Program (NTP) cancer risk data as the basis for listing compounds. 664 words

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 & 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 agency's Toxics Release Inventory (TRI). 785 words

EPA Mining Permit Veto Likely After Talks Collapse Over 'Sequential Fill'

EPA is likely to follow through on its threat to veto an already issued Clean Water Act (CWA) permit for a West Virginia mountaintop mining site after agency and industry officials failed to reach agreement over EPA's demand that the mining company pursue a "sequential fill" approach by building waste disposal sites one at a time, sources say. 953 words

EPA Planning Small Business Review Of Mining Financial Assurance Rules

EPA is seeking input from small businesses to help limit the economic impact of its pending proposed rule that will establish financial responsibility requirements for certain hard rock mining facilities, the latest effort from the agency to reach out to small businesses in its rulemaking process. 431 words

House Appropriators Propose $319 Million Cut For EPA In Fiscal Year 2011

House Appropriators are proposing to cut about $319 million from EPA's fiscal year 2011 budget compared to FY10 levels, including $10 million in previously obligated funds from EPA's State & Tribal Assistance Grants (STAG) program, as part of a broad measure that generally seeks to freeze overall government funding. 484 words

House Republicans Pick Upton To Chair Energy Panel In 112th Congress

Rep. Fred Upton (R-MI) has been tapped by Republican leaders to chair the powerful House Energy & Commerce Committee in the 112th Congress, beating back a challenge from Rep. Joe Barton (R-TX), the panel's ranking member, to lead the panel with extensive oversight over key EPA air, climate, drinking water and waste rules. 309 words

Activists Target Southeastern States In Bid For EPA Region IV Equity Push

Environmental justice advocates are targeting Southeastern states for what they say is a failure to address equity issues, weighing a push for EPA Region IV to revoke some states' delegated authority to implement federal environmental laws and asking the agency for new equity monitoring and enforcement. 1014 words

At 40, EPA Touts Successes, Struggles To Adjust To Future Challenges

As EPA celebrates its 40th year, the agency is touting its successes reducing air and water pollution and outlining its approach for the next generation of environmental regulation, in which the agency will be addressing problems that were largely unforeseen at the time of its founding, such as nonpoint runoff, climate change and electronic waste disposal. 1176 words

NAS Panel Sees Hurdle In Bid To Craft Novel Sustainable Approach For EPA

EPA is asking a National Academy of Sciences' (NAS) panel to provide landmark suggestions on how to build an operational framework for the agency to move beyond narrow risk assessments to a more sustainable approach, which Administrator Lisa Jackson says represents the "new approach" to environmental issues, but the panel's chair is warning that a clearer definition of sustainability is needed for NAS to respond to the agency's charge. 814 words

Order To Remove Biotech Crop Marks First Test Of High Court's NEPA Ruling

A federal court is requiring farmers to pull genetically modified sugar beet seed crops after finding that the U.S. Department of Agriculture's (USDA) approval violated the National Environmental Policy Act (NEPA), a ruling that could mark an early test for the Supreme Court's recent ruling that called injunctions for NEPA violations an "extraordinary" remedy. 1261 words

Activists Hopeful NEPA Guidance Revisions Raise Bar For Exclusions

The White House Council on Environmental Quality's (CEQ) revised guidance on when to spare projects from broad National Environmental Policy Act (NEPA) reviews is winning praise from activists who say it should make it harder for agencies to avoid consideration of environmental impacts and force more regular reviews of whether such categorical exclusions (CEs) are necessary. 608 words

Activists Eye Cleanup Agreement At Key Nuclear Waste Site As Standard

In a long-fought victory for environmentalists, the Department of Energy (DOE) and the California Department of Toxic Substances Control (DTSC) have finalized a cleanup agreement for a key nuclear waste cleanup site that the activists say will set a high bar for cleanup plans at similar sites around the country. 659 words

Activists Cite Lack Of Federal Cleanup Plan In Suit To Block Nuclear Plant

Environmentalists are launching a new suit that aims to block an aging nuclear power plant in Massachusetts from receiving a license renewal from the Nuclear Regulatory Commission (NRC), citing EPA and other federal agencies' lack of a plan for how to clean up after large-scale accidents at nuclear power plants. 1004 words

DOE Seeks To Dismiss Activist Lawsuit Over Waste Imports At Hanford

The Energy Department (DOE) is urging a federal district court to dismiss an activist lawsuit seeking a court enforceable ban on importing radioactive waste to the Hanford Nuclear Reservation from other sites, arguing that an existing agreement with the state already preempts outside waste for the next several years. 588 words

Court Lifts Stay On Suit Over DOE Withdrawal Of Yucca License Application

A key federal appellate court is allowing state officials and the nuclear power industry to move forward in their case challenging the Department of Energy's (DOE) decision to withdraw its license application to build a nuclear waste repository at Yucca Mountain in Nevada, according to a Dec. 10 court ruling. 411 words

CONTACT:
Enesta Jones (News Media only)

jones.enesta@epa.gov
202-564-7873
202-564-4355

FOR IMMEDIATE RELEASE

December 15, 2010

EPA Expands Air Monitoring Network to Protect Children from Lead

WASHINGTON – The U.S. Environmental Protection Agency (EPA) will expand the nation's air quality monitoring network to ensure that the most vulnerable Americans are protected from exposure to lead . Even at low levels, exposure to lead can impair a child's IQ, learning capabilities and memory.

EPA is strengthening lead monitoring requirements to ensure that air quality is measured near industrial facilities that emit a half ton or more of lead per year. Previously, the agency required monitoring near facilities emitting at least one ton of lead per year. EPA is also requiring monitoring at a network of multi-pollutant air quality monitoring sites in large urban areas. These changes will ensure monitoring occurs at the largest sources of lead emissions and will help assess typical lead levels in communities throughout the country.

Monitors will continue to be placed at airports emitting at least one ton of lead per year. EPA will also require the states to conduct a year-long monitoring study at 15 airports that emit less than one ton to determine how these sources impact air quality in the surrounding area.

This rule will help EPA implement a 2008 requirement to lower the amount of lead allowed in air. States have one year from the publication date of this rule to have the new monitors in place.

Lead emitted into the air can be inhaled or can be ingested after it settles in the environment. Ingestion is the main route of human exposure. Children are the most susceptible to lead poisoning because they are more likely to ingest lead , and their bodies are developing rapidly. There is no known safe level of lead in the human body.

More information: http://www.epa.gov/air/lead

R416

Actions for Discriminations under the Comprehensive Environmental Response, Compensation and Liability Act

CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act, provides a "Superfund" for cleaning up hazardous waste spills. Uncontrolled or abandoned waste sites and accidents, spills, and other emergency releases into the environment of contaminants and pollutants are covered by CERCLA.

Under Section 10 of CERCLA, employees are protected from discrimination by their employer for participating in a proceeding to enforce any CERCLA requirement. Section 10, 42 U.S.C.S. § 9610(a), provides:

No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has provided information to a State or to the Federal Government, filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

Discrimination Claims

The Environmental Protection Agency administers the general provisions of CERCLA. However, employee complaints of discrimination are filed with and handled by the Occupational Safety and Health Administration within the Department of Labor. Such complaints must be filed within 30 days after the violation of Section 10 occurs (although that deadline may be tolled if the discrimination is of a type, such as blacklisting or discriminatory working conditions, that may be considered continuing in nature).

Section 10 of CERCLA protects employees who themselves or through others provide information, file complaints, or participate in any manner in a proceeding related to administration or enforcement of the provisions of CERCLA. An employee's complaint to management or refusal to perform work due to conditions that the employee reasonably believes are unsafe or unhealthful may be considered participation in a proceeding under CERCLA.

Actionable discrimination under the Act is viewed broadly and includes termination from employment and any discrimination in compensation, terms, conditions, or privileges of employment attributable to the employee's participation in a CERCLA proceeding.

Complaints of discrimination received by OSHA are reviewed by supervisors who in turn will notify EPA of any potential environmental hazards disclosed by the complaint. The complaint letter, with witness names redacted, is sent to the respondent and the local EPA office, and an investigation is conducted by OSHA. A written notice of the results of the investigation and, if appropriate, an order of abatement should be completed within 30 days.

Remedies

Remedies for the employee include abatement of the discrimination through affirmative action including, but not limited to, rehiring or reinstatement of the employee or representative of employees to former positions with compensation. Costs and expenses will be assessed against the violator if the employee has to seek enforcement of the abatement order.

SITE INSPECTION SUMMARY
IRON MOUNTAIN MINE FIVE-YEAR REVIEW

The Oversight Agency will secure permission for the Site Operator to enter and perform
Work at the property owned by Iron Mountain Mines, Inc., T.W. Arman, the United
States, or the State (if any), including the facilities, plant and equipment located thereon
(and necessary to carry out the actions of the SOW and Consent Decree) for the sole
purpose of permitting the Site Operator to carry out the Work under the SOW and
Consent Decree.

11.0 Brick Flat Pit
The amount of leachate has decreased significantly at Brick Flat Pit. Throughout 2005, IMO
noted in the Monthly Progress Reports that minimal flow was occurring at leachate
Monitoring Sump 8R and low to minimal flow was observed from the Brick Flat Pit
Spillway System. Minimal leachtate flow rates have continued to occur. During the
October 26, 2005, meeting with AIG, EPA, IMO, and CH2M HILL (CH2M HILL, 2005), two
possible reasons for reduced leachate flow were discussed: (1) the leachate piping has
malfunctioned, or (2) the amount of leachate has decreased as a result of the thickness of the
overlying sludge, and the water is exiting the pit through the unlined sidewalls of the pit.
The Brick Flat Pit liner extends 10 feet from the bottom of the pit. The sludge is currently
about 80-feet thick.
IMO has conducted monitoring, but has not identified seeps around Brick Flat Pit. IMO has
performed phosfluorescent dye studies on the drainage system in an attempt to trace the
pathway of seepage from Brick Flat Pit. The phosfluorescent dye was a dye that is typically
used in sewer tracer studies. The dye has not been detected at potential exit points,
including AMD collected from the Richmond Mine. The dye might be diluted to below
detectable limits by other flows in the Richmond Mine or degraded during contact with
low-pH waters. IMO has monitored the water level in the leachate riser pipe, and no standing
water has been detected. IMO has poured water into the leachate riser pipes, and the water
has been observed to flow over the weir, indicating that the leachate pipelines are not broken.
IMO thinks, but has not been able to verify, that drainage from Brick Flat Pit is entering
stopes of the Richmond Mine, through the highly fractured north slope of Brick Flat Pit
(Carver, 2008).
Brick Flat Pit is considered a dry landfill (EPA, 2000). The location of Brick Flat Pit was
determined to be an effective sludge disposal location because drainage, If not captured,
would reenter the ore body and be captured by the AMD treatment system (EPA, 1986), or
would be discharged to the Slickrock Creek drainage, which is currentiy captured for
treatment by SCRR.
Section 6.4 (Landfill Management Report and Plan) of the SOW (EPA, 2000) requires that
"by November 30 of each year, the Site Operator shall provide to the Oversight Agency, for
Oversight Agency review and approval, the Landfill Management Report and Plan". As
described in the SOW, The Landfill Management Report and Plan is an annual report that
enables the Oversight Agency to effectively evaluate whether the Brick Flat Pit landfill was
properly managed, consistent with the concept design for a dry landfill, over the preceding
twelve (12)-month period, and that the landfill will be properly managed as a dry landfill
over the upcoming twelve (12)-month period. The Operations and Maintenance Submittal
Register of the IMO Febmary 2008 Monthly Progress Report (Table 10 of IMO, 2008g) indicates
that the most recent Landfill Management Report and Plan was submitted in January 2004
(IMO, 2004).

2.2 Statement of Work Requirements
Section 9.10.2.3 (Non-routine O&M Requirements for the Upper Spring Creek Diversion) of
the SOW requires the following:
"Over the next 3 years, the Site Operator shall perform necessary studies and implement a
satisfactory repair program to restore the RCCP lining system or, as necessary, replace the
RCCP lining system by December 2003."
Studies and evaluations performed by the Site Operator indicated that it would be costly to
restore or replace the pipeline liner system. Achieving adequate and long-term bonding of a
pipeline lining to concrete pipeline material is technical challenging. For these reasons, the
comprehensive liner repair program, as described in the SOW, has not been conducted. As
discussed in the following section, IMO's current approach is an annual pipeline inspection
and pipeline repair process to maintain the structural integrity of the pipeline.

"operation of the MFTP over the last 5 years demonstiates that HDS
metal removal can not achieve the initial BAT effluent limits for dissolved zinc or the BAT
30-day average limit for dissolved cadmium.
"

Exception to Federal Tort Claims Act, 28 U.S.C.A. § 2680(j). 23 A.L.R. Fed. 2d 489

Integrated Cleanup Initiative Draft Implementation Plan
EPA is soliciting public comment on the Integrated Cleanup Initiative Draft Implementation Plan through January 10, 2011. While many actions identified in this plan are underway, EPA will use the comments received to further evaluate and refine the draft plan.

Please submit comments to:
Becky Brooks
( brooks.becky@epa.gov )
USEPA
1200 Pennsylvania Ave., NW
(MC 5101T)
Washington, DC 20004

[Federal Register: November 30, 2010 (Volume 75, Number 229)] [Notices] [Page 74045-74046] From the Federal Register Online via GPO Access [wais.access.gpo.gov]

A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability

Abstract

American agricultural policy has evolved from its early focus on agricultural development and expansion to its current focus on economic and political support for the agricultural sector. Agricultural law as a discipline has tracked this policy, with agricultural law scholars debating the origins and the validity of the special treatment of agriculture under the law. This article reviews these debates and calls for a reconsideration of agricultural law and policy to address the unique aspects of agricultural production, the fragility of the environment, and the fundamental need for healthy food. Transforming the special law of agriculture to a new more inclusive system that focuses on the sustainable production of healthy food is a critical challenge for the future. Moreover, it provides the only way to assure a politically sustainable agricultural policy.

Repository Citation

Susan A. Schneider, A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability , 34 Wm. & Mary Envtl. L. & Pol'y Rev. 935 (2010), http://scholarship.law.wm.edu/wmelpr/vol34/iss3/5

 

Western Governors Association Conference

States' leaders say Endangered Species Act 'nonsensical,' hurts business and farming

The Endangered Species Act is a “nonsensical” policy that hurts businesses, property owners and farmers to protect animals and plants that may not be at risk, a panel of Democratic and Republican governors from throughout the West said Wednesday.

The governors complained of having their hands tied by federal policy as animal populations described as thriving but listed as endangered ravage private ranches, state parks and golf courses. Wildlife advocates say species that have thrived under the law's protection might again be threatened if taken off the list.

“The frustration level is reaching the breaking point in many levels because of this act,” said Utah Gov. Gary R. Herbert. “It's nonsensical.”

The Republican governor griped about swarms of endangered prairie dogs digging into golf courses. “They have become so domesticated, they are just a pain,” he said.

The discussion about overhauling the Endangered Species Act came on the second day of a two-day conference of the Western Governors Association. State executives from 19 states, plus the U.S. territories of Guam, American Samoa and the Northern Mariana Islands, were invited to attend.

Federal environmental officials acknowledged the law's challenges and slow-paced evolution, but largely aimed to rebut complaints and praise a conservation policy that seeks to protect nearly 2,000 species of birds, insects, fish, mammals, flowers and trees.

“Does the act always work perfectly? No,” said Eileen Sobeck, deputy assistant secretary of Fish, Wildlife and Parks. “Do the successes under the act outnumber the problems? I think they do.”

With its plentiful plains and rich wildlife, endangered species protections remain a testy issue in the West.

Hunters and ranchers, a powerful constituency in the Mountain West, have called for delisting recovering populations of certain species such as gray wolves and grizzlies. They contend that the federal policy affects the value and sovereignty of their land and threatens livestock. Western governors insist states, not federal regulators, should have authority over native species that affect local habitats and create business hurdles.

“We are pretty good at managing our wildlife,” Gov. Brian Schweitzer of Montana said.

Montana, Wyoming and Idaho have been in negotiations with the federal Interior Department to remove gray wolves from the endangered species in recent weeks, but talks have since stalled.

The region's 1,700 wolves lost their endangered status in Montana and Idaho in 2009, but were returned to the endangered list this year after a lawsuit brought by environmentalists.

Schweitzer, a Democrat, said that the gray wolf population in the West has fully recovered and should not be on the list, but federal regulators have been reluctant to reconsider the endangered designation.

“The Endangered Species Act is the Hotel California,” he told The Associated Press. “You can check in, but you can never leave.”

Schweitzer said rural states do not have enough clout in Congress to successfully lobby for the delisting of wolves under the Endangered Species Act, and he blasted federal officials for making the process so bureaucratic.

Idaho Gov. C. L. “Butch” Otter said the law has pitted business owners against government enforcers. The Republican suggested the federal government instead encourage land owners to protect endangered species on private land through financial rewards.

“The Endangered Species Act is broken, it's bankrupt, it's a fraud now,” he said.

 

Chinook Salmon lost and found department

PROTECT ARMAN UNDER ESA

Community resiliency is a shared responsibility and the government cannot do it alone. Through this collaboration with private industry, the federal government and its state and local partners will be better equipped.

 

To maintain a claim that EPA has “unreasonably delayed” its duties under CERCLA, the court held that plaintiffs may continue to press their claims under another statute, the Administrative Procedure Act (APA), but must do so in another court.  The court stated, “plaintiffs may bring an APA 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).”   Id . at 6.  Unless and until such a litigation is brought and decided, the timeline for financial assurance requirements under CERCLA will remain unclear.

CERCLA 108(b) Rulemaking Overview

Regulatory Access to Contaminated Sites: Some New Twists to an Old Tale 2

Roger D. Schwenke, R26 Wm. & Mary Envtl. L. & Pol'y Rev. 749 (2002)

 

SAFE WATERSHED REFORM-ACT CHALLENGES

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.

THE SAFE WATERSHED REFORM-ACT.

Over the last 30 years National Water Quality Inventories have documented pathogens as a leading cause of river and stream impairments.

EPA MUST ADDRESS THIS PRIORITY.

HARD LOOK

C. National Environmental Policy Act

In passing NEPA, Congress “recognized the profound impact of man's activity on the interrelations of all components of the natural environment” and set out “to create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4331(a).

To bring federal action in line with Congress' goals and to foster environmentally informed decision-making by federal agencies, NEPA “establishes ‘action-forcing' procedures that require agencies

to take a ‘hard look' at environmental consequences.” Metcalf v. Daley , 214 F.3d 1135, 1141 (9th Cir. 2000) (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348 (1989)). Foremost among those procedures is the preparation of an environmental impact statement (EIS).

Agencies considering “major Federal actions significantly affecting the quality of the human environment” are required to prepare an EIS. 42 U.S.C. § 4332(C). The EIS “shall provide full and fair discussion of [the] significant environmental impacts” of the proposed action. 40 C.F.R. § 1502.1. That discussion serves two purposes:

First, it ensures that the agency, in reaching its decision, will have available, and will carefully consider,

detailed information concerning significant environmental impacts. Second, it guarantees that the relevant

information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 768 (2004) (internal quotation marks, brackets, and citation omitted). By WESTERN WATERSHEDS PROJECT v. KRAAYENBRINK 13249 focusing agency and public attention on the environmental effects of proposed agency action, “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh v. Or. Natural Res. Council , 490 U.S. 360, 371 (1989).

and coordinated compliance and enforcement, more integrated approaches to capitalize on synergies, improved communication with a broader audience, and greater leveraging of programs. Just as EPA will have to employ all of its tools, so too must all our partners—state, local, tribal, and federal—play their roles.

EPA must improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path. EPA will also work to greatly increase cooperation, partnerships and communication to achieve victories in areas where regulatory approaches are not appropriate. We will support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses. We will take action to ensure all major point sources of pollution have permits that require clear, verifiable results. And by implementing new enforcement approaches per the Clean Water Action Plan , including more integrated problem solving, collaboration across standards setting, permitting and enforcement programs, EPA will bring violators into compliance.

Another key element of this strategy is improvement of assessment and classification of watersheds. And building on this, EPA will increase cooperation with states to identify and protect those waters that are healthy; a far more cost effective approach than cleaning up a waterbody after it has been polluted. EPA also seeks to find ways to better integrate new technologies and approaches into our clean water programs. For example, green infrastructure provides an important set of tools for changing the way stormwater discharges viewed—from being treated as a waste product that comes with high-cost infrastructure systems – to realizing and using it as a valued resource. Green infrastructure can also have positive effects on sanitary sewer overflows and combined sewer overflows, which are major urban water concerns. EPA AND STATES will also explore opportunities to better integrate sustainable practices into policies and programs; for instance: energy-neutral wastewater treatment, water efficiency, energy efficiency, and water reuse.

EPA will seek solutions to address recent, emerging, and growing watershed quality issues including increased mining activities, drilling, aging infrastructure and increased urbanization and development. Invasive species are also a significant threat to aquatic ecosystems. Using regulatory programs EPA and States fund communities meaningful steps to reduce OR ELIMINATE the likelihood that invasive species are able to spread from one waterbody to another . Additionally, as excess nutrient pollution continues to be a major concern, industry and communities must find a better means to addressing this problem on the critical path to success. EPA will work in partnership with states AND COMMUNITIES to better manage excess nutrient enrichment and promote state accountability frameworks that include publicly-available, science-based, state nutrient reduction implementation activities that are watershed-based and have mechanisms to achieve the reductions.

STRATEGIES TO ACHIEVE SAFE WATERSHED REFORM-ACT GOALS

This strategy's success depends on many factors working together. Local governments, states, and tribes, each working under their own authorities and capacities, to ensure watersheds in their jurisdiction are safe. It is up to EPA to bring these groups together to more smoothly coordinate and harmonize our efforts in order to optimize the results. EPA has identified several key strategies to guide our efforts, and actions that respond to the challenges we face: Public Discussion SEPTEMBER 2010 - 4

 

•  Systematically assess watersheds to provide a baseline for transparently tracking progress;

•  Enhance COMMUNITIES ability to restore degraded watersheds, and take action to increase the number of restored watersheds;

•  Reduce emissions entering our watersheds; and

•  Enhance watershed resiliency and revitalize communities through multi-benefit, sustainable technologies and approaches that will ensure resiliency to development, urbanization and other factors.

 

KEY ACTIONS FOR STRENGTHENING WATERSHED PROTECTIONS

By approaching the most significant safe land and watershed challenges facing the nation from a more realistic perspective and using resources creatively, we will undertake a range of actions to implement these strategies to get a better understanding of the state of our nation's watersheds, work to protect what we've got, fix what's broken, expand our work to keep watersheds safe, and build for the future while ensuring we are meeting our economic and community needs. In doing so, the community will expand existing partnerships and develop new, locally-based partnerships, and implement tools and policies that will foster tailored approaches. In addition to strengthening and expanding partnerships, to achieve the next level of protection, we will work within the community and outside the community to strategically leverage funding opportunities to reduce emissions from unregulated sources.

In implementing these actions, the community remains committed to the following principles:

•  Use bold, new, creative, more effective ways to implement SWR and other programs, more strategically deploy existing regulatory authorities and enforcement programs, as well as voluntary approaches and market-based incentives;

•  Rely on robust science and cutting-edge technologies, particularly in emerging areas of concern such as climate adaptation, ecosystem services, integrated watershed approaches;

•  Increase focus on improving environmental quality in disadvantaged communities that have historically suffered severe degradation of watershed quality that provide key ecosystem services;

•  Engage a broader range of stakeholders in decision-making and provide the EPA and other stakeholders with reliable information about watersheds; and

•  Achieve and document measurable results.

 

Know What You've Got – Systematically Assess Watersheds to Provide a Baseline Effective management of watershed resources requires reliable information and an informed public. To better inform our efforts, improve accountability, policy, planning, increase stewardship, and better measure progress of ongoing efforts to improve the quality of data in the long-term; the EPA will focus on systematically assessing the nations watersheds. The National Aquatic Resource Surveys for streams, lakes and coastal waters already provide the baseline for the condition of watersheds across the - Public Discussion Draft – September 2010 5 -

nation against which we can track changes in water condition at the national and regional scales. In the next several years, EPA will complete the first set of five Aquatic Resource Surveys that will give us a complete picture of the condition of all watershed types across the nation. EPA, working with our partners, will also explore opportunities to build on existing monitoring and assessment efforts to better identify, classify, and track the status of our watersheds. This multi-scaled approach to monitoring and assessment will give communities the information they need to make informed decisions about how best to manage watershed resources and help the public understand the effectiveness of federal and state investments.

Key EPA Actions:

•  Complete cycle of National Aquatic Resource Surveys to provide baseline for documenting trends in degradation and major stressors in the next several years,

•  Complement existing impaired watershed listings with identification of healthy watersheds across the U.S. ; and

•  Explore opportunities for increasing strategic information attained from and integrity of the Integrated Watershed Quality Monitoring and Assessment Reports to provide a more comprehensive picture.

 

Protect What We Have – Increased Focus on Protection of Healthy Watersheds

EPA's watershed quality protection program is focused on the remediation of impaired watersheds and the reduction of specific emission levels in watersheds. While EPA and our state partners have made and are continuing to make considerable progress in this important work, we recognize the need to protect and maintain healthy watersheds as well. Healthy watersheds provide our communities with drinking water, recreational opportunities, environmental benefits and services, including safe watershed for healthy aquatic ecosystems, habitat for fish and wildlife, and better resilience against floods and future land-use changes. Protecting healthy watersheds will result in considerable savings over time if the need for costly restoration can be avoided in watersheds that would otherwise become impaired by cumulative impacts.

EPA will study and report the health and safety of watersheds sufficiently for communities to explore, develop, and make available more effective information and expertise to conduct ecological assessments, to classify and list healthy watersheds. By developing, along with our state partners, a science-based structure on a national level, EPA hopes to provide the tools to help them inventory and then take action to protect their healthy watersheds. EPA will also enhance public awareness and, together with better equipped and organized State action, will ultimately lead to increased protection of our watershed assets.

COMMUNITIES will utilize SWR tools to increase protection of high quality watersheds, including revisions to water quality standards, and focus on protecting those watersheds that are threatened by coal and hard rock mining activities.

Key EPA Actions:

•  Through the new Healthy Watershed Initiative, develop a common set of comprehensive metrics to create a national list of healthy watersheds (e.g., linking watershed protection and species diversity); use the latest state-of-the-science, peer-reviewed methods to conduct

Public Discussion Draft – September 2010 6

 

assessments to identify healthy watersheds across states using CWA funds (e.g., 604(b), 319, and 106) in partnership with other Federal agencies. With these assessments, help set States set priorities and implement protection and conservation programs;

Support legislation and consider administrative action to initiate SWR protections for our watersheds;

Use the full suite of SWR tools to dam streams from destruction and degradation caused by mining activities;

Propose changes to the state water quality standard regulations to protect watersheds; and

Ensure States are effectively administering watershed programs.

 

Fix What's Broken – Enhance The Communities Ability to Restore Watersheds

The restoration of watersheds will be critical to making significant progress. In order to do so EPA will use the San Francisco Bay, Chesapeake Bay, and the Everglades as a demonstration for improved monitoring of restoration progress. Success in cleaning up the Everglades, San Francisco and Chesapeake Bay watersheds will be a model for watershed protection in other parts of the country. This combined approach of protecting healthy watersheds and restoring impaired waters will ultimately improve the overall state of our nation's watersheds.

Key EPA Actions

1 Work with states to and communities to carry out more strategic and effective implementation of watershed-based plans;

2 Develop reasonable assurance guidelines regarding watersheds;

3 Coordinate funding opportunities with USDA to accelerate nutrient and sediment reductions and tackle key agriculture challenges through an integrated approach using 319 Program, Clean Water State Revolving Fund (CWSRF), CWA section 117, STAR grants and USDA Conservation programs;

4 Use market-based tools where appropriate to improve watersheds;

5 Implement all of the above actions in conjunction with states and communities in the Chesapeake Bay watershed and other federal agencies to execute the President's Executive Orders.

In addition, EPA will:

•  Implement federal land management practices that protect forests and watersheds, and incorporate sustainable practices;

•  Create a system for tracking and reporting watershed commitments and two-year milestone commitments;

Keep it Safe – Safe Watersheds Reform-Act Public Discussion September 2010 7

EPA seeks to increase protection of our watersheds by reducing current loadings and preparing for substantial predicted increases associated with development, urbanization, and other factors. Across the board, under the SWR, communities address a number of watershed challenges.

Where problems are identified, communities apply the best standards available, eliminate loopholes, and set performance standards through robust modifications to current regulations.

For example, in addition to the work underway in Chesapeake Bay as part of the President's recent Executive Order, EPA will use its expertise robustly help communities protect and restore natural treasures such as the Great Lakes and the Gulf of Mexico as navigable waterways of the united states . EPA is heading up a multi-agency effort to restore and protect the Great Lakes, one of America's great waterways, through the Great Lakes Restoration Initiative. In other parts of the nation, we will focus on the long-term health of important ecosystems such as the Mississippi River Basin . Further, given the environmental catastrophe resulting from the Deepwater BP oil spill, EPA will take all necessary actions to support efforts to clean up and restore the Gulf of Mexico ecosystem and prevent another disaster.

Key EPA Actions:

•  Transfer the National Pollutant Discharge Elimination System (NPDES) which will streamline the regulatory authority;

•  Develop guidance for publicly owned treatment works (POTWs) to protect the public and the environment from the effects of sanitary sewer overflows and the release of partially treated waste water from treatment facilities. Potential regulatory approaches include additional reporting and public notice when overflows occur, increased responsibilities for properly operating and maintaining sewer systems, clarifying the requirements for satellite collection systems, and addressing peak wet weather flows at the treatment plant. EPA will also explore more widespread use of green infrastructure techniques in combined sewer overflow control plans;

•  Expand municipal storm water guidance to currently unregulated areas and establish performance standards for storm water discharges from newly developed and redeveloped sites that result in reduced discharge, including through the use of green infrastructure techniques;

•  Develop guidance to reduce pesticide discharges to waters of the U.S. ;

•  Audit point source programs;

•  Evaluate implications of study currently underway within EPA's Office of Research and Development;

•  Develop guidance for cooling water intakes at over 1200 power plants and manufacturing facilities; and

•  Work in partnership with states and communityies to better manage excess nutrient enrichment in surface waters, including:

Public Discussion Draft – September 2010 8

 

•  Initiating scientific report(s) based on best available science and subject to peer review to determine necessary nutrient loads to restore and maintain watershed quality in key areas;

•  Developing guidance to assist authorities in standards for nutrients;

•  Improving public understanding of the public health, environmental impacts, and economics; and

•  Leveraging federal funding to assist communities in implementing nutrient reduction strategies.

 

Build for the Future – Enhance Watershed Resiliency and Revitalize Communities

In order to maximize clean watershed protection under current authorities, EPA must make a substantial shift in programmatic approaches to identify and implement multi-benefit solutions that will help communities plan and be more responsive to changing factors such as population growth, increased urbanization, etc.e. A more realistic approach will facilitate capitalizing on existing programs, tools, policies and available funding to achieve measurable results. A collaborative approach to community-based programs will achieve multiple objectives, break down traditionally stovepipe divisions, and broadly engage local communities in decisions that impact local and state waters. For example, capitalizing on green infrastructure, water/energy synergies and integrated water management are key features in this new approach.

EPA must develop a renewed strategy on green infrastructure to identify and target the next set of actions that need to be undertaken to promote and support green infrastructure practices. EPA must also develop a framework for encouraging and facilitating more integrated watershed management approaches at the state and local level, and support solutions that reduce infrastructure costs and promote more efficient, locally coordinated resource use. These more integrated solutions, ultimately, lead to long-term sustainability, community participation, better watershed quality, and more robust ecosystem services.

Key EPA Actions:

•  Promote green infrastructure more broadly. Consider policy options to make green infrastructure solutions an available tool for meeting SWR requirements considering the incorporation of non-traditional or green infrastructure alternatives in policies to increase adoption of green infrastructure practices;

•  Encourage integrated water management approaches. Implement policies and help direct national attention toward more sustainable water management practices that better integrate land use at the watershed level. Building on synergies within the watershed sector, integrated approaches can allow communities to more sustainable watershed infrastructure and supply costs and investments,

Public Discussion Draft – September 2010 9

 

as well as potentially reduce overall energy consumption, and both utilize renewable energy and/or create new energy sources;

Encourage states to use their Clean Water State Revolving Funds (CWSRF) for projects that will best advance these policies and are consistent with the community's sustainability policy. Additionally, EPA will continue to work with States to ensure that all CWSRF programs meet the mandated requirement to use at most 100% of FY 2010 appropriated funds for green projects such as green storm water infrastructure, water efficiency projects, energy efficiency projects, and other innovative environmental projects;

Develop policies that will facilitate greater collaboration and accelerate the commercialization of cutting-edge technologies that help deliver clean water such as energy self-sufficient waste water treatment;

Develop comprehensive approaches, including all of the above actions, to help transform previously degraded urban watersheds into community assets by:

•  Linking environmental programs with existing priorities such as economic development;

•  Adding environmental components to economic programs in pilot areas

•  Facilitating watershed clean-up efforts; and

•  Work to ensure the overall sustainability of drinking water and waste water utilities by better incorporating adaptation and mitigation strategies and other cost-efficient infrastructure practices into planning and operations.

 

CONCLUSION

Without safe watersheds, no part of a community—its ecology, its economy, its health—can thrive. It is at the core of our communities and is crucial to the vitality of our rural areas. Realizing this imperative for safe watersheds, our nation will require the balanced, organized, and thoughtful effort and collaboration of all levels of government. We will make the most of all of the resources and programs available to us.

The best way to bring the Safe Watershed Reform-Act's purpose into reality is for communities to strengthen and expand the national conversation on protecting and maintaining watersheds. Growing partnerships will be helpful in light of national trends in watershed quality and recent environmental disasters.

EPA invites tribes, states, communities, and all Americans to come together for safe watersheds and our national quest to achieve the purpose of the SWR. We can have sustainable communities and watersheds.

 

CERCLA § 104, 42 U.S.C. § 9604 (2000 & Supp. V 2005). Implementation of healthrelated
authorities provided in CERCLA section 104 is a joint responsibility of the EPA
and the Agency for Toxic Substances and Disease Registry (“ATSDR”), which was
established under section 104. Id. § 9604 (i) (providing a listing of responsibilities of the
ATSDR administrator and of other EPA/ATSDR joint responsibilities).
38 See id. § 9604(a)(1) (2000). See also id. § 9601(23) (defining “removal”); id. § 9601 (24)
(defining “remedial action”). The President is authorized to acquire real property, or any
interest therein necessary, in the President’s discretion, to conduct remedial actions. Id.
§ 9604(j)(1) (2000). See also id. § 9601(33) (defining “pollutant or contaminant”); id. § 9605
(discussing the preparation contents, revision, and republication of the national contingency
plan).
39 42 U.S.C. § 9604 (2000). The President has the authority to act under section 104 of
CERCLA to:
remove or arrange for the removal of, and provide for remedial action
relating to such hazardous substance, pollutant or contaminant at any
time (including its removal from any contaminated natural resource),
or take any other response measure consistent with the national contingency
plan which the President deems necessary to protect the public
health or welfare or the environment.
Id. § 9604(a)(1).
40 Id. § 9604(e)(5)(A).
41 Id. § 9606(a).
42 Id. § 9606(a)-(b). CERCLA section 106 directs the federal courts to use their equitable
powers to cause responsible parties to abate the danger caused by the release or threatened
release. Id. § 9606(a).

(4) that each of the defendants is a “person,” as that term is defined in 42 U.S.C. § 9607(a).

(Iron Mountain Mines is not a person)

[Federal Register: November 30, 2010 (Volume 75, Number 229)] [Notices] [Page 74045-74046] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [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: http://www.regulations.gov: Follow the on-line instructions for submitting comments. E-mail: superfund.docket@epa.gov 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 http://www.regulations.gov , 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 http://www.regulations.gov or superfund.docket@epa.gov . The http:// www.regulations.gov 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 http://www.regulations.gov 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 http://www.epa.gov/epahome/dockets.htm . Docket: All documents in the docket are listed in the http:// www.regulations.gov 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 http://www.regulations.gov 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: love.chip@epa.gov , 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:// www.regulations.gov . 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

Environmental Protection Agency Administrator Lisa Jackson testifies during a hearing in Washington, DC. that "The EPA asks for more time in crafting new pollution regulations."

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

Release date: 12/06/2010

Contact Information: Richard Yost, yost.richard@epa.gov, 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 RFA-SBREFA@epa.gov 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:
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY INFORMATION SYSTEM
CAD980498612 SUPERFUND NPL CERCLIS

INTEGRATED COMPLIANCE INFORMATION SYSTEM 38045 FORMAL ENFORCEMENT ACTION ICIS 09/13/2002 ICIS -09-2002-0078
FORMAL ENFORCEMENT ACTION
ICIS -09-1987-0013
FORMAL ENFORCEMENT ACTION
ICIS -09-1990-0018
FORMAL ENFORCEMENT ACTION
ICIS -09-1997-0008
FORMAL ENFORCEMENT ACTION
ICIS -09-1997-0157
FORMAL ENFORCEMENT ACTION

Additional EPA Reports:  

MyEnvironment Cleanups in My Community Site Demographics Watershed Report

Standard Industrial Classification Codes (SIC)

Data Source SIC Code Description Primary
ICIS
1031
LEAD AND ZINC ORES

ICIS
1011
IRON ORES

ICIS
1021
COPPER ORES

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
I M M CERCLIS

Organizations

No Organizations returned.

National Industry Classification System Codes (NAICS)

Data Source NAICS Code Description Primary
FRS 212210 IRON ORE MINING.
FRS 212231 LEAD ORE AND ZINC ORE MINING.
FRS 212234 COPPER ORE AND NICKEL ORE MINING.

Facility Mailing Addresses

Affiliation Type Delivery Point City Name State Postal Code Information System
COMMUNITY INVOLVEMENT COORDINATOR 75 HAWTHORNE STREET SAN FRANCISCO CA 94105 CERCLIS

Contacts

Affiliation Type Full Name Office Phone Information System Mailing Address
COMMUNITY INVOLVEMENT COORDINATOR
EUGENE RAINWATER
4159723217
CERCLIS
View

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
Waterbody Name: KESWICK RESERVOIR (PORTION DOWNSTREAM FROM SPRING CREEK)
State Basin Name: CENTRAL VALLEY
Listed Water Map Link: Map Impaired Water

 

DELISTING FROM KESWICK TO COTTONWOOD SINCE MAY 2009 - TRUST WATER HABITATS OF THE UNITED STATES
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
CADMIUM METALS (OTHER THAN MERCURY) SEP-30-2020
COPPER METALS (OTHER THAN MERCURY) SEP-30-2020
ZINC METALS (OTHER THAN MERCURY) SEP-30-2020

Total Maximum Daily Load (TMDL) Information:

There were no TMDLs reported to EPA by the state.

Watershed Information:

Watershed Name Watershed States
SACRAMENTO-UPPER CLEAR CALIFORNIA

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.
KESWICK RESERVOIR (PORTION DOWNSTREAM FROM SPRING CREEK) LAKE/RESERVOIR/POND color.gif1
SPRING CREEK, LOWER (IRON MOUNTAIN MINE TO KESWICK RESERVOIR) STREAM/CREEK/RIVER color.gif1
WILLOW CREEK (SHASTA COUNTY, BELOW GREENHORN MINE TO CLEAR CREEK) STREAM/CREEK/RIVER color.gif1
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

 

Note

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                                   
202-358-1600
david.s.weaver@nasa.gov
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.

Consequences of the War Against the South

December 11, 2010 By Michael

Neo-Federalist program prevails in America

Murray Rothbard , “Mr. Libertarian” himself, explains the results that came out of Old Abe's conquest of the seceded Southern States in the 1860s. Rothbard argues that beyond its death and destruction, the war also resulted in a huge growth in militarism and destroyed hard money, the old decentralised banking system as well as the pre-war dominance of the essentially libertarian Democratic Party. The previously sovereign States of the Union were forged into a single centralised state ruled by Neo-Federalist principles:

Let us trace the leading consequences of the War Against the South: there is, first, the enormous toll of death, injury, and destruction. There is the complete setting aside of the civilized “rules of war” that Western civilization had laboriously been erecting for centuries: instead, a total war against the civilian population was launched against the South. The symbol of this barbaric and savage oppression was, of course, Sherman's march through Georgia and the rest of the South, the burning of Atlanta, etc. (For the military significance of this reversion to barbarism, see F.J.P. Veale, Advance to Barbarism). Another consequence, of course, was the ending of effective states' rights, and of the perfectly logical and reasonable right of secession – or, for that matter, nullification. From now on, the Union was a strictly compulsory entity.

Further, the Civil War foisted upon the country the elimination of Jacksonian hard money: the greenbacks established government fiat paper, which it took 14 long years to tame; and the National Bank Act ended the separation of government from banking, effectively quasi-nationalizing and regulating the banking system, and creating an engine of governmentally sponsored inflation.

So ruthlessly did the Lincoln administration overturn the old banking system (including the effective outlawing of state bank notes) that it became almost impossible to achieve a return – impossible that is, without a radical and almost revolutionary will for hard money, which did not exist. On the tariff, the virtual destruction of the Democratic Party led to the foisting of a high, protective tariff to remain for a generation – indeed, permanently, for the old prewar low tariff was never to return. It was behind this wall of tariff-subsidy that the “trusts” were able to form. Further, the administration embarked on a vast program of subsidies to favored businesses: land grants to railroads, etc. The Post Office was later monopolized and private postal services outlawed. The national debt skyrocketed, the budget increased greatly and permanently, and taxes increased greatly – including the first permanent foisting on America of excise taxation, especially on whiskey and tobacco.

Thus, on every point of the old Federalist-Whig vs. Democrat-Republican controversy, the Civil War and the Lincoln administration achieved a neo-Federalist triumph that was complete right down the line. And the crushing of the South, the military Reconstruction period, etc. assured that the Democratic Party would not rise again to challenge this settlement for at least a generation. And when it did rise, it would have a much tougher row to hoe than did Van Buren and Co. in an era much more disposed to laissez-faire.

But this was not all: for the Civil War saw also the inauguration of despotic and dictatorial methods beyond the dreams of the so-called “despots of '98.” Militarism ran rampant, with the arrogant suspension of habeas corpus, the crushing and mass arrests in Maryland, Kentucky, etc.; the suppression of civil liberties and opposition against the war, among the propeace “Copperheads” – the persecution of Vallandigham, etc.; and the institution of conscription. Also introduced on the American scene at this time was the income tax, reluctantly abandoned later, but to reappear. Federal aid to education began in earnest and permanently with federal land grants for state agricultural colleges. There was no longer any talk, of course, about abolition of the standing army or the navy. Almost everything, in short, that is currently evil on the American political scene, had its roots and its beginnings in the Civil War.

Because of the slavery controversy of the 1850s, there was no longer a single libertarian party in America, as the Democratic had been. Now the free-soilers had left the Democrat ranks. But, especially after Dred Scott had pushed the Douglas “Freeport Doctrine” to the fore as libertarian policy, there was hope for a reunited Democracy, especially since the Democrat party was still very good on all questions except slavery. But the Civil War wrecked all that, and monolithic Republican rule could impress its neo-Federalist program on America to such an extent as to make it extremely difficult to uproot.

Murray N. Rothbard (1926–1995) was the author of Man, Economy, and State , Conceived in Liberty , What Has Government Done to Our Money , For a New Liberty , The Case Against the Fed , and many other books and articles . He was also the editor – with Lew Rockwell – of The Rothbard-Rockwell Report .

Copyright © 2008 Ludwig von Mises Institute

 

http://www.etec.energy.gov

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
Administration.”

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:
http://myfloridalegal.com/webfiles.nsf/WF/CRUE-8BWPPD/$file/epacompliant.pdf

Contact: Sandi Copes
Phone: 850.245.0150
Sandi.Copes@myfloridalegal.com

Biomass power major part of eco-park plan

By Lisa Gibson | December 15, 2010

Forsite Development has finalized crucial decisions in the process of developing its 20-megawatt waste-to-energy plant along the Catawba River in Charlotte, N.C., just one part of a major undertaking by the company, as it seeks to transform a 667-acre Superfund site into the region's first eco-industrial area dubbed ReVenture Park .

Most recently, the company announced it has chosen ICM Inc.'s gasification technology, coupled with emissions abatement systems from Eisenmann Corp. “We have been in an exhausting technology validation process,” said Forsite President Tom McKittrick. Together, the systems will help the plant reach more stringent new regulations coming from multiple fronts, including the U.S. EPA's boiler Maximum Achievable Control Technology rule, which currently is due out in January but could be pushed to April 2012, pending on a court decision on the EPA's extension request.

During the enormous ReVenture Park project, the contaminated land will be recycled and dedicated solely to renewable energy, according to McKittrick. Plans include a solar field, a wastewater treatment facility, energy crop demonstration stands, an ethanol mixing operation, and office space for research and development, among other aspects.

The $300 million biomass power plant is the element of the project furthest along in development, with memorandums of understanding signed for municipal solid waste from Mecklenburg County's residential garbage collection, and negotiations in late stages for the sale of electricity, McKittrick said. The waste feedstock will first be processed at another proposed facility off-site, to be operated by Charlotte-based recycling firm FCR Casella. That $30 million facility will be permitted to process about 575,000 tons of garbage per year, supplying between 180,000 and 200,000 tons to ReVenture's biomass plant, McKittrick said. The power plant will also be capable of using yard debris, although that will be processed separately.

Since the city of Charlotte recently approved those amendments to the garbage routing, allowing for a biomass supply, Forsite is now working on the power plant's air permit. “We are in the process now of engineering work required for the air permit,” he said, adding that the permit will drive the timeline for construction and operation. The plant should be operational by 2013 and has consumed 90 percent of the ReVenture project focus from Forsite thus far, McKittrick said. “The anchor project is this 20-megawatt waste-to-energy plant,” he said.

CONTACTS:
EPA Press Office
press@epa.gov

Council on Environmental Quality
Sahar Wali
202-395-5428

Taryn Tuss
202-456-6998

FOR IMMEDIATE RELEASE
December 15, 2010


Obama Administration Convenes Environmental Leaders at Historic White House Environmental Justice Forum Featuring Five Cabinet Secretaries

WASHINGTON, D.C. – Five Cabinet secretaries and senior officials from a wide range of federal agencies and offices participated in the first White House Forum on Environmental Justice today, illustrating the Obama administration's commitment to ensuring all Americans have strong federal protection from environmental and health hazards.

More than 100 environmental justice leaders from across the country attended the day-long event, which featured White House Council on Environmental Quality Chair Nancy Sutley, EPA Administrator Lisa P. Jackson, Attorney General Eric Holder, Secretary of the Interior Ken Salazar, Secretary of Labor Hilda Solis, Secretary of Health and Human Services Kathleen Sebelius, and Secretary of Homeland Security Janet Napolitano.

“Low-income and minority communities often shoulder an unacceptable amount of pollution in this country, diminishing their economic potential and threatening the health of millions of American families,” said Nancy Sutley, Chair of the White House Council on Environmental Quality . “The White House Forum underlines the commitment across the Administration to integrating environmental justice into the missions of federal agencies, and ensuring this really is a country of equal opportunity for all.”

“This administration has taken unprecedented steps to ensure that environmental protection reaches every community. We want to put an end to the days when public health and economic potential are harmed by disproportionate exposure to pollution,” EPA Administrator Lisa P. Jackson said. “Our continued success relies on close collaboration with our federal partners and strong input from the groups and individuals engaged at the community level. This meeting is an important way to advance all of those goals.”

“For decades, our nation's environmental problems and threats have been heaped disproportionately on America's most vulnerable communities. This is unacceptable, and it is unconscionable. But through the aggressive enforcement of federal environmental laws in every community, I believe we can and must change the status quo and ensure environmental justice for all Americans,” said Attorney General Eric Holder .

“The Obama administration is committed to making environmental justice a central part of our everyday decision-making process,” Secretary Salazar said . “Today's forum speaks to our high-level engagement in strengthening communities that are too often left out and left behind.”

“The administration's focus on environmental justice includes the opening of substantive opportunities to the 21 st century green economy for our minority and low-income communities,” said Secretary of Labor Hilda L. Solis . “Fostering and leveraging the tremendous untapped human resources that exist across the nation is the smart and right thing to do. After all, it is possible to do well while doing good. Together, we can ensure the U.S. economy is both more reflective of our diversity and more robust in the face of global competitiveness.”

“We understand that people's health is determined not just by what happens in their doctor's office but also by their environment -- where you live, work, go to school, and play, what you eat and drink, the air you breathe, and how you get around. We are committed to collaborating across the government to put the environment at the center of our health agenda,” said Secretary Sebelius .

“The Department of Energy is committed to environmental justice and to promoting healthy communities for all Americans,” said Energy Secretary Steven Chu . “The Obama administration is investing in clean energy to not only improve the environment, but to strengthen the economy, save families money and create jobs in all communities.”

The forum highlighted initiatives underway across the federal government that affect environmental justice communities. Discussions centered on the Obama administration's commitment to ensuring that communities overburdened by pollution – particularly minority, low-income and indigenous communities – have the opportunity to enjoy the health and economic benefits of a clean environment. The forum also provided an opportunity for environmental justice and community leaders and officials from state, local and tribal governments to engage in a conversation with administration officials about environmental justice. These leaders offered their vision for healthier and more sustainable communities during panel discussions throughout the day.

Panels focused on:

-  How investments in the clean energy economy are expanding green job opportunities in environmental justice communities and beyond.

-  How existing legal authorities are being used to more fully engage communities that have been left out and left behind.

-  How the federal government is addressing environmental and health disparities in communities throughout the country.

-  How low-income communities can work with federal, state and local governments to prepare for the environmental and health impacts of climate change.

On September 22, 2010, Administrator Jackson and Chair Sutley reconvened the Interagency Working Group on Environmental Justice for the first time in more than a decade. At a White House meeting attended by five Cabinet members, the administration recommitted to advancing the mandate of Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” which states that each agency, with the law as its guide, should make environmental justice part of its mission.

More information on the Interagency Working Group on Environmental Justice: http://www.epa.gov/environmentaljustice/interagency/index.html

R417

US Energy Department Picks Five Critical REEs
Resource Investor
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Energy Department : US rare earth access at risk, supply diversity needed
The Hill (blog)
The recommendations are part of a broad new DOE study on the elements that are critical to manufacturing wind turbines, electric vehicles, solar cells and ...
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US offers $30M for high-risk biofuel research
NetworkWorld.com
The US Department of Energy today announced $30 million for research projects that would develop advanced biofuels that could replace gasoline or diesel ...
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EPA Regulations Killing Clean Energy
Heritage.org (blog)
Exelon, owner of the New Jersey Oyster Creek nuclear power plant, recently announced that it plans to close the plant 10 years early because of EPA ...
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U.S. EPA’s
ADMINISTRATIVE CONTROL
of
APPROPRIATED FUNDS
OMB APPROVED
RELEASE 3.2
February 4, 2008

EPA's two-year appropriations are:
a.
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.
b.
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.
c.
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:
a.
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.
b.
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.
d.
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.

CHAPTER 2:
ROLES and RESPONSIBILITIES OR FUNDS CONTROL
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).
I.
PARTICIPANTS:
A. ASSISTANT ADMINISTRATORS (AAs),
NATIONAL PROGRAM MANAGERS (NPMs), and
RESPONSIBLE PLANNING AND IMPLEMENTATION OFFICERS (RPIOs)
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.

B. REGIONAL ADMINISTRATORS (RAs)
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 http://www.epa.gov/regional/leadregionprocess.htm. 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.
C. SENIOR RESOURCE OFFICIALS (SROs)
DEPUTY ASSISTANT ADMINISTRATORS (DAAs)/
ASSISTANT REGIONAL ADMINISTRATORS (ARAs)
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.
D. SENIOR BUDGET OFFICERS (SBOs)
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.
E. REGIONAL COMPTROLLERS
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.
F. REGIONAL BUDGET OFFICERS
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.

III.
COMMITTING AND OBLIGATING APPROPRIATED FUNDS
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. REVIEWING AND APPROVING FUNDING DOCUMENTS
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.
B. RECORDING COMMITMENTS
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
process.
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.
2.
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.
3.
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 7.3.5.1, paragraphs C and E of the Contracts Management Manual at:
http://epawww.epa.gov/oamintra/policy/cmm.pdf

 
Water Use Restrictions under the Endangered Species Act Constitute
a Taking and Require Compensation
Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Tulare Lake Basin Water Storage District v. United States , 49 Fed. Cl. 313 (Fed. Cl. 2001), the United States Court of Federal Claims granted the plaintiffs' motion for summary judgment, holding that the plaintiffs' contractually-conferred right to the use of water was taken when the government imposed water use restrictions under the Endangered Species Act (ESA).

Background

In California, the distribution of water involves the transport of water from the water-rich areas in northern California to the more arid parts of the state. Id. at 314. Various water projects and aqueduct systems, including the Central Valley Project (CVP) and the State Water Project (SWP), were built to facilitate that process. Id. Although the CVP was a federal project managed by the Bureau of Reclamation (BOR) and the SWP was a state project managed by the Department of Water Resources (DWR), the two projects shared a common pumping system. Id. They were operated in concert pursuant to statute and subsequent agreements. Id. at 314-15. The BOR and the DWR were granted water permits by the State Water Resources Control Board (SWRCB), and, in turn, they contracted with county water districts, conferring on the districts the right to withdraw prescribed quantities of water. Id. at 315.

The delta smelt and winter-run Chinook salmon were both determined to be in jeopardy of extinction according to the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). Id. at 314. To protect the two species of fish, the agencies restricted water out-flows in California's primary water distribution system, causing water that would otherwise have been available for distribution by California water projects to be unavailable. Id. This decision, although in harmony with the purpose of the ESA, to halt and reverse the trend toward species extinction, conflicted with California's century-old regime of private water rights. Id. Despite the conflict, the agencies believed that restricting water flow to protect the two species of fish was a reasonable and prudent alternative (RPA) to the traditional water rights program that threatened the species' existence. Id. at 315. Facing an impairment of their collective water rights, the plaintiffs, a group of California citizens, filed suit. Id. at 316.

Arguments

The plaintiffs claimed the imposition of the RPAs on their private water rights constituted an unconstitutional physical taking of their property in violation of the Fifth Amendment. Id. at 318.

Arguing against the existence of a taking, the government asserted that: (1) the implementation of the RPAs merely frustrated the purpose of the water contracts and did not effectuate a taking; (2) the criteria for a regulatory taking had not been met; and (3) the federal government cannot be held liable for a taking when it does no more than impose a limit on the plaintiffs' title that the background principles of state law would otherwise require. Id. at 316-17.

Analysis and Holdings

The government first asserted that when contract expectations were merely frustrated by lawful government action not directed against the takings claimant, no taking had occurred. Id. at 317. It argued that the RPAs were lawful government action that frustrated, rather than appropriated, the plaintiffs' water rights. Id. The court disagreed, holding that California's water distribution system conferred "on plaintiffs a right to the exclusive use of prescribed quantities of water, consistent with the terms of the permits." Id. at 318. The plaintiffs' rights to the water were superior to all other competing interests. Id.

Although the government argued that the facts of the case were more akin to a regulatory takings analysis, the court agreed with the plaintiffs that a physical takings analysis was more appropriate. Id. at 318-19. A physical taking occurs when the government's action amounts to a physical occupation or invasion of property. Id. at 318. The court held that a deprivation of water amounted to a physical taking, but the court then needed to determine whether the plaintiffs owned the water for which they sought compensation. Id. at 320. Although the plaintiffs' water rights were subject to the doctrines of reasonable use and public trust, and the SWRCB could have modified the terms of the water permits to reflect the changing needs of various water users, in the case at bar, it had not done so. Id. at 324. The government was free to take the necessary steps to preserve the fish species, but it was required to pay for the water it took. Id.

The case was decided on April 30, 2001.

 

b. The placement of monitoring wells on private property is an example of a taking case under Superfund.

At $200 million, the settlement in the Whitney Benefits case is the most expensive takings payment that the government has made to date. 1 The claim involved the application of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) to a coal lease owned by Whitney Benefits, Inc. The coal was located beneath an alluvial valley floor in the Powder River basin of Wyoming; SMCRA prohibits surface mining in such areas to protect agricultural resources. After unsuccessfully attempting to exchange the lease for certain federally owned resources, the lease's owner filed a taking claim in the U.S. Court of Federal Claims.

A series of trials and appeals led to a settlement that awarded the coal leaseholder $60 million plus interest from the date of the taking (1977--the date of passage of SMCRA). The court held that SMCRA eliminated the value of the lease, upsetting the owner's reasonable, investment-backed expectations about the property, and that the substantial public interest at stake did not outweigh the interest of the private owner. In addition, the court found that the taking occurred with the enactment of SMCRA rather than with its enforcement. The basis of that finding was a grandfather clause that was omitted from the final law but that appeared in an earlier version of the legislation. The clause excluded several properties, including the Whitney tract, from regulation and, according to the court, demonstrated that the Congress knew that SMCRA would adversely affect the mining rights associated with the Whitney Benefits property. Because the Congress willingly chose to let that happen, the court deemed the Whitney Benefits claim to be a taking and awarded compensation as of the date of SMCRA's enactment.

Most of the payment in the Whitney Benefits settlement--$140 million of the $200 million awarded--is interest because of the substantial delay between the date of the actual taking (1977) and the settlement date (1995). One reason for the delay was the difficulty of determining the value of the taken property. Valuing the lease required considering such issues as future coal prices, extraction costs, labor costs, demand for various grades of coal, transportation costs, capital costs, the amount of extractable coal, environmental cleanup costs, and the appropriate discount rate, to name only a few. Experts retained by each side in the dispute contested the values arrived at for those factors, which extended the litigation of the claim and delayed the award.

1. See Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 (1922).

2. For more detail, see National Research Council, Wetlands Characteristics and Boundaries (Washington, D.C.: National Academy Press, 1995), pp. 3-8; Army Corps of Engineers, Army Corps of Engineers Wetlands Delineation Manual , Technical Report Y-87-1 (Vicksburg, Miss.: Army Corps of Engineers, 1987); and T.E. Dahl, Wetlands Losses in the United States, 1780's to 1980's (Department of the Interior, Fish and Wildlife Service, 1990), p. 5.

3. Those decisions are complicated by a lack of information about the value of particular wetland properties. See Paul F. Scodari, Wetlands Protection: The Role of Economics (Washington, D.C.: Environmental Law Institute, 1990), pp. 17-18 and 45-46.

4. Data sources on wetlands losses are Department of the Interior, The Impact of Federal Programs on Wetlands , vol. 1, A Report to Congress by the Secretary of the Interior (October 1988), pp. 4-30 and 4-33; and Department of Agriculture, Economic Research Service, Natural Resources Conservation Service, Agricultural Resources and Environmental Indicators, 1996-97 , Agricultural Handbook No. 712 (September 1997), p. 319.

5. 33 U.S.C. 1344, 86 Stat. 884.

6. Those rulings came in National Resources Defense Council v. Calaway , 392 F. Supp. 685 (1975); and United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121 (1985). See also C. Peter Goplerud, "Water Pollution Law: Milestones from the Past and Anticipation of the Future," Natural Resources and the Environment , vol. 10, no. 2 (Fall 1995).

7. The Clean Water Act exempts ongoing farming, forestry, and ranching activities, minor drainage and drain maintenance, and maintenance of preexisting structures from the Section 404 permitting requirement. If a wetland is to be dredged or filled to begin such practices, however, a permit is required.

8. Statement of Michael L. Davis, Deputy Assistant Secretary of the Army for Civil Works, before the Subcommittee on Water Resources and Environment of the House Committee on Transportation and Infrastructure, April 29, 1997.

9. See Dennis King and Curtis Bohlen, "Estimating the Costs of Restoration," National Wetlands Newsletter (May/June 1994), pp. 3-5 and 8.

10. These programs are discussed in Ralph Heimlich and Linda Langner, Swampbusting: Wetland Conversion and Farm Programs (Department of Agriculture, Economic Research Service, August 1986), pp. 8-9; and Department of Agriculture, Agricultural Resources and Environmental Indicators , p. 319.

11. Department of the Interior, The Impact of Federal Programs on Wetlands , pp. 55-73.

12. Department of Agriculture, Agricultural Resources and Environmental Indicators, p. 316.

13. Army Corps of Engineers, Regulatory Branch, Section 404 of the Clean Water Act and Wetlands: Special Statistical Report (July 1995). More recent data are provided in the statement of Michael L. Davis, April 29, 1997.

14. Based on Army Corps of Engineers data and data reported in Virginia S. Albrecht and Bernard N. Goode, Wetland Regulation in the Real World (Washington, D.C.: Beveridge and Diamond, February 1994), p. 23.

15. A recent estimate of the average evaluation time for individual permits by the Corps is 104 days (see the statement of Michael L. Davis, April 29, 1997). Albrecht and Goode used a different method and found that the average time between the application and decision dates for a sample of individual permit applications processed in fiscal year 1992 was 373 days (see Wetland Regulation in the Real World , p. 16).

16. Two separate evaluations of the regulatory program reached similar conclusions: Office of Technology Assessment, Wetlands: Their Use and Regulation , OTA-O-206 (March 1984), pp. 142-144 and 152; and General Accounting Office, Wetlands: The Corps of Engineers' Administration of the Section 404 Program , GAO/RCED-88-110 (July 1988), pp. 20-22 and 33-34.

17. Department of Justice, Environment and Natural Resources Division, Policy Legislation and Special Litigation Section, "The Regulatory Takings Docket of the Justice Department's Environment and Natural Resources Division, End of Fiscal Year 1997" (mimeo, October 1997).

18. Regulations regarding wetlands are the most significant cause of takings claims. Nevertheless, the number of such claims is minuscule when compared with the volume of permit applications that have been approved in recent years. See the statement of Michael L. Davis, April 29, 1997.

19. Barton H. Thompson Jr., "The Endangered Species Act: A Case Study in Takings and Incentives," Stanford Law Review , vol. 49, no. 2 (January 1997), pp. 305-380.

The EPA: 40 and past its prime

The Environmental Protection Agency is marking its 40th birthday, but its record gives little cause to celebrate.

guardian.co.uk , Saturday 11 December 2010 15.00 GMT

Touting the 40th birthday of the US Environmental Protection Agency (EPA) this month, its head, Lisa Jackson, penned a paean to the agency in a Wall Street Journal op-ed . But it contained far more than a recapitulation of her agency's supposed achievements or a defense against its critics.

In fact, it began in a way that, for the top executive of a government regulatory agency, was jarringly political – namely, with a pointed reference to November's elections having "strengthened the influence of groups and individuals who threaten to roll back the EPA's efforts". Jackson's article was filled with specious assertions and was devoid of any acknowledgement that regulation has costs, direct and indirect, and that the challenge for regulators is to strive for the amount of oversight and intrusion that is necessary and sufficient.

Jackson lauds the EPA's protecting the public from chemical pesticides. In fact, this is one of the agency's bêtes noirs. The testing required is excessively burdensome and the tolerances permitted by regulators overly conservative (low). What makes regulators' approach to chemical pesticides verge on the absurd is the fact that 99.99% of consumers' exposure to pesticides comes not from agricultural applications, but from substances that are naturally found in food.

EPA and the "environmentalists" to whom it continually panders regularly muddle the public with specious warnings about impending risk. One such alarm concerns the presence of trace amounts of certain chemicals that are present in our bodies. Activists perform "studies" that search for trace amounts of a variety of chemicals in blood or tissues – and find them. But given the sophistication and sensitivity of our modern analytical techniques, we can find infinitesimal amounts of almost anything we look for.

The mere presence of a synthetic chemical – even one known to be toxic at high levels – does not make it a health concern. Consider, for example, the potent toxin of the potentially lethal food-poisoning bacterium that causes botulism: in tiny amounts, the toxin is a useful pharmaceutical and cosmetic; its brand name is Botox.

The EPA's repeated failures should not come as a surprise, because the agency has long been a haven for scientifically insupportable policies perpetrated by anti-technology ideologues. Jackson herself is a veteran of 16 years at the agency, developing some of its unscientific, wasteful and dangerous regulations. She worked on Superfund (officially, the Comprehensive Environmental Response, Compensation and Liability Act ), an ongoing EPA programme intended to clean up and reduce the risk of toxic-waste sites. It was originally conceived as a short-term project – $1.6bn over five years, to clean up some 400 sites (by law, at least one per state and, not coincidentally, about one per congressional district). But it has grown into one of the nation's largest public works projects: more than $30bn spent, on about 1,300 sites.

How could cleaning up toxic waste sites not be a good thing? Well, various studies have attempted to evaluate the impacts of Superfund's massive and costly cleanups, but the results are equivocal. Putting that another way, after the expenditure of tens of billions of dollars, no beneficial results have been demonstrable.

On the other hand, some Superfund projects have definitely caused harm. University of California economics professor J Paul Leigh has analysed the occupational hazards of environmental cleanup projects and concluded that the risk of fatality to the average cleanup worker – a dump-truck driver involved in a collision or a labourer run over by a bulldozer, for example – is considerably larger than the cancer risks to individual residents that might result from exposures to untreated sites.

EPA has a long history of failing to weigh costs and benefits or to make decisions based on science. In his book, Breaking the Vicious Circle , supreme court justice Steven Breyer cites the low cost-effectiveness of the EPA's ban of asbestos pipe, shingles, coating and paper, which the most optimistic estimates suggested would prevent seven or eight premature deaths over 13 years – at a cost of approximately $250m. Breyer observes that such EPA actions are damaging in two ways: by diverting valuable resources from other, more effective public healthcare measures and by removing asbestos from existing structures in ways that make fibers airborne and pose even greater risks to human health.

In her Wall Street Journal article, Jackson defends her agency against charges that it is a jobkiller or otherwise harmful to the economy. In fact, unscientific and obstructionist policies toward once-promising R&D areas, such as the use of genetically engineered bacteria to clean up toxic wastes (including oil spills) and kill insect pests, have caused academics and corporations to abandon entire sectors that could have created jobs and wealth.

Notwithstanding Jackson's claims to the contrary, many critics – this writer included – believe that the 40-year experiment with a freestanding Environmental Protection Agency has been a failure and that the agency should be abolished, its essential functions reassigned to other, less scientifically-challenged government organisations. Over the years, though, the EPA has, in effect, bought the loyalty of a cadre of scientists and advocacy organisations that will defend it. For the foreseeable future, then, American companies and consumers – even our natural environment – will bear the scars of bureaucratic ambition and incompetence.

Court Denies Attempt to Block EPA Climate Rules

By REUTERS
Published: December 10, 2010

WASHINGTON (Reuters) - A U.S. federal court on Friday denied an appeal by industry groups to block the Environmental Protection Agency from imposing greenhouse gas regulations early next year.

The U.S. Circuit Court of Appeals for the District of Columbia said opponents of EPA's planned regulations did not meet the "stringent standards" necessary for the court to stop the rules while various lawsuits proceed against the EPA's climate-related actions.

EPA rules to limit the emissions of greenhouse gases, including carbon dioxide, from major industrial sources are due to go into effect on January 2. The Obama administration is moving ahead with the rules after failing to pass a climate change law through Congress this year.

The rules face lawsuits from industry groups and states that question the federal government's authority to regulate ubiquitous greenhouse gases, and argue the EPA did not conduct enough of its own research when it made its finding that carbon is a danger to human health.

Critics of the regulations argue the EPA is not equipped to handle the enormous task of controlling emissions blamed for global warming, and onerous rules will damage the economy.

"In light of the substantial disagreement over whether federal, state and local regulators can be ready in time to impose preconstruction permit requirements by early January, the court may have ensured an effective construction moratorium for industrial and power projects," said Scott Segal of Bracewell Giuliani, a lobbying firm that represents utilities, refiners and manufacturers.

The court said in its ruling that opponents of the regulations did not prove that the negative consequences of allowing the regulations to forward were "certain" to occur and not "speculative."

Beginning in January, EPA will start requiring big emitters such as power plants, refineries and cement manufacturers to obtain permits for polluting greenhouse gases.

Companies will also have to adhere to EPA guidelines about the best technologies to use to control emissions when expanding or building new plants or factories.

Environmental groups lauded the court's decision to allow the regulations to move forward.

"We're glad the court rejected these baseless attempts by polluters to stall progress toward cleaner cars and safer air," David Baron, an attorney with Earthjustice, said in a statement.

EPA and Florida Fight Over Water Quality Standards

     PENSACOLA, Fla. (CN) - Florida has filed a lawsuit to stop the Environmental Protection Agency from replacing certain state water quality regulations with its own. This is the first time the EPA has deemed a state's water quality regulations inadequate and imposed federal regulations in their place. The federal regulations replace Florida's narrative standards for permitting the discharge of nitrogen and phosphorus waste into lakes and rivers with standards based on numeric thresholds.
      The state's action comes on the same day that the EPA issued the first regulations that would impose federal standards under the Clean Water Act after determining that a state's regulatory framework is insufficient to protect the environment from harm.
      In January 2009, the agency determined that Florida's use of a narrative standard that based permitting on whether or not a discharge would "cause an imbalance in natural populations of aquatic flora and fauna," had lead to expensive and time consuming studies for each discharge, which leads to disparate impact on waterways through out the state.
      Under the Clean Water Act, the EPA is authorized to submit its own standards for controlling regulated pollutants if it determines that a state's standards or procedures are not up to the task.
      The EPA's 2009 determination was a reversal of its previous position that Florida's ongoing development and implementation of its own numeric standards was sufficient to meet Clean Water Act standards.
      Florida's attorney general, Bill McCollum, said in a press release announcing the state's bid to block the federal regulations that "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."
      The suit McCollum referred to was a 2008 action brought by several environmental groups that tried to force the EPA to impose federal standards while Florida developed its own standards. The January 2009 determination by the agency was issued as part of a settlement the agency reached with the environmental groups.
      As evidence that the EPA is only imposing a federal standard to head off potential lawsuits by environmental groups in other states, Florida's complaint quotes an internal memo to the former administrator of the agency from an assistant administrator stating that "EPA does not agree with the plaintiffs' allegation that we made a CWA determination in our 1998 Strategy that numeric nutrient criteria are necessary for Florida to meet the requirements of the CWA. There is, however, some risk that the court could agree with the plaintiffs that the 1998 Strategy constitutes a CWA determination that nutrient criteria are necessary for Florida. Such a ruling could spur similar litigation in other states. Presently, 49 states have one or more 303(d) listings for waters impaired by nutrients."
      In announcing the new standards the EPA recognized "that Florida has a comprehensive regulatory and non-regulatory administrative water quality program to address nitrogen/phosphorus pollution." However, the agency found that Florida's program has not dealt with the issue properly and that "water quality degradation from nitrogen/phosphorus over-enrichment remains a significant challenge in the State and conditions are likely to worsen with continued population growth and land-use changes."

Treasury Will Sell Stake In AIG ‘As Soon As Practicable' 

Published 12/10/2010 

NU Online News Service, Dec. 10, 3:32 p.m. EST

A Treasury official said the government is still working on the timing to sell its interest in American International Group, but it wants to do it as soon as practicable.

In an interview with Bloomberg Television, Timothy Massad, acting assistant secretary for financial stability at the U.S. Treasury, said the definitive agreement filed Wednesday by AIG is a “major milestone” and the Treasury is “focused on completing this.”

“We'll dispose of our investments as soon as practicable, but in an orderly manner, and we'll decide how to do that in the days ahead,” Mr. Massad said.

Under the plan to sell the Treasury's holding, the government's stake will increase to about 92 percent of AIG—up from its original stake in the company of about 80 percent. Under that scenario the government could profit from its investments in the insurance giant.

The government's strategy to bailout AIG in September 2008 proved to be the right decision, as two years later the Treasury is “in the position to recover our entire investment,” he said.

A profit “depends on market price in the future,” Mr. Massad added, but at the current price of AIG shares, the Treasury would make a profit.

Recent reports citing unnamed sources have said the Treasury plans to offer between $10 billion and $15 billion of stock with AIG in the first half of 2011.

The agreement filed by AIG listed the sale of its common stock by the Treasury as a risk factor to its recapitalization plan due to a dilution effect.

According to the new deal, AIG has the right to raise up to $3 billion in a public offering by Aug. 15, 2011.

 

CALIFORNIA - EPA DELISTING IRON MOUNTAIN MINE!

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

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

Not one biota, not one iota; No further evidence required to facially apparent facts

Section 107 shifts joint and several liability to the defendants, unless a defendant can
affirmatively demonstrate that the harm is divisible

See, e.g., United States v. Chem-Dyne Corp., 573 F. Supp. 802, 809-10 (S.D. Ohio 1983)
(stating that where the harm is indivisible, each liable party is responsible for the entire
harm).

See In re Tutu Wells Contamination Litig., 994 F. Supp. 638, 662 n.34 (1998) (“[W]hile
a defendant in a Section 107 action can only avoid joint and several liability by demonstrating
that the harm at a given site is divisible, parties to a Section 113 action may
allocate among potentially responsible parties based on equitable considerations.”).

See Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co. 814 F. Supp. 1285, 1288
(E.D. Va. 1993) (holding that the unclean hands defense is relevant to contribution phase
of litigation, but not to basic liability issue); In re Sundance Corp. 149 B.R. 641, 664 (Bankr.
E.D. Wash. 1993) (stating that the court is free to apply equitable factors).

The committee emphasizes that courts are to resolve claims for apportionment
on a case-by-case basis pursuant to Federal common law,
taking relevant equitable considerations into account. Thus, after all
questions of liability and remedy have been resolved, courts may consider
any criteria relevant to determining whether there should be an
apportionment.

Uniform Contribution Among Tortfeasors Act
Many courts have decided that one of these model state tort allocation
statutes, UCATA, is best suited to resolve cost allocation pursuant
to section 107 claims brought by government plaintiffs.100 Each party pays
a pro rata share, defined in the UCATA without consideration of relative
or proportionate degrees of fault or liability among the parties. Comparative
negligence principles play no part in an allocation pursuant to the
UCATA. Where there is a symbiotic confluence of factors causing indivisible
damage, liability is indivisible and is apportioned pro rata.101 This
application of UCATA results in a pro tanto scheme of allocation between
settlors and nonsettlors. The liability of nonsettling parties is reduced
only by the amount of the settlement, not by the settlors’ proportionate
share of liability.102 This makes the government whole without any excess
recovery by the government, which courts have held is implied by
section 113(f)(2).103 The UCATA prevents the effects of a plaintiff placing the entire
burden of a common injury on a single joint tortfeasor.104 To fairly distribute
the liability, the UCATA allows a liable party to seek contribution
from the other liable parties.105 The UCATA provides that no settling
tortfeasor is entitled to contribution from another tortfeasor unless the
former’s settlement is in excess of its share.106 The right of contribution
exists to a settling tortfeasor who pays more than her pro rata share of
common liability, and recovery is limited to the amount in excess of the
pro rata share that was paid.107 A pro rata share is the result of equally
dividing the liability by the number of responsible parties.108 For example,

if there are five responsible parties, each party bears one-fifth of the
liability, regardless of her actual contribution to the harm.
Thus, the UCATA allocates liability without consideration of
relative or proportionate degrees of fault among the parties.109 Such an
allocation scheme, with its simple mathematical formula, greatly facilitates
the allocation of responsibility among all tortfeasors by the conclusion
of litigation. The concept of the UCATA, under which simple division
by the number of parties determines each individual’s share of liability,
is consistent with the commingled and indivisible nature of contamination
encountered at most multi-party Superfund sites.

Id. at 418-19 (referring to the three defenses listed at 42 U.S.C. § 9607(b)). In this
matter, the plaintiff government agency was also potentially liable. Kramer, 757 F. Supp.
at 397-98. While the government as a prosecutor has discretion not to name itself as a
defendant in section 107 litigation, it remains potentially liable in a concurrent or subsequent
section 113 contribution claim. See CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1) (2000).
The liability of the defendants in a section 107(a) action is joint and several, while the
liability of third party defendants is several only. See id. § 9607(a); see also H.R. REP. NO.
99-253, pt.1, at 79-80 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861-62.
141 Kramer, 757 F. Supp. at 405.

 

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

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

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

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

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

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

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

Water: Initiation of Risk Assessments for Chemicals in Drinking Water [07/09/10]

Comparison of MCLs and PHGs for Regulated Contaminants in Drinking Water

Last Update:  July 24, 2010 This page compares maximum contaminant levels (MCLs) and public health goals (PHGs). 

Draft Clean Water Strategy is released

Posted by the EPA on August 20th, 2010 - 11:58 AM

 

Iron Mountain Mine Institute nomination for Region 9 liaison

 

Regional Water Board Overreach Could Cost Region Billions

Thursday, Dec. 9, 2010 Good morning, A national panel of experts appears frustrated by gaping holes in a developing master plan for the Delta despite four years and $140 million in studies. The report provided the committee no straightforward description of the recovery goals for the ecosystem, no analysis of water demands and — perhaps most troubling — portions of a study on the environmental effects of the proposal were described as “woefully incomplete.” Central Coast and statewide agricultural interests are proposing a water quality coalition as an alternative to a plan by the state Water Resources Control Board, which growers say is too stringent. And take a closer look at the Elkhorn Slough Tidal Wetland Project, the fruit of years of research, planning and collaboration among nonprofit and governmental agencies, that seeks to slow down the tides that are eroding crucial habitat. Some other stories making news across the state:

  • CALFED releases surface storage progress report
  • Frosted vineyard threat makes for tough call
  • Progress on Sacramento flood safety plan aired today
  • Woodlake breaks ground on $19M wastewater project
  • Signs of the tide: San Diego's water supply

During Pre-foreclosure, Complete A New Esa

By: Joe Derhake

 

The number of foreclosures on commercial properties continues to rise, and these troubled properties include everything from office buildings, industrial buildings and retail properties to hotels, casinos,condominiums and apartments.

As part of the pre-foreclosure process, lenders need to engage an environmental professional to complete a Phase I environmental site assessment (ESA) that is compliant with the industry standards of ASTM 1527-05 and the Environmental Protection Agency's All Appropriate Inquiry (AAI) rule.

The lender should order a Phase I ESA as part of the pre-foreclosure process, even if a Phase I ESA was completed at the time of consummation of the loan. The AAI rule primarily applies to borrowers that want to claim Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability protection as an innocent landowner, bona-fide protective purchaser or contiguous property owner.

Typically, banks that hold mortgages on property as secured lenders are exempt from CERCLA liability, provided that certain very specific criteria are met. CERCLA Section 101(20) contains a secured creditor exemption that eliminates owner-operator liability for lenders that hold ownership in a CERCLA facility primarily to protect its security interest in that facility, provided it does not "participate in the management of the facility." "Participation in management" does not include actions such as inspection of the property, requiring a borrower to take action to address contamination, providing financial advice, or renegotiating or restructuring the terms of the loan.

In addition, the secured creditor exemption provides that simply foreclosing on a property does not result in liability for a bank, provided the bank takes "reasonable steps" to divest itself of the property "at the earliest practicable, commercially reasonable time, on commercially reasonable terms." Generally, a lender may maintain business activities and close down operations at a property, so long as the property is listed for sale shortly after the foreclosure date, or at the earliest practicable, commercially reasonable time.

However, with the state of today's market, which includes the increase of commercial properties on the market that are not being resold and/or may remain vacant for some time, lenders may find themselves managing a foreclosed property. In order to protect themselves from losses and to identify liability issues, lenders need to use the Phase I ESA as a foundation in the decision-making process when contemplating foreclosure on a commercial property.

What CERCLA addresses

The Phase I ESA primary function is to identify recognized environmental conditions (RECs) in respect to the property. ASTM defines a REC as the "presence or likely presence of any hazardous substance or petroleum product on a property under conditions that indicate an existing release, a past release or a material threat of a release of any hazardous substance or petroleum product into structures on the property or into the ground, groundwater or surface water of the property." In-depth review of the historical usage of a property, along with a thorough property inspection, facilitates the identification of potential RECs.

The Phase I ESA may recommend that additional investigation, such as file reviews at the appropriate local or state agencies, be conducted to provide additional information about the potential REC. In a pre-foreclosure situation, the completion of a regulatory file review can provide critical information to the lender that can identify the extent of contamination and potential liability issues for the lender in the event of a foreclosure. In addition, the Phase I ESA may recommend that a Phase II ESA be conducted, which includes the testing of subsurface soil and/or groundwater at the property. If the results of the environmental investigations do reveal potential environmental issues, the lender may have to reconsider the property value and the wisdom of foreclosure.

While CERCLA addresses the potential health hazards posed by hazardous substances at properties, lenders need to evaluate non-ASTM environmental concerns, such as asbestos, leadbased paint, lead in drinking water, wetlands issues, radon and vapor intrusion on a pre-foreclosure property.

"A lender's exposure to environmental liability may increase significantly if it takes title to real property held as collateral," writes Thomas A. Missimer in "A Lender's Guide to Environmental Liability Management."

"The institution should evaluate the potential environmental costs and the potential for environmental liability in conjunction with an assessment of the value of the collateral in reaching a decision to take title to the property by foreclosure or other means," he continues.

Foreclosure proceedings

The cost of an environmental cleanup or remediation for non-ASTM items can be costly. The lender may require that more than a cursory reporting of these non-scope items be included in the Phase I ESA.

Along with visual observation, review of available records and conclusions based on the age of the property, the lender may require that additional testing or investigation be completed in conjunction with the Phase I ESA. Additional specialists, such as a wetlands mapper, may need to be consulted,
especially for undeveloped properties. The environmental concerns identified by the environmental professional may not necessarily constitute liability on the part of the lender.

However, the issues need to be clearly identified so that the lender can consult an environmental attorney, if necessary.

As in the residential housing market, there is a push from borrowers in the commercial mortgage market for lenders to provide alternative structures on their loans, rather than to begin
foreclosure procedures. Because property owners can tie up a property in bankruptcy court for a year or more, lenders are proceeding with foreclosures on properties that are more than 30 days overdue. It is also crucial to begin the foreclosure proceeding while the borrower is still cooperative in order to assure that access can be granted for the Phase I ESA site inspection.

This may be particularly crucial for industrial properties. The lack of access can alter the findings of a Phase I ESA, and the lender should be hesitant to proceed with a foreclosure without a thorough site inspection. Although the number of foreclosures has increased in the commercial real estate segment of the due diligence market, ASTM 1527-05, AAI and the identification of potential RECs remain the industry standards for Phase I ESAs. In a foreclosure situation, the lender should utilize the Phase I ESA as one of the tools in the decision making process in order to evaluate the potential liability in the event that they proceed with the foreclosure.

Court Revives Superfund $16M Settlement Dispute
By SONYA ANGELICA DIEHN 
ShareThis

     (CN) - Two gear manufacturers that were found liable for groundwater contamination can sue other companies that polluted the same site over their shares of a $16 million settlement to a class action, the 7th Circuit ruled.
     Arrow Gear and Precision Brand Products were two of several businesses investigated by the Environmental Protection Agency regarding groundwater pollution by industrial solvents at the Ellsworth Industrial Park in Downers Grove, Ill., a Superfund site.
     Residents of the area filed a class action in 2004, which was settled in 2006 for $16 million. 
     In a series of agreements, the polluting companies split the expenses among each other and released themselves from further contribution claims.
     As part of the settlement process, the class action was dismissed with prejudice, meaning the plaintiffs could not refile.
     The Chicago-based 7th Circuit consolidated Arrow's and Precision's separate lawsuits against other polluters, but only discussed Arrow's claim since the issues were identical.
     Arrow Gear sued Downers Grove Sanitary District in 2008 to recover costs for pollution under the Comprehensive Environmental Response, Compensation and Liability Act. 
     The trial court agreed with Downers Grove to dismiss the action, since the issue had already been decided when the suit was dismissed. Downers Grove argued that this would constitute piecemeal appealing, something the legal system discourages.
     The three-judge appellate panel disagreed, with Judge Richard Posner writing, "This is a 'start over' case." 
     Although the settlements included such broad language as barring claims against co-polluters "from the beginning of time," Posner wrote this was clearly qualified and the scope narrowly defined. 
     Since the EPA's investigation is ongoing, the agency can still file claims against the companies, the court pointed out.
     The 7th Circuit reinstated the lawsuits, finding that other polluters cannot rely on res judicata - the legal doctrine that prevents litigants from retrying matters that have already been judged - or the claim that the cases were already decided.
     In a separate agreement, the polluting companies agreed to provide an alternative water source to communities affected by the pollution, at a cost of more than $4 million. 

FEDERALLY PROTECTED ACTIVITIES

Summary:

TITLE 18, U.S.C., SECTION 245

 

Regional Screening Levels (Formerly PRGs)

Regional Screening Level Resources

What's New

Frequently Asked Questions

Screening Level Calculator

User's Guide

Online Screen Level Calculator

PRG (RSL) Contact Information

Region 9-Specific Information

Screening Levels for Chemical Contaminants

The Region 9 PRGs have been harmonized with similar risk-based screening levels used by Regions 3 and 6 into a single table: "Regional Screening Levels (RSL) for Chemical Contaminants at Superfund Sites." These updated screening levels, along with a detailed user's guide and supplementary tables, can be accessed directly on-line or downloaded to your own computer. In addition, the web site contains a Screening Level Calculator to assist in calculating site-specific screening levels.

Region 9-specific information regarding the Regional Screening Level Table »

RSL Tables (Last updated November 2010)

The screening level (RSL) tables are available for download in Excel and PDF formats. These tables are considered ready for use. The tables contain both RSL calculations and the toxicity values that were used. For additional information please see the resources box at the the upper-right of this page.

PDF (Color) PDF (B+W) Excel (Color) Excel (B+W)
Summary Table (PDF) (11 pp, 177K) (PDF) (11 pp, 173K) XLS XLS
Residental Soil Supporting (PDF) (12 pp, 175) (PDF) (12 pp, 171K) XLS XLS
Industrial Soil Supporting (PDF) (12 pp, 174K) (PDF) (12 pp, 170K) XLS XLS
Residental Air Supporting (PDF) (12 pp, 142K) (PDF) (12 pp, 138K) XLS XLS
Industrial Air Supporting (PDF) (12 pp, 143K) (PDF) (12 pp, 137K) XLS XLS
Residental Tapwaters Supporting (PDF) (15 pp, 169K) (PDF) (15 pp, 164K) XLS XLS
Residental Soil to Groundwater Supporting (PDF) (15 pp, 174K) (PDF) (15 pp, 168K) XLS XLS
Chemical Specific Parameters (PDF) (11 pp, 157K) (PDF) (11 pp, 154K) XLS XLS
Composite Table (PDF) (100 pp, 776K) (PDF) (100 p, 755K) XLS XLS
You will need the free Adobe Reader to view some of the files on this page.
See EPA's PDF page to learn more.

NOTE: The 2004 version of the Region 9 PRG Table will remain at this web site in case users need to reference this historical document. However, the 2004 Table should no longer be used for contaminant screening of environmental media because it has been replaced with the more current Table above.

Information at this link provided for reference purposes onlyRegion 9 PRGs 2004 Table (PDF) (16pp, 962 K)

Information at this link provided for reference purposes onlyUser's Guide/Technical Background Document (PDF) (29pp, 284 K)

Potential Problems

As with any risk-based tool, there exists the potential for misuse.  We try to highlight potential problems in the User's Guide.  However, the use of PRGs at an individual site becomes the responsibility of the user.

Regional Screening Table

You will need the free Adobe Reader to view some of the files on this page. See EPA's PDF page to learn more.

Table of Contents

Welcome to the "Regional Screening Levels for Chemical Contaminants at Superfund Sites" screening level/preliminary remediation goal website. This website was developed with DOE's Oak Ridge National Laboratory (ORNL) under an Interagency Agreement as an update of the EPA Region 3 RBC Table, Region 6 HHMSSL Table and the Region 9 PRG Table. Here you will find tables of risk-based screening levels, calculated using the latest toxicity values, default exposure assumptions and physical and chemical properties, and a calculator where default parameters can be changed to reflect site-specific risks. To ensure proper use of the screening level tables and the calculator, please review the What's New , User's Guide , Frequently Asked Questions , and Download Area links. Below is a general description of screening levels for chemical contaminants. If the calculator is used with non-default inputs in a decision on a Superfund site, it is recommended that the inputs be clearly identified and justified by the user.

Introduction

Superfund sites are addressed under the authority of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, which was amended by the 1986 Superfund Amendments and Reauthorization Act. The purpose of this website is to provide a screening level calculation tool to assist risk assessors, remedial project managers, and others involved with risk assessment and decision-making at CERCLA sites in developing or refining screening levels.

This tool is based on Risk Assessment Guidance for Superfund: Volume I, Human Health Evaluation Manual (Part B, Development of Risk-based Preliminary Remediation Goals) (RAGs Part B) and Soil Screening Guidance: User's Guide (PDF) , Technical Background Documenrt (PDF) and Supplemental Guidance . RAGs Part B provides guidance on using EPA toxicity values and exposure information to calculate risk-based Screening Levels (SLs). The relationship of Preliminary Remediation Goals (PRGs) to screening levels (SLs) is discussed in more detail in the User's Guide. The Soil Screening Guidance documents expand upon RAGS Part B. Initially used at the scoping phase of a project using readily available information, risk-based screening levels generally are modified based on site-specific data gathered during the RI/FS study. Screening level development and screening should assist staff in streamlining the consideration of remedial alternatives. Chemical-specific SLs are from two general sources: (1) concentrations based on potential Applicable or Relevant and Appropriate Requirements (ARARs) and (2) concentrations based on risk assessment. ARARs include concentration limits set by other environmental regulations, such as Safe Drinking Water Act maximum contaminant levels (MCLs). The second source for SLs, and the focus of this database tool, is risk-based calculations that set concentration limits using carcinogenic or systemic toxicity values under specific exposure conditions.

The recommended approach for developing remediation goals is to identify screening levels at scoping, modify them as needed at the end of the RI or during the FS based on site-specific information from the baseline risk assessment, and ultimately select remediation levels in the ROD.

Screening levels are also used when a potential site is initially investigated to determine if potentially significant levels of contamination are present to warrant further investigation such as an RI/FS.

In order to set chemical-specific SLs in a site-specific context, however, assessors must answer fundamental questions about the site, such as information on the chemicals that are present onsite, the specific contaminated media, land-use assumptions, and the exposure assumptions behind pathways of individual exposure.

Once this web tool is used to retrieve standard screening levels or calculate site-specific screening levels, it is important to clearly demonstrate the equation inputs used in the calculations. Discussion of the assumptions that go into the screening level calculations should be included in the document where the screening levels are presented.

This tool presents standardized risk-based screening levels and variable risk-based screening level calculation equations for chemical contaminants. Screening levels are presented in the default tables for residential soil, outdoor worker soil, residential indoor air, worker indoor air and tap water. In addition, the calculator provides a fish ingestion equation. The risk-based screening levels for chemicals are based on the carcinogenicity and systemic toxicity of the analytes. The standardized or default screening levels used in the tables on this website are based on default exposure parameters and incorporate exposure factors that present RME conditions.

Radionuclides are not addressed on this website. For radionuclide PRGs please go to EPA's PRGs for Radionuclides.

Note: No consideration is given to ecological effects in the values presented in this database tool.

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For assistance/questions please use the rbc table contact us page

TechLinks Technology Web Sites

This page provides links to government, academic and industry Web pages dedicated to both hazardous waste site characterization and remediation technologies. They are intended for use by Superfund and RCRA project managers, researchers, engineers, the public, or anyone who may be looking for technologies to solve site specific hazardous waste problems. Contact Mike Gill , ORD Hazardous Waste Technical Liaison, with any questions (gill.michael@epa.gov).

On this page :

Innovative Technology Research and Development

Los Alamos National Lab Exiting EPA (disclaimer) LANL's Environmental Science and Technology page shows results of research focusing on technical solutions of problems in the environment (remedial technologies, site characterization, etc.).
Nanotechnology at EPA Nanotechnology has both applications and implications for the environment. EPA supports research in this quickly expanding field, while evaluating its regulatory responsibility to protect human health and the environment. This site highlights EPA's research in nanotechnology and provides useful information on related research at EPA and in other organizations.
National Exposure Research Lab (NERL) (EPA) EPA's NERL provides scientific understanding, information and assessment tools to reduce and quantify the uncertainty in the Agency's exposure and risk assessments for all environmental stressors. NERL also demonstrates, field tests, evaluates and transfers scientific information and innovative exposure assessment technologies, and provides educational materials and technical support.
National Institute of Environmental Health Sciences (NIEHS) Exiting EPA (disclaimer) Known as NIEHS , this group out of Atlanta, GA (under the National Institutes of Health) administers funding to various universities nationwide under a program called the " Superfund Basic Research Program ". They fund basic research that applies to the Superfund realm of EPA.
National Risk Management Research Lab (NRML) (EPA) EPA's NRMRL located in Cincinnati, Ohio advances the scientific understanding and the development and application of technological solutions to prevent, control, or remediate important environmental problems that threaten human health and the environment.
Office of Research and Development (ORD) (EPA) The home page of EPA's Office of Research and Development.
Office of Science and Technology (DOE) Exiting EPA (disclaimer) The Department of Energy's Office of Science and Technology (OST) manages and directs targeted basic research and focused, solution-oriented technology development programs. Some parts of this page require a password.
Remedial Technologies Development Forum (RDTF) Exiting EPA (disclaimer) The purpose of the RTDF is to identify what government and industry can do together to develop and improve the environmental technologies needed to address their mutual cleanup problems in the safest, most cost-effective manner. The RTDF is operated by U.S. EPA and fosters public and private sector partnerships to undertake the research, development, demonstration, and evaluation efforts needed to achieve common cleanup goals.
Sandia National Lab Exiting EPA (disclaimer) The Environmental Restoration Technologies Department of Sandia focuses on developing, demonstrating and transferring innovative environmental technologies to other government and the commercial sector.
Sediments Research Web Exiting EPA (disclaimer) The Sediments Research Web grew out of the technology transfer program of the South & Southwest Hazardous Substance Research Centers (HSRC).
Strategic Environmental Research and Development Program (SERDP) Exiting EPA (disclaimer) SERDP is the Department of Defense's technology development and transfer mechanism for environmental issues.
Technology Innovation News Survey (EPA CLU-IN) Contains market/commercialization information; reports on demonstrations, feasibility studies and research; and other news relevant to the hazardous waste community interested in technology development.
Western Region Hazardous Substance Research Center Exiting EPA (disclaimer) The Western Region Hazardous Substance Research Center develops treatment methods and provides technical assistance for cleanup of hazardous substances. The Center is a partnership between Oregon State University and Stanford University and was established in 1989 to address critical hazardous substance problems in the Western United States. The Center receives its base financial support from US EPA. It is headquartered at Oregon State University.

Top of page

Technology Validation/Certification/Commercialization/Demonstration

(Bay Area Defense Conversion Action Team) BADCAT Although no longer active, the Bay Area Defense Conversion Action Team (BADCAT) formed an Environmental Technology Partnership and worked hard to bring innovative technologies to closing military bases in the Bay Area, with an eye towards cleaning up contaminated closing military base sites faster, better, cheaper for expedited turnover to local communities for future use.
California Environmental Technology Verification program (California EPA) Exiting EPA (disclaimer) Similar program to EPA's ETV program, this page describes the State of California's technology verification program .
Environmental Security Technology Certification Program (ESTCP) (DOD) Exiting EPA (disclaimer) ESTCP is the Department of Defense's program to demonstrate and validate promising innovative environmental technologies.
Environmental Technology Verification (EPA) EPA's Environmental Technology Verification Program's (ETV) goal is to verify the performance of innovative technical solutions to problems that threaten human health or the environment. ETV was created to substantially accelerate the entrance of new environmental technologies into the domestic and international marketplace.
Superfund Innovative Technology Evaluation (SITE) program (EPA) The Superfund Innovative Technology Evaluation (SITE) program encourages the development and implementation of 1) innovative treatment technologies for hazardous waste site remediation; and, 2) monitoring and measurement. In the SITE Demonstration Program, the technology is field-tested on hazardous waste materials.

Top of page

Technology Databases

Center For Public Environmental Oversight (CPEO) TechTree Exiting EPA (disclaimer) Tthis Web site lets you define a technology problem and get a short list of technologies, innovative and conventional, designed to solve it. Or you can look up a technology, learn about it, and then check to see what other technologies might do the job.
Center for Subsurface Modeling Support (CSMoS) (EPA) From Ada, Oklahoma Center for Subsurface Modeling Support (CSMoS). You can download a variety of models for free .
CERCLIS Database CERCLIS is the Comprehensive Environmental Response, Compensation, and Liability Information System and contains information on hazardous waste sites, potential hazardous waste sites, and remedial activities across the nation, including sites that are on the National Priorities List (NPL) or being considered for the NPL.
CLU-IN Home Page (EPA) The Hazardous Waste Cleanup Information Web site about innovative technologies, including associated programs, organizations, publications and other tools. It is one of the most comprehensive technology sites on the Web. If you would like to be notified via email once a month about new technical publications related to characterization and remediation technologies, you may subscribe to TIO's TechDirect email service on CLU-IN.
CLU-IN Optimization Information Center This Web site provides information on EPA optimization efforts related to improving the design, long-term management, and closeout of remediation systems. The focus of the Web site is on optimization evaluations, technical fact sheets, demonstrations, and outreach efforts with which EPA has direct involvement but the Web site also provides links to other state and federal agency optimization resources.
Compendium of Cost Data for Environmental Remediation This searchable online document from DOE (the Los Alamos National Lab) is designed to provide cost data on environmental remediation technologies.
Consolidated CLU-IN Project Profile Search CLU-IN offers information on thousands of projects where innovative approaches have been used to deal with contamination problems. The Web site allows you to simultaneously search for and view project profiles from several collections containing over 1,200 of these profiles.
Contaminant Focus Area   (EPA CLU-IN) The CLU-IN Contaminant Focus area bundles information associated with the cleanup of individual contaminants and contaminant groups. This information is presented in categories such as Policy and Guidance, Chemistry and Behavior, Environmental Occurrence, Toxicology, Detection and Site Characterization, Treatment Technologies, and Conferences and Seminars. Sections currently exist for arsenic, chromium VI, and perchlorate.
Earth Observation System Project Science Office (NASA) Exiting EPA (disclaimer) This remote sensing page from NASA describes a remote sensing program.
EnviroMapper (EPA) EnviroMapper maps several types of environmental information, including drinking water, toxic and air releases, hazardous waste, water discharge permits, and Superfund sites. EnviroMapper also links to text reports, which provide even more information.
Environmental Technology Opportunities Portal (ETOP)   (EPA) The Environmental Technology Opportunities Portal (ETOP) helps those seeking funding opportunities, information, and links to programs that assist in environmental technology development and commercialization. ETOP is a “one-stop-shop” office to coordinate similar programs that foster private and public sector development of new, cost-effective environmental technologies.
Federal Remediation Technologies Roundable: Remedial Technologies Matrix Exiting EPA (disclaimer) One of the most complete innovative remedial technologies matrices available. Put together by a consortia of agencies, including EPA, DOD, DOE, DOI and USACE.
Federal Remediation Technologies Rountable: Site Characterization Matrix Exiting EPA (disclaimer) Just as comprehensive as the remedial technologies matrix, only this one is for field sampling and analysis technologies .
Field Analytic Technologies Encyclopedia (FATE)  (EPA CLU-IN) The FATE Web site provides information about technologies that can be used in the field: to characterize contaminated media, monitor the progress of remedial efforts, and in some cases, to conduct confirmation sampling and analysis for site close out.
Global Network of Environment and Technology (GNET) GNET is an online environmental technology and business center sponsored by the U.S. Department of Energy.
Groundwater Central© Exiting EPA (disclaimer) This is a portal from the Groundwater Remediation Technologies Analysis Center (GWRTAC) and consists of a resource "links" database and several integrated communication components including on-line publications, to case studies, data repositories, vendors, and announcements for events.
Groundwater Remediation Technologies Analysis Center (GWRTAC) Exiting EPA (disclaimer) GWRTAC compiles, analyzes and disseminates information on innovative groundwater technologies .
Groundwater Software (USGS) Exiting EPA (disclaimer) This is a USGS Web site for groundwater modeling software . There are several programs available through this site that are not available elsewhere including a new version of the MODFLOW GUI (Graphical User Interface) for Argus ONE.
Innovative Remediation Technologies: Field-Scale Demonstration Project and Report (EPA CLU-IN) This Web page adds new project data to its online, searchable database of on-going and completed field-scale demonstrations of innovative hazardous waste remediation technologies. Information on over 700 projects in the database can now be searched by media, technology type, contaminant type, and demonstration date.
National Exposure Research Laboratory
Environmental Science Databases
(EPA)
Environmental Sciences Division's Web page that lists various databases and software .
"ReachIt" Database (EPA) From TIP, it is an acronym for "REmediation And CHaracterization Innovative Technologies". Provides a unified database with information that also resides in the Vendor Information System for Innovative Treatment Technologies (VISITT), VendorFacts and the Innovative Treatment Technologies databases .
Remediation Databases (EPA CLU-IN)
Direct access is now provided to 17 remediation technology databases with information on topics ranging from dry cleaner site profiles to online phytoremediation bibliographies.
Remediation Technology Project Demonstration Files This Web site provides information about remediation technology demonstration projects. New technologies or new applications of existing technologies that are under development are often tested at demonstration or field-scale, prior to use in full-scale cleanups.
Superfund Presumptive Remedies (EPA) Superfund's Presumptive Remedies home page currently covers VOCs in soil, municipal landfills, wood treatment facilities, contaminated groundwater sites and metals in soils sites.
TechKnow Exiting EPA (disclaimer) An online database built into Global Network of Environment and Technology (GNET) that provides profiles of environmental technologies which include summaries, development and intellectual property status, and cost.

Technology Focus Area (EPA CLU-IN)

The CLU-IN Technology Focus area bundles information for particular technologies that may be used in a variety of applications. This information is presented in categories such as Overview, Guidance, Application, Training, and Additional Resources. CLU-IN presently provides a compilation of the most relevant information resources on 15 remediation technologies.
Technology Innovation Program (TIP) (EPA) EPA's Technology Innovation Program (TIP) is an advocate for new technologies; contains links to many other technology pages.
TerraServer Exiting EPA (disclaimer) MicroSoft's use of USGS/NASA aerial and satellite photography . Can get some interesting photos right at your desktop.
Triad Project Profiles with Cost & Time Savings Online Exiting EPA (disclaimer) This Triad Resource Center (TRC) Web site documents 15 Triad projects. Each profile describes the primary objective(s) of the project, site history, team members and collaboration methods, realtime measurement technologies, data management techniques, project timelines, as well as discussions of the Triad elements applied.
Triad Resource Center The Web site provides information describing how the Triad approach restructures projects from technical and project management perspectives. It includes overview information, project management, Triad case studies, detailed reference resources and frequently asked questions.
Vendor Support Area   (EPA CLU-IN) This EPA Web site was created to provide environmental technology developers and vendors with tools to help advance technologies through all stages of product development from bench scale to full commercialization. The resources collected for this site cover a broad range of topics that include business planning, marketing, financing, and technical issues.

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Technology Publications 

Battelle Bookstore Exiting EPA (disclaimer) Contains some environmental technology publications .
Environmental Science and Technology Publication Exiting EPA (disclaimer) This is a Web site connected to the publication ES&T. It provides a dozen or so links to other environmental technology Web sites from industry, government, nonprofits and academia.
Groundwater Currents newsletters (EPA CLU-IN) Archive of EPA newsletters that provide information on innovative groundwater treatment technologies.
Groundwater Guidance (EPA) This page provides a link to lists of key Office of Solid Waste and Emergency Response (OSWER) groundwater guidance and selected other reports on ground water which are used frequently by Superfund Remedial Project Managers.
Measurement and Monitoring Technology for the 21st Century (EPA CLU-IN) Measurement and Monitoring Technology for the 21st Century
This Web site provides literature on Open-Path Monitoring Technologies for primary waste program monitoring needs under EPA's 21M2 program.
National Academy Press Reading Room Environmental Documents Exiting EPA (disclaimer) Contains many documents about groundwater protection and remediation.
National Catalogue (EPA) Access to the EPA National Catalogue
National Environmental Publications Internet Site (NEPIS) A database of over 6,000 EPA documents to browse/view, and print online.
Office of Research and Development (ORD) Publications (EPA) This page contains all of the latest publications from ORD .
Science Direct Exiting EPA (disclaimer) Designed to provide desktop access to the full text of more than 1000 scientific, medical and technical journals published by Elsevier Science.
Superfund Remedy Decisions (EPA)

This site was developed by EPA's Office of Emergency and Remedial Response. It provides a comprehensive compilation of all remedy-related guidance and policy documents that deal with CERCLA remedy decisions.

Superfund Resources (EPA) General Web page with links of Superfund resources , including technical resources. You can download technical publications and software, view numerous hazardous waste databases, look at Superfund training courses and materials, or access Superfund's analytical services.
Technology News and Trends (EPA CLU-IN) This is an EPA newsletter about soil, groundwater and sediment characterization and remediation technologies. It replaces two former EPA newsletters, "TechTrends" and "Groundwater Currents".
Technology Transfer (EPA) Formerly EPA's Center For Environmental Research Information, now the Technology Transfer Branch of NRMRL. You can order many EPA documents on this page for free, while supplies last.
TechTrends newsletter archive (EPA CLU-IN) Archive of EPA newsletters that provide descriptions and performance data for innovative source control technologies that have been applied in the field.

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Technology Partnerships 

Bay Area Defense Conversion Action Team (BADCAT) Exiting EPA (disclaimer) Although no longer active, BADCAT worked hard to bring innovative technologies to closing military bases in the Bay Area, with an eye towards cleaning up contaminated closing military base sites faster, better, and cheaper for expedited turnover to local communities for future use.
Committee on the Challenges of Modern Society (CCMS) (NATO) Exiting EPA (disclaimer) NATO's CCMS combines the expertise and technology available in member NATO countries . The CCMS Web site is also a tool for the multiple CCMS pilot studies and participating nations to acquire, organize, retrieve, and disseminate environmental information of common interest. It provides access to environmental data, reports, and studies.
EPA "TechMatch" Web site This Web site contains more than 130 EPA scientific patents of technologies that benefit the environment. Entrepreneurs can view and license EPA technologies to develop new products that offer both environmental protection and economic growth. TechMatch was developed by EPA in coordination with the West Virginia High Technology Consortium Foundation.
Federal Remedial Technologies Roundtable Exiting EPA (disclaimer) A partnership set up to establish an exchange among federal agencies about remediation technologies . One very useful product of this group is a very comprehensive treatment technologies screening matrix (described above). A collaboration of EPA and the Departments of Defense, Energy, and Interior.
Interstate Technology and Regulatory Council (ITRC) Exiting EPA (disclaimer) ITRC is a national coalition that works to improve the acceptance and interstate deployment of innovative environmental technologies.

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Specific Technology Applications 

Alternative Landfill Cover Profiles (EPA CLU-IN) This EPA TIP database contains information about proposed, tested, or installed alternative design covers at waste disposal sites, including municipal solid waste and hazardous waste landfills and radioactive waste sites. The majority of alternative design covers featured are evapotranspiration (ET) covers including monolithic and capillary barrier designs.
API Interactive LNAPL Guide Exiting EPA (disclaimer) This tool, developed by the American Petroleum Institute, is a comprehensive and easy-to-use electronic information system and screening utility. The Guide is designed to provide an overall approach for evaluating light non-aqueous phase liquid (e.g., petroleum hydrocarbons) at a site, assessing its potential risk, quantitatively defining mobility and recoverability, developing remedial strategies, and examining methods to enhance site closure opportunities.
Bioremediation Resources Exiting EPA (disclaimer) BioLinks is an archive of Internet resources on bioremediation and related topics that are organized by topical categories. Put together by a Canadian consulting company - GZA GeoEnvironmental, Inc.
Composting (EPA Office of Solid Waste and Emergency Response) Web page on composting as a remedial alternative . Case studies included.
Elements for Effective Management of Operating Pump and Treat Systems (PDF) (EPA) This fact sheet summarizes key aspects of effective management for operating pump and treat (P&T) systems based on lessons learned from conducting optimization evaluations at 20 Superfund-financed P&T systems.
Fully Integrated Environmental Location Decision Support (FIELDS) (EPA) The FIELDS system is a collection of technological tools and applications incorporating geographic information systems (GIS), global positioning systems (GPS) and in-field analytical techniques to inform decision makers about a variety of conditions at a particular site or geographic area.
Modeling Subsurface Transport of Petroleum Hydrocarbons (EPA) This Web page provides a course whose objective is to provide the necessary background information for applying models to field sites, judging such applications, or for setting program-wide modeling requirements.
MTBE (EPA) This Web page includes information on MTBE remediation technologies, testing, underground storage tank issues, etc.
MTBE Treatment Profiles (EPA CLU-IN) This Web site contains information about completed and ongoing applications for treatment of MTBE in drinking water and media at contaminated sites. It is put together by EPA's Technology Innovation Program and the Office of Underground Storage Tanks.
New Phytotechnologies Profiles This EPA Web site summarizes timely information about full-scale, field-scale and large greenhouse-scale applications of phytotechnology. Projects for this website are collected using information from technical journals, conference proceedings as well as information obtained from technology vendors and site managers.
Perchlorate Remediation Information (EPA CLU-IN)
This page is devoted to perchlorate remediation and provides access to over 40 technical reports, journal articles, Web pages, and other materials from public and private sources on the latest advancements in the research and application of perchlorate treatment technologies.
PPCPs - Pharmaceuticals and Personal Care Products PPCPs are not items that one typically associates with hazardous waste sites. But they are just as pervasive and can impact the same water resources that industrial sites do when hazardous waste is released. EPA's web site provides information on PPCPs as environmental pollutants.
Sediment Sites With Substantial Contamination EPA has assembled this web-based listing of Superfund sites for which: 1) the agency has signed a record of decision or action memorandum for sediment cleanup; and 2) the remedy involves more than 10,000 cubic yards of sediments to be dredged or excavated or more than five acres to be capped or monitored for natural recovery. The listings are organized by Region, and most have links to other information on the web about remediation activities undertaken at the site.
Sensors Technology Information Exchange (SenTIX) Exiting EPA (disclaimer) This Web site, supported by EPA, provides a forum for communication and exchange of information related to the application, development, and use of today's high-tech sensors. SenTIX focuses primarily on sensors used in environmental cleanup and includes information from diverse, but also related technical fields.
Superfund Comprehensive Five-Year Guidance (EPA) This guidance is intended to promote consistent implementation of the five-year review process. (OWSER Directive 9355.7-03B-P, dated June 2001)
Superfund: Contaminated Sediments (EPA CLU-IN) This Web site from EPA's Office of Solid Waste and Emergency Response contains recent EPA guidance on sediment sites and direct links to NPL fact sheets for 66 EPA sites where RODS have been signed.
Superfund Institutional Controls (EPA) Also called "Long term Stewardship" and "Land Use Controls" by other agencies, this link provides EPA guidance on technologies and issues to consider when making cleanup decisions that require future restrictions to the land.
Superfund Presumptive Remedies (EPA) Superfund's Presumptive Remedies home page currently covers VOCs in soil, municipal landfills, wood treatment facilities, contaminated groundwater sites and metals in soils sites.

Superfund Records of Decisions (RODS) (EPA)

EPA has developed an online system for Records of Decision (RODS) that provides full-text RODs in searchable format. This replaces a CD-ROM version. RODS Online includes the full-text of all ROD documents currently available, including abstracts, ROD Amendments, and Explanations of Significant Differences (ESDs). There are a variety of search options, using EPA ID, keyword or site name, that work across the entire set of documents.
Underground Storage Tanks Alternative Technologies (EPA) This Web page highlights a 1995 Office of USTs guidance manual on alternative technologies entitled "How to Evaluate Alternative Cleanup Technologies for Underground Storage Tank Sites: A Guide for Corrective Action Plan Reviewers". (EPA 510-B-95-007). This page provides detailed descriptions of 10 technologies .
Waste Treatment: Solidification/ Stabilization Exiting EPA (disclaimer)
This industry Web site is dedicated to information on solidification/stabilization technology. A key feature of the site is a list of important EPA and Army Corps of Engineer publications on solidification/stabilization.

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Monitored Natural Attenuation Policy

Monitored Natural Attenuation Directive (EPA) Text of the OSWER Directive on MNA, 12/1/97
Monitored Natural Attenuation Protocol (EPA) The " Technical Protocol for Evaluating Natural Attenuation of Chlorinated Solvents in Ground Water"; from the Ada Research Laboratory Web site

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Technology Transfer 

Air Force Center for Environmental Excellence Exiting EPA (disclaimer) This page is directed at Air Force employees and therefore contains lots of AF guidance, but it also contains links to EPA and Department of Energy technology sites.
Argonne National Lab Exiting EPA (disclaimer) This page provides links to many Argonne Lab environmental technology programs and projects.
Army Technology Transfer Exiting EPA (disclaimer) This Army Web page provides a summary of environmental restoration technologies used by the Army.
Center for Environmental Industry and Technology (CEIT) (EPA Region 1) EPA Region 1's Center for Environmental Industry and Technology (CEIT) is a catalyst for bringing new environmental technologies to the marketplace and addressing the concerns of New England's envirotech industry. The site includes an innovative technology inventory.
TRAINEX: Environmental Training Courses Exiting EPA (disclaimer) Contains EPA and other training course descriptions, dates, and registration information.
EUGRIS Exiting EPA (disclaimer)
The EUGRIS portal is a web-based European information portal for soil and water management in Europe. EUGRIS provides access to information on soil and groundwater management from throughout the European Union, including research projects, technical information, available training, legislation, guidance and support tools.
HSTL Public Homepage
HSTL Intranet (within EPA) Homepage
ORD technical support is available to Regional Superfund and RCRA staff through your local technical liaison. ORD's Hazardous Substances Technical Liaisons (HSTLs) have been working to increase their visibility online with improved web sites, both on the internet and the intranet. Learn more about the program on these web pages.
International Innovative Environmental Solutions This EPA web site offers environmental policies and best practices from countries around the world including Germany, the Netherlands, Sweden and Australia. The online global library provides links to journals, databases, guidelines, programs and case studies involving innovations in air, toxics, waste and water issues, as well as multi-media approaches, such as Environmental Management Systems, sustainable transport, smart growth and industrial ecology.
Lawrence Berkeley National Lab (LBNL) Exiting EPA (disclaimer) LBNL's Technology Transfer page
Lawrence Berkeley National Lab's Current Technologies Exiting EPA (disclaimer) LBNL's Index of Current Environmental Technologies Available for Licensing and Collaboration.
Naval Facilities Engineering Support Center Exiting EPA (disclaimer) Technical information from the Department of the Navy's Environmental Restoration Program. Covers Analysis, Methodologies and Technologies. Click on "Restoration."
Site Remediation Exiting EPA (disclaimer)(USGS Toxic Substances Hydrology Program) This Web page provides links to U.S. Geological Survey (USGS) information on projects and activities related to the remediation of contaminated sites. The projects are categorized by type (e.g., testing of remediation technologies, natural attenuation evaluation, performance monitoring, site characterization) and contaminant.
Subsurface Contaminants Focus Area Exiting EPA (disclaimer) The Subsurface Contaminants Focus Area (SCFA) mission is to develop, demonstrate, and deploy step-change solutions to users' problems involving containment and long-term isolation of leaking buried waste areas and remediation of source term contamination including dense non-aqueous phase liquids (DNAPLS), metals, and radionuclides as well as dispersed contamination in the subsurface.
Technology Transfer Highlights (EPA) Formerly EPA's Center For Environmental Research Information, now the Technology Transfer Branch of NRMRL. You can order many EPA documents on this page for free, while supplies last.

The Office of Solid Waste and Emergency Response
Fiscal Year 2010 End of the Year Report

Integrating the Life-Cycle Stages of Materials from Extraction to End-of-Life
Sustainable materials management is a core element of RCRA's resource conservation mandate. By considering the life cycle of materials from how they are extracted, manufactured, distributed, used, reused, recycled and finally disposed, we are casting a far broader net than our traditional approaches which considered waste and use phases of chemicals and materials. This represents an evolution in how we think about environmental protection. Consistent with this approach, in FY11 EPA will continue to advance its efforts from waste management to materials management. Efforts involve developing a materials management framework and strategy that implements EPA's recommendations in Sustainable Materials Management: The Road Ahead (2009), senior leadership and stakeholder discussions, messaging efforts, and efforts to evolve existing work to include "upstream" elements.

Small Business Environmental Assistance Providers

Below is a list of small business assistance providers and descriptions of these programs.  Services provided by these organizations for small businesses include environmental compliance, pollution prevention, management, technology, and resources assistance.  Links to program web sites as well as state and local program web sites are included.

Compliance Advisory Panel (CAP) Programs
Compliance Assistance Centers
EPA Pollution Prevention Web Site
EPA Small Business Asbestos and Small Business Ombudsman (ASBO)
Manufacturing Extension Partnership (MEP) Centers
National Institute of Standards and Technology (NIST)
National Pollution Prevention Roundtable
Small Business Environmental Assistance Programs (SBEAPs)
Small Business Development Centers (SBDCs)
Trade Associations

Compliance Advisory Panel (CAP) Programs --The Compliance Assistance Programs are created at the state level and are comprised of business and permit program members.  The CAPs represent small business perspectives in their states and provide information on the effectiveness and any difficulties encountered of their small business assistance programs.  CAPs also provide input on regulations from the layman's perspective, are involved in the regulatory process, provide information on activities of their small business assistance programs, and participate in their small business assistance programs. 

Compliance Assistance Centers --There are nine sector specific Compliance Assistance Centers providing compliance information targeted specifically to certain industry needs.  The Centers were established by EPA, in partnership with industry, academic institutions, environmental groups, and other federal and state agencies and local governments.  The Centers include:  automotive service and repair community; metal finishing industry; chemical manufacturers; paints and coatings (organic coating facilities, industry vendors, and suppliers); Federal departments and agencies; printed wiring board manufacturers, industry vendors, and suppliers; local government officials, managers, and staff; printers; environmentally protective and agriculturally sound approaches to compliance; and transportation (air, shipping and barging, rail, and trucking).

EPA Pollution Prevention Web Site --This EPA web site provides general information about P2 practices, describes the array of P2 programs and initiatives administered by EPA and other organizations, and provides contacts for further information.

EPA Asbestos & Small Business Ombudsman (ASBO) --Established in 1982, the EPA Asbestos and Small Business Ombudsman (ASBO), Office of Small Business Programs, under the Office of the Administrator, serves as an effective conduit for small businesses to access EPA and facilitates communications between the small business community and the Agency.  The Office reviews and resolves disputes with EPA and works with EPA personnel to increase their understanding of small businesses in the development and enforcement of environmental regulations.  The SBO's primary customer group is the nation's small business community.  Significant secondary customer groups include state and EPA regional small business ombudsmen and national trade associations serving small businesses.

Manufacturing Extension Partnership (MEP) Centers --The MEP program is a nationwide network of not-for-profit Centers in over 400 locations nationwide (including all 50 states, the District of Columbia, and Puerto Rico).  The purpose of these Centers is to provide small- and medium-sized manufacturers with the help they need to succeed. The Centers provide technical and business assistance, including the creation of successful partnerships and provision of seminars and training programs.  The Centers succeed with the special combination of  local expertise and access to national resources.  

Links to MEP Centers by State

National Institute of Standards and Technology (NIST) --NIST works with industries to develop and apply technology, measurements, and standards.  There are four major programs under NIST:  Measurement and Standards Laboratories (provides technical leadership for vital components of the nation's technology infrastructure needed by U.S. industry to continually improve its products and services), Advanced Technology Program (helps develop innovative technologies through R&D partnerships with the private sector), Manufacturing Extension Partnership (includes network of local centers offering technical and business assistance to small- and medium-sized manufacturers), and Outreach program associated with the Baldrige National Quality Program (recognizes business performance excellence and quality achievement by U.S. manufacturers, service companies, educational organizations, and health care providers).

National Pollution Prevention Roundtable --Provides national forum for promoting the development, implementation, and evaluation of efforts to avoid, eliminate, or reduce pollution at the source.  Includes descriptions of the organization and its functions, information on federal pollution prevention legislation, conferences, workgroups, partners, and publications.

Small Business Environmental Assistance Programs (SBEAPs) --Small Business Environmental Assistance Programs (SBEAPs) were created as a result of the Clean Air Act Amendments of 1990 requirement that all States develop a program to assist small businesses in meeting the requirements of the Act.  Since then, most of these programs have expanded to provide assistance in other environmental areas, including waste and waste issues.  SBAPs provide free, nonregulatory environmental compliance and pollution prevention assistance to small businesses.  The program provides small businesses with partnership-based compliance support, education, outreach and advocacy.

SBEAPs 2007-2008 Achievements
Small Business Environmental Assistance Programs Key Contact Listing
EPA Small Business Gateway

Small Business Development Centers (SBDCs) --Small Business Development Centers, administered by the U.S Small Business Administration (SBA), provides one-stop management assistance to current and prospective small business owners through central and easily accessible branch locations.  The program is a cooperative effort of the private sector, the educational community, and federal, state, and local governments.  The SBDC Program provides assistance to small businesses with financial, marketing, production, organization, engineering and technical problems and feasibility studies.  Special SBDC programs and economic development activities include:  international trade assistance, technical assistance, procurement assistance, venture capital formation, and rural development.

SBDCNet National Information Clearinghouse
America's Small Business Development Center Network
Links to SBDC web sites
Links to SBDC Locations/Contacts by State

Trade Associations --National organizations providing leadership representing the business, legislative and regulatory interests of various industries.

Holy smoking bee gun, Batman!

Leaked document shows EPA allowed bee-toxic pesticide despite own scientists' red flags

It's not just the State and Defense departments that are reeling this month from leaked documents. The Environmental Protection Agency now has some explaining to do, too. In place of dodgy dealings with foreign leaders, this case involves the German agrichemical giant Bayer; a pesticide with an unpronounceable name, clothianidin; and an insect species crucial to food production (as well as a food producer itself), the honeybee. And in lieu of a memo leaked to a globetrotting Australian, this one features a document delivered to a long-time Colorado beekeeper.

All of that, plus my favorite crop to fixate on: industrial corn, which blankets 88 million acres of farmland nationwide and produces a bounty of protein-rich pollen on which honeybees love to feast.

It's The Agency Who Kicked the Beehive, as written by Jonathan Franzen !  

Hive talking

An internal EPA memo released Wednesday confirms that the very agency charged with protecting the environment is ignoring the warnings of its own scientists about clothianidin, a pesticide from which Bayer racked up €183 million (about $262 million) in sales in 2009.

Clothianidin has been widely used on corn, the largest U.S. crop, since 2003. Suppliers sell seeds pre-treated with it. Like other members of the neonicotinoid family of pesticides, clothianidin gets "taken up by a plant's vascular system and expressed through pollen and nectar," according to Pesticide Action Network of North America (PANNA), which leaked the document along with Beyond Pesticides. That effect makes it highly toxic to a crop's pests -- and also harmful to pollen-hoarding honeybees, which have experienced mysterious annual massive die-offs (known as "colony collapse disorder") here in the United States at least since 2006.

The colony-collapse phenomenon is complex and still not completely understood. While there appears to be no single cause for the annual die-offs, mounting evidence points to pesticides , and specifically neonicotinoids (derived from nicotine), as a key factor. And neonicotinoids are a relatively new factor in ecosystems frequented by honeybees -- introduced in the late 1990s, these systemic insecticides have gained a steadily rising share of the seed-treatment market. It does not seem unfair to observe that the health of the honeybee population has steadily declined over the same period.

According to PANNA, other crops commonly treated with clothianidin include canola, soy, sugar beets, sunflowers, and wheat -- all among the most widely planted U.S. crops. Bayer is now petitioning the EPA to register it for use with cotton and mustard seed.

The document [PDF], leaked to Colorado beekeeper Tom Theobald, reveals that EPA scientists have declared essentially rejected the findings of a study conducted on behalf of Bayer that the agency had used to justify the registration of clothianidin. And they reiterated concerns that widespread use of clothianidin imperils the health of the nation's honeybees.

On Thursday, I asked an EPA press spokesperson via email if the scientists' opinion would inspire the agency to remove clothianidin from the market. The spokesperson, who asked not to be named but who communicated on the record on behalf of the agency, replied that clothianidin would retain its registration and be available for use in the spring.

Wimpy watchdogging

Before we dig deeper into the leaked memo, it's important to understand the sorry story of how an insecticide known to harm honeybee populations came to blanket a huge swath of U.S. farmland in the first place. It's nearly impossible not to read it as a tale of a key public watchdog instead heeling to the industry it's supposed to regulate.

In the EPA's dealings with Bayer on this particular insecticide, the agency charged with protecting the environment has consistently made industry-friendly decisions that contradict the conclusions of its own scientists -- and threaten to do monumental harm to our food system by wiping out its key pollinators.

According to a time line provided by PANNA, the sordid story begins when Bayer first applied for registration of clothianidin in 2003. (All of the documents to which I link below were provided to me by PANNA.) By 2003, U.S. beekeepers were reporting difficulties in keeping hives healthy through the winter, but not yet on the scale of colony collapse disorder. In February of this year, the EPA's Environmental Fate and Effects Division (EFED) withheld registration of clothianidin, declaring that it wanted more evidence that it wouldn't harm bee populations.

In a memo [PDF], an EFAD scientist explained the decision:

The possibility of toxic exposure to nontarget pollinators [e.g., honeybees] through the translocation of clothianidin residues that result from seed treatment (corn and canola) has prompted EFED to require field testing that can evaluate the possible chronic exposure to honeybee larvae and the queen. In order to fully evaluate the possibility of this toxic effect, a complete worker bee life cycle study (about 63 days) must be conducted, as well as an evaluation of exposure to the queen.

So, no selling clothianidin until a close, expert examination of how pollen infused with it would affect worker bees and Her Majesty the queen.

Again, that was in February of 2003. But in April of that year, just two months later, the agency backtracked. "After further consideration," the agency wrote in another memo , the EPA has decided to grant clothianidin "conditional registration" -- meaning that Bayer was free to sell it, and seed processors were free to apply it to their products. (Don't get me started on the EPA's habit of granting dodgy chemicals "conditional registration," before allowing their unregulated use for years and even decades. That's another story.)

The EPA's one condition reflected the concerns of its scientists about how it would affect honeybees: that Bayer complete the "chronic life cycle study" the agency had already requested by December of 2004. The scientists minced no words in reiterating their concerns. They called clothianidin's effects "persistent" and "toxic to honeybees" and noted the the "potential for expression in pollen and nectar of flowering crops."

These concerns aside and "conditional registration" in hand, Bayer introduced clothianidin to the U.S. market in spring 2003. Farmers throughout the corn belt planted seeds treated with clothianidin, and billions -- if not trillions -- of plants began producing pollen rich with the bee-killing stuff.

Bee on a cornflowerA bee does what it does best -- thankfully, not in a corn field. Photo: Purplekey In March of 2004, Bayer requested an extension on its December deadline for delivering the life-cycle study. In a March 11 memo [PDF], the EPA agreed, giving the chemical giant until May 2005 to complete the research. Clothianidin continued flowing from Bayer's factories and from corn plants into pollen.

But the EPA also relayed a crucial decision in this memo: It granted Bayer the permission it had sought to conduct its study on canola in Canada, instead of on corn in the United States. The EPA justified the decision as follows:

[Canola] is attractive to bee [sic] and will provide bee exposure from both pollen and nectar. An alternative crop, such as corn, which is less attractive to bees as a forage crop, would provide exposure from pollen, only.

Bee experts cite three problems with this decision:

  1. Corn produces much more pollen than does canola;
  2. its pollen is more attractive to honey bees; and
  3. canola is a minor crop in the United States, while corn is the single most widely planted crop.

What happened next was ... not much. Bayer let the deadline for completing the study lapse; and the EPA let Bayer keep selling clothianidin, which continued to be deposited into tens of millions of acres of farmland.

Not until August of 2007, more than a year after its deadline, did Bayer deliver its study. In a November 2007 memo [PDF], EPA scientists declared the study "scientifically sound," adding that it, "satisfies the guideline requirements for a field toxicity test with honeybees."

Beeing and nothingness

So what were the details of that study, on which the health of our little pollinator friends depended?

Well, the EPA initially refused to release it publicly, prompting a Freedom of Information Act by the Natural Resources Defense Council. When the EPA still refused to release it, NRDC filed suit in response. Eventually, the study was released. Here it is [PDF].

Prepared for Bayer by researchers at Canada's University of Guelph, the study is a bit of a joke. The researchers created several 2.47-acre fields planted with clothianidin-treated seeds and matching untreated control fields, and placed hives at the center of each. Bees were allowed to roam freely. The problem is that bees forage in a range of 1.24 to 6.2 miles -- meaning that the test bees most likely dined outside of the test fields. Worse, the test and control fields were planted as closely as 968 feet apart, meaning test and control bees had access to each other's fields.

Not surprisingly, the researchers found "no differences in bee mortality, worker longevity, or brood development occurred between control and treatment groups throughout the study."

Tom Theobald, the Colorado beekeeper who obtained the leaked memo, assessed the study harshly on the phone to me Thursday. "Imagine you're a rancher trying to figure out if a noxious weed is harming your cows," he said. "If you plant the weed on two acres and let your cows roam free over 50 acres of lush Montana grass, you're not going to learn much about that weed."

James Frazier, professor of entomology at Penn State, concurred. Frazier has been studying colony-collapse disorder since 2006. "When I looked at the study," he told me in a phone interview, "I immediately thought it was invalid."

Meanwhile, Bayer continued selling clothianidin under its conditional registration. Then, on April 22 of this year, the EPA finally ended clothianidin's long period of "conditional" purgatory -- by granting it full registration.

The agency gifted the bee-killing pesticide with its new status quietly; to my knowledge, the only public acknowledgment of it came through the efforts of Theobald, who is extremely worried about the fate of his own bee-keeping business in Colorado's corn country. Theobald forwarded me a Nov. 29 email exchange with Meredith Laws, the acting chief of the EPA's herbicide division in the Office of Pesticide Programs, to whom he'd written to enquire about clothianidin's registration status. Laws' reply is worth quoting in its entirety:

Clothianidin was granted an unconditional registration for use as a seed treatment for corn and canola on April 22, 2010. EPA issued a new registration notice, [but] there is no document that acknowledges the change from conditional to unconditional. This was a risk management decision based on the fulfillment of data requirements and reviews accepting or acknowledging the submittal of the data.

So, the EPA gave Bayer and its dubious pesticide a full pass without even bothering to let the public know.

Just bee very careful, please

Now we get to the leaked memo [PDF]. It is dated Nov. 2 -- three weeks before Laws' reply to Theobald. It relates to Bayer's efforts to expand clothianidin's approved use into cotton and mustard. Authored by two scientists in the EPA's Environmental Fate and Effects Division -- ecologist Joseph DeCant and chemist Michael Barrett -- the memo expresses grave concern about clothianidin's effect on honeybees:

Clothianidin's major risk concern is to nontarget insects (that is, honey bees).

Clothianidin is a neonicotinoid insecticide that is both persistent and systemic. Acute toxicity studies to honey bees show that clothianidin is highly toxic on both a contact and an oral basis. Although EFED does not conduct ...  risk assessments on non-target insects, information from standard tests and field studies, as well as incident reports involving other neonicotinoids insecticides (e.g., imidacloprid) suggest the potential for long term toxic risk to honey bees and other beneficial insects.

The real kicker is that the researchers essentially invalidated the Bayer-funded study -- i.e., the study on which the EPA based clothianidin's registration as an fully registered chemical. Referring to the pesticide, the authors write:

A previous field study [i.e., the Bayer study] investigated the effects of clothianidin on whole hive parameters and was classified as acceptable. However, after another review of this field study in light of additional information, deficiencies were identified that render the study supplemental. It does not satisfy the guideline 850.3040, and another field study is needed to evaluate the effects of clothianidin on bees through contaminated pollen and nectar. Exposure through contaminated pollen and nectar and potential toxic effects therefore remain an uncertainty for pollinators. [Emphasis mine.]

So, here we have EPA researchers explicitly invalidating the study on which clothianidin gained registration for corn. But as I wrote above, despite this information's being made public, the EPA has signaled that it has no plans to change the chemical's status.

In the 2011 growing season, tens of millions of acres of farmland will bloom with clothianidin-laced pollen -- honeybees, and sound science, be damned.

Now, in my correspondence with the EPA, the agency has denied that the downgrading of the Bayer study from "acceptable" to "supplemental" meant that the agency should be compelled to clothianidin's approval. In a Thursday email to me, the agency delivered a limp defense of the Bayer study, contradicting its own scientists and addressing none of the critiques of it:

EPA's evaluation of the study determined that it contains information useful to the agency's risk assessment. The study revealed the majority of hives monitored, including those exposed to clothianidin during the previous season, survived the over-wintering period.

And it downplayed the study's importance to Bayer's application to register clothianidin: The study in question is "not a 'core' study for EPA as claimed," the agency insisted. "It is not a study routinely required to support the registration of a pesticide."

I ran that response by Jay Feldman of Beyond Pesticides, the group that collaborated with PANNA in publicizing the leaked document. "I find the EPA response either misinformed or misleading," he told me. "The paper trail on this is clear. We're talking about a bad study required by EPA [that is central] to the registration of this chemical."

Feldman's assessment appears to bear out. He pointed me back to the above-linked Nov. 27 document in which EPA originally accepted the Bayer study. There, on page 5, we find this statement:

Specifically, the test was conducted in response to a request by the Canadian PMRA [Pesticides and Pest Management Agency] and the U.S. EPA; as a condition for Poncho@ [clothianidin] registration in these countries, Bayer CropScience was asked to investigate the long-term toxicity of clothianidin-treated canola to foraging honey bees.

So evidently, the discredited Bayer study does lie at the heart of clothianidin's acceptance. (I have requested an interview with an EPA official who can talk knowledgeably and on the record about these matters; the anonymous-by-request spokesperson is, at the time of publication, still looking for the "right person," I was informed via email.)

A stinging assessment

At the very least, we have ample evidence that the EPA has been ignoring the warnings of its own staff scientists and green-lighting the mass deployment of a chemical widely understood to harm pollinators -- at a time when honeybees are in grave shape.

But why? Tom Theobald, the Colorado beekeeper who broke this story, ventured an answer. "It's corporatism, the flip side of fascism," he said. "I'm not against corporations, I think they have a good model. But they're like children -- we have to rein them in or they get out of hand. The EPA's supposed to do that."

When regime change came to Washington in 2008, many of us hoped that an EPA under Barack Obama would be a better parent. EPA Director Lisa Jackson inherited quite a mess from her predecessor, and she faces the Herculean challenge of regulating greenhouse gases against fierce Republican and industry opposition.

But as concern mounts -- from her own staff and elsewhere -- that clothianidin is harming honeybees, there's no excuse for Jackson's agency to keep coddling Bayer. Frazier, the Penn State entomologist, put it to me like this: "If the Bayer study is the core study the EPA used to register clothianidin, then there's no basis for registering it." He urged the EPA to withdraw registration to avoid unnecessary risk to a critical player in our ecosystem -- as have the governments of Germany, France, Italy, and Slovenia.

Tom Philpott is Grist's senior food and agriculture writer.

Beekeeper Who Leaked EPA Documents: "I Don't Think We Can Survive This Winter"

BY Ariel Schwartz Today

Colorado beekeeper Tom Theobald never expected to become embroiled in a controversy between the EPA and the pesticide industry. But that's exactly what happened when Theobald got hold of an EPA document revealing that the agency is allowing the widespread use of a bee-toxic pesticide, in spite of warnings from EPA scientists.

So how did Theobald end up with such a contentious document?

Bayer, the corporation behind clothianidin (the pesticide in question), published a life cycle study about it in 2006 at the EPA's request. The study was flawed--test and control fields were, for example, planted as close as 968 feet apart. But the EPA continued to allow the use of clothianidin, which has been on the market since 2003 (and which has been banned by Germany, France, Italy, and Slovenia for its toxic effects on bees, birds, and other species).

Fast forward to this year. Theabald wrote an article in the July issue of Bee Culture about clothianidin. Then an employee at the EPA called Theobald to tell him the article had led the EPA to review the pesticide's original life cycle study before approving clothianidin for use on cotton and mustard. 

"They told me that EPA scientists had reviewed the originally lifecycle study and determined it wasn't scientifically sound, and I asked if it had been documented, if there was a hard copy," he says, "The [employee] said yes, and I asked if I could get a copy." And just like that, he had the proof he needed that the EPA had overlooked something that could be killing America's bees.

"Everybody is keyed on the leaked memo, but basically it's a public document," adds Theobald. He just happened to be the first one to learn about it and ask for it. "The shock was that they did the study at all."

Theobald has been concerned about clothianidin since it was first released in 2003. The pesticide is a neonicotinoid--a type of insecticide that disrupts the central nervous system of insects. Imidacloprid, the first neonicotinoid to be released in the U.S., came on the market in 1994, and began raising red flags soon after. France banned imidacloprid in 2003 due to concerns of bee die-off triggered by the substance.

Now the stakes are higher than ever. Tom Theobald's honey crop this year is the smallest he's seen in 35 years of beekeeping. "This is the critical winter for the beekeeping industry. I don't think we can survive," he says. "If the beekeeping industry collapses, it jeopardizes a third of American agriculture."

That's because the giant agriculture industry couldn't produce nearly as much with native bee pollinators alone; instead, the industry relies on beekeepers, who rent out their bees to pollinate everything from strawberries and blueberries to squash and cucumbers.

As of today, the EPA has no plans to ban clothianidin in the U.S. Theobald hopes that all the press surrounding the issue will trigger the agency to change its mind. It has to, he says. "The EPA management needs to step forward, face the music, take its lumps and do things right. If they continue to try to bury this, they're going to continue to look more pathetic than they do already."

 

Dentistry without License?

Superfund money to clean 'mouth of the beast'

Peter Fimrite, Chronicle Staff Writer

San Francisco Chronicle June 12, 2009 04:00 AM Copyright San Francisco Chronicle. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Friday, June 12, 2009

Links

Iron Mountain Mine in the press!


Record Searchlight (Redding newspaper, includes video) - June 2009

San Francisco Chronicle - June 2009


What is eminent domain?

"Eminent domain" - also called "condemnation" - is the power of local, state or federal government agencies to take private property for "public use" so long as the government pays "just compensation." The government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.

Center for Nonprofit Resources

EWD at Shasta College is the home of the Northern California Center for Nonprofit Resources.

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As a member of the Center for Nonprofit Resources your organization has access to the Foundation Center Online resource during our regular office hours. In addition, your membership fee ensures this service continues. The Nonprofit Center is fully financially self supported.
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Register as a member!  The Nonprofit Resource Center at Shasta College provides services to all nonprofit & philanthropic organizations by providing information, education, and consulting services. The Center is a one-stop resource for board members, staff, and volunteers of nonprofit organizations. Please note: members are given priority access, first-come first-serve basis.

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December 9, 2010 Mining legislation rejected by House

By Mannix Porterfield Register-Herald Reporter

US House Sends Senate Stop-Gap Bill To Fund Gov For All FY'11

The House approved Wednesday a stop-gap spending bill that would fund the federal government for the rest of the 2011 fiscal year. The $1.1 trillion bill was approved on a 212-to-206 vote. Wed, 12/08/2010 - 21:00

Beginning in fiscal year 2010, EPA has initiated a three-year strategy, called the Integrated Cleanup Initiative, to identify and implement improvements to the Agency's land cleanup programs. The Initiative will identify and implement opportunities to integrate and leverage the Agency's land cleanup authorities to accelerate cleanups, address a greater number of contaminated sites, and put these sites back into productive use while protecting human health and the environment. The Initiative will seek to provide affected communities with the transparency of information they need to understand the progress of cleanup activities at local sites and to hold those responsible for cleanup accountable. EPA will be working closely with state and tribal partners and affected local partners as the Initiative is further developed.

Integrated Cleanup Initiative

The challenges to the nation's land cleanup programs have changed since they began in the 1980s. Communities today are not only focused on getting sites cleaned up, but also want to have an active role in putting sites back to productive use. Communities today want to better understand and engage with EPA on cleanup decisions; they want greater transparency and accountability in the cleanup of sites that affect their lives. Communities are also interested in a range of contaminated sites, including Superfund, brownfields, Resource Conservation and Recovery Act (RCRA) corrective action, federal facility and underground storage tank sites. Large, complex sites demand a much larger portion of EPA's Superfund resources today than was the case in earlier years. Some large, complex sites take decades to cleanup.

To better serve communities, the Integrated Cleanup Initiative will seek to identify and implement strategic changes to the land cleanup process, which will allow EPA to accelerate cleanups and provide more information to communities about cleanup progress. As one of the first steps in the Initiative, starting in FY 2011, EPA will begin reporting on a new measure of Superfund National Priorities List (NPL) site cleanup progress, called “remedial action project completions.” Remedial action projects represent discrete actions taken to implement a site cleanup. They are defined to address discrete problems, such as specific media (e.g., ground water contamination), areas of a site (e.g., discrete areas of contamination, building demolition), or particular technologies (e.g., soil vapor extraction). While EPA will continue to report on the completion of site-wide cleanup construction, the remedial action project completion measure will provide communities with a valuable new tool to evaluate and hold EPA accountable for ongoing progress and risk reduction at Superfund sites. It will also allow EPA to focus and manage the program at a level that more closely aligns with the real work in the field and to hold our selves accountable for this work.

The Integrated Cleanup Initiative is examining opportunities for improvements across all of EPA's land cleanup programs, including the Superfund, Brownfields, Federal Facilities, Resource Conservation and Recovery Act, and Underground Storage Tanks programs. In addition, the Initiative will include a focus on enforcement activities that are critical to ensuring that responsible parties are compelled to clean up contaminated sites, thereby preserving Superfund monies to be used to clean up other sites where viable responsible parties do not exist. During FY 2010-FY 2012, EPA is examining a number of opportunities for improvements to our land cleanup programs that support the goals of the Initiative. By examining and identifying opportunities for improvements at all stages of the cleanup process, from assessment through cleanup completion, EPA expects to focus and in some cases accelerate the cleanup process as a whole. The chart below describes some of the opportunities that will result from the Initiative and relates them to stages in the cleanup process.

Starting Cleanups

  • Evaluate performance metrics
  • Evaluate Increasing the annual number of Superfund site assessments
  • Advance the assessment needs of sites on the Federal Facilities Waste Docket
  • Enhance ability to search and identify potentially responsible parties
  • Improve site assessment process
  • Evaluate Superfund National Priorities listing

Advancing Cleanups

  • Evaluate performance metrics
  • Provide public reports on EPA cleanup progress
  • Evaluate leveraging Superfund removal and Brownfield authorities to advance cleanup and reuse
  • Improve efficiency of administrative and contracting processes
  • Evaluate strategy to hold potentially responsible parties accountable
  • Evaluate strategy to increase enforcement at removal sites
  • Evaluate leveraging more brownfields site assessments into cleanup and reuse
  • Partner with states, territories and tribes to address the backlog of underground storage tank sites
  • Evaluate and streamline as appropriate Superfund remedial boards and panels

Completing Cleanups

  • Evaluate performance metrics
  • Report reuse and revitalization benefits from land cleanup programs
  • Improve cleanup program coordination with other federal agencies
  • Link cleanup and revitalization efforts for contaminated sites, including petroleum brownfields

EPA will implement improvements identified through this Initiative and will make results from the Initiative publicly available. EPA expects to make an implementation plan for the Initiative publicly available for comment within a few months. EPA will also continue to provide updates as we proceed with the Initiative and will seek the public's input and feedback. EPA will report on progress in meeting the goals of this Initiative of accelerating the cleanup process, while providing communities with greater transparency and accountability on site cleanup progress.

Accidents, spills, leaks, and past improper disposal and handling of hazardous materials and wastes have resulted in tens of thousands of sites across our country that have contaminated our land, water (groundwater and surface water), and air (indoor and outdoor). Some of the more common categories of contaminants include: industrial solvents, petroleum products, metals, pesticides, bacteria, and radiological materials. These contaminated sites can threaten human health as well as the environment, in addition to hampering economic growth and the vitality of local communities. EPA and its state and territorial partners have developed a variety of cleanup programs to assess and, where necessary, clean up these contaminated sites. Cleanups may be done by EPA, other federal agencies, states or municipalities, or the company or party responsible for the contamination. Click the following links for more cleanup-related information and resources.

Find out about:

Published December 09 2010

Feds target growing monopolies in big agriculture and food processing

The workshop, led by Agriculture Secretary Tom Vilsack and U.S. Attorney General Eric Holder, focused on the margins at various levels of the agricultural supply chain. Featured were four panels composed of producers, academics and other industry stakeholders.

Today, the U.S. Department of Agriculture and the Department of Justice held the last in a series of five joint public workshops to explore the appropriate role for antitrust and regulatory enforcement in American agriculture.  

The workshop, led by Agriculture Secretary Tom Vilsack and U.S. Attorney General Eric Holder, focused on the margins at various levels of the agricultural supply chain. Featured were four panels composed of producers, academics and other industry stakeholders.

The workshop was held in Washington D.C. at the U.S. Department of Agriculture and opened with statements from Secretary Vilsack and Attorney General Holder, then a discussion with participants representing each level of the agricultural supply chain, followed by a panel consisting of dairy farmers and academics and discussing dairy margins.  In the afternoon a third panel looked at issues in the retail sector, examining concentration, margins and similar trends. The final panel discussed margins in the livestock and poultry industries.

"Today's open and transparent dialogue with farmers, ranchers, industry and academics is resulting in a clearer understanding of the complex competitive issues facing American agriculture," said Secretary Vilsack.  "A fair and competitive marketplace is important not only for producers, but also for consumers."

Throughout the year workshops have bee held around the country to explore the appropriate role for antitrust or regulatory enforcement in the agricultural industry.  In March, a workshop was held in Ankeny, Iowa to discuss seed concentration and hog market issues.  In May, poultry issues were examined in Normal, Alabama.  Dairy issues were discussed in Madison, Wisconsin in June.  And in August, competition in livestock markets was explored in Fort Collins, Colorado.

"In these workshops, and in my travels across the country, a number of themes have emerged:  Producers want to have or maintain marketing options, they want transparency, they want access to markets, they have fewer buyers with whom to do business with, they struggle with debt and face challenges accessing capital, and last, they just want to be treated fairly and be respected," commented Secretary Vilsack.  "But most importantly, they all care about the future of agriculture and want it to succeed, which is why we have seen such overwhelming response and attendance at these workshops."

Vilsack continued, "America's mid-sized farms are not always profitable enough to sustain a family."

"The farmers' and ranchers' share of the food dollar has continued to shrink, decade after decade.  If current trend lines continue, in another 20 years the farm and ranch share of the consumer dollar would reach zero," said John Crabtree of the Center for Rural Affairs, who attended the workshop in Washington, D.C.

According to Crabtree, in 1980 there were over 1.3 million ranches and farms with cattle across the country.   Today, fewer than 950,000 are still in operation.  In 1980 there were over 666,000 hog farms but according to the last USDA Hogs and Pigs Report [USDA NASS Quarterly Hogs and Pigs Report - September 2010] that number has declined by approximately 90% to fewer than 67,000.  The Center for Rural Affairs has, for nearly 15 years, pointed out that these ever-increasing gaps between retail food prices and farm- and ranch-gate prices is due in the largest part to unchecked concentration and vertical integration of the production of crops, livestock, dairy and virtually all other agricultural products.

"Standing up to industry and stopping the headlong rush toward concentration and vertical integration in farming, ranching, livestock production and meatpacking is a long row to hoe, but crucial to revitalizing family farms and ranches across much of rural America.  If Attorney General Holder and Secretary Vilsack continue to take up that challenge, family farmers, ranchers and rural communities will stand with them," Crabtree concluded.

According to Crabtree, USDA's GIPSA rule has been under attack from meatpackers and other industry groups such as the National Pork Council, but the Center for Rural Affairs has and will continue to urge USDA to hold their ground and end the volume-based, "sweetheart" deals that packers routinely give to the nation's largest corporate hog and cattle producers.  "USDA has written a strong rule that will improve enforcement of the Packers and Stockyards Act and challenge the price discrimination against family farmers and ranchers that has driven tens of thousands of them out of the livestock business," Crabtree concluded.

A copy of the Center for Rural Affairs comments on the GIPSA rule and other related materials can be downloaded at www.cfra.org/competition .

The Center for Rural Affairs was established in 1973 as an unaffiliated nonprofit corporation under IRS code 501(c)3. The Center for Rural Affairs was formed by rural Nebraskans concerned about family farms and rural communities, and we work to strengthen small businesses, family farms and ranches, and rural communities.

Chairman End the Fed

Posted by Adam Sorensen Thursday, December 9, 2010

Read more: http://swampland.blogs.time.com/2010/12/09/chairman-end-the-fed/#ixzz17fNYsuBL

It's official: Ron Paul, libertarian standard bearer, will chair the House Financial Services subcommittee on monetary policy that oversees the Federal Reserve. It's a big step for the Texas congressman who's spent much of his career leveling harsh criticism at the central banking system and, in its own way, a sign of the times. Populist (especially conservative populist) backlash against the Fed is ascendant and Paul now has a platform from which to challenge Bernanke et al. on the transparency, autonomy and, yes, existence of the institution.

Spencer Bachus's full statement after the jump:

BACHUS ANNOUNCES FINANCIAL SERVICES LEADERSHIP TEAM
WASHINGTON (December 9) - Congressman Spencer Bachus (AL-6), Chairman-elect of the House Financial Services Committee, today announced his appointments for committee leadership positions in the 112th Congress. In addition to naming the vice chairman and subcommittee leaders, Bachus announced plans to modify subcommittee jurisdictions to promote a more efficient and balanced work-load for committee members.

“This is the leadership team that crafted the first comprehensive financial reform bill to put an end to the bailouts, wind down the taxpayer funding of Fannie Mae and Freddie Mac, and enforce a strong audit of the Federal Reserve,” Bachus said. “By working together, we will honor our commitment to aggressive oversight, reform of the GSEs, and monitoring the implementation of the Dodd-Frank Act to ensure more jobs aren't lost to unnecessary regulations on community banks and businesses. We are ready to hit the ground running, and I look forward to continuing our work in the next Congress.”

Bachus said the jurisdictional adjustments will augment the housing policy related subcommittee to include all insurance issues, formerly under the purview of the Capital Markets and Government Sponsored Enterprises Subcommittee. “Our first priority is to end the taxpayer funded bailout of Fannie and Freddie. This adjustment frees up more resources for the subcommittee chairmen and expands the jurisdictional mandate of the housing-related subcommittee to include insurance issues.”

The 112th Congress Financial Services Committee Leadership is as follows:

Rep. Jeb Hensarling, Vice Chairman, Financial Services Committee

Rep. Judy Biggert, Chairman, Insurance, Housing and Community Opportunity

Jurisdiction: Insurance generally, housing, urban development, and the Department of Housing and Urban Development.

Rep. Shelley Moore Capito, Chairwoman, Financial Institutions Subcommittee

Jurisdiction: Banks and banking, depository institutions, federal deposit insurance, and safety and soundness.

Rep. Scott Garrett, Chairman, Capital Markets and Government-Sponsored Enterprises Subcommittee

Jurisdiction: Capital markets, securities, and government sponsored enterprises.

Rep. Ron Paul, Chairman, Domestic Monetary Policy Subcommittee

Jurisdiction: Domestic monetary policy, currency, precious metals, valuation of the dollar, economic stabilization, defense production, commodity prices, financial aid to commerce and industry.

Rep. Gary Miller, Chairman, International Monetary Policy Subcommittee

Jurisdiction: International monetary policy, international finance and banking, international financial and monetary organizations, including the IMF and World Bank, and the promotion of international trade in financial services.

Rep. Randy Neugebauer, Chairman, Oversight and Investigations Subcommittee

Jurisdiction: Oversight of all matters within the jurisdiction of the full Committee.



Read more: http://swampland.blogs.time.com/2010/12/09/chairman-end-the-fed/#ixzz17fMihbGn

Brattle Group Study Estimates EPA Regulations May Result in Over 50,000 MW of Coal Plant Retirements and up to $180 Billion in Compliance Costs

Regional Public Liaisons - Region 9 Vacant - U.S. EPA ? Region 9
75 Hawthorne Street San Francisco, CA 94105 (800) 231-3075

National Program Manager Karen L. Martin U.S. EPA Office of Site Remediation and Technology Innovation
Mail Code: 5204G 1200 Pennsylvania Avenue, N.W. Washington, DC 20460
(703) 603-9925 martin.karenl@epa.gov 703 603-8711 Lois Gartener

Iron Mountain Mine begins radioisotope testing of Brick Flat Sludge - New Scintillator ordered.

Justice Pursuing Antitrust Leads in Agribusiness, Varney Says

By Alan Bjerga

The Justice Department is pursuing several leads on possible anti-competition cases in agribusiness after a series of hearings on the issue, according to Christine Varney , the head of the agency's antitrust division.

The public sessions on consolidation in agriculture have opened communication between farmers and Justice, Varney said today at a news conference during the final hearing in Washington. The hearings, conducted with the Department of Agriculture, have explored how big-company dominance affects the prices farmers get for their products and what consumers pay for food.

“We have several leads that came out of these workshops that we are following up on,” Varney said, without being more specific.

Farmers and their lobbyists have asked regulators to examine whether meatpackers such as Tyson Foods Inc. and agribusinesses including Cargill Inc. can control the prices they pay for commodities. A USDA regulation proposed in June would prohibit meatpackers from selling livestock to each other and require them to justify their choice of one farmer-supplier over another.

Farmers also said they are concerned that market power is driving down the amount of the U.S. food dollar farmers receive.

Hearings were previously held in Iowa, Alabama, Wisconsin and Colorado.

To contact the reporter on this story: Alan Bjerga in Washington at abjerga@bloomberg.net ;

To contact the editor responsible for this story: Steve Stroth at sstroth@bloomberg.net .

 

"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.)

In explaining why the Administrator did not engage in the ―normal process of ―marshaling conclusive evidence of necessity for promulgating federal water quality criteria in that specific circumstance, EPA emphasized that Congress had mandated promulgation of criteria for certain toxic constituents through amendments to the Clean Water Act. 57 Fed. Reg. 60848. EPA is operating under no such Congressional mandate in regard to numeric nutrient criteria.

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 .

ISS - Stimulus freed big polluters from following key ...
By Sue Sturgis
The Energy Department granted a NEPA waiver to North Carolina-based Duke Energy for a wind farm project in Texas and an electrical grid update project in five other states. For the past decade Duke Energy has been embroiled in two of ...
Facing South - http://www.southernstudies.org/

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

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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.

The World Gets Even Flatter: Fourth Circuit Applies English Law And Enforces English Forum Selection Clause

Posted on December 8, 2010 by Mack Sperling

The Fourth Circuit ruled today in Albemarle Corp. v. AstraZeneca UK Ltd. , that it was required to interpret the forum selection clause negotiated by the parties under English law, which meant that the clause would be read as requiring litigation to be brought in an English court , even though the clause would have been  deemed permissive under American law and would have allowed the lawsuit at issue to be filed in the South Carolina court where it had in fact been filed.

The contract, which required AstraZeneca to buy an ingredient for an anesthetic from Albemarle, contained a forum selection clause which said that the contract "shall be subject to English Law and the jurisdiction of the English High Court ."

In affirming the dismissal of the case, the Fourth Circuit aligned itself with six other circuits and held that "a federal court interpreting a forum selection clause must apply federal law in doing so."  Federal law on this subject is that ‘an agreement conferring jurisdiction in one forum will not be interpreted as excluding jurisdiction elsewhere unless it contains specific language of exclusion.'"

English law?  In this case it is as different from federal law as my breakfast this morning was from bangers and mash.  '"Under English law, when the parties designate the English High Court as an appropriate forum, the designation is mandatory and exclusive ."  Thus, litigation in the High Court was required per English law.

The only issue remaining for the Court was whether it would be unreasonable to enforce the English forum selection clause, an inquiry required by a 1972 Supreme Court decision, The Bremen , 407 U.S. 1 (1972).  In The Bremen, the Supreme Court upheld an English forum selection clause ""in the light of present-day commercial realities and expanding international trade.. . ." unless it could be shown that such enforcement might violate "a strong public policy" of the unselected forum in which the case had been brought.

In the Albemarle case, Judge Niemeyer rejected the argument that South Carolina had a strong puplic policy against the enforcement of forum selection clauses because of a state statute disfavoring such clauses.  Quoting The Bremen , he said that the federal policy enforcing such clauses made them "an almost indispensable precondition  to achievement of the orderliness and predictability essential to any international business transaction."  Id. at 13-14.

The North Carolina Business Court has previously enforced a forum selection clause specifying a foreign jurisdiction in Speedway Motorsports International Ltd. v. Bronwen Energy Trading, Ltd., 2009 NCBC 3 (N.C. Super. Ct., February 18, 2009)(Diaz)

Freeminers petition to restore dignity and title to Messrs. T.W. Arman and John F. Hutchens and Iron Mountain Mines, Ltd. under the common law; and they "shall be subject to English Law and the jurisdiction of the English High Court ."

Beekeepers Ask EPA to Remove Pesticide Linked to Colony Collapse Disorder, Citing Leaked Agency Memo

Pesticide Already Illegal in Germany , Italy & France Based on Scientific Findings

SAN FRANCISCO and WASHINGTON , Dec. 8, 2010 /PRNewswire-USNewswire/ -- Beekeepers and environmentalists today called on EPA to remove a pesticide linked to Colony Collapse Disorder (CCD), citing a leaked EPA memo that discloses a critically flawed scientific support study. The November 2nd memo identifies a core study underpinning the registration of the insecticide clothianidin as unsound after EPA quietly re-evaluated the pesticide just as it was getting ready to allow a further expansion of its use. Clothianidin (product name "Poncho") has been widely used as a seed treatment on many of the country's major crops for eight growing seasons under a "conditional registration" granted while EPA waited for Bayer Crop Science, the pesticide's maker, to conduct a field study assessing the insecticide's threat to bee colony health.

Bayer's field study was the contingency on which clothianidin's conditional registration was granted in 2003. The groups are calling for an immediate stop-use order on the pesticide while the science is redone in partnership with practicing beekeepers. They claim that the initial field study guidelines, which the Bayer study failed to satisfy, were insufficiently rigorous to test whether or not clothianidin contributes to CCD in a real-world scenario: the field test evaluated the wrong crop, over an insufficient time period and with inadequate controls.

According to James Frazier , Ph.D., professor of entomology at Penn State , "Among the neonicotinoids, clothianidin is among those most toxic for honey bees, and this combined with its systemic movement in plants has produced a troubling mix of scientific results pointing to its potential risk for honey bees through current agricultural practices. Our own research indicates that systemic pesticides occur in pollen and nectar in much greater quantities than has been previously thought, and that interactions among pesticides occurs often and should be of wide concern." Dr. Frazier said that the most prudent course of action would be to take the pesticide off the market while the flawed study is being redone.

With a soil half-life of up to 19 years in heavy soils, and over a year in the lightest of soils, commercial beekeepers are concerned that even an immediate stop-use of clothianidin will not save their livelihoods or hives in time.

"We are losing more than a third of our colonies each winter, but beekeepers are a stubborn, industrious bunch. We split hives, rebound as much as we can each summer, and then just eat our losses. So even these big loss numbers understate the problem," says 50-year beekeeper, David Hackenberg . "What folks need to understand is that the beekeeping industry, which is responsible for a third of the food we eat, is at a critical threshold."  

For background, beekeepers available for interviews and more, go to Beyond Pesticides' Pollinators and Pesticides page:   http://www.beyondpesticides.org/pollinators .

Heather Pilatic , Pesticide Action Network, http://www.panna.org/ , cell: +1-415-694-8596, Heather@panna.org

Jay Feldman , Beyond Pesticides, http://www.beyondpesticides.org , +1-202-543-5450, ext 15, jfeldman@beyondpesticides.org

SOURCE Beyond Pesticides

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STATEMENT OF U.S. SENATOR BARBARA BOXER
Chairman, Senate Committee on Environment and Public Works
December 6, 2010

How EPA's Regulatory Surge Missed a Primary Target

By GABRIEL NELSON of Greenwire
Published: December 8, 2010

NEW EVIDENCE: Bee-Killing Pesticide Never Should Have Been Registered

Wed, Dec 8, 2010

General

Environmental working groups across the United States are demanding that the Environmental Protection Agency pull pesticides containing synthetic nicotine off the market due to proof of a bogus test run by the pesticide manufacturer. Stating: “Our nation cannot afford, and the environment cannot tolerate another growing season of clothianindin use,” a group of beekeepers and activists sent a letter to EPA Director Lisa Jackson.

Probably most significantly, Penn State scientist James Frazier joined the beekeeping community in calling for a ban on this pesticide — which SafeLawns has been implicating in bee decline for the past four years. The professor of entomology at Penn State's College of Agricultural Sciences said, “Among the neonicotinoids, clothianidin is among those most toxic for honey bees; and this combined with its systemic movement in plants has produced a troubling mix of scientific results pointing to its potential risk for honey bees through current agricultural practices. Our own research indicates that systemic pesticides occur in pollen and nectar in much greater quantities than has been previously thought, and that interactions among pesticides occurs often and should be of wide concern.” Dr. Frazier said that the most prudent course of action would be to take the pesticide off the market while the flawed study is being redone.

Please forward this press release to all elected officials to your states and local districts and let them know that you demand that these products be taken off the shelves.

HERE IS THE RELEASE

Contacts:

Heather Pilatic, Pesticide Action Network
cell: 415.694.8596

Jay Feldman, Beyond Pesticides
202.543.5450, ext 15

Beekeepers Ask EPA to Remove Pesticide Linked to Colony Collapse Disorder,
Citing Leaked Agency Memo

Pesticide Already Illegal in Germany, Italy & France Based on Scientific Findings

SAN FRANCISCO and WASHINGTON, D.C – Beekeepers and environmentalists today called on EPA to remove a pesticide linked to Colony Collapse Disorder (CCD), citing a leaked EPA memo that discloses a critically flawed scientific support study. The November 2nd memo identifies a core study underpinning the registration of the insecticide clothianidin as unsound after EPA quietly re-evaluated the pesticide just as it was getting ready to allow a further expansion of its use. Clothianidin (product name “Poncho”) has been widely used as a seed treatment on many of the country's major crops for eight growing seasons under a “conditional registration” granted while EPA waited for Bayer Crop Science, the pesticide's maker, to conduct a field study assessing the insecticide's threat to bee colony health.

Bayer's field study was the contingency on which clothianidin's conditional registration was granted in 2003. As such, the groups are calling for an immediate stop-use order on the pesticide while the science is redone, and redesigned in partnership with practicing beekeepers. They claim that the initial field study guidelines, which the Bayer study failed to satisfy, were insufficiently rigorous to test whether or not clothianidin contributes to CCD in a real-world scenario: the field test evaluated the wrong crop, over an insufficient time period and with inadequate controls.

According to beekeeper Jeff Anderson, who has testified before EPA on the topic, “The Bayer study is fatally flawed. It was an open field study with control and test plots of about 2 acres each. Bees typically forage at least 2 miles out from the hive, so it is likely they didn't ingest much of the treated crops. And corn, not canola, is the major pollen-producing crop that bees rely on for winter nutrition. This is a critical point because we see hive losses mainly after over-wintering, so there is something going on in these winter cycles. It's as if they designed the study to avoid seeing clothianidin's effects on hive health.”

Clothianidin is of the neonicotinoid family of systemic pesticides, which are taken up by a plant's vascular system and expressed through pollen, nectar and gutation droplets from which bees then forage and drink. Scientists are concerned about the mix and cumulative effects of the multiple pesticides bees are exposed to in these ways. Neonicotinoids are of particular concern because they have cumulative, sublethal effects on insect pollinators that correspond to CCD symptoms – namely, neurobehavioral and immune system disruptions.

According to James Frazier, PhD., professor of entomology at Penn State's College of Agricultural Sciences, “Among the neonicotinoids, clothianidin is among those most toxic for honey bees; and this combined with its systemic movement in plants has produced a troubling mix of scientific results pointing to its potential risk for honey bees through current agricultural practices. Our own research indicates that systemic pesticides occur in pollen and nectar in much greater quantities than has been previously thought, and that interactions among pesticides occurs often and should be of wide concern.”

Dr. Frazier said that the most prudent course of action would be to take the pesticide off the market while the flawed study is being redone.

Clothianidin has been on the market since 2003. With a soil half-life of up to 19 years in heavy soils, and over a year in the lightest of soils, commercial beekeepers are concerned that even an immediate stop-use of clothianidin won't save their livelihoods or hives in time.

“We are losing more than a third of our colonies each winter; but beekeepers are a stubborn, industrious bunch. We split hives, rebound as much as we can each summer, and then just take it on the chin – eat our losses. So even these big loss numbers understate the problem,” says 50-year beekeeper, David Hackenberg. “What folks need to understand is that the beekeeping industry, which is responsible for a third of the food we all eat, is at a critical threshold for economic reasons and reasons to do with bee population dynamics. Our bees are living for 30 days instead of 42, nursing bees are having to forage because there aren't enough foragers and at a certain point a colony just doesn't have the critical mass to keep going. The bees are at that point, and we are at that point. We are losing our livelihoods at a time when there just isn't other work. Another winter of ‘more studies are needed' so Bayer can keep their blockbuster products on the market and EPA can avoid a difficult decision, is unacceptable.”

Citing the imminent economic and environmental hazards posed by the continued use of clothianidin, the National Honey Bee Advisory Board, Beekeeping Federation, Beyond Pesticides, Pesticide Action Network, North America and Center for Biological Diversity are asking EPA administrator Lisa Jackson to exercise the Agency's emergency powers to take the pesticide off the market.

“The environment has become the experiment and all of us – not just bees and beekeepers – have become the experimental subjects,” said Tom Theobald, a 35-year beekeeper. “In an apparent rush to get products to the market, chemicals have been routinely granted “conditional” registrations. Of 94 pesticide active ingredients released since 1997, 70% have been given conditional registrations, with unanswered questions of unknown magnitude. In the case of clothianidin those questions were huge. The EPA's basic charge is “the prevention of unreasonable risk to man and the environment” and these practices hardly satisfy that obligation. We must do better, there is too much at stake.”

Superfund researchers propose exposome paradigm

By Rebecca Wilson December 2010

Is the EPA Necessary?

Hint: It's a government bureaucracy.

William Anderson is an associate professor of economics at Frostburg State University. Posted December 08, 2010

A repeated myth is that government intervention comes only after private markets have clearly failed and the bureaucracy must step in to stop the abuse. For example, we hear that Congress created the Food and Drug Administration in 1906 because conditions in American meatpacking plants had become progressively dangerous as corporate bosses put “profits ahead of people.”

So it is with the Environmental Protection Agency, created by Congress and President Richard Nixon in 1970. In a recent Wall Street Journal op-ed , EPA Administrator Lisa Jackson painted the same gloomy picture that is given for creation of any federal agency: American life had become too intolerable without it. She writes:

Last month's elections were not a vote for dirtier air or more pollution in our water. No one was sent to Congress with a mandate to increase health threats to our children or return us to the era before the EPA's existence when, for example, nearly every meal in America contained elements of pesticides linked to nerve damage, cancer and sometimes death. In Los Angeles, smog-thick air was a daily fact of life, while in New York 21,000 tons of toxic waste awaited discovery beneath the small community of Love Canal. Six months before the EPA's creation, flames erupted from pollution coating the surface of Cleveland's Cuyahoga River, nearly reaching high enough to destroy two rail bridges.

Coverage of the Cuyahoga River fire featured a Time Magazine photo from a 1952 fire on the river with claims it was taken during the June 1969 fire. However, as Stacie Thomas pointed out in this article , the real fire was brief, no photos were taken, and damage to the bridges was minimal.

Furthermore, notes law professor Jonathan H. Adler , the “pollution-was-progressively-becoming-worse” scenario Jackson paints is not true:

Contrary to common perceptions, many measures of environmental quality were already improving prior to the advent of federal environmental laws. The Environmental Protection Agency's first national water quality inventory, conducted in 1973, found that there had been substantial improvement in water quality in major waterways during the decade before adoption of the federal Clean Water Act, at least for the pollutants of greatest concern at the time, organic waste and bacteria.

Unfortunately, Jackson is not satisfied with rewriting environmental history. She also commits the venerable broken-window fallacy , failing to account for what did not happen because of government intervention. She writes:

We have seen GDP grow by 207% since 1970, and America remains the proud home of storied companies that continue to create opportunities. Instead of cutting productivity, we've cut pollution while the number of American cars, buildings and power plants has increased. Alleged “job-killing” regulations have, according to the Commerce Department, sparked a homegrown environmental protection industry that employs more than 1.5 million Americans.

She's also guilty of the post hoc ergo propter hoc fallacy. Moreover, Jackson confuses jobs with the creation of real wealth. For example, many of the new “green jobs” are created via government subsidies, which means that the government is cannibalizing profitable entities to prop up those firms that are unprofitable. Far from creating wealth, this activity is economically destructive.

One wonders how much economic growth would have taken place had the EPA not existed. Obviously, that is a calculation no one is able to perform, but I suspect that some readers of this site who have had to deal with EPA bureaucrats can tell a few horror tales.

My only contact with the EPA came more than 30 years ago when I was a news reporter covering a story about a fertilizer plant's discharges into Chickamauga Lake. Although Tennessee state water-quality authorities were willing to work with the firm, given there was no immediate health or aquatic hazards, the EPA was utterly rigid and the plant was shuttered. It was the bureaucratic mind at work.

Jackson wants us to believe that without the EPA we'd all be dead. I doubt that seriously, but I don't doubt that EPA is a destructive enterprise killer. While Jackson calls for “common-sense solutions,” I submit that common sense tells us to do away with the agency.

Killer in the Attic: EPA Still Evades Zonolite Warnings

EPA to allow using Superfund costs for river dredging

Sheboygan Press Dec 9 2010

The Environmental Protection Agency has given a huge boost to local efforts to dredge the Sheboygan River deep enough to be navigable for boating, recreation and economic development. EPA officials have approved the use of the $12 million being spent for a Superfund cleanup of the river to remove polychlorinated byphenyls — or PCBs — from a portion of the river as matching funds that will allow local officials to tap into other federal money to complete the dredging of the river to a depth of at least 10 feet.

U.S. Department of Energy, Office of Fusion Energy Sciences Jointly with The National Nuclear Security Administration, Defense Programs-High Energy Density Laboratory Plasmas

 
Synopsis Full Announcement Application

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 12/06/2010 . 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.

Document Type: Grants Notice
Funding Opportunity Number: DE-FOA-0000431
Opportunity Category: Discretionary
Posted Date: Dec 06, 2010
Creation Date: Dec 06, 2010
Original Closing Date for Applications: Jan 31, 2011   
Current Closing Date for Applications: Jan 31, 2011   
Archive Date: Apr 30, 2011
Funding Instrument Type: Grant
Category of Funding Activity: Science and Technology and other Research and Development
Category Explanation:
Expected Number of Awards: 15
Estimated Total Program Funding: $12,500,000
Award Ceiling: $300,000
Award Floor: $25,000
CFDA Number(s): 81.049  --  Office of Science Financial Assistance Program
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:

DOE Eligibility Criteria: All types of applicants are eligible to apply, except other Federal agencies, Federally Funded Research and Development Center (FFRDC) contractors, and nonprofit organizations described in section 501(c)(4) of the Internal Revenue Code of 1986 that engaged in lobbying activities after December 31, 1995.

Agency Name

Chicago Service Center

Description

The Office of Fusion Energy Sciences (FES) of the Office of Science (SC) and the Defense Program (DP) of the National Nuclear Security Administration (NNSA), both of the U.S. Department of Energy (DOE), jointly announce their interests in receiving grant applications for new awards and grant renewals for research in the SC-NNSA Joint Program in High Energy Density Laboratory Plasmas (HEDLP). Applications for renewals of all grants funded by FES in HEDLP that expire in FY 2011 should be made to this solicitation. This FOA is directed at researchers who are not affiliated with DOE national laboratories and government laboratories. IMPORTANT SUBMISSION INFORMATION: The full text of the Funding Opportunity Announcement (FOA) is located on FedConnect. Instructions for completing the Grant Application Package are contained in the full text of the FOA which can be obtained at: https://www.fedconnect.net/FedConnect/?doc=DE-FOA-0000431&agency=DOE.

Link to Full Announcement

FedConnect

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

Marilyn M. Oyler, Grants and Contracts Analyst, 301-903-3604
marilyn.oyler@science.doe.gov
Samuel J. Barish, DOE Technical-Scientific Program Contact, 301-903-2917
sam.barish@science.doe.gov
marilyn.oyler@science.doe.gov

Synopsis Modification History

There are currently no modifications for this opportunity.

Will EPA Admit Economic Impact of Regulations? | Print |  E-mail
Written by James Heiser
Thursday, 09 December 2010 12:40
0

A bipartisan group of Senators are charging the Obama administration with knowing that the latest round of proposed regulations from the Environmental Protection Agency (EPA) will cost many Americans their jobs, while suppressing that information from the public.

According to a report by Margaret Kriz Hobson for Congressional Quarterly , the Senators are appealing to the EPA to release the study information:

A bipartisan group of Senators is pressuring the Obama administration to release a study that they say predicts significant job loss from a proposed EPA regulation that would restrict air pollution from boilers used to heat and power a wide variety of U.S. buildings, from factories to schools.

Mark Begich, D-Alaska, Mark Pryor, D-Ark., Olympia J. Snowe, R-Maine, and David Vitter, R-La., sent a letter to the Commerce Department and EPA asking for release of all studies conducted on the environmental proposal.

The senators claim that EPA officials have refused to release a Commerce Department analysis that, they say, shows the boiler rule would cause significant economic harm. EPA is under a court order to complete work on the regulation by Jan. 14; the proposed controls were released in April.

Environmental regulators have acknowledged that the proposal issued in April, which would require boiler owners to install tough new pollution control equipment, was excessively strict. But they have continued to keep the Commerce Department report under wraps.

“I see no reason why Secretary Locke should not make this report available to Congress so that we can fully understand the economic impact of this proposed rule,” Pryor said in a statement announcing the letter. “I have heard from several Arkansas companies that the regulation cannot be met at a reasonable cost.”

Under Administrator Lisa Jackson, the EPA has given the appearance of becoming increasingly dismissive of the constitutional authority of the legislative branch of government. Jackson has developed a pattern of simply enacting sweeping changes to entire industries, despite the threat which such changes pose to the entire economy.

However, the EPA may soon find that legislators are less inclined to allow the agency to run rampant; many Democratic Senators who are facing the voters in 2012 and who witnessed the decisive action of the American people at the ballot box this past November are discovering the necessity of taking action to restrain the agencies running rogue under President Obama.

An article at EnvironmentalNewsstand.com (“Inhofe Sees ‘Endangered' Democrats Helping to Block Rush of EPA Rules”) details the "foxhole conversion" of nearly a dozen Democrat Senators from the perspective of a Republican Senator, James Inhofe:

Sen. James Inhofe (R-OK), ranking member on the Environment & Public Works Committee (EPW), says at least 11 “endangered” Democrats up for re-election in 2012 could try to bolster their reelection bids by voting with Republicans in the 112th Congress to help resist a rush of Obama EPA rules expected in the next two years....

Some unnamed Democrats on the environment committee — if they choose to stay on the panel in the 112th Congress — “are the ones that are going to be in tight races in 2012. They might become a lot more cooperative on having hearings that would rein [in] the bureaucracy” on some of the work EPA is doing, Inhofe said.

However, Inhofe said he is “a little more worried” that the Obama administration and some liberal Democrats in the Senate might try to rush through a slew of strict EPA regulations in the next two years ahead of the 2012 presidential election. “The handwriting's on the wall and there's going to be a level of desperation among the more liberal members of the Senate and the Obama administration to get things done,” the senator said. “I know people don't like to talk about it, but Republicans will take over the Senate [beginning in 2013], and I hope the White House too, and they will say, ‘This is it, this is our last shot.' So with that level of desperation they'll try to hurry things out.”

By way of example, Inhofe cited EPA's proposed tightening of the ozone national ambient air quality standard (NAAQS). The Bush EPA tightened the standard in 2008, but the Obama EPA reviewed it and in 2009 proposed a stricter limit. The agency has vowed to issue the final standard by Dec. 31, but Inhofe noted that “we haven't even met the last one yet and they're supposed to wait five years,” referring to a Clean Air Act requirement that EPA need only review its NAAQS ever five years. The Obama EPA ozone review is “100 percent political,” Inhofe said.

From the UN Climate Conferences at Copenhagen and Cancun to the infamous carbon dioxide regulation undertaken by the EPA, the Obama administration has shown a willful disregard for the profoundly troubled American economy virtually every time one of the concerns of the environmental extremists has been at stake. The question is whether even more Democrat Senators are prepared to end their careers trying to enact the agenda of a failed presidency, or whether they will rein in an executive branch which has continuously undermined their constitutional responsibilities. If the Commerce Department and the EPA will not disclose the threat which EPA regulations pose to the financial well-being of the Republic, it may fall to the House and Senate to demonstrate the “power of the purse” over the agencies' actions. Better still, they could act to rein in the regulatory activities of the federal government to those which are (a) in keeping with the enumerated powers specified in the Constitution and (b) those which, in keeping the Constitution, have been authorized under law.

 

WEB EXCLUSIVE: Nine Things You're Not Destroying But Should Be

December 8th, 2010

WEB EXCLUSIVE: Keep Facilities Illuminated, Efficient, And Safe

This Web Exclusive comes from Lisa Brosseau, ScD, CIH, Associate Professor, University of Minnesota School of Public Health, Division of Environmental Health Sciences.

Today's facility managers are tasked not only with keeping management expenses low, but also with ensuring energy efficiency and, of course, a safe work environment for the facility's employees. When it comes to selecting lighting, all of these aspects must be factored in.

Fluorescent lamps have long been the best lighting option for small to large facilities, due to their significant energy savings—providing four to six times higher efficiency than incandescent lights—and long working life. However, these lamps contain hazardous mercury and, from installation to disposal, they must be carefully handled, stored, and transported.

While the amount of mercury used in an individual fluorescent bulb has decreased over the years, one broken, four-foot fluorescent lamp in a small room or vehicle can release enough mercury vapor to exceed the OSHA mercury exposure eight-hour limit—posing a significant occupational health risk. Plus, mercury vapor can be emitted for weeks after a single bulb is broken.

In their lifetime, fragile fluorescent lamps are handled by manufacturers, transporters, distributors, retailers, consumers, and installers (along with recycling or waste handlers). Although the lamps could break anywhere down this line and expose workers and the environment to hazardous mercury vapors, there are no universally enforced packaging standards designed to protect these people.

Recent legislation has begun to address the issue of safe packaging for fluorescent lamps and other mercury-containing products, and facility managers must not only work to comply with these regulations, but also ensure the safety of all personnel in addition to protecting the environment.

Selecting a package to contain mercury vapor
Universal waste containers that could be transported by common carrier were first introduced in 1998, and the first containers were primarily used to ship fluorescent lamps. Initially, these containers were simple corrugated boxes, with some including a plastic bag inside the box.

Since the contents were made of glass, they were designed primarily to contain the contents within the shipping container. However, since mercury begins to vaporize at 70°F, packaging improvements were needed to address the issue of potential mercury vapor release in the event of breakage during accumulation and transport.

A study conducted by the research team from the University of Minnesota indicated that emissions from packages not designed to contain mercury vapor represent a real health and safety concern. In the study, which was published in the March 2009 issue of the Journal of the Air & Waste Management Association , the team tested single-layer cardboard boxes, packages that added a plastic bag to this design, as well as packages that added a second layer of cardboard along with the plastic bag. ["Preventing Mercury Vapor Release from Broken Fluorescent Lamps during Shipping," by Tracy T. Glenz, Lisa M. Brosseau, and Richard W. Hoffbeck, Journal of the Air & Waste Management Association 59 (2009): 266-72.] A package design that featured a double box with a thicker, tape sealed plastic bag performed better than the previous configurations, but the only package that kept mercury vapor emissions below permissible exposure levels, as defined by state and federal authorities, was a double box with a zip closure foil-plastic laminate bag between the cardboard layers.

These findings indicated that all three layers of the last packaging configuration were important in effectively containing mercury vapor. The first cardboard layer provided structure to the configuration, protecting contents from outside elements. The inner layer of cardboard prevented glass shards from puncturing the bag, which actually contains the mercury vapor.

Safety and health risks, and additional concerns
Containing mercury vapor is important because, although it is one of the most useful heavy metals, it is also one of the most deadly. When carelessly handled or improperly disposed of, mercury can get into drinking water, lakes, rivers, and streams, posing a critical threat to human health and the environment. Recent studies have linked mercury exposure to increased risk of heart attack in men, to mental retardation and neurological disorders in children, and dangerous levels of mercury in the blood of women of childbearing age.

Despite these health concerns, the EPA estimates that approximately 75% to 80% of fluorescent lamps are not recycled and are usually placed in dumpsters or trash containers, presenting a considerable risk. One study found that mercury is “strongly and persistently” emitted from dumpsters that contain broken fluorescent lamps. [Pathways of Mercury in Solid Waste Disposal, by S.E. Lindberg, and J. Owens, PaMSWaD, Lockheed Martin Energy Research Corporation (LMER) (1999) 6.]

The data indicate a preliminary mercury loss rate of ~25µg/hr from one bulb contained in a closed dumpster. The bulb continued to emit mercury at this rate for more than a week, and at ~50 µg/hr on the eighth day following breakage.

If not properly recycled, mercury is not only a threat to quality of life, but it can also be a significant threat to the overall health of businesses. Local and state environmental regulations and EPA enforcement of the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) regulate the generation, treatment, storage, handling, cleanup, transportation, and disposal of hazardous wastes, including products which contain mercury.

The EPA permits common carrier shipment to recycling facilities, and the federal Universal Waste Rule requires packaging to be compatible with the contents of lamps, structurally sound, and adequate to prevent breakage—but this rule does not specifically address mercury vapor release. In 2005, a provision was added that requires packaging for mercury containing products to be “reasonably designed to prevent the escape of mercury into the environment by volatilization or any other means.” However, fluorescent lamps were excluded from this rule.

Stricter state regulations
While recycling fluorescent lamps is important, many states are realizing that if proper precautions are not taken, the lamps can emit mercury vapor en route and negate many recycling benefits. Most notably, a new law in the State of Washington requires that many lamps be managed in containers that prevent the loss of mercury vapors. This new legislation is set to be the precursor of future state and federal legislation as awareness of mercury vapor dangers increases.

Due to deficiencies of most current packaging configurations utilized for shipping used fluorescent lamps, the new law requires that lights and other mercury containing devices are packaged and shipped in material that will minimize the release of mercury into the environment. The law also states that packages should include mercury vapor barrier materials—such as the foil-plastic laminate bag with a zip closure tested in the University of Minnesota study—if lamps are transported by the United States postal service or a common carrier or collected via curbside programs and mail-back businesses.

Additionally, the State of Wisconsin has debated new legislation that would apply newer mercury containing equipment packaging standards to used lamps from households. If adopted, the law would require those lamps to be managed in containers “designed to prevent the escape of mercury into the environment by volatilization or other means.”

Plus, several other states have tackled this health issue with their own, more stringent regulations regarding fluorescent lamp disposal. Minnesota, Massachusetts, California, and Vermont disallow disposal of all mercury product waste in landfills. New York has a comparable ban, with an exemption for households and businesses with 100 or less employees disposing of 15 or less non-hazardous waste lamps per month.

While these new regulations help to encourage proper recycling of used fluorescent lamps, there is still a need for a more universal set of packaging standards to ensure safety of personnel and the environment. It is up to facility managers not only to select energy efficient lights, but also to make certain they remain a safe and green solution by ensuring proper storage and transportation of fluorescent lamps.

Dr. Lisa M. Brosseau has conducted research and published in the areas of respiratory protection, aerosol exposures, hazardous materials and safety interventions in small businesses. She serves on the editorial review board of the Journal of Occupational and Environmental Hygiene and is currently the vice chair of ACGIH, a globally recognized organization committed to developing scientific guidelines for workplace safety and health.

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: http://miamiherald.typepad.com/nakedpolitics/2010/12/mccollum-sues-the-feds-over-new-water-rules.html#ixzz17VQxCNI3

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

You will need Adobe Reader to view some of the files on this page. See EPA's PDF page to learn more.

General Information
  • Fact Sheet on EPA Brownfields Grants, CERCLA Liability, and All Appropriate Inquiries (PDF) (3 pp, 191K)
  • The Final Rule on All Appropriate Inquiries
  • Response to Public Comments
  • Comparison of Final Rule to Interim Standard (ASTM E1527-00)
  • Background
  • The Proposed Rule
  • FACA Committee 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

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; wiggins.lanelle@epa.gov
Lakeshia Walker
(202) 564-6571; walker.lakeshia@epa.gov
Caryn Muellerleile
(202) 564-2855; muellerleile.caryn@epa.gov
Nathaniel Jutras
(202) 564-0301; jutras.nathaniel@epa.gov
RFA/SBREFA Website
www.epa.gov/sbrefa

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."
Participate

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.

Documents

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 wiggins.lanelle@epa.gov
Table row
Nathaniel Jutras (202) 564-0301 jutras.nathaniel@epa.gov
Table row
Caryn Muellerleile (202) 564-2855 muellerleile.caryn@epa.gov
Lucinda Power (202) 566-0356 power.lucinda@epa.gov

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

RFA/SBREFA Statute

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).

FOUNTAINHEAD

IRON MOUNTAIN MINE PLAN TO VAPORIZE ACID MINE DRAINAGE

[Federal Register: December 28, 2007 (Volume 72, Number 248)] [Proposed Rules] [Page 73700-73708] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [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: http://www.regulations.gov: Follow the on-line instructions for submitting comments. E-mail: superfund.docket@epa.gov . 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 http://www.regulations.gov , 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov 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 http://www.regulations.gov , 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 http://www.epa.gov/epahome/dockets.htm . 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 http://www.regulations.gov 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 http://www.regulations.gov 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: Beasley.lynn@epa.gov . 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, http://www.nrc.uscg.mil/incident97-02.html . 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, http://www.nrc.uscg.mil/epa97-02.html . 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.org/

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 ( tnash@heartland.org ) or Jim Lakely ( jlakely@heartland.org ) 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 http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480ba9030.

[Federal Register: November 30, 2010 (Volume 75, Number 229)] [Notices] [Page 74045-74046] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [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: http://www.regulations.gov: Follow the on-line instructions for submitting comments. E-mail: superfund.docket@epa.gov 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 http://www.regulations.gov , 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 http://www.regulations.gov or superfund.docket@epa.gov . The http:// www.regulations.gov 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 http://www.regulations.gov 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 http://www.epa.gov/epahome/dockets.htm . Docket: All documents in the docket are listed in the http:// www.regulations.gov 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 http://www.regulations.gov 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: love.chip@epa.gov , 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:// www.regulations.gov . 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

Description

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: http://www.nsf.gov/pubs/2008/nsf08051/nsf08051.jsp.Proposals for Conferences, Workshops, and Supplements may be submitted at any time, but must be discussed with the program director before submission.Grants for Rapid Response Research (RAPID) and EArly-concept Grants for Exploratory Research (EAGER) replace the SGER program. Please note that proposals of these types must be discussed with the program director before submission. Further details are available in the PAPPG download, available below. Please refer to the Proposal and Award Policies and Procedures Guide (PAPPG), January 2009, (NSF 09-1) when you prepare your proposal.

Link to Full Announcement

NSF Program Description 09-7643

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

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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, yost.richard@epa.gov, 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: http://www.epa.gov/sbrefa/hardrockmining.htm

Greenlaw from NRDC China , NRDC China Program, Beijing

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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."

 

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

 

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: http://www.sacbee.com/2010/12/03/3229405/water-wars-hinder-sound-decision.html#ixzz172yqyzRN

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.

 

 

 

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

IRON MOUNTAIN MINE et al,

T.W. ARMAN and JOHN F. HUTCHENS,

(real parties in interest), “Two Miners”

Under God, Indivisible; Patentee, Grantee

v.

UNITED STATES OF AMERICA

STATE OF CALIFORNIA Grantor

DEMAND FOR JUST COMPENSATION,

DEMAND FOR SURRENDER;

DEMAND FOR FORCIBLE UNLAWFUL DETAINER TREBLE DAMAGES;

DEMAND FOR ABOLITION AND EMANCIPATION FROM CONTINUING NEGLIGENT ARBITRARY AND CAPRICIOUS RECKLESS FELONIOUS ENDANGERMENT BY JOINT & SEVERAL TRESPASSERS.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WATER RIGHTS NOVATION PETITION FOR CLERKS WRIT OF ENTRY, cestui que trust

APPLICATION FOR THE FOLLOWING ORDERS: CAFA CERTIFICATION; BAN EPA;

APEX LAW ACTION; REMISSION; REVERSION; DETINUE SUR BAILMENT; VOID & VACATE LIEN & VACATE CONSENT DECREE & VACATE PREMISES & ABOLISH COERCIVE MONOPOLY; ABOLISH ESTABLISHED HOLISTIC BELIEFS. REMIT TRUST

SURRENDER IRON MOUNTAIN MINE REMEDIATION TRUSTS TO MR. T.W. ARMAN.

SURRENDER IRON MOUNTAIN MINE TO MR. T.W. ARMAN'S TENANT-IN-CHIEF

SURRENDER IRON MOUNTAIN OPERATIONS, TAKE PERSONAL POSSESSIONS. GO.

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

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

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

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

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

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

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

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

ENVIRONMENTAL COMMAND OFFICER - PRIVATE INSPECTOR GENERAL -MINISTER

FACILITY COMPLIANCE AUDITOR, EXCHEQUER, D.A.D. OF IRON MOUNTAIN MINE,

HUMMINGBIRD INSTITUTE – IRON MOUNTAIN HAZARD & REMEDIATION DIRECTOR

TENANT-IN-CHIEF OPERATING OFFICER / CHANCELLOR – FREEMINERS' UNIVERSITY

CURATOR OF THE ARMAN CONSERVATORY / JOINT VENTURER – ad hoc & ad litem .

RELATED CASES-CONCURRENT JURISDICTION

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

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

CLERKS NOTICE: Detinue sur bailment-trover

ADVERSE CLAIMS, WRONGFUL TAKING, FALSE PRETENSES, FRAUD UPON THE COURTS, &e.

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

CITIZENS SUIT; INTERVENTION COMPLAINT TAKING CLAIM, STIGMATIC INJURIES IN VIOLATION OF SECTION 19, CALIFORNIA CONSTITUTION REQUIRING PREPAYMENT OF JUST COMPENSATION, TREBLE DAMAGES FORM OF STATUTES.

The Courts Jurisdiction

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

STATEMENT OF CLAIM, LOCATORS RIGHTS OF PRIORITY OF POSSESSION

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

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

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

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

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

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

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

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

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

PRIOR RIGHTS, PATENT TITLE

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

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

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

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

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

Laches will operate as a bar.

Extent of the Taking

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

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

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

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

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

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

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

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

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

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

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

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

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

The Removal Action as a Special Benefit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION TO THE EXTENT OF THE TAKINGS

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

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

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

DEMANDS

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

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

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

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

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

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

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

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

THERE IS NO EVIDENCE TO SUPPORT A FINDING OF INELLIGIBILITY FOR THE INNOCENT LANDOWNER, THIRD PARTY, AND ACT OF GOD DEFENSES.

THERE IS NO EVIDENCE TO SUPPORT CONTINUING THESE CERCLA ACTIONS.

THERE IS NO EVIDENCE THAT T.W. ARMAN FAILED TO USE “DUE CARE” OR SHOULD HAVE KNOWN THAT COPPER, CADMIUM, AND ZINC WERE HAZARDOUS SUBSTANCES AT THE TIME OF PURCHASE BECAUSE THEY WERE NOT LISTED AS HAZARDOUS SUBSTANCES UNDER THE LAW.

THERE IS NO EVIDENCE OF UNDUE CARE PURSUANT TO SARA.

THERE IS NO EVIDENCE OF CONTRIBUTION TO POLLUTION BY THE PETITIONERS.

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

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

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

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

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

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

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

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

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

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

 

RIGHT OF PRESENT POSSESSION COMPELLED, PATENT TITLE IN EVIDENCE.

EX PARTE ADVERSE CLAIMS POSSESSION AND EJECTMENT EXECUTION

EMERGENCY INTERVENTION WITH ACTUAL CAUSE

§ 6973. Imminent hazard

(a) Authority of Administrator

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

(b) Violations

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

(c) Immediate notice

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

(d) Public participation in settlements

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

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

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

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

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

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

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

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

(D) without observance of procedure required by law;

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

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

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

CALIFORNIA CODE OF CIVIL PROCEDURE 512.010.

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

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

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

PETITIONERS HAVE SUBMITTED EVIDENCE THAT THE UNITED STATES EPA INVASION AND OCCUPATION OF IRON MOUNTAIN MINES PROPERTY TO PERFORM A CERCLA REMEDIAL ACTION WAS A FALSE CLAIM WHEN IN FACT THE EPA ACTION WAS A REMOVAL ACTION THAT HAS RESULTED IN AN IMMINENT HAZARD TO THE PETITIONERS, THE PROPERTY, THE PEOPLE, AND THE ENVIRONMENT. THE EPA HAS IN FACT CREATED AN IMMINENT AND SUBSTANTIAL ENDANGERMENT TO THE PROPERTY OWNERS THAT IS NOTHING LESS THAN ARBITRARY AND CAPRICIOUS FELONIOUS UNLAWFUL DETAINER.

PETITIONERS HAVE SHOWN THAT EPA ACTIONS, AUTHORIZED BY THE PRESIDENT, APPROVED BY CONGRESS, AND DECREED BY THE UNITED STATES DISTRICT COURT, HAVE CAUSED THE UNNECESSARY DISPOSAL OF OVER 500 THOUSAND TONS OF ACUTELY NONTOXIC NONHAZARDOUS WASTES IN A NONTOXIC PIT LOCATED ON PRIVATE PROPERTY WITHOUT A MEMORANDUM OF UNDERSTANDING WITH THE OWNER CONCERNING THE DISPOSAL.

THE ADMINISTRATIVE RECORD, PARTICULARY THE MOST RECENT 5 YEAR REVIEW OF THE CERCLA ACTION, INFORMS THAT THE “DISPOSAL CELL” HAS FAILED AND THAT THE LEACHATE FROM THE PIT NO LONGER FLOWS INTO THE DRAINAGE SYSTEM INTENDED TO CAPTURE IT FOR TREATMENT. PETITIONERS DEMAND THE SURRENDER OF THE PROPERTY TO PROCEED WITH THE PROPER REMEDY. THE EPA HAS FAILED ITS DUTIES TO PERFORM. THE DOJ AND THE COURTS IN ERROR HAVE PERPETUATED THIS NEGLECT IN VIOLATION OF THE REQUIREMENTS OF CERCLA 121 AND IN DEFIANCE OF COMMON SENSE.

PETITIONERS HAVE SHOWN THAT AGENCY ACTIONS DO NOT ACHIEVE THE DISCHARGE REQUIREMENTS OF THE CWA IN AND ARE IN VIOLATION OF ESA.

PETITIONERS HAVE SHOWN THAT REVOLUTIONARY TECHNOLOGY IS NOW AVAILABLE TO THE PETITIONERS THAT WILL MEET THE DISCHARGE REQUIREMENTS OF THE CWA AND ESA, ELIMINATE THE TOXIC SLUDGE DISPOSAL, AND ELIMINATE THE NEED FOR THE EPA LIME TREATMENT PLANT.

THE EPA REFUSES TO CONSIDER ANY RESOURCE RECOVERY TECHNOLOGIES THAT WOULD INTERFERE WITH THE ONGOING RESPONSE ACTION.

PETITIONERS HAVE SHOWN THAT EPA ACTIONS AND CONDUCT OF OFFICERS OF THE UNITED STATES EPA AND DOJ WERE MISTAKEN BUT COGNIZABLE UNDER THE DOCTRINE OF ESTABLISHED BELIEFS ACCORDING TO THE SUPREME COURT; SO NO TORT CLAIMS WOULD BE POSSIBLE, AND PLAINTIFFS HAVE ACKNOWLEDGED AND FORGIVEN THOSE IN ERROR WITH A WAIVER.

PETITIONERS HAVE SHOWN THAT EPA ACTIONS, HOWEVER WELL MEANT OR INTENTIONED, HAVE FAILED TO ACHIEVE THE PERFORMANCE MANDATED BY STATUTE AND REQUIRED BY CONGRESS, COURT ORDERS, THE CWA AND ESA.

PETITIONERS HAVE SHOWN THAT JUDICIAL SWADDLING AND DEFERENCE TO AGENCY ACTIONS, EVEN IF UNLAWFULLY WITHELD OR UNREASONABLY DELAYED, HAS RESULTED IN AN IMMINENT HAZARD AND A NEGLIGENTLY ARBITRARY AND CAPRICIOUS RECKLESS NEGLIGENT ENDANGERMENT OF THE PETITIONERS AND THEIR PRIVATE PROPERTY AS WELL AS TO THE NATION.

PETITIONERS HAVE SHOWN THAT COURT RULES, PARTICULARLY RULES WHICH DISCRIMINATE AGAINST CITIZENS WITHOUT REPRESENTATION BY ADMITTED ATTORNEYS, DEPRIVES CITIZENS OF THE CONSTITUTIONAL PROTECTIONS OF DUE PROCESS AND EQUAL PROTECTION, AND SERVES TO DEPRIVE THESE PETITIONERS OF PROTECTIONS GUARANTEED UNDER THE 5 TH AMENDMENT OF THE CONSTITUTION FOR TAKINGS OF PRIVATE PROPERTY REQUIRING JUST COMPENSATION AND JUST, SPEEDY, AND ADEQUATE REMEDY.

A RULE SUPERIOR TO THE CONSTITUTION CANNOT BE ADMITTED.

PETITIONERS HAVE SHOWN THAT THE DETENTION OF IRON MOUNTAIN MINES BY THE EPA UNDER CERCLA WAS A MISTAKE, THAT THE EPA ACTIONS HAVE BEEN INADEQUATE AND INAPPROPRIATE, THAT THE EPA ACTIONS EXCEED

ANY LAWFUL AUTHORITY, MOST PARTICULARLY THE LIMITATIONS IMPOSED

UNDER CERCLA SEC. 9604. RESPONSE AUTHORITIES. (3)(A)

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

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

(3) A particular description of the property and a statement of its value. 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.

THERE IS NO SEIZURE ON THE PROPERTY FOR A TAX, ASSESSMENT, OR FINE.

THE PROPERTY IS BY STATUTE EXEMPT FROM SUCH SEIZURE.

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

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

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

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

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

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

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

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

(b) Describe the specific property to be seized.

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

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

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

Written notice to terminate & deliver possession. August 17 2009

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

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

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

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

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

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

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

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

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

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

EPA raises the stakes
Houston Chronicle
By MATTHEW TRESAUGUE The EPA has threatened dozens of Texas refiners and chemical and plastic makers with penalties if they don't begin taking steps to ...
See all stories on this topic »

COMPLAINT IN INTERVENTION Case No. 104079

Superior Court of California, County of Shasta

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

WE NEED TO KNOW THE LINE ON WHICH TO DRAW THE LIMITS OF STATE POWERS, WE WILL DETERMINE EXACTLY HOW TO DO SO HERE!

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

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

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

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

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

Selected Writings of Sir Edward Coke, vol. I

PLAINTIFF HUTCHENS APPOINTMENT QUO WARRANTO AS PROJECT MANAGER

REMISSION, REVERSION, AND DETINUE SUR BAILMENT, TREBLE DAMAGES

ANY AND ALL FURTHER RELIEF THAT THE COURT FINDS JUST AND PROPER AND CONSISTENT WITH FINAL ADJUDICATION OF ALL MATTERS IN THIS CASE.

 

Date: November 19, 2009 _under oath, Signature:

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

WARDEN OF THE FORESTS AND STANNARIES FOR IRON MOUNTAIN MINES, INC.

 

Verification affidavit:

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

Affirmed this day: November 19, 2009

Grantee's agent of record; Signature:

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

 

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.


A.   FOUNDATIONS   Links

  • 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
B.   CONTEMPORARIES   Links
  • 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

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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."  
TOP


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."  
TOP


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 www.coherentbabble.com/ , 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 )afsc.org.)   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.

Milford residents say EPA stormwater mandate isn't fair

By Ashley Studley, DAILY NEWS STAFF Milford Daily News Posted Dec 08, 2010

MILFORD —

Some residents of a condo complex yesterday said they fear they will have to pay double to comply with a mandate to reduce pollution in water runoff.

At a meeting with the Metropolitan Area Planning Council to explore funding options, tenants of Laurelwood at Milford fear they'll have to pay into a stormwater utility fund and also pay to reduce phosphorous runoff from the condominium complex, as it falls under the Environmental Protection Agency's target criteria.

"It really isn't fair. We shouldn't be charged twice," said complex resident Janice Acquafresca.

In an effort to clean the Charles River, the mandate, proposed by the federal Environmental Protection Agency, would require the towns of Bellingham, Franklin and Milford and properties within them containing more than two acres of impervious coverage to reduce phosphorous in runoff by 65 percent.

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. 

Environmental Justice Timeline
The EPA Brownfields Program has a rich history rooted in environmental justice. The Brownfields Program and the environmental justice movement have evolved over a similar timeline, fueling one another and helping to build strong communities.
1982 • Residents of Warren County, NC protest construction of a hazardous waste landfill in the predominantly African-American community, bringing environmental justice issues into the national spotlight
1987 • The United Church of Christ publishes Toxic Waste and Race in the United States
1991 • The First National People of Color Environmental Leadership Summit is held
• Cuyahoga County Community College Environmental Justice Grant
1993 • Cuyahoga County Planning Commission receives first EPA Brownfields Pilot
1994 • Executive Order 12898 requires that each federal agency make achieving environmental justice part of its mission
1995 • EPA awards additional Brownfields Pilots to 22 communities • EPA and NEJAC convene public dialogues to provide stakeholders an opportunity to express concerns related to brownfields and public health
1996 • NEJAC publishes Environmental Justice, Urban Revitalization, and Brownfields: The Search for Authentic Signs of Hope highlighting recommendations to EPA raised through the public dialogues on how to develop the Brownfields Program
1997 • The Puyallup and Navajo Nation become the first Tribes to receive Brownfields funding
1998 • EPA awards first Job Training Pilots • First 16 Brownfields Showcase Communities are designated, providing resources and support from more than 15 federal agencies to address local revitalization issues
1999 • EPA develops Civil Rights Act Title VI Case Studies report
2002 • “Brownfields Law” signed; statute includes requirements to address environmental justice; nonprofit organizations are eligible to receive funding
2005 • EPA brings environmental justice and community representatives together to develop the All Appropriate Inquiry Final Rule • EPA awards Job Training grants to Mississippi DEQ and Southern University to recruit and train residents in areas affected by Hurricane Katrina
• Brownfields Program begins providing Targeted Brownfields Assessment funding to EPA’s Community Action for a Renewed Environment (CARE) grantees
2006 • NEJAC publishes Unintended Impacts of Redevelopment and Revitalization Efforts in Five Environmental Justice Communities highlighting concerns of gentrification and displacement in brownfield communities
2007 • Brownfields Program contributes to EPA Office of Solid Waste and Emergency Response Environmental Justice Action Plan • EPA awards first round of Training, Research, and Technical Assistance grants focused on environmental justice issues • EPA convenes nonprofit cleanup roundtables to assist nonprofit organizations in building capacity to address environmental issues
2009 • To date, 78 Tribes and 90 nonprofit organizations have received Brownfields funding
Addressing Environmental Justice in EPA Brownfields Communities
EPA-560-F-09-518 November 2009 www.epa.gov/brownfields
Solid Waste and Emergency Response (5105T)
Future Opportunities to Measure and Promote
Environmental Justice
The data presented in this brochure affirm efforts by EPA’s Brownfields Program to serve communities most in need. However, additional data and analysis are needed to gain a clearer understanding of how the demographic and socioeconomic composition of communities has evolved as a result of Brownfields funding. Ultimately, this analysis is a first step in determining if the program is serving low-income and minority communities, as it was designed to do. EPA hopes to conduct future analyses of communities that have received EPA funding to correlate 2000 census data with 2010 census data. This information collection will help OBLR determine ways to enhance the program to better serve the American public.
EPA Cleanups in My Community:
Mapping and listing tool that shows sites where pollution is being or has been cleaned up: iaspub.epa.gov/Cleanups/
EPA Contact:
Joseph Bruss Environmental Justice Coordinator Office of Brownfields and Land Revitalization (202) 566-2772
Brownfields and Environmental Justice: A Demographic Analysis of Brownfields Communities
Redevelopment for
Affordable Housing
Using EPA funding to help provide affordable housing helps to prevent displacement of current residents. The Redevelopment Agency of the City of Oakland, California used an EPA Brownfields Cleanup grant to help turn a former commercial and industrial property into 80 units of affordable housing for local residents. The complex integrates green building design and eco-friendly materials

Phase I Environmental Site Assessment Risk Decisions (2 Comments)

4:45 am in Environmental Due Diligence by Joe Derhake, PE

Entry by JoeDerhake

Entry

When doing Phase I Environmental Site Assessments , sometime the facts are on the border between a recognized environmental condition and an environmental issue.   This blog is my latest in a series of borderline decisions.  

Here is the scenario: the Phase I ESA finds a classic REC on site.  Let's say we have 15 years of dry cleaners on-site in the 1970s and 1980s—clearly a REC.  However, in this instance the site was redeveloped with a high-rise office building with a 3 level subterranean garage in 1988.  The construction project necessitates excavating 40 feet from lot-line to lot-line.   Assume groundwater is at 80 feet below ground surface. 

The environmental professional may point out that the solvent could have penetrated all of the way to groundwater, but the excavation of 40 feet of soil clearly is a significant mitigating event.  

Would you as an environmental professional still consider this situation a recognized environmental condition?   Would you recommend Phase II Environmental Testing ?  

Providing our clients with good environmental risk management opinions is a very important part of our job.  Please let me know what you think?

Keywords

Phase I Environmental Site Assessment, Phase I ESA, Environmental Risk Management, Phase II Environmental Testing

by Joe Derhake, PE

Seismic Damageability Reports

8:15 am in Environmental Due Diligence by Joe Derhake, PE

Seismic Damageability Reports and Probable Maximum Loss Reports are terms that are used interchangeably in the engineering due diligence field. In both instances, engineers are engaged to quantify the amount of seismic risk associated with a building. Most engineers prepare reports according to ASTM E 2026-2007 guidelines.  

While Probable Maximum Loss (PML) is by far the more commonly used term in the industry, many engineers have favored Seismic Damageability Report, as the term PML can have several meanings. Consequently, ASTM has issued a guideline document that attempts to standardize the terminology used for seismic loss reports.

Many engineers, including my firm (Partner Engineering and Science), provide “Scenario Loss” estimates to clients. The Scenario Upper Loss (SUL) is the scenario loss that has a 10% probability of exceedance due to the specified earthquake scenario, and the Scenario Expected Loss (SEL) is the expected loss value due to the specified earthquake scenario. Therefore, the SUL represents an upper loss estimate, and the SEL represents an average or expected estimate. 

Clients should be careful when ordering Seismic Damageability Reports (or PMLs) as there are some firms that use significantly different methods for calculation of the SEL and SUL.   My recommendation when ordering a report is to make sure of the following:       

1)      The firm should have a registered engineer on staff;

2)      Ask the firm to follow ASTM E2026-2007 and, if being done for lenders ASTM E2557-2007 ;

3)      Request that the firm show their math on the calculations.

Whether you call it a Probable Maximum Loss Report or a Seismic Damageability Report, in the end, the name does not matter; as long as the assessment is done by a quality engineer and performed consistently and transparently, the lender can use this tool to measure their seismic risk.

by John Rockwell

Energy Study: California Existing Commercial Buildings

7:47 am in Environmental Due Diligence by John Rockwell

”Up to 80 percent of the energy used by commercial buildings is going up in smoke”… per a new study by Next 10 that examined energy use among California's existing commerical buildings. Read a news article about the study below:

http://www.sacbee.com/2010/07/14/2888438/california-conservation-group.html#ixzz0uMJM3Z5A

Here is a link to the actual Next 10 report:
http://www.next10.org/research/research_eeijc.html

 

"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.

 

writ of unspeakable errors, divide et regnes! RELIEF: UNCONSTITUTIONAL LAW IN VIOLATIONS OF FIRST, FOURTH, FIFTH, TENTH AND FOURTEENTH AMENDMENT PROTECTIONS.

 

§ 3729. FALSE CLAIMS; MISTAKE! PROHIBITION! EQUITABLE ESTOPPEL!

 

“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'...

 

WE NEED TO KNOW THE LINE ON WHICH TO DRAW THE LIMITS OF FEDERAL POWERS;

WE WILL SO DETERMINE HERE!

 

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